Full opinion text
Opinion BROUSSARD, J. Defendant Jackson Chambers Daniels, Jr., was convicted of the first degree murder of Riverside Police Officers Dennis Doty and Phil Trust. The jury found that defendant used a firearm in each murder. Defendant was also convicted of possession of cocaine, and possession of a concealable firearm by an ex-felon. With respect to each murder, the jury found three special circumstances: “that defendant has in this proceeding been convicted of more than one offense of murder” (Pen. Code, § 190.2, subd. (a)(3)); “that the murder was committed for the purpose of avoiding or preventing a lawful arrest . . .” (§ 190.2, subd. (a)(5)); and intentional murder by a defendant who “knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties . . .” (§ 190.2, subd. (a)(7)). The jury fixed the penalty at death. This appeal is automatic. Summary of Facts Defendant was convicted of murdering two police officers who came to take him to prison after his conviction for a 1980 bank robbery had been affirmed on appeal. In the course of the bank robbery defendant had fled in a car, pursued by Officers Bulf and Creech. The bank had planted a tear gas bomb with the stolen money; when defendant’s car filled with the gas he leaned out an open door. The car made a U-turn, narrowly missing Bulf, who was standing next to his patrol car. Bulf fired at the car, which spun out of control and came to a stop. Defendant got out of the car, shot at Creech, and ran. The officers fired and defendant fell. He was hit with nine bullets, one of which entered defendant’s back and left him paralyzed below the waist. The officers found the proceeds of the bank robbery in the car. Defendant pled nolo contendere to charges of bank robbery and assault on a police officer and was sentenced to 13 years’ imprisonment. The court granted a stay of execution to permit an appeal. Defendant posted bail pending appeal and remained at liberty. Defendant’s conviction was affirmed by the Court of Appeal. When we denied defendant’s petition for hearing, the superior court set a hearing for April 21, 1982. When defendant did not appear at the hearing, it was continued to April 28. Defendant again did not appear, and the court issued an arrest warrant. Defendant’s uncle, who had put up the collateral for the bail, told the police that defendant was living at the house of James Cornish. On May 13, Officers Doty and Trust were assigned to go there to arrest defendant. Alma Renee Ross, defendant’s nurse, testified under immunity. She described what happened when the officers arrived. Cornish and his wife had gone to work, leaving defendant, Ross, and the Cornishes’ three-year-old son in the house. Ross admitted the officers about 8:30 a.m. and took them to defendant’s bedroom. Defendant was sitting on the bed, dressed only in a shirt. Ross went to his closet to get pants and shoes. When she looked back she saw defendant take a gun from between his legs. She hid in the closet and heard gunshots. A short while later defendant called her to come out of the closet. When she did she saw defendant sitting on the floor with his back against the bed; he had a bullet wound to his right hand. Officer Doty’s body was lying on the floor. Defendant picked up a gun from the floor and, with Ross’s assistance, got into his wheelchair. As they left the house she saw Officer Trust, mortally wounded, kneeling on the floor of the Cornish bedroom. After defendant and Ross left the house, Trust broke the bedroom window, fired a shot to attract attention, and called for help. Two neighborhood children heard his call and went to the house of Claire Spicer, who summoned the police. Ross drove defendant to the home of Clara Butler and her mother, Dolores Butler. Dolores saw an announcement on television about the killing, and confronted defendant. He told her, “Yes, I killed them.” It was “either them or me.” Clara then insisted that defendant leave. Defendant called Claire Schall and asked her to pick him up. While they were looking for a place where defendant could stay, they heard a radio broadcast mention the killing. Defendant then said to her, “Now you know.” On May 14 defendant went to Ted Smith’s house. The next morning defendant told Smith that when one of the officers went to get some clothes for him, he “saw his opportunity and took it.” Defendant said that after he shot one officer, the other one shot the gun out of his hand. Defendant fell to the floor, got the first officer’s gun, and shot the other policeman. The police investigation showed that Doty had been shot three times with an unidentified gun; Trust had been shot six times, mostly with Doty’s gun. Investigators also determined that Trust had fired four bullets from his gun. Three were recovered in the house; the fourth was in defendant’s hand. The search of the house also turned up cocaine in both defendant’s bedroom and in the Cornishes’ bedroom. At the trial police investigators attempted to reconstruct the gunfight from the location and trajectory of the bullets. They theorized that when defendant and Trust exchanged gunfire defendant was lying on the bedroom floor, shooting around the bedroom door. Trust was in the hallway between the two bedrooms. After he was hit Trust retreated to the Cornish bedroom. The defense argued that it would be extremely difficult for defendant, after having been shot in the hand by Officer Trust, to get off the bed, take the gun from Officer Doty, and shoot Trust. Dr. Mortimer Moore offered an alternative reconstruction of the shooting differing from that of the prosecution experts. Dr. Floyd Brallier, a hand surgeon, testified that after defendant was shot in the right hand, it would have been difficult for him to hold and operate a gun with that hand. The defense suggested that someone else—either Renee Ross, Oscar Ross (Renee’s brother, and also a paraplegic), or James Cornish—had killed the officers. It presented testimony from James Pinckney, assistant sales manager at the dealership where Cornish worked, to show that James Cornish had left work to return home the morning of the murders. He may have left before 8:30 a.m. Witnesses described Cornish as using and dealing in illegal drugs. A defense investigator said Oscar Ross told him that after Renee Ross let defendant out at the Butler house, they went to the car dealership to find Cornish, but he was not there. (Pinckney said they came by about 10 a.m.) They then went to the house to find defendant’s drugs and gun, but turned back because the road was blocked. Other witnesses said they saw a woman near the Cornish house pushing a man in a wheelchair. They described the woman as wearing jeans and a numbered jersey. Ross had earlier testified she had been wearing pajamas. In rebuttal, Drs. Steven Nelson, Elvert Nelson, and Allen Wolf testified that defendant could have held and shot a gun immediately after his injury. Nurse Mary Duron described defendant’s ability to use his hand as of the time of trial. She added that defendant had told her “he was sorry about getting his friends involved and he felt bad about what he did to the officers’ wives.” A prosecution investigator said Pinckney told him Cornish left at 9:20. The jury found defendant guilty of first degree murder of Officers Trust and Doty, with a firearm-use enhancement as to each murder. It found defendant guilty of possession of cocaine, a lesser included offense under the charge of possession for sale. Finally, it found him guilty of possession of a concealable firearm by an ex-felon. As noted earlier, the jury found six special circumstances: two of multiple murder, two of murder to avoid arrest, and two of murder of a police officer. At the penalty phase the prosecution proved a number of prior criminal convictions, including a 1959 armed robbery in Phoenix, and eight armed robberies in Los Angeles in 1961. Defendant was imprisoned for the Los Angeles robberies, and released on parole in 1968. In 1976 he shot at Leslie Howard in a dispute over money Howard owed defendant. In that same year defendant was convicted of assault with a deadly weapon for an incident in which a police officer approached defendant, who was sitting in a parked car outside a 7-Eleven market, and asked for identification. Defendant drew a gun. He fled from the car, but later surrendered to the officer. Jim Rodriguez, defendant’s neighbor, testified that defendant said he had tried to shoot the officer but the gun jammed. The defense called defendant’s relatives, who testified to the economic hardships of defendant’s childhood. Other witnesses described defendant’s life during the early 1970’s after he had been paroled from his robbery convictions. Former employers and fellow workers said defendant worked regularly during that period. A former probation officer and a high school teacher testified that defendant helped high school boys in a weight-lifting program. Witnesses generally described defendant as an outgoing, friendly person much admired by the youths of the neighborhood. Defendant showed no hostility toward the police. On cross-examination, however, defendant’s brother admitted that defendant had been involved in selling marijuana and receiving stolen property during this period, and said that defendant played a kind of “game” with the police, trying to see what he could get away with. Other witnesses said that when defendant was hospitalized after he was wounded in the bank robbery, he still had a positive attitude and was not bitter toward the police. Mark Munoz, also hospitalized after an automobile accident, said defendant had helped him to turn his attitude around. Prison personnel testified that defendant’s prison attitude was “average,” and that he did not present particular problems. Cross-examination brought out a number of minor disciplinary infractions. Finally, psychologist Robert Banks testified on the basis of various psychological tests, in particular the “Clinical Assessment Questionnaire,” that although Daniels has superficially sociopathic traits, they are caused by an underlying pattern of schizophrenia. In rebuttal, psychologist Rex Beaber questioned the validity of the “Clinical Assessment Questionnaire,” and asserted that in his opinion defendant was a sociopath. After two days of deliberation the jury returned verdicts imposing the death penalty for each of the two charged murders. The court denied the motion for modification of judgment, and sentenced defendant to death. The sentence is consecutive to the previous sentence for bank robbery, and concurrent to the sentences imposed for possession of cocaine and unlawful possession of a firearm. I. Issues Relating to Appointment and Removal of Counsel On May 17, 1982, defendant was arraigned for the murders, and the court appointed the Riverside County Public Defender to represent him. Defendant requested appointment of Andrew Roth, who had represented him on his appeal from the bank robbery conviction. Defendant said he did not trust the public defender’s office, and that Roth was representing him in a federal district court petition for habeas corpus attacking the bank robbery conviction on the ground that he did not receive competent representation from the public defender. Defendant was particularly upset that the deputy public defender who represented him in the bank robbery case did not inform him that the deputy was negotiating for a position with the district attorney. The judge denied defendant’s request, and the public defender represented defendant through the preliminary hearing. On October 12, 1982, the judge granted the public defender’s ex parte motion to appoint Roth as cocounsel for defendant. The district attorney then moved to rescind Roth’s appointment. He said he intended to call Roth as a prosecution witness, and that Roth thus had a conflict of interest which precluded him from representing defendant. Defendant argued that the evidence the prosecution sought to elicit from Roth was barred by the attorney-client privilege. Counsel suggested that if the evidence were held admissible the defense might be willing to stipulate to some matters, and that in any event Roth’s testimony would not be prejudicial to his client. The judge, however, granted the motion to vacate Roth’s appointment. He did not ask defendant whether he would waive Roth’s conflict of interest, and defendant did not volunteer to do so. On December 10, 1982, the public defender moved to reinstate Roth as cocounsel for defendant. Defendant testified, and submitted a declaration, to the effect that he had consulted with independent counsel, was aware of Roth’s conflict of interest, and was willing to waive any conflict. The trial court denied the motion. On February 23, 1983, the public defender declared an unspecified conflict, and was removed from the case. Over defendant’s objection, the court appointed Carl Jordan as counsel. On April 1 it appointed Attorney Warren Small as cocounsel for defendant. At the commencement of trial defendant moved to relieve Jordan and Small, and to appoint Roth as his attorney. The motion was denied. At the commencement of the penalty trial defendant moved to substitute Roth for Small; the motion was again denied. Finally, after the penalty verdict, the court denied defendant’s motion to appoint Roth to argue the motion for new trial. On appeal, defendant raises a number of contentions relating to the trial court’s rulings. We review each of these contentions. A. The appointment of the public defender. Defendant argues that the trial court abused its discretion when, at the arraignment of May 17, 1982, it appointed the public defender to represent defendant on the murder charges. He asserts that the deputy public defender who represented him at the bank robbery prosecution had not afforded him competent representation, and, unknown to defendant, had been negotiating for a position with the district attorney. Defendant had filed a petition for habeas corpus with the federal district court alleging that his bank robbery conviction should be overturned because of incompetence and conflict of interest on the part of the deputy. (The petition was denied two days after the arraignment.) Defendant argues that his counsel in the present case may have wanted to attack the validity of the bank robbery conviction; however, this would have placed the deputy in a position where he had to attack the competence of a former colleague. Also, the deputy public defender appearing at arraignment told the court that defendant had experienced difficulty in past communications with the public defender’s staff, and had refused to communicate with them about the present case. A similar issue arose before the Illinois Supreme Court three years ago. (People v. Banks (1987) 121 Ill.2d 36 [520 N.E.2d 617].) In that case defendant objected to the appointment of an assistant public defender to represent him in postconviction proceedings, because the appointee would have to attack the competence of trial counsel, an assistant public defender from the same office. The court refused to “presume that public defenders would allow any office allegiances to interfere with their foremost obligation to their clients.” (520 N.E.2d at p. 620.) Rejecting a rule of per se disqualification, the court mandated disqualification only if defendant suggested particular circumstances showing actual conflict of interest. (P. 621.) We agree with the Illinois Supreme Court that a rule of automatic disqualification is unnecessary, and would hamper the ability of public defenders’ offices to represent indigents in criminal cases. It would be particularly inappropriate in the present case, since the deputy public defender whose competence might have been under attack was no longer with that office. Since defendant has not shown any personal or professional relationship suggestive of a conflict of interest between the deputies actually representing him in this case and the departed deputy who had represented him in the bank robbery trial, we conclude that the trial court was not required to find a conflict of interest barring appointment of the public defender. Defendant’s distrust of the public defender, and consequent difficulty in communicating with the deputies, is a matter for the trial court to consider as part of its discretionary decision in appointing counsel. (See Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934-935 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984], in which we upheld the court’s ruling appointing counsel even though Drumgo, like the defendant in the present case, insisted that he distrusted and would not cooperate with the attorney the court appointed.) We do not perceive that difficulties between defendant and the public defender had reached the level of “irreconcilable conflict” precluding the effective assistance of counsel, as in People v. Stankewitz (1982) 32 Cal.3d 80, 94 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476] and Brown v. Craven (9th Cir. 1970) 424 F.2d 1166, 1170. B. Initial refusal to appoint Roth. Defendant also claims the court abused its discretion when, at the arraignment hearing of May 17, 1982, it refused to appoint Andrew Roth as defendant’s counsel. He relies on our decision in Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750], In that case the superior court judge, after receiving a declaration of conflict from the public defender, appointed Attorneys Ballachey and Mintz to represent defendants, despite the defendants’ request for appointment of Attorneys Susan Jordan and Leonard Weinglass. Our opinion noted not only the subjective considerations—defendants’ long relationship with counsel Jordan and Weinglass, and their confidence in those attorneys—but also objective considerations. Defendants had been members of an organization known as the Symbionese Liberation Army, and the charged crimes, as well as other alleged crimes, arose from the activities of that organization. Jordan and Weinglass had represented the defendants in related prosecutions arising from these activities and had an extensive background in the factual and legal issues likely to arise in the case in question. We therefore found the judge’s refusal to appoint them an abuse of discretion. In response, the Attorney General argues that Harris is relevant only in cases in which the public defender is unavailable, so the court must choose between private counsel. The Attorney General points out that in Charlton v. Superior Court (1979) 93 Cal.App.3d 858 [156 Cal.Rptr. 107], the Court of Appeal interpreted the court’s authority to appoint private counsel when the public defender is unavailable (§ 987.2) as precluding appointment of private counsel when the public defender is available. Its decision expressly distinguished Harris, supra, 19 Cal.3d 786, limiting that precedent to a case in which the court cannot appoint a public defender. (93 Cal.App.3d at p. 863.) Defendant argues that Charlton goes too far in limiting the trial court’s discretion. Section 987.2 says the court may appoint private counsel when a public defender is unavailable; it does not say that this is the only circumstance under which appointment is permissible. If a case arose in which defendant was unable to cooperate with the public defender (see People v. Stankewitz (1990) 51 Cal.3d 72, 85 [270 Cal.Rptr. 817, 793 P.2d 23]), or in which appointment of private counsel would save considerable time and expense, defendant maintains that the trial court should have discretion to appoint private counsel. The present case does not require us to decide that question. Unlike Harris v. Superior Court, supra, 19 Cal.3d 786, in which Attorneys Jordan and Weinglass had represented defendants on similar cases arising from the same alleged conspiracy, and thus had extensive experience and knowledge relating to the charged crime, in the present case Roth had represented defendant only on the bank robbery appeal and on minor traffic matters, none of which had much relationship to the murder case at issue. And unlike Stankewitz, supra, 51 Cal.3d 72, there is no showing here that defendant suffered from a mental disorder that prevented him from assisting the public defender in a rational manner. Under these circumstances the trial court was not required to appoint Roth to represent defendant. C. Removal of Roth. (1) The ruling of November 12, 1982. Roth assisted the public defender on a pro bono basis until October 15, 1982, when on motion of the public defender he was appointed cocounsel. The motion was filed under seal and heard ex parte, without the prosecutor present. When he learned of the appointment, however, the prosecutor moved to revoke it, asserting that because he intended to call Roth as a witness, there existed a conflict of interest precluding Roth from serving as defendant’s counsel. The matter came up for hearing on November 8 and November 12, 1982. At the hearing, the district attorney said he would ask Roth three questions: (1) Did Roth tell defendant his appeal had been lost? (2) Did he tell defendant to appear in court? (3) When defendant did not appear, did he tell defendant a bench warrant had been issued? The district attorney explained that answers to these questions would help to prove that defendant was expecting the police to come and arrest him, and that his killing of the police officers was premeditated. The prosecutor presented testimony that Roth told Wayne Astin, a deputy district attorney, that Roth had notified defendant to appear. He pointed out that Roth’s testimony would unquestionably constitute relevant and material evidence, tending to show that defendant had expected the police officers’ arrival, and that his actions were not impulsive but premeditated. The defense offered to stipulate to some of the matters sought by the prosecution, but the specifics of the stipulation were never set out. Roth assured the judge that his testimony would not prejudice defendant. The judge, however, replied to Roth that “The court made the appointment based on less than complete knowledge, and the Court would not have made the appointment had the Court had complete knowledge, and under the circumstances, I feel it’s inappropriate that you continue to represent him.” The judge then granted the motion to revoke the appointment. Defendant contends that the judge erred in removing Roth. He points out that while the trial court enjoys a broad discretion in deciding who to appoint to represent a defendant, its power to remove counsel, appointed or retained, is far more limited. “[T]he involuntary removal of any attorney is a severe limitation on a defendant’s right to counsel and may be justified, if at all, only in the most flagrant circumstances of attorney misconduct or incompetence when all other judicial controls have failed.” (Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697 [122 Cal.Rptr. 778, 537 P.2d 898]; see Maxwell v. Superior Court (1982) 30 Cal.3d 606, 615 [180 Cal.Rptr. 177, 639 P.2d 248, 18 A.L.R.4th 333]; Smith v. Superior Court (1968) 68 Cal.2d 547, 561 [68 Cal.Rptr. 1, 440 P.2d 65].) We believe, however, that the specific circumstances of this case call for an exception to the rule that a judge enjoys less discretion in removing counsel than in appointing counsel. Specifically, we note that (1) counsel was appointed in an ex parte proceeding, without notice to the prosecutor; (2) the prosecutor promptly informed the court of his objection to the appointment; and (3) at the time of the appointment the court was unaware of the grounds on which the prosecutor objected. Under these circumstances, the court should have the authority to reconsider its appointment free of the strict rules which limit its power to remove counsel. When the court, for the first time, considered the matter in a proceeding in which the prosecutor was present and made known his objection, the court declared that it would not have appointed Roth had it known of the possibility of a conflict of interest. It then vacated that appointment. Its actions in this respect fall within its discretionary power. (2) The ruling of December 10, 1982. On December 10, 1982, the court heard defendant’s motion to reinstate Roth. Defendant consulted with independent counsel, Patrick Mulloy, and submitted a declaration waiving any conflict of interest. He offered to stipulate to any facts the prosecution sought to prove through Roth’s testimony. Deputy Public Defender Keller testified that Roth had been assisting him on a pro bono basis throughout the case, and that absent such assistance he did not believe defendant would cooperate with him. Judge Garst denied the motion. Ruling from the bench, he confirmed his position that had he known of the conflict, he would not have appointed Roth in the first place. For the reasons previously stated, the court acted within its discretionary power. The court is not required to appoint counsel with a conflict of interest even if the client is willing to make a voluntary and informed waiver. D. The hearing before the guilt phase. On September 6, prior to the opening statements at the guilt trial, defendant sent a letter to the judge in which he said he did not trust Attorneys Carl Jordan and Warren Small. He asked the judge to remove them and appoint Roth, and requested appointment of independent counsel to help him present the case for removal. Judge Schulte read the letter and invited comments from defendant and counsel. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) Defendant now complains that Judge Schulte ruled without full knowledge, since he was not aware of everything that transpired during the various hearings before Judge Garst. The record before him, however, was sufficient to make it clear that defendant had no particulars to support his general distrust of Jordan and Small, and confirms Judge Schulte’s conclusion that they were providing competent representation. We find no error in his refusal to recuse them. Defendant also complains of the court’s failure to appoint independent counsel to represent defendant on the Marsden motion. He cites People v. Stewart (1985) 171 Cal.App.3d 388 [217 Cal.Rptr. 306], which held that when a motion for new trial was based on incompetency of counsel, the court can appoint new, independent counsel to represent defendant in arguing that motion. Assuming Stewart authorizes appointment of independent counsel when a Marsden motion is based on alleged incompetency of present counsel, the trial court did not abuse its discretion in failing to appoint independent counsel because defendant offered no grounds, other than his distrust of all counsel except Roth, to suggest that present counsel were incompetent. E. The hearing before the penalty phase. After the guilt trial, defendant and Attorney Small requested that Roth be appointed to serve at the penalty trial. (It is not clear whether Roth would be an additional attorney, replace Small, or replace Jordan.) The motion pointed out that the initial reason for not appointing Roth no longer existed, since Roth would not be a witness at the penalty trial. The judge denied the motion as dilatory, since it would have required a continuance of the penalty trial. As in the previous motion, defendant expressed a general distrust of Jordan and Small—indeed of any attorney except Roth—but did not give any basis for his feelings. He hints that he could not disclose what really happened at the time of the killings to Jordan and Small, but did not explain why, nor in what respect the “true story” would have aided his defense. We see no error in the court’s denial of the motion. F. Defendant's request for new counsel to argue the motion for new trial. Defendant requested appointment of Roth to argue the motion for new trial. As we have noted, People v. Stewart, supra, 171 Cal.App.3d 388, authorizes appointment of new counsel if the motion for new trial is based on incompetency of existing counsel. Defendant’s charges of incompetency, however, are not sufficient to show that the trial judge abused his discretion in denying the request. Defendant specified four charges: (a) that he did not explain fully to Jordan and Small what happened at the murder scene because he did not trust them; (b) that the court had denied some of their motions for investigative funds; (c) that they lacked experience, neither having tried a capital case before; and (d) that they did not obtain an expert ballistics report. The first ground does not demonstrate counsel’s incompetence, only defendant’s refusal to cooperate. The other grounds relate to matters which the court, having observed the trial and counsel’s conduct of the defense, could reasonably conclude offered no hope of success. II. Issues Relating to Pretrial Motions A. Motion to change venue. On April 28, defendant, through Attorneys Jordan and Small, requested funds to conduct a public opinion survey to determine whether defendant could get a fair trial in Riverside County. In an in camera hearing, counsel pointed out the extensive media publicity during the days following the crime. Newspaper articles described the killer as a Black man in a wheelchair, who killed two policemen attempting to serve an arrest warrant. The articles recounted defendant’s past criminal offenses, including many which would not be admissible until the penalty trial, if at all. Other articles described the SWAT team searches of neighborhoods where Daniels might have been hiding. One article said police were deluged with calls giving tips for investigation and offering to contribute to a memorial fund. “People are really, really upset about it,” said one officer; another described the “tremendous community response.” Newspapers printed numerous letters calling for the execution of the killer. Funeral services for the slain officers were attended by about 3,000 people. Publicity diminished after defendant’s arrest, but resumed as trial approached. In March of 1983, about three months before trial, the school board debated a proposal to rename its football stadium for Officer Doty. A friend of Officer Trust formed a nonprofit organization to aid families of slain police officers. On May 18, the anniversary of the killing and one month before trial, the county unveiled a nine-foot statue to police officers killed in the line of duty. Although the statue commemorates all such officers, the publicity attending its unveiling referred largely to Officers Trust and Doty. It is located outside the courthouse where this case was tried. The court denied defendant’s request for funds, saying that juror bias could best be determined at voir dire; the proof of the “pudding, so to speak, is in the eating.” Defendant petitioned for mandate in the Court of Appeal, which denied his petition on June 10. On May 31, defendant moved for change of venue, advancing essentially the same arguments as presented in camera at the April 28 hearing. The judge denied the motion, stating again that the voir dire would best determine whether defendant could receive a fair trial. Defendant again moved for change of venue when the jury was selected. The record shows that approximately 64 prospective jurors were examined. Most expressed some familiarity with the case. Of the jurors selected, four had no recollection of the incident. The others recalled that police officers were shot; some recalled that the suspect was a Black paraplegic; two remembered Daniels’ name. All said unequivocally that they could set aside any impressions formed outside the courtroom and consider the evidence without prejudice. The trial court concluded that defendant had failed to show the necessity for a change of venue, and denied the motion. (1) The motion for funds. Defendant planned to make a pretrial motion for change of venue, and requested funds to undertake a survey of community knowledge and attitudes about his trial. He contends that the trial court erred when it denied his request on the ground that jury voir dire was the best way to determine community attitudes. The motion for funds to undertake a community survey is one addressed to the discretion of the trial court. (See Lucero v. Superior Court (1981) 122 Cal.App.3d 484, 489-490 [176 Cal Rptr. 62].) The court, however, must exercise its discretion on the basis of such considerations as the cost and feasibility of the survey, and whether the results of such a survey would be of significant value in deciding a pretrial motion to change venue. It cannot refuse to exercise discretion on the theory that voir dire of the jury is a better method of assessing the need to change venue, as that reasoning would deny a defendant his right under section 987.9 to funds reasonably necessary to present his pretrial venue motion. We find, however, that defendant was not prejudiced by the court’s ruling. As we explain later in this opinion (see, post, pp. 853-854), defendant did not exhaust his peremptory challenges or object to the jury as finally composed. We regard such inaction by defense counsel as a tacit acknowledgment that, regardless of community attitudes generally, the jury as finally selected was a fair and impartial body. (2) The motion to change venue before voir dire. In Maine v. Superior Court (1968) 68 Cal.2d 375, 383 [66 Cal.Rptr. 724, 438 P.2d 372], we held that “ ‘[a] motion for change of venue . . . shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.’ ” Upon appellate review of a ruling denying a change of venue, “the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable.” (People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal.Rptr. 679, 623 P.2d 240].) The scope of review, however, differs depending upon whether the matter arises before or after trial. “A significant difference between pretrial and posttrial review is that after conviction in determining whether a defendant received a fair and impartial trial under the ‘reasonable likelihood’ standard, the review is retrospective. It extends to an examination of what actually occurred at the trial.” (People v. Martinez (1978) 82 Cal.App.3d 1, 13 [147 Cal.Rptr. 208].) “In other words, voir dire may demonstrate that pretrial publicity had no prejudicial effect.” (People v. Harris, supra, 28 Cal.3d 935, 949.) Drawing on People v. Salas (1972) 7 Cal.3d 812, 818 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832], Harris went on to specify the factors to be considered in evaluating a motion to change venue: “the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.” (28 Cal.3d at p. 948.) We examine the factors in the present case. (1) The offense, the murder of two police officers, is of course one of extreme seriousness and gravity, so this factor weighs in favor of a change of venue. (See Harris, supra, 28 Cal.3d at p. 948; Odle v. Superior Court (1982) 32 Cal.3d 932, 941 [187 Cal.Rptr. 455, 654 P.2d 225].) (2) The media coverage was extensive; although it diminished during the period after defendant’s arrest, extensive coverage resumed during the period immediately preceding the trial. It did not bring to the public attention illegally seized evidence, or inadmissible confessions, but did recount prior criminal activity which would not be admissible at the guilt phase of the trial. (3) The community, Riverside County, has a population of over 600,000. In People v. Anderson (1987) 43 Cal.3d 1104, 1131 [240 Cal.Rptr. 585, 742 P.2d 1306], which also involved Riverside County, we characterized this as a neutral factor. (See also Odle, supra, 32 Cal.3d at pp. 938-939 [Contra Costa County, with very similar population].) (4) Defendant was a longtime resident of the county, but not a person of particular notoriety or status. (5) The victims were also local residents of no particular prominence, but became posthumous celebrities as a result of the media coverage of the murders. (See Odle, supra, 32 Cal.3d at pp. 940-941.) With respect to defendant’s motion before jury selection, the case so closely resembles Odle v. Superior Court, supra, 32 Cal.3d 932, that Odle could be considered controlling. Odie was charged with the murder of a young woman. When police attempted to arrest him, a gunfight resulted in which one policeman was killed. The nature and extent of the publicity, the size of the county, and the status of defendant and the victims are all quite comparable. We concluded in Odie, supra, that the extensive publicity during the period following the crime was insufficient, either by itself or in combination with other factors, to establish a reasonable doubt that a fair trial could not be had. (32 Cal.3d at p. 943.) We added, however, that if voir dire revealed that the dissemination of potentially prejudicial material was more widespread than was anticipated, the court would have the opportunity to change venue at that time. {Ibid.) We reach the same conclusion here. (3) The motion to change venue after voir dire. As we have noted, the voir dire of the jury showed that most prospective jurors had heard or read of the crime. That fact, however, is not in itself sufficient to require a change of venue. (15) We explained in People v. Harris, supra, 28 Cal.3d 935, that “ ‘juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone [does not] presumptively deprive[] the defendant of due process.’ ” (P. 949, quoting Murphy v. Florida (1975) 421 U.S. 794, 799 [44 L.Ed.2d 589, 594, 95 S.Ct. 2031].) “ ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” (28 Cal.3d at p. 750, quoting Irvin v. Dowd (1961) 366 U.S. 717, 723 [6 L.Ed.2d 751, 755-756, 81 S.Ct. 1639].) On the other hand, the fact that the jurors declared they could decide the case impartially on the evidence does not preclude the necessity of a change of venue. In People v. Williams (1989) 48 Cal.3d 1112 [259 Cal.Rptr. 473, 774 P.2d 146], we said that proof that over half the prospective jurors, and eight of the twelve ultimately seated, had heard of the case demonstrated the “pervasiveness of the news coverage.” (P.1128.) Even though most jurors attested that they could render an impartial verdict, we concluded that the story of the crime had become so “deeply embedded in the public consciousness” that it was “more than a reasonable possibility that the case could not be viewed with the requisite impartiality.” (P.1129.) We note points of similarity and difference with Williams. A greater percentage of prospective jurors had heard of the crime in this case than in Williams-, with respect to those seated the proportion—eight of twelve—is identical. Thus it appears that the news coverage here was comparable in extent to that in Williams. On the other hand, the Williams case arose in a county of much smaller population. In Williams the jurors were not only familiar with the case, but two of them were personally acquainted with the district attorney. (Williams, supra, 48 Cal.3d at p. 1130.) Finally, in this case, unlike Williams, defendant did not exhaust his peremptory challenges, using only 15 of 26 challenges. This last factor is decisive. In People v. Balderas (1985) 41 Cal.3d 144, 180 [222 Cal.Rptr. 184, 711 P.2d 480], we noted that defense counsel had used only 13 of 26 challenges, and concluded that this fact strongly indicated that the jurors were fair, and that the defense itself had so concluded. This reasoning draws support from language in People v. Coleman (1989) 48 Cal.3d 112, 136 [255 Cal.Rptr. 813, 768 P.2d 32], People v. Welch (1972) 8 Cal.3d 106, 114 [104 Cal.Rptr. 217, 501 P.2d 225], and People v. Sommerhalder (1973) 9 Cal.3d 290, 303 [107 Cal.Rptr. 289, 508 P.2d 289]. In the absence of some explanation for counsel’s failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel’s inaction signifies his recognition that the jury as selected was fair and impartial. B. Motion to discover complaints against Officer Bulf. Officer Bulf was one of the officers who arrested defendant for bank robbery, and probably the one who shot and crippled defendant. Prior to trial the defense moved to review any complaint within the past five years against Bulf relating to the use of deadly force. (See Evid. Code, § 1045.) The trial judge reviewed the officer’s file in camera, and told defendant that the only complaint within the last five years was irrelevant because it did not involve any violence or threat of violence. Defense counsel asked if the complaint reflected on the officer’s veracity. The court understood the question as relating to incidents involving the use of deadly force, the subject of counsel’s motion, and replied, “No sir. In the P-2 file, there is only one shooting incident within the last five years, and that is the shooting incident involving defendant.” Defendant later discovered that the file included a complaint alleging that Officer Bulf filed a false and misleading police report in a case not involving the use of deadly force. Defendant contends that although he only asked for complaints relating to violence, counsel’s question on veracity showed that he was also interested in complaints relating to credibility, and the judge’s statement misled him. Had the judge said there was a complaint that the officer filed a false and misleading report, the defendant would have sought and obtained discovery. Defendant fails, however, to show that he was prejudiced by the misunderstanding. He argues that proof of the shoot-out following the bank robbery was crucial to the prosecution’s theory of the case. He does not, however, show that the complaint would have seriously undermined Officer Bulfs description of the facts, or that the prosecution could not have proved those facts through other witnesses. The details of the shoot-out, moreover, are not particularly important in this case; it seems undisputed that police officers shot defendant as he attempted to flee the robbery scene. Even if, as defendant suggests, they had less justification for shooting him than would appear from Officer Bulf’s testimony, it does not appear reasonably probable that the verdict would have been any different. C. Failure to test Renee Ross for gunshot residue. Police investigators found Renee Ross about 12:30 p.m., about four hours after Officers Doty and Trust were killed. Sergeant Ropac considered testing her hands for gunshot residue, but decided not to because her emotional state convinced him that she was not the killer, it was four hours after the shooting, and Ross had driven a car and handled various objects during that period. Maintaining that the police had failed to preserve exculpating evidence, the defense moved to dismiss the charges or for alternative sanctions. The trial court denied the motion. Under California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528], the state’s duty to preserve evidence is 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 . . . possess an exculpatory value that was apparent before the evidence was destroyed . . . .” (Pp. 488-489.) Trombetta and other cases cited by defendant address a situation in which the police have destroyed evidence in their possession. The present case, however, is more analogous to People v. Hogan (1982) 31 Cal.3d 815 [183 Cal.Rptr. 817, 647 P.2d 93], in which the police failed to obtain fingernail scrapings from the victim. Hogan noted that the police duty to obtain exculpatory evidence is not as strong as its duty to preserve evidence already obtained. (P. 851.) We know of no authority that would require the police to obtain and preserve evidence under circumstances comparable to the present case. Defendant, however, fails even under the Trombetta standard. Assuming that a contemporaneous test of Ross’s hands would have been reliable, there is nothing in the record to suggest the result would have been exculpatory. Defendant has never presented any evidence whatever suggesting that Renee Ross fired a gun. Thus defendant has not shown the existence of evidence of exculpatory value, or, for that matter, that any exculpatory value was apparent at the time to the officers who contacted Ross. III. Guilt Phase Issues A. Admissibility of evidence of the circumstances of defendant’s arrest for bank robbery. The prosecution introduced evidence of defendant’s flight following the 1980 bank robbery, the police pursuit, and the exchange of gunfire which left defendant crippled. The testimony was admitted to show motive—that defendant killed the police officers in revenge for his own injuries—and intent to kill. Defendant objected that the testimony violated Evidence Code section 1101 and, alternatively, that it should have been excluded under Evidence Code section 352. Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. (People v. Durham (1969) 70 Cal.2d 171, 186 [74 Cal.Rptr. 262, 449 P.2d 198]; Evid. Code, § 1101, subd. (b).) The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. (People v. DeRango (1981) 115 Cal.App.3d 583, 589 [171 Cal.Rptr. 429], citing People v. Matson (1974) 13 Cal.3d 35, 40 [117 Cal.Rptr. 664, 528 P.2d 752].) When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. (People v. Thompson (1980) 27 Cal.3d 303, 315 [165 Cal.Rptr. 289, 611 P.2d 883].) Because this type of evidence can be so damaging, “[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.” (Id. at p. 316.) Defendant initially argues that the relationship between the bank robbery incident and the charged murders is distant and tenuous, because the murders occurred over a year after the robbery and subsequent shooting, and not during the heat of the charged offense. Defendant relies on People v. Bigelow (1984) 37 Cal.3d 731, 747-749 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723], in which we held inadmissible evidence of prior robberies introduced on the theory that defendants were living on the proceeds of robbery. Our opinion, however, noted that the motive for robbery is generally to obtain the victim’s property, and proof that defendant had committed prior robberies with the same motive was not probative of any contested issue. (P. 748.) The period of time between the offenses was not a factor. {Ibid.) As long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper. (People v. Robillard (1960) 55 Cal.2d 88, 100 [10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086] [past crimes admissible to show intent and motive]; People v. Durham, supra, 70 Cal.2d at pp. 186-189 [parole status and recent criminal activity relevant to show premeditated murder of police officer]; People v. De La Plane (1979) 88 Cal.App.3d 223, 245-246 [151 Cal.Rptr. 843] [evidence of prior robberies admissible to show motive to murder witnesses]; People v. Rodriguez (1986) 42 Cal.3d 730, 756-758 [230 Cal.Rptr. 667, 726 P.2d 113], [evidence of prior interest in killing law officers admissible to show intent].) It is not necessary that the prior criminal act occurred within hours or days of the charged offense. (See Rodriguez, supra, 42 Cal.3d at pp. 756-758.) In the instant case there is a direct relationship between the events surrounding the bank robbery, particularly the shooting of defendant, and issues in the charged offense. Despite the gap in time, there is a direct relationship between the police rendering defendant a paraplegic and defendant murdering the officers in retribution. This is particularly true when coupled with other admitted evidence of defendant’s antipathy toward the police. (See Rodriguez, supra, 42 Cal.3d at pp. 756-758.) The trial court did not contravene People v. Bigelow, supra, 37 Cal.3d 731, by finding this evidence relevant and admissible. Defendant argues further that the testimony of the bank robbery incident is irrelevant because intent was not “at issue” in the case. He claims that his defense contested only the issue of identity and that the robbery evidence is not probative on that point. Under People v. Thompson, supra, 27 Cal.3d 303, 315, no other elements of the crime were at issue, because Thompson held that “[t]he fact that an accused has pleaded not guilty is not sufficient to place the elements of crimes charged against him ‘in issue.’ ” In People v. Rodriguez, supra, 42 Cal.3d at pages 757-758, however, we substantially limited the scope of Thompson, supra, 27 Cal.3d 303. Rodriguez held that when the defendant did not isolate the issue of identity until after the prosecutor had completed his case-in-chief, the court did not err in permitting the prosecutor to present evidence of prior criminal conduct to prove premeditation, willfulness, and malice aforethought. Thus, contrary to Thompson, it appears that defendant’s plea does put the elements of the crime in issue for the purpose of deciding the admissibility of evidence under Evidence Code section 1101, unless the defendant has taken some action to narrow the prosecution’s burden of proof. In the instant case defendant offered no concession which limited the issues, so the prosecution had the burden of proving all the elements of the crime. Furthermore, the robbery evidence is relevant to the contested issue of identity, because it suggests that defendant had a motive to kill the officers which other suspects lacked. We conclude that the evidence of the 1980 robbery was admissible under Evidence Code section 1101. Defendant further argues that the evidence should have been excluded under Evidence Code section 352 on the ground that its probative value does not outweigh its prejudicial potential. He contends in the alternative that the trial court should have read a sanitized version of the incident into the record, by reading, for example, from the police report. We believe the evidence in question was highly probative on the issues of motive and intent—and, indeed, was crucial to the prosecution’s theory of the case. We recognize the prejudicial effect of evidence that defendant had fired at a police officer when attempting to escape after the bank robbery, but note that before the testimony was received the court instructed the jury pursuant to CALJIC No. 2.50 that the evidence was admitted only for the limited purpose of proving motive or intent for the crimes charged, and not to show propensity to commit criminal acts. We note also that the trial court limited the testimony to what happened after the bank robbery, beginning with the chase, and allowed only one witness to testify about the incident. We conclude that defendant has failed to show that the trial court abused its discretion by admitting the testimony of the bank robbery incident. B. Admissibility of rebuttal testimony. Defendant presented expert evidence that the bullet wound to his right hand damaged the ulner nerve and would have made it impossible to shoot a gun. In rebuttal, the prosecution over defendant’s objection presented testimony of doctors and a nurse who described the condition and use of the hand at various times up to the date of trial. Nurse Elaine Gordon further testified over defense objection that she and defendant had a conversation about his injuries, “and he ended up saying the only thing he felt bad for what he did to the police officers was their wives .... What he did to their wives.” The implication of this testimony was that defendant had killed the officers. We have no doubt that the testimony relating to the condition and use of defendant’s hand was proper rebuttal. While the condition and use of his hand some time after the officers were killed is not conclusive proof of what he could do on that occasion, it is surely of some probative value, especially when, as here, expert medical testimony explained the relationship between present and past condition. Elaine Gordon’s testimony recounting defendant’s admission, however, was not proper rebuttal. In People v. Carter (1957) 48 Cal.2d 737 [312 P.2d 665], the court explained that “[i]n a sense all evidence that tends to establish the defendant’s guilt over his protestations of innocence rebuts the defendant’s case, but it is not all rebuttal evidence within the purpose of section 1093, subdivision 4. [(Now § 1093, subd. (d).)] The purpose of the restriction in that section is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at end of trial with an additional piece of crucial evidence. Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt. [Citations.] A defendant’s reiterated denial of guilt and the principal facts that purportedly establish it does not justify the prosecution’s introduction of new evidence to establish that which defendant would clearly have denied from the start.” (Pp. 753-754.) In Carter, the defendant testified that he had not been present at the murder scene; the court nevertheless held that evidence showing that he had been present was improper rebuttal, since proof of his presence was an essential part of the prosecution case-in-chief. (48 Cal.2d at p. 754.) The present case is an even stronger case for exclusion, since here defendant did not testify that he did not kill the officers, but only presented evidence, such as the injury to his hand, from which the jury might infer that he did not kill them. And the fact which the rebuttal evidence tended to prove—that defendant killed the officers—is obviously central to the criminal prosecution, and something which should be proved as part of the prosecution case-in-chief. Although defendant’s statement to Nurse Gordon amounted to an acknowledgment of guilt, we do not find its erroneous admission as rebuttal testimony to be reversible error. The prosecution’s case-in-chief included evidence that defendant had made similar admissions to Renee Ross, Delores Butler (in the presence of Clara Butler), Claire Schall, and Ted Smith. In light of this evidence we do not think it reasonably probable that absent the testimony of Elaine Gordon the jury would have reached a verdict more favorable to defendant. C. Exclusion of proposed testimony of James Heiting. Defendant called James Heiting, his former attorney, who offered to testify that on defendant’s behalf he had filed a civil action against the City of Riverside and the Riverside Police Department for injuries caused when defendant was shot during the January 1980 bank robbery. Heiting, however, withdrew from the civil action because he felt “harassed” by the city and the police department. The harassment consisted of three incidents: (1) The city attorney told Heiting that he should reconsider his decision to pursue the suit because the city was going to win and then the police department would “teach you [Heiting] or let you know that you should not take cases of this nature.” (2) The city attorney warned Heiting that he considered the litigation as having been brought in “bad faith and without probable cause” and threatened a malicious prosecution suit. (3) The police arrested defendant’s investigator for suspicion of indecent exposure and cited him for possession of marijuana. The prosecution objected to Heiting’s proposed testimony based on Evidence Code section 352. The court ruled that Heiting could testify only that he brought an action for damages against the city based upon the shooting incident, but he could not explain the circumstances of his withdrawal from the litigation. Defendant argues that this alleged harassment was relevant to the instant prosecution of defendant because it demonstrated that the police department, and thus the police witnesses, were biased and prejudiced against defendant. But defendant makes no showing that the officers who testified approved of or were even aware of the actions mentioned by Heiting. Moreover, the proffered evidence would have taken the case into issues unrelated to defendant’s guilt. Whether the city attorney’s threats suggest institutional bias against defendant, for example, depends largely on whether the city attorney believed defendant’s damage suit was filed in bad faith and without probable cause. Whether the arrest of defendant’s investigator suggests police bias depends largely on whether the police had reasonable grounds to believe the investigator guilty of the crimes for which he was arrested. The trial of such issues could have consumed considerable time, and could have diverted the jury’s attention from the issues of the case at hand. We conclude that the court’s ruling limiting Heiting’s testimony was proper. D. Exclusion of testimony of John Pinckney. Defendant called John Pinkney, James Cornish’s employer, to support defendant’s theory that Cornish had been dealing in cocaine. The prosecution objected, and the court held a hearing pursuant to Evidence Code section 402. At the hearing, Pinkney stated that he had seen Cornish give packages to people at work, but Pinkney did not know the contents of the packages, nor had he seen a package given in return for money. Pinkney had been told that Cornish was borrowing money. Pinkney had spoken to Cornish about Cornish’s drug use but he was not sure if he had in fact witnessed drug deals involving Cornish. The court concluded that Pinkney’s proposed testimony was based on rumor, hearsay and speculation, and found that Pinkney did not have personal knowledge of cocaine sales. It therefore excluded this testimony. Defendant argues that the trial court erred because enough evidence had been presented to allow a trier of fact to conclude that Pinkney had actually witnessed drug transactions. But even though Pinkney’s proposed testimony is consistent with the defense theory that Cornish conducted drug transactions at his place of employment, Pinkney’s testimony would have offered no facts to support that theory. Defendant maintains that, when viewed in the context of the trial as a whole, the evidence was more than sufficient to establish Pinkney’s personal knowledge of drug t