Full opinion text
Opinion PANELLI, J. Defendant was convicted of the first degree murder (Pen. Code, § 187) and robbery (§ 211) of Edward Dukar with findings of personal use of a firearm (§§ 12022.5, 1203.06). A special circumstance allegation under the 1978 death penalty law was found true: that the murder was committed while the defendant was engaged in the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(i).) The jury fixed the punishment at death; the appeal is automatic. (Cal. Const., art. VI, § 11; § 1239.) I. Guilt Phase Facts A. Prosecution Case. Defendant was convicted of killing Edward Dukar on October 31, 1980, in Dukar’s jewelry store in a small shopping center in Milpitas. The principal prosecution witness was Miller Peter Hodges, an accomplice, who testified as part of a plea bargain. Hodges testified that he, defendant, and Thomas Fields drove to Dukar’s jewelry store to rob him. Both defendant and Fields were armed. Fields and Hodges waited in the parked car while defendant went into Dukar’s store to check out the situation. He returned a few minutes later saying there were some customers in the store and another sales clerk. After waiting a few minutes for the customers to leave, defendant returned to the store followed by Hodges and Fields. Defendant began talking to Dukar while Fields and Hodges talked to the clerk, Gary Ingalls. Ingalls was about to ask Dukar for the key to the display case when defendant pulled a gun and shot Dukar. Upon hearing the shot, Hodges and Fields ran from the store to the car. Defendant fired three more shots at Dukar, broke the glass in the jewelry case, took two trays of rings, and fled. Defendant left behind a jewelry catalog that Dukar had given him earlier. Hodges testified that defendant was carrying jewelry trays when he got to the car. An object about the size of a wallet fell from defendant’s inside pocket. Defendant got in the car, and the three drove off. When police arrived at the store, they found a wallet outside with the names of defendant’s sisters imprinted on it. Inside the store they found the catalog that defendant had handled. On it were two of defendant’s fingerprints. The coroner’s report stated that Dukar had died from gunshot wounds to the head and chest. Defendant was identified by store customers and nearby tenants. The most positive identification was by Marine Recruiting Sergeant W.M. Goodwin who had an office in the shopping center. Goodwin had stopped to say hello to Dukar while Dukar was talking to defendant shortly before the shooting. Goodwin identified defendant at a corporeal lineup and at trial. Gary Ingalls, the store clerk, said he recognized defendant at a lineup but was nervous and made no identification of him until the preliminary examination. Dolly Johnson, who had been in the store the first time defendant entered, had marked her card with a “possible” identification of defendant at the lineup. She was 99 percent sure at that time. She had asked the lineup participants to smile, and defendant had forced a smile. Later, when she saw defendant smiling naturally in court, she was 100 percent sure that defendant was the man who had smiled at her in Dukar’s store. Less certain identifications of defendant were also made by Brad Kisela and Charles Ray, who had been in the store when Dolly Johnson was there. B. Defense Case. Defendant presented alibi testimony by his mother, stepfather, stepbrothers, his girlfriend, two women who were living at his mother’s house, and employees of Hillhaven Convalescent Home in East Palo Alto. Their testimony was to the effect that defendant left home with his stepbrothers and girlfriend about 12:10 or 12:30 p.m. on the day Dukar was killed to attend a Halloween party at Hillhaven where defendant’s stepbrother Barry worked. They arrived 10 to 15 minutes after leaving defendant’s house. The witnesses’ testimony varied, however, as to the time. The group could have arrived anywhere from 12:30 to 1:35. The varied defense testimony indicated that defendant stayed for 45 minutes to an hour. Police had been dispatched to the murder scene about 12:52 p.m. It takes about 29 minutes to drive from the murder scene to defendant’s residence. Defendant’s family testified that he had lost his wallet in early 1980. They remembered his complaints about it and searching the house for it. Department of Motor Vehicles’ records showed that defendant had obtained a duplicate license in February 1980. Defendant presented expert testimony that there were no fingerprints on the catalog of sufficient quality for comparison purposes. Defendant’s mother testified that a few days before the robbery Hodges had come to her house with some jewelry cases and catalogs. Defendant had handled the catalog and had advised his mother not to deal with Hodges. II. Jury Selection Issues A. Representative Cross-section. Defendant contends that the granting of hardship exclusions because of the projected length of the trial tended to systematically exclude poor persons in a disproportionate manner. His contention fails. Claims of denial of a fair cross-sectional jury are analyzed by ascertaining whether a cognizable class has been excluded. (People v. Fields (1983) 35 Cal.3d 329, 345 [197 Cal.Rptr. 803, 673 P.2d 680].) Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class. (People v. Estrada (1979) 93 Cal.App.3d 76, 91 [155 Cal.Rptr. 731]; see also People v. Fields, supra, 35 Cal.3d at pp. 348-349; People v. Milan (1973) 9 Cal.3d 185, 195-196 [107 Cal.Rptr. 68, 507 P.2d 956].) Defendant also contends that the process of death-qualifying a California jury results in the systematic underrepresentation of Blacks and women on capital juries and denied him his right to a representative jury at the guilt phase. A majority of this court rejected such an argument in People v. Fields, supra, 35 Cal.3d at pages 349-350, footnote 7 (plur. opn.), 374 (Kaus, J., conc.). Defendant further contends that the exclusion for cause of prospective jurors who would automatically vote against a death sentence deprived him of a representative jury. This claim has been rejected by both this court and the United States Supreme Court. (People v. Miranda (1987) 44 Cal.3d 57, 78-79 [241 Cal.Rptr. 594, 744 P.2d 1127]; Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758].) Defendant also assigns as error the trial court’s denial of his motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]. In Wheeler, we held that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Id. at p. 276.) The United States Supreme Court similarly held in Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] that the Equal Protection Clause forbids peremptory challenges of potential jurors solely on account of their race when the defendant is a member of that race. Such challenges may not be used “to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.” (Id. at P-97.) We recognized in Wheeler, and the United States Supreme Court recognized in Batson, that peremptory challenges have historically served as a valuable safety valve in jury selection. We said in Wheeler that such challenges are permissible so long as they are based on specific bias, which we defined as a bias relating to the particular case on trial or the parties or witnesses thereto: “For example, a prosecutor may fear bias on the part of one juror because he has a record of prior arrests or has complained of police harassment, and on the part of another simply because his clothes or hair length suggest an unconventional lifestyle. In turn, a defendant may suspect prejudice on the part of one juror because he has been the victim of crime or has relatives in law enforcement, and on the part of another merely because his answers on voir dire evince an excessive respect for authority. Indeed, even less tangible evidence of potential bias may bring forth a peremptory challenge: either party may feel a mistrust of a juror’s objectivity on no more than the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another’ [citation]—upon entering the box the juror may have smiled at the defendant, for instance, or glared at him.” (Wheeler, supra, 22 Cal.3d at p.275.) Batson does not use the term “specific bias.” It permits challenges so long as they may be justified by “a neutral explanation related to the particular case to be tried.” (Batson v. Kentucky, supra, 476 U.S. at p. 98 [90 L.Ed.2d at p. 88].) The court emphasized, however, “that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” (Id. at p. 97 [90 L.Ed.2d at p. 88].) Under Wheeler and Batson, if a party believes his opponent is improperly using peremptory challenges for a discriminatory purpose, he must raise a timely challenge and make a prima facie case of such discrimination. Once a prima facie case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried. (People v. Wheeler, supra, 22 Cal.3d at pp. 280-282; Batson v. Kentucky, supra, 476 U.S. at pp. 96-98 [90 L.Ed.2d at pp. 87-89].) The court in Batson noted that the prosecutor may not rebut the defendant’s prima facie case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections: “If these general assertions were accepted .as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ ” (Batson, supra, at p. 98 [90 L.Ed.2d at p. 88].) Both Wheeler and Batson profess confidence in the ability of the trial courts to determine the sufficiency of the prosecutor’s showing. In Wheeler, we said that we will “rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (People v. Wheeler, supra, 22 Cal.3d at p. 282.) The court indicated likewise in Batson. (Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 21 [90 L.Ed.2d at p. 89].) The trial court, however, must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . .” (People v. Hall (1983) 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854].) In the present case the prosecutor exercised peremptory challenges to remove three Black jurors, four Jewish jurors and two Asian jurors. Defendant objected to exclusion of these jurors by a Wheeler motion. The trial court did not make an express finding that defendant had made a prima facie case of group bias. However, the court asked the prosecutor “Do you wish to respond [to the defendant’s Wheeler motion]?” It then proceeded to hear the prosecutor’s explanations for the use of the peremptory challenges. In People v. Turner (1986) 42 Cal.3d 711 at pages 718-719 [230 Cal.Rptr. 656, 726 P.2d 102], a decision handed down after this case was tried, we concluded that such an inquiry by the trial court constituted “at least an implied finding” of a prima facie showing. Accordingly, we proceed to evaluate the prosecutor’s explanations. As to the Jewish jurors, the prosecutor stated that one was a “very nervous person,” gave the defendants “a very noticeable smile,” was opposed to the death penalty or leaned that way. The second person was 71 years old, looked tired, had a relative who was a lawyer, and felt the death penalty was not a deterrent. He seemed to have a great deal of rapport with defense counsel and appeared more friendly to the defendant than the average juror. The third person was 61 years old and was a “very tired appearing person." She was critical of a police department she had dealt with and she felt an officer had lied. She also gave defendants a very sympathetic look. The prosecutor thought the fourth person was “weird,” that sympathy for the defendants might be a problem for him, and that he “didn’t seem to be willing to commit to promises to make a decision based on the facts of the evidence.” The prosecutor also stated he felt totally unable to relate to him. As to the Asian jurors, one did not approve of the death penalty and said she could not pass judgment. She seemed to have some trouble understanding the people questioning her. The other person said she preferred life without possibility of parole over the death penalty and was concerned that the case be proven without any doubt. She had also contested a speeding ticket and had lost and had some feelings about that. Regarding the three Black jurors, Ms. S.’s ex-husband was a policeman, and she seemed to be prejudiced against policemen. She had a brother-in-law who had been arrested and had known others who had gone to jail. She had a very defensive body position when the prosecutor questioned her and would not look at him when introduced. Her pulse seemed to race when the death penalty was mentioned. It was the practice of the prosecutor to rate each juror on a scale. Ms. T. was given a slightly lower than average rating by the prosecutor; he would have left her on had he had a jury panel where others had lower ratings. She was overweight and poorly groomed, indicating that she might not have been in the mainstream of people’s thinking. She was very nervous about the death penalty and kept her hand over her mouth when talking about it. She didn’t approve of the death penalty. She did not relate to the prosecutor and seemed not to trust him. Mr. F.S. had been arrested numerous times and had been in and out of jail and court many times as a defendant. “He talked about police officers abusing people and juries treating blacks differently, police treating blacks differently.” He would not state a position on the death penalty and said he would require proof beyond a shadow of doubt. He did not come to court twice when asked to by the clerk. After listening to the detailed explanations given by the prosecutor and the objections by defense counsel to the subjectivity of some of the cited reasons, the court denied the Wheeler motion. Unlike People v. Hall, supra, 35 Cal.3d 161, here there is nothing suggesting that the court misunderstood its obligation to evaluate the prosecutor’s explanations. In Hall the court indicated hostility to the Wheeler holding, stating “ ‘a peremptory challenge is a peremptory challenge, otherwise, it’s meaningless.’ ” (Id. at p. 165.) The trial court in Hall completely abdicated its responsibility under Wheeler and expressed the view that “group bias is shown only when a prosecutor declares an intent to exclude all members of an ethnic group from the jury.” (Id. at p. 169.) Here, by contrast, the trial court’s statement of the basis of a Wheeler motion indicated a clear understanding of the distinction between group bias and individual bias, and its explanation of its ruling shows that it found that the challenges had been based on an individual evaluation of each juror and his individual bias. The court thus understood its obligations under Wheeler and made a conscientious determination that the prosecutor had not been guilty of group bias. The dissent’s argument to the contrary is unconvincing. First, it rejects a number of reasons given by the prosecutor as being “trivial.” Nowhere does Wheeler or Batson say that trivial reasons are invalid. What is required are reasonably specific and neutral explanations that are related to the particular case being tried. Second, the dissent dismisses a number of statements about particular jurors’ dislike of the death penalty on the ground that further questioning revealed such jurors would vote for the death penalty if it were appropriate. Those answers, however, merely ruled out a challenge for cause; they did not preclude concern that the jurors were predisposed against the death penalty. The dissent’s argument in this regard suggests that it has essentially elevated peremptory challenges to challenges for cause. In so doing, the dissent appears to embrace Justice Marshall’s concurring opinion in Batson, which advocates the elimination of peremptory challenges. Justice Marshall was alone in this view, and it has never found explicit acceptance in our opinions. We cannot argue with the assertion by defendant and the dissent that the prosecutor’s explanations would be inadequate under the approach taken by the majority in People v. Trevino (1985) 39 Cal.3d 667 [217 Cal.Rptr. 652, 704 P.2d 719]. We think, however, that Trevino extended Wheeler beyond its logical limits. Despite its professed confidence in the ability of trial judges to distinguish a true case of group discrimination, the majority in Trevino specifically disallowed reliance on body language and the prospective juror’s mode of answering questions in rebutting a prima facie case. Wheeler had given no indication that such subjective reasons were unacceptable, and the dissent does not really argue to the contrary. (See dis. opn., p. 1284.) In ruling out subjective reasons, the majority in Trevino, and the dissent in this case, seem unwilling to trust the trial courts to conscientiously rule on the adequacy of the proffered explanations. As Justice Kaus wrote in dissent: “I have my own hunch that what is really behind the majority’s rejection of hunches, gut-feelings and body language is a fear that prosecutors will insincerely attempt to justify group bias with such reasons and that trial judges, some of whom are perceived as being unsympathetic toward the Wheeler rule, will rubber-stamp their explanations. I submit that if we cannot trust trial courts to do their job fairly, we might as well close up shop and that we, ourselves, were insincere when, in Wheeler, we professed our faith in the ‘good judgment’ of the trial bench.” (People v. Trevino, supra, 39 Cal.3d at p. 704, fn. 4.) The majority in Trevino, in our view, also placed undue emphasis on comparisons of the stated reasons for the challenged excusáis with similar characteristics of nonmembers of the group who were not challenged by the prosecutor. First, we note, as did Justice Kaus in his Trevino dissent, that the comparison is one-sided since it ignores the characteristics of the other 26 jurors against whom the prosecutor also exercised peremptory challenges. (Trevino, supra, 39 Cal.3d at p. 700.) Moreover, we fail to see how a trial judge can reasonably be expected to make such detailed comparisons mid-trial. Here, with a two-month voir dire it is unrealistic to expect the trial judge to make a detailed review of the reasons as the Trevino majority would require. The dissent’s use of a comparison analysis to evaluate the bona tides of the prosecutor’s stated reasons for peremptory challenges does not properly take into account the variety of factors and considerations that go into a lawyer’s decision to select certain jurors while challenging others that appear to be similar. Trial lawyers recognize that it is a combination of factors rather than any single one which often leads to the exercise of a peremptory challenge. In addition, the particular combination or mix of jurors which a lawyer seeks may, and often does, change as certain jurors are removed or seated in the jury box. It may be acceptable, for example, to have one juror with a particular point of view but unacceptable to have more than one with that view. If the panel as seated appears to contain a sufficient number of jurors who appear strong-willed and favorable to a lawyer’s position, the lawyer might be satisfied with a jury that includes one or more passive or timid appearing jurors. However, if one or more of the supposed favorable or strong jurors is excused either for cause or peremptory challenge and the replacement jurors appear to be passive or timid types, it would not be unusual or unreasonable for the lawyer to peremptorily challenge one of these apparently less favorable jurors even though other similar types remain. These same considerations apply when considering the age, education, training, employment, prior jury service, and experience of the prospective jurors. It is also common knowledge among trial lawyers that the same factors used in evaluating a juror may be given different weight depending on the number of peremptory challenges the lawyer has at the time of the exercise of the particular challenge and the number of challenges remaining with the other side. Near the end of the voir dire process a lawyer will naturally be more cautious about “spending” his increasingly precious peremptory challenges. Thus at the beginning of voir dire the lawyer may exercise his challenges freely against a person who has had a minor adverse police contact and later be more hesitant with his challenges on that ground for fear that if he exhausts them too soon, he may be forced to go to trial with a juror who exhibits an even stronger bias. Moreover, as the number of challenges decreases, a lawyer necessarily evaluates whether the prospective jurors remaining in the courtroom appear to be better or worse than those who are seated. If they appear better, he may elect to excuse a previously passed juror hoping to draw an even better juror from the remaining panel. It should be apparent, therefore, that the very dynamics of the jury selection process make it difficult, if not impossible, on a cold record, to evaluate or compare the peremptory challenge of one juror with the retention of another juror which on paper appears to be substantially similar. The dissent’s attempt to make such an analysis of the prosecutor’s use of his peremptory challenges is highly speculative and less reliable than the determination made by the trial judge who witnessed the process by which the defendant’s jury was selected. It is therefore with good reason that we and the United States Supreme Court give great deference to the trial court’s determination that the use of peremptory challenges was not for an improper or class bias purpose. As stated in Batson: “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” (Batson v. Kentucky, supra, 476 U.S. at p. 98, fn. 21 [90 L.Ed.2d at p. 89].) Here an experienced trial judge saw and heard the entire voir dire proceedings by which defendant’s jury was selected. The record indicates he was aware of his duty under Wheeler to be sensitive to the manner in which peremptory challenges were used. He found no improper use of the peremptory challenges by the prosecutor. Under these circumstances we see no good reason to second-guess his factual determination. Accordingly, we disapprove People v. Trevino, supra, 39 Cal.3d 667, to the extent it is inconsistent with this opinion. We hereby return to a standard of truly giving great deference to the trial court in distinguishing bona fide reasons from sham excuses. The United States Supreme Court echoed our view in this regard when it stated in Batson: “While we respect the views expressed in Justice Marshall’s concurring opinion concerning prosecutorial and judicial enforcement of our holding today, we do not share them. The standard we adopt under the Federal Constitution is designed to ensure that a State does not use peremptory challenges to strike any black juror because of his race. We have no reason to believe that prosecutors will not fulfill their duty to exercise their challenges only for legitimate purposes. Certainly, this Court may assume that trial judges, in supervising voir dire in light of our decision today, will be alert to identify a prima facie case of purposeful discrimination. Nor do we think that this historic trial practice, which long has served the selection of an impartial jury, should be abolished because of an apprehension that prosecutors and trial judges will not perform conscientiously their respective duties under the Constitution.” (Batson v. Kentucky, supra, 476 U.S. at p. 99, fn. 22 [90 L.Ed.2d at p. 89].) Under the standard of giving great deference to the trial court’s determination, we affirm the ruling in this case. The dissent, in our view, unjustly faults the trial court for not making a sincere and reasoned determination regarding the genuineness of the prosecutor’s reasons. There is no indication in the record that the court did not do so. The dissent seems to believe that inquiry by the court is required to demonstrate compliance with its obligation under Wheeler. We do not read Wheeler or Hall as establishing such a requirement. The dissent also misinterprets a remark by the trial court as indicating that the court had determined in advance that it would accept as true anything the prosecutor said. The court simply rejected the defense argument of the necessity for placing the prosecutor under oath before hearing his reasons. The court’s remark cannot reasonably be interpreted as anything more than that. Although the court’s explanation of its ruling was inartfully phrased, the record clearly reveals that the court understood the distinction between specific and group bias and had that distinction in mind when it made its ruling. Defendant finally contends that the prosecutor’s use of peremptory challenges against death penalty skeptics violated People v. Wheeler, supra, 22 Cal.3d 258. We recently rejected that argument in People v. Miranda, supra, 44 Cal.3d at page 80. (See also People v. Turner (1984) 37 Cal.3d 302, 313-315 [208 Cal.Rptr. 196, 690 P.2d 669].) B. Peremptory Challenges. Defendant contends that section 1070.5, which limits jointly tried capital codefendants to 5 individual and 26 joint peremptory challenges, but gives the prosecutor 36 unrestricted challenges, operated to deny him due process and equal protection of the law because his codefendant was not “realistically” exposed to the death penalty and thus had different interests. We have recently upheld the statute against virtually identical attacks based on denial of due process and equal protection. (People v. Miranda, supra, 44 Cal.3d at pp. 79-80; People v. Ainsworth (1988) 45 Cal.3d 984, 1004-1007 [248 Cal.Rptr. 568, 755 P.2d 1017].) Contrary to defendant’s assertion, his situation is no different from that in Ainsworth where both defendants were charged with murder with special circumstances and there was no indication that the death penalty was not being sought as to the codefendant. Indeed, the Ainsworth situation was arguably more extreme in that each defendant there attempted to cast primary blame on the other. Here, by contrast, both defendants claimed they were not involved in the crimes. C. Impartial Jury. Defendant contends that the death-qualification of the jury resulted in a guilt-prone jury which denied him his due process and impartial jury rights. We have repeatedly rejected that contention. (See e.g., People v. Chavez (1985) 39 Cal.3d 823, 827 [218 Cal.Rptr. 49, 705 P.2d 372]; People v. Anderson (1985) 38 Cal.3d 58, 60 [210 Cal.Rptr. 777, 694 P.2d 1149]; People v. Easley (1983) 34 Cal.3d 858, 868-869 [196 Cal.Rptr. 309, 671 P.2d 813].) D. Witherspoon/Witt. Defendant contends that three prospective jurors were improperly excused under Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. The United States Supreme Court, however, recently modified the Witherspoon standard in Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], and we adopted that modification in People v. Ghent (1987) 43 Cal.3d 739, 767-769 [239 Cal.Rptr. 82, 739 P.2d 1250]. The new standard is whether a juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” (469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852].) In addition to dispensing with Witherspoon's reference to “automatic” decisionmaking, this new standard likewise does not require that a juror’s bias be proved with “unmistakable clarity.” The court explained that “determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.” (Ibid. [83 L.Ed.2d at p. 852].) Our task on review is to examine the context surrounding the juror’s exclusion to determine whether the trial court’s decision that the juror’s beliefs would “substantially impair the performance of his duties as a juror” is fairly supported by the record. (Darden v. Wainwright (1986) 477 U.S. 168, 175 [91 L.Ed.2d 144, 154, 106 S.Ct. 2464, 2469].) Our review of the record discloses support for the court’s determination that the three prospective jurors had views that would substantially impair the performance of their duties as jurors. Defendant also argues that the excusáis were improper because the trial court should have instructed the prospective jurors during voir dire that it was their civic duty to sit as jurors if they could subordinate their views and obey the laws of this state. We rejected a similar claim in People v. Miranda, supra, 44 Cal.3d at page 96. E. Defense Challenges for Cause. Defendant contends the court erred in denying his challenges for cause to three potential jurors for bias in favor of the death penalty. Defendant is correct in asserting that the same Witherspoon/Witt standard should govern such challenges. We so held in People v. Coleman (1988) 46 Cal.3d 749, 763-764 [251 Cal.Rptr. 83, 759 P.2d 1260]. Although each of the jurors in question indicated that he favored the death penalty, each ultimately said that he would follow the law as given and would not automatically vote for the death penalty. Each juror indicated he would vote for life without possibility of parole if that were the appropriate penalty based on the evidence presented. The court rejected defense counsel’s argument that these jurors had said they would place the burden on the defendant to show why the death penalty should not be given, noting that defense counsel had elicited such statements in response to leading questions which did not explain the requirements of the law. Once informed of the legal standard the jurors said they would follow it. The record supports the trial court’s ruling. Where, as here, conflicting and equivocal answers are given regarding the juror’s impartiality, the trial court’s determination as to the juror’s true state of mind is binding upon an appellate court. (See People v. Fields, supra, 35 Cal.3d at pp. 355-356; People v. Floyd (1970) 1 Cal.3d 694, 725 [83 Cal.Rptr. 608, 464 P.2d 64].) F. Restriction of Voir Dire. Defendant contends the trial court abused its discretion under People v. Williams (1981) 29 Cal.3d 392 [174 Cal.Rptr. 317, 628 P.2d 869] in refusing to permit defense counsel to question prospective jurors regarding their ability to view accomplice Hodges’s testimony with suspicion and distrust. We disagree. In Williams we held that counsel should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds for a challenge for cause. (Id. at p. 407.) We reaffirmed, however, that the function of voir dire is not to educate or indoctrinate the jury. (Id. at p. 408.) We also left “intact the considerable discretion of the trial court to contain voir dire within reasonable limits.” (Ibid.) Under Williams the court must permit questioning about legal doctrines that are material to the trial and controversial in the sense that they are likely to invoke strong feelings and resistance to their application. (29 Cal.3d at p. 410; People v. Balderas (1985) 41 Cal.3d 144, 184 [222 Cal.Rptr. 184, 711 P.2d 480].) Under this standard the court acted within its discretion in precluding questions about viewing accomplice testimony with distrust since that is not a proposition with which the average juror would tend to disagree. (See People v. Balderas, supra, 41 Cal.3d at p. 184; see also People v. Helton (1984) 162 Cal.App.3d 1141, 1144-1145 [209 Cal.Rptr. 128].) Defendant also contends the court abused its discretion in precluding or limiting defense questioning of prospective jurors as to factors and circumstances they would deem significant in selecting an appropriate penalty. Again we find no abuse of discretion. The line of questioning involved incomplete statements of law and tended to cause confusion about the legal principles and facts of the case. This was unlike the questioning improperly precluded in Williams regarding the jurors’ views about the right to use force in self-defense even though an avenue of retreat is open. In the present case, the court permitted a wide range of questions regarding prospective jurors’ attitudes about the death penalty, and it did not abuse its discretion in imposing this limitation. Defendant further contends that the court improperly precluded the defense from questioning jurors with prior jury experience about the result reached by the prior jury. In People v. Murtishaw (1981) 29 Cal.3d 733, 765-767 [175 Cal.Rptr. 738, 631 P.2d 446], we held that in future cases a trial judge will have the discretionary authority to permit defense access to jury records and reports of investigations available to the prosecution. Defendant concedes that Murtishaw was inapplicable to his case since voir dire commenced four days before Murtishaw was filed, but he nevertheless argues that the trial court should have permitted the questioning of jurors under the Williams rule. The effect of Williams on the long-standing rule precluding such questions (People v. Conte (1912) 17 Cal.App. 771, 778 [122 P. 450]; People v. Trask (1907) 7 Cal.App. 103, 105 [93 P. 891]) appears to be an open question. We need not decide it here, however, since even if it were error to preclude such questioning, the error was clearly harmless. As we stated in People v. Murtishaw, supra, 29 Cal.3d at page 767: “As the prior cases have pointed out, in any individual case it is entirely speculative whether denial of access [to jury records] caused any significant harm to the defense. Consequently, under the test of prejudice established in the California Constitution (art. VI, § 13) and People v. Watson [1956] 46 Cal.2d 818, 836 [299 P.2d 243], the denial of access is not reversible error.” III. Guilt Phase Issues A. Motion to Suppress Testimony of Accomplice Hodges. Defendant contends the court erred in denying his motion to suppress the testimony of Hodges on the ground that it was the product of illegal interrogation. It is undisputed that statements made by Hodges on December 5 and December 9, 1980, were involuntary as a result of having been obtained through coercion and other illegal means. These statements were near-confessions and implicated defendant and Fields. The trial court, however, found there was clear and convincing evidence of attenuation and therefore refused to suppress Hodges’s testimony. In reviewing this contention using well-settled principles, we state the facts in the manner most favorable to the trial court’s determination, resolving conflicts in the evidence in favor of the findings below. (People v. Superior Court (Sosa) (1982) 31 Cal.3d 883, 887 [185 Cal.Rptr. 113, 649 P.2d 696].) It is unnecessary to go into detail about the many illegalities in obtaining Hodges’s statements. For our purposes of reviewing the trial court’s ruling on attenuation it is sufficient to note that the trial court found, and the prosecution did not dispute, that the statements given by Hodges to Sergeant Pang were involuntary for the following reasons: “There wasn’t probable cause to arrest. During the course of the interrogations there were both promises of reward or leniency. There were coercions threatening the defendant that if he didn’t talk they would go all the way on the prosecution, where they didn’t have evidence to proceed, [fl] There was pressure regarding out-of-county crimes and misrepresentations regarding the status of those offenses. Mr. Hodges was misled regarding those matters, [fl] And also there was pressure brought to bear on his girlfriend, Miss Elarms, before Mr. Hodges was allowed to talk to her regarding the status of those particular cases. And there was a threat there, and on the instant charge to act in a certain way, the officers knew that they didn’t have probable cause, [fl] There was also a clear violation of Miranda, and although that is not something that may be directly assertable here by defendants Johnson and Fields, it’s certainly a fact that the Court has to consider in the context of all the circumstances. This is just a partial statement of the reasons for my decision in that regard.” On the question of attenuation, Hodges testified that his decision to testify was based on his fear that his confessions would be admissible. The force of this testimony, however, was dissipated by other evidence in the record. At the time of Hodges’s preliminary hearing on the Dukar robbery/murder charges, it was stated that Hodges would waive preliminary examination, and in exchange for a plea bargain, would testify in the matters involving defendant and Fields. During the voir dire regarding the plea bargain it was stated that Hodges would plead guilty to a charge of simple robbery carrying a prison term of two, three or five years. Hodges acknowledged that his attorney had explained that the statements he had given to the police “may very well be inadmissible evidence.” Hodges also acknowledged that he understood that without the statements there would be insufficient evidence to hold him. At the point of taking Hodges’s waivers on the plea bargain, Hodges began to balk. The hearing was then recessed. Hodges and his attorney met with the prosecutor who offered to reduce the maximum sentence on the robbery plea to three years. During this meeting Hodges’s attorney said, “You’ve made your decision. You’ve made it in open court. The statements are ridiculous. We’ll go ahead and go to prelim. If the statements are thrown out I’m aware of no evidence against you. . . .” Hodges then decided to accept the prosecutor’s offer of the reduced sentence and to go forward with the agreement. In finding clear and convincing evidence of attenuation, the court cited a number of factors: In the intervening 10 days between the time Hodges made his statements and the preliminary hearing there was no further contact between Hodges and the police. The record of Hodges’s preliminary hearing waiver indicated Hodges had been advised of the possibility of his statements being ruled inadmissible and the lack of evidence against him without those statements. Hodges’s balking at the initial waiver and his decision to continue after the prosecutor’s offer of a reduced sentence indicates an arm’s length bargain. All of this evidenced that Hodges’s decision to go ahead was an exercise of his free will and was not a consequence of any further exploitation of the initial confessions. The court also noted that Hodges’s testimony that his attorney had told him the statements may be admissible must be put in the context of the way lawyers speak about the outcome of litigation—i.e., there are no guaranties. We conclude the record supports the trial court’s ruling. As the trial court noted, the circumstances here are unlike those in People v. Superior Court (Sosa), supra, 31 Cal.3d 883, upon which defendant relies. In Sosa we affirmed the trial court’s suppression of a witness’s testimony on the ground that there was no credible evidence of attenuation. The only evidence offered at all was testimony by a police officer which the court refused to credit. There was no evidence that the witness was exercising his free will in deciding to testify. Here, by contrast, there was ample and credible evidence of attenuation. (See also United States v. Ceccolini (1978) 435 U.S. 268 [55 L.Ed.2d 268, 98 S.Ct. 1054].) Defendant also contends he was denied due process by the trial court’s rulings that the attorney-client privilege precluded most of his questions to Hodges and his attorney regarding the content of their discussion about the plea bargain and the admissibility of the statements. Defendant argues that Hodges waived the attorney-client privilege when, in response to a question by the prosecutor about the meeting at which the prosecutor was present, Hodges said that his attorney had told him earlier that there was a possibility his statements would be admissible because it was a murder-robbery. After lengthy argument the court ultimately ruled that Hodges had not made a general waiver of the attorney-client privilege because he had not been advised of his right to assert the privilege. The court also ruled that the conversation at which the prosecutor was present was not privileged because it was not intended to be confidential. In accord with this ruling, Hodges’s attorney testified about the meeting with the prosecutor, but the court sustained objections to questions about other discussions between him and Hodges. Although defendant makes a lengthy argument concerning his due process rights to invade the attorney-client privilege, he cites no authority directly supporting that claim. Indeed, Littlefield v. Superior Court (1982) 136 Cal.App.3d 477 [186 Cal.Rptr. 368], supports a contrary result. There the Court of Appeal reversed the trial court’s order allowing defendant Angelo Buono to invade prosecution witness Kenneth Bianchi’s attorney-client privilege regarding conversations with his attorney leading to his plea bargain: “The contention herein urged on us is that the evidence sought would show that the public defender, then representing Bianchi, had disclosed to Bianchi facts about the alleged murders, thus enabling him to fabricate testimony against Buono. Assuming that the evidence would show that the public defender had done so, in counseling Bianchi about the wisdom of the plea bargain (a fact that Buono’s counsel can only surmise), we see nothing to permit a violation of the traditional attorney-client privilege.” (Id. at p. 481.) The same reasoning applies in this case. B. Testimony by Hodges Pursuant to Plea Bargain. Defendant contends he was denied a fair trial because the terms of Hodges’s plea bargain placed him under a strong compulsion to testify in accordance with his prior statements to the police. Defendant relies primarily on People v. Medina (1974) 41 Cal.App.3d 438 [116 Cal.Rptr. 133], where the Court of Appeal reversed the convictions of two defendants after prosecution witnesses testified under a grant of immunity conditioned upon the witnesses not changing their testimony from the tape-recorded statements given the police. (Id. at p. 450.) The court acknowledged that a grant of immunity could be conditioned on a requirement that the witness testify fully and fairly to the facts, but that it was not permissible to place the witness under a strong compulsion to testify in a particular fashion. (Id. at P- 455.) In the present case, the terms of the plea bargain required that Hodges testify truthfully if called as a witness at the preliminary hearing and trial of defendant and Fields. Hodges’s attorney stated that the agreement contemplated truthful testimony and was not conditioned upon testimony “for or against anyone.” The prosecutor interjected at that point: “And further, it’s also conditioned of course, on the understanding that what he has told the Milpitas Police Department in previous statements is in fact the true testimony that he—as he understands it—” The present situation is not like that in Medina. Here the agreement was that Hodges testify truthfully. The prosecutor’s assertion that he understood the truth to be what Hodges had told the police was not a term of the bargain. We considered a similar situation in People v. Fields, supra, 35 Cal.3d at pages 360-361, and rejected the defendant’s claim that the bargain was tainted by the prosecutor’s expectation of testimony consistent with the statement given to the police: “We recognize that a witness in Gail Fields’ position is under some compulsion to testify in accord with statements given to the police or the prosecution. The district attorney in the present case obviously believed that Gail’s last statement was a truthful account, and if she deviated materially from it he might take the position that she had breached the bargain, and could be prosecuted as a principal to murder. But despite this element of compulsion, it is clear, and the cases so hold [citation] that an agreement which requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain.” (Id. at p. 361; accord People v. Allen (1986) 42 Cal.3d 1222, 1251-1255 [232 Cal.Rptr. 849, 729 P.2d 115].) C. Motion to Sever. Defendant contends the trial court erred in denying his motion to sever his trial from that of codefendant Fields. The motion was based on the prejudicial effect of admission of codefendant Fields’s extrajudicial statement (see People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265]) and the requirement that codefendants share peremptory challenges (§ 1070.5). Section 1098 states the general preference for joint trials: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials. . . .” The matter of granting separate trials “remains largely within the discretion of the trial court [citation], guided by the principles set out in People v. Massie (1967) 66 Cal.2d 899 [59 Cal.Rptr. 733, 428 P.2d 869].” (People v. Turner, supra, 37 Cal.3d 302, 312.) The court should order separate trials of codefendants “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (People v. Massie, supra, 66 Cal.2d 899, 917, fns. omitted.) No abuse of discretion appears here. The court’s denial of severance was premised on an effective editing of codefendant Fields’s statement or exclusion of the statement if effective editing were not possible. That took care of any Aranda problems. (See People v. Aranda, supra, 63 Cal.2d 518.) As to the claimed prejudice of having to share peremptory challenges, the court properly relied on the statute providing for shared peremptory challenges in joint trials. (§ 1070.5.) None of the other factors mentioned in Massie, supra, 66 Cal.2d 899, was present here. There was no indication that there would be conflicting defenses or the possibility of exonerating testimony if the trials were separate. Nor was there any indication of undue prejudice from the association of the two defendants. Finally, the charges were essentially the same as to each and not likely to cause confusion. The codefendants’ positions in this case were less adversarial than those in People v. Turner, supra, 37 Cal.3d 302, where we affirmed the ruling denying separate trials when the defendants had conflicting defenses. D. Introduction of Fields’s Statement. 1. Aranda. Defendant contends that the admission of a heavily edited version of Fields’s extrajudicial statement violated People v. Aranda, supra, 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620], Aranda allows admission of a codefendant’s extrajudicial statement in a joint trial only if all parts of the statement which implicate any codefendants are effectively deleted: “By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established.” (People v. Aranda, supra, 63 Cal.2d at p. 530.) The edited statemerit of Fields that was admitted was extremely limited—that Fields had told Sergeant Pang that he had gone into Dukar’s store about noon and was wearing a light color suit. The court gave an instruction that the jury was to consider this evidence against Fields only. Defendant argues that this statement indirectly implicated him because it tended to corroborate Hodges’s testimony as well as the identifications made by a number of eyewitnesses. Aranda protections, however, do not go that far. Fields’s statement did not link defendant to the crime any more or less than he was already linked. The statement is similar to that which the court in Aranda indicated would have been acceptable: “I was one of the persons who robbed the store but I will tell you nothing more.” (63 Cal.2d at p. 531, fn. 10.) (See also People v. Dominguez (1981) 121 Cal.App.3d 481, 506-507 [175 Cal.Rptr. 445].) 2. Tainted Fruit. Defendant contends that Fields’s statement was also inadmissible as a fruit of the illegal arrest and the illegal statements given by Hodges. In reviewing the trial court’s ruling denying the motion to suppress this evidence, we state the facts in the manner most favorable to the trial court’s determination and resolve conflicts in the evidence in favor of the finding below. (People v. Superior Court (Sosa), supra, 31 Cal.3d at p.887.) Based on Hodges’s statements on December 5 and 9, Officer Pang obtained a warrant for Fields’s arrest. On December 29, 1980, Officer Temple-man of the Alhambra Police Department detained Fields and ran a warrant check which revealed outstanding traffic warrants. About the same time, Templeman’s supervisor arrived and told him Fields was wanted for murder. They took Fields to the police station on the traffic warrants and called Officer Pang to verify the murder warrant. There was a discrepancy in the warrant about the race of the person wanted, and Pang confirmed the wanted person was Black. Officer Pang told Templeman that Hodges had implicated Fields at a preliminary hearing and that there was “plenty of probable cause” to arrest him. Although there was some dispute about whether Officer Pang told Templeman to arrest Fields on the warrant or on the basis of Hodges’s testimony at the preliminary hearing, the trial court found that Pang’s reference to Hodges’s preliminary hearing testimony and statement that there was “plenty of probable cause” supported the legality of the arrest. We defer to the trial court’s finding in this regard and conclude that its ruling must be upheld. E. Testimony by Gary Ingalls. Defendant contends the court prejudicially erred in admitting the testimony of Gary Ingalls because he had been hypnotized. (See People v. Shirley (1982) 31 Cal.3d 18 [181 Cal.Rptr. 243, 641 P.2d 775]; People v. Guerra (1984) 37 Cal.3d 385 [208 Cal.Rptr. 162, 690 P.2d 635].) After hearing evidence and argument the court ruled that Ingalls’s testimony was admissible because he had not in fact been hypnotized. Defendant disputes the trial court’s ruling. Gary Ingalls, the store clerk, gave the police a report on the day of the robbery. On November 18, 1980, Ingalls was taken to a hypnotist, Mr. Fernandez, to see if he could remember additional details. After the session Ingalls did not have any different recollection and did not believe he had been hypnotized. Mr. Fernandez, however, was of the opinion that Ingalls had been hypnotized. On August 4, 1981 (nine months after the session with Mr. Fernandez), Ingalls was examined by Dr. David Spiegel, a psychiatrist. After interviewing Ingalls and Fernandez, listening to a tape of the session, reviewing police reports containing Ingalls’s statement, and administering a hypnotic induction profile, Dr. Spiegel concluded Ingalls had not in fact been hypnotized. Dr. Spiegel attached particular significance to Ingalls’s use of both past and present tense on the tape since hypnotized subjects usually use the present tense as though reliving the experience. Defendant contends that the court’s ruling was erroneous because it was based on the opinion of Dr. Spiegel, which in turn was based on the results of the hypnotic induction profile. He asserts that the court should have disregarded Dr. Spiegel’s opinion because the hypnotic induction profile did not meet the Kelly-Frye standard of general acceptance as reliable in the scientific community in which it was developed. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013 [54 App.D.C. 46, 34 A.L.R. 145].) Defendant did not raise this objection until the time of the trial court’s ruling. In any event, the argument is unavailing since the hypnotic induction profile was not the sole basis of Dr. Spiegel’s opinion, and Dr. Spiegel’s opinion was not the sole basis of the trial court’s ruling. The court based its ruling on the testimony of Ingalls himself as well as Dr. Spiegel. Dr. Spiegel, in turn, based his opinion on review of the tape recording of the hypnosis session, police reports regarding Ingalls’s statement, and the hypnotic induction profile. F. Hitch/Trombetta Motion. Defendant contends the trial court erred in denying the motion to exclude fingerprint evidence and testimony regarding some rings under People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361]. In Hitch, we held there is a due process duty to preserve and disclose the component parts of a breathalyzer test and that where such evidence cannot be disclosed because of its intentional but nonmalicious destruction, suppression of the test results is required unless the prosecution can show that the investigative officials have established and enforced rigorous and systematic procedures for the preservation of the evidence. (Id. at pp. 652-653.) We ruled that the People’s duty to preserve applies whenever there exists a “reasonable possibility” that the evidence would have constituted “favorable evidence on the issue of guilt or innocence.” (Id. at p. 649.) We later applied Hitch to require the preservation of a semen sample taken from a rape victim (People v. Nation (1980) 26 Cal.3d 169 [161 Cal.Rptr. 299, 604 P.2d 1051]) and of a urine sample taken from a suspected narcotics user (People v. Moore (1983) 34 Cal.3d 215 [193 Cal.Rptr. 404, 666 P.2d 419]). In California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], the United States Supreme Court addressed for the first time the question of the People’s duty under the due process clause of the Fourteenth Amendment to take affirmative steps to preserve evidence. Although the high court discussed our Hitch case, it formulated its own test: “Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality [citation], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (467 U.S. at pp. 488-489 [81 L.Ed.2d at p. 422], fn. omitted.) Although we have acknowledged that the Trombetta formulation of the duty-to-preserve test differs substantially from our Hitch standard (supra, 12 Cal.3d 641), we have never squarely decided whether Hitch has “survived” Trombetta. (See In re Michael L. (1985) 39 Cal.3d 81, 86 [216 Cal.Rptr. 140, 702 P.2d 222].) The Court of Appeal, however, was forced to decide this question in People v. Trombetta (1985) 173 Cal.App.3d 1093 [219 Cal.Rptr. 637] where upon remand of the case from the United States Supreme Court, it held that California v. Trombetta supersedes Hitch. The People v. Trombetta court concluded that Hitch was premised on federal due process and that the federal due process test set forth in California v. Trombetta should therefore prevail. (173 Cal.App.3d at p. 1100.) Although we agree with that analysis of our Hitch opinion, we note that there is yet another reason for finding the Trombetta rule controlling. As Justice Eagle-son noted in People v. Angeles (1985) 172 Cal.App.3d 1203 [218 Cal.Rptr. 756], the result is also compelled by the Truth-in-Evidence provision of Proposition 8, which added article I, section 28, subdivision (d) to the California Constitution. Justice Eagleson found the Hitch.exclusionary rule governed by the reasoning set forth in In re Lance W. (1985) 37 Cal.3d 873, 888-889 [210 Cal.Rptr. 631, 694 P.2d 744], that article I, section 28, subdivision (d) has limited the power of the court to create nonstatutory rules for the exclusion of unlawfully seized evidence if those rules afford greater protection to a criminal defendant than does the Fourth Amendment. “In each instance relevant evidence on the issue of guilt or innocence is being excluded, and the reasoning of In re Lance W. should be applicable to both situations.” (Angeles, supra, 172 Cal.App.3d at p. 1217; accord People v. Tierce (1985) 165 Cal.App.3d 256 [211 Cal.Rptr. 325].) Based on the foregoing, we conclude that Hitch, supra, 12 Cal.3d 641, has not survived Trombetta, supra, 467 U.S. 479. Under the Trombetta standard we find no error. 1. Fingerprint Evidence. The prosecution introduced evidence that defendant had been seen at Dukar’s store holding a jewelry catalog and that a catalog found at the store after the murder had two fingerprints matching defendant’s. An FBI fingerprint specialist, Thurman Williams, tested the catalog after local authorities had already tested it with ninhydrin and photographed the two fingerprints disclosed. Williams made his own photos of the fingerprints, which were sufficient for comparison purposes. Williams reprocessed the catalog with ninhydrin and then, following normal procedures, used silver nitrate to see if additional prints could be developed. No further prints were found; the silver nitrate turned the paper dark and washed out the latent prints. At the time he used the silver nitrate Williams did not know there were prints to be compared with those found on the catalog. He was later given a set of defendant’s prints which he found matched the prints in photos he had taken; there were at least 15 points of similarity and no points of dissimilarity. In denying the motion to exclude the fingerprint evidence, the trial court stated that the fingerprint identification was made from the photographs of the latent prints and that those photographs still exist. The court also noted that it is standard procedure in analyzing fingerprints to do the silver nitrate test and to do it last. The court’s ruling was proper. The catalog did not have an exculpatory value that was obvious at the time of test, nor did it constitute the sole means of obtaining the evidence since the photographs taken of the fingerprints still exist. (See California v. Trombetta, supra, 467 U.S. at pp. 488-489 [81 L.Ed.2d at p. 422].) 2. Ring Diagrams. On the day of the murder Gary Ingalls had prepared a diagram of two rings the killer had worn. One was a white gold ring with an