THE PEOPLE, Plaintiff and Respondent, v. JESSE EDWARD GONZALEZ, Defendant and Appellant; In re JESSE EDWARD GONZALEZ on Habeas Corpus; THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JESSE EDWARD GONZALEZ Real Party in Interest, 51 Cal. 3d 1179

Opinion EAGLESON, J. jury convicted defendant Jesse Edward Gonzalez of the first degree murder of Deputy Sheriff Jack Williams (Pen. Code, §§ 187, 189) and of assault upon a peace officer, Deputy Sheriff Robert Esquivel, by means likely to produce great bodily injury (§ 245, former subd. (b), now subd. (c)).

With respect to both offenses, the jury found that defendant had personally used a firearm. (§ 12022.5.) Under the 1978 death penalty statute, the jury also found, as a special circumstance of the murder, that defendant intentionally killed a peace officer engaged in the performance of duty. (§ 190.2, subd. (a)(7).) A separate penalty jury became deadlocked, and the court declared a mistrial. A second penalty jury returned a death verdict. The trial judge declined to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death for the murder.

The court imposed a six-year prison term for the assault, representing the middle term of four years plus a two-year enhancement for use of a firearm. Execution of the noncapital sentence was stayed. This appeal is automatic. Defendant also petitions for habeas corpus, and the People petition for mandate to overturn the trial court’s postjudgment discovery order. These matters have been consolidated with the appeal. We shall affirm the guilt and penalty judgments, deny the petitions for habeas corpus, and order issuance of a peremptory writ of mandate as requested by the People. I. Guilt Trial A.

Prosecution’s case-in-chief. Around 7:30 p.m. on May 29, 1979, Los Angeles County deputy sheriffs and narcotics officers from two city police forces drove to 16123 Abbey Street in La Puente to execute a search warrant. (The facts surrounding the validity of the warrant are discussed below.) The officers, who included Deputies Williams and Esquivel, were of various ethnic backgrounds. They were dressed in plain clothes (Levi’s, tank tops, jackets, and T-shirts) and were using unmarked vehicles (a Camaro, a Ford LTD, and a Ford Granada).

One car drove quickly to the rear of the house, the second stopped in the side driveway, and the third remained in front. Four deputies, armed with pistols, positioned themselves at the front door. Williams and Deputy Zabokrtsky each knocked forcefully and announced the group’s identity and purpose. The officers then heard hasty movements inside the house and suspected evidence was being destroyed or concealed. Williams told Esquivel to “take the front door out.” After four tries, Esquivel kicked the door open, and the officers rushed in.

Forty-five seconds to one minute had elapsed between the first knock-notice and the entry. Esquivel, his badge clipped to his Army fatigue jacket, was the first to enter. Williams, holding an open badge case in his hand, was close behind. As Esquivel’s momentum brought him across the threshold, he saw defendant braced against a wall, pointing a shotgun at him. Esquivel turned aside and defendant fired. The blast struck Williams in the chest, wounding him fatally. Defendant fled down a hallway, carrying the shotgun against his shoulder in a “port arms” position. Esquivel pursued.

Seeing or hearing Esquivel behind him, defendant turned the shotgun’s barrel “backwards and downwards” in Esquivel’s direction. Esquivel fired his revolver several times, wounded defendant, and arrested him. Defendant’s cousin or half-brother, Steven Martinez, was found hiding in the bathtub and was also taken into custody. A six-year-old girl and defendant’s two-month-old son were discovered in a back bedroom. There were narcotics paraphernalia (lactose, syringes, needles, a carbon-stained spoon, empty balloons cut in a characteristic manner) throughout the house.

A .22-caliber automatic pistol was also retrieved from the residence. No controlled substances were found. As defendant was taken by gurney to an ambulance, several officers observed him raise his left fist and say “Viva Puente.” This was considered a defiant salute to the local street gang known as “Puente.” Deputy Araujo also heard defendant hurl the epithet “puto,” meaning “fag,” at nearby officers. Two deputies interviewed defendant in the hospital the next day. Defendant was alert and congenial. He claimed the shooting was a “freak accident” caused by mistaken identity.

He had thought the house was under attack by the “Bassetts,” a street gang from a rival neighborhood. At one point, defendant explained he was outside watering the lawn, but ran inside when he saw “the cops” coming. Asked to repeat what he did when he saw “the cops,” defendant insisted, “I didn’t say that. You must be confused.” Defendant then gave the officers the following account: He was inside talking to Martinez when he heard squealing tires and saw several cars full of men surround the house. He shouted, “Stevie, Bassett.

Trucha, trucha,” street language for “beware” or “watch out.” He retrieved his shotgun, loaded it, and stationed himself opposite the front door. He heard pounding and indistinct shouts. Two mustachioed men—one “Mexican” and one White—burst in with guns. He knew the Bassetts sometimes attacked with “white dudes.” He fired and ran. William Acker, a fellow jail inmate, testified that defendant approached him with legal questions. At first, Acker was reluctant to get involved. However, defendant eventually explained the facts, illustrating his narrative by drawing a map of the scene.

Defendant confided he had been “tipped” and suspected a police narcotics raid was imminent. He wanted to “bag a cop” and protect his “pad” because there was heroin. When the officers approached, defendant ran inside and told Martinez, “Juda,” meaning “the cops, police.” Martinez was supposed to remove the children and dump the narcotics, then get a gun and help. Defendant had a shotgun, and “anyone coming in that door was getting it.” The officers “announced theirselves,” but defendant did not answer.

The deputies burst in so fast that his shot hit the second man through the door, a “white dude.” Defendant thought the officers would retreat after his first shot, giving him time to escape, but he found out “it didn’t work that way.” He was “pissed” that Martinez did not help. Acker told defendant, “they got you,” but defendant replied, “No way. I got aces.” Defendant said he planned to claim, or had claimed, that he thought the officers were Bassetts. Acker asked who the Bassetts were, and defendant explained they were a street gang currently at war with his neighborhood.

Defendant said the Bassetts wanted peace and would be willing to testify there had been “chaos” in the area. Defendant also thought he could get neighbors to say the officers entered unannounced and shot first. In his testimony, Acker revealed he was in jail awaiting sentence on his own conviction for “felony murder.” On cross-examination, Acker said he had voluntarily approached the authorities with his information. He claimed he was target because he hated prison gangs, and he hoped his testimony would gain him a protective transfer to an out-of-state facility.

Acker insisted he had received no promises and expected no other consideration. He admitted informing about his wife’s role in his own case and about two jailhouse incidents, but he denied he was an established police informant. B. Defense. James Noble, another jail inmate, testified defendant asked him to read the police reports in defendant’s case, since defendant cannot read. Their conversations could have been overheard from Acker’s cell. According to Noble, Acker approached defendant with an offer of reading assistance. Defendant spoke to few inmates.

He never discussed case details with Noble and never told Noble he knew the raiders were police. A neighbor, Nectli Garcia, testified that the Bassett gang had been shooting up the area recently. Steven Rodriguez, who lived three miles from Abbey Street, testified the Bassetts had attacked his home four times, once breaking the windows. Rodriguez said that Bassett “warriors” were both “Mexican and white” and ranged in age from 14 to 24. Rodriguez agreed he could tell whether “kids” were gang members just by looking at them. There was evidence that Martinez, not defendant, was the focus of the drug raid.

Several deputies testified they knew of no reason defendant might have been “tipped.” A warrant informant, they said, would seldom be advised of the time a raid was to occur. Deputy Mace testified that in the ambulance after the shooting, defendant said, “Sorry, man,” and asserted that he thought the raiders were Bassetts. Mace then told defendant his wounds “looked bad and that [defendant] might not make it.” Defendant replied he knew he was going to die or lose his arms. Defendant testified in his own behalf. With minor variations, he recounted the version of events he had given the police in the hospital.

He admitted he asked Acker about the “no knock” law, but he denied telling Acker the details of his case. He also denied telling the police he saw “the cops” coming. Defendant said he had been staying at the Abbey Street house, which was his parents’ residence, for only two weeks before the shooting. Martinez also lived there. Martinez had used heroin in the past, but as far as defendant knew the premises were drug free on May 29, 1979. Defendant acknowledged he was a veteran gang leader, but said he had not been involved since about 1970.

He knew the Bassetts from the 1960’s and understood they had become more violent. As of May 29, 1979, he had not heard of the shooting incidents related by Garcia and Rodriguez. Even if there had been no recent incidents, however, he was always alert. If any unknown group drove up to his house, his first thought would be Bassetts. Martinez had clashed with the Bassetts in the past, and defendant “guessed” that Martinez, despite his advanced age (28), was involved in gang warfare. Defendant testified that on May 29, 1979, his 31st birthday, he returned from work, showered, watered the lawn, and went back inside.

When the police cars approached, defendant thought a “Chicano” was riding “shotgun” (the right front passenger seat) in one of the cars. In gangs, this was where the person giving orders sat. Defendant shouted to Martinez, “Trucha, Bassett’s here.” He saw no badges, heard shouts but no announcement, and never clearly observed the officers. A “Mexican” burst in; then a White man, still mostly hidden, aimed a pistol through the doorway. Defendant fired but never really saw the man he hit. When defendant realized he had shot an officer, he closed his eyes and asked, “Why? Why? Why? Why?

Why?” As he lay wounded, the police cursed and kicked him. This is why he said “puto” as he was carried from the house. He also said, “Que rifa mi barrio,” which means, “hurray for the neighborhood.” Defendant knew gang warriors were usually younger than 18. However, he had heard of participation by older men. Occasionally the Bassetts had White “helpers.” Other than distinct “Townecraft” T-shirts, their clothing was not uniform. They formerly drove “low-rider” vehicles but now used borrowed cars or vehicles owned by their parents.

Though the Bassetts were “chickens” or “broads” who would scatter if challenged, on May 29 defendant thought they were “finally” attacking with “balls.” C. Rebuttal. A sheriff’s officer familiar with area gangs testified about the characteristic ages (16 to 20), ethnic background (Mexican), appearance (oversized khaki pants; heavy, sleeved T-shirts; short hair combed back), language (an English-Spanish mixture called “Calo”), vehicles (beat-up “low-rider type” pickup trucks and full-sized General Motors cars), weapons (rifles), and tactics (drive-by or hit-and-run shootings) of attacking Bassett warriors.

Over objection, the jury heard live testimony about the circumstances leading to the search warrant. Deputy Lira testified that six days before the raid, he observed an informant make a “controlled buy” of heroin from “Indio” (a name used by Martinez) in the yard of 16123 Abbey Street. The warrant and its supporting affidavit were also admitted in evidence. II. Penalty Retrial A. Prosecution’s case-in-chief. With minor variations, the prosecution represented its evidence of the circumstances of the warrant, the raid, and the shooting.

Officer Lira testified that as defendant was placed in the ambulance, Lira heard him say, “Rifa Puente, putos.” Lira believed this meant, “long live the Puente gang, queers.” The epithet seemed directed at police personnel who were standing nearby. Acker essentially restated his prior version of defendant’s jailhouse admissions. Acker said defendant pestered him for legal help; Acker finally acquiesced and asked defendant what happened. Their conversations extended over a two-week period. Acker sometimes initiated the discussions.

Defendant explained he hated the sheriff’s “nares,” who were “sweating” (harassing) the neighborhood. Defendant wanted to “bag a cop” and show he could protect his narcotics business. On May 29, which was defendant’s birthday, defendant anticipated a raid. The “women” (his and Martinez’s wives) were sent outside to watch and signal. Defendant was “on the point” (alert and ready). Acker again explained his motives for giving evidence. He said that after he was sentenced, he approached the authorities through Detective Ahn, who had investigated his own case.

Acker hoped to arrange an out-of-state transfer because of his conflict with prison gangs. He also wanted to restore a “moral balance” for his own crimes. Acker confirmed he had given information in his own case and two jailhouse incidents before meeting defendant. “Since this case,” he acknowledged, he had testified in two other cases and had given information in six or seven. He denied he was an established police agent. Acker revealed that a tattoo bearing the word “Paramount” had recently been surgically removed from his back. He denied the tattoo had indicated his own gang membership.

He said he got the tattoo in prison as a form of protection against gangs. By calling attention to his home city, Paramount, the tattoo was intended to convey that he was not alone in prison. Acker denied knowing of a gang named “Paramount.” For the first time, Acker admitted he had been promised “removal of tattoos and perhaps other types of plastic surgery” for protection in light of his overall cooperation with the authorities. Acker denied requesting a change of identity solely in return for his testimony against defendant.

Deputy Araujo, a gang expert who knew the raiding officers, testified they did not resemble Bassett warriors. The officers were too old (mid-30’s and older), mostly Anglo, and not dressed in gang style. Araujo had never heard of gangs going inside an enemy’s house. He believed the Abbey Street neighborhood was “very quiet” in May 1979. The parties stipulated that defendant had previously been convicted of two misdemeanors, forcible assault (former § 245; now § 245, subd. (a)(1)) in 1966 and battery (§ 242) in 1972. B. Defense. Defendant did not testify.

He presented his version of the shooting through Deputy Overlease, one of the officers who interviewed him in the hospital. Overlease included defendant’s slip of the tongue about seeing “the cops” coming. Testimony about defendant’s remorseful statement during his ambulance ride was read to the jury. Defendant introduced time records suggesting he worked a normal day on May 29. Defendant’s sister, Patricia De Jesus, testified he was not home during that day, which was his birthday. De Jesus never saw “hype kits” in the house; her diabetic father used needles and syringes to inject insulin.

Matilda Gonzalez, defendant’s mother, confirmed her husband’s use of syringes for diabetes, but she conceded she did not recognize the needles and paraphernalia introduced by the prosecution. Martin Ybarra testified that he was a member of the Bassett gang. Despite Acker’s denial, Ybarra said he had met Acker in jail before May 1979. They discussed the Bassett-Puente rivalry. Acker told Ybarra he “belonged to Paramount.” Ybarra knew of a gang by that name. Ybarra had heard of defendant as “the” leader of Puente and an important enemy of the Bassetts.

He recounted that Puente warriors had recently shot at two Bassett “home boys.” If an enemy was important enough, Ybarra said, Bassett warriors would break down doors and enter his house. C. Rebuttal. Deputy Araujo testified that defendant was considered an older “guy” with possible gang involvement in the past. Araujo said the Abbey Street neighborhood was not the focus of gang activity and the Puente gang had no single leader. III. Issues on Appeal A. Guilt issues. 1. Validity of warrant.

Defendant first claims the fruits of the warrant search—the narcotics paraphernalia and pistol—should have been suppressed because the warrant affidavit did not disclose probable cause to search the Abbey Street house. The contention lacks merit. The affidavit by Officer Lira disclosed that on May 23, 1979, an untested informant told a narcotics officer that the informant could purchase heroin from “Steve,” also known as “Indio,” who resided at 16123 Abbey Street.

The informant described “Indio” (Latin male, age twenty-seven, five feet seven to five feet nine inches, one hundred and thirty to one hundred and sixty pounds, short hair, goatee) and said “Indio” was dealing large quantities of heroin from the address. The police learned from official records (1) that a car was registered to Steven Martinez, Jr., at 16123 Abbey Street and (2) that Steven Martinez of that address, who was also known as “Indio,” had numerous arrests. The same day, Lira watched the informant make a “controlled buy” of one balloon of heroin in the backyard of the Abbey Street address.

The seller fit “Indio’s” description, and the informant confirmed he was “Indio.” On the basis of this information, Lira, a trained narcotics officer, expressed the opinion that heroin was stored on the premises at 16123 Abbey Street. Defendant asserts that even if the affidavit justified “Indio’s” arrest, it did not support a search of the residence. Apart from the claims of an untested informant, defendant suggests, the circumstances recited in the affidavit did not indicate contraband was stored inside the house. We disagree.

Mere evidence of a suspect’s guilt provides no cause to search his residence. (See People v. Cook (1978) 22 Cal.3d 67, 84, fn. 6 [148 Cal.Rptr. 605, 583 P.2d 130].) However, “[a] number of California cases have recognized that from the nature of the crimes and the items sought, a magistrate can reasonably conclude that a suspect’s residence is a logical place to look for specific incriminating items. [Citations.]” (People v. Miller (1978) 85 Cal.App.3d 194, 204 [149 Cal.Rptr. 204]; see also People v.

Superior Court (Brown) (1975) 49 Cal.App.3d 160, 167-168 [122 Cal.Rptr. 459].) The informant had asserted that one “Indio” was “selling large quantities of heroin from his residence in La Puente.” (Italics added.) In corroboration of this claim, the police independently knew that “Indio” lived at the Abbey Street address and that a “controlled buy” from “Indio” had taken place on the property. These facts permitted a logical inference that narcotics were probably being kept on the premises. Defendant cites no cases suggesting otherwise. By any applicable standard, the warrant was valid. 2.

Failure to exclude narcotics evidence. Defendant argues that both the circumstances leading to the warrant and the paraphernalia and pistol found in the search should also have been excluded as irrelevant and prejudicial. He claims the warrant and the seized items were never directly connected to him, and were thus pertinent only for the improper purpose of suggesting he was a “bad person” who associated with narcotics traffickers. (See Evid. Code, § 352; People v. Cardenas (1982) 31 Cal.3d 897, 906-907 [184 Cal.Rptr. 165, 647 P.2d 569]; cf. Evid.

Code, § 1101, subd. (a).) The warrant affidavit, which detailed the facts supporting the search, was received without objection at the conclusion of the prosecution’s case-in-chief. The court then inquired on its own motion whether the affidavit contained any material more prejudicial than probative. The following colloquy ensued: “Mr. Bowers [the prosecutor]: I don’t think there is any mention about Mr. [Gonzalez] in the search warrant at all. His name is not mentioned and it’s entirely revolving around Stevie Martinez; is that correct? [If] Mr.

Bencangey [defense counsel]: Yes. []f] The Court: All right, [if] So I assume for that purpose you would want it in also, then, Mr. Bencangey? [1f] Mr. Bencangey: Yes. I don’t think it harms my client at all.” (Italics added.) With the agreement of both counsel, the court admonished the jury that the affidavit was admitted not for its truth, but only to explain the officers’ presence and conduct at the time of the shooting. Defendant later objected under Evidence Code

section 352 when, in its rebuttal case, the prosecution proffered testimony by Officer Lira about the “controlled buy” leading to the search warrant. The prosecutor urged that the evidence was pertinent to rebut defendant’s professed ignorance of narcotics activity on the premises. Defense counsel responded that the warrant evidence showed at most an ambiguous transaction outside the house, and was highly prejudicial.

The court responded that similar evidence was already before the jury in the affidavit, and was relevant to rebut defendant’s apparent claim that the police had “dreamed up” an excuse to raid the house. The court asked if the defense would stipulate that the May 29 raid was legal. Apparently intending to preserve his objection to the validity of the warrant, counsel responded, “No.” Accordingly, the court overruled defendant’s objection to Lira’s testimony, but again warned the jury to consider the proffered evidence only for its bearing on why the officers raided the house.

Lira then briefly described the controlled buy. Defendant never objected below that the fruits of the search were irrelevant. Nor did he ask the trial court to exclude the fruits as more prejudicial than probative. Assuming he may nonetheless raise the “fruits” issue on appeal as one of ineffective assistance of counsel, we find no basis for reversal in any of these related contentions. First, any error in admitting the warrant affidavit was invited.

In response to the trial court’s pointed inquiry, defense counsel indicated he “want[ed the affidavit] in” because it tended to show that suspicion of narcotics activity was focused on Martinez, not on defendant. This was a plausible tactic, given defendant’s central claim that he had no reason to expect the police, and it is manifest on the record. (People v. Avalos (1984) 37 Cal.3d 216, 229 [207 Cal.Rptr. 549, 689 P.2d 121]; cf. People v.

Wickersham (1982) 32 Cal.3d 307, 334-335 [185 Cal.Rptr. 436, 650 P.2d 311].) Even if counsel later changed his mind, the court did not abuse its discretion by concluding that brief live testimony about the controlled buy was not more useful than prejudicial. In any event, evidence of narcotics activities on the premises was admissible under the circumstances of this case. Defendant cites Cardenas, supra, 31 Cal.3d 897, for the proposition that narcotics evidence must be excluded as unduly prejudicial unless it is directly pertinent to the charges. Cardenas, however, is inapposite.

There the issue was whether the accused was the perpetrator of a 7-Eleven robbery. To buttress its theory that Cardenas was the robber, the prosecution sought to prove he needed money to support his drug habit. We confirmed that because of its prejudicial impact, an accused’s addiction to narcotics may not be admitted as remote evidence of his motive for stealing something other than drugs. (31 Cal.3d at pp. 906-907; see generally People v.

Davis (1965) 233 Cal.App.2d 156, 161 [43 Cal.Rptr. 357].) Otherwise, every addict charged with robbery or theft would face exposure to the jury of his “loath[some]” character flaw. Here, by contrast, defendant conceded he shot a police officer engaged in executing a search warrant. However, he claimed mistaken self-defense and denied having any reason to expect a visit from the police. He thereby placed his knowledge, intent, and motive in dispute. Evidence of narcotics activities in and around defendant’s residence suggested, contrary to his claim, that the police raid may not have been a surprise.

This is particularly so considering that Martinez, the actual narcotics suspect, was in the house at the time of the shooting. Thus, the narcotics evidence was more than “remotely” relevant to the issues of preparation, plan, knowledge, absence of mistake or accident, premeditation, deliberation, malice, and knowing murder of a peace officer. (Cf. Evid. Code, § 1101, subd. (b).) Finally, admission of the narcotics evidence was clearly harmless. The court twice emphasized to the jury that it could consider the controlled-buy evidence only to explain the officers’ presence.

Moreover, the People’s overall case was strong and the defense weak. The surviving raiders insisted they knocked and announced themselves clearly, awaited admittance, forced entry only when the sounds within aroused their suspicions, and displayed their badges as they came through the door. There was convincing evidence that the officers did not resemble gang warriors in appearance or tactics. Counsel conceded in argument that the prosecution had probably disproven any reasonable basis for defendant’s asserted belief in a gang attack.

Moreover, defendant showed defiance even after he knew the officers’ identity, and he later blurted out that he had seen “the cops” approach. It does not appear reasonably probable that any error affected the outcome. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 3. Distrust of informant’s testimony. Defendant argues the trial court erred by failing to instruct on its own motion that the testimony of a jailhouse informant should be viewed with distrust.

We have rejected the contention in other cases, concluding that jailhouse informants have no inherent motive to lie and that the standard instructions on credibility adequately guide the jury’s assessment of a jailmate’s testimony. (People v. Morales (1989) 48 Cal.3d 527, 553 [257 Cal.Rptr. 64, 770 P.2d 244]; People v. Thompson (1988) 45 Cal.3d 86, 118-119 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Hovey (1988) 44 Cal.3d 543, 565-566 [244 Cal.Rptr. 121, 749 P.2d 776]; see People v. Alcala (1984) 36 Cal.3d 604, 623-624 [205 Cal.Rptr. 775, 685 P.2d 1126].) We reach a similar conclusion here.

The jurors knew Acker was a convicted murderer with a motive to cooperate. They received standard instructions that they should consider a witness’s bias or interest, that a witness false in

part is to be distrusted, that the uncorroborated testimony of a single witness should be carefully evaluated, and that a defendant’s oral admissions should be viewed with caution. Discrepancies in informant Acker’s testimony, and his possible motives for giving testimony favorable to the prosecution, were explored at some length in cross-examination and in argument. The court’s failure to give a further “jailhouse informant” instruction sua sponte is not reversible error. An assertion that counsel was ineffective for failing to request a cautionary instruction must also fail.

For the reasons expressed above, the absence of the instruction does not undermine confidence in the trial outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698, 104 S.Ct. 2052]; People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144].) 4. Substitution of judge; jury’s malice question. Judge Cianchetti, who had presided throughout the trial, apparently became ill on Thursday, August 28,1980, the day jury deliberations were to begin. Judge Miller was selected as a temporary replacement and presided during that day.

Judge Miller read the concluding instructions prepared by Judge Cianchetti and submitted the case to the jury. He also dealt with a subsequent jury request to elaborate upon the malice instructions that previously had been read and provided. Neither defendant nor his counsel objected on the record to the temporary substitution. Judge Cianchetti returned on the next court day, Tuesday, September 2, before deliberations were completed. Defendant first asserts that it was improper to substitute another trial judge without first obtaining defendant’s affirmative consent. However,

section 1053 provides that another judge of the court where the trial is proceeding may “proceed with and finish the trial” in the event of the original trial judge’s death, illness, or inability to proceed. The

section does not require the consent of the defendant or his counsel. The cases cited by defendant (e.g., People v. Henderson (1865) 28 Cal. 465, 473; People v. Stuller (1970) 10 Cal.App.3d 582, 590-591 [89 Cal.Rptr. 158, 41 A.L.R.3d 712]) hold only that consent waives any objection; they do not purport to require consent. Defendant claims the substitution violated his due-process right (U.S. Const., Amends. V, XIV; Cal. Const., art. I, §§ 7, 15) to a judge who was expressly familiar with the proceedings. Absent his consent, he urges, he was also denied his jury-trial right (U.S. Const., art.

Ill, § 2, cl. 3, & Amends. VI, XIV; Cal. Const., art. I, § 16) to the same judge and jury throughout the trial. Some authorities provide abstract support for these assertions. (See, e.g., Randel v. Beto (5th Cir. 1965) 354 F.2d 496, 500, & fn. 5; Freeman v. United States (2d Cir. 1915) 227 Fed. 732, 759; State v. Davis (Mo. 1978) 564 S.W.2d 876, 878; 2 Wright, Federal Practice & Procedure: Crim.2d (1982) § 392, pp. 402-403; cf. Fed.

Rules Crim.Proc., rule 25(a), 18 U.S.C.) However, when the original judge becomes unavailable during trial, prudent substitution may have no actual effect on fairness and is often manifestly preferable to a mistrial. For this reason, both California and federal courts have long possessed express substitution authority. (§ 1053; Fed. Rules Crim.Proc., rule 25, 18 U.S.C., both supra.) As might be expected under the circumstances, many modern decisions reject the notion that reversal is always required when a midtrial substitution occurs without the defendant’s affirmative consent.

These cases confirm that a well-justified change of judges, even if technically erroneous, is no basis for reversal if the accused failed to object and no substantial prejudice resulted. (E.g., United States v. LaSorsa (2d Cir. 1973) 480 F.2d 522, 530-531; State v. Amarillas (1984) 141 Ariz. 620 [688 P.2d 628, 630]; State v. McKinley (1982) 7 Ohio App.3d 255 [455 N.E.2d 503, 507]; Peterson v. State (1969) 203 Kan. 959 [457 P.2d 6, 11]; see United States v. Lane (9th Cir. 1983) 708 F.2d 1394, 1396-1398 [Fed. Rules Crim.Proc.]; United States v.

Santos (9th Cir. 1979) 588 F.2d 1300, 1303-1304 [same].) Here we see no unfairness and no substantial infringement on the right to jury trial. Judge Cianchetti’s absence was for good cause, and Judge Miller presided only for one court day. Judge Miller’s tenure comprised a period of jury deliberations and, with one exception, his judicial acts were essentially ministerial. Judge Cianchetti resumed his duties before deliberations were completed. Defendant claims the substitution caused substantial prejudice because Judge Miller mishandled the jury’s request to clarify the malice instructions. We disagree.

Judge Cianchetti had given the standard malice, murder, and manslaughter instructions. (See CALJIC Nos. 8.11, 8.20, 8.30, 8.37, 8.40, 8.50.) The jury was provided a written copy of the instructions. During the first day’s deliberations, the jury asked Judge Miller to clarify the legal definition of malice. Judge Miller explained that he doubted he could improve on the standard definition contained in the instructions previously read and furnished. He urged the jurors to reread the instructional definition (CALJIC No. 8.11) in the context of the preceding and subsequent instructions regarding the

definitions and degrees of murder. The jury foreman replied, “Thank you, your Honor. I think that clarifies it.” Neither Judge Miller, nor Judge Cianchetti upon his return, received any further inquiry on the malice issue, though Judge Miller had asked the foreman if he had any specific questions on the matter. Defense counsel neither objected to Judge Miller’s actions nor offered his own clarifying instructions. Defendant urges that Judge Miller’s refusal to give additional malice instructions violated

section 1138, which requires the court to provide the jury any desired information “on any point of law arising in the case.” As defendant observes, the statute imposes a “mandatory” duty to clear up any instructional confusion expressed by the jury. (See People v. Gavin (1971) 21 Cal.App.3d 408, 418 [98 Cal.Rptr. 518]; People v. Malone (1959) 173 Cal.App.2d 234, 244 [343 P.2d 333].) However, Judge Miller obviously did resolve the jury’s questions by advising them to reread the malice and homicide instructions in context. Where, as here, the original instructions are themselves full and complete, the court has discretion under

section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. (See People v. Rigney (1961) 55 Cal.2d 236, 246 [10 Cal.Rptr. 625, 359 P.2d 23, 98 A.L.R.2d 186].) Judge Miller fulfilled that duty, and no error or prejudice appears. 5. Use of false testimony. Defendant asserts the prosecutor knowingly made use of false testimony at the guilt phase by allowing jailhouse informant Acker to testify untruthfully that he “didn’t like gangs” and that he merely desired a transfer to an out-of-state prison in return for his testimony.

Defendant points to evidence elicited at the second penalty trial that Acker was a gang member. Defendant also stresses Acker’s penalty phase admission that an identifying tattoo had recently been removed from his back in prison. Defendant argues that the tattoo removal shows Acker was promised a change of identity in return for his testimony, contrary to Acker’s insistence that he received no definite promises or benefits. The record discloses no material discrepancy in Acker’s testimony. Acker’s gang membership was never established.

At the penalty phase, defense witness Ybarra testified Acker had admitted membership in the “Paramount” gang, but Acker consistently denied it. He claimed his “Paramount” tattoo referred only to his hometown. Thus, we cannot assume on this record that Acker lied about the matter, or that the prosecution countenanced lying. Similarly, the record of the second penalty trial does not show Acker lied at the guilt phase about benefits promised or received for his testimony.

Although Acker had the “Paramount” tattoo removed, apparently to protect his identity, no proof was made that this act was done by the authorities in return for his testimony in defendant’s case. Even if the authorities did assist in the tattoo removal for purposes of protecting Acker’s identity, this was but a logical extension of the protective prison transfer he had always acknowledged he hoped to receive.

Moreover, any inference that Acker had received benefits for his cooperation in this and other cases by the time of the second penalty trial does not establish that his contrary guilt phase testimony was false when given. In any event, considering the information the jurors already had about Acker, additional revelations that he might be a gang member, and might have accepted protective help from the authorities, would not likely have lessened his credibility in their eyes to any substantial degree. No basis for reversal appears. 6. Failure to disclose informant.

Defendant asserts that the prosecutor “apparently” failed to disclose the identity of the search warrant informant in compliance with a pretrial discovery order. The record does not support the claim that disclosure was withheld. In September 1979, the trial court granted defendant’s broad discovery request for the names and addresses of all “witnesses” having knowledge of the crime or events leading up to it, as well as all persons interviewed by the district attorney or his agents in connection with the case.

The court set a compliance deadline of October 25, 1979, and advised defense counsel to seek relief for noncompliance on or before that date. The record includes no later compliance motion. On January 30, 1980, counsel represented in open court that pending discovery matters were “resolved.” Even if the informant was not disclosed, defendant waived the issue on appeal by failing to seek timely relief for the prosecutor’s noncompliance. Moreover, an ineffective-assistance claim must fail on this record.

We cannot discern whether counsel adequately pursued the informant’s identity, and we do not know whether the informant would have furnished information that undermines confidence in the outcome. 7. Argument regarding burden of reasonable doubt. Though he failed to object at trial, defendant now claims the prosecutor misstated the law during his closing argument by asserting that “[t]he defense has to create a reasonable doubt.... The reasonable doubt has to be created by the defense. They have not created any reasonable doubt.

Confusion, yes, but reasonable doubt, no.” As defendant suggests, the prosecution must prove every element of a charged offense beyond a reasonable doubt. The accused has no burden of proof or persuasion, even as to his defenses. (§ 1096; see In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068]; Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881]; People v.

Dillon (1983) 34 Cal.3d 441, 472-474 [194 Cal.Rptr. 390, 668 P.2d 697].) However, once the prosecution has submitted proof that permits a finding beyond reasonable doubt on every element of a charge, the accused may obviously be obliged to respond with evidence that “raises” or permits a reasonable doubt that he is guilty as charged. (See § 189.5, subd. (a) [formerly § 1105, subd. (a)]; People v. Cornett (1948) 33 Cal.2d 33, 42-43 [198 P.2d 877]; People v. Hyde (1985) 166 Cal.App.3d 463, 474-475 [212 Cal.Rptr. 440]; see People v.

Loggins (1972) 23 Cal.App.3d 597, 601-602 [100 Cal.Rptr. 528].) In this context, the prosecutor’s remark was ambiguous. The remark was proper if it meant only that the prosecution had proved premeditated murder of a peace officer beyond a reasonable doubt, and that the weakness of the defense response had left the record devoid of any basis for reasonable doubt. The remark was improper if meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.

Because timely objection, admonition, and instruction would have cured any prejudicial confusion, defendant’s failure to intervene below waives a direct claim of misconduct. (People v. Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Scott (1982) 129 Cal.App.3d 301, 306-307 [180 Cal.Rptr. 891].) Nor is the point persuasive when phrased as ineffective assistance of counsel. The prosecutor’s remark was brief and mild.

The jury received accurate standard instructions that the People bore the burden of proving defendant guilty beyond a reasonable doubt, and that he was presumed innocent until proven guilty. (CALJIC No. 2.90; see also CALJIC Nos. 2.01, 5.15, 8.71, 8.72, 8.80.) No instruction stated or implied that defendant bore any burden of proof or persuasion. Defense counsel in his closing argument reread CALJIC No. 2.90 and repeatedly emphasized the People’s “very, very, very high burden.” The evidence that defendant was guilty as charged was highly persuasive.

Hence, counsel’s failure to object to the prosecutor’s “reasonable doubt” argument does not undermine confidence in the guilt verdict. 8. Argument regarding failure to call witness. Defendant claims it was misconduct for the prosecutor to argue that, “We didn’t hear from Steve Martinez. We didn’t hear from the six-year-old girl. We didn’t hear from the neighbors. We only heard—the only witness present was [defendant] that you heard from.” Defendant concedes that the prosecutor may comment upon the defendant’s failure to introduce logical evidence or call logical witnesses. (People v.

Ford (1988) 45 Cal.3d 431, 442-449 [247 Cal.Rptr. 121, 754 P.2d 168, 76 A.L.R.4th 785]; People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213].) However, defendant deems it “ludicrous” to suggest that a six-year-old child, even if present at the time of the shooting, was a logical percipient witness. Absent an objection below, the assertion of misconduct is waived. (Green, supra, 27 Cal.3d at p. 27.) Nor does counsel’s failure to object warrant reversal on a theory of ineffective assistance.

Despite the prosecutor’s brief remark, the jury was capable of deciding, as a matter of common sense, whether such a young child was a logical or reliable witness. The issue was tangential in any event. Far more damaging was defendant’s conceded failure to call Martinez, whom defendant said he warned of a Bassett attack. Hence, the prosecutor’s unchallenged reference to the absence of a child witness does not undermine confidence in the outcome. 9. Argument regarding narcotics paraphernalia. In his closing argument, the prosecutor referred to the narcotics paraphernalia found in the Abbey Street residence.

He urged the inference that the sale of narcotics from the premises was a motive for the shooting which eventually took place. Defendant claims this reference to narcotics was unduly prejudicial, since he was never directly linked to illegal activities on the premises. However, defendant waived the assertion of misconduct by his failure to object. A claim of ineffective assistance must also fail.

As previously discussed, even if no conclusive “nexus” was established between defendant and narcotics, the presence of narcotics evidence throughout the house permitted an inference that its occupants, including defendant, had reason to anticipate a police raid. Hence, the prosecutor’s argument constituted fair comment on the evidence and the reasonable inferences to be drawn therefrom. 10. Validity of warrant as jury “element” of peace-officer assault and peace-officer murder.

Only one special circumstance was alleged and found true, i.e., that defendant knowingly and intentionally killed a peace officer “engaged in . . . the performance of. . . duties.” (§ 190.2, subd. (a)(7).) Defendant was also convicted of aggravated assault against a peace officer “engaged in the performance of. . . duties.” (§ 245, subd. (c).) Both the assault charge and the special circumstance finding must be reversed, he urges, because in both cases he was wrongly denied a jury determination of the engaged-in-duty element.

Defendant invokes the long-standing rule in California and other jurisdictions that although one is not immune from criminal liability for his resistance to an invalid police action, he cannot be convicted of an offense against a peace officer “engaged in .. . the performance of .. . duties” unless the officer was acting lawfully at the time. (E.g., People v. Curtis (1969) 70 Cal.2d 347, 354-356 [74 Cal.Rptr. 713, 450 P.2d 33]; People v. Henderson (1976) 58 Cal.App.3d 349, 357 [129 Cal.Rptr. 844]; Jackson v. Superior Court (1950) 98 Cal.App.2d 183, 188-189 [219 P.2d 879]; Sparks v.

United States (6th Cir. 1937) 90 F.2d 61, 63-65.) The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. (E.g., Curtis, supra, 70 Cal.2d at pp. 354-355; Jackson, supra, at p. 189.) California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim’s conduct forms part of the corpus delicti of the offense. (Henderson, supra, 58 Cal.App.3d at pp. 358-359; People v.

Jones (1970) 8 Cal.App.3d 710, 716 [87 Cal.Rptr. 625]; People v. Muniz (1970) 4 Cal.App.3d 562, 568 [84 Cal.Rptr. 501]; People v. Soto (1969) 276 Cal.App.2d 81, 86-87 [80 Cal.Rptr. 627]; but see Curtis, supra, 70 Cal.2d at pp. 358-359.) Defendant claims the trial court thus erred by stating “for purposes of these instructions” that an officer “ . . . serving ... a search warrant” is acting “lawfully],” and is thus engaged “in the performance of his duties.” This instruction, defendant urges, wrongly withdrew the issue of the warrant’s validity from the jury’s consideration. We disagree.

Squarely faced with the issue for the first time, we conclude that if a warrant is valid on its face, an officer carrying out its command to search or arrest is lawfully engaged in duty, and his or her attacker may be convicted and punished on that basis, even if the facts disclosed to the magistrate in support of the warrant were not legally sufficient to establish probable cause. A contrary construction of the engaged-in-duty requirement would defy reason. By overlooking the traditional statutory authority and duty of peace officers to execute facially regular warrants, such an

interpretation would misapply the premise that an officer has no “duty” to take “illegal” action. It would ignore the historic preference for warrants. And it would undermine the Legislature’s efforts to deter and punish violence upon peace officers acting in that capacity. The law has long been concerned with the treatment of a citizen who resists or obstructs the assertion of police authority. Since 1872,

section 148 has made it a misdemeanor to resist, delay, or obstruct an officer engaged in discharging “any duty of his office.” Unjustified violence against an officer, as against any other citizen, was also punishable under the general statutes defining assault, battery, attempted murder, and homicide. On the other hand, most American jurisdictions, including California, recognized a traditional privilege to resist unlawful police conduct with “reasonable” force. (People v. Curtis, supra, 70 Cal.2d at p. 351.) Many early cases applied this common law principle to limit the application of

section 148. They reasoned that because the offense described by

section 148 could be committed only against an officer engaged in “duty,” and because an officer has no “duty” to take “illegal” action, the statute did not prohibit resistance to an unlawful arrest. (E.g., Jackson v. Superior Court, supra, 98 Cal.App.2d at p. 189; see also People v. Craig (1881) 59 Cal. 370; People v. Perry (1947) 79 Cal.App.2d Supp. 906 [180 P.2d 465].) However, the 1957 Legislature enacted

section 834a, which imposes a “duty” on citizens to refrain from forcible resistance to arrest. In People v. Curtis, supra, we held that

section 834a applies to unlawful as well as lawful arrests, so long as the officer has not used excessive force. (70 Cal.2d at pp. 351-354.) The statute’s purpose, we said, was to eliminate the “anachronistic” privilege of violent self-help against police conduct undertaken without sufficient cause or authority, and to remove disputes about legality from the streets to the courts. (Id., at pp. 352-353.) As a result of

section 834a, any violent resistance to the humane assertion of police authority is punishable under the criminal laws, even if the officer’s action lacked legal cause or otherwise exceeded his or her authority. In 1961, the Legislature took another important step toward the protection of peace officers who face violent resistance in the field.

It created special new crimes of battery and aggravated assault against “peace officer[s] . . . engaged in the performance of. . . duties.” (See now §§ 243, subd. (b), 245, subd. (c).) In Curtis, supra, we held that by requiring the officer-victim’s engagement in “duties,” the new statutes implicitly incorporated prior judicial limitations on the term “duty” as construed in connection with

section 148. Hence, we held, one could not be convicted of assault or battery “against a peace officer . . . engaged in the performance of. . . duties” unless the officer-victim’s performance was lawful. (70 Cal.2d at p. 355.) We further concluded that our limiting construction of the new peace-officer offenses should not be affected by the intervening enactment of

section 834a. “[S]ection 834a,” we said, “was meant at most to eliminate the common law defense of resistance to unlawful arrest, and not to make such resistance a new substantive crime.” (70 Cal.2d at pp. 354-355.) Thus, Curtis reasoned, while violent resistance to an illegal arrest may be a crime, it is not a crime against a peace officer engaged in duties. (Id., at pp. 355-356.) Curtis contains dictum suggesting that an officer acts illegally, and thus is not “engaged in . . . duties” for purposes of a peace-officer offense or enhancement, if a warrant he is attempting to execute is invalid. (70 Cal.2d at p. 354, fn. 4; see also discussion, post.) However, we have found no California decision which directly confronts that issue.

On their facts, the California cases hold at most that the validity of an officer’s decisions in the field bear on whether he or she was acting lawfully, and thus was engaged in duty, at the time the officer encountered violent resistance. This is an understandable result given the statutory language, the sensitive realities of police-citizen contacts, and the complicated development of the law governing resistance. By its terms, the engaged-in-duty element focuses on the officer’s “performance” of duties.

Under this language, it is pertinent to inquire whether the officer’s judgment that led to violence was correct or incorrect. Moreover, unilateral decisions by officers in the field are rife with the dangerous potential for overreaching, arbitrary harassment, and the violation of individual rights. (See, e.g., Jackson v. Superior Court, supra, 98 Cal.App.2d at p. 186.) Misunderstandings may arise in the heat of the moment about the officer’s intentions, motives, good faith, and authority.

A citizen confronted in such circumstances may have a colorable basis for belief that the unilateral police attempt to restrict his freedom or invade his privacy is arbitrary and wrongful. The cases imply that the law thus intends the officer to accept some responsibility for his or her own error.

Even if the citizen is not privileged to resist a police misjudgment, they reason, the statutes nonetheless withhold from the officer any special protection that might arise from the officer’s engagement in “duty.” No similar considerations apply, however, when the officer’s authority to act is premised on a facially valid warrant. When the police submit their suspicions for judicial evaluation, obtain a warrant regular on its face, and act only as it expressly authorizes and commands, no issue of fault in the serving officer’s “performance of . . . duties” arises.

The officer and his or her colleagues have done everything possible to perform their “duty,” and to do so lawfully. Indeed, California’s law of arrést so provides.

Section 836 specifies limits on an officer’s authority to arrest without a warrant but states simply that he “may make an arrest in obedience to a warrant.” Civil Code

section 43.55 (formerly Civ. Code, § 43.5(a)) immunizes a peace officer from liability for nonnegligent execution of an arrest warrant regular on its face, regardless of any underlying deficiency. Cases consistently explain that this statutory immunity stems from the duty of peace officers to carry out judicial orders according to their terms without considering whether they are void or erroneous. (E.g., Vallindras v. Massachusetts etc. Ins. Co. (1954) 42 Cal.2d 149, 153-154 [265 P.2d 907]; Herndon v.

County of Marin (1972) 25 Cal.App.3d 933, 936-937 [102 Cal.Rptr. 221].) Whenever possible, courts must construe statutes harmoniously and avoid absurd or anomalous results. (E.g., People v. Comingore (1977) 20 Cal.3d 142, 147 [141 Cal. Rptr 542, 570 P.2d 723]; People v. Daniels (1969) 71 Cal.2d 1119, 1130 [80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; Select Base Materials v.

Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].) Nothing in the language or history of the engaged-in-duty requirement suggests a legislative intent to depart from the well-established statutory principle that official duty includes the execution of facially regular warrants. Nor can we perceive any policy that would have persuaded the Legislature or the voters to make an officer’s special protection against violent resistance dependent on the underlying validity of a warrant.

The law harbors a strong preference for warrants precisely because the “detached scrutiny of a neutral magistrate” is a more reliable safeguard against overreaching than “the hurried judgment of a law enforcement officer ‘engaged in the often competitive enterprise of ferreting out crime,’ . . .” (United States v. Chadwick (1977) 433 U.S. 1, 9 [53 L.Ed.2d 538, 547, 97 S.Ct. 2476], quoting Johnson v.

United States (1948) 333 U.S. 10, 14 [92 L.Ed. 436, 440, 68 S.Ct. 367].) This preference for resort to the warrant process is honored by according particular deference to the magistrate's determination of probable cause. (E.g., Illinois v. Gates, supra, 462 U.S. 213, 236 [76 L.Ed.2d at pp. 546-547].) That being so, judicial reappraisal of the magistrate's decision to issue a warrant should not strip the serving officer of the special statutory protection against violent resistance. Any such rule would not likely deter misconduct either by the police or by judicial officers. (Cf. United States v.

Leon (1984) 468 U.S. 897, 915-921 [82 L.Ed.2d 677, 693-697, 104 S.Ct. 3405].) By the same token, a warrant removes all colorable basis for on-the-spot disputes about the officer’s authority. That a citizen might have reason to suspect a warrant’s underlying support, or that he might later prevail in a judicial attack on the warrant, has no rational relationship to the degree of his culpability for violent resistance at the moment the warrant is served.

Forcible resistance to a warrant invokes society’s particular “abhorrence]” of violence against persons whose official roles as defenders of public safety place them at special risk. (See People v.

Rodriguez (1986) 42 Cal.3d 730, 781 [230 Cal.Rptr. 667, 726 P.2d 113].) By its nature, violence of this kind “ . . . hinder[s] the completion of vital public safety tasks; . . . evince[s] a particular contempt for law and government; and . . . strike[s] at the heart of a system of ordered liberty . . . .” (Ibid.) Such resistance thus justifies the special treatment our statutes accord to those who attack peace officers lawfully “performing [their] duties.” (Ibid.) Under these circumstances, we cannot imagine the Legislature or the voters intended to divest a peace officer of special statutory protection simply because the warrant the officer was serving when attacked is later found lacking in probable cause.

We decline to extend the reasoning of Curtis and its progeny to such a case. We hold that whenever a criminal statute accords special treatment to violence against a peace officer “engaged in . . . duties,” such “duties” include the correct service of a facially valid search or arrest warrant, regardless of the legal sufficiency of the facts shown in support of the warrant. Dictum to the contrary in Curtis is disapproved.

Accordingly, we reject defendant’s contention that the instructions on peace-officer assault and the peace-officer special circumstance improperly eliminated the “probable cause” issue from the jury’s consideration. Defendant argues that the court’s instruction also eliminated from the jury’s engaged-in-duty analysis the issue whether the warrant was lawfully executed.

We agree that the proper service of a warrant is a jury issue under the engaged-in-duty requirement. (Henderson, supra, 58 Cal.App.3d at p. 357.) We conclude, however, that the instant instruction properly presented the service issue for the jury’s consideration. The court instructed that an officer executing a warrant upon a house may break and enter “if, after announcing notice of his authority and purpose, he is refused admittance.” In deciding whether there was a refusal of admittance after an announcement, the court advised, the jury could consider various factors.

Defendant claims this instruction assumed that Deputy Williams and his colleagues had announced their authority and purpose, an issue in dispute. However, the instruction manifestly made no such assumption. It advised that forced entry was lawful only “if, after announcing notice of . . . authority and purpose,” the officers were denied admittance. (Italics added.) The issue whether the officers did announce their identity and purpose was thus left to the jury. 11. Peace-officer murder: constructive knowledge standard.

The special circumstance of peace-officer murder requires that defendant intentionally killed a person he “knew or should have known was a peace officer engaged in the performance of . . . duties.” (§ 190.2, subd. (a)(7), italics added.) Defendant asserts that a standard of mere constructive-knowledge violates the Eighth and Fourteenth Amendments because it is vague and overbroad, and because it fails to draw a rational distinction, based on relative culpability, between intentional murderers who are and are not eligible for the death penalty.

We have previously upheld the constructive-knowledge standard of the peace-officer special circumstance against a similar challenge. (People v. Rodriguez, supra, 42 Cal.3d at pp. 780-783.) We do so here. B. Penalty issues. 1. Sentencing instructions and argument. a. Mitigating evidence/factor (k) /sympathy.

Defendant objects that the penalty jury was prevented from considering constitutionally relevant mitigating evidence of his character and background because the sentencing factors included in the 1978 death penalty statute (§ 190.3, factors (a)-(k)), and in the formerly applicable standard instructions (see CALJIC, former No. 8.84.1, factors (a)-(k)), focused only on his criminal history and the circumstances of the capital offense.

Moreover, defendant asserts, the court improperly instructed the jury not to be swayed by “mere . . . sympathy.” (CALJIC No. 1.00.) This, defendant urges, permitted the prosecutor to mislead the jury by arguing that the presence of defendant’s sister and children in court was not entitled to sympathetic consideration by the jury. These contentions lack merit for several reasons.

First, contrary to defendant’s suggestion, the statute and the instructions given here include a “catch-all” factor which directs consideration of “any . . . circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (§ 190.3, factor (k); CALJIC, former No. 8.84.1, factor (k).) Unless misled, a reasonable jury should understand that this phraseology includes consideration of mitigating character and background evidence introduced at trial. (Boyde v.

California, supra, 494 U.S. at pp. [108 L.Ed.2d at pp. 329-330, 110 S.Ct. at pp. 1198-1199].) Here the jury was instructed to consider “all of the evidence,” and the prosecutor never suggested that any evidence presented in mitigation by defendant was irrelevant. Hence, we see no “reasonable likelihood” that the jury misconstrued the relevant scope of such evidence. (Boyde v. California, supra, 494 U.S. at p._ [108 L.Ed.2d at p. 329, 110 S.Ct. at p. 1198]; People v.

Brown, supra, 40 Cal.3d 512, 544, fn. 17.) The court’s instruction against “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling” (italics added) does not alter our analysis. Unless misled, a reasonable jury will understand that this instruction does not foreclose compassionate evaluation of the mitigating evidence, but warns only against “factually untethered” emotion, bias, or outside pressure. (California v.

Brown (1987) 479 U.S. 538, 542-543 [93 L.Ed.2d 934, 941, 107 S.Ct. 837]; see also conc. opn. of O’Connor, J., id., at pp. 544-545 [93 L.Ed.2d at pp. 941-942].) The prosecutor did assert that “His Honor said . . . you are not supposed to consider sympathy or compassion.” Defense counsel raised no objection. In any event, the context of the remark clearly indicates it was intended only to focus the jury on the evidence, rather than on vague pity for persons forced to defend against criminal charges. There appears no reasonable likelihood that the jury misinterpreted the standard “antisympathy” instruction.

Nor did the prosecutor mislead the jury with his brief admonition, unchallenged by the defense, that the jurors must not “weigh” or “consider” the presence of defendant’s family members in court. As noted above, the jury could properly be cautioned against free-floating emotional responses that were extraneous to the statutory sentencing factors and the aggravating and mitigating evidence. (See California v. Brown, supra, 479 U.S. at pp. 542-543 [93 L.Ed.2d at pp. 940-941]; conc. opn. of O’Connor, J., id., at pp. 544-545 [93 L.Ed.2d at pp. 941-942]; see also People v.

Brown, supra, 40 Cal.3d at p. 544.) b. “Extreme” mental or emotional condition. Defendant notes that the statute, and the conforming instructions given here, suggest that mental or emotional disturbance is mitigating only if the condition is “extreme.” (§ 190.3, factor (d); CALJIC, former No. 8.84.1, factor (d).) He urges that the prosecutor’s argument reinforced this inference. On the contrary, he asserts, the Constitution requires consideration of any pertinent mitigating factor, including mental impairment that is less than extreme.

As we have noted, however, the catch-all provision, factor (k) (§ 190.3, factor (k); CALJIC, former No. 8.84.1, factor (k)), by drawing the sentencer’s attention to “[a]ny other circumstance which extenuates the gravity of the crime,” allows consideration of “nonextreme” mental or emotional conditions. (See, e.g., People v. Ghent (1987) 43 Cal.3d 739, 776 [239 Cal.Rptr. 82, 739 P.2d 1250].) Moreover, we find no basis for reversal in the prosecutor’s argument on the subject.

Addressing factor (d), “extreme mental or emotional disturbance,” the prosecutor simply noted there was no evidence of such “extreme” disturbance. Moments later, the prosecutor turned to factor (h), diminished capacity from “mental disease” or “intoxication.” This he described as involving a situation where there was something “mentally wrong ... or the person was so intoxicated . . . that he somehow was beside himself, he wasn’t a normal person.” The prosecutor then noted, however, that there was “absolutely no evidence” (italics added) of any intoxication or mental disease or disturbance.

Again, defendant failed to object and request clarification. In any event, since the prosecutor accurately characterized the state of the evidence, there is no reasonable likelihood the jury was moved to ignore mental or emotional conditions that were less than “extreme.” (See Boyde v. California, supra, 494 U.S. at p._ [108 L.Ed.2d at p. 329, 110 S.Ct. at p. 1198]; see also fn., ante.) c. Sentencing discretion.

Defendant urges vigorously that the prosecutor manipulated ambiguous statutory language in the standard sentencing instructions to suggest the jury could not determine the “appropriate” penalty, but must impose death despite contrary beliefs on the basis of a mechanical assessment of aggravation and mitigation. We are not persuaded. In People v.

Brown, supra, 40 Cal.3d 512, we construed the 1978 death penalty law’s provision that the penalty imposed “shall” depend on the sentencer’s decision whether aggravating factors in the case “outweigh” those in mitigation. (§ 190.3.) We suggested, among other things, that a capital penalty scheme would not “pass [constitutional] muster” if it required a death judgment despite the sentencer’s belief that death was not appropriate under all the relevant circumstances. (40 Cal.3d at p. 540.) We held, however, that the 1978 statute’s “weighing” language, properly construed, neither imposes a “mandatory” sentencing formula nor limits the sentencer’s discretion to decide for itself which available penalty is morally appropriate for the individual offense and offender. “Weighing,” we said, connotes a subjective mental balancing process; it does not suggest either the “mechanical counting of factors on each side” (italics added) or the “arbitrary” assignment of relative values.

Rather, we observed, “the [sentencer], by weighing the various factors, simply determines under the relevant evidence which penalty [it believes] is appropriate in the particular case. [Fn. omitted.]” (40 Cal.3d at p. 541, italics added; see also cone. & dis. opn. of Lucas, J., id., at p. 546.) We acknowledged the possibility that, in particular circumstances, instructions phrased in the “unadorned” statutory language might mislead the sentencer about the nature of its task.

We endorsed explanatory instructions for use in future cases. (See now CALJIC No. 8.88 (1989 rev.) (5th ed. pocket pt.).) We also undertook to examine each pr e-Brown trial such as defendant’s to determine “whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its . . . discretion.” (People v. Brown, supra, 40 Cal.3d at p. 544, fn. 17, p. 545, fn. 19.) Serious prosecutorial misargument has occasionally led us to conclude that a pre-Brown jury was misled. (E.g., People v.

Milner (1988) 45 Cal.3d 227, 253-258 [246 Cal.Rptr. 713, 753 P.2d 669].) Here, we reject defendant’s contention that the prosecutor misled the jury about its sentencing duties. Defendant contends that by using a homemade scale to illustrate aggravating and mitigating factors, and by assigning arbitrary arithmetic values to each factor, the prosecutor created the impression that the weighing process was sterile and mechanical. Further, defendant points out, the prosecutor asserted that the penalty process was automatic and urged that the jury was not to decide whether death was appropriate.

In context, a reasonable jury would not have misunderstood its task. The penalty phase essentially retried whether the shooting of Deputy Williams was a calculated murder or an unfortunate panic response. Beyond stipulations that defendant had suffered two prior violent misdemeanor convictions, no other aggravating or mitigating evidence was introduced. The jury was instructed that the arguments of counsel are not evidence. And the arguments of both counsel centered around which penalty defendant deserved for his crime.

The prosecutor’s strategy was to portray defendant as a “malicious cop-killer.” The prosecutor urged that the killing of Williams was a “calculated” act motivated by defendant’s desire to protect his narcotics business. By gunning down an officer he neither knew nor disliked, the prosecutor argued, defendant was shooting at the badge itself, and thus at the core of civilized society. Conduct this serious, said the prosecutor, called for the law’s most extreme penalty. Defense counsel, on the other hand, sought to create “lingering doubt” about the prosecution’s theory of a planned killing.

He urged that defendant’s claims of concern about the Bassetts, and of his remorse for the killing, were valid, and that the crime did not compare with those for which death was appropriate.

At several points in his various penalty arguments (opening, closing, and rebuttal), the prosecutor did suggest that “it’s just a matter of weighing,” and that once weighing was completed, there was no “alternative” or “option” and the penalty determination was “automatic.” Moreover, in his closing argument-in-chief, the prosecutor illustrated his concept of weighing by placing the various factors on one or the other side of a garage-built scale.

In rebuttal, he assigned numerical values to each factor as on a fictional “balance sheet,” ultimately reaching a “score” of 22 aggravating points against 3 points in mitigation. But the jury cannot have been confused. At the outset of his closing argument-in-chief, the prosecutor reiterated that “what the attorneys say is not evidence.” He emphasized that his scale illustration, and his assigned values, were mere argument which defense counsel would undoubtedly dispute.

Moreover, the prosecutor acknowledged at every turn that the balance of aggravation against mitigation was subjective, involved “weighing” rather than “counting,” and was entirely up to the jury. He stressed that death was the “just and fair” penalty, which defendant had “earned and deserved” by the cold-blooded killing of a police officer. In his own closing argument, and in reply to the prosecutor’s rebuttal, defense counsel responded vigorously that the appropriate penalty must be determined not by mechanical procedures, but by the overall circumstances.

We have expressed concern that jurors understand both the subjective nature of the weighing process and their discretion to determine the appropriate penalty. However, contrary to the dissent’s apparent assumption, the “weighing” and “appropriateness” functions are not separate and independent. Rather, we have made clear that “when jurors are informed they have discretion to assign whatever value they deem appropriate to the factors listed, they necessarily understand they have discretion to determine the appropriate penalty . . . .” (People v.

Boyde (1988) 46 Cal.3d 212, 253 [250 Cal.Rptr. 83, 758 P.2d 25].) The reason is that the subjective assignment of weights “is the very means by which the jury arrives at its qualitative and normative decision” about the proper punishment in the particular case. (Ibid.; see People v. Brown, supra, 40 Cal.3d at p. 541.) Defendant urges that the prosecutor nullified this logic by declaring specifically in his rebuttal argument that the jury was not to decide the “appropriate” penalty. The prosecutor’s brief remark on “appropriateness,” however, was made in a limited context.

It addressed only a dispute between counsel as to whether a comparison to other well-publicized murders was relevant. In effect, the prosecutor properly urged the jury to decide the penalty on the basis of the aggravating and mitigating evidence presented in defendant's trial. Under all the circumstances, a reasonable jury would not have assumed it lacked power to determine the appropriate penalty for this offense and offender. We see no basis for reversal. d. Remorse. Defendant challenges the prosecutor’s claim that defendant’s absence of remorse was aggravating.

Defendant notes that absence of remorse is not a statutory aggravating factor (see People v. Boyd (1985) 38 Cal.3d 762, 771-776 [215 Cal.Rptr. 1, 700 P.2d 782]) and urges that the issue of remorse can only be mitigating (see People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr. 794, 710 P.2d 861]). Though the prosecutor’s argument was incorrect in certain respects, a reasonable jury would not have been misled, and there appears no reasonable possibility the penalty verdict was affected. (People v.

Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].) In his closing argument-in-chief, the prosecutor did suggest as an aggravating consideration that defendant had shown lack of remorse by his defiant behavior when captured, by his boasts to jailmate Acker about “bagging a cop” who “had it coming,” and by “sticking] to” his gang-attack defense. Insofar as the prosecutor was urging defendant’s overt remorselessness at the immediate scene of the crime, the claim of aggravation was proper. Overt remorselessness is a statutory sentencing factor in that context, because factor (

a) of

section 190.3 allows the sentencer to evaluate all aggravating and mitigating aspects of the capital crime itself Moreover, there is nothing inherent in the issue of remorse which makes it mitigating only. The defendant’s overt indifference or callousness toward his misdeed bears significantly on the moral decision whether a greater punishment, rather than a lesser, should be imposed. (Cf. People v.

Mitchell (1966) 63 Cal.2d 805, 817 [48 Cal.Rptr. 371, 409 P.2d 211].) On the other hand, postcrime evidence of remorselessness does not fit within any statutory sentencing factor, and thus should not be urged as aggravating. (Boyd, supra, 38 Cal.3d at pp. 771-776.) Moreover, the prosecutor here may have overstepped by suggesting that defendant’s claim of mistaken identity showed lack of remorse. We have noted the unfairness of citing a proffered defense as proof of remorselessness. (People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [80 Cal.Rptr. 920, 459 P.2d 248]; but see People v.

Miranda (1987) 44 Cal.3d 57, 112 [241 Cal.Rptr. 594, 744 P.2d 1127].) However, defendant raised no objection. In any event, a reasonable jury would not have been misled. The prosecutor tempered his “aggravating remorselessness” theory in his rebuttal, where he asserted only that defendant had failed to show remorse in mitigation, It is proper for the prosecution to stress that remorse is not available as a mitigating factor. (E.g., People v.

Walker (1988) 47 Cal.3d 605, 649-650 [253 Cal.Rptr. 863, 765 P.2d 70].) For the most part, the prosecutor’s arguments focused on overt evidence of defendant’s defiance, not his mere failure to confess guilt or express remorse. With or without argument, jurors can be expected to react strongly to evidence of overt callousness. (See Williams, supra, 44 Cal.3d at pp. 966-967.) Their response is unlikely to be influenced by whether the prosecutor brands such evidence “aggravating” or merely “nonmitigating.” No basis for reversal appears. e. Age.

The prosecutor urged that defendant’s age at the time of the offense was aggravating. He also suggested that defendant was not a youth “who may have regressed to childhood and done something foolish,” but rather a “mature” and “sophisticated” person who, according to defense evidence, had been a gang leader. Defendant asserts the argument was improper because under factor (

i) of the 1978 statute (§ 190.3, factor (i) [“[t]he defendant’s age at the time of the crime”]), age can only be mitigating. As we have explained, however, the “age” factor in the sentencing formula is “a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty. Accordingly, either counsel may argue any such age-related inference in every case.” (People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052].) The prosecutor did not err by suggesting that defendant’s maturity and experience were aggravating. f.

Gang reputation. Defendant urges it was misconduct for the prosecutor to assign aggravating weight to testimony by defense witness Ybarra that defendant, as a reputed leader of the Puente gang, was a high-priority target of the Bassetts. The prosecutor suggested that if credible, this evidence “[cut] both ways,” since defendant’s leadership of a “very, very violent” street gang should be deemed aggravating. Defendant’s failure to object and request an admonition waived any direct claim of misconduct. Nor is reversal warranted on any other theory.

We held in Boyd, supra, 38 Cal.3d 762, that a reputation for violence is not a statutory sentencing factor, and thus may not be considered as aggravating. (P. 778.) Here, however, the prosecutor ultimately discounted the credibility of Ybarra’s testimony, and he advised the jury to give it no substantial weight. Hence, his argument could not have caused substantial harm. g. Aggravation versus mitigation. Defendant cites the prosecutor for urging that the absence of certain other mitigating factors was aggravating.

It does appear that the prosecutor placed on the aggravating side of his “scale” and “balance sheet” the absence of such factors as “extreme” mental or emotional disturbance (§ 190.3, factor (d)); victim participation or consent (id., factor (e)); belief in moral justification (id., factor (f)); extreme duress (id., factor (g)); mental disease or intoxication (id., factor (h)); mere minor participation (id., factor (j)); and other mitigating evidence (id., factor (k)).

In his rebuttal argument, the prosecutor’s “score” of 22 aggravating points to 3 mitigating points was based on his assumption that the absence of prior felony convictions (id., factor (c)) was the only mitigating factor; he deemed all other statutory factors to be aggravating. The prosecutor thus misrepresented the sentencing formula. The mere absence of extenuating circumstances in the case cannot weigh in favor of death. (E.g., Ghent, supra, 43 Cal.3d at p. 775; Davenport, supra, 41 Cal.3d at pp. 288-290.) However, defense counsel raised no objection.

In any event, a reasonable jury would not have been misled, and there is no reasonable possibility the penalty verdict was aífected. The jury was instructed to consider each sentencing factor only “if applicable,” and was not misled about the basic nature of its sentencing task. (See discussion ante, at pp. 1227-1231.) In his argument, the prosecutor assigned the bulk of his proposed aggravating values to the brutal circumstances of the shooting, and only nominal weights to the absent extenuating factors.

He cautioned frequently that his characterizations of aggravation and mitigation, and of relative weights, were mere advocacy which the jurors were free to reject. Defense counsel strongly urged the jury to decide penalty by evaluating the overall circumstances. Given such freedom, a reasonable jury would not assign substantial aggravating weight to the absence of unusual extenuating factors. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1184-1185 [259 Cal.Rptr. 701, 774 P.2d 730].) Defendant fails to persuade us that the prosecutor’s misstatements justify reversal. h. Premeditation/lingering doubt.

Defendant urges that the instructions and argument precluded the jury from considering its “lingering doubt” about his guilt for purposes of deciding the appropriate penalty. (See People v. Terry (1964) 61 Cal.2d 137, 145-147 [37 Cal.Rptr. 605, 390 P.2d 381].) We disagree. As defendant notes, in its opening remarks at the second penalty trial, the court gave the standard admonition that a previous jury had already found true the charges in the information, and that the instant jury’s function was only to decide the appropriate punishment.

Hence, the court said, “this jury will not be concerned with the issue of innocence or guilt in the sense of making that determination.” (Italics added.) Thereafter, defendant observes, both counsel, in voir dire and in argument, agreed that defendant’s guilt of premeditated murder, with actual or constructive knowledge that the victim was a peace officer engaged in duty, had already been decided.

At most, defendant complains, defense counsel sought only to create doubt whether the premeditation found by the guilt jury was a calculated plan, as the prosecution suggested, or a less serious misjudgment under stress. The prosecutor undermined even this limited strategy, defendant asserts, by arguing that the jury should not “speculate” on why the guilt jury had found premeditation. However, the record does not bear out defendant’s concerns. In the first place, the trial court never ruled o

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