THE PEOPLE, Plaintiff and Respondent, v. JOSE ARNALDO RODRIGUES, Defendant and Appellant, 8 Cal. 4th 1060

Opinion BAXTER, J. —Defendant Jose Amaldo Rodrigues was convicted by a jury of one count of murder (Pen. Code, § 187), two counts of attempted robbery (§§ 664, 211), and one count of burglary (§ 459). The jury found true the special circumstances that defendant committed the murder while engaged in the crime of robbery or attempted robbery (§§ 190.2, subd. (a)(17)(vii), 211), and while engaged in the crime of burglary (§§ 190.2, subd. (a)(17)(vii), 460).

It also found true allegations that defendant personally used a knife in the commission of each offense (§ 12022, subd. (b)), and that defendant had previously served prison terms (§ 667.5, subd. (b)) for accessory to murder (§ 32) and auto theft (Veh. Code, § 10851). After the jury returned a penalty verdict of death, the trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)). Appeal to this court is automatic. (§ 1239, subd. (b).) We find no prejudicial error at the guilt or penalty phase of defendant’s trial. The judgment is affirmed in its entirety. I. Facts A. Guilt Phase Evidence 1.

The Prosecution Case Epifanio Zavala testified that in May 1987, he was living with his older brother Juan Barragan in an apartment on the second floor of a two-story building at 1100 Sevier in Menlo Park. Zavala was then 19 years old and Barragan was 21. Although Zavala and Barragan previously worked in restaurants, they did not have jobs the first week of May 1987. Barragan sold small amounts of cocaine and heroin to help make a living. Zavala sometimes helped out by giving drugs to customers.

One of those customers was Cynthia Ontiveros, a heroin addict who had bought heroin from the brothers on several occasions. Ontiveros testified to the following. Although she lived in Hayward with her boyfriend, Richard Lopez, she was in love with Juan Garcia. At approximately noon on May 4, 1987, Ontiveros left Hayward to buy some heroin from Zavala at his apartment. Zavala sold her approximately one gram of heroin for $100. After telling Zavala she might come back, Ontiveros returned to Hayward. During the course of the day, Ontiveros injected about half of the heroin and sold the rest.

At approximately 5 p.m. that evening, Ontiveros was selling heroin in front of the El Tanampa bar on B Street in Hayward. Garcia drove up in defendant’s car, with defendant in the passenger seat. Garcia asked Ontiveros how he could make some money. Ontiveros told him not to worry about it, that she would find a way. She told Garcia to meet her at the bar later in the evening. Garcia and defendant met Ontiveros at the bar after dark.

Ontiveros told Garcia she had a connection from whom they could get drugs, and identified Zavala and Barragan because they were young and naive drug dealers who “weren’t rough.” Ontiveros had never seen the brothers with weapons and had never seen them use or threaten violence in their drug dealing. She thought Garcia and defendant could get drugs from them without a big fight. Ontiveros, Garcia and defendant then planned how to get the drugs from Zavala and Barragan. They agreed that Ontiveros would go to the apartment first because the brothers knew her and would open the door for her.

Once the door was open, Garcia and defendant would rush in and scare the brothers into giving up their drugs. Garcia asked Ontiveros if Zavala and Barragan had any weapons, and she responded that she had never seen any and did not think they had any. Ontiveros apparently thought that the brothers might be beaten or roughed up a little bit, but did not expect any further violence. Ontiveros, Garcia and defendant agreed to use defendant’s car, a beige Lincoln, to drive to the brothers’ apartment. Sometime around 11 p.m., Ontiveros, Garcia and defendant arrived at the apartment.

Garcia was dressed in black pants, black shoes and a black jacket. Defendant wore a beige long-sleeved jacket. Garcia, who was driving, stopped the car on Sevier Street, some seven or eight houses down from the apartment. Ontiveros went to find out who was in the apartment. It was agreed that Ontiveros would let Garcia and defendant know if the brothers were alone. Ontiveros went upstairs to the apartment and knocked on the door. Zavala let her in. Once inside, Ontiveros saw Barragan asleep on the couch but did not see anyone else.

Zavala told Ontiveros that he had not expected her to return, and that he had no more drugs. After some discussion, Zavala indicated he would give her some money for a “date” if she would stay. After agreeing to this, Ontiveros said she was going to tell her friend who was waiting for her in a car. Zavala walked downstairs with Ontiveros, then went to his own car and locked it while she kept walking. Zavala returned to the apartment and waited for Ontiveros. After Zavala went upstairs, Ontiveros walked to defendant’s car.

She told Garcia and defendant that the brothers did not have any drugs, but that they did have money. When Garcia asked how much money, Ontiveros replied she did not know, but said they must probably have “a good amount” because Zavala had not yet bought more drugs. Ontiveros, Garcia and defendant agreed to proceed with the plan to rob the brothers, but to get money instead of drugs. Garcia moved defendant’s car to Madera, the next street over, and parked it approximately 20 to 30 feet from Pierce Road. Ontiveros walked to Madera and met Garcia and defendant there.

She saw Garcia obtain an object that looked like a crowbar from the trunk of the car, and noticed defendant had a large knife. The three walked together back to the apartment building. As planned, Garcia and defendant went up the back stairs. Ontiveros walked up the front stairs, and knocked on the door. As Zavala let her in, she saw that Barragan was still sleeping on the couch. At that point, Garcia and defendant rushed into the apartment. Garcia hit Zavala with his tire iron and knocked him back onto Ontiveros. Ontiveros became scared and ran back to defendant’s car.

She waited in the front seat for several minutes until Garcia and defendant returned. Zavala testified that once inside the apartment, Garcia struck at Zavala’s head repeatedly with a tire iron, forcing him back into the apartment through the living room. Zavala yelled at Barragan to wake up. As Barragan stood up, Zavala saw the second attacker, who was wielding a knife in his left hand, hold his brother up against a wall. Zavala, who at this time was being held to the ground and beaten by Garcia, saw the second attacker trying to stab his brother in the face or throat.

After the attacker and Barragan fell to the floor during the struggle, the attacker reached over and stabbed Zavala in the left leg and right foot. During the course of the attack, Garcia said to Zavala: “Cálmate cabrón, [¿]donde la tienes?” According to Zavala, this translated in English to: “Calm down, damn it, where do you have it?” Zavala answered with a lie, saying “it” was in the closet. He was hoping to have a chance to help his brother if the attacker went to look in the closet.

After Zavala responded, however, the man with the knife told Garcia in English to “finish him too.” Garcia stabbed Zavala in the back with the pointed end of the tire iron, penetrating to the bones. At that point, the telephone started ringing and the man with the knife said: “Well let’s get out of here the police might going to come [sic].” As the two assailants fled from the apartment, Zavala could see that the one with the knife had an injured arm. After the assailants left, Zavala answered the phone, which had continued to ring. The caller was Maria Vargas, a friend and neighbor from an apartment downstairs.

Zavala told Vargas his brother was dead and to call the police. Vargas testified that she immediately dialed 911 from a telephone located next to her bedroom window. As Vargas was reporting the murder, she saw two men come down the apartment stairway and pass by the window. Since a light had been shining on the stairway landing that night, Vargas saw the two men clearly enough to provide the following details. The first was a “dark man” who wore dark clothes, had blood on his left hand, and held his left arm down by his side with his right arm across his chest.

After reaching the bottom of the stairs, the man stopped and looked through the window at Vargas and her daughter; he then hurried off toward Pierce Street. The second man was an Hispanic with light skin and straight hair. He was about four steps behind the first man as they came down the stairs. The second man also looked through the window at Vargas as he rushed by. Vanessa Stums lived in an apartment building next to 1100 Sevier.

She testified that shortly after midnight on the morning of May 5, 1987, she got into her car and was beginning to drive to a liquor store when she saw two men in dark clothes climb over a fence into the backyard of her apartment building and walk to Madera. Stums noticed the men because she had never seen anyone jump that fence before. Because the area was “nicely lit,” she could tell that the two men were Hispanic, and that they were not “Black.” Stums was approximately one and a half car lengths from the men as she observed them.

As Stums drove off, she saw a car parked on Madera, about five houses up the street. Ontiveros testified that when Garcia and defendant returned to the car, Garcia took the driver’s seat and defendant sat in the passenger side. Defendant had a deep cut on his left forearm. Garcia had blood on his face and hands, but he was not injured. Defendant told Ontiveros to clean the blood off Garcia. As they drove back to Hayward, defendant climbed into the backseat and lay down. He told Ontiveros to look straight and act normal.

There was some discussion between Garcia and defendant about the knife, and as they approached a bridge, Ontiveros felt a msh of air as if the rear window had been rolled down. Although she did not see defendant throw the knife out, she did not see the knife in the car again. Ontiveros told defendant not to worry, she would not say anything about what had happened. The three stopped for about half an hour in Hayward while Garcia changed his shirt and defendant changed his pants. Defendant also took his jacket off to wrap his arm, which was bleeding badly.

Garcia stayed at that location, and Ontiveros dropped defendant off at his sister’s house in Hayward. Ontiveros then drove to her place. The next day, pursuant to Garcia’s instructions, Ontiveros washed the blood out of the interior of the car. Later on, defendant’s brother, Raymond Rodriguez (hereafter Raymond), came by and retrieved the car. Defendant’s sister Norma testified that at approximately 4:10 in the morning on May 5, 1987, defendant came to her house and told her he had been working on his car. He asked for a bandage and requested to be taken to Raymond’s house in Oakland.

Raymond testified that defendant told him a transmission had fallen on his arm. He acknowledged, however, having testified at the preliminary hearing that although defendant told him to say that the transmission had fallen while the two of them were working on defendant’s car, the two had not actually worked together on the transmission for a week or two before defendant’s arm was injured. When Raymond drove the car back from Ontiveros’s place in Hayward, he had no trouble with the transmission. Raymond took defendant to Highland Hospital at 5:50 in the morning on May 5 to get his arm treated. Dr.

William Billings from Highland Hospital testified that although defendant stated that a transmission fell on his left arm, no dirt or grease was found in the wound. Also, the wound appeared to have been caused by a sharp instrument, rather than a blunt one, and was sufficiently clean that the surgery team was able to sew the tissue together fairly precisely and match a tattoo that had been split apart. Hospital records reflected that defendant was left-handed. Officers arriving at the scene of the crime found Barragan lying dead on the floor with a massive pool of blood around his head and neck area.

Barragan’s chest was split wide open, and part of his face was hanging off. The officers saw Zavala rolling around on the floor in pain. Zavala had been severely beaten and his face was completely covered with blood. He was also missing several teeth. Zavala lapsed in and out of consciousness, sometimes screaming or moaning about his pain. Zavala was taken to Stanford Hospital, where Detective James Simpson interviewed him at approximately 1:30 or 1:45 a.m. Zavala told him that two male Hispanic assailants and a female named Cyndia were involved.

On or about May 17, 1987, Zavala picked Ontiveros out of a photo lineup. Detective Ronald Williams testified that on May 6, 1987, Zavala described the knife wielder as being an Hispanic male adult, 23 to 24 years of age, 5 feet, 9 to 10 inches tall, 160 pounds, straight dark brown hair to his collar, and a very dark complexion.

When Williams subsequently showed Zavala a photograph taken of defendant at the time of his arrest on May 28, 1987, Zavala said that the man in the photo looked Black to him, and that the skin tone and hair length in the photo closely resembled the knife wielder as he appeared the night of the murder. A citation issued to defendant on May 2, 1987, gave his weight as 170 pounds, and height as 5 feet, 8 inches tall. On July 19, 1987, a search team found a survival-type knife alongside the freeway in the area where Ontiveros thought defendant had rolled down the rear car window as they drove from the crime scene.

The knife had bloodstains both on its blade and hilt and on a capsule contained inside the handle. The knife blade was just short of nine inches, with a maximum width of one and one-half inches. Ontiveros, upon being shown the knife, immediately identified it as the one carried by defendant. The forensic pathologist’s autopsy of Barragan disclosed 21 stab and incise wounds consistent with infliction by a large knife-type instrument. Six of the wounds were to the face and head, one of which was a large, irregular, jagged wound in the lip that went through to the anterior part of the neck.

There was a six-inch-deep wound in the right leg above the knee. One four-inch-deep stab wound in the chest had cut the rib cartilage in half and sliced the right lung, while another one five inches deep had also damaged the right lung. There was also a large, gaping, complex, eight-inch-deep wound, possibly caused by several thrusts through the same skin hole, that cut the right jugular vein in half and perforated the right lung. The location of the wounds to the torso and upper body was consistent with overhand-type thrusts.

Of the 21 wounds, 17 were located on the right side of the body, while 4 were on the left; this was consistent with face-to-face stabbing by a left-handed assailant. The cause of death was loss of blood with air embolism. Three bloody fingerprints, apparently made by the same finger, were found at the crime scene. They had an arch pattern found only in 5 percent of the population, and did not match the prints of the victims, the suspects or those persons whose presence at the scene was logged.

A smeared set of comparison prints for James Williams, a tenant in a nearby unit, showed an arch pattern, but Williams could not be located to make a further comparison. An examination of defendant’s car disclosed one of Garcia’s fingerprints, but none of defendant’s. However, on the back of the front seat backrest, police found a partial shoe print that had the same class characteristics as a pair of shoes belonging to defendant. Those shoes indicated the presence of blood in two spots.

Prosecution criminalist Elizabeth Skinner performed a blood-typing analysis, and determined that Zavala and Barragan both had type A blood, differing only in the EAP genetic marker system. Defendant and Garcia both had type O blood. In the TF (or transferrin) genetic marker system, defendant’s type was CD, a type shared by less than 3 percent of the population. Neither Garcia nor the two victims had CD transferrin. Although various bloodstains were found in defendant’s car and a few blood drops were discovered outside the apartment, many were of insufficient quantity to perform blood-typing analysis.

However, type O blood, with the CD type in the TF system, was discovered on the floormat in defendant’s car. Blood on a paper tissue in the trunk of the car was found to be consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia. Of three spots of blood found outside the brothers’ apartment on the pavement leading to Pierce Road, one may have been type A or a mix of type A and type O; the other two were insufficient to produce test results. Inside Zavala’s apartment, there were copious bloodstains on the living room carpet and walls.

Blood was found on the front door, the couch, the television, the stereo, a telephone book, a mattress in the bedroom, and on the walls, sink and window in the bathroom. Skinner tested the blood samples and was able to determine that all of the blood surrounding Barragan was consistent with his type.

Although Skinner could not say that blood belonging to defendant was found in the apartment, she opined, in response to hypotheticals, that if an attacker had been bleeding from a forearm wound, the attacker’s blood might not be found if the length of the attack was a matter of minutes and the wound was enclosed in the long sleeve of a jacket so that the clothing would absorb the blood. She also indicated that because Barragan had bled so profusely, small amounts of an attacker’s blood might go undetected. Skinner also tested the blood on the knife found by the freeway.

Skinner testified that the hilt of the knife had human blood on it, but that a lot of the blood on the blade, being very dry and crusty, had flaked off by the time she examined it. As for the bloodstains found on the plastic capsule inside the knife handle, Skinner found a strong reaction for type O blood, and a weak reaction for type A blood, suggesting the possible presence of both types. 2. The Defense Case Defendant did not take the stand. His defense was that he was not present and had nothing to do with the crime.

There was no physical evidence placing defendant at the scene, and the surviving victim could not positively identify him. Maria Vargas had initially described the first man to come down the stairs on the night of the murder as a “Black” man when speaking to the 911 dispatcher and the police. Vargas failed to identify defendant when shown a photo lineup on May 27, 1987, and identified him for the first time at the preliminary hearing.

At that hearing, defendant was wearing an orange jumpsuit and was seated at the defense table behind a nameplate that said “defendant.” Nathan Howard, testifying for the defense, disclosed that he had known Juan Garcia since 1967, and in the past had even identified himself as Garcia’s “partner.” Although he had met defendant a couple of times, he was unaware of any friendship between defendant and Garcia, and had never seen them socialize together. Howard also testified that he knew defendant’s brother, Raymond, and that he had run into Raymond at Highland Hospital one morning in May 1987.

Raymond told Howard that a transmission had fallen on defendant’s arm. Defendant’s sister, Norma, testified that when defendant arrived at her home at 4:10 a.m. on or about May 5, 1987, he was covered with dirt and grime, and had car grease on his face and hands. Although defendant asked for a bandage and wanted to be taken to Raymond’s house, Norma did not notice that he was injured, or that he needed to go to the hospital. Defendant said he had been working on his car. He was bald at the time, and looked normal but dirty. B. Penalty Phase Evidence 1. The Prosecution Case a.

Nishimoto Incident (May 1987) On or about May 25,1987, Hayward Police Officer Darrin Nishimoto saw a Lincoln Continental run a stop sign at 45 to 50 miles per hour. He pursued the car, which went over 70 miles per hour through 2 red lights before finally pulling over. Defendant, who was drunk, immediately got out of the car and started walking away. When Nishimoto ordered defendant back in the car, defendant responded “Fuck you. What are you going to do?” As Nishimoto placed his hand on defendant’s jacket collar, defendant turned and started swinging at him.

Officer Robert Palermini, responding to Nishimoto’s call for backup, saw defendant and Nishimoto wrestle to the ground. As Palermini attempted to assist in handcuffing defendant, defendant grabbed Palermini’s baton, which had fallen to the ground. Nishimoto shot defendant with his stun gun. A third officer eventually arrived and defendant was finally subdued and handcuffed. Nishimoto suffered a broken hand in the struggle. b. Nieves Incident (May 1987) Gladys Nieves had lived with defendant off and on for about four years.

On May 19, 1987, shortly after they had separated, defendant came to Nieves’s apartment to talk about getting back together. When Nieves said she did not want to get back together, defendant became angry, and they began arguing. During the course of the argument, defendant struck Nieves in the face, arm and ribs, and called her a bitch. Nieves managed to push defendant away and call the police. Defendant, who appeared intoxicated, was arrested when the police arrived. Nieves’s face was swollen and she was red around her eye. c.

Gallia Incident (April 1987) On April 2, 1987, Hayward Police Officer Richard Gallia of the canine unit and Officer Brent Morris stopped a car for a stop sign violation. Defendant, the front seat passenger, was staring out the window and swearing in a slurred manner. When asked to step from the car, defendant emerged fighting and swinging at Gallia. As Gallia struggled with defendant, defendant broke out of a carotid restraint and hit Gallia in the chest, denting the steel chest plate of his bulletproof vest.

Morris attempted to assist Gallia in handcuffing defendant, but the two officers were unable to restrain him. Defendant was ultimately subdued with the aid of the canine unit’s dog and a third police officer. At one point during the struggle, the dog bit defendant in the chest but defendant managed to pry the dog’s mouth open to release its bite hold. Gallia had never previously seen anyone able to do this. Defendant’s behavior was consistent with phencyclidine (PCP) intoxication. d.

Rodriguez Incident (November 1984) On November 2, 1984, Correctional Officer Leo Rodriguez was supervising the serving of breakfast at Deuel Vocational Institute in Susanville when he observed that defendant and two other Hispanic inmates were serving double portions of breakfast to all Hispanic inmates. Rodriguez advised the three inmates to give equal portions to all inmates, but they ignored his directive. After Rodriguez advised them a second time and again was ignored, he had the inmates removed from the serving assignment.

At that point, defendant became hostile and verbally abusive toward Rodriguez, cursing and threatening to “kick [his] ass.” According to Rodriguez, defendant was laughing and appeared to be under the influence of alcohol or some other substance. e. Johnson Incident (June 1984) On June 3, 1984, Lament Johnson and his brother, Paul Tadlock, went to a 7-Eleven store in Union City to buy some beer. Johnson did not have his identification with him, so he asked defendant, who happened to be in the store, to buy some beer for him. Defendant refused, and Johnson returned to his car.

Defendant came up to Johnson’s car and started saying or yelling something, which Johnson could not hear because the window was rolled up. When Johnson started to get out of the car, defendant struck him in the head and knocked him unconscious. Tadlock got out of the car and started wrestling with defendant until Steve May, a store security guard, drew his baton and told them to break it up. Defendant got a four-arm lug wrench from his car and swung at May with great force. Defendant then gave the wrench to a female companion, who also swung at May.

Defendant retrieved a long steel bar from his car, which he also began swinging at May. Eventually, defendant and his female companion got back in the car and drove away. Johnson was taken to a hospital by ambulance and received stitches to his lip. Tadlock suffered a bloody nose. Although Tadlock and May identified defendant for police shortly after the incident, only Tadlock made an identification at trial. Johnson, Tadlock and May all testified they had done nothing to provoke defendant’s attack. f.

Calles Incident (January 1981) On January 21, 1981, defendant approached fellow inmate Rick Calles in the yard at the medium security prison in Susanville. Defendant asked Calles why he had missed a meeting of Mexican/Puerto Rican inmates earlier that day. They went into a dorm, and defendant sat on a bed facing Calles, while another inmate sat on the same bed as Calles to his right. Defendant, who was wearing weightlifting gloves, got up and moved behind Calles on his right side. About 10 seconds later, Calles saw a gloved hand come toward him. He felt a blow on the side of his face, and was knocked unconscious.

Calles suffered a broken nose and a cracked rib, and was hospitalized for seven days. g. Correctional Facility Fire (January 1981) At approximately 1 a.m. on January 1,1981, prisoners on three tiers at the correctional facility in Susanville started setting fires, breaking windows and throwing jars of water at the guards. Correctional Officer Frank Shipman was standing by a wall when he saw someone throw burning material through a broken window onto a fire just outside the dormitory where the inmates were housed.

Shipman, who was 18 to 20 inches away, shined his flashlight through the window and saw defendant moving away from the window. Defendant was the only inmate in the area of the window at the time. Other inmates were standing about 18 to 24 inches beyond defendant when Shipman first saw him. h. Espinoza Homicide (June 1980) In the afternoon and early evening of June 6, 1980, Ernest Espinoza and Eric Mitchell were sitting on Mitchell’s porch, when a car with about seven passengers drove repeatedly by.

When the passengers yelled angrily in Spanish, Espinoza gave them “the finger.” Later that evening, Espinoza left the Mitchell house just before 9 p.m. to call his girlfriend from a pay phone at a gas station across the street. While Espinoza was at the pay phone, a group of approximately 10 men approached him. Espinoza was shot a number of times and stabbed. He died from his wounds. Six men, including defendant and his brother Raymond, were charged with the murder of Ernest Espinoza.

Only Raymond was alleged to have personally used a firearm, and only defendant Toby Jaramillo was alleged to have personally used a deadly weapon. Raymond and Jaramillo were also the only ones alleged to have personally inflicted great bodily harm. Defendant was alleged to have been armed with a firearm, and to have suffered a previous conviction. On August 29, 1980, pursuant to a plea bargain, Raymond pleaded guilty to manslaughter with personal use of a firearm, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. Defendant pleaded guilty to violation of

section 32 (accessory). The murder charges against all charged defendants were dismissed. At the penalty phase, Rejón Mitchell, who was Eric Mitchell’s brother, came forward and testified that he saw defendant shoot Espinoza. i. Roach Shooting (April 1977) On the night of April 1, 1977, Frank Roach drove with two friends in his pickup truck to a park in Hayward for the purpose of fighting with another group of people. As Roach and his friends waited for the other group to arrive, a car carrying three or four people pulled up.

Someone rolled down the rear window of the car and pointed a pump-action, sawed-off shotgun at them. Roach and his friends scrambled out of the truck and tried to run away as a first shot was fired. When Roach was 10 to 15 feet from the truck, a second shot was fired. Roach was hit from head to toe in the back with shotgun pellets. His friend, Chris Gamer, was shot in the arm or shoulder. Roach identified defendant as the shooter from a photo shown to him four or five days after the incident. He also identified defendant at the preliminary hearing.

Defendant ultimately pleaded guilty to assault with a deadly weapon. j. Jill M. Incident (October 1976) At approximately midnight on October 16,1976, Jill M. was standing with her girlfriend Laurie at a bus stop in Hayward when five men in a car pulled up. The two women accepted their offer of a ride, but instead of taking them home, the men drove to a house in San Leandro. While the men dragged Jill screaming into the house, Laurie was able to walk away. Inside the house, Jill was subjected to a series of sexual assaults by at least three men, including defendant.

Defendant, acting alone, committed forcible rape, sodomy and oral copulation on Jill, and, acting in concert with another man, committed forcible oral copulation and sodomy on her. Although sexual assault charges were filed against defendant, the charges were subsequently dismissed. Jill testified that after the preliminary hearing she had asked the prosecution not to require her to participate in the case any further because she was pregnant and feared for her life. She admitted, however, that defendant had never threatened her. k.

Prior Felony Convictions In addition to presenting documentation of defendant’s felony accessory conviction in the Espinoza matter, the prosecutor offered evidence showing that defendant had been convicted for auto theft in Solano County and burglary in Alameda County. 2. The Defense Case The defense attempted, in cross-examining the prosecutor’s witnesses and in calling its own witnesses, to cast doubt on the prosecutor’s theories of the above events.

In particular, the defense attempted to show: (1) that defendant’s brother Raymond was the only person to shoot Ernest Espinoza, and that Rejón Mitchell’s testimony and identification of defendant at trial contradicted statements he had made shortly after the incident; (2) that Oscar Payne and Billy Grejeda, not defendant, had shot at Frank Roach during the confrontation at the park; and (3) that Jill M. consented to have sex with multiple partners at defendant’s house on the night in question. II. Discussion A.

Failure to Hold Competency Hearing Defendant contends that the lower courts erred by not ordering, sua sponte, a hearing on his competence to stand trial. (See Pate v. Robinson (1966) 383 U.S. 375, 385 [15 L.Ed.2d 815, 822, 86 S.Ct. 836]; People v. Howard (1992) 1 Cal.4th 1132, 1162 [5 Cal.Rptr.2d 268, 824 P.2d 1315]; People v.

Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942].) Defendant also contends that his counsel was ineffective in failing to request a competency hearing at any stage of the proceedings in question, and in failing to move to set aside the information based upon defendant’s asserted incompetence at the preliminary hearing. He asserts that his conviction must be reversed because these omissions denied him statutory and constitutional protections, including his rights to due process and effective assistance of counsel under the state and federal Constitutions.

Defendant’s claims arise out of events that transpired at three court hearings held on June 22, 1987, September 11, 1987, and September 15, 1987. On June 22, 1987, defendant appeared in municipal court for his preliminary hearing. At defense counsel’s request, the court held an in camera hearing during which counsel informed the court of a “fundamental dispute” between counsel and defendant. According to counsel, defendant refused to agree to a time waiver for the preliminary hearing even though counsel had repeatedly explained to him that a waiver was essential in order to adequately prepare for the hearing.

Counsel asserted that defendant’s decision was not rational, that defendant refused to communicate with counsel intelligently, and that defendant did not give an articulate reason for not waiving time.

Although counsel had not had an opportunity to obtain a psychiatric evaluation, counsel expressed the opinion that defendant was “not competent to proceed to preliminary hearing today because he has been unable to assist me in making a decision as to whether to waive time and prepare for the preliminary hearing.” Counsel clarified, however, that apart from defendant’s refusal to waive time, defendant had not talked in an irrational manner, and counsel had “not seen any evidence of mental defect.” The court then questioned defendant regarding his understanding of the situation and explained to him what a time waiver would and would not entail.

During the discussions, defendant stated that he did not want to waive time because he had been “sitting in here too long,” even though he apparently knew he had a parole hold in any event, and that he just wanted “to get this over with.” Defendant also complained that counsel was not telling him anything, and that counsel kept challenging him and treating him like a child. At one point, the court stated its belief that “what [defendant] values is a little more TLC.” During the hearing, defendant had several changes of mind about waiving time.

Ultimately, however, he agreed in open court to waive time until July 20, 1987. On September 11, 1987, the superior court held an in camera hearing during which defense counsel addressed issues regarding defendant’s competency to proceed to trial on September 21, 1987, and counsel’s desire to waive defendant’s right to be tried within 60 days of the filing of the information. After explaining to the court that more time was needed to prepare for trial, counsel summarized the events occurring at the hearing on June 22.

Counsel then reported that defendant refused to waive time for trial, that he refused to sign release forms for police reports, medical information and other documents despite counsel’s detailed explanations for their need, and that he was being uncooperative and unreasonable.

A defense investigator then told the court that he had obtained information from defendant’s mother that when defendant was two or three years old he had “some sort of seizure, she believes epileptic type seizure where he actually turned blue and was taken to Children’s Hospital in Oakland.” The investigator also said family members stated that defendant had suffered from migraine headaches throughout his life. Additionally, counsel informed the court that he had spoken with Dr. Missett and Dr.

McKinsey, two defense psychiatrists, and that both believed the records concerning defendant’s seizure were “crucial to a psychiatric defense.” Although Dr. Missett was not present at the hearing, counsel related that Dr. Missett had met with defendant for one to two hours, and that Dr. Missett felt that defendant had brain damage due to the “two major seizures” he had heard about. According to counsel, however, Dr. Missett had “not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion.” Dr. McKinsey was present at the hearing.

Although defendant had refused to meet with him, Dr. McKinsey offered the following opinion based on reports given to him and discussions with Dr. Missett. “I suspect that there is a drug dementia; that Mr. Rodrigues has difficulties that have been outlined earlier which are secondary to that drug dementia. That one of the reasons he wouldn’t sign anything, as he just said, was he doesn’t understand.

It is going to be difficult for him to understand anything if his brain isn’t working well. [1 I have etiological events in the record, which is to say a considerable amount of poly substance abuse dating way back, dating as far back as 4/2/87 for example, and as late as May 25th, ’87. [^Q It seems to me that a person of this level of drug use is at very high risk for a neurological impairment that would make it very difficult for him to cooperate with his defense.” During discussions on the matter, defense counsel expressed the opinion that it was in defendant’s best interest to waive his right to trial within 60 days so that counsel could investigate his competence to proceed to trial.

The court then explained to defendant that his attorneys thought it was in his best interest to waive time and to let the doctors talk to him so that a decision could be made how best to defend him. Although defendant stated he did not wish to waive time, he did agree, in response to the court’s inquiry, that he would speak to the defense doctors. He also indicated that he would decide, after meeting with the doctors, whether to agree to a time waiver and to a release of medical records.

Since defendant was unwilling to waive time but was agreeable to reconsidering the matter after a meeting with defense psychiatrists, the court declined to give counsel time over defendant’s objection. The court continued the hearing to September 15, 1987, and suggested that at that time they could ascertain whether Dr. Missett would be prepared to testify as to incompetence. At the continued in camera hearing on September 15, 1987, defense counsel reported that defendant had given written releases of information for parole records, probation records, police reports and school records.

Although defendant had not consented to releases for medical records, he nonetheless was willing to waive his right to be tried within 60 days. In response to court questioning, counsel agreed that the request for a trial continuance over defendant’s objection was no longer an issue but indicated that the defense had not completed its competency investigation. Counsel then reported that defendant had met with the defense psychiatrist as previously agreed, and that there was some rapport between defendant and the psychiatrist.

Counsel added that defendant’s rapport with counsel had increased in the past three days. Defendant agreed that he and counsel were getting along better. Subsequently, in open court, a continuance on the trial date was ordered. Thereafter the competency issue was never raised again. The relevant principles may be summarized as follows. “A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]” (People v.

Howard, supra, 1 Cal.4th at p. 1163.) “ ‘The court’s duty to conduct a competency hearing arises when such evidence is presented at any time “prior to judgment.” [Citations.]’ ” (People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729].) Defendant contends that substantial evidence of incompetence appears in the record, citing to the evidence of his childhood seizure and lifelong episodes of migraine headaches, as well as to the statements of the two defense psychiatrists.

Defendant also emphasizes the point that his counsel repeatedly expressed concerns regarding his competence to understand and assist in his defense, and counsel’s conclusion that his refusal or reluctance to cooperate appeared connected to a physical-mental condition, rather than merely to obduracy. We are not convinced.

A defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a), italics added.) Here, the statements provided by defendant’s family that defendant suffered from migraine headaches and that he had a possible epileptic seizure when he was two or three years old did not, standing alone, suggest a mental disorder or developmental disability.

Although the court was informed by the defense at the September 11 hearing that it was in the process of obtaining defendant’s medical records by subpoena, nothing in the record after that time indicated that any medical records ever obtained substantiated the claim of such a disorder or disability. Moreover, the statements of the two defense doctors did not furnish substantial evidence of mental incompetence.

We have held that the standard for determining when a psychiatrist’s opinion will constitute substantial evidence of incompetence to stand trial is as follows: “ ‘If a psychiatrist . . . who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.’ ” (People v.

Stankewitz (1982) 32 Cal.3d 80, 92 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476], citing People v. Pennington, supra, 66 Cal.2d at p. 519.) For the reasons below we find that the conclusions of Dr. McKinsey and Dr. Missett did not meet this test. First, although Dr. McKinsey attended the court hearing and offered his opinion, he had not had any opportunity to examine defendant. Moreover, the basis for his opinion was rather brief (13 lines of transcript) and virtually devoid of particulars. Dr.

McKinsey merely told the court that, based on reports he had read, he suspected that defendant suffered from “drug dementia” and that defendant’s record of “a considerable amount of poly substance abuse” suggested a very high risk of neurological impairment that would make it very difficult for him to cooperate with his defense. But no elaboration or details were provided regarding the type or quantity of drugs involved, the frequency of the claimed abuse, or the extent of impairment threatened. This falls far short of the showing made in People v. Stankewitz, supra, 32 Cal.3d at page 92, and in People v.

Pennington, supra, 66 Cal.2d at page 519. Second, the purported opinion of Dr. Missett, who had actually met with defendant but was not present at the hearing, was simply inconclusive. Although defense counsel claimed that Dr. Missett “feels that the defendant has brain damage because of the two major seizures he has heard about through [the defense investigator],” counsel also stated that Dr. Missett was “not sure about his opinion since he’s not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion.” Thus, even if we assume that Dr.

Missett had offered his tentative opinion directly and under oath, it did not furnish substantial evidence of defendant’s incompetence. Moreover, it is significant to note that after Dr. Missett apparently met with defendant a second time after the second hearing for two or three hours, defense counsel offered no further opinion from the doctor that defendant was incompetent. Finally, the lower court judges were not compelled to order a competency hearing based on defense counsel’s opinion that defendant might be incompetent. We rejected a similar argument in People v.

Howard, supra, 1 Cal.4th at pages 1163-1164: “Under

section 1368, if a ‘doubt arises in the mind of the judge’ as to the defendant’s mental competence, the judge must ‘state that doubt in the record’ and solicit defense counsel’s opinion on the matter. (§ 1368, subd. (a).) In such a case, ‘[i]f counsel informs the court that he believes the defendant is or may be mentally incompetent,’ the court must order a hearing. (§ 1368, subd. (b).) Because the court in this case did not declare a doubt,

section 1368 did not require the court to conduct a hearing based solely on counsel’s opinion.” Here, as in People v. Howard, the lower court judges expressed no doubt as to defendant’s competence. Accordingly, they were under no duty to hold a competency hearing based solely on counsel’s opinion that defendant might be incompetent. It must also be remembered that counsel’s concerns regarding defendant’s competency were based primarily on defendant’s refusal to assist counsel in his defense.

The record establishes, however, that even though there was a definite lack of rapport and cooperation between counsel and defendant initially, the situation improved markedly by the third hearing. Not only did defendant agree to a one-month continuance of the preliminary hearing and a sixty-day continuance of the trial, but he eventually provided the requested releases for parole and probation records, police reports and school records. Defendant also met with the defense psychiatrist as agreed at the second hearing, with no apparent resistance or problems.

Significantly, defense counsel did not further pursue the competency issue once defendant became cooperative. On this record, we cannot say as a matter of law that the evidence raised a substantial doubt as to defendant’s mental competence. Accordingly, the lower courts were under no duty to order a competency hearing.

Because the record does not demonstrate a substantial doubt as to defendant’s competency, we reject defendant’s related claims that his counsel was ineffective in failing to request a competency hearing at any stage of the proceedings or in failing to move to set aside the information based upon defendant’s asserted incompetence at the preliminary hearing. B. Guilt Phase Issues 1. Videotape Evidence The day after the murder, the police made a videotape with the help of Maria Vargas, the victims’ downstairs neighbor.

The videotape showed the outside of Vargas’s apartment, the stairway that was located by her bedroom window, and a view from her bedroom toward the stairway landing and out toward the street. It also contained scenes in which a White man in a white shirt came down the stairs in broad daylight, stopped and turned to look directly toward Vargas’s apartment, and then ran off in the direction the assailants had run. At trial, the court admitted the videotape without its soundtrack. Defendant contends the court erred in admitting the videotape as a reenactment, and in admitting it to refresh Vargas’s recollection.

Preliminarily, we address the Attorney General’s argument that these claims have been waived. The record demonstrates that defense counsel had initially moved in limine to exclude the videotape on the grounds now asserted on appeal, but was unsuccessful. When the prosecutor requested to have the videotape admitted into evidence during Vargas’s examination, the trial court asked defense counsel, “Your objection to it being admitted?” Defense counsel responded: “I believe it’s the one that we’ve been over before.

No objection.” Although the Attorney General is correct that counsel’s remarks may be construed as indicating an abandonment of the earlier objections, we conclude that they are more properly understood as indicating counsel’s intent to preserve such objections but to raise no additional ones. Nonetheless, for the reasons below we find defendant’s claims to be without merit. a.

Admissibility Defendant contends that the videotape should have been excluded because the prosecution failed to lay a foundation showing the accuracy of certain scenes in the tape as reenactments of what Vargas witnessed the night of the murder. (People v. Boyd (1990) 222 Cal.App.3d 541, 565-566 [271 Cal.Rptr. 738]; People v. Vaiza (1966) 244 Cal.App.2d 121, 127 [52 Cal.Rptr. 733].) Specifically, defendant claims that three scenes featured in the videotape were inaccurate in the following particulars.

First, the scenes were each shot in broad daylight, whereas the actual events occurred in the middle of the night and were illuminated only by an artificial light located above the stairs. Second, the three scenes each depicted one White male wearing a white shirt coming down the stairs and running off, whereas Vargas testified she saw two males, one Hispanic and one “Black” or “dark,” wearing dark clothing on the night of the murder.

Third, while one scene correctly showed Vargas’s vantage point from inside her apartment looking out the bedroom window, another scene which featured a woman and child standing outside the apartment was inaccurate in this regard. Defendant asserts that these inaccuracies were prejudicial in that they created a misleading impression of what Vargas witnessed and transformed her “shaky” identification of him into a memorable and persuasive image.

In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. (DiRosario v.

Havens (1987) 196 Cal.App.3d 1224, 1232 [242 Cal.Rptr. 423].) Within these limits, “ ‘the physical conditions which existed at the time the event in question occurred need not be duplicated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken. [Citation.]’ ” (Id., at pp. 1232-1233.) In this case, the trial court properly found the videotape admissible.

The videotape had been offered as demonstrative evidence to show the jurors the relative locations of the victims’ apartment, Vargas’s apartment, the rear stairway and the driveway of the apartment building. In particular, the videotape had been intended in part to show Vargas’s vantage point as she witnessed the assailants flee the scene.

Therefore, once Vargas confirmed in her testimony that the videotape accurately showed the area where she was and where she saw the assailants, the trial court could correctly conclude that the videotape was a reasonable representation of the physical layout of the apartment building and Vargas’s vantage point. Moreover, the court could properly find that a viewing of the videotape would aid the jurors in their determination of the facts of the case notwithstanding the claimed inaccuracies. (DiRosario v. Havens, supra, 196 Cal.App.3d at pp. 1232-1233.) Relying on People v.

Boyd, supra, 222 Cal.App.3d 541, and People v. Vaiza, supra, 244 Cal.App.2d 121, defendant contends that the difference in lighting conditions precluded admission of the videotape. Unlike the instant situation, however, those cases involved photographs or films that purported to show lighting conditions at the time of the incidents in question.

Because the purpose of the evidence in those cases was to demonstrate to the jury the lighting conditions under which witnesses were able to view the events of the crime, those conditions assumed great significance in assessing the admissibility of the evidence. (See People v. Boyd, supra, 222 Cal.App.3d at p. 566; People v. Vaiza, supra, 244 Cal.App.2d at p. 127.) But here the videotape was not offered for the purpose of showing lighting conditions on the night in question. Therefore, defendant’s reliance on the above cases is misplaced.

Furthermore, we reject defendant’s claim that the videotape’s inaccuracies created a misleading impression of the events witnessed by Vargas, as well as his further claim that the tape should have been excluded as being more prejudicial than probative. First, defendant fails to demonstrate how the various inaccuracies could have made the videotape misleading as to the purposes for which it was offered.

Second, the inaccuracies either were obvious to the jurors (such as the fact that Vargas had not testified to seeing one White male in a white shirt flee the scene), or, if not so, were specifically brought to their attention. For example, the prosecutor elicited testimony from Vargas that the videotape was filmed during the day, while the events she witnessed occurred at night. He also had Vargas clarify that, consistent with one of the videotaped scenes, her vantage point was from the inside of her apartment looking out through her bedroom window.

Moreover, the prosecutor made no attempt to pass the videotape off as depicting exactly what Vargas saw the night of the murder. He also never assumed or suggested through his questioning of Vargas that she was outside of her apartment, or that she was looking through an open bedroom door when she saw the assailants. Hence, any potentially prejudicial effects of the inaccuracies were minimized, if not virtually eliminated. No abuse of discretion appears.

Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the differences identified by defendant on appeal. (See Greeneich v. Southern Pacific Co. (1961) 189 Cal.App.2d 100, 108 [11 Cal.Rptr. 235] [court properly admitted motion picture with sound of train purporting to run over crossing

section in question, even though lighting and other conditions in motion picture were dissimilar to those surrounding accident].) Admission of the videotape did not constitute error, prejudicial or otherwise. b. Refreshing Vargas’s Recollection Defendant also contends it was erroneous for the court to admit the videotape at trial to refresh Vargas’s recollection, and to allow the prosecutor to play and refer to the videotape, since Vargas had not stated that she could not remember any of the facts which the prosecutor sought to elicit. (See People v.

Lee (1990) 219 Cal.App.3d 829, 840 [268 Cal.Rptr. 595] [“A witness may refer to hearsay to refresh his recollection; however, before doing so the witness must testify he cannot remember the fact sought to be elicited.”].) This claim is devoid of merit. Contrary to defendant’s assertion, the prosecutor offered the videotape to demonstrate the physical layout of the apartment building, and to show Vargas’s vantage point as she viewed the assailants fleeing the scene of the crime. Since the videotape was neither offered nor admitted at trial for the purpose of refreshing Vargas’s recollection, People v.

Lee, supra, 219 Cal.App.3d at page 840, is inapposite. Additionally, the court committed no error in allowing Vargas to view the videotape to refresh her recollection before taking the stand. Even if Vargas could remember the events independently without the videotape, defendant has cited no authority under which Vargas could have been prevented from watching it before trial. 2. Hearsay Evidence Regarding Identifications Menlo Park Police Detective Ronald Williams testified at trial that: (

a) Vargas identified Juan Garcia at his preliminary hearing; (

b) Vargas told the detective at Garcia’s preliminary hearing that she had previously recognized Garcia in a live lineup; and (

c) neither Vargas, Zavala nor any other person had chosen Richard Lopez or Nathan Howard from a photographic lineup. Defendant contends the admission of these hearsay statements constituted prejudicial error and denied him the benefit of various constitutional protections. a. Identification of Garcia at Preliminary Hearing The prosecutor asked Detective Williams on direct examination whether Vargas had positively identified Garcia at a preliminary hearing. Defense counsel objected on hearsay grounds. After the prosecutor asserted it was “a prior identification,” the trial court overruled the objection. The detective then testified that Vargas did identify Garcia in court. Under Evidence Code

section 1238, evidence of a statement of identification is not made inadmissible by the hearsay rule when the statement would have been admissible if made by the witness while testifying and the following additional foundational requirements are met: “[U (

a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [U (

b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and ["jQ (

c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.” Defendant contends there had been no evidence, from Vargas or any other witness, that the occurrence was fresh in her mind at the time of her statement. (Evid.

Code, § 1238, subd. (b).) He also asserts that Vargas had not previously testified that she made an identification of Garcia at the preliminary hearing. {Id., § 1238, subd. (c).) Defendant argues that these foundational deficiencies severely undermined any asserted reliability of the purported identification. Once admitted, he contends, Vargas’s prior identification of Garcia served to show that she had consistently identified Garcia, thereby lending significantly more credibility to her allegedly less certain identification of defendant.

Even if the foundational requirements for a prior identification were not all satisfied, the admission of the challenged evidence could not possibly have prejudiced defendant. First of all, the evidence was essentially cumulative of other evidence in the record demonstrating Vargas’s recognition of Garcia. Vargas testified both on direct and redirect examination that, although she did not initially identify Garcia at his live lineup because she was afraid for herself and her child, she nonetheless recognized Garcia as one of the men she saw.

Vargas was also able to recognize and identify Garcia from a photograph at the time of trial. More significantly, Vargas’s recognition and identifications of defendant were not, as defendant suggests, uncertain. At trial, Vargas explained that although she recognized defendant as one of the fleeing men when initially shown his photo in 1987, she chose not to identify him at that time because she was afraid. However, Vargas overcame her fear and stepped forward to identify defendant both at his preliminary hearing and at a subsequent photographic lineup. She also identified him at trial.

Since Vargas’s testimony was both consistent and unwavering in this regard, it is not reasonably probable that the admission of Vargas’s identification of Garcia at his preliminary hearing affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Finally, defendant argues that his constitutional right of confrontation was abridged because he was unable to cross-examine Vargas at' Garcia’s preliminary hearing and because Vargas was excused as a witness before Detective Williams took the stand. Not only was this claim waived by the failure to assert it below (Evid.

Code, § 353), it is without merit. Where the witness is available at trial for cross-examination, the principal danger of admitting hearsay evidence is not present (see People v. Gould (1960) 54 Cal.2d 621, 626-627 [7 Cal.Rptr. 273, 354 P.2d 865]), and neither the federal nor the state constitutional right of confrontation is violated (California v. Green (1970) 399 U.S. 149, 153-164 [26 L.Ed.2d 489, 494-501, 90 S.Ct. 1930]; People v. Chavez (1980) 26 Cal.3d 334, 349-361 [161 Cal.Rptr. 762, 605 P.2d 401]; see also People v. Johnson (1992) 3 Cal.4th 1183, 1220 [14 Cal.Rptr.2d 702, 842 P.2d 1]).

Here the record shows that Vargas had not been excused, but had testified on rebuttal in response to other new evidence elicited by the defense during its cross-examination of Detective Williams. Because Vargas apparently was available for recall and cross-examination on this matter had defense counsel so requested, defendant’s right of confrontation was not abridged. b.

Vargas’s Recognition of Garcia at Prior Lineup Immediately after Detective Williams testified that Vargas identified Garcia at his preliminary hearing, the prosecutor asked him: “The date of the preliminary hearing where you had the discussion with Mrs. Vargas, did she indicate to you that she had in fact recognized Mr. Garcia on the stage?” When defense counsel objected to the question as “leading and hearsay," the prosecutor responded: “It’s a prior inconsistent statement.” After the trial court overruled the objection, Williams answered: “Yes.

She stated that she had identified him on each of the occasions; however, she was in fear of safety for herself and for her family and that’s why she failed to specifically point him out in those situations.” Defendant contends that the trial court erred in overruling his objection because Vargas’s purported statement to the detective was consistent, not inconsistent, with her testimony. Defendant claims that the erroneous admission of the statement prejudiced him by making Vargas’s testimony appear more credible and persuasive than it actually was. This claim is unavailing.

Even if the challenged evidence was not admissible as a prior inconsistent statement, any error in its admission was clearly harmless. First, the statement was merely cumulative of Vargas’s trial testimony. Second, as discussed previously, Vargas was consistent and unequivocal in her recognition of defendant. Given the record, it is not reasonably probable that admission of the statement affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.) Defendant next claims for the first time on appeal that the erroneous admission of Vargas’s extrajudicial statement abridged his right of confrontation.

The record, however, discloses that defendant’s counsel did, in fact, cross-examine Vargas earlier about Garcia’s live lineup, although he did not dwell on the matter. Moreover, as noted previously, Vargas was apparently available for additional cross-examination had defense counsel so requested. Under these circumstances, defendant’s right of confrontation was not abridged. (California v. Green, supra, 399 U.S. at pp. 153-164 [26 L.Ed.2d at pp. 494-495]; People v. Johnson, supra, 3 Cal.4th at p. 1220; People v.

Chavez, supra, 26 Cal.3d at pp. 349-361.) c. “Nonidentification” of Richard Lopez and Nathan Howard Detective Williams testified without objection that Vargas and Zavala viewed photographic lineups containing the photographs of Richard Lopez (Ontiveros’s boyfriend) and Nathan Howard (a friend of Garcia’s who appears to have been of African-American ethnicity). He further testified without objection that neither Vargas nor Zavala identified these two men as suspects in the case, and that Zavala specifically stated that Lopez was not involved in the crimes.

Subsequently, the prosecutor asked: “With respect to the photographic line-ups of Richard Lopez and Nathan Howard, in the entirety of the investigation in this case[,] has anyone identified a photograph of Richard Lopez as a participant in this crime?” Defense counsel objected on the grounds that the question was argumentative and called for opinion, hearsay and speculation. After the prosecutor responded that the question called for acts occurring in the witness’s presence and that the absence of an identification was not hearsay, the objection was overruled.

The detective responded: “No one ever identified Richard Lopez or Nathan Howard as being participants in this crime.” Defendant contends the court erred in admitting Detective Williams’s testimony that no one, including Vargas and Zavala, identified Lopez or Howard during the course of the investigation. He claims that such “nonidentification” evidence constituted inadmissible hearsay, and that its admission abridged his constitutional right of confrontation and prejudiced his attempt to inject reasonable doubt into the jurors’ minds that a third party (i.e., Howard) committed the crimes.

We see no basis for reversal. In the first place, defense counsel failed to object to the questions and responses pertaining to Vargas and Zavala. Although counsel subsequently objected to the more generalized question asking if anybody had ever identified Lopez as a participant, this was insufficient to preserve for review the issues concerning Vargas’s and Zavala’s responses. (Evid. Code, § 353; People v.

Zapien (1993) 4 Cal.4th 929, 979-980 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Defendant asserts that if this issue is deemed waived, counsel was necessarily incompetent because there was no legitimate tactical reason for not objecting to the questions pertaining to Vargas and Zavala.

We disagree. “Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence. [Citations.] To establish ineffective assistance, a defendant must show that counsel’s actions ‘fell below an objective standard of reasonableness under prevailing professional norms.’ [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577, 621-622 [276 Cal.Rptr. 874, 802 P.2d 376]; see People v.

Zapien, supra, 4 Cal.4th at p. 980 [convictions will be reversed only if the record on appeal affirmatively discloses that counsel had “no rational purpose” for the act or omission].) In this case, defense counsel reasonably might have chosen for tactical reasons not to object because Vargas and Zavala were available for recall and cross-examination, and thus could have testified directly about these matters. (See People v.

Ratliff (1986) 41 Cal.3d 675, 692 [224 Cal.Rptr. 705, 715 P.2d 665].) In any event, even assuming that the issue had been preserved for review and that some or all of the evidence constituted inadmissible hearsay, we are satisfied that the admission of the testimony was not prejudicial. Inasmuch as there had been no evidence that anyone had ever identified Howard or Lopez as a participant in the crimes, Williams’s testimony merely reflected the state of the record.

Moreover, defense counsel only briefly raised the issue of Howard’s or Lopez’s possible involvement during his closing argument, presumably because the evidence supporting this theory was marginal at best.

In contrast, the evidence pointing to defendant’s involvement was strong, consisting of, inter alia: (1) positive identifications by both Vargas and accomplice Ontiveros; (2) evidence that on the morning after the crimes, defendant sought treatment for an arm injury matching descriptions provided by Vargas, Ontiveros and Zavala; and (3) evidence that on that same morning, defendant requested his brother to lie about his arm injury and to retrieve his car from Ontiveros. Thus, it is not reasonably probable that the perceived error affected the verdict. (People v. Watson, supra, 46 Cal.2d at p. 836.) 3.

Reading of Vargas’s Testimony to Jury During guilt phase deliberations, the jury requested portions of testimony of Vargas and two other witnesses. With respect to Vargas, the jury requested “[djirect and/or cross concerning what photo line-ups were shown to her prior to preliminary hearing and what identifications were made.” The trial court ordered certain excerpts to be read to the jury, including three portions of Vargas’s testimony explaining that she did not identify defendant in the photo lineup predating the preliminary hearing because she was afraid.

The court, however, refused defense counsel’s request to read portions of her recross-examination testimony that, according to defendant, would have tended to cast a very different light on her alleged “fear” and would have suggested that, had she been truly afraid of defendant, she would not have identified him at his preliminary hearing.

Defendant contends that the court’s refusal to delete Vargas’s statements that she was afraid or, in the alternative, to include her other testimony that tended to contradict or explain that remark, was an abuse of discretion that unfairly highlighted testimony unfavorable to defendant and violated his rights to due process, a fair jury trial and a reliable guilt determination. He contends that Vargas’s fear testimony should not have been read for the additional reason that it raised the possible, but impermissible, inference that defendant had threatened her.

In response, the Attorney General asserts that defendant waived any objection to some parts of the challenged testimony because it was his counsel who requested that they be read. (Evid. Code, § 353.) Although defendant disputes the waiver contention, he requests that we review the matter in the context of an ineffective assistance claim if a waiver is found. We find it unnecessary to decide the issues of waiver and ineffective assistance since the underlying claim is so clearly lacking in merit.

Vargas’s testimony concerning her fear was directly relevant to why she did not identify defendant at the photo lineup. To have omitted this testimony as part of the reading would have grossly distorted the record. No error appears. The court also did not err in denying defendant’s request to read portions of Vargas’s recross-examination testimony pertaining to her identification of defendant at his preliminary hearing and to her failure to identify Garcia at his live lineup.

Unlike the fear evidence, this other testimony was not responsive to the jury’s request for “what photo line-ups were shown to her prior to the preliminary hearing and what identifications were made.” In any event, the court’s ruling, even if in error, did not prejudice defendant. The reading of Vargas’s testimony was brief, and given in conjunction with testimony by two other witnesses.

Additionally, the reading included defense counsel’s questioning of Vargas to the effect that if Vargas was actually afraid of defendant, “she could have said what she said at Garcia’s live lineup.” In substance, this was precisely the point defense counsel had hoped to make with the other excluded portions of Vargas’s testimony. (See fn. 28, ante.) Accordingly, any perceived error was harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.) Finally, defendant argues that Vargas’s fear testimony impermissibly suggested that he or someone associated with him had threatened her. (See People v.

Mason (1991) 52 Cal.3d 909, 946-947 [277 Cal.Rptr. 166, 802 P.2d 950]; People v. Weiss (1958) 50 Cal.2d 535, 554 [327 P.2d 527]; People v. Pitts (1990) 223 Cal.App.3d 606, 778-781 [273 Cal.Rptr. 757].) We reject this claim at the outset because it was not asserted at trial. (Evid. Code, § 353.) We also find it unpersuasive on the merits. There is no suggestion in the record, either from Vargas’s own testimony or from the conduct of trial, including the prosecutor’s arguments, that the jury had been told or otherwise left with the impression that Vargas’s fear might have been attributable to a threat. 4.

Evidence Regarding the Victims’ Relationship a. Exclusion by the Trial Court On direct examination, the prosecutor asked Zavala if he and his brother were “very close.” Zavala replied: “Of course.” On cross-examination, Zavala was asked if he had an uncle in Mexico named Castro.

After the trial court sustained the prosecutor’s relevance objection to this question, defense counsel made an offer of proof, outside the presence of the jury and the witness, that Zavala and Barragan had an uncle named Castro in Mexico who had heard Zavala indicate that he and Barragan for a long time had not been speaking because of Barragan’s drug dealing. Defense counsel argued that the evidence would show that the brothers in fact were not close, and that the drug dealing was a source of irritation between them.

Defense counsel also referred to a series of police reports indicating that Zavala was initially suspected to be Barragan’s murderer. The court sustained the prosecutor’s objection pursuant to Evidence Code

section 352, finding that the probative value of the proffered evidence would be outweighed, if not by the time it would take to introduce it, then by the confusion it would cause. The court also denied defendant’s motion to strike Zavala’s earlier testimony that he and Barragan were close. Defendant contends that the trial court prejudicially erred in excluding the above evidence. We disagree. Under Evidence Code

section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Dyer (1988) 45 Cal.3d 26, 73 [246 Cal.Rptr. 209, 753 P.2d 1].) Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v.

Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79].) Applying this standard, we find no abuse of discretion. First of all, the relevance of the proffered evidence was not clear since the defense did not establish when the alleged communication between Zavala and his uncle took place, or when the supposed falling out between the brothers occurred. Second, even if a relevant time frame could have been demonstrated, the proffered evidence had little, if any, significance to the vital issues in the case against defendant.

Thus, even though defense counsel had represented to the trial court that he did not intend to dwell on the subject, the court cannot be faulted for concluding that the probative value of such evidence was outweighed by concerns that an exploration of the relationship between the two brothers would consume undue time and confuse the issues. In any event, assuming there was an abuse of discretion, reversal is not warranted. Defendant’s involvement in the instant crimes was firmly established through two witnesses other than Zavala: Maria Vargas and defendant’s accomplice, Cynthia Ontiveros.

Hence, it is not reasonably probable that a more favorable result would have occurred had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) b. Prosecutorial Misconduct and Ineffective Assistance of Counsel Defendant contends that the prosecutor committed misconduct by stating in his guilt phase closing argument that Zavala loved his brother, that he had no motive to lie, and that he had no reason to falsely identify the wrong person as his brother’s killer.

Defendant claims that the prosecutor, having obtained the favorable ruling excluding defendant’s proffered evidence, then used the evidence of Zavala’s closeness to Barragan to convince the jury that Zavala’s less than certain identification of defendant was in fact accurate. He claims this use of the evidence contradicted an earlier representation made by the prosecutor that the only purpose for establishing the brothers’ closeness was to help the jurors appreciate Zavala’s state of mind as he was perceiving the attack on Barragan. (Cf. People v.

Varona (1983) 143 Cal.App.3d 566, 570 [192 Cal.Rptr. 44] [finding misconduct where prosecutor argued a falsehood to the jury and also argued the “lack” of evidence even though the defense was ready and willing to produce it].) We need not address these claims on the merits because defense counsel’s failure to object to the prosecutor’s remarks waives the issue on appeal. (.People v.

Cummings (1993) 4 Cal.4th 1233, 1334-1335 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Nevertheless, we will reach the merits in response to defendant’s assertion that the failure to assign misconduct constituted ineffective assistance of counsel.

Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. (People v. Mayfield (1993) 5 Cal.4th 142, 199 [19 Cal.Rptr.2d 836, 852 P.2d 331]; People v.

Cox (1991) 53 Cal.3d 618, 656 [280 Cal.Rptr. 692, 809 P.2d 351].) If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, “ ‘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.’ [Citation.]” (People v. Cox, supra, 53 Cal.3d at p. 656.) In this case, neither incompetence nor prejudice has been established.

First of all, the main thrust of the prosecutor’s statements, i.e., that Zavala had no reason to identify anyone but the guilty party as his brother’s murderer, was not dependent on the evidence that the brothers were close. Whether or not the brothers shared a close relationship, the record remained devoid of any evidence suggesting a reason or motive for Zavala to wrongly identify defendant. Since the gist of the prosecutor’s argument was appropriate, defense counsel’s failure to assign misconduct was not unreasonable. In any event, defendant fails to demonstrate prejudice.

Overwhelming evidence of defendant’s involvement in the instant crimes was presented through Vargas, Ontiveros and others. Thus, even if a competent attorney would have succeeded in persuading the trial court to strike this entire aspect of the prosecutor’s argument, it is not reasonably probable that the omission would have resulted in a more favorable result for defendant. (People v. Mayfield, supra, 5 Cal.4th at p. 199; People v. Cox, supra, 53 Cal.3d at p. 656.) No basis for reversal appears. 5.

Exclusion of Zavala’s Opinion Testimony On cross-examination, defense counsel asked Zavala if he had previously told a defense investigator “that you thought it looked like the attackers had come to the apartment to kill your brother?” The trial court sustained the prosecutor’s objection that the question called for speculation as to the intent of the attackers. Defendant contends the trial court erred because the question called not for speculation, but for the witness’s opinion as to what he personally perceived during the attack.

Defendant claims the error was prejudicial because the evidence would have created a reasonable doubt on the special circumstance allegations and the underlying charges of attempted robbery and burglary by showing that defendant’s purpose when he entered the apartment was strictly to kill Barragan. While not disputing the issue of error, the Attorney General argues that no possible prejudice could have resulted from the omission of the evidence. We agree that any perceived error was harmless. At trial Cynthia Ontiveros testified that she, Garcia and defendant planned to rob Zavala and Barragan.

She provided details of their planning and of the events leading up to the attack. She also described what happened after the three fled the crime scene, providing particulars concerning defendant’s injury, his disposal of the murder weapon, and the washing and return of defendant’s car.

Although Zavala may have thought it looked like the attackers had come to kill his brother, that would not have been necessarily inconsistent with Ontiveros’s testimony and Zavala’s other testimony indicating that the two attackers coordinated their efforts to gain access to the apartment, subdue the brothers and obtain whatever “it” was. Additionally, if admitted, Zavala’s testimony arguably would have bolstered the theory that Garcia and defendant conspired to rob the brothers and to leave no witnesses.

Given all the evidence in the record, as well as the fact that there was no evidence that defendant previously knew or even heard of Barragan, it is highly unlikely that the jury would have believed the motive was other than robbery. 6. Accomplice Corroboration Defendant contends that because the sole evidence of burglary and

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