Full opinion text
Opinion MOSK, J. Defendant was charged with, and found guilty by a jury of, the following offenses: the first degree murders of Charles Gardner, a fellow prison inmate, and Albert Patch, a correctional officer (Pen. Code, § 187); conspiracy to commit murder (§ 182); assault by a life prisoner resulting in death (§ 4500); and possession of a weapon by an inmate (§ 4502). The jury also found true special circumstance allegations that defendant had previously been convicted of first degree murder (§ 190.2, subd. (a)(2)), that he had committed multiple murders (§ 190.2, subd. (a)(3)), and that he had lain in wait to kill Gardner (§ 190.2, subd. (a)(15)). He was sentenced to death for the murder of Gardner and for the violation of section 4500, and to life imprisonment without possibility of parole for Patch’s killing. A codefendant, Archie Menefield, was found guilty in a joint trial of similar charges stemming from the same incident, and was sentenced to life imprisonment without possibility of parole. For reasons that will appear, the judgment is reversed with regard to the murder of Patch. The multiple-murder special-circumstance finding is set aside. In all other respects, the judgment is affirmed. I. Facts A. The Guilt Phase. Early on the morning of August 17, 1980, Charles Gardner, an inmate at the California Medical Facility, Vacaville, walked down a first-floor corridor as his fellow inmates lounged against the walls on both sides. He emerged with 11 stab wounds that would shortly prove to be fatal. Nevertheless, he was able to grab a knife that an assailant had left on the floor. In pursuit of Menefield, Gardner ran or staggered some distance up a flight of stairs to the second floor, where he plunged the knife into the chest of a prison guard, Officer Patch. Patch died within the hour at the prison clinic, Gardner shortly afterward. Two issues dominated the trial: the identity of Gardner’s murderer or murderers, and Gardner’s mental state when he attacked Patch. The prosecution sought to prove defendant killed Gardner. It offered evidence to support two scenarios, both based on a theory that Gardner was killed in a gang dispute. One possibility was that defendant and Menefield planned to kill Gardner as part of a conflict among members of the Black Guerrilla Family (BGF), a prison gang. Gardner was the protégé of Ruben Williams, the Vacaville BGF leader, with whom defendant disagreed over gang tactics. However, there was evidence that cast doubt on this possibility: defendant may have obtained the prison-made knife with which he stabbed Gardner from Williams himself. The other possibility was that defendant stabbed Gardner because he had called him a “punk nigger” in the prison yard and thereby showed disrespect to a fellow BGF member. “Punk” is prison jargon for a passive homosexual. There was testimony that the term is a serious insult to many inmates, and was intolerable to defendant. Inmates testified they saw defendant stab Gardner repeatedly and saw Menefield restrain Gardner when he tried to escape. After the incident, witness Cade was sent to maximum security for fighting with another inmate and spoke with defendant, who was being held there as a suspect. Cade testified defendant told him that he had done the deed. Cade further testified that defendant said Gardner wanted to withdraw from the BGF and had threatened another inmate, and that Williams had ordered a “move on him” if Gardner posed a threat to the inmate. According to Cade, defendant also said that after he attacked Gardner defendant ran to the third floor. Another inmate testified that he heard Menefield and defendant argue about the assault after it took place. According to that inmate, defendant asked, “Why didn’t you pick up the knife?” Menefield assertedly replied, “Because I was running right behind you up the stairs.” Inmate Long testified that he saw defendant stab Gardner and then run up to the third floor. In response, defendant introduced evidence that the prosecution’s key witnesses—inmates Long, Hayes, Cade, and Rooks—had won benefits from the state that gave them a motive to lie. Defendant also contended that witnesses had been housed together and had had a chance to reconcile their testimony. Defendant did not testify at the guilt phase. He sought to prove that he was on the third floor when Gardner was stabbed. There was evidence that he had been seen at that location just after an alarm had sounded as a result of the attack and that it was impossible for him to have made his way there from the first floor in time. For its part, the prosecution introduced evidence that an agile person could run from the first floor to certain key locations in seconds and walk briskly to defendant’s cell in less than one minute, and that defendant could have done so unseen. Defendant also sought to prove that the stabbing of Gardner was not the proximate cause of his death: there was evidence that Gardner was relatively well physically on arrival at the prison clinic and died as a result of incompetent medical care. As for Patch’s killing, there was evidence that Gardner, though failing rapidly, pursued Menefield up the stairs to the second floor. Prison guards hearing the commotion rushed toward the two, seizing Menefield and, in the case of Patch, trying to secure Gardner. Gardner then stabbed Patch. The prosecution presented expert testimony to support its theory that Gardner fell rapidly into shock from loss of blood after his stabbing and became an unconscious agent of defendant. Prison workers described Gardner as a well-behaved inmate with no innate desire to attack a guard. Defendant introduced evidence that Gardner intended to stab Patch to exact revenge on his keepers, whom he hated, and that when he attacked Patch he was physically capable of thinking for himself and merely took advantage of the opportunity presented by having a knife in hand. B. The Penalty Phase. In aggravation, the People introduced evidence of prior violent criminal activity and a prior felony conviction. In 1970, on his 17th birthday, defendant shot and killed a high school security guard, Obidee Cowart, and was convicted of first degree murder. There was also evidence of continuing BGF membership found in defendant’s cell at Soledad Prison, including a note addressed to defendant in Menefield’s handwriting saying that a possible witness to Gardner’s stabbing would have to be killed. Further, defendant had stabbed three inmates besides Gardner and had been caught with the paraphernalia of violence in prison. Defendant testified at the penalty phase. In mitigation, he presented evidence bearing on background and character. He grew up virtually without social and emotional support. He was the eldest of five siblings, each of whom had a different father. His mother, an abusive alcoholic, was 15 when she gave birth to him; she never lived with defendant’s father. When she drank she would neglect the children; she and the man she lived with for 13 years would burn and stab each other in front of them. Defendant would steal food for his siblings when his mother’s welfare money went to buy alcohol. Defendant grew up in a dreary section of the Watts neighborhood in Los Angeles; when he was 12, his family moved to a notoriously dangerous housing project. Defendant testified that he had not intended to kill Cowart but had acted instinctively in self-defense after the latter had pulled a gun on him. He also stated that he fell out with the BGF over its practice of assaulting people who disobeyed its rules or policies. For that reason, he said, the gang tried twice to have him killed. He learned that an inmate named Lynch had ordered a BGF attack on him, and stabbed him in revenge. He wanted to escape the BGF but had to maintain an appearance of continued adherence lest he be killed for trying to quit. He could not completely disassociate himself from the BGF until he was sent to Tehachapi Correctional Institution, a transfer he earned by good behavior. He testified that he had earned a high school equivalency degree and had taken college correspondence courses. II. Guilt Phase Issues A. Evidentiary Issues. 1. Introduction of Evidence of Gang Membership and Activity. In a motion in limine, codefendant Minefield, on behalf of both defendants, sought a hearing to exclude evidence of the defendants’ gang membership, apparently on grounds of relevance. The court allowed the testimony to be introduced at trial. Defendant now contends the evidence was irrelevant and substantially more prejudicial than probative. Defendant concedes, however, that the court apparently never ruled explicitly on the motion in limine, but noted only in passing during a hearing on another matter that it thought such evidence was relevant to motive and identity. Nor does the record reveal an objection at trial. Because defendant failed to obtain a pretrial ruling on the issue and did not pursue his objection at trial, we will not address his contention, for it is procedurally barred. (See People v. Morris (1991) 53 Cal.3d 152, 189 [279 Cal.Rptr. 720, 807 P.2d 949].) The prosecution also introduced the testimony of current or former government investigators Samuel L. Brown, Thomas L. Hartman, and Manuel Gloria about BGF practices and rules. At a pretrial hearing, the prosecutor referred to Brown and Gloria as experts. Defendant requested discovery of all documents and other sources from which the witnesses had derived their knowledge, even if complying would mean producing everything one witness had seen for seven years. The court rejected the request as too broad and burdensome. As an afterthought, Menefield then briefly expressed a concern that the evidence offered would be hearsay. The court said that hearsay could not be avoided in offering any opinion and left the matter open until trial. At trial, Brown read a copy of the BGF oath to the jury. He was then asked to interpret the oath; Menefield objected, in essence on the ground of lack of expertise. Before the court responded, Brown stated he had talked to BGF members about the oath and knew what it meant; defendant objected to this testimony as hearsay. The court overruled both objections. Brown testified he had developed an expertise in the activities of the BGF during seven and one-half years in the investigative branch. He described the gang’s structure and interpreted the gang’s credo for the jury. Later motions to strike the testimony as hearsay and to produce the documents on which Brown relied were denied. Gloria described BGF involvement in drug trafficking and other prison activities; defendant unsuccessfully renewed the same objection he had made to Brown’s testimony. Hartman, a witness with four years’ experience in the investigative office, also testified over objection about certain BGF rules and practices. The prosecutor asked Hartman what the rules required a backup member to do if the person doing a “hit” had trouble with the victim. Defendant and Menefield objected on the ground, inter alia, of lack of foundation. The court allowed the witness to continue. Hartman said that he was familiar with gang rules through conversations with inmates and other investigators, and that the backup man is required under penalty of death to aid the assailant. Defendant contends this testimony was inadmissible because the witnesses were not qualified as experts on prison gangs or on the BGF in particular and lacked personal knowledge of the substance of their testimony. The claim is unpersuasive. First, defendant never sought to challenge the witnesses’ qualifications as experts, and it is too late to raise the issue now. Moreover, the decision of a trial court to admit expert testimony will not be disturbed on appeal unless a manifest abuse of discretion is shown. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 [283 Cal.Rptr. 382, 812 P.2d 563].) Given the witnesses’ background and experience, we would not have disturbed the trial court’s decision to admit their testimony had defendant timely challenged their qualifications. Defendant contends his Sixth Amendment confrontation rights were violated when the court denied his motion at trial to produce the materials on which the officers relied to interpret the BGF oath and rules. The confrontation clause of the Sixth Amendment did not entitle defendant to the vast array of materials he requested before and at trial. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 52-53 [94 L.Ed.2d 40, 54-55, 107 S.Ct. 989] [pretrial discovery request].) Unlike People v. Price (1991) 1 Cal.4th 324, 420-421 [3 Cal.Rptr.2d 106, 821 P.2d 610], the present case does not involve expert witnesses who refused to answer any questions posed to them on cross-examination regarding the sources from which they derived their expertise. Defendant also alleges a violation of his due process rights because the court permitted the introduction of evidence of BGF activity with which he had no connection. We perceive no fundamental unfairness. The court did not abuse its discretion in permitting the prosecution to explore the nature of prison-gang life in order to elucidate its theory of the case, at least insofar as such testimony was necessary to furnish the jury a context for understanding that theory. 2. Evidence of Gardner’s Mental State. The prosecution sought to prove that Gardner was not inclined to attack Patch of his own free will, and the court allowed two witnesses to testify to Gardner’s lack of a violent disposition. Defendant objected on the ground of improper character evidence to the testimony of the first witness, James T. Donovan, a guard. Donovan stated that Gardner “felt that he had shown by his behavior that he had changed, that he had a different outlook,” and that he had remained “disciplinary-free” for some time. A psychiatrist, Dr. Grant Garlock, testified without objection that Gardner “stated again that he wanted to change his life around, that he had ambitions for himself to get things put together. . . ; he wanted to get out of prison and be a productive member of society, get married and settle down.” While “historically speaking ... he was reclusive, seclusive, hostile, defensive and highly aggressive,” Dr. Garlock “never knew him in that condition because the first time I ever met him he was docile, cooperative, reserved, quiet, distant, [and] very proper and polite. ... He was an ideal model prisoner . . . .” Defendant complains of the foregoing evidence. He failed to object to Dr. Oarlock’s testimony, and hence has failed to preserve that claim of error. Donovan’s testimony was not offered to prove Gardner’s conduct on the occasion of his stabbing of Patch; Gardner’s conduct was undisputed. Though Evidence Code section 1100 permits the introduction of character evidence except as otherwise provided by statute, a major exception is that such evidence is generally inadmissible to prove a person’s conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) Thus, if Donovan’s testimony had been offered to prove conduct, it is arguable that it should not have been admitted. But the evidence was offered as part of the prosecution’s effort to prove that Gardner was an unconscious agent and hence defendant’s act was the proximate cause of Patch’s death. We find no error. Defendant also offered certain letters as evidence of Gardner’s bad character. In defendant’s view, Gardner’s character was epitomized in one passage wherein Gardner stated, “It would be no more wrong for me to kill those who hold me in bondage than it would be for me to get a drink of water when thirsty.” The prosecution objected to the letters as irrelevant and as substantially more prejudicial than probative. The court sustained the objection, stating that the evidence would confuse the jury and was irrelevant. (Evid. Code, §§ 350, 352.) Defendant did not pursue the matter further. He now maintains the court erred under state law and also violated his right to due process when it excluded the letters. He argues that he should have been allowed to show through proof of more than one act demonstrating bad character that the conduct was the function of a character trait rather than an “aberration.” (.People v. Castain (1981) 122 Cal.App.3d 138, 143 [175 Cal.Rptr. 651].) We disagree that the court erred under state law in excluding the epistolary evidence of Gardner’s bad character. The court and counsel discussed two letters in detail. The defense conceded that the first letter related Gardner’s attitude toward one correctional officer only and that it possessed other evidence of Gardner’s bad character at Folsom Prison, whence the letter apparently was sent. It appears the letter may not have been dated; the court was concerned that it might have been written during one of Gardner’s psychotic episodes. The second letter, in which Gardner says he could as soon kill those who hold him as quench his thirst, may have been written as early as a decade before his and Officer Patch’s death. Moreover, the other evidence of Gardner’s bad character that the defense introduced was strong: it described a course of conduct that included fighting with and seriously injuring guards as well as cursing them, and other bad acts that became the subject matter of both documentary and testimonial evidence. The court’s finding that the letters were of dubious relevance because of their possible remoteness and Gardner’s questionable mental state, and also that they were confusing, cannot be deemed an abuse of discretion. For the foregoing reason, no violation of federal due process appears; the due process clause does not entirely strip a trial court of its power to exclude evidence on grounds of irrelevance or potential confusion, and the rulings here did not, in our view, offend due process. (See People v. Babbitt (1988) 45 Cal.3d 660, 684-685 [248 Cal.Rptr. 69, 755 P.2d 253].) 3. Exclusion of Evidence of Removal of Tattoo. Because other inmates gave damaging testimony against defendant, an important part of his defense consisted of an attack on their credibility. To this end, he introduced evidence that the inmate witnesses who testified for the prosecution had won benefits from the state for their efforts. Witness Cade was an inmate in federal prison during trial. Cade’s testimony was important to the prosecution because he stated that he saw defendant, a knife protruding from his waistband, lingering near the Vacaville medical clinic before the attack on Gardner. He testified that he saw defendant stab Gardner, drop the knife, and run up the stairs. A few days later, according to Cade, defendant admitted he had killed Gardner. On cross-examination Cade conceded that he had asked for an accelerated parole date and was told that the request could not be honored. He also received $40 from the state. However, Cade denied having received any other favors. The defense then sought to have a tattoo specialist, Lyle Tuttle, testify that he had charged the state $100 to remove a tattoo from Cade. The prosecution objected before Tuttle took the stand, asserting a privilege of nondisclosure of confidential official information. (Evid. Code, § 1040.) Apparently the prosecutor wanted to protect Cade, who was under consideration for a witness-protection program and had already been in protective custody, from the disclosure of any information about alteration or removal of his tattoos that would make it easier for other inmates to identify him later. After an in camera hearing with only the prosecutor present, the court sustained the objection under Evidence Code section 1040, subdivision (b)(2), quashed Tuttle’s subpoena, and refused the defense’s demand for an admonition to inform the jury that Cade had received additional emoluments. First, defendant contends that even if it was proper to exclude the evidence, the court erred when it refused his demand for the admonition that Cade had received additional benefits. He contends such an admonition was required by Evidence Code section 1042, subdivision (a). We agree. Under Evidence Code section 1042, subdivision (a), when the claim of privilege under Evidence Code section 1040 was sustained, the court was to “make such order or finding of fact adverse to” the prosecution “upon any issue ... to which the privileged information is material.” Defendant also says the court misapplied Evidence Code section 1040 when it excluded the evidence. Again we agree. The official information privilege codified in that section applies to information that a “public employee” acquires in confidence. A public employee includes an agent of a public entity. (Evid. Code, § 195.) IXittle removed Cade’s tattoo for value at the behest of the state and was clearly its agent while performing this service. But the information requested was no longer confidential; the defense had learned of it. The court thus erred when it quashed the subpoena. Nevertheless, we find no prejudice arising from the two errors. Cade was impeached thoroughly by other means, so that no prejudice arises from the misapplication of Evidence Code section 1040. Nor is it reasonably probable that, had the court given the admonition requested under Evidence Code section 1042, the outcome for defendant would have been more favorable. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Defendant also raises a multitude of constitutional contentions. He asserts that his right to present a complete defense, whether under the Sixth Amendment or the due process clause, was violated, as were his Sixth Amendment and state constitutional rights to be present during the in camera hearing. For his first point, defendant relies on Crane v. Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 645, 106 S.Ct. 2142], where the court reversed a judgment after the trial court excluded evidence “central to the defendant’s claim of innocence.” The evidence excluded here does not fall into this category. We therefore reject the claim. As for the second point, defendant fails to persuade that he has a constitutional right to be present at an in camera hearing at which the prosecution will reveal sensitive and possibly privileged information. We believe the prophylactic effect of Evidence Code section 1042 suffices to protect a defendant against the consequences of any decision arising from such a hearing. Defendant also claims that his state and federal due process rights were violated when the prosecutor failed to disclose the evidence of Cade’s tattoo to him and when the court curtailed the adverse testimony. With regard to the first point, due process was not violated unless the withheld information was material to the outcome. (United States v. Bagley (1985) 473 U.S. 667, 682 [87 L.Ed.2d 481, 494, 105 S.Ct. 3375] (lead opn. of Blackmun, J.); accord, id. at p. 685 [87 L.Ed.2d at p. 496] (conc. opn. of White, J.).) Here, the withholding of the evidence in question does not undermine confidence in the outcome, given the other impeaching evidence defendant introduced. Defendant predicates his second point on an argument that he was denied a meaningful opportunity to present a complete defense. The record, however, belies that view. 4. Claim of “Bruton-Aranda” Error. Defendant moved before trial to sever his trial from Menefield’s on the ground that the prosecution planned to introduce extrajudicial statements of Menefield that implicated defendant. In response, the prosecution proposed to edit the statements. At a pretrial hearing, the defense expressed satisfaction with the editing, with reservations that the court decided to address at trial. The motion therefore was denied. At trial, witnesses Rooks and Long described a conversation or conversations that took place the evening before the incident, in which Menefield said, in Rooks’s words, that Menefield was “going with him,” meaning defendant, to resolve the dispute between defendant and Gardner that had arisen in the yard. Long testified that Menefield said “he knew he would have to be there but [he] didn’t want to be there.” The court overruled a Bruton/Aranda objection to Rooks’s testimony, apparently finding the statement was made by one coconspirator during and in furtherance of a conspiracy and hence was admissible as an exception to the rule that a codefendant’s hearsay statement is inadmissible. We first inquire whether substantial evidence supported the court’s implied finding that Rooks’s statements were made during and in furtherance of a conspiracy. (Cf. Bourjaily v. United States (1987) 483 U.S. 171, 181 [97 L.Ed.2d 144, 156, 107 S.Ct. 2775] [applying federal “clearly erroneous” standard].) There was a showing that defendant and Menefield were in agreement and that Menefield made his statement in preparation for the next morning’s assault. But the record does not reveal that the statements were made in furtherance of the conspiracy’s objective (see Evid. Code, § 1223)— Menefield was not asking Rooks or Long for help. We conclude that the implied finding is not supported by substantial evidence. Under the law as it existed when Gardner and Patch were killed, a hearsay declaration of one defendant that incriminated another in a joint trial was inadmissible because it violated the nondeclarant defendant’s federal confrontation rights and a state judicially created procedural rule to the same effect. (Bruton v. United States, supra, 391 U.S. 123, 126 [20 L.Ed 2d at pp. 479-480]; People v. Aranda, supra, 63 Cal.2d 518, 530-531.) Under state law and federal constitutional law, the rule does not apply to statements made by coconspirators during and in furtherance of the conspiracy. (People v. Brawley (1969) 1 Cal.3d 277, 286 [82 Cal.Rptr. 161, 461 P.2d 361]; Bourjaily v. United States, supra, 483 U.S. at pp. 181-184 [97 L.Ed.2d at pp. 156-158].) But because the court erred in finding the statements to come within the coconspirator exception, defendant’s state and federal rights were violated. i Nevertheless, under any standard the error must be deemed harmless. It is not reasonably probable—indeed, it is extraordinarily improbable—that the admission of Rooks’s statement led to a less favorable outcome for defendant. Next, Rooks was prepared to testify that he heard Menefield say, when the two were in detention following the killings, that Menefield did not want to go with defendant to confront Gardner but just could not tell him “no.” Defendant objected that this statement, which came after the conspiracy had ended, would implicate him. The prosecution agreed to try to have Rooks tailor his testimony to avoid mentioning defendant. Rooks then told the jury only that he had spoken with Menefield about Gardner, and “He told me he was down on the floor when the incident happened . . . because he couldn’t say ‘no.’ ’’ The court admonished the jury that the testimony “is to be taken only as against defendant Menefield and not defendant Roberts.” Our reading of the record reveals no error in the admission of this statement. Defendant argues the editing was ineffective because the jury must have known Rooks was referring to him. He relies heavily on cases in which the admission of statements containing ambiguous pronouns was held to be error because the jury could infer that the nondeclarant codefendant was a participant. (E.g., People v. Massie (1967) 66 Cal.2d 899, 919 [59 Cal.Rptr. 733, 428 P.2d 869]; People v. Fortman (1970) 4 Cal.App.3d 495, 498 [84 Cal.Rptr. 458]; People v. Smith (1970) 4 Cal.App.3d 41, 50 [84 Cal.Rptr. 229].) But Rooks uttered no ambiguous pronoun that could have been perceived as including defendant; his references were either to himself or Menefield, but none were to defendant. 5. Evidence of Alleged Uncharged Offense. Defendant contends the court erred in denying his motions to exclude Rooks’s rebuttal testimony that he wanted to testify because defendant had given “the order to have me hit,” and for a mistrial based on that statement. Defendant also objected to a Department of Justice employee’s statement that certain witnesses were placed in protective custody “because of the death threats,” and contends that the employee’s statement compounded the error even though it was stricken. In an in camera discussion following Rooks’s testimony, the prosecution contended the statement was admissible to show that Rooks’s motive for testifying was not any inducement by the state but his dislike for defendant, based partly on defendant’s alleged “order.” Defendant objected to Rooks’s statement because it was improper character evidence offered via prior acts of misconduct and because it was substantially more prejudicial than probative. We examine the record to determine whether the court abused its discretion in admitting the statement. (See People v. Perez (1981) 114 Cal.App.3d 470, 477-478 [170 Cal.Rptr. 619]; Allen v. Toledo (1980) 109 Cal.App.3d 415, 419-421 [167 Cal.Rptr. 270].) We discern no such abuse. First, the statement was not improper character evidence. It tended to establish that Rooks’s motive for testifying was resentment of defendant rather than any inducement the state had given him—and which defendant had emphasized to impeach Rooks’s credibility. Thus, the case is similar to People v. Green (1980) 27 Cal.3d 1, 19-20 [164 Cal.Rptr. 1, 609 P.2d 468], in which we rejected a like contention. As for defendant’s contention that under Evidence Code section 352 and cases discussing the Federal Rules of Evidence the evidence was unduly prejudicial, we perceive the degree of prejudice as slight. The jury had already properly heard evidence that defendant was a member of a prison gang with strict rules prohibiting testimony against other members. Rooks’s statement that defendant’s death threat motivated him to testify was more of the same, but was also proper. 6. Defendant’s Attendance at Jury View. Defendant next contends the court erred in compelling him to choose between appearing at a jury view of the crime scene in shackles or not at all. We disagree. When the issue first arose, counsel announced that defendant would waive his right to be present when the jury toured the prison because he believed that without “heavy security including shackles and a number of guards following along” defendant would not be allowed to be present. After defendant pointed out that he was already confined in the same institution without handcuffs, the prosecution offered to investigate what type of security would be required, and defendant agreed. The next court day, defendant stated he could not “understand why some kind of special concession is being made for this jury, why I got to be handcuffed and shackled. I don’t understand that.” The court acknowledged the concern but said, “I have nothing to say about the Department of Corrections. It’s the same thing with the county jail. The Sheriff runs his office. I run mine, and all I know is that they have their rules up there. I am powerless to make any other rules. I can’t.” The prosecution implied that prison officials believed defendant should not be allowed to walk around in the jury’s presence free of restraints, and the court formally found that special restraints would be necessary. Defendant then stated that he would waive his appearance, saying, “Since I am being forced to, I guess I have to.” A defendant has a right under state law to be present at a jury view, though the right may be waived. (People v. Lang (1989) 49 Cal.3d 991, 1025 [264 Cal.Rptr. 386, 782 P.2d 627].) There is no federal constitutional right to be present. (Ibid.) In People v. Lang we found it unnecessary to “decide whether a waiver of the right to presence would be involuntary if the waiver was in response to a ruling requiring the defendant to appear in shackles plainly visible to the jury.” (Id. at p. 1026.) The court’s ruling in the case at bar may fairly be so read. The court found that security considerations required defendant to be shackled at the jury view, and that the court was powerless in the matter. We have previously held that the record must reflect the particular reasons why special restraints are necessary during the taldng of evidence inside the courtroom. (See People v. Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1].) We do not believe such a strict showing is required for a jury view outside the courtroom. Rather, we agree with the Supreme Court of Michigan that a court ordinarily may exercise discretion to require the restraining of a defendant at a jury view outside the courtroom “on the basis of previous conduct of the defendant or other manifest circumstances.” (People v. Mallory (1984) 421 Mich. 229 [365 N.W.2d 673, 683].) The trial court should explain its reasons on the record. This unusual case embodies an exception to the rule we set forth today, however. The trial court correctly found it had no power to compel prison officials to alter the special rules that perforce exist in a prison setting. In making its statement, the court was not saying that it had no discretion to decide a defendant’s freedom from visible restraints during a jury view, but rather that its power was limited when the view was to occur in prison. we find no error. 7. In Camera Review of Rap Sheets. Defendant demanded access to the rap sheets of all inmate witnesses, stating he was entitled to discover all their prior felony convictions. The prosecution resisted, saying it was obligated to provide information only about convictions bearing on a witness’s truthfulness. As permitted by Evidence Code section 915, subdivision (b), which authorizes such a hearing, the court ordered in camera review of the rap sheets in the absence of defendant and his counsel. In the review the prosecution and the court decided that certain convictions—primarily for murder and manslaughter— did not involve deception and need not be disclosed, while others for, among other things, robbery, theft, or burglary must be revealed. Moreover, after in camera examination of one potential inmate witness, the court found the witness could provide no exculpatory information and ordered his identity kept secret. The witness was not called to testify. Defendant contends he was entitled as a matter of state procedure and state and federal constitutional law to discover all the adverse witnesses’ rap sheets. He further contends he was entitled to be included in the discussion at which the admissible convictions were separated from the inadmissible. He asserts that the error in failing to make the prosecution disclose all felony convictions was prejudicial because such disclosure would have shed light on the length of the sentences of key witnesses against him. Hence it would have provided the jury with additional information on the value of such prosecution blandishments as letters to the parole board— letters whose weight would be greater if an inmate were otherwise facing a long term with scant possibility of parole. Finally, defendant contends the prosecution failed to disclose a burglary conviction that came to light in the in camera discussion. While we disagree that the rap sheets themselves should have been disclosed, we agree that the court erred as a matter of state procedural law in failing to order disclosure of all felony convictions to the defense. In Hill v. Superior Court (1974) 10 Cal.3d 812, 821 [112 Cal.Rptr. 257, 518 P.2d 1353, 95 A.L.R.3d 820], we decided that rap sheets themselves need not be disclosed, but that a trial court should exercise its discretion in favor of allowing the defense to discover all felony convictions when good cause is shown for the discovery and it does not appear the disclosure will unduly hamper the prosecution or impair some other legitimate government interest. Among the offenses excluded were such serious crimes as first and second degree murder, arson and manslaughter. Whether the records of these offenses were admissible or not, we believe that defendant showed good cause to discover them, and that their disclosure did not impair a legitimate government interest. Hence the court abused its discretion in failing to allow discovery of the adverse witnesses’ felony convictions. The rap sheets themselves, of course, did not have to be disclosed in order to provide the requested information. Nevertheless, it is not reasonably probable that had defendant had the benefit of the wrongly excluded information, he would have achieved a better result. The inmate witnesses were thoroughly impeached by evidence of state-provided benefits, prior inconsistent statements, and the like. And the jury knew they were incarcerated in prison for a felony. We discern no prejudice. 8. Prosecutor’s Testimony and Reference Thereto in Closing Argument. Defendant contends the prosecutor engaged in prejudicial misconduct during closing argument. This contention is not persuasive. Defendant sought to prove that he could not have stabbed Gardner because he was on the third floor immediately after the alarm sounded. Defendant argued that to reach the third floor he would have had to run up the stairs from the first floor and thence through a locked gate. The prosecution called Officer Robert Rudolph, Jr., to describe the whereabouts and activities of defendant and Menefield on the morning of the killings. He testified he was guarding the third floor between H Wing and a grille gate, and that he did not recall whether the gate was open or closed. When Rudolph heard the alarm following the attack on Gardner, he ran to the second floor; he did not recall whether he locked the gate behind him. On cross-examination, Rudolph testified he did not recall that defendant came through the gate within five minutes of the alarm’s sounding. The defense had been given a copy of the prosecutor’s notes of a prior interview with Rudolph. The notes contained an apparent statement by Rudolph that he had locked the gate before going downstairs. But on the stand Rudolph denied having told the prosecutor that he had locked the gate, and also denied having told a defense investigator that he was in the main corridor before the alarm sounded. Defendant called the prosecutor as a witness to authenticate his notes for use in impeaching Rudolph’s memory. The prosecutor testified that the statement was an editorial comment of his own that had not come from Rudolph, who in fact had told him he could not remember whether he had locked the gate. Defendant now asserts that the prosecutor’s closing argument implied he was privy to evidence not given the jury when he advanced a theory that Rudolph had indeed left the gate unlocked long enough for defendant to slip through unobserved. Defendant did not assign misconduct to and request an admonition regarding the asserted comment. His claim therefore is procedurally barred. (People v. Green, supra, 27 Cal.3d 1, 27.) In any event, the record is insufficient to make out a claim of prosecutorial misconduct. Of course counsel may not testify during closing argument, but may only emphasize evidence properly adduced earlier. While in his closing argument the prosecutor occasionally used such phrases as “I know,” the record belies the claim that he held himself out as an unsworn witness (see People v. Bolton (1979) 23 Cal.3d 208, 213 [152 Cal.Rptr. 141, 589 P.2d 396]). Rather, the record reveals that every fact to which the prosecutor alluded was supported by some evidence introduced at trial. The prosecutor thus did not, in our view, hint that he had access to facts damaging to defendant that were not before the jury. On other occasions when the prosecutor spoke in the first person in his closing argument to reinforce his own previous testimony, he was entitled to do so, because defendant had called him to the stand and thereby made the prosecutor’s recollections part of the evidence. Defendant also contends the prosecutor violated his Sixth Amendment confrontation rights by holding himself out as an unsworn witness. Defendant also claims the alleged misconduct violated his right to due process because he was not afforded a fair trial. For the reasons stated above, we disagree with both contentions: the prosecutor did not commit misconduct or hold himself out as an unsworn witness. B. Instructional Issues. 1. Consciousness of Guilt. Defendant contends the court erred in telling the jury it could infer consciousness of guilt from his flight if flight was proved. We recently rejected the overly broad dictum of the case on which he mainly relies, People v. Anjell (1979) 100 Cal.App.3d 189 [160 Cal.Rptr. 669]. In People v. Mason (1991) 52 Cal.3d 909, 942-943 [277 Cal.Rptr. 166, 802 P.2d 950], we instead construed section 1127c as mandating a rule that if there is evidence identifying the person who fled as the defendant, and if such evidence is relied on as tending to show guilt, then a flight instruction is proper. In this case, the prosecution presented evidence that defendant fled up the stairs from the first to the third floor after stabbing Gardner. The instruction therefore was correct. Next, defendant contends the court erred in instructing the jury it could infer consciousness of guilt from his refusal to take a blood test. At trial the prosecution introduced evidence that defendant had refused to take a blood test and that a court order had been obtained, after which defendant submitted to the test. Defendant specifically stated he did not object to this testimony, even though the prosecution said it wanted to introduce the evidence to show an “admission of guilt by refusing to give physical evidence from his body . . . The prosecution sought the instruction to which defendant now assigns error, and then defendant objected. Another lawyer for the defense team noted that a person could refuse to give blood for fear of needles, but the prosecutor responded that defendant had given no reason for his refusal. Defendant asserts the instruction was improper because the demand to take the blood test violated both his Fourth and Fifth Amendment rights, and because his refusal to submit could not constitutionally be used against him. The Fifth Amendment claim is without merit, because the evidence was not testimonial but physical. (People v. Collie (1981) 30 Cal.3d 43, 55, fn. 7 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776].) The Fourth Amendment claim might require more scrutiny on a better record, but the record does not explain whether defendant refused to take the blood test for reasons within the scope of the Fourth Amendment. (Cf., e.g., Tucker v. Dickey (W.D.Wis. 1985) 613 F.Supp. 1124; Storms v. Coughlin (S.D.N.Y. 1984) 600 F.Supp. 1214; see Schmerber v. California (1966) 384 U.S. 757 [16 L.Ed.2d 908, 86 S.Ct. 1826].) Defendant fails to establish that he exercised a protected right, and we must therefore reject his claim. 2. Proximate Cause. Defendant contends the court erred when it refused to give his modified jury instruction that if the medical care Gardner received after the assault was so inadequate that it amounted to the sole cause of his death, then he was not the proximate cause of Gardner’s killing and was not liable for it. The question of the quality of the medical care given Gardner was barely explored during the evidentiary phase of the trial; discussion of the point appears to have been limited to a few comments by Dr. Donald Trunkey, chief of surgery at San Francisco General Hospital. A fair reading of Dr. Trunkey’s testimony is that Gardner was very close to death minutes after the stabbing. He testified that a medical technician did all he could with limited resources at the scene, but that the prison clinic could have done more to try to save Gardner, who was “salvageable.” The clinic tried to resuscitate Gardner by the wrong means. The court gave an instruction based on a modified version of CALJIC Nos. 8.55 and 8.57 (4th ed. 1979 rev.). Saying “That’s all we are interested in,” the court stated that the important language was CALJIC No. 8.57’s advice that “the fact that the immediate cause of death was the medical or surgical treatment administered or that such treatment was a factor contributing to the cause of death will not relieve the person who inflicted the original injury from responsibility.” The jury heard that language, together with other material from CALJIC Nos. 8.55 and 8.57: “The word ‘proximate cause of a death’ is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred,” and when “the original injury is not a proximate cause of the death and the death was proximately caused by . . . medical or surgical treatment or some other cause, then the defendant is not guilty of an unlawful homicide.” Defendant contends the instructions failed to alert the jury that it must decide whether the possibly substandard treatment of Gardner was foreseeable. We disagree: in our view, the court adequately explained the law in light of the evidence. If a person inflicts a dangerous wound on another, it is ordinarily no defense that inadequate medical treatment contributed to the victim’s death. (People v. McGee (1947) 31 Cal.2d 229, 243 [187 P.2d 706]; People v. Dilworth (1969) 274 Cal.App.2d 27, 33 [78 Cal.Rptr. 817]; People v. Clark (1951) 106 Cal.App.2d 271, 277-278 [235 P.2d 56].) To be sure, when medical treatment is grossly improper, it may discharge liability for homicide if the maltreatment is the sole cause of death and hence an unforeseeable intervening cause. (People v. McGee, supra, 31 Cal.2d at p. 240; see also People v. Calvaresi (1975) 188 Colo. 277 [534 P. 2d 316, 319]; State v. Jacobs (1984) 194 Conn. 119 [479 A.2d 226, 230]; Annot., Homicide: Liability Where Death Immediately Results From Treatment or Mistreatment of Injury Inflicted by Defendant (1965) 100 A.L.R.2d 769, 786.) But here the record is devoid of any evidence of grossly improper treatment. Our examination of the record discloses that Gardner’s treatment may have been inadequate, but that the prison facilities may well have made a much different course of treatment difficult or impossible. As a matter of law, the treatment regimen shown by the record fails to constitute a supervening cause of Gardner’s death. (People v. McGee, supra, 31 Cal.2d at p. 243.) The jury need not be instructed on a theory for which no evidence has been presented. (People v. Carter (1957) 48 Cal.2d 737, 758 [312 P.2d 665].) To be sure, the instruction defining proximate cause contained language virtually identical to that of BAJI No. 3.75 (7th ed. 1986), which we disapproved in Mitchell v. Gonzales (1991) 54 Cal.3d 1041 [1 Cal.Rptr.2d 913, 819 P.2d 872], But our disapproval of BAJI No. 3.75 does not aid defendant. In the main, in Mitchell we criticized the instruction as placing undue emphasis on physical or temporal nearness. (54 Cal.3d at pp. 1050-1051.) Thus, as the People observed at oral argument, any such confusion on the jury’s part could only benefit defendant. Of more concern in this case is our observation in Mitchell that the instruction may be grammatically confusing and that the hearer may misunderstand the term or substitute another meaning for it. (54 Cal.3d at p. 1051.) The civil instruction’s infirmity is equally great in criminal cases. But any such risk in this case was, in our view, greatly diminished by the court’s instruction that if medical treatment was the proximate cause of Gardner’s death, then defendant was not liable for it. In any event, the foregoing discussion is of general application only, for we have explained that the record contains no evidence establishing a possibly supervening cause of Gardner’s death. Defendant also contends his federal due process rights were violated when the instruction relieved the jury of the obligation to find the proximate-cause element of the crime. We reject this claim for the reason previously given: there was no evidence of grossly improper care on which defendant’s desired instruction could be predicated; therefore, due process was not violated. 3. Prosecution Witnesses’ Credibility. Defendant contends the court erred by not modifying CALJIC No. 2.20 (4th ed. 1980 rev.) as he requested. That instruction reminds jurors to consider witnesses’ possible bias, interest, or other motive for giving testimony. Defendant would have had the court specify that the jury must also consider the state’s specific promises and payments to certain prosecution witnesses in evaluating credibility. Defendant’s requested instruction would have been too argumentative. “A criminal defendant is entitled, on request, to an instruction ‘pinpointing’ the theory of his defense. (People v. Wright (1988) 45 Cal.3d 1126, 1137 [248 Cal.Rptr. 600, 755P. 2d 1049]; People v. Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465P. 2d 847].) As we recently explained, however, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative (Wright, supra, at p. 1137), and the effect of certain facts on identified theories ‘is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.’ (Id. at p. 1143.)” (People v. Wharton (1991) 53 Cal.3d 522, 570 [280 Cal.Rptr. 631, 809 P.2d 290].) Here the defense ably attacked the witnesses’ credibility throughout the trial, which was the proper place to emphasize the state’s promises and payments. 4. Defendant’s Decision Not to Testify. Defendant contends the court erred by giving an unmodified reading of CALJIC Nos. 2.60 and 2.61 over his objection. Those instructions told the jury to draw no inference from or discuss a defendant’s failure to testify in his or her own behalf. Defendant desired a modification that would have alerted the jury to a particular reason for such a failure: fear or nervousness. It is true that Griffin v. California (1965) 380 U.S. 609, 613 [14 L.Ed.2d 106, 109, 85 S.Ct. 1229], mentions fear as a reason that might lead an innocent person to decline to testify. Nevertheless, there are other reasons why a defendant might avoid the stand, including the possibility that his or her testimony might reveal evidence of guilt. We see no reason to require a court to outline every hypothetical reason for a defendant’s failure to testify: such comments may be left for a defendant’s closing argument if counsel desires to explain the matter further. With regard to defendant’s contention that no such instruction should have been given if not his, People v. Molano (1967) 253 Cal.App.2d 841, 847 [61 Cal.Rptr. 821, 18 A.L.R.3d 1328], is no longer good law insofar as it concludes that the giving of the instruction over a defendant’s objection constitutes a comment proscribed by Griffin v. California, supra, 380 U.S. 609, 614 [14 L.Ed.2d 106,109]. The United States Supreme Court has since held to the contrary. (Lakeside v. Oregon (1978) 435 U.S. 333, 338-340 [55 L.Ed.2d 319, 324-325, 98 S.Ct. 1091].) Nevertheless, the purpose of the instruction is to protect the defendant, and if the defendant does not want it given the trial court should accede to that request, notwithstanding the lack of a constitutional requirement to do so. We decline to find prejudice in the court’s giving of the admonition over defendant’s objection, however. We must assume that the jury followed the admonition not to take into account defendant’s failure to testify. Under that view, it is inconceivable that the giving of the instruction led to a less favorable outcome for defendant. Therefore, under any standard of review the error was not prejudicial. C. Liability for the Killing of Officer Patch. At trial, defendant moved for a judgment of acquittal on the charge of the murder of Officer Patch, on the ground there was insufficient evidence of his criminal liability for that death. The court denied the motion. Defendant now contends there was insufficent evidence to find him liable for the first degree murder of Patch. He also contends the jury was incorrectly instructed on the issue. As will appear, we conclude there was sufficient evidence for the jury to find that defendant’s act was the proximate cause of the murder of Patch. But the instruction removed the element of proximate cause from the jury’s consideration, an error of constitutional magnitude that requires reversal under United States Supreme Court precedent. We therefore reverse defendant’s conviction for that murder. Relying in part on In re Joe R. (1980) 27 Cal.3d 496, 504 [165 Cal.Rptr. 837, 612 P.2d 927], People v. Harrison (1959) 176 Cal.App.2d 330, 336 [1 Cal.Rptr. 414], People v. Lewis (1899) 124 Cal. 551, 555-556 [57 P. 470], and People v. Button (1895) 106 Cal. 628, 629-635 [39 P. 1073], the prosecution persuaded the court that if defendant caused Gardner to lose his faculties and stab Patch impulsively or unreasoningly, Gardner’s blow was a dependent intervening act for which foreseeability was not required. (See also Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 796-797 (hereafter Perkins & Boyce); Focht, Proximate Cause in the Law of Homicide—With Special Reference to California Cases (1938) 12 So.Cal.L.Rev. 19, 33 (hereafter Focht).) The court read the following instruction: “A defendant is the proximate cause of the death of another even though the immediate cause of the death is the act of a third person, if the third person is no longer a free moral agent as the direct result of the defendant’s unlawful act. fi[] A defendant who, in conscious and reckless disregard for human life, intentionally and unlawfully inflicts an injury upon a third person is criminally responsible for the acts of that person while in delirium or a similar state of unconsciousness where such condition is the direct result of the defendant’s unlawful act. [1] It is immaterial that the defendant could not reasonably have foreseen the harmful result. ...[][] If the evidence establishes that, at the time of the assault upon Albert Patch, Charles Gardner was unconscious due to hypovolemic shock caused by the unlawful act of a defendant, he was not a free moral agent and the defendant is responsible for his act.” (Italics added.) The precise causation question may be posed as follows: what is the liability of A for an assault on B that deprives B of his reason and causes him to attack C, who lies some distance away? The authorities cited above do not consider this situation. Nor has our own or the parties’ research divulged any case that does. The object of the criminal law is to deter the individual from committing acts that injure society by harming others, their property, or the public welfare, and to express society’s condemnation of such acts by punishing them. “The purpose of the criminal law is to define socially intolerable conduct, and to hold conduct within . . . limits . . . reasonably acceptable from the social point of view.” (Perkins & Boyce, supra, at p. 5, fn. omitted.) “Modern penal law is founded on moral culpability. The law punishes a person for a criminal act only if he is morally responsible for it. To do otherwise would be both inhumane and unenlightened. As was said in Holloway v. United States, 80 U.S.App.D.C. 3, 5, 148 F.2d 665, 666, ‘Our collective conscience does not allow punishment where it cannot impose blame.’ ” (United States v. Fielding (D.D.C. 1957) 148 F.Supp. 46, 49, fn. omitted.) Of course, moral culpability is found in homicide cases when, despite the lack of any intent to kill, the consequences of the evil act are so natural or probable that liability is established as a matter of policy. Thus, for example, the Legislature has chosen to designate certain felonies as so inherently dangerous that death in the course of their commission or completion constitutes first degree murder. (§ 189.) Or, under the common law doctrine of transferred intent, if A shoots at B with malice aforethought but instead kills C, who is standing nearby, A is deemed liable for murder notwithstanding lack of intent to kill C. (See Perkins & Boyce, supra, at p. 924.) And liability for second degree murder will attach if the circumstances of an act show express or implied malice, which latter mental state may be found “when the circumstances attending the killing show an abandoned and malignant heart” (§ 188). In other words, implied malice may be found when a defendant, knowing that his or her conduct endangers life and acting with conscious disregard of the danger, commits an act the natural consequences of which are dangerous to life. (E.g., People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549].) Thus, to invoke a classic example, a person who fires a bullet through a window, not knowing or caring whether anyone is behind it, may be liable for homicide regardless of any intent to kill. Likewise, principles of proximate cause may sometimes assign homicide liability when, foreseeable or not, the consequences of a dangerous act directed at a second person cause an impulsive reaction that so naturally leads to a third person’s death that the evil actor is deemed worthy of punishment. The few cases on point find their foundation in the famous intentional tort case of Scott v. Shepherd (1773) 96 Eng.Rep. 525. Young Shepherd threw a lighted gunpowder squib into a crowded marketplace. The recipient threw it to another, who threw it to another, who threw it to Scott, another minor. Scott was partially blinded when the device exploded. The jury awarded Scott £100 and the court affirmed, holding that the chain of causation was not broken. Our research discloses a few cases in the annals of American law that, following Scott v. Shepherd, supra, have found criminal liability for the death of a third party from the second party’s impulsive reaction to the dangerous act. In those cases, physical proximity allowed the trier of fact to find the victim’s death to be the natural and probable consequence of the defendant’s violence and hence proximately caused by the defendant’s act. Letner v. State (1927) 156 Tenn. 68 [299 S.W. 1049, 55 A.L.R. 915] is prototypical. The defendant was angry about a theft and a burglary and decided to sink the boat that the miscreants, Walter and Alfred, were using to cross the Emory River. The defendant fired two shots at the boat; neither found its mark, but both landed within six feet. To save himself, Walter dove out, causing the boat to capsize. Both he and Alfred drowned. Defendant was indicted for Alfred’s murder; the jury found him guilty of involuntary manslaughter. The Tennessee Supreme Court upheld the conviction. Citing, inter alia, Scott v. Shepherd, supra, 96 Eng.Rep. 525, the court concluded, “By firing the gun the defendant caused Walter ... to take to the water, resulting in the overtum[ing] of the boat and the drowning of Alfred." (156 Tenn. at p. 76 [299 S.W. at p. 1051].) “[W]e are of the opinion that the wrongful act of the defendant. . . was the primary proximate cause of their death; that the act of Walter. . . in capsizing the boat was the natural result of the wrongful act of defendant, and renders the latter liable for their consequential death." (Id. at p. 80 [299 S.W. at p. 1052].) As alluded to above, the key fact in Letner v. State, as in Scott v. Shepherd, both supra, was that the eventual victim was physically close enough that the court could hold his death to be the natural and probable consequence of the defendant’s act. The same circumstance accompanied another early case considering analogous facts. In Belk v. The People (1888) 125 Ill. 584 [17 N.E. 744], the defendants were alleged to have negligently allowed their team of horses to break loose on a narrow country lane. The team collided with a wagon in plain sight just ahead, causing that wagon’s t