Full opinion text
Opinion KAUFMAN, J. Defendant Peter Edelbacher appeals from a judgment of death under the 1978 death penalty law following his conviction on a jury verdict of the first degree murder (Pen. Code, §§ 187-189; all further references are to the Penal Code unless otherwise stated) of Lela SchwartzEdelbacher (Lela), with special circumstance findings that the murder was intentional and carried out for financial gain (§ 190.2, subd. (a)(1)) and that defendant intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15)) and with a finding that a firearm was used in the commission of the murder (§ 12022.5). On a plea of guilty, defendant was also convicted of solicitation to murder Signe McClure (§ 653f, subd. (b)). The appeal is automatic. (§ 1239, subd. (b).) We shall affirm the judgment as to the findings of guilt and special circumstance but will reverse the penalty of death and remand the matter for a new penalty trial. Reversal of the penalty verdict is required because the jury at the penalty phase may have been misled to defendant’s prejudice about the nature of the penalty determination process and the scope of its sentencing discretion. I. Facts and Proceedings A. The Prosecution’s Case. Defendant and Lela were married in 1977 and they had one child, a son. Lela had separated from defendant and had commenced proceedings to dissolve the marriage when she reported to police, in May 1980, that defendant had raped her. Defendant was arrested and released on bail. A few days later, defendant told Lela he would “blow her fucking head off” if she “went through with this” (referring to the rape prosecution, the marital dissolution, or both). Defendant and Lela agreed to share custody of their child. A temporary support order was entered requiring defendant to pay Lela $150 per month in child support, effective June 1980. In January 1981 Lela obtained an assignment of defendant’s wages because he was $700 in arrears. In February 1981 defendant was tried and acquitted on the charge of spousal rape. During the same month, an interlocutory judgment was filed awarding the bulk of the community property (a 44-acre ranch) to defendant and requiring him to pay Lela $48,730.50 for her interest in the property no later than April 18, 1981. In March 1981 one of defendant’s automobiles was repossessed. A 12-gauge shotgun and a box of shells which were in the vehicle at the time of repossession were returned to defendant. On March 31, defendant’s mother deposited $48,500 in a savings account. Defendant’s parents had borrowed the money for defendant’s use to pay Lela but the bank employee who handled the deposit told defendant his mother had expressed reluctance to lend him the money. When informed of his mother’s reluctance, defendant seemed unconcerned. On April 3, 1981, Lela spent the evening at a friend’s house, returning to her parents’ house, where she was then living, shortly after 11 p.m. A few minutes later a blast shook the house. Lela’s parents found her lying on the floor of her room, fatally wounded, having been shot in the back. There were holes in the window glass and curtains and the room smelled of gunpowder. Police detectives found partial shoeprints outside the bedroom window. Based on the angle of shotgun pellet holes in the bedroom wall, it appeared the shooter had been standing about eight feet from the window, which was consistent with the location of the shoeprints. On the following morning investigators went to the home of defendant and his parents, where they took casts and photographs of shoeprints found in areas where defendant had walked. Although these prints were similar to the prints at the murder scene, it could not be determined whether they had been made by the same shoe and no charges were filed against defendant at that time. Defendant met Signe McClure (McClure) in June 1981 and they began dating. On December 4, 1981, defendant mentioned that his son, who was now living with him full-time, frequently awoke about midnight and cried for Lela. McClure said the boy probably awoke at that time because it was about the time Lela was killed. Defendant told McClure “he could still see Lela walking across the floor the night the incident happened.” McClure did not respond to this statement. Defendant called McClure the next day and asked if she remembered everything they had discussed the night before. McClure said she remembered “most of the things” they had discussed. Defendant had a conversation with his friend, Phil Green, on or about December 14. Green said one of his guns had been missing for several months, only three people had known where he kept his guns, and he had ruled out everyone but defendant. Green said he did not understand what would cause a person to kill someone. Defendant replied: “Lela knew something was going to happen.” A short time later defendant said, “God, I wish they would just throw me in jail. I wish this whole thing was over with.” On or about December 14 defendant also had a discussion with McClure. Defendant said Phil Green had asked him why it had been necessary to do what he did and had said there were other ways to work out the problems concerning his son’s custody and the ranch. McClure asked if Lela had been killed with Phil Green’s gun and defendant said, “it was the gun.” When McClure asked defendant why he did what he did, defendant replied: “I had to do what I had to do.” On December 22, 1981, McClure told defendant she wanted to terminate their relationship. Defendant met with McClure’s former husband Michael on January 4, 1982. Defendant said his wife had been killed after the spousal rape case and it “really worked out good.” Defendant suggested the same thing could happen to McClure because defendant knew “some people who could take care of the problem for [Michael] or [defendant] could.” Defendant said Michael would have custody of his son and would not have to pay support if McClure was gone. On January 8, 1982, defendant entered McClure’s residence wearing gloves and a ski mask that completely covered his face. Defendant was carrying a sawed-off shotgun. Defendant ordered McClure to lie on the floor and said she knew too much. Defendant taped her mouth and handcuffed her hands behind her back and ordered her into her bedroom. Defendant said it would make too much noise if he shot the gun in the house so he had an alternate plan but he did not explain what the plan was. Defendant left about four hours after he arrived. McClure reported the incident to the police and defendant was arrested later that night. In defendant’s van were gloves, a full-face ski mask and handcuffs but no weapons. Defendant was visited in jail on January 27, 1982, by his brother Chris. Their conversation was monitored and recorded. Defendant said there was something he wanted Chris to take care of. Defendant wrote “hit Signe” on a piece of paper which he showed to Chris. Defendant told Chris to do this before the preliminary hearing scheduled for March and offered his Corvette to Chris. Defendant said “it” (i.e., killing McClure) was the only way he could get out of jail quickly. Defendant wrote the name Jeff Denise on the paper and suggested Chris might ask Denise to do “it” for “a few G’s” (i.e., a few thousand dollars). Using veiled language, gestures, and a few written words, defendant outlined a plan by which a person would enter McClure’s house, open drawers to give the appearance of a burglary, and shoot McClure when she returned to the residence. As he explained the plan defendant displayed a diagram he had drawn on the paper showing McClure’s residence. At one point defendant said: “. . . it’s easy, take it from me . . . [e]specially if you don’t even have to look, you know, just— . . .—you just make sure you got the right one coming in . . . .” This conversation formed the basis of the charge of solicitation to commit murder. Defendant also offered to pay $100,000 to William “Skip” Johnson, a fellow jail inmate, if Johnson killed McClure. Johnson asked whether defendant had killed Lela. Defendant replied by asking Johnson what Johnson would do if a woman took his child, started divorcing him behind his back, and took all his money. Johnson said he thought he would kill her. Defendant said: “I rest my case.” B. The Defense. Defendant testified that on the day of Lela’s murder he spent the evening with a friend named Carol Leos. They met approximately 8:30 p.m., went to a restaurant where they each had two glasses of wine, and then about 10:30 p.m. they went to a party. Defendant decided not to stay and telephoned his brother Stefan, asking to be picked up at a church. Carol Leos drove defendant to the church and waited 10 to 15 minutes with him before leaving. Stefan arrived a few minutes later and drove defendant to Stefan’s apartment. After 15 to 30 minutes Stefan received a telephone call from Diana Valencia reporting that Lela had been shot. Defendant then went to the apartment of a woman named Sheila Butler where he spent the remainder of the night. Although he realized he was suspected of having killed Lela, defendant did not tell his attorney, Sheila Butler, or his parents that he had been with Carol Leos the night Lela was killed. He explained at trial that he did not consider Leos his alibi because he was not sure when Lela was killed. Leos died in November 1981. C. Rebuttal. Darila Bray testified that on the night Lela was killed he went out drinking and dancing with Carol Leos, his close friend and former sister-in-law. He could remember it was that night because Leos called him the next morning and said the wife of a man she had dated had been killed the night before. D. Penalty Phase. The prosecution offered no evidence at the penalty phase. Defendant’s witnesses included several friends and acquaintances who testified that defendant came from a loving, hard-working family, was devoted to his son, seemed to have a rapport with children, was a hard-working and “very responsible” person, and had been regarded as a leader during junior high and high school. Defendant’s mother said he was a loving brother to his siblings, and a good husband and father. She attributed most of defendant’s marital problems to financial pressures and said defendant had participated in counselling in an attempt to save the marriage. II. Pretrial and Jury Selection Issues A. Motion for Change of Venue. Defendant brought a pretrial motion, on grounds of prejudicial publicity, to change venue away from the County of Fresno, where the killing of Lela occurred. Defendant contends that denial of the motion was error. When the defendant shows a reasonable likelihood that a fair trial cannot be had in the county of original venue, a motion for change of venue must be granted. (§ 1033; People v. Balderas (1985) 41 Cal.3d 144, 177 [222 Cal.Rptr. 184, 711 P.2d 480].) The five most significant factors to be considered are the gravity and nature of the crime, the extent and nature of the publicity concerning it, the size and nature of the community, the status of the victim, and the status of the accused. (Ibid.) A reviewing court makes an independent appraisal of these factors whether the issue is raised by pretrial writ petition or by postconviction appeal. (Maine v. Superior Court (1968) 68 Cal.2d 375, 382 [66 Cal.Rptr. 724, 438 P.2d 372].) On postconviction review, however, the court will also examine the voir dire to determine whether the pretrial publicity in fact had a prejudicial effect. (Balderas, supra, at p. 177; People v. Harris (1981) 28 Cal.3d 935, 949 [171 Cal.Rptr. 679, 623 P.2d 240].) Defendant was accused of first degree murder with special circumstance allegations. Capital murder is the most serious of offenses, and thus the first factor weighs in favor of a venue change. The seriousness of the offense is not sufficient in itself, however, to require a venue change. (Balderas, supra, 41 Cal.3d at p. 177; see Odle v. Superior Court (1982) 32 Cal.3d 932, 942 [187 Cal.Rptr. 455, 654 P.2d 225]; Martinez v. Superior Court (1981) 29 Cal.3d 574, 583-584 [174 Cal.Rptr. 701, 629 P.2d 502].) Upon examination of the other factors and the voir dire, as will appear, the record fails to demonstrate a reasonable likelihood that a fair trial was not obtainable in Fresno County. Because the charge was capital murder, it is not surprising that the case received extensive publicity. In support of the motion to change venue, defendant introduced evidence of television and newspaper coverage of developments in the case. The television coverage consisted of broadcasts on 16 dates by station KSEE, 10 dates by station KFSN, and 13 dates by station KJED. The newspaper publicity consisted of 21 news articles appearing in the Fresno Bee. Two newspaper articles concerned only the spousal rape case and the second of these focused on defendant’s acquittal. Four articles appeared at the time of Lela’s death. Nine articles appeared in the weeks following defendant’s arrest; these articles discussed the charges against defendant for the rape of McClure and the solicitation of her murder as well as the murder charge itself. The remaining articles appeared during or after the preliminary hearing and reported the court proceedings. Most of the newspaper articles were relatively short and there is no evidence they were prominently placed in the paper. The articles frequently noted that defendant had been the first person tried for spousal rape in Fresno County, but all references to the spousal rape charge noted defendant had been acquitted of the charge. Lela’s murder was not characterized as “cold-blooded” or “execution-style” or otherwise sensationalized. (See Williams v. Superior Court (1983) 34 Cal.3d 584, 593 [194 Cal.Rptr. 492, 668 P.2d 799].) Only seven articles carried defendant’s name in the headline and none of the headlines referred to the death penalty. The tone of the publicity—both television and newspaper—was factual rather than inflammatory. The media coverage did not insinuate defendant’s guilt and was sporadic, responding to developments in the case, rather than continuous. The publicity was not excessive, unfair, or unusual in light of the seriousness of the charges. In his supplemental brief on appeal, defendant has submitted copies of additional news articles from the Fresno Bee and has requested that we take judicial notice of them as facts “not reasonably subject to dispute and . . . capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) Under Evidence Code section 459, this court “may” take judicial notice of such matters. However, these articles had not appeared when the trial court ruled on the motion for charge of venue and the motion was not later renewed. Accordingly, we decline the request to take judicial notice. Fresno County is the 14th most populous of the 58 counties in the state, with a 1983 estimated total population of 551,200. (State of Cal., Statistical Abstract (1984) table B-3, p. 15.) As we noted in Balderas, cases in which venue changes have been granted or ordered on review “have usually involved counties with much smaller populations” because the larger the local population, the more unlikely it is that preconceptions about the case have become imbedded in the public consciousness. (Balderas, supra, 41 Cal.3d at pp. 178-179.) The remaining factors, the community status of the victim and the defendant, do not demonstrate a necessity to change venue. Defendant was not a friendless outsider or a minority group member. He had lived most of his life with his family in Fresno County and in neighboring Madera County. The victim was not especially prominent in the community. As a young mother she was undoubtedly a sympathetic figure but there is nothing in the record to indicate that her death caused unusual emotion in the community. The record reflects that more than 100 prospective jurors were examined on exposure to pretrial publicity (others were excused before being asked about pretrial publicity). Each prospective juror was questioned on this subject out of the presence of the other prospective jurors. Approximately 70 percent of those examined had heard something about either this case or the earlier spousal rape case, although many could recall no details. Of these jurors, 15 were excused for cause. Of the 12 actual jurors, 9 could not recall receiving any information about the case before being summoned for jury duty. The other three had vague recollections of media accounts of the case but stated they did not remember any details. Only three jurors stated they recalled something about a spousal rape trial. One believed the trial had not been in Fresno but “up north somewhere,” another stated he remembered no details, and the third was asked no further questions. Defendant’s counsel was able to select this jury while using only 18 of his 26 peremptory challenges. The failure to exhaust peremptories is a strong indication “that the jurors were fair, and that the defense itself so concluded.” (Balderas, supra, 41 Cal.3d at p. 180.) Defendant relies on a survey showing that a substantial percentage of the county’s population had some awareness of the case but as noted in Balderas, this is to be expected given the realities of modern communications and the attention given to murder prosecutions. The issue is not awareness of the particular case but the jurors’ ability to lay aside any impressions they may have received and decide the case on the trial evidence. On this point, defendant cites the survey’s finding that 78 percent of those surveyed believed “the right person ha[d] been apprehended.” However, the survey also reported that only 20 percent stated they had an opinion as to defendant’s guilt or innocence and only 15 percent said they could not disregard anything they might have heard or seen about the case and base their decision entirely on evidence presented in court. While these survey responses might otherwise be cause for concern (see Williams v. Superior Court, supra, 34 Cal.3d at p. 590), any inference that an impartial jury could not be impaneled was refuted by the actualities of voir dire. We conclude defendant has failed to demonstrate a reasonable likelihood that denial of his venue change motion resulted in the denial of a fair trial. B. Motion to Suppress Jailhouse Conversation Tape. On January 27, 1982, about three weeks after his arrest, defendant was visited in jail by his brother Chris. The visit took place in the bond room of the jail. During their conversation defendant solicited Chris to murder McClure. The conversation was surreptitiously monitored and a tape recording was made. The monitoring was conducted pursuant to an order issued by a magistrate on application by the district attorney. Defendant moved under section 1538.5 to suppress the tape and all evidence of the conversation. At the hearing on the motion it was stipulated that the monitoring’s purpose was not institutional security. The prosecution argued that its purpose was to protect McClure and other prosecution witnesses but defendant maintained that the only purpose was to gather evidence to be used against defendant. Following the testimony of several witnesses, the court denied the motion finding, inter alia, that defendant suspected the conversation was being monitored and thus did not entertain a subjective expectation of privacy. Defendant contends that the monitoring violated his right to privacy as established by De Lancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142], Defendant recognizes that De Lancie was held to be prospective only in Donaldson v. Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110], but he nonetheless urges us to apply De Lancie retroactively to the present case because it is a death penalty case and because Donaldson was based on constitutional considerations rather than the express provisions of section 2601, subdivision (d). The contention is not meritorious. De Lancie, supra, 31 Cal.3d 865, was filed on July 8, 1982, several months after the taping at issue here. In Donaldson, supra, 35 Cal.3d at page 39, we held De Lancie does not apply to police conduct which took place before the decision was filed. Our decision not to apply De Lancie retroactively makes no exception for cases in which a judgment of death has been imposed. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57, 85 [241 Cal.Rptr. 594, 744 P.2d 1127].) Our decision not to accord retroactive application to De Lancie was given with full recognition of both the statutory and constitutional bases of that decision: “Although based in part on an interpretation of two 1975 statutes, Penal Code sections 2600 and 2601, De Lancie was clearly not a simple application of the statutory language. Prior cases had held that at least as to nonprivileged conversations there existed no right of privacy in a jail or police station, and if that doctrine prevailed, mere application of the language of sections 2600 and 2601 would offer no protection. Thus, in its departure from past precedent, even though in the context of statutory interpretation, De Lancie appears to represent the type of break from prior law which may justify nonretroactivity . . . .” (Donaldson, supra, 35 Cal.3d at p. 37.) In any event, the trial court’s finding that defendant had no subjective expectation of privacy is supported by substantial evidence. During the conversation defendant never mentioned McClure by name and never used the word “kill” or “murder.” Defendant wrote “hit Signe” on a pad of paper which he showed to his brother and in the subsequent conversation used veiled allusions and awkward circumlocutions to refer to the intended murder and the manner in which he v/anted it carried out. Defendant’s own conduct thus provides sufficient grounds for rejecting his privacy claim. (See Miranda, supra, 44 Cal.3d at p. 85, fn. 10; Donaldson, supra, 35 Cal.3d at p. 34, fn. 7.) C. Motion to Suppress Testimony of Prosecution Witness. As part of his pretrial motion to suppress evidence (§ 1538.5), defendant moved to suppress Chris’s testimony as being the fruit of the jailhouse tape, which defendant claimed was illegally obtained, and as the fruit of an illegal arrest of Chris. The motion was denied. Defendant now contends that Chris’s testimony should have been excluded as the fruit of an unlawful arrest of Chris and as the fruit of coercive interrogation procedures. After the recording of the January 27, 1982, jailhouse conversation between defendant and Chris, a surveillance was initiated at McClure’s residence. On February 3, the porch light at the residence was shot out by a pellet gun. The gun was fired from a vehicle which left the area before surveilling officers could stop it or record its license number. Detective Johanssen, who was heading the investigation, did not learn of the incident until the morning of February 5. He immediately went with another officer to Chris’s residence. When Chris stepped out onto the front porch, the officers placed him under arrest for conspiracy to commit murder. After giving him a Miranda advisement (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]), the officers played the tape of the jailhouse conversation and questioned Chris about its contents. Several days later, after counsel had been appointed to represent him, Chris agreed to testify in defendant’s trial in exchange for immunity from prosecution. A motion under section 1538.5 may be used to suppress evidence which is claimed to be the fruit of Fourth Amendment violations, such as an illegal arrest, but it may not be used to suppress statements on the ground they were involuntarily induced contrary to Fifth Amendment protections. (People v. Campa (1984) 36 Cal.3d 870, 885 [206 Cal.Rptr. 114, 686 P.2d 634]; People v. De Vaughn (1977) 18 Cal.3d 889, 896-897, fn. 6 [135 Cal.Rptr. 786, 558 P.2d 872].) A pretrial ruling on a claimed Fifth Amendment violation is subject to reconsideration by the trial court, and objection on Fifth Amendment grounds to the admissibility of evidence is waived if not made at trial when the evidence is offered. (People v. Ledesma (1987) 43 Cal.3d 171, 244 [233 Cal.Rptr. 404, 729 P.2d 839] (cone. opn. of Grodin, J.); People v. Campa, supra, at p. 885; People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735 [125 Cal.Rptr. 798, 542 P.2d 1390].) As defendant did not object to Chris’s testimony at trial, the only issue preserved for review is whether it was the product of an illegal arrest. As both the charged crime and the arrest at issue took place before the effective date of Proposition 8 (Cal. Const., art. I, § 28), the issue is governed by the law in effect at that time. (People v. Smith (1983) 34 Cal.3d 251, 258 [193 Cal.Rptr. 692, 667 P.2d 149].) Under California’s then existing vicarious exclusionary rule (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 161 [98 Cal.Rptr. 649, 491 P.2d 1]; People v. Martin (1955) 45 Cal.2d 755, 761 [290 P.2d 855]), defendant has standing to seek suppression of evidence based on claimed violations of the Fourth Amendment rights of third persons, in this instance his brother Chris. Cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime. (People v. De Vaughn, supra, 18 Cal.3d 889, 895.) Defendant contends there was no cause to arrest Chris for conspiracy to commit murder because there was no evidence of an overt act in furtherance of an agreement between Chris and defendant to murder McClure. (See § 184 [“No agreement amounts to a conspiracy, unless some act, beside such agreement, be done within this state to effect the object thereof, by one or more of the parties to such agreement and the trial of cases of conspiracy may be had in any county in which any such act be done.”].) When Chris was arrested, the officers had possession of the jailhouse tape in which defendant asked his brother to murder McClure, either personally or by hiring another person, and Chris agreed to do so. A few days later the porch light of McClure’s residence was shot out. While there was no direct evidence to connect Chris to this incident, it was sufficient to generate an honest and strong suspicion that an overt act in furtherance of the conspiracy had been committed. The arrest was not invalid. III. Guilt and Special Circumstance Trial Issues A. Admissibility of Jailhouse Conversation. Defendant contends that the tape recording and other evidence of the jailhouse conversation during which he solicited his brother Chris to murder McClure should have been excluded because the evidence was not relevant to any contested issue of fact, because it was inadmissible evidence of character or propensity, and because the risk of undue prejudice exceeded any probative value the evidence possessed. After jury selection, defendant moved to withdraw his plea of not guilty to the charge of solicitation of murder and to enter a plea of guilty to that charge. Following advisement of constitutional rights and plea consequences per In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], the motion was granted and defendant’s quilty plea was accepted. In response to the court’s questions defendant said he asked his brother to kill McClure to prevent her from testifying against him on the charge of murdering Lela. Defendant then moved to exclude evidence of the conversation during which the solicitation was made on the ground it was irrelevant to any remaining issue or that any probative value it might have was exceeded by the risk of undue prejudice. As part of the motion, defendant offered to inform the jury by stipulation of the guilty plea to the charge of solicitation. The prosecutor opposed the motion, arguing that the evidence was relevant to prove consciousness of guilt for the murder of Lela, to corroborate McClure’s testimony, and to prove that defendant had murdered Lela by lying in wait. The trial court denied defendant’s motion, finding that the evidence was relevant to prove consciousness of guilt and the special circumstance of lying in wait, and that the probative value of the evidence exceeded the risk of undue prejudice. On defendant’s further motion, the prosecutor agreed to excise two short passages in the tape. As part of the prosecution’s case-in-chief, the tape of the jailhouse conversation was played for the jury and defendant’s brother Chris testified concerning its contents. Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. (People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883].) Consciousness of guilt. A defendant’s willful suppression of evidence, or willful attempt to suppress evidence, is admissible to prove consciousness of guilt. (Evid. Code, § 413; People v. Weiss (1958) 50 Cal.2d 535, 554 [327 P.2d 527]; People v. Wong (1973) 35 Cal.App.3d 812, 831 [111 Cal.Rptr. 314].) Defendant concedes that evidence of the solicitation of murder tended to prove consciousness of guilt as to Lela’s murder but he maintains it was nonetheless inadmissible because he offered to stipulate to the underlying facts. We disagree. The general rule is that the prosecution in a criminal case cannot be compelled to accept a stipulation if the effect would be to deprive the state’s case of its persuasiveness and forcefulness. (People v. McClellan (1969) 71 Cal.2d 793, 802 [80 Cal.Rptr. 31, 457 P.2d 871]; see also, People v. Hall (1980) 28 Cal.3d 143, 153 [167 Cal.Rptr. 844, 616 P.2d 826]; People v. Robles (1970) 2 Cal.3d 205, 213 [85 Cal.Rptr. 166, 466 P.2d 710]; Fuentes v. Tucker (1947) 31 Cal.2d 1, 7-8 [187 P.2d 752].) In the present case defendant did not offer to stipulate to consciousness of guilt as to Lela’s murder or to any element of the charge against him. The proposed stipulation concerned only the bald fact of a solicitation to murder McClure to prevent her testimony on the charge of murder. Defendant’s position at trial was that he was innocent of the murder charge, that McClure’s testimony was materially false, and that he solicited her murder because he feared her false testimony would result in his conviction for a crime he did not commit. Whether consciousness of guilt of Lela’s murder should be inferred from the solicitation was therefore a disputed issue the resolution of which would be aided by a thorough examination of the manner in which the solicitation occurred and of the exact words used. Accordingly, the prosecution was not required to accept the proposed stipulation. Evidence of lying in wait. Another basis of admissibility was that defendant’s statements provided evidence of the lying-in-wait special circumstance. During the recorded conversation defendant suggested that his brother, or some person hired by his brother, enter McClure’s residence on a weekday morning when no one was at home, open drawers to give the appearance of a routine burglary, watch at the window for McClure’s arrival, and shoot her as she entered her residence. On the tape, defendant is heard to say: “Once you’re in you can go all the way up the window, the front ones, and you can watch the driveway and see when it comes back up again. . . . You can be ready and as soon as she, you know, opens, you know, gets ready to walk in you can just right through the, you know . . . right there, you don’t even have to look . . . it’s going to make a little noise, the thing is you don’t want, uh . . . be that long, but it’s easy, take it from me. . . . Especially if you don’t even have to look, you know, just. . . you just make sure you got the right one coming in . . . The prosecutor argued that defendant’s statements—i.e., “it’s easy, take it from me”—constituted an admission that he had killed someone in a manner similar to what he was suggesting for the murder of McClure. Given the other evidence presented at trial, it was a reasonable inference that defendant was referring to the shooting of Lela. Because the method proposed for the killing of McClure included lying in wait, the jury could reasonably infer that the murder of Lela had also been committed by lying in wait. Defendant contends that the tape was not admissible to prove the lying-in-wait special circumstance because the marks common to the two offenses were insufficient both in number and in distinctiveness to warrant an inference that the method proposed for the murder of McClure also provided an accurate description of the method by which Lela was murdered. Defendant relies on cases in which the prosecution sought to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses using the same distinctive modus operandi. (See, e.g., People v. Rivera (1985) 41 Cal.3d 388, 392 [221 Cal.Rptr. 562, 710 P.2d 362]; People v. Bigelow (1984) 37 Cal.3d 731, 749 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723]; People v. Thornton (1974) 11 Cal.3d 738, 756 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. Haston (1968) 69 Cal 2d 233, 245 [70 Cal.Rptr. 419, 444 P.2d 91].) In this context we have stated that admissibility “depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity.” (People v. Bigelow, supra, at p. 749.) Unlike the cases on which defendant relies, however, the offenses here were linked by more than just the manner of their commission; they were linked factually in that McClure was to be a witness against defendant for the murder of Lela and, more importantly, they were linked by defendant’s own words. Defendant’s statement (“it’s easy, take it from me”) impliedly admitted his commission of a crime separate from but similar to the proposed murder. This admission and the fact that all of the other-crimes evidence offered by the prosecution consisted of defendant’s own statements and gestures are features which distinguish this case from those cited by defendant. The inference that the other crime to which defendant alluded was the murder of Lela likewise did not depend solely on a distinctive modus operandi common to the two crimes. Evidence supporting this inference included the testimony of McClure’s former husband Michael concerning defendant’s suggestion that what had happened to Lela could also happen to McClure. This evidence indicated that defendant himself viewed the contemplated killing of McClure as being similar to and in some manner a repetition of the killing of Lela. We conclude that demonstrating a number of distinctive common marks was not a requirement for the admissibility of the jailhouse conversation evidence to prove the lying-in-wait special circumstance. Risk of undue prejudice. Defendant contends the tape should have been excluded under Evidence Code section 352 because it contained irrelevant and prejudicial matters, including references to property disputes between defendant and Lela’s parents, a statement by defendant that he was “not real 100 percent sure of my lawyer,” an unidentified person’s reported comment that defendant was “a crazy son-of-a-bitch,” and numerous instances of offensive language. The reference to defendant’s lawyer was relevant to his motive in wanting McClure killed and the jury was not informed by the prosecution that the comment referred to the attorney who represented defendant at trial. Jurors today are not likely to be shocked by offensive language and any risk of prejudice here was outweighed, as the trial court determined, by the probative value of the evidence. Regarding the other matters, it is sufficient to observe that defendant failed to request their deletion despite the trial court’s invitation to make such requests (as noted, the prosecution agreed to several deletions). Defendant has failed to demonstrate an abuse of discretion in the denial of his motion to exclude under Evidence Code section 352. Other-crimes instruction. At the request of both the prosecution and the defense, the jury was instructed in the language of CALJIC No. 2.50 (1979 rev.) that the other-crimes evidence received at trial could not be considered to prove that defendant was a person of bad character or that he had a disposition to commit crimes. The instruction did not, however, list the purposes for which the jury could properly consider the evidence. Defendant contends that this failure was prejudicial error, but he does not explain specifically how the jury might have misused the evidence. We agree that additional guidance concerning the proper use of the evidence would have been beneficial but, given the broad purposes for which the evidence was properly received, we fail to perceive any significant risk of prejudice. Had a more complete instruction been given, an outcome more favorable to defendant is not reasonably probable. B. Adoptive Admissions. Defendant objected at trial on hearsay and relevance grounds to the entire testimony of Phil Green concerning his conversation with defendant on or about December 14, 1981. Based on an offer of proof, the court overruled the objection, ruling that evidence of the conversation was relevant and, although hearsay, was admissible under the adoptive admission exception to the hearsay rule (Evid. Code, § 1221). The court stated its ruling was without prejudice to further objections during the witness’s testimony. Phil Green then gave the testimony reproduced in the margin. “A He wasn’t responding in—in any type of denial fashion in any way. “Q Yeah, but he started to say something to you— “Mr. Jones: Your Honor, can the witness finish his answer, Your Honor? “The Court: I think he has finished. Do you have some additional? “The Witness: No. His tone of voice, the way he acted was more in an explanatory fashion.” During cross-examination, defense counsel asked whether the witness had given defendant an opportunity to respond to the accusations against him. The pertinent portion of this testimony is also reproduced in the margin. As this court stated in People v. Preston (1973) 9 Cal.3d 308, 313-314 [107 Cal.Rptr. 300, 508 P.2d 300]: “If a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.” (See also, People v. Simmons (1946) 28 Cal.2d 699, 712-713 [172 P.2d 18].) Defendant contends that Phil Green’s testimony did not meet the requirements of the adoptive admissions exception because Green’s statements to defendant were ambiguous and not clearly accusatory, and because Green expressly told defendant not to respond. We are not persuaded. To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide. (People v. Richards (1976) 17 Cal.3d 614, 618 [131 Cal.Rptr. 537, 552 P.2d 97].) Phil Green’s statements linked the theft of Green’s shotgun to defendant and to Lela’s death. In context it was apparent that Green was accusing defendant of stealing Green’s shotgun and using it to kill Lela. Green’s statement that he could not understand why one person would kill another invited defendant to comment on the accusation. The jury could reasonably view defendant’s response, that Lela knew something would happen, as demonstrating that defendant understood the accusation. Phil Green cut defendant off only after defendant made this remark that Lela knew something would happen. Defendant’s statement attempted to shift blame onto the victim, apparently referring to defendant’s threat to blow Lela’s head off if she “went through with it.” The statement could reasonably be viewed as an acquiescence in the truth of the accusation, reflecting consciousness of guilt. Under these circumstances defendant would have understood Green’s statement cutting defendant off to mean that Green did not want to hear the reasons why defendant had killed Lela. Defendant did make further remarks, including the statement he wished “the whole thing was over with.” Had defendant intended to make a denial, the jury could reasonably find he had ample opportunity to do so. Phil Green’s testimony was properly admitted under the adoptive admission exception to the hearsay rule. C. Prior Consistent Statements. Defendant’s next contention is error in the admission of prosecution evidence under the prior consistent statement exception to the hearsay rule. Testifying during the prosecution’s case-in-chief, McClure’s former husband Michael stated that his marriage to McClure had been dissolved in 1980 and that custody of their one child had been awarded to McClure. Defendant had telephoned Michael on the morning of January 4, 1982, and had arranged a meeting for that afternoon at a restaurant in Fresno to discuss Michael’s continuing dispute with McClure over custody of their son. During the meeting, according to Michael’s testimony, defendant said he had been through a divorce recently and there had been a spousal rape case which Michael might have read about in the paper. Defendant said he had been cleared and shortly afterwards his wife had been killed. Michael expressed sympathy but defendant said, “Well, really it worked out good for me because I don’t have any child support payments now and I have custody of my son.” Defendant said, “the same thing could happen for you” and “I know some people that could take care of the problem for you, or I could.” Defendant continued, “If she wasn’t around, you wouldn’t have any child support and you would have custody of your son.” Michael changed the subject and left shortly thereafter. During cross-examination Michael stated he had received immunity for his testimony and was accompanied in court by his attorney. Defense counsel asked whether Michael had reported the conversation to McClure and Michael replied that he had not because they were not on speaking terms at that time. Defense counsel also asked Michael when he became aware that defendant was suspected of killing Lela. Defendant testified that it was Michael who had proposed the meeting and had suggested that defendant could arrange for something to happen to McClure similar to what had happened to Lela. Defendant said he became angry at the insinuation that he had killed Lela and he immediately terminated the discussion. Defendant moved to exclude proposed rebuttal testimony of Michael’s father. Based on an offer of proof, the court denied the motion, finding that the proposed testimony was admissible under the prior consistent statement exception to the hearsay rule. Thereafter Michael’s father testified, in accordance with the offer of proof, that he had accompanied Michael to the restaurant where Michael met defendant. Michael’s father sat apart and did not overhear any of the conversation between Michael and defendant but immediately afterwards Michael had stated: “Dad, this guy is crazy. We better get out of here. The way he wanted me—the way I could get custody of my son is to have—have a hit man wipe out his mother.” An out-of-court statement by a witness is not barred by the hearsay rule if the statement is consistent with the witness’s testimony and is offered after an express or implied charge that the testimony has been recently fabricated or 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. (Evid. Code, §§ 791, 1236.) Defendant concedes that Michael’s out-of-court statement, as reported by Michael’s father, was consistent with Michael’s testimony and that there was an express or implied charge that Michael’s testimony was fabricated and influenced by bias and other improper motives. But defendant maintains that the prior statement was inadmissible because there was no evidence that the improper motive or intent to fabricate arose after the prior statement. The cross-examination concerning Michael’s failure to warn his former wife provided a sufficient basis for admissibility as a prior consistent statement. Where cross-examination concerning failure to report an incident implies a later fabrication, evidence that the incident was reported shortly after its occurrence is admissible. (See People v. Welch (1972) 8 Cal.3d 106, 116 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Gentry (1969) 270 Cal.App.2d 462, 473 [76 Cal.Rptr. 336].) The trial court did not err in admitting as prior consistent statements the testimony of Michael’s father. D. Instruction on Reliability of Jailhouse Informant. Defendant contends that the trial court erred in failing to instruct the jury sua sponte that the testimony of jailhouse informants should be viewed with caution and distrust. The contention is without merit; as we have recently held, a trial judge has no duty to give sua sponte cautionary instructions regarding an informant’s testimony. (People v. Hovey (1988) 44 Cal.3d 543, 566 [244 Cal.Rptr. 121, 749 P.2d 776].) E. Shoeprint Evidence. After investigating the scene of Lela’s shooting, Deputy Sheriff Johansen went to defendant’s residence in Madera, arriving approximately 3:30 a.m. Finding no one at home, he parked nearby and watched the residence for about five hours. From that location Johansen went to the residence of defendant’s parents, also in Madera. Defendant’s parents were at home and spoke to the officers. As he was about to enter his own vehicle, intending to leave, Johansen noticed some shoeprints which appeared similar to those found at the murder scene. The officer followed the shoeprints back to the driver’s side of a pickup parked in the driveway. Defendant’s mother told the officer that defendant was the last person to drive that truck. Johansen arranged to have these prints photographed by a criminalist. He also arranged for photographs to be taken at about the same time of similar shoe tracks at defendant’s residence in the front yard and on the front porch. A criminalist testifying for the prosecution concerning the tracks found at the three locations could only say that they exhibited a similar sole pattern. Because they were all partial prints, the length and width of the prints could not be measured to determine shoe size, nor were any distinctive wear characteristics discernible. Thus the witness was unable to determine whether any of the various tracks had been made by the same shoe, shoes of the same size, or even shoes from the same manufacturer. In closing argument the prosecutor disavowed reliance on the shoe track evidence to establish defendant’s guilt. Defendant maintains that the shoe track evidence obtained at the residences of defendant and his parents was illegally seized and therefore inadmissible. He also maintains that the evidence was lacking in relevance and that any relevance it may have had was outweighed by the risk of prejudice and on this basis it should have been excluded. Search and seizure. Defendant did not bring a pretrial motion to suppress the shoe track evidence under section 1538.5, nor did he challenge the evidence at trial on search and seizure grounds. He nevertheless maintains that the issue is reviewable because failure to seek exclusion of this evidence on Fourth Amendment grounds constituted ineffective assistance of counsel. We conclude there was no Fourth Amendment violation. An officer’s observation with the naked eye from a vantage point open to the public is ordinarily not regarded as a search within the meaning of the constitutional proscription against warrantless searches. (People v. Cook (1985) 41 Cal.3d 373, 380 [221 Cal.Rptr. 499, 710 P.2d 299]; People v. Mack (1980) 27 Cal.3d 145, 150 [165 Cal.Rptr. 113, 611 P.2d 454].) In determining whether a warrantless government surveillance is proscribed by the Fourth Amendment, the inquiry is “whether the government intruded unreasonably on an expectation of privacy which society is prepared to recognize as valid.” (Cook, supra, at p. 379; see also, In re Deborah C. (1981) 30 Cal.3d 125, 135 [177 Cal.Rptr. 852, 635 P.2d 446].) The determining factor is whether common habits in the use of property result in a reasonable expectation of privacy in a given situation. (Cook, supra, at p. 381, fn. 3; In re Deborah C., supra, at p. 137.) “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” (Katz v. United States (1967) 3,89 U.S. 347, 351 [19 L.Ed.2d 576, 582, 88 S.Ct. 507].) Here the evidence in question was observed by Officer Johansen while he was looking for defendant at the residences of defendant and his parents. The tracks were outside in the front porch, driveway, and front yard portions of the residences. The tracks were apparently visible on the normal route used by visitors approaching the front doors of the residences and there is no indication of solid fencing or visible efforts to establish a zone of privacy. Accordingly, observing and photographing the shoe tracks did not violate the Fourth Amendment. Relevance. Defendant contends that evidence of the shoe tracks should have been stricken as irrelevant because, though it might engender speculation, the evidence would not support a reasonable inference as to any fact at issue. A motion to strike the evidence was made at trial on the ground there was “insufficient foundation to show that they in any way relate to” defendant. Defendant’s objection goes to weight rather than admissibility. (See People v. Cordova (1979) 97 Cal.App.3d 665, 669 [158 Cal.Rptr. 852].) Relevant evidence is evidence having any tendency in reason to prove or disprove a disputed fact properly at issue. (Evid. Code, § 210; People v. Bur gener (1986) 41 Cal.3d 505, 527 [224 Cal.Rptr. 112, 714 P.2d 1251].) Evidence that shoe tracks at defendant’s residence and leading to a vehicle last driven by defendant were consistent with those found at the murder scene had some tendency in reason to establish that defendant was at the murder scene and fired the fatal shot. The trial court did not err in overruling defendant’s objection on grounds of relevance. Evidence Code section 352 motion. Defendant argues that the shoe track evidence should have been excluded under Evidence Code section 352 because its probative value was exceeded by the risk of undue prejudice. He further argues that the trial court erred in failing to state on the record that it had weighed prejudice against probative value. As stated, defense counsel’s motion to strike the shoe track evidence was on the ground of lack of foundation. In opposing the motion the prosecutor characterized the issue as one of relevancy and stated that the evidence was relevant and the proper weight was for the jury to determine. Defense counsel did not dispute this characterization of the motion but in argument he did refer twice to the evidence being prejudicial and its probative value being slight. However, the only claimed prejudice was the inducement to the jury to speculate that the prints were made by the same shoes and that the shoes had been worn by defendant. The trial court stated that the evidence was relevant and could even be to defendant’s advantage in that defendant’s sister-in-law had testified defendant had been wearing shoes with a different sole pattern on the night of Lela’s death. The trial court denied the motion to strike without further elaboration. To the extent that defendant’s motion to strike may be regarded as a motion under Evidence Code section 352, it was properly denied. There was little risk of prejudice from the shoe track evidence. The evidence was not of a kind likely to engender sympathy for the victim, to connect defendant with uncharged crimes, to arouse the emotions of the jurors, or to be used in some manner unrelated to the issue on which it was admissible. Defendant’s argument that the expert testimony tended to give the evidence an artificial aura of reliability is unpersuasive. The expert witness did not claim to have discovered anything other than what the jurors could see for themselves by examining the photographs—i.e., that there was a similarity in the sole patterns. In short, defendant has failed to demonstrate any significant risk of prejudice. When an objection is raised under Evidence Code section 352, the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value. (People v. Wright (1985) 39 Cal.3d 576, 582 [217 Cal.Rptr. 212, 703 P.2d 1106]; People v. Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468].) Here the trial court permitted counsel to argue the motion to strike at length. Counsel’s argument as to both probative value and prejudice focused on what he characterized as the speculative nature of the evidence. No other risk of prejudice was suggested. The record, including the court’s comments, sufficiently establishes that the court weighed and rejected the arguments of defense counsel. F. Third-party Culpability Evidence. Defendant contends that the trial court erred in excluding evidence that Lela’s murder was committed by someone other than defendant. In People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99], we disapproved language in People v. Arline (1970) 13 Cal.App.3d 200 [91 Cal.Rptr. 520], establishing a distinct and elevated standard for admissibility of defense evidence tending to show a third party’s guilt of the charged offense. We held that “the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt.” (Hall, supra, at p. 833.) Our holding did not, however, require the indiscriminate admission of any evidence offered to prove third-party culpability. The evidence must meet minimum standards of relevance: “evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833.) We also reaffirmed that such evidence is subject to exclusion under Evidence Code section 352. (Id. at pp. 833-835.) As an offer of proof, defendant’s mother testified outside the jury’s presence that her daughter had worked with Lela at a fast-food outlet, that on the morning following Lela’s death this daughter told her that Lela had asked the daughter several times if she knew anyone who wanted to buy some marijuana. Defendant’s mother testified further that during the spousal rape trial an unidentified friend had told her that Lela’s mother “had been unhappy that her daughter had been running around with some Hell’s Angel-type people.” The evidence was not offered to prove third-party guilt at that time and was ruled inadmissible. Defense counsel subsequently urged the court to admit the testimony “to show by circumstantial evidence the possible motive of third parties to commit the crime and circumstantial evidence as to possible identity of third parties to commit the crime.” Counsel argued that “people who are dealing in narcotics frequently end up injured or shot.” The court reaffirmed its ruling excluding the testimony in question of defendant’s mother. Defense counsel stated “there are other witnesses that could testify substantially the same thing, plus their direct knowledge of the dealing in drugs by Lela.” The court stated it would sustain an objection to such evidence “[i]f that’s all the evidence consists of.” The court’s ruling was correct. Quite apart from the obvious hearsay problems, defendant’s proposed evidence did not identify a possible suspect other than defendant or link any third person to the commission of the crime. The evidence did not even establish an actual motive but only a possible or potential motive for Lela’s murder. As we stated in Hall, supra, 41 Cal.3d 826, evidence of a third party’s motive, without more, is inadmissible. A fortiori, evidence showing only a third party’s possible motive is not capable of raising a reasonable doubt of a defendant’s guilt and is thus inadmissible. Prosecutorial misconduct. Despite the court’s ruling, defendant was able to introduce evidence that Lela had sold drugs and had unsavory acquaintances. During the tape-recorded jailhouse conversation, defendant and his brother Chris briefly discussed Lela’s drug sales. Chris said their mother wanted to find out who Lela had been dealing with. Defendant said Lela “did a little on some of her friends, but I don’t think that’s going to be that important right now.” During his trial testimony, defendant said he had received information that Lela “was running with a pretty rough crowd” which included “bikers” and “dope dealers” described as having long hair and tattoos “all up and down their arms.” This evidence was admitted only for its bearing on defendant’s state of mind and to explain defendant’s remark to Phil Green that Lela knew something was going to happen. Defendant maintains that the following statements by the prosecutor during rebuttal argument constituted misconduct: “Law enforcement honed in on the defendant on April the 4th, 1981. They honed in on him. I don’t know. Maybe he wanted us to hone in on the bikers, the bikers that come from fifth-generation hearsay. What bikers are there? No bikers came into this court. There is no bikers’ evidence. His mother heard it from fifth-hand hearsay, and his sister saw somebody at a Jack-in-the-Box that she heard. There is no biker evidence in this case. All of the evidence does hone in on the defendant.” Had the court improperly excluded third-party guilt evidence, the prosecutor’s comment would have increased the risk of prejudice but there was, as stated, no improper exclusion of evidence. Given the absence of any admissible evidence of third-party culpability, and the possible implication of such culpability arising from the jailhouse tape and from defendant’s testimony, the argument was permissible to dispel any impression that third-party guilt was an issue in the case. G. Sufficiency of Evidence for Murder Verdict. Defendant contends there is insufficient evidence to support his conviction of first degree murder. In particular, he contends there was insufficient evidence to establish that he was the perpetrator of the crime. A challenge to the sufficiency of the evidence requires us to determine, after review of the whole record, whether the evidence is such that a reasonable trier of fact could have found beyond a reasonable doubt that defendant was the perpetrator of the charged crime. (People v. Bloyd (1987) 43 Cal.3d 333, 346 [233 Cal.Rptr. 368, 729 P.2d 802].) In making this det