Full opinion text
Opinion WERDEGAR, J. A Los Angeles County jury convicted defendant Tracey Lavell Carter of the robbery and murder of David Thompson, the robbery of Namora Thompson, the murder and attempted robbery of Leopoldo Salgado, and the attempted robbery and attempted premeditated murder of Manuel Figueroa. (Pen. Code, §§ 187, 211, 664; unless otherwise specified, further statutory references are to the Penal Code.) With respect to each charge, the jury found that a principal was armed with a handgun and that defendant personally used a firearm. (§§ 12022, subd. (a), 12022.5.) With respect to both murder counts, the jury found true robbery-murder and multiple-murder special-circumstance allegations. (§ 190.2, subd. (a)(3), (17)(A).) The jury returned a verdict of death for the murder of David Thompson and one of life imprisonment without possibility of parole for the murder of Leopoldo Salgado. The trial court imposed sentence accordingly, and this appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase 1. Prosecution case a. Thompson murder and robbery On the evening of April 9, 1987, David Thompson and his wife Namora Thompson, residents of Tustin in Orange County, drove their 1987 Hyundai to Los Angeles to attend a church-related function. The event ended around 11:00 or 11:30 p.m. One of the members of their church then told Mr. Thompson that the bus carrying fellow church members to Los Angeles had broken down. Mr. Thompson attempted unsuccessfully to telephone the pastor of the church; then, along with his wife, he went to the location of the inoperative bus to see whether he could be of assistance. When efforts to start the bus failed, Mr. and Mrs. Thompson got back into their car and drove to a telephone booth to try again to contact their pastor. They rejected the first booth they encountered because it was poorly lit and they were concerned for their safety. Driving further, they stopped at a well-lit gas station with four telephone booths. Mr. Thompson parked the car about six feet away from the booths and got out to make the call while Mrs. Thompson remained in the car. Suddenly, two men approached from behind the car. The first one, who was tall and “kind of fair skinned,” got into the phone booth next to Mr. Thompson’s. The second, who was more fair skinned than the first man and about three inches shorter than Mr. Thompson, stood in front of Mr. Thompson. The second man then opened the driver’s side door of the Thompsons’ car, reached in and told Mrs. Thompson to give him the car keys. At that point, a third man, who appeared to be about Mrs. Thompson’s height (five feet six inches tall) knocked on the passenger’s side window and told her to get out of the car without turning around. She complied. The first man, now standing in front of Mr. Thompson, was telling him to hang up the phone, cursing at him and demanding his money. The man who was standing behind Mrs. Thompson asked if she had any money. She told him she would see, took the wallet from her purse, removed a $10 bill and handed it to him over her right shoulder. When he asked if that was all she had, she told him to look for himself and gave him her wallet, whereupon he insisted she look. The man instructed her to walk towards the back of the car. He then came around the back of the car and got into the backseat on the driver’s side, while the first man, who had been at the phone booth, started to get into the driver’s seat. As Mr. Thompson hung up the receiver, the first man got out of the car, returned to the phone booth and put the gun to Mr. Thompson’s head. As Mr. Thompson prayed aloud, the man shot him. All three men then got into the car and drove away. Later on the night of the shooting, being under great stress, Mrs. Thompson told police she was unable to identify any of the assailants, and she failed to make an identification from a photographic lineup. At the preliminary hearing and at trial, however, she identified defendant as the man who had shot her husband. At the time of the Thompson murder, George Austin was driving east on the inside lane of Slauson Avenue. As he approached a Mobil station located at Slauson and Broadway, he heard a gunshot. Looking in the direction of the shot, he observed several phone booths, a small gray car and three Black males near the car. Two were getting in on the passenger’s side of the car, while the third was coming from the phone booth and entering the driver’s side of the vehicle. Austin described the third man as a Black man of medium build, five feet six inches to five feet eight inches in height. Although Austin failed to identify defendant at the preliminary hearing, at trial he identified defendant as the man he had seen walking back to the car from the phone booths. Around 11:00 on the night of the Thompson murder, Homer Butler was at the Mobil station at the comer of Broadway and Slauson. He was often there, assisting people in getting gas, checking oil and doing things of that nature in exchange for some change. On that occasion, Butler heard a woman screaming and, near the telephone booths, saw a man going through a purse, a man in a suit inside the phone booth and a young Black male going through his pockets. Two young Black males were near the woman who was screaming. Realizing a robbery was in progress, Butler hid behind the gas station cashier’s booth so he would not be seen. Butler then ran across the street to a barbecue restaurant to dial 911. As he was doing so, he heard a gunshot coming from the robbery scene. Looking over, he saw three to four people drive away. After calling 911, he rushed back across the street. The woman was still screaming hysterically; the man had been fatally shot. Butler spoke with the police. Detective William Baird testified that Butler had identified defendant’s picture in a photographic lineup as looking “familiar to one of the guys in the car[’s] right front passenger seat.” Subsequently, at some point prior to trial, Baird again spoke with Butler, who said of defendant’s picture in the photo lineup, “That’s the guy, but I’m not going to testify to it.” Butler indicated he feared he would be in danger if he identified anyone and, if called to testify, would deny having done so. The Thompsons’ damaged car was found abandoned in the area of 70th Street and Estrella Avenue, its battery and radio missing. Todd Lavera admitted to Detective Baird that he had thrown Mr. Thompson’s wallet into a storm drain at Hoover Street and Florence Avenue; Baird drove there and recovered the wallet. Detective Baird participated in the arrest of both defendant, then age 18, and Todd Lavera, then age 22. In the course of their booking, the police determined defendant’s height to be six feet one inch and that of Lavera to be six feet two inches. Detective Morton Duff took part in arresting Andre Moore, then age 16, whose height was determined, during booking, to be five feet five inches. b. Offenses against Salgado and Figueroa On April 10, 1987, Rochelle Stewart lived on Hoover Street next door to Tom’s Liquor Store. Around 1:00 a.m. that night, she left that store and was walking south on Hoover toward her house when she noticed two men whom she described as “Mexican” and whom she did not know (later identified as Manuel Serrano Figueroa and Leopoldo Magania Salgado) in a small blue car. They asked her to get in the car with them, but she refused. Todd Lavera, whom she knew as Buster, approached from behind and asked what she was doing talking to the Mexicans. Two other men walked up behind her; one was short, about five feet four inches, and the other about five feet 11 inches or about the same height as Lavera. The short man, whom she had seen before but whose name she did not know, went up to the blue car, stuck a gun in the driver’s window and said, “Give me the money.” As the driver (Figueroa) started to roll up the window, the short man fired four shots from what appeared to Stewart to be a small .22- or .25-caliber gun, breaking the window on the driver’s side. The Mexican man on the passenger side (Salgado) got out of the car, whereupon the short man fired three more shots at him. The driver pulled out of the driveway. As Lavera stood near Stewart, the other tall man took the gun from the short man and fired two more shots at the passenger. Lavera and the two unknown men then ran to an alley connecting Hoover Street and 73d Street. Salgado’s wounds proved fatal. In speaking with the police later that night, Stewart initially told them she “didn’t know who did what,” but later identified Lavera, Moore and defendant in separate photo lineups. With respect to defendant’s photo, she told the police, “That kind of look [szc] like the last person that shot the gun.” At the preliminary hearing in this case, Stewart identified Lavera, but testified she did not see the other two men in the courtroom. At trial, she acknowledged she had in fact recognized the other two men at the preliminary hearing, but had been too fearful to identify them because she was then still living in the neighborhood. At Lavera’s separate trial, Stewart had identified Moore as the first shooter when he was brought out for her to see, and she testified Lavera was the man who stood beside her during the crime, but she did not recognize defendant as being the second shooter when he was brought out. At defendant’s trial, Stewart denied seeing the second shooter anywhere in the courtroom and denied that defendant looked anything like the photograph she had identified as being the second shooter. She also denied ever telling the prosecutor and her investigator that she was afraid to testify. Vivian Bivians, Todd Lavera’s sister, testified she had long known defendant and Andre Moore, and both men were friends of her brother. On the night of the offenses, defendant and Moore were visiting with Lavera at the back of the house where she and Lavera lived with their mother. The house was located about a block from Tom’s Liquor Store. At one point their mother asked Lavera to go to Tom’s Liquor Store, get a broom and come right back home with it. Lavera left to go to the store, closely followed by Moore and defendant. Ten to 15 minutes later, Bivians heard two or more gunshots and, thinking Lavera might have been shot, ran to the comer. There she saw defendant walking down Hoover Street with four or five girls. She asked defendant where Lavera was; he replied he did not know. An hour later, she saw Lavera in a police car. Neither Lavera, Moore or defendant ever returned to her house with the broom or any explanation of what had happened. Manuel Figueroa testified at the preliminary hearing. As he had died of natural causes by the time of trial, his former testimony was read into evidence. Figueroa testified that around 1:15 a.m. on April 10, 1987, he and Salgado were sitting in Figueroa’s car at Tom’s Liquor Store when a young Black woman walked by. Figueroa and Salgado had been drinking at a club, and Salgado began to flirt with the woman. Three Black men, whose ages he estimated as 20 to 22 years, walked up behind the woman and then approached his car. One of the men walked up to his open window, said, “I’m going to kill you,” and took out his gun. The other two men lined up behind the man with the gun, who fired four shots. The second and third shots grazed the back of his head and neck as he ducked forward; the fourth shot hit him behind his right ear. After the fourth shot was fired, Salgado got out of the car. Figueroa unsuccessfully tried to stop him. Figueroa then pulled out of the lot and drove away. He identified Moore as the shooter and Lavera and defendant as the two men lined up behind Moore. When Figueroa first spoke with the police about the crime, he did not want to cooperate because he was afraid of reprisal. He therefore told the police he could not identify the three attackers and could only describe them as being young and Black. By the time of the preliminary hearing, however, his fear had diminished because he had moved to a new residence, having been paid $1,000 as part of a relocation effort by the district attorney’s office. Officer Arthur Duran of the Los Angeles Police Department was on patrol with his partner in a marked police car during the early morning hours of April 10, 1987. As he reached 73d Street and Vermont Avenue, a radio broadcast informed him that a shooting had occurred at Tom’s Liquor Store and that the suspects, three Black men, were running westbound on 73 d Street. Duran stopped the patrol car at 73d and Florence and observed three Black males walking westbound on the sidewalk, two walking together and a third some 20 or 30 feet behind the others. When the car’s headlights shone on them, the three men ran into the yards of the residences at 936 and 932 West 73d Street. A canine unit responded to the residence toward which Duran had seen the first two suspects flee; Lavera was found hiding at the rear of that location. The other two suspects were not found. Lavera underwent a gunshot residue test with negative results. Later that day, Jose Alvarado was cleaning his yard at 940 West 73d Street, across from Tom’s Liquor Store, when he found a gun missing its cylinder. He gave it to his mother-in-law, who gave it to the police. During the autopsy of Salgado, the coroner, Dr. Susan Selzer, retrieved a .22-caliber slug from Salgado’s chest. The slug was compared with the gun found in Alvarado’s yard. Detective Donald Richards testified that, depending on the brand of revolver and the cylinder used, a .22-caliber revolver could fire between five and nine shots. In his experience, a nail could be used as well as a pin to make the revolver operable. c. Johnny Davenport’s extrajudicial statement and testimony After defendant, Moore and Lavera were arrested, Detective Morton Duff twice interviewed Johnny Davenport, who knew all three suspects and who, by the time of trial, was incarcerated at Avenal State Prison on a 1987 robbery conviction. During the second interview, Davenport gave a statement that, redacted to eliminate minor irrelevancies, read as follows; “It was about Noon when this guy from the Eight-Trey I know as Blackie came over. He was telling me, Tracey [Carter], Andre [Moore], and Todd [Lavera] that he had gotten into a fight with an East Coaster who killed a guy named Otis that was from our set. Todd got real mad about it and said he had a ‘gat’ (a gun) and he wanted to go bust on the East Coast. Todd left for five to ten minutes and then came back with this old raggedy .22 pistol. When he showed it to us it had a nail holding the cylinder. When he pulled out the nail, it fell apart. Todd was asking if anyone had some more shells because he only had about (4) in the gun. [f ] . . .1 stayed around the house until 12:00 or 1:00 p.m. then I went over to Andre’s. Andre started telling me about the Mexicans at the liquor store. Andre said he tried to jack them and when he stuck the gun up to the window, the guy tried to roll the window up on his hand. Andre said he dropped the gun and when he picked it up he started shooting at both the Mexicans. Andre said he shot, he ran. While Andre was telling about the Mexicans at the liquor store at Florence and Hoover, Tracey came up. That’s why I was wondering why the hood got hot, the police were everywhere. After Andre finished telling me about shooting the Mexicans, they both, Tracey and Andre, started telling me about a preacher they jacked. Tracey said when he walked up the preacher was at the telephone booth. Tracey told the preacher to give him the money. That’s when the preacher started praying. That’s when Tracey said he shot the preacher. Tracey said it was at Slauson and Broadway where it happened. I don’t know whether it was the same day or the next day. [f] Andre said they got a car. Then it was Andre who told me about the lady. They got her out of the car and they jetted out. He said they parked the car and threw the keys on the roof. While Andre was telling me about the car, Tracey was there along with some others, but I don’t remember who else. It was both Tracey and Andre that was telling me about Todd getting picked after the police dog found him running or hiding on 73rd and Hoover. After the police took him to jail, they let him go. I don’t remember whether it was Andre or Tracey that said they threw the gun after they ran from the liquor store.” On direct examination, Davenport testified that he and Moore were members of the 7-4 Hoover Crips, while defendant was a member of the 84 Kitchen Crips. The 7-4 Hoover Crips and the Kitchen Crips would hang out together. Sometimes Davenport would hang out at 70th Street and Bonsallo Avenue with other 7-4 Hoover Crips, and defendant and Moore were sometimes present. Davenport denied having made substantial portions of his extrajudicial statement. Davenport recalled having a conversation, prior to the Thompson murder, with Moore, Lavera and someone named Black concerning the killing of Otis Jones, a member of the 7-4 Hoover Crips, and how Black had had a fight with a member of the East Coast Crips who may have had something to do with Jones’s death. Davenport first denied telling the police defendant was present during that conversation, then said he did not remember whether he told them that. Davenport denied telling the police the conversation angered Lavera, or that Lavera said he had a “gat” (i.e., a gun) and wanted to go “bust” on the “East Coast,” although he recalled that Lavera went home at that point and later returned with a small gun with a nail holding the cylinder in place. Davenport claimed not to recognize People’s exhibit No. 6, the gun found by Jose Alvarado, but acknowledged that during Lavera’s trial he had testified the gun looked similar to the one Lavera had possessed during their conversation. The day after the conversation, Davenport testified, he spoke with Moore in the driveway of Moore’s residence on Bonsallo Avenue. Moore told Davenport “some Mexicans had got killed.” Davenport denied telling the police that Moore told him he tried to “jack” (i.e., rob) them and when he put the gun to the window “the guy tried to roll the window up on his hand.” Davenport further denied telling the police that Moore had told him he dropped the gun and, when he picked it up, he started shooting at both the Mexicans. Davenport denied telling the police that, as Moore was telling him about the Mexicans at the liquor store, defendant came up to them; or that, after Moore finished telling him about shooting the Mexicans, Moore and defendant both started to tell him about how they had “jacked a preacher.” Davenport denied telling the police that defendant said the preacher was at the phone booth and that defendant shot the preacher after demanding that he give defendant his money. Davenport denied telling the police that Moore said they got “the lady” out of the car and “jetted out,” then parked the car and threw the keys onto the roof. He denied telling the police he didn’t remember whether it was Moore or defendant who said they threw the gun after they ran from the liquor store. The prosecutor showed Davenport a three-page statement, marked as People’s exhibit No. 31; Davenport acknowledged that the first time he had seen the statement was at the police station in 1987 and that the initials on various lines, as well as the signature at the bottom of each page, were his own. He acknowledged traveling to Lavera’s trial by helicopter, accompanied by Detective Duff. He denied, however, telling Duff that everything contained in the statement was true but he could not say so in court because he had to live in the prison system. On cross-examination, Davenport testified he was first contacted by the police two or three days after the incidents when at least five officers, including Detective Duff, came to his house, handcuffed him and drove him in an unmarked car to the Newton Community station. There he was uncuffed and placed in a small room where he was interviewed by Duff and another officer. Davenport testified the officers had told him something to the effect that they had information that he was with Moore on the day of the crimes, although on redirect examination he acknowledged the officers might have said they had information he and Moore had been talking about the killings. The officers talked with Davenport for six to seven hours, with breaks. At first, he told them nothing, but after they told him they knew he had information about the incident and that he was going to stay in jail until he told them something, he lied to them. Duff wrote down Davenport’s statements. Davenport was then released. The following day, officers again picked him up and brought him to Newton station, telling him they knew everything he had said was a lie. Davenport feared they would charge him with the murders, too. Because the officers said his first statement was not good enough, Davenport gave them another statement, like the first “almost all of it” lies. As Duff wrote down Davenport’s statement, he altered it, putting in names where Davenport was omitting them. After the statement was complete, Duff allowed Davenport to read the statement and told him to sign it. Davenport complied because he “figured at the time that was the only way for me to get out of jail.” On redirect, however, Davenport acknowledged he had testified at the preliminary hearing in this case that he was not afraid because he knew he had had nothing to do with the murders. He testified further on redirect that he did not remember giving the statement in People’s exhibit No. 31, or parts of it, to Detective Duff; that he had not read the whole statement, but knew that any names it contained were added by Duff because he did not name any names; and that he did tell Duff the matters set forth on the first page, but not the second or third page, of the statement. Davenport acknowledged that if he admitted the matters contained in his statement, he would get a “snitch jacket” in prison, but denied that this caused him any concern. Detective Duff testified about the circumstances of his interviews with Davenport. Davenport was not a suspect in the two murders and was told he had been named as a person present when the crimes were being discussed. The first interview with Davenport lasted about 30 to 45 minutes. Davenport was asked if it was true he had been present during a discussion of the homicides; he disclaimed being present or knowing anything about it. Duff testified Davenport had lied when he testified the first interview lasted six or seven hours, the second interview lasted seven or eight hours, and that Duff had told him he would be kept in custody until he told the officers what Duff wanted to hear. Duff had heard Davenport lie on other occasions, including once under oath. Duff testified that People’s exhibit No. 31 was a summary of what Davenport had told the police. Following the interview Davenport was given an opportunity to read the statement. Apart from adding the word “Andre” to the third line of the statement, Davenport indicated he had no additions or corrections or anything he wanted to delete from the statement. Duff also testified that Davenport told him everything contained in his statement was true, but that he could not testify to it because he was in prison and if he testified the statement was true he would be a dead man. On cross-examination, Duff acknowledged that, although the police station had equipment capable of surreptitiously recording a witness’s statement, he chose not to use it while interviewing Davenport. 2. Defense case The defense presented no witnesses. Defense counsel argued, in closing, that the prosecution had failed to prove its case beyond a reasonable doubt in view of the questionable identification evidence, Davenport’s credibility problems and the assertedly poor police practices in certain aspects of the investigation. B. Penalty Phase 1. Prosecution case The prosecution presented evidence that defendant had previously been convicted of possessing cocaine (§ 190.3, factor (c)) and that he had engaged in other violent criminal activity, namely the attempted murder of two rival gang members while in pretrial custody in April 1989 and a September 1985 grand theft and robbery (§ 190.3, factor (b)). a. Jailhouse stabbing On April 3, 1989, Joevone Elster and Mark Oropeza were incarcerated in the Los Angeles County jail and enrolled in the “Honor Row,” a voluntary school program for inmates. Defendant was also enrolled in the Honor Row. All enrollees had cells on the same row. On that date, Elster and Oropeza were attacked as they were returning from school to their cell row. Elster received a five- or six-inch stab wound on his left arm and a laceration to the top of his head. Oropeza suffered multiple wounds on his left arm and hand, a puncture wound behind his ear and another puncture wound to the temple. Elster testified he did not know who had stabbed him or how many people had attacked him. Oropeza likewise testified he did not know who had wounded him. Elster denied being an East Coast Crip; Oropeza admitted he and Elster were East Coast Crips, but denied telling Los Angeles Sheriffs Deputy Frank Plass, who administered the Honor Row program, or jail Deputies Reppucci and Weinman, of his gang affiliation. Elster admitted talking with Deputy Weinman immediately after the attack, but denied telling him that someone had yelled “East Coast Killers” at him. Oropeza denied talking with any jail deputies about the incident and even claimed he did not know what a “shank” was. Deputy Mark Reppucci testified that around 1:00 p.m. on April 3, 1989, after he had just finished escorting inmates back from school and was closing the gate leading to their row, he saw four men—defendant, an inmate named Paul Brown, Elster and Oropeza—fighting. Reppucci and his partner, Deputy Weinman, told the inmates to stop fighting. When the backup summoned by Weinman arrived, the deputies broke up the fight. Reppucci searched all the inmates involved in the fight and found a shank, a “jail-made stabbing device,” in Brown’s front pocket. Although he found nothing on defendant, defendant admitted he had thrown something down the row. Elster and Oropeza had no weapons on them. Elster told Reppucci that as he was coming back from school, Brown approached him and started shouting “East Coast Killers,” which Elster understood to mean that Brown and defendant killed East Coast Crips. Reppucci testified that based on his independent knowledge and defendant’s tattoos with the letters “K” and “C,” defendant was a Kitchen Crip, and Elster and Oropeza were East Coast Crips. Deputy Plass testified that he interviewed and screened inmates, including defendant, who volunteered for the Honor Row program. Plass testified he made it clear to all interested inmates that participants would be required to set aside any anger and resentment towards members of rival gang-sets who might be participating in the program. He informed them that any violation of the rules would be enough to remove them from the program. When defendant was selected, he had no significant disciplinary problems and appeared eager to get into the program. In the course of investigating the assault on Elster and Oropeza, Plass interviewed defendant. After being advised of and waiving his Miranda rights, defendant told Plass that he and Paul Brown, a fellow Kitchen Crip, had heard rumors that members of the East Coast Crips were going to “get up at” or attack the Kitchen Crips. Because defendant and Brown felt insecure in being the only Kitchen Crips on the Honor Row, they decided to strike first. Accordingly, defendant made a shank by melting an underarm deodorant container, rolling it to a desired length and thickness, and sharpening it to a point with a cutting edge. The completed weapon was four to six inches in length, with a two- to three-inch blade. The day before the attack, defendant packed all his belongings in his cell and removed the pictures from his cell walls, as if—Plass testified—he anticipated leaving the module. Then, when he, Brown, Elster and Oropeza walked onto the row after returning from school on April 3, 1989, defendant put the shank in the palm of his hand and began to punch with his fist and stab with the shank, yelling “East Coast Killers.” After defendant used the shank, he threw it down the “freeway” or corridor leading to the back of the row. Plass testified that the module was searched for the shank, without success. For deputies to fail to find such items was not uncommon, as they can easily be placed in a toilet and flushed into the main sewer system. Defendant’s attitude as he told Plass what happened was “cavalier”; he showed no remorse and told Plass he had wanted to get as many East Coast members as he could. b. Robbery of pickup truck On September 24, 1985, Margarito Gomez was sitting with his daughter Yadira in his green 1976 Chevrolet pickup truck in the parking lot of a junior high school. Two men approached the driver’s side of the truck. One pulled out a gun and asked for Gomez’s keys. Gomez gave him the keys. The man then asked Gomez to get out of the truck, and Gomez complied. The other man had gone to the passenger’s side of the truck and asked the daughter to get out; she did so. The men then got into the truck and drove away. The next day, Gomez reported the robbery to the police. Deputy Sheriff Anthony Pachot testified that when he showed Gomez a photo lineup, Gomez tentatively identified defendant’s picture as that of the person who had pointed the gun at him. Pachot testified further that Gomez’s daughter was unable to identify anyone from the same photo lineup, but she did provide descriptions of the suspects, one of which fit defendant almost “to a <rp ? 5? Defendant’s mother, meanwhile, had gone to the Los Angeles Sheriffs Department Firestone station with what turned out to be Gomez’s stolen pickup truck. She told Deputy Pachot that defendant had informed her he had purchased the truck, but because he had no bill of sale she wanted the station to check the truck and make sure it was not stolen. Based on this information, Pachot went to El Camino High School in Woodland Hills to question defendant, who was a student there. After being advised of his rights and waiving them, defendant stated he had purchased the truck from an individual named Eric for $800 in cash at the intersection of Gage Avenue and Figueroa Street. Defendant claimed to have known Eric for four years but not to know Eric’s last name or where he lived. Nor did defendant, who was not employed and whose mother had not given him money, appear to possess the means to make such a purchase. Based on his investigation, Pachot booked defendant on charges of grand theft and robbery. 2. Defense case The defense presented the testimony of several of defendant’s friends and family members in order to show that defendant had originally been a person of good character before he started making bad choices as a result of immaturity, low intellect and poor environment. Dr. Michael Maloney testified regarding the results of interviews and psychological testing conducted with defendant. Defendant also testified in his own behalf, discussing the offenses he was alleged or found to have committed and expressing remorse for the Thompson and Salgado killings. In closing argument, counsel suggested the state of the evidence supported a lingering doubt as to whether defendant or Lavera was the triggerman in the Thompson and Salgado murders. Defendant’s uncle, Curtis Carter, testified that defendant was an industrious child who did well in school and had a close relationship with Carter’s daughter. Defendant lived with his grandmother, Helen Williams, from early childhood until age 14, when he moved in with his mother. Defendant began to get into trouble around age 14 for stealing, incurring commitments to Camp Scott and, about two months after his release from camp, to the California Youth Authority. At some point defendant was returned to custody for selling dope. The first time Carter ever heard that defendant was involved in gang activity was when he was arrested in the present case. Since his arrest, Carter had visited defendant in jail some 15 to 20 times, where he seemed scared and remorseful. Carter opined that defendant was a decent human being who could make something of his life if he had the chance. Roy W. Roberts II, the executive director of the Watts/Willowbrook Boys and Girls Club, testified he had known defendant since the latter was five years old. Defendant was a member of the club from the approximate ages of seven to 12. Roberts had found him an energetic young man, who wanted to do well and make his mother proud of him. Defendant’s family moved away and Roberts lost contact with him when defendant was about 12; Roberts was unfamiliar with the details of defendant’s juvenile record of theft and violence. Audrey Carter, defendant’s mother, testified she was currently employed as an emergency room nurse. She was 16 years old when defendant was bom and thereafter attended school at night while her mother and sister cared for defendant. Defendant’s father was Michael Hall, who was killed when defendant was three years old. Ms. Carter moved out of her mother’s house when she was 21, but because she was still in school and needed help raising defendant, he stayed with her mother during the week until he was about 14 or 15. Until about age 13, defendant would go to church and would read and talk about the Bible. When defendant initially went to school, he got along well there and had no problems apart from stuttering. He was, in her opinion, a follower rather than a leader at that point in his life. When defendant was about 15 or 16, however, he began hanging around with members of the Kitchen Crips who lived near his grandmother’s home, including Johnny Davenport and Andre Moore. Although she told him not to hang around with them, he did so anyway. She confirmed many details of defendant’s juvenile misconduct. She urged the jury to spare defendant’s life. Defendant’s aunt, Gwendolyn Jones, grew up with defendant and was like a “bigger sister.” He was a good person who helped the family all the time. After his return from juvenile camp, defendant appeared to be trying to act tougher and was hanging out with the gang more. After defendant’s arrest in this case, she visited him in county jail, where he appeared nervous, scared and sorry about being in this situation. Carolyn Jones, Gwendolyn’s sister and another of defendant’s aunts, also lived and grew up with defendant. Defendant was a shy child who was scared of lots of things, including a nearby park where members of the Bloods would beat up on children. When defendant was 11 years old, he became friendly with members of the Kitchen Crips. He would get into trouble because he would hang around with gang members as they went to rob people. Before he went to jail, he was “like the quiet type.” After, he was “a little noisier than what he was.” After his arrest in this case, he told her he was sorry for being involved. She urged the jury to spare his life. Helen Williams, defendant’s grandmother, and Doris Hamilton, his aunt, testified, inter alia, regarding his religious upbringing. Ms. Williams testified that defendant had told her he did not commit the crimes; Ms. Hamilton opined that defendant was innocent; both expressed the hope the jury would spare his life. Dr. Michael Maloney, a clinical and forensic psychologist and clinical professor of psychiatry, interviewed defendant before and after the jury returned guilt verdicts and spoke with defendant’s family members, administered various psychological tests, and reviewed defendant’s school records and the preliminary hearing transcript. Defendant’s intelligence fell in the “borderline” range; he was “certainly not mentally retarded,” but was “functioning below average.” Academic achievement testing put defendant at the seventh grade level in reading and fifth grade level in arithmetic. Administration of the Minnesota Multiphasic Personality Inventory (MMPI) revealed a high elevation for hypomania (a tendency to be impulsive and overly energetic and to experience periods of irritability, hostility and aggressive outbursts) and a lesser elevation for psychopathic deviancy or what today would be called antisocial personality disorder. Neither the MMPI nor the other standard tests administered by Dr. Maloney suggested that defendant had any significant mental disorders. In the postverdict interview, defendant tearfully said he was sorry about the whole situation and spoke of the impact it might have on his family and that of the victims. He admitted participating in the robberies, but denied killing anyone. On cross-examination, the prosecutor explored certain discrepancies between her own records of defendant’s juvenile misconduct and the self-reported history on which Dr. Maloney had exclusively relied. Dr. Maloney testified that none of the records of defendant’s juvenile adjudications would change his opinion of defendant’s credibility or psychological profile. Defendant testified in his own behalf. Regarding the jailhouse stabbings of Elster and Oropeza, he testified he had heard rumors from friends belonging to the Compton Crips set that the East Coast Crips were going to kill him. He could not tell the police of these rumors because “snitches die”; thus, according to defendant, he had to protect himself. The day he attacked Elster and Oropeza, he knew something was going to happen because some East Coast gang members were talking “crazy” and “disrespectful,” yelling “Kitchen Killer” and spitting on his friend Paul Brown. Neither Elster nor Oropeza said anything to him, stared at him or insulted him, but he thought they would be involved in the rumored attack because they were East Coast Crips members. Defendant did not plan the attack, which he considered to be an act of self-defense, or speak with Brown about it, in advance. On cross-examination, defendant admitted he had received several disciplinary measures in jail for insubordination, possessing a shaving razor in his cell and disrespecting staff. Regarding the Thompson and Salgado murders, defendant testified that after he was arrested, Detective Duff asked him if he wanted to speak about the case. At first he told Duff he would not speak to him unless a lawyer were present. Later, however, he chose to speak with the police without a lawyer and to tell them what happened. The day of the Thompson murder, defendant met Todd Lavera and Andre Moore at a hamburger stand; Lavera asked him if he had any bullets for Lavera’s gun. Lavera talked about “busting” on the East Coast, and the three engaged in “small talk” about carrying out robberies. Knowing Lavera had a loaded gun, defendant walked with Lavera and Moore to Broadway and Slauson. There they encountered Clyde Moore, whom defendant knew from the California Youth Authority. Clyde informed them he had seen a man in a telephone booth, commenting, “There go a jack right there.” " Defendant, Lavera and Andre Moore walked over to the telephone booth. Moore pulled out a fake gun and robbed Mrs. Thompson; Lavera walked up to the phone booth and shot Mr. Thompson. Defendant, meanwhile, was hanging back near the Thompsons’ car; Moore handed him the money, and they all drove off in the car. According to defendant, he and Lavera are the same height, color and build, and he could be mistaken for him. Defendant felt bad because it was only supposed to be a robbery, “not taking no man’s life.” The three drove to 69th Street and Broadway Boulevard, where Moore parked the car and gave an acquaintance the keys. Defendant then went to his house and checked on his mother, then proceeded to Lavera’s house, where they sat around talking. They went to the liquor store, bought two 40-ounce bottles of Olde English and three packs of cigarettes, and returned to Lavera’s house. While there, Lavera and Moore decided to pull a “jack” on someone, and all three walked back to the liquor store. They saw “the Mexicans” in a car parked in the lot at the back of the store. Defendant went inside for a moment to talk to a man named Carl, who worked there. When defendant left the store, Moore was standing at the driver’s window of the Mexicans’ car with the gun in his hand. The driver rolled up the window and started to drive off. Moore fired the gun three times; the gun fell to the ground, whereupon Lavera picked it up. The passenger jumped out of the car and tried to run; Lavera fired three more times, and the man fell. Defendant told the police he did not kill Mr. Thompson and did not know that Moore or Lavera would kill anyone in the liquor store robbery. II. Analysis A. Guilt and Special Circumstance Phase 1. Admission of gang evidence Denying a defense motion in limine to preclude the admission of gang evidence, the trial court allowed the prosecution to present testimony by witness Johnny Davenport that defendant was a member of the 84 Kitchen Crips gang set. The court also allowed expert testimony by Mark J. Ameson, a Los Angeles police detective who specialized in investigations of gang-related crimes, regarding the state of the relations between the 7-4 Hoover Crips, their allies the Kitchen Crips, and their enemies the East Coast Crips; the gangs’ respective territories; and the significance of the phrase “bust on the coast.” Detective Ameson also testified that if a 7-4 Hoover Crip entered East Coast Crips territory, he would not have done so mistakenly. Defendant contends this evidence, to which we refer collectively as the “gang evidence,” was irrelevant and prejudicial, and that its erroneous admission violated his state and federal constitutional rights to due process and a fair trial. Reviewing the trial court’s mling on this evidentiary question for abuse of discretion (People v. Champion (1995) 9 Cal.4th 879, 923 [39 Cal.Rptr.2d 547, 891 P.2d 93]), we find no error. Although evidence of a defendant’s gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged— and thus should be carefully scmtinized by trial courts—such evidence is admissible when relevant to prove identity or motive, if its probative value is not substantially outweighed by its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193 [66 Cal.Rptr.2d 123, 940 P.2d 710].) In the present case, the relevancy of the gang testimony lay in the following circumstances: The 84 Kitchen Crips, to which set defendant belonged, enjoyed friendly relations with the 7-4 Hoover Crips, to which set coperpetrators Andre Moore and Todd Lavera belonged. The 7-4 Hoover Crips, however, were on bad terms with the East Coast Crips, who were known to meet at the Mobil gas station at Slauson and Broadway, where the Thompson robbery murder was committed. Around noon on the day of the offenses at issue in this case, a member of the Eight-Trey set, named Black or Blackie, talked with Davenport, Lavera, Moore and defendant about the killing of a 7-4 Hoover Crip named Otis Jones by an East Coast Crip. Lavera reacted angrily, declaring he wanted to go “bust on the coast”; he left and returned with the distinctive handgun later used in the Thompson and Salgado crimes. Lavera asked his companions for more shells, as he had only four in his gun. The term “bust on the coast” signified an intention to commit a retaliatory shooting in East Coast Crip territory. Identity was an issue in the case. From the foregoing evidence the prosecution sought to have the jury infer that defendant, Moore and Lavera went armed to the Mobil gas station in order to carry out a shooting in a rival gang’s territory. The evidence of Davenport’s prior statement tended to establish that defendant, Moore and Lavera were together before the Thompson shooting and, to the extent the eyewitness identifications of Moore and Lavera as having been involved in the Thompson and Salgado offenses were stronger than those pointing to defendant, that defendant, too, was present during those offenses. Motive likewise was significant insofar as it shed light on defendant’s intent in being present at the scene of the Thompson shooting and, in particular, on whether defendant entertained an intent to kill, as required for the prosecution to prove the robbery-murder special-circumstance allegation in this Carlos-era case. (See Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862]; People v. Vidaurri (1980) 103 Cal.App.3d 450, 461 [163 Cal.Rptr. 57].) Defendant disputes these conclusions, arguing the prosecution failed to demonstrate the existence of any connection between the crimes against the Thompsons and the fact they occurred in East Coast Crip territory. Defendant observes that the evidence failed to suggest that Thompson or Salgado were East Coast Crips, or that he intended specifically to shoot them because of their perceived gang membership. In our view, however, the prosecutor was not required to establish such circumstances as a predicate to the admission of the challenged gang evidence. Notably, Detective Ameson testified that the phrase “bust on the coast” meant “to shoot someone in East Coast Crip territory,” not to shoot an East Coast Crip specifically, and that a known meeting location for the East Coast Crips was the very Mobil gas station where the Thompson shooting occurred. The jury might reasonably infer that for a gang to commit a shooting at a rival’s meeting place would be a hostile and perhaps retaliatory show of force, whether or not the victim was a member of that rival gang. And, as the Attorney General points out, if the jury had believed defendant to have been merely an aider and abettor of the killing, his motive in accompanying two 7-4 Hoovers to an East Coast Crip meeting place would have been the only evidence suggesting he possessed the intent to kill or to aid Moore and Lavera in killing the victim. That the jury in fact found defendant was the actual killer could not have been predicted with certainty when the question was hotly contested at trial. Thus, the gang evidence was quite significant and not cumulative of any other evidence introduced on the issues of motive and intent. The trial court, moreover, properly instructed the jury on the limited purposes for which it was admitting the gang evidence. Accordingly, we conclude the trial court did not abuse its discretion in admitting the challenged evidence. Defendant’s claims of federal constitutional error, entirely dependent as they are on his claim of state law error, likewise must fail. 2. Admission of Andre Moore’s extrajudicial statements Defendant contends the trial court erroneously admitted Johnny Davenport’s prior written statement to the police describing, inter alia, a conversation in which Andre Moore recounted the Salgado robbery and shooting and which defendant at some point joined. Prior to Davenport’s testimony, the defense moved to exclude as hearsay any statements by Davenport concerning what Moore and Lavera had told him. The prosecution argued, and the trial court ultimately agreed, that the statements regarding the Salgado offenses were admissible against defendant as adoptive admissions. Defendant contends this ruling violated- state evidentiary law (Evid. Code, § 1221) and his state and federal constitutional right of confrontation. Pursuant to Evidence Code section 1221, “[ejvidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Defendant contends Davenport’s statement does not establish that defendant was present when Andre Moore spoke of the Salgado offenses; lacking proof, therefore, that defendant knew what Moore had said in this regard, he contends the trial court abused its discretion in admitting Moore’s statements under the doctrine of adoptive admissions. An even more fundamental problem with treating as an adoptive admission defendant’s failure to contradict Moore’s recounting of the Salgado offenses is that nothing in Moore’s remarks referred to defendant or accused him of anything. There being, in essence, nothing for defendant to deny, a condition of the hearsay exception for adoptive admissions did not exist, and the trial court therefore erred in concluding Moore’s remarks were admissible as adoptive admissions. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1011 [254 Cal.Rptr. 586, 766 P.2d 1].) The error, however, was harmless under any standard (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065]; People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243]) in view of the testimony of Rochelle Stewart identifying defendant as one of the shooters in the Salgado killing; Vivian Bivians’s testimony placing defendant in the company of Lavera and Moore near the scene, shortly before the murder; and the absence in Moore’s statement to Davenport of any mention of defendant as having been present at, or taken part in, the Salgado killing. 3. Trial court’s failure to instruct sua sponte with CALJIC No. 2.71.5 Defendant contends the trial court erred prejudicially in failing to instruct the jury, sua sponte, with CALJIC No. 2.71.5, concerning adoptive admissions, in connection with the statements by Moore and Lavera as recounted in Davenport’s extrajudicial statement. Several Court of Appeal decisions have held the court has a sua sponte duty to give an instruction like CALJIC No. 2.71.5. (People v. Smith (1986) 187 Cal.App.3d 666, 679-680 [231 Cal.Rptr. 897]; People v. Humphries (1986) 185 Cal.App.3d 1315, 1335-1336 [230 Cal.Rptr. 536]; People v. Vindiola (1979) 96 Cal.App.3d 370, 382 [158 Cal.Rptr. 6]; People v. Atwood (1963) 223 Cal.App.2d 316, 332-333 [35 Cal.Rptr. 831].) But People v. Smith and People v. Humphries contained no analysis, and the other two decisions lack continuing validity in view of People v. Collie (1981) 30 Cal.3d 43 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776]. In Collie, we held that the trial court has no sua sponte duty to instruct on the limited purpose for which evidence of other crimes was admitted. We distinguished such evidentiary matters from the sua sponte duty to instruct regarding defenses and lesser included offenses, which “are required because those matters are ‘closely and openly connected’ with the evidence and the fate of the defendant in cases to which they apply.” {People v. Collie, supra, at p. 63.) We concluded that the defendant had “fail[ed] to show that the limited admissibility of particular bits of evidence of past criminal conduct normally deserves similar unsolicited.recognition and instruction by the trial court.” (Id. at pp. 63-64.) The same reasoning applies to CALJIC No. 2.71.5. Trial courts are not to be “saddle[d] . . . with the duty ... to review the entire record at trial’s end in search of’ adoptive admissions. {People v. Collie, supra, at p. 64.) As CALJIC No. 2.71.5 explains, adoptive admissions require certain foundational facts. Trial courts may certainly instruct on the matter if they think it best to do so. But, as the Evidence Code makes clear, courts are required to so instruct only at a defendant’s request. When the court admits evidence subject to the existence of preliminary facts, it “[m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist.” (Evid. Code, § 403, subd. (c)(1), italics added.) “On its own terms, this provision makes it discretionary for the trial court to give an instruction regarding a preliminary fact unless the party makes a request.” (People v. Lewis (2001) 26 Cal.4th 334, 362 [110 Cal.Rptr.2d 272, 28 P.3d 34].) In a given case, it may be far from clear whether the defendant would wish the court to give CALJIC No. 2.71.5. The instruction is largely a matter of common sense—silence in the face of an accusation is meaningful, and hence may be considered, only when the defendant has heard and understood the accusation and had an opportunity to reply. Giving the instruction might cause the jury to place undue significance on bits of testimony that the defendant would prefer it not examine so closely. (Cf. People v. Phillips (1985) 41 Cal.3d 29, 73, fn. 25 [222 Cal.Rptr. 127, 711 P.2d 423] [for similar reasons, a court has no sua sponte duty to instruct on the elements of other crimes at the penalty phase of a capital trial].) For these reasons, we hold that a trial court must give CALJIC No. 2.71.5 only when the defendant requests it. Consequently, the trial court in this case did not err in this regard. 4. Trial court’s failure to admonish jury pursuant to section 1122 Defendant contends the trial court erred reversibly in failing to admonish the jury at each adjournment, pursuant to section 1122, not to converse among themselves, or with anyone else, on any subject connected with the trial, or to form or express an opinion about the case until the cause was finally submitted to them. Indeed, defendant asserts the trial court never properly admonished the jury at any point during the trial. The Attorney General, however, cites three instances during the voir dire process in which the trial court admonished the jury venire along the lines of section 1122. The Attorney General also cites several instances in which the clerk’s transcript refers to the jury’s having been admonished although no corresponding language can be found in the reporter’s transcript. Defendant relies on the principle that, where the clerk’s and reporter’s transcripts conflict, the latter controls when, under the circumstances, it is the more reliable (see People v. Smith (1983) 33 Cal.3d 596, 599 [189 Cal.Rptr. 862, 659 P.2d 1152]; In re Moss (1985) 175 Cal.App.3d 913, 928 [221 Cal.Rptr. 645]), while the Attorney General contends defendant has not met his burden of “developing the record by resorting to whatever methods of reconstruction might be available.” We agree with defendant that nothing before us suggests a “lacuna” in need of “reconstruction” by settled statement or other means, as opposed to a simple failure to admonish, and that the trial court thus erred. We depart from defendant, however, and conclude he has failed to show prejudice, as required for reversal. (People v. Gastelum (1965) 237 Cal.App.2d 205, 207 [46 Cal.Rptr. 743].) First, we observe that the trial court did, during the voir dire process, several times admonish the venire in the spirit of section 1122. Second, none of the circumstances defendant cites as demonstrating prejudice actually establish that any juror violated the statutory admonition. In particular, Juror H.’s posttrial statement that he made up his mind to vote for death after hearing a rereading of testimony, which assertedly occurred only during guilt phase deliberations, is insufficiently specific to constitute an admission of misconduct and would appear inadmissible under Evidence Code section 1150, subdivision (a) in any event. And Juror H.’s alleged statement to trial counsel suggesting that H.’s taking another juror out to dinner during penalty phase deliberations enabled the jury to reach a verdict did not establish that defendant’s case impermissibly served as a topic of conversation during the alleged dinner. The failure to show prejudice likewise dooms defendant’s derivative claim of ineffective assistance of counsel. Reversal, therefore, is not required. 5. Trial court’s failure to request special jury finding on intent to kill Because the Thompson and Salgado murders were committed during the “window” period between our decisions in Carlos v. Superior Court, supra, 35 Cal.3d 131 and People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306], in order to find true the robbery-murder special-circumstance allegations in this case the jury had to find that defendant intended to kill the victims. (See also People v. Turner (1984) 37 Cal.3d 302, 328-329 [208 Cal.Rptr. 196, 690 P.2d 669] [pre-Anderson decision holding multiple-murder special circumstance required intent to kill].) Accordingly, the trial court instructed the jury with CALJIC No. 8.80, setting forth such intent requirement. Defendant asserts this instruction conflicted with the instructions defining the robbery-murder and multiple-murder special circumstances, CALJIC Nos. 8.81.17 and 8.81.3, and contends the jury’s special circumstance findings in his case are fatally flawed in the absence of specific written findings that he possessed the intent to kill. We reject both contentions as a matter of state law: Read together, the instructions adequately informed the jury that it had to find intent to kill for a true finding on either special circumstance allegation (People v. Duncan (1991) 53 Cal.3d 955, 974 [281 Cal.Rptr. 273, 810 P.2d 131]), and no written findings on the point were required (§§ 1150 [generally requiring jury to reach general verdict], 190.4, subd. (a) [containing no requirement of specific written findings of intent on special circumstance allegations]; People v. Arias (1996) 13 Cal.4th 92, 157-158 [51 Cal.Rptr.2d 770, 913 P.2d 980] [provided jury is properly instructed, special findings on each fact or element underlying a special circumstance verdict are not required]). Although in an appropriate case the trial court may protect the record by requiring the jury to explain, in special findings, which of several alternate theories was accepted in support of a general verdict (Arias, supra, at p. 158, citing People v. Webster (1991) 54 Cal.3d 411, 446-447 [285 Cal.Rptr. 31, 814 P.2d 1273]), in this case the defense never requested such findings, and defendant cites no authority requiring the trial court sua sponte to direct the jury to make such findings. Because defendant cites.no authority dictating a different conclusion under the federal Constitution, we reject his contention that the absence of a special finding on intent to kill violated his state and federal constitutional rights to a fair trial, due process of law, and a reliable special circumstance and penalty determination. B. Penalty Phase 1. Admission of gang evidence Defendant contends that the admission, during the penalty phase of trial, of assertedly irrelevant and prejudicial gang evidence violated state law and deprived him of his state and federal constitutional rights to a fair trial, a reliable penalty determination and due process of law. During her redirect examination of Deputy Frank Plass, the senior sheriffs deputy assigned to the custody division at the men’s central jail, the prosecutor asked him whether he saw any other Kitchen Crips in the courtroom that day, and Plass answered in the affirmative. Over defense counsel’s relevancy objection, the trial court allowed the evidence in order to show Plass’s familiarity with the gang. Defendant also argues that the trial court’s expression of concern that no members of the audience should sit directly behind the jurors contributed to an atmosphere of fear in the courtroom and to the denial of his constitutional rights. Because defendant objected at trial only to the question asked Plass, and to that only on relevancy grounds, he forfeited the constitutional claims he now seeks to raise. (People v. Earp (1999) 20 Cal.4th 826, 884 [85 Cal.Rptr.2d 857, 978 P.2d 15]