Full opinion text
Opinion MOSK, J. Defendant appeals from a judgment sentencing him to death on his conviction of murder in the first degree, robbery, and kidnaping. In a proceeding consolidated herewith he also petitions for a writ of habeas corpus, alleging principally that he was denied effective assistance of counsel. We have concluded that the judgment must be affirmed as to the convictions of first degree murder and robbery, but reversed as to kidnaping; that the findings of “special circumstances” elevating the murder to a capital offense must be set aside; and hence that the judgment must also be reversed insofar as it relates to penalty. Defendant was charged by information with murder in violation of section 187 (count I), robbery in violation of section 211 (count II), and kidnaping for the purpose of robbery in violation of section 209 (count III), all committed against his wife Karen Green on October 11, 1977. Count I also charged two “special circumstances,” i.e., that the murder was willful, deliberate and premeditated and was personally committed by defendant (1) during the commission of a robbery in violation of section 211 (former § 190.2, subd. (c)(3)(i)) and (2) during the commission of a kidnaping in violation of section 207 or section 209 {id., subd. (c)(3)(ii)). For enhancement purposes it was further charged that defendant used a firearm in all counts (§ 12022.5), and in counts II and III that defendant intentionally inflicted great bodily harm on the victim (§ 12022.7). No prior convictions were alleged. Defendant entered pleas of not guilty to the offenses charged, and denied the special circumstances and enhancement allegations. The jury found defendant guilty of first degree murder and robbery as charged in counts I and II; on count III the jury found defendant guilty of the lesser included offense of simple kidnaping in violation of section 207. The jury further found the special circumstances allegations true, except that the second of such circumstances was found to be murder committed during the commission of a simple kidnaping rather than a kidnaping in violation of section 209. The enhancement allegations were found true. The jury subsequently fixed the penalty for the murder at death. The court denied motions for modification of the verdict (former § 190.4, subd. (e)) and for new trial, and on count I sentenced defendant to die. Facts On the morning of October 12, 1977, an unclothed body of a young woman was found in a secluded area along the Feather River, near the town of Nicolaus in Sutter County. An autopsy established that the cause of death was a shotgun wound in the anterior portion of the head, and that death had been instantaneous and had occurred within the previous 24 hours. The woman was identified from a fingerprint as defendant’s wife Karen. As there was no eyewitness to the actual killing, the prosecution’s case was built largely on evidence that defendant had both a motive and an opportunity to murder his wife, and subsequently admitted the crime by word and deed. This evidence was presented in the form of testimony by a number of friends and acquaintances of defendant and Karen, all of whom lived in or about Sacramento. Viewing that testimony in the light most favorable to the People, as we must on this appeal (People v. Vann (1974) 12 Cal.3d 220, 225 [115 Cal.Rptr. 352, 524 P.2d 824]), the following appear to be the principal events surrounding the murder. Defendant and Karen were married in August 1977, and lived with Laura Schmidt, Karen’s sister, in September and the first part of October. Their marriage was unstable; conflicts between the parties became frequent, and defendant struck his wife on several occasions. At midmorning on October 10, 1977, defendant and Karen drove in a borrowed pickup truck to the house of Larry Creech, an acquaintance who had a motorcycle repair shop on his premises. Karen left in due course with the pickup, but defendant remained all day working on his motorcycle. During this time defendant told Creech he thought his wife had been “fooling around.” That night defendant slept at the Creech house and Karen slept at her parents’ residence. At 4 a.m. defendant telephoned Laura Schmidt and asked, “where the hell [is] Karen?” Schmidt told him Karen was sleeping at their parents’ house, and defendant asked her to have his wife call him. At 6:30 a.m. on October 11, 1977, Karen telephoned her friend Pamela Robison and asked if she could move in with her. She was crying and upset, and said she was leaving defendant. Robison agreed to take her in, and Karen arrived at her house about an hour later. She said to Robison that her marriage “just wasn’t working”; that she had spoken with defendant that morning and told him she did not want to see him any more and intended to get an annulment, and that defendant had replied he would kill her if she left him. Karen and Robison then returned the pickup to the Creech house. Karen left it in the driveway with the keys in it, telling Robison she was afraid to go inside. Robison drove Karen back to her sister’s house to pick up her clothes. Karen took only her personal belongings, leaving defendant’s behind, then returned to the Robison house. Meanwhile, another acquaintance of defendant, David Khan, arrived at the Creech house about noon. Defendant asked Khan to locate Karen for him, saying she had “ripped off” $800 of his money and was “fooling around on him.” He gave Khan some telephone numbers to call and $5 for gas, and offered to pay him $50 if he found her. Defendant and Khan then drove to the Khan house in the latter’s car. A substantial amount of testimony was directed to establishing that defendant acquired a sawed-off shotgun during the afternoon of October 11. At the Khan house defendant encountered Don Sheehan, who earlier that day had traded a pistol for such a shotgun owned by David’s brother, Donnie. Defendant indicated an interest in buying or borrowing the weapon, and Sheehan agreed to sell it for a pound of marijuana to be delivered in a day or two. Defendant took possession of the gun, cleaned it, and wrapped it in a piece of white cloth. Several of the persons at the Khan house saw the wrapped weapon in defendant’s possession during lunch. Later in the afternoon David Khan and defendant returned to the Creech house, and defendant carried the shotgun inside. Creech asked what the object was, and defendant replied it was “a toy” he took from someone and “it might get somebody in trouble.” Defendant and David Khan then continued on to the house of Diane Scott (Donnie Khan’s girlfriend) and her sister Linda Reeves. There a number of witnesses saw defendant carry the wrapped gun into the house under his coat. Using a telephone on the premises, Khan called Linda Schmidt at defendant’s request in an effort to reach Karen. Schmidt informed him Karen was at Pamela Robison’s house, and furnished the number of the latter. Khan next called the Robison house and, at defendant’s direction, told Karen that her husband was in trouble and needed her to pick up some of his belongings from her sister. Karen agreed to go with Khan for this purpose, and added that if he saw defendant he was to tell him she had an appointment for an annulment at 4:30 the next afternoon. Khan relayed this message to defendant as soon as the conversation ended. Defendant then instructed him to pick Karen up and bring her back to the Scott-Reeves house. He also told Khan that if it looked as if there were any police watching the place he should “keep on going.” Taking his brother Donnie with him, Khan then drove his car to the Robison house. There, Karen entered the vehicle and sat between David and Donnie on the front seat. Before she left, Robison asked her what to do about a man who was coming to visit her; Karen replied, “just keep him company, I’ll be right back.” To explain his return route, Khan told Karen he was taking his brother to his girlfriend’s house. Karen made no objection, and the trip proceeded normally. When they arrived at the Scott-Reeves residence, defendant was sitting on the front lawn. Upon seeing him Karen sat up in her seat, appeared excited, and asked Khan if he knew defendant was there; he replied he did not. Donnie got out of the car and went into the house.Khan’s mother and Linda Reeves came over to the car and engaged David in conversation. Karen remained silent and made no attempt to leave the vehicle. Defendant got up from the lawn, went briefly to another parked car, then entered the front passenger seat of Khan’s vehicle next to his wife. As he did so, he took the wrapped shotgun from underneath his coat and slid it beneath the seat. He said to Khan, “let’s drive somewhere,” and indicated he wanted to go to a secluded place. The three then drove away. Khan proceeded towards the town of Nicolaus in southern Sutter County, driving for some 20 minutes. During this time Karen told defendant “she had got a derringer,” and he replied, “well, I have a toy of my own.” About five miles short of Nicolaus, Karen said to defendant that if he was going to beat her he had better make it “a good one” because “it would be the last time.” She then began to climb into the back seat, but defendant grabbed her by the hair and restrained her; she “moaned a little bit” and said she wanted to get in the back, but he told her to “just sit there.” Shortly before reaching Nicolaus, Khan drove off the highway and into a secluded area along the Feather River. It was about 8 p.m. Khan parked the car, got out, and sat on the front fender drinking a beer. Defendant and Karen exited on their side and went behind the vehicle. Khan overheard parts of the ensuing conversation. Defendant first asked his wife about the annulment, and she replied that “it wasn’t true, that she just wanted him to come back.” He reminded her he had told her once before that if she ever tried to leave him he would kill her. He then went to the passenger side of the car and leaned over the back seat. While he was thus occupied, Karen approached Khan, prodded him with her foot to get his attention, and turned her palms towards him in a gesture that he took to be a request for assistance. Khan looked at defendant, then at her, and did nothing. Defendant and Karen again went behind the car, and defendant directed her to take her clothes off. Khan heard a slapping sound, followed by the report of a shotgun being fired. Defendant repeated his demand that Karen take off her clothes; he said she had no reason to be embarrassed because Khan was at the front of the car and could not see, and added something about “some guy she hadn’t been embarrassed in front of before.” Khan next heard the noise of someone inside his car, followed by the sound of defendant and Karen talking and walking away from the vehicle. After a few moments he entered the car and noticed Karen’s clothes lying on the back seat. He listened to the radio for 20 to 30 minutes, then heard a muffled noise “like a pop.” Defendant called his name and told him to “Come here.” Khan walked in the direction of the voice and found defendant standing over the nude body of his wife, who had been shot in the face. He was holding a lighter, and asked Khan to help him find the shotgun shell; Khan pointed it out on the ground, and defendant retrieved it. Khan next removed Karen’s wedding rings at defendant’s direction,, and handed them to him. Defendant displayed a matchbook he had found in his wife’s hand, and it bore the initials and telephone number of Larry Creech. Defendant then “mentioned something about identification and something about shooting her hands and feet and tattoos off.” He squatted by Karen’s side and pointed the shotgun at the tattoo on her abdomen, but it failed to fire. He cursed, vainly worked the pump action of the weapon, then said “we better get the hell out of here.” Defendant and Khan walked to the car and drove off in the direction of Sacramento. En route, defendant told Khan he “screwed her front and back,” and claimed that “she was in the middle of a sentence, laughing, smiling, when she went out.” He asked if Khan was afraid he would be killed too, and Khan said he was not. Khan then inquired what should be done when the police talk to Pamela Robison, in view of the fact she last saw Karen in his company. Defendant instructed him to say he had dropped Karen off at the Stickey Wicket, a cocktail lounge where she had a job. Finally, Khan suggested to defendant that he get rid of the gun. At 10 or 11 p.m. the two men arrived back at the Scott-Reeves house and went inside, defendant carrying the gun and his wife’s clothes and purse. They entered the bathroom, closed the door, and defendant emptied the purse on the floor and went through its contents. He removed some pieces of paper bearing telephone numbers and a vehicle registration slip in the name of Karen’s parents; he also found a total of three dollars and change, and remarked, “This would have been a hell of a robbery, huh?” He went through the pockets of his wife’s clothing, then gave Khan the shotgun and told him to wipe it down; Khan complied, and reloaded the weapon. At defendant’s direction Khan asked Linda Reeves for a paper bag, but accepted a pillowcase instead. Defendant placed his wife’s purse and clothes in the pillowcase, and carried it and the wrapped shotgun into the living room. There he asked for a shovel, but none could be found. Defendant and Khan then drove to the house of Larry Creech. Defendant took Creech into a bedroom and said he had “offed his wife.” He told Creech “he had to,” that she was “snitching” or informing on some friends and had “notes and documents” of some sort. He then asked Creech if he should “off” Khan, and Creech replied that Khan was a friend and would not talk. After defendant and Creech came out of the bedroom, Don Sheehan arrived at the house. Defendant returned the shotgun to Sheehan and instructed him to clean it up, telling him the party who had originally wanted it no longer did. Defendant and Khan separated later that night. On the morning of October 12 defendant drove with Khan to the Creech house. Linda Creech, Larry’s wife, asked him the whereabouts of Karen, and he replied “they were through and she was gone for good this time.” He also showed Larry Creech Karen’s rings and said he was going to get rid of them. He repeated that he had-killed his wife because she was informing, and said he should have buried the body. Later that day defendant encountered Pamela Robison and told her he was “worried” about his wife; he said that the previous evening (Oct. 11) he talked to her by telephone at the Stickey Wicket and then spoke with the bartender there who said “she left with some guy.” Defendant then telephoned Laura Schmidt from the Robison house and asked where his wife was; Schmidt replied that the last time she heard from Karen she was staying with Robison. On October 13, Khan returned to Larry Creech’s house and the two men burned the pillowcase and its contents, i.e., the victim’s clothing and purse, in a metal bucket. They mixed the debris with sand, and instructed a man who worked around the house to get rid of it. Eight days later, acting under a search warrant, the police found ashes containing the burned remains of a woman’s purse and clothing outside Creech’s workshop. On October 15 defendant telephoned Sutter County Sheriff’s Detective James Davis and said he wanted to meet with him that afternoon. At the ensuing meeting defendant told Davis that about 5 p.m. on October 11 Karen telephoned him and said she needed transportation to the Stickey Wicket for a job interview, and that he sent a friend named “Dave” to pick up his wife for this purpose. Later that day defendant gave a written statement to the same effect, and on the following morning he called Detective Davis and identified “Dave” as David Khan. On October 18 defendant and Creech visited the apartment of Jill Doolittle, Sheehan’s girlfriend, because defendant “needed to see” Sheehan. In due course Sheehan arrived and the three went into a bedroom. Defendant asked Sheehan if he still had the shotgun; learning that he did, defendant told him to get rid of it in a way that it would never be found. Sheehan thereupon took the gun, unloaded it, wiped it down, placed it inside two empty grocery bags, and threw it into a “dumpster” or large debris box in an alley not far away. When he returned to the Doolittle apartment and told defendant what he had done with the weapon, defendant became upset; he said things have been known to be found in places like that, and asked why Sheehan had not thrown the gun into the river as he had indicated. The gun was subsequently recovered by the police. About a week later, Larry and Linda Creech drove to Oregon for a vacation with defendant and another couple. There, defendant told Larry he was “planning on letting David eat the murder.” To Linda, however, defendant said she “probably figured out who had did [szc] it” and that “David had killed his wife and unborn child and revenge was his.” Defendant and Creech were arrested in Oregon and returned to the Sutter County jail. At the time of booking, defendant made a telephone call within the hearing of Detective Davis; in a state of rage, defendant said: “Mom, I’m in the Sutter County Jail. I want you to contact Butch. I want that mother fucker David offed. I don’t care what happens to me. The mother fucker has to be taken out. Tell Butch that I want him to take David out, he will take care of it. Tell him that David is on the streets.” The principal defense was alibi, presented through a witness who testified that at the time the murder was assertedly taking place she was speaking on the telephone with defendant and he was at his mother’s house. Defendant also sought to implicate David Khan as the real murderer; in this connection he called Michele, David’s estranged wife, who testified that her husband was often under the influence of drugs and when in that state was given to acts of violence such as tying her up, beating her, and threatening to kill her. Defendant did not testify. I - Issues relating to the verdict of first degree murder. Defendant contends that in the guilt phase of the trial the court committed prejudicial error in certain of its rulings on evidentiary and instructional matters. As will appear, we conclude in each instance that either the ruling was not erroneous or the error was waived or was harmless. A A group of defendant’s contentions present a broad claim that the trial court allowed into evidence numerous items of irrelevant testimony. We begin with the principles that except as otherwise provided by statute “all relevant evidence is admissible” (Evid. Code, § 351); that “relevant evidence” is all evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action” (id., § 210); and that the trial court is vested with wide discretion in determining relevance under this standard (People v. Warner (1969) 270 Cal.App.2d 900, 908 [76 Cal.Rptr. 160], and cases cited). Defendant first points to testimony from which, he asserts, the jury could infer he had previously been incarcerated. On direct examination Don Sheehan testified he told the arresting officers he was afraid to go to prison on a pending parole violation charge; the district attorney asked why he was afraid, and Sheehan replied that defendant “had a lot of friends there.” Defendant’s motion to strike this testimony on the ground of irrelevancy was correctly denied. To begin with, the remark referred only to unidentified “friends” of defendant; the case is obviously distinguishable from those in which the defendant himself was characterized as a former prisoner. (See, e.g., People v. Allen (1978) 77 Cal.App.3d 924, 934-935 [144 Cal.Rptr. 6], and cases cited.) More importantly, the testimony was not inadmissible as a matter of law. Among the evidence relevant to the issue of the credibility of a witness is “The existence or nonexistence of a bias, interest, or other motive” for his testimony. (Evid. Code, § 780, subd. (f).) Sheehan admitted the authorities promised him that he would not be sent to prison on his parole violation. It was apparent that defendant would attack Sheehan’s credibility—as he did on cross-examination—by suggesting this promise was the motive for his testimony favorable to the prosecution. In anticipation thereof, the district attorney sought to show that the promise was given instead for the sole purpose of allaying Sheehan’s justifiable fear of peer retaliation in prison. Also relevant to the issue of credibility is a witness’ “attitude toward the action” or “toward the giving of testimony.” (Id., subd. (j).) Here the principal prosecution witnesses made it clear their peer group does not give information to the police and that to do so invites ostracism or worse; all such witnesses, including Sheehan, were self-admitted ex-felons. In the circumstances, the fact that Sheehan was willing to testify against a former member of the group despite his fear of retaliation was supportive of the credibility of his testimony. For both these reasons the trial court did not abuse its discretion in admitting the challenged evidence. Second, defendant complains generally of several other instances in which prosecution witnesses spoke of their concern for their personal safety and of ensuing protective measures taken by the authorities. For the foregoing reasons, such testimony was relevant to the issue of their credibility. Defendant’s contention that these threats must somehow be “linked” to him (see People v. Brooks (1979) 88 Cal.App.3d 180, 187 [151 Cal.Rptr. 606]) is misdirected, as the prosecution never claimed that the witnesses’ fear was the result of any effort on defendant’s part to procure false testimony. Third, it is asserted that certain testimony of Larry Creech improperly disclosed other criminal activity by defendant. The witness testified that at midmorning of the day before the crime defendant and Karen visited him at his house; that after Karen left, defendant asked him to go to one Terry Sanders and pick up a quarter of a pound of “crank” (i.e., methedrine) and $800 in cash; and that the witness declined to do so for lack of time. Again defendant’s motion to strike on the ground of irrelevancy was correctly denied. The testimony was relevant to an issue in the case, i.e., to defendant’s theory that the murder was committed by David Khan for the purpose of stealing money or drugs from the victim. Defendant had already elicited from Khan the admission that he needed money at the time he and his brother picked Karen up at the Robison house, and that he knew or had reason to know she might be in possession of a large amount of cash. The challenged testimony of Creech would support an inference that Karen did not in fact have the $800 or the drug in question on her person when she entered Khan’s car because defendant had not yet obtained them from Sanders. The testimony thus had a “tendency in reason to. ..disprove” the proposed defense, and hence was relevant. (Evid. Code, § 210.) Defendant also criticizes a later colloquy on redirect examination of Creech. The witness admitted he had been engaged in criminal activities such as theft and drug traffic with “different types of people,” and that he feared retaliation by them because he was cooperating with the police. There ensued a brief inquiry in which the district attorney sought to make more specific the witness’ reference to “different types of people.” The trial court correctly overruled defendant’s repeated objection that the inquiry was “leading,” as none of the questions “suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) Changing his ground of objection, defendant now contends the testimony should have been excluded because it put before the jury evidence of “other crimes” he allegedly committed that was relevant solely to show his general criminal disposition. {Id., § 1101, subd. (b).) Because of defendant’s failure to make a timely and specific objection on this ground, however, the point must be deemed waived. (Id., § 353, subd. (a); People v. Welch (1972) 8 Cal.3d 106, 114-115 [104 Cal.Rptr. 217, 501 P.2d 225], and cases cited.) On cross-examination defendant asked David Khan if to his knowledge Karen had been dealing in drugs. The district attorney objected on the ground of irrelevancy; and at a subsequent conference in chambers the court sustained the objection, finding that the question had no probative value on the issues of the case. Defendant’s claim of error in this ruling is not well taken. He argues that an affirmative answer to the question would have tended to support his theory that Khan was the real murderer by providing a motive for the latter to have committed the crime. Defendant reasons that if Khan knew Karen was dealing in drugs he might have assumed she had either drugs or money in her possession when he picked her up on the day of the murder, and hence might have killed her for the purpose of robbery. It is settled, however, that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense. (People v. Mendez (1924) 193 Cal. 39, 51-52 [223 P. 65], overruled on another point in People v. McCaughan (1957) 49 Cal.2d 409, 420 [317 P.2d 974]; accord, People v. Whitney (1978) 76 Cal.App.3d 863, 869 [143 Cal.Rptr. 301], and cases cited.) The rule is designed to place reasonable limits on the trial of collateral issues (Mendez, 193 Cal. at p. 52) and to avoid undue prejudice to the People from unsupported jury speculation as to the guilt of other suspects (People v. Arline (1970) 13 Cal.App.3d 200, 204-205 [91 Cal.Rptr. 520]). The record before us does not contain substantial evidence connecting Khan with Karen’s murder, within the meaning of this rule. Defendant relies on testimony tending to show that Khan had an opportunity to kill Karen and was a man of violent propensities who used drugs. But such general proof of opportunity and criminal disposition raises at most a bare possibility that Khan might be the culprit. In Mendez this court approved of decisions holding that even evidence of threats made by the third person against the victim was insufficient for this purpose (193 Cal. at p. 51); a fortiori, evidence of mere opportunity and general disposition is inadequate. It follows that the court did not err in rejecting the testimony that defendant here sought to elicit. B The next contention relates to an incident occurring during the direct testimony of Pamela Robison. According to police reports, the witness was prepared to testify that Karen stated to her she had a telephone conversation with defendant on the morning of October 11 in which she told defendant she intended to get an annulment and he replied he would kill her if she left him. Prior to the giving of such testimony, and outside the presence of the jury, defendant moved to exclude the evidence of Karen’s statement reporting his threat to her life. He conceded the statement was not subject to a hearsay objection because it was not offered for the truth of the matter asserted, i.e., to prove that he actually uttered the threat; rather, it was offered as circumstantial evidence of the fact that Karen was in fear of him on the morning of the crime. Evidence of Karen’s fear, in turn, was relevant to an issue in the case, i.e., to the question whether she accompanied defendant later that day against her will and without her consent, within the meaning of the law of kidnaping. On its face, therefore, Karen’s statement was admissible. Defendant’s objection, however, was that because of the nature of the statement “any probative value is greatly outweighed by its prejudicial effect.” He thereby specifically invoked the discretion vested in the court by Evidence Code section 352 to exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will... create substantial danger of undue prejudice.... ” After arguing the point at some length, defendant reiterated that “this statement is the essence of what the case is all about,” and called on the court to “exercise its jurisdiction, its authority to guarantee the fairness of the proceeding and exclude it.” As defendant correctly points out, the record does not show that the court did in fact discharge its statutory duty in these circumstances by weighing the statement’s^ potential for prejudice against its probative value and concluding that the latter was not “substantially outweighed” by the former. Instead, the court simply ruled that it would deny defendant’s motion and would admit the statement with a limiting admonition to the jury. The witness Robison was then permitted to recount Karen’s statement relating defendant’s threat. At the close of her direct testimony the court admonished the jurors that they could not consider the statement as proof of its truth, i.e., as proof that defendant actually made such a threat, but could consider it only for the limited purpose of showing Karen’s state of mind at the time she related the statement to Robison. Defendant contends the ruling was error under People v. Ford (1964) 60 Cal.2d 772 [36 Cal.Rptr. 620, 388 P.2d 892]. In that case the defendant urged that the trial court had abused its discretion in admitting six assertedly gruesome photographs of the murder victim’s body; as to several of the photographs the court had expressly ruled that “as long as it is material it can go in.” Reversing on another ground, we addressed the issue for purposes of retrial: “In the circumstances we need neither view these photographs nor determine whether their admission was prejudicial, for it appears on the face of the record that the trial court prima facie abused its discretion as a matter of law in failing to weigh the probative value of the photographs in resolving a material issue as against the danger of prejudice to the defendant through needless arousal of the passions of the jurors.” (Id. at p. 801; accord, People v. Davis (1965) 62 Cal.2d 791, 797-798 [44 Cal.Rptr. 454, 402 P.2d 129].) The Attorney General responds that the record in the case at bar does not contain a similar affirmative showing that the trial court misunderstood its duty to weigh prejudice against probative value; here the record is simply silent on the point, and the Attorney General implies that in such event it should be assumed the court knew and performed its duty. The argument is untenable: in Ford (60 Cal.2d at p. 801) we expressly directed that “If these photographs are offered on retrial it will be the duty of the court to determine their admissibility in accordance with the above stated rule of law, and to make the fact apparent in the record.” (Italics added.) It is true the case predated the adoption of the Evidence Code, but section 352 was merely a recodification of the existing statutory and decisional law applied in Ford. Moreover, since the enactment of section 352 the Ford requirement—i.e., that on a motion invoking this ground the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value—has been reiterated both by the courts {People v. Holt (1972) 28 Cal. App.3d 343, 353 [104 Cal.Rptr. 572] [disapproved on a different ground in Evans v. Superior Court (1974) 11 Cal.3d 617, 625, fn. 6 [114 Cal.Rptr. 121, 522 P.2d 681]) and by the writers (e.g., Jefferson, op. cit. supra, § 22.1, pp. 289-290). The cited authorities explain that the reason for the rule is to furnish the appellate courts with the record necessary for meaningful review of any ensuing claim of abuse of discretion; an additional reason is to ensure that the ruling on the motion “be the product of a mature and careful reflection on the part of the judge,”. i.e., to “promote judicial deliberation before judicial action” {Mercer v. Perez (1968) 68 Cal.2d 104, 113 [65 Cal.Rptr. 315, 436 P.2d 315] [requirement of written reasons for order granting new trial]). The Attorney General next contends that the foregoing requirement was satisfied by the trial court’s admonition to the jury (and later instruction to the same general effect) limiting consideration of Karen’s statement to its nonhearsay use as circumstantial evidence of her state of mind. Again the argument is untenable. When evidence is admissible for one purpose but not for another, the decision of the trial court to give such an instruction is merely a prerequisite to admitting the evidence at all. (Evid. Code, § 355.) The party opponent is still entitled to have it excluded on motion under section 352 if the nature of the evidence is such that despite a cautionary instruction its limited probative value is substantially outweighed by the danger of undue prejudice from the jury’s misuse thereof for an inadmissible purpose. (See, e.g., Hrnjack v. Graymar, Inc. (1971) 4 Cal.3d 725, 729, 732-733 [94 Cal.Rptr. 623, 484 P.2d 599, 47 A.L.R.3d 224] [error to admit evidence that tort plaintiff received “collateral source” insurance payments, even though limited by instruction to plaintiff’s motive in seeking medical help and his credibility as a witness]; People v. Gibson (1976) 56 Cal.App.3d 119, 127, 129-131 [128 Cal.Rptr. 302] [error to admit evidence that murder defendant committed prior violent assaults, even though limited by instruction to defendant’s state of mind—i.e., his intent and motive—at time of charged offense]; Cal. Law Revision Com., com. foil. Evid. Code, § 355; Jefferson, op.cit. supra, § 21.1, p. 255, caveat.) That rule is applicable here. Testimony that a defendant threatened his victim prior to committing the crime charged is a particularly sensitive form of evidence of the victim’s state of mind. In the case at bar it created a substantial danger that despite the limiting instruction, the jury—consciously or otherwise—might consider Karen’s statement as evidence not only of her mental state but also of that of defendant, i.e., of the fact that defendant actually threatened to kill her if she left him and inferentially harbored an intent to do so; and the relevance of that intent to the crime charged should have been obvious. Accordingly, under the foregoing authorities the court erred in admitting Robison’s testimony of Karen’s statement without making an explicit determination that this risk of undue prejudice did not substantially outweigh the probative value of the evidence. Defendant nevertheless fails to demonstrate that the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) Subsequent to the challenged testimony of Pamela Robison, David Khan took the stand and described in detail the events at the murder scene, including the conversation between defendant and Karen that he overheard while sitting on the front fender of his car. In that connection Khan testified, inter alia, that defendant demanded of his wife an explanation “about the annulment,” then reminded her “he had told her once before” that if she ever tried to leave him he would kill her. Because it was an admission of a party, this statement was not subject to a hearsay objection. (Evid. Code, § 1220.) It was therefore admitted for all purposes, including as proof of the fact asserted—i.e., that defendant had indeed threatened to kill his wife. Thus the jury properly had before it in Khan’s testimony the very statement that was erroneously admitted on an insufficient ruling in Robison’s testimony. It has been held that an apparent Ford error is not prejudicial when the evidence in question is cumulative of other properly admitted evidence to the same effect. (People v. Bowen (1971) 22 Cal.App. 3d 267, 292-293 [99 CaLRptr. 498].) Defendant claims the testimony of Robison is not merely cumulative because she was a more credible witness than Khan and her testimony thus corroborated his. Nevertheless, after a review of the entire record we are of the opinion that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of this error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) C Defendant assigns as prejudicial misconduct some nine remarks by the district attorney in the course of his closing argument to the jury. At trial, however, defendant failed to object to any of these remarks except the last. As to each of the first eight instances, therefore, defendant is deemed to have waived the objection and the point cannot be raised on appeal. (People v. Reyes (1974) 12 Cal.3d 486, 505 [116 Cal.Rptr. 217, 526 P.2d 225]; People v. Brice (1957) 49 Cal.2d 434, 437 [317 P.2d 961]; People v. Adamson (1946) 27 Cal.2d 478, 494 [165 P.2d 3], affd. sub nom. Adamson v. California (1947) 332 U.S. 46 [91 L.Ed. 1903, 67 S.Ct. 1672, 171 A.L.R. 1223]; People v. Fleming (1913) 166 Cal. 357, 376-377 [136 P. 291]; People v. Simon (1927) 80 Cal.App. 675, 678-679 [252 P. 758], and cases cited.) The reason for this rule, of course, is that “the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.” (Simon, at p. 679 of 80 Cal.App.; accord, People v. MacDonald (1914) 167 Cal. 545, 551 [140 P. 256].) Seeking to surmount this barrier, defendant invokes a line of cases reciting that there are two exceptions to the general requirement of a timely objection to prosecutorial misconduct: first, when the case is “closely balanced,” the defendant’s guilt is in “grave doubt,” and the misconduct “contributed materially to the verdict”; second, when an objection would be futile because in the circumstances a retraction by the prosecutor or an admonition by the court could not obviate the prejudicial effect of the misconduct on the jury. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 723-724 [135 Cal.Rptr. 392, 557 P.2d 976]; People v. Chojnacky (1973) 8 Cal.3d 759, 765-766 [106 Cal.Rptr. 106, 505 P.2d 530]; People v. Perry (1972) 7 Cal.3d 756, 790-791 [103 Cal.Rptr. 161, 499 P.2d 129].) Defendant claims that both these exceptions apply in the case at bar; we conclude on the contrary that the first is not properly an exception to the objection requirement, and that the second is unsupported by the record. The belief that a failure to object to prosecutorial misconduct is excused when the misconduct “contributed materially to the verdict” can be traced back to misleading language in the opinion of this court in People v. Berryman (1936) 6 Cal.2d 331, 337 [57 P.2d 136]. Prior to that time, the cases had established -two distinct rules of law on this topic. First, it was settled that a defendant cannot complain on appeal of prosecutorial misconduct at trial unless he made a timely objection thereto and requested that the jury be instructed to disregard the improper remark. (People v. Nakis (1920) 184 Cal. 105, 116 [193 P. 92]; People v. Beggs (1918) 178 Cal. 79, 92 [172 P. 152]; People v. Kromphold (1916) 172 Cal. 512, 522 [157 P. 599]; People v. Kizer (1913) 22 Cal.App. 10, 20 [133 P. 516, 521, 134 P. 346], and cases cited.) It was also clear that “There is, however, a well-recognized exception to this general rule, and the exception is simply this: Where an examination of the entire record fairly shows that the acts complained of are of such a character as to have produced an effect which, as a reasonable probability, could not have been obviated by any instructions to the jury, then the absence of such assignment and request will not preclude the defendant from raising the point in this court.” (Simon, at p. 679 of 80 Cal.App.; accord, People v. West (1932) 215 Cal. 87, 96 [8 P.2d 463].) The exception flowed logically from the purpose of the objection rule: if as noted above the requirement of an objection is intended to give the trial court the opportunity to cure the harm by an appropriate instruction, objection is an idle act when it is reasonably probable that no such cure will follow. The second rule provided that if the defendant did object and the court gave the requested instruction, it would ordinarily be presumed that the jury heeded the admonition and the error was cured. (People v. Perry (1904) 144 Cal. 748, 752-753 [78 P. 284]; People v. Mathews (1903) 139 Cal. 527, 528 [73 P. 416]; People v. Ho Kim You (1914) 24 Cal.App. 451, 467 [141 P. 950], and cases cited.) Because he had preserved his record, however, the defendant in such a case was nevertheless entitled to raise the error on appeal and contend that despite the admonition the misconduct required reversal of his conviction. If he did so, the appellate court was bound to resolve his contention by application of the constitutional standard for review of a claim of prejudicial error (art. VI, § 4-1/2, now § 13), i.e., that the judgment will not be reversed unless the court is of the opinion on the whole record that the error resulted in a miscarriage of justice. (See, e.g., People v. Loomis (1915) 170 Cal. 347, 351 [149 P. 581] [judgment affirmed]; People v. Fleming (1913) supra, 166 Cal. 357, 381 [judgment reversed].) And in determining whether there was a miscarriage of justice, the court considered such factors as whether the evidence was close and the defendant’s guilt in doubt, whether the misconduct was deliberate and repeated, and whether it was likely to have contributed materially to the verdict. (People v. Fleming, supra, 166 Cal. at p. 381; People v. Ho Kim You, supra, 24 Cal.App. at pp. 467-469; accord, People v. Anthony (1921) 185 Cal. 152, 159 [196 P. 47].) It is apparent that this inquiry is not so much an “exception” to the second rule as its corollary: if the defendant is permitted to complain on appeal that the misconduct requires reversal despite the admonition, the court must weigh that claim by settled standards of appellate review. In People v. Berryman, however, this court adopted a method of analyzing such a claim that was both confused and confusing. In his closing argument in that case the district attorney exhorted the jury that “this whole county, this whole state is watching what you do today upon this case.” The defendant promptly assigned the remark as misconduct; the court agreed the argument was improper, directed counsel to refrain from such argument, and instructed the jury to disregard it. (6 Cal. 2d at pp. 336-337.) On appeal to this court, the defendant contended inter alia that the prosecutor’s remark constituted such serious misconduct as to prejudice his right to a fair trial. Because the defendant had made a timely objection to the remark and obtained a cautionary instruction, there was no occasion for this court to invoke either the rule requiring such an objection or the exception thereto applicable when such an instruction would be futile; the defendant was manifestly entitled to complain of the remark on appeal, and the only true issue was whether despite the admonition the misconduct resulted in a miscarriage of justice when the evidence was viewed as a whole. Nevertheless, the Berryman opinion began its analysis of the point {id. at p. 337) by reiterating the requirement of a timely objection and, what is worse, combining that requirement into a single so-called “general rule” with the above-discussed principle of cure by admonition. To compound the confusion, the opinion also combined the foregoing corollaries to each of these separate principles, characterizing them merely as “two exceptions to this general rule.” The paragraph that emerged is set forth in the margin. On closer inspection this passage of Berryman turns out to be largely a paraphrase of one of the authorities it cites, section 603 of 8 California Jurisprudence, Criminal Law, and it demonstrates the pitfalls of uncritical reliance on such a secondary source. Section 603 states, correctly enough, the rule that prosecutorial misconduct is ordinarily presumed to be cured by a proper admonition. {Id. at p. 623.) It also correctly states the above-discussed corollary thereto, i.e., that despite such an admonition a miscarriage of justice requiring reversal may be found if there is grave doubt of guilt and the misconduct contributes materially to the verdict. {Id. at p. 625.) But the section also asserts “There may be cases” in which the misconduct is “of such a character that a harmful result cannot be obviated” by a cautionary instruction, and “In such cases” the misconduct will “furnish ground for reversal” despite the giving of that instruction. {Id. at pp. 623-624.) It was the latter assertion that ultimately misled the courts. Upon analysis it appears that all the cases cited in section 603 that actually reversed a judgment on the latter ground predated the 1911 constitutional requirement of a miscarriage of justice. They were therefore decided under a very different rule of prejudice—i.e., that every conviction after a trial in which prosecutorial misconduct occurred must be reversed “unless it is clear that the verdict was not affected thereby.” (Italics added.) {People v. Ah Len (1891) 92 Cal. 282, 285 [28 P. 286].) Under that test it was inevitable that any instance of misconduct “of such a character that a harmful result cannot be obviated” by instruction would be deemed reversible, regardless of the state of the record as a whole. Yet if there ever was such a separate ground of reversal in misconduct cases, it was superseded in 1911 by the new constitutional test of prejudice: thereafter an instance of misconduct not curable by instruction was not reversible unless the appellate court found on the whole record that it resulted in a miscarriage of justice. By ignoring this distinction section 603 was at best incomplete and at worst misleading; and by copying the language of section 603 and flatly declaring it to constitute an “exception” separate and distinct from the miscarriage of justice test, the Berryman court fell into the trap thus laid for it. For our purposes, however, another consequence of this error was even more serious. Apparently because the “exception” for misconduct not curable by instruction was also a settled exception to the requirement of timely objection, the Berryman court decided to add the latter to the rule it was attempting to state. Thus the first sentence of the paragraph in question (fn. 13, ante), purporting to set forth the “general rule” governing appellate review of claims of prosecutorial misconduct, was a paraphrase of the first sentence of section 603; but whereas the latter was limited to a statement that such misconduct will ordinarily not result in reversal if the court gave a proper admonition (8 Cal.Jur. at p. 623), the Berryman version of that statement inserted as an alternative ground of affirmance, “where no objection is made to such misconduct by the defendant. .. .” The addition of this dictum was ill-advised. Without the dictum the sentence would have been wordy but correct; with the dictum it defies useful application. The reason that misconduct occurring without objection does not “furnish ground” for reversal is because the defendant is not allowed to raise the point on appeal; on the other hand, misconduct followed by a successful objection does not “furnish ground” for reversal for the very different reason that the ensuing admonition is presumed to cure the harm. To join these wholly distinct principles into a single “rule” is to make the rule so “general” as to be of virtually no practical value; it is as if a zoologist were to announce that an elephant resembles a mouse in that both are animals. But the sentence was not only uninformative, it was also mischievous: it unwittingly set a second trap into which this court soon fell. In Berry-man, as we have seen, the defendant voiced a prompt objection to the claimed misconduct and obtained a cautionary instruction; but by extending its “general rule” to include in dictum cases in which such an objection was not made, Berryman created the risk that when one of the latter cases arose the court would invoke the rule and apply to that situation both of these “exceptions.” And that is precisely what happened. In People v. Sampsell (1950) 34 Cal.2d 757, 762-764 [214 P.2d 813], the defendant failed to object to misconduct at trial yet attempted to raise the claim on appeal. In rejecting the claim this court correctly held the omission was not excused on the ground that an objection would have been futile. But the court went on to hold, “Nor does the case fall within another exception as stated in People v. Berryman, 6 Cal.2d 331, 337 [57 P.2d 136]: ‘. .. where the case is closely balanced and there is grave doubt of defendant’s guilt, and the acts of misconduct are such as to contribute materially to the verdict, a miscarriage of justice results requiring a reversal. (People v. Fleming, 166 Cal. .357. ...)’” Similar opinions followed (e.g., People v. Lyons (1958) 50 Cal.2d 245, 261-262 [324 P.2d 556]; People v. Wein (1958) 50 Cal.2d 383, 396 [326 P.2d 457] [overruled on another ground in People v. Daniels (1969) 71 Cal.2d 1119, 1140 (80 Cal.Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677)]; People v. Perez (1962) 58 Cal.2d 229, 247 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]), until the now-truncated “rule” with its dual “exceptions” became reduced to a brief formula: “Misconduct in argument may not be assigned on the appeal if it is not assigned at the trial, unless the misconduct contributed to the verdict or was so unredeemable that nothing whatever would have cured it. (People v. Berryman, 6 Cal.2d 331, 337 [57 P.2d 136].)” (Italics added.) (People v. Rosoto (1962) 58 Cal.2d 304, 357 [23 Cal.Rptr. 779, 373 P.2d 867]; accord, People v. Golston (1962) 58 Cal.2d 535, 541 [25 Cal.Rptr. 83, 375 P.2d 51]; People v. Mitchell (1966) 63 Cal.2d 805, 809 [48 Cal.Rptr. 371, 409 P.2d 211]; People v. Beivelman (1968) 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913].) Such formulas tend to discourage inquiry into their validity, and acquire the air of impregnability that surrounds black-letter law. Finally, in its most recent manifestation the Berryman language was restated as follows: “Such misconduct must be assigned as error at trial with a request that the jury be instructed to disregard its effect, unless (1) in a closely balanced case presenting grave doubt as to the defendant’s guilt the misconduct contributed materially to the verdict or (2) the harmful results could not have been obviated by a timely admonition to the jury. [Citations, including Berryman.] The alleged misconduct was not assigned as error at trial and neither exception to the general rule is shown to be applicable in the instant case.” (Italics added.) (People v. Chi Ko Wong (1976) supra, 18 Cal.3d 698, 723-724.) We have thus come full circle: the “general rule” stated in the source that Berryman paraphrased (8 Cal.Jur. at p. 623) was the presumption of cure by admonition; the “general rule” stated in Berry-man was that presumption or a waiver by failure to object; and the “general rule” now stated in the cases is the latter alone. The dictum, in short, has swallowed the rule, and at the end of this convoluted evolution two principles that originally were wholly unrelated—the objection requirement and the constitutional test of a miscarriage of justice —have not only become linked but the latter is now said to be an “exception” to the former. Seen in this light, it seems plain that the proposition that the miscarriage of justice test is an “exception” to the objection requirement has no historical legitimacy. Nor did it acquire that dignity through repetition: in virtually every case in which the court reiterated this “exception” to the objection requirement and actually excused a failure to object, the excusal was in fact premised on the other—and correct —exception to the requirement, i.e., that the misconduct was not curable by instruction. Moreover, throughout this same evolution of the Berryman “rule,” a parallel line of cases in this court ignored Berryman and discussed only the correct exception to the objection requirement. Finally, the Berryman “exception” will not withstand analysis: it is not difficult to conceive of prosecutorial misconduct that if uncorrected would “contribute materially to the verdict,” yet remains easily curable by a prompt instruction to the jury; a misstatement by counsel of a controlling rule of law comes immediately to mind. On the point here in issue, therefore, Berryman and its progeny should no longer be followed. Rather, the initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected (see, e.g., People v. Nicolaus (1967) supra, 65 Cal.2d 866, 881); if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution. (See, e.g., People v. Kirkes (1952) supra, 39 Cal.2d 719, 726-727 [judgment reversed]; People v. Kizer (1913) supra, 22 Cal.App. 10, 20-21 [judgment affirmed].) Turning to the facts of the case at bar, we apply the foregoing analysis to the eight instances of alleged prosecutorial misconduct as to which defendant made no objection at trial. They include remarks in which the district attorney expressed his disbelief of defendant’s alibi, his denial of a conspiracy between his office and the prosecution witnesses, and his reason for not calling certain persons to testify, together with his partial misstatement of the law of reasonable doubt. Without deciding whether those remarks constituted misconduct, we have examined each in context and are of the view that any harm flowing therefrom could have been cured by appropriate admonition. There is accordingly no ground to excuse defendant from the general requirement of a timely objection, and the point must be deemed waived. The sole remark to which defendant did object occurred when the district attorney concluded his argument by saying to the jurors, “I appreciate your attention, your being here, and I ask you to consider carefully all of that evidence, the instructions, and reach a fair, just, honest conclusion. I’m convinced in my mind it will be the same conclusion I reached several months ago.” Defendant objected this was improper argument because the prosecutor “expressed his opinion and his conclusion,” but the objection was overruled. Defendant now contends the prosecutor’s reference to “the same conclusion I reached several months ago” caused a miscarriage of justice and requires that the judgment be reversed. A review of the prosecutor’s entire argument to the jury persuades us that defendant exaggerates the effect of this remark. In contrast to the cases relied on by defendant, the district attorney did not expressly tell the jury that he would not have prosecuted defendant unless he personally believed him guilty. (See, e.g., People v. Bain (1971) 5 Cal.3d 839, 848 [97 Cal.Rptr. 684, 489 P.2d 564]; People v. Kirkes (1952) supra, 39 Cal.2d 719, 723; People v. Edgar (1917) supra, 34 Cal.App. 459, 468.) It is true that the remark, when viewed in isolation, implied that the district attorney believed in defendant’s guilt prior to trial, and the cases just cited disapprove such an argument. But they do so because of the risk that the jury will infer that the prosecutor’s belief is based at least in part on proof of guilt that was not—and perhaps could not have been—introduced at the trial. The record shows no such risk here. Throughout his argument, the district attorney repeatedly emphasized to the jurors that any opinion he expressed to them concerning defendant’s guilt was based on the evidence and legitimate inferences therefrom, and he reminded them again and again that they were the sole judges of the facts and their verdict must be based on their own conclusion as to the evidence. Thus just before making the statement now criticized, the district attorney told the jurors: “Ladies and gentlemen, I would submit to you that a review, conscientious one, which I know you would do [of] all the evidence will leave you of the opinion the defendant is guilty beyond a reasonable doubt, not only of the first degree murder, but of robbery and kidnap in the commission of the offenses he engaged in that day.” Finally, immediately after the challenged reference to his own “conclusion,” the district attorney added by way of explanation: “If indeed that’s your conclusion as I stated, I ask you to return a guilty verdict against the defendant as charged. ...” In these circumstances the remark in question cannot have misled the jury into believing the prosecutor was asking for a verdict based on his opinion and on evidence not introduced at trial. While assertions of this nature are fraught with risks and should be avoided, in the case at bar we conclude from the whole record that the remark did not result in a miscarriage of justice. D Penal Code section 1127c provides that when the prosecution relies on evidence of flight by the defendant after a crime is committed as tending to show his consciousness of guilt, the jury shall be instructed that it may consider that evidence in deciding guilt or innocence and shall give it such weight as it deserves. Urging in effect that the opposite rule should also prevail, defendant contends the trial court erred in refusing to give his preferred instruction that the absence of flight by a suspect may be considered by the jury as circumstantial evidence that he had an innocent frame of mind. The Attorney General first responds that the instruction was properly refused in this case for lack of evidentiary support. (People v. Terry (1970) 2 Cal.3d 362, 402 [85 Cal.Rptr. 409, 466 P.2d 961].) Following a suggestion of the trial court, he asserts there is in fact evidence of “flight” by defendant, to wit, that after attempting to obliterate all identifying marks on Karen’s body defendant said to David Khan, “we better get the hell out of here,” and the two then drove back to Sacramento. The argument is unpersuasive. The homicide was committed in a remote area and at night; it can hardly be expected that defendant would wait in that location until the victim was reported missing, a search was organized, and the crime was discovered, a process that might have taken days or longer. In these circumstances the fact that he and Khan left the scene and returned to their homes is of no sinister significance whatever. In urging otherwise, the Attorney General ignores the warning of the courts not to confuse a mere departure from the scene of the crime with a deliberate flight from the area in which the suspect is normally to be found. (See, e.g., People v. Brecker (1912) 20 Cal.App. 205, 216 [127 P. 666]; State v. Lincoln (1969) 183 Neb. 770 [164 N.W.2d 470, 472]; State v. Sullivan (1964) 43 N.J. 209 [203 A.2d 177, 192-193].) In the case at bar that area was Sacramento, and the evidence showed that defendant remained in his home surroundings for some two weeks after the crime. He did not go into hiding, but continued to visit his friends as before; indeed, during that period he even contacted the police and volunteered statements about his wife’s movements on the day of the murder. I