Full opinion text
Opinion LUCAS, C. J. Defendant Gary Lee Howard, Sr., was found guilty of murder in the first degree. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also found that defendant used a firearm during the commission of the offense (§ 12022.5), and that he intentionally committed murder for financial gain, a special circumstance as set forth in section 190.2, subdivision (a)(1). Following a penalty phase trial the jury fixed the penalty at death. Defendant’s motion for new trial was denied as was his motion for modification of the sentence. This automatic appeal followed. We will affirm. I. Facts 1. Guilt Phase On the afternoon of May 30, 1981, the body of Walter Berkey was found in a deserted dairy bam near Interstate 10 in Redlands, California. The victim was a 19-year-old junior college student who lived with his parents. Berkey had been shot seven times, once in the back of his left calf, once in the back, once in the left cheek, and four times in the back of his head. Death had occurred at least eight hours before discovery of the body. Richard “Tony” Lemock was in the sign-posting business in the Red-lands area. Lemock met Berkey in the course of doing business because the two were in competition for customers and had argued concerning territorial rights. Both performed a service for realtors, building and erecting any signs that they needed. Starting in early 1981, Lemock made comments to several people indicating his displeasure with Berkey’s competition and his desire to “deal” with Berkey because he could no longer handle the situation. At various times, in statements that will be described in greater detail when their admissibility is discussed, Lemock told friends and employees that he would like to have Berkey killed or in some manner scared away. In February or March 1981, Lemock asked a friend, Diane Jensma, to call Redlands police to report that Berkey had narcotics in his car. She made the call but was told to contact the department later when someone could handle the matter, and did not follow up. Around the same time, Lemock asked Barbara Chapman, a former girlfriend, to call police and inform them that “some guy” had offered her son narcotics on his way to school. Defendant supplied her with a description and license number for the car, and an address which Chapman knew related to the “kid in Redlands” with whom Lemock was having business difficulties. In Lemock’s presence, Chapman simulated a call to the police in order to avoid arguing with Lemock. Joy Stevens was both Lemock’s “stepdaughter” and his former daughter-in-law. (Her mother, Barbara Chapman, lived with Lemock for seven years; after their breakup Stevens married the son of Lemock’s next wife.) Stevens met defendant in February or March 1981 and became his girlfriend, although she knew he was married. In early May, she introduced defendant to Lemock and the two men went for a ride together. Thereafter, defendant told Stevens that Lemock had asked about the price for having someone roughed up. The next day, on defendant’s instruction, Stevens told Lemock that the price was $2,500 but, if necessary, $1,500 would be sufficient. About one week later, Stevens saw defendant with a revolver. Defendant explained he had purchased it in Palm Springs and told her to avoid touching it to prevent fingerprints. On May 18, Lemock wrote a $750 check to Stevens for “signposts and stuff” and asked her to cash it. The two went to the bank to do so, and Lemock gave Stevens the money in an envelope and asked her to hold on to it. When, later that day, defendant asked Stevens if Lemock had left him anything, Stevens handed him the envelope. Defendant returned the money to Stevens, also telling her to hold on to it. Later that evening, defendant and Stevens drove to the Holiday Inn together in defendant’s distinctive Ram Charger. Taking the money, defendant left the vehicle, entered the inn and returned 30 minutes later. Defendant explained that he had just hired Jeff to rough up someone for Lemock and told Stevens that Jeff had said “well now, just watch the papers.” He described Jeff as a “colored guy” who was a hired killer and identified a Black man leaving the inn as Jeff. The next day, defendant told Stevens that Lemock would pay one-half of the $1,500 before and one-half after the “roughing up” of Lemock’s competitor had occurred. About a week later, Lemock telephoned Stevens to ask her to tell defendant that if it was not done by that weekend he should forget it, Lemock would do it himself. Later that day Stevens told defendant of Lemock’s message and defendant replied “Okay.” He also informed Stevens that if Jeff did not do it, he would have to do it himself because Lemock would not know how to cover his tracks. On May 27, 1981, Walter Berkey drove to San Diego with friends for a visit. While he was away, a man, identifying himself as “Roger Meeker,” called to say he had some work for Berkey in Palm Springs. The man spoke with Berkey’s sister and also left a message on the victim’s answering machine. Stevens saw defendant use her telephone repeatedly. He told her he was attempting to find one of Lemock’s competitors to discuss his charges for services. The number used for Berkey’s sign-posting business was called from Stevens’s home over 15 times between May 27 and May 29. On May 29, Berkey returned home. “Meeker” called him again and arranged to meet at Sandy’s Restaurant in Redlands the next morning at 8 a.m. That morning, defendant, his son Gary, Jr., and Stevens had looked for Jeff at a Redlands motel. When they arrived, defendant stated room 25 was Jeff’s former room and that Jeff had gone to Las Vegas but would be in touch. Evidence at trial showed that no one named Jeff or having any connection with the case had stayed in that room at the relevant time. After leaving the motel, the three drove along the route that was ultimately taken with the victim in the car. Defendant checked the mileage as they drove. That night, Stevens, at defendant’s suggestion, asked her mother to babysit so the couple could rise early the next morning to “take care of business.” About 6:45 a.m., Stevens, Gary, Jr., and defendant drove to Sandy’s Restaurant in defendant’s Ram Charger. They looked for a small white station wagon and one appeared about a half hour later. Defendant sent his son in to find the driver. He returned, unsuccessful, and defendant sent Stevens to call Lemock and ask what Berkey looked like. Lemock asked why, and Stevens replied she did not know. Lemock gave a description and asked Stevens to come to his shop when she left the restaurant. Stevens then saw Berkey, and upon identifying him told him that she and her “husband” would wait out back in a truck. Berkey emerged a few minutes later and was met by defendant; the two then left in Berkey’s station wagon. Fifteen minutes later, Gary, Jr., and Stevens left Sandy’s and drove to California Street. They saw defendant standing on the road near a bam and picked him up and drove away. As they drove to Lemock’s shop, Stevens saw defendant remove from his person a wallet and checkbook of the kind later identified as used by Berkey. Defendant told Stevens not to touch the items to avoid getting her fingerprints on them. She also saw defendant place empty “bullet jackets” into his pocket. When the group arrived at Lemock’s shop, Gary, Jr., remained in the car as the other two entered. After defendant handed him the checkbook, wallet and empty cartridges, Lemock said “You’re for real” and told them to tell him if there was anything he could do for the pair. Defendant asked that, if anything happened to him, Lemock take care of Stevens, her daughter, and their unborn baby. While this meeting was taking place, Norm Butters, who worked in the building, entered. He asked if defendant and Stevens had just come from Redlands because he had seen the Ram Charger on the freeway. After discussing the car, defendant and Butters went to look at it. Around that period Lemock asked Stevens if she was aware of what had happened and thought it was his fault or that he was to blame. Lemock also told Stevens that he would help if ever needed and that he was sorry he had gotten defendant involved. Later that day, Lemock called to say Butters had a “push bar” for defendant to look at which he was interested in selling. The group returned to Lemock’s business and defendant expressed interest in buying the push bar or grill guard but stated he had no money until the next Monday. Lemock then wrote a check to Butters telling him defendant would pay Lemock back later. At the same time, Stevens heard Lemock say to defendant, “I will go ahead and I will write him a check for $100 now and that will make it $650.” Early in the afternoon of the same day, defendant, his son, and Stevens, with Stevens’s daughter, left for Compton in order for defendant to sell the gun he had recently acquired. When Stevens asked whether defendant had seriously hurt Berkey, he replied “Well, let’s put it like this. He won’t be stealing no more poles.” He then explained that while they were in the barn Berkey began “cussing” Lemock. Angered, defendant pulled out his gun and pointed it at Berkey. When Berkey saw the gun he began to run. Defendant shot him in the cheek and Berkey tripped and fell to the ground. Defendant then shot Berkey in the back of the head. Defendant unloaded and reloaded the gun and shot Berkey three more times. In total, defendant told Stevens, he shot Berkey approximately eight times. He had killed Berkey as a favor to Lemock, and defendant told Stevens that if anything were to happen to him she would be convicted along with him as an accessory. That night, defendant stayed at his mother’s house where his wife resided. Gary, Jr., who had run away from Riverside’s juvenile hall, stayed with Stevens. The next day the three, accompanied by Lemock and his wife and Stevens’s daughter, went on a picnic. Meanwhile, investigation had begun after the discovery of Berkey’s body. Berkey’s parents told investigators of a business competitor of their son named Wirtz. The investigators also learned that Kristen Smith had traveled with Berkey to San Diego and had recently written him a check. They eventually found that Wirtz had sold the business to Lemock. On the morning of June 1, Redlands police officers went to Lemock’s shop in San Bernardino. They spoke with Norm Butters asking for Wirtz. Butters informed them that Tony operated the business and showed them the $100 check he had received from Lemock two days before. One of the officers received permission to use the business’s restroom and while there saw a $15 check drafted by Kristen Smith payable to Berkey sitting on the counter by the washbasin. Investigation focused on the business and Lemock, who was picked up later that day. Defendant learned that Lemock was being questioned and with Stevens and his son drove to Fairmont Park in Riverside where he removed the cylinder from the gun and threw the separated pieces of the weapon into the lake. After they returned to Stevens’s residence, defendant told Stevens to provide him with an alibi if she was questioned. Thereafter, defendant and his son fled over a fence when they saw a police car approaching. Officers then contacted Stevens, searched her home, and questioned her about the murder. She provided information as directed by defendant and was released. The next day officers seized a .38-caliber bullet from defendant’s dresser drawer at his mother’s home. Very early the next day, June 3, defendant called Stevens to meet him in San Bernardino. They met and drove to a nearby motel. Later, they saw officers around defendant’s distinctive car in a nearby lot. Stevens then separated from defendant and his son. Later that day, Stevens was again questioned and repeated her story. Investigating officers also impounded defendant’s car when their stakeout of the vehicle proved fruitless. The following afternoon defendant called Lieutenant Nelson to ask why the Redlands Police Department was looking for him. Nelson told him he was wanted for questioning and offered to meet him anywhere. Defendant said he would call back. He also asked about his car and was told it would be released if no ties to the murder were found. On June 8, Stevens and her brother, Walter Wilson, met with defendant in the Fontana area. About 11 p.m., after they dropped him off, defendant again called Lieutenant Nelson. This call, unlike the first, was recorded. Defendant described when he had met Stevens and Lemock, and told Nelson that he had given Lemock the number of a Black man named Jeff after Lemock had inquired about hiring someone to rough a guy up. Defendant also told Nelson that he had spent the night before the murder with Stevens and that on the day of the murder he drove with Stevens and his son to Stevens’s mother’s home in Yucaipa, in a direction different from the site of the murder, and then to Lemock’s business. He also stated that Lemock had tried to plant narcotics in his competitor’s car. Defendant claimed he had never seen the competitor, but that he had telephoned him twice, once leaving a message on a recording machine. Defendant denied ever receiving any money from Lemock. On June 9, defendant called Nelson again and repeated the information he had provided in the June 8 call. He denied using the name “Roger Meeker” and any involvement in Berkey’s murder. A trace was placed on the call and defendant was arrested in a telephone booth in Fontana. Following his arrest, defendant was questioned by Nelson and Officer Caronna. During the first part of the interview, defendant essentially repeated the information in the telephone calls. He knew Lemock wanted a competitor “roughed up, talked to, or taken care of,” but defendant did not want to get personally involved. He gave Lemock Jeff’s number to help out. On the morning of May 30, Lemock asked for a favor and gave defendant a gun to get rid of because it was “hot.” Defendant complied by throwing the gun in the Fairmont Park Lake. Lemock had written a check for the grill guard because he owed Stevens money. Defendant suggested that Lemock had done the shooting. Nelson then told defendant his son had shown police where the trio had parked behind Sandy’s Restaurant. Defendant stated that the incident had occurred a few days after the shooting and also denied his son’s report that defendant had spoken to someone named “Walter” from Stevens’s house. When told that Stevens’s brother Walter Wilson had said defendant told him things had gone wrong and the “kid” had fought, forcing defendant to act as he did, defendant denied making the statement. The initial interview terminated. Approximately two hours later, questioning began again. Confronted with statements made by his son and Stevens in interviews with police, defendant admitted that Lemock had offered him $1,500 to kill Berkey. He then described the events on the Saturday of Berkey’s death leading up to the arrival at the barn. However, he stated that when he and Berkey entered the bam, Berkey was shot by a third person whom defendant refused to name. He admitted receiving $100 from Lemock for setting Berkey up and for providing the gun used. He asserted that he gave all the items taken from Berkey to Lemock, and Lemock had then given the gun to defendant for disposal. Thereafter, defendant was placed in county jail on the same tier as Lemock and another inmate named David Kent. As will be described more fully hereafter, defendant made certain statements and requests to Kent, describing the killing and soliciting assistance in killing Stevens and her brother, Walter Wilson. 2. Penalty Phase The prosecution presented seven witnesses in the opening phase of the penalty trial. Two were women who had been involved with defendant, two testified regarding the discovery of handcuff keys in defendant’s possession while he was in jail awaiting trial, and the last three corroborated or expanded upon the testimony of the two women. The first woman to testify was Deena Brymer Gibson, who met and began living with defendant in 1972. She described a series of violent acts occurring until Gibson left defendant in 1976. Gibson and her son lived with defendant, and at times with defendant’s wife and his mother as well. She testified that her son had bedwetting problems and as punishment defendant made the three-and-a-half-year-old child drink a cup of urine. He also burned the boy between the fingers with a cigarette and beat him on the face and buttocks, causing bleeding. As further punishment for bedwetting, defendant used aerosol hair spray and a lighter as a torch to bum the child’s genitals, causing redness and some blistering. Gibson also related various incidents in which defendant hit her and his wife Linda. She described an incident in which defendant punched his son Gary, Jr., who was then nine or ten, in the stomach and she saw defendant hit his mother, bmising her. According to Gibson, defendant usually carried a gun, and once fired at a car which he believed was trying to force defendant’s vehicle off the road. One night, angry at Gibson, defendant beat her up and then held a gun to her head all night threatening to kill her. He also played Russian roulette with her as target. When Gibson, early in the relationship, tried to leave, defendant’s mother called defendant. He came home, caught Gibson, and choked her. A few months after she left him following the birth of their son, Gibson was shopping with her mother and baby. As she left a store, two teenage boys tried to take the baby. They struggled, and defendant then drove up. Gibson ran back to the store and as she reached the doorway, defendant pushed her, causing her to hit her head on the door requiring stitches. Despite the above treatment, Gibson returned to defendant to live with her two children and his three sons by his wife Linda Rumsey. Five months later, Linda arranged defendant’s absence by a ruse, appeared, and removed her children. Gibson did not resist, but made it appear as if a struggle had occurred. When defendant returned he was enraged and beat and choked Gibson. Soon thereafter, Gibson left defendant permanently. Linda Rumsey testified she met and married defendant in 1968 in Michigan. Not long after the marriage, defendant became violent with her. At one point, he kept her awake through the night by poking her with a hunting knife because he was displeased with her. When Rumsey left their apartment after a fight, defendant followed, threatening to shoot her. At another time, during an argument, defendant told Rumsey to start running because he would shoot at the count of 10. She complied and saw and heard two or three bullets at her sides kicking up dirt. Defendant became angry when Rumsey went for a pregnancy examination. Accusing her of going for a “free feel,” defendant beat her and kicked her in the stomach. When Rumsey left to return to her family in Michigan in 1969, defendant told her he would rig a bomb to the family car ignition and blow them all up. She returned to California with defendant in 1970, and further abuse occurred. She saw defendant abuse Gary, Jr., and she confirmed that defendant slapped Gibson’s son, and testified that she saw defendant force the child to drink urine and saw a bum between the child’s fingers. The litany of abuse continued even after Rumsey left, including a 1981 incident in which defendant shot a bullet into the floor of Rumsey’s home after he had threatened her. Two officers testified regarding the discovery of handcuff keys in defendant’s possession while in jail awaiting trial in this matter. In one instance, defendant contacted a deputy sheriff to inform him about keys in the possession of another inmate. In addition, defendant also informed authorities of other inmates’ escape attempts. A Fontana officer also testified confirming the discovery of a bullet lodged in the floor of Rumsey’s residence following the incident Rumsey had described, and a ballistics expert testified that the bullet came from a gun found in a bedroom where defendant had been arrested. An expert stated the gun could not be made to discharge accidentally. Defendant testified on his own behalf, as did his sister. He explained that in September 1981 while in jail he acted as a witness for the prosecution in the case of “Red” Pensinger, and his cooperation was confirmed in other testimony. He said he was motivated to do so because he did not like people who hurt babies. He also stated he never told David Kent about the killing or asked assistance in killing Stevens. As to the various acts regarding Gibson’s son, defendant denied they had occurred. He also denied or had an alternative explanation regarding the attacks on the two women. The bullet in the floor got there after a gun he was cleaning accidentally discharged. Defendant’s sister, Judy Carter, specifically contradicted some of Linda’s testimony regarding defendant’s abusive conduct. She also stated she had never seen defendant beat a child, that he told her not to use a belt on her children, and that defendant, who is short, tries to compensate by acting “like a big shot.” Defendant and a police officer testified that during an arrest in 1975, only one gun was found with defendant, in contradiction to Rumsey’s testimony that he had a cache of weapons. Stevens testified that she never saw defendant hurt her child while they were together between May 1 and May 30. She did see him once with his hands around her daughter’s neck, but he was only showing the girl how to shake a kitten. On rebuttal, a deputy testified that defendant told Rumsey in the hallway after her testimony, “I will get you, bitch.” Dr. Robert Flanagan, who had interviewed defendant immediately after his arrest, testified regarding various violent incidents about which he had been told by defendant. Denise Ross, Rumsey’s sister, testified she had seen Howard bum the tips of Gary, Jr.’s fingers over a gas flame, and confirmed defendant’s threat to Rumsey. Diana Bracken Leach, who had also lived with defendant, testified regarding various incidents which will be described in more detail hereafter. They included various violent punishments visited upon defendant’s children. On surrebuttal, defendant again denied any violent acts or threats. He denied Dr. Flanagan’s statement that he had been thrown out of school for hitting a school principal over the head with a chair in eighth grade. Instead, he stated, he had been kicked out for using marijuana and had hit the principal in the knee with a baseball bat. Gary, Jr., testified his father had never abused him. He also stated he had had sexual intercourse with Leach in 1980 at her insistence, and denied that he had ever stated that defendant’s sister and her husband had helped him escape from juvenile authorities. As indicated, after finding defendant guilty of murder in the first degree and the special circumstance to be true, the jury set the penalty at death. We now consider defendant’s claims in this automatic appeal. II.Guilt Phase 1. Admission of Defendant’s Confession Defendant asserts that his confession was erroneously admitted because it was involuntary and the product of threats and/or promises by the police interrogators. We disagree. The burden is on the prosecution to prove the voluntariness of a confession beyond a reasonable doubt. (People v. Murtishaw (1981) 29 Cal.3d 733, 753 [175 Cal.Rptr. 738, 631 P.2d 446].) Our role as a reviewing court is “ ‘ “to examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found .... In exercising this function the court recognizes that the burden is on the prosecution to show that a confession was voluntarily given without previous inducement, intimidation or threat. . . .” [Citation.]’ ” (People v. McClary (1977) 20 Cal.3d 218, 227 [142 Cal.Rptr. 163, 571 P.2d 620].) If there is “conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ [Citation.]” (People v. Hogan (1982) 31 Cal.3d 815, 835 [183 Cal.Rptr. 817, 647 P.2d 93].) Defendant contends that the police used psychologically coercive techniques in questioning him and impliedly promised that his son, Gary, Jr., and girlfriend, Joy Stevens, would not be charged if defendant confessed freely. These “implied threats” also, according to defendant, “contain the corollary threat that if appellant did not talk, his son and Stevens would be harmed by ‘taking the fall’ for him.” Defendant further claims that he was not fed anything over the course of the evening during which he was questioned. He concedes there were no threats to withhold food or promises to provide food if he confessed, but asserts that his “gnawing hunger,” combined with his belief that his son had not been fed, improperly affected his conduct. Defendant was arrested around 1:30 p.m. on June 9. Approximately 6:10 p.m., he asked to speak with Lieutenant Nelson. Detective Caronna appeared, but defendant declined to speak with him and asked for a lawyer. A short time later, however, defendant renewed his request to speak with Nelson. An interview with defendant began about 8 p.m., and opened with Nelson confirming that defendant had not been coerced or forced into speaking with him; defendant agreed that the conversation was his “own idea.” Nelson then advised defendant of his Miranda rights and defendant acknowledged that he understood them and wished to speak with the officer. Defendant first denied any involvement other than being asked by Lemock to call Berkey with whom Lemock was having problems. Defendant stated he called Berkey twice but never directly spoke with him. He also admitted providing Lemock with the number of “Jeff,” a motorcycle gang member who might be willing to “rough up” Berkey. On the morning of the murder he drove with Stevens and his son to Yucaipa to see relatives but they were not in and he drove straight back and then to Lemock’s shop. Asked whether he had told another officer the location of the gun used, defendant admitted that he threw it in a lake at Fairmount Park in Riverside County on Saturday night at Lemock’s request. He also stated that later on the same day of the killing, Lemock paid $100 to buy an automobile accessory for defendant, although defendant claimed it was because Lemock owed money to Stevens. After going over defendant’s story again, Nelson informed defendant that Gary, Jr., had shown the police where defendant had parked at Sandy’s Restaurant. Defendant asserted that had occurred a few days after the murder and also denied his son’s statement that defendant had spoken with Berkey. Nelson thereafter told defendant that he was putting himself “on the point of calling your son a liar.” The officer observed that Gary, Jr., was a 16-year-old boy worried about his father and then stated that he, the officer, knew Lemock was involved and they believed defendant was as well. No reference to Gary, Jr.’s possible involvement was made. Nelson also reiterated that he could not make any promises to defendant, and suggested that defendant should, however, be guided by his own integrity and conscience “to square your part of this thing away.” After defendant asserted that he believed Lemock was probably the killer or responsible for the killing, but that he, defendant, was not involved, the officers again laid out the various statements of other persons implicating defendant. Included were statements by his son, Butters, Walter Wilson, and Lemock. Nelson expressed puzzlement about why Gary, Jr., would lie and observed that he believed he was telling the truth because his information “checked out.” Defendant continued his denials and the interview was terminated at 8:47 p.m. At 11:05 p.m., the interview recommenced. In the interim, police again interviewed Stevens and Gary, Jr., and others. Defendant was reminded of his rights and confirmed that he wanted to continue to talk. He started out by saying, “I don’t want to keep my son involved, because he wasn’t involved in nothing.” Sergeant Caronna responded, “Okay.” Defendant stated, “Joy wasn’t involved” and Nelson answered, “Okay. Who was?” Defendant named Lemock, but stated that he did not know who did the shooting although he had obtained the gun for Lemock. Caronna and Nelson then described to defendant the information they had obtained, essentially outlining the story described in the “Facts” portion of this opinion with respect to the events of May 30. Caronna then said, “Give it up Gary” and Nelson added, “Joy gave it up. Gary Junior gave it up. Everybody is giving it up except Gary Senior.” Defendant expressed disbelief and the officers first played part of a tape of Gary, Jr.’s interview followed by a tape of Stevens’s statement. Nelson reminded defendant, “there’s a woman involved that you say you love. There’s a kid you—you said before you loved,” before starting the second tape from Stevens. While recounting her story and answering questions, Stevens was heard crying. After playing parts of the tape, Officer Nelson offered to play other portions and observed, “What do I tell you, Gary, when I have been dealing with you for a week and I think you’re, I am dealing with a guy who’s a man, he letting [szc] this chick and son take a fall.” He added soon after “I know you wouldn’t want somebody else, especially someone you loved—ride [szc] a beef for you.” He again asked for Gary to “straighten the things out.” Both officers emphasized that Gary, Jr., loved his father, as did Stevens, and it had been hard for him to tell the truth. After a pause, defendant began talking. He stated Lemock offered him $1,500 to kill the victim, and claimed that Lemock made all the arrangements for Berkey to meet at Sandy’s. In the course of going through the day’s events, defendant described the activity once he, his son, and Stevens, arrived at the restaurant. After he stated he sent his son in first, and Nelson asked what the boy then told him, defendant asked, “This isn’t gonna involve him?” Both officers confirmed it would not, to which defendant responded, “I mean, I don’t, I will take the fall, okay.” Nelson told him, “We don’t want your son, Gary, I mean that, we got kids, Gary. Okay? Gary, it’s not gonna involve your boy.” He added that the boy had already told them he entered the restaurant, and that “We don’t want your boy, Gary. We want the, the main parties in this, that’s Tony and you, isn’t it?” Nelson added they did not want Stevens either. Defendant then admitted going to the bam with Berkey, but claimed that Berkey was shot by a third person whom he refused to name. The balance of the interview was largely concerned with the officers’ attempts to get defendant to admit he himself did the shooting or to name the person he claimed was the shooter. Defendant refused, asserting at one point that if he told, his family would be in danger. The primary references to defendant’s family and to Stevens thereafter were mainly directed at convincing defendant that they would be safer if defendant named the person who had done the shooting. At one point, defendant asked if Stevens would be put in jail. Nelson explained that she had already gone home that evening and told defendant “Hey I—I can’t promise she never will [be wanted] .... But the other side of things, we let her go; but if we wanted her, Gary, we’d kept [szc] her. We kept you and Tony, didn’t we?” Several minutes later, Nelson again reminded defendant that it was dangerous for Stevens and his son if the killer remained at large. The interview continued as the officers pointed out discrepancies between Gary, Jr., and Stevens’s versions of the day of the murder and defendant’s version, but defendant refused to budge from his claim that an unnamed third party was the actual killer. A hearing to suppress defendant’s confession was heard before trial. Nelson testified that all conversations he had had with defendant on that day were recorded on the tapes presented to the court. He denied making any promises or threats to defendant relating either to defendant personally or his family. Sergeant Caronna similarly denied making any threats or promises. Defendant also testified regarding the interviews. He stated that at one point before the taped interview Caronna pulled a gun on him and stated, “he was tired of fucking around,” and that he could save the country a lot of money right there. Defendant was unsure of the timing of this event. Later during the interview, defendant stated, Caronna and Nelson threatened that they would put Gary, Jr., in jail if he did not tell them what they wanted to know. At another unspecified point Nelson told him that if he told all, the police would not bother Stevens and defendant’s family. Defendant stated his motivation for talking with the police was to avoid trouble for his son and Stevens. In addition, defendant stated he had not eaten before his interview and it was his understanding that his son had not had food. He asked for food for himself and his son, but nothing was given to him for a long time afterward. He asserted that he had complained about the lack of food from the time he was first brought to the jail. He also claimed specifically that he complained about the treatment given him when he first met Nelson. After hearing, the court stated it had carefully reviewed the taped statements and that its major concern was to assure that defendant’s statements were voluntary. The court found credible evidence by Nelson that defendant had been fed along with the officers after the interviews and that food had not been denied in order to pressure defendant. Further, the judge found that the length of questioning was not excessive. Finally, the court noted, it did not find any implied threats; the officers were careful to explain that they were not trying to get at defendant’s son and that Stevens had been released. The motion to suppress was denied. We conclude that the trial court was correct. Defendant volunteered to speak with Officer Nelson without coercion. The interrogating officers did not imply that the fate of defendant’s son and of Stevens depended upon defendant stating what they wanted to hear. They repeated that they did not want to involve Gary, Jr., and that their primary focus was on defendant and Lemock. Nor were any promises made that Gary, Jr., and Stevens would be left alone if defendant confessed. The officers informed defendant they had released Stevens but indicated expressly that there was no guarantee that they might not want her at some later point. Similarly, there is no showing that any request for food was denied or that food was withheld to coerce defendant. As previously noted, when a reviewing court considers a claim that a confession has been improperly coerced, if the evidence conflicts, the version most favorable to the People must be relied upon if supported by the record. (People v. Hogan, supra, 31 Cal.3d at p. 835; People v. Jimenez (1978) 21 Cal.3d 595, 609 [147 Cal.Rptr. 172, 580 P.2d 672].) Application of that standard here means that our independent consideration is limited to the evidence contained on the tapes themselves. As has been reiterated, “mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.” (People v. Jimenez, supra, 21 Cal.3d at p. 611.) In terms of assessing inducements assertedly offered to a suspect, “ ‘[w]hen the benefit pointed out by the police ... is merely that which flows naturally from a truthful and honest course of conduct,’ the subsequent statement will not be considered involuntarily made. [Citation.]” (Id. at pp. 611-612.) The police statements here constituted such permissible inducements. Our independent review convinces us that no improper threats or promises were made to defendant personally or to his family or Stevens. In contrast to cases cited by defendant, such as People v. Trout (1960) 54 Cal.2d 576 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418], the police conduct in interviewing Gary, Jr., and Stevens was not an exercise designed to threaten defendant either expressly or impliedly that his loved ones’ release was totally dependent upon his conduct and his confession. The two were important witnesses and the police were fully justified in exploring the facts with them. Furthermore, as noted, the police disclaimed an interest in involving the two throughout the interviews with defendant. Applying the applicable standards to the facts, we conclude that the court properly denied the motion to suppress and permitted introduction of the confession. 2. Admission of David Kent’s Testimony Defendant contends that the court improperly admitted testimony by David Kent regarding defendant’s statements during the time the two men were housed in county jail. He relies on United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183], in support of his claim that Kent was acting as a government agent and admission of his statements therefore constituted an impermissible violation of his Sixth Amendment right to counsel. Recently, in Maine v. Moulton (1985) 474 U.S. 159 [88 L.Ed.2d 481, 106 S.Ct. 477], and Kuhlmann v. Wilson (1986) 477 U.S. 436 [91 L.Ed.2d 364, 106 S.Ct. 2616], the United States Supreme Court reaffirmed Henry but stressed that mere reporting by an informant was not enough: “[S]ome action, beyond merely listening, that was designed deliberately to elicit incriminating remarks” must be demonstrated. (Kuhlmann, supra, 477 U.S. at p. 459 [91 L.Ed.2d at p. 385, 106 S.Ct. at p.2630].) Starting in late June 1981, Kent was housed on the same tier of the jail as defendant, and shared his cell with Lemock. Kent met and conversed with defendant during their time at the jail. In the course of those conversations, defendant first told Kent that the victim had been shot by another person after he, defendant, had brought him to the bam. Eventually, defendant told Kent that he himself had done the shooting. At various times, defendant also told Kent he wanted Joy Stevens and her brother Walter, among others, killed. Defendant indicated he wanted Kent’s help with this project and at one point showed photographs of Stevens and her baby to Kent to assist in identifying the proposed victims. When Kent asked about the baby, defendant responded, “Fuck the baby . . . .” Kent returned the pictures to defendant, stating that he did not want Lemock to see them in his possession. and they might turn up during a cell search. After returning the photographs, Kent asked his sister to contact Sergeant Caronna, who he knew from conversations with defendant had been involved in defendant’s case. The next day, July 14, 1981, Detective Caronna met with Kent. It was their first meeting and neither Caronna nor anyone else from the Redlands Police Department had prior knowledge of Kent or his information. At the meeting, Kent told Caronna about defendant’s admissions regarding the shooting as well as his intentions as to Stevens and the others. Caronna told Kent not to ask any questions or request the pictures, but simply to listen and accept any material offered him. When asked at trial if he at that point was working for the police, Kent responded that he was not. He explained that his main purpose was to prevent harm to those threatened. He “didn’t want these people killed.” "Kent emphasized that defendant’s inclusion of the baby as a victim formed part of his motivation for going to the police. On July 17, Kent again initiated a meeting with Caronna. Defendant had given Kent photographs of proposed victims and a map indicating how to reach them and Kent turned these items over to the police. Three days later, the police arranged a meeting at which they informed Kent that he might be called to testify. None of the meetings was tape recorded because Kent originally planned not to testify. He had testified for the prosecution in a previous murder trial and he was concerned about putting his life in jeopardy. A deputy district attorney attended the final meeting to discuss possible testimony and Kent’s requests for placement. Kent asked to serve his time in Southern California in a facility where he would not encounter persons against whom he had testified. He indicated that he feared for his life in the mainstream jail population if he testified. The district attorney made no promises regarding placement but stated he would try to accommodate Kent although he could not assure him officials could or would do so. Kent had no other conversations with police or attorneys regarding defendant’s statements. Kent was sentenced and left county jail on July 24. His only relevant additional contacts with law enforcement personnel before testifying involved settling the question of whether he would in fact appear. As noted, Kent was reluctant to do so, and although he finally agreed to appear voluntarily, he refused to discuss his testimony with the district attorney before taking the stand. In United States v. Henry, supra, 447 U.S. 264, the United States Supreme Court held that testimony of an informant who shared the defendant’s cell violated the Sixth Amendment. The court found that the informant was a government agent who had “deliberately elicited” incriminating statements from the defendant. (See Massiah v. United States (1964) 377 U.S. 201, 206 [12 L.Ed.2d 246, 250, 84 S.Ct. 1199].) This conclusion was based on three key factors; (1) the paid informant acted under instructions from a police officer; (2) he appeared to the defendant to be no more than another inmate; and (3) defendant was in custody. The informant had acted as a paid informant for over a year when he was asked by an agent of the Federal Bureau of Investigation to watch the defendant and to listen to and report any relevant conversations. Under the fee arrangement made, the informant was to be paid “only if he produced useful information.” (United States v. Henry, supra, 447 U.S. at p. 270, fn. omitted [65 L.Ed.2d at p. 122].) In concluding that the informant’s conduct was attributable to the government, the high court rejected as insufficient the claim that the informant had been instructed not to question the defendant. It found that by his own statements, the informant had shown that he was not merely a “passive listener” but rather had actively engaged the defendant in conversations. (Id. at p. 271 [65 L.Ed.2d at pp. 122-123].) In Maine v. Moulton, supra, 474 U.S. at page 176 [88 L.Ed.2d at p. 496], the court stressed that it does not matter who initiates the conversations during which incriminating statements are made to a government informant. The court reiterated that “knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.” Nothing in this pronouncement alters our conclusion in this case. Defendant argues that the court’s conclusion in Henry, supra, 447 U.S. 264, is equally applicable here. He asserts that Kent, who had previously informed for the government, was paid not in money but in a preferred prison placement. Once he had met with the officers, defendant argues, Kent became a government agent acting on the state’s behalf despite instruction not to solicit any information from defendant. We disagree. The circumstances bear marked similarity to those in People v. Whitt (1984) 36 Cal.3d 724 [205 Cal.Rptr. 810, 685 P.2d 1161]. Here, as there, the actions of the informant in an earlier case were unknown to the police. The informant’s information was voluntarily proffered and after an initial contact with police he was warned not to seek further information. The informant in Whitt received no lenient treatment for his testimony. In the present case, while Kent may have been placed in Southern California, his term was not affected. Moreover, although he may have gotten the placement he desired, he had not been promised any quid pro quo in return for evidence before he testified. In Whitt we construed Henry as “indicat[ing] that in deciding whether information has been ‘deliberately elicited,’ the courts must focus on the state’s conduct as a whole, rather than on the informant’s .... [W]here the state has directed an informant to obtain incriminating information, or where it has created powerful inducements for him to do so—particularly in a custodial setting—it is not significant whether the informant or the accused initiated the conversation.” (36 Cal.3d at p. 741.) Although recognizing that the informant’s contacts with the police may have arisen from his expectation that he would receive a return for his information, we concluded in Whitt that where there was no prior arrangement with the informant, “the mere acceptance of his information, even with the promise to talk to the prosecutor, is not sufficient encouragement to hold the police accountable for [the informant’s] subsequent actions. Furthermore, the promise to speak to the prosecutor was in no way conditioned on [the informant] providing any further information.” (Id. at p. 744.) Finally, it was also significant that no leniency was ever obtained. In this case, it is arguably even clearer that no improper conduct occurred. Kent initiated contact with the police. No discussions regarding any possible benefit to Kent because of his information were had until the third and final meeting. The first two conferences, set up at Kent’s request, were the ones at which the bulk of his relevant knowledge was communicated. Kent stated his motivation was protection of those threatened, particularly Stevens’s baby. He did not seek compensation in return. Once the police knew of his position, Kent was told not to solicit information from defendant, and there is no claim that he breached that directive. Throughout the pretrial period, Kent displayed reluctance about testifying, as evidenced by his refusal to have his conversations taped or to discuss his testimony with the district attorney. There is no evidence of any improper “exploitation” by the police of Kent’s position. In summary, under the circumstances here, we find no violation of defendant’s Sixth Amendment right to counsel. Even if Kent became a government agent after contacting the officers, the major portion of his testimony related to events learned before his first meeting on July 14. Any additional evidence gained was primarily cumulative and any arguable error in admitting it was harmless. 3. Out-of-court Statements by Lemock Several witnesses testified over defense objection to statements made by Lemock, who did not testify and was declared unavailable as a witness. Defendant contends that the statements were inadmissible hearsay and their introduction denied him his constitutional right to confrontation. James Cuellar, a former employee of Lemock, testified that in approximately March 1981 he saw Lemock and the victim engaged in a discussion. After the victim departed, Lemock told Cuellar that he, the victim, was “screwing up” his business in Redlands. Cuellar described Lemock as in a “distressed state of mind” and stated Lemock told him that he would like to “snuff the son-of-a-bitch.” Stan Wilson testified that in early 1981 he saw Lemock at his office. Lemock, whom Wilson described as being in “an extremely upset” condition, and in “a rage of sorts,” told Wilson that he had just exchanged heated words with the victim. Wilson saw Lemock knock over some signs and heard him say he would “like to get his hands on that son-of-a-bitch’s neck.” At that point, Lemock made a choking gesture with his hands. A few days later, Lemock informed Wilson that he expected that the “Red-lands problem” would soon be resolved. In April 1981, Lemock informed Diane Jensma that he wanted to find someone to help scare the victim. In early May, two or three weeks before the victim was killed, Lemock again met with Jensma. She described him as uptight and upset. Lemock told her that he no longer could handle the situation and that he wished to kill the victim. Defendant objected to each of these statements on the grounds of hearsay and irrelevancy. The trial court overruled the objections and permitted the testimony to be heard. The court also, however, admonished the jury that the evidence of Lemock’s statements was being admitted only for the limited purpose of explaining Lemock’s later actions. Defendant now claims error, arguing that the statements should have been excluded on the basis that they were made under circumstances which indicated lack of trustworthiness. He also contends that the jury would have been required to undertake an “exceedingly subtle and tenuous reasoning process” in order to consider the evidence correctly and that on that basis the evidence also should have been barred. Evidence Code section 1250, subdivision (a), states in pertinent part that “evidence of a statement of the declarant’s then existing state of mind [or] emotion ... is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarant’s state of mind [or] emotion . . . at that time or at any other time when it is itself an issue in the action; or (2) the evidence is offered to prove or explain acts or conduct of the declarant.” Section 1252 provides that such evidence will not be admitted “if the statement was made under circumstances such as to indicate its lack of trustworthiness.” Defendant concedes that the challenged statements “might qualify for admission under Section 1250(a)(2) as statements of his then existing state of mind,... to prove conduct in conformity with that state of mind, to wit, that Lemock would attempt to hire someone to kill or ‘rough up’ Berkey.” Nonetheless, he focuses on Evidence Code section 1252, arguing that because the statements were made when Lemock was upset and angry, they were less than trustworthy because they were merely expressions of his rage at the particular time. Under this analysis, unless a declarant presents a calm and collected demeanor to his listener, his statements must always be rejected as untrustworthy. This conclusion is not consistent with Evidence Code section 1252’s terms. Defendant relies primarily upon United States v. Layton (N.D.Cal. 1982) 549 F.Supp. 903, but in fact that case is of little assistance. In Layton, the United States Attorney sought to introduce evidence of statements made by Jim Jones to Peoples Temple members threatening harm to members of a soon-to-arrive investigating party led by Congressman Ryan. (549 F.Supp. at p. 908.) The Layton trial court found three prerequisites must be met before a hearsay statement may be admitted: (1) the statements were contemporaneous with the later event for which they are offered in proof or “not too far distant in time” from the significant event; (2) the declarant had no opportunity to reflect or fabricate or misrepresent his thoughts; and (3) the statements must be relevant to an issue raised in the case. (549 F.Supp. at p. 909.) In California, there has been no such neat breakdown of the requirements for finding a statement trustworthy. For example, in People v. Hamilton (1961) 55 Cal.2d 881, 893 [13 Cal.Rptr. 649, 362 P.2d 473], the court reiterated that such statements should be admitted only where they “are shown to have been made under circumstances indicating that they are reasonably trustworthy, and when they show primarily the then state of mind of the declarant and not the state of mind of the accused.” One relevant general principle is that admissible declarations should be “ ‘those of a present existing state of mind, made in a natural manner and not under circumstances of suspicion [so that they] carry the probability of trustworthiness. (VI Wigmore, § 1725, p. 80.)’ .... Wigmore also has stated that such declarations are admissible only when they are ‘made at a time when there was no motive to deceive.’ (6 Wigmore, Evidence (3d ed. 1940), § 1730, p. 94.)” (Id. at p. 895.) No specific time frame is required. The statements here, made in the months before the killing, are timely in that they show Lemock’s state of mind leading up to his arrangement with defendant. Thus, defendant is off the mark in arguing that “The chance of Lemock’s statements being trustworthy as they relate to any conspiracy between him [Lemock] and Gary Howard [defendant] is thus nil.” The statements were not offered to show a conspiracy between Lemock and defendant. Instead, as the court instructed the jury, they were introduced to show Lemock’s state of mind in order to explain why he then conducted himself as he did with regard to seeking Berkey’s death. Next, as to misrepresentation, defendant argues that because Lemock was upset each time he made the remarks, “they did not actually represent his true state of mind.” However, as indicated above, this argument is unavailing. Defendant makes no contention that the statements were made at a time after Lemock had an opportunity to reflect. The fact that they were made at a point when Lemock was “in a rage” and upset and had just spoken with the victim indicate that they were spontaneous utterances revealing his actual state of mind. Nothing in the circumstances made them inherently untrustworthy. Finally, defendant argues that, as was the case in Layton, the statements should have been barred because they may well have been misapplied by the jury. The court outlined what it perceived as a long and somewhat convoluted path of reasoning which would have to be followed in order to properly consider the evidence. Because the required chain of logic was so subtle, the court concluded that it was more likely that the jury would simply assume that in making the statements involved, Jones acted as spokesman for all followers, which would include Layton. Thus if Jones said he wanted Ryan shot, then Layton wanted him shot as well. Defendant tries to fit the evidence at issue here into the Layton mold. The evidence, however, is much more direct. It was offered to show what Lemock intended. The relationship between Lemock and defendant bore no similarity to that between Jones and Layton. The jury was unlikely to jump to the conclusion that simply because Lemock had expressed a desire to have the victim killed, defendant would have had a similar wish. This last analysis also applies to defendant’s claim that the evidence should not have been admitted because the statements were so potentially prejudicial that their probative value was outweighed. The statements regarding Lemock’s wishes were used not only to show his state of mind but also to explain his conduct in paying defendant money. They were clearly relevant and not in and of themselves highly prejudicial regarding the reasons for defendant's conduct. Defendant’s final challenge is based on an asserted denial of his Sixth Amendment right to confrontation. Defendant argues that only one indicium of reliability applies here of those set forth in Dutton v. Evans (1970) 400 U.S. 74 [27 L.Ed.2d 213, 91 S.Ct. 210], where the Supreme Court set the requirements for analyzing when the confrontation clause might bar introduction of hearsay evidence otherwise admissible under an exception. This factor is the “misrepresentation issue,” and defendant merely cites his previous argument which has already been addressed. Finally, defendant relies upon the transcript of Lemock’s trial, which occurred after his, to argue that Lemock’s later testimony should be used to evaluate the propriety of the trial court’s determination in defendant’s case to permit the evidence to be heard. We have judicially noticed the information and the jury verdicts in Lemock’s trial. Defendant relies on a federal appellate court case which focuses on whether the circumstances demonstrate that unavailability of the declarant will deprive the jury of a sufficient basis to evaluate the extrajudicial statements being offered. (United States v. Weiner (9th Cir. 1978) 578 F.2d 757.) Defendant argues that the jury here could not properly evaluate the statements because it did not have the benefit of later testimony by Lemock that his remarks were made when he was under the influence of alcohol and drugs and was overreacting. Unavailability is often based on the fact that the witness is yet to be tried for his acts. Evaluation of whether the statements should be admitted must be based on the information then available to the court. It would turn the concept topsy-turvy to say, as defendant urges, that once a witness, unavailable because of his exercise of the right against self-incrimination, has finally testified, a reviewing court may look to the substance of that later testimony to assess whether the jury at the initial proceeding had been denied an opportunity to evaluate the hearsay statements. Defendant next challenges the admission of statements by Walter Wilson, Diane Jensma and Barbara Wilson Chapman regarding Lemock’s efforts to have drugs planted in Berkey’s car. He similarly objects to the introduction of evidence concerning Lemock’s proposal to Norm Butters to establish a phony business to undercut Berkey. He asserts that these statements should have been excluded under section 352 of the Evidence Code because they were only minimally probative and were substantially prejudicial. As indicated, the trial court admonished the jury that this evidence was relevant to show Lemock’s state of mind and intent and to explain to some extent his actions thereafter. The evidence was highly relevant to help the jury understand the circumstances leading up to Lemock’s dealings with Howard and to explain why Lemock acted as he did. The jury was properly instructed as to the limited use of the evidence and the trial court did not abuse its discretion in permitting the evidence to be heard. In any event, as the People observe, the plot to place narcotics in Berkey’s car had been related by defendant to Officer Nelson and evidence as to defendant’s own statements on this issue was offered without objection. In conclusion, the trial court did not err in admitting the various statements challenged by defendant. The jury was instructed on the permissible use of the evidence and no basis for reversal on these grounds is presented. III.Special Circumstances Issues 1. Instructions Defining Financial Gain Defendant requested that the trial court give one of three instructions to clarify the meaning of the special circumstance charged, namely, that “the murder was intentional and carried out for financial gain.” (§ 190.2, subd. (a)(1).) The prosecutor took the position that there was no need to clarify the term “for financial gain” because it was a matter of common understanding and the Legislature did not intend that its meaning be restricted, certainly not in the manner sought by defendant. The trial court denied the requests and instructed the jury that if it found defendant guilty of murder in the first degree, “you must then determine if the murder was committed under the following special circumstance: (1) that the murder was intentional, and (2) that it was carried out for financial gain.” Defendant first argues that the court had a sua sponte duty to define financial gain. Such a duty arises where the terms have a technical meaning that is peculiar to the law. As Justice Mosk observed in People v. Failla (1966) 64 Cal.2d 560