THE PEOPLE, Plaintiff and Respondent, v. ROBERT FREDERICK GARCEAU, Defendant and Appellant, 6 Cal. 4th 140

Opinion GEORGE, J. Following the guilt phase of a jury trial, the jury found defendant Robert Frederick Garceau guilty of two counts of first degree murder (Pen. Code, §§ 187, 189), and found true the allegation of personal use of a knife in the commission of each offense (§ 12022, subd. (b)) and a multiple-murder special circumstance (§ 190.2, subd. (a)(3)). At the penalty phase, the jury fixed the penalty at death, and thereafter the court imposed a sentence of death. This case reaches us on automatic appeal. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment in its entirety.

Facts The evidence at trial established that on September 6 or 7, 1984, in a Bakersfield apartment, defendant fatally stabbed his girlfriend, Maureen Bautista, in the presence of her 14-year-old son, Telesforo. Immediately thereafter, defendant fatally stabbed Telesforo. Several hours after defendant committed the murders and departed from the crime scene, two of his acquaintances, Greg Rambo and Larry Tom Whittington, returned to the apartment and concealed the victims’ bodies inside a bedroom dresser.

Defendant and Rambo transported the dresser containing the bodies out of Kern County to the town of Shandon, located in San Luis Obispo County, entombing the dresser beneath a layer of fresh concrete in the yard behind Rambo’s residence. Although no physical evidence was discovered linking defendant to the Bautista murders, several of his acquaintances testified that he confessed committing the crimes to them prior to his arrest in March of 1985. The defense focused upon impugning the credibility of these witnesses. Defendant did not present an alibi defense, nor did he testify. I. Guilt Phase Evidence A.

The prosecution’s case 1. Overview The prosecution’s case rested largely on evidence that defendant had, on numerous occasions, confessed his participation in the crimes to acquaintances with whom he had been involved in the manufacture of methamphetamine. According to the prosecution, defendant killed Maureen Bautista because he feared she would “snitch him off’ regarding his involvement in methamphetamine manufacturing, and killed her son, Telesforo, because Telesforo had witnessed defendant’s lethal attack on his mother.

In support of its case, the prosecution presented numerous witnesses who testified to defendant’s intense hatred of “snitches” (persons who report illegal activities to third persons) and to defendant’s frequent comments, both before and after the Bautista murders, to the effect that “snitches die.” 2. Defendant’s methamphetamine manufacturing activity, and his relationship to the victims Greg Rambo’s surviving spouse, Susan Rambo (who was granted immunity in exchange for her testimony), provided important testimony regarding the principal elements of the prosecution’s case.

She described defendant’s methamphetamine manufacturing activity, which began during the summer of 1984 in a small trailer located behind the Shandon residence that she shared with her husband, Greg Rambo. The trailer was located unobtrusively amidst dog kennels and old, discarded automobiles. The rural, unassuming setting was well suited to the covert operation of a methamphetamine laboratory. Defendant had met the Rambos through a mutual acquaintance, Larry Tom Whittington. The participants in the drug operation maintained well-defined roles. Susan Rambo served as a lookout.

Defendant was the “cook,” the person who mixed the chemicals to prepare the methamphetamine (a product that also was referred to by certain witnesses as “speed” or “crank.”) Larry Tom Whittington financed the trailer laboratory, provided necessary supplies, and sold the finished product. Greg Rambo cleaned up after the “cook” and also served as a lookout. According to Susan Rambo, Whittington paid her husband, in cash and with methamphetamine, for the use of the trailer. According to numerous witnesses, defendant frequently “freebased” (i.e., smoked) cocaine.

His profit in manufacturing methamphetamine consisted chiefly of a ready supply of cocaine from Larry Tom Whittington. According to Susan Rambo, Whittington “would supply the cocaine for [defendant], deduct what they owed him for the cook . . . and gave [defendant] money when he needed it.” Susan Rambo testified that defendant prepared his first batch of methamphetamine in the trailer laboratory in August 1984, and prepared four to six subsequent batches that year. Each batch required two to three days to prepare, during which time, according to her, defendant stayed awake, smoking his cocaine pipe.

She said defendant freebased cocaine frequently, regardless whether he was manufacturing methamphetamine, and rarely was without cocaine for more than four or five days, when Larry Tom Whittington would replenish defendant’s supply.

Larry Tom Whittington, testifying on cross-examination, substantially confirmed Susan Rambo’s account of defendant’s work habits and cocaine usage, stating that defendant stayed awake throughout each multi-day “cook,” and that defendant consumed “a couple of ounces [of cocaine] a week, at least,” an expense that, according to Whittington’s estimate, cost defendant approximately $4,000 each week.

Harlyn Codd testified (on cross-examination) that defendant “could put away an ounce of coke freebasing a day if he had it with him.” Linda Rich, a friend of Maureen Bautista, testified that in the year preceding Bautista’s murder, Bautista and defendant had a stormy relationship, punctuated with numerous arguments.

She recalled one such quarrel, in April or May of 1984, in which she went to the door of the Bautistas’ apartment (which was open, although the screen door was closed), heard the sound of dishes breaking, and observed that a telephone had been “pulled out.” On cross-examination, Rich acknowledged that defendant had been kind to Telesforo and had purchased gifts for him, but also that defendant freebased cocaine in the boy’s presence. At the end of August or the beginning of September of 1984, the Bautistas joined defendant, Larry Tom Whittington, and Harlyn Codd on a fishing trip at Lake Isabella.

Codd overheard an argument between Maureen Bautista and defendant, in which defendant threatened to kill Maureen because she planned to “snitch” (on the drug operation participants) to Eddie Nash whom, according to Susan Rambo, defendant considered to be his enemy. Susan Rambo testified that Codd had told her Nash was Telesforo’s father; also, that Nash once had paid defendant to fulfill a contract but that defendant had failed to perform and, as a result, Nash was “looking for” defendant. 3.

The “Nash testimony” Over defendant’s objection, the trial court permitted the prosecution to introduce the testimony of several witnesses to establish a connection between defendant and Eddie Nash, who was a convicted drug dealer.

By this evidence, the prosecution sought to corroborate the testimony of other witnesses that defendant knew Nash, in order to demonstrate that defendant reasonably might have harbored a great fear of Nash because of Nash’s violent reputation and prior criminal activities, and generally to support the evidence, noted above, that indicated defendant murdered Maureen Bautista because he feared she would inform Nash of defendant’s whereabouts and his drug manufacturing activities. 4.

The Bautista murders: defendant’s conduct, confessions, and threats On September 4, 1984, Maureen and Telesforo Bautista registered at a Bakersfield motel. The motel manager testified that he recalled seeing defendant that afternoon on the premises. On the evening of September 6, Telesforo prepaid in cash for that night’s lodging. At a later point that evening, or in the early hours of the next morning, defendant and the Bautistas moved to an unoccupied Bakersfield apartment rented by Patricia Shepard.

Defendant telephoned Larry Tom Whittington near midnight on September 6, asking Whittington to meet him at Shepard’s apartment immediately. When Whittington arrived, defendant said he and Maureen Bautista had been arguing loudly at the motel and had been concerned someone would call the police, so he and the Bautistas had moved to Shepard’s apartment. Defendant told Whittington he was afraid Maureen was planning to “snitch him off’ to Eddie Nash or Nash’s attorney; defendant’s fear stemmed from his belief that Nash was scheduled to be released from prison the following day.

When Whittington asked defendant where the Bautistas were, he said they were sleeping in the bedroom. Whittington did not see them, nor did he hear any sounds emanating from the bedroom. He noticed the telephone appeared to have been ripped from the wall. When Whittington awoke at his Bakersfield residence the next morning, September 7, to the sound of knocking, defendant entered and announced, “I did it. ...

I killed them.” Defendant told Whittington that Maureen Bautista “was going to snitch me off [and] I know how to take care of snitches.” When Whittington asked defendant to lower his voice so Shepard would not hear the conversation, defendant replied that Shepard should hear what had happened, because the deaths had occurred in her apartment. She thereafter joined the conversation. Both Whittington and Shepard testified that defendant told them he had killed Maureen Bautista and “the kid” the previous evening.

Shepard further testified that defendant stated he had killed the Bautistas by slitting their throats with a knife. She testified that defendant demonstrated to her the manner of stabbing. When she (or Whittington) asked why defendant had killed Telesforo, defendant replied that Telesforo had seen him kill the boy’s mother.

Defendant told Shepard and Whittington that Telesforo had been afraid of “Jason,” the fictional killer depicted in the motion picture “Friday the Thirteenth,” but that the boy should have been afraid of defendant instead of “Jason.” A quarter of an hour later, defendant departed from Whittington’s Bakersfield residence, informing him that he (defendant) had to leave town, and driving off in Maureen Bautista’s automobile, a beige Honda Accord. Susan Rambo testified that defendant sped into her yard on a Friday morning early in September (September 7 was a Friday), driving Maureen Bautista’s automobile.

Defendant was “completely erratic, very hyper, babbling, not making sense,” and excitedly stated: “They wouldn’t believe me. I kept telling them. They wouldn’t believe me. They should know what happens to snitches. Now she’s dead.” Later that morning, after smoking his cocaine pipe, defendant appeared to calm down and make more sense. Defendant explained that Maureen Bautista had been yelling about “snitches,” and that Maureen was going to “snitch” on everyone involved in the drug operation. Susan Rambo testified defendant told her that when he stabbed Maureen Bautista, Telesforo began screaming hysterically.

Defendant told Telesforo to shut up, and stabbed him when he did not. Defendant explained to Susan Rambo, “You have to take out all witnesses.” Defendant also reminded Susan Rambo she too should be aware of what happens to “snitches”: “If you don’t want it to happen to you, you know you don’t say anything. This is part of the game. This is part of the rules, part of the business. You’re in it.

You’re involved.” His threat made her afraid to contact the police, as did additional threats he directed toward her on numerous subsequent occasions regarding “the laws of snitches,” his reminders that he killed “snitches,” and his habit of arming himself with a gun and a knife. On that same morning, September 7, Susan Rambo noticed that dark stains had discolored the pants defendant was wearing. Later that day, she observed defendant seated near her washing machine, naked, while the machine was operating.

Wayne James, another acquaintance of defendant, testified that defendant hated “snitches” and had told James that he had killed Maureen Bautista because she was going to “snitch him off,” and that her son had walked in while defendant was killing her, so defendant had to “snuff him” too. Defendant told James he had killed the Bautistas by “stab[bing] them and cut[ting] them up with a knife.” 5.

Disposal of the Bautistas’ bodies Greg Rambo and Larry Tom Whittington returned to Shepard’s apartment on September 7, placed the bodies of Maureen and Telesforo Bautista inside a hollow bedroom dresser, and, on the following day, defendant and Rambo transported the makeshift coffin to the Rambos’ residence. Defendant thereafter told Susan Rambo that he and her husband were departing for Los Angeles for the purpose of removing defendant’s belongings from Maureen Bautista’s apartment, and that if anyone asked about him or Maureen, she should reply by stating that she had not seen them in weeks.

Whittington testified that he and Patricia Shepard returned to Shepard’s apartment to scrub off the bloodstains. He testified that he was able to remove the bloodstains, except for those on the carpet, which required repeated efforts at cleaning. Shepard testified, on cross-examination, that she had purchased the carpet cleaner and other materials that were used to clean her apartment following the killings.

After defendant and Greg Rambo departed for Los Angeles, Rambo called his wife and requested that she ask his cousin, Doug Frederick, to obtain a backhoe and dig an eight-foot by ten-foot hole in the Rambos’ backyard. Rambo instructed his wife to tell Frederick that the hole was needed for the construction of a new drainage system for the Rambos’ dog kennels. Susan Rambo did so.

Doug Frederick testified that he dug the hole on September 6, 7, or 10, 1984; Susan Rambo testified that she awoke on a Monday morning to the sound of a backhoe operating on the property, a circumstance suggesting that Frederick had dug the hole on Monday, September 10. She testified that the hole appeared to be “a couple hundred feet behind the house in the back comer of the lot.” Following defendant’s return to Shandon, Susan Rambo noticed the presence of several bags and boxes in her garage, including a computer that defendant had given Telesforo Bautista, a television, a stereo, and some guns.

At defendant’s request, she purchased cement, bags for the bodies, and a needle to sew up the bags. Defendant told her he intended to place one foot of cement over the Bautistas’ bodies. Susan Rambo testified that during the next few days, she observed defendant shoveling dirt into the hole for periods of up to one hour at a time. 6. Defendant’s conduct following his entombment of the Bautistas’ bodies Defendant resided with the Rambos until late November or December of 1984.

On numerous occasions during this period, Susan Rambo heard defendant refer to “snitches.” Once defendant told her, “You know what happens to snitches,” then removed a butcher knife from a magnetic rack on her kitchen wall and, declaring the knife to be “just about right,” made several stabbing or slashing motions. She testified that on another occasion, defendant popped open a switchblade knife that “he would play with . . . constantly,” and used it to stab a cardboard box that she was carrying. Defendant also told her that the ghost of Maureen Bautista was haunting him.

Susan Rambo testified that defendant moved out of the Rambos’ residence in late 1984 to a trailer house on her father’s property in Parkfield, where defendant continued to manufacture methamphetamine in the course of the ensuing few months. Harlyn Codd testified that in February 1985 he and defendant were watching a violent movie at Codd’s residence in Porterville, and that defendant confessed to having committed the Bautista murders.

According to Codd, the movie nauseated defendant, who remarked that the film reminded him of what had happened to Maureen Bautista and to “the kid.” Defendant stated to Codd that he had “offed” the Bautistas by “cut[ting] them up.” 7. The murder of Greg Rambo, and the disposal of his body Although the present appeal does not involve defendant’s conviction for the murder of Greg Rambo (see fh. 2, ante), the jury heard evidence, summarized below, related to that murder.

Much of this evidence was introduced by the defense during its cross-examination of prosecution witnesses, in an effort to undermine the witnesses’ credibility by introducing evidence of their odd behavior, complicity, and deception in the aftermath of Greg Rambo’s murder. Susan Rambo testified (on cross-examination) that her husband had pistol-whipped her and placed a handgun to her head on January 23, 1985, because he was angry over her failure to notice a pickup truck that had parked in their backyard.

She testified: “He told me he would give me five minutes to get my stuff and get out.” The Rambos separated, and Susan went to live with her parents in Parkfield. Susan Rambo further testified that she last had seen her husband alive on February 19, 1985—on an occasion when he was in a rage. On the following day, defendant telephoned her to say her husband would “never bother her again.” She feared defendant’s comment meant her husband was dead.

Defendant requested that she acquire a tarp or some other object that could be used to dispose of various items (which he did not identify), and she obtained a sleeping bag. Defendant also asked to borrow her father’s bulldozer to dig a hole, but her father refused. Harlyn Codd testified that in February 1985 defendant telephoned him and said, “Greg’s dead. I killed him." According to Codd, defendant told him he had shot Rambo three times. Because Codd was intoxicated at the time of defendant’s, telephone call, Codd refused defendant’s invitation to visit him that day in Parkfield.

Codd met defendant the following day, and the two of them went to Parkfield to retrieve Greg Rambo’s body from a shed. Codd testified that defendant feared Rambo “was going to be a snitch and he offed him.” Rambo’s body was wrapped in a sleeping bag and a blanket when Codd saw it. Resolving to move the body at a later date, defendant and Codd proceeded to defendant’s trailer, where defendant freebased cocaine. Codd also ingested cocaine in order to remain awake, because he did not trust defendant.

Codd further testified defendant said he “wanted to cut [Rambo’s body] up, stick dynamite in him and blow it up, cut his hands off, knock his teeth out, disfigure him to leave no identification marks or anything ... so [Rambo] couldn’t be identified.” Instead, the pair drove to Tulare County, deposited Rambo’s body in an orange grove, and returned thereafter to Codd’s residence. The following morning, Codd and defendant retrieved Rambo’s body, transported it to an isolated

section of the county, and dumped it in a ravine known as Deer Creek Canyon. Codd acknowledged selecting the site and on cross-examination stated that after defendant’s arrest, he led sheriff’s deputies to the spot where he and defendant had dumped the body. Wayne James testified that at some point after selling defendant a vehicle in February 1985, defendant threw him a spent .38 cartridge, telling James it was the shell that had killed Greg Rambo. Defendant informed James that he and Harlyn Codd had disposed of Rambo’s body the previous evening in a ravine located outside Porterville.

On March 3, 1985, in view of Greg Rambo’s extended absence from the Shandon residence he had occupied with his wife Susan, she filed a missing person’s report with the San Luis Obispo County Sheriff’s Department.

She testified on cross-examination that despite her awareness (on that date) of evidence suggesting her husband’s violent demise, she nonetheless was not certain at that time that he was dead, and simply “did not know where he was.” She acknowledged being the beneficiary of her husband’s $100,000 life insurance policy, and telling defendant she needed to locate her husband’s body in order for her to be able to collect the insurance proceeds.

Susan Rambo also acknowledged that after cleaning up the Parkfield shed that had concealed her husband’s body prior to its removal by defendant and Harlyn Codd, she assisted friends in searching for her husband. She acknowledged telephoning her husband’s answering machine several times in the presence of other persons in an effort to fool them into believing she was attempting to locate him.

She testified she engaged in the foregoing unusual activity and refrained from calling the authorities, because she feared defendant, Whittington, and Whittington’s brother, Bill, each of whom, she said, “carried machine guns and automatic weapons.” 8.

Defendant’s arrest Susan Rambo testified that near the end of February 1985, she was “very upset,” and defendant told her he did not believe she “was going to hold up in front of questioning or . . .be able to keep up [her] part.” She stated that defendant gave her his driver’s license, admonishing her: “Here, I want you to be sure and get my name right if you snitch, if you go to the cops.” Susan Rambo interpreted defendant’s remark—made as his gun lay on the bed near them—as an odd and “rather macho” dare.

She replied that she was attempting to stay out of town so as to avoid questions and the possibility of breaking down and becoming a “snitch.” Defendant told her he was “ready for the gas chamber . . . ready any time.” On March 6, 1985, Susan Rambo contacted the Kern County Sheriff’s Department. Her statements led two days later to the excavation, by law enforcement officials, of two decomposed bodies located inside a dresser buried beneath a layer of cement behind the Rambos’ residence. Dental records confirmed that the bodies were those of Maureen and Telesforo Bautista.

Defendant was arrested at a coffee shop in Gorman on March 14, 1985, claiming at the time that his name was Richard Brokaw, a name he had used in registering at a nearby motel. Defendant’s wallet contained documents or identification in five names, including his own and that of Greg Rambo. A search by law enforcement officers of defendant’s vehicle and motel room resulted in the seizure of several types of ammunition, including three boxes of high power .38-caliber ammunition, loose cartridges, a clip, and shotgun shells.

Shortly after his arrest, defendant telephoned Codd, stating that defendant had been “snitched off’ and was “going to get the pill.” 9. Physical evidence Dr. Karl Kirschner, a forensic pathologist, testified that he conducted autopsies on the Bautistas’ bodies on March 9, 1985, one day after law enforcement officials had exhumed the bodies. He opined that the bodies had been buried for at least four months. Narrow cuts in the victims’ clothing suggested that the victims had been stabbed repeatedly. Kirschner testified that the larger body (Maureen’

s) had been stabbed 11 times in the chest, and he opined the victim had died as a result of those wounds. Because each of the wounds pierced the chest cavity, Kirschner believed “any one of them could have been fatal.” Kirschner also stated that while this victim still was alive, she suffered two stab wounds in her jaw. Kirschner testified that the smaller body (Telesforo’

s) had been stabbed five times in the chest and twice in the back. Expert witnesses testified that blood spatters identified in Patricia Shepard’s comer bedroom were consistent with the infliction of stab wounds and with the victims’ blood types, and that the spatters also indicated the presence of commercial detergent products. A bloodstain extending more than five feet across the living room carpet suggested that a bloody body had been dragged across the floor. Carpet fibers found within the dresser were consistent with those obtained from Shepard’s apartment. 10.

Defendant’s statement, “They can only gas me once” Richard Lee, an investigator for the Monterey County District Attorney, testified that on April 4, 1985, defendant, while incarcerated in the Monterey County jail (in connection with the Parkfield murder of Greg Rambo), asked, “So you guys aren’t going to try me; is that right?” Lee replied that defendant would be tried in Kem County for the Bautista killings committed in Bakersfield, and in Monterey County for the Rambo killing. Defendant responded, “They can only gas me once. They can only take my wheels one time.

Do you know what I mean?” Lee responded, “Come on Bob, that’s negative vibes.” Defendant laughed and said, “Yeah, negative vibes, that’s right. I’m still breathing and there’s a few people who ain’t.” Defendant then laughed again. B. The defense case The defense sought to establish that participants in the Shandon drug operation, other than defendant, had a financial motive that might have led one or more of them to commit the Bautista murders, as well as the murder of Greg Rambo.

With that objective, the defense introduced the testimony of 15 witnesses in an effort to cast doubt upon the credibility of key prosecution witnesses whose testimony had implicated defendant in all 3 murders. In particular, the defense offered testimony aimed at impugning the credibility of Whittington by highlighting his evasive and occasionally contradictory pretrial testimony. The defense also introduced testimony directed at undercutting Susan Rambo’s credibility as a prosecution witness by highlighting her odd behavior in the immediate aftermath of her husband’s disappearance.

The defense additionally sought to suggest that Susan Rambo might have been involved in her husband’s murder, and that her motivation to hasten his demise had been fueled by lust and greed—a desire to pursue an intimate relationship with defendant, and a desire to collect on her husband’s life insurance policy. II. Penalty Phase Evidence A. The prosecution’s case The prosecution introduced stipulations it had entered into with the defense establishing that defendant had been convicted of second degree burglary in 1972 and possession of a silencer in 1981, both felonies.

Over objections of defense counsel, the prosecution also introduced the testimony of witnesses regarding defendant’s possession of firearms in 1981 and 1982, and his involvement in an alleged kidnapping that occurred in 1982. We briefly summarize the prosecution’s evidence regarding the firearms and the kidnapping. Douglas Gerst, a police officer employed by the City of Los Angeles, testified that in 1981, during two searches of a residence located in Canoga Park, he recovered numerous weapons, including a Mac Ten machine gun (with silencer), two automatic pistols, six revolvers, six rifles, and twelve shotguns.

The prosecution introduced photographs of the machine gun and silencer. Gerst testified that thousands of rounds of ammunition were found inside the residence. Utility receipts established that the premises were defendant’s residence. Diane Sems described an incident in June 1982 in which an acquaintance of hers, Terry Fabricant, forced her into a pickup truck that was driven by another man. Sems was blindfolded, driven to a residence that she did not recognize (and where she observed guns), and forced by Fabricant to ingest drugs.

After Fabricant fell asleep a few hours later, she escaped; the next day, no longer under the influence of drugs, she identified the driver of the pickup truck in a police photo lineup. Sems testified that defendant resembled the driver of the pickup truck, although she was uncertain and, in fact, acknowledged on cross-examination that she could not identify the driver. To bolster Diane Sems’s testimony, the prosecution introduced the testimony of Terry Fabricant, who stated that he had been an acquaintance of defendant’s in June 1982 and that defendant drove a pickup truck at that time.

Fabricant was not questioned (and did not testify) regarding the facts underlying the alleged kidnapping. To further corroborate Sems’s story, the prosecution introduced the testimony of Philip Quartararol, a police detective employed by the City of Los Angeles. Quartararol testified that he had conducted the photo lineup recalled by Sems, that Sems had identified defendant during that lineup, and that Sems did not appear at that time to be under the influence of drugs.

Quartararol also testified that he had obtained a search warrant for the same residence that Officer Gerst had searched one year earlier, and in the ensuing search had recovered two semiautomatic weapons, two shotguns', and several thousand rounds of ammunition. On cross-examination, Quartararol acknowledged that, under the law in effect at the time he conducted the search in 1982, a felon’s possession of the firearms he discovered was not illegal, because the weapons were not concealable. B.

The defense case At the penalty phase, the defense presented evidence in mitigation relating to defendant’s prison history, his upbringing and character, and his cordial relationship with a woman and her young daughter. A document summarizing defendant’s prison history indicated that defendant had adjusted well to prison.

Defense counsel argued that this document demonstrated that defendant had been a “model prisoner.” The testimony of Russell Garceau, defendant’s younger brother, was introduced in an effort to demonstrate positive attributes on the part of defendant as well as the repeated adversity that defendant had faced throughout his life. This testimony indicated that defendant had been an intelligent child, had won poetry and art contests, and was an avid reader.

As a youth, defendant developed bone disease in his ankle that required frequent hospitalization and caused defendant to miss “quite a bit of his childhood.” Defendant’s brother testified that his father had collected firearms, and when defendant was enrolled in junior high school, defendant had brought a gun to school and then, deciding that was the wrong thing to do, had given it to a school administrator with whom defendant had maintained a good relationship. According to this testimony, defendant was arrested and placed in a detention hall, where he frequently was beaten.

Defendant’s brother further testified that at 16 years of age, defendant joined the Army, serving both domestically and in Vietnam, after which he was honorably discharged in 1968. Upon defendant’s return from Vietnam, he seemed embittered and began to commit burglaries, leading to his arrest and imprisonment. Defendant had been proud to be “one of the few [inmates not] involved in violence or dope.” In 1976, defendant rented three or four acres of land in Chatsworth, set up a horse ranch, and attempted to start a hayriding business.

Defendant’s brother believed that defendant was not involved in criminal activity during the two or three years he lived on the ranch, and that he had not owned any guns during this period. When the land thereafter was sold, defendant was compelled to sell his possessions and leave the ranch. Defendant’s brother further testified that defendant had a generous nature, noting, for example, that “he used to borrow money from me to give to the blind man . . . .” Defendant always had repaid his debts, and made three years of automobile loan payments for the widow of a deceased business partner.

Defendant often forgave loans that he had made to others. After his father’s death, defendant visited and kept in touch with his mother, who resided in Ohio. Defendant’s brother testified that during the 1980’s, defendant “started on drugs . . . that’s when I saw his whole personality change . .. .. . Up to that time I thought he was probably the most honorable person Í had ever met ....

Then he started getting involved in cocaine and then all of a sudden he wouldn’t show up when he was supposed to, he wasn’t paying back like he used to pay back his loans and in a sense, to me, became flaky, his whole life seemed to change at that time. . . .” The defense also introduced the testimony of Starr Calliez, who described defendant as being “very sensitive [and] very considerate.” Calliez stated that in 1973, she was an acquaintance of defendant’s brother, who mentioned at that time that he had a brother in prison.

Calliez began corresponding with defendant, visited him in prison many times, and developed an intimate relationship with him following his release. Calliez stated that defendant was “very friendly and nice” to her six-year old daughter, buying her gifts, and that the three of them engaged in activities as a family. Calliez acknowledged that defendant had not adjusted easily to life outside prison but noted that during their relationship, she never had known defendant to use drugs or resort to violence.

Calliez’s close relationship with defendant ultimately ended, and thereafter, in 1983, she married someone else. Calliez was “shocked” to learn of defendant’s possible involvement in the illegal activities described at trial. Notwithstanding the evidence establishing defendant’s murder of a mother and a child, Calliez still would feel comfortable in the event she and her daughter were to be alone in defendant’s company. Dissussion I. Jury Selection Issues A.

Alleged Wheeler error Defendant contends the prosecutor employed peremptory challenges purposefully to exclude Hispanic-sumamed women from the jury, and that the trial court committed prejudicial error in denying defendant’s motions for mistrial based upon our decision in People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. The prosecutor exercised peremptory challenges to remove the following prospective jurors: Sharon Montoya, Dolores Nejera, Jane Chavez, Lucy Martinez, and Hope Vasquez.

Immediately following the excusal of Vasquez, defense counsel moved for a mistrial on the ground that the prosecutor improperly had exercised peremptory challenges on the basis of group bias, resulting in the purposeful exclusion of Hispanic-sumamed women. Defense counsel made a second motion for mistrial pursuant to Wheeler immediately following the prosecution’s exercise of a peremptory challenge against Rita Asuncion, the sixth and sole remaining Hispanic woman on the panel.

The trial court denied the Wheeler motions, finding in each instance that defendant had failed to establish a prima facie case of discrimination. (See People v. Wheeler, supra, 22 Cal.3d at p. 280.) On appeal, defendant contends that the trial court erred in denying his motions for mistrial. As we shall explain, we reject defendant’s argument, because the record supports the trial court’s findings that a prima facie case of discrimination was not established. Recently, in People v.

Sims (1993) 5 Cal.4th 405, 428 [20 Cal.Rptr.2d 537, 853 P.2d 992], we restated the applicable law: “Under the principles articulated in Wheeler, supra, 22 Cal.3d 258, 276-277, a party may not employ peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Wheeler, supra, 22 Cal.3d at p. 276; People v. Fuentes (1991) 54 Cal.3d 707, 713 [286 Cal.Rptr. 792, 818 P.2d 75]; see Powers v.

Ohio (1991) 499 U.S. 400 [113 L.Ed.2d 411, 111 S.Ct. 1364].) ‘If a party believes an opponent is improperly using peremptory challenges for a discriminatory purpose, that party must make a timely objection and a prima facie showing that the jurors are being excluded on the basis of group bias. [Citation.] To establish a prima facie case, the moving party should first make as complete a record as possible; second, the moving party must establish that the persons excluded are members of a cognizable group; and third, the moving party must show a strong likelihood that the persons are being excluded because of group association.’ (Fuentes, supra, 54 Cal.3d at p. 714.) Once the moving party has established a prima facie case, the burden shifts to the other party to come forward with a group-neutral explanation for the exercise of the challenges related to the particular case being tried. (Wheeler, supra, 22 Cal.3d at pp. 281-282; Fuentes, supra, 54 Cal.3d at p. 714.)” In the present case, defendant’s motions for mistrial were timely made.

Also, we assume that defendant is correct in asserting, without challenge by the People, that Hispanic-sumamed women constitute a “cognizable group” under Wheeler. (See People v. Clair (1992) 2 Cal.4th 629, 652 [7 Cal.Rptr.2d 564, 828 P.2d 705]; People v. Motion (1985) 39 Cal.3d 596, 605-606 [217 Cal.Rptr. 416, 704 P.2d 176] [Black women are a cognizable subgroup]; see also People v. Trevino (1985) 39 Cal.3d 667, 686 [217 Cal.Rptr. 652, 704 P.2d 719] [Hispanics are a cognizable group for purposes of Wheeler], disapproved on another point in People v.

Johnson (1989) 47 Cal.3d 1194, 1219-1221 [255 Cal.Rptr. 569, 767 P.2d 1047].) Nevertheless, defendant failed to show a “strong likelihood” that these prospective jurors were excluded because of a group association. His motions merely reiterated the names of the jurors removed by the prosecution and alleged that, because the removed jurors all were Hispanic-surnamed women, he had made a “prima facie showing.” Thus, the factual context underlying defendant’s motions resembled that described in People v. Howard (1992) 1 Cal.4th 1132, 1154 [5 Cal.Rptr.2d 268, 824 P.2d 1315].

In Howard, the defendant relied solely upon the circumstance that the prosecutor’s peremptory challenges had been directed toward the only two Black jurors. (Ibid.) In this case, as in Howard, the defendant “did not make any effort to set out the other relevant circumstances, such as the prospective jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the prospective jurors’ answers to questions.” (Ibid.) “[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial court’s ruling.

Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with ‘considerable deference’ on appeal. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm. [Citation.]” (People v. Howard, supra, 1 Cal.4th at p. 1155.) The trial court observed that there were grounds upon which the prosecutor reasonably might have challenged the jurors in question: “Certainly as to Mrs. Vasquez, she repeatedly claimed hardship and was very dissatisfied when I told her she couldn’t be excused.

I don’t see why the People should be required to keep her. ... I know Mrs. Chavez had medical problems, we had a hard time getting her in, she wanted to be excused. Martinez was very difficult getting her in, Nejera was in her first trimester of pregnancy and Montoya I just don’t recall.” The record supports the trial court’s denial of defendant’s motions. Based upon hardship, Hope Vasquez expressed reluctance to serve as a juror, mentioning a logistical difficulty related to the transportation of her daughter to school and her own travel to court for the trial.

Dolores Nejera stated that some members of her family had run afoul of the law and had been incarcerated; one was a fugitive. Sharon Montoya expressed strong reservations relating to the responsibility she would face in the event the trial reached the penalty phase, indicating she did not believe anyone had the right to take the life of another person, and expressed concern based upon having heard of “innocent people being sentenced all the time.” Lucy Martinez’s contradictory responses to questions presented to her during voir dire examination suggested that she might have difficulty comprehending the questions.

Jane Chavez also provided contradictory responses regarding her views on the death penalty, stated that she found the law confusing and probably would forget testimony, and opined that serving as a juror in this case “would be awful.” Rita Asuncion, whose removal led to defendant’s second Wheeler motion, indicated it was difficult for her to understand the concept of reasonable doubt, as well as the distinction between the guilt and penalty phases of the trial.

Defendant contends that the trial court’s observations regarding the presence of other Hispanic-sumamed individuals who remained on the panel suggest that its denial of defendant’s Wheeler motions stemmed from the court’s failure to recognize Hispanic-sumamed women as a cognizable class. We disagree. The record is clear that the trial court’s denial of defendant’s motions for mistrial was based upon its consideration of the individual jurors’ responses on voir dire, and the record is sufficient to support the trial court’s conclusion that a prima facie case of discrimination was not established.

We conclude the trial court properly found that defendant failed to satisfy the Wheeler requirement that he establish a prima facie case of discrimination. (See People v. Howard, supra, 1 Cal.4th at pp. 1153-1156; People v. Hayes (1990) 52 Cal.3d 577, 605-606 [276 Cal.Rptr. 874, 802 P.2d 376]; People v. Bittaker (1989) 48 Cal.3d 1046, 1092 [259 Cal.Rptr. 630, 774 P.2d 659] [prima facie case of discrimination not established where challenged jurors’ responses indicated a proper basis for their excusal]; see also People v.

Sims, supra, 5 Cal.4th at pp. 428-432.) We also reject defendant’s claim of federal constitutional error involving his rights to a fair trial and to equal protection of the laws. Having failed to raise the Sixth Amendment claim below, defendant has waived this issue. (People v. McPeters (1992) 2 Cal.4th 1148, 1174 [9 Cal.Rptr.2d 834, 832 P.2d 146].) Each claim also is substantively deficient; although defendants have a right to a jury drawn from a fair cross-section of the community, they have no right to a jury that reflects the racial composition of the community. (Holland v.

Illinois (1990) 493 U.S. 474, 480, 482-483 [107 L.Ed.2d 905, 916, 918, 110 S.Ct. 803]; see also Taylor v. Louisiana (1975) 419 U.S. 522,538 [42 L.Ed.2d 690,702-703,95 S.Ct. 692].) Defendant’s equal protection claim lacks merit because, as discussed above, the trial court’s finding that defendant failed to make a prima facie showing that the jurors were excluded on the basis of group bias is supported by the record. (Cf. Johnson v. Vasquez (9th Cir. 1993) 3 F.3d 1327.) B.

Alleged wrongful failure to exclude jurors for cause Defendant contends the trial court improperly denied defense motions to excuse for cause three prospective jurors who possessed views favoring the death penalty that defendant alleges would have impaired their ability to be fair and impartial. The three prospective jurors never were impaneled, however, having been excused following defense counsel’s exercise of peremptory challenges against them.

Defendant nonetheless argues that the trial court’s failure to exclude these prospective jurors for cause violated his rights to a fair and impartial jury under the federal and state Constitutions. Both Constitutions guarantee a defendant a trial by an impartial jury. (Williams v. Superior Court (1989) 49 Cal.3d 736, 739-740 [263 Cal.Rptr. 503, 781 P.2d 537].) A juror may be challenged for cause based upon his or her views of capital punishment if those views would prevent or substantially impair the performance of the juror’s duties in accordance with the court’s instructions and the juror’s oath. (Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844].) A defendant who claims that the trial court wrongly denied a challenge for cause must demonstrate that his or her right to a fair and impartial jury was affected. (People v. Bittaker, supra, 48 Cal.3d at pp. 1087-1088.) Defendant fails to make the requisite showing. At the time the jury was sworn, he had 16 peremptory challenges remaining. Thus, defendant cannot demonstrate that his ability to excuse peremptorily any other juror was affected by his decision to exercise peremptory challenges against the three jurors in question. (People v.

Raley (1992) 2 Cal.4th 870, 904-905 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Kelly (1992) 1 Cal.4th 495, 518-519 [3 Cal.Rptr.2d 677, 822 P.2d 385]; People v. Howard (1988) 44 Cal.3d 375, 419, fn. 17 [243 Cal.Rptr. 842, 749 P.2d 279].) Because defendant did not exhaust his peremptory challenges, he must justify his failure to do so. (People v. Bittaker, supra, 48 Cal.3d at pp. 1087-1088.) He contends the presence of five other “pro-death” persons remaining among the jury venirepersons on the panel inhibited defense counsel’s exercise of peremptory challenges. We rejected a similar argument in People v.

Price (1991) 1 Cal.4th 324, 401-402 [3 Cal.Rptr.2d 106, 821 P.2d 610], noting that defendant had failed to demonstrate that exhausting his remaining peremptory challenges would have led to the seating of a juror subject to removal for cause. In the present case, if defendant was dissatisfied with the jury as comprised, he could have exercised his remaining peremptory challenges, regardless of the views of venirepersons yet to be impaneled. No error appears. C. Alleged Witt error Defendant contends the trial court erred when it dismissed for cause prospective juror Cathy Wilken.

During voir dire examination, Wilken explained she had a “bias” against the death penalty and did not believe she could vote in favor of a death verdict. Her responses nonetheless were somewhat equivocal; she acknowledged the possibility she could vote in favor of the death penalty. When asked whether she could evaluate penalty phase evidence pursuant to the trial court’s instructions and vote in favor of the death penalty if that were the appropriate punishment, however, Wilken replied, “I truly don’t know.” In excusing Cathy Wilken, the trial court relied upon Wainwright v.

Witt, supra, 469 U.S. 412, in which the United States Supreme Court held that a juror is disqualified from serving in a capital case if his or her views regarding the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”’ (Id. at p. 424 [83 L.Ed.2d at pp. 851-852], fn. omitted.) This court has adopted the Witt standard. (People v.

Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) Our task on review is to determine whether the trial court’s finding that the juror’s beliefs would “substantially impair the performance” of the juror’s duties is fairly supported by the record. (People v. Johnson, supra, 47 Cal.3d at p. 1223 [quoting Darden v. Wainwright (1986) 477 U.S. 168, 175 [91 L.Ed.2d 144, 153-154, 106 S.Ct. 2464]; see also People v. Cox (1991) 53 Cal.3d 618, 646-647 [280 Cal.Rptr. 692, 809 P.2d 351]; People v.

Daniels (1991) 52 Cal.3d 815, 875 [277 Cal.Rptr. 122, 802 P.2d 906].) The record supports the trial court’s finding. Wilken’s responses indicated she was troubled by the prospect of sitting on a penalty phase jury and was uncertain whether she could set aside her bias against the death penalty in favor of weighing the evidence and following the trial court’s instructions. Under these circumstances, the trial court properly could find that her views would “substantially impair the performance” of her duties at the penalty phase. Accordingly, no error appears. D.

Cumulative effect of assigned errors Defendant contends the cumulative effect of the alleged jury-selection errors warrants reversal. In view of our foregoing discussion finding no error, we reject this contention. II. Guilt Phase Issues A. Defendant’s motion to strike “the Nash testimony” At the conclusion of the prosecution’s case-in-chief, the defense moved to strike the testimony of prosecution witnesses Eddie Nash, Tony Sylvester, Ronald Coen, and Michelle Christie (whose collective testimony we refer to as “the Nash testimony”). The motion to strike was made upon relevancy grounds and under Evidence Code

section 352. Outside the presence of the jury, the parties argued the relevancy of the evidence, and whether the evidence unfairly sought to establish defendant’s “guilt by association” with Nash, a man defense counsel described as “obviously disreputable.” The trial court denied the motion to strike, accepting the prosecution’s argument that the testimony was relevant to three distinct issues—defendant’s motive, defendant’s state of mind, and the corroboration of other witnesses’ testimony. The trial court found that the evidence was not unduly prejudicial.

On appeal, defendant contends the trial court committed reversible error in denying his motion to strike. Defendant argues this evidence was irrelevant under Evidence Code

section 210 and, even if the evidence was relevant, the trial court abused its discretion under Evidence Code

section 352 because the probative value of the evidence was substantially outweighed by the possibility it would unduly prejudice defendant. We shall address these contentions in turn. 1. The evidence satisfied Evidence Code

section 210 The central issue at trial was the identity of the person who fatally stabbed Maureen and Telesforo Bautista. The prosecution sought to establish that defendant had both the motive (fear of “snitches”) and the opportunity (time spent alone with the victims, and their trust of him) to commit the murders.

The prosecution offered the “Nash testimony” in order to help establish the identity of the killer, insofar as the evidence suggested that: (1) defendant had a motive to kill Maureen; (2) defendant’s state of mind could have led him to commit the killings; and (3) the “Nash testimony” corroborated the testimony of other prosecution witnesses.

In contrast, the defense theory was that defendant was not the perpetrator of the killings, that he lacked the motive to commit the crimes in view of his close relationship with the victims, and that the killings more likely were committed by a third party, such as Larry Tom Whittington, who was involved in a lucrative drug operation and had no personal relationship with the victims. In determining the admissibility of the challenged evidence, we apply well-settled rules. Only relevant evidence is admissible. (Evid. Code, § 350; People v.

Babbitt (1988) 45 Cal.3d 660, 681 [248 Cal.Rptr. 69, 755 P.2d 253].) Relevant evidence is defined in Evidence Code

section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The test of relevance is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. (People v. Daniels, supra, 52 Cal.3d at p. 856; People v. Alcala (1984) 36 Cal.3d 604, 631 [205 Cal.Rptr. 775, 685 P.2d 1126].) The trial court retains broad discretion in determining the relevance of evidence. (People v.

Babbitt, supra, 45 Cal.3d at p. 681.) The “Nash testimony” was relevant to demonstrate defendant’s motive for killing the Bautistas and to establish premeditation, in view of defendant’s frequently voiced hatred of “snitches” and his expressed fear that Maureen Bautista would “snitch him off’ to Eddie Nash. The “Nash testimony” suggested that defendant’s motive in killing the Bautistas was self-preservation—a desire to avoid having Nash, a man with a reputation for violence, learn of defendant’s whereabouts and activities.

In the absence of physical evidence linking defendant to the Bautista killings, the presence of a motive was particularly significant in this case. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1027-1028 [254 Cal.Rptr. 586, 766 P.2d 1] [evidence of spousal rape charge of which defendant was acquitted held relevant to issue of motive in prosecution for murder of the spouse]; People v.

Thompson (1988) 45 Cal.3d 86, 109 [246 Cal.Rptr. 245, 753 P.2d 37] [motive an important issue where defense asserts that defendant and victim had a good relationship].) We therefore discern no error in the trial court’s determination that the “Nash testimony” was relevant. 2. The “Nash testimony” was not unduly prejudicial Defendant contends that even if the “Nash testimony” were relevant, the trial court committed reversible error in failing to exclude it as unduly prejudicial pursuant to Evidence Code

section 352. Defendant further contends that, contrary to the admonition contained in numerous decisions of this court (see, e.g., People v. Edelbacher, supra, 47 Cal.3d 983, 1016-1017, and cases cited), the trial court failed to state on the record that it had weighed prejudice against probative value. The basis for defendant’s motion to strike pursuant to Evidence Code

section 352 was his assertion that the prosecution improperly sought to link defendant with Nash based upon testimony likely to compel the jury to speculate as to defendant’s guilt by reason of Nash’s illegal activities, reputation, and previous encounters with the law. In opposing the motion, the prosecution relied upon this court’s decision in People v. Wright (1985) 39 Cal.3d 576, 585 [217 Cal.Rptr. 212, 703 P.2d 1106], in which we adopted the following view: “ ‘The “prejudice” referred to in Evidence Code

section 352 applies to evidence which uniquely tends to evoke an emotional bias against. . . [one party] as an individual and which has very little effect on the issues.’ ” (Ibid., quoting People v. Yu (1983) 143 Cal.App.3d 358, 377 [191 Cal.Rptr. 859]; see also People v.

Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189].) After hearing the parties’ arguments as to the alleged probative value and prejudicial effect of the “Nash testimony,” the trial court took the matter under submission, noting on the record four days later that it was denying the motion based upon the prosecution’s arguments and would consider giving the jury a limiting instruction. We discern no error in the trial court’s ruling.

The admission of the “Nash testimony” did present a risk of undue prejudice to defendant in view of Nash’s criminal conduct, his violent reputation, and his prior association with defendant. Nevertheless, the danger that the jury might rely upon the “Nash testimony” for an improper purpose (e.g., to conclude that defendant also was a violent individual) was minimized by the trial court’s decision to give a limiting instruction.

That instruction directed the jury to consider the “Nash testimony” only if it tended to establish the identity and the motive of the perpetrator of the killings, defendant’s state of mind at the time of the killings, corroboration of other evidence, or the credibility of any other witness. The instruction directed the jury not to consider the “Nash testimony” as proof that defendant had a bad character or a disposition to commit crimes. Under these circumstances, we conclude that the risk of undue prejudice was not great.

By contrast, the probative value of the “Nash testimony” was considerable, because it bore directly upon the issue of defendant’s motive to kill the Bautistas. In light of the testimony that defendant had told others that he feared Maureen Bautista would inform Eddie Nash of defendant’s whereabouts, evidence pertaining to Nash’s past criminal conduct and violent reputation plainly was of substantial importance in explaining why defendant might have killed a close acquaintance and her son.

Moreover, the trial court’s limiting instruction rendered it unlikely that the testimony establishing defendant’s former association with Nash would evoke an emotional bias against defendant. Although the “Nash testimony” might have been damaging to defendant, it was not unduly prejudicial. (See People v. Karis, supra, 46 Cal.3d at pp. 637-638.) We conclude that, in admitting the “Nash testimony,” the trial court did not abuse its discretion under Evidence Code

section 352, because it properly could find that the probative value of the testimony outweighed its prejudicial effect. Nor do we discern error in the trial court’s failure to provide a more precise description of the weighing process it engaged in pursuant to Evidence Code

section 352. The parties argued at length the issue of alleged probative value versus prejudice. The trial court, after taking the matter under submission, denied defendant’s motion to strike, stating: “The Court accepts the arguments of the People regarding the offer of the testimony. The Court will consider a limiting instruction. . . .” The record, including the trial court’s comments, sufficiently establishes that the court weighed and rejected the arguments of defense counsel. (People v. Clair, supra, 2 Cal.4th at p. 660; People v. Edelbacher, supra, Al Cal.3d atpp. 1016-1017.) B.

Defendant’s admission Defendant contends the trial court erred in permitting Richard Lee to testify regarding his conversation with defendant at the Monterey County jail, during which (according to Lee’s testimony) defendant said: “They can only gas me once. They can only take my wheels one time. . . . I’m still breathing and there’s a few people who ain’t.” Defendant argues that Lee’s testimony was hearsay and, in the alternative, irrelevant.

He further claims that the probative value of the testimony hinged upon unreasonable speculation that his comments to Lee evinced a consciousness of guilt, thereby abridging his right to due process of law under the federal and state Constitutions. Defendant has waived any claim of error involving the admission of Lee’s testimony, by reason of defense counsel’s failure to object on the hearsay and relevancy grounds now raised on appeal (or on any other ground, for that matter). (Evid. Code, § 353, subd. (a); People v.

Ghent, supra, 43 Cal.3d at p. 766.) Furthermore, even if defendant had raised a timely objection, his claim is substantively without merit, because the jury reasonably could have viewed defendant’s statement to Lee—a nonhearsay statement not offered for the truth of the matter asserted—as an implied admission of guilt. (See People v. Miranda (1987) 44 Cal.3d 57, 83-84 [241 Cal.Rptr. 594, 744 P.2d 1127] [defendant’s actions at the time of his arrest were relevant to establish his consciousness of guilt and his knowledge of the magnitude of the crime], and People v.

Mendoza (1987) 192 Cal.App.3d 667, 675-676 [238 Cal.Rptr. 1] [defendant’s statements were not hearsay, because they were not offered for the truth of the matters asserted, but “were properly characterized as admissions since an admission simply is any extrajudicial statement—whether inculpatory or exculpatory— ‘which tends to prove his guilt when considered with the rest of the evidence’ ” (quoting CALJIC No. 2.71)].) C.

Admission of photographs and physical evidence Over the objections of defense counsel, the trial court admitted into evidence a photograph depicting the victims’ bodies shortly after they were unearthed, a photograph depicting a superficial depression of Maureen Bautista’s sternum, which Dr. Karl Kirschner opined was the result of a knife wound, four small tissue samples taken from the victims, and Maureen Bautista’s jawbone, demonstrating a penetrating stab wound.

The prosecution offered the foregoing evidence to establish the identity of the victims, to corroborate the prosecution’s expert testimony (that the victims had been killed in Patricia Shepard’s apartment), and to establish that defendant had acted with malice.

In an effort to preclude admission of the challenged evidence, defense counsel offered to stipulate that Larry Tom Whittington assisted in placing the bodies in the dresser, that Maureen Bautista’s death was caused by a blow of considerable force, that the jawbone had comprised part of her anatomy, and that the bodies unearthed were those of Maureen and Telesforo Bautista.

After the prosecution rejected the stipulation, the trial court admitted the challenged evidence. ■ On appeal, defendant challenges the trial court’s rulings on three grounds: (1) the evidence was irrelevant; (2) even if relevant, the probative value of the evidence was outweighed by its prejudicial effect, and therefore the evidence should have been excluded under Evidence Code

section 352; and (3) the trial court, in exercising its discretion under Evidence Code

section 352, failed to engage in a meaningful weighing of probative value against prejudice. Defendant implicitly contends that the trial court should have required the prosecution to accept the proffered stipulation. The challenged evidence clearly was supportive of the prosecution’s theory that the victims had been brutally murdered. (See People v.

Wilson (1992) 3 Cal.4th 926, 937-938 [13 Cal.Rptr.2d 259, 838 P.2d 1212] [photos of murder victim depicting nature and placement of wounds relevant to prosecution’s theory of deliberate killing].) Because the prosecution tried the present case on a theory of premeditated murder, the issue of malice was material, and the photographs and the jawbone were relevant to that issue. (See People v. Hendricks (1987) 43 Cal.3d 584, 594 [238 Cal.Rptr. 66, 737 P.2d 1350]; People v. Frierson (1979) 25 Cal.3d 142, 171 [158 Cal.Rptr. 281, 599 P.2d 587]; 2 Witkin, Cal.

Evidence (3d ed. 1986) Demonstrative, Experimental and Scientific Evidence, § 837, pp. 801-804.) The tissue samples (extracted from the remains of the exhumed dresser, in which carpet fibers were found consistent with those found in Patricia Shepard’s apartment) indicated the probability that the victims had bled in Patricia Shepard’s apartment, and therefore were relevant to the prosecution’s theory that the killings were deliberate, and that defendant attempted to conceal the crimes by transporting the bodies from the Bakersfield crime scene to the town of Shandon, where the victims surreptitiously were buried.

The evidence in question also was highly probative. The photograph of the mummified victims depicted their positions within the dresser (after the dresser had been unearthed and removed), thereby corroborating Whittington’s testimony relating to concealment of the bodies.

The photograph illustrating the superficial wound to Maureen Bautista’s sternum was offered to establish that defendant employed different degrees of force during the fatal attack, and because the use of force was relevant to the question of malice, the trial court acted within its discretion in determining that the probative value of the photographs clearly outweighed any prejudice that might have been incurred by defendant as a result of their graphic nature. (See People v.

Thompson, supra, 45 Cal.3d at p. 115-116 [no error in admitting photographs of victim’s head and ear, through which fatal stab wound was inflicted]; People v. Ruiz (1988) 44 Cal.3d 589, 612-613 [244 Cal.Rptr. 200, 749 P.2d 854] [no error in admitting “mummy-like” photos of victims].) Introduced as laboratory specimens contained in small jars, the tissue samples were not readily identifiable as human tissue and, as noted, tended to support the prosecution’s theory, supported by expert testimony, that the victims were killed in Patricia Shepard’s apartment, then transported to Shandon.

The appearance of Maureen Bautista’s jawbone indicated that her assailant had stabbed her with sufficient force to enable the weapon to penetrate completely through the bone, strongly suggesting that the perpetrator acted with malice. We previously have upheld the admission of body parts over a defense objection similar to that raised in the present case, where the physical evidence is offered in corroboration of expert testimony (and where, presumably, photographs instead could have been utilized). The potentially shocking nature of such physical evidence is not, in itself, a basis for exclusion. (See People v.

Thomas (1992) 2 Cal.4th 489, 524 [7 Cal.Rptr.2d 199, 828 P.2d 101] [admission of teeth and bone fragments].) Defendant contends the trial court failed to engage in a meaningful weighing process and, instead, mechanically recited that the probative value exceeded the prejudicial effect as to the various exhibits that the defense sought to exclude. With respect to each item of physical evidence challenged on appeal, however, the trial court heard arguments from both sides regarding relevance and prejudice before articulating that the probative value of the challenged evidence outweighed any prejudicial effect.

The record indicates that the trial court understood and fulfilled its responsibilities under Evidence Code

section 352. Nothing more was required. (See People v. Clair, supra, 2 Cal.4th at p. 660; People v. Griffin (1988) 46 Cal.3d 1011, 1027-1029 [251 Cal.Rptr. 643, 761 P.2d 103].) With respect to defense counsel’s offer at trial, in an effort to have the actual evidence excluded, to stipulate to certain facts suggested by the challenged evidence, we reiterate the general rule that the prosecution in a criminal case “cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness.” (People v.

Edelbacher, supra, 47 Cal.3d at p. 1007, and cases cited.) The probative value of the challenged photographs, jawbone, and tissue samples (exhibits that we have reviewed) clearly extended beyond the scope of the defense’s offers to stipulate. The prosecution therefore was not obligated to present its case in the sanitized fashion suggested by the defense. (See People v. Pride (1992) 3 Cal.4th 195, 243 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Based upon the foregoing, the trial court did not abuse its discretion in admitting the challenged physical evidence. (People v. Thomas, supra, 2 Cal.4th at p. 524; People v.

Price, supra, 1 Cal. 4th at p. 441; People v. Ashmus (1991) 54 Cal.3d 932, 973-974 [2 Cal.Rptr.2d 112, 820 P.2d 214].) D. Sufficiency of the evidence At the close of the prosecution’s case-in-chief, the defense moved for a judgment of acquittal pursuant to

section 1118.1, alleging that the prosecution’s evidence was legally insufficient to sustain a conviction. The defense argued that the prosecution’s key witnesses—Larry Tom Whittington, Susan Rambo, Patricia Shepard, Harlyn Codd and Wayne James—were accomplices as a matter of law in a drug conspiracy that resulted in the deaths of Maureen and Telesforo Bautista. Based upon the premise that a person cannot be convicted on the uncorroborated testimony of an accomplice (§ 1111), and upon the further premise that one accomplice cannot corroborate another (People v.

Clapp (1944) 24 Cal.2d 835, 837 [151 P.2d 237]), the defense argued that without the testimony of the accomplices, there would be no evidence supporting defendant’s conviction. The trial court rejected these arguments and denied defendant’s motion for a. judgment of acquittal. In denying this motion, the trial court found that Wayne James was not an accomplice and reasoned that, even if it were to accept defendant’s arguments regarding the accomplice status of other prosecution witnesses, James’s testimony would provide sufficient evidence of corroboration.

On appeal, defendant reiterates his contention that hi$ conviction rests upon the uncorroborated testimony of accomplices. As we shall explain, this contention is without merit. In order for any one of the foregoing witnesses to have been an accomplice as a matter of law, the record must establish, as a matter of law, either that the witness aided and abetted defendant in committing the killings (§ 31; People v.

Gordon (1973) 10 Cal.3d 460, 468 [110 Cal.Rptr. 906, 516 P.2d 298]) or was involved in a conspiracy in which that person harbored the intent to commit the offense that was the object of the conspiracy. (People v. Marks (1988) 45 Cal.3d 1335, 1345 [248 Cal.Rptr. 874, 756 P.2d 260].) Neither theory was established as a matter of law by the evidence at trial. Patricia Shepard obtained cleaning supplies after learning of the killings and helped Larry Tom Whittington scrub the apartment where the killings had been committed. Whittington also helped conceal the victims’ bodies.

Susan Rambo provided aid in arranging for the victims’ grave to be dug in her backyard. Although it is true that a person’s post-offense acts are relevant to the issue whether he or she shared the requisite intent prior to the commission of the offense (People v. Brady (1987) 190 Cal.App.3d 124, 136 [235 Cal.Rptr. 248]), the evidence relating to these witnesses suggests that, at most, they were accessories. (§ 32; People v. Perryman (1987) 188 Cal.App.3d 1546, 1549 [234 Cal.Rptr. 181].) No evidence connected these witnesses (or anyone else) to the actual killings.

Nor did any evidence connect the other alleged accomplices, Harlyn Codd and Wayne James, to the killings or to defendant’s subsequent coverup efforts. The aiding and abetting theory therefore fails for lack of evidence that any of the prosecution’s witnesses assisted defendant in committing the killings. Defendant contends that because his drug cohorts were aware of his threats to kill “snitches,” they themselves also anticipated the victims’ demise.

Yet, the record clearly fails to establish, as a matter of law, that the killings were a “reasonably foreseeable” consequence of the methamphetamine manufacturing operation conducted on the Rambos’ property. It is undisputed that the key prosecution witnesses were part of a drug conspiracy, but the evidence does not establish, as a matter of law, that the object of that conspiracy was the killing of Maureen and Telesforo Bautista.

Rather, the record discloses only one instance prior to the killings—defendant’s conversation with Harlyn Codd at Lake Isabella—in which defendant threatened, in the presence of any key witness, to kill “snitches.” That single threat, overheard by Codd, does not demonstrate, as a matter óf law, that Codd (or any other prosecution witness) was bound to defendant by a common plan to kill the Bautistas. (See People v.

Rodriguez (1986) 42 Cal.3d 730, 760 [230 Cal.Rptr. 667, 726 P.2d 113] [rejecting notion that a defendant’s expression of an intent to kill before a crime necessarily renders the cohort an accomplice to murder].) Defendant’s other comments to the key prosecution witnesses regarding “snitches” occurred after the killings. Thus, accomplice status cannot properly be accorded the prosecution’s witnesses, as a matter of law, on a theory of derivative liability. (See People v.

Croy (1985) 41 Cal.3d 1, 11-12, fn. 5 [221 Cal.Rptr. 592, 710 P.2d 392].) Accordingly, we find no error in the trial court’s denial of defendant’s motion for a judgment of acquittal. E. Instructional error 1. Special instruction No. 3: other-crimes evidence In addition to hearing evidence pertaining to the deaths of Maureen and Telesforo Bautista, the jury received evidence pertaining to defendant’s illegal drug activity and the murder of Greg Rambo. The parties proposed instructions regarding the purposes for which the jury could consider this evidence of defendant’s other crimes.

The prosecution submitted special instruction No. 3, set forth in the margin. The instruction was broadly written, directing the jury to consider the other-crimes evidence for numerous purposes, including defendant’s “character or any trait of his character.” Outside the presence of the jury, the prosecutor argued that the jury should be allowed to consider evidence, such as that pertaining to the murder of Greg Rambo, bearing upon defendant’s character, because the defense had indicated at the outset of the case that it would not object to the introduction of such evidence.

The defense objected to the prosecution’s proposed special instruction No. 3, arguing that it was overbroad, impermissible in view of Evidence Code

section 1101 ’s proscription against the use of character evidence to prove conduct, and premised upon a mischaracterization of the defense’s stipulation regarding the prosecution’s use of other-crimes evidence. The defense proposed instead that the trial court instruct the jury pursuant to CALJIC No. 2.50, set forth in the margin. This instruction would have limited the jury’s consideration of the other-crimes evidence to establish motive or the existence of a conspiracy.

It expressly would have prohibited the jury from considering such evidence to demonstrate that defendant had a bad character or a disposition to commit crimes. After hearing the parties’ arguments, the trial court rejected the defense request that the court instruct pursuant to CALJIC No. 2.50, ruling instead that it would give the prosecution’s special instruction No. 3. On appeal, defendant contends he was denied his right to due process of law when the trial court instructed the jury regarding other-crimes evidence pursuant to special instruction No. 3.

Specifically, defendant characterizes as erroneous that portion of the instruction specifying that evidence of other crimes, “if believed, may be considered by [the jury] for any purpose, including but not limited to any of the following: [¶] [Defendant’s} character or any trait of his character. . . .” (Italics added.) In response, the People concede that the italicized portion of the instruction was overbroad, but argue that the reliability of defendant’s trial was not undermined by the giving of this instruction.

Notwithstanding the parties’ agreement at the outset of the case to allow the admission of evidence pertaining to the murder of Greg Rambo, it is clear the trial court erred in giving the italicized portion of special instruction No. 3. Subject to certain exceptions inapplicable here, evidence pertaining to a defendant’s character is inadmissible when offered to prove the defendant’s conduct on a specific occasion. (Evid.

Code, § 1101, subd. (a).) In the present case, the italicized portion of the challenged instruction impermissibly invited the jury to consider certain evidence (e.g., that defendant killed Rambo) for the purpose of establishing defendant’s propensity to commit murder. Assuming the jury considered such evidence in that context, the jury arguably might have inferred that because defendant had killed Rambo, defendant also was capable of killing other friends, such as Maureen and Telesforo Bautista.

If the jury drew that inference, the prosecution’s burden of proof as to the central issue in the case, the identity of the Bautistas’ slayer, arguably was lightened, thus raising the possibility that defendant’s constitutional right to due process of law was impaired. Because the People contend, under these circumstances, that the error is harmless under the state harmless-error analysis (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]), as well as under the more exacting federal standard, which requires us to analyze whether the trial court’s error was harmless beyond a reasonable doubt (Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]), we shall assume, without deciding, that the Chapman standard is applicable. (Cf. Arizona v.

Fulminante (1991) 499 U.S. 279 [113 L.Ed 302, 111 S.Ct. 1246] [federal constitutional “trial error,” such as admission of an involuntary confession, is subject to the harmless-error analysis set forth in Chapman).) In ascertaining the effect of the trial court’s error, we consider the potentially devastating impact of other-crimes evidence that permits the jury to conclude that a capital defendant has a propensity to commit murder. Such evidence invites the jury to be swayed by speculation that, because the defendant previously has murdered, he or she also committed the charged murder. (See Michelson v.

United States (1948) 335 U.S. 469, 475-476 [93 L.Ed. 168, 173-174, 69 S.Ct. 213]; People v. Smallwood (1986) 42 Cal.3d 415, 428 [228 Cal.Rptr. 913, 722 P.2d 197].) Thus, such evidence is inadmissible to establish a defendant’s criminal disposition, but is admissible when relevant to another issue, such as opportunity or intent. (See People v. Miranda, supra, 44 Cal.3d 57, 82; see also Estelle v.

McGuire (1991) 502 U.S. _ [116 L.Ed.2d 385, 399-402, 112 S.Ct. 475, 483-484] [jury instruction relating to prior-injury evidence did not constitute a “propensity instruction”].) Unlike the more typical situation, the present case involves other-crimes evidence that was not introduced over the objection of the defense, but rather at its invitation. The defense sought to include such evidence in an effort to persuade the jury of the likelihood that some other member of the drug conspiracy killed Greg Rambo and the Bautistas.

This circumstance undoubtedly diluted the probative value of the other-crimes evidence for the prosecution’s case, because it was clear the defense desired that the jury consider this evidence for the purpose of establishing defendant’s innocence of the charged offenses. We weigh the foregoing impact against defendant’s damning trail of incriminating statements and the circumstantial evidence linking him to the Bautista murders. Larry Tom Whittington, Patricia Shepard, Susan Rambo, and Wayne James each testified as to defendant’s confessions.

The prosecution presented testimony (of Larry Tom Whittington) that placed defendant at the crime scene on the night of the killings, that established defendant had been arguing with Maureen Bautista, and that defendant had feared she would “snitch him off’; the victims were killed in brutal fashion according to the witnesses who related defendant’s confessions—testimony corroborated by the prosecution’s forensic testimony, and defendant subsequently went to extreme lengths to conceal the murders, including the removal of his personal effects (and photographs depicting him) from the Bautistas’ residence, transportation of the bodies from Bakersfield to Shandon, and burial of the Bautistas’ bodies beneath a layer of freshly poured cement.

Six days after law enforcement officials exhumed the bodies, defendant falsely identified himself to the officer who arrested him. Viewed against such overwhelming evidence establishing defendant’s guilt of the charged offenses, the challenged

section of special instruction No. 3, allowing the jury to consider the other-crimes evidence to establish defendant’s character, led to a cumulative rather than an unduly prejudicial use of the evidence. We therefore conclude that the trial court’s error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711].) 2. Accomplice liability Defendant contends the trial court committed reversible error when it instructed the jury pursuant to 20 standard jury instructions relating to the subjects of accomplice testimony and conspiracy.

Defendant’s contention rests upon three distinct arguments: (1) the trial court’s instructions represented a “chaotic array” that confused the jury; (2) the trial court misread two instructions; and (3) the trial court erred in rejecting defense counsel’s request for a special instruction pertaining to the testimony of an informer. a.

The standard instructions were not confusing The trial court instructed the jury pursuant to CALJIC Nos. 2.27, 3.10, 3.11, 3.12, 3.13, 3.14, 3.18, and 3.19, which addressed the matter of accomplices, and CALJIC Nos. 6.10.5, 6.11, 6.12, 6.13, 6.14, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, and 6.22, which addressed the subject of conspiracy. Pursuant to CALJIC No. 17.31, the jurors were instructed that not all instructions necessarily were applicable. Defendant’s argument that the foregoing instructions confused the jury is based upon several contentions, none of which has merit.

First, defendant contends the conspiracy instructions were deficient because he was not charged with conspiracy, the instructions thus leaving the jury confused as to what conspiracy could be found. This

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