Full opinion text
Opinion PANELLI, J. A jury convicted defendant Albert Cecil Howard of the first degree murder, mayhem, and robbery of Lois (Roy) Fried (Pen. Code, §§ 187, 203, 211) and the attempted murder, attempted mayhem, and robbery of Gladys Fried (§§ 187, 203, 211, 664). As special circumstances, the jury found that defendant committed the murder during the commission of robbery and burglary and for financial gain. (§ 190.2, subd. (a)(1), (17)(i) & (17)(vii).) The jury also found that defendant personally inflicted great bodily injury on each victim (§ 1203.075, 12022.7) and that each was over the age of 60 (§ 1203.09). At the penalty phase, the jury returned a verdict of death. As discussed below, we reverse the convictions for attempted murder and attempted mayhem and strike the related enhancement findings. We also strike the finding on the financial-gain special circumstance. In all other respects, the judgment is affirmed. I. Facts On May 25, 1982, defendant was visiting friends and relatives in the City of Tulare. Defendant had temporarily left his residence in Compton to avoid retribution from his former employer, whose motorcycle shop he had burglarized. Early in the afternoon a party began at Eddie Franks’s house, where defendant was staying. At the party were defendant, his mother Paralee Faulk, his aunt Dorothy Haynes, his half brother Johnny Malone, his sister-in-law Pamela Malone, his half brother Ernest (Ernie) Malone, Ernie’s girlfriend Denise Devine, Johnny Washington, and Howard Green. Drinking and socializing continued well into the evening. Defendant left the party several times with Ernie to walk to a nearby store for beer and wine. The last such trip began sometime after dark. The two men left by way of an alley behind the house and returned about 45 minutes later. When they returned, defendant was walking ahead of Ernie and carrying a brown paper bag. Defendant showed the contents to Eddie Franks and carried it into the house. Eventually, defendant and most of the other people at Eddie’s house found their way to a second party at the home of defendant’s sister, Lavern Howard. Testimony about when defendant left Eddie’s house was wildly inconsistent. The witnesses’ recollections were vague, openly speculative, influenced in some cases by the consumption of alcohol, and generally impossible to reconcile. According to various witnesses, defendant could have left Eddie Franks’s house as early as 8 p.m., after 10:45 p.m., or at any point in between. In any event, by 11:30 p.m. the party at Lavem’s house included Lavern herself, her husband Richard Sanders, Johnny Malone, Pamela Malone, Denise Devine, Johnny Washington, Howard Green, Dorothy Haynes, Para-lee Faulk, and defendant. Pamela, defendant’s sister-in-law, recounted at trial what happened when he arrived. Defendant had earlier expressed a desire to buy Johnny Malone’s car. When defendant arrived, he asked Johnny if he still wanted to sell it. When Johnny said that he did, defendant dropped several bills on the floor—one $100 and two $50’s. Pamela, Johnny’s wife, said, “[d]rop [$50] more and [I’ll] give you the papers and everything.” Defendant dropped another $50. Lavern Howard also witnessed the transaction. Many of the people at Lavern’s house heard defendant talking about something that had happened earlier that evening. Defendant was “excited” and “hyper.” As Lavern later testified, defendant was “boasting” that he had “gotten some money” and “brought somebody down.” Defendant said that he had “stomped” “a dude" with his foot. Ernie had “tried to stop him” but, as defendant told the story, “this old mother-fucker seen me, and he ain’t going to see me no more.” Other people heard defendant brag that he had “stomped” someone, “stomped somebody’s face in from being identified,” or “brought somebody down." Lavern also testified that Ernie, according to defendant, “was supposed to have [done] something to some woman.” Besides Lavern, the witnesses who heard defendant describe the incident included Richard Sanders, Pamela Malone, Denise Devine, and Johnny Washington. Defendant’s mother had recounted a similar statement to the police but repudiated it at trial. About 1 a.m. the next morning, Ernie Malone arrived at Denise Devine’s apartment. When Denise turned on the lights, she saw a wallet, money, and identification cards on the kitchen table. The cards belonged to Roy and Gladys Fried. Ernie asked Denise to count the money. She counted $540, which Ernie pocketed. Later, about 4 a.m., defendant arrived with Johnny and Pamela Malone. Defendant told Denise that he had bought Johnny’s car. Ernie got upset and told defendant that “he had to leave because he talked too much.” The next morning, Denise put the identification cards in a bag and discarded them in a dumpster. About noon that same day, defendant visited Pamela. She asked defendant where he had gotten the money to buy her husband’s car. As before, defendant explained that he had “brought somebody down.” Defendant also explained, in more detail, that he and Ernie had “knocked on somebody’s door, and an old man came to the door.” The man “got hit” and grabbed defendant’s leg. Defendant demonstrated with his foot how he had then “stomped” the man. Roy Fried lived with his wife, Gladys, in a house in Tulare. Eddie Franks’s house was one block away, connected by an alley. Mr. Fried was 74, and Mrs. Fried was 71. Both had impaired mobility and used aluminum walkers. The Frieds’ two sons, Leland and Albert, saw and telephoned their parents frequently. On the evening of May 25, Albert’s wife Jo Ann spoke with Mrs. Fried on the telephone until a few minutes before 10 p.m. At that time everything seemed to be in order. About 3:30 p.m. the next day, Leland’s fiance Janice Yagel and her daughter Kim Payne drove to the Frieds’ home. Janice stayed in the car while Kim went in to return Mrs. Fried’s medical card. When no one answered her knock, Kim opened the door and saw Mr. and Mrs. Fried on the floor, lying on their stomachs. Mr. Fried’s walker was on top of his body and his pockets were turned inside out. Mrs. Fried, who was wearing a nightgown, had her arm over her husband’s back. When Mrs. Fried lifted her head to see who was at the door, Kim saw that her face was bloody. Kim yelled for help, and Janice telephoned the police. Mr. Fried’s body was cold and had no pulse. The police and medical technicians arrived a few minutes later. Mrs. Fried was cold, clammy, and breathing heavily, and her face, eyes, nose, and mouth showed extensive injuries. The ambulance crew administered first aid and took her to the hospital. Mr. Fried was pronounced dead. Rigor mortis had set in, and he was lying in blood and other bodily fluids. There was broken denture material on the living room floor. The house had been ransacked. The Frieds’ sons later confirmed that a large amount of cash was missing. Leland had recently repaid a $2,000 loan in cash. The tan, “government-type” envelope into which Mrs. Fried had put the money was lying on the floor, empty. Also missing were Mr. Fried’s wallet, in which he ordinarily kept several hundred dollars, and the purse that Jo Ann had given Mrs. Fried the previous Christmas. An expert on crime-scene reconstruction testified that the crimes could have been committed in as few as eight minutes. The autopsy showed that Mr. Fried had suffered multiple blows to the head, face, neck, and chest. A blow to the neck had separated the larynx and trachea from the spine. A blow to the right eye had pushed the eyeball backwards and fractured the orbit. Multiple blows to the head had caused intracranial bleeding and bruised the brain. The blows had been delivered with considerable force by a tapering, firm or hard object and were consistent with having been delivered by a shod foot. At several places, the decedent’s face showed a raised, curlicue pattern of small bruises. There were no defensive wounds. The cause of death, which took several minutes, was asphyxia with associated cranial and cerebral trauma. Mrs. Fried had suffered very similar injuries, including multiple blows to the head, face, and eyes. Her eyelids were so swollen that they had to be pulled open, and the whites of her eyes had hemorrhaged. Her lips and gums were injured, and her dentures had been knocked out of her mouth. She had also suffered a contusion, or bleeding within the brain. The next day, May 27, defendant went with his sister Lavem to a pharmacy across the street from the Frieds’ home. According to Tavern’s testimony, the clerk was talking about how a friend of hers had been killed. Once outside the store, defendant told his sister that “he had a murder beef and he had to get out of town.” He also said that “we’d be hearing about it on the news.” Police arrested defendant later that day in the car he had bought from Johnny Malone. Defendant gave a false name. Because he was barefoot and the sidewalk was hot, he told an officer that he would like to have his shoes out of the back seat. Officer Troy Otto went to get the shoes, but put them back because defendant was already in the patrol car. Tater forensic examination showed that the shoes, a pair of black and white, tasselled, plastic, wing tip loafers, matched the curlicue pattern on decedent’s face. Five witnesses had recently seen defendant with such shoes. That same day, police recovered Mr. and Mrs. Frieds’ identification and charge cards, as well as some family photographs, from the dumpster outside Denise Devine’s apartment. The cards were in a bag with a piece of paper bearing the handwritten words “Uncle Ernie.” Police seized Mrs. Fried’s purse from Denise’s apartment. Defendant, who testified at trial, denied involvement in the crimes. He explained his statements about “stomping” a man as references to a fight in Compton with John Hughes, his former employer. In April, defendant had burglarized Hughes’s motorcycle shop. Hughes and his brother later attacked defendant with a pipe and broke defendant’s arm. Hughes, who testified at trial, corroborated defendant’s claim that defendant had burglarized the store in April 1982 and later become involved in a fight. Alfred Hunter, defendant’s friend of 15 years who had witnessed the fight, testified that Hughes “was kicking and stomping” defendant. Hunter had previously been convicted of automobile theft and burglary. Booker Beard, who knew defendant well, testified that he had heard Hughes threaten defendant, saying that “if [defendant] didn’t leave Compton he wasn’t never going to leave.” Beard had been convicted of automobile theft and a narcotics charge. Defendant also explained that he was referring to Hughes, rather than to Mr. Fried, when he said that the “mother-fucker won’t see my face again.” According to defendant, he made the statement because his girlfriend Novalene Taylor, who had remained in Compton, told him over the telephone that Hughes had attacked Erskin Bell. After hearing this defendant feared for his own safety and decided to stay away. Novalene Taylor did not testify. However, Bell confirmed that Hughes had assaulted him after accusing him of complicity in the burglary of the motorcycle shop. Bell had previously been convicted of arson. Defendant denied telling Pamela Malone on May 26 that he had robbed an elderly man and woman. According to defendant, he did not see Pamela on that day and spent most the afternoon having his car repaired. Melvin Alston, a neighbor who repaired automobiles on the side, testified that defendant slept at Alston’s house while Alston worked on the car. Alston had previously been convicted of burglary. Defendant testified that the money he used to buy Johnny Malone’s car came from the Compton burglary. He denied that the wing tip shoes in the car belonged to him. He admitted owning a pair of shoes “almost exactly” like those in evidence but said that his were made of leather rather than plastic. Finally, the defense exploited the contradictory testimony about the timing of events on May 25, emphasizing those accounts which portrayed defendant as leaving Eddie’s house for Lavern’s before 10 p.m., when Jo Ann Fried talked with the victims over the telephone. II. Guilt Phase A. Wheeler/Batson Claim. 1. Alleged racial bias. Defendant moved at trial to quash the jury panel on the ground that the prosecutor had used peremptory challenges to exclude two Black prospective jurors solely because of their race. (See People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson).) The trial court denied the motion without asking the prosecutor to explain his challenges, ruling in effect that defendant had failed to establish a prima facie case of group bias. We hold that the trial court did not err. What a party must do to establish a prima facie case of group bias under Wheeler is well settled. “If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (Wheeler, supra, 22 Cal.3d at p. 280, italics added, footnote omitted; see also People v. Fuentes (1991) 54 Cal.3d 707, 714 [286 Cal.Rptr. 792, 818 P.2d 75].) The prosecutor in this case exercised eleven peremptory challenges. His third and fourth challenges were to Black prospective jurors; the remaining nine challenges were to Whites. Defendant objected under Wheeler at the conclusion of voir dire, just before the jury was sworn. Defendant’s Wheeler motion was timely and Black persons obviously form a cognizable group. (Wheeler, supra, 22 Cal.3d at p. 280.) However, defendant’s showing was otherwise completely inadequate. His entire motion consisted of these three sentences: “[T]here [have] been two Black people that advanced to the point where they were on the panel at one time. Both of them were excluded by the District Attorney, and it is my position they were excluded because they are black and for no other reason. I would like to make a motion under Wheeler on that basis.” Thus, defendant relied solely on the fact that the prosecutor had challenged the only two Black prospective jurors. Defendant did not make any effort to set out the other relevant circumstances, such as the prospective jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the prospective jurors’ answers to questions. A showing as limited as defendant’s offers little practical assistance to the trial court, which must determine from “all the circumstances of the case” whether there is “a strong likelihood” that prospective jurors have been challenged because of their group association rather than because of any specific bias. (Wheeler, supra, 22 Cal.3d at p. 280.) In view of defendant’s meager showing, the People argue that this case is governed by People v. Rousseau (1982) 129 Cal.App.3d 526 [179 Cal.Rptr. 892]. In Rousseau, the prosecutor “exercised two peremptory challenges against black jurors. The trial court took judicial notice that these jurors were the only blacks on the panel. However, [the] appellant’s attempt to satisfy the required prima facie case was limited to his statement that ‘there were only two blacks on the whole panel, and they were both challenged by the district attorney.’ ” (Id., at p. 536.) The trial court declined to find a prima facie case, and the Court of Appeal affirmed. (Id., at pp. 536-537.) Although defendant’s attempt to show a prima facie case was clearly inadequate, we have not limited our review in such cases solely to counsel’s presentation at the time of the motion. This is because other circumstances might support the finding of a prima facie case even though a defendant’s showing has been no more detailed than in the case before us. Nor should the trial court blind itself to everything except defense counsel’s presentation. Indeed, we have emphasized that such rulings require trial judges to consider “all the circumstances of the case” (Wheeler, supra, 22 Cal.3d at p. 280) and call upon judges’ ‘“powers of observation, their understanding of trial techniques, and their broad judicial experience.’ ” (People v. Bittaker (1989) 48 Cal.3d 1046, 1092 [259 Cal.Rptr. 630, 774 P.2d 659] (Bittaker), quoting Wheeler, supra, 22 Cal.3d at p. 281; see also Batson, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88].) The trial judge in this case, for example, obviously knew that defendant belonged to the same group as the challenged jurors and that his victims did not. Clearly these are relevant factors (see Wheeler, supra, 22 Cal.3d at p. 281), and they were apparent to the trial court even though defendant did not mention them during his Wheeler motion. For these reasons, when a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. (E.g., Bittaker, supra, 48 Cal.3d at p. 1092; People v. Sanders (1990) 51 Cal.3d 471, 498 [273 Cal.Rptr. 537, 797 P.2d 561] (Sanders).) As with other findings of fact, we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call upon trial judges’ personal observations, we view their rulings with “considerable deference” on appeal. (Sanders, supra, 51 Cal.3d at p. 501; cf. Batson, supra, 476 U.S. at p. 88 [90 L.Ed.2d at p. 82].) If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm. (Bittaker, supra, 48 Cal.3d at p. 1092.) Prospective juror Betty T, who described herself as a “housewife,” was a nonpracticing registered nurse with a degree in sociology. She had lived in the county for 20 years, was married to a physician, and had 2 grown children. At voir dire the prosecutor asked her, among other things, about her views on the death penalty and about her medical training. Regarding the latter, he explained to her that “[t]he reason [he] ask[ed] those questions [was that] sometimes we run into jurors who have a basic expertise in an area that might be tested in this trial.” Betty T. said she did “not think” that her training would be a problem. Defense counsel did not directly question Betty T. about her degree in sociology but did ask how she would consider evidence regarding defendant’s background and childhood. She answered that she thought that such evidence was “something that could be considered, but it would have to be weighed very carefully.” She believed that “other evidence” would also be important. Prospective juror Katie B. was a nurse’s aide who had completed the 10th grade. She had lived in the county for 39 years, was married to a retired gardener, and had no children. During the Witherspoon/Witt voir dire (see Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]; Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]) she passively answered the trial judge’s leading questions in the manner the questions suggested. Thus, her brief responses to the court indicated that she had no beliefs that would prevent a vote for the death penalty, that she would not automatically vote for or against it, and that she would weigh both penalties before deciding for one or the other. In contrast, her subsequent answers to defense counsel’s nonsuggestive questions revealed uncertainty. Asked about her “personal feelings” on the death penalty, Katie B. responded, even though she had just explored the matter with the trial court: “I have never been confronted with this question before so I really haven’t thought it over.” Asked if she would favor the death penalty “if the situation warranted,” she responded: “If I know the circumstances, you know, I could understand it better, but right now I don’t know anything about it so I don’t know what to say.” The trial judge, who presided over the entire voir dire, was in a good position to decide from all the relevant circumstances whether there was a “strong likelihood” that the prosecutor had challenged Betty T. and Katie B. solely because of their group association. (Wheeler, supra, 22 Cal.3d at p. 280.) Betty T.’s professional training and Katie B.’s apparent uncertainty about the death penalty “suggested] grounds upon which the prosecutor might reasonably have challenged” the jurors in question. (Bittaker, supra, 48 Cal.3d at p. 1092.) Moreover, the prosecutor’s voir dire of the two prospective jurors, which focused on the matters just mentioned, was not “desultory.” (Cf. Wheeler, supra, 22 Cal.3d at p. 281.) Although the removal of all members of a certain group may give rise to an inference of impropriety (id., at p. 280), especially when the defendant belongs to the same group, the inference is not conclusive. (Sanders, supra, 51 Cal.3d at p. 500.) Considering all of the relevant circumstances (Wheeler, supra, 22 Cal.3d at p. 280), we cannot conclude from this record that the trial court erred. Defendant also argues that the trial court “abdicated its duties” under Wheeler by denying the motion without requiring the prosecutor to explain his challenges. However, the court had no occasion to ask for explanations unless and until it found a prima facie case of group bias. This case is thus unlike People v. Snow (1987) 44 Cal.3d 216, 226 [242 Cal.Rptr. 477, 746 P.2d 452], in which the trial judge “expressed serious suspicions that the prosecutor was using some of his peremptory challenges to exclude Blacks” but went no further, and People v. Hall (1983) 35 Cal.3d 161, 168 [197 Cal.Rptr. 71, 672 P.2d 854], in which the trial com! asked the prosecutor to explain his challenges but made no serious attempt to evaluate them. In short, the trial court here simply did not find a prima facie case. Because the record of voir dire supports that decision, we reject defendant’s claim of error. 2. Alleged gender bias. Shortly before we heard argument in this case, defendant asserted the new claim that the prosecutor challenged one prospective juror solely because of her gender. We reject the claim because it was not raised in the trial court. (People v. Hayes (1990) 52 Cal.3d 577, 605 [276 Cal.Rptr. 874, 802 P.2d 376] (Hayes).) The prosecutor exercised 11 peremptory challenges, all to female prospective jurors. The jury as sworn included six female and six male jurors. Defendant did not assert gender bias as a ground for his Wheeler motion. Instead, he argued that two challenges were motivated solely by racial bias and that eight challenges were motivated solely by bias against persons opposed to the death penalty. We have already discussed the first argument. The trial court correctly rejected the second argument because persons opposed to the death penalty do not make up a cognizable class for Wheeler purposes. (People v. Zimmerman (1984) 36 Cal.3d 154, 160-161 [202 Cal.Rptr. 826, 680 P.2d 776].) After the trial court denied the Wheeler motion, the prosecutor submitted a declaration to explain his reasons for challenging the eight jurors whom defense counsel had described as opposed to the death penalty. The prosecutor stated that he had challenged one prospective juror, Lyn V., not because of her views on capital punishment but because she “was a seductive looking female who [the prosecutor] felt might distract the attention of the male jurors.” Defendant interprets this statement as “an admission of purposeful gender discrimination.” In Hayes, supra, 52 Cal.3d at page 605, we held that a party may not challenge an opponent’s use of peremptory challenges for the first time on appeal. Defendant suggests three reasons why this rule should not apply to his case. None is persuasive. First, defendant mistakenly asserts that gender bias was not clearly recognized as an impermissible basis for the exclusion of jurors until the decision in United States v. De Gross ((9th Cir. 1990) 913 F.2d 1417, petition for rehearing en banc granted). To the contrary, whatever federal law may have provided at the time of trial, state law clearly permitted a defendant to challenge the exclusion of jurors based on gender. In Wheeler, supra, 22 Cal.3d 258, we did not limit our holding to claims of racial bias. Instead, we held that a claim of improper exclusion was proper whenever “the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.” (Id., at p. 280.) Moreover, our opinion left no reasonable doubt that women made up a cognizable group for the purposes of the representative cross-section rule because we expressly relied on opinions holding exactly that. (See Taylor v. Louisiana (1975) 419 U.S. 522, 533 [42 L.Ed.2d 690, 699-700, 95 S.Ct. 692]; cf. Ballard v. United States (1946) 329 U.S. 187, 191 [91 L.Ed. 181, 184-185, 67 S.Ct. 261], and Glasser v. United States (1942) 315 U.S. 60, 86 [86 L.Ed. 680, 707, 62 S.Ct. 457]; all cited in Wheeler, supra, 22 Cal.3d at pp. 267-270.) Next, defendant argues that it would have been futile at the time of trial to assert a claim based on the improper exclusion of a single juror. This may have been true under federal law because of Swain v. Alabama (1965) 380 U.S. 202 [13 L.Ed.2d 759, 85 S.Ct. 824]. Swain created a presumption that peremptory challenges had been properly exercised and permitted a defendant to rebut the presumption, and thus state a federal equal protection claim, only by “showing] the prosecutor’s systematic use of peremptory challenges . . . over a period of time” rather than just in a single case. (Id., at pp. 222, 227 [13 L.Ed.2d at pp. 773-774, 776].) The federal courts did not abandon the Swain rule until long after the trial in this case. (Batson, supra, 476 U.S. at pp. 93-98 [90 L.Ed.2d at pp. 85-89].) However, we had already rejected Swain as a matter of state law and held that a trial court must strike the jury if “any of the questioned peremptory challenges” could not be justified. (Wheeler, supra, 22 Cal.3d at pp. 282, 283-287, italics added.) Finally, defendant argues that the prosecutor’s decision to volunteer reasons for challenging Ms. V. makes the issue cognizable on appeal despite Hayes (supra, 52 Cal.3d at p. 605). However, the federal case on which defendant relies does not support the proposition. In Andrews v. Deland (10th Cir. 1991) 943 F.2d 1162, the Tenth Circuit merely held that the Swain presumption (i.e., that peremptory challenges have been properly exercised) does not apply when a prosecutor volunteers explanations. Thus, even under Swain a prosecutor who voluntarily offered explanations thereby authorized the trial court to inquire into their validity without requiring a showing of systematic discrimination over a period of time. (Andrews v. Deland, supra, 943 F.2d at pp. 1178-1179.) Because we had already rejected Swain as a matter of state law at the time of defendant’s trial (see Wheeler, supra, 22 Cal.3d at pp. 283-287), and because Wheeler expressly authorized trial courts to inquire into the validity of particular peremptory challenges (ibid.), Andrews v. Deland, supra, has no bearing on this case. Moreover, nothing in the Tenth Circuit’s opinion suggests that a prosecutor’s decision to volunteer explanations excuses a defendant from the ordinary obligation to raise claims of error in the trial court. Because defendant did not raise the claim below, it is waived. (Hayes, supra, 52 Cal.3d at p. 605.) B. Cross-sectional Representation/Ineffective Assistance Claim. Defendant next argues that the venire did not fairly represent the Hispanic population of Tulare County. He attributes the alleged underrepresentation to the trial court’s having excused a large number of prospective jurors for hardship. Defendant waived this claim by failing to raise the point below. (Code Civ. Proc., § 225, subd. (a)(1); see former § 1060, repealed by Stats. 1988, ch. 1245, § 21, p. 4155.) For purposes of the appeal, defendant has restated the claim as one of ineffective assistance based on counsel’s failure to challenge the panel. However, such a challenge would not have been meritorious. Under the federal and state Constitutions, a criminal defendant is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., Amend. VI; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 583-589, 99 S.Ct. 664] (Duren); People v. Harris (1984) 36 Cal.3d 36, 48-49 [201 Cal.Rptr. 782, 679 P.2d 433] (Harris).) The federal and state guarantees are coextensive, and the analyses are identical. (People v. Bell (1989) 49 Cal.3d 502, 525, fn. 10 [262 Cal.Rptr. 1, 778 P.2d 129] (Bell); e.g., Harris, supra, 36 Cal.3d at pp. 48-49.) “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren, supra, 439 U.S. at p. 364 [58 L.Ed.2d at p. 587]; see also Bell, supra, 49 Cal.3d at p. 525.) We need not dwell on the first two parts of the Duren test. Hispanic persons make up a distinctive group (Harris, supra, 36 Cal.3d at p. 51), and we shall assume for argument’s sake, without deciding the point, that the alleged underrepresentation of Hispanics was significant. According to census data, Hispanics made up 24.8 percent of the adult population of Tulare County. An examination of surnames indicates that Hispanics made up 15.8 percent of the venire and 9.6 percent of the jury pool after the court granted excuses for hardship. To satisfy the third part of the Duren test, a defendant must show that the claimed underrepresentation was “due to systematic exclusion of the group in the jury selection process.” (Duren, supra, 439 U.S. at p. 364 [58 L.Ed.2d at p. 587].) A defendant cannot carry this burden with nothing more than statistical evidence of a disparity. One must, in addition, show that the disparity is the result of an improper feature of the jury-selection process. (Bell, supra, 49 Cal.3d at pp. 528-529.) Defendant attempts to find an impropriety in the court’s treatment of the venirepersons’ hardship claims. Specifically, defendant asserts that the trial court applied a more lenient standard in excusing Hispanics than non-Hispanics. The assertion is critical to his argument. While an abuse of discretion in granting excuses for hardship might, in theory, “upset the demographic balance of the venire” (Wheeler, supra, 22 Cal.3d at p. 273), defendant cannot demonstrate systematic exclusion based upon the evenhanded application of a neutral criterion, such as hardship. (Bell, supra, 49 Cal.3d at p. 530.) In fact, the record does not support defendant’s assertion of impropriety or abuse of discretion. The court evaluated 364 claims of hardship, including 65 by Hispanics. Of these many instances, defendant has identified only three in which he believes the court applied a more lenient standard to Hispanics than to non-Hispanics. Of the three Hispanic venirepersons whose excusal defendant now questions, one thought that jury service would prevent her from being paid, one’s son had multiple doctor’s appointments, and one said that it would be hard to take the time off from work. Defendant compares these with three non-Hispanic jurors whom the court did not excuse. Of these, one planned a vacation that would end before the trial began, one speculated that she might not be paid but apparently declined the court’s invitation to pursue the matter with her employer, and one claimed that service on the jury would be a hardship for her employer but not for herself, since her job and income would not be in jeopardy. Nothing about these rulings, which appear quite ordinary, suggests an abuse of discretion. Defendant also restates his contention as one under former section 1059, which at the time of trial would have permitted him to challenge the jury panel based on “a material departure from the forms prescribed in respect to the drawing and return of the jury . . . .” (See former § 1059, repealed by Stats. 1988, ch. 1245, § 20, p. 4155.) Because defendant did not challenge the panel in the trial court, he again presents the claim as one of ineffective assistance of counsel. To fit the claim within section 1059, defendant characterizes the trial court’s apparently lenient standard for evaluating hardship claims as a violation of the Code of Civil Procedure, which authorizes the excuse of eligible persons only for “undue hardship.” (Code Civ. Proc., § 204, subd. (b); see former Code Civ. Proc., § 200, repealed by Stats. 1988, ch. 1245, § 1, p. 4140.) Defendant argues, citing People v. Buford (1982) 132 Cal.App.3d 288, 298-299 [182 Cal.Rptr. 904], that the Legislature did not intend “that every financial cost” be treated as undue hardship. It is true that the trial court granted an unusually large number of excuses for hardship. The court disapproved only 7 of 364 requests. We do not necessarily approve of such practices. (See People v. Thompson (1990) 50 Cal.3d 134, 158 [266 Cal.Rptr. 309, 785 P.2d 857].) Nevertheless, assuming for argument’s sake that the court thereby deviated from the statutory procedures governing jury selection, such a deviation constitutes reversible error only if it results in prejudice. (People v. Wright (1990) 52 Cal.3d 367, 398 [276 Cal.Rptr. 731, 802 P.2d 221]; People v. Langdon (1976) 54 Cal.App.3d 384, 391 [126 Cal.Rptr. 575].) To show prejudice, defendant merely repeats his argument to the effect that excuses for hardship unconstitutionally reduced Hispanic representation. This claim, as we have already explained, lacks merit. C. Claim of Mental Incompetence. Defendant contends that the trial court erred on two occasions by not ordering, sua sponte, a hearing on his competence to stand trial. (See Pate v. Robinson (1966) 383 U.S. 375, 385 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v. Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942] (Pennington); see also §§ 1367, 1368.) However, the incidents in question did not raise a reasonable doubt about his mental competence, and the contention thus lacks merit. Defendant claims the court should first have ordered a hearing, sua sponte, on the occasion of his motion for a continuance. Five days before jury selection was to begin, defense counsel informed the court that defendant was suffering from uveitis, an inflammation of the eyes, and could not see well. Defendant also reportedly suffered from other physical ailments such as headaches, dizziness, and tiredness. Defendant’s ophthalmologist testified that uveitis was usually a symptom of a more serious disease and that defendant needed tests and treatment. The ophthalmologist thought that defendant’s other ailments might have been due to anxiety over his medical condition. Counsel moved for a continuance because he feared that defendant’s condition would prevent him from effectively participating in the defense. At the conclusion of the hearing, the trial court continued the trial for approximately three months. Neither defense counsel nor anyone else suggested that defendant was mentally incompetent. Apparently defendant received appropriate treatment; no further complaint about his medical condition appears in the record. Defendant also argues that the court should have ordered a competence hearing, sua sponte, on the occasion of his motion for a mistrial or change of venue. The motion was based on apparent harassment by jail personnel during the jury-selection phase. Deputy sheriffs assigned to the Tulare County jail had sometimes refused, despite a court order, to permit a law clerk on the defense team to consult with defendant in a private room. On other occasions deputies had kept defendant unnecessarily in a crowded holding tank after court recessed rather than returning him immediately to his regular cell. As a result of these incidents defendant believed that he was “being punished by the staff at the jail.” At the hearing on the motion, defense counsel added that defendant was “angry” with counsel over the jail situation, “so agitated” that counsel “could hardly control him at several points,” and “so emotionally upset by what is going on and [the] treatment that he is receiving that he is not able to really effectively participate in his trial.” Counsel also asserted that his own ability to conduct voir dire was being impaired by defendant’s preoccupation with jail conditions. The trial court denied the motions for mistrial and change of venue but made additional orders regarding defendant’s confinement. Once again, there was no suggestion that defendant was mentally incompetent. The principles that apply to defendant’s claim are well settled. A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. (Pennington, supra, 66 Cal.2d at p. 518; People v. Stankewitz (1982) 32 Cal.3d 80, 93 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476]; see also Pate v. Robinson, supra, 383 U.S. at p. 385 [15 L.Ed.2d at p. 822].) Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. (People v. Jones (1991) 53 Cal.3d 1115, 1152 [282 Cal.Rptr. 465, 811 P.2d 757] (Jones).) Applying these principles to the record before us, we cannot say as a matter of law that the evidence raised a reasonable doubt as to defendant’s mental competence. A defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, italics added.) The circumstances underlying defendant’s motion for a continuance indicated that he needed medical attention, and those underlying his motion for a mistrial indicated that the conditions of his confinement were unsatisfactory. However, nothing about either incident remotely suggested that he was mentally incompetent. Thus, the court was not required to order a hearing. Later in the proceedings, defense counsel expressly questioned his client’s competence. During the penalty phase, at the close of the People’s case in aggravation, defendant decided that he did not want counsel to present mitigating evidence. Counsel explained the matter to the court in these words: “[Defendant] still does not want me to argue for life imprisonment, nor present any evidence in mitigation. And he—he wants the death penalty. If he were to testify and testifies, he would tell the jury so. We are still in disagreement on that matter. He’s told me in fact that he wants nothing more to do with the jury or the judge. He prefers to sit in the tank while the penalty phase was to [proceed].” Viewing his client’s desire as evidence of incompetence, counsel asked the court to conduct a competence hearing. The court declined. Under section 1368, if “a doubt arises in the mind of the judge” as to the defendant’s mental competence, the judge must “state that doubt in the record” and solicit defense counsel’s opinion on the matter. (§ 1368, subd. (a).) In such a case, “[i]f counsel informs the court that he believes the defendant is or may be mentally incompetent,” the court must order a hearing. (§ 1368, subd. (b).) Because the court in this case did not declare a doubt, section 1368 did not require the court to conduct a hearing based solely on counsel’s opinion. This is not to say that counsel’s opinion had no importance. To the contrary, the court must order a hearing whenever there is substantial evidence of incompetence (Pennington, supra, 66 Cal.2d at p. 518), whatever the source (Drope v. Missouri (1975) 420 U.S. 162, 180 [43 L.Ed.2d 103, 118, 95 S.Ct. 896]). In making this decision the court must consider all of the relevant circumstances (ibid.), and counsel’s opinion is undoubtedly relevant. However, counsel’s opinion was that his client’s apparent preference for the death penalty, by itself, constituted substantial evidence of mental incompetence. The court correctly rejected that position. (People v. Guzman (1988) 45 Cal.3d 915, 963-965 [248 Cal.Rptr. 467, 755 P.2d 917].) All of the other relevant circumstances, including defendant’s anxiety over his ophthalmological problem and his anger over jail conditions, did not compel a different result. The court had no reason to believe that these other circumstances were due to mental incompetence rather than to the specific problems of which defendant had complained. D. Unreported Conferences. The stenographic record in this case does not include three bench conferences and one conference in chambers. Although the trial judge conducted a hearing to settle the record, he declared himself unable to make findings on the matter for lack of an independent recollection of the unreported proceedings. Defendant contends that the omissions from the record require the judgment to be reversed. In opposition, the Attorney General argues that defendant waived the point by failing to request a reporter at the proceedings in question. We reject the contention not because of a waiver, but because defendant has not shown that the omissions were prejudicial. The trial in this place took place before the enactment of section 190.9 (added by Stats. 1984, ch. 1422, § 2, p. 4994), which requires that all proceedings in capital cases be transcribed. Regardless of that section a defendant is entitled to a record that is adequate to permit meaningful appellate review. (People v. Moore (1988) 201 Cal.App.3d 51, 57 [248 Cal.Rptr. 31].) However, it is defendant’s burden to show that deficiencies in the record are prejudicial. As we said in People v. Chessman (1950) 35 Cal.2d 455, 462 [218 P.2d 769, 19 A.L.R.2d 1084], “[i]nconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential.” (Ibid.) The Penal Code is to the same effect: “After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.” (§ 1258; see also §§ 960, 1404.) The omissions in this case are not prejudicial because the record is adequate to permit defendant to argue each of the points purportedly addressed in the unreported conferences. We have already mentioned the first such conference, which occurred during jury selection. Counsel claims to have informed the court at that conference that defendant was emotionally upset over conditions in the Tulare County jail and that defendant’s preoccupation with the matter was impairing counsel’s ability to conduct voir dire. (See p. 1162, fn. 9, ante.) Counsel argues that he asserted defendant’s constitutional right to be mentally present at trial only in the unreported proceeding. However, we do not read the record so grudgingly. On the preceding day, counsel argued on the record that harassment at the jail was “interfering with [defendant’s] mental state and his approach to this trial, which is really in effect denying him a fair trial.” While the claim lacks merit (see p. 1161 et seq., ante), it is clear that counsel sufficiently preserved the point for appellate review. The same is true of each of the remaining unreported conferences. In the second conference, defense counsel claims that he moved under Evidence Code section 352 to strike testimony by Albert Fried about his mother’s physical appearance after she was attacked. In the third conference, counsel claims to have objected under the same statute to the prosecutor’s cross-examination of defendant about defendant’s statement that he had once sold stolen coins to a “fence.” Each of these objections appears on the record. Thus, the record is adequate to permit review even though defendant has not renewed the claims on appeal. In the fourth conference, counsel moved in limine to restrict cross-examination of a proposed expert witness for the defense. The expert, a psychiatrist, was aware of matters in defendant’s criminal record that the court had decided not to admit as circumstances in aggravation. Counsel asked the court to bar cross-examination on such matters, but the court denied the motion. Here, too, the record is adequate for review (see p. 1183, fn. 21, post) because the court and counsel later summarized the unreported conference on the record. Defendant also argues that, in view of the transcript’s omissions, the United States Constitution requires the judgment to be reversed. However, there is no federal requirement that all proceedings be transcribed. (See Adkins v. Bordenkircher (4th Cir. 1982) 674 F.2d 279, 283 [14th Amend.]; Stephens v. Zant (5th Cir. 1980) 631 F.2d 397, 402-404, rehg. den. and opn. mod. (1981) 648 F.2d 446, cert. den. 454 U.S. 1035 [70 L.Ed.2d 480, 102 S.Ct. 575] [8th Amend.].) Under the Fourteenth Amendment, the record of the proceedings must be sufficient to permit adequate and effective appellate review. (Griffin v. Illinois (1956) 351 U.S. 12, 20 [100 L.Ed. 891, 899, 76 S.Ct. 585, 55 A.L.R.2d 1055]; Draper v. Washington (1963) 372 U.S. 487, 496-499 [9 L.Ed. 2d 899, 905-907, 83 S.Ct. 774].) Under the Eighth Amendment, the record must be sufficient to ensure that there is no substantial risk the death sentence has been arbitrarily imposed. (Stephens v. Zant, supra, 631 F.2d at pp. 402-404; see also Dobbs v. Kemp (11th Cir. 1986) 790 F.2d 1499, 1514.) The record in this case meets these standards. E. Motion to Change Venue. Defendant moved before trial to change venue on the ground that news coverage of the Fried killing would make it difficult to obtain a fair trial. The trial court denied the motion. On appeal, defendant urges that the court erred and that the failure to change venue caused actual prejudice. As a preliminary matter, we reject the People’s contention that defendant has waived this claim. Because the trial court initially denied the motion without prejudice, defendant needed to renew it at the close of voir dire in order to preserve the issue for appeal. (People v. Hoover (1986) 187 Cal.App.3d 1074,1085 [231 Cal.Rptr. 203].) In fact, defendant did renew his motion on the final day of voir dire, a few hours before the jury was sworn. The People argue that defendant, in renewing the motion, emphasized his problems at the jail rather than the extent of pretrial publicity. (See p. 1162, ante.) However, the record does not conclusively demonstrate that the renewed motion was intended or understood as limited to that ground. Therefore, this issue cannot properly be resolved on a theory of procedural default. Under section 1033, the trial court must grant a motion to change venue if “there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” In making this determination, a court considers “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.” (People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal.Rptr. 679, 623 P.2d 240].) The charged offenses in this case were obviously serious. However, every capital case involves a serious charge. While this factor adds weight to a motion to change venue, it does not in itself require a change. (People v. Cooper (1991) 53 Cal.3d 771, 806 [281 Cal.Rptr. 90, 809 P.2d 865] (Cooper); People v. Jennings (1991) 53 Cal.3d 334, 360 [279 Cal.Rptr. 780, 807 P.2d 1009] (Jennings)) Defendant claims that his status as a nonresident also weighed in favor of changing venue because, in comparison with the resident victims, it cast him in an unfavorable light. This argument about status, however, is of little weight because there is no indication that either defendant or his victims were prominent in the community. Defendant also argues that his race gave him an unfavorable status in the community. The 1980 census describes Hilare County’s adult population as 77 percent White and 1 percent Black. However, both the trial court and defense counsel questioned prospective jurors about racial bias, and the court excused a prospective juror for cause on that basis. Defendant did not argue below, and does not argue here, that any of the jurors or alternates actually sworn should also have been excused for racial bias. The size of Tulare County, which we have recognized is not a small community, does not weigh substantially in favor of a change of venue. (People v. Hamilton (1989) 48 Cal.3d 1142, 1158-1159 [259 Cal.Rptr. 701, 774 P.2d 730] (Hamilton).) With 253,000 inhabitants at the time of trial, Hilare County ranked 20th among California’s 58 counties in population. (Ibid.; see also People v. Whalen (1973) 33 Cal.App.3d 710, 716 [109 Cal.Rptr. 282].) As we have previously observed, most recent successful venue motions have involved communities with substantially smaller populations. (See Hamilton, supra, 48 Cal.3d at p. 1158, and cases cited therein.) In short, the gravamen of defendant’s motion, as well as its asserted basis, was the extent of pretrial publicity. In support of his motion, defendant showed that the local media had given significant attention to the crimes at the time of their commission and in the months before trial. Newspapers had reported that defendant’s half brother had been found guilty as an aider and abettor after implicating defendant as the actual killer. Defendant also presented a survey of the community at large on the question of exposure to pretrial publicity. According to the defense expert who conducted the survey and interpreted its results, “6.7% of the 120 respondents interviewed had knowledge of the defendants; another 7.5% were not sure. However, when given more details about the incident of the Frieds’ case, 40 (or 33.3%) remembered the occurrence.” Defendant supplemented this showing with questionnaires submitted to 168 of the prospective jurors who had been excused for hardship. Of these, 60 had heard of the Fried killing. However, only 20 had heard that defendant was to stand trial, and only 10 had heard of the trial of defendant’s half brother. The remainder checked a box labelled “not sure” or chose not to respond. Defendant argues that the results of these surveys weighed heavily in favor of changing venue. However, the degree of exposure to publicity that defendant claims was far lower than in other cases in which a change of venue was not required. (See, e.g., Jennings, supra, 53 Cal.3d at pp. 359-363 [72 percent of sample recalled the crime, and 31 percent believed the district attorney had a very strong case against the defendant]; People v. Coleman (1989) 48 Cal.3d 112, 135 [255 Cal.Rptr. 813, 768 P.2d 32] (Coleman) [46.3 percent recalled the crime, and 31.4 percent thought the defendant definitely or probably guilty].) Although defendant predicted in limine that pretrial publicity would affect his ability to obtain a fair trial, on appeal we must consider that forecast “in conjunction with the actual selection of the jury.” (Coleman, supra, 48 Cal.3d at p. 135.) This is because posttrial review of an order denying a motion to change venue is retrospective. Thus, even if a trial court were to err in denying a motion to change venue, the showing of error would not in itself justify reversal on appeal. The defendant must also demonstrate that, in view of what actually occurred at trial, it is reasonably likely that a fair trial was not in fact had. (People v. Edwards (1991) 54 Cal.3d 787, 807 [1 Cal.Rptr.2d 696, 819 P.2d 436] (Edwards); see also Cooper, supra, 53 Cal.3d at pp. 805-806; People v. Harris, supra, 28 Cal.3d at p. 949.) The jurors and alternates sworn to try the case stated that they could and would decide it impartially, based on the evidence presented in court. In view of the survey results, defendant argues that we should view such statements with skepticism. To be sure, the jurors’ assertions of impartiality do not automatically establish that defendant received a fair trial. However, a review of the entire record of voir dire may still demonstrate that pretrial publicity had no prejudicial effect. (Coleman, supra, 48 Cal.3d at p. 135; see also Jennings, supra, 53 Cal.3d at pp. 360-361; People v. Harris, supra, 28 Cal.3d at p. 949.) The record of voir dire in this case is particularly helpful in assessing prejudice because the trial court thoroughly explored the matter of pretrial publicity with each prospective juror and excused those who had significant exposure. In addition, defense counsel supplemented the court’s questions with his own. Defendant now argues that counsel’s questioning on this subject was ineffective. However, the court’s thorough coverage of the matter left little for counsel to do. Moreover, counsel did ask additional questions about publicity whenever a prospective juror’s responses to the court’s questions suggested that there might be some point to further inquiry. Defendant interprets the voir dire testimony of two jurors and two alternates as indicating some exposure to news reports about the case. As to all but one alternate, however, the record does not necessarily support defendant’s interpretation. Juror Main, asked whether he had read or heard anything about the killing, testified: “There are so many that I hear and see on television that I don’t recall that one particularly.” Juror Warren, asked whether he had heard about the trial of defendant’s accomplice, testified: “It seems like the name Malone is familiar, but I don’t know what the connection is.” Warren did not recall any publicity. Alternate Hubler’s testimony was similar: “I have probably heard about them [defendant’s and Malone’s trials] on the news, but it is nothing that I dwelled on or that I remembered.” Hubler did not recall anything about the case. Of all the jurors and alternates, only alternate Babb clearly remembered hearing about the Fried killing. She had read in a newspaper that “an elderly couple had been robbed and the man had been killed.” However, Babb did not remember anything else about the case and had no opinion on defendant’s guilt or innocence. In summary, voir dire demonstrated the following about the impact of pretrial publicity on the jury: Ten of the jurors and one of the alternates had no recollection whatever of publicity. There was the barest possibility of exposure for jurors Warren and Main and alternate Hubler, but none remembered anything about the case. Alternate Babb had heard about the crime but remembered nothing other than that an elderly couple had been robbed and the man killed. Neither of the alternates was called upon to serve as a juror. On this record, we cannot hold that there is a reasonable likelihood that defendant did not have a fair and impartial trial. Vague recollections of news reports by a few jurors do not compel a change of venue. Indeed, a much greater degree of exposure to pretrial publicity would not necessarily have compelled the court to order a change. As courts have recognized, “ ‘[i]t is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” (People v. Hams, supra, 28 Cal.3d at pp. 949-950, quoting Irvin v. Dowd (1961) 366 U.S. 717, 722-723 [6 L.Ed.2d 751, 755-756, 81 S.Ct. 1639].) Under these guidelines, the effect of pretrial publicity on the jury in this case was insignificant. Not only did the jurors and alternates lack an “ ‘impression or opinion of the merits of the case’ ” (People v. Harris, supra, 28 Cal.3d at p. 950), all but one alternate lacked any pertinent knowledge. Thus, the results of voir dire do not indicate a reasonable likelihood that defendant did not in fact receive a fair trial. Because defendant has offered no substantial reason to doubt this conclusion, we reject his claim that the trial court’s failure to change venue requires reversal of the judgment. F. Denial of Continuance. Defendant argues that the trial court abused its discretion by denying his request for a continuance at the conclusion of the guilt phase. Defendant wished to locate an expert witness and to reopen his case-in-chief for the expert’s testimony, assuming one could be found. The argument lacks merit because defendant did not show good cause for a continuance. At the time defendant was arrested, there was a pair of black and white, wing tip shoes in his car. Five witnesses had seen defendant with such shoes. During the People’s case-in-chief, two pathologists and a criminalist testified that a curlicue pattern of bruises on the deceased victim’s face and neck could have been made by the shoes’ decorative perforations. While the bruises reflected the shoes’ exact pattern, no expert could positively attribute decedent’s bruises to the particular shoes. Defense counsel’s cross-examination emphasized the experts’ uncertainty. In addition, defendant testified that the shoes were not his. The People rebutted defendant’s testimony by recalling the arresting officers. According to the officers, defendant was not wearing shoes when they stopped him and asked him to get out of his car. Because the sidewalk was hot, defendant asked an officer to retrieve his shoes from the back seat of his car. Those shoes were the shoes in evidence. After the prosecution completed its rebuttal, the defense requested permission to reopen its case-in-chief for expert testimony about the connection between decedent’s injuries and the shoes. Based on counsel’s representation that he was expecting a witness to arrive “at any time,” the court recessed instead of beginning with closing argument. A few hours later, however, defense counsel informed the court that the pathologist he had wished to call was “unable to testify on [defendant’s] behalf’ and that efforts to locate a substitute had not been successful. To account for the delay in presenting such testimony, counsel explained that he had made “a tactical decision during the defense case in chief’ not to call an expert because counsel had felt the prosecution’s expert testimony did not require rebuttal. However, the officer’s rebuttal testimony had caused counsel to change his mind. Counsel requested a 24-hour continuance. The court denied the request, noting that it might have been unintentionally misled about the purported witness’s availability and that there was, in fact, no witness to call. The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. (People v. Laursen (1972) 8 Cal.3d 192, 2