Full opinion text
Opinion BAXTER, J. On Halloween morning 1980, defendant Michael Ray Burgener killed William Arias, a convenience store clerk, and emptied the store’s cash register of approximately $50. In 1981, a jury convicted defendant of first degree murder by use of a firearm (Pen. Code, §§ 187, 189, 12022.5), robbery by use of a firearm and with the infliction of great bodily injury (§§211, 12022.5, 12022.7), and being a felon in possession of a firearm (§ 12021). The jury also found true the special circumstance that defendant murdered Arias in the commission of the robbery (§ 190.2, former subd. (a)(17)(i) [now § 190.2, subd. (a)(17)(A)]) and sentenced defendant to death. In 1986, we affirmed the guilt judgment but reversed the penalty because defense counsel, at defendant’s instruction, had not presented any mitigating evidence or argument. (People v. Burgener (1986) 41 Cal.3d 505, 542-543 [224 Cal.Rptr. 112, 714 P.2d 1251].) In 1988, a jury again sentenced defendant to death. However, the trial court acted under section 190.4, subdivision (e) to modify the verdict from death to life without the possibility of parole. The Court of Appeal reversed, finding the trial court had considered improper factors in modifying the verdict, and remanded with directions for the trial court “to reconsider and rule upon the motion in accordance with the factors listed in Penal Code sections 190.4, subdivision (e), and 190.3 and no others.” (People v. Burgener (1990) 223 Cal.App.3d 427, 430 [272 Cal.Rptr. 830].) Because the penalty retrial judge had retired, the case was reassigned. The substituted judge, after reading the entire penalty retrial transcript, denied the application to modify the verdict. This appeal is automatic. (§ 1239, subd. (b).) Except for the standard of review applied by the substitute judge who heard the section 190.4, subdivision (e) application, we find no error and therefore vacate the judgment of death solely to permit the judge to reconsider the automatic application to modify the verdict under the correct standard. Facts The prosecution’s case-in-chief at the penalty retrial included an abbreviated version of the guilt phase evidence describing the circumstances of the murder and robbery. We review those facts briefly. (See People v. Burgener, supra, 41 Cal.3d at pp. 512-515.) Shortly after 4:00 a.m. on October 31, 1980, Christine Boyd stopped by the 7-Eleven on Rutland Avenue in Riverside for her morning cup of coffee on her way to work. From her car, she noticed the store’s clerk, William Arias, was not behind the counter. A White male with shoulder-length, curly brown hair and wearing a cowboy hat left the store with a paper sack. Boyd entered the store to find Arias “all bloody.” She called the police. Riverside Police Officer Gregg Dunn arrived at 4:14 a.m. Arias told the officer, “He shot me. He shot me four or five times, in the face, in the stomach and in the back,” then began to lose consciousness. Around $50 was missing from the cash register. Arias died from loss of blood caused by bullet wounds. He had been shot five times with a .22-caliber weapon. Gunpowder residue on his face indicated he had been shot from a distance of about 12 inches. He had no offensive or defensive wounds. When defendant was arrested approximately 12 hours later, he had long, curly brown hair and was wearing a cowboy hat that looked like the hat Boyd had seen on the man leaving the 7-Eleven store. He also had a .22-caliber handgun. According to the criminalist, expended bullets and bullet fragments recovered from the crime scene could have come from defendant’s weapon. The sole of defendant’s left shoe produced a weak positive under a Hemastix test, which is used as a presumptive test to detect the presence of blood. There was insufficient material to perform any other test to confirm the substance as blood. A crumpled 7-Eleven paper bag with two $5 bills stuck in the wrinkles was found in the trash can at the apartment where defendant had spent the night. A small bag of .22-caliber ammunition was found in the common bathroom at the apartment complex four days later. This cache of bullets matched the bullet fragments recovered from Arias’s body in their elemental composition and could have come from the same melt of lead. Evidence Offered to Show Lingering Doubt Defendant denied committing the murder and being present at the scene. The defense instead contended that prosecution witnesses Joseph DeYoung and Ñola Jane England had framed defendant for Arias’s murder. Although England was engaged to defendant, she had previously been romantically involved with DeYoung. DeYoung’s interest in England persisted even though she tried to discourage him. Defendant suspected that DeYoung was jealous of him, and DeYoung admitted he was. Defendant claimed he had been asleep at England’s apartment at the time of the murder. A few hours before the murder, defendant and England had gone to the hospital to seek treatment for defendant’s injured finger. Defendant’s finger was bandaged and placed in a metal splint, and he was given some pain pills. When they arrived at England’s apartment around 2:00 a.m., defendant took three or four Valium tablets, which put him to sleep. Defendant claimed he did not wake up until after 6:00 a.m. England, however, testified that defendant woke her up around 5:00 a.m. He was fully dressed and emptied money out of a paper bag onto the bed. He said that he had robbed a convenience store because they needed money and that he had shot the clerk in self-defense. Defendant and England each testified that they picked up DeYoung around 8:00 a.m. to arrange a purchase of methamphetamine and then went to Bob’s Big Boy. Defendant left a short time later to meet with his parole officer, while England and DeYoung remained at the restaurant. After defendant left, England told DeYoung that defendant had robbed and murdered a convenience store clerk. She said she wanted to exchange the gun, which she had bought from DeYoung earlier that month, so that defendant would not be caught with it. Although England did not say so, DeYoung assumed that England had been in the car during the robbery and murder. DeYoung said he would arrange a trade in the afternoon and excused himself from the table. DeYoung went to a pay phone and called Detective Pete Harding. DeYoung had offered Harding information on previous occasions in exchange for reduction or dismissal of criminal charges. Although DeYoung was unable to get in touch with Harding at that point, he was later able to tell Harding about the crimes and arrange for Harding to make the arrest. The plan was for defendant and England to meet DeYoung near a liquor store to execute the gun exchange. The police would then show up instead of DeYoung. Defendant said he had been unaware of any discussion about exchanging guns until the afternoon. He admitted England had earlier obtained a .22-caliber gun for his protection but said the gun was kept buried under a tree next to England’s apartment because he was on parole and England did not have a license for it. He was surprised that morning when DeYoung handed him the weapon, since the last time he had seen it was when he buried it two weeks earlier. Defendant said he reburied the gun between 10:00 a.m. and noon, but England almost immediately dug it back up. She said DeYoung wanted it back and had offered to replace it with another weapon. England disputed defendant’s testimony on this point. She testified that defendant had the gun when he returned from the convenience store and had buried it under a tree next to her apartment before they even picked up DeYoung. DeYoung, too, denied ever borrowing the gun and denied handing the gun to defendant that morning. In the afternoon, DeYoung telephoned England to arrange an exchange of guns. Defendant, who was carrying the .22-caliber handgun, and England arrived at the meeting place and were arrested. Defendant told Detective Harding, “I suppose you didn’t see the guy I just bought it from. If you have been watching me, if you’ve been watching me for a few minutes . . . then you would have seen the guy I just bought it from. . . . [Y]ou should have been able to see the other guy. . . .You can’t put that gun on me.” When defendant was informed he was under arrest for the robbery murder, he denied any involvement and said Harding would be surprised when he found out that someone “familiar” to him was actually responsible. Defendant denied making these statements to Harding. During her initial police interview, England denied any knowledge of the robbery or murder and said defendant had been with her the entire night. England even offered to take a polygraph so long as she did not have to answer questions about defendant’s involvement. When the police threatened to charge her with peijury and take her children away, she eventually revealed what defendant had told her. England then regretted telling the police what defendant had said about the robbery and murder and tried to make amends by writing defendant a letter she hoped would be read by the sheriff’s department. The letter said they should not “take the rap” for something DeYoung did. Meanwhile, defendant told Sergeant Richard Zavetz of the Riverside County Sheriff s Department that he had waited for England to go to sleep and had then driven DeYoung to the 7-Eleven. He was still in the car when DeYoung shot Arias. Defendant initially said that he was wearing the cowboy hat but, after learning there had been an eyewitness, claimed DeYoung had worn the cowboy hat and had exited the store with the money in a paper bag. Defendant also said he took the gun back from DeYoung immediately after the crime. At trial, defendant disavowed this account. He justified the lie by claiming he had been desperate and felt he was going to “take the fall” for the crimes anyway. He hoped that DeYoung, who had set him up, would also be arrested. In December 1980, England (assisted by DeYoung) overdosed on heroin and Valium and went into a coma because she did not want to testify against defendant, with whom she was still in love. England also made a taped statement in front of defendant’s parents and some other people at defendant’s church to announce that defendant was not guilty and that she had been coerced by police to implicate defendant, but the tape apparently disappeared. England felt pressure from defendant’s family to make these untrue statements denying defendant’s involvement. At defendant’s first trial, she tried to help defendant (without committing perjury) by falsely claiming a lack of memory and suggesting DeYoung was involved. The defense also attacked DeYoung’s and England’s credibility. DeYoung, who was a convicted felon, received $2,500 after the preliminary hearing and another $7,500 after the trial from the Southland Corporation, which owned the 7-Eleven where Arias worked. In addition, the district attorney reduced felony drug charges pending against DeYoung to a misdemeanor at the time of the preliminary hearing. England, who was arrested for Arias’s murder with defendant, pleaded guilty to being an accessory and was granted probation. Finally, the defense offered expert testimony to show that the Hemastix test, in the absence of other evidence that a stain contains blood, is of no scientific value. Prior Convictions On December 5, 1969, defendant attempted to shoot and rob Robert Palla, the clerk at Cooley’s Liquor Store in Riverside, which is only a block and a half away from the 7-Eleven where defendant murdered Arias. Defendant and another man walked into the store a little before 1:00 a.m. Defendant said, “This is it, Bob,” and pointed the rifle at Palla’s midsection. Palla heard a “click,” but the gun did not discharge. Palla backed away, asked defendant not to shoot, and retrieved a revolver from his coat pocket. Defendant and the other man fled. Defendant pleaded guilty to the attempted murder of Palla while armed with a .22-caliber rifle and pleaded no contest to an attempted purse-snatching that occurred on November 30, 1969. On March 2, 1977, just over two months after being released from prison, defendant robbed Donald Auger, a pawnshop clerk. Defendant entered Bemie’s Pawnshop in Riverside with his right hand in his coat pocket to simulate a gun. He locked the front door and ordered Auger to unlock the gun counter. Defendant grabbed a couple of guns and put them in his pocket. After handcuffing Auger, he took more handguns and some shells, but was unsuccessful in trying to load a weapon. Auger offered to help if defendant would remove the handcuffs. When defendant removed them, Auger pushed him away. Defendant struck Auger’s face and head with the gun and left. Defendant was convicted of robbery and of being a felon in possession of a firearm. Prison Behavior Defendant had spent most of his adult life in prison. The prosecution and defense offered extensive evidence on his behavior in prison and the possible reasons for his misbehavior. Defendant repeatedly attacked prison guards. On January 24,1975, defendant lunged at a correctional officer with a six-inch shank and stabbed him in the neck, back, and upper forearm. Defendant then used the weapon to stab a different officer who was trying to restrain him. That officer suffered four puncture wounds in his back. Defendant admitted wanting “just to strike out at any correctional officer” because he believed an inmate had been given a knife to attack him. On April 25, 1975, when defendant had to be forcibly returned to his cell from the yard, he spun around and struck the accompanying officers with a sock filled with dominos. Then, while being escorted back to his cell in handcuffs, defendant lifted up his hands and hit an officer in the mouth. Three months later, defendant kicked a correctional officer in the back, provoking a fight between officers and inmates. After defendant was restrained, he kicked a different officer in the chest. On numerous occasions in December 1973, defendant threw various substances—water, urine, tooth powder, and a mixture of scouring powder and chlorine bleach—at correctional officers as they walked past his cell. Defendant claimed this was a protest against the prison’s failure to distribute various supplies. He then resisted being moved to a “quiet cell” until tear gas was fired into his cell. The prosecution also offered evidence that defendant frequently engaged in violent confrontations with other inmates. On April 24, 1973, defendant and another inmate wielded shanks against two other inmates who had baseball bats on the prison baseball diamond at San Quentin Prison. On May 16, 1974, defendant, armed with a prison-made weapon, paired off for a fight with another inmate. When a correctional officer yelled to defendant to drop his weapon, defendant instead threw it over the fence and continued the fight. On January 28, 1975, defendant swung his waist chain in a circular motion at two other inmates in the cell and hit them. Although defendant claimed he was the one who was attacked, only the other inmates suffered injuries. Finally, the prosecution offered evidence that knives and shanks were often found in defendant’s cell. Correctional officers discovered weapons rolled up in a pair of his blue jeans or hidden in the toilet or other part of his cell. Defendant variously claimed ignorance of the weapons or said they belonged to another inmate or were only for self-defense. Defendant offered evidence that violent encounters among prisoners and between prisoners and correctional officers were common in the mid-1970’s, especially at San Quentin. John Irwin, a convicted felon and sociology professor at San Francisco State University, testified that many prisoners prepared for violence by obtaining weapons and delivering preemptive “counter violence” against the slightest threat. Although some prisoners chose to join a prison gang under these conditions, defendant did not. Defendant also offered testimony that the difference between his first stint at San Quentin in the 1970’s and his incarceration on death row in the 1980’s was “[l]ike night and day.” Two former death row employees testified that defendant had been trouble free while they were there. Shortly thereafter, however, on September 12, 1986, defendant got into a struggle with deputies who were transporting inmates from the Riverside County jail to court. He swung at and tried to hit a deputy and refused to be handcuffed. When defendant was eventually subdued by a carotid restraint and handcuffed, he made a threat against one of the officers. Defendant claimed he had done nothing to provoke the officers’ use of force. Other Mitigating Evidence Defendant presented extensive evidence about his family background and childhood. He was the third oldest of seven children. His parents drank excessively, fought, and had financial problems. Three of his siblings are alcoholics. The oldest child, Jerry, molested defendant when he was eight years old. One younger brother, Brandon Burgener, testified that their home environment had been “very good” and that defendant was the only one who ever had any difficulty. Defendant’s younger sister (and closest sibling), Gayla Hundley, testified that their parents used to fight—but deemed it nothing out of the ordinary—and said that the household was only “sometimes” happy. Defendant’s sister Julie Steffani described the family environment as “pretty happy” but believed the children were physically abused. Defendant’s older sister, Becky Jurs, testified that their parents had been much more punitive to the older children, including defendant. Defendant routinely received the blame when things went wrong and was often physically beaten and whipped. A change occurred around 1976, when their parents stopped drinking and started going to church. Prior to that, their mother sometimes invited guests to the home, got them drunk, beat them up, and robbed them of their jewelry. When defendant was 10 years old, he was placed at the Eldora Home for Boys to receive extensive psychiatric care and was sedated with thorazine for nine months, even though it was not accepted practice to administer thorazine in these doses to a child. He was expelled from school at 11 or 12, and subsequently was in and out of reform school. Defendant spent most of his adult life in prison. His first felony conviction was at age 19, and he served part of that sentence at San Quentin. He committed the pawnshop robbery about two months after his release and was again sentenced to prison. Less than three months after being released from that prison commitment, he robbed and murdered William Arias. Defendant claimed he went to the pawnshop in 1977 to get a weapon to defend himself. He was a witness to a murder at San Quentin and knew the Nuestra Familia prison gang had taken out a contract on his life. Then, one month after his release from prison, someone had fired a shot at him while he was driving alone. The bullet passed through the window and hit the passenger seat. Defendant became interested in religion shortly before the Arias robbery murder. He read the Bible every morning, attended a Pentecostal church regularly, and encouraged England to attend with him to overcome her heroin addiction. The death row prison chaplain testified that defendant was the most faithful attendee at weekly services, was a leader in the group, and completed Bible courses in 1987 and 1988. He believed defendant had made a genuine change in his life. Defendant’s mother, Dorothy Burgener, did not think of defendant as a violent person. Defendant testified that although he used to be a violent person, he no longer was. However, defendant admitted he could spend a lot of time planning how to kill people—even taking an anatomy course in 1973 to learn the vital spots in a person’s body—and felt others would kill him if they got the chance. Defendant’s parole officer testified that defendant had been making a sincere effort to rehabilitate himself prior to his most recent arrest. Psychiatric Testimony Psychiatrist Loma Forbes opined that defendant “came from what we call a classical type of family associated with child abuse.” Mental health records revealed that, as early as kindergarten, defendant would aggressively “waylay” children on the way to school; he set fires in the wastebasket; he stole milk money from the school; he was difficult to control; and he ran away at least twice. Defendant suffered from attention deficit disorder and was referred to a mental health center when he was seven years old. Dr. Forbes diagnosed defendant as suffering from an adjustment disorder with a depressed mood and antisocial personality disorder, characterized as “extreme” because of very severe abuse he suffered as a child and his multiple incarcerations. In her view, defendant repeatedly failed to receive appropriate treatment: he was not placed in a specialized foster home when he was a child, he did not receive psychotherapy and psychiatric hospitalization when he was sentenced to prison in 1969, and he did not receive psychotherapy when he was released from prison in 1976. However, Dr. Forbes did not know whether any effort had been made to get defendant treatment or whether defendant would have participated in treatment had it been available. As a result of his experiences, defendant developed a paranoid view of the world and, when he was released from prison, became obsessed with protecting himself. Dr. Forbes believed that defendant was not an aggressive criminal but merely responded to perceived threats as would any other paranoid person. She did not believe he ever premeditated a murder. Defendant expressed to her considerable remorse over the crimes he had committed, although he felt he was “set up” on the current offenses. Dr. Forbes believed defendant had been punished excessively for his behavior over his lifetime. Discussion A. Jury Selection Issues 1. Motion to quash jury venire based on underrepresentation of young and low-income adults On May 10, 1988, as voir dire was almost complete, defendant moved to quash the jury venire on the grounds it violated his state and federal right to a jury composed of a fair cross-section of the community. Attached to the motion was the declaration of Dr. Edgar W. Butler, who stated that he had historically found significant underrepresentation of Hispamos as well as young and low-income adults in jury venires in the Riverside, Palm Springs, and Indio districts. At the evidentiary hearing, Dr. Butler observed that recent changes in jury procedures by Riverside County had eliminated the underrepresentation of Hispanics but had not significantly ameliorated the underrepresentation of young or low-income adults. The trial court found no systematic exclusion of any cognizable group and denied the motion. “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 (1990) 51 Cal.3d 471, 491 [273 Cal.Rptr. 537, 797 P.2d 561].)” (People v. Horton (1995) 11 Cal.4th 1068, 1087-1088 [47 Cal.Rptr.2d 516, 906 P.2d 478].) We have already held that persons of low income do not constitute a cognizable class under the first prong of the Duren test. (People v. Carpenter (1997) 15 Cal.4th 312, 352 [63 Cal.Rptr.2d 1, 935 P.2d 708] (Carpenter).) Also, while we have reserved the question whether the young qualify as a distinctive group, the Court of Appeal has rejected the claim “a number of times.” (People v. Stansbury (1993) 4 Cal.4th 1017, 1061 [17 Cal.Rptr.2d 174, 846 P.2d 756], revd. on other grounds sub nom. Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293].) The parties dispute whether Duren’s second prong has been met. Defendant’s expert, Dr. Butler, testified that, for young adults aged 18 to 24, the comparative disparity between the census figures and the time-qualified jurors for March to April 1988 was 65 percent; the People, however, point out that the absolute disparity between the two was only 10.7 percent. The significance of these disparities is further clouded by defendant’s concession that the 18-to-24 age grouping is “unworkable” and should be replaced by the 18-to-30 age grouping. The disparity percentages for low-income adults are equally murky, since defendant seems to rely on income categories that differ from those used by his expert below. The income-based disparities, however, appear to be somewhat less than those for young adults. Whether these numbers are sufficient to satisfy the second prong is also uncertain, inasmuch as the 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. (People v. Anderson (2001) 25 Cal.4th 543, 567 [106 Cal.Rptr.2d 575, 22 P.3d 347] (Anderson).) Fortunately, we need not resolve the issue here because, as the trial court ruled, defendant failed to establish a prima facie case under Duren’s third prong by showing the disparity was caused by the systematic exclusion of young or low-income adults from Riverside County juries. A defendant does not discharge the burden of demonstrating that the underrepresentation was due to systematic exclusion merely by offering 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. Horton, supra, 11 Cal.4th at p. 1088.) Riverside County relies on voter registration lists and Department of Motor Vehicle (DMV) records of registered drivers and holders of identification cards, which are merged into a master list. We have held that such a list “ “shall be considered inclusive of a representative cross-section of the population” ’ where it is properly nonduplicative.” (People v. Ochoa (2001) 26 Cal.4th 398, 427 [110 Cal.Rptr.2d 324, 28 P.3d 78].) The record reveals that Riverside County has undertaken reasonable efforts to eliminate duplicate entries and, as the trial court found, there was no evidence how (if at all) the remaining duplicates would have affected the composition of the jury draw. The record also shows the jury commissioner’s guidelines for excusing prospective jurors from service were neutral as to age and, except as to economic hardship, were also neutral as to income. The existence of hardship excuses, however, did not deprive defendant of his right to a fair cross-section of the community. Neither the state nor federal Constitutions oblige local government to increase jury fees or otherwise ameliorate the economic hardship caused by jury duty. (E.g., People v. Nicolaus (1991) 54 Cal.3d 551, 571 [286 Cal.Rptr. 628, 817 P.2d 893]; People v. Harris (1989) 47 Cal.3d 1047, 1077-1078 [255 Cal.Rptr. 352, 767 P.2d 619]; see also State v. Roberts (Mo. 1997) 948 S.W.2d 577, 603 [no duty to provide child care].) Defendant then complains that the county failed “to obtain other lists which might include more of the poor or more young adults in the jury pool” and that the county failed “to target either of those specific groups in an attempt to summon more of them and to require greater numbers to appear.” As we recently explained, “[t]his claim fails because the United States Constitution ‘forbids the exclusion of members of a cognizable class of jurors, but it does not require that venires created by a neutral selection procedure be supplemented to achieve the goal of selection from a representative cross-section of the population.’ ” (People v. Ochoa, supra, 26 Cal.4th at p. 427.) So long as the state uses criteria that are neutral with respect to the underrepresented group, the state’s failure to adopt other measures to increase the group’s representation cannot satisfy Duren’s third prong. (Id. at pp. 427-428.) Where, as here, a county’s jury selection criteria are neutral with respect to the distinctive group, the defendant must identify some aspect of the manner in which those criteria are applied that is not only the probable cause of the disparity but also constitutionally impermissible. (Anderson, supra, 25 Cal.4th at pp. 566-567.) Dr. Butler confessed that any conclusions based on the effects of duplicate entries would be “speculation” and that he “really” did not know whether the master list was the source of any disparities by age or income. Despite this uncertainty, he nonetheless concluded the disparities were “systematic” because “there’s probably one chance in 10,000 that that would have happened by chance” and the disparities were “continually occurring.” Speculation as to the source of the disparity is insufficient to show systematic exclusion (id. at p. 568), as is evidence the disparity is unlikely to be a product of chance (People v. Breaux (1991) 1 Cal.4th 281, 298 [3 Cal.Rptr.2d 81, 821 P.2d 585]) or has endured for some time (People v. Sanders, supra, 51 Cal.3d at p. 492). Accordingly, the trial court did not err in finding defendant had failed to make out a prima facie case. 2. Motion to quash jury venire based on underrepresentation of African-Americans During the evidentiary hearing on defendant’s claimed underrepresentation of young and low-income adults, the parties discovered a possible claim relating to the underrepresentation of African-Americans. Deborah Pass, the master calendar and jury services manager for the Riverside County Superior Court, testified that her office occasionally received requests from some courtrooms to send up Hispanic or African-American prospective jurors who were present in the jury room to supplement nondiverse panels assigned to those courtrooms. Pass’s office had been asked to do so four times that year: January 20, March 10, March 14, and April 26. The March 14 request, which involved African-Americans, could have affected the composition of the venire available for the defendant’s jury selection on one day—March 22—to the extent the court that day drew from the jurors who had been called for service the week of March 14 rather than from the pool of more than 600 jurors who had been summoned specifically for defendant’s trial. The record did not reveal the number of African-American jurors called up to another courtroom on March 14 or whether they had been empaneled on a jury there, released from jury service, or were available in the jury assembly room on March 22. The record also did not reveal whether the court in defendant’s case drew from the group of veteran jurors on March 22 and, if so, how many. After Pass’s testimony, the district attorney asked the court to quash the jury venire and restart jury selection—not because of the reasons identified in defendant’s Duren motion, but because of Pass’s testimony concerning the possible March 14 reassignment of prospective African-American jurors. Defendant joined in the request. The court denied the motion, finding insufficient evidence of a statistically significant disparity under Duren's second prong. A couple of weeks later, in an untimely challenge to the jury composition after the jury had been sworn, defendant reiterated his objection to the practice of supplementing assigned jury panels with additional minority prospective jurors. The district attorney joined in the motion. The court again denied it, noting “the possible effect, which was, as far as I am concerned, insignificant with regard to somebody asking for a certain minority group.” As we have stated, a prima facie violation of the fair cross-section requirement requires proof (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. (Anderson, supra, 25 Cal.4th at p. 566.) No party disputes that African-Americans are a distinctive group in the community; Duren's first prong is therefore satisfied. The second prong “requires a constitutionally significant difference between the number of members of the cognizable group appearing for jury duty and the number in the relevant community.” (People v. Ramos (1997) 15 Cal.4th 1133, 1155 [64 Cal.Rptr.2d 892, 938 P.2d 950].) Defendant cannot make such a showing. Census figures set the African-American population of Riverside County at 4.5 percent. According to Dr. Butler, African-Americans constituted 3.3 percent of defendant’s venire at the outset and 3.5 percent after time-qualification. Defendant urges us to employ the “comparative disparity” test, which computes to a 27 percent disparity prior to time-qualification and a 22 percent after time-qualification. The People, on the other hand, ask that we adopt the “absolute disparity” test, which results in a disparity of 1.2 percent prior to time-qualification and a disparity of only 1 percent after time-qualification. As we explained above, the 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. (Anderson, supra, 25 Cal.4th at p. 567.) This court has observed that.the United States Supreme Court itself used an absolute disparity statistical analysis in Duren—as have many federal courts—and that the comparative disparity test has been criticized as distorting the underrepresentation when, as here, the group allegedly excluded is very small. (People v. Bell (1989) 49 Cal.3d 502, 527, fn. 14 [262 Cal.Rptr. 1, 778 P.2d 129]; see also U.S. v. Royal (1st Cir. 1999) 174 F.3d 1, 8-9, citing cases; Thomas v. Borg (9th Cir. 1998) 159 F.3d 1147, 1150 [“the comparative disparity test is strongly disfavored in the Ninth Circuit on the ground that it exaggerates the effect of any deviation”].) But we have also repeatedly declined to adopt any one statistical methodology to the exclusion of others. (People v. Ramos, supra, 15 Cal.4th at p. 1155.) Because substantial evidence supports the trial court’s finding of no significant disparity under either test, we need not decide the issue. Dr. Butler’s testimony established a range of absolute disparity between 1 and 1.2 percent and of comparative disparity of between 22 and 27 percent. These percentages are well within the tolerance accepted by this court (People v. Ramos, supra, 15 Cal.4th at p. 1156 [absolute disparity between 2.7 and 4.3 percent; comparative disparity between 23.5 and 37.4 percent]) and by the lower federal courts. (E.g., U.S. v. Weaver (3d Cir. 2001) 267 F.3d 231, 243 [absolute disparity of 1.23 and 0.71 percent; comparative disparity of 40.01 and 72.98 percent]; U.S. v. Chanthadara (10th Cir. 2000) 230 F.3d 1237, 1256-1257 [absolute disparity of 3.23 and 1.6 percent; comparative disparity of 40.89 and 58.39 percent]; U.S. v. Royal, supra, 174 F.3d at pp. 10-11 & fn. 10 [absolute disparity of 2.97 percent and comparative disparity of 60.9 percent]; Thomas v. Borg, supra, 159 F.3d at p. 1151 [absolute disparity of 5 percent]; cf. Taylor v. Louisiana (1975) 419 U.S. 522, 525 [95 S.Ct. 692, 695, 42 L.Ed.2d 690] [“only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service”].) These figures are also well below the 10 percent absolute disparity found inadequate to establish a constitutional violation in Swain v. Alabama (1965) 380 U.S. 202, 208-209 [85 S.Ct. 824, 829-830, 13 L.Ed.2d 759], overruled on other grounds in Batson v. Kentucky (1986) 476 U.S. 79, 100, footnote 25 [106 S.Ct. 1712, 1725, 90 L.Ed.2d 69]. Because we have rejected the claim under Duren's second prong, we need not reach the issue of systematic exclusion under Duren's third prong. (U.S. v. Royal, supra, 174 F.3d at p. 11.) However, we cannot end our discussion without expressing grave doubt as to the propriety of the apparent (albeit infrequent) practice of the Riverside County Superior Court in making race-conscious assignments to bolster minority representation in various courtrooms. Although ostensibly undertaken for the benign purpose of increasing minority representation on a particular jury and thus forestalling possible Duren or equal protection challenges, it is nonetheless true, as Ms. Pass observed, that a request by one courtroom for minority jurors may have the effect of reducing the number of that group available to be assigned to other courtrooms on a random basis. In this case, of course, any disparity was not constitutionally significant. Yet, race-conscious assignment, no matter how infrequent, is not consistent with the spirit of the Sixth Amendment guarantee of a jury drawn from a fair cross-section of the community or with our own Constitution. (See, e.g., Cal. Const., art. I, § 31.) As the district attorney predicted, we cannot condone such a practice. Accordingly, we-find it prudent, as an exercise of our supervisory power over California criminal procedure, to prohibit our state courts in the future from making race-conscious assignments from the jury assembly room to a courtroom. Because we find no constitutional error here, however, defendant’s claim must be denied. 3. The screening process for hardship excusáis Before the first group of jurors was called, the court announced its intention “to run through the jurors and find those [who] indicate they can serve without a hardship and [who] do not know anything about the case that would interfere with their exercise of a fair and impartial judgment” before having them complete the questionnaires. No objection was made to this procedure. When the first group was sworn, the court informed them the case was a retrial involving the “possible imposition of the death penalty” and was estimated to last “probably, approximately six months.” In panels of 12, the court inquired whether the time involved would create a hardship and, if the juror said it would, did not inquire further. After several panels had been completed, defense counsel stated he was “beginning to have some reservations about the procedure” in that by failing to inquire further as to their reasons for hardship, the court may have inadvertently excused some good defense jurors. The court responded that nobody who claimed a hardship would be a good juror and that this procedure enabled the court to find the people who could give the necessary time. Defense counsel subsequently filed a “First Motion for New Trial,” in which he complained the court had failed to provide the prospective jurors with any guidelines to assist them in their determination that the length of the trial would cause them hardship sufficient to justify excusal. The court denied the motion, stating its belief “that we need to have jurors who can say that they can serve without suffering a hardship.” Following the conclusion of this screening process, counsel filed a “Third Motion for Mistrial,” which was based on the same grounds and added, as exhibits, copies of the excusal policies adopted by the Riverside County Jury Commissioner. The motion was again denied. Defendant now renews his challenge to the summary procedure by which the trial court screened prospective jurors for hardship. He asserts that some of the jurors might not have suffered from a hardship sufficient to warrant their excusal and that their removal from the jury pool tended to produce a pro-death venire. We have repeatedly rejected any claim that a trial court’s policy of freely excusing prospective jurors for financial hardship deprives a defendant of his right to a fair and impartial jury. (People v. Medina (1995) 11 Cal.4th 694, 747 [47 Cal.Rptr.2d 165, 906 P.2d 2 Medina); People v. Howard, supra, 1 Cal.4th at p. 1160 [“defendant cannot demonstrate systematic exclusion based upon the even-handed application of a neutral criterion, such as hardship”].) Although the court’s procedure may not constitute the best practice (People v. Thompson (1990) 50 Cal.3d 134, 158 [266 Cal.Rptr. 309, 785 P.2d 857]), it did substantially expedite the selection process by “ ‘culling out’ prospective jurors who probably would have been unable to serve as jurors in any event.” (People v. Ervin (2000) 22 Cal.4th 48, 73 [91 Cal.Rptr.2d 623, 990 P.2d 506] (Ervin)) And here, as in Ervin, “once the preliminary screening process had concluded, the court and counsel then conducted the usual voir dire examination of the remaining prospective jurors in selecting the actual jurors who would serve on defendant’s jury.” (Ibid) Defendant also asserts the trial court exaggerated the length of the trial, pointing out that the actual trial, from swearing the jury to verdict, took less than three and one-half months. We cannot fault the trial court’s six-month estimate—especially when defense counsel conceded it was “entirely possible” the case could last six months and failed to object when the court stated that “[c]ounsel have indicated to me previously they would like to have up to a possible six months.” Defendant claims next that the court’s description of the case could have led prospective jurors to confase a reluctance to impose the death penalty with a “hardship,” leading to their summary removal. Although the prosecution raised this concern, defense counsel never adopted it and thus waived the claim on appeal. (People v. Visciotti (1992) 2 Cal.4th 1, 37-38 [5 Cal.Rptr.2d 495, 825 P.2d 388].) We also reject the claim on its merits. The trial court’s hardship inquiry was explicitly limited to the estimate the trial would take six months. Defendant has not identified any basis in the record for confusion. Finally, defendant failed to join in the People’s objection to the court’s policy of requiring counsel to stipulate to the excusal for hardship of additional jurors during individual voir dire and thus has waived the claim. In his objection, the district attorney complained the court had informed a juror that the People “would not stipulate to his being excused” and “expressed in front of the jury panel that it was displeased.” Since counsel’s failure to object plainly was tactical, defendant was not deprived of his right to the effective assistance of counsel. (Ervin, supra, 22 Cal.4th at p. 78.) 4. The peremptory excusal of Prospective Juror Kenneth F. Defendant contends next that he was denied his right under the state and federal Constitutions because the prosecutor exercised his first peremptory challenge to excuse Kenneth F., the only African-American member of the panel. The use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748]) as well as the equal protection clause of the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky, supra, 476 U.S. at p. 89 [106 S.Ct. at p. 1719].) The defendant need not be of the same race to object to a prosecutor’s race-based exercise of peremptory challenges. (Powers v. Ohio (1991) 499 U.S. 400, 415-416 [111 S.Ct. 1364, 1373-1374, 113 L.Ed.2d 411].) “A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. The high court has explained that the defendant is required to ‘raise an inference’ that the exclusion was based on group or race bias. [Citation.] Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.” (People v. Jenkins (2000) 22 Cal.4th 900, 993 [95 Cal.Rptr.2d 377, 997 P.2d 1044] (Jenkins).) In this case, defendant objected when the prosecutor excused Prospective Juror Kenneth F., asserting the juror was excused because of his race. The court offered to hear “any response” from the People. The district attorney responded that Kenneth F. had been the most talkative of the prospective jurors, which raised a concern whether he was indecisive, and that he had admitted difficulty in imposing the death penalty on anyone who continued to deny his guilt, which defendant intended to do in this case. Defendant objected that the prosecutor did not ask non-African-American jurors the same question regarding their reluctance to impose the death penalty on a defendant who continued to deny his guilt. In response, the prosecutor explained that he posed this question to Kenneth F. because of the juror’s response on the written questionnaire that he would have particular difficulty in voting for the death penalty under those circumstances. The court accepted the prosecutor’s stated reasons and agreed the juror had appeared somewhat reluctant to impose the death penalty in those circumstances. We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” (Ervin, supra, 22 Cal.4th at p. 74.) We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. (People v. Hayes (1999) 21 Cal.4th 1211, 1284-1285 [91 Cal.Rptr.2d 211, 989 P.2d 645].) So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. (Ervin, supra, 22 Cal.4th at p. 75.) Assuming the trial court found that defendant had established a prima facie case here (People v. Hayes, supra, 21 Cal.4th at p. 1284), we find substantial evidence to support the trial court’s denial of the BatsonlWheeler claim. A prosecutor legitimately may exercise a peremptory challenge against a juror who is skeptical about imposing the death penalty. (People v. Catlin (2001) 26 Cal.4th 81, 118 [109 Cal.Rptr.2d 31, 26 P.3d 357].) Kenneth F. admitted it would be “hard” for him to impose the death penalty on a defendant who continued to maintain his innocence, even when the jury had found (and all the evidence indicated) he had committed the crime— which was precisely the situation here. Defendant maintains the justification was nonetheless pretextual in that the prosecutor allegedly failed to ask the same question of non-African-American jurors. But, after the trial court considered this and other arguments from both defendant and the prosecutor, it accepted the prosecutor’s nondiscriminatory justifications. The record reflects the trial court made a sincere and reasoned effort to evaluate the prosecutor’s justifications for excusing Kenneth F.; therefore, its conclusions are entitled to deference on appeal. (Ervin, supra, 22 Cal.4th at p. 75.) 5. Limitations on voir dire Defendant contends the trial court erred under the state and federal Constitutions by restricting his ability to question jurors during the death-qualification voir dire. He argues that where, as here, his conviction has been affirmed on appeal and the retrial concerns only the penalty, he should have been permitted to pose specific questions concerning the facts of his conviction. We review limitations on voir dire, including death-qualification voir dire, for abuse of discretion. (Jenkins, supra, 22 Cal.4th at p. 990.) Our review of the voir dire reveals that defense counsel had ample opportunity to ascertain the views of prospective jurors on robbery murder in general and in the circumstances of this case. Although the trial court sustained the People’s objections when defense counsel asked prospective jurors whether they would impose the death penalty after considering a rather detailed account of some of the facts of this case, and whether a prospective juror could continue to be impartial after hearing a list of defendant’s prior crimes, these questions invited jurors to prejudge the case. “ ‘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 [death-qualification] voir dire.’” (Jenkins, supra, 22 Cal.4th at p. 991.) Defendant had no right to ask specific questions that invited prospective jurors to prejudge the penalty issue based on a summary of the aggravating or mitigating evidence (People v. Cash (2002) 28 Cal.4th 703, 721-722 [122 Cal.Rptr.2d 545, 50 P.3d 332]), to educate the jury as to the facts of the case (People v. Sanders (1995) 11 Cal.4th 475, 538-539 [46 Cal.Rptr.2d 751, 905 P.2d 420]), or to instruct the jury in matters of law (People v. Ashmus (1991) 54 Cal.3d 932, 959 [2 Cal.Rptr.2d 112, 820 P.2d 214]). Defendant also points out that the trial court sustained objections when defense counsel inquired whether a prospective juror would impose the death penalty for every premeditated murder, regardless of the surrounding circumstances, and whether a prospective juror could be swayed against imposing the death penalty by evidence the defendant had a difficult childhood. We need not consider whether these rulings were error since, in both cases, counsel was eventually able to pose the substance of the questions to these jurors. The first juror was later asked whether he would “automatically choose the death penalty” after learning that defendant “has already been convicted of deliberate premeditated murder.” The second juror was asked whether he could take “into account” and “consider” evidence that defendant had “a difficult childhood.” In any event, none of the prospective jurors identified by defendant actually sat on the jury, the defense had a number of peremptory challenges remaining when it accepted the jury, and it did not express dissatisfaction with the jury as sworn on this ground. We therefore find that any possible error could not have been prejudicial. (Carpenter, supra, 15 Cal.4th at p. 354.) 6. Denial of pretrial statement concerning reason for retrial Prior to jury selection, defendant submitted a preliminary statement to be read to the venire. The proposed statement would have informed the jury that defendant had been sentenced to death following a trial in which he “declined to participate” and “insisted that his counsel present no mitigating evidence, though such evidence was available. . . . For that reason, and because under the circumstances the jury may have been misled as to the nature of its sentencing task, the Supreme Court of California reversed the penalty judgment, and remanded the case to this court for a retrial of the penalty phase.” The defense acknowledged that it could have sought instead to exclude any reference to the prior verdict but had chosen not to do so. The trial court sustained the People’s objection to the proffered statement. Defendant now contends the trial court’s failure to inform potential jurors of the circumstances that led this court to reverse the verdict of death at the first penalty trial violated his Sixth and Fourteenth Amendment rights to an impartial jury. However, he failed below to make any argument whatsoever on federal constitutional grounds and cannot do so for the first time on appeal. (People v. Davis (1995) 10 Cal.4th 463, 501-502, fn. 1 [41 Cal.Rptr.2d 826, 896 P.2d 119].) We also reject his claim on the merits. The jury sat as the trier of fact in this case. Previous legal rulings—and the reasons for them—are not proper matters for the jury to consider in performing its duties. At a new trial following reversal, “[n]o advantage is to be taken of the former verdict on the one side, or the rule of the court, for awarding such second trial on the other.” (3 Blackstone, Commentaries 391; accord, People v. Edwards (1991) 54 Cal.3d 787, 845 [1 Cal.Rptr.2d 696, 819 P.2d 436] [we “have never suggested that the trial court is required to inform the jury of the history of the prior proceedings”].) Defendant worries the jury might have speculated that the prior verdict was reversed on a technicality and therefore “have felt this pressure to conform their verdict to that of the first jury.” But the proper solution to this problem would have been to move to exclude any reference to the prior verdict. Counsel consciously chose not to do so, apparently for tactical reasons. (People v. Anderson (1990) 52 Cal.3d 453, 468 [276 Cal.Rptr. 356, 801 P.2d 1107]; see Hopt v. Utah (1887) 120 U.S. 430, 442 [7 S.Ct. 614, 620, 30 L.Ed. 708].) In any event, no constitutional error occurred. (Cf. Britz v. Thieret (7th Cir. 1991) 940 F.2d 226, 231-232.) 7. Cumulative Error Defendant argues that, considered cumulatively, the errors in jury selection violated his right to a fair trial. Because we have found no errors, his claim of cumulative error fails. (People v. Seaton (2001) 26 Cal.4th 598, 639 [110 Cal.Rptr.2d 441, 28 P.3d 175].) B. Evidentiary Rulings 1. Evidence of criminal activity in prison Defendant raises a number of challenges based on the state and federal Constitutions to the admissibility of the evidence of his criminal behavior in prison. He waived the majority of these challenges by failing to object on those grounds below. (People v. Davis, supra, 10 Cal.4th at pp. 532-533 & fn. 29.) We also reject them on the merits. Defendant first raises a cluster of statutory and constitutional questions relating to the fairness of permitting the prosecution to introduce prison incidents that were nearly 15 years old at the time of trial. But “ ‘neither remoteness nor the expiration of the statutory limitations period bars admission of a defendant’s prior unadjudicated criminal activity for purposes of section 190.3, factor (b).’ ” (People v. Hart (1999) 20 Cal.4th 546, 642 [85 Cal.Rptr.2d 132, 976 P.2d 683].) Indeed, “a prosecutor may offer evidence in aggravation of criminal violence that has occurred at any time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1158 [36 Cal.Rptr.2d 235, 885 P.2d 1] (Rodrigues).) The passage of time affects merely its weight, not its admissibility. (People v. Anderson, supra, 52 Cal.3d at p. 476.) In this case, the earlier conduct was highly relevant to show that defendant’s violent attack on sheriffs deputies in September 1986 was not an isolated incident. (People v. Frank (1990) 51 Cal.3d 718, 729 [274 Cal.Rptr. 372, 798 P.2d 1215].) Moreover, a penalty trial is not the equivalent of a criminal prosecution for purposes of due process and speedy trial analysis, since “the ‘penalty phase is unique, intended to place before the sentencer all evidence properly bearing on its decision under the Constitution and statutes.’” (People v. Stanley (1995) 10 Cal.4th 764, 822-823 [42 Cal.Rptr.2d 543, 897 P.2d 481].) We likewise reject defendant’s contention that the prison incidents denied him his constitutional right to counsel. (Rodrigues, supra, 8 Cal.4th at p. 1158.) Defense counsel conceded below that he had received adequate notice of and discovery for each of these incidents. The defense was also permitted to, and did, cross-examine witnesses and offer contrary evidence. Defendant also complains that the incidents in which he threw water, urine, scouring powder, bleach, and other substances at correctional officers were not admissible under section 190.3, factor (b), which encompasses only criminal activity involving the use or attempted use of force or violence or the express or implied threat to use force or violence. But each of those challenged incidents constitutes a battery (Inter-Insurance Exchange v. Lopez (1965) 238 Cal.App.2d 441, 444-445 [47 Cal.Rptr. 834]; see also § 244), which is defined by statute as the “willful and unlawful use of force or violence upon the person of another.” (§§ 242, 4501.5.) The admissibility of these incidents is not defeated by defense evidence that the incidents occurred during periods of prison unrest and that other inmates engaged in similar behavior during the period. Such evidence merely goes to the weight of the prior conduct. Inasmuch as the defense was permitted to present this assertedly ameliorative evidence to the jury, no error occurred. 2. Threats made by defendant against Nola England The defense of lingering doubt included efforts to impeach Nola England’s detailed testimony at the 1988 penalty retrial with her inability to recall certain details during her testimony at the 1981 guilt phase trial. England explained that she had been afraid to tell the truth in 1981 because of threats made against her and her children, but had also been afraid to lie because of the risk of perjury. She therefore decided to claim an inability to remember when asked a number of questions at the 1981 proceeding. The defense elicited the existence of the threats on direct examination. On cross-examination, England identified defendant as the source of the threats and testified that the threats had been conveyed to her by LeRoy Yant, who had been in jail with defendant. Out of the presence of the jury, defense counsel questioned England about Yant and discovered he had been killed in a motorcycle accident eight months earlier. Defense counsel then moved to strike England’s testimony about the threats as hearsay and “prejudicial.” The trial court denied the motion, observing that the evidence was relevant to England’s credibility. Before testimony resumed, the court instructed the jury that the evidence of threats communicated to England was not being offered for its truth but only “as communications that she heard and, as you may consider them in whatever way they may relate to credibility. Not for the truth of it.” On appeal, defendant renews his claims that the evidence was hearsay and unduly prejudicial and adds that its admission violated his federal rights to due process and confrontation. We note preliminarily that defendant waived his constitutional claims by failing to articulate them below. (Rodrigues, supra, 8 Cal.4th at p. 1116, fn. 20; People v. Garceau (1993) 6 Cal.4th 140, 173 [24 Cal.Rptr.2d 664, 862 P.2d 664].) Those constitutional claims, which depend on a finding that the threat evidence was hearsay, are also meritless. This evidence was not offered for its truth. Evidence that a witness is afraid to testify or fears retaliation for testifying is re