Full opinion text
Opinion GRODIN, J. Defendant Michael Ray Burgener was convicted on one count of murder (Pen. Code, § 187) with use of a firearm (§ 12022.5), one count of robbery (§ 211) with use of a firearm (§ 12022.5) and infliction of great bodily injury (§ 12022.7), and one count of being an ex-felon in possession of a firearm (§ 12021). The jury fixed the degree of murder at first degree, found that it was committed during a robbery, and found that it was committed with express malice aforethought and with deliberation and premeditation. Under the 1978 death penalty law, a special circumstance that the murder was committed during a robbery (§ 190.2, subd. (a)(17)(i)) was found true, and defendant was sentenced to death. This appeal is automatic. Defendant raises several claims of error at the guilt and special circumstance phase of his trial. We find merit in defendant’s contention that the trial judge erred in failing to conduct an inquiry to determine whether one of the jurors was intoxicated during deliberations. However, we conclude that under the circumstances of this case this error does not warrant reversal. At this point, any claim of jury misconduct defendant wishes to make would be more appropriately raised in a petition for habeas corpus. None of defendant’s other claims of error is sufficient to reverse his conviction. We will therefore affirm the guilt and special circumstance findings. Defendant declined to participate in the penalty phase of his trial and insisted that his counsel present no mitigating evidence, though such evidence was available. Defense counsel acquiesced. For that reason (see People v. Deere (1985) ante, p. 353 [222 Cal.Rptr. 13, 710 P.2d 925]), and because under the circumstances the jury may have been misled as to the nature of its sentencing task (see People v. Brown (1985) 40 Cal.3d 512, 540-541 [220 Cal.Rptr. 637, 709 P.2d 440]), we will conclude that the penalty judgment must be reversed. I. Proceedings Below Early in the morning on October 31, 1980, William Arias, a clerk in a 7-Eleven store in Riverside, was shot and mortally wounded during a robbery. Arias died later the same morning. Acting on an informant’s tip, the police arrested defendant Michael Ray Burgener and his girlfriend, Nola England, the same afternoon. At the time of his arrest, Burgener was in possession of a handgun. A. People’s Case Nola England testified that she had first met defendant in the summer of 1980. By October they had become lovers and defendant sometimes spent the night at her apartment. Prior to the night of October 30, 1980, defendant had been unsuccessful in trying to find a job and had talked about committing a robbery. Nola told him they did not need money that badly. Nola had purchased a revolver from Joe DeYoung. She had known DeYoung for about six years and had lived with him for two and a half years. She had never used the gun, but defendant had used it for target practice. At defendant’s suggestion, they kept the gun buried in a flower bed outside the apartment. The bullets were kept in a marble bag under the bathroom sink. Defendant knew where the bullets were kept. About midnight on October 30, defendant injured a finger on his left hand while moving furniture in Nola’s apartment. They went to Riverside General Hospital to have his finger treated and got home about 2 a.m. Nola had taken Valium pills that afternoon and evening and testified that she was “loaded” by the time she got home from the hospital. She went to sleep. Christine Boyd testified that on October 31, 1980, about 4:10 a.m., she stopped by the 7-Eleven store on Rutland in Riverside for her regular morning cup of coffee. From her car, she saw a White male carrying a paper sack leaving the store. She did not see his face, but believed he was White because she could see his hand illuminated by her headlights as she pulled into the parking lot. The man was wearing a cowboy hat and had shoulder length curly hair. When Boyd entered the 7-Eleven, the clerk, William Arias, came out of the back room with blood running out of his mouth and told her to call the police because he had been robbed. She called the police and asked for an ambulance. Riverside Police Officer Greg Dunn responded to the call at 4:14 a.m. Arias told the officer, “He shot me, he shot me in the face, in the back, in the stomach,” then Arias began to lose consciousness. He died in surgery at 8:52 a.m. the same morning. The autopsy revealed he suffered bullet wounds in the face, shoulder, side, back, and buttock. He suffered neither defensive nor offensive marks and was healthy prior to the shooting. He died from loss of blood. The marks on his face indicated that he had been shot from a distance of less than 18 inches. The assistant manager of the 7-Eleven arrived at the store about 4:30 a.m. She observed that the cash register had no money in it. Reconciliation of the register tape led her to believe that about $54 was missing. Police officers located a bullet fragment in the back room. There were bloody footprints, all made by Arias. There was no indication of a struggle. Nola England testified that sometime during the early morning hours of October 31, 1980, she was awakened by defendant who was sitting on the edge of her bed. He emptied a paper sack full of money onto the bed. Nola thought he said something about shooting at someone in self-defense. He also mentioned something about robbery and mentioned “one of those little stores" like Circle K or 7-Eleven. Nola then went back to sleep. When she awoke again, sometime before 8 a.m., she and defendant went in defendant’s car to visit Nola’s methadone clinic and to pick up Joe DeYoung to get some speed. The three went to Bob’s Big Boy restaurant and defendant left for an appointment with his parole officer. While they were alone, Nola told DeYoung that the gun she had bought from him had been used in a crime and she wanted to exchange it for another one. DeYoung testified that Nola told him that defendant had used the gun in a 7-Eleven robbery the night before and had killed someone. DeYoung also said that Nola told him she had been at the store, but had not gone inside. DeYoung agreed to exchange the gun for Nola, but secretly telephoned the police from the restaurant. DeYoung had previously worked as a police informant. About 2 p.m., he went to the police department and told Nola’s story to Detective Harding. On Harding’s instructions, DeYoung arranged to meet defendant and Nola at 4 p.m. to exchange the guns. Nola and defendant were arrested at the appointed meeting place, at First and Main about 4:15 p.m. on October 31. Defendant had a revolver stuck in his waistband. This was the revolver Nola had bought from DeYoung. At the time of his arrest, defendant was wearing a cowboy hat which Boyd testified at trial looked like the hat she had seen on the man leaving the 7-Eleven store. At the time of his arrest, defendant’s hair was “long.” He was carrying a wallet containing $72. The shoes defendant was wearing when arrested were subjected to a screening test for the presence of blood. The test was positive, although, in addition to human blood, the substances which test positive include animal blood, enzymes found in cabbage and horseradish, and some fecal material. There was an insufficient quantity of whatever was on the shoes to permit further testing. Screening tests on defendant’s clothing were not positive for blood and none of the bloody footprints made at the 7-Eleven were from defendant’s shoes. The evening of the arrest, investigating officers searched Nola’s apartment. In the trash under the kitchen sink, they found a brown paper sack with the 7-EIeven emblem on it. The sack had two $5 bills stuck inside a fold. On November 4, 1981, a neighbor cleaning Nola’s bathroom, located in the apartment’s community hallway, found a marble bag containing thirty .22 caliber soft-nosed copper washed bullets commonly known as “stingers.” Other residents of the building had access to this bathroom. Expert analysis and comparison of these bullets with the bullet fragments from Arias’s body led to the expert opinion that both could have come from the same melt of lead. Ballistics tests run on the fragments taken from Arias’s body and a bullet test fired from the gun recovered from defendant were inconclusive, but indicated that the fragments could have come from that gun. Evidence of defendant’s extrajudicial statements included the testimony of his parole officer, who said that on the morning of October 31, defendant told him he had been at the hospital until 4 a.m. In fact, it was stipulated that defendant was released from the hospital at 12:56 a.m., had picked up a prescription and then left. Deputy Sheriff Richard Zavetz of the Riverside County jail testified that he spoke with defendant on November 5, 1980. At that time, defendant stated that he and DeYoung had committed the robbery together; that he had driven DeYoung to the store, where DeYoung got out and went inside. Defendant said he saw a man come out from behind the counter and go into the back of the store with DeYoung. He then heard four to six shots and DeYoung came out carrying a paper bag. He and DeYoung split the money. Defendant said that the gun DeYoung had used was the one DeYoung had sold to Nola. Defendant had given it to DeYoung prior to the robbery. B. Defense Case Defendant testified that he never left Nola’s apartment after returning from the hospital. He denied ever having discussed robbery with her. He asserted that his financial resources were such that he was able to keep up his car payments from August to October. Defendant’s father testified that defendant had earned money by doing odd jobs for him, by working in a bookstore, and by doing day labor. In addition, both defendant’s father and mother gave him money, a total of about $50 to $60 a week. Defendant’s father testified that he met defendant and Nola at the hospital the night of the crime. He testified that Nola appeared to be under the influence of drugs or alcohol. When defendant was ready to leave, they discovered that his car had been hit in the hospital parking lot and the fender had been smashed. The fender had to be pried away from the tire before the car could be driven and, even then, the tire still rubbed. A repairman testified that the turning radius was restricted by 50 percent and the tire would hit the fender if the car went over a bump. A private investigator testified that the various routes from Nola’s apartment to the 7-Eleven store measured from 7.4 to 9.9 miles. Defendant testified that he and Nola arrived back at the apartment about 2 a.m. Both took Valium before going to bed. Defendant denied emptying a sack of money on the bed, denied telling Nola anything about a robbery, and asserted that he did not leave the apartment until the next morning. That morning, defendant used his car to drive to Nola’s methadone clinic, to DeYoung’s house, and to the Big Boy. Defendant said that at DeYoung’s house, DeYoung returned the gun which he had previously borrowed from Nola. Defendant denied telling his parole officer that he had been at the hospital until 4 a.m., saying instead that he had told him he had been there until “early in the morning.” In the afternoon, DeYoung called defendant and Nola and said that he wanted to exchange guns with her. When they went to the meeting place, they were arrested. At trial, defendant acknowledged that he had lied to Deputy Sheriff Zavetz. He said he lied to implicate DeYoung who, he thought, had set him up. He testified that the bullets for the gun were kept in a cloth bag in the kitchen of Nola’s apartment. He had never seen the marble bag or bullets of the type that were in the marble bag before. II. Alleged Juror Misconduct After submission of the case to the jury but prior to the verdict, the court and counsel were notified that one of the jurors may have been intoxicated during a substantial part of the deliberations. The trial judge did not examine the juror to determine whether or not she was incapacitated. Defendant argues that his right to a trial by jury was thus violated. The jury retired to deliberate on Friday morning, August 14, 1981, at 10:47 a.m. They were dismissed for the weekend at 4:40 p.m. Deliberations resumed at 9 a.m. on Monday, August 17, 1981. At 3:15 p.m., the foreman of the jury requested a conference with the judge. In chambers, with both counsel present, the jury foreman told the trial judge that one of the jurors, Juror M., had been intoxicated on Friday and “her condition is the same today.” The foreman, Alexis Olds, stated that she had dealt with people on drugs and marijuana, and that it was obvious that Juror M. was intoxicated. Four jurors had independently expressed concern to Olds and three of these had smelled marijuana on Juror M. As evidence of the effect of Juror M.’s condition on her ability to participate in deliberations, Mrs. Olds stated: “She takes one little detail, and I have dealt with people who have been on drugs and marijuana, and she’ll take on [szc] insignificant little detail and she’ll go on and on. She’ll repeat herself over and over and over. She’ll make everybody else sit and look at her and then she’ll catch herself and say, ‘Okay, I’m together.’” The judge consulted with counsel on how best to handle this problem. He suggested two alternatives: first that he call Juror M. into chambers for an examination, second that he substitute an alternate juror. Defense counsel demurred to both these suggestions, observing that any inquiry or admonition of Juror M. would single her out in the eyes of the other jurors and “destroy the jury.” He also suggested that Juror M.’s ability to try the case might not, in fact, be impaired; that the fact that she “rambles” might be typical of her usual behavior, rather than a symptom of intoxication. Further, he commented that he had had a prior experience in which jurors “opposed to people on the jury” had insisted—possibly falsely—that a juror drank in order to get him excused. Ultimately, the judge suggested a third alternative: that the jury be admonished as a group against using intoxicants for the rest of the trial and allowed to continue their deliberations. Defense counsel agreed to this approach. The jury resumed deliberations on Monday at 3:25 p.m. At 4:10 p.m., the judge admonished them on the subject of intoxicants and excused them for the night. Deliberations resumed on Tuesday at 9 a.m. On Tuesday at 10:25 a.m., the jury returned to court to have the instructions on entrapment repeated. Deliberations resumed at 10:30. At 11:25 a.m. Tuesday, the jury returned verdicts finding the defendant guilty on all counts. In People v. Lee Chuck (1889) 78 Cal. 317 [20 P. 719], this court held that clear proof of the fact that a jury had consumed intoxicating liquors during deliberations in a capital case required reversal of a verdict of conviction, even in the absence of proof that any juror was actually intoxicated. Defendant first urges that his conviction must be reversed on the authority of Lee Chuck. Without commenting on the continued vitality of the Lee Chuck rule, we simply observe that the record on appeal in this case is insufficient to establish that Juror M. had, in fact, used intoxicants during deliberations. For this reason, Lee Chuck provides little guidance for resolution of the issue presented here. Relying upon People v. McNeal (1979) 90 Cal.App.3d 830 [153 Cal.Rptr. 706], defendant next argues that the trial court erred in failing to conduct a hearing adequate to ascertain Juror M.’s condition and whether her ability to deliberate was impaired, and that this error requires reversal of his conviction. We agree that the court’s failure was error. However, we are unable to conclude that this error warrants reversal. In McNeal, after deliberations had begun, the jury foreman reported to the judge that one of the jurors had said she had personal knowledge of the case and that this knowledge would affect her vote. Defense counsel suggested that the foreman’s statements required a formal hearing pursuant to Penal Code section 1120, so that the court could determine whether good cause existed to discharge the juror. Instead, the court questioned the foreman to determine the source of his information, and then conducted a cursory examination of the juror herself. The juror was not sworn and was specifically directed not to discuss factual matters. She was asked only whether she could set aside any “information outside the evidence” and decide the case on the evidence presented. When the juror answered “Yes,” the jury was instructed to resume their deliberations. No other jurors were questioned. On appeal, the reviewing court found the trial court’s inquiry inadequate. The recorded statements of the foreman and the juror were sufficient to put the court on notice that improper or external influences were being brought to bear on a juror; and, under these circumstances, “it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of the other jurors has been affected.” (McNeal, supra, 90 Cal.App.3d at p. 839.) Failure to conduct this inquiry was held to be reversible error. The allegation of misconduct in the McNeal case implicated section 1120 which specifically requires a formal hearing with sworn testimony. No such allegation is presented in this case. Nonetheless, we conclude that an inquiry sufficient to determine the facts is required whenever the court is put on notice that good cause to discharge a juror may exist. In reaching its conclusion, the McNeal court relied upon our state Constitution, statutes regulating the discharge and substitution of jurors, and earlier cases which did not involve section 1120 but which discussed the necessity for a complete, though summary, hearing where questions of a juror’s ability to perform his duty are raised. These authorities compel the conclusion that a McNeal-type inquiry was required under the circumstances presented here. The California Constitution guarantees the inviolate right to trial by jury. (Cal. Const., art. I, § 16.) “Among the essential elements of the right to trial by jury are the requirements that a jury in a felony prosecution consist of 12 persons and that its verdict be unanimous. [Citations.]” (People v. Collins (1976) 17 Cal.3d 687, 693 [131 Cal.Rptr. 782, 552 P.2d 742].) Section 1123 gives the trial court the authority to discharge a juror “found to be unable to perform his duty.” Section 1089 provides for the substitution of an alternate juror in the event one of the original jurors is discharged. The language of sections 1089 and 1123 is clearly discretionary, and section 1123 sets forth no procedure to determine whether a juror is unable to perform his duty. However, California cases construing these statutes have established that, once a juror’s competence is called into question, a hearing to determine the facts is clearly contemplated. (People v. Tinnin (1934) 136 Cal.App. 301, 318-319 [28 P.2d 951]; People v. Abbott (1956) 47 Cal.2d 362, 371 [303 P.2d 730]; People v. Manriquez (1976) 59 Cal.App.3d 426, 432 [130 Cal.Rptr. 585], cert, den., 429 U.S. 1003 [50 L.Ed.2d 615, 97 S.Ct. 536].) Failure to conduct a hearing sufficient to determine whether good cause to discharge the juror exists is an abuse of discretion subject to appellate review. (Cf. People v. Huff (1967) 255 Cal.App.2d 443, 447-448 [63 Cal.Rptr. 317]; People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537].) In People v. Huff, supra, 255 Cal.App.2d 443, for example, the declaration of a mistrial on the basis of an officer’s testimony that he had observed the defendant talking to two jurors during a recess was held to be an abuse of discretion. The appellate court in that case stated: “[T]he circumstances called for a hearing to determine what had actually taken place. Particularly apt here is the language of the court in Mitchell v. Superior Court [(1962) 207 Cal.App.2d 643, 650 (24 Cal.Rptr. 671)]: ‘A jury should not be discharged in the absence of legal necessity, and it appears that in this case no attempt was made to determine that question and the decision was made by a judge not in a position to make such observation as would enable him to arrive at a proper decision.’” (Id., at p. 448.) “A ‘good cause’ determination in this context is one calling for the exercise of the court’s discretion [citations], and if there is any substantial evidence supporting the decision, it will be upheld on appeal. [Citation.]” (People v. Van Houten (1980) 113 Cal.App.3d 280, 288 [170 Cal.Rptr. 189].) But once the court is put on notice of the possibility a juror is subject to improper influences it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error. (People v. McNeal, supra, 90 Cal.App.3d 830, 838-840.) Here, the foreman’s statements were sufficient to raise the possibility Juror M. was intoxicated during jury deliberations. If, due to the use of intoxicating substances, Juror M.’s ability to follow the instructions of the court, to deliberate, to render a verdict or otherwise discharge her duties was compromised, she ought to have been excused. (See People v. Groves (1961) 188 Cal.App.2d 785 [10 Cal.Rptr. 661, 7 A.L.R.3d 1034]; People v. Maes (1965) 236 Cal.App.2d 147 [45 Cal.Rptr. 903].) It is beyond question that a criminal verdict rendered with the participation of a juror unfit for the proper discharge of her duty due to intoxication must be reversed. (People v. Gray (1882) 61 Cal. 164, 185-186; see also People v. Leary (1895) 105 Cal. 486, 491-496 [39 P. 24]; People v. Deegan (1891) 88 Cal. 602, 604-607 [26 P. 500].) Alerted to the possibility that Juror M. was intoxicated during deliberations, the trial judge should have conducted an inquiry sufficient to establish whether good cause for her discharge existed. He did not do so. This failure must be regarded as error. Under the particular circumstances of this case, however, we cannot agree with defendant’s contention that this error warrants reversal. As noted above, the record on appeal is insufficient to establish that Juror M. had actually used intoxicants or that her ability to deliberate was affected by them. The record contains only the foreman’s unsupported assertion that Juror M. appeared intoxicated. The foreman’s claim that four other jurors had expressed concern, while suggestive, is hearsay of limited probative value. Juror M. was given no opportunity to explain her behavior, the trial judge conducted no examination to determine whether in his opinion Juror M.’s abilities were impaired, and no other jurors were questioned to ascertain whether they could corroborate the foreman’s report. While we have no reason to doubt the foreman’s sincerity, we also cannot conclude on this record that she was not mistaken or that she had not been prompted to act by other jurors motivated by annoyance at Juror M. rather than by concern for the integrity of the deliberative process. In any event, the record on appeal sheds no light on the cause of Juror M.’s behavior. And in this case, unlike McNeal, supra, this lack of a record is the result of defense counsel’s preference that the court conduct no inquiry. In McNeal, defense counsel initiated the suggestion that the court conduct a full hearing pursuant to section 1120. Here, by contrast, the judge suggested such an inquiry but defense counsel expressed concern that questioning Juror M. would “destroy the jury” and intimated that other jurors might be conspiring to oust her because they did not get along with her. This record, while sparse and ambiguous, would support the inference that defense counsel’s choice was tactically motivated; he may have hoped that the continued participation of Juror M., even if intoxicated, might result in a verdict favorable to defendant. Regardless of counsel’s motives, however, defendant cannot be permitted to prevent an inquiry into the condition of a possibly intoxicated juror on the basis that such an inquiry would “destroy the jury” and subsequently challenge the verdict of that very jury on grounds that the court’s failure to conduct an inquiry prejudiced his interests. We do not suggest that, if defendant can produce evidence that Juror M.’s ability to discharge her duties as a juror was impaired, his conviction should stand. Rather, we conclude only that the record on appeal is insufficient to evaluate a claim of juror misconduct. In an analogous context, this court has noted that, where the record on appeal provides insufficient evidence to evaluate a claim of ineffective assistance of counsel, the conviction must be affirmed on appeal. (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) As the court in Pope explained, under these circumstances, such a claim is more appropriately made in a petition for habeas corpus. (Ibid.) The same approach is appropriate in this case. Claims of jury misconduct may be raised in a petition for habeas corpus. (See, e.g., In re Lessard (1965) 62 Cal.2d 497 [42 Cal.Rptr. 583, 399 P.2d 39].) And in habeas corpus proceedings the opportunity for an evidentiary hearing will allow defendant’s allegations to be more fully explored. (See §§ 1483, 1484.) If presented in a verified petition, an allegation of jury misconduct in this case would undoubtedly present a colorable claim entitling defendant to an evidentiary hearing at which defendant would be able to produce evidence of Juror M.’s condition and behavior. (See Pope, supra, 23 Cal.3d at p. 428.) For these reasons, we decline to reverse defendant’s conviction on this basis. As we shall further explain, no other basis for reversal of the guilt phase of defendant’s trial exists. III. Other Guilt Phase Issues Defendant contends that the trial court committed various other errors: in refusing to appoint cocounsel; in limiting defense cross-examination of the prosecution’s main witness; in admitting testimony of a state criminalist that defendant’s shoes screened positive for blood; in admitting evidence obtained in a parole search; and in instructing the jury on the subject of express malice. We find no reversible error in any of these contentions. A. Refusal to Appoint Cocounsel Defendant contends that the trial court’s denial of his motion to appoint cocounsel under section 1095 denied him effective assistance of counsel in violation of the Sixth Amendment. We find no merit in this argument. On November 4, 1980, the public defender having declared a conflict of interest, William Barnett was appointed counsel to represent appellant. On April 1, 1981, Mr. Barnett noticed a motion to appoint second counsel pursuant to section 1095. The motion was heard on April 17, 1981. After oral argument by both sides, the motion was submitted. On April 21, 1981, the court summarily denied the motion. The trial began on June 29, 1981, with commencement of jury selection. In his moving papers, defense counsel advanced an equal protection argument, maintaining that since two counsel were authorized under section 1095, it would be a denial of equal protection to refuse to appoint two counsel in the case of any indigent defendant. Counsel’s only argument based on the specifics of this case was that there were “a couple of writs to be taken.” This court has considered claims for cocounsel in capital cases on two prior occasions. In People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], the trial court’s summary denial of such a motion was approved. In Jackson, the plurality opinion stated: “[E]qual protection demands are satisfied by permitting the trial court, in its discretion, to appoint additional counsel at public expense if the circumstances in a particular case appear to require such an appointment.” (Id.., at p. 287.) Summary denial— i.e., without a hearing to determine whether or not the appointment of additional counsel would have been appropriate to assure defendant a fair trial—was proper since defendant’s counsel, ‘“without going into any detail,’ merely relied upon ‘the circumstances surrounding the case. ’ . . . Because defense counsel made no factual assertions which might have called for an additional hearing, the trial court was fully authorized to rule on the question based on counsel’s argument alone.” (Ibid.) In addition, counsel made no argument based upon lack of experience and “the trial court had full opportunity to observe counsel in the course of extensive argument on pretrial matters prior to its ruling upon the present motion, and accordingly was well positioned to evaluate counsel’s ability.” (Id., at pp. 287-288.) In Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108], on the other hand, this court ordered the issuance of a peremptory writ of mandate directing the respondent court to appoint a second attorney for the defendant in a capital case. The facts in Keenan showed defendant’s attorney was appointed seven weeks prior to his scheduled trial date and defendant’s motion for a continuance was denied. In the declarations accompanying his motion for additional counsel, defendant’s counsel stated that he would have to interview 120 witnesses, that he anticipated extensive scientific and psychiatric testimony, that defendant was charged in 5 other pending criminal cases and the prosecution intended to offer evidence related to these cases at his murder trial. Counsel also stated that he intended to make numerous pretrial motions as part of the defense effort and thought that review of some of these motions might be necessary. He asserted that only the assistance of another qualified attorney would be useful in this aspect of preparation. (Id., at pp. 432-433.) In Keenan, we stated that in a capital case, the appointment of an additional attorney “is not an absolute right . . . and the decision as to whether an additional attorney should be appointed remains within the sound discretion of the trial court.” (Id., at p. 430.) After noting factors to guide the trial court in exercising this discretion (the severity and finality of the death penalty, the importance and complexity of pretrial preparation in a particular case) (id., at pp. 430-431), we found an abuse of discretion in the denial of the motion to appoint cocounsel (id., at p. 434). “[A] second attorney is justified under the facts of this particular case, e.g., the complexity of the issues, the other criminal acts alleged, the large number of witnesses, the complicated scientific and psychiatric testimony, and the extensive pretrial motions, as to some of which review would be sought in the event of adverse rulings. . . . [f] If it appears that a second attorney may lend important assistance in preparing [a capital case] for trial or presenting the case, the court should rule favorably on the request. Indeed, in general, under a showing of genuine need, and certainly in circumstances as pervasive as those offered by the attorney in this case, a presumption arises that a second attorney is required.” (Ibid., fn. omitted.) Keenan did not disapprove Jackson, rather the former case cited the latter with approval. This fact, together with the fact that Keenan reiterates that the decision whether to appoint a second attorney remains within the trial court’s discretion, clearly indicates that it was not this court’s intent to mandate the appointment of a second attorney in all capital cases. Rather, some “showing of genuine need” is required. (Ibid.) Neither the “factual assertions” standard of Jackson nor the “genuine-need” test of Keenan was met here. We conclude that the trial court acted within its sound discretion in denying defendant’s motion. B. Denial of Right of Cross-examination Defendant argues that the trial court erred in refusing to allow defense cross-examination of the prosecution’s main witness on a subject which would have impeached her testimony. Nola England was called as a prosecution witness. On cross-examination, defense counsel attempted to question her on possible prior criminal activities she had engaged in with another prosecution witness, Joe DeYoung, her former boyfriend. The prosecution objected to the proposed cross-examination on grounds of relevancy and on the basis of Evidence Code section 352, which permits the court to exclude relevant evidence if its probative value is outweighed by the danger that it will necessitate undue consumption of time or create danger of prejudice, confuse the issues, or mislead the jury. Defense counsel argued that Nola England and Joe DeYoung had “a long continued activity of criminal ways, 211’s [robberies], 245’s [assaults]. Those are matters of public record.” The theory of relevance was that, as DeYoung’s confederate in crime, Nola had a hidden bias against the defendant which could not be made known to the jury unless the testimony as to prior criminal activity were admitted. The court sustained the prosecution’s objections and did not allow this line of cross-examination. Nola England’s counsel, present on both occasions when the subject was discussed, stated that he would instruct her not to answer questions relating to prior criminal activities on Fifth Amendment grounds. The issue was raised and argued on two occasions. On the first, the court appears to have sustained the People’s objection on grounds that the proffered evidence would be irrelevant. Defendant argues that evidence that two prosecution witnesses had been confederates in prior criminal activities would be relevant and admissible under Evidence Code section 780, subdivision (f), which allows evidence of any matter that has a tendency in reason to prove or disprove the truthfulness of a witness’s testimony including the existence of a bias, interest or other motive. We agree. However, the People also argued against the admission of this testimony on the basis of Evidence Code section 352, and, on the second occasion on which the issue was argued, the court sustained the objection on the basis that the proffered evidence, if admitted, would have been cumulative. Evidence Code section 352 allows the trial court to exclude even relevant evidence if its probative value is outweighed by other factors. Among them is the risk that admission will necessitate undue consumption of time. Cumulative evidence is excludable on this basis. It is within the discretion of the trial court to exclude impeachment evidence as cumulative when there is already evidence of the witness’s lack of credibility. (See People v. Barrow (1976) 60 Cal.App.3d 984, 994-995 [131 Cal.Rptr. 913], disapproved on another point in People v. Jiminez (1978) 21 Cal.3d 595, 608 [147 Cal.Rptr. 172, 580 P.2d 672]; People v. Fisk (1975) 50 Cal.App.3d 364, 370 [123 Cal.Rptr. 414].) Nola England’s testimony established that she was a heroin user, was in methadone treatment at the time of the crime, and had taken about 15 Valium (10 milligrams each) the night before and the morning of the crime. The judge observed at the time of the ruling disallowing cross-examination on the subject of prior crimes with DeYoung that Nola England had already testified that she and DeYoung had lived together as lovers for about two and a half years, that he supplied her with dope and that he sold her her gun. Thus, it was reasonable for the court to conclude that further evidence of England’s lack of credibility would have been cumulative. A trial court’s exercise of discretion under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse. (People v. Barrow, supra, 60 Cal.App.3d 984, 995.) We conclude there was no abuse here. C. Admission of the Results of the Blood Screening Test Run on Defendant’s Shoes Defendant argues that the trial court’s failure to exclude the testimony of a state criminalist that defendant’s shoes screened positive for blood was error. Because the court failed to make an explicit determination that the evidence’s probative value outweighed its potential for prejudice, as required by People v. Green (1980) 27 Cal.3d 1, 23-26 [164 Cal.Rptr. 1, 609 P.2d 468], we agree. However, we conclude this error was harmless in light of the strength of other evidence properly admitted. The prosecution called Terry Fickies, a state criminalist, who presented expert testimony that he tested the shoes defendant had been wearing at the time of his arrest and that they screened positive for the presence of blood. His testimony made clear, however, that the test could not determine whether the blood was human blood, or indeed, blood at all. Certain other enzymes could have produced positive results in such a test, including those present in cabbage and horseradish. The limitations of the test were fully explored in cross-examination. Defense counsel submitted a pretrial motion to exclude the evidence on grounds of relevance and prejudice. The court denied this motion, stating: “Prejudicial it may be if the jury believes that it is human blood. Could be prejudicial to the Defendant, but that doesn’t make it inadmissible. ... I think the evidence is relevant, and I think it’s a matter of weight. It’s a matter of argument to the jury. So, the motion to exclude is denied.” Defendant relies upon People v. Slone (1978) 76 Cal.App.3d 611 [143 Cal.Rptr. 61] for the proposition that a criminalist’s testimony that a stain contains blood is irrelevant and therefore inadmissible if the criminalist cannot testify that the blood was human blood or how old the stain is. In Slone, several witnesses saw the murder victim in defendant’s car on the night she was murdered. At trial, a criminalist testified that he tested the car for blood stains about a month after the murder. The test established that a stain found on the seat of defendant’s automobile contained blood but the criminalist was unable to determine whether or not it was human blood or how long it had been there. The Slone court held that the blood stain evidence was simply irrelevant. “In the light of logic, reason and experience, this evidence had no tendency to prove that defendant killed the victim. This evidence thus failed to meet the definition of relevant evidence set forth in Evidence Code section 210. Furthermore, if evidence is irrelevant, it must be excluded. The trial judge has no discretion to admit irrelevant evidence.” (Id., at p. 631.) The situation in this case is similar. Defendant’s shoes tested positive for blood, but human blood, animal blood, some vegetable enzymes and fecal material could have produced this result. However, we find the reasoning in Slone unpersuasive. The Evidence Code definition of relevant evidence is “. . . evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210, italics added.) It is difficult to view the presence of a substance which might be blood on the seat of a car in which a murder victim was seen shortly before her death as having no tendency in reason to prove that the car’s owner might have killed her. Similarly here, the presence of a substance which might be blood on defendant’s shoes certainly has some tendency in reason to prove that he might have been present at the scene of a bloody shooting the night before his arrest. The relevance of the evidence is not alone determinative of its admissibility, however. Defense counsel, in his motion to suppress, argued that the evidence was more prejudicial than probative. “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 . . . .’” (People v. Green, supra, 27 Cal.3d 1, 24.) “[0]n a motion invoking this ground the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .” (Id., at p. 25.) Admission of evidence “without making an explicit determination that this risk of undue prejudice did not substantially outweigh the probative value of the evidence” is error. (Id., at p. 26.) The court’s statement here does not meet the Green standard for such an explicit determination. Green relied upon our cases in People v. Ford (1964) 60 Cal.2d 772 [36 Cal.Rptr. 620, 388 P.2d 892] (in which the trial court stated that although evidence might tend to be prejudicial, “‘it is material and will go in on that basis’” (id., at p. 801, italics deleted)), and People v. Davis (1965) 62 Cal.2d 791 [44 Cal.Rptr. 454, 402 P.2d 142] (in which the trial court stated, “‘Well, I viewed [the film] and I feel that while it is not pleasant to look at it is a legal exhibit and it is material for the purposes offered’” (id., at p. 798, fn. 2)). As these illustrations indicate, the court’s statement here that the evidence “[c]ould be prejudicial to the Defendant, but that doesn’t make it inadmissible” is insufficient to meet the Green requirement. We therefore conclude that the admission of the evidence of the blood screening test was erroneous. Whether this error resulted in a miscarriage of justice, a prerequisite for reversal (Cal. Const., art. VI, § 13), however, is another question. The standard of review of error not implicating constitutional rights in criminal cases is whether it is reasonably probable that a result more favorable to defendant would have occurred in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) We assume for purposes of analysis that the admitted evidence was so prejudicial and of such low probative value (cf. People v. Slone, supra, 76 Cal.App.3d at pp. 631-632) that it could not have been properly admitted had the court performed the evaluation required by Green. Nonetheless, our cases establish that even substantial errors in a capital case will not warrant reversal if defendant’s guilt is otherwise clear. (See, e.g., People v. Cavanaugh (1955) 44 Cal.2d 252, 268-269 [282 P.2d 53].) Here, although the evidence against defendant was entirely circumstantial, taken in its entirety it was convincing, even without the erroneously admitted evidence discussed here. Particularly damaging was the evidence of the 7-Eleven sack with paper currency in it found in Nola England’s apartment, which is discussed infra. Under these circumstances, we conclude that it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of this error. D. Parole Search Prior to trial, defendant moved under section 1538.5 to suppress the 7-Eleven paper bag with two $5 bills which investigating officers found the evening after the killing in the course of a warrantless search of the apartment which defendant shared with Nola England. The trial court denied the motion, ruling that the search was valid as an incident to defendant’s status as a parolee. The trial court found, in support of its ruling, (1) that defendant was living with England at the apartment; (2) that defendant’s parole agent had authorized the search; (3) that the parole agent’s authorization was a proper exercise of his supervisory duties inasmuch as the information given to the agent by police about defendant’s involvement in a crime required investigation; and (4) that the police had reasonable grounds to believe that further evidence of that crime would be found in defendant’s residence. All of these findings are supported by substantial evidence. Nonetheless, defendant argues that the trial court erred in ruling that the evidence was admissible. The primary target of defendant’s attack is the consent rationale articulated in People v. Mason (1971) 5 Cal.3d 759, 765-766 [97 Cal.Rptr. 302, 488 P.2d 630], and People v. Icenogle (1977) 71 Cal.App.3d 576, 583-585 [139 Cal.Rptr. 637]. In Mason, we upheld a warrantless police search of a probationer on the basis of search conditions which the probationer had accepted at the time probation was granted. In Icenogle the Court of Appeal extended that rationale to uphold warrantless searches of parolees. Defendant argues that the Icenogle approach to parole searches cannot survive the determinate sentencing law, which mandates parole for all prisoners who have served a determinate term. Under that law, he maintains, there is no choice, either on the part of the prisoner or upon the part of the Board of Prison Terms, as to whether parole shall occur; and, without choice, there can be no voluntary consent to inclusion of a warrantless search condition among the terms of the parole. The People do not directly address the impact of the determinate sentencing law upon the Icenogle rationale. Rather, they invoke the doctrine of “custodia legis” (see People v. Hernandez (1964) 229 Cal.App.2d 143 [40 Cal.Rptr. 100]; People v. Howard (1978) 79 Cal.App.3d 46, 49 [143 Cal.Rptr. 342]) and argue that because a parolee is still in “custody” he has no more rights under the Fourth Amendment than a prisoner in his cell. The argument, however, is not persuasive. Custody status in the abstract is not determinative. The United States Supreme Court held in Hudson v. Palmer (1984) 468 U.S. 517, 524-529 [82 L.Ed.2d 393, 402-404, 104 S.Ct. 3194], that a prison inmate has no reasonable expectation of privacy in his cell. In reaching that conclusion, however, the court applied a balancing of interest approach: “Determining whether an expectation of privacy is ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests. The two interests here are the interests of society in the security of penal institutions and the interests of the prisoner in privacy within his cell. The latter interest, of course, is already limited by the exigencies of the circumstances: A prison ‘shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. ’ [Citation.] We strike the balance in favor of institutional security, which we have noted is ‘central to all other corrections goals’ [citation]. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security.” (Id., at pp. 527-528 [82 L.Ed.2d at pp. 403-404].) The conditions which necessitate and thereby justify this total curtailment of a prisoner’s Fourth Amendment rights are not present once he is free on parole. His expectation of privacy is not diminished by the surveillance which is a concomitant of confinement in prison. As one commentator has observed: “[I]n most cases the life of a parolee more nearly resembles that of an ordinary citizen than that of a prisoner. The parolee is not incarcerated; he is not subjected to a prison regimen, to the rigors of prison life and the unavoidable company of sociopaths. . . . The parolee lives among people who are free to come and go when and as they wish. Except for the conditions of parole, he is one of them.” (Note (1969) 22 Stan.L.Rev. 129, 133; see also White, The Fourth Amendment Rights of Parolees and Probationers (1969) 31 U. Pitt. L.Rev. 167, 177.) The United States Supreme Court has itself recognized that “the liberty of a parolee . . . includes many of the core values of unqualified liberty,” and that his “condition is very different from that of confinement in a prison. ” (Morrissey v. Brewer (1972) 408 U.S. 471, 482 [33 L.Ed.2d 484, 495, 92 S.Ct. 2593].) Use of the balancing approach by the Supreme Court in Hudson v. Palmer, supra, 486 U.S. 517 is an implicit rejection of “custody” as the sole factor to be considered and affords a more satisfactory mode of constitutional analysis than either the “consent” or “custodia legis” rationales. This court, too, used this mode of analysis in People v. Mason, supra, 5 Cal.3d 759, 764-765, in recognizing that parolees and probationers “have a reduced expectation of privacy, thereby rendering certain intrusions by governmental authorities ‘reasonable’ which otherwise would be invalid under traditional constitutional concepts, at least to the extent that such intrusions are necessitated by legitimate governmental demands.” (See also In re Martinez (1970) 1 Cal.3d 641, 647, fn. 6 [83 Cal.Rptr. 382, 463 P.2d 734]; 3 La Fave, Search and Seizure, § 10.10, pp. 431-435.) What is called for once a prisoner has been released on parole is a reweighing of the balance between individual and societal interests in light of the parolee’s current status in the community. Although a parolee is no longer confined in prison his custody status is one which requires and permits supervision and surveillance under restrictions which may not be imposed on members of the public generally. The importance of these custodial restrictions is reflected in the Legislature’s explanation of the mandatory parole requirement: “The Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. It is in the interest of public safety for the state to provide for the supervision of and surveillance of parolees and to provide educational, vocational, family and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. ...”(§ 3000.) Pursuant to this supervisory power the liberty which a felon has when paroled is conditioned on his compliance with the terms upon which he is released. The board may impose conditions it deems proper (§ 3053) and must impose statutory conditions if applicable (§ 3053.5). These conditions may govern the location in which the parolee resides, the persons with whom he associates and lives, the places to which he may travel, his use of intoxicants, and other aspects of his life. When appropriate he may be required to undergo narcotics testing, to attend outpatient mental hygiene treatment sessions, and to report periodically in person or by mail to his parole agent who may in turn visit the parolee in his home or at his place of employment. Violation of the terms of his parole may lead to revocation of parole and return to prison. (§ 3057.) Obedience to the criminal laws of the state is a condition of every parole. “The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual’s liberty. Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts. Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.” (Morrissey v. Brewer, supra, 408 U.S. at p. 483 [33 L.Ed.2d at p. 495].) That the parole may come at the end of a term of imprisonment, rather than as part of that term, does not lessen the societal interest identified by the court. The interest in parole supervision to ensure public safety, which justifies administrative parole revocation proceedings in lieu of criminal trial with the attendant protections accorded defendants by the Bill of Rights, also permits restrictions on parolees’ liberty and privacy interests. Balancing these interests of the parolee against the societal interest in public safety leads us to conclude that warrantless searches of parolees are not per se unreasonable if conducted for a purpose properly related to parole supervision. Petitioner contends, however, that a warrantless search condition of parole is reasonably related to parole supervision only if it would be a proper condition of probation. He thus argues that the Bushman-Lent criteria (People v. Lent, supra, 15 Cal.3d 481, 486; In re Bushman (1970) 1 Cal.3d 767, 777 [83 Cal.Rptr. 767, 83 Cal.Rptr. 375, 463 P.2d 727]) must be applied to assess the validity of such conditions. In Lent the court stated: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (15 Cal.3d at p. 486.) We agree that parole conditions, like conditions of probation, must be reasonable since parolees retain constitutional protection against arbitrary and oppressive official action. (People v. Thompson (1967) 252 Cal.App.2d 76, 84 [60 Cal.Rptr. 203].) The societal interests, identified above, persuade us, however, that a warrantless search condition is a reasonable term in any parole of a convicted felon from state prison. We have never equated parole with probation in this regard. (See In re Martinez, supra, 1 Cal.3d 641; People v. Gallegos (1964) 62 Cal.2d 176, 178 [41 Cal.Rptr. 590, 397 P.2d 174].) The distinction between felony parole and probation justifies the inclusion of the parole search condition in all parole agreements. A convicted defendant released on probation, as distinguished from a parolee, has satisfied the sentencing court that notwithstanding his offense imprisonment in the state prison is not necessary to protect the public. The probationer may serve a jail term as a condition of probation (§ 1203.1), but his probation is not a period of reintegration into society during which the same degree of surveillance and supervision as that deemed necessary for prison inmates is required. A parolee cannot claim an equivalent status. The imprisonment preceding his parole has come about just because he poses a significantly greater risk to society. His offense may have been such that he was ineligible for probation initially. (See §§ 1203, 1203.06-1203.09.) The sentencing judge may have determined that the defendant posed too great a risk to the public to warrant a grant of probation. (See People v. Warner (1978) 20 Cal.3d 678, 689 [143 Cal.Rptr. 885, 574 P.2d 1237].) Or, the defendant may have been sentenced to prison following a revocation of probation occasioned by his failure to comply with conditions of probation. That he has been imprisoned at all therefore justifies inclusion of a warrantless search condition among the terms on which felony parole is established. The People were not required to establish that the condition was related to defendant’s past offense. It is, per se, related to future criminality, and thus is a reasonable condition of parole. To say that a parolee is subject to warrantless search is not to say that his privacy interest is so diminished that random searches or searches unrelated to a proper parole supervision purpose are reasonable and constitutionally permissible. The justification for exempting parole searches from the warrant requirement of the Fourth Amendment is that these searches are necessary for effective parole supervision. If a search is to have a parole supervision purpose therefore it must be based on information which leads the parole agent who conducts or authorizes the search to believe that the parolee has violated the law or another condition of his parole, or is planning to do so. Were this not so, a parole search would not only invade the parolee’s reasonable expectation of privacy, but would unreasonably intrude into the privacy interests of persons with whom the parolee associates or resides. Inasmuch as authority to search the residence of a parolee extends to areas which are jointly controlled with other occupants of the residence (see, e.g., United States v. Matlock (1974) 415 U.S. 164, 170-171 [39 L.Ed.2d 242, 249, 94 S.Ct. 988]; Tompkins v. Superior Court (1963) 59 Cal.2d 65, 69 [27 Cal.Rptr. 889, 378 P.2d 113]), the authority to search these premises necessarily portends a massive intrusion on the privacy interests of third persons solely because they reside with a parolee. (See, e.g., People v. Palmquist (1981) 123 Cal.App.3d 1, 13 [176 Cal.Rptr. 173], and cases cited.) A parole search must therefore be directly and closely related to parole supervision in order to avoid unreasonable invasion of the privacy interests of the parolee and those with whom he resides. The importance of the state’s interest in public safety through parole supervision nonetheless justifies the conduct of parole searches on the basis of information which does not meet the standard of probable cause required for the issuance of a search warrant. The parole agent who authorizes the search must determine whether the information regarding a possible parole violation necessitates further investigation, and whether that investigation should include a search of the parolee and/or his residence for evidence of the suspected violation. We have long recognized that the probable cause standard need not be applied to parole searches conducted for proper parole supervision purposes. “Searches by parole officers pursuant to their duties, just as other administrative searches (see Camara v. Municipal Court (1967) 387 U.S. 523 [18 L.Ed.2d 930, 87 S.Ct. 1727]) are subject to the broad reasonableness requirement of the Fourth Amendment. [Citations.] The conditional nature of a parolee’s freedom may result in some diminution of his reasonable expectation of privacy and thus may render some intrusions by parole officers ‘reasonable’ even when the information relied on by the parole officers does not reach the traditional level of ‘probable cause.’ A diminution of Fourth Amendment protection, however, can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process.” (In re Martinez, supra, 1 Cal.3d 641, 647, fn. 6; see also People v. Mason, supra, 5 Cal.3d 759, 764-765; People v. Icenogle, supra, 71 Cal.App.3d 576, 584-585.) Recent decisions of the United States Supreme Court suggest no reason to change our view that the Fourth Amendment does not require application of the probable cause standard to parole searches, and that such searches are reasonable within the contemplation of the Fourth Amendment if based upon a reasonable suspicion standard. Both the Supreme Court in New Jersey v. T.L.O. (1985) 469 U.S. 325, 335-337 [83 L.Ed.2d 720, 730-731, 105 S.Ct. 733], and this court in In re William G. (1985) 40 Cal.3d 550, 564 [221 Cal.Rptr. 118, 709 P.2d 1287], have approved that standard in the context of school administrators’ searches of pupils. In New Jersey v. T.L.O., supra, 469 U.S. at p. 337 [83 L.Ed.2d at pp. 731-732], the court reiterated the balancing process we apply here for assessing the reasonableness of a search which is permissibly conducted without a warrant. “The determination of the standard of reasonableness governing any specific class of searches requires ‘balancing the need to search against the invasion which the search entails.’ (Camara v. Municipal Court, supra, at 536, 537.) On one side of the balance are arrayed the individual’s legitimate expectation