Full opinion text
Opinion ARGUELLES, J. Defendant Jerry Thomas Bunyard was convicted by jury of the first degree murders (Pen. Code, § 187) of his wife Elaine Bunyard (Elaine) and of Elaine’s full-term, healthy fetus (Baby Girl Bun-yard.) The jury also found true one special circumstance allegation: that defendant had committed multiple murders (§ 190.2, subd. (a)(3)). Defendant was sentenced by the jury to death. This appeal is automatic (§ 1239, subd. (b)) and arises under the 1978 death penalty law. (§ 190.1 et seq.) As we shall explain, we conclude that the guilt verdicts and special circumstance finding should be affirmed, but that the penalty judgment must be reversed under People v. Ramos (1984) 37 Cal.3d 136, 150-159 [207 Cal.Rptr. 800, 689 P.2d 430]. I. Facts On November 1, 1979, Elaine, a pregnant woman ready to give birth any day, was discovered dead in the garage of her home by her seven-year-old daughter, Tanya. Medical testimony at trial established that Elaine had died from a massive shotgun wound to the head, and that her full-term fetus had suffocated moments later from the resulting lack of oxygen. The evidence was uncontroverted that Elaine was killed by Earlin Popham, a childhood friend of defendant. Popham testified at trial that he was hired by defendant to kill Elaine. In summary, Popham’s testimony was as follows: Earlin Popham, also known as Earlin Laudeman, was a drifter, small-time criminal, and frequent drug user who had known defendant since grade school. Around October 1979, two or three weeks before the murders, Popham learned that defendant wanted to see him, and he met with defendant at the Bunyard home. Defendant advised Popham that he had a job for Popham: assisting with a building project in Patterson. Popham accepted the job and began living at the Bunyard residence intermittently. During this time, Popham and defendant began to discuss defendant’s marital situation, and defendant asked Popham if he would kill Elaine for a fee. Defendant gave numerous reasons for his request: Elaine was pregnant by another man; he had offered Elaine $50,000 in settlement for a divorce, but she had refused; in a contested divorce Elaine would take everything defendant had; and that he wanted to be with or marry his new girlfriend, Sarah Pender, who was wealthy or had a wealthy father. Defendant offered to pay Popham $1,000 within a week after the killing, followed by payment of additional money when defendant received the proceeds of an insurance policy. Defendant additionally offered to employ Popham as a caretaker of his ranch after Elaine’s murder, and told Popham that he would be welcome to move to Arkansas with defendant, defendant’s father, and defendant’s girlfriend Sarah Pender. While at first Popham declined defendant’s offer, when defendant persisted Popham, being sympathetic to defendant’s situation and in need of money, eventually agreed to kill Elaine, knowing that she was pregnant. This agreement was reached about one week before the murders occurred. Popham testified that defendant’s plan was to make the murder look like a suicide. Popham was to knock Elaine out in the kitchen, drag her into the garage where defendant had hidden his pump shotgun, and then stage a “shooting” suicide. Defendant believed this plan would be successful due to Elaine’s “mental problems” during her pregnancy. Additionally, defendant told his father Clarence, who lived next door, to go fishing and not be at home during the week when defendant was asking Popham to carry out the murder plan. The date was left up to Popham, but defendant repeatedly asked Popham if today would be the day, including October 31, the day before the murders. Finally, on the morning of November 1, when defendant asked if Popham would carry out the plan that day, Popham replied “probably.” Waiting until after defendant and Tanya left the house, Popham walked up behind Elaine while she was in the kitchen washing dishes and struck her repeatedly on the head with frying pans to knock her out. He then dragged her while unconscious to the garage, placed her in a chair, propped defendant’s shotgun under Elaine’s chin, and pulled the trigger, blowing off half her head and face. Realizing that a trail of blood from the kitchen to the garage, and signs of a struggle in the kitchen—including two shattered pans—would not look like a suicide, Popham decided to make it appear to be a robbery by knocking over some furniture, and taking $5 from Elaine’s purse. Popham then drove to the construction project where defendant was working, and talked with defendant in hushed tones for a few minutes. He informed defendant that “it was done,” and that he would meet him in town at the A & W at noon. That meeting was held at the appointed time and place, with Popham telling defendant that Elaine had been killed but that “it ain’t going to look like a suicide.” When Popham said he needed some money, defendant withdrew $175 from his bank and gave $125 to Popham. Popham told defendant that he would call defendant within a week regarding further payments. Two days after the murder, Popham tried to contact defendant by calling the house of defendant’s father, Clarence Bunyard, who informed Popham that his son was at his (defendant’s) home. Popham then reached defendant by phone at his own home. Although defendant asked Popham to call him at his father’s house later that night, Popham did not call again. Telephone records at trial confirmed that a short call had been placed from a residence in San Jose, where Popham was staying, to defendant’s home two days after the murders. Other witnesses at trial, including defendant, testified that in the afternoon of November 1—the date of the murders—defendant went to the Tracton Bar after work and drank heavily. Thereafter, defendant visited Sarah Pender, arriving at her home around 6:40 p.m., in an intoxicated condition. There, he was advised by both his mother and Sarah Pender of the death of his wife. Testimony at trial established that Elaine had been murdered. Suicide was ruled out because Elaine’s arms were too short to have put the barrel of the shotgun under her chin and still have pulled the trigger, and Popham’s fingerprints were found on the shotgun. The physician who examined Elaine two days before her death stated that Baby Girl Bunyard at that time had a fetal heartbeat of 140, was due between November 1 and 7, and was normal. The pathologist testified that the fetus was a normal, healthy term infant which weighed eight pounds, two ounces, was in proper position for delivery, and would have been bom any day. On November 2, 1979, one day after the murders, news of Elaine’s “suicide” became public. Randy Johnson immediately contacted police authorities. He testified that, although not acquainted with Popham, he (Johnson) had also been asked repeatedly by defendant to kill Elaine. Johnson testified that early in his five-year friendship with defendant, defendant had asked him five to ten times to kill Elaine and Tanya, then later Elaine alone; that defendant made twenty such requests during the first year of their friendship and even raised the offer from $1,000 to $5,000 to $10,000, but Johnson always declined. Later, when Johnson moved in with the Bunyards in the spring of 1979, receiving room and board in return for help with the ranch, the offers continued. Even after Johnson left the Bunyard residence, the offers continued, for a fee as high as $20,000, but Johnson never acquiesced. Although Johnson never apprised Elaine of her danger, he did mention it to the police prior to the actual murders, as well as to both his sister, Deanna Johnson, and his half brother. Defendant testified on his own behalf at the guilt phase but did not challenge Popham’s testimony that he (Popham) had murdered Elaine and her full-term fetus. Defendant presented an alibi defense and denied any involvement in the murders. Although defendant also denied desiring to divorce his wife, he admitted to striking her on occasion and to carrying on an affair with Sarah Pender, who he testified was his mistress. The defense at trial consisted primarily of an attack on the credibility of Johnson and Popham; defense counsel argued that Popham was lying to save himself from receiving the death penalty. Defendant denied ever soliciting either Johnson or Popham to kill anyone. Defendant further testified that he could think of no reason why Popham killed his wife. At the penalty phase, the prosecution submitted its case on the basis of the guilt phase evidence. The defense presented one witness, Nathan Eli, who had been sentenced to death twice, twenty years earlier, but had been released from prison and was then employed as an office manager in a San Francisco law firm. The thrust of his testimony was that “lifers” make good prisoners. II. Guilt Phase Issues Defendant makes a number of contentions related to the issue of guilt. None, as we shall explain, establishes reversible error. A. Evidentiary Issues 1. Victim’s Statements to Dr. Brown Defendant argues that the trial court committed reversible error in admitting testimony of Dr. Brown, Elaine’s physician, relating statements made to him by Elaine during a routine examination in her last month of pregnancy, in which she indicated that defendant had assaulted her on several occasions and expressed her fear of defendant. Although the statements should have been excluded, we conclude that the error does not warrant reversal. After Dr. Brown testified that he had observed bruises upon Elaine on two occasions during her pregnancy, the following colloquy occurred over defendant’s objection: [fl] “Q. And did you ask Mrs. Bunyard for any explanation of these marks? [fl] “A. Yes, I did. Q. And what, if anything, did she tell you? [fl] A. Well, she told me that her husband [defendant] had done it.” Thereafter, Dr. Brown testified that he advised Elaine to call the police and, over defendant’s objection, related Elaine’s response that “if I did anything like that, he’d [defendant] kill me.” In response to defendant’s hearsay objection, the prosecution conceded that the statements might be hearsay but argued that they were highly credible because made to a treating physician, and further argued that the statements were admissible because of their relevance to Dr. Brown’s medical treatment of Elaine and to Elaine’s precarious mental state during the last month of her pregnancy. The trial court concluded that these statements were admissible “for the history that the patient gives to a treating physician,” and proceeded to admonish the jury accordingly, directing them to consider the statements not for their truth but “merely in response to Dr. Brown’s requests and for use by Dr. Brown for any treatment, if necessary.” (Evid. Code, § 1200.) We believe that the trial court ruling was in error. Past cases make it clear that an out-of-court statement is not made admissible simply because its proponent states a theory of admissibility not related to the truth of the matter asserted. As this court recently observed, “[a] hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute.” (People v. Armendariz (1984) 37 Cal.3d 573, 585 [209 Cal.Rptr. 664, 693 P.2d 243].) Similarly, where the evidence involves a victim’s fear of defendant, we have examined whether the victim’s state of mind was truly in dispute and whether it was relevant to an issue in the case. (People v. Thompson (1988) 45 Cal.3d. 86, 103-104 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Ruiz (1988) 44 Cal.3d 589, 607-610 [244 Cal.Rptr. 200, 749 P.2d 854]; Armendariz, supra, 37 Cal.3d at pp. 584-590; People v. Arcega (1982) 32 Cal.3d 504; 526-528 [186 Cal.Rptr. 94, 651 P.2d 338]; People v. Green (1980) 27 Cal.3d 1, 23 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Ireland (1969) 70 Cal.2d 522, 529-532 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) In this case, the record shows that neither Elaine’s medical treatment nor her mental state were at issue. No argument was presented by either side to suggest that Elaine’s death may have resulted from accident, self-defense, provocation or suicide, nor did the defense raise any issue of fact with respect to any conduct by the victim prior to her death. (Cf. People v. Lew (1968) 68 Cal.2d 774, 778-780 [69 Cal.Rptr. 102, 441 P.2d 942].) Since the articulated nonhearsay purposes of the statements were simply irrelevant to any disputed issue, the statements should have been excluded. Nonetheless, we conclude that the error was harmless. No prejudice could have flowed from Elaine’s attribution of her bruises to defendant since other witnesses, including Tanya and defendant himself, informed the jury that defendant struck Elaine repeatedly; Elaine’s hearsay statements as to the assaults were thus simply cumulative. Admission of Elaine’s other remark—“if I did anything like that, [defendant would] kill me”—was also not prejudicial under the circumstances of this case. While the statement does display Elaine’s fear of defendant, it was a fear based upon a condition precedent—her reporting his assaults to the police—and there was no evidence submitted to the jury that Elaine ever told the police about the beatings or that defendant thought that she had; indeed, the evidence is to the contrary. Moreover, the prosecution neither argued nor presented evidence to the jury suggesting that defendant had arranged the murder of Elaine to prevent her from reporting his beatings to the police; the record makes it clear that the remark played no role in the prosecution’s proof of defendant’s plans to have his wife killed. Unlike past cases finding prejudice (compare Arcega, supra, 32 Cal.3d at pp. 529-531; People v. Coleman (1985) 38 Cal.3d 69, 82-95 [211 Cal.Rptr. 102, 695 P.2d 189]; Ireland, supra, 70 Cal.2d at pp. 529-532), the remark was not exploited in argument nor did it evidence a present fear of imminent harm or death at defendant’s hands, from which the jury might reasonably have inferred that defendant had previously formed an actual intent to kill his wife. Accordingly, it is not reasonably probable that the jury’s verdict would have been different had these statements been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 2. Sufficiency of the Corroborating Evidence as to Accomplice Popham Defendant further argues that the judgment should be reversed because his conviction rests on the testimony of an accomplice whose testimony was not corroborated by sufficient and competent evidence, in contravention of section 1111. The People concede that defendant’s conviction was based on the testimony of Popham, an accomplice as a matter of law, but contend that Popham’s testimony was sufficiently corroborated by Johnson, who testified that defendant had also solicited him on numerous occasions to kill Elaine and Tanya. Contrary to defendant’s claim, we conclude that Johnson’s testimony provided competent and sufficient evidence to corroborate the testimony of accomplice Popham. Section 1111 provides, in pertinent part, that “a conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense.” In People v. Perry (1972) 7 Cal.3d 756 at page 769 [103 Cal.Rptr. 161, 499 P.2d 129], this court reviewed the standard by which the sufficiency of corroborating evidence is to be measured: “To corroborate the testimony of an accomplice, the prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. [Citation omitted.] ‘The evidence need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necesary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.’ [Citations omitted.] . . . ‘[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.’ [Citations omitted.]” (Accord, People v. Szeto (1981) 29 Cal.3d 20, 27 [171 Cal.Rptr. 652, 623 P.2d 213].) With these principles in mind, we conclude that Johnson’s testimony of being offered money to kill Elaine is sufficient to corroborate the testimony of accomplice Popham. Johnson’s testimony tended to connect defendant to the charged crime, did not depend on the testimony of Pop-ham to make this connection, was highly probative of defendant’s intent to kill his wife and his plan for so doing—hiring a friend to do the actual physical killing at defendant’s behest and direction—and substantiated Pop-ham’s testimony and credibility. “Corroborating evidence is sufficient if it substantiates enough of the accomplice’s testimony to establish his credibility [citation omitted].” (People v. Knight (1980) 111 Cal.App.3d 201, 205-206 [168 Cal.Rptr. 421].) Defendant also argues that Johnson’s testimony is “incompetent” evidence of corroboration since the offers to pay Johnson to kill Elaine and Tanya constituted evidence of “prior criminal conduct,” namely, solicitation to commit murder (§ 653f, subd.(b)), which was relevant only to prove criminal disposition and hence was erroneously admitted. Defendant’s claims should be rejected. First, defendant never objected at trial to this testimony. Any claim of error may therefore be deemed waived. (Evid. Code, § 353; People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].) In any event, Johnson’s testimony was admissible as probative of defendant’s plan to kill one of the victims. (Evid. Code, § 1101, subd. (b).) Where the “other crimes” evidence relates to the very same victim, it has been held admissible even when there is no issue of identity and no ambiguity about the proof of defendant’s intent to show a defendant’s “common design or plan” towards that victim. (Cf. People v. Moon (1985) 165 Cal.App.3d 1074, 1080 [212 Cal.Rptr. 101].) Thus, Johnson’s testimony was properly admitted and its corroborative effect was permissible. Defendant further contends that Johnson’s testimony cannot be competent corroboration of accomplice Popham’s testimony since Johnson himself was a “suspect” source—a witness to a solicitation to commit murder. Since the crime of solicitation to commit murder requires for conviction either the testimony of two witnesses or of one witness and corroborating circumstances, defendant argues that Johnson’s testimony was analogous to that of an accomplice and that one “suspect” source cannot corroborate another. Defendant cites no authority supporting this contention, and we can perceive no reason why the requirements for conviction of solicitation to commit murder would be relevant to this case. We reject defendant’s contention. In sum, we find that Johnson’s testimony provided competent and sufficient evidence of corroboration under section 1111. 3. Rebuttal Evidence—Admissibility of Johnson’s Prior Consistent Statements Defendant next argues that the court erred in permitting Deanna Johnson to testify during rebuttal that her brother Randy Johnson had told her of defendant’s attempt to hire him to kill Elaine. The court ruled that Deanna’s testimony was admissible pursuant to the “prior consistent statement” exception to the hearsay rule. (Evid. Code, § 791.) Deanna thereafter testified that around Eastertime in 1979, Johnson first told her that defendant had offered him money to kill Elaine; that her brother had mentioned defendant’s offer on more than one occasion, and that Johnson mentioned a different amount of money as being offered each time this matter was discussed between Johnson and Deanna. Contrary to defendant’s claims, we conclude that these statements were properly admitted as prior consistent statements under subdivision (b) of Evidence Code section 791, and that the trial court accordingly did not err. Evidence Code section 791 provides: [fl] “Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: . . . . [1f] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” In the present case, defense counsel’s cross-examination of Johnson strongly implied that Johnson’s testimony for the prosecution had been fabricated or influenced by the motive to avoid incarceration on a pending criminal matter. The defense brought out that Johnson had been convicted of second degree burglary in the summer of 1979 and had been placed on felony probation, and that he had a violation of probation charge pending, both at the time he gave a statement to police on November 2, 1979—one day after the killings—and at the time of his trial testimony. Defense questioning clearly intimated that Johnson might receive a penal benefit by testifying for the prosecution, although Johnson denied being offered such an inducement. The mere asking of questions may raise an implied charge of improper motive even though the receipt of a penal benefit is denied. (See, e.g., People v. Pic'l (1981) 114 Cal.App.3d 824, 863 [171 Cal.Rptr. 106].) We find that the defense impliedly charged that Johnson’s testimony was improperly influenced by the motive to avoid a prison term if found in violation of his probation. Defendant’s prior consistent statements to his sister were consistent with his testimony at trial and clearly arose prior to any implied improper motive was alleged to have arisen. Accordingly, we conclude that Deanna’s testimony was properly admitted under subdivision (b) of Evidence Code section 791. 4. Asserted Carter Error During the People’s case-in-chief, Popham testified that two or three days after the murders, he made a phone call from San Jose to defendant’s residence and spoke briefly to defendant. Popham’s testimony during the People’s case-in-chief was vague on the source of the billing for the call, although Popham indicated on cross-examination he may have billed the call to a corporation in Livermore. The defense then sought to impeach Popham by testimony from a telephone company representative that no incoming calls to defendant’s number or his father’s number had been billed to the Livermore corporation Popham had named during early November 1979, and by testimony from defendant, his friend Steve Taylor who resided with defendant temporarily after the murders, and his father Clarence Bun-yard that none of them received phone calls from Popham within two to three days after the murders. On rebuttal, the People presented testimony of a telephone company representative—based on other telephone records first discovered during the defense case—and other witnesses which established that a short call had in fact been placed by Popham from a San Jose telephone number to defendant’s residence on November 3, 1979, two days after the murders. The court ruled—over defendant’s objection that such evidence should be excluded because it had been in the possession of the People well before commencement of the trial and had been deliberately withheld in violation of a general discovery order—that the evidence was admissible on rebuttal since there had been no specific request for the telephone number, required for compelled disclosure of unfavorable evidence (see People v. Jackson (1980) 28 Cal.3d 264, 308 [168 Cal.Rptr. 603, 618 P.2d 149]) and there had been no deliberate withholding of such evidence by the prosecution since it had only been discovered two days earlier. Defendant now contends that the court committed prejudicial error, claiming that the phone record rebuttal evidence was material incriminating evidence in the prosecutor’s possession well before trial which should have been excluded because it was not properly presented during the People’s case-in-chief. (See People v. Carter (1957) 48 Cal.2d 737, 753-754 [312 P.2d 665].) Defendant is mistaken. Section 1093, subdivision (d) limits the prosecution to rebutting testimony only after the defendant has offered his evidence, unless the court, for good reason, in furtherance of justice, permits it to offer evidence upon its original case. In Carter, supra, 48 Cal.2d 737, this court explained that the purpose of these restrictions was to (1) ensure the orderly presentation of evidence so that the trier of fact is not confused; (2) to prevent the prosecution from “unduly magnifying certain evidence by dramatically introducing it late in the trial;” and (3) to avoid “unfair surprise” to the defendant from sudden confrontation with an additional piece of crucial evidence. (Id. at p. 753.) Accordingly, we held that “proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.” (Id. at pp. 753-754.) Thus, in Carter, supra, 48 Cal.2d 737, we disapproved of the prosecutorial tactic of intentionally withholding crucial evidence properly belonging in the case-in-chief to take unfair advantage of the defendant. (See People v. Graham (1978) 83 Cal.App.3d 736, 741 [149 Cal.Rptr. 6].) In the case at bar, however, the record clearly establishes that the evidence claimed as improper rebuttal was not in the prosecution’s possession until after the close of the People’s case-in-chief. We cannot perceive any deliberate withholding of evidence by the prosecution to gain an unfair advantage; the prosecutor simply did not discover the complained-of evidence in time to present in her case-in-chief. Even had she discovered the evidence earlier, the telephone records were not “crucial” or “material” evidence which properly belonged only in the case-in-chief. Such evidence, by itself, did not tend to establish guilt (cf. Carter, supra, 48 Cal.2d at pp. 753-754); nor was it “directly probative of the crimes charged” (People v. Thompson (1980) 27 Cal.3d 303, 330-332 [165 Cal.Rptr. 289, 611 P.2d 883]) or relevant to the establishment of an element of the charged offense. (Cf. People v. Katz (1962) 207 Cal.App.2d 739, 747-751 [24 Cal.Rptr. 644].) Before defendant took the stand, the prosecutor could not have known whether defendant, assuming he even testified, would deny receiving a phone call from Popham within a few days after the murders; since Popham merely testified that defendant asked him to call back and did not testify to anything incriminating in the content of the call, it was conceivable that defendant might have admitted receiving such a call for an innocent purpose, or that someone other than defendant or his friend Taylor answered the phone that day. The denials pertaining to the phone call therefore were not assertions implicit in defendant’s denial of guilt or plea of not guilty. (Cf. Carter, supra, 48 Cal.2d at p. 754.) But once these denials were made part of the defense case, it was clearly proper rebuttal to introduce the telephone records to impeach defendant’s credibility. (Cf. People v. Miller (1963) 211 Cal.App.2d 569, 575 [27 Cal.Rptr. 290].) Such impeachment evidence being proper rebuttal, it was immaterial that the evidence also supported the People’s case by bolstering Popham’s credibility, or might properly have been allowable as part of the prosecution’s case-in-chief. (See, e.g., People v. Wein (1958) 50 Cal.2d 383 [326 P.2d 457]; People v. Mackey (1959) 171 Cal.App.2d 513, 516-517 [340 P.2d 688].) Even if we assume there was error, it was not prejudicial. The admission of the telephone records at issue, while constituting effective impeachment, did not totally discredit defendant’s credibility or that of his witnesses; the records merely showed that Popham indeed telephoned the residence, not that Popham actually spoke to either defendant or Steve Taylor. Unlike past cases in which prejudice was found, the rebuttal evidence in issue did not strongly tend to establish guilt, as did the admission of a charged prior conviction (see People v. Castro (1960) 182 Cal.App.2d 255, 262-268 [5 Cal.Rptr. 906]), a defendant’s incriminating statements to the police (see People v. Robinson (1960) 179 Cal.App.2d 624, 629-631 [4 Cal.Rptr. 50]), or evidence directly probative of an element of a charged offense (see Katz, supra, 207 Cal.App.2d 739, 749). Even the prosecutor’s closing argument— which at one point referred to the phone records as being “important” because they tended to corroborate Popham’s testimony that he contacted defendant after the murders to collect his fee—ultimately characterized the phone record evidence as one of the “minor little points” that corroborated Earlin Popham as a believable witness. It is not reasonably probable that a result more favorable to the defendant would have occurred in the absence of the error. (People v. Watson, supra, 46 Cal.2d 818, 836.) 5. Sufficiency of the Evidence of Express Malice as to Baby Girl Bunyard Defendant further argues that there was insufficient evidence of express malice to support his conviction of first degree murder in connection with Baby Girl Bunyard. Our review of the record persuades us that there was substantial evidence of express malice to support this conviction. When sufficiency of the evidence is challenged on appeal, the court must review the entire record in a light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574, 99 S.Ct. 2781]; People v. Barnes (1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110].) If the evidence reasonably justifies the finding of the trier of fact, the reviewing court’s opinion that this evidence could also be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649]; People v. Redmond (1969) 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321].) A finding of first degree murder on a theory of premeditation and deliberation is proper only when the slayer killed as the result of careful thought and weighing of considerations, as a deliberate judgment or plan, carried on coolly and steadily, especially according to a preconceived design. (People v. Anderson (1968) 70 Cal.2d 15, 26 [73 Cal.Rptr. 550, 447 P.2d 942]; People v. Rowland (1982) 134 Cal.App.3d 1, 7 [184 Cal.Rptr. 346].) The type of evidence which sustains a finding of premeditation and deliberation falls into three categories, one of which is “planning” activity: facts prior to the killing which would show that the defendant was engaged in activity directed toward the killing, or had a preconceived design to take the victim’s life. (Anderson, supra, 70 Cal.2d at pp. 26-27; People v. Alcala (1984) 36 Cal.3d 604, 625-626 [205 Cal.Rptr. 775, 685 P.2d 1126]; Rowland, supra, 134 Cal.App.3d 1, 7-8.) In response to defendant’s claim, the Attorney General submits that (1) the same evidence that demonstrates defendant’s deliberate and premeditated decision to kill Elaine also constituted sufficient evidence of his plan and intent to kill the baby she was carrying, (2) that defendant has not challenged the sufficiency of the evidence of intent to kill with respect to Elaine, and (3) that it is not possible that defendant, living with his nine-month pregnant wife at the time, could have intended to kill only her, and not have intended to kill the baby as well. We agree with the Attorney General that the record shows substantial evidence of specific intent to kill Baby Girl Bunyard, i.e., express malice. Popham’s testimony established that defendant’s murder plan was that his pregnant wife should die by means of a close-range shotgun blast to simulate a “suicide.” The record also shows that defendant conceived of this plan knowing that his wife was pregnant and that he provided the shotgun. Additionally, Popham’s testimony established that defendant continued to urge Popham to carry out the murder plan as the baby’s birth drew nearer, and agreed to Popham’s choice of November 1 as the date knowing that Elaine was due to deliver at any time. In sum, there seems to be more than substantial evidence supporting the conviction of defendant for the first degree murder of Baby Girl Bunyard; indeed, it is inconceivable that defendant intended to kill Elaine and not her unborn child under the facts of this case. B. Ineffective Assistance of Counsel Defendant next argues that trial counsel was inadequate for failing to object to portions of two letters which Elaine wrote—one to Sarah Pender, and one to defendant—which were read to the jury just before the prosecution called Sarah Pender as a witness. Defendant complains that the letters as a whole were inadmissible, particularly those portions commenting unfavorably on his credibility and character, and that defense counsel’s apparent tactical reason for not objecting to the letters fell outside the range of reasonable competence and prejudiced the defense, requiring reversal. To establish ineffective assistance of counsel, a convicted defendant must show that his counsel’s representation was deficient, i.e., “fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052]; accord, People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal.Rptr. 404, 729 P.2d 839].) Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed. (People v. Pope (1979) 23 Cal.3d 412, 424-426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) As our high court in Strickland stated, “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” (466 U.S. at p. 689 [80 L.Ed.2d at pp. 694-695], italics added; accord, Kimmelman v. Morrison (1986) 477 U.S. 365, 383 [91 L.Ed 2d 305, 325, 106 S.Ct. 2574].) We emphasized in Ledesma, however, and reiterate here, that deference is not abdication, and “[deference] must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.” (Ledesma, supra, 43 Cal.3d at p. 217.) Defendant is correct in his assertion that the letters at issue contain specific instances of past lies by defendant, as well as general statements indicative of bad character. Elaine refers to defendant in her letters as “evil” and “tricky” and describes defendant’s behavior as duplicitous and hurtful in his behavior towards her, Sarah Pender, and other loved ones. We also agree with defendant that the letters were offered for the truth of what they stated and were hearsay, and any conceivable nonhearsay purpose may well have been outweighed by the prejudicial effect warranting exclusion under Evidence Code section 352 had defendant so requested. Additionally, trial counsel could have properly objected to the admissibility of the letters, or portions thereof, as inadmissible character evidence, given the fact that defendant never introduced evidence of good character. (See, e.g., Evid. Code, §§ 787, 1102; People v. Anderson (1978) 20 Cal.3d 647, 649-650 [143 Cal.Rptr. 883, 574 P.2d 1235]; People v. Wagner (1975) 13 Cal.3d 612, 618-620 [119 Cal.Rptr. 457, 532 P.2d 105]; People v. Terry (1970) 2 Cal.3d 362, 399-400 [85 Cal.Rptr. 409, 466 P.2d 961].) In the instant case, trial counsel not only failed to object to admission of any part of Elaine’s letters, but in fact stipulated to their admission. Although there was no discussion on the record regarding the letters’ admissibility or defense counsel’s possible tactical reasons for not objecting to them, a strong indication of defense counsel’s reasoning appears in closing argument to the jury. He told the jurors that if the prosecutor had not read the letters to them, he would have done so himself because the letters showed “absolutely” no reason or motive for defendant to kill his wife. Defense counsel further argued that even though defendant was a “louse” (defense counsel’s words), the letters showed that there “obviously was something good in Jerry Bunyard” since Elaine still loved him and considered him the “best friend she ever had” despite knowing of his affair with Sarah Pender and his penchant for lying, and that defendant would have no reason to kill Elaine since defendant “never would find another woman like Elaine who would openly allow him to have his two women.” Defendant derides trial counsel’s tactical choice as bizarre, unreasonable and incompetent, claiming that the letters provided no assistance to his case but rather only prejudiced the jury against him by portraying him as a “louse” and a liar. Defendant claims this was particularly prejudicial where, as here, the defense hinged heavily on the jury’s assessment of the defendant’s credibility. The Attorney General contends that while the letters arguably diminished defendant’s image by revealing him to be a selfish, two-timing cad, the jury received that picture of defendant from other evidence in the case as well, and the letters assisted the defense in dispelling two plausible motives for murder: freedom from an angry, unforgiving wife, and suspicion that the defendant was not the baby’s father. The letters do portray defendant in a particularly damaging light. Defendant is described as a callous, self-centered chronic liar who openly cheated on his loyal and forgiving wife, manipulated her to cover his lies to Sarah Pender, and regularly hurt, used and lied to people to obtain his goals. It is difficult to see how the jury could have reacted favorably to defendant as a witness, after listening to these telling words from the grave. We are unwilling, however, to second-guess the informed tactical decision of trial counsel to stipulate to the admission of these letters. Admission of the letters might have been sound trial strategy in the sense argued by the Attorney General—that they tended to nullify two plausible motives to kill—in a case where motive was definitely a prominent issue, and lack of motive to kill was a major aspect of the defense case. Additionally, as the Attorney General notes, even without the letters the defense at trial was faced with defendant’s image as a “louse” and liar— which had to be dealt with in some effective manner. From Sarah Pender, the jury would necessarily have become aware of defendant’s capacity for deceit. Her testimony established that defendant was less than candid about his marital status, first implying he was single by saying he was living with his father, subsequently giving the impression he was married but separated, and then telling Sarah that he had filed for divorce when in fact he had not. In addition to defendant’s blatant two-timing of his pregnant wife, defendant’s physical abuse of Elaine, manifest from several sources, also demonstrated his lack of good character. Admission of the letters enabled trial counsel in closing to argue that despite these severe character flaws, defendant did not have any reason or motive to kill his wife or unborn child since this “good woman” loved and forgave him and he fathered the child she was carrying. Although certainly fraught with considerable risk to defendant’s credibility, we cannot say that trial counsel’s tactical decision fell outside the wide range of reasonable professional assistance. Hence, defendant’s conviction may not be reversed for ineffective assistance of counsel. C. Denial of Requests to Sequester Jury On three separate occasions—during voir dire, the People’s case-in-chief, and just prior to submission of the case to the jury—defendant requested sequestration of the jury to protect against improper influence due to media publicity. The court denied all the requests, but strongly admonished the jury to avoid reading, watching, or listening to all news accounts of the case. Defendant complains that the trial court’s denial of his requests to sequester the jury constituted prejudicial error. Statutes and past cases indicate that sequestration is discretionary with the trial court even in capital cases (See §§ 1121, 1128; People v. Ruiz, supra, 44 Cal.3d at pp. 615-617; People v. Burwell (1955) 44 Cal.2d 16, 33 [279 P.2d 744]; People v. Erno (1925) 195 Cal. 272, 282 [232 P. 710].) Defendant does not argue that there were any special problems in this case that rendered the trial court’s denial of his sequestration requests an abuse of discretion, but asserts that in light of the nature of capital cases we should interpret the relevant statutes to require sequestration on request in all capital cases. Defendant points out that 17 states have statutes or judicial rules which require sequestration of the jury throughout the trial in a capital case upon request, and that 13 additional states require sequestration during deliberations. Defendant particularly relies on Indiana decisions which have adopted the rule defendant proposes—mandatory sequestration on request in capital cases—in conjunction with a discretionary statute similar to section 1121. (See Lowery v. State (Ind. 1982) 434 N.E.2d 868, 870; Smith v. State, supra, 475 N.E.2d 1139, 1143.) Defendant’s analogy to Indiana law appears inapposite. As pointed out by the Attorney General, the mandatory sequestration rule adopted by the Indiana Supreme Court in Lowery, supra, 434 N.E.2d 868, was based upon longstanding common law principles which had existed in that state well before any statute addressed the subject of jury separation. In this state, however, the cases have long interpreted the relevant statutes to vest discretion in the trial court to permit the jury to separate in capital and noncapital cases alike. (See, e.g., People v. Chaves (1898) 122 Cal. 134, 139-140 [54 P. 596]; People v. Witt (1915) 170 Cal. 104, 109 [148 P. 928]; People v. Erno, supra, 195 Cal. 272, 282-283; People v. Burwell, supra, 44 Cal.2d 16, 33.) Moreover, the Legislature has not modified sections 1121 and 1128 to signal its disapproval of this court’s interpretation. Thus, reconstruction of our jury separation and sequestration statutes to adopt the Indiana rule in capital cases would be inconsistent with California common law and legislative intent. Additionally, it is clearly the Legislature’s prerogative to enact trial procedures such as are embodied in sections 1121 and 1128, and, once it has done so, neither this nor any court may substitute its judgment for that of the Legislature, in the absence of a constitutional violation. (People v. Dillon (1983) 34 Cal.3d 441, 463 [194 Cal.Rptr. 390, 668 P.2d 697]; Estate of Horman (1971) 5 Cal.3d 62, 77 [485 P.2d 785].) Although defendant contends that sequestration of the jury in capital cases is a constitutional right, i.e., required by the due process clause of the Fourteenth Amendment, he cites no express authority for that proposition. Moreover, defendant does not even attempt to show he was prejudiced by denial of his requests to sequester the jury. As stated by our high court in Estes v. Texas (1965) 381 U.S. 532 at page 542 [14 L.Ed.2d 543, 550, 85 S.Ct. 1628], on which defendant relies: “[I]n most cases involving claims of due process deprivations ... a showing of identifiable prejudice to the accused” is required. . . .” The record simply cannot support such a showing and defense counsel admitted at trial that there was no indication that the jurors had violated the court’s numerous and strenuous admonitions against reading, watching or listening to anything publicized about the case. Defendant nonetheless urges us to find “inherent prejudice,” i.e., that the procedure of discretionary sequestration in capital cases “involves such a probability that prejudice will result that it is deemed inherently lacking in due process.” (Estes, supra, 381 U.S. at pp. 542-543 [14 L.Ed.2d at p. 550].) Unlike Estes, in the case at bar there was no televising of the trial, or disruption of proper courtroom decorum by news media. (Cf. Estes, supra, 381 U.S. at p. 544 [14 L.Ed.2d at p. 551].) In the absence of such disruptive influences, we reject defendant’s contention that discretionary sequestration accompanied by frequent admonishment of the jury to avoid media exposure is a procedure inherently lacking in due process. We hold that prejudice will not be presumed in such circumstances. D. Prosecutorial Comment on Excluded Evidence Defendant next contends that the court erred by allowing the prosecutor to refer, in argument, to a portion of a statement of defendant ruled inadmissible under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. Even if we assume that the trial court erred in this respect, any error was not prejudicial. One of the proposed prosecution witnesses was Sergeant Johnson, who was present when defendant made a statement to several sheriff’s deputies on November 1, 1979. Before Johnson was actually called to the stand, defendant moved to exclude all statements made by defendant on November 1 on the ground that defendant had not been given a Miranda admonition nor had waived his Miranda rights. The trial court scheduled a hearing on the motion, and Sergeant Johnson did not immediately take the stand. Thereafter, before the trial court had ruled on the Miranda issue, Sarah Pender testified on behalf of the prosecution that she had been introduced to Popham as Earlin Laudeman, and'that she had remembered or realized this fact when she overheard defendant give the name “Laudeman” to deputies on November 1, the day of the murders. At that point, defendant did not object to Pender’s testimony on any ground, and, in particular, did not claim that Pender’s reference to defendant’s November 1 statement was an impermissible “fruit” of an alleged Miranda violation. Later in the trial, after holding a hearing on the Miranda question, the trial court concluded that defendant’s November 1 statements to Sergeant Johnson were inadmissible under Miranda. Thereafter, at the conclusion of the trial but before argument, defense counsel sought to preclude the prosecutor from referring to the portion of Pender’s testimony in which she referred to defendant’s November 1 statement. In arguing that motion, both the prosecutor and defense counsel erroneously indicated that defendant’s motion to exclude the November 1 statements had been made after Pender had testified; in fact, the motion had preceded the testimony but the trial court’s ruling on the motion had come after the testimony. The trial court, in apparent reliance on counsel’s erroneous recollection, denied defendant’s motion to preclude prosecutorial argument on this evidence. As noted, defendant now claims that the trial court erred in failing to limit the prosecutor’s argument. Where there is a violation of defendant’s Fifth Amendment rights under Miranda, the statements of the accused and any “fruits” thereof are inadmissible. (People v. Braeseke (1979) 25 Cal.3d 691, 703 [159 Cal.Rptr. 684, 602 P.2d 384].) Although the record clearly shows that defendant had moved to exclude his November 1 statements as inadmissible under Miranda prior to Sarah Pender’s testimony, defense counsel failed to object to a “fruit” of that inadmissible statement—Sarah Pender’s overhearing of defendant’s reference to Popham as “Laudeman” at the sheriff’s office on November 1, 1979. Any claim of error may therefore be deemed waived. (Evid. Code, § 353; People v. Rogers, supra, 21 Cal.3d at p. 548.) Even if this claim has not been waived, it is not entirely clear that the court erred in permitting the prosecutor to comment on Sarah Pender’s testimony which referred to the November 1 statements. Defense counsel made no motion to strike the relevant portion of Pender’s testimony and thus the evidence about which defendant now complains was still in evidence, and arguably could be the subject of appropriate comment by the prosecutor. In any event, assuming that the court did err in denying defendant’s motion to bar prosecutorial comment on this evidence, we conclude that the error was harmless. The prosecutor did not use the statement to suggest that defendant was evasive or manipulative towards the sheriff’s deputies, but argued that defendant’s evasiveness about Popham’s name reflected defendant’s lack of candor, manipulation, and dishonesty towards Sarah Pender. As pointed out by the Attorney General, however, the inference of evasiveness towards Sarah Pender on this point was quite weak. Since defendant testified that he had consistently referred to Popham since childhood as Laudeman, and Popham himself testified that he used the name Laudeman until he entered military service, defendant’s introduction of Sarah Pender to Earlin Popham as Earlin Laudeman and defendant’s reference to Popham as Laudeman in Pender’s presence at the sheriff’s office does not evince evasiveness or deceit. We conclude that the People have shown beyond a reasonable doubt that the alleged error did not contribute to the verdict. (People v. Murtishaw (1981) 29 Cal.3d 733, 756 [175 Cal.Rptr. 738, 631 P.2d 446].) E. Prosecutorial Misconduct Defendant next complains that the prosecutor committed misconduct by arguing that defendant was an “interested party” and that the jury should consider his interest and motive to lie when assessing his credibility. By analogy to early cases holding that the court in its instructions may not single out and specifically instruct on the defendant’s interest because this throws the court’s judicial weight into the scales against the defendant (see, e.g., People v. Maughs (1906) 149 Cal. 253, 262-263 [86 P. 187]) defendant reasons that prosecutorial argument which singles out the defendant’s interest and motive to lie carries comparable weight and is misconduct warranting reversal. Defendant cites as misconduct that which the prosecutor was entitled to do. In People v. Jenkins (1974) 40 Cal.App.3d 1054 at pages 1057-1058 [115 Cal.Rptr. 622], comments concerning defendant’s bias and motive to lie were deemed proper because such comments were fairly derived from the evidence. In Jenkins, the prosecution established that Jenkins had voluntarily given a statement to the police prior to trial, in which he never mentioned that the victim had purportedly pulled a knife on him before Jenkins killed him. Here, defendant denied that he ever offered to pay either Pop-ham or Johnson to kill his wife despite the testimony of each to the contrary. In so doing, defendant placed his denial directly in issue. That denial, like Jenkins’s failure to mention the knife, “was ground for comment.” (Id. at p. 1058; see also Evid. Code, § 780, subd. (f) and CALJIC No. 2.20 (1980 rev.).) Defendant further argues that just as a prosecutor is precluded from exploiting defendant’s decision to defend by not taking the stand (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]), a prosecutor should not be allowed any advantage in argument—and defendant should not start with the substantial strike against him that all of his testimony is inherently suspect—simply because the defendant has chosen to defend by taking the stand. As pointed out by the Attorney General, however, defendant’s argument ignores the fact that the direct conflict between his testimony and that of the assassin he hired placed each of their respective biases, interests, and motives in issue. Since defendant was clearly “a person who testified under oath,” defendant was a “witness” and the jury was free to “consider anything in reason that tended to prove or disprove the truthfulness of his testimony, including the existence or nonexistence of a bias, interest or other motive. . . .” (See Evid. Code, § 780, subd. (f) and CALJIC No. 2.20.) Thus, it was appropriate for the prosecutor to argue that the jury could consider whether defendant had a motive to lie about hiring Popham, arising from his interest in the outcome, i.e., to avoid conviction, just as it was appropriate for defense counsel to argue that Popham lied in exchange for the government’s promise not to seek the death penalty against him. Moreover, the prosecutor never suggested that the jury should look at defendant’s status as a party or at his interest in the outcome as the sole determinant of his credibility. In briefly referring to defendant as an “interested party,” the prosecutor significantly characterized this status as “one of the things, one of the guides to credibility of a witness that you have to use.” (Italics added.) The remainder of her argument emphasized other factors traditionally bearing on credibility, such as defendant’s lies, inconsistent statements, admissions of untruthfulness, demeanor, and the character and quality of his testimony as contrasted with the demeanor of prosecution witnesses and quality of their testimony. (See CALJIC No. 2.20.). Defendant also unpersuasively argues that the prosecutor’s comments violate his federal due process rights under Sandstrom v. Montana (1979) 442 U.S. 510, 523-524 [61 L.Ed.2d 39, 50-51, 99 S.Ct. 2450]. He asserts that the prosecutor’s emphasis on defendant being an “interested party” created a “presumption of guilt” and a presumption of interest and bias based solely on defendant’s status as defendant and on his interest in acquittal, which conflicts with the presumption of innocence thereby lessening the People’s burden of proof. We find no merit in defendant’s position. The jury in the case at bar was not instructed by the court that there was any presumption of interest and bias; to the contrary, the instruction upon which the prosecutor (CALJIC No. 2.20) based her argument relating to credibility clearly left the jurors a choice as to whether to find any existence of motive or interest on the part of any witness, including defendant. Nor does the record show any argument from the prosecutor that the jury should presume guilt as the result of his status as the defendant or his interest in acquittal. We perceive no violation of due process under the facts presented. F. Asserted Instructional Errors 1. Oral Admissions Defendant argues that the court erred in failing to sua sponte instruct jurors, pursuant to CALJIC Nos. 2.71 and 2.71.7, that evidence of oral admissions and statements should be viewed with caution. Both Pop-ham and Johnson testified concerning statements allegedly made by defendant to each of them soliciting them to kill Elaine in return for considerable sums of money. While conceding that defendant’s solicitations of both Pop-ham and Johnson could be viewed as admissions, the Attorney General nonetheless argues that no error occurred because the purpose behind these cautionary instructions—to warn the jury about possible flaws in the accuracy and meaning of a witness’s testimony, not the truthfulness of the witness—had no applicability where the true issue was one of credibility, i.e., did defendant solicit Popham and Johnson to kill his wife at all, rather than the precise words used by defendant, or whether Popham or Johnson remembered or reported them accurately. The Attorney General’s arguments are convincing on the issue of prejudice, but not as to error. In People v. Beagle (1972) 6 Cal.3d 441 at page 455 [99 Cal.Rptr. 313, 492 P.2d 1], we held the court must instruct sua sponte that “evidence of oral admissions must be viewed with caution . . . .” Under Beagle, the court’s failure to so instruct was error. The error, however, was not prejudicial. As we explained in Beagle, “The omission . . . does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (6 Cal.3d at p. 455.) We agree with the Attorney General that there was no issue of conflicting evidence in this case concerning the precise words used, their meaning or context, or whether the oral admissions were remembered and repeated accurately. (Cf. People v. Bemis (1949) 33 Cal.2d 395 [202 P.2d 82]). Defendant simply denied soliciting Popham or Johnson to kill his wife. At issue was whether Popham or Johnson were credible witnesses or had fabricated their testimony concerning defendant’s solicitations. The jury was properly instructed to view Popham’s testimony, as an accomplice, with distrust (CALJIC No. 2.18), that Johnson’s prior felony conviction could be considered in weighing his credibility (CALJIC No. 2.23), and that prior inconsistent statements, inconsistent testimony, feigned loss of memory, and wilfully false testimony would all bear on credibility (CALJIC Nos. 2.13 and 2.21). These instructions adequately alerted the jury to view the testimony of Johnson and Popham with caution. We believe that a more favorable result was not reasonably probable absent the error. 2. “Other-crimes” Evidence Defendant contends that the court erred by failing to instruct sua sponte on the limited admissibility of Johnson’s testimony concerning defendant’s offers to pay him to kill Elaine. Defendant argues that such testimony constituted evidence of prior criminal conduct, i.e., solicitation to commit murder (§ 653f, subd. (b)), and that the court should have instructed the jury pursuant to CALJIC No. 2.50 that such evidence was admitted solely for the limited purposes of corroborating Popham’s testimony and proving that defendant had undertaken a plan to hire someone to kill his wife, and not to prove a general criminal disposition. In People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], we concluded that generally the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct. We fashioned a limited hypothetical exception to the general rule, which we found inapplicable to Collie itself, for the “occasional extraordinary ca