Full opinion text
Opinion GEORGE, J. Following the guilt phase of a jury trial, defendant Stephan Louis Mitcham was found guilty of one count of first degree murder (Pen. Code, §§ 187, 189), one count of attempted murder (§§ 187, 664), one count of robbery (§ 211), and one count of assault with a deadly weapon (§ 245, subd. (a)(2)). The jury also found that defendant used a firearm in the commission of each offense (§ 12022.5) and inflicted great bodily injury in the commission of the attempted murder and robbery (§ 12022.7), and found true a special circumstance allegation that he committed the murder during the course of a robbery (§ 190.2, subd. (a)(17)(i)). After the penalty phase of the trial, the jury imposed the death penalty. We affirm the judgment in its entirety. Facts The evidence at trial established that on April 5,1983, defendant committed a robbery at Ormond’s Jewelry Store, and that during the robbery he murdered the proprietor, James Ormond, and attempted to murder Yvette Williams, a store employee. The evidence also established that codefendant Keith Hammond drove the getaway car after the robbery and murder. I. Guilt Phase Evidence A. The prosecution’s case. 1. The crimes. About 1 p.m. on April 5, 1983, defendant entered Ormond’s Jewelry Store on Lakeshore Avenue in Oakland. He was wearing a hooded, maroon-colored jacket and sunglasses, and carried a grocery sack containing a pillow or blanket. James Ormond, the 79-year-old proprietor, and Yvette Williams, a store employee, were seated in the store. In response to defendant’s request to see a better selection of engagement rings, Ormond walked to the back of the store to a safe. He opened some drawers which contained wedding sets. Williams became fearful of defendant and began to stand up in order to leave. As she did so, defendant looked over, and she sat back down. Defendant approached her, asked, “How are you doing today, Miss?,” and then shot her in the left cheek. Williams fell to the floor and remained motionless. Ormond yelled, “No. How could you do that to that girl?” Williams then heard scuffling noises followed by two gunshots. She lapsed into unconsciousness. When she regained consciousness, she heard sounds of someone rummaging through the drawers of the safe. She then saw defendant walk past her toward the store entrance, jump over a display case, and leave. Nancy Gee was looking at the jewelry store window display when she heard shouting and saw Ormond with his hands on defendant’s neck. She then heard some “pops.” She alerted Pasquale Cinquegrano, who worked next door, and then walked up the street. A short time later, defendant walked past her and crossed Lakeshore Avenue. Pasquale Cinquegrano, alerted by Gee, went next door and saw defendant rummaging through the safe drawers. After two or three minutes, defendant left the store. As he passed Cinquegrano, he said, “If you touch me, I’ll kill you.” Three other pedestrians, alerted to the struggle, clustered by the door of the jewelry store. They saw defendant leave the store and pass by them holding a grocery sack. Defendant threatened one of them that, if he followed, defendant would shoot him. The pedestrians saw defendant cross Lakeshore Avenue, head toward Trestle Glen Avenue, and disappear from view near a Baskin-Robbins store. Approximately the same time the robbery was in progress, codefendant Hammond entered the Baskin-Robbins store on Trestle Glen. He paced back and forth and then asked the proprietor for a rubber band. A minute or so after he left the store, a Ford Falcon was observed making a turn from the Baskin-Robbins store onto Trestle Glen. Three witnesses saw a Black man wearing a maroon jacket and carrying a paper bag walk swiftly up from Lakeshore Avenue and jump into the backseat of the Ford Falcon. One witness heard the driver of the vehicle say, “Get down, get down.” The automobile then sped up Trestle Glen. Two witnesses subsequently identified codefendant Hammond as the driver. Hammond owned a gold and white Ford Falcon, identified by two witnesses as the vehicle driven by Hammond from the scene of the crime. The police arrived within minutes. Williams was taken to the hospital, where she had surgery to remove two bullet fragments from the left side of her face. Her jaw had to be reconnected, and subsequently she was hospitalized for psychiatric trauma. Ormond died of multiple gunshot wounds in the right forehead, the left chest, and the right side of the abdomen. The forehead wound indicated it was inflicted at close range. Both Williams and Ormond had been shot with .22-caliber bullets. A criminalist testified that test-firing a .22-caliber gun with a pillow placed over the gun muffled the firing sound of the weapon. At trial, Williams, Gee, and Cinquegrano made positive in-court identifications of defendant as the gunman. On cross-examination, however, each acknowledged discrepancies in his or her earlier description of the gunman to the police or to other witnesses at various times following the commission of the crime, as well as discrepancies between the earlier descriptions and the in-court identifications. The three pedestrians who had clustered by the jewelry store door and had seen the gunman leave were unable to make in-court identifications of defendant but gave descriptions of his height, age, and race generally consistent with defendant’s characteristics. They identified the jacket defendant was wearing at the time of his arrest as similar to the one worn by the gunman. 2. Testimony of Richard Leonard. Richard Leonard testified he was an acquaintance of defendant and Hammond. On the afternoon of the crime, Leonard was outside the apartment of a mutual friend. Defendant and Hammond arrived in a vehicle driven by a third person whom Leonard did not know. Defendant was wearing a maroon jacket. He offered to sell Leonard a wedding set from a collection of approximately 20 tagged sets of wedding and engagement rings. Leonard purchased from defendant for $250 a set bearing a price tag of approximately $950. Defendant told Leonard he had obtained the rings from a jewelry store located near the lake, and had shot a woman and a man before ransacking the store. He said Hammond had been waiting around the comer from the store. Defendant had a .22-caliber revolver in his pocket and said he had used it in committing the crime. The following day, Leonard read about the murder and robbery in the newspaper. A day later, he read that a reward was being offered for information concerning the crime. On April 8, he went to the Oakland Police Department and repeated what defendant had told him. Leonard’s statement to the police was tape-recorded. When a police officer agreed to reimburse him for the rings, Leonard brought them to the police station. At that time he made a photographic identification of defendant and discussed the reward. Leonard aided the police in capturing defendant on April 10. When Leonard subsequently testified at the preliminary hearing, no criminal charges were pending against him in Alameda County. He ultimately obtained immunity from any charges relating to the crimes in the present case, but not from other charges of robbery and theft which subsequently were brought against him in Alameda County. At the time of trial, Leonard had received $500 as part of the reward and expected to receive additional money. 3. Defendant’s arrest. At the time of his arrest on April 10, defendant was wearing a maroon jacket and had no identification in his possession. He told one police officer his name was “Louis Banks” and told another his name was “John Louis.” B. The defense case. Neither defendant nor codefendant Hammond testified, and the defense presented no evidence. In closing argument, defendant’s counsel argued the prosecution had failed to prove beyond a reasonable doubt defendant’s identity as the perpetrator of the crimes, and alternatively had failed to prove beyond a reasonable doubt that defendant had possessed the intent to kill Ormond. The jury found defendant guilty of all charged crimes and found true both alleged enhancements and the robbery-murder special circumstance. II. Penalty Phase Evidence A. The prosecution’s case. Williams testified that after she was shot, she was hospitalized for approximately two weeks. Subsequently, she was hospitalized for several months for treatment of psychiatric problems resulting from the shooting. She suffered two nervous breakdowns during this period and at times was suicidal. At the time of trial, she remained unable to work and was under a physician’s care. The transcript of the testimony of Loma Robinson, given at the preliminary hearing in an unrelated robbery case against defendant, was read to the jury. Ms. Robinson testified that on March 27, 1983, while she was working as a checker at a Lucky store in Oakland, a man pointed a handgun at her and told her to give him her $20 bills. He took the approximately $500 she gave him and left. She furnished a description of the robber to the police. Ms. Robinson later saw a photograph of defendant in the newspaper accompanying an article concerning the crime committed in the present case. She told the police the man in the photograph looked like the man who had robbed her. She then viewed a physical lineup conducted at the police station and identified defendant as the robber, but marked her identification of him with a question mark. At the preliminary hearing in the Lucky store robbery prosecution, she again identified defendant as the robber. Another Lucky store employee testified that at the time of the robbery, he pursued the robber running from that store. The employee selected defendant’s photograph from a lineup as the one appearing most like the robber but was not positive of his identification. B. The defense case. The defense presented several witnesses in mitigation. Witnesses acquainted with defendant during his elementary and junior high school years testified that he was honest, kind, “a good kid,” a good student, and highly regarded by his fellow students. He was the class speaker at his junior high school graduation. One witness testified that she had seen defendant one month prior to the commission of the charged offense. He did not seem himself and spoke as if he was under the influence of “angel dust.” Defendant’s mother testified that she and her mother had raised defendant, and that she did not believe he had used drugs during the time he was residing with her. She herself had a drug problem. Dr. Steven Lerner, a forensic toxicologist, testified concerning the symptoms and effects of the use of PCP or “angel dust.” He had not examined defendant and had no information indicating that defendant was a user of PCP. Dr. Lerner, having reviewed police records of defendant’s arrest in December 1982 for being under the influence of drugs, concluded that defendant’s conduct in part was consistent with the use of PCP. On cross-examination, Dr. Lerner testified that defendant’s behavior during the Lucky store robbery and the Vogue Fashion robbery (evidence of which was presented on rebuttal, discussed post) did not indicate the use of PCP. An Oakland police officer testified that in December 1982 she arrested defendant for being under the influence of drugs. C. Rebuttal. The prosecution presented evidence which rebutted the defense’s portrayal of defendant’s juvenile life as exemplary. A high school teacher testified that once during an examination, defendant began shouting at him. The teacher left and then returned to find that the contents of his desk had been dumped on the floor. A bus driver who drove a bus to and from defendant’s junior high school testified that in 1973 defendant assaulted him, and in 1974 defendant was in the company of a group of students who assaulted him. By stipulation of counsel, defendant’s juvenile court file was admitted into evidence. A probation officer testified that, in a juvenile court proceeding, allegations that defendant had assaulted a bus driver and in another incident had assaulted a construction worker, were found true, and defendant was made a ward of the juvenile court. Mary Ann Ciar testified she had been robbed by defendant. She owned Vogue Fashion, a ladies’ clothing store. On December 21, 1982, defendant entered the store, approached her, and said, “This is a robbery. I want the money.” He pointed an object at her that was wrapped in a piece of cloth and said, “Do not push any buttons . . . or I will blow you away.” Ms. Ciar gave defendant approximately $600. Later, in 1983, Ms. Ciar saw defendant’s photograph in the newspaper in connection with the crime charged in the present case. She selected his photograph from a lineup and made an in-court identification. Discussion I. Guilt Phase Issues A. Admission of Hammond’s statement. Following his arrest, Hammond gave a statement to the police inculpating both defendant and himself in connection with the crimes. After Hammond made the statement, the police, pursuant to People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] (discussed post), requested that Hammond provide another statement referring solely to his own involvement in the crimes and omitting any reference to defendant. Hammond complied, giving a redacted statement omitting any reference to defendant. At trial, over Hammond’s objection, Hammond’s redacted statement was admitted into evidence against him. Defendant’s counsel objected to the admission of the statement on hearsay grounds, and requested that the statement be deemed hearsay as to defendant and that the jury be admonished to disregard the statement as to defendant. The trial court sustained the objection, instructing the jury that the statement was not to be considered against defendant, but only against Hammond. The redacted statement then was read into evidence, commencing, as follows, with a police officer’s question: “Q. About what you did, without mentioning anyone else’s name, without anyone else’s involvement, I would like to talk to you about what you have done since Tuesday. Do you understand?” Hammond answered in the affirmative. He then stated that on the day of the crimes, he left Alameda College and drove to a car wash. He then drove to Oakland on the MacArthur Freeway, eventually got off the freeway, and went up Lakeshore Avenue to the Baskin-Robbins store. He entered the store and then returned to his vehicle, making a turn to the right in order to proceed up another street. When a truck impeded his way, he stopped, later resuming his way and proceeding onto the MacArthur Freeway. The following morning, he read about the Lakeshore Avenue murder. At some point he came into possession of three rings he thought might be related to the murder and robbery. They were gold and silver wedding ring sets with tags on them. He threw them away a couple of hours after obtaining them. During closing argument, without objection, the prosecutor discussed Hammond’s statement while arguing the case against Hammond and responding to arguments made by Hammond’s counsel. In instructing the jury, the trial court repeated the limited use to be made of the statement. Defendant contends the admission of and comments on Hammond’s redacted statement violated defendant’s Sixth Amendment right of confrontation as defined in Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620] (Bruton) and People v. Aranda, supra, 63 Cal.2d 518. At trial, however, defendant’s counsel did not seek total exclusion of the statement but requested only that it be admitted solely against Hammond and that the jury be so admonished. The trial court granted this request. Absent a timely and specific objection on the ground defendant now asserts on appeal, his contention is deemed waived. (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7 [276 Cal.Rptr. 827, 802 P.2d 330]; People v. Green (1980) 27 Cal.3d 1, 22 [164 Cal.Rptr. 1, 609 P.2d 468].) Moreover, the contention has no merit. Defendant bases his claim on Bruton, supra, 391 U.S. 123. The essential holding of Bruton was summarized and restated in a more recent decision of the high court: “[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” (Richardson v. Marsh (1987) 481 U.S. 200, 207 [95 L.Ed.2d 176, 186, 107 S.Ct. 1702].) In People v. Aranda, supra, 63 Cal.2d 518, 528-530, we anticipated the rule of Bruton and held that when the prosecution seeks to introduce a codefendant’s extrajudicial statement that incriminates not only the codefendant but also the nondeclarant defendant, the trial court must adopt one of the following procedures: “(1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. (2) It can grant a severance of trials if the prosecution insists that it must use the extrajudicial statements and it appears that effective deletions cannot be made. (3) If the prosecution has successfully resisted a motion for severance and thereafter offers an extrajudicial statement implicating a codefendant, the trial court must exclude it if effective deletions are not possible. Similar rules concerning joint trial have been adopted in other jurisdictions and have been found workable. [Citations.]” (Id., at pp. 530-531, fn. omitted.) Although Aranda was not declared as a constitutionally based doctrine, the rule that it states has been recognized as constitutionally based (at least in part), ever since the decision in Bruton. (See People v. Anderson (1987) 43 Cal.3d 1104, 1121 [240 Cal.Rptr. 585, 742 P.2d 1306].) The process of redaction suggested in Aranda, whereby a confession is edited so that all statements that identify or implicate the nondeclarant defendant are deleted and replaced with neutral language, has been followed by California courts. (See People v. Jacobs (1987) 195 Cal.App.3d 1636, 1648-1649 [241 Cal.Rptr. 550].) Thus, if references, either direct or indirect, to the nondeclarant defendant are deleted, the extrajudicial statement may be admitted against the declarant. (People v. Manson (1976) 61 Cal.App.3d 102, 150-151 [132 Cal.Rptr. 265].) Redaction is ineffective where, for example, the confession includes a reference to “the other guy” which, in the context of other evidence, implicates the nondeclarant defendant. (People v. Jacobs, supra, 195 Cal.App.3d at p. 1652.) In Richardson v. Marsh, supra, 481 U.S. 200, the high court reaffirmed the Bruton rule, while also confirming that the admission of a codefendant’s redacted statement, omitting any reference to the nondeclarant defendant, does not violate Bruton. In that case, involving a joint trial of a defendant and a codefendant charged with murder, robbery, and assault, the codefendant’s confession was admitted over the defendant’s objection. The confession had been redacted to omit all indications that anyone other than the codefendant and a third accomplice had participated in the crimes. In his confession, the codefendant described a conversation he had with the third accomplice as they drove to the victim’s home, during which the accomplice said that he would have to kill the victims after robbing them. At the time the confession was admitted, the jury was admonished not to consider it in any way against the defendant. The codefendant did not testify. The defendant’s testimony indicated that she (defendant) had been inside the vehicle with the codefendant and the third accomplice but had not heard their conversation, and that she had not intended to rob or kill anyone. Affirming the defendant’s conviction of felony murder and robbery, the court found no Bruton error. The court held the confrontation clause was not violated by the admission of the nontestifying codefendant’s confession with a proper limiting instruction, where the confession was redacted to eliminate any explicit reference to anyone other than the codefendant and the third accomplice. The court stated the confession “was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).” (Richardson v. Marsh, supra, 481 U.S. at p. 208 [96 L.Ed.2d at p. 186], fn. omitted.) The court determined that where the confession is not facially incriminating, the jury is more likely to obey the instruction to disregard the confession as to the nondeclarant defendant. (Ibid.) The court concluded that if limited to facially incriminating confessions, the Bruton rule could be complied with by redaction, thereby enabling the parties to predict with some certainty the admissibility of a confession; but if the Bruton rule were extended to confessions which are incriminating only by reason of their “contextual implication,” it would be impossible to predict in advance of trial the admissibility of a confession. (Id., at pp. 208-209 [95 L.Ed.2d at pp. 186-187].) Here, Hammond’s redacted statement made no reference, either direct or indirect, to defendant or to defendant’s identity or existence. Defendant objects that the initial admonition by the police to Hammond, that he give his statement without mentioning anyone else’s name or involvement, improperly “alluded to an unidentified accomplice.” We disagree. The admonition simply directed Hammond not to refer to anyone other than himself in describing his activity. It did not refer to the existence or identity of any accomplice of Hammond in the commission of the crimes, but alluded only to the obvious—that somebody committed the crimes. Unlike the case of People v. Jacobs, supra, 195 Cal.App.3d 1636, where the codefendant’s redacted statements substituted the phrase “the other guy” for the defendant’s name, thus referring to an accomplice and implicating the defendant, Hammond’s statement made no reference to any other person in his company. Defendant also argues the statement placed Hammond at the scene of the crimes and thereby “ineluctably” placed defendant at the scene. It is true that when Hammond’s statement is linked to Leonard’s testimony, the statement implicates defendant. The statement facially, however, neither directly nor indirectly refers to or implicates defendant. It was therefore admissible with the giving of a limiting instruction. (Richardson v. Marsh, supra, 481 U.S. 200.) Defendant also claims the prosecutor effectively nullified the limiting instruction by certain remarks he made during closing argument. Defendant refers to the prosecutor’s remark that the argument of Hammond’s counsel, that defendant had no prearranged getaway plan and had met Hammond only coincidentally subsequent to the crimes, was incredible. By this remark, the prosecutor simply asked the jury to draw certain inferences, from all the evidence presented in the case, and to find that other inferences argued by the defense based upon Hammond’s statement were unreasonable. The prosecution has broad discretion to state its views as to what reasonable inferences may and may not be drawn from the evidence. (See People v. Kelly (1990) 51 Cal.3d 931, 967 [275 Cal.Rptr. 160, 800 P.2d 516].) The prosecutor did not indicate or imply that Hammond had stated that defendant had accompanied him or in any way had implicated defendant. Furthermore, the trial court restated the limiting instruction in its final instructions to the jury. The limiting instruction clearly was not nullified by the prosecutor’s closing argument. B. Denial of severance. During jury selection, codefendant Hammond moved to sever his trial from that of defendant on the ground that, because he was not facing the death penalty as was defendant, he had a right not to be tried before a jury from which persons opposed to the death penalty had been excluded. Defendant also moved to sever his trial from that of Hammond on the ground that under Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862] (overruled by People v. Anderson, supra, 43 Cal.3d 1104), the special circumstance allegation against Hammond would have to be dismissed (which it later was), and the dismissal would be prejudicial to him because the jury would hear that the trial court “has stamped its imprimatur on Mr. Hammond’s conduct. . . .” The motions were taken under submission and denied. Defendant contends the trial court erred in denying the motions for severance. He first contends the denial of Hammond’s motion constituted error and was prejudicial to him. Defendant, however, did not join in Hammond’s motion at the time it was made, and his current objection therefore is deemed waived. (See People v. Miranda (1987) 44 Cal.3d 57, 77-78 [241 Cal.Rptr. 594, 744 P.2d 1127].) Moreover, defendant lacks standing to complain of the denial of Hammond’s motion, because the grounds asserted by Hammond in support of his motion to sever were relevant only to Hammond and not to defendant. As to the denial of his own motion to sever, defendant argues there were exceptional circumstances requiring severance: the only uncontested evidence linking defendant to the crime was Hammond’s confession and Leonard’s testimony, and but for Hammond’s statement, which would not have been admissible against defendant had his trial been severed, the case against him was weak; in addition, he contends, his defense conflicted with that of Hammond. Whether denial of a motion to sever constitutes an abuse of discretion must be decided on the basis of the facts known and the showing made at the time of the motion. (People v. Miranda, supra, 44 Cal.3d at p. 78; People v. Balderas (1985) 41 Cal.3d 144, 171 [222 Cal.Rptr. 184, 711 P.2d 480].) As noted above, in his motion defendant relied solely on the alleged prejudice that he claimed would result from the anticipated dismissal of the special circumstance allegation against Hammond. Defendant did not raise the arguments he now makes, nor does he presently claim that the trial court abused its discretion in rejecting his prior arguments. For this reason alone, we are required to reject defendant’s challenge to the trial court’s ruling. (See People v. Miranda, supra, 44 Cal.3d at p. 78.) Furthermore, defendant’s current arguments lack merit. The governing statutes state a general preference for joint trial of jointly charged defendants. (§ 1098; see People v. Keenan (1988) 46 Cal.3d 478,499 [250 Cal.Rptr. 550, 758 P.2d 1081]; 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2518, p. 3021.) Here, there were no exceptional circumstances warranting severance. Hammond’s statement was effectively redacted to omit any direct or indirect reference implicating defendant; the admission of the statement therefore did not require severance. (People v. Johnson (1989) 47 Cal.3d 1194, 1230 [255 Cal.Rptr. 569, 767 P.2d 1047]; People v. Aranda, supra, 63 Cal.2d, at pp. 530-531.) Additionally, the defenses of the two defendants were not inconsistent. Defendant’s defense was that the prosecution had failed to prove beyond a reasonable doubt that he was the perpetrator of the crimes and, alternatively, that he did not have the intent to kill Ormond. Hammond’s defense was that he had not knowingly aided and abetted the commission of the crimes. Defendant also contends he was unfairly prejudiced by evidence of his association with Hammond, citing Leonard’s reference to Hammond as a gang member on cross-examination. This contention is specious. Leonard testified that he knew Hammond because Hammond was in a “car club.” We cannot perceive how such a remark could be prejudicial to defendant. Moreover, the reference occurred after the motion to sever had been made and denied and is therefore irrelevant to our review of whether denial of the motion constituted an abuse of discretion. (People v. Turner (1984) 37 Cal.3d 302, 312 [208 Cal.Rptr. 196, 690 P.2d 669], overruled on other grounds in People v. Anderson, supra, 43 Cal.3d 1104, 1115.) The trial court did not err in denying severance. C. Alleged Griffin error. Defendant contends certain prosecutorial remarks made during closing argument constituted Griffin error (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]). In discussing whether defendant had intended to kill Williams, the prosecutor commented, “Do you think [the evidence] demonstrates an intent to kill plus an overt act toward its completion? I think the evidence shows it does. She didn’t die, obviously. That’s not the killer’s fault. The killer probably thought that she was dead. We’ll never know what he thought." (Italics added.) In arguing the case against Hammond, the prosecutor referred to Hammond’s statement but drew from it the inference that, enroute to the crime scene, Hammond was well aware of defendant’s objective to commit a robbery: “Now, they’re riding side by side from the carwash on 90th and MacArthur all the way to Lakeshore, seven miles. You suppose there’s some conversation between the two as to why Mitcham’s dressed like he is? You suppose there’s some question in Hammond’s mind which would give rise to a question of Mitcham, how come you’re dressed like that? How come you got winter coats on? How come you have the two coats on? How come you got a bag full of pillow or blanket? How come you’re dressed like that? You going to the jewelry store to go shopping? You going to the drugstore? [f] No. No evidence of any conversation at all. You believe that? You believe that, you believe anything. If you believe, if you believe that Hammond just happened to be in that position to provide Mitcham with a getaway from that robbery, you’ll believe anything.” In further argument of the case against Hammond, the prosecutor commented on Hammond’s counsel’s argument that defendant had met Hammond fortuitously at the intersection. The prosecutor then remarked, “That isn’t what Stephan Mitcham said.” Additionally, the prosecutor commented on the defense’s failure to present a case: “But don’t you think it’s interesting that not one witness was called by two defendants? Not one. [f] There’s not one to say that they were somewhere else. There’s not one to say that they weren’t thinking about or didn’t know about the commission of a robbery. Not one to testify about anything. Not one to say that Richard Leonard’s a liar, not a witness as to anything.” He later continued, “These two men didn’t put on a defense because they don’t have one. I’m sure that’s occurred to you. They don’t have a defense. If they had a defense, you’d hear it. There isn’t a defense, and you haven’t heard a defense, [ft] They were entitled to their day in court . . . and they’ve had it. They’ve had their days in court.” Defendant contends these remarks amounted to comments on his failure to testify and thus were prohibited by Griffin. At trial, however, defendant’s counsel did not object to the prosecutor’s comments. Because a timely objection and admonition would have cured any harm caused by these remarks, defendant may not raise the objection for the first time on appeal. (People v. Carrera (1989) 49 Cal.3d 291, 320 [261 Cal.Rptr. 348, 777 P.2d 121]; People v. Murtishaw (1981) 29 Cal.3d 733, 758 [175 Cal.Rptr. 738, 631 P.2d 446].) Moreover, we find no Griffin error. Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.’ [Citation.]” (People v. Hovey (1988) 44 Cal.3d 543, 572 [244 Cal.Rptr. 121, 749 P.2d 776].) Here, the first of these comments by the prosecutor, relating to the attempted murder charge, was a permissible reference to the state of the evidence and the fact that intent may be difficult to prove directly. The prosecutor did not argue that the evidence of defendant’s intent to kill was uncontradicted by defendant. (Cf. People v. Murtishaw, supra, 29 Cal.3d at pp. 757-758.) The prosecutor made the second comment, regarding Hammond’s statement, when arguing the case against Hammond, discussing whether Hammond was an innocent dupe or knew about the robbery and had intended to aid and abet in its commission. The comment referred to the lack of evidence explaining or exculpating Hammond’s activities and cannot reasonably be construed as a comment upon defendant’s failure to explain the circumstances of his riding in an automobile with Hammond. The third remark, “That isn’t what Stephan Mitcham said,” referred to Leonard’s testimony that defendant had told him that Hammond had been waiting for defendant with the getaway car, and was not a comment on defendant’s failure to testify. The prosecutor’s final comments did not refer to the defendant’s failure to testify, but to the failure of the defense to call witnesses to contradict the testimony of the prosecution’s witnesses or to offer any evidence in opposition to the prosecution’s case. Griffin v. California, supra, 380 U.S. 609, does not prohibit the prosecution from emphasizing the defense’s failure to call logically anticipated witnesses or the absence of evidence controverting the prosecution’s evidence. (See People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213]; People v. Gray (1979) 91 Cal.App.3d 545, 552 [154 Cal.Rptr. 555].) D. Alleged reference to facts outside the record. Defendant contends the prosecutor, in commenting on Hammond’s statement, essentially argued to the jury that defendant and Hammond drove around Oakland together before the crimes and that the prosecutor engaged in speculation concerning possible discussions between the two men. Defendant contends that because no evidence was received at trial establishing that defendant and Hammond had driven around Oakland together prior to the crimes, the prosecutor’s comment improperly alluded to facts outside the record. Again, defendant’s failure to object to the comment at trial precludes his objection on appeal. Moreover, defendant’s contention lacks merit. The prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom. (People v. Kelly, supra, 51 Cal.3d 931, 967.) Here, the prosecutor’s comments constituted reasonable inferences drawn from the evidence that Hammond had driven to Lakeshore Avenue prior to the robbery and was observed fleeing with defendant shortly after the robbery. Defendant also objects to the prosecutor’s argument to the jury that the police began looking for the two defendants after connecting the getaway car, a Falcon, to the Falcon Gang. Defendant is correct in contending the record does not support this remark. The remark could not have been prejudicial to his defense, however. Leonard testified he knew Hammond in connection with a car club whose members owned Falcons but that defendant was not a member of the club. The prosecutor’s subsequent reference to the Falcon Gang therefore was prejudicial, if at all, to Hammond and not to defendant. E. The trial court’s comments on the preliminary hearing. Defendant contends the trial court’s comments to the jury on the preliminary hearing process constituted prejudicial error. During cross-examination of Williams, defense counsel sought to impeach her with her preliminary hearing testimony. The court, apparently on its own initiative, explained to the jury the preliminary hearing process, as follows: “Ladies and gentlemen ... let me explain what a preliminary examination is. H] As I told you before, normally a criminal charge comes into being by the [issuance] of an information. Now it happens in most cases and what happened in this case, a person’s arrested, a criminal complaint issues, a preliminary examination is then held and a Magistrate, a judge in the Municipal Court must make the determination if there’s sufficient evidence to hold a person to answer for trial. [][] Now, the standard of proof is not beyond a reasonable doubt, it has to be a reasonable suspicion. H] How does a Municipal Court judge determine that? He determines that by testimony. In other words, people testify, Ms. Williams testified at the preliminary examination. . . .” Defendant contends that, by the underscored comments, the trial court improperly referred to defendant’s guilt and in essence told the jury that at least one judge previously had concluded, after hearing evidence, that defendant was guilty. Defendant’s failure to object at trial, however, particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal. (See People v. Lanphear (1980) 26 Cal.3d 814, 836 [163 Cal.Rptr. 601, 608 P.2d 689], vacated, affd. 28 Cal.3d 463 [171 Cal.Rptr. 505, 622 P.2d 950].) Moreover, defendant’s argument is refuted by the very language used by the trial court, which correctly explained the preliminary hearing process and the standard of proof employed by the magistrate. (See People v. Lanphear, supra, 26 Cal.3d 814, 836 [trial court’s comments that although someone “ ‘thinks he’s guilty’ to start the process, ‘what we are here for is to find out whether those charges are true, not whether somebody thinks they are true,’ ” held not prejudicial].) The court did not indicate to the jury that another judge or anyone else had concluded defendant was guilty. Indeed, rather than create a prejudicial misconception of the preliminary hearing process, the comments tended to eliminate any misconception. Because the court’s comments were accurate and nonargumentative, we find no error. (See People v. Rodriguez (1986) 42 Cal.3d 730, 766 [230 Cal.Rptr. 667, 726 P.2d 113].) F. Felony-murder special circumstance. The trial court instructed the jury that in order to find the special circumstance charged under section 190.2, subdivision (a)(17)(i), to be true, it had to find that defendant possessed the intent to kill Ormond. At the time of trial, such an instruction was required by Carlos v. Superior Court, supra, 35 Cal.3d 131, 142. Defendant contends there was insufficient evidence to support the jury’s finding of intent to kill, and that the special circumstance finding therefore must be set aside. Defendant’s claim as to the alleged insufficiency of the evidence of his intent to kill has been rendered moot by this court’s decision in People v. Anderson, supra, 43 Cal.3d 1104, 1147, expressly overruling Carlos on this point. In Anderson, we held “intent to kill is not an element of the felony-murder special circumstance; but when the defendant is an aider and abettor rather than the actual killer, intent must be proved.” The rule of Anderson applies both to crimes committed after the Anderson decision and to crimes committed prior to the Carlos decision. (People v. Hamilton (1988) 46 Cal.3d 123, 143, fn. 5 [249 Cal.Rptr. 320, 756 P.2d 1348]; People v. Easter (1987) 197 Cal.App.3d 183, 185-187 [242 Cal.Rptr. 746].) The criminal conduct here was committed prior to Carlos. In the present case, the evidence established either that defendant actually killed Ormond or that he was not at all involved in the crime; there was no evidence that he was only an aider and abetter. Accordingly, intent to kill was not an element of the felony-murder special circumstance charged against defendant, and the trial court was not required to instruct on such intent as an element of the alleged special circumstance. (People v. Hamilton, supra, 46 Cal.3d at pp. 142-143; People v. Easter, supra, 197 Cal.App.3d 183, 185.) The issue whether there was sufficient evidence to support a finding that defendant possessed the intent to kill therefore is moot. Defendant contends that adherence to Anderson, supra, 43 Cal.3d 1104, in the present case would result in an ex post facto application of the law in violation of the due process provisions of the federal and state Constitutions. We rejected this identical argument in People v. Hamilton, supra, 46 Cal.3d at page 143, footnote 5, and defendant fails to put forth any reason for us to reexamine that holding. G. Alleged submission of unredacted exhibits to the jury. Defendant maintains that three allegedly prejudicial exhibits were submitted to the jury in unredacted form in contravention of the trial court’s ruling to redact them. Defendant failed to raise this contention at any point during the trial proceedings or in his briefing on appeal filed nearly three years ago. He raised this contention only recently for the first time, in response to this court’s invitation to the parties to file any “supplemental briefs citing authority postdating the briefs on file.” As demonstrated below, the record does not support this new contention. Before the prosecution rested its case, the trial court, outside the jury’s presence, discussed with counsel which exhibits were to be received in evidence. People’s exhibits 5-A through 5-F were six photographs of Black males comprising a police photographic lineup, one of which (exhibit 5-D) was a photograph of defendant. The back of the latter exhibit bore the signature of several persons who had identified defendant, including Hammond’s signature. The back of each of these other photographic exhibits bore the initials of those same persons (including Hammond), apparently to indicate that each of the individuals also had been shown the other five photographs in the series. All counsel agreed that Hammond’s signature on the back of exhibit 5-D could not be submitted to the jury. The court and the prosecutor suggested that Hammond’s signature as well as his initials could be masked by tape. Defendant’s counsel objected that the presence of the tape would lead the jury to speculate that someone else had signed the photograph. The court stated it would reserve until a later time its ruling on the form in which the exhibit would be admitted. Exhibit 19, a newspaper article reporting the crime, included photographs of defendant and Hammond. When the exhibit was marked for identification, all counsel agreed that only the newspaper photographs of the two defendants would be admitted and that the text of the article would be redacted. Exhibit 46 was another newspaper article reporting the crime. The court ruled the text of the article was inadmissible and only the headline (which Leonard testified he had read) was admissible. The prosecution subsequently rested its case and moved the admission of its exhibits into evidence. When the prosecutor offered exhibits 5-A through 5-F, he remarked that “There’s a problem with, I believe, photograph 5D. We were to take care of something.” The court replied the problem would “be taken care of pursuant to the desires of counsel. There’s some writing on the photographs which have nothing to do with it which we’ll either take off or cut off. You don’t worry about that. The photos will be intact.” The photos were then admitted into evidence. When the prosecutor offered exhibit 19, defendant’s counsel said he believed “there were some modifications.” The court stated it would “modify” the exhibit, which then was admitted into evidence. The court similarly admitted exhibit 46 “as modified” into evidence. The court thereafter advised the jury that the prosecution had rested its case and that “[a]ll of these exhibits which have been admitted into evidence you may see and have with you if you request them.” (Italics added.) After the jury retired for deliberations, the court sought from counsel a stipulation it could excuse the jurors for meals “or send the exhibits up if asked for” (italics added) when counsel were not present. Counsel so stipulated. The clerk’s minutes state “[cjounsel stipulate at each recess and should the jury request exhibits the Court need not reconvene.” Neither the reporter’s transcript nor the clerk’s transcript reflects that the jury requested the exhibits prior to returning their verdicts. Defendant now contends the three exhibits were submitted to the jurors in unredacted form in contravention of the court’s ruling. In support of this contention, defense counsel represents that, in preparation for supplemental briefing, he recently reviewed all exhibits deposited with the superior court clerk. Counsel discovered exhibit 5-D with a piece of tape over Hammond’s signature but through which, he contends, the signature still can be perceived; exhibit 19 with the newspaper article text intact with the photographs; and exhibit 46 with the newspaper article text intact with the headline. Defendant’s contention that unredacted exhibits were submitted to the jury is not supported by the record. As demonstrated above, the record does not reflect that exhibits 5-D, 19, or 46 ever were submitted to the jury. The trial court advised the jurors that the exhibits would be submitted to them if the exhibits were requested, but the record does not indicate the jury requested them. Moreover, the record reflects the clerk was fully aware of her duty, in light of the trial court’s ruling, to submit the exhibits in redacted form in the event the jury were to request them. Pursuant to California Rules of Court, rule 12, we ordered on our own motion that the superior court transmit to us the exhibits in question and also the clerk’s inventory of the exhibits. Having examined these items, we observe that in the exhibit inventory record, attached to the clerk’s entry mark for exhibit 19, is the notation on a separate piece of paper: “photos in evidence only—remainder of article not to be given to jury.” (Italics in original.) Attached to the entry mark for exhibit 46 is the notation on a separate piece of paper: “headline in evidence only— remainder of article not to be given to jury”. (Italics in original.) Our examination of exhibit 5-D discloses a piece of opaque tape attached to the back of the photograph, effectively masking the last signature (presumably Hammond’s). Contrary to defendant’s contention, Hammond’s signature is not legible through the tape. The record does not reflect that defense counsel ever suggested to the trial court or the clerk that Hammond’s signature still was visible despite the tape affixed to the exhibit. Under Evidence Code section 664, we presume the clerk “regularly performed” her official duty and submitted to the jury only the admissible portions of any exhibits which they requested. (See People v. Hudson (1953) 120 Cal.App.2d 870 [262 P.2d 23]; People v. Smith (1965) 234 Cal.App.2d 404, 407 [44 Cal.Rptr. 430].) In Hudson, the court applied the presumption under the predecessor statute to Evidence Code section 664 in rejecting the defendant’s claim that improper matter had been submitted to the jury. There, following a jury trial, the defendant was convicted of armed robbery. On appeal, relying on the clerk’s minutes of the trial proceedings reflecting that the “information is read and plea stated” to the jury, defendant argued the clerk had read to the jury the allegations of his prior felony convictions set forth in the information, in violation of Penal Code section 1093. The record, however, did not indicate the clerk had read these specific allegations. In rejecting defendant’s argument, the court applied the presumption of Evidence Code section 664’s predecessor statute “ ‘that official duty has been regularly performed,’ and the rule that error will not be presumed, but must be shown affirmatively.” (People v. Hudson, supra, 120 Cal.App.2d at pp. 871-872.) The court concluded, “[i]t must be presumed that the clerk performed his duty and read the information in the manner required by law.” (Ibid.) Here, defendant makes no showing to rebut the presumption the clerk performed her official duty with regard to the exhibits. We accordingly presume she performed her duty in accordance with the trial court’s ruling. Thus, the record on appeal does not support defendant’s contention that the three exhibits were submitted to the jury or that, if they were, the inadmissible portions were submitted with the admissible portions. Finally, even if the exhibits were submitted to the jury in unredacted form, such error could not have been prejudicial to defendant. The opaque tape affixed to the back of exhibit 5-D, the lineup photograph of defendant, effectively masks Hammond’s signature. The text of exhibit 19, the newspaper article pertaining to the police investigation of the crime, departs from the evidence introduced at trial in only minor respects, such as references to members of the Falcon Gang who “are known for dealing in marijuana and car thefts and burglaries,” and statements that “[bjoth Mitcham and Hammond had minor arrest records” and “Mitcham was a known transient with no firm address . . . .” In light of the strong evidence of defendant’s guilt, including three eyewitness identifications, there is no reasonable probability (or possibility) that these fairly innocuous comments affected the jury’s verdict of guilt. In light of the uncontradicted evidence that defendant bragged about and profited from this brutal robbery-murder, and because additional evidence in aggravation was received at the penalty phase, there is no reasonable possibility the jury would not have imposed the death penalty had it not viewed the text of exhibit 19. The text of exhibit 46, another newspaper article, refers to Ormond’s background as an immigrant from Portugal, as well as to the fact that he was the third member of his generation to be murdered and that he had been pistol-whipped during a previous robbery. Although Ormond’s unfortunate history could have tended to evoke sympathy for the victim, the evidence properly introduced at trial would have done so independently. Accordingly, there is no reasonable possibility the jury would not have imposed the death penalty had it not viewed the text of exhibit 46. H. Effective assistance of counsel. Defendant contends he was deprived of effective assistance of counsel during the guilt phase of the trial. To establish constitutionally inadequate representation, a defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Haskett (1990) 52 Cal.3d 210, 248 [276 Cal.Rptr. 80, 801 P.2d 323] (Haskett II); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [233 Cal.Rptr. 404, 729 P.2d 839]; see Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699, 104 S.Ct. 2052].) When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” (People v. Haskett, supra, 52 Cal.3d at p. 248; see People v. Ledesma, supra, 43 Cal.3d at p. 218; People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Defendant has failed to meet his burden of establishing, on the record before us, that his trial counsel was ineffective. Defendant first complains of his counsel’s failure to move for severance of defendant’s trial from that of Hammond. As discussed ante, defendant’s counsel did move for severance but on a basis different from the grounds asserted on appeal. Counsel’s failure to move for severance on the grounds presently asserted on appeal might well have resulted from counsel’s reasonably assuming that such a motion would have been denied. Hammond’s incriminating statement was effectively redacted to eliminate any reference to defendant. There was no evidence of any gang affiliation prejudicial to defendant. Although defendant argues his case was tainted by the evidence against Hammond which, he contends, was much stronger than that against him, there is no showing the theories of defense or trial strategy of the two defendants was in conflict so as to warrant severance. Defendant next complains of counsel’s failure to object to the prosecutor’s reference to the Falcon Gang. Because we conclude the reference could not have been prejudicial to defendant, counsel’s failure to object was not unreasonable. Defendant next complains of his counsel’s failure to object to the admission of exhibit 45, a newspaper article reporting the crime, which Leonard testified he read before speaking with the police. The article did not refer to defendant, Hammond, or the police investigation of the crime, but only to the undisputed fact of the shooting of Ormond and Williams. Its admission therefore could not have been prejudicial to defendant. For this reason, and because the trial court overruled the objection of Hammond’s counsel to exhibit 45, the failure of defendant’s counsel to object does not demonstrate ineffective assistance of counsel. Defendant next complains of counsel’s failure to object to the qualifications of the prosecution’s criminalist as a ballistics expert or to his testimony relating to the use of a pillow as a “silencer,” or to Leonard’s testimony that defendant possessed a .22-caliber revolver that defendant said he had used in the robbery. Defendant fails to relate, however, the objections which he contends should have been asserted, and therefore fails to demonstrate deficient performance. Furthermore, the record sheds no light on whether his counsel’s failure to object was based upon sound trial tactics or resulted from inexcusable oversight. The record in fact provides a satisfactory explanation for the failure to object to the criminalist’s qualifications—the witness testified he had qualified more than 100 times as an expert in the field of firearms identification and ballistics. Under Ledesma, supra, 43 Cal.3d 171, and Pope, supra, 23 Cal.3d 412, defendant’s claim that counsel was ineffective for failing to object must fail. Defendant next complains his counsel was ineffective in electing to present no defense case. Defendant focuses on his counsel’s comment, following the prosecutor’s opening statement, that he would reserve his opening statement, and counsel’s subsequent decision to present no opening statement or evidence. The decisions whether to waive opening statement and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess. (See People v. Pangelina (1984) 153 Cal.App.3d 1, 6-9 [199 Cal.Rptr. 916].) Reasonably competent counsel could have determined to wait to hear the prosecution’s case before deciding whether to present a defense. Defendant’s counsel could have determined that the defense’s strongest argument was that the prosecution had failed to prove its case beyond a reasonable doubt. He in fact took this position during closing argument. (See discussion, post.) In any event, because the record does not reveal why counsel elected not to present a defense, defendant’s claim must fail. Defendant next complains his counsel was ineffective in failing to object to instances of prosecutorial misconduct during closing argument, including Griffin error, discussed ante. Our conclusion that there was no such misconduct prejudicial to defendant (see pt. C, ante) defeats this claim. Defendant finally complains his counsel unnecessarily conceded during closing argument that the prosecution had established that whoever shot Williams possessed the intent to kill. In closing argument, defendant’s counsel devoted substantial argument to (1) the defense of misidentification; and (2) the lack of evidence supporting the special circumstance of murder in the commission of a robbery, because (under Carlos v. Superior Court, supra, 35 Cal.3d 131) whoever committed the crimes had not intended to kill Ormond. As to the shooting of Williams, counsel stated: “[I]t is not particularly critical what the particular elements of attempted murder are. It would appear that the shooting of Yvette Williams constituted an attempted murder, whatever the hypertechnical elements of attempted murder might be in that instance. [][] The question remains whether Stephan Mitcham was the perpetrator of those offenses.” Shortly after this statement, counsel attempted to define the element of intent, and then asked: “Well, what do we know about the shooting of James Ormond? Whoever did it, Stephan Mitcham or someone else, what do we know about the shooting of Jim Ormond relative to whether it was intended or not?” He proceeded: “I don’t have any question in my mind about whether the shooting of Yvette Williams was intentional.” Defendant contends that by so conceding the issue of the gunman’s intent to kill Williams, his counsel unnecessarily, on the attempted murder charge, limited his defense to misidentification. He contends it is inconceivable that such a concession could have been premised upon any rational or informed tactical decision. We disagree. The record reflects counsel made a tactical decision to concede that whoever committed these crimes was guilty of the first degree murder of Ormond under the felony-murder rule, and of the attempted murder of Williams. In so doing, he sought to contrast the shooting of Williams from that of Ormond, i.e., to argue that as to the former there was evidence the gunman had the intent to kill, whereas as to the latter there was no such evidence. The concession of intent as to the shooting of Williams was not unreasonable in light of the substantial weight of the evidence on this issue, and counsel’s desire to focus on the defense of misidentification and thus maintain his credibility with the jury. He thereby was able to follow his apparent strategy of making the alternative arguments that (1) his client did not commit the shootings, and (2) if defendant did shoot the two victims, he did not intend to kill Ormond and thus would not be subject to the death penalty. In People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149], we noted that good trial tactics often demand complete candor with the jury, and that in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client’s innocence. (Id., at pp. 292-293; see People v. Wade (1988) 44 Cal.3d 975, 988 [244 Cal.Rptr. 905, 750 P.2d 794].) The record fails to establish defendant’s claim that he was deprived of the effective assistance of counsel during the guilt phase of the proceedings. II. Penalty Phase Issues A. Excusal of jurors. Defendant contends the trial court erred in excusing for cause six jurors because of their views adverse to the death penalty. The standard of review we employ in reviewing such a claim is that stated in Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844] (Witt), which “clarified” the earlier decision of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Under Witt, a prospective juror may be excused for cause if that juror’s views on capital punishment would “ ‘p