Full opinion text
Opinion KENNARD, J. Defendant Dennis Mayfield appeals from a judgment of death upon his conviction by jury verdict of one count of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) with the special circumstance that the murder victim was a peace officer engaged in performing his duties and that defendant intentionally killed the officer even though defendant knew, or reasonably should have known, that the victim was a peace officer engaged in performing his duties (§ 190.2, subd. (a)(7)). The jury also convicted defendant of two counts of attempted murder (§§ 187/664), one count of kidnapping for extortion (§ 209, subd. (a)), one count of grand theft from the person (§ 487, former subd. (3) [now subd. (c)]), and two counts of assaulting a peace officer with a deadly weapon (§ 245, subd. (b)). As to each of these offenses except grand theft, the jury found, for the purpose of sentence enhancement, that defendant had been armed with and had personally used a firearm (§§ 12022, subd. (a), 12022.5). The jury also found that defendant had personally and intentionally inflicted great bodily injury on the victim of the kidnapping count and one of the attempted murder counts (§ 12022.7). After the jury returned its guilt verdicts, the trial court found, for the purpose of sentence enhancement, that defendant had two prior felony convictions (§ 667, subd. (a)). The issue of penalty for the first degree murder with special circumstances was tried to the jury, which returned a penalty verdict of death. The trial court denied the automatic motion to-modify penalty (§ 190.4, subd. (e)) and sentenced defendant to death on the murder count, to life imprisonment without possibility of parole on the kidnapping for extortion count, and to an aggregate prison term of 20 years on the remaining counts and enhancement allegations, with a restitution fine of $10,000. This appeal from the judgment of death is automatic. (§ 1239, subd. (b).) We shall affirm the judgment in its entirety. I. Facts and Proceedings Rialto Police Sergeant Gary Wolfley, while in uniform, was fatally wounded by a bullet from his own service revolver during an encounter with defendant at the rear of a gasoline station at approximately 1:40 a.m. on March 3, 1986. Defendant fled the area with Sergeant Wolfley’s revolver, pursued by other officers. Defendant fired two shots at the pursuing officers, wounding Officer Joseph Cirilo. A short time later, defendant dove through the living room window of a residence and shot one of the occupants, William Haverstick, who had gotten up to investigate the commotion. Police surrounded the residence. Defendant surrendered to the police at 6:40 a.m. At trial, the prosecution maintained that defendant had disarmed Sergeant Wolfley to avoid arrest and then had deliberately shot and killed him. The defense maintained that Sergeant Wolfley had shouted racial slurs and verbal threats while pointing his gun at defendant’s head; that defendant, fearing for his life, had grabbed the officer’s hands; and that the gun had fired accidentally twice during the ensuing struggle. A. Prosecution’s Guilt Phase Case-in-chief On the evening of March 2, 1986, Tyrone Thomas went to an apartment complex in San Bernardino to purchase cocaine. There, a man grabbed Thomas, pulled him into an apartment, demanded that Thomas repay a debt for an earlier cocaine purchase, took all of Thomas’s money, and threatened Thomas with a gun. Upon leaving this apartment, Thomas formed the impression that some men who were standing outside the apartment complex intended to kill him. Thomas ran from the area and eventually contacted San Bernardino Police Officer Craig Armstrong, who drove Thomas to Rialto, where Thomas lived, leaving him in a commercial area. Thomas was still in fear of his life, believing that some of the men might have followed him from San Bernardino. He ran to a gasoline service station with a minimart on the northwest comer of Foothill Boulevard and Eucalyptus Avenue, and he asked the clerk, Carlos Price, to telephone the Rialto police. Thomas told Price that he had been robbed and that some men were after him. It was then between 1:00 and 1:30 a.m. on March 3, 1986. Price telephoned the police, stating: “Ah, we have a black male here that says two other black guys are after him and he’s hiding in the store.” The police dispatcher promised to send someone. While waiting for the police to arrive, Thomas remained inside the minimart portion of the station. A short while later, defendant arrived at the service station with Howard Bell, who was driving his mother’s car, which Bell parked by the pump nearest the service station. Bell had agreed to give defendant a ride to the service station so that defendant could purchase cigarettes, in exchange for which defendant agreed to buy some gasoline for Bell’s mother’s car. Bell and defendant entered the minimart together, and defendant purchased the cigarettes and gasoline. Price told them that if they “had anything on them” such as an open container of beer, they should “get rid of it” because he had called the police. Thomas believed that he had seen Bell earlier at the apartment complex in San Bernardino, and he decided that Bell and defendant intended to kill him. When defendant put his hand into the pocket of his jacket, Thomas believed he saw the outline of a gun. Thomas ran outside just as a patrol car pulled up behind Bell’s mother’s car. The driver of the patrol car was Sergeant Wolfley; riding with him was his wife, Candette Wolfley, who was a police officer for the City of Fontana. Unlike her husband, she was not on duty or in uniform. With his hands raised, Thomas ran up to Sergeant Wolfley, who grabbed Thomas, pushed him across the hood of the patrol car, and pat-searched him for weapons, finding none. Thomas told Sergeant Wolfley that two men in “the store” were “after” him, that they were “going to kill” him, and that “the guy in the coat” had a pistol. Thomas would not stand still, kept looking around him, appeared to be badly frightened, and looked as if he “possibly was under the influence of a narcotic.” As Thomas was talking to Sergeant Wolfley, defendant and Bell left the minimart. Bell began pumping gasoline into his mother’s car, while defendant walked over to a telephone booth in front of the service station and picked up the receiver. Speaking to Sergeant Wolfley, Thomas said: “Don’t let them get away.” The prosecution witnesses gave somewhat varying accounts of what happened next. According to Thomas, Sergeant Wolfley started walking toward the telephone booth. Defendant put down the receiver and walked away from the booth at a normal pace. Sergeant Wolfley told defendant to “Stop.” Defendant did not stop but continued walking along the west side of the service station and out of Thomas’s view. Sergeant Wolfley then drew his service revolver and pointed it in the direction taken by defendant. Thomas looked away and when he looked back, he could see neither Sergeant Wolfley nor defendant. According to Price, who observed events from inside the minimart by looking through its windows, defendant was walking toward the restrooms on the west side of the service station. After defendant went around the southwest comer of the building, Sergeant Wolfley drew his gun and ran after defendant. Defendant then began to run. They both disappeared from Price’s view. Price could not remember whether he heard Sergeant Wolfley say anything to defendant. When Price last saw defendant and Sergeant Wolfley, they were about 20 feet apart. According to Bell, Sergeant Wolfley called Bell over to the patrol car and asked him who he was with. Bell turned and looked toward defendant. As he did so, defendant began to run from the phone booth toward the west side of the service station and Sergeant Wolfley drew his service revolver and called out to defendant to “Stop” or “Halt.” Defendant “paused” or slowed almost to a standstill on Sergeant Wolfley’s command and turned toward Sergeant Wolfley, who was running toward defendant with the gun in his extended hand pointed straight at defendant. Defendant had no weapons in his hands, made no threatening gestures, and said nothing. When the distance between Sergeant Wolfley and defendant was reduced to about five feet, defendant backed away from Sergeant Wolfley, and the two disappeared from Bell’s view around the west side of the service station. When he last saw them, Sergeant Wolfley and defendant were both walking, not running. According to Candette Wolfley, Sergeant Wolfley met Bell midway between the patrol car and Bell’s mother’s car. Their contact lasted only one or two seconds, after which Sergeant Wolfley looked toward the pay phones. Defendant was just leaving the pay phones, walking toward the west side of the service station. Sergeant Wolfley began walking toward defendant, saying, “Stop, come here, I want to talk to you.” Instead of complying, defendant quickened his pace and continued to walk away from Sergeant Wolfley, out of Candette Wolfley’s view. Sergeant Wolfley again said, “Stop, I want to talk to you.” When he reached the southwest comer of the building, Sergeant Wolfley drew his service revolver, “took a full combat stance,” and said, “Freeze.” Sergeant Wolfley remained stationary for “less than a second,” then ran in the direction defendant had taken, out of her sight. She heard the sound of Sergeant Wolfley’s voice coming from behind the building; the tone was firm and commanding, but she was unable to distinguish the words. While they were both in her sight, Sergeant Wolfley was never closer to defendant than 15 to 20 feet, and she never saw defendant walking backwards. After an interval that Thomas estimated to be three minutes, Price five minutes, Bell between thirty seconds and one minute, and Candette Wolfley four to seven seconds, there was the sound of gunfire from behind the service station. Thomas and Price each heard two shots, two or three seconds apart. Bell heard a single shot. Candette Wolfley could not recall whether there was more than one shot. A few seconds after the gunfire, defendant ran from behind the station, “staggered” or “stumbled” sideways, and then ran north on Eucalyptus Avenue. Candette Wolfley grabbed a shotgun and ran toward the rear of the service station, where she found her husband lying on the ground on his stomach, bleeding profusely. His service revolver was missing and his portable radio, or handy-talkie, was not on his belt. Sergeant Wolfley’s handy-talkie was later found “near the northwest comer of the station.” Nearby was a watch cap that defendant had been wearing and what was variously described as a kitchen knife or butcher knife. In the Sunstone Apartments on Eucalyptus Avenue, Curtis Alan Corbin had been looking out his bedroom window at the service station. He saw a uniformed officer walking around the station toward a Black man who was 20 to 25 feet in front of him. Corbin heard some shouting but was unable to make out the words. The officer approached to within two to three feet of the Black man. Although Corbin could see only the upper bodies of the two men, the movements of the Black man’s upper arms and shoulders caused Corbin to think that he was fumbling in his pants pockets. Corbin could not see whether the officer had anything in his hands. The officer said something in a “demanding” tone. Corbin looked away briefly; when he looked back, he saw two muzzle flashes and heard two shots. In a house immediately north of the service station, William Judevine was awakened by a voice yelling “Halt” followed by the sound of a struggle, consisting of the noises of scuffling or shuffling feet and muffled grunts. The noises were coming from the area between the service station building and Judevine’s house. The stmggling noises lasted six to seven seconds and ended with the sound of a gunshot, followed five seconds later by a second gunshot. Then there was the sound of someone mnning away. Walking to the window of the kitchen, he looked out and saw a police officer lying on the ground with a woman in civilian clothes next to him, speaking into a walkie-talkie. Another officer joined her within seconds. Rialto Police Officer Joseph Cirilo, who was then on duty in a marked patrol car, was driving toward the service station when he heard a series of radio messages that Candette Wolfley sent from the scene of the shooting. Hearing Candette Wolfley say that “he” was “mnning northbound,” Cirilo turned north onto Eucalyptus Avenue with his spotlight on. When he reached the driveway to the Sunstone apartment complex, a shot was fired that shattered the front windshield of Cirilo’s patrol car, wounding him on the hand. Cirilo put the patrol car in reverse and backed up 10 to 15 feet. He then saw a person whom he identified at trial as defendant. With a revolver in his hand, defendant was mnning northbound on the west side of Eucalyptus Avenue, just north of the driveway to the Sunstone Apartments. Cirilo drove after him, followed closely by Rialto Police Corporal Ruschel Pierson in another patrol car. Defendant stopped, looked back at Cirilo and Pierson, and fired the gun toward them. Defendant then continued mnning northbound to the comer of Eucalyptus Avenue and Grove Street. Defendant turned west on Grove, out of Cirilo’s view. In the Sunstone Apartments, James Prendergast was awakened by the sound of two gunshots, two or three seconds apart. Approximately 15 seconds later, he heard 2 more shots “back to back” that sounded like they were coming from right outside his bedroom window. Looking out the window, he saw two police cars going northbound on Eucalyptus. A few seconds later, he saw a man he identified as defendant come around the comer of the apartment building holding a revolver in his hand. Defendant hunched over as if trying to catch his breath, put the revolver in his jacket, then walked away through the apartment building. Curtis Corbin also saw defendant outside the Sunstone Apartments. Corbin went outside after hearing a total of four shots. Defendant was in the driveway of the Sunstone Apartments, “running as fast as he could.” Defendant fell down and a gun “flew out of his right hand,” landing about two feet from where defendant came to rest on the ground. Defendant picked up the gun and ran away. West of the Sunstone Apartments was an open field. San Bernardino Deputy Sheriff Jay Blankenship, near the southwest comer of this field, was scanning the area with binoculars when he saw a man about 50 yards to the east behind an old motel. The man started to walk northwest through the field holding an object in his right hand that appeared to be a gun. Using a portable radio, Blankenship broadcast: “If there’s an officer crossing the field, identify.” He repeated the message two or three times without receiving any response. The man was then about halfway across the field and 60 to 70 yards away. Blankenship yelled: “Halt, Sheriff’s Office.” The man “immediately started running.” Blankenship ran after the man but soon lost sight of him. Along the western edge of the field, San Bernardino Deputy Sheriff Joanne Hensley had stationed herself behind a warehouse on Acacia Avenue. A few seconds after hearing Deputy Blankenship’s radio calls (“If there’s an officer crossing the field, identify”), Hensley saw an adult Black male moving very slowly in a crouched position along a dirt roadway between the field and the back of the warehouse. She yelled: “Halt, police.” The man paused, then “made a slight turn” toward a house that was south of the warehouse. Hensley pulled the trigger on her rifle, which she had aimed at the man. She heard a “click” sound as the rifle’s hammer stmck a cartridge, but the rifle did not fire. Hensley racked another round into the chamber as the man ran full speed toward the house. She aimed at the man and again pulled the trigger. The rifle fired, but the bullet missed the man and struck the frame of a large plate glass window just as the man dove head first through the glass and into the house. The sound of breaking glass in the living room awakened William Haverstick, who was sleeping in an adjacent bedroom. Haverstick jumped out of bed and opened the bedroom door; he saw a man he identified as defendant standing directly outside. Defendant immediately shot Haverstick, the bullet entering his upper right thigh. As he collapsed, Haverstick fell backward, pivoting against the bedroom door and forcing it shut; he came to rest sitting on the bedroom floor with his back against the door. Anthony Terry Fifelski, sleeping in a bedroom behind the garage, was also awakened by a loud noise. He put on a robe and walked into the main portion of the house. He found the living room window broken. He called out, “Bill.” He heard William Haverstick calling, “Get out of the house. There’s robbers in the house. Call the police.” Fifelski ran out the front door to the front yard and started yelling for the police. Someone said, “Don’t say nothing.” Turning, Fifelski saw a Black man in the front doorway pointing a gun at him. Fifelski was then called and led away from the house by police officers. Deputy Blankenship, standing nearby, saw a door on the east side of the house open, and “heard a male voice yelling out that he had hostages and to back off.” Defendant pushed his way into Haverstick’s bedroom, dragged Haverstick out of the doorway, and started rummaging through a desk in the bedroom. Defendant asked Haverstick if he had a gun. Haverstick told defendant he had only an old shotgun that had been dismantled and was then in the garage. Defendant started making calls from the telephone in the bedroom. During the next four hours, until his surrender, defendant was engaged on the telephone most of the time. Haverstick overheard one of defendant’s telephone conversations that Haverstick summarized this way: “. . . he was saying that—words to the effect ‘the police officer started harassing me.’ All he went in there for was a pack of cigarettes and to buy some gasoline, and the police officer started harassing him. ... He said he just tried to get away from him and started running, and the police pulled a gun on him and he just took it away from him.” The house was quickly surrounded by officers from various law enforcement agencies, and a sheriff’s helicopter flew over the area and illuminated it with a powerful spotlight. Defendant threatened to shoot “the hostage” if the helicopter was not withdrawn. The helicopter was removed and the sheriff’s “SWAT” team was brought in. During a telephone conversation with police officers, defendant kicked Haverstick twice, once in the thigh and once in the groin, so that Haverstick would scream and the officers hearing the scream would know he was still alive. But defendant also assisted Haverstick in preparing a tourniquet for his leg, brought him cigarettes to smoke, and assisted him into bed when he said he thought he was going to pass out. Fifelski gave Rialto police officers the telephone number of the residence. When they established telephone contact with defendant, defendant said that he had a hostage, that he wanted to take the hostage with him and leave in one of the cars outside the residence, and that if anyone shot at him, he would kill the hostage. Somewhat later and apparently referring to the shooting of Sergeant Wolfley, defendant had this exchange with a sheriff’s officer: Officer: “So you need a car, huh?” Defendant: “—I mean, like, like ya know, I just don’t know why, ya know, I got rushed like I did, that’s all. And, ya know, somebody puttin a gun in my face ain’t cool. If he ain’t gonna use it, he shouldn’t of pulled it out.” Officer: “That’s true.” Defendant: “Ya know, so that gave me proper action to take it from him.” A hostage negotiation team was brought in, headed by San Bernardino Sheriff’s Sergeant Mike Stodelle. Defendant said he would drive Haverstick to the hospital and surrender there. Defendant’s cousin Yvonne Hester joined the negotiations and offered to drive defendant and Haverstick to a hospital where Haverstick could be treated. Defendant said, “I’m gonna take him to the hospital—that’s the only way I’m comin outa this door. . . . And when I get to the hospital, and there’s enough people around, they can see me get arrested.” During this part of the conversation, Hester questioned defendant about what had occurred. Defendant admitted that he had “fired five shots already” and that “two of those shots went straight to—at the police.” Asked by Hester how many policemen he had shot, defendant replied “Just the one.” Defendant also said that when he “came out the store” he saw the police car arrive. He continued: “I went to the telephone, . . . and then on my way back, you see I heard him sayin, ya know, who’d you come here with . . . and then I turned around and ah, I tried to leave .... And he pulled his gun out—okay—and said put your hands up, and I said for what? He says put your hands up or I’ll blow your head off.” Asked by Hester why he “didn’t just put [his] hands up,” defendant replied, “Cause I didn’t do nothing.” Somewhat later, speaking to his father, defendant said: “This police put the gun in my face and I just took it from him.” Defendant talked about shooting himself and admitted that he knew he would be going to “the penitentiary.” He offered to surrender at the house if Hester was where he could see her. When told that his father, Roy Mayfield, was nearby, defendant asked that his father be brought to the front of the house. “With my daddy out there, I know I’m not gonna get shot.” “If my dad is in front of the house, I’ll come out.” Defendant’s father was brought to the front of the house. As instructed, defendant tossed Sergeant Wolfley’s gun through the broken living room window onto the front lawn. He then walked outside with his hands on his head and lay facedown on the ground. Deputy Emmerson then placed handcuffs on defendant and brought him to Deputy Stein’s patrol car. When Deputy Stein asked defendant to be seated in the patrol car, defendant replied: “Can’t I just stand here? I’m just scared. I’m not really a bad guy. You can ask Bill, the guy I shot. He can tell you I tried to help him. It’s just that when I entered the house he startled me, so I shot him.” Defendant asked how “the officer” was doing. When Deputy Stein did not reply, defendant asked: “How’s the officer I shot.” Deputy Stein replied that the officer had been taken to the hospital. Defendant then told Deputy Stein that “he had to do it, he didn’t want to go back to jail.” Defendant said: “I’ve been there too many times before. When I took off and he caught me, all I could think about was getting his gun and shooting him so he couldn’t arrest me. I took his gun and shot him. . . . Then I got scared and I started running.” Defendant added that “some other cops started chasing him so he shot at them so they would stop chasing him.” Defendant said that when he reached that area (that is, the area near the Haverstick house) “he heard someone shout, ‘Police, freeze.’” Defendant said “he didn’t want to get hurt, so he dove through a window, . . . Bill [Haverstick] startled him so he shot him.” After persuading defendant to take a seat in the back of the patrol car, Deputy Stein wrote down on a steno pad the statements he had just heard defendant make. As Deputy Stein was driving defendant to the Rialto police station, defendant asked if they “couldn’t just go straight to [the county jail] because he had shot one of their officers and they would want to hurt him.” At the police station, defendant received medical treatment for minor scratches on his chest and left calf. He had no other injuries. In defendant’s clothing, police found a set of keys belonging to William Haverstick. Sergeant Wolfley was taken from the scene of the shooting to a hospital where he was pronounced dead at 3:10 a.m. The cause of death was a single gunshot wound to the face, the bullet shattering the left side of the jaw at the angle and completely severing the external carotid artery, causing profuse bleeding, immediate loss of consciousness, and a rapid decline in blood pressure. Apart from the gunshot wound, Sergeant Wolfley suffered minor cuts and scrapes on his face and knees consistent with collapsing and falling face forward onto an asphalt or concrete surface after being shot. Sergeant Wolfley’s hands were tested for gunshot residue. The test showed “very low levels of antimony.” These levels were consistent with having handled a firearm but were inconclusive as to whether Sergeant Wolfley had been holding a firearm when it was fired. Dr. Irving Root, the forensic pathologist who performed the autopsy on Sergeant Wolfley, testified that in the area around the gunshot wound he found no evidence of gunpowder residue or of skin damage of the kind that gunpowder residue causes. Residue from a handgun travels a distance of 27 to 36 inches, depending on the particular characteristics of the gun and the ammunition. Although the residue itself may be washed or wiped away, it would normally leave visible damage to the skin, in the form of stippling or tattooing, except at the very outer limit of the range of travel. He did not believe that the shot could have been fired from as close as 18 inches without leaving any residue or residue damage, but a test firing of the same gun with the same ammunition would be needed to reach any certain conclusion. Sergeant Wolfley’s gun was test-fired by Norm Wallis, a criminalist employed by the San Bernardino Sheriff’s crime laboratory. The test was conducted by firing the gun at 1-foot-square pieces of poster board at distances ranging from 12 inches to 42 inches. The ammunition used in the test was of the same brand and type as the ammunition that had been in the gun when Sergeant Wolfley was shot, although not from the same manufacturing lot. Based on these tests, Wallis concluded that gunpowder particles from this gun would travel 30 to 36 inches from the end of the barrel. B. Defense Case at the Guilt Phase Howard Bell testified to a conversation with Tyrone Thomas during which Thomas said that Bell and defendant were not among the men who had been bothering him at the apartment complex in San Bernardino on the night of March 2 and 3, 1986. San Bernardino Sheriff’s Sergeant Donald Hankerson testified that on March 3, 1986, he assisted in taking defendant to Deputy Stein’s patrol car after defendant had surrendered. Hankerson remained near the patrol car, keeping an eye on defendant, and he heard defendant ask how the officer was, but he did not remember defendant making any other statements, nor did he remember seeing Deputy Stein writing notes in a steno pad. Roy Mayfield, defendant’s father, gave similar testimony. He was present when defendant surrendered and heard defendant ask how the officer was and whether he could speak to his father, but “no other words were exchanged.” Defendant testified in his own behalf, giving the following account: On March 2, 1986, defendant was staying with his father, who lived about six blocks from the service station at Foothill and Eucalyptus. Late that night, defendant was talking to some casual acquaintances on a street near his father’s house when he met Howard Bell, whom he vaguely knew. Bell apparently heard defendant say he wanted to get some cigarettes, and Bell offered to drive defendant to a store, saying that he needed to get some gasoline. They agreed to meet in 15 minutes so defendant would have time to leave his bicycle at his father’s residence. As they had agreed, Bell picked defendant up on the comer near defendant’s father’s house and drove to the service station at Foothill and Eucalyptus. They went inside the station, and defendant purchased cigarettes and gasoline. Tyrone Thomas, whom defendant had never seen before, was inside the station “acting peculiar” and appearing to be “very paranoid, scared.” Thomas approached defendant and Bell and asked “Why me?” Defendant did not reply but asked Bell if he knew Thomas. Bell said he did not. Thomas left the station. The clerk told defendant and Bell that the police would be arriving soon and that if they “had anything” they should “get rid of it.” Defendant put the cigarettes in his pocket and walked out of the station with Bell. Thomas was talking to an officer near a police car in which a woman was seated. After telling Bell he was going to make a phone call, defendant walked to the phone booth. He attempted to make a call, but the line was busy so he hung up. Defendant turned around and began walking toward the service station bathrooms. Approaching defendant with his gun drawn and pointed at defendant, the officer said, “Hey, mother fucker, hold it.” Defendant turned to face the officer, who said, “Black mother fucker, freeze.” Defendant backed away and asked, “What’s going on?” But the officer, who appeared to be very angry, “just continued to cuss [him] out,” repeating “Black mother fucker, hold it.” Referring to defendant as a “black mother fucking nigger,” the officer told defendant to put his hands up. Defendant stopped walking and put up his hands. Defendant and the officer were then at the northwest comer of the service station. Defendant did not have a knife and did not drop the knife that was later found behind the service station. Bringing the gun to within a few inches of defendant’s face, the officer “said he was going to blow [defendant’s] mother-fucking head off.” Defendant, who was then both frightened and angry, saw the gun’s cylinder start to turn and believed the officer was going to shoot him. Defendant grabbed the gun, and as he did so the gun went off. Defendant placed both of his hands over the officer’s hands, which were still holding the gun, and they “started tussling.” The officer said, “Mother fucker, I’m going to kill your ass.” As they struggled, they moved east behind the station toward Eucalyptus. The gun fired again and fell to the ground. Defendant picked up the gun and ran toward Eucalyptus. Glancing back, defendant saw the officer on the ground, not moving. There was blood on the ground. Defendant had not at any time intended to shoot or kill the officer, only to take the gun away from him. Defendant ran up Eucalyptus intending to go to his father’s home. A police car came speeding up behind him, shining a spotlight on defendant. Defendant fired what he intended to be a warning shot “in the air,” but he noticed a “big flash” on the police car, which immediately backed up. Defendant turned into the driveway of the Sunstone Apartments and dropped onto some grass behind a boulder. He then ran up Eucalyptus again. Seeing more police cars, he fired another “warning shot.” He ran around the comer and into the first backyard. Defendant went through the backyard and over a wall. He found himself back at the Sunstone Apartments, where he observed two or three adults and a small child. Defendant put the gun in his waistband. He walked and then ran to the back of the Sunstone Apartments’s parking lot. Looking over a wall at the service station, he saw some officers around the area where the officer had been lying on the ground. He heard a voice say, “If you see the mother fucker, kill him.” After scaling another fence, defendant found himself near the comer of a building. Because he was “fed up with running” and believed there were officers nearby, he threw the gun around the comer and walked forward with his hands up, but no one was there so he picked up the gun and continued on. After pausing for a few minutes to pray, defendant went through a gate and over another fence. He began mnning through a field. Defendant saw some police officers and crouched down to avoid being shot. After crossing the field, defendant found himself on a dirt road. Moving along the road, he “heard a shotgun pump.” The sound came from the area in front of him. Defendant slowed down. He heard someone say: “Mother fucker, hold it.” He stopped. When he heard the sound of a gun racking, he started mnning toward a house. He heard gunshots and dove through a window of the house. Inside the house, defendant quickly got up off the floor and moved away from the window and into a hall. A door suddenly opened. Defendant “turned and the gun went off.” The person in the doorway went back into the room and the door closed again. Defendant tried the knob, but the door would not open. Noticing a man coming from the other end of the house, defendant told him to leave. The man went outside and was immediately snatched by the police. The man inside the room, who defendant later learned was William Haverstick, refused to open the door, so defendant forced his way inside. He found Haverstick sitting on the floor with his back against the door. There was blood on Haverstick’s leg. Defendant asked Haverstick if he was “hurt bad,” and Haverstick said he was. Defendant asked if there was anything he could do for him. They decided to try to stop the bleeding, so defendant retrieved some long socks from Haverstick’s dresser, and he tied them around Haverstick’s leg as a tourniquet. Defendant went to the kitchen to get Haverstick a glass of water. At the same time, he looked in the other rooms of the house, and he removed the empty cartridges from the gun, finding he had one live cartridge left. Returning to the bedroom, he gave Haverstick the glass of water and also Haverstick’s medication, which was on the nightstand. When Haverstick said he wanted to get off the floor, defendant brought a chair from another room and placed Haverstick in it. He positioned the chair in the bedroom doorway so that Haverstick would be between defendant and the police if the police entered the house. Defendant used the telephone in the bedroom to place a series of calls to his mother, his stepfather, his cousin Yvonne Hester, and a woman named Irene. When Hester asked him how many police officers he had shot, and he replied “Just the one,” defendant was referring to Sergeant Wolfley. Defendant also spoke to various police officers. On two occasions, an officer wanted to hear Haverstick’s voice to make sure he was alive. Defendant asked Haverstick to say something, but Haverstick only mumbled. Defendant used his hand to nudge Haverstick’s foot, and Haverstick yelled. Defendant denied ever kicking Haverstick. Defendant had not intended to take a hostage and would have used the last cartridge to kill himself if the police had attempted to storm the house. While in the house, defendant believed that every officer outside would kill him if given the chance. Defendant wanted to drive Haverstick to a hospital so he could surrender in the presence of civilian witnesses. Defendant eventually surrendered by following his father’s instructions. He was handcuffed and taken to a patrol car. The only statement he made while in or near the patrol car was to ask a deputy if he could speak to his father. He did not make the statements that Deputy Stein had attributed to him. Rialto Police Detective Valerie Hankerson testified that she interviewed Curtis Corbin on March 13, 1986, 10 days after the shooting of Sergeant Wolfley. During that interview, Corbin reported that he was awakened by the sound of gunshots. He did not say that he had seen any of the events that occurred behind the service station. Detective Hankerson also testified that she found two bullet holes, four inches apart, in the frame of the living room window of the Haverstick residence. C. Guilt Phase Rebuttal and Surrebuttal Rialto Police Officer Peter Sorensen testified that he was the first officer to assist Candette Wolfley in providing emergency care to Sergeant Wolfley in the area behind the service station. He remained in that area until Sergeant Wolfley was taken in an ambulance to the hospital. During this time, Sorensen did not hear anyone say, “If you see the mother fucker, kill him.” At the Rialto police station, where defendant was taken after his arrest, defendant was permitted to speak to his father, Roy Mayfield. When asked afterwards what defendant had said, Roy Mayfield replied: “Basically the officer confronted him with a gun. He pressed him, and he took it. The officer tried to take it back, and that’s when the shot was fired.” Deputy Sheriff Joanne Hensley, recalled on rebuttal, testified that she did not hear the sound of a shotgun being racked and that when she spoke to defendant she did not use profanity. She said, “Halt, police.” She fired a single shot at defendant as he dove through the window of the Haverstick residence. Anthony Terry Fifelski, recalled on rebuttal, testified that when he entered the living room of the Haverstick house to investigate the noises that had awakened him, he heard Haverstick yell: “Get out of the house. There’s robbers in the house. Call the police.” He immediately ran outside without seeing or hearing any other person. It was only after he was outside that he heard someone say “Don’t say nothing.” Turning, he saw a Black man in the doorway. Dr. Irving Root, recalled on rebuttal, was asked to assume that the gunpowder range of Sergeant Wolfley’s gun was 30 to 36 inches and that the shooting occurred in the manner described in defendant’s testimony—that is, defendant and Sergeant Wolfley were standing side by side with both of Sergeant Wolfley’s hands on the gun and defendant’s hands over Sergeant Wolfley’s hands. Given these circumstances, it was Dr. Root’s opinion that there would necessarily have been gunpowder stippling or tattooing on Sergeant Wolfley’s face. He testified that if Sergeant Wolfley was gripping the gun firmly with both hands, he would have had to bend his elbows to permit the gun to turn toward his face, and the distance between the muzzle and Sergeant Wolfley’s chin would have been no greater that 14 inches. Even assuming that Sergeant Wolfley’s arms were fully extended and the gun was coming loose from his grip when it fired, the distance would have been at least 18 or 19 inches, and there would have been gunpowder injury to Sergeant Wolfley’s skin in the form of stippling or tattooing. V. Parker Bell, a criminalist employed by the defense, conducted a test firing of Sergeant Wolfley’s gun to determine the distance at which gunshot residue would leave a lasting impression on human flesh. For purposes of the test, he used ammunition that Detective Amicone had represented to be from the same manufacturing lot as that issued to Sergeant Wolfley. Taking one of the cartridges apart, Bell determined that it contained disc flake gunpowder, which has poor aerodynamic ability compared to the two other kinds of gunpowder, ball powder and flattened ball powder. The test firing was recorded on videotape, which was shown to the jury. First, the gun was fired at cloth-covered targets at distances from 12 to 48 inches. Even at 48 inches, some gunpowder particles were visible on the target. The gun was fired at human flesh by placing the exposed forearm of defense counsel one to one and one-half inches above the bullet’s point of impact. At a distance of 18 inches, some particles that may have been gunpowder were visible on the skin but they came off without leaving any lasting impression. At 12 inches, gunpowder particles were found embedded in the skin, and the skin surface had the characteristic abrasion known as stippling. After this test firing had been conducted, Bell, the defense criminalist, and Wallis, the prosecution criminalist, jointly compared a cartridge of the ammunition supplied by Detective Amicone with a cartridge from the belt that Sergeant Wolfley had been wearing on the night of his death and the single cartridge that was left in Sergeant Wolfley’s revolver when defendant surrendered. They found that although all three cartridges contained disc flake powder, the powder in the cartridges differed in color and quantity, indicating chemical differences that could affect the results of skin penetration tests. The powder in the cartridge supplied by Detective Amicone weighed 8.0 grains, the powder in the cartridge from Sergeant Wolfley’s belt 9.4 grains, and the powder in the cartridge from Sergeant Wolfley’s revolver 9.1 grains. Some of the ammunition from Sergeant Wolfley’s belt was test-fired against cardboard targets at ranges from 12 to 48 inches. Bell considered the tests useful only for determining the range of travel of gunpowder particles and not the range at which the particles would damage or penetrate human skin. Although the test showed that particles could travel as far as 48 inches, he remained of the view that the maximum distance at which they would damage or penetrate human skin was 18 to 24 inches. Gunpowder particles that are deposited on human skin without damaging or penetrating the skin are easily wiped away. Dr. Root, the pathologist, further testified that the abrasions on the left side of Sergeant Wolfley’s face that apparently resulted from his fall onto pavement after being shot could have covered over and concealed gunpowder stippling, but in that event he would have expected to find stippling in the areas close to the wound on which there were no such abrasions. He therefore remained of the opinion that the fatal shot had been fired from “beyond the gunpowder range” of the weapon. In his opinion, the absence of stippling on defense counsel’s forearm after the test firing at 18 inches did not necessarily mean that 18 inches was beyond the range at which stippling would occur. Most of the particles would strike within a tight circle around the bullet’s point of impact. Only a few particles would be dispersed to the forearm, and those few could have been filtered out by the arm hairs. He explained the appearance of stippling on the arm after the test firing at 12 inches on the basis that the particles were traveling at a higher velocity and in greater concentration. D. Prior Convictions The information’s allegations that defendant had suffered two prior felony convictions were bifurcated and tried to the court after the jury had returned its guilt phase verdicts on the substantive offenses. Based on certified court records, the trial court found true the allegations that defendant had been convicted of grand theft from the person (§ 487, former subd. (3) [now subd. (c)]) as a felony on August 30, 1977, and that he had been convicted of the felony offense of robbery (§ 211) on August 19, 1982. E. Penalty Phase The parties stipulated that in June 1977, defendant used a knife to rob 15-year-old Thomas Glore of $4, the robbery occurring near a high school during the lunch hour. The parties also stipulated that in October 1981, defendant stole merchandise from a department store and, when confronted by a store security agent in the parking lot, pointed a gun at the security guard to make good his escape. Mark Fister testified for the prosecution that on the night of March 2-3 of 1986 (the same night that Sergeant Wolfley was killed), he was working as the clerk in a 7-Eleven market in Rialto when a man entered the store and robbed him. The man approached the counter with a small bag of sunflower seeds and tendered some money, but when Fister opened the register the man drew a knife, cut Fister on the hand, and instructed Fister to give him all the money. The knife was a kitchen carving knife with a wooden handle and an eight- to nine-inch blade. The man left the store with the money from the register and rode away on a 10-speed bicycle. Fister made an in-court identification of defendant as the man who committed the robbery, but he also said that he had thought the robber was shorter than himself (Fister testified he is six feet one inch), of average build, and “not muscular.” Fister admitted that at the time of the offense he had estimated the robber’s height to be 5 feet 10 or 11 inches (whereas defendant’s height was 6 feet 3 inches), he had estimated the robber’s weight as 115 to 120 pounds (whereas defendant’s weight was 180 to 185 pounds), and he had reported that the robber had no facial hair (whereas defendant had a mustache and goatee). Fister testified that he was shown a photo lineup after the offense, and it was stipulated that he selected the photograph of a person other than defendant. When shown the knife found at the service station where Sergeant Wolfley was killed, Fister testified that its blade was “a little bit broader” than the knife used in the robbery. The parties stipulated that defendant’s fingerprints were not found at the 7-Eleven robbery site or on the knife found at the service station where Sergeant Wolfley was killed. Defendant did not testify in his own behalf at the penalty phase. The defense presented the testimony of Sandra Brewer (defendant’s mother), Donna Brewer (defendant’s sister), Gregory Snowden (defendant’s cousin and an officer in the California Highway Patrol), and Judith Snowden (defendant’s aunt). Each of these witnesses testified to a close and loving relationship with defendant, each affirmed that the relationship would be maintained if defendant were sentenced to life in prison without possibility of parole, and each expressed the hope that the jury would spare defendant’s life. They gave the following account of defendant’s life history and character. Defendant’s parents were never married. Defendant’s birth was difficult. Defendant was bom with a heart murmur and congenital heart problems. When defendant was approximately one year old, he developed a fever of 106 degrees and was taken to the hospital, where he was packed in ice. A fever this high may result in brain damage. Defendant’s mother began living with Spencer Brewer, whom she married when defendant was about two years old. The family moved to Pasadena where defendant grew up believing he was Spencer Brewer’s child and having no contact with Roy Mayfield, his father. Spencer Brewer disciplined defendant for normal childhood behavior very harshly, hitting him in the chest with his fist and beating and whipping him with a belt. On several occasions, Judith Snowden, who was like a second mother to defendant, observed welts and bleeding on defendant’s back and legs and knots on his head. The physical abuse stopped when defendant was about seven years old. Spencer Brewer also verbally abused defendant, telling him he was “stupid” and referring to him as a “nigger” and other abusive terms. Spencer Brewer abused defendant’s mother and older brother as well. Thomas Hester, defendant’s uncle, was killed by a drunk driver when defendant was seven years old. Thomas Hester had been a significant person in defendant’s life. Defendant idolized him because of his athletic ability. He had broken many records mnning track in high school, and at the time of his death he was a member of the track team at Arizona State University and had qualified for the United States Olympic team. When Hester was killed, defendant “took it hard”; he was angry with God because he thought that God had killed Hester. As a child, defendant participated in Cub Scouts and baseball, and he was a loving son. When defendant was about 13 or 14 years old, Roy Mayfield sent a message that he wanted to establish contact with defendant. Defendant was then told he was not Spencer Brewer’s son, but Roy Mayfield’s. At first defendant was confused, but when he learned that Roy Mayfield had played football at San Bernardino Valley College, defendant began to idolize Roy Mayfield, even though Roy Mayfield had provided no support for him and even though defendant knew little about him. He began to have visits with Roy Mayfield. In high school, defendant played football and ran track. He also had a series of part-time jobs. When defendant was 15 years old, his mother was badly injured in a car accident. She spent weeks in the hospital and had recurring back problems requiring additional hospitalizations and surgery. Defendant telephoned his mother while she was in the hospital, and he helped with the cooking and cleaning at home in her absence. Defendant has a son of his own, Dennis Junior, who is being raised by the child’s maternal grandparents. Defendant is a loving father to his son. When defendant was convicted of crimes, his family did not turn away from him but tried to counsel and assist him. As an adult, defendant has had some periods of full-time employment. Defendant has been “slow” and has had “emotional problems” all his life that may be the result of brain damage in childhood. II. Pretrial Proceedings Defendant contends that the trial court erred in denying his pretrial motion to sever the counts charging offenses against William Haverstick from the remaining counts and that this error denied him his federal constitutional rights to due process of law, an impartial jury, and a reliable guilt determination in a capital case (U.S. Const., 5th, 6th, 8th, & 14th Amends.). We reject this contention. As defendant concedes, the offenses charged in the information satisfied all statutory requirements for joinder. (See § 954.) Therefore, we review the trial court’s ruling under the deferential abuse of discretion standard. (People v. Davis (1995) 10 Cal.4th 463, 508 [41 Cal.Rptr.2d 826, 896 P.2d 119].) To establish an abuse of discretion, defendant must make a clear showing, based on the record before the trial court when it denied the severance motion, that joinder of these offenses presented a substantial danger of prejudice. (Ibid.) To determine whether joinder posed a substantial risk of prejudice, we inquire first whether evidence of the charged offenses would have been cross-admissible in separate trials. If so, then “any inference of prejudice is dispelled.” (People v. Balderas (1985) 41 Cal.3d 144, 172 [222 Cal.Rptr. 184, 711 P.2d 480]; accord, People v. Memro (1995) 11 Cal.4th 786, 850 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) Based on the record of the preliminary hearing, which was the record before the trial court when it denied severance, the trial court could reasonably conclude that in a separate trial of the Haverstick offenses, evidence of the earlier offenses—that is, the murder of Sergeant Wolfley, the attempted murder of Officer Cirilo, the theft of Sergeant Wolfley’s gun, and the deadly weapon assaults on Officers Cirilo and Pierson—would have been admissible to establish defendant’s motive for entering Haverstick’s residence, shooting Haverstick, and holding him hostage. In a separate trial on the non-Havers tick charges, moreover, evidence of statements by defendant describing his encounter with Sergeant Wolfley would have been admissible. Because defendant made some of those statements during the telephone conversations that occurred while he was inside the Haverstick residence, it is likely that evidence of the circumstances surrounding those statements would also have been received. Thus, most if not all of the evidence would have been cross-admissible. Furthermore, to establish prejudice defendant must show more than the absence of cross-admissibility of evidence. He must show also, for example, that evidence of guilt was significantly weaker as to one group of offenses, or that one group of offenses was significantly more inflammatory than the other. (People v. Sandoval (1992) 4 Cal.4th 155, 172-173 [14 Cal.Rptr.2d 342, 841 P.2d 862].) Defendant has shown neither. The prosecution’s evidence was equally strong as to both groups of offenses, and neither was significantly more inflammatory than the other. Accordingly, defendant has failed to demonstrate that the trial court abused its discretion in denying the motion for severance. III. Jury Selection A. Discriminatory Exercise of Peremptory Challenges During jury selection, the defense moved for mistrial on the ground that the prosecutor had used peremptory challenges to excuse three African-American prospective jurors because of their race. The trial court denied the motion, finding both that the defense had failed to establish a prima facie case that the prosecution had exercised peremptory challenges on the basis of race and that, in any event, the prosecutor had provided satisfactory, nondiscriminatory reasons for excusing these jurors by peremptory challenge. Defendant contends that in so ruling the trial court committed error requiring reversal of the judgment. After the prosecutor had used a peremptory challenge against prospective juror Franklin Atkins, defense counsel moved for a mistrial on the ground that the prosecutor was “systematically excluding all black jurors on the panel.” Specifically, defense counsel charged that the prosecutor had excused prospective jurors Franklin Atkins and Carla Hunter because of their race. The trial court announced it would hold a hearing on the motion the following morning, at which time it would ask the prosecutor “to justify the excusal of those two jurors" and suggested that counsel continue with jury selection for the remainder of the day. Shortly thereafter, the prosecutor exercised a peremptory challenge against a third Black prospective juror, Harris Jones. Defense counsel asked that the pending motion be expanded to include this peremptory challenge as well. The trial court then discontinued jury selection pending a ruling on the defense motion. On the following morning, the trial court announced that after reviewing the law it now realized that the defense had the burden of establishing a prima facie case of intentional discrimination in the use of peremptory challenges, and that if the defense succeeded in doing so the burden would then shift to the prosecution to establish a nondiscriminatory reason for the challenges. Defense counsel then explained the basis for his conclusion that the prosecutor had excused the three Black jurors on the basis of their race. The trial court made a finding that the defense had failed to establish a prima facie case. But the trial court nonetheless directed the prosecutor “for the record” to explain why he had exercised peremptory challenges against each of the three Black prospective jurors. The prosecutor then explained the reasons for these challenges. The trial court reiterated the finding that the defense had not made a prima facie case and added a second finding that the basis of the prosecutor’s challenge to the three jurors in question was “not group bias but rather a specific bias that relates to the issues in this case” and that the challenges “were justified in that sense.” The use of peremptory challenges to eliminate prospective jurors because of their race is prohibited by the federal Constitution (Powers v. Ohio (1991) 499 U.S. 400, 409 [113 L.Ed.2d 411, 424, 111 S.Ct. 1364]; Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 82-83, 106 S.Ct. 1712]) and by the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748]). A defendant claiming such discrimination has the initial burden of establishing a prima facie case. (People v. Arias (1996) 13 Cal.4th 92, 134-135 [51 Cal.Rptr.2d 770, 913 P.2d 980].) When the trial court has expressly found that a prima facie case has not been established, a challenge to that finding is not rendered moot by the trial court’s subsequent determination that the prosecution has supplied genuine and race-neutral explanations. (People v. Turner (1994) 8 Cal.4th 137, 166-167 [32 Cal.Rptr.2d 762, 878 P.2d 521].) To establish a prima facie case, a party must make as complete a record as the circumstances permit, must establish that the challenged prospective jurors are members of a cognizable group, and must show a “strong likelihood” that they were challenged because of their group association. (People v. Howard (1992) 1 Cal.4th 1132, 1154 [5 Cal.Rptr.2d 268, 824 P.2d 1315]; People v. Wheeler, supra, 22 Cal.3d 258, 280.) Here, defense counsel based the motion on the prosecutor’s peremptory challenge of three Black jurors. It is undisputed that the prospective jurors were Black and as such were members of a cognizable group. To establish that the jurors were probably challenged because of their race, defense counsel observed that all three prospective jurors had middle-class backgrounds, no strong opposition to the death penalty, and no apparent reason for exclusion other than race. In addition, defense counsel observed that the prosecutor had challenged a high percentage of prospective jurors who were Black (three of five, or 60 percent), that the prosecutor’s voir dire of these three Black jurors was lengthier than the voir dire of non-Black jurors, and that the prosecutor had provoked an argument with one of them, prospective juror Atkins. “[W]hen 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. [Citations.] 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. [Citations.] If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm. [Citation.]” (People v. Howard, supra, 1 Cal.4th 1132, 1155.) Here, the trial court did not explain the basis for its finding that there was no prima facie case. Rather than search the record independently for race-neutral grounds upon which the prosecutor might reasonably have challenged the jurors in question, we find it convenient to examine the reasons that the prosecutor gave in explanation for the challenge of these jurors. 1. Carla Hunter The prosecutor explained that he exercised a peremptory challenge against Carla Hunter because her voir dire responses indicated that she might find it unusually difficult to vote for a penalty verdict of death. When asked to categorize her views according to a chart placed in the courtroom, Hunter stated that her views fell in category D, which the chart described as: “opposes or has doubts about death penalty but will not automatically vote against it in every case.” When asked why she chose category D, she replied: “I have uneasy feelings about someone’s life being taken away.” She added that if she participated in a death verdict, “My conscience might bother me.” She was asked, “Can you visualize that you would ever vote for the death penalty in this case?” She replied: “I really don’t know.” Later, during general voir dire, prospective juror Hunter answered “No” when asked if she wanted to be a juror in this case. She explained that her aversion was related to the nature of the case and how serious the charges were. She described herself as being “more nervous than other people seem to be,” and she said that she had had nightmares about this case. The prosecutor stated that, based on these responses, he had concluded that although prospective juror Hunter might be “a good juror on a drunk driving or on a robbery case,” he had decided that he would be remiss as a representative of the People if he left her on the jury in this capital case. The record amply supports the prosecutor’s conclusion that prospective juror Hunter might well have difficulty serving as a juror in a capital case and, in particular, might have difficulty returning a penalty verdict of death. (See People v. Davenport (1995) 11 Cal.4th 1171, 1202-1203 [47 Cal.Rptr.2d 800, 906 P.2d 1068] [prosecutor may exercise peremptory challenges against death penalty skeptics].) 2. Franklin Atkins The prosecutor explained that he exercised a peremptory challenge against prospective juror Atkins because he was unable to determine Atkins’s attitude toward the death p