Full opinion text
Opinion MOSK, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190.1 et seq.). Together with his brothers, Bernard Patrick Gordon (hereafter Bernard) and Michael Eugene Caputo (hereafter Michael), defendant Patrick Bruce Gordon was charged with conspiracy (Pen. Code, § 182) to commit murder (id., § 187) and robbery (id., § 211); the murder of William Camp Wiley; and the robbery of the same individual. As to the murder charge, a felony-murder-robbery special circumstance (id., § 190.2, subd. (a)(17)(i)) was alleged against all three men. As to both the murder and robbery charges, personal use of a firearm (id., § 12022.5) was alleged against Bernard and Michael. All three men pleaded not guilty and denied the allegations. Defendant was tried separately. A jury found him guilty as charged and determined the special circumstance allegation was true. It subsequently fixed the penalty at death. The court entered judgment accordingly. As we shall explain, we conclude that the judgment must be affirmed. I. Facts A. Guilt Phase At the guilt phase the prosecution’s theory was that defendant was responsible with his brothers for the crimes charged—specifically, he was liable for the robbery and murder by aiding and abetting them as their getaway driver, or at least by conspiring with them to commit the offenses. The issues subject to greatest dispute were identity, intent, and degree of participation. To support its theory, the prosecution presented evidence in its case-in-chief relating directly to the crimes charged and also to certain prior uncharged offenses. The tale told is in substance as follows. On November 15, 1982—about 13 months before the commission of the crimes for which defendant was standing trial—Mark Allen Freed, a courier for an armored-car service, was robbed and murdered in the sales area of a K mart store in Riverside after he picked up the business’s receipts for deposit to its bank account. Freed was carrying the receipts and was armed with a .38-caliber revolver. He was accosted by two men with handguns and without masks. Soon shots rang out. One of the men fired two rounds of Winchester Western .45-caliber automatic ammunition from a .45-caliber automatic or semiautomatic pistol possibly manufactured by Star; both bullets went through Freed, and one apparently lodged in the shooter’s partner. That man fired one round of 9-mm. Luger ammunition from a 9-mm. Luger pistol; the bullet went through Freed and apparently lodged in the shooter’s partner. Freed fired his revolver and hit the man who was armed with the .45-caliber pistol. Freed was shot through the chest, behind the left ear, and in the upper left arm, and died as a result of the chest wound. The perpetrators fled through a fire exit at the rear of the store, taking with them Freed’s gun as well as the business’s receipts. Evidence connected defendant and his brothers to the Riverside K mart incident. For example, at the scene of the shooting was found a hat; it matched one to which defendant and his brothers evidently had access. Also discovered was a trail of blood leading from the scene to the fire exit; the blood could have come from about 7 percent of the Caucasian population in the state, including defendant but not his brothers. Moreover, some time before the incident, defendant had purchased a Star .45-caliber semiautomatic pistol from a firearms dealer; he had sought, and received, a “powerful and concealable” weapon. Further, some time before November 25, 1982, Bernard left California with defendant and Michael, driving a red pickup truck with a camper shell; defendant and Michael had recently sustained gunshot wounds, the former to his hip and arm, the latter to his stomach. The trio set out for the house of their uncle, Dennis Rauch, who lived in Hinesville, Georgia. Rauch was a sergeant in the Army, had served in Vietnam, and was quite familiar with gunshot wounds. Bernard had evidently informed Rauch of the injuries suffered by defendant and Michael, and Rauch told Bernard to bring them to him for treatment. On November 26 the trio arrived at Rauch’s house. Rauch checked the wounds sustained by defendant and Michael. He determined defendant’s arm was broken; he recommended a hospital visit, but it was decided that such a visit should take place only after the gunshot wounds had healed. Rauch began to treat the injuries. At Bernard’s request, and with his offer of a sum between $1,000 and $2,000, Clark Pace traveled from California to Hinesville and, once there, assisted Rauch in the treatment. Bernard stayed about three days. Rauch took him to the Savannah airport for a flight back to California, and received $2,000. After defendant’s gunshot wounds had healed sufficiently, Rauch took him to a hospital in Hinesville and from there to a hospital in Savannah. Defendant and Michael eventually returned to California. They bore scars and other indications of the wounds they had suffered. Finally, after a physical lineup conducted on February 3, 1984, defendant was identified as one of the perpetrators by Beverly Gomez, a K mart employee who had witnessed the incident. (Gomez, however, did not identify defendant at trial.) On December 18, 1983, William Camp Wiley, a courier for an armored-car service, was robbed and murdered in the sales area of a K mart store in Stockton after he picked up the business’s receipts for deposit to its bank account. Wiley was carrying the receipts and was armed with a .38-caliber revolver. He was accosted by two men with handguns and without masks. Soon shots rang out. One of the men fired three rounds of Remington Peters 9-mm. Luger ammunition from a 9-mm. Browning Luger pistol. The other fired one round of Winchester Western .38-caliber Super Plus P automatic ammunition, apparently from a .38-caliber automatic or semiautomatic pistol. Both hit their mark: Wiley was shot three times in the chest and once in the abdomen, and died as a result of his wounds. The perpetrators fled through a fire exit at the rear of the store, taking with them Wiley’s gun as well as the business’s receipts. Evidence connected defendant and his brothers to the incident at the Stockton K mart as well as that at the Riverside store. For example, at and around defendant’s residence in Chino the following items, among others, were found: a police call radio directory for states including California, bearing defendant’s fingerprints, with marks at several frequencies used by the Stockton Police Department; a similar directory, with marks at several frequencies apparently used by the Riverside Police Department; two portable programmable scanning radios capable of monitoring police broadcasts; two handheld transceivers or “walkie-talkies” with clip-on microphones; ten rounds of Remington Peters 9-mm. Luger ammunition; two Browning 9-mm. barrels, which had been sent to Michael in care of defendant; more than $1,000 in cash; and a map of Tucson, Arizona, bearing defendant’s fingerprints, with marks indicating, among other things, the location of certain K mart and similar stores. At and around Bernard’s residence in Upland the following items, among others, were discovered: the Browning 9-mm. Luger pistol used in the crimes committed at the Stockton K mart, fitted with a different barrel; a portable programmable scanning radio capable of monitoring police broadcasts, which had in fact been tuned to one of the main channels used by the Stockton Police Department; a registration slip and other title documents relating to a beige Chevrolet station wagon, purchased by defendant in San Diego under an assumed name for cash, which was evidently used in the Stockton crimes and then abandoned; more than $13,000 in cash; a police call radio directory for states including Arizona, with marks at several frequencies apparently used by law enforcement authorities in Phoenix; and a map of Phoenix, bearing defendant’s left palm print, with marks indicating, among other things, the location of certain K mart stores. At Michael’s residence in Upland was found, among other items, Winchester Western .38-caliber Super Plus P automatic ammunition—the kind of ammunition used by one of the perpetrators at the Stockton K mart. Further, while they were in custody after their arrest, defendant and Bernard passed coded notes which were intercepted, and partially decoded, by the jailers. Defendant sent a note that read in part: “Talked to said wife, worried about Denny [i.e., Dennis Rauch] cracking. I agree with you pizza [?] would stop. If not I’ll tell your story. Biggest thing against me is marks on call book for here. I saw the reg. slip on wagon . . . , that’s scary.” Bernard responded with a note, “Were you talking about the station wagon?” Defendant replied with a note that read in part: “Yes, on station wagon . . . , it’s a registration slip.” The station wagon was subsequently found abandoned about a block from the Stockton K mart. Finally, at trial Bernard and Michael were named as the shooters at the Stockton K mart by several witnesses who had observed the incident. Defendant had been seen by one witness shortly before the event: he was sitting in the driver’s seat of what was apparently the beige Chevrolet station wagon, which was parked near the store; with him in the vehicle were two other men. One witness testified she had seen Bernard and possibly defendant acting suspiciously in the store during the week preceding the incident, the former twice and the latter once. The theory of the defense was that defendant was not involved at all in the charged crimes committed at the Stockton K mart or in the uncharged offenses relating to the Riverside K mart—or that at most he may have been an accessory to the former. The defense took the position that defendant was not at either store at any time pertinent here. As to both Stockton and Riverside, it presented a defense of mistaken identity. As to Stockton alone, it offered a defense of alibi: on the day in question, defendant was not in Stockton but rather several hundred miles away in Southern California. In support, it introduced various evidence in its case-in-chief. For example, Professor Elizabeth Loftus gave expert opinion on eyewitness testimony and its unreliability under certain circumstances. And Romelia Popkins, defendant’s mother-in-law, stated defendant was in Southern California on the day of the Stockton crimes. The defense also introduced character evidence. Colonel Michael J. McGowan of the United States Marine Corps testified that defendant had been a member of the corps; he had served under him between 1977 and 1979; he was reputed to be honest and nonviolent, and in his opinion he was actually so; and he was not the type of man to have committed the crimes charged. In rebuttal, the prosecution called a jailhouse informer named Billy Ray Colbert. Colbert testified that he had been in custody with defendant and had talked to him: defendant, he said, admitted involvement in both the charged crimes committed at the Stockton K mart and the uncharged offenses relating to the Riverside K mart. The prosecution also introduced evidence showing that shortly after the Stockton crimes, defendant and his wife engaged in several large cash transactions—even though defendant was evidently unemployed and his wife was definitely so. For example, they opened a joint checking account with a deposit of $1,000 in cash and $127.91 in checks. (On the signature card defendant stated he was employed by U.S. Rooter, a sewer and drain cleaning service; in actuality, he had left the firm almost two years earlier.) Around the same time, defendant’s wife opened trust accounts for their children with cash deposits total-ling $1,000. In surrebuttal, the defense called witnesses including a jailhouse informer named William Tiller. Tiller testified that he had been in custody with Billy Ray Colbert and had talked to him: Colbert, he said, admitted that defendant had made no admissions in his presence. B. Penalty Phase At the penalty phase, the prosecution relied on the evidence offered at the guilt phase and did not introduce any evidence in aggravation. The defense presented evidence in mitigation. It was in substance as follows. Deprivation and neglect shadowed defendant’s early life. His father, Robert Gordon, and his mother, Denise Rauch, married in 1954 after she became pregnant; he was 19 years old and she was 16. Evidently Bernard was born in 1954, and defendant in 1957. The marriage was stormy and family life troubled. When Bernard was about five and defendant about two, Denise abandoned the home. At that time she was pregnant with Robert’s child. The marriage was dissolved. She soon married Jerry Caputo, delivered Michael, and gave the child “Caputo” as his surname. Robert had custody of Bernard and defendant, but provided them with inadequate care. When Bernard was about seven and defendant about four, dependency proceedings were initiated; subsequently, the boys were removed from Robert’s home, committed to an orphanage, placed in foster care, and eventually—when they were about thirteen and ten respectively—returned to Robert. The following years in Robert’s home were not without trouble: for example, Robert drank to excess, and he favored Bernard and disfavored defendant. At 17 years of age defendant joined the Marines. He served honorably for six years and was honorably discharged. At age 26—between the incidents at the Riverside and Stockton K mart stores—he married Carlene Popkins; they have three children, one of their own and two brought by Carlene from a previous marriage. Carlene testified that she loved defendant and had no plans to dissolve their marriage. Also, testimony was presented about the nature of prisons and imprisonment and the contributions life prisoners could make to the institution and to themselves. It was stipulated that defendant had no prior criminal record. II. Guilt Issues A. Denial of Motion to Bar Evidence of the Riverside K mart Incident Prior to trial, defendant moved to bar evidence relating to other crimes, including the Riverside K mart incident. He argued that the evidence was not relevant under Evidence Code section 210 and, in any event, was excludable as unduly prejudicial under Evidence Code section 352. The former provision defines “relevant” as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The latter declares that “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The prosecution opposed the motion. It argued that the evidence was relevant to the material issues of identity and intent, and was not unduly prejudicial. After a hearing, the court denied the motion. It stated as follows. “The evidence meets the test of relevance in that it tends logically, naturally and by reasonable inference to establish material issues required to be proved by the prosecution, and the court finds further that the probative value of the evidence is substantial, and relevant to the disputed issues of identity and intent, among others, and substantially outweighs the prejudicial effect thereof. []J] The court finds a sufficiently distinctive combination of circumstances to warrant the conclusion that the court has reached, and that is the order of the court.” Defendant contends that the court’s ruling was erroneous. The appropriate standard of review is abuse of discretion: the ruling comprises determinations as to relevance and undue prejudice; those determinations are each reviewed under that standard (see People v. Green (1980) 27 Cal.3d 1, 19-20 [164 Cal.Rptr. 1, 609 P.2d 468] [relevance]; People v. Karis (1988) 46 Cal.3d 612, 637 [250 Cal.Rptr. 659, 758 P.2d 1189] [undue prejudice]). (People v. Matson (1974) 13 Cal.3d 35, 40 [117 Cal.Rptr. 664, 528 P.2d 752].) Having considered the matter closely, we find no error. As even a cursory review of the facts reveals (see part I.A, ante), the court could have reasonably determined that evidence of the Riverside K mart incident had at least some tendency to prove identity and intent, and was not substantially more prejudicial than probative. Certainly, its finding that there was “a sufficiently distinctive combination of circumstances” between the crimes at Riverside and those at Stockton is altogether sound. Defendant argues to the contrary. In so doing, he relies on People v. Thompson (1980) 27 Cal.3d 303 [165 Cal.Rptr. 289, 611 P.2d 883]. In that case, we stated that the admissibility of “other crimes” evidence “depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (Id. at p. 315, italics in original.) Defendant concedes the first factor is met. In this he does only what necessity demands: it is pellucid that identity and intent are indeed material. He disputes, however, the second and third factors. We cannot agree. The circumstances of the Riverside K mart incident are such as to support a reasonable inference that defendant was involved in the crimes at the Stockton K mart as the getaway driver, and that he shared the shooters’ intent. Further, contrary to defendant’s assertion no rule or policy requires exclusion. Evidence Code section 352 does not: as the court soundly determined, the evidence was not substantially more prejudicial than probative. Nor does Evidence Code section 1101. That provision bars evidence of other crimes “when relevant to prove” only a person’s “disposition to commit such . . . act[s].” (Id., subd. (bj.) It does not bar such evidence when it is “relevant to prove some [other] fact,” such as “identity” or “intent” (ibid.), without reliance on disposition as “any link in the chain of logic” (People v. Thompson, supra, 27 Cal.3d at p. 317). Here, the “distinctive combination of circumstances” between the Riverside and Stockton incidents shows, without resort to mere “disposition,” that the perpetrators were the same persons and that they acted with the same intent. B. Denial of Motion to Bar Identification Testimony Concerning the Riverside K mart Incident Before trial defendant moved to bar Beverly Gomez from identifying him as one of the shooters in the Riverside K mart incident or from testifying she had so identified him previously. He based his motion in part on a claim that any identification by Gomez was, or would be, so unreliable as to violate his right to due process of law under the Fourteenth Amendment. The court held a hearing on the motion and made a ruling. It subsequently granted a motion by the prosecution to reopen, held another hearing, and made a final ruling. In making that ruling, it found facts expressly or impliedly. As relevant here, those facts are as follows. On November 15, 1982, Gomez, a Riverside K mart employee, saw a man acting suspiciously; soon he confronted a courier for an armored-car service, pulled out a handgun, and stuck it in the courier’s side; a second man came to support the first; she was about five or six feet away, the store was well lit, and she could see the face of the first man, who was turned toward her and wore no mask; she concentrated her attention on the gun; he then shot the courier. Not long after the incident, Gomez gave the police a general, but somewhat vague, description of the man she saw shoot the courier, noting, inter alia, that he looked “like a football player,” tall and well built. Subsequently, she gave other, varying descriptions. Evidently on several occasions she was shown arrays of photographs of suspects. In at least one defendant’s photograph appeared, but she was unable to make a positive identification. On February 3, 1984, Gomez viewed three physical lineups. Bernard, Michael, and defendant were in custody as suspects in the Riverside K mart incident. Gomez was given a form to fill out for each lineup: the form had a check box followed by the words, “I identify number_,” and another check box followed by the words, “I am unable to make an identification.” One lineup included Bernard in position four with five other men. For this lineup Gomez checked the “no identification” box. Another lineup included Michael in position five with four other men; the man in position one bore a strong resemblance to defendant. For this lineup, too, Gomez checked the “no identification” box. The final lineup included defendant in position one with four other men. This time she did not check either the “identification” or the “no identification” box, but wrote: “Number 1 in the third lineup looks familiar, but I’m not certain.” As she traveled home with her husband and reflected on the matter, she became certain (or at least virtually certain) that the man who “look[ed] familiar” was in fact the man she had seen shoot the courier. Shortly after arriving home, Gomez received a telephone call from Detective Sergeant Albert J. Brown of the Riverside Police Department. At Brown’s request, she discussed the lineups and her written comment about the third. In the course of the conversation he said words to the effect, “[Y]ou’ve picked the right person[.]” Subsequently, both out of court and in, she identified defendant as the man she had seen shoot the courier. On these facts, the court ruled in substance as follows. It would not bar Gomez from testifying as to her identification of defendant in the Riverside K mart incident before Sergeant Brown’s telephone call; but it would bar her from testifying as to any identification she may have made after the call, and also from identifying defendant at trial. It reasoned that the lineup was not “unduly suggestive”: “I kept looking at the lineup and saying to myself, ‘You know, these people look fairly much the same . . although defendant was the tallest participant in the lineup, all the others were tall as well; in spite of his physical characteristics, he was not “singularly marked for identification.” It also reasoned that Gomez became certain (or at least virtually certain) of her identification before the call: Gomez and her husband each gave credible testimony on the point. Finally, it reasoned that Sergeant Brown’s remark was unduly suggestive and had a corrupting effect on any identification that did, or might, follow—but that in view of Gomez’s certainty, it did not have such an effect on the preceding identification, as it were, “retroactively.” At trial, Gomez testified as to her identification of defendant before the call. Defendant contends that the court erred by ruling that Gomez could testify on her identification before her telephone conversation with Sergeant Brown, without offense to the due process clause of the Fourteenth Amendment. Whether an extrajudicial identification admitted at trial is so unreliable as to violate a criminal defendant’s right to due process of law under the Fourteenth Amendment is governed by principles stated in Manson v. Brathwaite (1977) 432 U.S. 98 [53 L.Ed.2d 140, 97 S.Ct. 2243], Those principles—although variously phrased in various state and federal decisions—establish the following structure of analysis. The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary (Manson v. Brathwaite, supra, 432 U.S. at pp. 104-107 [53 L.Ed.2d at pp. 147-150]); and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation (id. at pp. 109-114 [53 L.Ed.2d at pp. 150-154]). If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. (Id. at pp. 104-107, 109-114 [53 L.Ed.2d at pp. 148-149, ISO-154].) After close consideration, we find no error in the court’s ruling. The court determined that the identification procedure at the lineup was not unduly suggestive, and that Sergeant Brown’s remark was not unduly suggestive “retroactively.” It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. (Compare Cikora v. Dugger (11th Cir. 1988) 840 F.2d 893, 895-896 [supporting the former position] and People v. Martinez (1989) 207 Cal.App.3d 1204, 1220 [255 Cal.Rptr. 691] [same] with Cikora v. Dugger, supra, at pp. 899-900 (conc. & dis. opn. of Clark, J.) [supporting the latter position] and United States v. Johnson (9th Cir. 1987) 820 F.2d 1065, 1072 [same].) But even under independent review, the court’s determination was sound: the supporting reasoning, which is set out above, is convincing. Defendant argues that the lineup was unduly suggestive, and intentionally so. We reject the claim of bad faith: it is wholly without support in the record. We also reject the claim of undue suggestiveness. Defendant asserts that contrary to the court’s express determination, his height and build singularly marked him for identification. But having scrutinized the record, including the photographs of the lineup, we must disagree. All the participants in defendant’s lineup bore a general resemblance to one another; although defendant was the tallest, all the others were tall as well. Moreover, one of the participants in Michael’s lineup, which preceded defendant’s, bore a strong resemblance to defendant. Defendant also argues that Sergeant Brown’s remark was unduly suggestive “retroactively.” But the record establishes that Gomez did indeed become certain (or virtually certain) of her identification before the call: Gomez and her husband credibly testified to that effect below, and their testimony provides more than adequate support. It may well be, as defendant strenuously urges, that Gomez’s identification was not the most reliable. But the admission of such testimony does not violate due process in and of itself. “ ‘It is part of our adversary system that we accept at trial much evidence that has strong elements of untrustworthiness—an obvious example being the testimony of witnesses with a bias. While identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart—the “integrity”—of the adversary process. “ ‘Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification—including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.’ ” (Manson v. Brathwaite, supra, 432 U.S. at pp. 113-114, fn. 14 [53 L.Ed.2d at pp. 153], quoting, without footnote, Clemons v. United States (D.C. Cir. 1968) 408 F.2d 1230, 1251 [133 App.D.C. 27] (conc. opn. of Leventhal, J.).) Here defense counsel did indeed cross-examine Gomez on her identification and argued against its reliability, and did so vigorously. There was no denial of due process. C. Denial of Request for In Camera Hearing in Conjunction With Pretrial Motion for Separate Juries On the very eve of voir dire, defendant made an oral motion, without advance notice to the prosecution, for the impanelment of separate juries for the issues of guilt and penalty. At the same time, he made an oral request, also without advance notice, for a hearing in camera, outside the presence of the prosecution, at which he could disclose his reasons. The court denied the request. And it denied the motion without prejudice. Immediately before the penalty phase, defendant renewed the motion but not the request. The court denied the motion. Defendant contends that the court erred when it denied his request for an in camera hearing. In the general case at least, the decision whether or not to grant such a request is evidently entrusted to the court’s sound discretion. Its decision must therefore be reviewed for abuse of that discretion. Under that standard, no error appears. In support of the request, defense counsel baldly asserted that they could adequately argue their separate-juries motion only by disclosing their strategy and tactics, and that they would make such a disclosure only in camera. The court found the assertion unpersuasive. On this record, we cannot conclude that the court was unreasonable in its determination. In any event, defendant does not show—and certainly we cannot discern—any prejudice arising from the ruling. D. Denial of Motion for Disclosure of Informer's Identity Prior to trial, defendant moved for an order directing the prosecutor to disclose the identity of an informer. He claimed in substance that there was a reasonable possibility that nondisclosure might deprive him of a fair trial. In support defense counsel declared on information and belief to the following effect: the informer stated only two persons participated in the crimes at the Stockton K mart; Bernard and Michael were positively identified as the shooters; as a result, the informer might have evidence tending to exonerate defendant. The prosecution opposed the motion. The court conducted a hearing in open court pursuant to Evidence Code section 1042, subdivision (d). Defendant called as his sole witness Detective Sergeant Robert Davis Wingo of the Stockton Police Department, who was one of the officers investigating the crimes committed at the Stockton K mart. The prosecutor called no witnesses. As relevant here, Wingo testified in substance as follows: the informer provided no information whatever concerning the crimes at the Stockton K mart; he did furnish specific information about the incident at the Riverside K mart, among others, identifying Bernard, Michael, and defendant as participants along with possibly two other persons; the informer was not a participant or a percipient witness, but had obtained the information directly from one of the brothers; and he gave the information to an unnamed person, who gave it in turn to an unnamed law enforcement official, who finally gave it (directly and indirectly) to Wingo, who used it in the investigation leading to the arrest of defendant and his brothers. Defense counsel asked Wingo the identity of the informer. Wingo responded he did not know. Counsel asked him the identity of the unnamed law enforcement official. Claiming the privilege of Evidence Code section 1041, which protects from disclosure the identity of informers, he refused to answer. On the prosecution’s request, pursuant to Evidence Code section 1042, subdivision (d), the court then held a hearing in camera, outside the presence of defendant and his counsel, to rule on Sergeant Wingo’s claim of privilege. The in camera proceedings were reported; a transcript was subsequently made and sealed. Returning to open court, the court made a tentative ruling sustaining Sergeant Wingo’s claim of privilege and denying defendant’s motion for disclosure of the informer’s identity. It subsequently made a final ruling to the same effect. It stated that it was troubled by the presence of multiple hearsay and the absence of the informer. But it determined that “the necessity for keeping [the informer’s] identity secret, that is the individual’s safety, outweighs the need for the identity of the informant [to] be made known to the defense for a proper defense of the case. In other words, the court’s ruling is I don’t see any reasonable possibility that the defendant will not get a fair trial despite the fact he doesn’t know the identity of the informant.” Defendant contends that the court erred by denying his motion for disclosure of the informer’s identity: contrary to the court’s determination, he claims, there was a reasonable possibility that nondisclosure might deprive him of a fair trial. The standard of review applicable to the determination under challenge is not settled. (Compare, e.g., People v. Otte (1989) 214 Cal.App.3d 1522, 1535-1536 [263 Cal.Rptr. 393] [suggesting review de novo] with People v. Alderrou (1987) 191 Cal.App.3d 1074, 1078, 1080 [236 Cal.Rptr. 740] [assuming review for abuse of discretion]; see People v. Louis (1986) 42 Cal.3d 969, 985-987 [232 Cal.Rptr. 110, 728 P.2d 180] [dealing generally with standards of review].) But having scrutinized the record in its entirety, including the sealed transcript of the in camera proceedings, we are of the opinion that the court’s determination was sound under any standard. It is, of course, the defendant who bears “the burden ... to make a sufficient showing that the unnamed informer does have information which would be material to the defendant’s guilt. [Citations.] This burden is met only where the defendant demonstrates through ‘some evidence’ [citation] that there exists a ‘ “reasonable possibility that the anonymous informant whose identity is sought could give evidence on the issue of guilt which might result in defendant’s exoneration.’”” (People v. Hardeman (1982) 137 Cal.App.3d 823, 828 [187 Cal.Rptr. 296], italics omitted.) Defendant did not carry his burden. We recognize that he encountered difficulties through the presence of multiple hearsay and the absence of the informer. But there is no blinking the fact that he did not present any evidence whatever suggesting that the informer had information that might have been helpful to his case. As noted above, he rested his motion on counsel’s declaration—on information and belief—that the informer stated only two persons participated in the crimes at the Stockton K mart; Bernard and Michael were positively identified as the shooters; as a result, the informer might have evidence tending to exonerate defendant. But there was absolutely no support in the evidence presented at the hearing for the crucial assertion that the informer stated only two persons participated in the crimes at the Stockton K mart. Accordingly, we conclude that there was not a reasonable possibility that nondisclosure of the informer’s identity might deprive defendant of a fair trial. E. Overruling of “For Cause” Challenges to Prospective Jurors During voir dire, defendant challenged three prospective jurors for cause on the basis of actual bias. The court overruled the challenges. It turned out that none of the three sat on the jury sworn to try the case: one was never drawn into the box, and the other two were removed on peremptory challenge by the defense. When the jurors were sworn, defendant did not indicate any dissatisfaction with the panel and in fact had a peremptory challenge remaining. Defendant contends that the court erred by overruling his “for cause” challenges. For purposes here we shall assume the court did in fact err. But as will be shown, reversal is not required. It appears that with the exception of an improper “ Witherspoon exclusion” (Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]), an erroneous ruling on a “for cause” challenge is not automatically reversible but is subject to scrutiny for prejudice under harmless-error analysis. Certainly, this is true of an erroneous ruling denying such a challenge. (People v. Coleman (1988) 46 Cal.3d 749, 768-771 [251 Cal.Rptr. 83, 759 P.2d 1260]; see People v. Bittaker (1989) 48 Cal.3d 1046, 1088 [259 Cal.Rptr. 630, 774 P.2d 659] [following Coleman].) Since the exception is plainly inapplicable here, the general rule operates. After review, we can discern no prejudice. None of the prospective jurors whom defendant found objectionable actually sat on his jury. Hence, none could have tainted the panel’s members with his alleged bias. Accordingly, none could have affected the process or result of the deliberations to defendant’s detriment. Defendant disagrees with our conclusion that reversal is not required. He first argues against the applicability of harmless-error analysis. He relies on language in Gray v. Mississippi (1987) 481 U.S. 648 [95 L.Ed.2d 622, 107 S.Ct. 2045], that “the relevant inquiry is ‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error.’ ” (Id. at p. 665 [95 L.Ed.2d at p. 637], italics in original.) But that language was all but disapproved in Ross v. Oklahoma (1988) 487 U.S. 81 [101 L.Ed.2d 80, 108 S.Ct. 2273]: “the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” (Id. at pp. 87-88 [101 L.Ed.2d at p. 89], fn. omitted.) We are in accord. Defendant asks us to repudiate Ross and embrace Gray, but we cannot do so. In our view, “ ‘whether the composition of the jury panel as a whole could have been affected by the trial court’s error[],’” (Gray v. Mississippi, supra, 481 U.S. at p. 665 [95 L.Ed.2d at p. 637], italics in original) cannot be deemed the “relevant inquiry” (ibid.). It is the merest speculation whether an erroneous ruling on a “for cause” challenge might actually have had any significant effect and, if so, whether such effect might have helped or harmed the defendant. Hence, the inquiry identified by the Gray court cannot serve as a principled basis on which to conclude that the error should be deemed automatically reversible as a general matter, or even that it caused any harm in an individual case. Defendant next argues against the applicability of harmless-error analysis at least when, as here, the death penalty is involved. But he simply fails to persuade us the exception he urges should be recognized. Finally, defendant argues that he did indeed suffer actual prejudice as a result of the “error” here. Having reviewed the record, we cannot agree. Defendant says he was harmed because he was “forced to accept” a jury he “was not satisfied with.” But we discern in the record no dissatisfaction and no compulsion. Defendant says he was harmed because he was effectively denied two peremptory challenges when he chose to exercise those challenges to “cure” the “error.” But we can find no denial. A criminal defendant may, and indeed must, exercise the peremptory challenges granted him by law “to remove prospective jurors who should have been excluded for cause” (People v. Coleman, supra, 46 Cal. 3d at p. 770)—that is to say, to cure the very kind of error claimed here. In view of the foregoing, we simply cannot deem defendant’s exercise of his peremptory challenges to amount to a deprivation, F. Admission of Extrajudicial Statement The prosecution sought to put Dennis Rauch on the stand as a witness in order to link his nephews Bernard, Michael, and defendant to the Riverside K mart incident. On voir dire outside the presence of the jury, Rauch claimed a privilege against self-incrimination under the Fifth Amendment and refused to testify. The prosecution petitioned the court under Penal Code section 1324 (hereafter section 1324) to grant Rauch immunity and compel him to testify. Rauch opposed the request. Defendant acquiesced in, and in fact supported, his position. The court denied the petition and upheld the claim of privilege. Rauch was not called to the stand before the jury. Subsequently, at a hearing outside the presence of the jury, the prosecution moved to introduce for its truth an extrajudicial statement by Rauch. Rauch made the statement during questioning by police officers, including Sergeant Wingo, as to his dealings with Bernard, Michael, and defendant shortly after the Riverside K mart incident, which occurred on November 15, 1982. As relevant here, the statement was to the following effect. At his house in Hinesville, Georgia, just before November 25, 1982—the statement began—Rauch received a telephone call from Bernard, who was apparently in California; he was told that defendant and Michael had sustained certain injuries; he was a sergeant in the Army, had served in Vietnam, and was quite familiar with gunshot wounds. He instructed Bernard to bring defendant and Michael to him for treatment. Subsequently, he received a call from Bernard every day and was informed where the trio were on their journey; he was asked how to treat the injuries; he said to stabilize defendant’s arm between two boards and to pack Michael’s stomach area with ice and administer aspirin every four hours. On November 26—the statement continued—the trio arrived at Rauch’s house in a red pickup truck with a camper shell. Rauch saw defendant and Michael lying in the camper section: defendant and Michael had suffered gunshot wounds, the former to his arm and hip, the latter to his stomach. The pair were ambulatory and walked into the house. Once there, Rauch checked their wounds more closely and determined defendant’s arm was broken; he told defendant he should go to a hospital to have his arm checked, but it was decided that he should do so only after the gunshot wounds had healed. He began to treat the pair’s injuries, obtaining what he needed from his wife and a friend. Bernard stayed at Rauch’s house about three days. Rauch took him to the Savannah airport for a flight back to California, and received $2,000. After defendant’s gunshot wounds had healed sufficiently, Rauch took him to a hospital in Hinesville and from there to a hospital in Savannah. Defense counsel objected to the admission of Rauch’s statement under the hearsay rule. The prosecutor claimed the statement was excepted from the rule as a declaration against interest—specifically, penal interest: “Evidence of a statement... is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true.” (Evid. Code, § 1230.) The prosecutor argued that both requirements of the exception were satisfied: (1) Rauch was unavailable—he had claimed a privilege against self-incrimination under the Fifth Amendment and had refused to testify; and (2) the statement was against his penal interest—it subjected him to the risk of significant criminal liability. Defense counsel conceded the first requirement was met but disputed the second. The court ruled that Rauch’s statement was admissible under the declaration-against-interest exception to the hearsay rule. It determined that both the unavailability and against-interest requirements were satisfied. Subsequently, the statement was introduced into evidence. Defendant contends that the court’s ruling was error: Rauch’s statement was hearsay; moreover, it did not come within the declaration-against-interest exception because neither the unavailability nor the against-interest requirement was met. Ex proprio motu, we raise the question whether defendant’s claim is properly before us. To preserve such a point for review on appeal, a defendant must of course provide an adequate record. (See, e.g., People v. Romo (1975) 14 Cal.3d 189, 195 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Green (1979) 95 Cal.App.3d 991, 1001 [157 Cal.Rptr. 520]; People v. Clifton (1969) 270 Cal.App.2d 860, 862 [76 Cal.Rptr. 193]; cf. Lucero v. Superior Court (1981) 122 Cal.App.3d 484, 489 [176 Cal.Rptr. 62] [holding that to preserve a claim for review by extraordinary writ, a defendant must provide an adequate record].) The issue arises whether the record here is adequate: in making the ruling under challenge, the court evidently considered a typewritten report prepared by Sergeant Wingo, which, inter ali, a memorialized Rauch’s statement; that report, however, is not contained in the record. After careful review, we believe the record is in fact sufficient. From the reporter’s and clerk’s transcripts, we have been able to determine what the relevant part of Wingo’s report must have stated. To be sure, the record is not perfect. But it is indeed adequate. Our conclusion is confirmed by the evident agreement of the Attorney General, who is counsel for the People. Time and again in his briefs, he claims that a contention by defendant is procedurally barred. He makes no such claim here. We turn now to the merits. As noted, defendant maintains that the court’s ruling on the admissibility of Rauch’s statement as a declaration against interest was erroneous. We review the court’s ruling under the abuse-of-discretion standard. The Legislature evidently intended to entrust to the trial court’s sound discretion the determination of the admissibility of evidence pursuant to the declaration-against-interest exception. “The focus, indeed, the heart of this exception . . . is . . . the basic trustworthiness of the declaration.” (People v. Bullard (1977) 75 Cal.App.3d 764, 769 [142 Cal.Rptr. 473].) The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception. Such an endeavor allows, in fact demands, the exercise of discretion. Of course, we review the specific determinations underlying the court’s ruling under the standards appropriate thereto. (See generally People v. Louis, supra, 42 Cal.3d at pp. 985-987; Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [264 Cal.Rptr. 139, 782 P.2d 278] [following Louis].) Applying the abuse-of-discretion standard, we find no error in the court’s ruling that Rauch’s statement was admissible under the declaration-against-interest exception. The court concluded the exception was applicable. On this record, we cannot characterize that conclusion as unreasonable: the statement appears basically trustworthy. Defendant argues to the contrary. He claims the court erred by determining that the exception’s unavailability requirement was satisfied. And he does so notwithstanding the settled rule that a declarant is unavailable when, as here, he claims a privilege against self-incrimination and refuses to testify (e.g., People v. Leach (1975) 15 Cal.3d 419, 438 [124 Cal.Rptr. 752, 541 P.2d 296]), and also notwithstanding his own concession below that Rauch was in fact unavailable. We need not address the standard of review applicable to determinations of unavailability. This is because we reject defendant’s claim of error on procedural grounds. First, as noted above defendant conceded that Rauch was in fact unavailable. He may not be heard to complain of the court’s determination in conformity with his concession. Second, in this court defendant offers only one argument: Rauch would not have claimed a privilege against self-incrimination and refused to testify if the court had not erroneously denied the prosecution’s section 1324 petition. Defendant did not offer this argument below. Had he done so, he would have given the court an opportunity to consider the question and to avoid or cure the claimed error—indeed, before the ruling in question, the court had expressed a belief that it might have erred by denying the prosecution’s petition. Moreover, had defendant offered the argument he would have provided an occasion to develop a record adequate for review. But as stated, he did not offer the argument below. Accordingly, he may not do so here. (Cf. Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [108 Cal.Rptr. 585, 511 P.2d 33] [dealing with a motion to suppress under Pen. Code, § 1538.5].) Defendant also claims the court erred by determining that the exception’s against-interest requirement was satisfied. We are faced with the question: What is the standard of review applicable here? As we have explained, a ruling on the admissibility of evidence as a declaration against interest is broadly reviewed for abuse of discretion: the heart of the exception is the basic trustworthiness of the declaration, and that question is entrusted to the trial court’s discretion. It follows that a determination whether the declaration is indeed against interest should itself be reviewed for abuse of discretion: that issue goes to the core of the question of basic trustworthiness, and hence must be deemed entrusted to the court’s discretion. Applying the abuse-of-discretion standard, we find no error in the determination that the against-interest requirement was met. The court could have reasonably concluded that at the time it was made, Rauch’s statement so far subjected him to the risk of criminal liability that a reasonable person in his position would not have made it unless he believed it to be true. This is because Rauch all but confessed that he was an accessory to the crimes committed in the Riverside K mart incident: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony . . . , is an accessory to such felony.” (Pen. Code, § 32.) To be sure, Rauch did not expressly admit either intent or knowledge. But he impliedly admitted both by his suspicious conduct throughout the incident in question. Defendant argues to the contrary. He claims Rauch’s statement should be considered untrustworthy in view of its substance. He says it must be characterized as neutral or exculpatory, and therefore unreliable, because it admits no more than it does. We cannot so characterize the statement. To be sure, the criminal liability that the statement risks is not the highest. But it is significant nonetheless. Defendant next claims Rauch’s statement should be considered untrustworthy in light of the circumstances under which it was made. The facts developed at the hearing are these: during questioning by the police, Rauch was advised of the seriousness of the crimes committed in the Riverside K mart incident, and was warned not to withhold information; he said he feared prosecution if he spoke truthfully; he was told he should not if he was truthful and had taken no part at all in the crimes; he then proceeded to make the statement in question. Defendant says the statement was made in the face of words that a reasonable person would have construed as a virtual grant of immunity or at least a promise of a benefit, and hence should be deemed unreliable. We disagree. The statement falls outside any “grant” or “promise” the words could reasonably have been understood to offer. As stated above, Rauch all but confessed that he was an accessory to the crimes committed. He thereby admitted he had taken some part in those offenses. Defendant also says Rauch’s statement was made in a situation in which a reasonable person would have been tempted to distance himself from the crimes under investigation and to curry favor with the authorities, and hence should be deemed unreliable. We acknowledge the temptation in the abstract. But we cannot conclude that Rauch yielded. It does not appear that he was involved in the Riverside K mart incident more closely than his statement implies. Hence, it does not appear that he attempted to distance himself from the event in any significant way. In sum, under the abuse-of-discretion standard the court did not err by determining that the against-interest requirement was met. Defendant’s argument shows only that a court might perhaps have been able to arrive at the conclusion that Rauch’s statement did not so far subject him to the risk of criminal liability that a reasonable person in his position would not have made it unless he believed it to be true. It simply does not show that a court was unable to arrive at the opposite conclusion. Therefore, it does not establish an abuse of discretion. But even if the court had in fact erred by ruling admissible, and subsequently admitting, Rauch’s statement, reversal is not called for. It is the general rule for error under state law that reversal requires prejudice and prejudice in turn requires a reasonable probability of an effect on the outcome. (See, e.g., People v. Watson (1956) 46 Cal.2d 818, 834-837 [299 P.2d 243].) That rule is applicable here. (People v. Leach, supra, 15 Cal.3d at p. 445.) Having reviewed thé record, we discern no prejudice that could have arisen from the claimed “error.” There was strong evidence, properly admitted, linking defendant to the crimes at the Stockton K mart. Such evidence was “direct,” showing his involvement in those offenses themselves. It was also “indirect,” suggesting his participation in the Stockton crimes by showing his participation in those at Riverside. In its substance, albeit not in its details, Rauch’s statement was cumulative to other “indirect” evidence—and defendant himself essentially conceded as much below: several witnesses gave testimony establishing that not long after the crimes at the Riverside K mart, Bernard, Michael, and defendant arrived in Hines-ville under suspicious circumstances. In view of the foregoing, we conclude that there is no reasonable probability that the claimed “error” affected the outcome.* **** G. Admission of Testimony by Alibi Witness on Cross-examination As noted in the facts (see part I. A, ante), defendant presented a defense of alibi: on the day of the crimes at the Stockton K mart, he was not in Stockton but rather several hundred miles away in Southern California. Romelia Popkins testified on his behalf, as relevant here, to the following effect: she was the mother of defendant’s wife and therefore his mother-in-law; she had agreed to take care of the pair’s children on the day in question while they went Christmas shopping; she lived in Covina and they lived in Chino; between 2 and 3 p.m. that day defendant and his wife arrived at her home with their children; after chatting awhile, the pair left to go shopping; between 8:30 and 9:30 p.m. they returned; they stayed about 30 to 45 minutes and then went home with their children. On cross-examination Popkins was asked by the prosecutor whether she had ever told the police that defendant was in Southern California, and not Stockton, on the day in question. She answered no. In his summation the prosecutor argued that her answer tended to show that her alibi testimony was fabricated. Defendant contends that the court prejudicially erred by admitting Popkins’s testimony that she never told the police that he was in Southern California, and not Stockton, on the day of the crimes at the Stockton K mart. He argues the testimony was inadmissible because it was irrelevant and also because it infringed on his privilege against self-incrimination under article I, section 15, of the California Constitution. We reject the point at the threshold. As stated above, the rule is that a defendant may not complain on appeal that evidence was inadmissible on a certain ground if he did not make a timely and specific objection on that ground in the trial court. At trial, defendant made no objection whatever. Defendant argues the rule is not applicable here. He asserts any objection would have been futile. We disagree. Although People v. Ratliff (1987) 189 Cal.App.3d 696 [234 Cal.Rptr. 502], the case on which he places primary reliance, was decided during pendency of this appeal, the ground of irrelevancy he now urges was not inconsistent with the case law at the time of trial. Nor was the ground of privilege. Accordingly, futility does not appear. Defendant also asserts in substance that the rule is in conflict with, and must yield to, his Eighth Amendment right to a reliable penalty determination and the state’s independent interest in the reliability of such a determination. Again we disagree: no significant conflict appears. We also reject the point on the merits. Any error in admitting the challenged testimony was plainly harmless. The evidence inculpating defendant in the crimes at the Stockton K mart was quite strong, and that exculpating him was quite weak. Popkins’s credibility was open to attack, and was in fact attacked, on the ground of her affinity with defendant. Her credibility would not have been marginally reduced by the attack on her alibi testimony. Therefore, there is not a reasonable probability that the “error” affected the outcome. Next, defendant claims in effect that the prosecutor engaged in misconduct by arguing that the testimony in question tended to show that Pop-kins’s contribution to the alibi defense was fabricated. The point is ultimately based on the argument that the testimony was both irrelevant and violative of defendant’s state constitutional privilege against self-incrimination. A defendant, however, cannot complain on appeal of misconduct by a prosecutor at trial unless he made a timely assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (E.g., People v. Green, supra, 27 Cal.3d at pp. 27-34.) In this case defendant made no such assignment and request. It is true that the rule does not apply when the harm could not have been cured. (Ibid.) Such a situation, however, was not present here: any harm threatened was certainly curable. Rehearsing the substance of arguments made above, defendant asserts that the rule does not apply when assignment and request would have been futile, and that, in any event, the rule is in conflict with, and must yield to, his Eighth Amendment right to a reliable penalty determination and the state’s independent interest in the reliability of such a determination. But as stated, neither futility nor significant conflict appears. H. Prosecutorial Misconduct As noted in the facts (see part I.A, ante), Billy Ray Colbert testified for the prosecution on rebuttal about certain admissions defendant allegedly made to him in jail. The admissions in question related to the crimes at the Stockton K mart and also to the Riverside K mart incident. In the course of Colbert’s testimony, the prosecutor asked the following questions and Colbert gave the following answers. “Q. . . . Now, you indicated that you tried to get [defendant] to talk then about this thing that happened in Riverside, is that correct? A. Yes, sir. “Q. What if anything did he say to you about it? A. . . . [([] That it was some female witness that he had got throwed out that ID’d him on the robbery there. “Q. Okay. A. You know, I can’t remember word for word, but I do remember he said it was some woman that was suppose to have identified him over telephone or some kind of way, and he got that throwed out through some kind of technicality in the courts. “Q. Okay. A. Yes, sir. “Q. Did he say anything more to you about what happened at Riverside? A. Yes. ffl] He says that it was a shoot-out, and that it was something about some blood. [fl] I just can’t remember exactly what it was. It was some blood that they had found, and that he thought that he probably get convicted, or he made on this one in Riverside, [fl] He wasn’t too worried about this one; that he was scared that he was going to be convicted on this one here is because they had him pretty well direct tied into shooting the person in Riverside, or something, in the store, in the parking lot inside the store, or something like that, [fl] I can’t remember whether he