Full opinion text
Opinion EAGLESON, J. Defendant was convicted by a jury in the Los Angeles County Superior Court of the first degree murder (Pen. Code, § 189), robbery (§ 213), and kidnapping for robbery (§ 209) of Stanley Fahey, with personal use of a firearm in the commission of those offenses. (§§ 12022.5 & 1203.06, subd. (a)(1).) The jury also found true special circumstance allegations that the murder was committed in the perpetration of robbery and kidnapping (§ 190.2, subd. (a)(17)(i) & (ii)), and returned a verdict of death. At the close of the penalty phase evidence the court granted the People’s motion to reopen the guilt phase and instructed the jury regarding intent to kill as an element of the felony-murder special circumstances. The jury then returned a special finding that defendant had the intent to kill or to aid in the killing of the murder victim. Following the return of the penalty verdict, the court denied motions for a new trial and to reduce the penalty, and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) The principal guilt phase issue is defendant’s challenge to use of a dual jury procedure in which he was tried jointly with his alleged confederate Larry Alan Davison, but separate juries decided the guilt of each defendant. All special circumstance and firearm-use allegations against Davison had been dismissed prior to trial, and he was alleged only to have been armed or a principal in the commission of an offense in which another principal was armed with a firearm. (§ 12022, subd. (a).) Defendant claims the use of two juries was distracting, disruptive, and necessarily prejudicial because the jury that convicted him inevitably became aware that during periods when it was not present in the courtroom the jury trying Davison heard evidence inadmissible, but damaging, as to him. We conclude that defendant has failed to establish that the procedure was prejudicial to him. Although no statute sanctions the use of two juries, the procedure affords a practical and reasonable means by which to minimize the inconvenience and not inconsiderable burden on those witnesses who would otherwise have to testify in separate trials, and to conserve judicial resources. Because there was no error prejudicial to defendant at the guilt phase of the trial, we shall affirm the conviction and special circumstances findings. Reversal of the death penalty is mandated by People v. Montiel (1985) 39 Cal.3d 910, 928 [218 Cal.Rptr. 572, 705 P.2d 1248], and People v. Ramos (1984) 37 Cal.3d 136, 150-159 [207 Cal.Rptr. 800, 689 P.2d 430], however. I Facts On December 7, 1982, 17-year-old Stanley Fahey was robbed of $350 at Jessup’s Dairy, a convenience store in the Palmdale area at which he was employed. He was then kidnapped, shot three times in the back, and left to die as the result of internal bleeding. His body was found in the desert outside Palmdale, but the physical evidence was inconclusive as to the location at which he was shot. One witness testified that he saw a car like that owned by Larry Alan Davison near the robbery site. It was one of very few cars there at the time of the robbery. Another witness, who had seen the car at that location earlier in the evening, identified defendant and Davison who, she said, appeared to be signaling to a third person. A third witness saw a car similar to that owned by Davison near the place at which the victim’s body was found. Three witnesses testified regarding extrajudicial statements made by defendant and Davison, one of which suggested that defendant shot the victim after Davison had told him not to shoot. A. The Prosecution Case. The theory of the prosecution case was that defendant Harris, with Davison and Elton Juniel, had kidnapped Stanley Fahey in the course of a robbery and taken him to a desert dump area where defendant shot Fahey three times in the back as Fahey ran away with hands tied behind his back. The following evidence was offered in support of that theory. Donna Rigby stopped at Jessup’s Dairy to buy milk about 6 p.m. on December 7, 1982. Fahey, who was wearing a Palmdale High School letter-man jacket, waited on her. As she waited in a line of cars she noticed a very oxidized, large car, like a Cadillac, with áh aged and cracked vinyl or naugahyde top. Two men who were standing by the car appeared to be signaling a man who was walking around inside the dairy. Rigby watched the men for between five and ten minutes, occasionally losing sight of the man inside. She was upset by the suspicious behavior of the men, mentioning her concern to her sister-in-law who had accompanied her and, when she reached her home, to her husband. Rigby contacted the police two months after Fahey’s body was found, and on February 25, 1983, identified a photo of Davison as one of the men outside the store and a photo of defendant as the person who was inside the store. Rigby also identified Davison’s car, which had been impounded, as the car she had seen at the dairy. She later inspected a recent Palmdale High School yearbook in her home and concluded that the third man present at the dairy on December 7, 1982, had been Elton Juniel, whose photo was in the yearbook. Rigby identified both defendants at trial, again stating that defendant Harris had been the person she had seen inside the store. Beverly Hallowell stopped at the dairy about 8:46 p.m. on December 7, 1982. A white, older car with boxy, square tail lights was at the gas pump. She saw the driver, a cleanshaven White man about five feet nine inches tall, wearing a light blue windbreaker, with the gas pump in his hand, give the attendant, Fahey, what appeared to be money. At the time she stopped at the dairy it was very cold and the wind was approximately 35 miles per hour. The bakery racks were still outside. Fahey, who was wearing Levis and a Palmdale letterman jacket, told her he was ready to close as soon as the man in the white car was done. Hallowell also saw an older model yellow-gold Cadillac at the curb at the edge of the dairy lot. The car was badly oxidized and had a light top. She identified a photo of Davison’s car as apparently the car she had seen. A short Black man with an Afro was standing on the passenger side of the car. A taller Black man with darker skin and slicked black hair was standing on the driver’s side. She believed that defendant and Davison were the same height and race as the men she had seen. As Hallowell continued on toward her home she was passed by the Cadillac going very fast. A persoti in the passenger seat had his back pressed against the window as he faced the driver or the back seat. Michael Gudim, a customer, stopped at Jessup’s Dairy shortly before the usual closing time of 9 p.m. on December 7, 1982. It appeared that the market was closing. The portable bread and cake racks that were kept just outside the door when the market was open had been taken in. The lights were on, but no clerk was present. The cash register drawer was open, but held only checks, no cash. The money tray was not in the drawer. Another person arrived and called the sheriff. Deputy Budge arrived at the dairy at 9:18 p.m., three minutes after receiving the call. At that time there was a cold, blustery wind. It had been quite cool in the afternoon when Fahey arrived at work to replace the owner who had worked the morning shift. Budge and Deputy Taplin, who had also responded to the call, found half of a dollar bill and two pennies in the parking lot. The deputies suspected a robbery and possible homicide. They searched for shell casings, but none was found at that time. Three shell casings that may have been from .22-caliber bullets were found in the parking lot several days later. Searches of the same area in the interim had been unproductive, and, when found, the shell casings were lying in the open. Fahey had worked at the store for only two and one-half weeks, but was known to his employer, for whom he had worked at another location for two months, as a reliable employee. His employer’s wife had spoken to Fahey on the telephone at 7:30 p.m. The alarm company notified the employer at 9 p.m. that the store was open and the clerk gone. Some steps toward closing the store, steps normally taken about 8:30 p.m., had been accomplished. The south gasoline pumps had been shut down and readings taken. The south and east side gates had been closed. The south gate could be closed only by unfolding a portable rail or track on which it was pulled after unlocking a lock for which only the owner and the clerk had a key. The bread racks had been taken inside, one of the last steps before closing. Fahey had put bundled cash into a drop safe, a task that was performed periodically during the day so that the register would not contain large amounts of cash. Comparison of the cash register tape and the money found in the safe indicated that $356.63 was missing. Fahey’s truck was still in the parking lot, the key hanging on a pegboard inside the store. At 8 a.m. on December 9, Fahey’s body was found, lying face down, in the desert about two miles from Jessup’s Dairy. Two of three bullets that entered his body from the back could have caused his death. A fourth bullet had passed through the victim’s jacket without causing injury. The bullets, small to medium size or between .22 and .38 caliber, had travelled upward at angles ranging from 60 to 85 degrees. The angle travelled indicated either that the victim might have been shot by a person standing above and at least 18 inches behind his prone figure, or that the victim was shot while running away and leaning forward in the manner that he had been taught to accelerate from a stopped position by his football and track coach. Death could have occurred no later than 4 p.m. on December 8. The nature of the wounds was such that the victim might have survived for several hours after being shot, or could have died within 30 minutes. The People’s expert, a pathologist, after considering these factors and the abrasions on the face and head of the victim, believed that the force of the bullets caused Fahey to fall forward, hit his head, lose consciousness, and bleed internally while unconscious to the point that he was unable to get up. She found no evi- , dence that the victim’s hands had been tied. No bullets were discovered in the body or at the location at which the body was found. The dirt in a 10-foot radius was dug up to a depth of three inches and sifted. Because the bottoms of Fahey’s shoes were clean, it appeared that he had not walked on the ground in that area. Debris of a type found in the area and markings on Fahey’s clothing were consistent with his having been dragged to the spot where the body was found. On December 7, Robert Washburn had parked in the desert near the area where Fahey’s body was found to “cool off” after an argument with his wife. Between 8 and 10 p.m., he saw what appeared to be a gold 1972 Cadillac come within 40 to 45 feet of him, turn, and depart. Because the car resembled that of a friend whose car had been stolen, he followed the car, which made a U-turn, passed him, and turned again into the desert. When the car passed him he saw that it had a white vinyl top, unlike his friend’s car. He heard no gunshots during these observations. Washburn identified a gold Cadillac owned by Davison as the car he had seen. He testified that the two occupants were Black. One had a short haircut, the other an Afro. He pointed out Davison, who was at the police station while Washburn was there, as looking similar to one of those men. Ronnie Linicome, who had been a paid informant for Sergeant Wachsmuth of the sheriff's narcotics unit, called Wachsmuth on December 13 and told him that defendant had bragged about the crime at the dairy. He testified that defendant and Davison were friends he had known for years. On December 10 or 11, during a visit by Linicome to defendant’s home, Linicome told defendant that he had heard defendant “killed a boy down at the dairy.” He asked defendant if that was true, and defendant replied: “Yeah, killed the mother fucker . . . Larry tied his hands and took the mother fucker out in the desert and blowed his head off.” When Linicome suggested he was lying, defendant said, “No, I’m serious. I can’t stand White people. Just like I hate the mother fuckers.” Asked why he had killed for $350, defendant replied he did not give “a fuck.” Linicome did not report this conversation to the sheriff at this time. Several days later defendant came to Linicome’s house. While defendant was there six men whom Linicome assumed were police came by and asked Linicome where they could obtain cocaine. After Linicome told them he did not know and the men left, defendant asked what they had wanted. Linicome told him, at which point defendant said that the men might be police, and that had they asked him, he would have blown their heads off just as he did a White boy. Linicome’s sister testified that she had been present during that conversation between Linicome and defendant and that she heard defendant say he would “do them just like he did the boy.” Linicome testified that defendant then went across the street to a store. Larry Davison walked up and said, “I wouldn’t go to jail for nobody for no murder.” Linicome asked him what had happened, at which point defendant returned and threatened to blow Linicome’s head off if he “snitched.” Linicome also testified that defendant had twice threatened to kill him if he “snitched,” and that he, Linicome, had seen the outline of a “little hand-sized gun” under defendant’s clothing. Dovie Wilson, a friend of defendants Larry Davison, and Elton Juniel, testified that she had been at the home of Juniel’s sister, Regina, shortly before Christmas 1982. While there she overheard a conversation in a bedroom, whose door was closed, about a murder. She recognized the voice of Davison say: “It was a clean robbery, a clean murder, clean getaway. Everything was clean.” She then heard a voice she did not know ask: “So why did you kill the guy?” to which she heard defendant’s voice reply: “Don’t get me wrong or anything, but I’m the one that shot him.” The unknown voice asked what Davison had to do with it, and defendant replied that “[i]t was Larry’s idea in the first place.” Wilson testified that defendant said “that he took the guy from the dairy and they held him for a little while, then took him out to the desert, and said ‘run,’ and started shooting.” Defendant said he had intended to shoot to scare the victim, but when Davison yelled at him, “No, Von, don’t shoot it,” defendant shot the victim because Davison had used his name and he did not want to go to jail. After defendant said that, Davison laughed, and she heard him say, “Elton drove and it was the coolest driving he had ever seen,” to which Juniel responded, “[wjell, when you got it, you got it.” Dovie left the hallway where she overheard this conversation when it seemed that the people in the bedroom were coming out. She looked out the window two or three minutes later and saw Elton Juniel standing next to a car in which defendant Davison and a third person were sitting. Phillip Thompson, a jail inmate who had been on a bus traveling between the Antelope Valley courthouse and the jail with defendant and other murder defendants, testified that he heard defendant make incriminating statements in conversations among the murder defendants. In March or April 1983, in a holding cell in the Antelope Valley courthouse, Thompson heard defendant tell Davison to “stop sniveling,” saying, “you know, we’re all in it together,” to which Davison replied that he did not go to the dairy to do any killing, just to “game somebody out of some money.” Defendant said, ambiguously, that “he” was as guilty as anybody. On another occasion in the holding cell, defendant said they were at the dairy too long because people were coming in and out, that they had wrestled the kid down and put him in the walk-in refrigerator, and Davison had commented that it was a lot of trouble for so little money. Defendant had said that the kid must have suspected he was going to be held up, because he put the money where they could not get it. Thompson heard defendant say that if the kid had done as he was told, there would not have been any trouble. On yet another occasion defendant told a young woman who was also being transported to contact Linicome and tell him “if he knows what’s good for him, not to be in court.” Davison made no comment when this was said. No evidence linking Harris to the crimes was found in a search of his home, and experts who examined Davison’s car found no blood or other body fluids to indicate that Fahey might have been transported in that car. Although there were numerous tire tracks in the area in which Fahey’s body was found, none could be matched with the tires on Davison’s car. B. The Defense. Defendant offered an alibi defense through his father, Charles Harris, who testified that he, defendant, defendant’s wife Denise, and their two children shared a home. When he arrived home on December 7, 1982, defendant was coming and going. Charles Harris left for a 6 p.m. session of traffic school and returned to the home at approximately 9:35 p.m., but it might have been as late as 10 p.m. At that time, defendant, Denise, and the children were watching television together. The balance of the defense was cross-examination and introduction of evidence intended to impeach the prosecution witnesses, and evidence suggesting that the driver of the older, white, American-made car that had been at the dairy shortly before 9 p.m. had committed the crimes. Caryn Cole and Denise Shroyer testified that they had driven past the dairy between 8:40 and 8:50 p.m. on the Tuesday before the Thursday on which they read about the death of Fahey. They were going to a group of apartments located behind the dairy, apartments in which Caryn’s former boyfriend lived. The bread racks at the dairy were still outside, all of the lights were on, and all of the gates were still open. As they passed in front of the dairy and turned into the second driveway at the south corner of the dairy parking lot, they each saw the older, white car between the gas pumps with the driver’s side door open. No one was in the car. They stopped for about a minute while Denise revved her engine to attract the attention of Caryn’s friend, and then started to back out of the driveway. As they did so, the white car came up behind them, almost hitting Denise’s car. She pulled back into the driveway to let it pass. The white car was moving fast enough to cause its tires to screech as it turned a corner. While they were driving on into town, the same car passed them, flashing its headlights and tailgating until it came up beside them and turned off. They had been driving between 35 and 55 miles per hour when that car overtook them. Caryn believed the white car was a Chevrolet. When Denise was shown a Chevrolet Impala by police, she stated that it was not the car she had seen at the dairy. She believed the car she had seen was an older, white Nova with three across, square tail lights. Denise had seen a man in the dairy with Fahey when they drove past the white car at the gas pumps. The man was White, had short light brown hair. He wore a blue jacket and glasses. Denise believed he was about five feet seven inches or five feet eight inches tall and stocky. Fahey, whom Denise knew, did not wave as he usually did. Denise noted that all of the lights were on, and all the gates open when she first drove by the dairy. When she was leaving, the lights by the south gasoline pumps were off. The gates were still open when she left. Brenda White had lived in an upstairs apartment next to the dairy in December 1982. She recalled that on a night during that month, while she entertained visitors, a number of police cars had come to the dairy. Earlier she and her visitors heard two loud noises between 8:30 and 9 p.m. After the police questioned her about the events at the dairy, she assumed the sounds she had heard were gunshots. Before hearing those sounds she had looked out of the window and had seen a young man in a high school letterman jacket at the gasoline pumps. No cars were there. She looked out again after hearing the sounds and saw a light-colored American four-door car that could have been an Impala. The driver’s door was open. A man walked toward the car, apparently coming from the dairy, carrying something. He was between five feet nine inches and six feet tall, heavy, with dark blond or light brown hair, and wore a dark blue windbreaker and matching pants. The object he was carrying was held under his jacket. It appeared to be the size of a six pack of beer. She did not think it could have been a cash register tray. The lights at the dairy were still on when she saw the man walking to the car. White did not recall hearing the sound of an engine being revved at that time, but a few minutes after hearing the sound she thought were gunshots she did hear a car tear out of the dairy driveway with tires screeching. White also testified, inconsistently, that her guests did not leave until 20 to 30 minutes after she heard the loud noises, and as they were leaving she saw the man in a letterman’s jacket. She was sure she saw him after the noises because that was when her company left. The white car was not in the parking lot when she saw him. The time between the loud noises and the time she saw the white car was about 40 minutes. Joyce Mainer had pulled into a line at the dairy about 8:40 p.m. on December 7, 1982. A man in the dairy waited on a maroon-colored car which then left. The man who waited on the woman ahead of Mainer looked at Mainer, so she leaned forward in the light to allow him to see who she was. His actions seemed strange. He went over to the car ahead and the driver left. He was tall, had blond curly hair, wore Levi’s and a pair of tennis shoes, but did not appear to be dressed warmly enough for the temperature. When Mainer pulled up and looked inside she saw another person in the dairy, and heard him ask the taller person what the woman had asked for. The tall man replied that she had asked for Winston Ultra Light 100’s; he knelt down and looked at the counter; and then said, “we don’t have any.” The smaller person was about five feet seven inches tall and slim. He had blonde hair, and a short-sleeved light-colored sport shirt. She did not believe the jacket she saw on the man who waited on her was the letterman jacket depicted in a photo shown to her. The man who waited on her knew, without checking, the price of the gallon of milk she purchased. On December 8, 1982, Deputy Sullivan stopped and spoke with the driver of a 1965 Chevrolet parked on a dirt road about 150 to 200 yards from where Fahey’s body was later found, but he did not obtain identification of the man. He saw the same vehicle on December 9, and determined that the driver was Arlen Shores. The car was an Impala, and had round tail lights. Evidence to impeach several prosecution witnesses was offered either during cross-examination or during the defense case. Washburn’s mother-in-law, a registered nurse with training in the prescription and administration of drugs, testified that she observed Washburn drinking alcoholic beverages in December 1982. He appeared to have a drinking problem and demonstrated the symptoms of a person combining alcohol with drugs. His use of Ritalin exaggerated the effects of alcohol. She had seen Washburn on the morning of December 7, 1982, at which time he showed symptoms of drinking. On cross-examination Washburn had acknowledged that he was undergoing psychiatric therapy, and had prescriptions for Tylenol, codeine, Valium, and Ritalin. A deputy probation officer assigned to prepare a report for Thompson, testified that Thompson had been promised a “county lid,” in connection with another case. No promises had been made to him with regard to this case. Sergeant Finnigan testified that he had interviewed Dovie Wilson several times. She made inconsistent statements during these interviews regarding those present at the time she overheard the conversation in the bedroom of Regina Juniel’s home. After first stating to Finnigan during an interview on January 9, 1983, that Albert Linicome was one of those present in the bedroom when she overheard the conversation about the robbery and murder, she stated on January 10 that she was not sure if he was present. The interview on January 10 took place in a van parked in front of her grandmother’s house. Both Ronnie Linicome and Albert Linicome were present in the van when she changed her story. Sergeant Finnigan also testified that his understanding of what Dovie had told him regarding persons present when she overheard the conversation differed after the interview on the 10th. Dovie told him during one interview that Regina had been in a back bedroom watching television and probably did not overhear the conversation. On other occasions she said that Regina was in the living room. At one point Dovie told him her “girlfriend” was not present at all. After this interview with Dovie, Sergeant Finnigan decided not to execute an arrest warrant for defendant Harris, and Davison, who was in custody, was released. During a subsequent interview on March 6, however, Dovie said that Regina had been present and was in the living room of the home when Dovie returned to that room after overhearing the incriminating conversation. Dovie stated that no one else was present, and refused to identify Regina initially, because she had not wanted to involve anyone else. Regina Juniel testified that her brother Elton was not living in the house where she lived with her mother in December 1982, and that during that month there was no time when Dovie Wilson, defendant, and Larry Davison were all at her house. She testified further that Dovie had not been in her house during December 1982, and she had never seen defendant at her house. Although Dovie testified that she had been watching television in the Juniel living room before she went down the hall and overheard the conversation in the bedroom, Regina testified that there was no television in the living room. Willie Juniel, mother of Regina and Elton, testified that to the best of her knowledge defendant and Davison had never been in the house, and that the only time Dovie Wilson had been there was in February 1983. Linicome told the sheriff’s department that defendant had threatened to kill him and his family if defendant was arrested. Linicome’s brother, Albert, had been arrested for threatening a witness in this case, and a sheriff’s sergeant told Ronnie not to worry. Albert was held for only 30 minutes, however, and had been released at the time Ronnie gave information to Sergeant Finnigan. Kevin Woods gave an alibi for Elton Juniel for the period of the robbery/homicide. His wife, Brenda, confirmed that alibi, testifying that her husband and Elton picked her up at the junior high school at which she was a substitute teacher after work on December 7, took her home, left, and returned at 7 or 7:30 p.m. She then gave Elton a perm, a three-hour process, while Kevin prepared dinner. II Jury-related Issues A. Dual Jury. Because the defendants’ extrajudicial statements implicated not only the declarant defendant, but also the other, it was anticipated that some would not be admissible against the nondeclarant. (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].) For this reason the trial court, after denying the defendants’ motions for separate trials, impanelled two juries. The jury trying the nondeclarant was to be excused when evidence was admitted of an extrajudicial statement by the other defendant implicating him, or when evidence relevant to only one defendant was to be heard. Because appellant challenges this procedure in his appeal, we will identify below the occasions on which one of the juries was excused. 1. Procedure in dual jury trial. The two juries were separately selected. At the outset of the trial, the information charging each defendant was read only to the jury impaneled to try that defendant, with the other jury excused to wait in the jury room. Preinstructions were given with both juries in the courtroom, one seated in the jury box, the other in seats otherwise used by the audience. The juries switched locations each week. The following special instruction was given with respect to the conduct of each jury toward the other: “Now, I am going to admonish you further, the jury seated in the jury box and the jury seated in the audience, during the pendency of this trial you are not to communicate with each other. If you see each other in the halls—we are trying to keep you separate and that is the purpose for this—you are not to communicate with anyone that you know is on another jury. You are not to have lunch. You are not to go anywhere with them. You are not to ride with them. You are to remain absolutely separate from each other. “Further, you are not to, again, discuss the facts of this case amongst yourselves in this jury and the Davison jury.” The prosecutor then gave his opening statement, the Davison jury was excused, and counsel for defendant Harris gave his opening statement. The People commenced presentation of their case-in-chief on March 13, 1984, before both juries. Trial continued with all witnesses testifying before both juries until March 21, 1984. Thereafter, the following occurred. March 21, 1984 Counsel for Davison moved to have the Davison jury excluded during that part of Dovie Wilson’s testimony in which she would testify regarding statements she heard defendant Harris make that implicated Davison. The motion was expressly predicated on the holding of this court in People v. Aranda, supra, 63 Cal.2d 518, 530, that any part of one codefendant’s extrajudicial statement that implicates another codefendant must be excised before the extrajudicial statement may be introduced at a joint trial of the codefendants. Counsel for Harris later joined in the motion after counsel for Davison argued that unfairness to Harris would result if both juries were present during his cross-examination of Wilson since he intended to emphasize the greater or exclusive culpability of Harris. The prosecutor argued that the proposed testimony was admissible against both defendants because the statements Wilson attributed to nontestifying declarants that implicated defendants were admissible as adoptive admissions. After the court ruled that cross-examination would be before only the jury trying the defendant whose counsel was cross-examining Wilson, counsel for both defendants withdrew their motions. Wilson’s testimony on direct, on cross-examination, and on redirect, was then given before both juries. Wilson, who was 17 years old at the time of trial, testified about the conversation she overheard in the home of Regina Juniel in December 1982. Counsel for defendant Harris, followed by counsel for defendant Davison, then cross-examined Wilson, each eliciting from her a series of responses indicating lack of recall of her own past statements or testimony, lack of knowledge of other past events, and even a professed lack of knowledge of whether she lacked recall of those past events, statements, and testimony. On redirect Wilson testified that she overheard defendant Harris say: “Larry said, ‘No, Von, don’t shoot him.’ ” Defendant Harris used both names in that sentence. March 23, 1984 Darrel Rogers and his father, Gordon Rogers, testified during the morning session before the Davison jury only. Ronnie Linicome testified during the afternoon session before the Harris jury only. The parties agreed that only the Davison jury should be present during Darrel Rogers’s testimony. Counsel for defendant Harris asked that the Harris jury, which was not present at the time, simply be excused without reference to the fact that testimony would be heard in the absence of that jury. The court then directed the bailiff to excuse the Harris jury until the afternoon session. Counsel for Harris, and Harris personally, then stipulated that Rogers could testify in their absence, and stipulated that Rogers would identify Harris if Harris were present. Rogers then testified regarding an admission made to him by Davison that Davison and his “homeboy” committed a robbery that ended in a murder which Davison had nothing to do with. Other details of the admission identified the location as the Jessup Dairy. Gordon Rogers then testified, in the presence of the Davison jury only, that when he visited Darrel Rogers in a jail facility in late December 1982, he had a conversation with Darrel about this case, and that Darrel became upset during a later visit when Gordon Rogers told him that he had advised the sheriff about the first conversation. During the afternoon session, the Davison jury was excused, Davison stipulated to his own absence, and Ronnie Linicome testified in the presence of the Harris jury about defendant’s admissions. March 26, 1984 Ronnie Linicome’s testimony resumed on the morning of March 26, before the Harris jury only. He confirmed his testimony of March 23 that defendant had said to him that Davison had tied the victim’s hands. Linicome was followed by his sister, Martha Stephens, and by Sergeant Wachsmuth. Their testimony related to matters intended to rehabilitate Linicome, and corroborate his testimony. The Davison jury was not present on this day. March 28, 1984 Only a morning session was held. Robert Washburn, who had testified earlier regarding his observation of the gold Cadillac in the desert on the night of the robbery and murder, was recalled and testified before both juries. Dolores Rogers, followed by Gordon Rogers, then testified before the Davison jury only. March 29, 1984 Phillip Thompson, the only witness on this date, testified before both juries. April 2, 1984 William Gillis, John Trowbridge, Glenn Snyder, and Andrew Finnigan testified before both juries. Their testimony established that various details regarding the case had not been published in the two Antelope Valley newspapers prior to the preliminary hearing, and that the witnesses who made statements to investigating officers prior to that date could not have obtained their information from those newspapers. April 3, 4, 5, & 9, 1984. The People rested their case at the opening of the April 3, 1984, session. A motion by defendant for a directed verdict pursuant to section 1118.1 on the kidnapping and robbery special circumstances was denied. Counsel for Davison presented his opening statement to the Davison jury only, and thereafter, on April 3 and the three following trial days, a total of 18 defense witnesses testified before both juries. April 10, 1984 Sergeant Andrew Finnigan was the last witness on April 9. His testimony continued on April 10, in the presence of the Harris jury only. No evidence incriminatory to Davison was elicited during this session. After another witness testified before both juries, Sergeant Finnigan was cross-examined first before both juries, and then before only the Davison jury. April 11, 1984 The cross-examination, redirect, and recross of Sergeant Finnigan continued before both juries during the morning session on April 11, after which defendant Harris rested his case. Proceedings continued in the afternoon before the Davison jury only. Two witnesses testified, after which Davison also rested. Three rebuttal witnesses then testified before both juries. April 12, 1984 Two witnesses testified on April 12, one a rebuttal witness, and Sergeant Finnigan a surrebuttal witness, each before both juries. All parties then rested the guilt phase case. After arguments were presented to the Harris jury on April 17, the jury commenced deliberations and returned its verdict on April 24. The verdict was sealed pending deliberation by the Davison jury; the jury was excused until April 30, and on that day the verdict was announced. Proceedings for each defendant were conducted separately as of the session at which argument was presented to the Harris jury. 2. Challenge to trial with dual juries. As demonstrated by the description above, during the Harris guilt phase trial there were three sessions during which testimony was received while the Davison jury was absent, and five during which the Harris jury was excused while the Davison jury heard testimony or argument. Only one witness, Linicome, testified before only the Harris jury regarding an out-of-court statement by Harris that implicated Davison. Defendant argues, nevertheless, that this dual jury procedure was both improper and prejudicial. We consider first whether the procedure is a permissible means by which to achieve the goal of preventing prejudice to a defendant by the introduction of an extrajudicial statement made by his jointly tried codefendant. Defendant’s observation that use of separate juries for jointly tried codefendants is not among the procedures sanctioned by this court in People v. Aranda, supra, 63 Cal.2d 518, is correct. In Aranda, the court adopted a judicially declared rule of practice intended to implement the command of section 1098 that jointly charged defendants “must be tried jointly, unless the court order separate trials.” Aranda held: “When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. ... (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible.” (People v. Aranda, supra, 63 Cal.2d 518, 530-531.) It does not follow from the court’s adoption of only those three alternatives that other procedures are improper if they serve the same purpose and do not prejudice the defendants. Indeed, in Aranda the court acknowledged the considerations favoring joint trials, considerations that prevail unless an alternative procedure is necessary to protect the defendants’ rights. “In justification of joint trials it has been pointed out that they conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in the punishing of the guilty. These practical considerations of convenience must be subordinated when they run counter to the need to insure fair trials and to protect fundamental constitutional rights.” (63 Cal.2d at 530, fn. 9.) The court did not consider in Aranda whether a dual jury procedure was a permissible means by which to achieve the goal of facilitating the legislative preference for the trial of jointly charged defendants together. It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court. (People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5 [233 Cal.Rptr. 264, 729 P.2d 698]; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].) Aranda does not, therefore, forbid procedures other than the alternatives it approved. The sole question here is whether the procedure utilized in this case ensured defendant a fair trial at which his fundamental constitutional rights were protected. We are not persuaded by defendant’s argument that use of a dual jury, as an abstract proposition or in the instant case, is necessarily prejudicial. In support of his attack on the procedure defendant claims that: (1) it is “cumbersome” and causes inconvenience to the jurors; (2) by increasing the projected duration of the trial, decreases the number of jurors on the panel from which the jury is to be selected who are able to serve without hardship and thus threatens the defendant’s right to a jury drawn from a representative cross-section of the community; (3) creates a danger that jurors frustrated by the delay and inconveniences caused by the procedure will blame the defendant for their discomfiture; and (4) invites each jury to speculate that, during the time it is excluded, evidence damaging to the defendant whose case that jury is trying is being presented to the second jury. . That any of these “dangers” may be a reality is sheer speculation on the part of defendant. Nothing in the dual jury procedure described above, or in the record of this case, supports that speculation. The times when and manner in which the Harris jury was excused are not shown to have been either cumbersome or inconvenient for the jurors. On most occasions the jurors were simply told when excused at the end of a session that they need not report until a particular time or day, a procedure that is common to all trials. And defendant makes no effort to support his claim that it is “inconvenient” for a juror to be given a morning or afternoon off during a trial. Breaks in the presentation of evidence are not unusual. Defendant makes no effort to substantiate his theory that such breaks, whether in a dual jury trial or otherwise, affect the jury’s attitude toward the defendant. Nor does defendant point to anything in the record of this case which suggests that any greater number of prospective jurors were excused for hardship than could be expected in any trial of a capital offense. Nor can we agree with defendant that the jurors would necessarily speculate regarding the nature of the evidence presented during sessions from which they have been excused. Defendant claims that because his jury heard evidence of his highly incriminatory extrajudicial statements, and those statements also implicated Davison, his jury would speculate that in its absence the Davison jury was hearing different testimony that was also highly incriminatory as to both himself and Davison. We disagree. It is not clear that the Harris jury was even aware that evidence was being presented to the Davison jury or that the court was in session on some of the occasions when it was excluded. The use of dual juries has been upheld in the only California case in which the issue was properly raised. (People v. Wardlow (1981) 118 Cal.App.3d 375, 382-387 [173 Cal.Rptr. 500].) In every federal and state decision called to our attention by the parties, the court has upheld against constitutional attack the dual jury procedure as used in the case before it. Among the most recent of these decisions is that of the Appellate Department of the New York Supreme Court which acknowledged concerns regarding potential prejudice, but rejected the due-process-based claims of defendants jointly tried before separate juries that the procedure denied them a fair trial. (People v. Ricardo B. (1987) 130 App.Div.2d 213 [518 N.Y.S.2d 843, 847].) “Although the use of two juries as an innovative and economical alternative to severance has been upheld in other jurisdictions in the absence of demonstrated prejudice, the procedure has not been generally endorsed or encouraged, particularly by State courts (see, e.g., State v. Corsi, 86 N.J. 172, 430 A.2d 210; Scarborough v. State, 50 Md.App. 276, 437 A.2d 672; State v. Lambright, 138 Ariz. 63, 673 P.2d 1, cert, denied, 469 U.S. 892, 105 S.Ct. 267, 83 L.Ed.2d 203). The Supreme Court of New Jersey has warned that ‘the multiple jury procedure . . . can involve substantial risks of prejudice to a defendant’s right to a fair trial’ and that ‘there are too many opportunities for reversible error to take place. We do not recommend it’ (State v. Corsi, 86 N.J. 172, 178, 430 A.2d 210, 213, supra). Although the procedure is viewed more favorably by the Federal courts, . . . they hold that there must be no infringement upon due process in its use, or prejudice to a defendant’s defense at trial (see, e.g., United States v. Lewis, D.C.Cir., 716 F.2d 16, 19, cert, denied sub nom. Motlagh v. United States, 464 U.S. 996, 104 S.Ct. 492, 78 L.Ed.2d 686; see also, United States v. Sidman, 9th Cir., 470 F.2d 1158, cert, denied, 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260). We note that no court, State or Federal has held the procedure to be inherently prejudicial, nor has any court to date found specific prejudice warranting reversal in the matter before it.” (Ricardo B., supra, 518 N.Y.S.2d 843, 847. Italics added.) In a recent federal decision, the First Circuit joined the Eleventh, Ninth, Sixth, and District of Columbia Circuits in accepting the use of dual juries, stating only that it found no abuse of discretion in impaneling the two juries as an alternative means by which to avoid severance in a trial in which statements by some codefendants that were irrelevant to the case against others were to be admitted. (U.S. v. Lebron-Gonzalez (1st Cir. 1987) 816 F.2d 823, 830-831.) In an opinion and order granting a prosecution motion to use dual juries in a conspiracy prosecution in which Bruton v. U.S., supra, 391 U.S. 123, would compel editing or exclusion of some statements by defendants, the Chief Judge of the United States District Court of the District of Puerto Rico endorsed the procedure: “The use of the dual jury, although novel before this Court, has nevertheless been used as an effective tool to solve problems similar to the ones described herein. “The procedure is not to be condemned based on novelty alone since ‘fair new procedures which tend to facilitate proper fact finding are allowable although not traditional.’ [Citations.] The ‘spectre of risks’ should not deter courts from implementing innovative and resource saving procedures. [Citation.] The double jury has been adopted among other reasons as an economy measure, and ‘as long as the procedure comports with the ethos of due process commanded by the rules of criminal justice’ there should be no reason for its rejection. [Citation.] Four circuits have held that double jury procedure is not a violation of due process. The procedure is to be sustained as long as the defendant enjoys the rights given by the Constitution, the Sixth Amendment, and the rules.” (United States v. Gonzalez (D.P.R. 1985) 610 F.Supp. 568, 571.) The first federal appellate decision in which the use of dual juries was considered is that of the Ninth Circuit in United States v. Sidman (9th Cir. 1972) 470 F.2d 1158. There, too, a defendant objected on grounds that the procedure denied due process, speculating that the juries would infer that the defendants should be treated differently, or that one was a less active participant than the other in the charged robbery. On appeal, the court first rejected claims that the procedure violated the right to jury trial guaranteed by article III, section 2, clause 3, of the United States Constitution, the Sixth Amendment thereto, and the Federal Rules of Criminal Procedure. Addressing the jury trial issue, the court noted that the appellant had been accorded every right guaranteed him by the United States Constitution. He had a joint trial on all of the evidence that was admissible against him and his codefendant, and a separate trial on evidence admissible only against him under Bruton, supra, 391 U.S. 123. The due process claim was rejected with the observation that the defendant had not been “denied any fundamental right” but on the contrary enjoyed all the rights and privileges given to them by law. (United States v. Sidman, supra, 470 F.2d 1158, 1169-1170.) Other courts have voiced their concern about the potential for error or prejudice on which defendant rests his argument, but none has found such prejudice in actual practice. In United States v. Lewis (D.C. Cir. 1983) 716 F.2d 16 [230 App.D.C. 212, 72 A.L.R.Fed. 863], the court reviewed the cautious acceptance of the procedure by other courts, and it too affirmed a judgment imposed after trial before dual juries: “We follow the lead taken by our sister circuits while acknowledging the warnings eloquently voiced by various state courts. We accept the dual jury procedure so long as it comports with the ethos of due process commanded by our stringent rules of criminal justice. In evaluating the application of the dual jury procedure in particular cases our focus too is upon whether there exists evidence indicating that the dual jury caused specific prejudice to someone’s defense at trial.” (716 F.2d at p. 19.) Other circuits and the courts of many of our sister states have affirmed convictions after trial by dual juries even where the court finds the procedure to be unauthorized and requires additional safeguards in future cases. (See, e.g., United States v. Hayes (11th Cir. 1982) 676 F.2d 1359, 1366 [“neither has alleged any more than a generalized possibility of harm”]; Smith v. DeRobertis (7th Cir. 1985) 758 F.2d 1151; United States v. Rimar (6th Cir. 1977) 558 F.2d 1271, 1273 [“nowhere in the record do we find any continuing confusion, so pervasive as to render the trial unfair.”]; United States v. Rowan (6th Cir. 1975) 518 F.2d 685; United States v. Crane (6th Cir. 1974) 499 F.2d 1385; State v. Lambright (1983) 138 Ariz. 63 [673 P.2d 1, 8, 41 A.L.R.4th 1165] [“[defendant in the instant case can point to no specific error occurring at trial”]; Feeny v. State (Fla.App. 1978) 359 So.2d 569, 570 [“[i]n the absence of demonstrated prejudice we are loathe to disapprove the novel procedure employed sub judice.”]; State v. Beam (1985) 109 Idaho 616 [710 P.2d 526, 532] [“cases . . . are unanimous in refusing to reverse a conviction merely based on the use of this procedure, without some specific showing of prejudice.”]; People v. Ruiz (1982) 94 Ill.2d 245 [447 N.E.2d 148, 153-154] [no per se denial of constitutional protection]; People v. Johnson (1986) 150 Ill.App.3d 1075 [502 N.E.2d 304, 314-315]; People v. Knight (1985) 139 Ill.App.3d 188 [486 N.E.2d 1356, 1361] [triple jury trial not per se violation of defendant’s rights and no specific prejudice alleged]; State v. Watson (La. 1981) 397 So.2d 1337, 1342 [“appellant has failed to demonstrate prejudice”]; People v. Brooks (1979) 92 Mich.App. 393 [285 N.W.2d 307, 309] [“defendant was afforded a fair trial”]; State v. Hernandez (1978) 163 N.J.Super. 283 [394 A.2d 883, 885] [“defendant received a fair trial, ... no prejudice resulted to him.”].) Nothing in the rules, statutes, or Constitution of California compels a different result in this state. We conclude, therefore, that the use of dual juries is a permissible practice. The procedure is not a basis for reversal on appeal in the absence of identifiable prejudice resulting from the manner in which it is implemented. Like the appellants in the many out-of-state cases in which use of a dual jury has been asserted as a basis for reversal on appeal defendant here identifies no specific or demonstrable prejudice. Instead he attempts to distinguish the trial in which he was convicted as one involving complexities not present in the many cases in which the federal courts and courts of other states have affirmed convictions. As our description of the means by which the evidence was presented to the juries confirms, however, this trial was not procedurally complex. It involved only two defendants and the only crimes charged were the murder and the related robbery and kidnapping. The scheduling of witnesses who appeared before only one, or separately before each jury, minimized the number of times defendant’s jury was excused. The record simply does not support defendant’s speculative assertion of prejudice. Nor do we find persuasive defendant’s claim that this trial should be distinguished because the trial court failed to use “meticulous care” by repeatedly admonishing the jury. Counsel for both defendants agreed that the admonitions need not be repeated at each session, and we do not question that decision. Counsel may have concluded that repeated admonitions to a jury that it should not speculate regarding the nature of the evidence being presented to the other jury would invite just such speculation by emphasizing that the other jury was hearing evidence to which it was not privy. And, as the People note, there were many instances in which the jury was excused while hearings were conducted pursuant to Evidence Code section 402, after which a witness testified. We reject as well defendant’s conjecture that the Harris jury would infer that the reason the Davison jury was absent during Linicome’s testimony was his incidental reference to Davison when describing defendant’s extrajudicial admissions, and would reason from that inference that there was evidence of defendant’s guilt which it had not heard. He offers no support for the suggestion that hearing evidence from a single witness about an extrajudicial admission inculpating the other defendant necessarily or even likely implies to the jury that the second jury is hearing evidence to which it is not privy regarding the guilt of the defendant it is trying. This court may reverse the conviction only if it concludes that use of a new procedure is error and “that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 837 [299 P.2d 243]) or that the procedure resulted in prejudice to the defendant which denied him the fair trial guaranteed by the Fourteenth Amendment. Because the dual jury trial was neither erroneous nor prejudicial, reversal is not warranted. B. Denial of Jury Selected From Representative Cross-section of Community. Defendant contends that the trial court’s refusal to order payment of juror fees in excess of the statutory $5 daily fee authorized by section 1143 denied him the right guaranteed by the Sixth Amendment to the United States Constitution and article I, section 16 of the California Constitution. The record does not support this claim. The record does establish that, notwithstanding the efforts of the court to avoid excusing jurors on the grounds of hardship when employers were unwilling to continue payment of salaries for the protracted period of a capital case, many jurors were excused for financial hardship, or because their absence from a job would cause serious hardship to an employer. The record does not establish, however, that any cognizable class of jurors received excuses on grounds of financial hardship. Defendant acknowledges that the court rejected a similar claim in People v. Milan (1973) 9 Cal.3d 185, 195-196 [107 Cal.Rptr. 68, 507 P.2d 956], In that case excuses were granted to any prospective juror who executed a hardship affidavit. He argues that the issue should now be reconsidered because this is a capital case in which the role of the jurors goes beyond fact finding and includes determination of the appropriate penalty, and because the juror fee has not been raised in the interim even though salaries have increased “dramatically.” Defendant notes that 28 percent of the prospective jurors received hardship excuses in this case, and that at the time jury selection actually began less than half of the panel remained. On this basis he argues that it is clear that the “demographic balance” of the group from which the jury was selected had been upset. Something more than speculation is required, however, to establish the denial of the claimed right. In order to establish underrepresentation, and thus denial of an impartial jury drawn from a fair cross-section of the community, a defendant must make a prima facie showing: “(1) that the group alleged to be excluded is a ‘distinctive, group in the community; (2) that the representation of this group in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364 [58 L.Ed.2d 579, 587, 99 S.Ct. 664].) If the prima facie showing is made, the burden shifts to the People to rebut that showing. A “cognizable group” for analytical purposes is one whose members are distinctive in that they share a common perspective arising from their life experiences in the group, a perspective gained because they are members of that group and one that cannot be properly represented by jurors who are not members of the group. (People v. Harris (1984) 36 Cal.3d 36, 51 [201 Cal.Rptr. 782, 679 P.2d 433]; Rubio v. Superior Court (1984) 24 Cal.3d 93, 98 [154 Cal.Rptr. 734, 593 P.2d 595].) Only when a defendant demonstrates a significant disparity between the demographics of the panel or venire from which jurors are to be selected and that of the community does the question of whether the disparity results from systematic exclusion arise. (See O'Hare v. Superior Court (1987) 43 Cal.3d 86, 93 [233 Cal.Rptr. 332, 729 P.2d 766].) Defendant’s claim fails on all grounds. He has not established that the persons excused on hardship grounds in this case constitute a cognizable class. He suggests that the resulting panel consisted only of persons who did not need employment, or whose employers continued their salaries, but the record confirms neither this claim nor the implicit assertion that those persons who were excused constitute a cognizable class. What the record does establish is that the trial court complied with this court’s admonition in People v. Wheeler (1978) 22 Cal.3d 258, 273 [148 Cal.Rptr. 890, 583 P.2d 748], that it be “alert to prevent. . . excessive excuses on such grounds as sex, age, job obligations, or inadequate jury fees [which] can upset the demographic balance of the venire in essential respects.” Ill Guilt Phase Issues A. Prosecutorial Misconduct. In an attempt to persuade the court that cumulative prejudicial error so infected the trial as to require reversal, defendant identifies numerous events which he characterizes as instances of prosecutorial misconduct. Some involved admission of evidence, others argument of counsel. As to most, there was neither objection nor misconduct. In one instance, the assertedly “improper” evidence was elicited not by the prosecutor, but by the defendant. Few of these “errors” or instances of misconduct, therefore, warrant extended discussion. 1. Opening statement. In his opening statement, the prosecutor told the jurors that they would hear from persons who had criminal backgrounds to whom defendant had confessed, but that one witness was “a young lady who, I believe, you will perceive has a past and, I suspect, a future as clean as new-fallen snow.” Defendant contends that the prosecutor thereby engaged in misconduct, to which defendant objected and sought mistrial, by “vouching” for the character of Dovie Wilson and referring to character evidence that was never in fact introduced. We reject what appears to be an attempt to elevate hyperbole into misconduct. Counsel for both defendants objected that the remark constituted character evidence that could not be properly offered in the absence of an attack on Dovie Wilson’s character. Defendant argues that the remark was improper because evidence of a trait of a witness’s character other than honesty or veracity is inadmissible to attack or support the credibility of the witness (Evid. Code, § 786) and evidence of good character may be admitted only after evidence of bad character has been admitted to attack the witness’s credibility (Evid. Code,