Full opinion text
Opinion KAUFMAN, J. Defendant Harvey Lee Heishman III was convicted, after jury trial, of the first degree murder of Nancy Lugassy, with the special circumstance that she was a witness to a crime who was intentionally killed to prevent her testimony. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(10).) He was also found to have personally used a firearm in committing the crime. (§ 12022.5.) The jury subsequently returned a verdict for imposition of the death penalty; defendant’s motion for new trial and automatic application for modification of the verdict were denied, and he was sentenced to death. (§§ 190.3, 190.4.) This appeal is automatic. (§ 1239, subd. (b).) We conclude that the judgment of guilt and the special circumstance finding should be affirmed. Moreover, we find no error in the penalty trial requiring reversal of the verdict imposing the death penalty. It is clear that on defendant’s automatic application for modification of the penalty verdict, the trial judge failed to comply with the requirement of section 190.4, subdivision (e), that the judge “state on the record the reasons for his findings” and “set forth the reasons for his ruling on the application and direct that they be entered on the clerk’s minutes.” However, we conclude that the omission does not require remand in the circumstances of this case. Accordingly, we shall affirm the judgment in its entirety. Guilt Phase Evidence The trial to determine guilt took place in November 1980. Defendant was charged with murdering Lugassy to prevent her testifying in a criminal proceeding that had been brought against him for raping her. She lived in a cottage at the rear of a lot on Portland Avenue in Oakland, near Lake Merritt. On July 22, 1979, about 11 p.m., she ran screaming to her neighbor’s and said she had just been raped. On August 9, she unhesitatingly selected defendant’s picture from a photo lineup. She continually expressed fear of him. On August 10, a complaint was filed against him on the rape charge. He was arrested, and on October 24 he pled not guilty. Preliminary hearing was set for November 20, and he remained at large on bail. On November 1, 1979, between 8 and 8:30 p.m., Lugassy’s neighbors heard shots. Some also heard screams. One placed the shots at 8:20 p.m. Police were called at 8:25 p.m. Two neighbors saw a Ford LTD speeding away with its lights off. Police, arriving at 8:35 p.m., found Lugassy’s body in front of her home, with the door ajar. She was dead of three bullet wounds. In her purse was a subpoena for the preliminary hearing, and in her home was a residential security check form, used by Livermore (but not Oakland) police. Because of Lugassy’s death and thus, her unavailability as a witness, the rape charge against defendant was dismissed at the preliminary hearing on November 20. A woman who was with defendant and whose description matched Cheryl Miller, whose involvement in the crime is discussed later, expressed pleasure at the dismissal and made an affectionate gesture toward defendant. On December 12, police interviewed defendant. He said he had met Lugassy in July 1979 in the Lake Merritt area and visited her home alone, but no sex occurred. He also said that he never owned a gun and that on November 1 he was at his apartment with Cheryl Miller, who arrived between 8 and 8:30 p.m. On December 16, Miller told police that on November 1 she was with defendant from 8 p.m. on. On February 8, 1980, Nancy Gentry approached the police and gave information about the crime. As a result defendant was arrested, Gentry’s Ford LTD was impounded, and Cheryl Miller, once told of police knowledge of a relationship between defendant and Gentry, recanted her support of defendant’s alibi and gave information incriminating him. Gentry and Miller provided the eyewitness testimony regarding the plot to kill and the actual killing of Lugassy by the defendant. Their extensive testimony is summarized. Gentry testified that she met defendant on a beach in Alameda in August 1979. They had a sexual relationship and soon discussed marriage. In August, September, and October, she made loans to him of $1,200, $3,000, and $2,500, to be used in his business. In mid-October he said he had been arrested. At first he said the arrest resulted from a bad check that Gentry had given him. Then he said he was being framed on a rape charge. Several conversations later, he asked her if she knew a “hit man.” Later he asked her to find him a gun. She borrowed a .38 caliber pistol from Don Ewing, purchased ammunition, and gave it to defendant about October 21. He referred to Nancy Lugassy by name and said that he had a court date in November and feared going back to prison if she testified against him. He asked Gentry to call the Peralta College District to get Lugassy’s class schedule; she did so without success. Gentry further testified: On October 25, defendant introduced Cheryl Miller to her as his sister, Nancy. Using a Ford LTD that Lawrence Meehan had rented for Gentry, the three (defendant, Gentry, and Miller) drove around Laney College in Oakland and another Peralta campus in Berkeley, and past Lugassy’s home, looking for Lugassy. On October 30, at defendant’s request, Gentry again met him and Miller at his apartment in San Leandro. They drove past Lugassy’s home; the lights were out. They went for coffee, then returned and parked on Van Dyke Street, where defendant walked up a driveway toward a fence that bordered on Lugassy’s yard. Gentry and Miller remained in the car. Defendant was gone for an hour and returned at 10:30 p.m., indicating no one was at home. They all left. Next evening, October 31 (Halloween), the three again drove by Lugassy’s home and saw the lights on. They parked at the same place on Van Dyke. Defendant disappeared down the driveway and was gone two or three hours. Thereafter they returned to defendant’s apartment. At some point the three discussed planting drugs on Lugassy or in her home to set her up for arrest. Gentry saw a baggie of drugs in that connection. Gentry’s testimony continued. She, herself, proposed using the ruse of a police security check as a means of access to Lugassy. On November 1, about 6:30 p.m., Gentry picked up defendant at his apartment in her Ford LTD, and the two proceeded to Portland Avenue. Gentry was dressed in a blazer and skirt, so as to look professional, and she had a police security check form she had obtained from a Livermore Neighborhood Alert Program and a lock for use on a sliding glass door. Defendant and Gentry arrived at Lugassy’s home about 7:30 and, seeing that the lights were on, parked on Portland, two houses down. As Gentry got out of the car, defendant handed her a small gun and told her to use it if she got the chance. She put it in her purse. She then went to Lugassy’s door, identified herself as Sue Hill from the Oakland Police Neighborhood Alert Program, and was admitted. Lugassy filled out the form, and stated that she had been raped and a hearing was pending. After 15 minutes, Gentry departed, intentionally leaving the security form and the lock in Lugassy’s apartment. As they drove off, defendant told Gentry to lure Lugassy outside by pretending she needed help with her car. She left defendant at the driveway on Van Dyke Street and again parked on Portland. She walked back to Lugassy’s cottage, picked up the lock, and asked Lugassy to help with her car. As they went through the yard, Gentry saw defendant standing against a utility shed, but Lugassy did not give any indication she saw defendant. Gentry and Lugassy got the car started; then Gentry dropped Lugassy oif in front of her home, and proceeded on slowly with lights oif. Almost immediately she heard a scream and three shots. She turned the car around, drove back to Van Dyke Street, and picked up defendant. He entered the car, removed his watch cap and false beard, and said, “Let’s get out of here.” They returned to his apartment, where he telephoned his father and said, “It’s done.” Gentry departed. Finally, Gentry testified as follows: She saw defendant twice in the two months following the shooting: just before Thanksgiving and just before Christmas. Defendant was upset at her driving her Ford LTD to his apartment. When she phoned him on November 20 to ask how the preliminary hearing on the Lugassy rape charge had gone, he said not to call him because his phone might be tapped. He gave her his “sister’s” (Miller’s) number, which Gentry called and as a result learned that the rape charge against defendant had been dismissed. Cheryl Miller also testified. She related she lived in Hayward with her mother and two children and met defendant in the summer of 1979. They dated and by September were engaging in occasional sexual activities. In early October she loaned him $500 he said he needed for his father’s meat business. Shortly thereafter, defendant said he had been arrested on a rape charge. On October 25, at his apartment, he said he had been “set up” on the charge, and that the woman charging him would have to be killed because he would never go back to jail. He at first said the prior imprisonment had been for assault but later stated it had been for a rape charge on which he also had been “set up.” Posing as his sister at defendant’s request, Miller answered a phone call to him from Gentry. On October 26, at his apartment, defendant told Miller he and Gentry had once been lovers, and that the sister pose was to prevent Gentry from harming Miller. “Alan” (Saccheri) was present on this occasion but then left. (The testimony of Alan Saccheri is summarized hereinafter.) Gentry arrived, and Miller, Gentry and defendant then left defendant’s apartment in Gentry’s Ford LTD. Defendant said they were going by the home of his accuser to “check things out.” They drove to Lugassy’s home, then to Laney and Vista Colleges, then back to Lugassy’s home, which was dark. Gentry left the car to walk past Lugassy’s home. She had also gotten out at the colleges after defendant said he wanted to find out if Lugassy was enrolled there. In the car there was discussion about killing Lugassy. Also, defendant suggested planting drugs in Lugassy’s living quarters. Miller had with her, and handed to defendant, a baggie that belonged to Miller’s mother containing prescription drugs and two marijuana cigarettes. The baggie was thrown away later in the evening. Next morning, October 27, Miller told defendant she wanted no further involvement, but he said she was already implicated. Miller added to the chronology of events. On the morning of October 30, at defendant’s request, she phoned Laney College or Vista College to ask if they had a nursing or sign-language program, in which defendant thought Lugassy might be enrolled. After making the calls and receiving no information, she told him there was no such program. That evening at his request she went to defendant’s apartment. She saw him with his father; a large handgun passed between them. Gentry arrived and drove Miller and defendant to the Portland Avenue area. They parked on Van Dyke, and defendant went up a driveway. He returned 30 to 45 minutes later, stating he had climbed a fence and stood by a bush in Lugassy’s yard. They went for coffee, returned to Portland Avenue, then returned to defendant’s apartment a little after midnight. By now Miller really believed he intended to kill Lugassy. On October 31, the three again spent the evening in the Portland Avenue area, leaving after midnight. Defendant made two or three trips to Lugassy’s cottage. He wore a fake beard, and a gun was stuck in his pants, with the handle visible. Miller spent the nights of October 30 and 31 at defendant’s apartment. On the morning of November 1, she told him she would not return to Portland Avenue. He was upset. Lugassy was killed between 8 and 8:30 p.m. on November 1. That evening, about 9, defendant phoned and insisted that she come to his apartment immediately. When she arrived, defendant was in an unusually carefree mood. Miller testified regarding the events from defendant’s final court appearance in the rape case to her own meeting with the police. On November 20, at defendant’s request, she accompanied him to the preliminary hearing on the Lugassy rape charge. He told her to call his father and a bail bondsman if he were jailed. After his release, he thought police were following them on the way back to his apartment. The day after Thanksgiving, she demanded that defendant repay her loans; he responded with threats. In December, at his request, she talked to Oakland Police Sergeant Murray and told him, falsely, she had been with defendant from 8 p.m. on November 1. She lied out of fear of defendant. On February 13, 1980, she was again questioned and told the truth only after learning that the police had talked to Gentry. She was not granted immunity until just before defendant’s preliminary hearing on the present murder charge in April. Other evidence showed as follows: Although the murder weapon was never found, the markings on bullets in Lugassy’s body were consistent with those produced by a .38 caliber police special like one that Donald Ewing testified he loaned to Gentry and Gentry testified she gave to defendant in October 1979. Ewing and two other men testified to loaning or giving Gentry money that month. Telephone company records showed calls between October 24 and 30 to the Peralta colleges from defendant’s, Gentry’s, and Miller’s numbers, calls through November 1 from defendant to Gentry and to Miller, and calls between Miller and Gentry. Other evidence showed Lugassy was indeed taking nursing classes at Vista College of the Peralta District. John Leal, a Livermore police officer, testified he had made a security check of Gentry’s home and left her a copy of the form he used. Defense witness Lawrence Mann testified he allowed the Ford LTD to be rented on his credit card and used by Gentry. After the car was impounded in February, Richard Lavin, Lugassy’s neighbor, selected it from about 50 cars in a police garage as the car he had seen driving away five seconds after he heard the shots that apparently killed Lugassy. Other defense witnesses, James and Millicent Stewart, each testified they had known Miller for 10 years and that in October 1979 Miller mentioned that defendant was going to kill, or have killed, a woman he was alleged to have raped. According to Mrs. Stewart, Miller also said that defendant had had Miller pose as his sister and that “Nancy” was going to commit a murder for defendant. Sometime in 1979, after Halloween, Mrs. Stewart received a phone call indicating “it had been done,” which she assumed referred to the Lugassy murder she had read about in the paper. Alan Saccheri, age 18, testified for the defense: He was with defendant when the latter gave Lugassy a ride about July 22, 1979. They all got something to eat, and as Lugassy was leaving, she invited defendant to her place for dinner. Saccheri was with defendant in July or August when he first met Gentry at the Alameda beach, and Saccheri later saw Gentry at defendant’s apartment. Saccheri introduced defendant to Miller and was at defendant’s apartment when defendant asked her to pose as his sister, and she was “more than willing” to do so. In December, according to Saccheri, Miller said that Gentry had killed Lugassy, and that on November 1 she (Miller) had spent the evening and night with defendant; in discussing this she indicated no fear of defendant. Defendant’s mother and sister provided partial alibis, testifying that on October 31 and November 1 defendant had been at their San Leandro home until times ranging between 6:30 and 7:30 p.m. It was 12 miles between defendant’s apartment and Lugassy’s home. The distance could be driven in 14 to 18 minutes. An abstract of judgment in evidence showed that in October 1975 defendant was committed to prison for attempted rape. I. Accomplice Instructions as Bar to Finding That Gentry Independently Killed Lugassy A theory of the defense was that Gentry killed Lugassy, acting on her own. That theory was said to be supported by: (1) a statement attributed to Miller that Gentry did the killing, (2) testimony of a neighbor that she heard the scream and three shots followed by footsteps toward the front (Portland Avenue), in contradiction to Gentry’s testimony that defendant made his escape through the back toward Van Dyke Street, and (3) physical measurements and timed-test runs designed to show that the assailant must have fled toward Portland Avenue. (The prosecution presented rebuttal evidence of its own test runs and measurements.) The jury instructions defined principals as including those who directly and actively commit the crime and those who aid and abet in its commission with knowledge of the unlawful purpose of the one who does directly and actively commit it (the perpetrator). As to accomplices, the jury was instructed: “An accomplice is one who is or was subject to prosecution for the identical offense charged against the defendant on trial. To be an accomplice, the person must have aided, promoted, encouraged, or instigated by act or advice the commission of such offense with knowledge of the unlawful purpose of the person who committed the offense.” (CALJIC No. 3.10 (1979 rev.).) “[In the crime of murder,] [i]f the crime of [murder] was committed by anyone, the witness [Nancy Gentry] was an accomplice as a matter of law and her testimony is subject to the rule requiring corroboration.” (CALJIC No. 3.16, bracketed words added by the court.) Defendant argues that the jury was thereby directed to find that Gentry was an accomplice in the sense of one who assists another and was precluded from finding that she acted alone. We do not believe the jury could have so understood the instruction. The instructions did not literally tell the jury it could not find Gentry was the killer. And Gentry was legally an accomplice “if the crime of murder was committed by anyone” including Gentry herself. CALJIC No. 3.16 was given to make clear that Gentry was being labeled an accomplice for purposes of the rule requiring corroboration if her testimony were believed. The instruction could not reasonably be understood as precluding rejection of her testimony—including rejection based on a conclusion that in fact she was the killer. (People v. Flanders (1979) 89 Cal.App.3d 634, 640 [152 Cal.Rptr. 696].) Defendant’s interpretation of the instruction would make it practically a direction of conviction. Yet the jury was fully instructed on the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt. Defendant’s supplemental brief seeks to extend the asserted prejudicial effect of the accomplice instructions to the status of Miller, citing the prosecutor’s closing argument that if the defense contention that Miller was an accomplice is correct, whom did she aid and abet other than defendant himself? But there is no evidence placing Miller at the scene on the evening of the murder; hence, if she was an accomplice, she was such only as an aider and abettor. Though the prosecutor argued that she aided and abetted defendant, nothing, in the instructions precluded a defense argument that she aided and abetted someone else (the only other possible principal being Gentry). II. Inadvertent Omission of “Not” from Instructions on Burden of Proving Accomplice Status of Cheryl Miller In the jury instructions, after defining accomplice status and explaining its consequences (testimony requires corroboration and is to be viewed with distrust), the court proceeded to give CALJIC No. 3.19 with respect to Cheryl Miller. That instruction, if stated properly, would have read as follows: “You must determine whether or not the witness Cheryl Miller was an accomplice as I have defined that term. The defendant has the burden of proving by a preponderance of the evidence that Cheryl Miller was an accomplice in the crime charged against the defendant. Preponderance of the evidence means such evidence as when weighed with that opposed to it has more convincing force and the greater probability of truth. In the event that the defendant has not proved by a preponderance of the evidence that Cheryl Miller is an accomplice or the evidence is evenly balanced so that you are unable to say that the evidence on either side of the issue outweighs the other, then you must find that Cheryl Miller was not an accomplice.” In delivering this instruction, the judge omitted the first “not” from the last sentence, so that it said, “In the event that the defendant has proved by a preponderance of the evidence that Cheryl Miller is an accomplice . . . , then you must find that Cheryl Miller was not an accomplice.” (Italics added.) The Attorney General concedes this was error but argues it was harmless. He is correct. Prejudice from failure to give proper accomplice instructions is measured by the test of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], i.e., whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Mayberry (1975) 15 Cal.3d 143, 159-160 [125 Cal.Rptr. 745, 542 P.2d 1337]; People v. Gordon (1973) 10 Cal.3d 460, 470 [110 Cal.Rptr. 906, 516 P.2d 298].) First, it is likely the instruction was understood to mean what it should have said. Having just been told the defendant had the burden of proving by a preponderance of the evidence that Miller was an accomplice, the jury would not likely accept at face value the statement that if the defendant has met that very burden, they must find that Miller was not an accomplice. Both sides in closing argument had stated that the defendant had the burden of proving Miller an accomplice, the prosecutor arguing that the burden had not been met, and the defense arguing that it had. Clearly defense counsel did not realize that the instruction had been misstated by the court; counsel argued on motion for new trial that Miller was an accomplice as a matter of law without mentioning the error. Though we decline to treat this unlikelihood of the jury’s being misled as conclusive, we weigh it in the balance in concluding, as we do, that the instructional error was harmless under Watson, supra, 46 Cal.2d 818, 836. The utmost effect of the error would have been an erroneous finding that Miller was not an accomplice. Even if the jury, absent the error, would have found that Miller was an accomplice and that they therefore were barred from using her testimony to corroborate Gentry’s, it is not reasonably probable they would not have found independent corroboration of Gentry’s testimony and, having accepted her testimony, would accept Miller’s also. There is abundant independent evidence corroborative of the testimony of both Gentry and Miller. The evidence is of two kinds: (1) Evidence of defendant’s motive: Defendant had previously served prison time for attempted rape. Lugassy charged him with raping her, and a complaint was filed against him based on her accusation. (2) Efforts by defendant to find Lugassy: She was taking nursing classes at Vista College in Berkeley, part of the Peralta Community College District. Defense witness Alan Saccheri heard Lugassy tell defendant she was a student at a junior college, and there were telephone company records of calls on October 24, 1979, from defendant to three Peralta campuses, as well as calls from him to Gentry and Miller and calls from Gentry, and from Miller, to the Peralta campuses. This evidence satisfied the rule, on which the jury was correctly instructed, that accomplice testimony must be corroborated by evidence which, if believed by itself, tends to connect the defendant with the offense charged, and that such evidence need not establish every element of the offense or corroborate all facts testified to by the accomplice. (CALJIC No. 3.12; see § 1111; People v. Szeto (1981) 29 Cal.3d 20, 26-27 [171 Cal.Rptr. 652, 623 P.2d 213] [plur. opn.], 43 [dis. opn.].) Accordingly, even if the court had not misstated the instruction and the jury had found Miller an accomplice, so that the testimony of Gentry and Miller could not be used to corroborate each other, it is highly probable the jury would have found independent corroboration of both Gentry and Miller. Moreover, the jury could not have reasonably disbelieved Miller (insofar as she incriminated defendant) if, as the verdict implied, they believed the material, independently corroborated parts of Gentry’s testimony. Therefore, no prejudice could result from any failure to apply to Miller the instructions that accomplice testimony must be viewed with distrust and must be independently corroborated to be sufficient for conviction. III. Failure,to Instruct That Prior Inconsistent Statement may be Proof of Truth of Matter Stated Defense counsel requested a special jury instruction that evidence of a prior statement of a witness inconsistent with his or her trial testimony may be considered not only to test credibility but also as proof of the statement’s truth. The request was refused on the ground that CALJIC No. 2.13, which is to the same effect, would be given. In fact, no such instruction was given. In closing argument, defense counsel stated that “I think the judge is going to” give such an instruction. He then argued that even though Miller had testified she did not come to defendant’s house until 9 p.m. on November 1 (Lugassy having been killed at 8:20 p.m.), her prior inconsistent statement that she did come to his house at 8 or 8:30 p.m. that evening should be considered as establishing his alibi. Although defendant asserts that the inconsistencies in Gentry’s and Miller’s testimony are “legion,” the only examples given—and the only instances we have found where a prior inconsistent statement, if believed, might have helped defendant’s case—are Miller’s prior statements (1) that she was with defendant at his apartment at the time of the murder and (2) that Gentry, and not defendant, killed Lugassy. Those statements all came before the jury without objection, and the jury was never instructed to consider them for any limited purpose. Hence there is no basis for doubting that the jury considered them for the purpose prescribed by the omitted instruction. The omission therefore was harmless. IV. Failure to Give Cautionary Instructions as to Defendant’s Oral Admissions Defendant claims reversible error in the trial court’s failure to give instructions that would have defined a defendant’s admissions (CALJIC No. 2.71) and told the jury to view with caution the evidence of defendant’s preoffense statements of intent, plan, or motive (CALJIC No. 2.71.7). Such instructions, when applicable, must be given sua sponte. (People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal.Rptr. 313, 492 P.2d 1].) The Attorney General argues that (1) the instructions were waived, and (2) their absence was not prejudicial. We need not decide the waiver question because, even if there was error, it was harmless under the Watson standard, supra, 46 Cal.2d 818, 816. (Beagle, supra, 6 Cal.3d at p.455.) The evidence to which the instructions might have applied consisted of Gentry’s and Miller’s testimony of defendant’s expressions of intent, plan, and motive, e.g., statements of fear that Lugassy’s charges would result in his returning to prison, the request to Gentry to obtain a gun, and explanations of plans to stalk and kill Lugassy. As a practical matter, the jury’s belief or disbelief of the evidence of those statements was dependent on, and incidental to, their belief or disbelief of the rest of Gentry’s testimony, particularly her account of the events of the evening of November 1 as to which she was the only eyewitness to defendant’s presence at the murder scene. The jury was instructed to view her testimony with distrust since she was an accomplice as a matter of law. This is not a case such as People v. Ford (1964) 60 Cal.2d 772, 799-800 [36 Cal.Rptr. 620, 388 P.2d 892], in which the culpability of the defendant’s acts depended on evidence of his utterances (e.g., threats). Here, even without the preoffense statements, it was clear from the evidence of defendant’s conduct, if believed, that the murder was premeditated or committed by lying in wait. His statements were additionally probative of the special circumstance, but the evidence of his contact with Lugassy, of her conduct, and of the pending proceeding against him for raping her, presented such a strong case on that issue that the lack of cautionary instruction as to his statements was unquestionably harmless. V. Failure to Instruct on Sufficiency of Circumstantial Evidence to Establish Guilt (other than Guilt of Special Circumstance) Defendant requested the giving of CALJIC No. 2.01, which says that a finding of guilt may not be based on circumstantial evidence unless the proved circumstances are consistent with guilt and cannot be reconciled with any other rational conclusion. It also says that each fact in the chain of circumstances must be proved beyond a reasonable doubt; that a reasonable interpretation pointing to innocence must be adopted in preference to a reasonable interpretation pointing to guilt; and that any reasonable interpretation must be accepted in preference to an unreasonable interpretation. While refusing the instruction as to issues of guilt generally, the court did give the instruction with respect to the finding of the special circumstance (i.e., that the murder was intentionally committed for the purpose of preventing the victim from testifying as witness to a crime). The trial court’s decision not to give the instruction with respect to the issue of guilt was correct. The instruction must be given sua sponte where the prosecution’s case rests substantially on circumstantial evidence (People v. Yrigoyen (1955) 45 Cal.2d 46 [286 P.2d 1]), but it should not be given where the evidence relied on is either direct or, if circumstantial, is not equally consistent with a reasonable conclusion of innocence (People v. Wiley (1976) 18 Cal.3d 162, 174-176 [133 Cal.Rptr. 135, 554 P.2d 881]). The instruction should not be given simply because the incriminating evidence is indirect, e.g., defendant’s extrajudicial admissions, but is appropriate only when “guilt must be inferred from a pattern of incriminating circumstances.” (People v. Gould (1960) 54 Cal.2d 621, 629 [7 Cal.Rptr. 273, 354 P.2d 865].) The circumstantial evidence in this case points convincingly to defendant’s guilt. Under these circumstances, the failure to instruct under CALJIC No. 2.01 is not prejudicial error. (Cal. Const., art. VI, § 13.) VI. Record of Defendant’s 1975 Prison Sentence for Attempted Rape Over objection, the court admitted an abstract of judgment showing that on October 24, 1975, defendant had been sentenced to prison for attempted rape. The objection was that the evidence was irrelevant and unduly prejudicial (Evid. Code, § 352). The jury was instructed that the evidence was received only “to show corroboration of the testimony of the prosecution witness, a motive for the commission of the crime charged.” There was no error. Miller had previously testified that when defendant talked about his fear of going back to prison on the Lugassy rape charge, he told her he “had been set up on a rape charge and had been in jail on a rape charge.” The prosecutor offered to withdraw his proffer of the abstract of judgment if defense counsel would stipulate that Miller was not an accomplice. Defense counsel refused to do so. Thus, it was Miller’s testimony that disclosed to the jury the nature of the charge on which defendant had been imprisoned. The abstract of judgment was offered and received only to corroborate Miller’s testimony by showing defendant had in fact been “in jail on a rape charge” and, thus, to help prove defendant’s motive for killing Lugassy, to keep from going back to prison. In his opening brief, defendant conceded that evidence of his having been in prison was relevant and admissible, but contended that disclosure that he served the prison term for attempted rape was unduly prejudicial and inadmissible under Evidence Code section 352. In his supplemental briefs, however, defendant withdraws the concession that evidence of his having been in prison was relevant, and argues that it was error to admit evidence of any prior conviction. He now contends evidence of the prior conviction to corroborate accomplice testimony that he had admitted being imprisoned on a rape charge was precluded by a general rule that other-crimes evidence cannot be used for corroboration. The cases he cites for such a rule, however, are ones in which evidence of the defendant’s prior wrongful conduct was held inadmissible to corroborate a witness’s testimony that the defendant engaged in similar wrongful conduct in connection with the offense charged. (People v. Thomas (1978) 20 Cal.3d 457, 468 [143 Cal.Rptr. 215, 573 P.2d 433]; People v. Key (1984) 153 Cal.App.3d 888, 894 [203 Cal.Rptr. 144]; People v. Thompson (1979) 98 Cal.App.3d 467, 472-475 [159 Cal.Rptr. 615].) Here, defendant was not charged with rape or attempted rape and the prior was not admitted for the purpose of showing defendant had a propensity to commit rape but to show his motive for committing murder —to avoid having to return to prison. This evidentiary purpose is not within the prohibition of Evidence Code section 1101, subdivision (a), under which “evidence must be excluded... if the inference it directly seeks to establish is solely one of propensity to commit crimes in general, or of a particular class” (People v. Alcala (1984) 36 Cal.3d 604, 631 [205 Cal.Rptr. 775, 685 P.2d 1126], italics added). Cases cited by defendant rejecting prior crimes offered as evidence of motive on the theory that “if a person acts similarly in similar situations, he probably harbors the same intent in each instance” (People v. Thompson (1980) 27 Cal.3d 303, 319 [165 Cal.Rptr. 289, 611 P.2d 883]) are not relevant here. There was no attempt, for example, to introduce evidence of a prior murder, or attempted murder, for purposes of silencing a witness or otherwise. More in point are People v. Durham (1969) 70 Cal.2d 171 [74 Cal.Rptr. 262, 449 P.2d 198] and People v. Robillard (1960) 55 Cal.2d 88, 100 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086], where the defendants were charged with killing police officers during a traffic stop and this court allowed evidence of outstanding offenses for which the defendants feared apprehension. As we explained in People v. Alcala, supra, 36 Cal.3d 604, 634-635, “[i]n cases like Durham and Robillard, the motive of escape is central, and it can be shown in no other way.” Here, similarly, defendant’s motive to kill Lugassy to prevent his being sent back to prison as a result of her testifying against him in the pending Lugassy rape charge, was central to the prosecution’s case, and the evidence of defendant’s extrajudicial statements of that motive made the record of the prior prison sentence significantly more probative of motive than in Alcala. It is true that the hope of escaping conviction for the charged Lugassy rape could have provided a believable motive for defendant’s murdering Lugassy even without the evidence defendant had previously been imprisoned on an attempted rape charge, or on any other charge. In fact, however, the prior imprisonment was integral to defendant’s own statements concerning his motive as testified to by Miller; he said Lugassy had to be killed because he was not going back to jail again. On the same occasion, he said he had been in jail because he had been “set up on a rape charge.” In People v. Rance (1980) 106 Cal.App.3d 245, 251 [164 Cal.Rptr. 822], the defendant told one of the victims of his sexual assault not to scream or he would kill her; that he had just gotten out of prison; that the people who were coming to get him were responsible for sending him there; that he had dope in his car, and he was going to set them up and kill them. Similar statements were made to another such victim. The Court of Appeal held that the references to prison and dope were properly admitted because they were crucial, necessary, and inherent parts of the threats, and made the threats more intimidating and credible. So here, defendant’s statement that he had previously been in prison was integral to his apparent motive in that he feared a repetition of an unpleasant experience; and the fact that the prior imprisonment was for rape could be seen as giving him first-hand experience with the crucial importance of the victim’s testimony in a rape prosecution, and hence of the likelihood that elimination of the victim would stop the prosecution (as turned out to be the case when the Lugassy charge was dismissed for lack of evidence at the preliminary hearing on November 20, after her death). Defendant separately complains of the jury instruction that evidence of his having “committed [a] crime other than that for which he is on trial” should be considered only for “determining if it tends to show corroboration of the testimony of the prosecution witness, a motive for the commission of the crime charged.” But the only basis for the claimed error is the contention that the prior conviction was not admissible for the purposes stated in the instruction. Since, as explained, the conviction was admissible for those purposes, there was no such defect in the instruction. Finally, defendant contends that the trial court did not properly perform its duty of weighing the probative value of the record of defendant’s 1975 conviction for attempted rape against its prejudicial effect in response to defendant’s objection under Evidence Code section 352. Defendant correctly points out that when such objection is made, “the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .” (People v. Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468]; accord, People v. Leonard (1983) 34 Cal.3d 183, 187 [193 Cal.Rptr. 171, 666 P.2d 28].) In ruling on the motion, the trial judge observed that he had previously ruled that all prior convictions would be excluded for impeachment purposes, should defendant testify, under People v. Beagle, supra, 6 Cal.3d 441. He had then warned, however, that one or more prior convictions might be admissible under some different rule. He said he had “allowed it in through two witnesses, now” and so under that circumstance would admit the record of the conviction. It thus clearly appears from the record the court understood his duty to and did exercise his section 352 discretion. Defendant also contends that there was nothing in Gentry’s or Miller’s testimony concerning defendant’s statements about his prior imprisonment that would diminish the prejudicial effect of “unrefutable and actual evidence of [defendant’s] conviction and incarceration.” It is apparent, however, that once the jury had heard that testimony, the abstract of judgment evidencing defendant’s conviction and prison sentence was far less prejudicial than it would have been had there been no other evidence of defendant’s prior conviction. (People v. Vidaurri (1980) 103 Cal.App.3d 450, 461-462 [163 Cal.Rptr. 57].) Moreover, in ruling on the admissibility of the 1975 abstract of judgment, the trial court was required to consider not only its prejudicial effect but also its probative value. It was the testimony of defendant’s description of his own motive—that Lugassy had to be killed so that he would not return to prison where he had been incarcerated on a rape charge—which gave the abstract of judgment its great probative value as corroboration and as evidence of motive. (See People v. Lopez (1969) 1 Cal.App.3d 78, 85 [81 Cal.Rptr. 386].) The relation between the abstract of judgment and the prior testimony was made very clear by the prosecutor’s offer to withhold the abstract of judgment from evidence if defendant would stipulate that Miller was not an accomplice. That offer (refused by defense counsel) was made during the argument on admissibility of the abstract under Evidence Code section 352. VII. Admission of Lugassy’s Hearsay Statements Identifying Defendant as her Assailant and Expressing Fear of Defendant Lugassy’s next door neighbor, Leslie McBain, testified that on the evening of July 22, 1979, Lugassy appeared at McBain’s door and said she had just been raped. Over hearsay objections, McBain testified that both then and in October, Lugassy expressed fear that her assailant would return to harm her. Sergeant Kivett, of the Oakland police, testified that on August 9, he and a female officer interviewed Lugassy at her home. Over hearsay objection, he testified that (1) Lugassy selected, from a group of photos, a photo of defendant as the person who had raped her and (2) Lugassy expressed apprehension over the fact that her assailant was out on bail and might return to harm her. The testimony of Lugassy’s fear and of her identification of defendant were admitted for the stated purpose of showing her state of mind. Defendant concedes that Lugassy’s initial statement that she had been raped was admissible under the spontaneous-declaration exception to the hearsay rule (Evid. Code, § 1240). Her photographic identification of defendant, however, was not hearsay at all since it was not “offered to prove the truth of the matter stated” (Evid. Code, § 1200, subd. (a)), that defendant had in fact raped her, but rather to show that she believed it was defendant who had raped her and intended to so testify at his trial. Her identification of defendant was relevant to the issue of motive and to the special circumstance, i.e., that he killed her to prevent her testifying against him. The facts that she had been raped and that he had been charged with that offense did not necessarily establish her belief that she could positively identify defendant as the culprit. Defendant urges, however, that Lugassy’s state of mind, i.e., her belief he was the person who raped her, was irrelevant because there was no evidence that defendant knew she had identified him. Not so. The absence of direct evidence that defendant had been informed that Lugassy had selected his photo in a photographic lineup does not establish he had not been informed of that fact. Indeed, from his statements to Gentry and Miller about the necessity of killing Lugassy, it would not be unreasonable to infer defendant was so informed. He clearly knew Lugassy had preferred the charges against him, and would not likely believe it was necessary to kill his accuser unless he knew or believed she had identified him to the police and was prepared to identify him at trial. Thus, evidence that Lugassy had identified defendant as her assailant was relevant both to corroborate the testimony of Gentry and Miller and to help prove defendant’s motive for murdering Lugassy. (Cf. People v. Weidert (1985) 39 Cal.3d 836, 853-854 [218 Cal.Rptr. 57, 705 P.2d 380].) The evidence that Lugassy expressed fear of defendant was corroborative of Gentry’s and Miller’s testimony that she was constantly absent from her cottage and that Gentry’s ruse—posing as a police officer making home security checks—was necessary in order to lure her outside where defendant could get at her. (See People v. Armendariz (1984) 37 Cal.3d 573, 586-587 [209 Cal.Rptr. 664, 693 P.2d 243].) The evidence presented none of the usual dangers of prejudice from a victim’s hearsay statements of fear because there was no direct contact between Lugassy and defendant, so far as appears in the record, from the time of the rape, on July 22, until he killed her at 8:20 p.m. on November 1. The cases in which the victim’s expressions of fear have been deemed prejudicial have been ones in which there was such direct contact giving rise to the danger that the victim’s fear would be interpreted as a hearsay statement that the accused had in fact engaged in threatening conduct toward the victim. (See People v. Arcega (1982) 32 Cal.3d 504, 526-528 [186 Cal.Rptr. 94, 651 P.2d 338]. On prejudice, see People v. Ireland (1969) 70 Cal.2d 522, 532 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) In his supplemental brief, defendant argues that under People v. Coleman (1985) 38 Cal.3d 69, 82-86 [211 Cal.Rptr. 102, 695 P.2d 189], the evidence of Lugassy’s statements that she feared defendant would return to harm her should have been excluded. But Coleman found the prejudicial effect of the victim’s statements (in letters) in their indications of the defendant’s conduct. Here the only statements about defendant’s conduct in the disputed utterances of Lugassy were that he had raped her and that he was out on bail. Since the facts that she had charged him with raping her and that he was out on bail were amply proved by other evidence, the prejudice found in Coleman was nonexistent here. VIII. Cross-examination of Defendant’s Sister About her Alibi Testimony for Defendant in Prior Case Nancy Mosbaugh testified she was defendant’s sister and lived with her parents and children in San Leandro. She testified that on November 1, 1979 (evening of the murder), defendant came to her home around 6:30 p.m. and remained 10, 15, or 30 minutes. This contradicted Gentry’s testimony that on that evening she went to defendant’s apartment about 6:30 p.m. and after a few minutes drove off with him to Portland Avenue (where Lugassy lived). On cross-examination, Mosbaugh was asked whether she came into “a courtroom in this building” in April 1971 and testified to seeing her brother on November 22, 1970. Defense counsel objected that the question was beyond the scope of direct examination. The prosecution said the question went to bias, and the objection was overruled. Mosbaugh then testified that in April 1971 she testified she had been with defendant the entire evening of November 22, 1970. Defendant claims his objection should have been sustained since the testimony tended to lead the jury to speculate that defendant had been on trial for another crime in 1971. The relevance of the evidence to show bias was marginal. There was no attempt to show that the prior alibi testimony was false, and, as defendant’s sister, Mosbaugh might be expected to know of defendant’s whereabouts from time to time. However, even if the court’s ruling was erroneous, reversal would not be warranted. In the first place there was no objection on the basis now asserted. (Evid. Code, § 353.) Moreover, little prejudice to defendant resulted from Mosbaugh’s answer to the question. The prejudice was slight for several reasons. It was not clear that the prior testimony was in a criminal case; the Alameda County Courthouse in Oakland houses both civil and criminal departments of the superior court. Moreover, the jury already knew defendant had been sentenced to prison in 1975 for attempted rape, so his sister’s testimony was not the only means by which they learned that he had previously been involved with the law. In closing argument, the prosecutor generally attacked the sister’s credibility (“She recalled what she wished to recall”) but did not refer to her alibi testimony in 1971. Accordingly, even if trial counsel had made a proper objection, the admission of the evidence would constitute harmless error under the Watson standard (People v. Watson, supra, 46 Cal.2d 818, 836). IX. Failure to Give Jury Full Statutory Admonitions at Each Adjournment Section 1122 provides that the jury must “at each adjournment of the court ... be admonished by the court that it is their duty not to converse among themselves or with anyone else on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them.” Defendant claims error because although “at the end of each trial day, the court did admonish the jury not to converse among themselves or with anyone else on the subject of the trial and to avoid any publicity, [it] failed to include advice not to form or express any opinion on the case until the case was finally submitted.” Review of the record indicates that the court at the end of each day admonished the jurors to discuss the case with no one. That admonition clearly implies a direction not to express an opinion about the case. The question, then, is whether there was reversible error based on a failure to admonish the jury not to form an opinion on the case until it was submitted to them. The record shows that when the jury panel was first assembled, on Wednesday, October 22, 1980, they were told to disregard any publicity about the case “because when you will be sworn on this jury, you will swear to keep an open mind with respect to this case and to decide it only upon the evidence that is introduced into this courtroom and to withhold your decision until you have heard all of the evidence in this case.” This admonition to keep an open mind was equivalent to the instruction required by section 1122 not to form any opinion until submission of the case. The question is whether defendant was prejudiced by any failure to so instruct “at each adjournment of the court” (§ 1122), i.e., at each continuance of the proceedings to another court day (People v. Moore (1971) 15 Cal.App.3d 851 [93 Cal.Rptr. 447]). After the initial admonition, there ensued five days of sequestered voir dire in which each prospective juror appeared alone to answer questions about his or her views toward the death penalty. On October 29, 1980, the panel was reassembled, and at the end of that day, they were admonished to “remember the admonitions I ha[ve] previously given you” and not to discuss the case with anyone and to disregard media publicity about the case. On October 30 and 31, the admonitions included the statement that “you are pledged to keep an open mind until the case is submitted to you for deliberation.” A jury of 12 was sworn on October 31. On November 3, a second panel was assembled (to select alternates) and given admonitions that included the “open mind” language. There ensued sequestered voir dire of that panel on November 3 and 4. On November 5, the three alternates were sworn, and the entire jury given admonitions that included the “open mind” language. Testimony began that afternoon, and there were 13 adjournments between then and the submission of the case to the jury on November 25. The open-mind admonition was given at four of those adjournments: November 7, 10, 14, and 24. At the first of the others, November 5, the jury was told to “remember all of the admonitions I have given you.” At the adjournments of November 12 and 13, which followed directly that of November 10 (at which the open-mind admonition was given), the jury was told that “I want to give you, and each time you leave the courtroom for the day, the same admonition” (Nov. 12) and to “remember the admonition I have given you” (Nov. 13). Similarly, on November 17 and 18, the adjournments next following that of November 14 (when the open-mind admonition was given), the jury was told to “remember the usual admonition (or admonitions).” At all these adjournments, the jury was expressly told to refrain from discussing the case with anyone. At only four of them (Nov. 6, 19, 20, and 21) was there neither an open-mindedness admonition nor a reference back to earlier admonitions in which the jury had been told to keep an open mind. (See People v. Linden (1959) 52 Cal.2d 1, 29 [338 P.2d 397], holding a direction to remember the previous admonition—a complete and correct one having been previously given—to be sufficient.) “[E]rror in failing to give the required admonition does not require reversal unless the defendant calls the trial court’s attention to the omission at the time of the adjournment, or unless the defendant on appeal affirmatively points to prejudice resulting from the omission.” (People v. Campbell (1976) 63 Cal.App.3d 599, 610 [133 Cal.Rptr. 815]; see People v. Fairchild (1967) 254 Cal.App.2d 831, 839 [62 Cal.Rptr. 535].) Prejudice is not presumed and no prejudice appears. The jury was amply warned against overt discussion of the case; the only possibility of prejudice would be from a juror’s internally and subjectively making a premature judgment as to guilt. But the jury was repeatedly told to keep an open mind (even though not at the end of every session), and the general instructions to decide guilt solely on the basis of the evidence and the law stated by the court, together with the jury’s deliberative process, made it improbable that any juror would think he or she had any right to adhere blindly to an opinion formed before the end of the trial. Defendant claims ineffective assistance of counsel based on his trial attorney’s failure to object to the insufficiency of the admonitions, but the absence of prejudice from the outcome precludes reversal on that ground. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144].) X. Applicability of Accomplice Rules to Special Circumstance Defendant contends that the instructions erroneously led the jury to refrain from giving him the advantage of the accomplice rules with respect to the special circumstance. He points out that the instructions speak of guilt of the crime of murder, but only of the truth of the special circumstance. The instructions then say that the defendant cannot be “found guilty” based on the testimony of an accomplice without corroboration tending to connect the defendant with the “offense” or the “crime charged.” Moreover, accomplice status is defined in terms of participation in the “crime.” Under these instructions the accomplice status of Gentry or Miller was measured by her participation in the crime of murder, regardless of the special circumstance, and corroboration could be sufficient if it simply tended to connect defendant with that crime. The instructions made clear, however, that once accomplice status was found, all of the accomplice’s testimony should be viewed with distrust. The remaining question is whether the jury should have been instructed that the truth of the special circumstance, as distinct from guilt of the crime of murder, could not be established by the testimony of an accomplice in the absence of corroboration. Clearly, such an instruction would not have made a difference. The first degree murder verdict establishes that the jury found defendant guilty of murder which was willful and premeditated or was committed by lying in wait. They could not have reached that verdict without believing the testimony of Nancy Gentry and finding that such testimony was corroborated. If they believed her testimony as to guilt, they must also have believed her testimony to the effect that the special circumstance was true, i.e., that defendant intentionally killed Lugassy to prevent her from testifying against him in a criminal proceeding for allegedly raping her. The special circumstance was in fact independently corroborated by evidence which also corroborated guilt, i.e., that defendant had served prison time for attempted rape, that Lugassy had charged him with raping her, and that a criminal complaint had been filed against him based on her accusation. (See People v. Szeto, supra, 29 Cal.3d 20, 26-27 [plur. opn.], 43 [dis. opn.].) Thus, if the jury had been instructed that the special circumstance could not be established by the uncorroborated testimony of an accomplice, they almost certainly would have decided that Gentry’s testimony (which they believed) was corroborated. Since no prejudice could result from omission of the instruction, we need not consider whether it should have been given. XI. Instruction that Jury Could Find Fact Based on Testimony of one Witness—conflict with Accomplice Corroboration Requirement? The trial court gave CALJIC No. 2.27, which allows the jury to find a fact based on the testimony of one witness. Defendant argues that this undermined the accomplice instructions, misleading the jury into thinking they could base a finding on an accomplice’s uncorroborated testimony in violation of section 1111. A similar contention was made in People v. Chavez (1985) 39 Cal.3d 823, 829-832 [218 Cal.Rptr. 49, 705 P.2d 372]. There, we held that any such misleading effect was cured by the accomplice instructions, coupled with the fact that both counsel proceeded on the premise that corroboration of the only prosecution witness who might have been deemed an accomplice was required. The relevant instructions given here were the same as in Chavez, and, as there, counsel argued on the assumption that corroboration of Gentry’s testimony was required. Defendant argues that prejudice arose because the prosecutor argued that Miller was not an accomplice, and the trial judge’s slip of the tongue in giving CALJIC No. 3.19 (see ante, p. 163) may have misled the jury into failing to make a proper finding of Miller’s accomplice status. But the only claimed impropriety of CALJIC No. 2.27 was to deflect the jury from looking for corroboration of an accomplice-witness; it could not affect the assessment of whether a witness was or was not an accomplice. Thus, under the Chavez reasoning, the jury must be presumed to have applied the corroboration requirement to the testimony of Miller if, under the other instructions, they found she was an accomplice. XII. Instructions on Motive Defendant claims that CALJIC No. 2.51, on motive, may have led the jury to disregard the instructions on the special circumstance. As to the special circumstance, the jury was instructed as follows: “If you find the defendant in this case guilty of murder of the first degree, you must then determine if the murder was committed under the following special circumstance: That Nancy Lugassy was a witness to a crime who was intentionally killed by Harvey Lee Heishman, III, to prevent her from testifying in a criminal proceeding. “A special circumstance must be proved beyond a reasonable doubt. If you have a reasonable doubt as to whether a special circumstance is true, it is your duty to find that it is not true. In order to find the special circumstance charged in this case to be true or untrue, you must agree unanimously. You will include in your verdict on a form that will be supplied whether the special circumstance is or is not true. “To find that the special circumstance, referred to in these instructions as murder of a witness to a crime, is true, each of the following facts must be proved: “Number one, that the person killed was a witness to a crime; and number two, that the witness was intentionally killed for the purpose of preventing the witness’ testimony in a criminal proceeding; and number three, that the killing was not committed during the commission or attempted commission of the crime to which the person killed was a witness.” At a much later point in the instructions, the jury was given a modified form of CALJIC No. 2.51, as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or the lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt; absence of motive may tend to establish innocence. You may, therefore, give its presence or absence, as the case may be, the weight to which you find it to be entitled.” (In CALJIC No. 2.51, the last sentence begins, “You will therefore give . . . .”) Defendant contends that since a motive (preventing the victim from testifying) was at the very core of the special circumstance, it was prejudicial error to instruct that motive “is not an element of the crime charged and need not be shown.” The instructions, however, made a clear distinction between the crime o