THE PEOPLE, Plaintiff and Respondent, v. TIEQUON AUNDRAY COX, Defendant and Appellant, 53 Cal. 3d 618

Opinion ARABIAN,J. —A jury adjudged defendant Tiequon Aundray Cox guilty of the first degree murders of Ebora Alexander, Dietria Alexander, Damon Bonner, and Damáni Gamer (Pen. Code, § 187), and found true a special circumstance allegation that he committed multiple murders (Pen. Code, § 190.2, subd. (a)(3)). The jury further determined he should be sentenced to death. The trial court denied defendant’s motion for a new penalty trial and refused to modify the verdict (§ 190.4, subd. (e)). This appeal is automatic (§ 1239, subd. (b)). I. Facts A.

Guilt Phase Evidence The murders occurred August 31, 1984, in the home of Ebora Alexander, preceded by the following events: About 5:30 or 6 that morning, Darren Williams and Horace Bums arrived at the residence of Ida Moore, where Lisa Brown was also present. Williams, an acquaintance of both women, used the telephone. He then asked Moore for a ride, which she agreed to furnish, and told Bums to go pick up someone; Burns returned five or ten minutes later with defendant. The group left in Moore’s van, with Moore driving, Brown in the passenger seat, and the three men in the back.

After stopping for some gasoline, which Moore had to pay for, Williams directed them to 59th Street in Los Angeles and began looking for an address he had written on a piece of paper. When he had located the house in question, he told Moore to park down the street and leave the engine running. After they parked, Brown heard one of the men say they were going “to kill everybody in the house.” Williams told Bums to stay behind while he and defendant got out and walked toward the Alexander residence. Brown did not see any weapons at that time.

However, Moore had seen “a big gun” in the back of the van when they stopped for gas; defendant carried something wrapped in a jacket as he left. She also saw that Williams had a handgun in his waistband. After Williams and defendant entered the house, the two women heard the sound of gunfire. Two or three minutes later, Williams came running back to the van holding the handgun and telling Moore to leave. Defendant followed in a minute or two with a rifle in his hands. As he entered the van, he said, “I just blew the bitch’s head olf. So drive.” Moore then drove quickly away.

Several other persons witnessed relevant events. Lashawn Driver lived one or two doors away on the opposite side of the street. About 7:30 a.m., she was returning home when she saw two men enter the Alexander home and then heard approximately five gunshots. After one of the men came out, she heard another series of shots. The second individual, whom she identified as defendant, then left the house carrying a rifle. Both men went down the street. Venus Webb also lived across the street. On the morning of the murders, she heard shooting and went to investigate.

When she looked out her front window, she saw defendant leaving the Alexander house and walking rapidly toward a van, which pulled around the corner at a fast pace and disappeared. Webb later identified defendant at a live lineup. Ebora Alexander’s 14-year-old son Neal and her grandson Ivan Scott were in the house when Williams and defendant entered. Neal awoke when he heard a scream and the sound of a shot. He saw a man standing in his sister Dietria’s room holding a rifle. The man was facing the opposite direction toward his sister’s bed; Neal jumped on his back and started fighting with him.

When the man hit him on the face, Neal ran through the back door. Other than family members, he saw no one else in the house. Ivan also awoke to gunshots and ran into a closet. From that vantage, he saw his uncle Neal run down the hallway and heard an ensuing struggle. He also glimpsed a man he could not identify, who was carrying a rifle. Upon returning to the van, Williams and defendant told Moore to drive away and eventually had her stop at Vermont Avenue and Gage Street, where all three men got out and entered a building known as the Vermont Club.

One or two hours later, Moore saw Williams at the home of James Kennedy, where Williams gave her $50 to purchase some personal items for him and to pay her for the gas. Later in the day, she saw him again and observed he was wearing new clothes and jewelry. About 9 a.m., Brown received a telephone call from Williams, who directed her to bring his car to the Vermont Club. When she arrived, defendant was also there; she saw someone hand him a rifle over a fence, which he put in the trunk of the car. Brown drove defendant to an apartment building, where he took the rifle after wrapping it in a jacket.

Williams later gave Brown $20. That afternoon, defendant purchased a 1975 Cadillac, paying $3,000 in cash for it. James Kennedy was a personal friend of defendant, Williams, and Burns through gang association. On the morning of August 31, defendant brought him a semiautomatic. 30-caliber carbine wrapped in a jacket and told him to destroy it. He also asked Kennedy to have his sister wash the jacket because it had gunpowder on it. Kennedy took the jacket to his sister but did not destroy the rifle, instead putting it in some bushes near his residence.

On September 27, Kennedy was the subject of a narcotics investigation during which he revealed the location of the weapon to law enforcement officers. After defendant’s arrest, an acquaintance, Cassandra Haynes, spoke with him in jail. Defendant asked her if the police had found the gun he gave to Kennedy, but she did not know for certain. Shortly after the shootings, the police were summoned to a scene of horror at the Alexander house, where they found the bullet-riddled bodies of 57-year-old Ebora, her 23-year-old daughter Dietria, and 2 of her grandsons, 8-year-old Damon Bonner and 10-year-old Damani Garner.

Ebora had been sitting at her kitchen table drinking coffee when she was killed; Dietria, Damon, and Damani were in a bedroom, still in their beds. The coroner determined they had died of gunshot wounds to the head or body; Ebora suffered one wound that caused part of her brain tissue to be blown away. In the course of their investigation, police retrieved empty shell casings and spent bullets from the vicinity of each body. Ballistics testing established they all came from the same semiautomatic .30-caliber carbine defendant gave James Kennedy.

The police investigators also lifted a latent palm print from a trunk located in the bedroom where the younger victims had been sleeping. After comparing it with an exemplar, two experts concluded only defendant could have made the print. Ebora’s son, Kermit Alexander, and two of her daughters, Geraldine Alexander (Damani’s mother) and Daphine Bonner (Damon’s mother), testified they had never seen defendant in their mother’s house. Daphine Bonner also indicated Dietria had purchased the trunk for her bedroom approximately two and a half weeks before the shootings. B.

Penalty Phase Evidence At the penalty phase, the prosecution presented evidence of two robberies defendant was involved in as a juvenile. In May 1981, Rosalyn Lebby was rousted from her car by defendant and another teenager as she waited for her young son after school. Impliedly threatening Lebby with a gun, defendant took her vehicle and led police on a high-speed chase for half an hour through city streets, stopping only when he hit a telephone pole. The police recovered a .32-caliber revolver from the driver’s side of the car.

One month earlier, defendant and a companion accosted three junior high school students. He hit two of them with his fist and a piece of mop handle and demanded money from all three. The defense offered evidence of defendant’s upbringing and school environment. He had been virtually abandoned at an early age by his mother, who had a drinking problem and had gone to prison for bank robbery. He and his younger brother and sister had been raised by his 65-year-old great-grandmother, who he felt was somewhat strict. For that reason he ran away from her house at the age of 14 and went to live with his grandmother.

He had very little contact with his father. One of defendant’s junior high school teachers described him as skilled in athletics and capable of achieving good grades. However, peer pressure from the neighborhood gangs was a serious distraction to male students, particularly those who did not have strong role models. One of the junior high school administrators also felt defendant had been a good student until it appeared he had joined a local gang. He then began having behavior problems, which led to his expulsion.

Defendant’s great-grandmother, grandmother, sister, brother, and teacher all testified they cared for him and wished to see him live. He had been good to his brother and sister and warned them to stay away from gangs. His great-grandmother stated she did not believe defendant was guilty because he had told her he did not hurt anyone. Joey Upland, formerly a nurse at San Quentin Prison, described the living conditions of those sentenced to life imprisonment without possibility of parole. They are subject to frequent lock downs during which they are confined to the small cells they must share with another prisoner.

Life in prison is very violent and without many amenities such as regular showers and laundry exchange. II. Jury Selection A. Witherspoon/Witt Error The court initially conducted a sequestered voir dire to determine whether those in the venire could perform their duties irrespective of their attitudes toward the death penalty. (See People v. Hovey (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301].) The court explained to each prospective juror the trial procedure by which the jury would first determine defendant’s guilt and the truth of the special circumstance allegation.

Only if both issues were resolved against defendant would the question of penalty arise. Next, the court posed two standard inquiries: “Are your feelings about the death penalty such that you could never vote for the death penalty regardless of the evidence presented?”; and “Are your feelings about the death penalty such that you would always vote for the death penalty regardless of the evidence presented?” Depending upon the responses, the court or counsel asked follow-up questions to clarify the prospective juror’s attitude and ability to conform to the law as instructed.

Eleven venirepersons were excused for cause due to their expressed inability to impose capital punishment under any circumstances. Although he raised no objection at the time, defendant challenges these rulings as violative of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770].

In Witherspoon, the United States Supreme Court approved a state’s authority to exclude for cause all prospective jurors “who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” (391 U.S. at p. 522, fn. 21 [20 L.Ed.2d at p. 785].) The standard was modified in Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844], to permit excusal for cause if a prospective juror’s views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ [Footnote omitted.]” This explication not only dispenses with Witherspoon’s reference to “automatic” decisionmaking but also eliminates the concern that the record establish the requisite bias with “unmistakable clarity.” (Ibid. [83 L.Ed.2d at p. 852]; see also Adams v.

Texas (1980) 448 U.S. 38, 44-45 [65 L.Ed.2d 581, 588-589, 100 S.Ct. 2521].) We adopted the Witt standard as a matter of state constitutional

interpretation in People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250], finding that the revised formulation and underlying rationale made good sense and noting that California courts have generally followed the teachings of the high court in these matters. (See also, e.g., People v. Howard (1988) 44 Cal.3d 375, 417-418 [243 Cal.Rptr. 842, 749 P.2d 279].) Defendant argues that Witherspoon articulated prevailing state law at the time of his trial and thus should govern on review.

However, “[w]e have applied Witt retroactively in numerous cases [citation], and we are satisfied that our practice is in conformity with constitutional principles.” (People v. Gallego (1990) 52 Cal. 3d 115, 192 [276 Cal.Rptr. 679, 802 P.2d 169].) The Supreme Court intended the modification merely “to clarify [its] decision in Witherspoon, and to reaffirm the [review] standard from Adams [v. Texas, supra, 448 U.S. at page 45 (65 L.Ed.2d at page 589),] as the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment.” (Wainwright v.

Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at p. 851], italics added; see also Darden v. Wainwright (1986) 477 U.S. 168, 175-178 [91 L.Ed.2d 144, 153-155, 106 S.Ct. 2464].) Therefore, no constitutional considerations attend retroactive application. (See also Griffith v. Kentucky (1987) 479 U.S. 314, 328 [93 L.Ed.2d 649, 661-662, 107 S.Ct. 708].) In any event, even under Witherspoon the trial court did not erroneously excuse any prospective juror.

Defendant in part faults the court for not framing its inquiry with the word “automatic” or “automatically.” However, no authority mandates the use of specific terminology in determining whether a venireperson is “irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.” (Witherspoon v.

Illinois, supra, 391 U.S. at p. 522, fn. 21 [20 L.Ed.2d at p. 785].) On the contrary, a primary purpose of this phase of voir dire is to enable the trial court to “assess the juror’s state of mind” and thereby make a meaningful evaluation of his or her impartiality. (People v.

Coleman (1988) 46 Cal.3d 749, 767, fn. 10 [251 Cal.Rptr. 83, 759 P.2d 1260].) As a concomitant principle of review, we generally accord considerable deference to these evaluations, which “constitute^ a resolution of what is essentially a question of fact or, perhaps more accurately, a mixed question that is essentially factual. [Citation.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1262 [270 Cal.Rptr. 451, 792 P.2d 251].) “If there are conflicting answers to the voir dire, the court may assess the juror’s state of mind and is not bound by statements which, taken in isolation, are unequivocal.

When such a prospective juror has both equivocated and taken (at some point) a clear stand, the wisdom of entrusting the ruling on the challenge for cause to the trial court becomes clear.” (People v. Coleman, supra, 46 Cal. 3d at p. 767, fn. 10.) Thus, “where equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court.” (People v. Ghent, supra, 43 Cal.3d at p. 768, citing People v.

Fields (1983) 35 Cal.3d 329, 355-356 [197 Cal.Rptr. 803, 673 P.2d 680]; see also People v. Johnson (1989) 47 Cal.3d 1194, 1224 [255 Cal.Rptr. 569, 767 P.2d 1047]; People v. Guzman (1988) 45 Cal.3d 915, 954-955 [248 Cal.Rptr. 467, 755 P.2d 917]; People v. Howard, supra, 44 Cal.3d at p. 418.) “In the final analysis, ‘the question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are fairly supported by the record,’ and ambiguities are to be resolved in favor of the trial court’s assessment. [Citation.]” (People v.

Howard, supra, 44 Cal.3d at p. 418; see also People v. Gordon, supra, 50 Cal. 3d at p. 1262.) The record here reflects that each of the 11 prospective jurors excused for cause unequivocally expressed in one manner or another an inability to impose the death penalty irrespective of the facts.

For example, prospective juror Starks initially indicated he could vote for the death penalty “under some circumstances.” However, after the prosecutor clarified his understanding of the sentencing procedure, he affirmed he would “consider just the one” punishment, life imprisonment without possibility of parole, as the appropriate penalty and continued to reiterate that position after extensive questioning by defense counsel.

Prospective juror Flores several times stated categorically, “I would never vote for the death penalty.” Prospective juror Johnson declared without equivocation he “could never vote for a verdict of death.” Viewing the voir dire in its entirety, we find the record sufficient to support the trial court’s rulings. Defendant either bases his criticisms on excerpted portions of the voir dire, isolating particular answers out of context, or fails to accord due deference to the court’s fact-finding role.

As we have elsewhere noted, “the trial court was in the best position to observe and evaluate [the prospective juror’s] demeanor firsthand and could have reasonably understood the . . . responses to indicate he [or she] would never vote for the death penalty. [Citation.]” (People v.

Miranda (1987) 44 Cal.3d 57, 95-96 [241 Cal.Rptr. 594, 744 P.2d 1127].) The fact the court engaged in extensive inquiry with some prospective jurors before excusing them and not with others inferentially substantiates a proper discharge of its responsibility to assess carefully their individual understanding of the sentencing process and credibility in revealing their true state of mind relative to participating in that process. B.

Denial of Challenge for Cause to Prospective Juror Deaton From the reverse perspective, defendant contends the trial court erred in refusing to grant his challenge for cause to prospective juror Deaton. We apply the same analysis in assessing challenges for cause whether by the prosecution or the defense. (People v. Coleman, supra, 46 Cal.3d at pp. 764-765.) However, we need not resolve the substance of defendant’s argument because the record reflects no possibility of prejudice. Deaton did not sit on the jury, nor was defendant required to exercise a peremptory challenge to prevent him from doing so.

Moreover, he expressed his views on the death penalty during the Hovey voir dire outside the presence of the other prospective jurors. Accordingly, any possible error was entirely harmless. (See 46 Cal.3d at pp. 768-771.) C.

Prosecutor’s Use of Peremptory Challenges To Eliminate Jurors Reluctant to Impose Death Penalty Defendant contends he was denied the right to an impartial jury because the prosecutor excused “every juror who revealed any kind of scruples” during the death qualification voir dire and the court refused his request for additional peremptory challenges necessary to balance the proceedings. “[T]here is ‘no . . . constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty.’ [Citation.]” (People v.

Walker (1988) 47 Cal.3d 605, 624-625 [253 Cal.Rptr. 863, 765 P.2d 70].) We discern no basis for concluding the defense is nevertheless entitled to more than its statutory allotment of peremptory challenges to “keep pace” with the prosecution in this process. D. Hardship Excuses During voir dire, the court inquired whether a protracted trial would pose any financial burden. Several prospective jurors explained that they or their employer would suffer some significant hardship under such circumstances. The court then either excused them outright or did so after some verification from the employer.

Although defendant did not object at the time and cites no authority for such an objection, he now faults this procedure as depriving him of an impartial jury drawn from a representative cross-section of the community. We have previously addressed a cognate argument and found it wanting: “Claims of denial of a fair cross-sectional jury are analyzed by ascertaining whether a cognizable class has been excluded. [Citation.] Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class. [Citations.]” (People v.

Johnson, supra, 47 Cal.3d at p. 1214.) By a parity of reasoning, whether or not the court had a “blanket policy” of granting hardship excuses to all those not reimbursed by their employers, defendant has failed to identify a constitutionally impermissible basis on which these prospective jurors were excluded. III. Guilt Phase Issues A. Physical Restraint of Defendant During Trial Before discussing defendant’s various contentions concerning the trial court’s decision to have him physically restrained during trial, some factual background is in order: Trial was set for September 9, 1985.

On that day, after the master calendar court granted a defense continuance, the following exchange occurred: “[Defense Counsel]: Your Honor, Mr. Cox is shackled as you can see and I know he’s never been a security problem. “The Court [Judge Munoz]: I will make an order he not be shackled any other time he has an appearance in this courtroom.” When trial commenced on November 25, 1985, the court (Judge Boren) initially indicated, “I notice in the file that there had previously been an order granted at sometime with respect to shackles in this case.

Obviously, I don’t think that should be a problem at this stage when we’re going to have the jury in .... [fl] There should be no need for shackling . . . .” At this point, defense counsel requested an in camera hearing at which he disclosed the following: “[Defense Counsel]: Your Honor, first I would say that this does not constitute a conflict because any attorney representing Mr.

Cox would be privy to this information, [fl] In our investigation of the case there—we think that there is some possibility that there may be an escape attempt in this case. “The Court: Yes. “[Defense Counsel]: We would—we’re against full shackles but I think there should be some—like a handcuff to a chair I think would be sufiicient so the jury can’t see. “The Court: For the safety of everyone, then? “[Defense Counsel]: For the safety of everyone, [fl] As an officer of the court, I feel that it’s my duty to—in fact, we originally were going to ask for the 134 courtroom.

But I don’t really think that’s necessary if you have adequate bailiff support, searching. “The Court: Okay. “[Defense Counsel]: It’s something, though, that should not be looked at lightly. “The Court: Okay. All right. [í[] I will take that measure. . . .” Defendant apparently was handcuffed to his chair during that day’s proceedings. The next day counsel indicated, “Your Honor, Mr. Cox is—the record should reflect that he is handcuffed to the chair. It is very uncomfortable.

We would ask that that be removed or some—” to which the court responded, “Well, I’m not going to have it removed.” A day or so later, defendant was brought to court wearing some kind of leg shackles.

In answer to counsel’s inquiry, the court stated, “At least for today I am going to order that, based on information that has previously been placed on the record in this case, and also based on some information that was imparted to the court today and it is merely by way of rumor. . . . flf] We may revert to the other procedure after today, but because of some of the things that have been brought to the court’s attention, I think it is appropriate ....

Just so that there is some added security, just from the unknown.” Subsequently, the court amplified: “[T]he bailiff informed me there were certain rumors floating through the jail today that he was receiving information through other jail personnel that there was going to be an escape, an attempt today; and that’s why there is the use of the shackles today, [fl] I don’t know that it’s anything more than a rumor; but in light of all the information, I felt it was better to be safe than sorry.” Defendant remained shackled or handcuffed for the rest of the trial.

He contends the actions of both the court and his own attorney violated his right to due process and impaired his ability to receive a fair trial. After examining the totality of the record, we conclude the trial court erred in failing to make the requisite record prior to ordering defendant restrained during the proceedings. However, the error was harmless; any deficiency on the part of trial counsel was equally nonprejudicial. 1. Trial Court's Exercise of Discretion In People v.

Duran (1976) 16 Cal. 3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1], we “reaffirmed] the rule that a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints. [Citation; footnote omitted.]” (See People v.

Harrington (1871) 42 Cal. 165, 168-169; see also § 688 [“No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.”].) Under this standard, the trial court’s discretion is relatively narrow. (See People v.

Duran, supra, 16 Cal.3d at pp. 292-293.) “Manifest need” arises only upon a showing of unruliness, an announced intention to escape, or “[ejvidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained (Id., at p. 292, fn. 11.) Moreover, “[t]he showing of nonconforming behavior . . . must appear as a matter of record ....

The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” (Id., at p. 291.) The record before us fails to demonstrate the requisite manifest need. While no formal hearing as such is necessary to fulfill the mandate of Duran, the court is obligated to base its determination on facts, not rumor and innuendo even if supplied by the defendant’s own attorney.

While the instant record may be rife with an undercurrent of tension and charged emotion on all sides, it does not contain a single substantiation of violence or the threat of violence on the part of the accused. Although the shackling decision was not based on a “general policy” to restrain all persons charged with capital offenses, neither did it follow “a showing of necessity” for such measures. (See People v.

Duran, supra, 16 Cal.3d at p. 293.) Accordingly, the trial court abused its discretion in ordering defendant physically restrained in any manner. (Ibid.) This conclusion does not compel reversal, however. The record makes equally clear that any error did not impair the right to a fair trial. The rule in People v.

Duran, supra, seeks to avoid the pernicious effect of the “possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system . . ., as well as the effect such restraints have upon a defendant’s decision to take the stand . . . .” (16 Cal.3d at p. 290; see also Illinois v. Allen (1970) 397 U.S. 337, 344 [25 L.Ed.2d 353, 359, 90 S.Ct. 1057].) In assessing the impact on the right to a fair trial, the first and last of these considerations predominate.

Thus, in Duran we reversed the conviction in part because the defendant, “who elected to testify in his own behalf, was required to appear as a witness with both wrist and ankle restraints, thereby damaging his credibility as a witness.” (People v. Duran, supra, 16 Cal.3d at p. 296.) The jury also was not instructed to disregard any negative implications the shackling might have had on the presumption of innocence. The record in this case depicts a considerably different picture. First, defendant did not testify at either phase of the trial; nor is there evidence he would have testified but for his restraints.

Second, in Duran the defendant was heavily manacled at both his ankles and wrists; here, defendant was either handcuffed by one wrist to his chair or placed in a leg brace designed to impair his mobility. (See People v. Duran, supra, 16 Cal.3d at p. 291, fn. 9.) More significantly, the jurors apparently were never aware of either form of restraint. The court directed they be brought in and out of court while defendant was seated with his shackles concealed and took continuous precautions to assure they remained ignorant of the situation.

The defense never brought to the court’s attention any evidence to the contrary. Under such circumstances, we fault only the failure to establish on the record a manifest need for restraints; the procedures implemented could not have influenced either the guilt or penalty verdict. “[A]ny error was clearly harmless.” (People v. Allen (1986) 42 Cal.3d 1222, 1264 [25 L.Ed.2d 353, 359, 90 S.Ct. 1057]; see also People v. Sheldon (1989) 48 Cal.3d 935, 946 [258 Cal.Rptr. 242, 771 P.2d 1330].) 2.

Defendant's Absence From In Camera Hearing Defendant also asserts he was improperly excluded from the in camera hearing because his presence was “required in order to protect [his] interests, [and] to assure him a fair and impartial trial. . . .” (People v. Jackson (1980) 28 Cal.3d 264, 310 [168 Cal.Rptr. 603, 618 P.2d 149]; see generally §§ 977, subd. (b), 1043, subd. (a).) This argument simply recasts defendant’s fundamental complaint that the trial court abused its discretion in ordering him shackled.

Under the facts, we need not resolve the question of whether the presence of an accused at such a hearing “bears a ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ [Citation.]” (In re Lessard (1965) 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39].) Any error in the court’s decision was harmless and remains so irrespective of defendant’s absence from some portion of the proceedings. 3. Defense Counsel's “Conflict of Interest" During the in camera hearing, defendant’s attorney indicated, “[T]his does not constitute a conflict because any attorney representing Mr.

Cox would be privy to this information. fl[] In our investigation of the case there—we think that there is some possibility that there may be an escape attempt in this case.” Defendant asserts the court should have pursued this revelation to assure he was represented by “conflict free” counsel or obtained his express waiver of such representation. “Included in the right to effective assistance of counsel is ‘a correlative right to representation that is free from conflicts of interest.’ [Citations.]” (People v.

Bonin (1989) 47 Cal.3d 808, 834 [250 Cal.Rptr. 687, 758 P.2d 1217].) As a general proposition, such conflicts “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. [Citation.]” (Id., at p. 835.) “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” (Cuyler v.

Sullivan (1980) 446 U.S. 335, 348 [64 L.Ed.2d 333, 346-347, 100 S.Ct. 1708], fn. omitted.) To meet this burden, Sullivan mandates a defendant “show[] that his counsel actively represented conflicting interests”; “the possibility of conflict is insufficient to impugn a criminal conviction.” (Id., at p. 350 [64 L.Ed.2d at pp. 347-348], italics added.) Under our state Constitution, “[w]e have applied a somewhat more rigorous standard of review.” (People v.

Mroczko (1983) 35 Cal.3d 86, 104 [197 Cal.Rptr. 52, 672 P.2d 835].) Regardless of an objection, “even a potential conflict may require reversal if the record supports ‘an informed speculation’ that appellant’s right to effective representation was prejudicially affected. Proof of an ‘actual conflict’ is not required.” (Id., at p. 105.) Defendant relies on cases in which potential or actual conflict resulted from the defense attorney’s simultaneous representation of a codefendant or witness whose position relative to the charges was adverse to the defendant’s interests. (See People v.

Easley (1988) 46 Cal.3d 712, 720-724 [250 Cal.Rptr. 855, 759 P.2d 490] [defense counsel also represented owner of property destroyed by fire who testified for prosecution regarding defendant’s participation in arson alleged as violent-crime special circumstance]; People v. Mroczko, supra, 35 Cal.3d at pp. 103-108 [same attorney represented defendant and codefendant who had antagonistic defenses because of differing degrees of culpability]; see also Wheat v.

United States (1988) 486 U.S. 153, 155-158 [100 L.Ed.2d 140, 146-148, 108 S.Ct. 1692] [same attorney represented defendant and prosecution witness whom attorney would be precluded from effectively cross-examining; defendant not permitted to waive conflict]; Cuyler v.

Sullivan, supra, 446 U.S. at p. 350 [64 L.Ed.2d at p. 348] [defense attorneys rested defendant’s case to avoid exposing witnesses who might later testify for codefendants they also represented; remanded for determination of actual conflict and absence of tactical decision].) We find nothing in defendant’s situation comparable to the facts of these cases. Whatever “conflict” trial counsel was referring to does not appear of record and was never alluded to again.

It clearly did not involve dual representation; defendant fails to suggest any other reason, actual or potential, that might cause his attorney to compromise his defense. Under such circumstances, we find no basis for requiring the trial court to inquire further or secure a waiver of conflict. (See Wood v.

Georgia (1981) 450 U.S. 261, 272-273 [67 L.Ed.2d 220, 231, 101 S.Ct. 1097].) Parenthetically, we also observe that the American Bar Association Code of Professional Responsibility permits an attorney to reveal “[t]he intention of his client to commit a crime and the information necessary to prevent the crime.” (DR 4-101 (C)(3); see also ABA Model Rules Prof. Conduct, rule 1.6(b)(1) [attorney may reveal confidential information “to prevent the client from committing a criminal act. . . likely to result in imminent death or substantial bodily harm”]; cf. Evid.

Code, § 956 [no attorney-client privilege “if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime”]; see generally Matter of Shay (1911) 160 Cal. 399, 406 [117 P. 442]; Falloon v. Superior Court (1926) 79 Cal.App. 149, 157-158 [248 P. 1057].) The Model Rules of Professional Conduct also admonish against knowingly “failing] to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . .” (ABA Model Code Prof.

Conduct, rule 3.3(a)(2).) Under most circumstances, this obligation would include alerting the court to matters that might threaten the security of the proceedings. 4. Failure to Instruct In instructing the jury, the court did not mention the restraints but simply cautioned the panel not to be “biased against the defendant because he has been arrested for this offense, or because he has been charged with a crime, or because he has been brought to trial.” (CALJIC No. 1.00 (1979 rev.).) Defendant contends the court had a sua sponte obligation to amplify on this admonition with specific reference to his shackles.

In People v. Duran, supra, we advised that “when the restraints are concealed from the jury’s view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided.” (16 Cal.3d at p. 292, fn. omitted; People v. Allen, supra, 42 Cal.3d at p. 1265, fn. 25; see also People v. Sheldon, supra, 48 Cal.3d at p. 946.) Having determined the record contains no evidence the jury saw defendant’s shackles, we conclude the court had no duty to instruct on the matter in the absence of a specific request. B.

Ineffective Assistance of Counsel Defendant makes numerous assertions of ineffective assistance of counsel. Before addressing them individually, we review the basic principles that inform and guide our assessment of these issues on appeal: We begin with the general proposition that “the burden of proving a claim of inadequate trial assistance is on the appellant. [Citation.]” (People V.

Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Thereafter, “ ‘[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] . . . [fl] In addition to showing that counsel’s performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (People v.

Ledesma (1987) 43 Cal.3d 171, 216, 217 [233 Cal.Rptr. 404, 729 P.2d 839], citing and quoting Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696, 104 S.Ct. 2052].) With respect to evaluating the performance component, “[m]erely tactical errors by counsel are not deemed reversible [citation], for the decisions of counsel in the midst of trial cannot be second-guessed by the hindsight of an appellate court [citation].” (People v.

Frausto (1982) 135 Cal.App.3d 129, 139 [185 Cal.Rptr. 314].) Moreover, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” (Strickland v. Washington, supra, 466 U.S. at p. 690 [80 L.Ed.2d at p. 695].) As to the prejudice component, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id., at p. 694 [80 L.Ed.2d at p. 698].) Moreover, “prejudice must be affirmatively proved. [Citations.] ‘It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . .’ [Citations.]” (People v.

Ledesma, supra, 43 Cal.3d at pp. 217-218.) Finally, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order [set forth above] or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington, supra, 466 U.S. at p. 697 [80 L.Ed.2d at p. 699].) 1. Failure to Challenge Jury Venire Citing People v.

Harris (1984) 36 Cal.3d 36 [201 Cal.Rptr. 782, 679 P.2d 433], defendant contends counsel should have challenged the method of selecting the jury venire. In Harris, a plurality of this court found that statistical evidence of systematic underrepresentation of Blacks and Hispanics in the jury pool resulting from the use of voter registration lists violated the Sixth Amendment right to trial by a fair cross-section of the community. (Id., at pp. 58-59; see generally Duren v. Missouri (1979) 439 U.S. 357 [58 L.Ed.2d 579, 99 S.Ct. 664]; but see People v.

Sanders (1990) 51 Cal.3d 471, 493-495 [273 Cal.Rptr. 537, 797 P.2d 561].) Defendant argues that because Harris arose in Los Angeles County and our decision antedated his trial by several months, counsel erred in not moving to quash the jury venire. In Williams v.

Superior Court (1989) 49 Cal.3d 736 [263 Cal.Rptr. 503, 781 P.2d 537], we determined “that the appropriate definition of community for cross-section analysis is the judicial district.” (Id., at p. 739, fn. omitted.) The relevant statistics in Harris related to “Long Beach Superior Court jury panels from May 5 through August 15, 1979[,]” i.e., the Long Beach Judicial District. (People v. Harris, supra, 36 Cal.3d at p. 46.) Defendant’s trial took place in the Los Angeles Judicial District; hence, the result in Harris is irrelevant.

More to the point, “[t]here is no indication in the record that defendant was either deprived of a representative jury or that counsel’s failure to challenge the jury venire was unreasonable within the meaning of either Pope, supra, ... or [People v.] Fosselman [(1983) 33 Cal.3d 572]. . . .” |(People v.

Moore (1988) 47 Cal.3d 63, 86 [252 Cal.Rptr. 494, 762 P.2d 1218].) In the absence of such data, we are unable to determine whether he could have met his burden of showing “that the representation of the excluded group[s] in venires from which juries [were] selected [was] not ‘fair and reasonable in relation to the number of such persons in the community.’ ” (Williams v. Superior Court, supra, 49 Cal.3d at p. 746, quoting Duren v.

Missouri, supra, 439 U.S. at p. 364 [58 L.Ed.2d at p. 587].) Without some basis for evaluating the likely success of a motion to quash, we cannot conclude defendant suffered any prejudice. Moreover, in light of Williams, we are reluctant even to imply counsel should have considered such a motion. 2.

Death Qualification Voir Dire Defendant also complains that his attorneys’ perfunctory participation in the “death qualification” process failed to afford him effective assistance since counsel was thus unable to probe attitudes toward capital punishment and eliminate potential death-prone jurors. (See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases (1983) 58 N.Y.U. L. Rev. 299, 325-326.) However, he has not demonstrated that the manner of conducting this portion of voir dire resulted from other than an informed strategic decision.

Because we cannot conclude that choice was unreasonable “from counsel’s perspective at the time,” we are bound by the “highly deferential” standard of judicial scrutiny applicable under the circumstances. (Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695].) Prior to commencement of the sequestered voir dire, the defense attempted to limit substantially the nature and extent of inquiry into prospective jurors’ general attitudes toward the death penalty.

Counsel proffered the following rationale for the requested restrictions: When the United States Supreme Court decided Witherspoon (1969), popular opinion was essentially evenly divided on the death penalty, with a slight majority opposed. (See Witherspoon v. Illinois, supra, 391 U.S. at p. 520, fn. 16 [20 L.Ed.2d at p. 783].) At the time of defendant’s trial (1985), however, that sentiment had shifted dramatically; according to counsel’s statistics, 80 percent then favored capital punishment. (See also Gregg v.

Georgia (1976) 428 U.S. 153, 181, fn. 25 [49 L.Ed.2d 859, 879, 96 S.Ct. 2909].) If the prosecutor were permitted to engage in extensive voir dire, he would be able easily to identify, and hence readily eliminate, all venirepersons who entertained some conscientious or religious scruples even if they otherwise affirmed their ability to follow the law and impose a death sentence.

With each side having the same number of peremptory challenges, “just [as] a matter of percentages,” the prosecution would be able to control the composition of the jury to include only those who, as a general proposition, favored the death penalty and to excuse those who did not, all contrary to the mandate of Witherspoon. Counsel alluded to a capital case he had tried the previous year in which he felt this exact scenario had come to pass.

While the court did not question the statistical basis for the motion, it was unconvinced of the underlying legal premises and indicated an intent to allow a moderate degree of inquiry by both sides. The defense subsequently questioned all prospective jurors but did not engage in “probing” inquiry except in response to some of the prosecutor’s challenges for cause.

Under the circumstances, we can reasonably infer the decision to pursue this course was a tactical choice to avoid revealing too much, thereby enabling the prosecutor to identify and excuse by peremptory challenge those who expressed scruples about imposing the death penalty. We do not find this professional judgment ill-considered or strategically untenable. (See also People v. Lewis (1990) 50 Cal.3d 262, 289-290 [266 Cal.Rptr. 834, 786 P.2d 892]; see generally People v.

Wright (1990) 52 Cal.3d 367, 413-414 [276 Cal.Rptr. 731, 802 P.2d 221].) Whatever different approach might have been available, we are not in a position on this record to fault the one chosen. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. [Citation.]” (Strickland v. Washington, supra, 466 U.S. at pp. 689-690 [80 L.Ed.2d at p. 695], citing Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, supra, 58 N.Y.U. L. Rev. 299, 343; see People v.

Ledesma, supra, 43 Cal.3d at p. 216.) “Reviewing courts will reverse on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144].) Other than by speculation and “the distorting effects of hindsight” (Strickland v. Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694]), defendant has failed to meet this burden. (See, e.g., People v.

Williams (1988) 44 Cal.3d 883, 937 [245 Cal.Rptr. 336, 751 P.2d 395] [defendant must establish more favorable result likely as “ ‘demonstrable reality,’ not simply speculation”].) Parenthetically, we also express doubt as to whether a protracted voir dire would have produced a more favorable result. (Cf. People v. Bittaker (1989) 48 Cal.3d 1046, 1082-1087 [259 Cal.Rptr. 630, 774 P.2d 659] [prejudice resulting from improper restriction on voir dire measured by whether it “affected defendant’s right to a fair and impartial jury.”]; People v.

Coleman, supra, 46 Cal.3d at p. 768 [erroneous ruling on challenge for cause harmless since it “did not result in a jury particularly apt to impose the death penalty”].) 3. Request to Have Defendant Shackled During Trial; Exclusion of Defendant From In Camera Hearing Adverting again to his shackling at trial, defendant lays partial blame on his counsel for requesting the restraints absent some indication the court found them necessary. He also contends counsel was ineffective for excluding him from the in camera hearing at which the matter was initially raised.

As previously discussed, defendant did not suffer any impairment of his right to a fair trial by being physically restrained during the proceedings. Hence, any error in ordering the restraints or conducting the in camera hearing, whether on the part of the court or counsel or both, does not warrant reversal of either the conviction or sentence. (People v. Ledesma, supra, 43 Cal.3d at p. 217; cf. People v.

Hamilton (1985) 41 Cal.3d 408, 424 [221 Cal.Rptr. 902, 710 P.2d 981] [“Although fault might be found with counsel’s reasoning in requesting shackling in the first instance . . . , the matter became moot” when manifest need arose.].) 4. Eliciting Testimony of Gang Affiliation During cross-examination of James Kennedy, counsel inquired into defendant’s involvement in gang activity. Counsel also raised the subject of prison gangs in questioning Joey Upland about conditions of incarceration.

Defendant contends these “devastating” lines of inquiry prejudiced his defense at both the guilt and penalty phases because the evidence unfavorably portrayed him as an intransigently violent person. When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact. (See generally People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [184 Cal.Rptr. 165, 647 P.2d 569]; see also Williams v.

Superior Court (1984) 36 Cal.3d 441, 450, fn. 8 [204 Cal.Rptr. 700, 683 P.2d 699].) On the other hand, the defense may be pursuing a legitimate strategy in placing such information before the jury. For example, in People v. Frausto, supra, 135 Cal.App.3d 129, counsel had a “tactical reason” for not objecting to testimony of gangs and gang-related activity that “showed the victim and his companions in an unfavorable light because of the definite admission of the victim that he was a gang member in another gang’s territory.

As such, evidence of gangs was a twin sword which could be utilized by the defense in attacking the credibility of the victim.” (Id., at p. 141.) Here, we perceive a different but equally reasonable tactical decision in broaching the subject. As discussed more fully below, counsel’s strategy was to forgo a strenuous guilt phase attack and focus the jury’s attention at the penalty phase on possible lingering doubt over the identity of the actual killer.

Crucial support for this theory lay in depicting defendant as a “follower,” who operated under the influence and at the direction of more sophisticated and dominant gang members such as Darren Williams. During the penalty phase, counsel emphasized this point several times, alluding as well to the pervasive gang activity and attendant peer pressure in defendant’s neighborhood while he was growing up. As a gang member himself, Kennedy’s testimony enhanced the credibility of this argument.

Upland’s testimony also provided the foundation for the claim that life in prison without possibility of parole would be a “horrible punishment,” sufficient to redress defendant’s moral culpability. Given the few viable appeals for clemency, we cannot fault the defense strategy or find any deficiency in its implementation. (Cf. People v.

Miranda, supra, 44 Cal.3d at pp. 119-121 [decision not to introduce evidence of defendant’s long-standing gang involvement was reasonable tactical choice given possibility of damaging cross-examination and rebuttal testimony].) Defendant has failed to meet his threshold burden on this issue. 5. Failure to Present Guilt Phase Defense or Argument as to Lesser Degree of Culpability The defense offered no evidence at the guilt phase.

At the conclusion of the prosecutor’s argument, counsel also declined to present any response, specifically affirming that the decision was for “strategic or tactical purposes” and that defendant was not “at odds” with the choice. (See People v. Frierson (1985) 39 Cal.3d 803, 815-816 [218 Cal.Rptr. 73, 705 P.2d 396].) Defendant now contends counsel rendered ineffective assistance because the evidence supported a finding that he was guilty of only second degree murder or merely aiding and abetting an assault.

He also suggests his attorneys should have cross-examined prosecution witnesses more rigorously and could have presented evidence that he did not share the killer’s intent. (See People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60, 674 P.2d 1318].) We do not find counsel’s tactical choices constitutionally lacking under the circumstances. In resolving claims of ineffective assistance, we must “assess counsel’s overall performance throughout the case” (Kimmelman v.

Morrison (1986) 477 U.S. 365, 386 [91 L.Ed.2d 305, 326, 106 S.Ct. 2574]), evaluating it “from counsel’s perspective at the time of the alleged error and in light of all the circumstances. [Citation.]” (Id., at p. 384 [91 L.Ed.2d at p. 325].) As experienced criminal attorneys, defense counsel pragmatically recognized that the evidence established the callously calculated murders of four innocent and unsuspecting victims for which defendant was directly responsible. In formulating a guilt phase strategy, they could reasonably have anticipated eventually having to conduct a penalty phase as well.

Apparently, counsel determined the strongest defense against a death sentence was to portray Williams as the mastermind, who “orchestrated” the killings and “was in control” of events, while defendant, younger and more susceptible to peer pressure, simply accompanied him in a subservient role without prior knowledge of his precise purpose. Although counsel could have made this argument at the guilt phase, the likelihood of reducing defendant’s culpability for special circumstance murder was minimal given the compelling evidence of his involvement at least as an aider and abettor.

Asking the jurors to pass upon this theory at an early stage may well have diluted its credibility and hardened their attitudes even before the penalty phase began. (See, e.g., People v. Jackson, supra, 28 Cal.3d at pp. 290, 295.) Indeed, had the jury rejected this theory as to guilt, they implicitly would have already concluded defendant was the actual killer, leaving the defense in a greatly weakened position in appealing for life over death. Thus, counsel may have reasonably determined that their efforts would be best applied to mitigating the penalty. (See, e.g., People v.

Rich (1988) 45 Cal.3d 1036, 1097-1998 [248 Cal.Rptr. 510, 755 P.2d 960]; People v. Jackson, supra, 28 Cal.3d at pp. 292-293; but see People v.

Frierson, supra, 39 Cal.3d at pp. 814-815 [counsel cannot “refuse to honor defendant’s clearly expressed desire to present a defense” at guilt/special circumstances phase of trial].) Through a selective reading of the record with considerable hindsight, defendant speculates a more favorable determination would have resulted from other possible courses; yet he has failed to establish as a demonstrable reality any professional lapse in the defense actually employed. (People v. Pope, supra, 23 Cal. 3d at p. 426.) Lack of success does not reflect incompetence of counsel. (Strickland v.

Washington, supra, 466 U.S. at p. 689 [80 L.Ed.2d at p. 694]; see also People v. Jackson, supra, 28 Cal.3d at pp. 288-289.) Indeed, as the court observed at the close of trial, “I believe on the evidence presented in this case the same outcome would result no matter what the trial strategy or tactics that might be employed by the defense.” (See People v. Fosselman, supra, 33 Cal.3d at p. 582.) As to whether certain witnesses should have been more rigorously cross-examined, such matters are normally left to counsel’s discretion and rarely implicate inadequacy of representation. (See, e.g., People v.

Robertson (1989) 48 Cal.3d 18, 41 [255 Cal.Rptr. 631, 767 P.2d 1109]; People v. Murphy (1972) 8 Cal.3d 349, 366-367 [105 Cal.Rptr. 138, 503 P.2d 594]; People v. Beagle (1972) 6 Cal.3d 441, 458 [99 Cal.Rptr. 313, 492 P.2d l].) Defendant identifies no exculpatory or impeachment evidence that counsel could have revealed by further questioning of prosecution witnesses and that would have produced a more favorable result at trial. The record also does not sustain the purported failure to present extenuating evidence of intent.

Such claims must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. (See, e.g., In re Hall (1981) 30 Cal.3d 408 [179 Cal.Rptr. 223, 637 P.2d 690]; see also People v. Jackson, supra, 28 Cal.3d at pp. 294-296.) We cannot evaluate alleged deficiencies in counsel’s representation solely on defendant’s unsubstantiated speculation. 6. Cumulative Effect Defendant has failed to meet his burden of establishing inadequate representation and resulting prejudice as to each claim of ineffective assistance of counsel.

Accordingly, we can find no cumulative deficiency assessing these contentions in the aggregate. Nor does the record suggest in any respect a “breakdown in the adversarial process that our system counts on to produce just results.” (Strickland v. Washington, supra, 466 U.S. at p. 696 [80 L.Ed.2d at p. 699].) C. Testimony of Family Members and Admission of Photographs of Victims in Life Over defendant’s objection at the guilt phase, the prosecution called as a witness Ebora Alexander’s son Kermit, a former college and professional football player well known in Los Angeles.

He identified life photographs of his mother and sister and also testified he had never seen defendant at his mother’s house. Defendant also objected when the mothers of Damani Gamer and Damon Bonner identified their sons from life pictures. They similarly denied ever seeing defendant at the Alexander residence. According to defendant, none of the witnesses should have testified because he offered to stipulate to the matters contained in their testimony and their presence imparted undue emotional impact to the proceedings. (See People v.

Hall (1980) 28 Cal.3d 143, 152 [167 Cal.Rptr. 844, 616 P.2d 826], disapproved on other grounds in People v.

Valentine (1986) 42 Cal.3d 170, 181 [228 Cal.Rptr. 25, 720 P.2d 913].) Defendant’s claim has limited merit: “There was no dispute as to the identity of the person[s] killed—evidently the only issue on which the photograph[s were] relevant—and therefore the photograph[s] should have been excluded because [they] bore on no contested issue. [Citation.] The error, however, must be deemed harmless. ‘As we have seen, from the evidence presented at the guilt phase this was not a “close case” in which the jury’s sympathy for the victim[s] may have led it to improperly convict [defendant]; the evidence of defendant’s participation in the crimes was clear and uncontradicted.

Accordingly, the admission of the photograph[s] does not warrant reversal.’ [Citation.]” (People v. Hendricks (1987) 43 Cal.3d 584, 594-595 [238 Cal.Rptr. 66, 737 P.2d 1350], citing and quoting People v. Ramos (1982) 30 Cal.3d 553, 577-578 [180 Cal.Rptr. 266, 639 P.2d 908], revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446].) The trial court did not abuse its discretion in rejecting a proffered stipulation that none of the witnesses had seen defendant at their mother’s house before the killings.

To preserve this issue for review, a defendant must specify in sufficient detail the substance of any proposed agreement on facts. (See Harris v. Spinali Auto Sales, Inc. (1966) 240 Cal.App.2d 447, 452 [49 Cal.Rptr. 610]; see also Stow v. Superior Court (1918) 178 Cal. 140, 143 [172 P. 598].) Otherwise, the trial court cannot determine whether the prosecution is obligated to accept the stipulation, and the appellate court cannot evaluate its exercise of discretion. (See, e.g., People v.

Bonin, supra, 47 Cal.3d at p. 848.) Here, counsel did not actually offer to stipulate that defendant had never been in the Alexander house or, at the very least, did not specify the factual matters he would admit. When considered in context, the willingness to stipulate clearly applied to the identification of the victims from their photographs in life and nothing else potentially in dispute.

Since crucial aspects of the prosecution’s case turned on the presence of defendant’s palm print on the trunk in the victims’ bedroom, any relevant admission would have to incorporate the theory that it was placed there the day of the murders. Without a proposed stipulation, we cannot assess whether it might have been so “ambiguous in form or limited in scope” as to deprive the prosecution “of the legitimate force and effect of material evidence” (Fuentes v. Tucker (1947) 31 Cal.2d 1, 7 [187 P.2d 752]; see also People v.

Brown (1988) 45 Cal.3d 1247, 1262 [248 Cal.Rptr. 817, 756 P.2d 204]) or to “hamper a coherent presentation of the evidence . . . ,” (People v. Hall, supra, 28 Cal.3d at p. 153; cf. Evid. Code, § 354 [no reversal of verdict for erroneous exclusion of evidence except on offer of proof].) We also find no impropriety in permitting Kermit Alexander to testify. Whatever the witness’s “celebrity” status, nothing in the record suggests any sympathy or other untoward influence engendered by his brief appearance and unemotional testimony. (See People v.

Carrera (1989) 49 Cal.3d 291, 330-331 [261 Cal.Rptr. 348, 777 P.2d 121].) We decline to formulate a rule of admissibility premised on the extent to which a witness may or may not otherwise be known to the general public. (Cf. ibid, [declining to presume prejudice from testimony of murder victim’s parent].) D. Autopsy Photographs Defendant objected to the introduction of nine photographs depicting the entrance and exit wounds suffered by the victims as irrelevant or insufficiently probative of any disputed issue given their prejudicial impact.

The prosecutor explained that the evidence illustrated the manner in which the killings took place and substantiated the theory of deliberation and premeditation, i.e., that defendant entered the Alexander residence with the intent to eliminate everyone in it as quickly as possible.

The photo of Ebora Alexander, which showed the extent of her head wound, also corroborated defendant’s statement, “I just blew the bitch’s head off.” “We have repeatedly stated that the court has wide discretion in determining the admissibility of photographs of a murder victim. [Citations.] We have previously held that a court may admit even ‘gruesome’ photographs if the evidence is highly relevant to the issues raised by the facts .... [Citation.] However, when a defendant objects that the proffered evidence is more prejudicial that probative, the record must affirmatively show that the court weighed these factors, in order to allow proper appellate review of abuse of discretion claims. [Citation.]” (People v.

Coleman, supra, 46 Cal.3d at p. 776.) The trial court carefully considered the proffered justification in light of defendant’s objections under Evidence Code

section 352. Although one picture of Ebora “appeared] to be close to the concept of being factually gruesome,” the court concluded, “I don’t believe that [one] will inflame the passions of the jury. It is certainly not pretty [to] look at, nor are any of the other photographs pretty to look at, certainly, but I do believe that in light of the statement and the mode and manner that these killings occurred, and for the reasons stated by the prosecution, that they do have probative value that outweighs any prejudicial effect from them . . . .” This record reflects a proper exercise of discretion. (See People v.

Green (1980) 27 Cal.3d 1, 24-25 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99].) We have consistently upheld the introduction of autopsy photographs disclosing the manner in which a victim was wounded as relevant not only to the question of deliberation and premeditation but also aggravation of the crime and the appropriate penalty, all of which were at issue here. (See People v. Thompson (1990) 50 Cal.3d 134, 182 [266 Cal.Rptr. 309, 785 P.2d 857]; People v. Carrera, supra, 49 Cal.3d at p. 329; People v.

Milner (1988) 45 Cal.3d 227, 247 [246 Cal.Rptr. 713, 753 P.2d 669]; People v. Melton (1988) 44 Cal.3d 713, 741 [244 Cal.Rptr. 867, 750 P.2d 741].) The facts also substantiate the corroborative effect of Ebora Alexander’s picture in establishing defendant as the main perpetrator of the crimes. (See People v. Milner, supra, 45 Cal.3d at p.247.) Moreover, having examined the photographs, we agree with the trial court’s assessment of their likely prejudicial impact and probative value.

They “are relatively small and, although quite unpleasant to view, they are not exceptionally gruesome. . . .' [U]nlike the photographs in some cases, these ... do not show the victim[s’] bodies in a badly decomposed condition [citation] or after they have been grossly disfigured during autopsy. [Citations.]” (People v. Allen, supra, 42 Cal.3d at pp. 1257-1258, fn. omitted; see also People v. Carrera, supra, 49 Cal.3d at p. 329.) The prosecutor also did not include some pictures apparently depicting Ebora Alexander’s wound in more graphic detail. (See People v. Thompson, supra, 45 Cal. 3d at p. 114; People v.

Allen, supra, 42 Cal.3d at p. 1258.) Defendant has thus failed to demonstrate a manifest abuse of discretion in the admission of this evidence. (People v. Harris (1989) 47 Cal.3d 1047, 1095 [255 Cal.Rptr. 352, 767 P.2d 619].) E. Instructions 1. Accomplices—CALJIC No. 2.11.5 Given the extent of Moore’s and Brown’s involvement, the trial court gave a full panoply of aiding and abetting and accomplice instructions.

The court also instructed the jury pursuant to CALJIC No. 2.11.5 as follows: “There has been evidence in this case indicating that persons other than defendant were or may have been involved in the crime for which the defendant is on trial, [fl] You must not discuss or give any consideration as to why the other persons are not being prosecuted in this trial or whether they have been or will be prosecuted.” Defendant argues the jury was fatally confused and misled because it was directed both to resolve the status of Moore and Brown as principals or accomplices in evaluating their testimony and to disregard the criminal liability of other participants.

Defendant correctly contends that, as a general proposition, the trial court should not have given CALJIC No. 2.11.5 under the circumstances. (But see, post, fn. 13.) As the Use Note reflects and this court has reaffirmed: “This instruction is not to be used if the other person is a witness for either the prosecution or the defense.” (See People v. Marks (1988) 45 Cal.3d 1335, 1347 [248 Cal.Rptr. 874, 756 P.2d 260]; People v.

Williams (1988) 45 Cal.3d 1268, 1313 [248 Cal.Rptr. 834, 756 P.2d 221].) Nevertheless, any error was not prejudicial. “In determining whether an instruction interferes with the jury’s consideration of evidence presented at trial, we must determine ‘what a reasonable juror could have understood the charge as meaning.’ [Citation.] While the initial focus is on the specific instruction challenged [citation], we must also review the instructions as a whole to see if the entire charge delivered a correct

interpretation of law. [Citation.]” (People v. Garrison (1989) 47 Cal.3d 746, 780 [254 Cal.Rptr. 257, 765 P.2d 419].) Here, the court specified that the instructions on accomplice liability and the restrictions on assessing the weight and credibility of accomplice testimony applied to Moore and Brown; whereas, CALJIC No. 2.11.5 “was patently directed at” Burns and Williams, defendant’s absent confederates. (People v.

Belmontes (1988) 45 Cal.3d 744, 783 [248 Cal.Rptr. 126, 755 P.2d 310].) The court also charged the jury not to single out any instruction (CALJIC No. 1.01) and to consider the full range of factors affecting credibility (CALJIC No. 2.20). In this context, we conclude “a reasonable juror would continue to act in accordance with the court’s charge on accomplice testimony, but would simply refrain from discussing or giving any consideration to the separate issue why [Moore and Brown were] not being prosecuted in the present action or whether [they] had been or would be prosecuted . . . .” (People v.

Williams, supra, 45 Cal.3d at p. 1313; see People v. Carrera, supra, 49 Cal.3d at p. 313; People v. Sheldon, supra, 48 Cal.3d at pp. 947-948; People v. Belmontes, supra, 45 Cal.3d at p. 783.) Furthermore, we find no inherent contradiction in requiring the jurors to determine the accomplice liability of these witnesses in assessing the weight of their testimony and also directing them to ignore these factors in resolving defendant’s guilt.

One purpose of the instruction is to focus the jury’s attention on an individualized evaluation of the evidence against the person on trial without extraneous concern for the fate of other participants irrespective of their culpability. (See, e.g., People v. Malone (1988) 47 Cal.3d 1, 51 [252 Cal.Rptr. 525, 762 P.2d 1249]; People v. Williams, supra, 45 Cal.3d at p. 1313.) Given the totality of the foregoing circumstances, we conclude the omission of the challenged instruction would not in reasonable probability have resulted in a more favorable determination. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 2. Aiding and Abetting—CALJIC No. 3.00 The court instructed that one incurs criminal liability for the “natural and reasonable or probable consequences of any act . . . knowingly and intentionally aided or encouraged.” (CALJIC No. 3.00 (1984 rev.).) Defendant contends the instruction erroneously failed to include a modification requiring the jury to determine whether the crime charged actually was a “natural and probable consequence” of the act so encouraged. (People v.

Hammond (1986) 181 Cal.App.3d 463, 469 [226 Cal.Rptr. 475]; see CALJIC No. 3.00 (1987 rev.).) He also alleges the error was prejudicial since “under one view of the evidence a properly instructed jury could have determined that defendant was not guilty of murder because, although he had a specific intent to facilitate some criminal conduct (such as assault with a deadly weapon or shooting at an inhabited dwelling), the crime of murder was not a natural and probable consequence of the contemplated crime.” This argument is without merit. The modification suggested in People v.

Hammond, supra, 181 Cal.App.3d 463, constitutes a clarification of the jury’s fact-finding responsibility, not the delineation of an element of a crime or a form of criminal liability. (See, e.g., People v. Beeman, supra, 35 Cal.3d at pp. 556-561 [defendant must intend to facilitate criminal act of another as well as to aid its commission with knowledge of perpetrator’s purpose].) That is, as worded, the instruction does not withdraw an element from the jury’s determination or otherwise interject an impermissible presumption into the deliberative process. (See, e.g., Pope v.

Illinois (1987) 481 U.S. 497 [95 L.Ed.2d 439, 107 S.Ct. 1918]; Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450].) Under such circumstances, we require the defendant to request further instructional amplification or explanation as he deems necessary. “[E]rror cannot ... be predicated upon the trial court’s failure to give [such amplification or explanation] on its own motion. [Citations.]” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].) Moreover, the failure to give a modified instruction could not have affected the outcome.

The aiding and abetting theory finds no support in the record; the evidence substantially, if not overwhelmingly, established defendant as the actual perpetrator. Equally insubstantial was any evidence suggesting the assailants intended to scare rather than kill their victims. However, even if defendant meant only to encourage and facilitate an assault with deadly weapons, no reasonable jury would have concluded that the homicides were not a natural and probable consequence of such violence. (See Rose v. Clark (1986) 478 U.S. 570, 580-581 [92 L.Ed.2d 460, 472, 106 S.Ct. 3101]; see also People v.

Dyer (1988) 45 Cal.3d 26, 65 [246 Cal.Rptr. 209, 753 P.2d 1]; People v. Jones (1989) 207 Cal.App.3d 1090, 1098 [255 Cal.Rptr. 464].) F. Failure to Secure Waiver of Right to Present Defense Lastly, defendant asserts the failure to present a guilt phase defense or closing argument (ante,

part III.B.5.) was “tantamount to a guilty plea or to a Bunnell-Mosley ‘slow plea.’ ” (See Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-605 [119 Cal.Rptr. 302, 531 P.2d 1086]; In re Mosley (1970) 1 Cal.3d 913, 922-925 [83 Cal.Rptr. 809, 464 P.2d 473]; see also Brookhart v. Janis (1966) 384 U.S. 1, 7-8 [16 L.Ed.2d 314, 319, 86 S.Ct. 1245].) The court thus should have secured a waiver of his fundamental constitutional rights before the jury began deliberating. (See generally Boy-kin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709]; In re Tahl (1969) 1 Cal.3d 122 [460 P.2d 449].) In People v.

Hendricks, supra, 43 Cal.3d 584, “[d]efense counsel presented no opening statement, cross-examined only a few of the prosecution’s witnesses and those not extensively, . . . called neither defendant nor any other witnesses, . . . and made no closing argument.” (Id., at p. 592.) Writing for a unanimous court, Justice Mosk thoroughly explicated our reasons for not compelling an express waiver under such circumstances: “In People v.

Murphy (1972) 8 Cal.3d 349, 365-366 . . . , we considered and rejected the same contention that defendant raises here—viz., that when counsel elects to present a ‘minimal defense’ or ‘no defense at all,’ the court is required to obtain from the defendant a personal, on-the-record waiver of his Boykin-Tahl rights.

We explained: ‘The rationale of Tahl and its offspring is to “assure that the record demonstrably discloses the defendant knows of and voluntarily waives the three specified rights . . . surrendered by a guilty plea.” [Citations.] The mandate of Tahl, however, applies only to pleas of guilty and situations tantamount to a plea of guilty. [Citation.] Nothing in our decisions following Tahl indicates that the principles expressed therein were intended to apply to jury trials, even where the evidence of guilt is overwhelming.

When a defendant undergoes a jury trial any competent defense counsel will inform him of his right to call witnesses on his own behalf, on his right to testify or not to testify, and, in the absence of unusual circumstances, will cross-examine the witnesses for the prosecution.’ [Citations.] “We implicitly recognized two points in Murphy. First, the Boykin-Tahl reasoning applies only when the defendant agrees to a submission procedure, such as a guilty plea or a submission on the preliminary hearing transcript, by virtue of which he surrenders one or more of the three specified rights.

Second, there is no such surrender when the defendant undergoes—and thereby exercises his right to—a jury trial and has the opportunity to cross-examine the witnesses against him and to refuse to incriminate himself.” (People v. Hendricks, supra, 43 Cal.3d at pp. 592-593; see also People v. Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103].) We also distinguished those cases relied on by defendant: “each involve a submission by virtue of which the defendant surrendered at least his right to a jury trial . . . .” (People v.

Hendricks, supra, 43 Cal.3d at p. 593.) We remain persuaded by this analysis; defendant offers no convincing argument for reexamining our determination under these facts. (See also People v. Murphy, supra, 8 Cal.3d at pp. 366-367.) Furthermore, counsel represented that defendant agreed with the chosen strategy. (Cf. People v.

Frierson, supra, 39 Cal.3d at p. 815 [counsel cannot refuse to honor defendant’s “clearly expressed desire” to present a defense at guilt/special circumstances phase of trial].) When the record reflects a tactical choice to curtail presentation of defense evidence or closing argument with the defendant’s purported knowledge and acquiescence, it would amount to an untoward interference with the attorney-client relationship to suggest the trial court has an obligation to question the defendant as to his concurrence in counsel’s trial strategy and to secure a waiver of any rights incidentally relinquished. (Cf.

People v. Thomas (1974) 43 Cal.App.3d 862, 867 [118 Cal.Rptr. 226] [no duty to advise represented defendant of right to testify or not to testify or to explain ramifications of either choice]; People v. Mosqueda (1970) 5 Cal.App.3d 540, 545 [85 Cal.Rptr. 346] [“[A] trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his Fifth Amendment privilege against self-incrimination and is abiding by his counsel’s trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial.”].) IV. Penalty Phase Issues A.

Instructions 1. Easley/Boyd Contentions At the penalty phase, the trial court directed the jury pursuant to

section 190.3 to consider “all of the evidence which has been received during any part of the trial” and “consider, take into account and be guided by” 12 enumerated factors, including “[t]he defendant’s character and background” and “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, including evidence which arouses in you sympathy or compassion for the defendant.” (See CALJIC No. 8.84.1 (1984 rev.).) Defendant challenges the instruction under People v. Easley (1983) 34 Cal.3d 858, 875-880 [196 Cal.Rptr. 309, 671 P.2d 813], and People v.

Boyd (1985) 38 Cal.3d 762, 775-776 [215 Cal.Rptr. 1, 700 P.2d 782], contending it somehow unbalanced the jury’s assessment of the mitigating and aggravating evidence and unduly focused attention on the circumstances of the crime rather than on defendant’s character. (See generally Lockett v. Ohio (1978) 438 U.S. 586 [57 L.Ed.2d 973, 98 S.Ct. 2954].) In People v.

Easley, supra, one of the penalty phase instructions provided for consideration of, among other factors, “ ‘any other circumstance which extenuates the gravity of the crime, even though it is not a legal excuse for the crime.’ ” (34 Cal.3d at p. 877.) We did not reach the question of whether under the Eighth Amendment this language was misleading or confusing in omitting specific reference to circumstances relating to the offender as well as the offense.

We concluded more fundamentally that “the trial court not only failed affirmatively to advise the jury that it could consider as a mitigating factor any aspect of the defendant’s character or background, but it expressly—and inaccurately—informed the jury that it must not be influenced by sympathy or pity for the defendant.” (Id., at p. 878; see also People v. Brown (1985) 40 Cal.3d 512, 536-537 [220 Cal.Rptr. 637, 709 P.2d 440], revd. sub nom. California v.

Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].) As a point of future reference, we noted that “trial courts—in instructing on the factor embodied in

section 190.3, [factor] (k)—should inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime’ and any other ‘aspect of [the] defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.’ [Citation.]” (People v. Easley, supra, 34 Cal.3d at p. 878, fn. 10.) Based on statutory construction (People v. Boyd, supra, 38 Cal.3d at p. 774), we have also concluded that “[e]vidence of a defendant’s character and background is admissible under factor (

k) only to extenuate the gravity of the crime; it cannot be used as a factor in aggravation. [Citation.] The prosecutor may rebut evidence of good character or childhood deprivation or hardship with evidence relating directly to the particular incidents or character traits on which the defendant seeks to rely [citation], and may argue that this mitigating factor is inapplicable, but factor (

k) evidence may not be used affirmatively as a circumstance in aggravation.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1033 [254 CaLRptr. 586, 766 P.2d 1].) Addressing the merits of defendant’s claim, we find the court avoided Easley error by specifically instructing the jury to take into consideration both “defendant’s character and background” and any “evidence which arouses in

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