THE PEOPLE, Plaintiff and Respondent, v. MELVIN TURNER, Defendant and Appellant, 8 Cal. 4th 137

Opinion ARABIAN, J. —This case reaches us again after a retrial following this court’s reversal of defendant’s conviction and death sentence. In reversing, we concluded that the prosecution failed to sustain its burden of showing that the challenged prospective jurors were not excluded because of group bias, and the trial court failed to discharge its duty to inquire into and carefully evaluate the prosecutor’s proffered explanations, in violation of People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. (People v.

Turner (1986) 42 Cal.3d 711, 728 [230 Cal.Rptr. 656, 726 P.2d 102] [Turner I].) At the ensuing retrial in 1987, the jury found defendant guilty of two counts of first degree murder (Pen. Code, §§ 187, subd. (a), 189), and further found that defendant had personally used a firearm (a handgun). (§§ 12022.5, 1203.06, subd. (a)(1).) The jury also found true the multiple-murder and robbery-murder special-circumstance allegations. (§ 190.2, subd. (a)(3) & (17)(i).) Defendant was also found guilty of two counts of robbery (§211), and personal-use-of-a-firearm allegations as to those counts were found to be true.

Defendant was also found guilty of one count of grand theft vehicle. (Veh. Code, § 10851.) Defendant personally waived his right to trial by jury as to three prior felony conviction allegations. The court found the allegations to be true. At the penalty phase, the jury fixed the penalty for murder in the first degree with special circumstances at death, and thereafter the court imposed a sentence of death. The case is before us again on automatic appeal. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons that follow, we conclude that the judgment should be affirmed. I. Facts A. Guilt Phase 1.

Prosecution Evidence On the night of July 11, 1979, defendant drove codefendant Teague Hampton Scott to the Torrance Airport, where defendant had worked as a security guard. While at the airport, defendant followed a 1979 yellow Mazda RX7 that Scott wanted to steal. The vehicle stopped outside a hangar. When the victims, Dr. George S. Hill, Jr., a surgeon, and Ms. Joella Champion, a schoolteacher, got out of the Mazda and entered the hangar, defendant and Scott got out of their car and followed them. A robbery ensued, during which the victims’ jewelry was taken at gunpoint.

The victims were then bound hand and foot, gagged, and forced to sit against the wall of the hangar. Each victim was shot in the head once at close range by a .38-caliber gun. Death was immediate. The victims’ bodies were discovered at approximately 11 p.m. on July 12. The door to the hangar, which contained an airplane owned by Champion, was locked, and the light inside was on. The coroner estimated the times of death as late on the evening of My 11, or early morning My 12.

At the time of the murders, the Torrance Airport had recently installed a 24-hour noise monitoring system that included microphones at various locations in and around the airport. The July 11 tape recording indicated that two sharp noises, consistent with gun shots, were recorded approximately three seconds apart at 11:16 p.m. on that date in the area where the bodies were found. After taking the Mazda and driving to Los Angeles in separate cars, defendant and Scott divided the stolen property. Scott kept Hill’s car and drove it around for two days before abandoning it.

The car key was subsequently found on the ground near the car. Scott’s fingerprints were found on the car and the key. Early on the morning of July 12, 1979, defendant attempted to use Hill’s Arco credit card to purchase gasoline. He was driving a Cadillac with a green body and white top. Defendant admitted using a stolen commercial plate on the vehicle, so that the card could not be traced to his car. Defendant gave the credit card to attendant Steven Bums, and signed the charge slip. The charge slip contained the vehicle’s license number.

The station manager, Willie Atterberry, said the card was good, but that he needed some identification. Defendant gave Atterberry Hill’s driver’s license. Hill was White and approximately 34 years old. Defendant was Black and 22 years old. Atterberry said, “No. I need your driver’s license.” Defendant responded, “This is all I have.” Atterberry said, “[W]ait and let me check on it.” While he was talking with the station owner, defendant drove off. The charge card was given to the police. Hill’s estranged wife later received the license and two charge slips in the mail.

On July 31, 1979, defendant and Scott were seen by police in a Chrysler owned by Nathaniel Tribet, defendant’s stepfather, driving in and out of the valet parking lot at the Horseshoe Card Club in Gardena. After a high-speed chase, defendant abandoned the vehicle and escaped. Defendant’s fingerprints were found on the car. Scott was arrested. Two handguns were taken from the car. One of these guns, a Smith & Wesson .38-special-caliber revolver, was subsequently determined by ballistics evidence to be the murder weapon. It was located under the seat where Scott had been sitting.

Scott’s fingerprints were found on the murder weapon, and he was in possession of Hill’s gold Omega watch. Nathaniel Tribet was the registered owner of the murder weapon, which he had used in his work as a security guard. Defendant’s brother, Roy Turner, had retrieved the weapon from Tribet’s van after Tribet had an accident a few months before the murders. Roy lent defendant the gun on several occasions. The last time Roy saw the gun was when he gave it to defendant and/or Scott with the expectation that it would be sold to Scott.

Several items of Champion’s jewelry that she had been seen wearing on the night of her murder were subsequently linked to defendant. On August 3, at the time of defendant’s arrest, Champion’s unique gold rope chain was found hanging from the rear view mirror in defendant’s recently repainted Cadillac. Her engraved, custom-made gold ring with a green turquoise stone was in the possession of defendant’s friend, Reverta Austin, who was with him at the time of his arrest. Defendant gave Austin the ring to hold that night because he observed the police following him.

Defendant’s residence was searched early on August 4, 1979. In defendant’s bedroom, Torrance Police Officer Emilio Paerels retrieved from a green jacket Champion’s Inland Door and Gate condominium card, and her “SAM Gold card” from a discount store in Redondo Beach. Defendant made several inconsistent statements regarding his involvement in the Torrance murders. On August 5, 1979, defendant was interviewed by Compton Police Officer Kay Barger-Collins regarding the unrelated Julia Marmor homicide. During this interview, defendant volunteered information regarding the Torrance murders.

Defendant was then interviewed by Torrance Police Officer Green and his partner Officer Paerels. Officer Barger-Collins did not participate in this interview. Defendant waived his right to remain silent and to counsel, and stated that he was speaking to the officers of his own free will. He further stated that there had been no mention of Torrance officials offering him immunity or any other promises or threats with regard to the airport murders. Defendant stated that while he was at the airport when the murders occurred, he was not the one who pulled the trigger.

Rather, he merely stood guard at the door of the hangar for Scott, and did not enter the hangar. Once Scott had bound the victims and placed them with their backs to the wall, defendant began running to the car because he thought they were leaving. Halfway to the car, defendant heard one shot and then another. Defendant and Scott subsequently divided the property. Defendant received $60 and the gold ring with a green stone he later gave to Austin. Scott told defendant he had shot the robbery victims in the head because he did not want to leave witnesses behind to testify against him.

Defendant said he had learned Scott was trying to blame him for the crime. Defendant was then asked, “I’m curious ... the seriousness of an involvement in a double murder. Why ... are you voluntarily talking to us? Defendant responded that he was “not going to sit up and take no murder rap for nobody.” On August 7, at his request, defendant was interviewed again. The interview was conducted by Officer Barger-Collins and Gardena Police Officer Dale Pierce. Both of these officers were investigating the Marmor homicide.

Defendant stated that he was aware of and freely and voluntarily waived his constitutional rights. Officer Barger-Collins noted that they were talking about the Torrance homicides and that there were “some additional statements that need clarification, or statements that [defendant] wish[ed] to change.” Defendant stated that on the night of the murders, he and Scott entered the hangar after defendant was unable to locate Champion’s purse in the Mazda. Defendant bound the woman. Scott gave defendant the gun. Scott then tied up the man.

Scott told defendant to watch the victims, who were tied and sitting on their knees. After Scott had gathered all of the property, he told defendant to shoot. Defendant had already cocked the gun, which was pointed at the woman’s ear and temple, and his finger was on the trigger. Scott said, “Remember what I told you, anybody we rob, we got to shoot, cuz we can’t leave a witness behind.” Scott kept hollering, “shoot her and get it over with so we can leave.” Defendant stood shaking and trembling and would not pull the trigger. Scott grabbed defendant’s hand, the gun went off, and Champion fell.

Scott then took the gun and shot Hill in the head. Approximately one minute transpired between the two shootings.

Defendant admitted at trial that after the August 5 interview tape was played for the jury, he told a bailiff that the statement defendant made on August 5 was “not so bad” as the one he made on August 7, but he thought he could “get around that.” On August 13, 1979, Armand Vincent, who had been charged with misdemeanor violations of performing home repair and remodeling without a contractor’s license, was on a jail bus to and from the Torrance courthouse with defendant and Scott as they conversed about the minders.

Vincent, who was wearing a blue wristband, was handcuffed to defendant, who was wearing a red or orange wristband. Scott was separated from defendant and Vincent by a screen. When Scott said, “I didn’t have any idea we were going to kill anyone,” defendant responded, “Well, you know, man, dead witnesses don’t talk.” In response to Scott’s question, “How did you do it?” defendant said he “killed the man and then the woman” with two shots, and that the victims were tied with their hands behind their back. 2.

Defense Evidence The defense evidence consisted primarily of defendant’s third version of events on the night in question, his explanation for earlier inconsistencies, and other witness testimony challenging Vincent’s recollection. Defendant testified on his own behalf. He had previously been convicted of receiving stolen property and burglary. He spent time in prison, where he met Scott, who was in prison for robbery. Scott told defendant he would kill the people he robbed. Defendant considered Scott a friend. Defendant was released in April 1979.

He was hired as a security guard, and worked part of the time at the Torrance Airport. He was fired sometime before the murders. Scott was released several months after defendant. Upon his release, Scott called defendant. Scott and defendant saw each other a half dozen to a dozen times before July 11. Defendant sold Scott the gun later used in the murders. On the night of the murders, Hill and Champion left their car and entered the hangar. After examining the Mazda, Scott entered the hangar and pulled a gun on the victims. The gun had been in Scott’s waistband.

Scott had not told defendant, and defendant had not observed, that Scott had a gun. The gun “had to have been” covered by Scott’s green jacket. Defendant stayed outside acting as a lookout for the security guard. Scott had the victims lie on the ground and give him Hill’s keys and Champion’s purse. Scott then tore up rags into long strings of cloth and made Hill tie up Champion. Scott then tied up Hill. Defendant was still watching at the door. Scott “helped [the victims place] their backs up against the wall.” Scott put everything in a blue bag Hill had been carrying, and went back to the wall for something.

Defendant assumed Scott was leaving, and started running toward defendant’s car. As defendant ran, he heard gunshots, about as far apart as on the noise monitoring recording. Scott and defendant spent the night at defendant’s friend Angie’s. There, Scott gave defendant a turquoise ring and $60. Scott said he shot the victims because he needed the Mazda for a couple of days. Scott left his green jacket at Angie’s. Defendant subsequently discovered Hill’s gasoline credit card and license, which he unsuccessfully attempted to use, in the pocket of the jacket. Defendant modeled this jacket for the jury.

Defendant later helped Scott get rid of the Mazda, and continued to spend time with Scott. Defendant claimed he changed his original story of being only a lookout to an admission of more extensive participation because of Officer BargerCollins’s threats and coercion. Defendant had known Barger-Collins for several years. He considered her a friend and had worked for her as an informant in the past. Before making the August 5, 1979, statement, defendant spoke with Barger-Collins.

She said she would talk to defendant’s “parole officer and get him to lift the parole hold and talk to the judge to get me out.” Prior to his August 7, 1979, statement, which was inconsistent with and more self-incriminating than his August 5 statement, Barger-Collins had “appl[ied] pressure and threats on me, so I changed my statement.” In particular, she threatened to expose him as a narcotics informant. “[S]he told me that she wanted more involvement in—on my

part in this in order to sound convincing and everything, and that if I did not cooperate with her, that was it, I was going to be exposed. She wouldn’t help me.” “I basically got what she meant she wanted more participation on my behalf as far as being involved in the robbery and so forth.” Accordingly, defendant changed his original story of being only a lookout to an admission of more extensive participation, lying about looking inside the Mazda, going into the hangar, tying the victims up, holding the murder weapon, and the time between the shots.

Defendant cared “a lot” about Barger-Collins’s threat because most of the people he had turned in were dealing drugs to his family. Such exposure would cause hardship in his relationships with his family and with other people. He also knew that most “snitches” get stabbed or killed in prison.

Defendant, however, also testified that he “admitted to shooting the woman” not because of threatened exposure, but because Barger-Collins “told me anything that I said it would not matter because she was going to get me out any way so if it meant involving myself to get out, that is what I was going to do.” Defendant further testified that at some indeterminate time prior to the murders, Barger-Collins had paid him $250 for information, and that he had used this money to pay part of the cost to get his Cadillac repainted.

Defendant denied ever seeing Vincent on the prison bus, or discussing the murders with Scott on the bus. Defendant did not recall ever being handcuffed to another person on the bus; rather, he was kept in a separate cage. Los Angeles County Sheriff’s Department Captain Jerry West, who in August 1979 worked at the sheriff’s transportation bureau, testified that a person wearing a blue wristband would not ordinarily be handcuffed to someone wearing a red wristband. 3.

Rebuttal Evidence Los Angeles County Sheriff’s Deputy Joe Bond, a jail bus driver from 1972 to 1980, testified that it was possible that a prisoner charged with a misdemeanor would be handcuffed to a prisoner wearing a red wristband. He identified a sheriff’s department inmate special handling request to keep Scott away from defendant, but stated that such a request would be satisfied by keeping defendant and Scott on different sides of a screen. Barger-Collins testified that her purpose in interviewing defendant on August 5 was in reference to the unrelated Marmor homicide.

At the time, she knew nothing about the Torrance murders, and defendant volunteered everything she found out about the murders. Barger-Collins had not seen defendant from 1976 until August 5, 1979. She did, however, have numerous contacts with defendant in her official duties as a homicide detective between 1969 and 1976. She did not recall whether he had given her information regarding other people’s drug dealings, and she had never worked in narcotics or drug detail. She never gave defendant money for information. While she had used informants in the past, she had never paid money for information.

She did not consider defendant a friend, and never socialized with him. During these years she had developed a rapport with defendant, but she did not know if he trusted her. Barger-Collins denied threatening to expose defendant. She did tell him at some point prior to his August 7 statement that she would speak to his probation officer and to the judge. While she told defendant she thought he was lying about the unrelated homicide she was investigating, she denied indicating that she was not pleased with what he was saying. Defendant was the one who requested the August 7 interview with Barger-Collins. 4.

Surrebuttal Evidence Defendant was 5 feet and 2 inches tall, and weighed approximately 144 pounds. Scott was approximately 6 feet tall, and weighed 175 pounds. Mr. Stan Perlo, who was 6 feet tall and weighed between 180 and 190 pounds, modeled the green jacket recovered from defendant’s closet apparently to demonstrate that it would fit a person of Scott’s size, and would have concealed a weapon on the night of the murders. Perlo found the jacket was binding him under his armpits, and that it was not large and loose fitting. B. Penalty Phase 1.

Prosecution Evidence Pursuant to the prosecution’s request, the trial court informed the jury that defendant had previously been convicted of three felonies for receiving stolen property, burglary, and attempted robbery. With the submission of the prior convictions, the People rested. 2. Defense Evidence Defendant’s mother and one of his sisters, Delores Honeywood, testified as to defendant’s father’s alcohol abuse.

In addition, these witnesses, defendant, and another of defendant’s sisters, Bettie Ann Turner, testified regarding the verbal and physical abuse defendant’s father inflicted on his wife and children, and defendant’s efforts to monetarily and otherwise support the family. Defendant further testified that his father disappeared when defendant was about 13 or 14 years old. Defendant remained in school until the 10th grade and then dropped out to help his mother and younger siblings. His older brothers or sisters did not often give his mother any money or help.

Defendant began getting into trouble with the law as a teenager by shoplifting, stealing cars, and committing burglaries. He was convicted of receiving stolen property, attempted robbery, and burglary. He used marijuana when he was 16 or 17 years old, in prison, and on the night of the murders. Defendant testified as to his lack of notice that Scott intended to kill on July 11, and expressed remorse at his presence at the time of the murders. He continued to deny he shot the victims.

In response to the prosecutor’s inquiry regarding whether it would have been possible to see certain events defendant previously had made statements regarding from his vantage point at the hangar door, defendant modified his testimony to state that he had in fact entered the hangar “a couple of times.” Since his imprisonment on August 3, 1979, defendant had taken classes to raise his educational level and understand himself better. Defendant tried to help other young people who came to prison who were gang-affiliated, and expressed a desire to deter others from following in his footsteps. Dr.

Michael Paul Maloney, a clinical psychologist and clinical professor of psychiatry at the University of Southern California School of Medicine, testified that he performed a general psychological evaluation on defendant in November 1979. Dr. Maloney “obtained [defendant’s] history pretty much from birth on until the time I saw him.” He administered a number of intelligence and academic achievement tests, used devices that gave information about defendant’s “perceptual motor processes,” and performed a general evaluation of defendant’s personality.

Defendant evidenced no signs of significant mental disturbance and was not psychotic. His intelligence appeared to be potentially normal, but he had an “academic experiential deficit.” Dr. Maloney had re-examined defendant approximately one month earlier. On another occasion, Dr. Maloney’s psychological assistant readministered some of the same tests given in 1979. The test results were similar, and defendant’s overall mental state did not seem “grossly different” than when Dr. Maloney examined him in 1979. Dr.

Maloney noted that according to some of defendant’s prison records, defendant had taken several academic courses while in prison, receiving grades ranging from A to C minus. He opined that this indicated defendant’s ability to make productive use of his time in prison because the classes were not mandatory. Dr. Maloney did not discover anything in his investigation regarding any “violent attacks ... in connection with” defendant. Defendant’s pre-1979 prison records, including counselor’s reports, described defendant as a “follower" and “not really problematic,” one who was appropriate for medium security. Dr.

Maloney had “no data to indicate that [defendant] would not function appropriately" in prison. In Dr. Maloney’s opinion, defendant had the potential to make some sort of contribution in prison by using his time productively and serving as an example to other persons who were incarcerated. Dr. Maloney observed that defendant had a “chaotic history,” including multiple siblings, a broken home, an alcoholic father, and a possible learning disorder. He was of the opinion that defendant would have trouble functioning as a responsible person in society.

If, however, defendant were imprisoned for his entire life, he probably would be nonproblematic. II. Discussion A. Guilt Phase 1. Pretrial Issues a. Motion to Recuse Prosecutor Defendant contends that the trial court erred in denying his motion to recuse Deputy District Attorney Robert Martin, and that this error necessitates a new trial. This contention is without merit.

Defendant moved to recuse Martin on the ground “that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” Defendant relied on the fact that Martin was the prosecutor in defendant’s first trial, in which the judgment, as noted above, was reversed for Wheeler error. Defendant also noted that Martin was the prosecutor in the then ongoing trial of Jose Fuentes.

Defendant argued that “Martin’s use of peremptory challenges to limit the number of [Bjlack potential jurors [in defendant’s first trial] is in conflict with his duty not to challenge potential jurors solely on account of their race or on the presumption that [B]lack jurors as a group will be unable impartially to consider the State’s case against a [B]lack defendant.” Defendant further noted that Martin was currently “trying a capital case [Fuentes] in which 10 of the 14 peremptory challenges he used in that case were against [B]lacks.” Defendant contended that he could not “receive a fair trial if the jury is not drawn from a representative cross-section of the community ....

Therefore, Mr. Martin must be recused in order to ensure a fair trial for the defendant.” The trial court denied the motion without stating any reasons.

Section 1424 provides that a motion to recuse a district attorney “shall not be granted unless it is shown by the evidence that a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial.” (See People v. Conner (1983) 34 Cal.3d 141, 148 [193 Cal.Rptr. 148, 666 P.2d 5]; People v. Breaux (1991) 1 Cal.4th 281, 294 [3 Cal..Rptr.2d 81, 821 P.2d 585].) A conflict, “within the meaning of

section 1424, exists whenever the circumstances of a case evidence a reasonable possibility that the [district attorney’s] office may not exercise its discretionary function in an evenhanded manner.” (People v. Conner, supra, 34 Cal.3d at p. 148.) “In determining whether a ruling on a motion to recuse was proper, a reviewing court applies the abuse-of-discretion standard.” (People v. Hamilton (1988) 46 Cal.3d 123, 140 [249 Cal.Rptr. 320, 756 P.2d 1348]; People v. Breaux, supra, 1 Cal.4th at pp. 293-294.) We conclude that the trial court acted well within its discretion in denying the motion to recuse.

Defendant’s sole concern in making this motion was that Martin would, in the future, act to deny him a representative cross-section of the community in the jurors and thus a fair trial. However, we are not persuaded that Martin’s earlier error meant that the district attorney would not “exercise [his] discretionary function [in making peremptory challenges] in an evenhanded manner" in this trial. (People v.

Conner, supra, 34 Cal.3d at p. 148.) To follow defendant’s argument to its logical conclusion, any time a prosecutor makes a mistake at a trial, he will automatically be subject to recusal at any subsequent retrial. We find no basis for this result in

section 1424. Moreover, in Turner I, we concluded that while Martin failed to sustain his burden of showing that his peremptory challenges were not predicated on group bias, the “inadequacy of the prosecutor’s reasons was compounded by the court’s apparent acceptance of those reasons at face value.

In each instance the court listened to the prosecutor without question and promptly denied the motion without comment.” (Turner I, supra, 42 Cal.3d at pp. 727-728.) Thus, the trial court here was within its discretion in impliedly concluding that Martin’s lack of adequate explanation in the first trial did not mean he possessed “a vendetta against Black defendants and Black jurors,” as defendant asserts. Finally, as discussed more fully in

part II.A.l.b., post, a defendant has the remedy of responding to a perceived Wheeler violation by timely objecting and stating a prima facie case of group bias. The trial court could have reasonably concluded that the availability of this remedy was sufficient to curtail any possible iteration of Martin’s first trial error. Defendant advances two additional reasons in support of his recusal motion. These arguments were not raised below and were therefore waived.

Moreover, both of the alleged improprieties, that Martin made inconsistent arguments in defendant’s and Scott’s separate trials, and that he committed Wheeler error in this trial, occurred after the trial judge’s ruling on the recusal motion, and thus are not properly considered by us in reviewing the trial court’s ruling on that motion. Defendant further claims, “The actuality and appearance of a conflict and impropriety was increased by Martin’s intervening similar conduct in” People v. Fuentes. At the time of the motion, the Fuentes trial was ongoing.

The verdict in that case was ultimately reversed by this court in People v. Fuentes (1991) 54 Cal.3d 707, 721 [286 Cal.Rptr. 792, 818 P.2d 75]. While Martin’s actions were criticized in Justice Mosk’s concurring opinion, the basis for the majority’s reversal was the trial court’s failure to determine whether the prosecutor’s asserted reasons actually applied to the particular jurors challenged, not misconduct on the part of the prosecutor. (Id. at pp. 721, 722) Moreover, our opinion appeared long after the court’s ruling here.

We conclude that trial court did not abuse its discretion in denying defendant’s recusal motion. b. Prosecutor’s Exercise of Peremptory Challenges Defendant contends the prosecutor impermissibly used peremptory challenges to exclude members of a cognizable group from the jury in violation of his right to trial by a jury drawn from a representative cross-section of the community, guaranteed by

article I,

section 16 of the California Constitution, and of the prospective jurors’ right of equal protection. These claims are without merit. Defendant is Black, and both victims were White. The prosecutor used four of his six peremptory challenges against Black prospective jurors. Defendant used two of his seven peremptory challenges against Black prospective jurors, both of whom were identified by the prosecution as acceptable jurors. The jury that was ultimately impaneled contained five Black jurors.

It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions. (People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 82-83,106 S.Ct. 1712]; see J.E.B. v. Alabama ex rel.

T.B. (1994) _ U.S. _, _ [128 L.Ed.2d 89, 97, 114 S.Ct. 1419, 1421].) Under Wheeler and Batson, ‘“[i]f a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.

Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association.’ ” (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154 [5 Cal.Rptr.2d 268, 824 P.2d 1315], italics in original; People v. Garceau (1993) 6 Cal.4th 140, 171 [24 Cal.Rptr.2d 664, 862 P.2d 664].) If the trial court finds that the defendant has established a prima facie case, the burden shifts to the prosecution to provide “a race-neutral explanation related to the particular case to be tried” for the peremptory challenge. (People v.

Fuentes, supra, 54 Cal.3d at p. 714; Batson v. Kentucky, supra, 416 U.S. at p. 97 [90 L.Ed.2d at p. 88].) However, the explanation need not be sufficient to justify a challenge for cause. (Batson v. Kentucky, supra, 416 U.S. at p. 97 [90 L.Ed.2d at p. 88]; see People v. Johnson (1989) 47 Cal.3d 1194, 1216 [255 Cal.Rptr. 569, 767 P.2d 1047].) Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v.

Hall (1983) 35 Cal.3d 161, 170 [197 Cal.Rptr. 71, 672 P.2d 854].) There is a presumption that a prosecutor uses his or her peremptory challenges in a constitutional manner. (People v. Clair (1992) 2 Cal.4th 629, 652 [7 Cal.Rptr.2d 564, 828 P.2d 705].) We give great deference to the trial court in distinguishing bona fide reasons from sham excuses. (People v. Fuentes, supra, 54 Cal.3d at p. 714; People v. Wheeler, supra, 22 Cal.3d at p. 282.) Additionally, “[i]f the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.” (People v.

Howard, supra, 1 Cal.4th at p. 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092 [259 Cal.Rptr. 630, 774 P.2d 659].)

(1) Prima Facie Case We conclude that the trial court acted within its discretion in determining that no prima facie case had been established for prospective jurors Herman Palmer, Alice Shaw, and William Montgomery. At the end of the voir dire session in which prospective jurors Palmer and Shaw were peremptorily challenged by the prosecutor, the trial judge stated, “For the record, Juror Palmer and Juror Shaw were both Black.” Defense counsel then made a Wheeler motion as to those two prospective jurors.

In arguing that a prima facie case existed, defense counsel stated that both were Black, and had indicated that they could be fair and impartial. The trial court stated, “Let me indicate before I ask the prosecutor to respond that—at this point, I’m not making a prima facie finding that there’s been any systematic exclusion of [Bjlacks from the jury. But for the record in the case, I’m going to ask the prosecutor to give me—to articulate the reasons why he excused those two jurors.

But I want the record to be clear that I’m making that request not as a result of any prima facie finding of exclusion of the prospective jurors on the basis of color. Again, I’m doing it because of the reason that the case was reversed. And I just want the record to be as clear as it can be. So that’s the reason why I’m asking for that response.” The prosecutor responded, “I think the law is clear that unless a prima facie case is made, there is no response required by the People.” The court answered, “I think the law is clear.

I’m merely doing this for the reasons I’ve articulated.” The prosecutor then complied with the court’s request and delineated his reasons. After the prosecutor exercised a peremptory challenge against prospective Juror Montgomery, the trial judge asked both counsel to approach the bench and stated, “I want to put on the record that Mr.

Montgomery is Black.” Defense counsel moved for a mistrial, asserting that the “district attorney has systematically dismissed minority groups,” Montgomery was Black, and his answers “appropriate.” In addition, defense counsel noted that Montgomery’s view on the death penalty appeared to favor the prosecution. The judge stated, “Let me indicate for the record, again, I find no prima facie case for requiring the prosecution to respond as to why this juror was excused.

And again, the record will reflect there are presently five Blacks on the jury who were present at the time the prosecutor did accept the jury panel. And I’m also taking into consideration . . . that one juror, . . . Turner, who [was] excused by the defense was a juror—a Black juror whom the prosecution would have kept on the jury panel. ... So at this point, ... I am going to ask Mr. Martin, if you could state your reasons with regard to Mr. Montgomery.” The prosecutor complied.

We first conclude that resolution of the issue of whether a prima facie case was made is not mooted by the trial court’s subsequent solicitation of the prosecutor’s justifications for his challenges. (Cf. Hernandez v. New York (1991) 500 U.S. 352, 359 [114 L.Ed.2d 395, 405, 111 S.Ct. 1859] [prosecutor justified challenges although no express finding of a prima facie case had been made, hence issue of whether a prima facie case of discrimination had been made became moot]; People v. Fuentes, supra, 54 Cal.3d at p. 717.) In People v.

Fuentes, supra, 54 Cal.3d 707, defense counsel made the first of several Wheeler motions “after the prosecutor exercised each of his initial four challenges against Black prospective jurors.” (Id. at p. 712.) “The trial court asked the prosecutor for an explanation, but the prosecutor was not prepared to give one.” (Ibid.) The court indicated that before trial commenced, it would “ ‘have the reasons set forth by the People.’ ” (Ibid.) The prosecutor thereafter excused four more prospective jurors, three of whom were Black. (Ibid.) “When defense counsel again objected on Wheeler grounds, the court stated that it would ‘consider [counsel’s objection] a continuing motion’ but did not inquire further into the matter.” (Ibid.) “At the conclusion of voir dire, the court finally addressed the Wheeler motion.” (People v.

Fuentes, supra, 54 Cal.3d at p. 712.) After hearing approximately two hours of the prosecutor’s justifications for his challenges, the court took the matter under submission. (Id. at pp. 712-713.) “On the following morning, the court ruled that no prima facie showing had been made.

Despite this ruling, however, the court [then] examined the prosecutor’s purported reasons for excusing” the prospective Black jurors. (Id. at p. 713, italics added.) We concluded that the trial court’s statement that before trial, it would “have the reasons set forth by the People,” and the court’s instructions following voir dire that the prosecutor obtain his records and justify his challenges, “clearly indicate[d] that the court had implicitly found a prima facie case of improper exclusion on the basis of race,” despite its contrary ruling on the following day. (People v.

Fuentes, supra, 54 Cal.3d at pp. 715-716, italics in original.) We instructed trial courts on the proper procedure: “When a Wheeler motion is made, the party opposing the motion should be given an opportunity to respond to the motion, i.e., to argue that no prima facie case has been made. At this point no explanation for the exercise of the peremptory challenges need be given.

After argument, the trial court should expressly rule on whether a prima facie showing has been made.” (Id. at pp. 716-717, fn. 5, italics in original.) With nearly clairvoyant accuracy, the trial court here followed these guidelines, even though the 1987 retrial preceded our decision in Fuentes. Prior to soliciting the prosecutor’s reasons justifying his challenges, the court expressly ruled that it did not find a prima facie case, and that it only asked the prosecutor for his justifications for purposes of completing the record in case the court on appeal disagreed with its conclusion.

Under these circumstances, the issue of whether a prima facie case has been established is not moot, even though subsequent inquiry into the prosecutor’s reasons occurs. Thus, when an appellate court is presented with such a record,, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsel’s justifications for the peremptory challenges. Second, we conclude that the trial court here acted within its discretion in determining that defendant had failed to state a prima facie case of discrimination.

In particular, defendant failed to establish from all the circumstances of the case a strong likelihood that such persons were being challenged because of their group association. (People v. Howard, supra, 1 Cal.4th at p. 1154.) Rather, the only bases for establishing a prima facie case cited by defense counsel were that all of the challenged prospective jurors were Black and either had indicated that they could be fair and impartial or in fact favored the prosecution. This is insufficient. (People v.

Rousseau (1982) 129 Cal.App.3d 526, 536-537 [179 Cal.Rptr. 892] [defense counsel’s statement that “ ‘there were only two [B]lacks on the whole panel, and they were both challenged by the district attorney’ ” fails to establish a prima facie case]; see People v. Howard, supra, 1 Cal.4th at pp. 1154-1155; People v. Dominick (1986) 182 Cal.App.3d 1174, 1193-1196 [227 Cal.Rptr. 849].) Of course, a trial court should not “blind itself to everything except defense counsel’s presentation.” (People v.

Howard, supra, 1 Cal.4th at p. 1155.) Here, the trial judge, who had observed the voir dire, was in the best position to determine under “all the relevant circumstances” of the case whether there was a “ ‘strong likelihood’ ” these prospective jurors were being challenged “because of their group association.” (People v. Howard, supra, 1 Cal.4th at p. 1156; see People v. Johnson, supra, 47 Cal.3d at p. 1221.) As we delineate below, the record clearly established specific non-race-related reasons why a prosecutor might want to excuse the challenged prospective jurors. (People v.

Bittaker, supra, 48 Cal.3d at p. 1092.) Moreover, as the trial court expressly observed, both sides had excused Black jurors, and the prosecutor had accepted a jury that included, as did the jury ultimately impaneled, five Blacks. While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection. (People v. Snow (1987) 44 Cal.3d 216, 225 [242 Cal.Rptr. 477, 746 P.2d 452]; see People v.

Johnson, supra, 47 Cal.3d at p. 1221, fn. 7.) Citing no authority, defendant urges us to conclude that “because of prosecutor Martin’s personal ‘track record,’ ” a “lesser showing of possible group bias should be required here than in other cases.” We reject this analysis. The trial court stated it was conscious of the basis for the earlier reversal and had this history in mind when it ruled that no prima facie case had been established. That is sufficient.

(2) Race-neutral Reasons We have stated above that once an appellate court concludes that the trial court properly determined that no prima facie case was made it need not review the adequacy of counsel’s justifications, if any, for the peremptory challenges. However, given the unique procedural history of this case, we have elected to perform such an evaluation. We conclude that the trial court acted within its discretion in determining that the reasons proffered by the prosecutor in support of his peremptory challenges, which were supported by the record, were race-neutral.

Prospective Juror Herman Palmer In stating his reasons for excusing Mr. Palmer, the prosecutor observed that Palmer “had an extremely poor grasp of the English language. He had to deliberate exceedingly long and there were pauses between questions. He had a very poor comprehension. He couldn’t understand the instructions given to him by the court.” The prosecutor acknowledged that “Witherspoon” questions are somewhat difficult, but observed that he had repeated the questions for Palmer “not once, not twice, but three times.” (Witherspoon v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]; see Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]; People v. Ghent (1987) 43 Cal.3d 739, 767-769 [239 Cal.Rptr. 82, 739 P.2d 1250].) The prosecutor stated that Palmer had then attempted to look up the word “deterrent” in the dictionary, and the court noted that he could not locate it. Palmer “had many no answers in his questionnaire.

And he sat on a hung jury.” Finally, the prosecutor “found him questionable as to being in favor of the death penalty.” The prosecutor got the impression Palmer would modify his answers depending on who was questioning him. Because it was the early stage of challenges, the prosecutor thought he could locate a better juror than Palmer. After hearing argument by defense counsel, the court stated that it “listened carefully to [the prosecutor’s] explanation of why he made the challenge,” found the reasons to be adequate, and denied the motion.

Of course, where a prosecutor’s concern for a juror’s ability to understand is supported by the record, it is a proper basis for challenge. (People v. Barber (1988) 200 Cal.App.3d 378, 397-399 [245 Cal.Rptr. 895].) Defendant argues, however, that this basis was insufficient here because the prosecutor did not excuse other non-Black jurors who displayed similar intellectual limitations.

However, we have previously rejected a procedure that places an “undue emphasis on comparisons of the stated reasons for the challenged excusáis with similar characteristics of nonmembers of the group who were not challenged by the prosecutor,” noting that such a comparison is one-sided and that it is not realistic to expect a trial judge to make such detailed comparisons midtrial. (People v.

Johnson, supra, 47 Cal.3d at p. 1220.) In addition, we have observed that “the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge.” (People v.

Johnson, supra, 47 Cal.3d at p. 1220.) Thus, at the beginning of voir dire a prosecutor may exercise his challenges freely against a person who appears to have difficulty understanding or communicating, and later be more hesitant with his challenges on the ground that if he exhausts them too soon, he may be forced to go to trial with an even more problematic juror. (Ibid.) Moreover, “the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror [who] on paper appears to be substantially similar.” (Id. at p. 1221.) Finally, Palmer’s experience of sitting on a hung jury constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict.

In sum, the trial court did not abuse its discretion in finding these race-neutral explanations sufficient to satisfy the prosecution’s burden. Prospective Juror Alice Maureen Shaw In stating his reasons for excusing Ms. Shaw, the prosecutor noted from Shaw’s body language and way of expressing herself it seemed “there’s a great deal of hostility within her. She seems mad or hostile about something.” The prosecutor conceded that the hostility might not be directed at him, but that he thought it would be “very chancy” to put her on the jury.

The prosecutor noted that Shaw “said that she didn’t think justice was done on the murder of the father of her child.” Martin could not ascertain whether that experience would favor the defense or prosecution. The more he questioned her, the more he got the feeling that “there was a pot boiling within her.” Shaw had also witnessed her fiancé being shot and seriously injured. Martin was uncertain what effect this shooting had on her. In Shaw’s questionnaire, “she described the defendant as a young man [who came] from an outstanding family.

And when I asked her whether she knew the defendant, she then repeated that.” On voir dire, Shaw ultimately stated that she did not know defendant. The prosecutor also expressed concern that Shaw had trained with the Department of Social Services, because he at one time had been the “Director of Welfare for the State of California.” During the “hottest period of the welfare events,” he had a number of suits filed against him personally that were reported in the media. The prosecutor did not ask Shaw about this subject because he did not wish to announce that that had been his job.

After hearing argument by defense counsel, the court stated that it “listened carefully to [the prosecutor’s] explanation of why he made the challenge,” found the reasons to be adequate, and denied the motion. We have repeatedly upheld peremptory challenges made on the basis of a prospective juror’s negative experience with law enforcement. (See People v. Walker (1988) 47 Cal.3d 605, 625-626 [253 Cal.Rptr. 863, 765 P.2d 70]; People v.

Wheeler, supra, 22 Cal.3d at pp. 275, 277, fn. 18.) In addition, peremptory challenges are properly made in response to “ ‘bare looks and gestures’ ” by a prospective juror that may alienate one side. (People v. Wheeler, supra, 22 Cal.3d at p. 276.) The trial court acted within its discretion in finding the prosecutor’s reasons race-neutral as to this juror. Prospective Juror William Montgomery In stating his reasons for excusing Mr. Montgomery, the prosecutor said, “[T]his juror is definitely against opposing the death penalty.

He would never commit completely on that. . . . [H]e said if he was faced with the issue, he would most likely vote for life rather than death.” The prosecutor said that he did “not wish to run the risk of putting somebody on that panel that feels strongly that life imprisonment without the possibility of parole would be what they would lean to and probably vote for.” The trial court found that the prosecutor’s explanations were “adequate and sufficient to justify the use of the peremptory challenge.” The court also observed that “just prior to this challenge, the prosecutor did accept the jury panel which included five [B]lacks.” We have previously upheld “the prosecutor’s exercise of peremptory challenges against death penalty skeptics—i.e., prospective jurors who, although not excusable for cause under Witherspoon v.

Illinois, supra, 391 U.S. 510, nevertheless expressed reservations about the death penalty . . . .” (People v. Walker, supra, 47 Cal.3d at p. 624; see People v. Pride (1992) 3 Cal.4th 195, 230 [10 Cal.Rptr.2d 636, 833 P.2d 643].) We see no reason to reconsider that conclusion here. The trial court acted within its discretion in finding the prosecutor’s reasons race-neutral as to this juror.

Prospective Juror William Erwin Defendant did not challenge the People’s peremptory challenge of prospective juror William Erwin, either at the time he was excused or when the trial judge later that day expressly stated for the record that Erwin was Black. The next day, defendant objected on Wheeler grounds to the prosecutor’s peremptory challenge to prospective jurors Palmer and Shaw, and that motion was argued. Later that day, defendant objected to the prosecutor’s peremptory challenge of prospective juror Montgomery.

In the course of these proceedings, defense counsel stated that four Black prospective jurors had been excused by the prosecution, apparently including Erwin. The trial court responded that “The last time there was articulation requested with regard to two [prospective jurors] who were excused.” This statement appears to be the court’s recognition that no objection had been made regarding Erwin.

We conclude that defendant waived his objection, raised for the first time on appeal, to Erwin’s excusal, and that the trial court did not err in failing to make findings or request reasons regarding the prospective juror’s dismissal. (See People v. Howard, supra, 1 Cal.4th at pp. 1157-1159; People v. Hayes (1990) 52 Cal.3d 577, 605 [276 Cal.Rptr. 874, 802 P.2d 376].) Because the trial court in denying the Wheeler motions based on these proffered reasons implicitly found at least one race-neutral explanation for each questioned peremptory challenge, no abuse of discretion occurred. (People v.

Pride, supra, 3 Cal.4th at p. 230.) Moreover, because no race-based peremptory challenges were made, the equal protection rights of the subject prospective jurors were not denied. (See Powers v. Ohio (1991) 499 U.S. 400, 409 [113 L.Ed.2d 411, 424, 111 S.Ct. 1364].) Defendant asserts that the trial court “never made any finding concerning the adequacy of Martin’s ‘explanations’ for his use of peremptory challenges.” As set forth above, the record is otherwise. In addition, relying on People v.

Fuentes, supra, 54 Cal.3d 707, defendant asserts that the trial judge failed to adequately inquire into the prosecutor’s reasons. However, the basis for our reversal in Fuentes was the trial court’s failure to determine whether the prosecutor’s asserted reasons actually applied to the particular jurors challenged. (Id. at pp. 721, 722.) Here, by contrast, the trial court carefully elicited the prosecutor’s reasons for excusing each particular juror and engaged in extended discussion with both counsel regarding these reasons before denying the Wheeler motions.

Finally, defendant initially challenged on appeal the exclusion of two Black prospective alternate jurors. He has since expressly withdrawn that claim by letter brief and at oral argument. In any event, no alternate jurors were ever substituted in, and hence it is unnecessary to consider whether any Wheeler violation occurred in their selection. Moreover, any Batson violation could not possibly have prejudiced the defendant. c. Motions to Suppress Evidence

(1) Suppression of Defendant’s Statements Defendant contends that his August 7, 1979, statements should have been suppressed because they were the product of an illegal delay in arraigning and appointing counsel for him in violation of former

section 825, and contravened the 48-hour rule for judicial determinations of probable cause set forth in County of Riverside v. McLaughlin (1991) 500 U.S. 44 [114 L.Ed.2d 49, 111 S.Ct. 1661]. Defendant asserts that “a new trial should be ordered on this ground alone.” We conclude that any delay in arraigning defendant was necessary and reasonable and did not prejudice him. (

a) Factual Background Defendant was arrested on Friday August 3, 1979, on charges of conspiracy to commit robbery and being an ex-felon in possession of a gun. On the afternoon of Sunday, August 5, while still in custody on these charges, defendant was informed that he was under arrest for the Torrance Airport murders. He made the challenged statements on the afternoon of Tuesday, August 7, and was arraigned on the morning of August 8. Defendant moved to suppress both his August 5 and his August 7, 1979, statements on the grounds that the statements were not voluntary and that they were obtained while he was being illegally detained in violation of former

section 825. At the evidentiary hearing on this motion, Torrance Police Officer Green, the investigating officer of the Torrance Airport murders, testified in detail about his intense preparation of the case between Friday night and Tuesday at noon. Green observed that after defendant’s Sunday statement, he now had two suspects who acknowledged being at the murder scene, but who were blaming each other. He felt “obligated]... to try and isolate who was the gun man. ...” Green’s actual investigation of defendant concluded on Sunday night.

He then spent most of Monday and Tuesday morning preparing the case to be presented to the district attorney’s office and filed. This included coordinating interview transcripts and preparing reports regarding the investigation. Officer Green was under the impression that

section 859 required him, in a case alleging special circumstances, to include two copies of all papers submitted to the district attorney’s office for potential defense attorneys. The actual submission, not including copies, was approximately 500 pages. Officer Green filed the complaint against defendant in South Bay Municipal Court Tuesday at noon. Green “knew as a matter of policy, that . . . they wouldn’t do afternoon arraignments,” and defendant was arraigned on Wednesday morning.

Green had requested that officers investigating the Marmor homicide not ask defendant “any questions in reference to the Torrance murders.” The August 7 interview was not done with Officer Green’s knowledge or at his request, and no Torrance police officers attended the interview. No one at any time from any law enforcement agency requested that Officer Green put off the filing of the complaint. South Bay Municipal Court Judge Benjamin Aranda, called by the defense, testified as to the court’s policies regarding felony arraignments in August 1979.

In general, arraignments were not held after 10 o’clock in the morning. If an arraignment was needed after that time, a special request had to be made to the judge then assigned to the arraignment court. Whether such a request was granted depended on the particular judge and the number of cases already on calendar. The seriousness of the charge probably would not “enter into it.” Judge Aranda specifically recalled that there was no mention of any exception to the 10 a.m. arraignment rule in the directives sent to police departments in 1979. The court denied the motion to suppress.

The court first concluded that defendant was properly advised of his rights on three occasions, and knowingly and without coercion waived those rights. It interpreted

section “825 as allowing the arraignment of the defendant up to and including Tuesday.” The court observed that the case was obviously very complicated. With regard to Officer Green’s intent, the court stated that it did not interpret

section 859 to require copies of all papers submitted to the district attorney’s office to be provided to defense attorneys, but found that Officer Green had acted in the good faith belief that such copies were required by law. “[H]e was not taking that time for any untoward purpose or any illegal or nefarious personal attempt to delay . . . taking the case to the District Attorney’s office.” The court also made “a factual finding that Officer Green did not fail to take defendant for arraignment on the date that he had the case filed with the court in the South Bay because he was of the impression that there were no arraignments allowed in the afternoon by the South Bay Municipal Court,” and that Officer Green’s testimony had been substantiated by Judge Aranda’s testimony to the same effect.

The court found that “at no point did Detective Green delay the taking of the case to the prosecutor’s office nor did he delay the arraignment of the defendant for any purpose other than the purposes he testified to. I specifically find he did not delay either the taking of the case to the prosecutor’s office nor the arraigning of the defendant for any purpose of keeping the defendant in custody longer so that he could interview the defendant.” Finally, the court found that even if the arraignment was after the period prescribed in

section 825, “defendant’s statements on [August 7] were not made as a result of any promises—any coercion,” but “were made freely and voluntarily beyond a reasonable doubt.” (

b) Analysis On appeal, defendant does not renew his challenge that his statements were involuntary. Rather, he contends that his August 7, 1979, statements should have been suppressed because they were the product of an unreasonable delay under

section 825 and County of Riverside v. McLaughlin, supra, 500 U.S.

Section 825 requires that an arraignment be held within two days of defendant’s arrest, excluding Sundays and holidays. Here, defendant argues, and the trial court ruled, that this two-day period expired on Tuesday. As noted above, defendant’s statements were made within this period, although he was not arraigned until Wednesday morning. (See Youngblood v. Gates, supra, 200 Cal.App.3d at p. 1315.) Of course,

section 825 does not “authorize a two-day detention in all cases. Instead, ‘a limit [is placed] upon what may be considered a necessary delay, and a detention of less than two days, if unreasonable under the circumstances, is in violation of the statute’ and of the Constitution.” (People v. Thompson (1980) 27 Cal.3d 303, 329 [165 Cal.Rptr. 289, 611 P.2d 883].) However, “[t]he charge of murder is generally considered to be the most serious of all criminal charges, and it should not be publicized lightly or casually.” (People v.

King (1969) 270 Cal.App.2d 817, 823 [76 Cal.Rptr. 145].) Here, the case involved potential charges of double murder, robbery, and the concomitant special circumstances. In view of the complexity of the charging decisions involved, including the discernment of each suspect’s level of culpability, the delay was not unreasonable. (People v. Bonillas, supra, 48 Cal.3d at p. 787; People v.

King, supra, 270 Cal.App.2d at p. 823 [delay in arraignment “for the purpose of untangling a skein of circumstantial evidence which implicated five suspects in varying degrees” and deciding whom to charge with murder upheld].) In addition, the record indicates that Officer Green used the time from Monday to Wednesday not to further investigate defendant, but rather to coordinate the necessary reports and transcripts for submission to the district attorney’s office and complete the filing of the complaint.

Indeed, he specifically requested that defendant not be interviewed about the Torrance murders by the Marmor murder investigators. Thus, there is no evidence that the arraignment was delayed for purposes of obtaining the challenged statements. (People v. Bonillas, supra, 48 Cal.3d at pp. 787-788; People v. King, supra, 270 Cal.App.2d at p. 823.) Moreover, defendant fails to assert how any delay in arraignment resulted in his August 7 statements. Defendant does not challenge the fact that he was fully informed of and waived his right to remain silent and to counsel.

At trial, it was established that defendant requested the interview, and defendant does not now contend otherwise. Delay in arraignment is but one factor in determining the voluntariness of a statement. (People v. Morris (1991) 53 Cal.3d 152, 200 [279 Cal.Rptr. 720, 807 P.2d 949]; People v. Thompson, supra, 27 Cal.3d at p. 329.) To justify exclusion of a statement, defendant must show that the delay produced his admissions or that there was an essential connection between the illegal detention and admissions of guilt. (See People v. Thompson, supra, 27 Cal.3d at pp. 329-330; Rogers v.

Superior Court (1955) 46 Cal.2d 3, 10-11 [291 P.2d 929].) No such connection is demonstrated here. Rather, defendant baldly asserts that it is “nonsensical” to believe he would have requested the August 7 interview and made the challenged statements if he had been arraigned and had counsel appointed, and that the statements were a direct product of the delay in arraignment. This is insufficient. (People v. Bonillas, supra, 48 Cal.3d at pp. 788-789.) Defendant also argues that the delay in arraignment violated the 48-hour rule for judicial determinations of probable cause set forth in County of Riverside v.

McLaughlin, supra, 500 U.S. at page 56 [114 L.Ed.2d at pages 71-72], and Gerstein v. Pugh (1975) 420 U.S. 103, 125 [43 L.Ed.2d 54, 71-72, 95 S.Ct. 854] (state “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, [fn. omitted] and this determination must be made by a judicial officer either before or promptly after arrest”). (See Powell v.

Nevada (1994)_U.S._, _[128 L.Ed.2d 1, 7, 114 S.Ct. 1280, 1283] [McLaughlin retroactive to all cases not final when it was decided].) Defendant does not direct us to where, in either his written motion to suppress his August 5 and 7 statements or the 39-page oral argument on this motion, his Fourth Amendment challenge to the delay in either a probable cause determination or arraignment is raised.

Our own review of the record indicates that this claim was not raised in defendant’s written motion, and that counsel’s oral argument overwhelmingly focused on whether sections 825 and 849 were violated, and what effect delay and other factors had on the making and voluntariness of defendant’s statements. The only statements at the oral argument on the motion that even remotely suggest a Gerstein claim are the following: “The requirement is really recognized in both state and federal practices as being one to prevent unwarranted police interrogation.

To make it possible for the accused to be promptly advised of his right to counsel and enable him to obtain bail and to have the issue of probable cause for his arrest determined by a judicial officer,” and “the failure to take the arrestee before a magistrate without unreasonable or unnecessary delay is, in fact, false imprisonment.” It is apparent from the context of these statements that the reference to “federal practice[]” was to the McNabb-Mallory rule (McNabb v. United States (1943) 318 U.S. 332 [87 L.Ed.2d 819, 63 S.Ct. 608]; Mallory v.

United States (1957) 354 U.S. 449 [1 L.Ed.2d 1479, 77 S.Ct. 1356]) and rule 5(

a) of the Federal Rules of Criminal Procedure (18 U.S.C.), not the Fourth Amendment. Moreover, we decline to find that a Gerstein argument was made in this case when counsel made a single passing reference in a 39-page argument to the determination of probable cause by a judicial officer. We therefore conclude defendant waived his Fourth Amendment claim by not making a specific and timely objection on this ground below. (People v.

Ashmus (1991) 54 Cal.3d 932, 973, fn. 10 [2 Cal.Rptr.2d 112, 820 P.2d 214] [general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal]; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [276 Cal.Rptr. 827, 802 P.2d 330]; People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].) In sum, the trial court did not err in denying defendant’s motion to suppress his August 7, 1979, statements.

(2) Warrantless Detention Defendant contends that the threatened and actual detention of defendant and Scott was unlawful, and implicitly contends that evidence discovered in the Chrysler defendant abandoned should therefore have been suppressed. We conclude that the discovery of the evidence was not the product of an unlawful threatened or actual detention, and that the motion to suppress this evidence was therefore properly denied under both the Fourth and Fourteenth Amendments to the federal Constitution, and

article I,

section 13 of the California Constitution. Because defendant’s crimes occurred in 1979, they are not subject to the passage of Proposition 8 by the electorate in June 1982 and the consequent amendment to the California Constitution,

article I,

section 28, subdivision (d). (People v. Smith (1983) 34 Cal.3d 251, 263 [193 Cal.Rptr. 692, 667 P.2d 149].) (

a) Factual Background Officer Michael Ard and Officer John Mitchell testified at the

section 1538.5 hearing. On the evening of July 31, 1979, they were on patrol in a marked police vehicle. Officer Ard had 10 years’ experience as a police officer, and had made 20 arrests in the same area over a 1-year period for robbery involving a particular modus operand!. Robbers would work in pairs at the card clubs; one would identify which patrons were leaving with substantial sums of money, and the other would apparently wait in a car outside the club. The pair would then follow one of these patrons home, and there rob the victim.

That evening, two men, later identified as defendant and Scott, were seen by Officers Ard and Mitchell driving a Chrysler out of the valet parking area of the Horseshoe Card Club in Gardena. Defendant was the driver, and Scott was the passenger. Officer Ard was familiar with the people who performed the valet service, and knew that neither person in the car worked at the club. The officers left the club, and returned five minutes later to see defendant and Scott reentering the Horseshoe Club parking lot.

Officer Ard wondered if they were there to pick someone up or if they were “cruising the club.” The officers left again for approximately 15 minutes. When they returned, shortly before midnight, Officer Ard saw defendant driving out of the club’s driveway. He was “starting to wonder just exactly what they were doing in the parking lot.” Officer Ard was “too late to get the front plate,” so he stopped in order to wait for traffic to clear, so that he could back up and look at the rear plate. As soon as he stopped, he heard a loud engine noise and tires screeching.

The Chrysler began accelerating rapidly away from the police vehicle. Officer Ard backed up and pursued the Chrysler for approximately one and a half blocks. He tinned on his red light but not the siren. Officer Ard followed the Chrysler because he thought a crime may have occurred, and the two men were leaving the scene. If he had stopped them, he would have asked them why they were driving in such a reckless manner. Officer Ard proceeded generally in the direction he thought the Chrysler had gone. He spotted Scott walking on the street. He drove past Scott to locate the Chrysler.

The car was parked and running, with the lights on, and appeared unoccupied. Both doors were unlocked. Officer Ard backed up, jumped out of the car, and told Scott to stop because he wanted to talk with him. Scott denied being in any car, or any knowledge of the Chrysler, and said he was coming from a local liquor store. When Officer Ard asserted that there was not an open liquor store nearby, Scott continued to insist he had been in a liquor store. In the meantime, Officer Mitchell approached the vehicle to see if the other man was still in the car.

He entered the vehicle to retrieve a piece of identification in plain sight on the center console in order to possibly identify who had been in the car. He also turned off the Chrysler’s ignition and lights. The identification was Scott’s state parole identification card. Officer Mitchell gave the parole card to Officer Ard, who showed it to Scott. Officer Ard then went to retrieve the registration from the glove box of the car. When he opened the passenger door, he noticed a gun barrel protruding from under a floor mat on the passenger side of the front seat.

This gun was later determined to be the murder weapon. Ard retrieved the gun and registration and placed Scott under arrest. Scott was in possession of Hill’s gold Omega watch. The car was registered to Nathaniel Tribet. The trial court denied the motion to suppress.

The court found that the Chrysler accelerated out of the club’s parking lot “not as a result of any movement on the part of the police vehicle.” “That acceleration ... occurred not as a result of anything other than perhaps the officers looking in their direction, and it was after that acceleration occurred that the officer then went in the same direction as the Chrysler. So that the acceleration of the Chrysler, the squealing of the wheels was not as a result of any action other than what was perfectly legitimate on the part of the officers. That is looking in the direction and viewing the Chrysler.

After having heard the squealing of the wheels and observing what was acceleration of the vehicle, the officers then were quite proper in following that vehicle. So there was no illegal activity or improper activity on the part of the police officers.” The court further found that once the officers observed the car accelerating and then disappearing, “they had a perfect right to detain who they viewed to be the occupant of that vehicle.” The attempts to ascertain the registered owner of the abandoned vehicle (which led to the discovery of the evidence that defendant sought to suppress) were legal. (

b) Analysis Defendant asserts an unlawful threatened and actual detention occurred when Officer Ard “stopped his marked patrol car, backed up towards the Chiysler, and then followed it.” While it is difficult to parse which claim defendant is actually asserting, and what facts he asserts support which contention, none of these claims has merit. No threatened detention in violation of the California Constitution occurred when the officers stopped their vehicle.

As noted above, Officer Ard testified that as soon as he stopped, he heard a loud engine noise and tires screeching, and the Chrysler began accelerating rapidly away from the police vehicle. However, the fact that a police vehicle had stopped near defendant’s vehicle would not communicate to a reasonable person that the officers intended to detain defendant and Scott. (See People v. Menifee (1979) 100 Cal.App.3d 235, 239 [160 Cal.Rptr. 682].) Thus, the trial court reasonably concluded that no threatened illegal detention had occurred. (Cf. People v.

Menifee, supra, 100 Cal.App.3d at pp. 238-240 [reasonable for trial court to conclude that officer’s act of walking briskly toward defendants threatened detention].) Nor did any actual detention in violation of the California Constitution occur when the officer merely stopped his vehicle. The officer did not stop or “accost[ ] an individual on suspicion that the person ‘may be personally involved in some criminal activity.’ ” (People v.

Bower (1979) 24 Cal.3d 638, 643 [156 Cal.Rptr. 856, 597 P.2d 115], quoting In re Tony C. (1978) 21 Cal.3d 888, 895 [148 Cal.Rptr. 366, 582 P.2d 957].) There was no use of sirens or flashing lights, no command to halt, and no use of the police vehicle to block defendant’s vehicle or otherwise control the direction or speed of his movement. (See People v. Siegenthaler (1972) 7 Cal.3d 465, 469 [103 Cal.Rptr. 243, 499 P.2d 499] [defendant’s flight upon sight of officers’ vehicle not induced by officers’ infringement of defendant’s rights]; People v.

Rico (1979) 97 Cal.App.3d 124, 128-130 [158 Cal.Rptr. 573] [momentarily spotlighting a moving car and following it for five minutes before driver voluntarily pulled over not a detention].) Moreover, Officer Ard testified that his purpose in stopping his police car was to back up in order to get a better view of defendant’s vehicle’s license plate. Nor was there any detention under the Fourth and Fourteenth Amendments. Rather, a seizure “requires either physical force ... or, where that is absent, submission to the assertion of authority.” (California v.

Hodari D., supra, 499 U.S. at p. 626 [113 L.Ed.2d at p. 697], italics in original.) None was present here. Of course, once defendant rapidly accelerated away from the police car, with his car making a loud engine noise and tires screeching, the police officers acted reasonably in following him. Under federal law, still no seizure occurred at this point. (California v.

Hodari D., supra, 499 U.S. at p. 629 [113 L.Ed.2d at p. 699] [police pursuit which constitutes a show of authority enjoining fleeing individual to stop is not a seizure].) Under applicable state law, any detention that occurred was based on specific and articulable facts causing Officer Ard to subjectively and reasonably “suspect that (1) some activity relating to crime ha[d] taken place or [was] occurring or about to occur, and (2) the person he intend [ed] to stop or detain [was] involved in that activity." (In re Tony C., supra, 21 Cal.3d at p. 893.) We conclude that the discovery of evidence in the Chrysler abandoned by defendant was not the product of an unlawful threatened or actual detention, and defendant’s motion to suppress this evidence was therefore properly denied.

(3) Entry Into Chrysler Defendant expressly concedes that the warrantless search of an automobile glove compartment may be lawfully conducted based on probable cause alone without any showing of actual exigency. However, defendant contends that Officer Ard’s entry into the Chrysler solely to search the glove box for registration information was unlawful because the officer did not first attempt to obtain that same information through less intrusive electronic means. Accordingly, defendant asserts that the resulting discovery of the .38-caliber revolver was likewise unlawful and should have been suppressed.

In addition, because defendant’s arrest was the direct result of the revolver’s discovery, all statements made by defendant following that unlawful arrest, and all physical evidence seized in conjunction with his arrest, must similarly be suppressed. As recounted above, Officer Ard went to the Chrysler to retrieve its registration from the glove box. When he opened the passenger door, he noticed a gun barrel protruding from under a floor mat on the passenger side of the front seat. This gun was later determined to be the murder weapon. Ard retrieved the gun and registration and placed Scott under arrest.

Defendant “urges” this court to adopt a rule that “before an officer enters a vehicle to search for a registration certificate, the officer must try to obtain the information through radio checks, computer terminals or other technological means.” We rejected a similar claim in People v. Webster (1991) 54 Cal.3d 411 [285 Cal.Rptr. 31, 814 P.2d 1273].

Webster was stopped in 1981 by Officer Abbott for a speeding violation. (Id. at p. 429.) Abbott ascertained that Webster had an outstanding warrant and arrested him. (Ibid.) Webster and all of his passengers disclaimed ownership of the vehicle, also a Chrysler. (Ibid.) Abbott then searched the car’s glove compartment and visor for registration papers.

While in the car, the officer saw and retrieved a wallet lying in the middle of the front seat which ultimately linked defendant to a murder. (Id. at pp. 428-430.) We concluded that “Abbott acted properly when he . . . entered the car for the limited purpose of finding the registration. Then, as now, the Vehicle Code allowed a [California Highway Patrol] officer, among others, to inspect a registrable vehicle and its title in order to determine ownership. (Veh. Code, § 2805, subd. (a).)” (People v.

Webster, supra, 54 Cal.3d at p. 430.) Within constitutional limits, this statute authorizes an officer to enter a stopped vehicle and conduct an immediate warrantless search for the required documents. (Ibid.) We further observed that the car was validly detained on the highway for a moving traffic violation, all of its occupants disclaimed ownership, and Webster was subject to arrest for an outstanding warrant. (People v.

Webster, supra, 54 Cal.3d at pp. 430, 431.) Thus, in that “uncertain situation, Abbott was amply entitled to inspect the Chrysler’s registration to ascertain its owner before deciding whether to release or impound the vehicle. ... [1] Moreover, . . . Abbott had every reason to believe that the occupants, who disclaimed ownership, would not be able to find or produce the registration on their own. (See People v. Martin [(1972)] 23 Cal.App.3d 444, 447 [100 Cal.Rptr. 272]; compare Jackson v.

Superior Court [(1977)] 74 Cal.App.3d 361, 368 [142 Cal.Rptr. 299].)” (Id. at p. 431.) Here, the Chrysler was abandoned, and the person observed to have been a passenger disclaimed any knowledge, let alone ownership, of the vehicle. He also had been identified as a parolee, and it was the middle of the night. Under these circumstances, Officer Ard was entitled to search the vehicle for its registration. As in Webster, Officer Ard confined his search to the glove compartment, a traditional repository of vehicle registration. (People v. Webster, supra, 54 Cal.3d at p. 431; see People v.

Chavers (1983) 33 Cal.3d 462, 470 [189 Cal.Rptr. 169, 658 P.2d 96].) While engaged in this appropriate activity, Officer Ard saw the gun in plain view on the floor. “The observation and seizure of evidence in plain view from a position where the officer has a right to be is not constitutionally prohibited.” (People v. Webster, supra, 54 Cal.3d at p. 431.) Relying on Jackson v. Superior Court (1977) 74 Cal.App.3d 361, 367-368 [142 Cal.Rptr. 299] and People v.

Superior Court (Fishback) (1969) 2 Cal.App.3d 304, 310 [82 Cal.Rptr. 766], defendant asserts that Officer Ard’s entry into the Chrysler solely to search the glove box for registration information was unreasonable because the officer did not first attempt to obtain that same information through less intrusive electronic means. However, both Jackson and Fishback were premised on privacy concerns and expressly distinguished cases involving unoccupied or abandoned vehicles. (People v. Jackson, supra, 74 Cal.App.3d at p. 368; People v. Superior Court (Fishback), supra, 2 Cal.App.3d at pp. 308-309; see People v.

Webster, supra, 54 Cal.3d at p. 431.) Moreover, Officer Ard testified that he “wanted the registration to see maybe if the car had been cold-plated or something. I don’t know if the plates belonged on it.” Thus, contrary to defendant’s argument, there was no less intrusive means to ascertain the abandoned vehicle owner’s identity. In sum, no illegal search and seizure occurred, and the motion to suppress the evidence was properly denied.

(4) Reverta Austin’s Arrest Defendant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of the arrest of 15-year-old Reverta May Austin because she was arrested without probable cause and pursuant to an unconstitutionally vague curfew ordinance. This cont

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