Full opinion text
Opinion BAXTER, J. In 1979, defendant was convicted of two counts each of first degree murder (Pen. Code, §§ 187, 189), kidnapping for the purpose of robbery (§ 209), and robbery (§ 211) arising from a single incident in March 1979. As to each murder, the special circumstances of multiple murder (§ 190.2, subd. (a)(3)) and robbery murder (§ 190.2, subd. (a)(17)(A)) were found true. The jury sentenced defendant to death. In 1987, we affirmed the guilt judgment, struck one of the multiple-murder special circumstances, and reversed the penalty judgment for so-called Ramos error (People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430] [improper Briggs instruction on Governor’s commutation power]). (People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306] (Anderson I).) In December 1990 and January 1991, defendant was retried on the issue of penalty. Again he was sentenced to death. This appeal is automatic. (§ 1239, subd. (b).) We find no reversible error. We therefore affirm the judgment. Facts The People proffered evidence of (1) the 1979 robbery murders of Donna Coselman and Louise Flanagan, which led to defendant’s capital convictions, and (2) the unadjudicated robbery murder of Jack Mackey, allegedly committed by defendant in 1978. Defendant presented no affirmative case in mitigation. As to the capital crimes, he rested his defense on lingering doubt. As to the Mackey incident, he sought to raise a reasonable doubt by mounting an extensive attack on the credibility of the principal prosecution witness. Evidence bearing on the 1978 and 1979 crimes was as follows: A. 1979 Coselman-Flanagan robbery murders (capital crimes). Just after 3:00 p.m. on March 4, 1979, Fred Anders (Fred) approached a parked Indio patrol officer, Ted Fish, and reported a possible murder in a citrus grove off Interstate 10 between Indio and Coachella. Fred directed Fish to the grove, where they were met by other law enforcement officers. Following Fred’s lead, officers discovered the body of Donna Coselman. The body was facedown, with ligature marks around the neck. On the basis of Fred’s descriptions, Fred’s sister Sheila Anders (Sheila) and defendant were soon arrested as they walked near the grove. The next morning, a further search of the grove revealed the body of Coselman’s grandmother, Louise Flanagan. Flanagan was hanging from a tree by a rope around her neck. Both Coselman and Flanagan died by strangulation. When arrested, Sheila had Flanagan’s watch and purse. Sheila’s own purse, found by the police in Fred’s car, contained Coselman’s wallet. Fred testified as follows: On the afternoon of March 4, 1979, he was driving his Mercury station wagon on Interstate 10. Defendant and Sheila were passengers. The three came upon a stranded Chevette and stopped. Inside the Chevette were two women, one young and one older. Fred, who had mechanical experience, immediately saw the problem, a loose wire that he could easily repair. However, Fred followed defendant’s order to return to the Mercury. Eventually, defendant brought the younger woman (Coselman) to the car and said they had to go get parts. Coselman entered the Mercury, and Fred drove away. The older woman (Flanagan) stayed with the Chevette. Fred’s testimony continued: Defendant directed Fred to take the first off-ramp from the freeway. As they came down the ramp, defendant told Coselman he was going to rob her. Coselman gave defendant everything she had, including her glasses. At defendant’s direction, Fred drove into a citrus grove and stopped. Defendant, Sheila, and Coselman got out, but Fred stayed in the car, as defendant ordered. Defendant bound Coselman’s wrists and tied her to a palm tree. Sheila went through Coselman’s purse. Defendant returned to the car and said he wanted Fred to go back with him to get Flanagan. Fred refused, but Sheila went with defendant. While they were gone, Fred untied Coselman and tried to persuade her to go with him for help, but she refused for fear that defendant would harm Flanagan. Fred further testified: When defendant returned, he berated Fred for untying Coselman and ordered Fred to return to the car. En route, Fred looked back to see that defendant had retied Coselman’s hands and was walking her into the grove. Fred followed, and defendant again ordered him back to the car. On his way back, Fred heard a single scream, rushed toward the sound, and saw defendant standing over the prostrate Coselman, pulling on a rope around her neck. Again defendant yelled at Fred to return to the car. When Fred arrived there, defendant was right behind him. Defendant and Sheila then took Flanagan from the car. They each held one of Flanagan’s amis and began walking her into the grove. Fred followed, and defendant again ordered him to go back. Fred ran to Coselman, shook her body, and got no response. He then ran to the car and left to get help. In a police interview, defendant stated the following: Defendant, Fred, and Sheila stopped by the side of the freeway to help the women with the disabled Chevette, but neither defendant nor Fred could determine the problem. It was decided that Fred would take Coselman to a phone booth to call for help. Fred and Sheila left with Coselman, while defendant stayed with Flanagan and the Chevette. Sometime later, Fred and Sheila returned without Coselman. Fred told Flanagan that Coselman was at a phone booth, but was concerned about Flanagan remaining alone with the Chevette, so Fred would take Flanagan to meet Coselman. Fred and Sheila then left with Flanagan. Defendant remained with the Chevette. Soon Fred and Sheila returned alone, and defendant never saw Coselman or Flanagan again. Fred, Sheila, and defendant resumed their freeway trip, but Fred soon left the highway at an off-ramp, “got some kind of attitude [,] kicked [defendant and Sheila] out of the car and split.” The shoes worn by Fred, Sheila, and defendant on March 4, 1979, were examined for comparison with footprints found at the scene of the murders. The soleprints of defendant’s and Sheila’s shoes were similar to footprints found around Flanagan’s body, but Fred’s shoes could not have made any of the footprints found at that location. Deborah Baros visited defendant in the Indio jail within days after his March 1979 arrest. He asked her to go to the orange grove and retrieve, from under a particular rock, a black purse that contained belongings. Baros asked defendant, “Did you do it?” He nodded slightly. Through cross-examination of Fred, and by other witnesses, the defense sought to expose inconsistencies in the details of the story Fred told at various times. The defense strategy was to suggest that Fred had falsely accused defendant, or exaggerated defendant’s involvement in the crimes, in order to minimize Fred’s own role. B. 1978 murder of Jack Mackey. Deborah Baros testified as follows: In approximately March and April of 1978, she, defendant, and their young child Anthony were living in a boardinghouse at 1204 Helen Street in North Las Vegas, Nevada. Baros worked as a waitress at Mom’s Kitchen, a soul food restaurant. When she worked evenings, her shift ended at 11:00 or 11:30 p.m. One evening, defendant picked Baros up from work, as was customary, in their brown Camaro. They drove to the service station where they usually bought gas. Anthony was between them in the front seat. After the attendant serviced the car, defendant asked for two packs of Kool cigarettes, his usual brand. Defendant followed the attendant to the center booth, where the cigarettes were kept. After a short time, the two returned to the passenger side of the car. Defendant then ordered the attendant to get into the Camaro. As the attendant entered the backseat, Baros saw that defendant was holding a gun shaped like an “L.” Baros continued: They left the station, made several turns, and drove toward the mountains. They passed a power plant, then stopped in a desert-like area with sand, gravel, dirt, and rocks. The night sky was well illuminated with “lights coming from somewhere.” There was a chain link fence and “a bunch of jeeps” in the background. The weather was cool and breezy. Defendant ordered Baros and the attendant from the car. Baros and the attendant began walking, side by side, into the desert-like area. As they did so, Baros heard three or four shots. When she woke up, defendant was gone. Baros realized she was not hurt, but the attendant lay beside her, facedown, with blood on his back. After a couple of minutes, the Camaro returned. Defendant and Anthony were in the car. Defendant ordered Baros to get in, and she complied. They did not return to 1204 Helen Street, but went immediately to a motel “across the street from the old ice plant,” where they stayed for several days. During that time, Baros continued to work at Mom’s Kitchen. Then she, defendant, and Anthony went to Florida. Baros identified photographs of the station and of Jack Mackey as the murdered attendant. North Las Vegas police officers and other witnesses testified about the unsolved murder of Mackey. In 1978, Margaret Potter and her husband owned a Discount Oil station on Bonanza Road in Las Vegas. Early on the morning of April 20, 1978, police called Potter to the station because it was “wide open” and unattended. When Potter arrived, cigarettes normally kept in the central booth were strewn on the ground outside the booth, and Mackey, the attendant, was missing. Around 9:00 a.m. on April 21, 1978, a cold and windy day, Mackey’s body was discovered on the outskirts of North Las Vegas, in the 2800 block of North Commerce, which was then a largely undeveloped desert area. The site is not far from a power plant, and mountains to the east and north are prominent landmarks. Though there was little nearby lighting in 1978, the area would have received some indirect nighttime illumination from the glow of downtown Las Vegas. When found, Mackey’s body was faceup, about 20 or 30 feet from the street. Nearby, a chain link fence enclosed an adjacent construction or trucking yard in which vehicles were parked. Shell casings, expended slugs, and live rounds were found at various locations near and under the body. Examination of the body disclosed five bullet wounds, including shots to Mackey’s head, back, and abdomen. The Mackey murder remained unsolved in 1990. Riverside County investigators contacted Baros, whose name was in their files, seeking background information for the instant penalty retrial. Baros was interviewed in early 1990 at her New Hampshire home, then brought to Las Vegas to discuss and recreate the Mackey episode. Without prompting, Baros directed an officer and investigator to Mom’s Kitchen and the Discount Oil station, then past a power plant and toward the mountains to the 2800 block of North Commerce, and finally to 1204 Helen Street. She also took them to an old ice plant and described the adjacent motel where she and defendant had stayed after the Mackey murder. Though there was no motel meeting her description in 1990, several had existed in April 1978. On cross-examination of Baros, defense counsel elicited the following: Anthony was born in a Florida hospital in July 1974. In May 1978, a month after the Mackey slaying, Baros, defendant, and Anthony were living in West Memphis, Arkansas, across the river from Memphis, Tennessee. One rainy evening, while Baros and Anthony were passengers in a car driven by defendant, they had a traffic accident on the bridge between the two cities. Anthony was killed. When Baros awoke in the hospital, she learned she had given birth to triplets. Two of the triplets, Otto Lynn and Richard Lee, died within days. The third, Julia Eva, lived five months. All were buried in West Memphis. Baros herself remained in the hospital for four months. Baros remembered things through dreams and believed defendant could communicate with her by telepathy. Testimony by defense and prosecution investigators established that inquiries to hospitals, cemeteries, health departments, and law enforcement agencies in Florida, Tennessee, and Arkansas, based on names variously used by Baros and information provided by her, had produced no record or other evidence of the births, deaths, or burials of Anthony or the triplets, or a May 1978 traffic accident involving Baros, or her hospitalization during that period. Myrtle Askew, who in 1978 owned the boardinghouse at 1204 Helen Street in North Las Vegas, confirmed that defendant and Baros lived in the house during the spring of that year, but Askew insisted that no child was with them, and that Baros never mentioned or showed signs she was pregnant during that time. Discussion A. Jury selection issues. 1. Motion to quash petit jury panel. On August 31, 1990, less than one month before the penalty retrial was then scheduled to begin, defendant moved to quash the petit jury panel on grounds that, in violation of constitutional guarantees of equal protection and a fair trial, the panel failed to represent a fair cross-section of the community. Attached to the motion was the declaration of Dr. Edgar W. Butler, who stated that his 1988 study of superior court jury venires in the Indio/Palm Springs area indicated significant underrepresentation by several groups, including Blacks. At the same time, defendant moved to continue the trial on grounds that new studies of Indio/Palm Springs venires, using not-yet-published 1990 census data, were needed. The trial court heard the motion to quash on September 14, 1990. Dr. Butler testified as follows: During an eight-week period in October, November, and December 1987, he conducted a comparative ethnic and demographic survey of persons who appeared at the Indio/Palm Springs courthouse in response to superior court jury summons. 1980 census data indicated that Blacks constituted 3.2 percent of the population of the geographic area from which Indio/Palm Springs juries were drawn. After reviewing preliminary data from the 1990 census, he expected that the new census would show no substantial change in this percentage. Moreover, the master list from which Indio/Palm Springs jurors were summoned at random in 1987—a list generated by merging voter registration and Department of Motor Vehicle (DMV) lists—appeared to fairly parallel the raw census figures for particular groups. However, only 2.1 percent of the persons who actually appeared for jury duty at the Indio/Palm Springs courthouse during the survey period were Black. This represented an “absolute disparity” of 1.1 percent from the census figures and a “comparative disparity” of 34 percent. Dr. Butler opined that the disparity arose because, for reasons about which he could only speculate, some persons summoned for jury duty were not responding. In arriving at this opinion, Dr. Butler had considered testimony by the Riverside County Jury Commissioner in another case indicating that, in 1987, the commissioner’s representative in the Indio/Palm Springs area “was not carrying out . . . follow-up procedures” to obtain the appearance of persons who failed to respond to the summons. On cross-examination, Dr. Butler explained his understanding that while there was no follow-up of summons returned to the court as nondeliverable, persons who simply failed to respond received two follow-up mailings before they were dropped from the jury rolls. Testimony was also received from Robert Gulley, the supervisor of jury services for the Indio/Palm Springs area. Gulley testified as follows: Jurors were summoned at random from the master list, derived from voter registration and DMV registration records. Only about 10 percent of the persons summoned appeared. If a person failed to respond to the initial summons, another summons was sent in the same manner. If the person still failed to respond, a notice was sent by certified mail. By September 1990, work had begun on implementing a bench warrant system for those who did not respond to the certified notice, but the system was not yet operational. Gulley, who assumed his duties after 1987, had no knowledge whether such a program had begun by then. To Gulley’s knowledge, nobody from the court system had ever gone into the field to find and bring in nonresponding persons. On September 17, 1990, the court denied the motion to quash. The court ruled that defendant had failed in two respects to demonstrate a case of constitutional underrepresentation. First, the court determined, the disparity shown—that, of 32 Blacks who should appear for every 1,000 panelists, only 21 do—was not so great as to render the representation of Blacks on Indio/Palm Springs superior court juries less than fair and reasonable in relation to their number in the general population. Second, the court explained, defendant had failed to show, beyond Dr. Butler’s speculation unsupported by any study of the subject, that the cause of the disparity was the failure of jury officials to conduct greater follow-up of persons who failed to respond to the random jury summons. The next day, September 18, 1990, the trial court heard defendant’s motion to continue the trial pending further study of the underrepresentation issue. Defendant’s counsel abandoned any attempt to argue for delay until final 1990 census figures were available. However, counsel urged that perhaps it was the “appropriate time” to study further whether jury selection procedures, in particular the limited follow-up of those who failed to respond to summons, were the cause of the disparity. Counsel suggested such a study could probably be completed “in a couple of months.” The trial court denied the motion, pointing out that it had already found the disparity was not mathematically unreasonable. Defendant argues the trial court erred under the Sixth and Fourteenth Amendments by denying the motion to quash. “Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 583-588, 99 S.Ct. 664]; People v. Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v. Mattson (1990) 50 Cal.3d 826, 842 [268 Cal.Rptr. 802, 789 P.2d 983].) ‘In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the, community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’ (Duren v. Missouri, supra, 439 U.S. at p. 364 [58 L.Ed.2d at pp. 586-587]; People v. Howard, supra, 1 Cal.4th at p. 1159.) . . . If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v. Sanders[, supra,] 51 Cal.3d 471, 491. . . .)” (People v. Horton (1995) 11 Cal.4th 1068, 1087-1088 [47 Cal.Rptr.2d 516, 906 P.2d 478] (Horton).) “As to the third element of the Duren test, a defendant does not meet the burden of demonstrating that the underrepresentation was due to systematic exclusion, by establishing only statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th [1132,] 1160; People v. Bell[, supra,] 49 Cal.3d 502, 530 .. . .) When a county’s jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. (People v. Sanders, supra, 51 Cal.3d [471,] 492; People v. Bell, supra, 49 Cal.3d at p. 524.)” (Horton, supra, 11 Cal.4th 1068, 1088, italics in original.) No party disputes that Blacks are a distinctive group in the community for purposes of Duren analysis, and that the first prong of Duren is therefore satisfied. Defendant focuses his argument on the second prong of Duren, the issue of significant statistical disparity. Defendant contends at length that under “comparative disparity” analysis, the disparity he demonstrated (34 percent) was significant, and that the “absolute disparity” mode of analysis (yielding only a 1.1 percent disparity in his case) is unfair where, as here, the underrepresented group is but a small fraction of the overall population. “ ‘[T]he [United States] Supreme Court has not yet spoken definitively on either the means by which disparity may be measured or the constitutional limit of permissible disparity.’ (Bell, supra, 49 Cal.3d [502,] 527-528.)” (Sanders, supra, 51 Cal.3d 471, 492.) However, here, as in Bell (Blacks constituted 8 percent of Contra Costa County population, but only 3 percent of prospective jurors, yielding absolute disparity of 5 percent and comparative disparity of 62.5 percent) and Sanders (adult Hispanic citizens constituted 16.3 percent of Kern County population, but only 8.3 percent of those appearing for jury duty, yielding absolute disparity of 8 percent and comparative disparity of 49 percent), we need not resolve the issue, because, as the trial court ruled, defendant failed to establish a prima facie case under Duren’s third prong by showing that the disparity was caused by the systematic exclusion of Blacks from Indio/Palm Springs juries. In Horton, supra, 11 Cal.4th 1068, the same expert witness, Dr. Butler, identified a disparity between the percentages of Blacks and Hispanics who served on Norwalk jury venires and the percentages of presumptively eligible such persons living within a 20-mile radius of the Norwalk courthouse. As here, the master list, compiled from voter and DMV lists, was not underrepresentative, and there was no evidence that the process of summoning jurors from the master list was improperly selective. As here, Dr. Butler could only speculate that the large number of nonresponders might tip disproportionately toward minority populations, and that the conceded lack of follow-up on nonresponders might account for the underrepresentation on the venires. The Horton trial court denied the motion to quash, reasoning that the selection process was race neutral, and that Dr. Butler’s speculation about the cause of the underrepresentation was insufficient to satisfy the third prong of Duren. (Horton, supra, 11 Cal.4th 1068, 1089.) We agreed that this finding was supported by the record, in that “there was an insufficient showing that any discrepancy in the jury pool was attributable to ‘systematic exclusion’—because the procedures employed by the jury commissioner were, on their face, race-neutral, and the opinion of Dr. Butler as to the cause of any disparity was not supported by empirical evidence, but, rather, amounted to no more than speculation. [Citation.]” (Id., at p. 1090; see also Bell, supra, 49 Cal.3d 502, 528-531 [where master list is representative, speculation that hardship deferrals weeded out minorities is insufficient to establish systematic exclusion; such systematic exclusion also cannot be shown solely by a consistent pattern of underrepresentation].) We reach the same result here. We also find no abuse of discretion in the trial court’s refusal to continue the trial pending defendant’s further study of local jury procedures. The court below based its ruling on its determination, as a matter of law, that defendant had failed to demonstrate a significant disparity, an issue we do not decide. Nonetheless, the court’s denial of a continuance was amply justified under all the circumstances. Defendant’s challenge to the jury venire, and his motion to continue the trial for that purpose, were presented a scarce month before trial was scheduled to begin. At least since our Bell decision, announced almost a full year earlier, it had been clear that a Duren challenge required the defendant to prove specific, constitutionally impermissible jury selection procedures that were the systematic cause of any disparity, and that speculation on these matters would not suffice. Defendant’s belated request for further delay to explore this issue, based solely on Dr. Butler’s unsupported speculation that it might be the cause of the discrepancy, was properly rejected. 2. Prosecution’s peremptory excusal of Prospective Juror Nadyne T. The prosecutor exercised a peremptory challenge against Prospective Juror Nadyne T., who was Black. Defendant concedes that by failing to raise a timely objection in the trial court that the excusal was improperly founded on Ms. T.’s race (see, e.g., Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]), he waived such a direct claim on appeal. (E.g., People v. Bolin (1998) 18 Cal.4th 297, 316 [75 Cal.Rptr.2d 412, 956 P.2d 374] (Bolin); People v. Montiel (1993) 5 Cal.4th 877, 909 [21 Cal.Rptr.2d 705, 855 P.2d 1277] (Montiel).) However, defendant urges that his counsel was ineffective for failing to object, and that the dismissal of Nadyne T. violated his Sixth and Fourteenth Amendment rights. To prevail on a claim of ineffective assistance of counsel, the defendant must show counsel’s performance fell below a standard of reasonable competence, and that prejudice resulted. (E.g., People v. Staten (2000) 24 Cal.4th 434, 450-451 [101 Cal.Rptr.2d 213, 11 P.3d 968] (Staten); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 [233 Cal.Rptr. 404, 729 P.2d 839] (Ledesma).) When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1] (Pope).) Even where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., that, “ ‘ “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” ’ ” (Staten, supra, at p. 451, quoting Ledesma, supra, 43 Cal.3d 171, 217-218; see also Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674].) Here, the record affords no basis for concluding that counsel’s omission was not based on an informed tactical choice. Counsel may have felt the prosecutor could provide genuine race-neutral reasons for the ex-cusal. (See Bolin, supra, 18 Cal.4th 297, 317.) Ms. T., then 76 years old, insisted she had no scruples for or against the death penalty and felt duty-bound to follow instructions despite her personal feelings, but her deep religious convictions led to the belief, derived from the Bible, that everyone should be forgiven “70 times seven times.” This could give the prosecutor sincere pause about her ability to impose the punishment of death. Moreover, though Ms. T. professed excellent health, the prosecutor could have been concerned about her ability to withstand the effort and stress of a protracted capital penalty trial. The possibility also arises that defense counsel himself preferred to dispense with this prospective juror. (See Bolin, supra, 18 Cal.4th 297, 317.) Aside from her age and endurance, her disclosure that she had given little thought to the death penalty, and her dogged adherence to her belief that the court’s instructions must prevail over any personal feelings, could cause apprehension that she would not be receptive to untethered defense arguments for mercy and leniency. “Since the decision may well have been ‘an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. [Citation.]’” (Bolin, supra, 18 Cal.4th 297, 317, quoting Pope, supra, 23 Cal.3d 412, 425.) B. Trial issues. 1. Evidence of 1978 Mackey murder. As noted above, the People introduced evidence that defendant had engaged in violent criminal conduct other than the capital crimes, i.e., the murder of Mackey. (See Pen. Code, § 190.3, factor (b) [defendant’s other violent criminal activity as aggravating factor].) Defendant had never been charged with or convicted of killing Mackey. Hence, before allowing the jury to hear this evidence, the trial court ruled on its legal sufficiency, as requested by defendant. (See People v. Phillips (1985) 41 Cal.3d 29, 72, fn. 25 [222 Cal.Rptr. 127, 711 P.2d 423] (Phillips).) For this purpose, the court conducted an evidentiary hearing outside the jury’s presence. (See Evid. Code, § 402.) The hearing, which took place over three court days, centered on the testimonial competence of Deborah Baros, who claimed she was an eyewitness to the Mackey murder and provided the sole evidence linking defendant to the crime. At the hearing, the court heard essentially the same witnesses and evidence on the Mackey incident as were later presented to the jury. As before the jury, defense counsel cross-examined Baros at length about her memory of the Mackey episode. The hearing also included a full examination of Baros’s beliefs about Anthony, the accident, and the triplets, including her assertion that Anthony was actually present when Mackey was killed. Defendant presented extensive evidence, similar to that later heard by the jury, suggesting that Anthony and the triplets were imaginary. Baros also disclosed, as before the jury, that she remembered many events through dreams and believed defendant could communicate with her by telepathy. Finally, Baros revealed in the hearing that she had suffered emotional problems in 1987 and 1988, when her children Dawn and Alan were taken away because of alleged sexual abuse. Baros admitted that as a result of these problems, she had seen therapists, was diagnosed with “emotional anguish,” had taken prescription medications for the condition, and was still taking some medications (Premarin, Tylenol with codeine, and Fioricet) at the time of trial. In ruling on the matter, the trial court explained it could exclude Baros’s testimony as incompetent only if it found that mental derangement or defect had deprived Baros of the ability to accurately perceive, recollect, or recount the events to which she would testify, while the issue whether she did so perceive, recollect, or communicate was for the jury. The evidence adduced at the hearing satisfied the court that Anthony and the triplets had never existed. The court also perceived a need for great caution in qualifying a witness whose delusions bore a material connection to the subject of her testimony. Nonetheless, the court concluded, Baros had given a coherent account, many details of which were corroborated by independent evidence and would not likely be known by one who was not present. These included Baros’s descriptions of the location from which Mackey was taken, the stolen cigarettes, the weapon used, the murder scene, and the multiple shots fired. Also significant was Baros’s ability, after 11 years, to take investigators to the isolated site of the homicide. These factors, the court indicated, could lead a rational trier of fact to conclude beyond a reasonable doubt that Baros must have witnessed the kidnapping and murder of Mackey. Accordingly, the court ruled, Baros would be allowed to testify, and her testimony was legally sufficient evidence that defendant murdered Mackey. Defendant raises numerous challenges regarding Baros’s testimony, a. Determination of Baros’s competence to testify. Defendant first urges that because Baros’s delusions invaded the particular events about which she was to testify (Baros insisted her imaginary son Anthony was present at the murder of Mackey), she lacked the capacity to perceive and recollect those events accurately, and was thus incompetent to testify. The trial court’s erroneous decision to allow Baros’s testimony, he asserts, violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights to due process, a fair trial, and a reliable penalty determination. Under pre-1965 statutes, all persons were qualified to testify who could “perceive[] and . . . make known their perceptions to others” (Code Civ. Proc., former § 1879, enacted 1872 and repealed by Stats. 1965, ch. 299, § 62, p. 1361), except that persons “of unsound mind” (id., former § 1880, subd. 1, enacted 1872 and repealed by Stats. 1965, ch. 299, § 63, p. 1361) and young children who appeared incapable of perceiving pertinent events justly or relating them truthfully (id., former § 1880, subd. 2, enacted 1872 and repealed by Stats. 1965, ch. 299, § 63, p. 1361) could not be witnesses. Under this scheme, both the ability to perceive and the ability to communicate understandably and truthfully were necessary attributes of a qualified witness. On the other hand, despite the statutory reference to persons “of unsound mind” (Code Civ. Proc., former § 1880, subd. 1), insanity was not an absolute bar to testimonial qualification. In such cases, “[t]he question to be determined [was] whether the proposed witness’s mental derangement or defect [was] such that he was deprived of the ability to perceive the event about which he [was] to testify or [was] deprived of the ability to recollect and communicate with reference thereto. [Citations.] . . . Whether he did perceive accurately, [did] recollect, or [was] communicating accurately and truthfully [were] questions of credibility to be resolved by the trier of fact.” (People v. McCaughan (1957) 49 Cal.2d 409, 420 [317 P.2d 974] (Mc-Caughan), italics added.) Under this system, a challenged witness’s capacities to perceive, recollect, and communicate truthfully were all preliminary facts to be determined exclusively by the court in the exercise of its sound discretion. (See McCaughan, supra, 49 Cal.2d 409, 421.) “It follow [ed] that if the proposed witness was suffering from some insane delusion or other mental defect that deprived him of the ability to perceive the event about which it [was] proposed that he testify, he [was] incompetent to testify about that event.” {Ibid.) Thus, while a committed mental patient was not necessarily disqualified from testifying about events inside the institution, sound discretion required the court to “exercise . . . great caution in qualifying as competent a witness who [had] a history of insane delusions relating to the very subject of inquiry in a case in which the question [was] not simply whether or not an act was done but, rather, the manner in which it was done and in which testimony as to details [might] mean the difference between conviction and acquittal.” (Ibid.) The prior rules governing the determination of testimonial competence were “modified” by the Evidence Code, adopted in 1965. (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foil. § 701, p. 284.) The effect “may [be to] permit . . . persons suffering from mental impairment to testify in some instances where they [were previously] disqualified from testifying.” (Id., at pp. 284-285.) Under the current system, as before, every person is qualified to testify except as provided by statute. (Evid. Code, § 700.) A person is disqualified as a witness only if he or she is “[i]ncapable of expressing himself or herself [understandably] concerning the [testimonial] matter” (id., § 701, subd. (a)(1), italics added), or is “[i]ncapable of understanding the duty of a witness to tell the truth” (id., § 701, subd. (a)(2), italics added; Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code, supra, foil. § 701, p. 284; see People v. Ayala (2000) 23 Cal.4th 225, 265 [96 Cal.Rptr.2d 682, 1 P.3d 3] (Ayala); People v. Cudjo (1993) 6 Cal.4th 585, 621-622 [25 Cal.Rptr.2d 390, 863 P.2d 635] (Cudjo); People v. Mincey (1992) 2 Cal.4th 408, 444 [6 Cal.Rptr.2d 822, 827 P.2d 388]). Capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion. (Evid. Code, § 405, subd. (a); Assem. Com. on Judiciary, reprinted at 29B pt. 1 West’s Ann. Evid. Code, supra, foil. § 405, p. 375; Assem. Com. on Judiciary com., reprinted at 29B pt. 2 West’s Ann. Evid. Code, supra, foil. § 701, p. 284; see Cudjo, supra; Mincey, supra; Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20 [254 Cal.Rptr. 667]; People v. Blagg (1970) 10 Cal.App.3d 1035, 1039 [89 Cal.Rptr. 446] (Blagg).) Even if a witness is not entirely disqualified for incapacity to communicate or to understand the duty to testify truthfully, his or her testimony on a particular matter (other than expert opinion testimony) is inadmissible “unless [the witness] has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” (Evid. Code, § 702, subd. (a), italics added.) The testimony must be excluded unless “there is evidence sufficient to sustain a finding” that the witness has such personal knowledge. (Id., § 403, subd. (a)(2), italics added.) Under the Evidence Code, the capacity to perceive and recollect particular events is subsumed within the issue of personal knowledge, and is thus determined “in a different manner” from the capacity to communicate or to understand the duty of truth. (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code, supra, foil. § 701, p. 284; see People v. St. Andrew (1980) 101 Cal.App.3d 450, 458, fn. 3 [161 Cal.Rptr. 634].) “Because a witness, qualified under [Evidence Code] [s]ection 701, must have personal knowledge of the facts to which he testifies ([Evidence Code] [s]ection 702), he must, of course, have the capacity to perceive and to recollect those facts. But the court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he has such knowledge. [Citation.] Thus, the Evidence Code has made a person’s capacity to perceive and to recollect a condition for the admission of his testimony concerning a particular matter instead of a condition of his competency to be a witness. And, under the Evidence Code, if there is evidence that the witness has those capacities, the determination whether he in fact perceived and does recollect is left to the trier of fact. [Citation.]” (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code, supra, foll. § 701 at p. 284, italics added; see Blagg, supra, 10 Cal.App.3d 1035, 1039.) Here, there is no serious claim that Baros was disqualified under Evidence Code section 701 because she could not communicate her memories coherently or understand she must recount them truthfully. Nor is there significant evidence she lacked those abilities. Rather, defendant contends that Baros’s testimony about specific events, the alleged 1978 robbery and murder of Mackey, must be excluded because Baros lacked the capacity to perceive and recollect them accurately. This incapacity, defendant asserts, is demonstrated by Baros’s delusions, including her insistence that her imaginary son Anthony was actually present during the 1978 episode. As noted above, a witness must be allowed to testify unless he or she (1) cannot communicate intelligibly, (2) cannot understand the duty of truthful testimony, or (3) lacks personal knowledge of the events to be recounted. But while the first two questions are determined entirely by the court, its role with respect to the issue of personal knowledge is more limited. A witness challenged for lack of personal knowledge must nonetheless be allowed to testify if there is evidence from which a rational trier of fact could find that the witness accurately perceived and recollected the testimonial events. Once that threshold is passed, it is for the jury to decide whether the witness’s perceptions and recollections are credible. (See People v. Dennis (1998) 17 Cal.4th 468, 525-526 [71 Cal.Rptr.2d 680, 950 P.2d 1035] (Dennis).) Here the trial court noted the many indicia by which a rational trier of fact could conclude that Baros, despite her specific delusions, was actually present during the Mackey robbery and murder, and had accurately perceived and recollected those events. Aside from her insistence that her son Anthony was present, Baros presented a plausible account of the circumstances of Mackey’s murder. (Cf. People v. Lyons (1992) 10 Cal.App.4th 837, 842-844 [13 Cal.Rptr.2d 112] [alleged rape victim’s belief that defendant had penetrated a “third orifice” located between her vagina and her anus, and had murdered her two husbands, one by blowing up his airplane, demonstrated incompetent lack of ability to distinguish truth from fantasy].) Baros’s description included many details, unlikely to be known by a person not present, that were corroborated by independent evidence. Moreover, as the trial court emphasized, Baros was able, after a long absence from Las Vegas, to direct authorities to the significant locations involved in the crime. Under these circumstances, the trial court correctly allowed Baros to testify, and to permit the jury to determine from all the relevant evidence whether her perceptions and memories were true. In her jury testimony, Baros described Anthony’s presence during the Mackey murder, the traffic accident in which Anthony was killed, and the birth and death of the triplets. Extensive evidence that Anthony, the accident, and the triplets were imaginary was presented to the jury. The jury also heard Baros’s disclosures that she relived events through dreams and believed defendant had telepathic powers. It therefore had ample basis upon which to judge the reliability of Baros’s observations. No error occurred. b. Failure to order psychiatric examination of Baros. Defendant next contends that in view of Baros’s delusional state, the trial court erred prejudicially by failing to require, sua sponte, that Baros undergo a psychiatric examination to assist the court’s own evaluation of her testimonial competence. Defendant cites no authority, and we know of none, that imposes such a duty in the absence of request. As defendant notes, earlier cases indicated a trial court should grant a defense motion for a psychiatric examination of the complaining witness in a sex-crime case where psychiatric evidence appeared necessary to assist the trier of fact in assessing the witness’s credibility. (E.g., People v. Russel (1968) 69 Cal.2d 187, 193 [70 Cal.Rptr. 210, 443 P.2d 794]; Ballard v. Superior Court (1966) 64 Cal.2d 159, 171-177 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416] (Ballard) [noting, however, the general rule against impeachment by psychiatric evidence]; People v. Duncan (1981) 115 Cal.App.3d 418, 426-427 [171 Cal.Rptr. 406] [finding no abuse of discretion in denial of defense motion].) But the Legislature overruled this line of authority in 1980 by adopting Penal Code section 1112, which forbids courts from ordering psychiatric examinations of victims or complaining witnesses in sex-crime cases in order to assess their credibility. We have recently reiterated that “[t]he use of psychiatric testimony to impeach a witness is generally disfavored.” (People v. Marshall (1996) 13 Cal.4th 799, 835 [55 Cal.Rptr.2d 347, 919 P.2d 1280]; see also Ayala, supra, 23 Cal.4th 225, 263; People v. Alcala (1992) 4 Cal.4th 742, 781 [15 Cal.Rptr.2d 432, 842 P.2d 1192] (Alcala).) Defendant insists these principles do not preclude court-ordered psychiatric examinations to evaluate testimonial competency, a preliminary issue not determined by the trier of fact. (See, e.g., People v. Reber (1986) 177 Cal.App.3d 523, 534 [223 Cal.Rptr. 139] (Reber), disapproved on other grounds by People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986] (Hammon); People v. Armbruster (1985) 163 Cal.App.3d 660, 663 & fn. 1 [210 Cal.Rptr. 11].) But we see no convincing reason why a trial court must, on its own motion, order and consider the psychiatric evaluation of a potential witness whose testimonial competence is challenged on grounds of mental or emotional impairment. We recently intimated that trial courts have broad discretion to refuse requested examinations for this purpose (Ayala, supra, 23 Cal.4th 225, 264-265), and such a rule is well justified. At the outset, serious privacy interests, as well as the policy of encouraging witnesses to come forward and testify voluntarily, would be undermined if courts were compelled to order psychiatric evaluations of potential witnesses as a condition of their testimony. Moreover, Ballard itself noted the many “dangers” of using psychiatric evidence to impeach credibility; “the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify issues; the testimony may be distracting, time-consuming and costly. . . .” (Ballard, supra, 64 Cal.2d 159, 175, fn. 10, citation omitted; see also Alcala, supra, 4 Cal.4th 742, 781.) Many, if not all, of these concerns are also pertinent to a court determination of competence. (See Alcala, supra, at pp. 780-782 [unavailability of witness on grounds of amnesia].) Finally, as noted above, the grounds upon which a trial court may disqualify a witness as incompetent, or exclude the witness’s testimony for lack of personal knowledge, are exceptionally narrow. The witness must be allowed to testify unless he or she cannot communicate intelligibly or understand the duty to tell the truth, or unless no rational jury could believe the witness actually saw the events he or she claims to have seen. In many cases, psychiatric testimony, itself “inherently [subject to] expert debate” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1247 [275 Cal.Rptr. 729, 800 P.2d 1159]), would be less useful on these issues than the court’s own evaluation of the witness’s demeanor and responses in light of all the evidence. (See, e.g., Alcala, supra, 4 Cal.4th 742, 781.) Here, the extensive record of the competence hearing manifestly discloses that Baros was a coherent communicator, and her understanding of the specific duty to give truthful testimony was also not in serious dispute or doubt. Thus, there seems little basis on which a psychiatric evaluation could have affected a ruling on her qualifications as a competent court witness. (See Ayala, supra, 23 Cal.4th 225, 265.) On the issue whether Baros’s specific testimony would reflect her personal knowledge, the court was fully aware of Baros’s delusions about Anthony and the triplets, and the relationship of these fantasies to the events about which she would testify. The court also knew Baros had undergone therapy and taken medications for emotional problems. Yet the court believed, with substantial reason, that Baros’s account of the Mackey murder, corroborated in numerous details by independent evidence, could persuade a rational jury she must actually have perceived that event. Again, this was not a matter on which psychiatric evidence would be of particular help. The court committed no error by failing, sua sponte, to order a psychiatric evaluation of Baros’s qualifications to testify. c. Counsel’s failure to request psychiatric examination of Baros. Defendant urges alternatively that his trial counsel rendered constitutionally ineffective assistance by failing to request a psychiatric evaluation of Baros. However, given the considerations weighing against widespread use of court-ordered psychiatric examinations to determine testimonial qualifications (see text discussion, ante), we cannot say on this record there was no reasonable basis for counsel’s failure to request one. In any event, defendant fails to show prejudice from the omission. In the first place, the appellate record does not indicate whether a new psychiatric examination would have supported defendant’s claim that Baros should not be allowed to testify about the murder of Mackey. (See, e.g., People v. Medina (1995) 11 Cal.4th 694, 773-774 [47 Cal.Rptr.2d 165, 906 P.2d 2] [appellate claim of ineffective assistance cannot be based on speculation about available evidence].) Moreover, for reasons already stated, it appears highly unlikely any psychiatric testimony would have altered the trial court’s ruling on the narrow issues before it. As noted above, the court knew of Baros’s delusions and emotional problems, but Baros communicated clearly and gave a plausible account of the murder, many details of which were corroborated by independent evidence. On that basis, the court deemed itself compelled to allow the jury to judge her credibility. The claim of ineffective assistance must therefore be rejected. d. Denial of cross-examination re Baros’s therapy. Defendant contends error occurred when, during the defense cross-examination of Baros before the jury, the court sustained the prosecutor’s relevancy objection to counsel’s question whether Baros had ever been in therapy. (See fn. 9, ante.) By cutting off this line of inquiry, defendant insists, the court deprived the jury of crucial information about her mental condition as it bore on her credibility. According to defendant, this evidence included the information, disclosed by Baros in the competence hearing, that the authorities had recently taken away her children on suspicion of sexual abuse; that these events resulted in emotional problems, psychiatric therapy, and a diagnosis of “mental anguish”; and that she was taking medications for her emotional condition. Defendant asserts the court’s ruling violated the requirement that all relevant evidence be admitted (Cal. Const., art. I, § 28, subd. (d)) as well as his rights to due process, a fair trial, confrontation of witnesses, and a reliable penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Defendant also claims his counsel provided ineffective assistance by failing to pursue the matter after the initial objection was sustained. The contention lacks merit. Defendant fails to demonstrate the relevance of the excluded information to Baros’s credibility about the Mackey murder. It is a fact of modern life that many people experience emotional problems, undergo therapy, and take medications for their conditions. “A person’s credibility is not in question merely because he or she is receiving treatment for a mental health problem.” (People v. Pack (1988) 201 Cal.App.3d 679, 686 [248 Cal.Rptr. 240].) Even if examination of a witness about treatment for mental illness might sometimes be relevant, here evidence that Baros had received therapy would have added little to the specific evidence, largely undisputed, that she had significant fantasies. Defense counsel was allowed to cross-examine Baros fully about the specific delusions that might impair the accuracy of her testimony. Nothing more was necessary. Hence, the trial court acted properly in sustaining a relevancy objection when defense counsel asked Baros whether she had ever been in therapy. For similar reasons, counsel was not ineffective for dropping the matter after the initial objection was sustained. e. Marital privilege of Bruce Baros. On the morning of December 18, 1990, just before Deborah Baros (Deborah) was to testify concerning her qualifications as a witness to the Mackey murder, defense counsel suggested that Bruce Baros (Bruce), Deborah’s current husband, should be excluded from the courtroom as a potential witness. Counsel explained that Bruce had been present when Deborah was interviewed by two defense investigators the previous year, and that, if given the opportunity, the defense “may well” call Bruce to impeach Deborah on details of the interview. Counsel disclosed that the idea of calling Bruce had arisen only because Bruce had come to the trial with Deborah from their New Hampshire home, and counsel conceded he could use the interviewing investigators themselves for impeachment. Over counsel’s indignant disagreement, the prosecutor objected that counsel was claiming Bruce as a potential witness only to deny Deborah the supportive presence of Bruce during her testimony. Concerned about the marital privilege, and about the potential loss of courtroom support for Deborah, the court appointed counsel to confer with Bruce. The court then asked Bruce on voir dire whether he would invoke a spousal privilege if called to testify. Bruce replied that, based on his counsel’s advice, he would do so, because he did not want to testify against his wife. After further argument, the trial court ruled in limine that if Bruce was called solely to impeach Deborah, and if Bruce invoked a marital privilege, the court would uphold the privilege under Evidence Code section 970. The court explained that this statute gives a witness the privilege not to testify “against” a spouse, that the policy is to avoid marital discord, that the privilege may be overcome by fair-trial concerns, but that the balance favors the privilege where the witness is called only to impeach the spouse, and other witnesses (here, the defense investigators) are available for that purpose. Accordingly, the court determined, Bruce would not be excluded from the courtroom as a potential witness. However, the court agreed that if the defense later decided to call Bruce, the court should be notified out of the jury’s presence, whereupon, if Bruce claimed the privilege, counsel could preserve the record by obtaining a ruling and entering a formal objection at that time. The defense did not thereafter attempt to call Bruce. Defendant now argues the trial court’s evidentiary ruling was error, because Evidence Code section 970 only gives a witness the privilege “not to testify against his spouse in any proceeding.” (Italics added.) Defendant urges that one does not testify “against” a spouse when called only to impeach the spouse in a proceeding where the spouse is not a party. If Evidence Code section 970 does apply in this situation, defendant insists, it violates his “constitutional rights to due process of law, fair trial, confrontation and cross-examination and equal protection.” However, we need not address the merits of these arguments, because defendant failed to preserve the issue for appeal. In general, a judgment may not be reversed for the erroneous exclusion of evidence unless “the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.” (Evid. Code, § 354, subd. (a); see, e.g., People v. Pride (1992) 3 Cal.4th 195, 235 [10 Cal.Rptr.2d 636, 833 P.2d 643]; People v. Livaditis (1992) 2 Cal.4th 759, 778 [9 Cal.Rptr.2d 72, 831 P.2d 297] (Livaditis); People v. Whitt (1990) 51 Cal.3d 620, 648 [274 Cal.Rptr. 252, 798 P.2d 849] (Whitt); see also Staten, supra, 24 Cal.4th 434, 456.) This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (See Whitt, supra, 51 Cal.3d 620; cf. People v. Collins (1986) 42 Cal.3d 378, 383-385 [228 Cal.Rptr. 899, 722 P.2d 173] [defendant may not challenge ruling that prior crime will be admitted for impeachment unless he takes the stand and suffers the impeachment].) Here, counsel explained why Bruce might be called, i.e., to impeach Deborah concerning her interview with defense investigators, but counsel did not offer to show what material impeachment Bruce might provide. Counsel then dropped the matter and never actually called Bruce to the stand. This was insufficient. Even if an offer of proof was impractical in advance of Deborah’s testimony, it could have been made after Deborah had testified. Nor would it have been futile for defendant to call Bruce and make an offer of proof. (Evid. Code, § 354, subd. (b).) In its in limine ruling, the trial court acknowledged that fair-trial concerns might outweigh the privilege, and the court expressly agreed to a mechanism by which defendant could later call the witness, have the privilege invoked, and obtain a ruling. Under these circumstances, defendant failed to make a record that permits a finding he was prejudiced by the loss of Bruce’s testimony. Indeed, such prejudice appears unlikely, because Francis Leaman and Charles Small, the defense investigators who interviewed Deborah in Bruce’s presence, both testified about the interview at the hearing concerning Deborah’s competence, and Leaman gave testimony on that subject before the jury. Defendant demonstrates no basis for reversal. f. CALJIC No. 2.01. Defendant contends the trial court erred by refusing both parties’ request that the jury be instructed under CALJIC No. 2.01, discussing the treatment of circumstantial evidence. This standard instruction provides, among other things, that a finding of “guilt as to any crime” cannot be based on circumstantial evidence unless the proved circumstances both (1) are consistent with the defendant’s “guilt,” and (2) cannot be reconciled with any other rational conclusion. {Ibid.) The instruction further states that if the circumstantial evidence permits two reasonable interpretations, one suggesting the defendant’s “innocence” and the other his “guilt,” the jury must adopt the interpretation suggesting innocence. Defendant insists the error affected the jury’s consideration of the Mackey murder evidence, in violation of his rights to due process, equal protection, fair trial, and a reliable penalty determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Of course, evidence of the Mackey murder was not introduced to prove defendant’s “guilt” of a charged crime, but to demonstrate, as a circumstance in aggravation of the capital murders, that he had engaged in other violent criminal conduct. (§ 190.3, factor (b).) We may assume that similar restrictions on the use of circumstantial evidence apply in such a case. However, we have consistently held that CALJIC No. 2.01 is not necessary unless the prosecution substantially relies on circumstantial evidence to prove its case. (E.g., People v. Marquez (1992) 1 Cal.4th 553, 577 [3 Cal.Rptr.2d 710, 822 P.2d 418]; People v. Wright (1990) 52 Cal.3d 367, 406 [276 Cal.Rptr. 731, 802 P.2d 221] (Wright); People v. Wiley (1976) 18 Cal.3d 162, 174 [133 Cal.Rptr. 135, 554 P.2d 881]; People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1].) Indeed, where circumstantial inference is not the primary means by which the prosecution seeks to establish that the defendant engaged in criminal conduct, the instruction may confuse and mislead, and thus should not be given. (Wright, supra; Wiley, supra; People v. Gould (1960) 54 Cal.2d 621, 629 [7 Cal.Rptr. 273, 354 P.2d 865].) Here, as the trial court noted, the People relied primarily upon direct evidence, i.e., the eyewitne