Full opinion text
Opinion BAXTER, J. A jury in Riverside County found defendant Donald Ray Millwee guilty of one count each of first degree murder (Pen. Code, § 187) with use of a rifle (§§ 12022.5, 1192.7, subd. (c)(8)), robbery (§ 211), and burglary (§459). Two special circumstance allegations were found true— robbery murder and burglary murder. (§ 190.2, subd. (a)(17)(A) & (G) [formerly subd. (a)(17)(i) & (vii)].) The victim of each crime was Esta Millwee, defendant’s physically disabled mother. An initial penalty trial in front of jurors who had decided guilt ended prematurely in mistrial. Thereafter, a second jury heard evidence concerning the appropriate penalty and returned a verdict of death. The trial court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced defendant to death for the murder with special circumstances. A consecutive sentence of seven years was imposed for the noncapital crimes and enhancements. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) No prejudicial error occurred at any phase of trial. The judgment will be affirmed in its entirety. I. Guilt Phase Facts A. Prosecution Case In September 1986, defendant lived on the streets of Riverside, and was not steadily employed. Although a hip condition evidently prevented him from walking comfortably without a cane, he traveled throughout town on a bicycle he got from his father. Defendant spent much of his time in and around a bar called the Hi Ho Tavern. The bar was located three to four miles from the hillside home of defendant’s parents, Donald and Esta Millwee. Defendant’s father was a licensed plumbing contractor who ran his own business. From time to time, defendant earned money by working with his father. Defendant’s mother was housebound to some extent. She was essentially paralyzed on one side as the result of a brain aneurysm suffered in 1981. Although she performed chores around the house, she moved with the aid of a cane. She used a wheelchair when she left home to go shopping. Several family members and a close friend testified that defendant and his mother did not “get along,” and that defendant was not allowed inside the house when his mother was there alone. Although defendant would occasionally visit his parents’ home in order to wash and eat, his father was routinely present on those occasions. There also was an arrangement whereby Debra Millwee, who was married to defendant’s brother, Ronald, and lived next door, would phone Esta whenever defendant was seen in the neighborhood so that Esta could make sure the doors were locked. Defendant’s father testified that he routinely locked the doors when he left for work in the morning, but indicated that Esta would unlock them during the day to let their puppy outside. Defendant and his father arranged in advance to meet at the Hi Ho Tavern on September 8, 1986, the day of the crime, in order to drive to work together. When the father arrived at 7:35 that morning, defendant was barefoot and dirty, and smelled of alcohol. He also did not have his cane. Defendant explained that his shoes and cane were burned during a party and campfire the night before. When defendant’s father said he would not take defendant to work in such a disheveled state, defendant became angry. He screamed obscenities at his father and said, “This is the last.” The pair argued briefly. Defendant’s father left for work alone. About two and one-half hours later, shortly before 10 a.m., defendant’s sister-in-law, Debra, saw defendant sitting with his bike alongside the road leading up the hill to his parents’ house. Because she was driving into town with a friend, Debra did not call and warn Esta. Debra also assumed defendant’s father was still at home. Around the same time, defendant’s grandmother finished speaking with Esta on the phone. This was evidently the last time anyone heard from Esta alive. Defendant’s father returned home from work around 4 o’clock that afternoon. He entered through a sliding glass door which was located at the rear of the house and which provided access to the kitchen and living room: The sliding door was closed but apparently unlocked. In the kitchen, defendant’s father found Esta’s body sprawled on a stool that was tipped and leaning backwards against the counter. She had been shot once in the forehead and was cold to the touch. She was wearing an apron and plastic gloves, and a mop was lying on the floor nearby. A ceramic decoration that usually hung from a kitchen cabinet was lying broken in the pathway leading past the kitchen and between the sliding glass door and the living room. After summoning the police, defendant’s father discovered several items missing from the premises: the Lincoln Continental owned by defendant’s parents; the keys to the car; Esta’s cane, which she always kept within reach; and her wheelchair, which had been left folded and standing near the sliding glass door when defendant’s father left for work that morning. Also gone from the house was a Remington rifle, described further below. However, other valuable items were undisturbed, including several rings Esta was wearing under her gloves, jewelry and cash in the master bedroom, and electrical tools and equipment in the spare bedroom. Defendant’s father owned two .22-caliber semiautomatic rifles, the Remington and a Marlin. Both weapons were usually stored in the living room closet. The Marlin was “useless” because the chambering mechanism did not work properly and the sight on the front end of the barrel was missing. As a result, defendant’s father had previously authorized defendant to sell the gun for “$5, $10, [or] whatever he could get [for] it.” Defendant never sold the Marlin, and it was still sitting in the closet after the crime. As noted, however, the Remington rifle was missing. Defendant’s father testified that the Remington was fully operable, and was stored in the closet loaded, with the safety on, at the time of the crime. A person could ensure the gun was loaded and ready to fire by pulling back on the slide and ejecting a live round from the chamber. A live round was found on the living room floor near the closet after the crime. Defendant’s father testified that it had not been there when he left for work that morning. In addition, the casing of a bullet that had been fired from the Remington was found on the kitchen floor near Esta’s body. The autopsy physician, Dr. Rene Modglin, determined that the bullet had entered Esta’s forehead towards one side and broken apart in her brain. Dr. Modglin testified that particularly where, as here, there is no exit wound, the “stellate” (irregular and tom) condition of the skin around the point of entry is consistent with the muzzle of the gun having been held directly against the victim when fired. Black granular material found underneath the surface of the skin provided further evidence of a contact wound. Dr. Modglin indicated that while he could not conclusively determine whether Esta was shot at point-blank range, “none of the features suggesting an intermediate [or distant] wound were present.” Based on evidence introduced against defendant in a separate trial involving a shooting that occurred in San Diego two days after the capital crime, a stipulation to the following facts was entered and read to the jury in this proceeding: Defendant drove the Lincoln Continental from Riverside to San Diego on September 8, 1986, and was arrested in San Diego on September 10. At the time of his arrest, defendant was in the possession of the car and his mother’s cane. Arresting officers searched the trunk of the car and found a wheelchair and the Remington rifle. Defendant took the Remington when he left his parents’ house on September 8, and was familiar with its operation, including the safety feature. B. Defense Case 1. Defendant’s testimony. Defendant testified in detail concerning the events of September 8, 1986. For the most part, defendant’s account was consistent with his father’s concerning the circumstances under which the pair met for work and argued outside the Hi Ho Tavern. Defendant offered some additional details, however, such as his father refusing a-request to buy a new cane and shoes for defendant that morning. Defendant also told his father, “I’m sick of being your nigger” and “It will be the last time.” These statements were intended to express defendant’s dissatisfaction over having been “fired” on a “whim.” After his father left for work, defendant drank a beer and then bicycled to his parents’ house. He claimed to have visited the house “two or three times a week” over the preceding two-year period, and that the only unusual thing about this trip was his plan to retrieve the Marlin rifle that his father had previously given him. Defendant explained, “I needed to get some cash to get some shoes and a cane so I can get around [and] make some money. So I remembered the gun that my dad had given me, and I figured I would just go up there and get it and take it and sell it.” Defendant purportedly knocked on the sliding glass door, identified himself, and heard his mother say, “Well, come in.” Defendant testified that once inside, he chatted with his mother, who was seated on a stool in the kitchen; she mentioned that defendant’s father had left for work, and defendant announced his plan to sell the gun. Defendant demonstrated for the jury what happened next: He walked to the living room closet, lifted the gun by the trigger with his left (and nondominant) hand, pointed the barrel of the weapon towards the ceilipg, and walked back towards the sliding glass door while holding onto the wall for balance with his right hand. Suddenly, just as he approached the kitchen, he felt a painful “jolt” in his leg. “I went to grab a—I think the table or the chair to steady myself, while I got my other foot in position, and that’s when the gun went off.” Defendant claimed to have been standing from five to six feet away from his mother at the time. When defendant realized his mother “had a bullet in her head,” he became shocked and scared. “[M]y old man was the first thing that came to mind, and he would start raving and ranting and start throwing all kinds of accusations around. And I figured this shit ain’t never gonna stop. So I told myself, just leave.” He then took his mother’s cane, the rifle, the car keys, and the car. Defendant claimed the wheelchair was already inside the trunk of the car when he drove away. Defendant testified that he did not realize he had taken the Remington instead of the Marlin until he was arrested in San Diego two days later. Also, defendant reportedly knew where the car keys were located because he had “used that car probably 30 or 40 times over the last two years on Sundays, taking [his] mom grocery shopping.” He denied any intent to kill his mother. On cross-examination, defendant claimed other witnesses had “lied” when they testified that he was banned from the house when his father was gone. Defendant insisted he had been alone with his mother “many times,” that she invited him inside “every time” he knocked on the door, and that she had never expressed fear of him or had any reason to do so. He last drove his mother to the store several months before her death. Defendant testified that other than disagreements with his father about work, there was no “problem” in his relationship with either parent for at least a year before his mother’s death. When asked about the ceramic object found broken near the kitchen, defendant rejected any suggestion that it was thrown by his mother or otherwise used against him in self-defense. Defendant acknowledged on further questioning of the prosecutor that he possessed only $5 to $10 that morning and could not afford to replace his damaged cane and shoes. He knew his mother had a cane and that his father would be gone from the house all day. Defendant claimed he had never tried to sell the Marlin rifle before the crime, even though his father had given it to him for that purpose one or two years earlier. Defendant knew the Marlin was “not 100 percent functional.” He also knew how to operate both the Marlin and Remington, and readily distinguished between the two guns in open court based upon the Marlin’s missing front barrel sight. Defendant acknowledged that the barrel, not the butt, of the gun was closest to him when he bent over and lifted it from the closet. He did not know whether the gun was loaded at the time, and he denied racking the weapon to determine that fact. With respect to his criminal record, defendant admitted having been convicted of “three felonies involving theft.” 2. Expert testimony. The defense called two experts in an effort to support defendant’s claim that he inadvertently shot his mother while standing several feet away. Criminalist Fox described an experiment whereby he fired the Mill wees’ Remington rifle into white terrycloth towels that had been mounted on pieces of cardboard. The purpose of the experiment was to analyze residue deposited on the towels at various firing distances. Fox studied the surface of the cloth, while a forensic pathologist hired by the defense, Dr. Root, examined fibers inside the bullet holes. Criminalist Fox reviewed Esta’s autopsy photographs and saw no “black circular powdering” consistent with a contact or near-contact wound, and no “stippling” or imbedded powder consistent with a wound inflicted only a few inches away. Although Fox could not determine the distance at which the fatal shot was fired based solely on surface conditions, he implied that a close or contact shot was unlikely since his test-firings indicated that the Remington tended to leave marks in such cases. Fox acknowledged, however, that Remington rifles typically eject spent casings to the rear of the gun, and that such an ejection pattern was inconsistent with where defendant claimed to be standing when the gun fired and where the casing was actually found. However, in Fox’s view, the discrepancy could be attributed to a deflector shield that had been installed on the Millwee rifle, causing the shell to sometimes eject in a forward direction. Fox also described the circumstances under which a firearm could accidentally discharge, including a scenario in which the weight of the gun shifts while the weapon is being held by the trigger. The other defense expert, Dr. Root, agreed with Fox that identifying a contact wound could not be based solely on the presence or absence of topical discoloration. For example, where a contact wound is of the “loose” or “soft” variety, such that the muzzle is held no more than a quarter inch from the victim when fired, Dr. Root would expect to find some surface discoloration from ignited gunpowder, unbumed residue, and soot. However, with respect to contact wounds in which the muzzle of the gun is held, tightly against the skin, virtually all of the combustible material and gas produced by firing the weapon enters the body. Dr. Root would not expect to see a dark ring or other mark around the outside of a “tight” contact wound, but would expect to see residue inside such a wound, along with an irregular tearing of skin caused when gas is trapped and expands under the skin. Dr. Root acknowledged that all such features were present in this case. However, he did not believe a small-caliber gun like the Remington would cause the tearing that occurred here, even if pressed tightly against the skin. The irregular shape of the wound might have occurred when the bullet entered at a sharp angle and broke apart in the skull. Dr. Root further testified that before working on this case, and based on 25 years of experience, he subscribed to the “classic” theory that gunpowder residue will not be deposited inside a wound inflicted by a small-caliber firearm from more than 24 to 27 inches away. However, after examining the towels provided by Criminalist Fox, Dr. Root was surprised to find residue even where the Millwee rifle had been fired from a distance of 10 feet. He theorized that the particles were carried on the nose of the bullet and were not deposited by the blast. Based on this observation and the relatively modest amount of residue found inside the wound, Dr. Root opined at the close of direct examination that Esta was shot at a distance greater than the maximum 27-inch distance at which gunpowder typically travels by itself, independent of the bullet. Dr. Root conceded on cross-examination that “99 percent” of the forensic community would probably disagree with this conclusion. Dr. Root also observed that Esta Millwee could have lived anywhere from several minutes to several hours after the shooting and that extensive blood loss, particularly before death, could have washed at least some of the foreign particles from the wound. C. Prosecution Rebuttal Certain witnesses who had testified in the prosecution’s case-in-chief were called to rebut defendant’s testimony that he regularly visited the house when his father was absent, that his mother invited him inside each time (such as on the day she died), and that he routinely drove her to the store. For example, defendant’s father and sister-in-law, Debra, testified that defendant never drove his mother to the store and was not welcome in the house when she was there alone. Defendant’s father explained that “problems” with defendant visiting the house began when the father was hospitalized in 1973, and that the policy of supervised visits with his wife had been in effect since at least 1981, the year Esta suffered an aneurysm.' The same witnesses also indicated—contrary to what defendant had stated and implied at trial—that his mother had compelling reasons for not wanting to be alone with him. Hence, defendant’s father testified that Esta consistently said she “didn’t trust [defendant] and she was afraid of him, and she was tired of having our possessions stolen.” Since 1981, and especially in the last two years of her life, Esta expressed concern that defendant might “do harm” to one or both parents. Debra Millwee similarly testified that Esta said she did not want defendant in the house because he would “get mad,” “take things,” and “start fights.” A third witness who testified along the same lines was Jeannie Callen, who had known Esta for over 30 years and was her former sister-in-law. Jeannie recounted a conversation that occurred eight or nine months before the shooting, while Jeannie was styling Esta’s hair. Esta reportedly said she did not want defendant in the house because she was “frightened” of him and he “stole—took stuff all the time for years.” Esta also disclosed that she carried a knife in the pocket of her apron. On cross-examination, the defense elicited that Jeannie never saw the knife, and that Esta simply “patted her apron” and said, “I have a knife right here.” Other evidence tended to undermine defendant’s testimony that he went to the house the day of the capital crime in order to sell the Marlin rifle for the first time. Specifically, defendant’s father testified that when he first offered defendant the Marlin two years earlier, defendant took the gun with the intention of selling it, but then brought it back. Finally, the prosecution sought to cast doubt on defendant’s version of events in this trial by showing he had used a similar story to explain the shooting that occurred in San Diego two days after he shot his mother. Excerpts from the transcript of defendant’s testimony in San Diego were read to the capital jury, as follows: Defendant and another man, Whalen, were talking in a parking lot alongside the Lincoln Continental. Defendant took a rifle from the trunk of the car and offered to sell it in order to buy food and “booze.” Defendant was holding the weapon in his left hand near the trigger, pointing it away from Whalen, when he was startled by the sound of a woman’s voice. As he turned to look, the gun “went off’ and wounded Whalen. Shocked and surprised, defendant drove away. He did not know the gun was loaded, and he did not “use” it between the time he took it from the closet in his parents’ house and the time he shot Whalen in San Diego. The instant jury learned by stipulation that Whalen “recovered” from the shooting. D. Defense Rebuttal In an apparent effort to show that defendant’s relationship with his mother was not strained, a close friend óf Esta’s, Ina Mae Smith, testified that she saw defendant and his mother talking on the couch during a visit to the Millwee home no more than two months before the shooting. However, consistent with prosecution evidence concerning the family’s policy of supervised visits, Smith acknowledged that defendant’s father was home at the time. II. Penalty Phase Facts As noted earlier, the penalty phase began in front of the same jury that had decided guilt, but ended prematurely in mistrial. A new penalty jury was impaneled and ultimately returned a death verdict. A. Prosecution Case To ensure the jury understood the circumstances of the capital crime, the prosecution introduced at the penalty retrial much of the same evidence that had been presented at the guilt phase. (§ 190.3, factor (a).) The penalty jury also learned that defendant had suffered a robbery conviction in 1977, and separate felony theft convictions in 1984 and 1986. (Id., factor (c).) Testimony about five other criminal acts involving violence or the threat of violence was also introduced, as described in the paragraphs that follow. (Id., factor (b).) 1. The San Diego crimes. Two days after the capital crime, on September 10, 1986, defendant and an older gray-haired man, apparently a transient, were arguing alongside the Lincoln Continental near the beach in San Diego. Two bystanders saw blood running from a cut in the older man’s arm, and one of them saw defendant holding a knife. After the older man hurried away, a young “surfer” named Whalen was seen talking with defendant while he was still holding the bloody knife. Defendant, who seemed agitated, opened the trunk of the car, placed the knife inside, and pulled out a rifle. He pointed and then fired the gun at Whalen, who may not have seen it because of where he was standing in relation to the car. Whalen fell to the ground, clutching his stomach. Defendant returned the rifle to the trunk, looked around, and drove away. A short distance from the scene, defendant rear-ended a vehicle that was stopped at an intersection. He hurriedly made a U-turn, striking the curb and almost hitting a flower stand in the process. However, defendant soon pulled over because of a flat tire. Police officers found him sitting on a front stoop near the disabled car, with his mother’s cane nearby. He was arrested without further incident. The Remington rifle and bloody knife were among the items found in the car. On cross-examination by the defense, one of the arresting officers testified that defendant may have been under the influence of alcohol. A streamlined version of defendant’s testimony in the San Diego trial was read at the penalty phase to the effect that defendant denied arguing with Whalen or shooting him on purpose, and that he was simply showing Whalen the gun while discussing whether to “hock” it. 2. The assault at the lake. David Vega lived next door to defendant’s parents in Riverside. About two months before the capital crime, Vega went to Lake Perris with defendant and defendant’s brother, Michael. While everyone relaxed and drank alcohol in the picnic area, Vega accidentally spilled his drink on defendant, who was seated nearby. Defendant picked up a piece of firewood and, “from out of the blue,” hit Vega in the head, almost knocking him unconscious. Vega staggered and tried to move away, but defendant approached him and asked, “Where’s my hammer?” Before defendant found the hammer, which was in a box with the firewood, Vega persuaded Michael to drive him home. However, defendant would not relinquish control of a portable stereo, which belonged to Vega. Defendant taunted Vega by saying, “Come and get it, asshole.” 3. The assault in the park. In another incident that occurred about two months before the capital crime, defendant and another transient were in a park near the Hi Ho Tavern throwing a knife at a tree for fun. It was around noon, and several adults and children were nearby. At one point, a young man approached and asked various people, including defendant, about a lost cat. Defendant responded angrily by saying he had not seen the “fucking” cat, and thrust the knife in the man’s direction. When the young man hurried away, defendant and his companion followed for several yards, while defendant still held the knife. Defendant and his companion then left the park and entered the Hi Ho bar, where they were soon approached by the police. 4. The scuffle in jail. In August 1982, when defendant was in the San Bernardino County jail, he ignored the request of Deputy Palacios to stop talking and keep moving while being escorted with other inmates from the showers to the cells. When Palacios grabbed defendant’s arm, defendant swung with his crutch, hitting Palacios in the upper body and knocking the keys from his hand. They struggled until another deputy helped Palacios subdue defendant. 5. The fight in traffic. Dennis Marich, a parolee, testified about a violent “run in” he had with defendant in March 1981, in a dispute over money. Marich was driving his car when defendant approached on his bicycle. Marich got out of the car and the pair apparently started to fight. Although Marich never saw a knife, he was cut or stabbed in the upper arm. Marich grabbed a rifle from his car and fired at defendant as he either ran or rode away. Defendant apparently suffered no injury, and Marich admitted being “under the influence” of an unidentified substance at the time. B. Defense Case Substantial background evidence was offered in mitigation, primarily through defendant’s father. It appears defendant was raised in a relatively comfortable and stable home. Defendant’s father was employed in the construction industry throughout his long marriage to Esta. The couple had four sons. Defendant—the oldest and “brightest” child—was born in 1952. He had many friends in school, and played guitar in a makeshift band. The family often vacationed at Big Bear Lake, where defendant’s father built a cabin. Defendant became rambunctious at age 16, after learning to drive and getting a car. (The parents apparently bought a car for each son at this age.) Defendant began associating with the “wrong” crowd and dropped out of high school. On cross-examination, defendant’s father recalled several instances in which defendant was arrested as a teenager for failing to appear in court for traffic citations. Although all four sons helped their father at work, defendant initially.. showed particular talent and drive. He qualified as a journeyman carpenter and became a member of the union at the unusually early age of 17. He worked hard for his father and, apparently, for other contractors as well. Defendant married at age 18. Defendant’s father indicated at trial that defendant and his wife, Nell, were reasonably close to the rest of the Millwee family during the early years of the marriage. The couple had three children—two girls and a boy. Defendant’s life took a dramatic turn for the worse in his early 20’s, during a time in which the family was experiencing other problems. For example, in 1973 and 1974, defendant’s father underwent several back surgeries and was medicated and housebound as a result. Defendant apparently took advantage of his father’s weakened state by stealing from his parents. The extent of the problem was revealed on cross-examination, when defendant’s father testified that defendant had forged 60 or 70 checks on his parents’ bank account. Around the same time, defendant’s brother Brad was killed in a motorcycle accident. In 1975, defendant’s parents learned that defendant was involved with drugs. Prior to this time, they knew of only one instance in which defendant drank too much liquor as part of a youthful prank. Although defendant’s parents were admittedly naive about drug abuse, they tried discussing it with defendant. He denied any problem. At one point, they succeeded in admitting him into a “detox” center. However, defendant stayed only one week, and it was not clear he successfully completed the program. In any event, defendant quickly resumed his drug habit. On cross-examination, defendant’s father blamed defendant for introducing his impressionable brother Michael to drugs. In 1977, defendant and Michael were convicted of committing a robbery together. Defendant was also responsible for a string of burglaries. Defendant was imprisoned for the next few years, and had little contact with his parents. Esta was afraid and ashamed of him. However, his father “never stopped giving him a chance.” When defendant was released from prison in 1980, he visited his wife, Nell, in Iowa, where she had since moved with their children. However, any hope of reconciliation soon died, and the couple divorced. In the years between his divorce and the capital crime, defendant lived as a transient near his parents. Defendant’s father hired defendant primarily to ensure he was not penniless. Defendant was a “good helper” who caused no problem on the job. Defendant’s father acknowledged on cross-examination, however, that defendant continued to cause problems for the family during this period. On one occasion, defendant arrived on his parents’ doorstep with a belt wrapped around his fist and punched his father in the face when he opened the front door. (Defendant’s father returned the punch.) In another incident, defendant broke into the home of his brother and sister-in-law, Ronald and Debra. Not knowing it was defendant, Ronald shot the intruder and caused the hip injury about which defendant had complained at the guilt phase. These incidents occurred in late 1981 and early 1982, when Esta was hospitalized with a brain aneurysm and the family was under considerable strain. Defendant’s father equivocated on the appropriate punishment in the present case. He was willing to defer “to the judge and jury,” but he did not necessarily believe that death was warranted. Defendant’s ex-wife, Nell, made a more direct plea for mercy. She testified that she had traveled from Alaska to help prevent defendant’s execution. Nell explained that all three of defendant’s children, now teenagers, were exceptional students and that the oldest child was attending college on a scholarship. Photographs of the children were introduced, and the jury learned that the youngest child was present in court. On cross-examination, Nell admitted that she had not seen defendant since his trip to Iowa 10 years earlier and that they had talked on the phone only 5 times since then. Defendant had not contacted or helped support his children during this time. The defense presented Dr. LeRoy, an orthopedist, to examine X-rays taken of defendant near the time of trial and in prior years. Dr. LeRoy testified that the gunshot wound had fractured defendant’s right hip and impaired normal motion between the femoral head and hip socket. Bullet fragments were still present at the fracture site, and there were signs of related degeneration in the cartilage and joint. While the chance of further deterioration was slight, defendant’s condition would not improve if left untreated. Treatment options included total replacement of the hip with an artificial device, or hip fusion surgery in which the joint is obliterated to stimulate natural attachment of the femur and pelvis. Defendant’s condition could be painful under circumstances not described by Dr. LeRoy. III. Guilt Phase Issues A. Motion to Set Aside the Information Defendant argues that the trial court erred in denying his pretrial motion to set aside the information under section 995. The motion was made by Mario Valenzuela, who was appointed as lead counsel for the defense in superior court after the municipal court found probable cause to bind defendant over for trial. One of the claims raised in the section 995 motion and repeated on appeal is that appointed counsel in the municipal court—Frank Peasley —rendered ineffective assistance at the preliminary hearing. Defendant generally avers here, as below, that Peasley was inadequately prepared. Defendant specifically claims that Peasley failed to adequately cross-examine defendant’s relatives and call additional family members in an effort to discover unspecified but “possibly mitigating information” for use at the guilt and/or penalty phases. At the hearing on the section 995 motion, defendant introduced the testimony of Patrick McNeal, a criminal defense attorney who had reviewed the record of the preliminary hearing and obtained a general case history from trial counsel, Valenzuela. The record of the preliminary hearing revealed that while only noncapital murder and theft charges were filed in municipal court, the prosecutor told Peasley before the preliminary hearing that special circumstance charges would probably be filed if defendant was held to answer in superior court. At the preliminary hearing, the prosecutor called police officers from Riverside and San Diego to describe the investigation, and elicited testimony from defendant’s father and sister-in-law concerning the crime scene and defendant’s activities the day of the crime. With the exception of two police officers, Peasley cross-examined all prosecution witnesses. No defense witnesses were called. Based on these facts, and upon information that the Millwee family was “hostile” to the defense, McNeal opined that Peasley was ineffective insofar as he limited his examination of witnesses, particularly defendant’s father, to events occurring the day of the crime. McNeal testified, for example, that he would have obtained a “family history” from the father and elicited information about defendant’s “behavior” in the days preceding the crime. McNeal opined that since Peasley knew capital charges might be filed and that there might be no other opportunity to question the family before trial, failure to use the preliminary hearing as a broad discovery tool reflected a general lack of preparation, investigation, and tactical foresight on Peasley’s part. McNeal conceded, however, that he had no personal knowledge of the investigation conducted by Peasley, and was not aware of particular facts or tactical concerns arising out of Peasley’s interviews with defendant. McNeal further acknowledged that thorough cross-examination was “often” tactically ill-advised at the preliminary hearing, and that it would be “speculative” to conclude that a different outcome would have occurred at any stage if Peasley had performed in the suggested manner. No other testimony was introduced at the hearing or considered by the court in denying the motion. In general, irregularities in pretrial commitment proceedings require reversal on appeal only where the defendant shows he was “deprived of a fair trial or otherwise suffered prejudice” as a result. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) Where the case involves an ineffective assistance claim of the sort at issue here, no prejudice typically appears unless counsel’s pretrial performance resulted in the loss of material evidence and caused tangible harm to the defense at trial. (See People v. Coleman (1988) 46 Cal.3d 749, 771-773 [251 Cal.Rptr. 83, 759 P.2d 1260] [preliminary hearing counsel’s failure to contest prosecution’s scientific evidence and conduct independent forensic investigation did not impair defense of rape-murder charge at trial, including introduction of expert medical testimony]; People v. Aston (1985) 39 Cal.3d 481, 494-495 [216 Cal.Rptr. 771, 703 P.2d 111] [unavailability of witness at preliminary hearing was “cured” when witness later testified for defendant at suppression hearing and was available at trial].) No such showing has been made here. Defendant and his father, along with several friends and relatives, testified at the guilt phase concerning the facts surrounding the capital crimes. The jury learned about defendant’s mood and behavior shortly before he shot his mother, his long-term relation- . ship with his mother and other family members, and the transient conditions under which he lived. In addition, defendant’s father served as the main witness for the defense in describing defendant’s personal history and attempting to generate sympathy with jurors at the penalty phase. Defendant identifies no exculpatory or mitigating evidence overlooked at any phase of the proceedings, nor does he demonstrate that counsel’s performance at the preliminary hearing “affected the ability of trial counsel to advocate defendant’s case at trial.” (People v. Coleman, supra, 46 Cal.3d 749, 773.) We therefore reject defendant’s claim of reversible error based on counsel’s performance at the preliminary hearing and on denial of the pretrial motion to dismiss the case. B. Motion to Recuse the District Attorney Before trial, defendant moved to recuse Daniel Lough, the deputy district attorney in Riverside who conducted the preliminary hearing and prosecuted defendant through trial and entry of judgment in this case. Lough allegedly harbored a strong dislike for defendant that began several years earlier when a felony conviction Lough had helped obtain against defendant in San Bernardino (where Lough then worked) was reversed on appeal. Defendant claimed in the recusal motion that prosecutorial bias could be inferred from the fact that special circumstances were not alleged in this case until after Lough became involved, and that defendant purportedly overheard Lough state at the preliminary hearing that there was insufficient evidence to support such allegations. Both Lough and defendant testified at the recusal hearing, as discussed further below. After listening to argument by defense counsel and by the Attorney General appearing on the People’s behalf, the trial court denied the motion. The court found nothing in Lough’s professional contact and familiarity with defendant, including the San Bernardino case, that could or did cause disdain or resentment as alleged by defendant. As best the court could discern before trial, there was sufficient evidence to support the filing of felony-murder special-circumstance allegations, and the decision to seek the death penalty appeared reasonable under the circumstances. The court found no evidence that Lough personally believed the contrary was true, or that his conduct as a prosecutor was motivated by a “secret grudge” against defendant. In challenging the ruling on appeal, defendant basically repeats the claim of bias made below and alleges the same supporting facts. He insists Lough “expressed” animosity towards defendant when testifying at the recusal hearing. Defendant also theorizes that the San Bernardino case not only contributed to such animosity, but that Lough had “gone out of his way to keep track” of that case even after his participation had ended. Since its enactment in 1980, section 1424 has governed motions to disqualify the prosecuting attorney. First, a conflict of interest must be shown, that is, there must be a “ ‘reasonable possibility that the DA’s office may not exercise its discretionary function in an evenhanded manner.’ ” (People v. Eubanks (1996) 14 Cal.4th 580, 594 [59 Cal.Rptr.2d 200, 927 P.2d 310] (Eubanks), quoting People v. Conner (1983) 34 Cal.3d 141, 148 [193 Cal.Rptr. 148, 666 P.2d 5] (Conner).) Second, the conflict must be “ ‘so grave as to render it unlikely that defendant will receive fair treatment.’ ” (Eubanks, supra, 14 Cal.4th at p. 594, quoting Conner, supra, 34 Cal.3d at p. 148.) In other words, “whether the [alleged] conflict is characterized as actual or only apparent,” recusal is not required under section 1424 unless the potential for prejudice is “real,” and rises “to the level of a likelihood of unfairness.” (Eubanks, supra, 14 Cal.4th at p. 592, italics omitted.) Consistent with these principles, a disabling conflict does not exist simply because the district attorney and the defendant have been adversaries in other legal proceedings, even where the defendant previously prevailed. Other evidence of overriding bias must be present to warrant disqualification. (E.g., People v. Turner (1994) 8 Cal.4th 137, 162-163 [32 Cal.Rptr.2d 762, 878 P.2d 521] [recusal was properly denied absent evidence that the prosecutor who had committed reversible error at defendant’s first trial would commit misconduct on retrial]; People v. Hamilton (1989) 48 Cal.3d 1142, 1155-1156 [259 Cal.Rptr. 701, 774 P.2d 730] [defense counsel’s complaint to the State Bar about the prosecutor’s ex parte contacts with defendant did not compel recusal absent evidence of actual antagonism towards the defense].) Contrary to what defendant claims, the trial court was aware of section 1424 and controlling case law, and applied these principles to evidence adduced at the hearing. Ample evidence supports the court’s findings. For example, Lough testified that there was nothing unusual or upsetting about the outcome of the San Bernardino case. He handled pretrial proceedings in that case, and another district attorney tried defendant and obtained a conviction. Lough explained that even though the conviction was reversed in part because of the prosecution’s use of defendant’s prior convictions under Proposition 8, the law was in a “state of flux” at the time, the Court of Appeal’s opinion was “well-reasoned,” and occasional reversals are a “fact of life.” Lough was not concerned about defendant escaping liability or punishment, since Lough knew that defendant had served most of his sentence before the judgment was reversed and he ultimately pled guilty on retrial. Consistent with the trial court’s findings, Lough adamantly denied any “personal animosity” towards defendant as a result of their prior legal encounter or for any other reason. The record also reveals no improper tactics in the instant case. Lough testified that the decision to charge special circumstances and seek the death penalty was made by a team of attorneys in the office, including him. They relied on various factors commonly found in capital cases, such as defendant’s long criminal history and armed robbery conviction, the brutality involved in taking his mother’s life, and the violent crimes he committed in San Diego shortly after the capital crime. Lough recalled that at the preliminary hearing, he told defense counsel, Peasley, that special circumstance allegations would probably be added to the case even though they might be “difficult” to prove. Contrary to defendant’s version of events, which the trial court explicitly declined to credit, Lough denied saying or believing that the evidence against defendant was insufficient to support felony-murder findings. In sum, defendant presented no evidence that District Attorney Lough had formed strong negative feelings towards defendant for any reason. Based on the trial court’s decision crediting Lough’s testimony concerning statements made at the preliminary hearing, and based on Lough’s testimony about how and why the charging decision was made, there was substantial evidence from which the court could infer that special circumstance allegations and the quest for a death sentence were brought pursuant to an impartial and legitimate exercise of prosecutorial discretion. There was no evidence this case would not have been capitally charged or would otherwise have been prosecuted differently if either a different district attorney or a different defendant were involved. The court did not abuse its discretion in denying the motion to disqualify the prosecutor. C. Defendant’s Racial Slur Before trial, defendant moved to prevent the prosecution from introducing evidence of the racial epithet he used while arguing with his father the morning of the crime, “I’m sick of being your nigger.” The defense claimed, among other things, that the statement would tend to inflame jurors and produce an unfavorable verdict simply because they perceived defendant as a person of low moral character. Defendant urged the court to exercise its discretion under Evidence Code section 352, and bar the prosecution from introducing this evidence at trial. In opposition, the prosecution maintained that the statement was relevant to establishing motive and intent to kill for purposes of the first degree murder charge and the felony-murder special-circumstance allegations. The prosecutor argued that the challenged statement, viewed in context of the entire argument, tended to show that defendant became extremely angry when his father refused to take him to work and to buy a new cane and shoes; that defendant was no longer willing to tolerate the control he believed his father exercised; and that defendant decided to retaliate by stealing needed items from the family home. The prosecutor indicated that he planned to argue at trial that defendant intentionally killed his mother in an effort to facilitate the robbery and burglary and, perhaps, to inflict emotional pain upon his father as well. The trial court found that the probative value of the evidence substantially outweighed any prejudicial impact. It therefore denied defendant’s motion to bar introduction of the challenged statement in the prosecution’s case. In his opening brief, defendant contends the court abused its discretion and violated his due process rights in light of the arguments and concerns he raised at trial. However, we agree with the Attorney General’s suggestion that no cognizable claim is raised. Both defendant and his father testified that they argued over defendant’s suitability to work the morning of the crime, and that defendant said this was the “last” time he would endure such treatment. But it was defendant, and only defendant, who testified that he used the word “nigger” during the exchange. Just as review cannot occur in the absence of an actual evidentiary ruling CPeople v. Samayoa (1997) 15 Cal.4th 795, 827 [64 Cal.Rptr.2d 400, 938 P.2d 2]; People v. McPeters (1992) 2 Cal.4th 1148, 1179 [9 Cal.Rptr.2d 834, 832 P.2d 146]), a claim of error does not arise where no evidence was introduced as the result of a ruling allowing its admission. In other words, the court’s exercise of discretion had no effect on defendant’s trial. Any unfavorable inferences drawn from defendant’s use of a racial slur are attributable solely to his own testimony, and cannot be challenged here. D. Rebuttal Evidence—Esta’s State of Mind Before trial, defendant moved to prevent the prosecution from disclosing specific reasons for defendant’s strained relationship with his mother and the policy against unsupervised visits in the family home. The challenged evidence consisted of statements Esta had made to defendant’s father and sister-in-law that Esta feared and mistrusted defendant because he had provoked fights and stolen from his parents many times before. Defendant also sought to bar similar testimony from Esta’s close friend, Jeannie Callen, to the effect that Esta said she carried a knife because she feared defendant. Following extensive argument by the parties, the trial court agreed with defendant that even assuming Esta’s statements were not inadmissible under the hearsay rule (see Evid. Code, § .1250), her state of mind had no direct bearing on the prosecution’s case, and might impermissibly suggest that defendant was predisposed to committing acts of theft and violence (see id., § 1101, subd. (a)). The court therefore precluded the prosecution from introducing this evidence in its case-in-chief under Evidence Code section 352. The court made clear, however, that its ruling was subject to change depending on the evidence presented by the defense and any rebuttal sought as a result. Consistent with its theory of first degree murder, the prosecution sought to prove that defendant entered his parents’ house knowing he was unwelcome and intending to steal their property. The prosecution abided by the court’s pretrial ruling and presented a censored view of defendant’s relationship with his mother. Thus, family witnesses disclosed that mother and son generally did not “get along,” and that special arrangements were made to ensure he did not visit when she was home alone. Outside the jury’s presence, the court reminded the parties that these witnesses could not mention Esta’s expressions of fear and mistrust, and warned counsel on both sides when they occasionally risked “opening the door” to this evidence on direct or cross-examination. As noted, defendant admitted the shooting but denied it was intentional or committed during a robbery or burglary. He testified that he arrived at the house solely to retrieve an item that belonged to him (the Marlin rifle) and that his mother invited him inside (supposedly as a matter of routine). According to defendant, he grabbed the Remington rifle by mistake and accidentally shot his mother because a sudden pain in his leg caused him to stumble and the gun to fire. Defendant admitted taking other property that did not belong to him, but claimed he decided to do so in a state of panic and only after the shooting had occurred. Over the objection of the defense, the prosecution successfully moved to impeach defendant with the evidence that had previously been disallowed under Evidence Code section 352. The court agreed with the prosecutor that Esta’s expressions of fear and mistrust towards defendant had become “critical” in light of his testimony concerning the amicable nature of their relationship and his consensual presence inside the house. The prosecution therefore introduced this testimony in its rebuttal case, subject to a special instruction describing the limited purpose for which the evidence was being admitted. On appeal, defendant assumes the jury would necessarily find him guilty of robbery and burglary once it heard that his mother believed he had threatened and stolen from the family before. No witness, he argues, should have been allowed to testify along these lines under Evidence Code section 352. Defendant seems most concerned about Esta’s conversation with Jeannie Callen, noting that it occurred several months before the capital crime and painted a “graphic” picture of a mother who carried a knife to protect herself from her own son. No abuse of discretion occurred. The court could reasonably conclude that the challenged evidence was highly relevant on rebuttal for purposes of assessing defendant’s credibility as a witness and his version of events leading up to the killing. Esta’s statements that she was afraid of defendant, as evidenced by her possession of a knife, and that she mistrusted him, as evidenced by her accusations of theft, contradicted defendant’s express testimony that she was not afraid of him and that there were no “problems” in their relationship. Such evidence also tended to refute defendant’s testimony that he regularly spent time alone with his mother and that she welcomed him inside when he arrived the morning of the crime. With respect to Jeannie’s testimony in particular, the court could find that the fear and mistrust expressed by Esta continued until the time of her death, given the many years over which Esta felt ill-will towards defendant (i.e., since at least 1981). The record also does not support defendant’s claim of undue prejudice. Although three different witnesses described Esta’s fear and mistrust, their testimony was relatively brief and mild. No evidence was introduced concerning the nature or extent of any thefts or violent acts attributed to defendant. Moreover, the jury was prohibited from using evidence of Esta’s state of mind to draw any unfavorable inferences about defendant’s character or propensity to commit crimes—a special instruction which defendant does not acknowledge at any point in his briefing on appeal. Defendant argues for the first time in this court that Jeannie Callen’s account of her conversation with Esta lacked sufficient “indicia of reliability,” and that admission of this testimony violated defendant’s federal constitutional rights, particularly his right to confront and cross-examine witnesses. Defendant’s primary complaint seems to be that Jeannie could not be trusted to accurately recall or recount the conversation because it occurred a substantial period of time before the capital crime and trial, and because it concerned an event that was not especially memorable. Defendant has waived this claim by failing to timely raise it in the trial court. (People v. Champion (1995) 9 Cal.4th 879, 918 [39 Cal.Rptr.2d 547, 891 P.2d 93]; People v. Raley (1992) 2 Cal.4th 870, 892 [8 Cal.Rptr.2d 678, 830 P.2d 712].) The claim lacks merit in any event. The confrontation clause is concerned with the reliability of statements made by a declarant who is not present in court or otherwise available for cross-examination. (See People v. Farmer (1989) 47 Cal.3d 888, 905 [254 Cal.Rptr. 508, 765 P.2d 940], citing Ohio v. Roberts (1980) 448 U.S. 56, 65-66 [100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597].) Defendant had ample opportunity to test Jeannie Callen’s memory of the “knife” conversation at trial, and to cross-examine her about any other factor bearing on the credibility of her account. Defendant offers no specific reason to doubt the truth and accuracy of Esta’s out-of-court remarks, and we find no basis on which to doubt their reliability when made. The challenged statements were admitted under the state-of-mind exception to the hearsay rule—a provision which generally satisfies the confrontation concerns raised here. (Evid. Code, § 1250, subd. (a); People v. Morales (1989) 48 Cal.3d 527, 552 [257 Cal.Rptr. 64, 770 P.2d 244], and cases cited.) Also, there was virtually no risk of inaccuracy or falsehood in Esta’s remarks, since she was describing an emotional state then in existence and would not have disclosed such embarrassing and painful details to her close friend if they were untrue. No constitutional violation occurred. E. Rebuttal Evidence—Defendant’s San Diego Testimony As noted, the gist of defendant’s testimony in the capital trial was that he went to his parents’ house solely to retrieve the malfunctioning Marlin, that he grabbed the loaded and functioning Remington by mistake, and that the gun misfired and killed Esta as the result of a sudden “jolt” in his leg. On cross-examination, defendant was asked whether “the same gun went off accidentally again and shot a man” in San Diego two days later. Defendant successfully asserted the privilege against self-incrimination and declined to answer on grounds criminal charges were still pending against him in the San Diego case. While preparing its case in rebuttal, the prosecution moved to introduce excerpts from the transcript of defendant’s testimony in the San Diego proceeding. The prosecutor explained that defendant’s testimony about the San Diego shooting was not being offered “for the facts” but—like evidence of Esta’s mental state discussed above—solely for impeachment. The prosecutor wanted the jury to know that defendant’s versions of the two shootings were suspiciously “similar” in some respects and hopelessly “inconsistent” in other respects. Defendant objected primarily on grounds the evidence was irrelevant and unduly prejudicial under Evidence Code section 352. He argued that jurors would assume he was a violent person and guilty of the capital crime if they learned he had been involved in a second shooting two days later. After discussing the matter at length with counsel, the court overruled the objection and decided to admit the proffered evidence for the limited purpose sought by the prosecution. The court found the evidence was substantially more probative than prejudicial insofar as it suggested that defendant offered the same “pat” or false excuse for both shootings. Thus, the instant jury heard the explanation defendant gave under oath for the shooting in San Diego, and learned that the victim recovered from his wound. No other evidence from the San Diego trial was introduced. The jury never learned that defendant was convicted of attempted voluntary manslaughter in that case or that the conviction was reversed for instructional error on appeal. The trial court ultimately told the capital jury that defendant’s San Diego testimony could not be used for any purpose other than to assess his credibility as a witness in this case—a limiting instruction which defendant overlooks on appeal. Defendant now claims a prejudicial abuse of discretion occurred for reasons similar to those raised at trial. We disagree. “Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.” {People v. Ewoldt (1994) 7 Cal.4th 380, 393 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Here, defendant implicitly concedes that evidence of the San Diego shooting was not introduced to prove he had a propensity for violence and shot his mother in Riverside two days earlier. He suggests, however, that the evidence was irrelevant and inadmissible for purposes of demonstrating a common design or plan under Evidence Code section 1101, subdivision (b), because the San Diego and capital crimes were too “spontaneous” and “different” to support such a theory. (See People v. Sam (1969) 71 Cal.2d 194, 205 [77 Cal.Rptr. 804, 454 P.2d 700].) Contrary to what defendant seems to claim, the prosecution was not obligated to comply with the requirements for showing a common plan under Evidence Code section 1101, subdivision (b), because the excerpts from defendant’s testimony in the San Diego case were not offered or admitted for that purpose. The evidence was instead admitted, with an appropriate limiting instruction, for the far narrower purpose of showing the implausibility and untruthfulness of defendant’s testimony in the capital case. (See Evid. Code, § 1101, subd. (c) [nothing in the statute “affects the admissibility of evidence offered to support or attack the credibility of a witness”].) Indeed, defendant’s testimony in the San Diego case suggested that he was not a credible witness because of at least one critical discrepancy between the two accounts. While defendant testified in San Diego that he had not fired the gun or known it was loaded prior to the shooting charged in that case, he admitted under oath in the capital case that he shot his mother with the same weapon in Riverside two days earlier. Moreover, defendant sought to avoid responsibility for both shootings by offering the same innocent explanation in each case. He testified in each proceeding that he was thinking about selling the gun, that he was holding it oddly by the trigger, and that a sudden distraction caused the gun to shift and discharge in the direction of an unintended victim. The jury could readily find that defendant’s credibility in the present case was diminished by the fact that he offered the same explanation for another shooting that occurred only 48 hours later. In light of the foregoing, the evidence was not subject to exclusion under Evidence Code section 1101. We also reject defendant’s claim that the evidence should have been excluded under Evidence Code section 352. Because disclosure of uncharged offenses can be highly prejudicial, trial courts should use particular care in performing this weighing analysis. (People v. Ewoldt, supra, 7 Cal.4th 380, 404.) For reasons we have already explained, this principle was