Full opinion text
Opinion PANELLI, J. Appellant Richard Boyde was convicted of robbery and kidnapping for robbery and found to have personally used a knife in perpetrating these offenses upon a gas station attendant in Riverside on January 5, 1981. (Pen. Code, §§ 211, 209, subd. (b), 12022, subd. (b).) In addition, Boyde was convicted of robbery, kidnapping for robbery, and first degree murder of the clerk in a 7-Eleven store in Riverside on January 15, 1981. (§§ 211, 209, 189.) The jury found two special circumstances true (murder during the commission of robbery (§ 190.2, subd. (a)(17)(i)) and during the commission of kidnapping in violation of section 209 (§ 190.2, subd. (a)(17)(ii))), found that Boyde personally used a firearm in perpetrating all three offenses (§ 12022.5), and specially found that Boyde “personally killed [the victim] with express malice aforethought and premeditation and deliberation.” The jury fixed the penalty at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) I. Facts A. The Gas Station Robbery. About 2 a.m. on January 5, 1981, the attendant at a Union 76 gas station in Riverside was robbed of $50 and his watch by a man who had entered the office and displayed two knives. Following the robber’s directions, the attendant, Baker, opened the trunk of his car (which was full of miscellaneous items), closed the trunk, turned out the lights, closed up the station, and drove away with the robber in Baker’s car. They drove to a park where they smoked a cigarette and talked. The robber said he was out of a job, having just returned from college in the east, and he needed the money to feed his two-month-old baby. He warned Baker not to run away and said he did not plan to use the knives but only had them for self-protection in case Baker tried to “be a hero.” The robber then had Baker drive to a doughnut stand where he bought Baker a doughnut. They began walking down the street together after they could not get the car started. During this walk the robber indicated he expected to get caught and asked Baker to give a false description to police. Baker said he would not, and shortly thereafter the robber abruptly turned and ran away. Baker gave a description to police and later selected Boyde’s picture from a photo lineup. He also identified Boyde at trial. B. The 7-Eleven Robbery-homicide. About 4 a.m. on January 15, 1981, Riverside police received a report that the 7-Eleven store on Indiana Street was deserted. Investigating officers found a bullet hole in the store window. With the help of the owner it was determined that $33 had been taken from one of the cash registers and that several hats and hatbands were missing. Three and one-half hours after the initial report, a local citizen found a body in a nearby orange grove and reported his finding to police at the 7-Eleven store. Investigators found the body, later identified as the store’s night clerk Dickie Gibson, lying on its back in the dirt. Detective Callow noticed a gunshot wound in the victim’s forehead, a slight wound on the small finger of his right hand, and abrasions on his knees. There were five identifiable footprints at the scene, including an impression left by a flat-soled left shoe near the victim’s head and several impressions with a diamond pattern located four feet from the body, near its feet. The autopsy showed the victim was killed by a bullet wound above the right ear, which was probably fired from a .22-caliber gun from a distance of more than 16 inches. There were also gunshot wounds to the fingers of the right hand. The shot to the forehead had not penetrated the skull and was not the cause of death, but the nature of the wound indicated it had been inflicted from close range, probably six to twelve inches. The abrasions on the hands and on the knees could have been caused by a hard dirt or asphalt surface. Death probably occurred between 3 a.m. and 5 a.m. on January 15. The victim’s brother testified that everything had appeared normal when he stopped by the store for a visit between 1 and 1:40 a.m. C. Appellant's Arrest and Statements to Police. Detective Knoffloch, who was investigating the 7-Eleven homicide, showed Boyde’s photo to Detective Callow, who was investigating the Baker robbery at the gas station as well as the homicide. After Baker selected Boyde’s photo from a photo lineup, Callow obtained a warrant to search Boyde’s home. The search recovered a distinctive watch which Baker identified as his. Boyde was placed under arrest on January 22 for the robbery and kidnapping of Baker. At 8:15 that evening, Callow found Boyde yelling and creating a disturbance in the holding cell. Callow described Boyde as “very, very hyper”; his arms were clutched across his chest and he was physically shaking. Boyde told Callow he could not stand being locked up. Callow took him to an interview room and gave him cigarettes and coffee. After advisement as required by Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], Boyde waived his rights and agreed to discuss the gas station robbery with Detective Callow. Callow informed Boyde he was under arrest for this robbery and that the watch recovered from Boyde’s home had been stolen in it. Boyde denied involvement and claimed he had bought the watch from “Moe.” Confronted with information that clothing recovered from his home matched the description of the robber’s clothes, Boyde claimed he had loaned the clothes to “Moe.” Told that the victim had selected his picture in a photographic lineup, Boyde explained that “Moe” looked quite a bit like him. Finally, confronted with Callow’s assertion that police had sufficient evidence to prove he committed the robbery, Boyde said, “you got me.” Boyde then became disturbed at the prospect of returning to prison or jail and asked if there were any way he could avoid it. Callow told him “six or seven times” the police department could not make any such promises. Boyde then asked what would happen if he had information—specifically about the football coach at the 7-Eleven store who was killed. Callow said that he would be willing to relay his information to the district attorney’s office. Boyde then told Callow that he had been at his nephew Carl Franklin’s house between 2:30 and 3 a.m. when his nephew and Big Mike drove up in Big Mike’s car. Big Mike got out, holding a paper bag with money in it and a gun. Eventually, Ellison told Boyde the two men had held up the 7-Eleven store on Indiana Street and had taken the clerk to an orange grove and shot him in the head. Boyde identified Big Mike’s gun as a .22-caliber revolver. Unable to find any Department of Motor Vehicles or police department record of “Carl Franklin” or “Big Mike,” Callow asked Boyde if he would be willing to show officers Carl Franklin’s house. Boyde agreed and directed the officers to Ellison’s house. Boyde was not able to find Big Mike’s house. At 8:30 the next morning Detectives Ropac and Lund, also unable to find any information on “Big Mike” or “Carl Franklin,” confronted Boyde with their belief that he had been untruthful with Detective Callow. Boyde agreed to talk further, and a second Mirandized interrogation was conducted and tape-recorded. This time Boyde admitted he had been with Ellison from 11 p.m. on January 14 through the time of the homicide. Boyde explained that Ellison had come to Boyde’s apartment complex to borrow some gas money from his grandmother. Ellison invited Boyde to go riding with him in his mother’s car. The two rode to Ellison’s house in Hillside where they drank some beers with guys from the neighborhood, including Big Mike. The group broke up about 11:45, and Big Mike invited Boyde to go riding with him and Ellison. Boyde accepted but asked to be home early. The three drove to San Bernardino, around Riverside and then returned to Ellison’s house. There Ellison pulled out a loaded .22-caliber hand gun that belonged to Ellison’s mother, Otharean Owens. The three men drove to the 7-Eleven store at Indiana and Monroe Streets so that Boyde could buy cigarettes and a soda. Both Boyde and Big Mike got out of the car, but Big Mike went into the store alone while Boyde and Ellison waited outside. It was late. The clerk unlocked the door to let Big Mike in, and Big Mike walked to the back of the store. As Boyde was returning to the car, he looked up in time to see Big Mike pull the gun on the clerk who raised his hands and then put money from the cash register into a bag. Big Mike then brought the clerk outside and told him to get in the back seat of the car. The clerk did not close the car door completely, and as Big Mike entered the other rear door, the clerk threw a stereo speaker at him and ran from the car. Big Mike fired once and then chased him. The clerk fell near the side of the store, and Big Mike caught up with him. They' returned to the car, and Big Mike told Ellison to drive up Monroe toward the orange groves. Boyde tried to convince Big Mike to let the clerk go, but he refused. They stopped the car on the pavement near the groves. Big Mike and the clerk walked into the trees. The clerk did not try to escape but asked whether he would be shot. Big Mike said no. Ellison turned the car around. From 25 to 30 feet Boyde could see Big Mike force the clerk to get on his knees facing the trees and place his hands on top of his head. Big Mike stood behind. After Big Mike fired once, the clerk dropped his hands and turned partly around. Big Mike fired a second shot into the back of the clerk’s head, and he fell face forward in the dirt. Big Mike rolled the clerk’s body over and fired another shot into his head from about a foot away. The detectives expressed their skepticism at Boyde’s ability to describe the robbery in such detail if he had not been inside the store. Finally, Boyde broke down and admitted that he and Ellison had been in the store and there was no one named Big Mike involved. Boyde said he and Ellison had gone out that night for the purpose of committing a robbery because Ellison needed some money. Ellison had trouble selecting a target, and it was about 2:30 a.m. before he finally decided he wanted to rob the 7-Eleven store. They pulled into a nearby driveway, and Boyde took over the wheel. Both men entered the store, but Boyde had gone back outside before Ellison pulled the gun. They had never discussed kidnapping the clerk, but Ellison brought him out of the store and told him to get in the back seat of the car behind Boyde who was driving. When the clerk ran, it was Ellison who fired the gun and chased him. They drove to the orange grove where Ellison and the clerk got out. Boyde turned the car around and then got out and walked into the grove. Ellison forced the clerk to kneel with his hands on his head. The first shot missed; the clerk brought his hands down and looked at one of them. Then Ellison fired a shot into the back of the clerk’s head. The clerk fell forward. Boyde asked if he was dead. Ellison did not know and said he thought he better make sure. Ellison put the gun in his pocket, grabbed the clerk’s body by the legs and rolled him over so that the body was parallel to a ditch. The clerk was unconscious and making no audible sounds. Ellison shot him again in the head. Boyde drove them back to Ellison’s house where Ellison stashed the used shells and the gun in the garage. Ellison took Boyde home. Boyde described the kind of money taken in the robbery (a few ones, two fives and some change). He said he had worn tennis shoes but didn’t remember where that particular pair was. He said Ellison was wearing canvas-topped, rubber-soled walking shoes. D. Ellison’s Arrest and Statements. Based on Boyde’s statement, the officers arrested Ellison and obtained warrants to search his house and car. Officers seized a .22-caliber revolver, two pairs of tennis shoes, and the car stereo speaker Boyde had described. The bullet fragments recovered from the victim could not be positively matched with the gun because of damage to the fragments. The tires of Ellison’s mother’s car were found to be consistent with tracks at the orange grove, but were not positively matched. One pair of size 13 tennis shoes was consistent with the diamond pattern footprints at the scene but could not be positively matched. The other tennis shoes were dissimilar to impressions at the scene. It was determined that Ellison wore a size 13D shoe and Boyde wore a size 9 1/2C. The flat soled shoe prints near the victim’s head were made by a shoe which was in the range of size 7 to size 9. In an initial interview just after his arrest Ellison told police he had gone to bed at 10 p.m. on January 14 and said he knew nothing about the 7-Eleven robbery. In a second interview several hours later, after police had recovered the gun and some shoes from his house, Ellison continued to maintain his ignorance of the events. Officers then played portions of a tape in which Boyde stated that Ellison had shot the clerk. Ellison finally admitted he was there and said the shooting had happened “just like he [Boyde] said.” Ellison then gave a statement which generally paralleled Boyde’s description of the incident. It differed, however, in several important details. Ellison said the clerk tried to run away once coming out of the store, a second time from the car and a third time in the orange grove. Ellison placed the clerk alone in the back seat of the car, while Boyde had said Ellison rode in the back with the clerk. Ellison said he had fired two shots, not three, but did not know where the clerk had been wounded. It was dark, and Ellison closed his eyes when firing the first shot. Ellison said he discarded the spent cartridges in the orchard and that Boyde had hidden the gun in Ellison’s mother’s room. The interviewing officers expressed doubt about the truthfulness of the statement because Ellison did not know enough of the details, but Ellison stuck to it. He agreed to submit to a polygraph the following day. Ellison stuck to his story during the initial portion of his interview with the polygraph operator, but later recanted. He claimed he did not kill the clerk, but that Boyde did. He said they had gone to the 7-Eleven to “take the money and leave,” but Boyde had shot the clerk. Ellison then gave a detailed account of how the robbery came about. He claimed it was Boyde’s idea, that Boyde had asked him to bring the gun and he had done so, that Boyde had driven around and selected the store and then had Ellison drive during the robbery, that Boyde had explained afterwards that he had to kill the clerk because he was determined not to go back to prison. Ellison said he had gone into the grove to see what Boyde was doing and that he had turned the clerk over because Boyde told him to. Ellison was scared; he knew the man was dead. He said he had covered up for Boyde because he felt he bore half the responsibility because he had been present and because he knew Boyde would serve more time as a result of his prior conviction. II. Summary of Proceedings Boyde, 24, and Ellison, 19, were jointly charged in the robbery, kidnapping and murder of Dickie Gibson, the night clerk at the 7-Eleven store. Only Boyde was alleged to have personally used a firearm in these crimes. (§ 12022.5.) Boyde was also charged with the robbery and kidnapping of Baker, the gas station attendant, and three prior convictions were alleged against him. One of the prior offenses was the robbery and kidnapping of the night clerk at the same 7-Eleven store on July 13, 1976. The trial court heard extensive pretrial motions, including Boyde’s motion to sever the counts alleged against him (§ 954), Boyde’s motion to exclude evidence of his prior crimes (Evid. Code, § 1101), both defendants’ motions to sever their trials (§ 1098), to suppress their incriminating statements to police (for asserted involuntariness and Miranda violations) and to exclude portions of those statements implicating the nondeclarant defendant in the Gibson robbery-murder. (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]; People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265].) Codefendant Ellison waived a jury trial several days before the hearing on the motion to sever trials. In light of that development, the court denied the motion to sever trials and granted defendants’ motions to exclude each other’s extrajudicial statements from their trials. The court also ruled that Boyde’s jury could hear Ellison’s anticipated defense testimony. Following lengthy voir dire, the trial proceeded with the prosecution’s case-in-chief against Boyde. The prosecutor presented testimony by Baker describing the nature and circumstances of the January 5, 1981, gas station robbery and Baker’s in-court identification of Boyde as the perpetrator. The officers who investigated both 1981 crimes testified concerning fruits of the gas station robbery found in Boyde’s home, the physical evidence at the 7-Eleven store, the physical evidence at the site where Gibson’s body was found and the autopsy results. Boyde’s three tape-recorded statements to investigating police officers were played for the jury. Otharean Owens— Ellison’s mother and Boyde’s sister—testified that during a conversation at the jail, Boyde admitted to her that Ellison was not involved in the killing. On this state of the evidence the prosecution rested its case-in-chief. Both defendants moved for acquittal. (§§ 1118 and 1118.1.) The court denied both motions. Boyde’s defense consisted only of the testimony of Deputy District Attorney Robert Spitzer, which was offered in support of Boyde’s claim that his incriminating statements were involuntary because they were elicited by a promise of lenience. (People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672].) Ellison testified in his own defense before the jury. Unlike his prior statements to police, Ellison’s trial testimony placed the blame for the 7-Eleven store robbery and killing entirely on Boyde. Ellison said he had given his mother’s revolver to Boyde on the day before the 7-Eleven robbery, after Boyde asked where he could get a gun. Boyde asked Ellison to help commit a robbery, but Ellison hesitated. On the night of the 14th Ellison went to his grandmother’s to borrow gas money. There he picked up Boyde. They drove to Boyde’s girlfriend’s house in San Bernardino, then returned to Riverside. Boyde asked Ellison to drive to a 7-Eleven store in La Sierra. When they got there Boyde told Ellison to rob the store. Ellison refused and pushed the gun away as Boyde tried to give it to him. As they drove back to Ellison’s house, Boyde angrily called Ellison names. Ellison was frightened of Boyde. Some time later—around 2 a.m.—Boyde asked to be driven home and said he wanted to stop for cigarettes. At that time Ellison was aware of the gun lying on the front seat. Ellison, knowing the Indiana Street 7-Eleven would be open, drove there. Boyde went into the store for cigarettes while Ellison stayed in the car. Ellison saw Boyde draw the gun and rob the clerk. Ellison got scared and started to back the car out of the parking space, but Boyde came to the door and told him to stop. Boyde brought the clerk outside, put him in the rear passenger side seat, and then walked to the driver’s side rear door. As he was getting into the other rear seat, the clerk threw a loose speaker at Boyde and bolted from the car. Boyde fired a shot and chased him. Boyde brought the clerk back to the car at gunpoint. The clerk again got into the rear seat, and Boyde got into the front passenger seat. Boyde told Ellison to drive. When they reached the orange groves, Boyde told Ellison to stop and turn off the lights. He ordered the clerk out of the car and told Ellison to turn the car around. Ellison did as he was told, returned to the spot where he had left the others, and went into the grove to find Boyde. He heard a shot. When he found Boyde and the clerk, the clerk was lying on the ground breathing loudly. Boyde told him to turn the clerk over, but Ellison refused and ran for the car. The car stalled; before Ellison could get it started he heard another shot. Boyde got in, saying, “let’s get out of here.” Ellison asked why Boyde had shot the clerk, and Boyde said he would not go back to prison. Boyde told Ellison he had better not talk, that he was just as much at fault, and reminded him that the gun belonged to his mother. Ellison took Boyde home, left the gun with him, and then went home himself. Ellison stated he did not know Boyde was going to rob the 7-Eleven on Indiana Street, did not know Boyde would kidnap the clerk, did not shoot the gun, and did not touch the clerk’s body. As to his feelings about the clerk’s death, Ellison testified, “if I could give my life to bring him back, I would do it.” Questioned about his earlier inconsistent statements to police, Ellison testified that he tried to take the blame for Boyde because he was scared of the consequences of his own involvement and because he did not want to see his uncle go back to prison. On cross-examination Boyde’s counsel emphasized Ellison’s admission that he had given the gun to Boyde, Ellison’s initial willingness to help with a robbery, and Ellison’s motive for committing a robbery: Even though Ellison worked steadily for the City of Riverside, he had little or no money left after helping his mother out with the family expenses. Counsel challenged Ellison’s claim that he acted out of fear of Boyde and pointed out that Ellison drove the car and selected a store he knew was open at 2 a.m. Counsel questioned Ellison extensively regarding his actions in the orange grove and compared Ellison’s account to the photographic evidence showing footprints consistent with Ellison’s very near the clerk’s feet. Boyde’s counsel and the prosecutor jointly moved to introduce the transcripts and tape recordings of Ellison’s extrajudicial statements as prior inconsistent statements (Evid. Code, § 1235), and the tapes were played for the jury. Ellison’s only other defense witness was Lucinda Taylor, his half-sister. Taylor testified that Boyde had come by Ellison’s house on January 15 and that he seemed nervous. The two had sat in Ellison’s mother’s bedroom watching television for a while. Boyde sent her out of the room on contrived errands at least three times. In rebuttal of Ellison’s evidence, Boyde called his wife Cynthia Boyde, who contradicted Otharean Owens’s testimony about Boyde’s alleged visiting-room admission of Ellison’s innocence. Boyde also called his sister, Helen Kendricks, who corroborated Cynthia Boyde’s testimony, and Preston Scott, who testified that Boyde was with him in Whittier for the whole day of January 15 and that he was not at Ellison’s house that day. Finally, Boyde testified in his own defense on rebuttal. Boyde placed primary blame for the robbery and complete responsibility for the killing on Ellison. Boyde testified that Ellison had talked with him about Ellison’s frustration with his financial obligation to his mother and his need for more money to meet his personal expenses. Ellison proposed stealing the money he needed, but Boyde warned him of the dangers of doing so, including the possibility that he would be caught and sent to state prison. Nevertheless, on January 14 Ellison made up his mind to commit a robbery, and Boyde agreed to assist him. Ellison obtained the gun from his mother’s room. They met at Ellison’s grandmother’s and then drove to San Bernardino, back to Riverside and finally to La Sierra where Ellison knew of a possible target store. Once there Ellison realized he might be recognized because he often worked nearby and decided not to go through with the robbery. It was now about 2 a.m. and Boyde asked to be taken home. But Ellison wanted to visit a friend who lived in the apartments near the Indiana Street 7-Eleven. Boyde agreed since he wanted to buy cigarettes. After Ellison finished visiting his friend, he asked Boyde to drive. Boyde drove to the 7-Eleven and waited while Ellison went in for the cigarettes and a soft drink. Boyde started to follow Ellison into the store, but Ellison was already coming out with the clerk in front of him. He tried to put the clerk in the back seat, but the clerk ran. Ellison caught him and managed to get him into the car. He told Boyde to drive to the orange grove where he and the clerk got out and Ellison told Boyde to turn the car around. As he was turning the car, Boyde heard a shot from the grove. He returned to tell Ellison that he had seen another car up the road. When he found Ellison and the clerk in the orange grove, the clerk was lying face down in the dirt. Boyde had by then heard three shots in all. Ellison rolled the clerk over and, to make sure he was dead, fired the final shot into the clerk’s forehead. Boyde watched from 10 feet away. As they drove off, Ellison threw the spent shells out the car window. Ellison didn’t want to talk about what had happened. Boyde testified that he had not expected a killing to happen, that he did not intend anyone be killed and that he did not himself shoot the clerk. Boyde spent the following day with Preston Scott in Whittier; he was not at Ellison’s house. He denied ever telling Otharean Owens that Ellison was not involved in the killing. In spite of photographic evidence showing that the three sets of footprints in the orange grove which related to the crime were made by the clerk, tennis shoes similar in size and diamond tread pattern to Ellison’s, and a pair of fiat-soled shoes consistent with Boyde’s shoe size, Boyde testified that he had worn tennis shoes with a circular sole pattern on the night of the homicide. He explained that he could not have worn his dress shoes that night because his brother-in-law had borrowed them prior to January 14. But his own witness, Helen Kendricks, testified that her husband borrowed the suit and shoes after Boyde was arrested and that they had never been returned because something happened to them. The prosecutor went through the details of the three versions of the crime given in Boyde’s prior statements. On the stand Boyde admitted he could not see the shooting from the car (as he said in his second version) and claimed, for the first time, that he knew the details of the first two shots only because Ellison had told him exactly what happened. On the stand Boyde said he had lied when he told Detectives Ropac and Lund that he saw Ellison make the victim kneel and fire the first two shots. When questioned about the location of the various footprints—particularly the smaller sized, flat-soled prints near the victim’s head—Boyde responded only that neither he nor Ellison had worn such shoes. The jury found Boyde guilty of all charged oifenses and returned a special verdict that Boyde personally committed the homicide with malice, premeditation and deliberation. The court found Ellison guilty of all counts charged. At sentencing, however, the court found Ellison’s lesser culpability as an aider and abettor warranted striking the special circumstances. (People v. Williams (1981) 30 Cal.3d 470 [179 Cal.Rptr. 443, 637 P.2d 1029].) Ellison was sentenced to the term prescribed for first degree murder, 25 years to life. III. Claims of Guilt Phase Error A. Motion to Sever. Boyde contends that the trial court’s refusal to order separate trials for the defendants constituted a prejudicial abuse of discretion. The California Penal Code provides for joint trials of defendants jointly charged with criminal offenses. “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court orders separate trials. . . .’’ (§ 1098.) The Legislature has in this manner expressed a preference for joint trials. (See People v. Lara (1967) 67 Cal.2d 365, 394 [62 Cal.Rptr. 586, 432 P.2d 202]; People v. Isenor (1971) 17 Cal.App.3d 324, 330-331 [94 Cal.Rptr. 746].) The statute nevertheless permits the trial court to order separate trials, and the decision to do so is one “largely within the discretion of the trial court.” (People v. Turner (1984) 37 Cal.3d 302, 312 [208 Cal.Rptr. 196, 690 P.2d 669]; People v. Graham (1969) 71 Cal.2d 303, 330 [78 Cal.Rptr. 217, 455 P.2d 153].) Whether denial of a motion to sever constitutes an abuse of discretion must be decided on the facts as they appear at the time of the hearing on the motion to sever. (People v. Turner, supra, 37 Cal.3d at p. 312.) The grounds which may justify a severance were summarized in People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869]: (1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter; (2) where there may be prejudicial association with codefendants; (3) where there may be likely confusion from evidence on multiple counts; (4) where there may be conflicting defenses; and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (People v. Massie, supra, 66 Cal.2d at pp. 916-917.) In arguing the motion, Boyde’s counsel conceded that there was no longer an Aranda problem (supra, 63 Cal.2d 518) after Ellison’s waiver of a jury trial. Counsel nevertheless argued strenuously in favor of severance on the ground of inconsistent defenses. Counsel’s principal concern was about the prejudice that would result from Boyde’s jury hearing Ellison’s testimony. Counsel noted that the defendants’ defenses were inconsistent and mutually antagonistic in that each attempted to place primary responsibility on the other for the robbery and murder. Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials, none has found an abuse of discretion or reversed a conviction on this basis. (See People v. Massie, supra, 66 Cal.2d 899; People v. Turner, supra, 37 Cal.3d 302; People v. Jones (1970) 10 Cal.App.3d 237 [88 Cal.Rptr. 871]; People v. Wheeler (1973) 32 Cal.App.3d 455 [108 Cal.Rptr. 26].) Indeed, we recently rejected such a claim in People v. Turner, supra, 37 Cal.3d at pages 311-313, where Turner presented no defense and his codefendant Souza testified that Turner was the killer and that he had assisted in the robbery because he feared Turner. We noted that there is a statutory preference for joint trials (see § 1098) and that the “instant case provided the classic situation for joint trial—defendants charged with common crimes against common victims. [jf] As to conflicting defenses, counsel could articulate no reason for separate trials except to point out that the prosecution would simply put on its case, then sit back and watch as defense counsel became the real adversaries. Of course, if that point has merit, separate trials would appear to be mandatory in almost every case.” (37 Cal.3d at pp. 312-313.) On the basis of the showing made in Turner at the time of the motion— two defendants charged with murders under circumstances in which they were jointly involved and might be expected to attempt to cast primary blame on the other—we concluded that the trial court had not abused its discretion in denying separate trials. We noted, however, that such a ruling could still be the basis for reversal after trial if the reviewing court determined that, “because of the consolidation, a gross unfairness has occurred such as to deprive the defendant of a fair trial or due process of law. . . . [However,] no denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution.” (37 Cal.3d at p. 313.) The Ninth Circuit Court of Appeals refused to find an abuse of discretion in similar circumstances. In United States v. Brady (9th Cir. 1978) 579 F.2d 1121 (cert. den. 439 U.S. 1074 [59 L.Ed.2d 41, 99 S.Ct. 849]), each of the two defendants facing manslaughter charges defended by claiming that the other inflicted the fatal blows to the victim of their joint assault. Acknowledging the obvious hostility and conflict in the positions taken by defendants, the court found that “the prejudice which either appellant may have suffered from the testimony of the other is relatively slight. It is undisputed that each appellant participated in the incident. Consequently, it would only be natural for one to try to place the blame on the other. The jury had the responsibility of assessing each of the appellants’ credibility. Moreover, the testimony of each appellant was merely cumulative of the government’s case against the other and considering the simplicity of the case, there is no sound reason to suggest that members of the jury, being properly instructed as they were, could not realistically appraise the evidence against each appellant.” (Id. at p. 1128.) As in Turner, supra, 37 Cal.3d 302, and Brady, supra, 579 F.2d 1121, it cannot be said here that the trial court abused its discretion in denying severance or that Boyde was denied a fair trial by the procedure employed. Although the defense positions might be characterized as antagonistic on the issue of the identity of the actual killer, it was undisputed that each defendant participated in the incident. Ellison’s testimony—while critical as a percipient witness in placing the gun in Boyde’s hand—only corroborated the other details of the offense established by Boyde’s own extrajudicial statements and physical evidence presented by the prosecution. Ellison did not present the kind of extensive evidence against Boyde which would have turned the trial into more of a contest between the defendants than between the prosecution and either of them, and his counsel made no arguments to the Boyde jury. No evidence inadmissible as to Boyde was introduced as a result of the joint trial; Boyde himself introduced Ellison’s extrajudicial statements, and Ellison was available and fully cross-examined. (See Nelson v. O’Neil (1971) 402 U.S. 622 [29 L.Ed.2d 222, 91 S.Ct. 1723].) The prosecutor did not simply sit back and let the defendants convict each other; his case-in-chief against both successfully withstood the test of sections 1118 and 1118.1, and he aggressively cross-examined Ellison as well as Boyde. Boyde’s assertions of unfair prejudice are likewise unpersuasive. He claims that Ellison’s status as a defendant-witness permitted the prosecutor to benefit from Ellison’s accusation against Boyde while being relieved of the responsibility of informing the jury that the testimony contained perjury. But since the prosecutor did not present Ellison’s testimony, he did not impliedly vouch for its credibility. Boyde’s claim that Ellison’s status as codefendant prevented discovery of a secret deal between Ellison and the prosecution must fail because of the lack of any factual support in the record that such a deal in fact was made. Boyde cannot complain that he was unfairly prejudiced by his testimony, when his case was damaged by his own lack of credibility as a witness. Although Boyde may have been surprised by Lucinda Taylor’s testimony that he had an opportunity to return the gun to Ellison’s mother’s room, he did rebut it with testimony from Preston Scott that both were in Whittier at that time. Similarly, though Boyde may have been surprised by Otharean Owens’s testimony—elicited on cross-examination by Ellison’s counsel—that Boyde had admitted guilt, he was able to rebut this testimony with his own witnesses who denied that he made any affirmative reply to Ms. Owens. And although the prosecutor’s remarks at Ellison’s sentencing hearing acknowledge the importance of Ellison’s testimony in establishing Boyde as the actual killer, there was nothing improper about this testimony at a joint trial. B. Alleged “Secret Deal” Between Ellison and Prosecutor. Boyde claims the prosecutor’s failure to disclose an inducement given for Ellison’s testimony constituted the suppression of substantial material evidence relating to the credibility of a key witness which denied him due process of law. (People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341, A.L.R.4th 3132]; see also, People v. Phillips (1985) 41 Cal.3d 29, 45-49 [222 Cal.Rptr. 127, 711 P.2d 423].) Although Ellison was not called as a witness for the prosecution, and although no plea bargain was entered, Boyde asserts that Ellison’s decision to waive jury and submit to a court trial and his decision to testify in his own defense were prompted by an express or implied agreement that the prosecutor would not seek the death penalty against Ellison, and would agree that any special circumstances found true as to Ellison should be stricken. In People v. Ruthford we held that the duty on the part of the prosecution to disclose all substantial material evidence favorable to an accused extends to disclosure of evidence which relates to the credibility of a material witness and that the suppression of substantial material evidence bearing on the credibility of a key prosecution witness constitutes a denial of due process within the meaning of the Fourteenth Amendment to the United States Constitution. (14 Cal.3d at pp. 406, 408.) To demonstrate the existence of a “secret deal” between the prosecutor and Ellison, Boyde quotes from the statements of counsel and the district attorney made at the time of the jury waiver and later at Ellison’s sentencing hearing. On October 6, 1981, while hearing another motion pertaining only to Ellison, counsel announced that Ellison had elected to waive jury trial. The prosecutor joined in the waiver as to trial on guilt, special circumstances, and penalty. The prosecutor stated on the record “this is not a slow plea by any stretch of the imagination, and there are no concessions being made by either side, and it will be anticipated a fully contested trial down the line on the issue of guilt.” The prosecutor also stated, “As the Court well knows, and since there will not be picking a jury, there will be no evidence presented in aggravation other than the facts of the crime and the special circumstances. [If] While I—I’m not going to come out in court and concede something at this point in time—it suggests to me that at some point in time the law is going to require the Court—will not put the Court in a position to come back with a finding of death in this case. [1J] We would not be willing to waive jury to put you in that kind of a predicament in a case like this. [1|] I think it is not part of the negotiations for the jury waiver, or anything else. It is just an understanding that there will be no further evidence in aggravation, and that as I interpret the factors under 209 [s/c] of the Penal Code, the Court will be required as a matter of law, to come back if, in fact, special circumstances are found, of course, with life without parole, and I wanted the Court to be aware of that.” Ellison’s counsel then commented that “Mr. Ellison will take part in the regular full-blown trial. There’s been no concessions made by the District Attorney. In fact, it was after a little agonizing soul searching and conferences that my proposal to waive jury was accepted by him, and then I had to reconsider all the facets. [H] We will take part in the trial. Evidence will be presented and Mr. Ellison will testify.” The court, in taking Ellison’s waiver of constitutional rights, informed Ellison that under the court’s prior rulings the special circumstances would be applicable even if he had not actively participated in the murder and that he therefore faced a potential sentence to prison for life without possibility of parole. Boyde also points to statements made by Ellison’s counsel in closing argument to the court: “This was a pretty unique case to me. I’ve defended a lot of them but never assisted in the prosecution of one and during this trial, I did have the opportunity to cross-examine Mr. Boyde and this sort of thing. [H] Without Mr. Ellison, I think possibly Mr. Ellison’s cooperation and assistance, I think possibly it would have been very difficult—maybe not impossible, but it would have been difficult to have a verdict of guilty come in on Mr. Boyde. [i|] But all those things aside, there was no plea bargain struck. Plea bargains are not struck in cases such as this. There was no plea bargain and no assurances made.” At the sentencing hearing on June 21, 1982, Ellison’s counsel reiterated: “Mr. Ellison cooperated after he finally realized his uncle, Richard Boyde, the codefendant, was taking him down with intent. Mr. Ellison has been helpful. I believe that it would have been a great—there would have been a great deal of difficulty, not impossibility, but difficulty in convicting Mr. Boyde without Mr. Ellison’s assistance, [fl] Mr. Ellison’s testimony, I believe, was the turning point in making Mr. Boyde come forth and begin to show his true colors.” Ellison’s counsel thereupon urged the court to strike the special circumstances and the prosecutor agreed, stating: “In large part, I think Richard Boyde—the conviction of Richard Boyde—resulted proba-, bly, even perhaps unintentionally from the posture Mr. Ellison and his attorney took in this case. Had Mr. Ellison not waived jury and obviously streamlined the entire proceeding, the case could have been severed. “I don’t think the Boyde jury would have then heard Ellison’s statements made to the police officers on tape. They would not have been able to compare Ellison’s statements with Boyde’s statements. They would not have had Boyde’s testimony. . . . And once they got to see what Mr. Boyde was really all about, and they got to hear the respective knowledge about the facts of the case, that each of the two defendants had, it became clear that Mr. Boyde was the killer and more culpable. “So Mr. Ellison has, perhaps not intentionally, done a tremendous service to the People of the State of California by his posture in this particular case.” The prosecutor also argued that Ellison was less culpable for the murder and concluded, “I believe that if this defendant is sentenced to a 25 to life sentence, rather than a Life Without Parole, justice will have been served, or at least not disserved.” The weakness of Boyde’s argument lies in the fact that the record contains no direct evidence or admission of the existence of an agreement, but does contain express denials. While the facts recited by appellant would be consistent with the existence of an agreement, both the district attorney and defense counsel stated that no agreement had been made. The court never inquired on the record into the nature and extent of the discussions between Ellison and the district attorney leading to the mutual waiver of jury trial on guilt, special circumstances and penalty. Although Boyde’s counsel was absent when the waiver was made, he did not raise the question on any other occasion and never suggested there had been a “secret deal.” The district attorney’s position regarding the appropriate sentence for Ellison remained consistent throughout the prosecution: he charged only Boyde with personal use of a firearm and had apparently determined that Boyde was the leader and actual killer. The fact that Ellison later successfully moved to have his conviction reduced to second degree murder, pursuant to People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697], and that the district attorney at that time agreed the reduction would be appropriate, is not determinative either. The district attorney’s position as to the relative culpability of the codefendants remained consistent. On this record, we cannot conclude that there was an agreement between Ellison and the prosecutor which was not disclosed to Boyde. C. Voluntariness of Boyde’s Statements. Boyde challenges the admission of his various statements to the police, claiming they were not proved beyond a reasonable doubt to have been voluntarily given. (People v. Jimenez, supra, 21 Cal.3d 595.) Specifically, he argues that: (1) the January 22 statement in which he admitted knowledge of the 7-Eleven robbery-homicide was induced by an implied promise of leniency with regard to the charges arising out of the gas station robbery-kidnapping (People v. Jimenez, supra, 21 Cal.3d at pp. 611-612); (2) he did not waive his rights with regard to the offense of murder (see U.S. v. McCrary (5th Cir. 1981) 643 F.2d 323, 328); (3) the statement was given while he was in a state of extreme emotional upset and was not therefore the “ 1 “product of a rational intellect and a free will” ’ ” (People v. MacPherson (1970) 2 Cal.3d 109, 113 [84 Cal.Rptr. 129, 465 P.2d 17]; In re Cameron (1968) 68 Cal.2d 487, 498 [67 Cal.Rptr. 529, 439 P.2d 633]); (4) the January 23 statements in which he admitted involvement in the robbery-homicide were the fruits of the earlier, involuntary statement (People v. Braeseke (1979) 25 Cal.3d 691, 703-704 [159 Cal.Rptr. 684, 602 P.2d 384]); and (5) the final statement on January 23, in which he confessed the 7-Eleven robbery was induced by police deception as to the legal consequences of his prior admission of some involvement (see People v. Disbrow (1976) 16 Cal.3d 101, 112, fn. 12 [127 Cal.Rptr. 360, 545 P.2d 272]). “It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions. [Citations.] In California, before a confession can be used against a defendant, the prosecution has the burden of proving that this was voluntary and was not the result of any form of compulsion or promise of reward. [Citations.]” (People v. Jimenez, supra, 21 Cal.3d at p. 602.) The prosecution bears the burden of proof, and the proof must establish voluntariness beyond a reasonable doubt. (Id. at p. 608.) At the trial level, the determination is made by the trial court outside the presence of the jury. (People v. Jimenez, supra, at p. 604.) The appellate court must examine the uncontradicted facts to determine independently whether the trial court’s conclusion of voluntariness was properly found. With respect to conflicting testimony, the appellate court accepts that version of the facts most favorable to the finding below, to the extent it is supported by the record. {Id. at p. 609.) Here the trial court found beyond a reasonable doubt all statements were voluntary. 1. Implied Promise of Leniency on Gas Station Charges. In general, a confession is considered voluntary “if the accused’s decision to speak is entirely ‘self-motivated’ [citation], i.e., if he freely and voluntarily chooses to speak without ‘any form of compulsion or promise of reward. . . .’ [Citation.]” (People v. Thompson (1980) 27 Cal.3d 303, 327-328 [165 Cal.Rptr. 289, 611 P.2d 883].) However, where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law. (People v. Brommel (1961) 56 Cal.2d 629, 632 [15 Cal.Rptr. 909, 364 P.2d 845].) Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise, does not, however, make a subsequent confession involuntary. (People v. Jimenez, supra, 21 Cal.3d at p. 611.) Boyde claims that his initial statement admitting knowledge of the Gibson robbery-homicide was induced by an implied promise that a statement would lead to more favorable disposition of the charges of robbery and kidnapping for robbery of Baker, for which he had been arrested. Because Detective Callow admitted that he considered appellant a potential suspect in the Gibson homicide at the time of the January 22 interview regarding the Baker robbery-kidnapping, Boyde asserts the officer was motivated by a desire to obtain an incriminatory statement. Further, although Callow repeatedly informed Boyde that the police could not promise leniency but could only pass any information along to the district attorney who had the authority to make such an offer, Boyde argues Callow “made it crystal clear” that he had “no hope of anything other than incarceration” unless he gave a statement on the homicide. (See In re Roger G. (1975) 53 Cal.App.3d 198 [125 Cal.Rptr. 625].) The argument is unpersuasive. The evidence shows that there was no promise of leniency, no attempt to induce a confession, and no confession. Appellant initiated discussion of the homicide because of his own hopes of obtaining leniency on the robbery-kidnapping charges. The statement he gave was neither a confession nor an admission, but an attempt to lay blame for the crime on “Big Mike” and Ellison. Detective Callow’s role in eliciting the story was responsive rather than aggressive, and he repeatedly and clearly stated that he had no authority to make any promise of leniency regarding the pending robbery-kidnap charges, but could only pass information on to the district attorney. The cases upon which Boyde relies are inapposite. In In re Roger G., supra, 53 Cal.App.3d 198, for instance, officers engaged in a lengthy effort to induce a minor to abandon his claim of innocence of a shooting for which he had been arrested. They told him he might be incarcerated for “ ‘seven or eight or ten or life, you know . . .’ ” and said, “ ‘. . . it’s gonna help you out for a chance of probation or getting parole if you are honest about the thing. . . . [but] if you go in there . . . and ... try to cover up, do you think we’d give you a chance at probation or parole? No way.’ ” Although they subsequently stated they could not promise probation or parole, that it was only a possibility, the appellate court found the evidence established an “implied, if not express threat of harsher punishment if Roger did not confess, and an implied, if not express, promise of the possibility of more lenient treatment if he did.” (Id. at pp. 200-202.) And although dictum in People v. Nelson (1964) 224 Cal.App.2d 238 [36 Cal.Rptr. 385] indicates that a confession to crimes for which defendant was arrested might be involuntary if induced by promises of lenient treatment on an unrelated pending charge, that is not the factual posture of appellant’s case. At the time of his January 22 statement Boyde made a voluntary, if unwise, decision to offer false information in hope of obtaining favorable treatment. The trial court’s determination that the statement was voluntary beyond a reasonable doubt is correct. 2. Failure to Inform Appellant He Was Suspected of Murder. Boyde argues that the failure to inform him he was a suspect in the robbery-murder rendered his January 22 statement involuntary because his decision to waive his rights to remain silent and to consult counsel was not made knowingly, intelligently and voluntarily. He acknowledges that no California decision had held that Miranda warnings (Miranda v. Arizona, supra, 384 U.S. 436) must specify the actual charge pending against the person being interrogated and that the Court of Appeal rejected such an argument in People v. Neely (1979) 95 Cal.App.3d 1011, 1017 [157 Cal.Rptr. 531]. He also acknowledges that the Court of Appeal has held that new Miranda warnings are not necessarily required whenever an interrogation about one crime leads to discussion of another. (People v. Schenk (1972) 24 Cal.App.3d 233, 236 [101 Cal.Rptr. 75].) He urges that the position taken by a minority of courts which require such information to implement Miranda is the better approach. Boyde relies upon United States v. McCrary, supra, 643 F.2d 323, Schenk v. Ellsworth (D.Mont. 1968) 293 F.Supp. 26, and Commonwealth v. Dixon (1977) 475 Pa. 17 [379 A.2d 553]. The argument does not fit the facts of this case. On January 22 Boyde volunteered information about these crimes, and as noted above, admitted no complicity but claimed to know that others had committed the offenses. This statement was damaging because it led directly to the later statements in which Boyde admitted his guilt, but was incriminating only by comparison to those later statements. 3. Boyde’s Capacity to Make a Knowing and Voluntary Waiver. Boyde asserts that his January 22 statement was taken within minutes after he was removed from the holding cell “because he was completely unnerved by an apparent attack of claustrophobia, and in terror of being incarcerated in the Riverside County Jail.” He cites Detective Callow’s description of his “very hyper, very nervous condition” to show that his decision to give a statement was not “ ‘ “the product of a rational intellect and a free will.” ’ ” (People v. MacPherson, supra, 2 Cal.3d at p. 113; In re Cameron, supra, 68 Cal.2d at p. 498.) The evidence does not indicate Boyde was so distraught that his will to resist confession was overborne. Detective Callow testified that Boyde seemed to calm down after being removed to an interview room and being given coffee and a cigarette. Boyde presented no contradictory evidence. There was no indication of intoxication or mental illness. 4. The January 23 Statements as Fruit of the January 22 Statement. This argument falls with the conclusion that the January 22 statement was voluntarily given. 5. January 23 Confession Induced by Misrepresentation of Detectives Lund and Ropac. When Detectives Lund and Ropac approached Boyde on January 23 they first told him they thought the story he told Callow was not truthful. They asked if he was willing to talk with them again about the robbery-homicide and when he indicated he would, took a full Miranda waiver. Boyde then told his second story. He admitted he had been with Ellison and Big Mike at the 7-Eleven, that Big Mike had pulled the robbery and that he (Boyde) had driven the car from the store to the orange grove. But he claimed he did so under protest, denied assisting in the killing and denied any advance knowledge of Big Mike’s intent to rob or kill. Boyde claims that at the conclusion of this statement Lund told him it amounted to a full confession, that he believed Boyde had in fact been more deeply involved than he had admitted, and that any further statement could not result in any greater liability than he had already incurred. After this confrontation Boyde told his final version, which implicated him at least as an accomplice in the robbery and felony murder. Boyde contends this incriminating statement was induced by Lund’s misrepresentation as to the legal effect of the prior statement, and that this deception amounts to psychological coercion which rendered the statement involuntary. (See People v. Hogan (1982) 31 Cal.3d 815, 840-841 [183 Cal.Rptr. 817, 647 P.2d 93].) Boyde’s description of the encounter is factually inaccurate. The transcript of the interview shows that at the conclusion of the “I was just along for the ride” story, Lund stated: “I’ll tell you the problems I’m having, and, and I’m no lawyer, but I would think . . . what bothers me is you, you got such great detail, you sure you weren’t in the store? You sure you didn’t walk in?” Boyde repeated he had not gone in. Lund continued questioning whether Boyde might have been in the doorway of the store and whether he could have seen the money go into the bag or heard Big Mike saying it was a robbery without having been in the store. Finally, Lund stated: “It doesn’t make no difference whether you were sitting in the car the whole time or whether you were right in Big Mike’s back pocket, you’re, you’re involved in this the same, if everything else is the truth. . . .” While Lund made it clear he believed appellant was more deeply involved in the crimes than he was admitting, he did not tell Boyde that his prior statement amounted to a confession or that any further statement could not result in any greater liability. Lund’s statements amounted to harsh questioning, but did not rise to the level of psychological coercion or misrepresentation of the legal consequences of appellant’s prior statement. D. Admission of Prior Conviction. The prosecutor offered evidence of the circumstances of appellant’s 1976 robbery and kidnapping of Lou Creech pursuant to Evidence Code section 1101, subdivision (b) to show appellant’s identity as the perpetrator of the Baker offenses, to show his identity as the dominant figure in the Gibson robbery-murder, to show that appellant participated in the Gibson offenses with the intent to commit robbery and kidnapping for robbery, and to show that appellant had a motive for killing Gibson. The trial court found that the prior and charged offenses shared a sufficient number of distinctive common marks to establish a unique modus operandi, that the evidence of modus operandi was relevant to the material issue of appellant’s identity as the perpetrator of the Baker robbery-kidnapping, and that the evidence was relevant to show Boyde’s intent, if he was found to be an aider and abettor in the Gibson incident, or, alternatively, to show that he was the leader in perpetration of that crime. Boyde contends the 1976 and 1981 7-Eleven offenses lacked sufficient common, distinctive marks to establish a modus operandi, that the evidence was merely cumulative on the question of the identity of the participants in the Gibson offenses, that the evidence had no significant probative value regarding the identity of the actual killer of Gibson, and that the trial court failed to properly weigh the prejudicial effect of the prior crimes evidence against its probative value pursuant to Evidence Code section 352. We need not determine the merits of this contention since it is clear that any error in admitting the evidence was harmless. There is no reasonable probability that Boyde would have obtained a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Boyde’s defense was damaged beyond repair, even without consideration of the prior crime, by Ellison’s testimony, inferences from the placement of the footprints in the orange grove, and Boyde’s extensive knowledge of the details of the robbery and shooting. E. Erroneous Jury Instruction. Boyde claims the trial court erred in giving CALJIC No. 2.27— which permits proof of any fact by the testimony of a single witness in this case where critical evidence on a central issue came from an accomplice whose testimony is required by law to be corroborated (§ 1111; CALJIC Nos. 3.11, 3.18). Although the court also instructed on the principles that an accomplice’s testimony should be viewed with caution (CALJIC No. 3.18), that a defendant cannot be convicted on the testimony of an accomplice unless that testimony is corroborated (CALJIC No. 3.11), and that if anyone committed the robbery, kidnapping and murder Ellison was an accomplice as a matter of law, Boyde claims No. 2.27 effectively nullified these instructions. This claim is unpersuasive. Although Boyde is correct that use of No. 2.27 is discouraged in cases where one witness’s testimony requires corroboration (see use note to CALJIC No. 2.27 (4th ed. 1979)), so long as the appropriate instructions on the use of accomplice testimony are given, the giving of No. 2.27 is not error. (People v. Cooks (1983) 141 Cal.App.3d 224, 333 [190 Cal.Rptr. 211]; People v. Stewart (1983) 145 Cal.App.3d 967, 974-975 [193 Cal.Rptr. 799].) F. Carlos Error. Boyde contends that the court prejudicially erred under Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], in failing to instruct the jury that it could not find the felony-murder special circum