Full opinion text
Opinion MOSK, J. A jury convicted defendant of the first degree murder of Edward Davies (Pen. Code, § 187). The jury specially found that defendant personally and intentionally committed the murder with premeditation and deliberation. The jury found that the murder was committed during a burglary, a special circumstance (§ 190.2, subds. (a)(17)(vii) & (b)), and during a robbery, also a special circumstance (§ 190.2, subds. (a)(17)(vii) & (b)). The jury found defendant guilty of the attempted murder of Grace Davies, Mr. Davies’s wife (§§ 664 & 187, subd. (a)). The jury also found defendant guilty of the second degree burglary of the Davies residence (§ 459), of the robberies of Mr. and Mrs. Davies (§ 211), of the unlawful taking of a vehicle (Veh. Code, § 10851), and of conspiracy to commit robbery (§ 182). The court found true allegations that defendant had suffered five prior felony convictions: 1967 convictions for grand theft auto and for receiving stolen property, a 1973 conviction for first degree robbery, a 1975 conviction of escape from state prison, and a 1977 Oklahoma conviction for robbery with the use of a firearm. The court found not true a sixth allegation—that defendant was convicted in Oklahoma for injury to a public building, a felony. The jury deadlocked at the penalty phase and a second jury was impaneled. That jury found that the aggravating factors outweighed the mitigating, and fixed the penalty at death. After denying motions for new trial, to strike the findings of special circumstances, and to reduce the penalty, the court sentenced defendant to death on the murder charge, and imposed prison terms on the other counts. For reasons that will appear, we affirm the judgment in its entirety. I. Facts A. Guilt Phase Facts. 1. Undisputed Facts. . Grace and Edward Davies, an elderly couple known to have a cache of precious metals on the premises of their Sacramento home, were eating lunch and watching television in the kitchen in the early afternoon of December 9, 1981, when the doorbell rang. Mrs. Davies survived to relate the events that follow. Mr. Davies did not. Mrs. Davies answered the call of the bell. A man outfitted with a hard hat and wearing a red or orange jacket or safety vest and a utility belt stood at the door. An accomplice waited in a telephone company truck parked outside. The man at the door, who would soon rob the couple, said he was from the telephone company and needed to repair the Davieses’ instrument. Mrs. Davies allowed him to enter. A neighbor observed the truck’s arrival from across the street and was in turn noticed by both robbers. The man located a phone near the kitchen table, stood for a few seconds with his back to the Davieses, and turned around. Mrs. Davies saw he was aiming a small gun at them. The man ordered the Davieses to lie down on the floor and bound them with handcuffs and cords. He placed towels and other objects over Mrs. Davies’s head, apparently to obscure her vision. Later Mrs. Davies felt an object against her throat and heard a voice tell her husband, “I’ll cut your old woman’s throat if you don’t tell me where the gold is.” Sometime thereafter Mrs. Davies heard a noise that she believed to be a gunshot. It came from the direction in which her husband lay. She then felt something placed against her ear through a cloth that was covering her head, and heard the noise of the gunshot that wounded her. She apparently lost consciousness. After coming to, she realized she was touching her husband’s leg and could feel it twitch. She called out to him several times, but he did not answer. Perhaps aware that somebody else was in the room, she called out for her painful wrist bindings to be loosened. She then heard another noise, after which she no longer felt her husband’s leg twitch. Someone then cut her wrist bindings and took off the handcuffs. Thereafter, Mrs. Davies heard the opening of a door leading from the kitchen to the garage and someone wandering in the house, though she still could not see. The man who initially came to the door did so about 1:15 to 1:30 p.m. It had become dark outside when Mrs. Davies realized she no longer heard any noises in the house. Though seriously wounded, she retrieved a knife and cut the cords binding her ankles. She tried to call for help but discovered the telephone handset had been cut from the rest of the instrument. Unable or unwilling to go outside in the December cold, she lay on a sofa throughout the night; when dawn broke she crawled out to the sidewalk, where a woman discovered Mrs. Davies’s condition and called the police. She was hospitalized for about one month and suffered total loss of hearing in one ear, permanent paralysis on one side of her face, the inability to close one eye, and impairment of her sense of balance. A pathologist concluded that Mr. Davies probably died from the effect of gunshot wounds to the brain. There was one wound on the left side of his head and one on the right; the left wound was not likely to have been the fatal one. The bullets that inflicted the wounds appeared to be .22-caliber; one was copper—and one lead-colored, but both were too damaged to determine if they were fired from a specific gun. The robbery netted a considerable amount of property, including silverware, jewelry, silver coins, silver ingots, and guns. Defendant and his cousin Gary Masse, who the court instructed the jury was an accomplice as a matter of law, planned and executed the Davies robbery together. Masse had heard from Gloria Killian, reputedly a law student, that the Davieses had a large cache of valuable property on the aboveground premises and might have more buried in the backyard. Killian and others wanted to have someone execute the robbery, split the proceeds with the robbers, and reward them by giving them information that would allow them to commit a much larger robbery in the future. 2. Prosecution Case. The prosecution successfully contended that defendant was the man who went to the Davieses’ door, the man who shot the couple as Mr. and Mrs. Davies lay on the floor, and the man who later returned to fire the fatal shot into Mr. Davies’s head. The prosecution theorized that Masse and defendant went to the Davies home in a telephone company truck that defendant had stolen the night before. Defendant was wearing telephone company paraphernalia, including a hard hat and utility belt he had shown Masse during a chance meeting in the parking lot of a Sacramento restaurant six days earlier. Defendant was carrying a small .22-caliber pistol. Masse had been in possession of a larger .22-caliber handgun earlier in the day in preparation for the robbery, but after a previous pass by the Davies residence the two had agreed Masse’s gun was too large. They drove to the home of defendant’s brother, Robert DeSantis, and left Masse’s gun in a van parked in the yard. While Masse waited in the truck outside, pretending to inspect the truck’s inventory in the manner of a telephone company employee, defendant went to the front door and gained entrance. After a few minutes Masse came inside, verified that defendant had everything under control, left to move the truck, and returned. Masse then helped collect property. Defendant had covered the Davieses. Later, with Masse nearby, defendant shot each of the Davieses, firing the initial, nonfatal shot into Mr. Davies. Masse and defendant then drove the Davieses’ booty-laden Peugeot to the house of defendant’s brother Robert, and put the proceeds in defendant’s van. Masse took the Peugeot to the parking lot of a shopping center; Robert gave him a ride back. After Masse returned, he and defendant decided to retrieve the handcuffs that defendant had left on the Davieses, but had no keys with which to do so. Defendant and Masse drove to a store in downtown Sacramento, where defendant bought a new set of handcuffs, including keys. The two returned to the Davieses’ home. Masse waited in the car while defendant reentered the residence. The prosecution theorized that defendant then shot Mr. Davies a second time and removed the handcuffs and ropes binding both victims. When defendant returned to the car, he told Masse that Mr. Davies was still alive and was asking for help. In the days following the robbery, defendant shaved off his mustache and, with his wife, fled the area. (He was arrested a year later in Port Aransas, Texas.) The authorities soon learned the robbers’ identities. They persuaded Masse that if he was not the triggerman it would behoove him to turn himself in, which he did about a week after the shooting. The prosecution case against defendant was overwhelmingly predicated on Masse’s testimony. It was Masse who supplied the details of the planning of the robbery and his and defendant’s respective roles during its execution. Masse’s testimony was damning: he testified that he was alarmed when he heard or saw defendant shoot Mr. and Mrs. Davies, and that defendant, observing his state of shock, said: “Why should you get upset about these people? . . . You killed animals before, and you don’t feel bad about them, and these people aren’t no different than animals.” Masse also testified that defendant wanted to shoot Killian, who was demanding her share of the proceeds. And according to Masse, shortly after the robbery defendant told him that if Mrs. Davies survived he would “take care of her,” meaning shoot her. Masse testified that he felt threatened because he was the only one who could identify defendant as the triggerman. Masse stated that defendant told him, “Crime partners can’t testify against each other .... If you do . . . you won’t live very long.” Masse turned himself in because “I didn’t kill anybody, and I just thought it was the right thing to do.” Other significant testimony came from Mrs. Davies. She testified about the robber’s entry into the home and his securing her and Mr. Davies. She did not know who shot her, but at pretrial lineups and in court she identified defendant as the man who came to the door, pointed a gun at her and Mr. Davies, and tied them up. Her identification of defendant in an initial photographic lineup was uncertain. 3. Defense Case. To counter the prosecution’s theory, the defense introduced evidence to try to undermine the reliability of Mrs. Davies’s identification of defendant. But the defense’s most significant effort in this regard was to impeach the testimony of Masse. Defendant introduced evidence that Masse was initially sentenced to life imprisonment without possibility of parole in the Davies case and that the district attorney had persuaded the sentencing judge to recall Masse’s very severe sentence in exchange for Masse’s testimony against defendant. Masse was awaiting resentencing when he testified and, in exchange for his testimony, wanted to serve no more than 12 years’ imprisonment. In addition, defendant testified on his own behalf and, by necessary implication, identified Masse as the triggerman. He essentially corroborated Masse’s account of events until the execution of the robbery—though he denied having shown Masse any utility equipment in the restaurant parking lot some days before. Rather, he stole a telephone company truck, apparently the day before the robbery. The truck contained utility paraphernalia. The next day Masse and defendant drove to the Davies residence but did not try to enter because it appeared no one was home. They drove to Robert DeSantis’s house, where defendant retrieved his three-and-one-half-inch-long .22-caliber revolver. The gun had both lead- and copper-colored bullets. Defendant lent the gun to Masse. They returned to the Davieses’ house, with Masse behind the wheel. Masse got out, wearing the purloined utility equipment, and went to the front door; Mrs. Davies admitted him. To avoid the scrutiny of the neighbor across the street, defendant tilted his head down while in the truck. After a few minutes’ waiting in the truck, defendant drove to another street, got into an Oldsmobile belonging to Masse’s father, and alternately drove the car around and waited outside the Davies residence. Later he exchanged that car for his wife’s Datsun and drove back. He saw that the Peugeot was still in the driveway. Finally, three or four hours after Masse first went in, defendant drove by and saw that the Peugeot was gone. Defendant then drove back to Robert DeSantis’s house and saw Masse beginning to remove a carload of suitcases and a garment bag out of the Peugeot. Defendant helped Masse complete the task. Masse and Robert DeSantis left to dispose of the Peugeot; defendant stayed behind and opened some of the suitcases, which he saw contained various valuables. Masse returned about a half-hour later and defendant asked why it had taken Masse so long to complete the robbery. Masse seemed very distraught and said repeatedly, “I didn’t mean to hurt them old people.” (Linda DeSantis, Robert’s wife, testified that she also heard the essence of Masse’s lament.) Defendant examined his gun and noticed at least two bullets were missing. Masse told defendant he had left handcuffs on the victims at the residence and thrown away the keys. Masse and defendant both wanted to retrieve the handcuffs and, because Masse said he had bought the sets used in the robbery at a downtown Sacramento store, the two drove to that store to buy another pair with compatible keys. Defendant went in and bought the new set, even though Masse, according to defendant, owned the sets used to bind the Davieses and did not tell defendant what type of replacement to buy. Masse was too upset to reenter the house, so defendant entered through a window he broke. He found the Davieses, both bloody and apparently dead, lying on the kitchen floor. He removed the couple’s handcuffs and cut the cords binding them. He decided to leave the state implicitly in part because Masse told the robbery’s promoters that he had not committed the crime and did not know whether defendant had. On cross-examination, defendant admitted he had shaved his mustache the night after the robbery even though he had no reason to believe the Davieses had seen him. B. Penalty Phase. The first penalty jury deadlocked and a new panel was convened to try defendant’s penalty case. The following evidence was introduced at the second penalty trial: 1. Prosecution Case. In aggravation, the prosecution introduced evidence of defendant’s five prior felony convictions and evidence of prior unadjudicated criminal activity, including four other robberies and defendant’s commission of sodomy against another jail inmate in 1984 while awaiting trial. 2. Defense Case. As at the guilt phase, defendant tried to establish the dubiousness of the case against him. He did not testify, but challenged the reliability of Mrs. Davies’s identification of him, and called Masse as a witness in an attempt to impeach Masse’s account of events and to illuminate for the jury the bargain Masse had struck with the authorities. Defendant also introduced evidence of his background and character, including the circumstances of his childhood and the quietude of his life in Port Aransas after his flight to Texas. II. Jury Selection Issues A. Denial of Motion for Extra Juror Compensation. Twice before the taking of evidence began in the guilt phase defendant requested that jurors who stated jury service would harm them financially be paid a daily amount that would reflect the minimum standard of living in Sacramento County—a term defendant did not define—rather than the $5 daily fee authorized by former section 1143. He argued that any other course of action ran the risk of making the jury unrepresentative, in violation of the federal due process clause as applied to the states. The com! denied the motion, and defendant contends it erred thereby. We have repeatedly rejected the claim. “In order to establish underrepresentation, and thus denial of an impartial jury drawn from a fair cross-section of the community, a defendant must make a prima facie showing: ‘(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ (Duren v. Missouri (1979) 439 U.S. 357, 364 [58 L.Ed.2d 579, 587, 99 S.Ct. 664].)” (People v. Harris (1989) 47 Cal.3d 1047, 1077 [255 Cal.Rptr. 352, 767 P.2d 619].) At least five jurors were excused for financial reasons. Venireperson L. was being transferred to the Bay Area and could lose her job if required to stay. Venireperson C. was a single mother of two whose employer would not pay her while on jury duty. Venireperson D. was a dentist who could not afford to close his practice for five months. Venireperson F., an accounting clerk, was the main source of support for her three children because her husband earned $115.50 per week. And venireperson B.’s employer would pay him for only two weeks; he was the sole source of support for his girlfriend and their seventeen-day-old child. Our independent review of the record discloses that the foregoing group was remarkably diverse with regard to race, ethnicity, sex, wealth, and income. The only factor common to the excused venirepersons was the financial difficulty that participating in a protracted trial would cause. That is not enough of a common interest to form a cognizable excluded class. (Cf. People v. Johnson (1989) 47 Cal.3d 1194, 1214 [255 Cal.Rptr. 569, 767 P.2d 1047] [“Even assuming that only poor persons were given hardship exclusions, a fact not proven here, persons with low incomes do not constitute a cognizable class. [Citations.]”].) We need not revisit our statement in Johnson because the record does not reveal that the excused jurors were uniformly or even largely poor. Accordingly, defendant’s claim fails to persuade. B. Exclusion of Ex-felons. Defendant also renews a contention that he asserts he raised in a pretrial motion to quash the venire: that the exclusion of ex-felons violated a Sixth Amendment right to a representative jury. We reject the claim on procedural grounds. Defendant does not accurately describe the record, for our own review reveals that the point was never litigated below. Rather, defendant argued that the court should include resident noncitizens in the venire—a contention he specifically declines to renew on appeal. C. Restriction on Voir Dire at Second Penalty Trial. Defendant contends that in two instances the court improperly restricted his ability, in the initial sequestered questioning of potential jurors at the second and determinative penalty trial, to explore the specific crimes that would cause the venireperson to automatically vote for death. He maintains the ruling violated his rights under state law and the federal Constitution. We recently decided this issue against a defendant in circumstances logically similar to those before us today. In People v. Clark (1990) 50 Cal.3d 583 [268 Cal.Rptr. 399, 789 P.2d 127], the defendant sought to inquire about whether prospective jurors’ attitudes toward evidence of the infliction of serious burn injuries might result in a vote for death. In rejecting Clark’s contention that he was entitled to pursue his questioning in this area during the initial sequestered examination, we noted that Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301], requires, in a capital case, a sequestered examination of prospective jurors to learn whether conscientious or religious scruples would prevent the performance of their duties. But while it “is true that counsel must be permitted to ask questions of prospective jurors that might lead to challenges for cause [citation,] [t]he inquiry that defendant sought to make was not relevant to the death qualification process .... The Witherspoon-Witt (Wainwright v. Witt [(1985)] 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]; Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]) voir dire seeks to determine only the views of the prospective jurors about capital punishment in the abstract, to determine if any, because of opposition to the death penalty, would ‘vote against the death penalty without regard to the evidence produced at trial.’ [Citation.]. . . There was no error in ruling that questions related to the jurors’ attitudes toward evidence that was to be introduced in this trial could not be asked during the sequestered Witherspoon-Witt voir dire.” (People v. Clark, supra, 50 Cal.3d at pp. 596-597, fn. omitted.) Nor was there error here. Defendant does not contend, nor can he, that he was unable to learn whether the venirepersons were inclined, in the abstract, to impose the death penalty automatically, as he was constitutionally entitled to do (Morgan v. Illinois (1992) 504 U.S. _, _ [119 L.Ed.2d 492, 112 S.Ct. 2222]), for the record is to the contrary. Venireperson R stated twice that she would not automatically vote for death for murder. The court curtailed voir dire only when defendant asked her what type of murder case warranted the death penalty. At that point the prosecution objected, and defendant rephrased his question to verify that venireperson P. did not believe that all murder cases should result in death. Defendant excused the venireperson peremptorily after his motion to excuse her for cause was denied. Venireperson S., who unlike venireperson P. became a juror, also stated quite articulately that he favored the death penalty but would not automatically impose it because “I believe in mitigating circumstances and things like that” and would base his decision on “what the mitigation is and the aggravation.” Defendant was thus able to learn in both instances the venireperson’s attitude toward the death penalty in the abstract; and thus he could ascertain whether the venireperson was fit to serve on the jury. Because we conclude there was no violation of state law or the federal Constitution in curtailing voir dire at this phase, we do not reach the People’s contention that defendant in any event had failed to exhaust his peremptory challenges. We also leave aside defendant’s argument that the People’s contention misses the point because the court’s rulings gave defendant notice that further questioning on the issue would not be permitted, and thus impinged on his ability to voir dire the entire venire. III. Guilt Phase Issues A. Testimony of Gary Masse. In a separate proceeding before defendant’s trial, Masse was sentenced to life in prison without the possibility of parole for his part in the crimes against the Davieses. While awaiting transfer to state prison, he contacted sheriff’s officers, saying he wanted to give a complete account of his and defendant’s role in the Davies crimes, and hoped his sentence could be reduced. The officers agreed to intercede with the district attorney’s office, which in turn persuaded Masse’s trial judge to recall his sentence pending the outcome of defendant’s trial. After the officers took a tape-recorded statement from Masse, they told him that if he wanted to receive any benefit from the statement it would have to be true and verifiable and he would have to testify against defendant. Defendant moved to exclude Masse’s testimony until the latter was resentenced, and the court held a lengthy in limine hearing on the matter before denying the motion. The court found that three reasons had motivated Masse to give his statement: an expectation of a lesser sentence if the sentencing court agreed; placement in a safe institution where he could pursue an education; and a desire, in the court’s words, to “get a very sorrowful act off of his chest and, so to speak, wash and cleanse his soul.” Masse testified against defendant, and thereafter was resentenced. 1. Alleged Violation of Due Process. Defendant contends the court erred on due process grounds in allowing Masse to testify because the possibility of a greatly reduced sentence gave Masse a powerful inducement to perjure himself, and because the agreement Masse reached with the interviewing sheriff’s officers impermissibly required Masse to testify against defendant in conformity with the tape-recorded statement he gave the officers. We disagree. We recently reviewed the subject of accomplice testimony in People v. Morris (1991) 53 Cal.3d 152 [279 Cal.Rptr. 720, 807 P.2d 949]. We held that when an accomplice is granted immunity on condition that his or her testimony substantially conform to an earlier statement given to police, the testimony is tainted beyond redemption and its admission denies the defendant a fair trial. “On the other hand, although there is a certain degree of compulsion inherent in any plea agreement or grant of immunity, it is clear that an agreement requiring only that the witness testify fully and truthfully is valid. [Citations.]” (Id. at p. 191.) Notwithstanding defendant’s efforts to portray the agreement as impermissibly tainted because Masse asserted that he expected to have to testify in conformity with his prior statement, the record elsewhere establishes that Masse meant by his assertion that his testimony at trial would have to conform to that given in his tape-recorded statement because both were true. Masse declared repeatedly that his duty under the agreement was to be truthful and give a complete account of the facts, and that if he did so the sentencing court might reduce his sentence. That was also his interviewers’ understanding. Moreover, the record reveals that Masse expected the finding of his special circumstance to be overturned on appeal, leaving him with perhaps 17 years’ actual time in prison. Masse’s expectation of a lesser sentence was a hope that his time would be reduced to 12 years in an institution in which he would not be marked as a prosecution witness and hence be kept in protective custody. Finally, the voluminous record of the hearing on this issue supports the finding that Masse felt remorse for his part in the Davies crimes and wished to give a true account of his role. In sum, though the bargain obviously contained “a. . . degree of compulsion [of the type] inherent in any plea agreement or grant of immunity” (People v. Morris, supra, 53 Cal.3d 152, 191), from Masse’s perspective the degree of compulsion was not overwhelming, and more important, the only demand Masse understood the agreement made of him was to tell the truth. Such a bargain did not make the trial fundamentally unfair, and hence did not offend defendant’s due process rights. Next, defendant contends his due process rights were violated even if the agreement required only that Masse’s testimony conform with the truth, because Masse in fact believed he was required to testify according to a predetermined formula. The record belies this contention. Questioned again and again about his understanding of the nature of the testimony he was to give, Masse continued to emphasize his understanding that he was to tell only the truth.. We also find of paramount significance the fact that the jury was aware of the bargain: Masse was extensively and effectively examined by defendant’s counsel on his expectations of a reduced sentence following his testimony. The jury had every opportunity to discount or entirely disbelieve Masse’s testimony—an opportunity enhanced by the court’s instructions that Masse was an accomplice as a matter of law and that an accomplice’s testimony is to be distrusted. The jury chose to believe Masse and not defendant despite the examination and instructions. 2. Other Constitutional Considerations. Defendant contends the agreement violated his Federal Eighth Amendment right as a capital defendant to heightened scrutiny in the fact-finding process. He relies on Franklin v. State, supra, 577 P.2d 860, 863, in which the prosecution became “committed to a theory quite possibly inconsistent with the truth and the search for truth.” For the reasons described above, we do not believe the prospect of obtaining Masse’s testimony committed the prosecution to a theory suffering from such a deficiency, and therefore reject the claim. Defendant also contends that he was denied an opportunity for effective cross-examination under the Sixth Amendment because Masse was locked into a recitation of the prosecution’s version of the facts as he had learned them at his own trial. We need not consider the validity of the constitutional premise that grounds this contention because we have concluded, after a thorough review of the record, that Masse was not confined in the manner that defendant suggests. B. Victim’s Identification of Defendant. Mrs. Davies identified defendant at trial as the man who came to the door and began the robbery that culminated in her husband’s murder. Defendant moved to exclude Mrs. Davies’s in-court identification because the photographic and physical lineups she saw were impermissibly suggestive and gave rise to a likelihood of misidentification. Defendant also filed a “trial motion to exclude Grace Davies’ identification” on the ground that defense counsel had been barred from questioning her immediately following her identification of defendant at a physical lineup. In a written ruling, the court granted the motion to exclude evidence of the physical lineup identification because defense counsel was ordered from the room immediately following the lineup, but denied the motion to exclude the in-court identification, finding that defendant had failed to meet his burden of establishing unduly suggestive and unnecessary lineup procedures. Defendant contends the in-court identification should have been excluded because both prior lineups were suggestive, and tainted the in-court identification. We find his contention unpersuasive. Defendant bears the burden of showing unfairness as a demonstrable reality, not just speculation. (People v. Perkins (1986) 184 Cal.App.3d 583, 589 [229 Cal.Rptr. 219].) “The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary (Manson v. Brathwaite [(1977)] 432 U.S. [98,] 104-107 . . . ; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation (id. at pp. 109-114 . . .). If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable. (Id. at pp. 104-107, 109-114. . . .) [ft]. . . It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. [Citations.]” (People v. Gordon (1990) 50 Cal.3d 1223, 1242-1243 [270 Cal.Rptr. 451, 792 P.2d 251].) Even under independent review (see id. at p. 1243) we hold that the court’s determination was sound; its reasoning, set forth in clear detail in the record and recapitulated as necessary below, is persuasive. 1. Photographic Lineup. Mrs. Davies remembered the man who came to the door as sporting a red jacket. Defendant contended that the five-man photographic lineup was too suggestive because only his photograph featured a dark background, and only he wore a red shirt. He renews this contention on appeal. The trial court found that “The fact that the photo . . . showed him wearing a red colored shirt or jacket... did not cause the defendant to be ‘singularly marked for identification.’ People v. Caruso (1968) 68 Cal.2d 183, 187 [65 Cal.Rptr. 336, 436 P.2d 336].” We agree. Our own inspection of the lineup photographs shows defendant to have worn a rather soiled open-necked red or orange golf-type shirt. This hardly uncommon apparel cannot be termed a badge of identity here, particularly because it bears no resemblance to a jacket at all. The trial court also explained, “Witness Davies testified she made her selection looking at the defendant’s hair and face; she did not notice the shirt. Further, the photo lineup was not shown to the witness immediately after the commission of the crime, vitiating any suggestion that the photo might have been taken on or about the date the crime was committed.” In sum, we agree with the trial court that the mere wearing of an item of apparel of the same color as that recalled by the witness—particularly a different item of apparel, for defendant does not dispute that the man who came to the door wore a jacket whereas the photograph showed defendant in a shirt—does not, without more, make the lineup unduly suggestive. Defendant has cited no authority to the contrary, and we find his contention merely speculative. 2. Physical Lineup. Next, defendant contends, as he did before the trial court, that the physical lineup was unnecessarily suggestive because, to mask defendant’s stature, he was made to stand on books that were concealed from the viewer and his apparent height was thereby increased. We do not agree. Mrs. Davies described the person who came to her door as slightly taller than her husband, whose height was estimated at five feet eight or nine inches. The lineup featured four stand-ins whose respective heights, defendant states, were five feet seven inches, five feet nine inches, five feet ten inches, and five feet ten inches. Whether defendant is five feet four inches or five feet six inches, our own examination of the lineup photograph reveals no undue suggestiveness in the procedure and we decline to find error in admitting the identification. First, there were no markings on the wall that might have provided Mrs. Davies a clue about the participants’ actual heights. (Cf. United States v. Sanders (8th Cir. 1980) 626 F.2d 1388, 1389 [even when markings were provided, lineup was not unduly suggestive].) Second, Mrs. Davies testified she thought defendant’s height was about right because he was one of the two shortest men in the lineup. Indeed, had the police failed to elevate defendant to equalize the heights of the lineup participants, he might well have challenged the discrepancy in his height. (See United States v. Lewis (8th Cir. 1976) 547 F.2d 1030, 1035.) Finally, defendant does not contend that the stand-ins had significantly different facial or hair characteristics from his own (cf. ibid.)—a contention he could not make, for our review reveals no such distinctions—and Mrs. Davies was told defendant might not be in the lineup at all. Under these circumstances we cannot find undue suggestiveness in the lineup procedure. Because we find no undue suggestiveness in the photographic lineup, we cannot agree with defendant that that procedure tainted the physical lineup. The fact that defendant was the only person common to both lineups did not per se violate his due process rights. (United States v. Cook (9th Cir. 1979) 608 F.2d 1175, 1178-1179 [54 A.L.R. Fed 661]; People v. Hernandez (1970) 11 Cal.App.3d 481, 488 [89 Cal.Rptr. 766] [dictum].) Furthermore, we note that defendant’s appearance in the physical lineup differed from that in the photographic lineup—in the latter he was unshaven, in the former clean-shaven. C. Removing Element of Burglary From Jury’s Consideration. Defendant contends the court directed a verdict on an element of the burglary with which he was charged. He contends that the court’s action constituted error of constitutional magnitude that requires reversal of the burglary conviction, vacation of the finding of the burglary special circumstance, and reversal of the judgment of death. We do not agree. To be sure, a defendant enjoys a federal due process right to have the state prove beyond a reasonable doubt every fact necessary to constitute the crime charged. (E.g., Sandstrom v. Montana (1979) 442 U.S. 510, 523 [61 L.Ed.2d 39, 50-51, 99 S.Ct. 2450].) The court thus erred if it gave an instruction that removed a core element of the crime from the jury’s consideration. But it did not do so here. The court instructed the jury according to former CALJIC No. 14.50. The court stated, as relevant here, “Defendant is charged . . . with . . . burglary, a violation of section 459 of the Penal Code. [1] Every person who enters any structure of a type shown by the evidence in this case with the specific intent to steal, take, and carry away the personal property of another of any value, and with the further specific intent to deprive the owner permanently of such property, is guilty of. . . burglary. ...[*]□ In order to prove . . . burglary, each of the following elements must be proved: One, that a person entered a structure of the type shown by the evidence, [and] two, that at the time of the entry, such person had the specific intent to steal and take away someone else’s property, and intended to deprive the owner permanently of such property.” Section 459 provided in pertinent part at the time of the crimes charged that anyone who enters “any house [or numerous other fixed structures or parts thereof] or other building [or numerous other places] with intent to commit grand or petit larceny or any felony is guilty of burglary.” The instruction required the jury to find that defendant entered a structure. It also required the jury to find that defendant entered a structure of the type shown by the evidence. The only thing that the instruction did not require of the jury was a finding that the “structure of a type shown by the evidence” was a building. But only one type of structure was shown by the evidence: the Davieses’ house. By definition the house was a building. No rational trier of fact could have found that the structure shown by the evidence—the Davieses’ house—was not a building. The law does not require the jury to decide the impossible. There was no error. D. Restriction on Masse Cross-examination. 1. Impeachment With “Perjury” Incident. During the pretrial hearing into the propriety of the bargain Masse had struck with the prosecution, Masse mentioned that in 1973 he agreed to testify against one Ashton in a criminal proceeding after Masse was arrested. According to Masse, the district attorney prosecuting the case against Ashton told Masse to leave out certain portions of his story while testifying. Masse did so at first but then, on cross-examination, refused to continue and volunteered to the court that his testimony had not been the whole truth. The prosecution filed a motion in limine seeking to bar defendant from referring to this incident for purposes of impeachment. Over defendant’s opposition the court granted the motion, ruling that the incident was a collateral matter and substantially more prejudicial than probative (Evid. Code, § 352), was remote in time, and was barred by Evidence Code section 1101, subdivision (b) (barring, as then worded, introduction of other acts to show “disposition to commit such acts”). A similar prosecution motion during the second penalty phase was also granted. Defendant characterizes Masse’s prior testimony as the Ashton “perjury incident,” and contends the court erred on all three stated grounds in barring the testimony. In addition, defendant contends that the rulings violated his Sixth Amendment confrontation and Fifth and Fourteenth Amendment due process rights, and the Eighth Amendment. We need not consider whether the court erred in ruling that the event was too remote in time or that section 1101 of the Evidence Code barred its admission, because we conclude that the ruling that the evidence was substantially more prejudicial than probative must be sustained. It is axiomatic that a court has wide discretion to exclude evidence as substantially more prejudicial than probative. Its ruling therefore will be sustained on review unless it falls outside the bounds of reason. (Shamblin v. Brittain (1988) 44 Cal.3d 474, 478 [243 Cal.Rptr. 902, 749 P.2d 339].) In this case the record reveals ample reason to exclude the evidence. First, defendant was given considerable leeway to introduce evidence suggesting Masse’s strong current motivation to lie. Thus the ruling arguably could be sustained on the ground that the evidence was cumulative. Even more compelling, however, is the fact that the evidence’s probative value was minimal. Had Masse indeed committed perjury in the Ashton proceeding, the evidence of that misdeed might have significantly buttressed defendant’s case. But our reading of the record leads us to conclude that defendant’s characterization of Masse’s testimony in the Ashton case is flawed. The record most strongly suggests that Masse—who appears to be an unsophisticated and artless individual—was told by the prosecution before the prior proceeding to avoid certain areas of testimony and focus on others. Masse tried to follow directions but during cross-examination concluded he was not telling the whole truth and volunteered to the Ashton court that he was lying. Under defense counsel’s persistent questioning in this case, Masse stated that he had committed perjury; but a lay witness’s conclusion about the legal effect of his own actions is incompetent, and like the trial court we are unpersuaded that defendant showed Masse committed perjury in the first place. Indeed, the evidence was susceptible of an interpretation that Masse had a tendency to prefer the truth over instructions from authority figures to testify selectively; thus, particularly in this case, the introduction of that evidence might well have enhanced Masse’s credibility. In sum, the evidence that the prosecution wished to bar was of questionable value and paled in significance beside the evidence the jury was allowed to hear—evidence that in exchange for his testimony Masse stood to avoid the possibility of additional decades in prison. We discern no abuse of discretion in the ruling, and for the foregoing reasons we also discern no violation of defendant’s federal constitutional rights. 2. Masse’s Reference to Cognitive Difficulties. At trial the court asked defendant if he wished to introduce a statement the court “attributed” to Masse: that Masse had trouble remembering things “because of his brain cells.” After defendant said he did wish to introduce the statement, the court ruled against its admission because a layperson is incompetent to give a clinical medical diagnosis of his or her physical condition. The court did rule, however, over the prosecution’s objection, that defendant would be allowed to introduce expert testimony on Masse’s cognitive shortcomings and to cross-examine Masse on that point. Defendant contends the court erred in suppressing Masse’s statement that he had trouble remembering “because of his brain cells.” For procedural reasons alone we could reject this contention. The page of the record defendant cites as containing Masse’s statement contains no such language, and the trial court itself stated only that such a statement had been attributed to Masse, not that Masse had made it. We are not required to scrutinize the voluminous record to locate the statement, if any, that Masse made. We will, however, give defendant the benefit of the doubt that Masse made such a statement. We conclude that the court erred in excluding it. Assuming that the proffered testimony related to Masse’s present cognitive difficulties, it was admissible opinion evidence (Evid. Code, § 800), for “there is no logical reason why qualified lay witnesses cannot give an opinion as to mental condition less than sanity” (People v. Webb (1956) 143 Cal.App.2d 402, 412 [300 P.2d 130]) or to similar cognitive difficulties. Defendant wished to introduce the statement to show that Masse recognized his memory was impaired. But our reading of the relevant record shows that the jury was made fully aware of the shortcomings in Masse’s memory in two other ways. Thus we conclude the error was harmless. First, defendant was allowed to present a psychiatrist’s expert testimony that Masse suffered from a borderline personality disorder that affected his memory and perception, a disorder that is the second-worst personality disorder in the psychiatric compendium. The jury heard that Masse had been diagnosed as psychotic, meaning that he had trouble perceiving reality correctly. The jury also heard that Masse had been hospitalized 13 times—a frequency that placed him in the top 5 percent of psychiatric patients—for a total of 132 days. The defense psychiatrist observed that Masse had an unusually poor memory. He mentioned a 1979 report that Masse had “repressive defenses,” a condition permitting an individual to obliterate an event from memory. In sum, defendant was able to present strong evidence of poor memory and other cognitive defects. Second, we note that Masse stated over and over that he could not recall various events. If the jury would not have been influenced by Masse’s repeated direct statements of his inability to recall when questions were put to him, it could not possibly have been influenced by a hearsay statement suggesting that Masse’s ability to recall was impaired. Thus, the evidence would have been of little value. (Evid. Code, § 352.) For the foregoing reasons, we decline to find prejudice under state or federal law. E. Admission of Masse’s Statement to Authorities Implicating Defendant. After Masse testified, the prosecution called Lieutenant Biondi, whom Masse had telephoned while still a fugitive. Masse had called Biondi at least in part to discuss the desirability of surrendering himself to the authorities. Biondi testified that Masse told him, “We just went in there to do a robbery. I didn’t know he was going to shoot the old people.” Defendant objected on the ground of hearsay, and he contends the court erred in admitting the statement as a prior consistent statement because, contrary to the terms of the relevant statute, Masse’s motive to fabricate his declaration arose before he made it. In defendant’s view, the record establishes that Masse’s motive to fabricate arose at the time of the murder, when he realized he could bear the entire penal consequences of the incident. The People respond, as they did at trial, that the statement was admissible as a prior consistent statement; in addition, they contend the statement was admissible as a prior inconsistent statement. We agree that the statement was properly admitted as a prior consistent statement. Thus, against defendant’s urgings, we conclude that People v. Andrews (1989) 49 Cal.3d 200 [260 Cal.Rptr. 583, 776 P.2d 285] governs in light of the record here. In Andrews, an analogue to this case, the defense examination of an accomplice turned prosecution witness implied that a plea bargain that the accomplice had accepted provided an additional motive to testify untruthfully. “This, in turn, entitled the prosecution to show that [the accomplice’s] testimony was consistent with the [apparently hearsay] recorded statement he gave shortly after his arrest but before the ‘deal’ was consummated, that is, before the subsequent, specific motive to fabricate arose. [Citations.]” (Id. at p. 210.) In our view Andrews, supra, 49 Cal.3d 200, applies fully to this case. Defendant extensively cross-examined Masse about the deal he had made with the authorities to have his sentence recalled in exchange for his testimony. Whatever motive Masse may have had to place the blame on others for the events in the Davieses’ house at the time he spoke to Lieutenant Biondi on the phone, defendant implied that the possible modification of Masse’s sentence yielded a compelling additional incentive to lie, an implication that in turn entitled the prosecution to rehabilitate Masse with his prior consistent statement. Defendant also contends that his federal constitutional right to due process of law was violated when Masse’s hearsay statement was admitted. He cites Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 180, 100 S.Ct. 2227], which states that when a state “has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant’s interest in the exercise of that discretion is merely a matter of state procedural law.” We do not discern, however, how the language of Hicks aids defendant. Masse’s statement was admissible to refute an implication that his testimony was tainted by his desire to win a reduced sentence. Because the statement fell within the statute’s scope and the statute’s constitutionality is unchallenged, we perceive no due process violation. F. Admission of a Photograph of the Davieses. The prosecution showed three witnesses a photograph of the Davieses, apparently on vacation in Boulder City, Nevada, in 1981, for identification purposes. When the prosecution moved to introduce the photograph into evidence, defendant objected on grounds of relevance and undue prejudice, stating that the photograph would serve only to curry the jury’s sympathy for the victims. Defendant offered to stipulate to the Davieses’ identity. The court declined the offer and overruled the objection on the basis of the prosecution’s prior use of the photograph for identification. Defendant contends admission of the photograph was error on both state evidentiary grounds. To be sure, we have repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. (See People v. Kelly (1990) 51 Cal.3d 931, 963 [275 Cal.Rptr. 160, 800 P.2d 516]; People v. Edwards (1991) 54 Cal.3d 787, 836 [1 Cal.Rptr.2d 696, 819 P.2d 436] [guilt phase]; People v. Cox (1991) 53 Cal.3d 618, 663-664 [280 Cal.Rptr. 692, 809 P.2d 351]; People v. Ramos (1982) 30 Cal.3d 553, 577-578 [77 L.Ed.2d 1171, 103 S.Ct. 3446], revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446]; see also People v. Anderson (1990) 52 Cal.3d 453, 474-475 [276 Cal.Rptr. 356, 801 P.2d 1107].) Otherwise, there is a risk that the photograph will merely generate sympathy for the victims. Indeed, our own inspection of the photograph in issue here suggests that it possibly did generate sympathy for the victims, a harmless- and congenial-appearing elderly couple. Nonetheless, we decline to find error. The photograph, which was shown to three witnesses, was relevant to establish the witnesses’ ability to identify the victims as the people about whom they were testifying. The possibility that it generated sympathy for the victims is not enough, by itself, to compel its exclusion if it was otherwise relevant. After all, Mrs. Davies’s presence on the stand probably also generated sympathy for her and her late husband, but it would be unreasonable to demand that she testify behind a screen to lessen the impact of her presence on the jury. Moreover, even if error occurred, it could not have been prejudicial. As we concluded in People v. Kelly, supra, 51 Cal.3d at pages 963-964, this was not •a close case in which sympathy for the victims might have led the jury to improperly convict. It would not have been reasonably probable that the outcome would have been more favorable to defendant had the photograph been excluded. Its admission thus would not have warranted reversal on state-law grounds. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Defendant also contends that admission of the photograph violated his federal constitutional rights. Citing Beck v. Alabama (1980) 447 U.S. 625, 632, 636 [65 L.Ed.2d 392, 399-400, 402, 100 S.Ct. 2382], he argues that the photograph’s appeal to the jury’s emotions infringed upon the Eighth Amendment’s guaranties. The authority defendant cites does not support that proposition. Beck v. Alabama, supra, 447 U.S. 625, held unconstitutional a penal scheme that prohibited giving lesser included offense instructions in a capital trial, thereby, as the petitioner in that case argued, “forcing the jury to choose between conviction on the capital offense and acquittal. . . .” (Id. at p. 632 [65 L.Ed.2d at pp. 399-400].) “Such a risk,” the court concluded, “cannot be tolerated in a case in which the defendant’s life is at stake. . . . [jQ ‘It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.’ ” (Id. at pp. 637-638 [65 L.Ed.2d at pp. 402-403].) But the prohibition against “caprice or emotion” is qualified: to be invalid the procedural rule must tend to “diminish the reliability of the guilt determination.” (Id. at p. 638 [65 L.Ed.2d at pp. 403].) We perceive no such diminution here despite our view that the photograph possibly did create sympathy for the victims. Given the strong evidence of defendant’s guilt, the possibility is very slight that any impermissible sympathy it generated toward the victims in turn led to the verdict. G. Jailhouse Informant’s Assertedly Improper Rebuttal Testimony. After Masse testified that he and defendant entered the Davieses’ house and defendant shot the couple, defendant appeared as a witness on his own behalf. He testified that he never entered the house at all, but circled the neighborhood in various cars, maintaining a vigil on the house for several hours while Masse carried out the robbery and by inference shot the victims. He also testified there was no discussion between him and Masse about shooting the Davieses or killing them by any means. In rebuttal the prosecution sought to call Robert Elliott, a trusty on defendant’s floor in the Sacramento County jail and a jailhouse informant, to testify that defendant told him he shot Mr. Davies. (On cross-examination Elliott would state that defendant also said he and Masse flipped a dime to determine who would shoot whom, and that Masse shot Mrs. Davies.) Defendant objected on grounds of improper rebuttal and that the evidence was substantially more prejudicial than probative. The defense argued that Elliott’s information was obtained during an interview on February 25,1985, while the prosecution was still presenting its case, so that Elliott could have been called to testify in the case-in-chief. The prosecution rested its principal case on March 7, 1985. The prosecutor stated that he didn’t know defendant was going to “tell the story he did until last week.” The court agreed, stating that the prosecutor “may well have been satisfied, acting in good faith, that he had put the sufficient proof on to argue his position with the jury, until the point that Mr. DeSantis got up here and testified and came forward with his story . . . and strategically at that point, he may well have felt it would [benefit] the position of the People to bring [Elliott] on to say whatever he’s going to say, if he can say it.” Defendant argued that “nothing could be clearer [i.e., more material to the prosecution’s case-in-chief] than ... a statement Mr. DeSantis was the person who shot Ed Davies . . . and ... by allowing him now to offer this evidence in rebuttal, you are focusing, allowing the jury to put undue weight and focus on that evidence, and we would most respectfully submit that it would constitute an abuse of discretion.” The prosecutor replied that “It’s the kind of evidence that. . . takes a little time to check out. H] It’s also—I was not aware what Mr. DeSantis’ position was in this case.” The court ruled that because the evidence was discovered near the close of the prosecution’s case and that it served the ends of justice to investigate the testimony before presenting it to the jury, the court would exercise discretion to allow its introduction in rebuttal. On appeal, defendant contends that the Elliott testimony constituted improper rebuttal. We must disagree. The decision to admit rebuttal evidence over an objection of untimeliness rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of that discretion. (People v. Carrera (1989) 49 Cal.3d 291, 323 [777 P.2d 121].) “ ‘Although a crucial witness known and available to the prosecution should be called during the case-in-chief (People v. Carter (1957) 48 Cal.2d 737, 753-754 [312 P.2d 665]), circumstances may make that order of proof impossible. The order of proof lies within the sound discretion of the trial court. . . ” (People v. Gates (1987) 43 Cal.3d 1168, 1184 [240 Cal.Rptr. 666, 743 P.2d 301].) Here, as in Gates and unlike in Carter (see ibid.), the prosecutor explained the delay in presenting Elliott’s testimony. He stated that he needed to investigate the merits of the claim, which was made shortly before the People rested their case, and that he was surprised by defendant’s testimony. The record supports the court’s decision to accept the prosecution’s explanation, and we discern no reason to disturb that ruling on appeal. IV. Penalty Phase Issues A. Jury Conduct Issues. 1. Allegation That Court Failed to Inquire Into Possibility Jurors Were Dozing. During the taking of evidence at the penalty phase, defense counsel asked to approach the bench for an unreported conference. Thereafter the court directed the jurors to stand up and stretch, and said, “If at any time somebody feels drowsy, let me know, and we’ll call a short recess. [SI] Sometimes when we close our eyes, we can still think, but it’s best if we keep them open.” At the next recess, counsel said he had counted four jurors who “had their eyes closed and appeared to me [to be] dozing.” Of Juror S. the court said, “There was no indication that Mr. [S.] was ever sleeping. It’s just that he sits there with his eyes closed. . . . [He] sits there with his eyes closed, but he’s not dozing because I can see that his head’s not bobbing.” Of the four relevant jurors collectively, the court said it had not noticed them to be dozing, but that “their eyes are closed occasionally.” Defense counsel did not pursue the matter until later in the penalty phase, when he complained that “During the testimony this morning, Mr. [J.], juror number nine, appeared to have dozed off.” The court disagreed: “I was watching, and he was twiddling his thumbs while he had his eyes closed, so it was apparent—I was trying to mimic that, and you can’t sleep and twiddle your thumbs at the same time.” Defense counsel asked the court if it would like to be alerted if counsel observed other potential misconduct, and the court agreed, reiterating that “I was keeping a close eye on it, and I was ready to call a recess, except, as I say, he was twiddling his thumbs, and then he would open his eyes, so I figured he couldn’t be sleeping and twiddling his thumbs at the same time . . . .” Defense counsel did not pursue the matter further, and never asked the court to voir dire the jury. Defendant contends the court erred in failing to act on these two occasions, thereby violating his rights under state law, the federal due process clause as applied to the states, the cruel and unusual punishments clause, and his right to a jury trial under the state and federal Constitutions. We disagree with the basic premise of these contentions—that the court failed to act—and therefore reject the claims. In People v. Adcox (1988) 47 Cal.3d 207, 252-254 [253 Cal.Rptr. 55, 763 P.2d 906], we discussed an allegation that the trial court failed to voir dire the jury on its own initiative regarding the jurors’ possible exposure to newspaper article