Full opinion text
Opinion WERDEGAR, J. Gregory Spiros Demetrulias was convicted and sentenced to death for murdering Robert Miller in the commission of a robbery or attempted robbery against Miller. On his automatic appeal, we affirm the judgment in its entirety. Factual and Procedural Background Defendant fatally stabbed Miller in Miller’s room on the evening of January 10, 1989. The prosecution maintained he did so while robbing Miller. Defendant at trial admitted killing Miller, but claimed he did so in a struggle Miller initiated when defendant came to collect money Miller owed him. Guilt Phase Evidence Prosecution The victim, Robert Miller, 56, lived in a second floor room at the Mar Mac Manor, a boardinghouse in Riverside. On January 10, 1989, around 6:45 p.m., he had dinner at the Yum Yum Restaurant, where he was a regular customer. When he paid for his meal, he took from his pocket what, to the cashier, appeared to be several hundred dollars in cash. Bank records showed he had withdrawn $480 in the preceding week and on January 17, 1989, had an account balance of $1,151. Defendant, then 35 years old, was living with his parents in Riverside. According to the parents, on the day of the crimes defendant drank a large amount of beer, may have been taking prescription drugs, and displayed an angry or hostile attitude. That evening, defendant’s mother, at his request, drove him to the Round Up Bar, not far from the Mar Mac Manor. She also gave him $30 or $40. Defendant had been going to the Round Up Bar regularly over the previous month or so, as had the victim, Robert Miller. Defendant got to the Round Up Bar around 7:30 p.m. His speech slightly slurred, he ordered a beer and drank about half. He then slammed his drink on the bar, acting very upset. The bartender asked him to leave; after finishing the beer, defendant did so, stating he was going to get a beer at the Stop-and-Go convenience store next door. Through the bar window, a witness in the bar saw defendant walk back and forth between the bar parking lot and the Stop-and-Go several times over the course of the next hour and a half, drinking. About 9:30 p.m., he walked away. Robert Hanshaw, a second floor Mar Mac Manor resident like Robert Miller, testified that just before 10:00 p.m. on January 10, 1989, he was awakened by someone running up the stairs. Hanshaw heard someone say, “Give me your wallet,” in a loud, demanding voice. About 45 seconds later, Hanshaw heard steps descending the stairs; Miller then came out of his room and announced: “He stabbed me in the heart. He’s killed me.” Eric Carson lived on the first floor of the boardinghouse. Sometime between 9:30 and 10:00 p.m., he heard banging and stomping, then someone say in an aggressive voice: “Give me your money. Give me your wallet.” Carson went out into the first floor hallway, where he was joined by the building manager, Herb Hamilton. After Hamilton yelled something, Carson saw defendant, who seemed to have something in his hand, hurry down the stairs. Defendant said something, rushed by Carson and Hamilton, and left by the front door. Miller then staggered down the stairs and, saying he had been stabbed in the heart, collapsed by Carson and Hamilton. Miller died of a seven-inch-deep stab wound to his chest. He had also been stabbed in the face, back, and upper arm. All the wounds were inflicted with a knife that had one sharp and one dull edge. Directly outside Miller’s room, investigating officers found such a knife blade, almost eight-inches long, with blood on it. In the kitchen of the Mar Mac Manor, on the first floor, a drawer containing knives and other implements was partially open. Miller’s wallet was in a fanny pack on the dresser in his room. No money was in it, but $34.70 in cash was in his pants pocket. The fanny pack also contained papers, including a pawn shop loan receipt, dated December 2, 1988, for $10. About 4:30 the next morning (January 11, 1989), a police investigator assigned to the Miller homicide encountered defendant walking on a street near the Mar Mac Manor, appearing very intoxicated. Defendant, who resembled a composite sketch based on Carson’s observations of the assailant, acted evasively when the investigator approached him. The officer detained and searched defendant. His clothes had apparent bloodstains. In his pockets police found $1,274 in cash, as well as two knives, numerous coins, four .38-caliber cartridges, and a wallet and drug prescription bottle with identification for one Clarence Wissel of Colton. Police went to Wissel’s house, less than a mile away, and found it had been ransacked. Wissel’s belongings, some gathered in plastic bags, were in the doorway, on the driveway, and across the street. Wissel, 82, was in a bedroom, bound with a telephone cord and with a heavy dresser placed on top of him. Dried blood was on the walls, as well as on Wissel’s head and on a telephone beneath him. In the same room, police found a wallet with defendant’s identification and a revolver with the cylinder removed. Beer bottles and a knife were in the kitchen sink, and another knife was on the washing machine. Wissel’s dentures were found in a toilet. Wissel had suffered stab wounds to his neck, elbow, and chest, as well as brain injuries, and was comatose when he arrived at the hospital. In a field about halfway between the Mar Mac Manor and Clarence Wissel’s house, investigators found shoe prints the same size as defendant’s shoes and matching the Reebok print pattern of the athletic shoes defendant was wearing when arrested. The same prints were found at and around Wissel’s house. A woman who lived by the field had heard her neighbor’s dogs bark loudly around 10:00 p.m. on January 10, which indicated to her that someone was outside. Defense The owner of the Mar Mac Manor testified, from her business records, that Miller had paid his $275 rent in cash on January 10, 1989. A woman who was with Eric Carson in his room the night of Miller’s killing testified that Carson had described the assailant to her as a Black man. (Defendant is not Black.) A defense investigator testified that Robert Hanshaw had told him he did not hear another person say, “Give me your wallet” or any words to that effect, but heard only Miller say, “He stabbed me.” A sample of defendant’s blood taken at 10:15 a.m. on January 11, 1989, showed a blood-alcohol level of .04 percent (suggesting a higher level, around .10 percent, three hours earlier), a therapeutic-range level of diazepam (Valium), and an unknown amount of Lorazepam, also a sedative. In support of defendant’s claim that he knew Miller and had lent him money, Maria de Vries, the owner of the Round Up Bar, testified she had seen defendant and Miller in the bar together on one occasion, but did not remember if they had talked with one another. Contradicting herself, she also testified she had never seen the two in the bar at the same time, or at least did not remember seeing them together. Martha Smith, a bartender, also testified she saw defendant and Miller talking together at the bar one evening. She was uncertain of the date, but thought it was two or three weeks after she had begun working, which was just after Christmas 1988. On rebuttal, the prosecution produced, through de Vries, timesheets for Smith’s employment. The earliest was for April 1989, after Miller’s death. Smith, however, testified that when she began working at the bar they used a sign-in sheet, instead of individual timesheets, to keep track of shifts worked. Defendant testified on his own behalf. He admitted felony convictions for burglary in 1976, theft offenses in 1980 and 1983, and robbery and assault with a deadly weapon for the attack on Clarence Wissel in 1989. According to defendant, he and Miller met while both were drinking at the Round Up Bar in December 1988. They talked in the bar a few times after that. On January 6 or 7, 1989, defendant lent Miller $40, which Miller promised to repay at the bar on the evening of January 10. During the day of January 10, 1989, defendant consumed about 12 beers and took Valium and other prescription drugs, up until 5:00 or 6:00 p.m. A couple of hours later, his mother drove him to the Round Up Bar, where he was to meet Miller. After drinking one or two beers, defendant got tired of waiting for Miller, slammed his beer on the bar, and left. He went to the adjacent market, bought a few more beers, and drank them while he paced and waited, for about an hour. Having previously learned from Miller where he lived, defendant decided to go there. Walking, he arrived at the Mar Mac Manor about 10:00 p.m. After knocking, defendant entered the boardinghouse through the front door and went up the stairs to Miller’s room. Miller’s door was open, and Miller was sitting there with the television on. Standing in the doorway, defendant asked Miller why he had not been at the Round Up Bar and whether he had defendant’s money. Miller said he was broke and, to defendant’s further inquiry, said he did not know when he would have the money to repay defendant. Defendant entered the room, and an argument ensued. Miller yelled at defendant to get out, while defendant “could have” said something like “Just give me the money.” Miller reached down and picked up something, then charged at defendant with a knife in his hand. Defendant wrested the knife from Miller’s hand and stabbed Miller in the face, but Miller came at him again with his fists. Defendant stabbed him in the side of his chest. Miller kept coming, and defendant stabbed him in his back and the back of his arm while pushing him off. Defendant fell in the struggle, and the knife blade broke off. Finally defendant, sensing Miller “had had enough,” left, without going through Miller’s pockets or taking anything. Still holding the handle of the broken knife, defendant descended the stairs. Seeing Carson, he explained, “We got into it, he attacked me,” but Carson did not respond or move out of defendant’s way. Defendant went around him and fled the building. Not knowing what Carson would do, defendant ran. He wanted to find a telephone in order to talk to his mother before turning himself in. He knew who Wissel was because of business dealings defendant’s father had had with Wissel, so he stopped there. Wissel opened the door with a gun in his hand. When he raised the gun, defendant pulled out a pocketknife and stabbed Wissel three times. When Wissel walked to another room and picked up a telephone, defendant hit him with the phone, disabled the gun by removing the cylinder, then tied Wissel up with the phone cord and put a dresser on top of him to keep him from moving around. Defendant drank about eight beers from Wissel’s refrigerator and took a handful of Valium. He ransacked the house, taking money and other things, and gathered other items to take later. When he found Wissel’s dentures in a medicine cabinet, he threw them in the toilet, though he did not know why. The police arrested defendant while he was walking the streets. The money in his pocket belonged mostly to Wissel, but a small amount was defendant’s own. Because he did not want to talk to the police and was “pretty wasted,” defendant lied in a police interview and said he did not know anything about Miller’s death or the assault on Wissel. A few months later, he also lied to two psychiatrists appointed to examine him, because he also did not want to talk to them. He told them he had no memory of the events of the time and that his memory was largely blacked out between Christmas 1988 and his arrest on January 11, 1989. Penalty Phase Evidence Prosecution The officers who found Clarence Wissel beaten and bound also found that a Medicare card had been placed in his rectum. Before the attack, Wissel was in good health for his age; he lived independently and was not limited mentally. After the attack, he could not walk or speak and was unaware of events around him. He could not feed himself, though eventually he was able to be fed by a caretaker. Robert Miller’s daughter, Teme Ormonde, testified that as an adult she was close to her father. He spent weekends with her family, going to church with them and doing fun things with her children. After his death, Ormonde notified Miller’s ailing mother, who was devastated by the news. The prosecution introduced evidence of several prior violent crimes. In 1976, defendant knocked down a woman in a grocery store parking lot and took her purse. She suffered a serious cut on her head, as well as bruises. In 1977, he argued with his brother Peter over defendant’s plan to steal from their father. Defendant, under the influence of heroin, cut Peter’s hands with a pocketknife in the altercation. In 1980, another man robbed a gas station attendant at knifepoint; shortly thereafter, defendant was arrested, after a chase, driving a car in which the robber was a passenger. Also in 1980, defendant, apparently under the influence of drugs, robbed a liquor store clerk while brandishing a handgun. In 1983, he robbed a grocery store by claiming to have a weapon. The prosecution also introduced evidence of defendant’s violence while he was in custody in the Riverside County jail. In 1989, defendant grabbed a cellmate, Wesley Richards, and threw him, headfirst, into the bars of their cell, injuring Richards’s eye and head. Also in 1989, correctional officers found a loose razor blade in defendant’s property box. Later that year, a cellmate of defendant’s was found covered in blood with injuries to his face; defendant was at the back of the cell washing his hands, which were red, cut, and trembling. In 1991, defendant shoved a cellmate headfirst into the cell bars and punched him, injuring his face. Also in 1991, defendant assisted a cellmate, Harry Copenhaver, resist extrication from their cell after Copenhaver refused to give up extra milk cartons the correctional officer said were contraband. When a team of officers came into the cell to get Copenhaver, defendant and Copenhaver pushed mattresses on them, kicked them, and hit them with weapons made by putting soap bars in socks. Defense After the 1983 grocery store robbery, defendant’s blood was found to contain alcohol, opiates, and methadone. Wesley Richards testified that another cellmate besides defendant had also hit him in the 1989 incident and that his injuries were probably caused by that cellmate or by still another inmate, rather than by defendant. Copenhaver testified that in the 1991 incident he resisted being handcuffed and removed from the cell because he thought he would be beaten if he complied, and he warned his cellmates not to comply for this reason. Inmates from the next cell testified that after the fight they saw Copenhaver dragged unconscious through the hallway by sheriff’s deputies and jabbed with batons, though he was not resisting. Several members of defendant’s family testified as character witnesses. Defendant’s father testified defendant had worked with him at their farm and poultry processing plant and later, at their restaurant equipment business, and that he was a good worker. At some point, though, defendant developed a drug problem and began to act differently. Defendant’s mother testified he was a thoughtful child and something of a loner. In his twenties, though, he started doing drugs; in 1983, she saw him on the street with heroin. When he was released from prison in 1988, he had long hair and was paranoid. She tried to get him help through his parole officer. When she visits defendant in jail now, he cries over what he did to Miller and Wissel. Georgeann Demetrulias, defendant’s sister, testified he is a sensitive and caring person. When they were children, they had to work long hours at the family poultry business and were beaten by their mother, especially when she drank. Defendant would try to stop the beatings, then would withdraw physically; all the children tried to get away at one time or another. Defendant’s former sister-in-law testified that between 1972 and 1980 she saw defendant frequently; he was sensitive and fun and treated her daughter nicely. An aunt and cousin testified that when the cousin was growing up, defendant visited them on many occasions. He worked on cars with his uncle, visited with his grandmother, and helped his cousin swim at the beach. Debbie Floyd was defendant’s girlfriend for about two years in the late 1970’s. Floyd’s daughter lived with them for several months; they did activities as a family, and her daughter viewed defendant as a father figure. During their relationship, defendant started drinking and doing drugs. At defendant’s suggestion, Floyd left for Virginia while pregnant with their son, Christopher Jay Demetrulias (Jay). Defendant wrote and sent money for their son. Jay came to California to live with his half sister when he was having trouble in Virginia with school and his mother. While in California, Jay learned his father was in the Riverside County jail and talked to him on the telephone. After talking with his father, Jay moved back to Virginia, started going to school, and decided to stay away from drugs and alcohol. Defendant’s older son, Gregory Demetrulias, Jr., was raised by defendant’s parents but remembers spending time with defendant at a local camp. They communicated by letter and card while defendant was incarcerated, then lived together, with defendant’s parents, after his release in 1988 and before the present offenses. During that time, they lifted weights together, tinkered with things, and horsed around. Defendant, in his son’s view, is not a bad person and has no hatred toward others. Friends also testified on defendant’s behalf. Victor Miceli, a Riverside County Superior Court judge, knew the Demetrulias family for many years and watched defendant grow up. Defendant often helped out with gardening and other tasks at Miceli’s house, and they worked together for a number of years as volunteers at a YMCA camp. Miceli never saw defendant misbehave, but knew that defendant began getting into trouble with the law after developing a drug problem. Miceli once arranged for defendant to surrender himself to police. A friend who met defendant in ninth grade spent time riding dirt bikes with him, but became aware around 1980 that defendant had developed a drug problem. The mother of another friend testified that drugs had caused a lot of changes for families in their neighborhood. On the morning of January 10, 1989, defendant went to the home of Jackie Bridgewater, whom he had known for more than 20 years and who was like a mother to him. Defendant looked sick and asked Bridgewater to make telephone calls to get him help. Bridgewater called psychiatric hospitals, the Social Security office, and defendant’s parole officer, but “no one would take him.” Bridgewater has since visited defendant in jail; he has cried when discussing Miller and Wissel. Bridgewater has also taken her granddaughter to visit defendant; he sends the granddaughter drawings of teddy bears and hot rod cars, and the granddaughter calls him “Daddy Greg.” An expert in drug and alcohol addiction testified in general terms about heroin use, addiction, and withdrawal. He did not know whether defendant was a heroin addict or a recreational user. Verdicts and Judgment of Death The jury convicted defendant of first degree murder (Pen. Code, §§ 187, 189), with a finding he personally used a knife (§§ 1192.7, subd. (c)(23), 12022, subd. (b)), and a special circumstance finding that the murder was committed while defendant was engaged in a robbery or attempted robbery (§ 190.2, subd. (a)(17)(A)). After the penalty trial, the same jury set the penalty at death. The trial court denied defendant’s motion for modification of the verdict or for a new trial and sentenced him to death. Discussion Guilt Phase Issues 1. Admission of Evidence of Crimes Against Clarence Wissel Defendant contends the admission of evidence of his uncharged assault on Clarence Wissel, his ransacking of Wissel’s house, and his theft of Wissel’s ■ property violated Evidence Code sections 352 and 1101 and deprived him of due process in violation of the United States and California Constitutions. We conclude the court did not err in admitting the evidence. On defendant’s in limine motion to exclude the Wissel evidence, the trial court ruled the similarities between the charged homicide of Robert Miller and the uncharged assault on Wissel were not sufficiently distinctive to make the Wissel evidence admissible on the identity of Miller’s killer, but that the Wissel evidence was admissible to show “intent, motive, common design or plan.” Before the evidence was presented, defendant renewed his objection in part, arguing that at the least the evidence should be in some manner “sanitize[d]” of inflammatory details. In the discussion that followed, the prosecutor agreed not to introduce evidence that a Medicare card was found inserted into Wissel’s rectum (that evidence was ultimately introduced at the penalty phase) and that among defendant’s identification cards found in his wallet at Wissel’s house was one from the Department of Corrections. No other details discovered at the Wissel crime scene were excluded. The court instructed the jury twice on the limited admissibility of the Wissel evidence, once at its introduction and once in the overall guilt phase instructions. On both occasions, the court instructed that the evidence “if believed” was not to be considered as showing defendant’s bad character or “disposition to commit crimes,” but only for the limited purpose of “determining if it tends to show” a characteristic “method, plan or scheme” similar to that used in the charged crime, the “intent which is a necessary element of the crime charged,” or “a motive for the commission of the crime charged.” Defendant argues the Wissel evidence was relevant only as character evidence, i.e., to show his propensity for crime, and hence was inadmissible under Evidence Code section 1101, subdivision (a), which generally bars admission of character evidence to prove conduct on a specific occasion. We disagree. The evidence was relevant for nonpropensity purposes, in particular to show defendant’s motive and intent in attacking Miller, uses expressly permitted by Evidence Code section 1101, subdivision (b). (See People v. Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716, 956 P.2d 1169]; People v. Ewoldt (1994) 7 Cal.4th 380, 393 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Evidence of other crimes is admissible only if relevant to prove a material fact at issue, separate from criminal propensity. (People v. Daniels (1991) 52 Cal.3d 815, 856 [277 Cal.Rptr. 122, 802 P.2d 906].) Motive, though not itself an ultimate fact put at issue by the charges or the defense in this case, was probative of two ultimate facts, intent and lack of justification. Viewed as motive evidence, the Wissel assault and robbery tended to prove both that defendant had the intent to rob Miller when he attacked him, an element of the charged robbery-murder special circumstance, and that defendant did not act in real or perceived self-defense. Both issues were central to the anticipated defense and were already in active dispute at the time the court ruled in limine on the Wissel evidence, for at the hearing on that motion defense counsel stated his expectation the trial evidence would put into question whether defendant went to the Mar Mac Manor with the intent of robbing Miller or only responded to Miller’s attack on him. Similarly, in his opening statement, made before the prosecution put on its case-in-chief, defense counsel explained at length how the evidence would show his client stabbed Miller in self-defense, rather than in an attempt to rob him. Defendant’s motive was thus important to two disputed material issues. As to motive, the Wissel evidence tended to show defendant felt a strong need for Wissel’s money and property on the night in question and acted out of that motive rather than merely to defend himself against Wissel. A trier of fact could rationally infer that defendant had also felt a strong need for money a short time earlier on the same night, when he confronted Miller, and therefore that he stabbed Miller in order to take his money rather than to defend himself against Miller. As defendant concedes, the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. (People v. Daniels, supra, 52 Cal.3d at p. 857; People v. Pertsoni (1985) 172 Cal.App.3d 369, 374 [218 Cal.Rptr. 350].) In Pertsoni, the defendant, charged with the shooting murder of a man who was thought to be an agent for the Yugoslav secret police, claimed he had acted in self-defense. Evidence was admitted of an uncharged prior violent act: the defendant’s having shot at a man he believed to be the Yugoslav Ambassador. (Pertsoni, at pp. 372-373.) Though the acts were dissimilar in the circumstances of their commission, the other-crimes evidence was held admissible to show the defendant’s motive of “passionate hatred of anyone connected with the Yugoslav government.” (Id. at p. 374.) This motive was in turn relevant to show the defendant acted “to kill an agent of the detested government, rather than to protect himself against a perceived danger.” (Id. at p. 375.) Here, similarly, evidence of defendant’s motives for robbing and assaulting Wissel tended to show he had had the same motives earlier the same night when he stabbed Miller, and thus acted with the intent to rob, rather than in self-defense. Defendant relies on People v. Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994], in which evidence of prior robberies and thefts was held inadmissible to show the defendant’s motive in his trial for murder, robbery, and kidnapping. But in that case, the defendant’s motive—his desire to take the victim’s property—“was not seriously contested; there was no question but that, whoever shot [the victim], the robbery, kidnapping and murder were done as part of a plan to steal [the victim’s] car.” (Id. at p. 748.) For that reason, proof the defendant had previously committed thefts or robberies to get the victims’ property “adds little to the case.” (Ibid.) The opposite was true here: Defendant admitted having stabbed Miller, but denied having tried to rob him and claimed he acted in self-defense. Here, the identity of the killer was not seriously contested, but defendant’s motive in attacking and killing Miller most certainly was. Bigelow's reasoning is simply inapplicable to the present case. We also conclude the Wissel incident was similar enough to the Miller incident to bear directly on defendant’s intent in stabbing Miller. To satisfy this theory of relevance, charged and uncharged crimes need only be “sufficiently similar to support the inference that the defendant '“probably harbor[ed] the same intent in each instance.” [Citations.]’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) The incidents need not have the greater degree of similarity required to show the existence of a common plan or the shared distinctive pattern required to show identity. (Id. at pp. 402-403.) Twice in one evening, defendant entered an older man’s home, confronted the man alone, and stabbed the man several times hard enough to inflict very serious wounds, including in both cases stab wounds to the chest. Both times he claimed the other man had attacked or threatened him first and that he had acted in self-defense. As we have previously explained, quoting from Wigmore: “ ‘[T]he recurrence of a similar result. . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . .’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402, italics added.) The jury could rationally find it unlikely that defendant had the extremely bad luck to be attacked within a short period of time by two older solitary men in ways that required him to use potentially deadly force against the older men to repel the attacks. Especially given the evidence that defendant’s assault on Wissel went far beyond any conceivable need for self-defense and that defendant then ransacked Wissel’s house and stole from him, the jury could rationally infer instead that defendant probably attacked both men with the same criminal intent—robbery. Defendant points to several factual differences between the two incidents, some of which we acknowledge were shown by the evidence: though both victims were older than defendant, Wissel was significantly older than Miller; Wissel lived in a single-family house, Miller in a boardinghouse; whereas defendant stayed at Wissel’s house for hours, ransacked it, and stole Wissel’s property, the evidence he took anything from Miller was weak at best, and no evidence showed he disturbed Miller’s furnishings before fleeing, which he did immediately after stabbing Miller; defendant, in the words of his brief, “degraded” Wissel in a “bizarre” crime, while he simply stabbed Miller several times with a knife. Especially in light of the close proximity in place and time between the two incidents, we disagree that these dissimilarities vitiated the inference that defendant had the same intent in each incident. Given the evidence that immediately after his fatal stabbing of Miller, defendant walked or ran less than a mile to Wissel’s house, where he stabbed and otherwise assaulted that victim, and given the other similarities outlined above, a jury could rationally reject the coincidental explanation for the two events—that defendant just happened to have assaulted somewhat similar victims in somewhat similar ways on the same night—and conclude instead that he harbored the same criminal intent in both cases. “[W]hen the other crime evidence is admitted solely for its relevance to the defendant’s intent, a distinctive similarity between the two crimes is often unnecessary for the other crime to be relevant. Rather, if the other crime sheds great light on the defendant’s intent at the time he committed that offense it may lead to a logical inference of his intent at the time he committed the charged offense if the circumstances of the two crimes are substantially similar even though not distinctive.” (People v. Nible (1988) 200 Cal.App.3d 838, 848-849 [246 Cal.Rptr. 119, 247 Cal.Rptr. 396].) The decisions defendant cites as illustrating insufficient similarity between charged and uncharged crimes to establish relevance on intent are each distinguishable. In People v. Williams (1988) 44 Cal.3d 883, 907-908 [245 Cal.Rptr. 336, 751 P.2d 395], the People argued that evidence of prior thefts, committed some days or weeks before the charged robbery murders, tended to negate the defendant’s diminished capacity defense, which was based partly on drug and alcohol intoxication. We rejected this theory of relevance because of the complete lack of evidence the defendant had used drugs or alcohol at the time of the prior thefts, a crucial dissimilarity that fatally undermined the logical connection the People had attempted to draw between the charged and uncharged crimes. (Id. at pp. 908-909.) Defendant points to no such crucial dissimilarity in the present case. Though the victims and their circumstances differed in some ways, the crimes—stabbing assaults on older men alone in their homes, committed very close together in time and place—were sufficiently alike to support an inference that if defendant acted with an intent to rob rather than in self-defense in the Wissel case, he did so as well in stabbing Miller. In People v. Guerrero (1976) 16 Cal.3d 719, 727-728 [129 Cal.Rptr. 166, 548 P.2d 366], we rejected the use of a prior rape to show that the charged murder was committed in the course of an attempted rape, i.e., to show the defendant’s intent in engaging in sexual activity with the victim. The fatal flaw in this theory, we explained, was the lack of any evidence that in the charged killing the defendant had engaged in any sexual activity with the victim. The prior rape was thus improperly being used both to establish that the charged incident involved sexual activity and to explain the intent with which the defendant engaged in that sexual activity. (Id. at p. 728.) “In short, the People may not conjure up an attempted rape in this instance in order to introduce evidence of another rape.” (Ibid.) In the case at bench, of course, there was independent evidence defendant was robbing or trying to rob Miller when he killed him: the testimony of two boardinghouse residents that they heard the assailant demand, “Give me your wallet” or “Give me your money.” Unlike Guerrero, the prosecution here did not use the Wissel evidence to “conjure up” an intent to rob in the charged Miller homicide. Finally, in People v. Harvey (1984) 163 Cal.App.3d 90, 104-105 [208 Cal.Rptr. 910], the appellate court found a prior robbery the defendant had committed in the same area six months earlier insufficiently similar to the charged homicide to show an intent to rob in the charged incident. The appellate court’s reasoning on this point is neither clear nor persuasive; the court simply referred (id. at p. 105) to its earlier discussion regarding proof of identity, without explicitly considering whether the lack of “ ‘distinctive’ ” similarities that made the prior crime irrelevant on identity (id. at p. 103) also precluded an inference that the assailant in the two incidents acted with the same criminal intent. As noted, this court later clarified that the distinctiveness needed to prove identity is not required to make an uncharged crime relevant on intent. (People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403.) In any event, the six-month passage of time between the uncharged and charged crimes in Harvey distinguishes it from this case. As explained above, the closeness of time between the incidents here—a matter of minutes, rather than days or months—provides, together with the other similarities already noted, a significant basis for an inference that defendant acted with the same criminal intent in the two incidents. Because the Wissel evidence was relevant on motive and intent, we need not decide whether it bore the somewhat greater similarity to the Miller attack required to be relevant on the existence of a common design or plan (see People v. Ewoldt, supra, 7 Cal.4th at pp. 402-403). The court’s instruction that the jury could also consider the evidence for whether it showed a common design or plan could not, under the circumstances, have been prejudicial. The jury was properly permitted to consider the Wissel evidence on the hotly disputed issue of whether defendant stabbed Miller in self-defense or with the intent to rob him. Not surprisingly, as this was the crucial factual question of the trial, the prosecutor’s discussion of the Wissel evidence in his argument to the jury focused largely on this question. Though the prosecutor referred to a similar “pattern of conduct” in the two incidents, he did not argue for the existence of a common design or plan as such. That the jury, which was properly permitted to consider the Wissel evidence on the central questions of self-defense and intent to rob, would have reached a different result had it not been told it could also consider the evidence on whether defendant had a common design or plan in the two incidents—a peripheral question at most—is not reasonably probable. (People v. Welch (1999) 20 Cal.4th 701, 749-750 [85 Cal.Rptr.2d 203, 976 P.2d 754],) Nor do we agree with defendant that the probative value of the Wissel evidence was outweighed by its potential for prejudice. The evidence was strongly probative on the central issue at trial, whether defendant stabbed Miller in self-defense or with the intent of robbing him. Though the evidence’s probative value was attenuated to some extent by dissimilarities between the incidents, “[t]he close proximity in time of the uncharged offenses to the charged offenses increases the probative value of this evidence.” (People v. Balcom (1994) 7 Cal.4th 414, 427 [27 Cal.Rptr.2d 666, 867 P.2d 777].) Some aspects of the Wissel evidence were potentially inflammatory, but at the same time the ferocity and extent of defendant’s attack on Wissel was probative of his criminal intent and lack of need for self-defense. The jury was twice instructed not to consider the Wissel evidence as showing bad character, minimizing the potential for improper use (People v. Barnett (1988) 17 Cal.4th 1044, 1119 [74 Cal.Rptr.2d 121, 954 P.2d 384]), and the prosecutor did not suggest to the jury that it consider the Wissel evidence for any improper purpose. The Wissel incident involved an assault, albeit a very serious one, rather than a homicide like the charged attack on Miller. The jury, moreover, was informed through defendant’s testimony that he had pled guilty to assault and robbery and was serving a sentence for the Wissel crimes. This greatly reduced the likelihood, if any existed, that the jury would convict defendant of the capital murder of Miller in order to punish him for the assault on Wissel. (Balcom, at p. 427.) Under these circumstances, the trial court did not abuse its discretion under Evidence Code section 352 in admitting the Wissel evidence, nor did that ruling infringe upon defendant’s constitutional right to a fair trial. 2. Admission of Evidence of Victims Peaceful Characters Defendant contends certain testimony elicited during the prosecution’s case-in-chief about Miller’s and Wissel’s nonaggressive or nonviolent characters violated Evidence Code section 1103, subdivision (a). As the cited provision states not a rule of exclusion but an exception to one, we understand defendant to be arguing, more precisely, that the admission of this evidence violated the rule against use of character evidence to show conduct on a particular occasion (id., § 1101, subd. (a)) because it was not within the exception for rebuttal of defense evidence of the victim’s character (id., § 1103, subd. (a)(2)). We conclude defendant forfeited the issue of the evidence’s admission by his failure to make a timely objection on this ground. (Id., § 353, subd. (a).) The issue arises as follows. The prosecutor asked the cashier at the Yum Yum Restaurant, where Miller was a regular customer, whether she had ever seen Miller acting “hostile or threatening or violent towards anybody.” The defense objection, “irrelevant,” was overruled, and the witness answered, “No.” Similarly, a bartender at the Round Up Bar testified, over a defense objection of “relevance and speculation, foundation,” that Miller was nice and polite, not angry or threatening, on the occasions when she had seen him there. A fellow tenant at the Mar Mac Manor testified, over defense objections of “foundation” and “speculation,” that he had never known Miller to be hostile. Clarence Wissel’s daughter testified, over a defense objection of “irrelevant,” that he was a quiet man who avoided conflict. Finally, in response to defense counsel’s question whether she considered Miller a friend, the owner of the Round Up Bar testified that Miller was just a customer, but he was a “very nice man” who would give anyone who asked the “shirt off his back.” The court denied the defense motion to strike this answer as nonresponsive. Later, on the basis of defense statements indicating that defendant was claiming self-defense, the prosecution sought to call other witnesses to testify to Miller’s peaceful character. The defense moved to exclude the witnesses, arguing the self-defense claim did not open the door to such rebuttal character evidence (Evid. Code, § 1103, subd. (a)(2)) because the defense had not and would not introduce any negative character evidence regarding Miller (id., subd. (a)(1)). At the same time, the defense moved to strike any previous references to either victim’s peaceful character. The court, agreeing the character evidence door would not be opened simply by defendant’s likely testimony that Miller had attacked him, excluded the proposed prosecution witnesses, but declined to strike the “limited and brief reference[s]” to the victims’ characters already in the record. Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was “timely made and so stated as to make clear the specific ground of the objection.” Pursuant to this statute, “ ‘we have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable.’ ” (People v. Partida (2005) 37 Cal.4th 428, 433-34 [35 Cal.Rptr.3d 644, 122 P.3d 765].) Under this principle, defendant’s claim that the admission of evidence of the victims’ peaceful characters violated Evidence Code section 1103 is not cognizable; defendant forfeited his claim by failing to make timely objections or a timely motion to strike on that specific ground. Defendant made timely objections (or in the case of the Round Up Bar owner’s testimony, a timely motion to strike), but not on the grounds now asserted. Contrary to defendant’s argument, a relevance objection does not, in itself, alert the trial court to the claim that the testimony objected to is inadmissible character evidence. Evidence of a character trait has a “tendency in reason” (Evid. Code, § 210) to prove the person’s conduct in conformity with that trait on a particular occasion. Indeed, the Law Revision Commission comment to Evidence Code section 1100 notes that “[ejvidence of a person’s character or a trait of his character is relevant . . . when offered as circumstantial evidence of his conduct in conformity with such character or trait of character.” (Cal. Law Revision Com. com., 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foil. § 1100, p. 431.) The general rule against its use for this purpose (Evid. Code, § 1101, subd. (a)) is founded not on lack of relevance but on “Extrinsic Policies” (id., tit. of div. 9) relating to prejudice, the potential for the jury to be distracted and base its decision on the parties’ characters themselves, and the potential for confusion of the issues and extended inquiry into collateral matters. (See Cal. Law Revision Com. com., supra, foil. § 1101, p. 438.) Nor did defense counsel’s objections that the testimony lacked foundation, was speculative, or nonresponsive reasonably specify the character evidence claim now presented. Defendant did rely on Evidence Code section 1103 (and thus impliedly on Evidence Code section 1101, to which section 1103 is an exception) in his motion to strike the testimony, which was made some days afterward. The motion was thus specific enough, but not timely. “When the nature of a question indicates that the evidence sought is inadmissible, there must be an objection to the question; a subsequent motion to strike is not sufficient.” (People v. Perry (1972) 7 Cal.3d 756, 781 [103 Cal.Rptr. 161, 499 P.2d 129], overruled on other grounds in People v. Green (1980) 27 Cal.3d 1, 28 [164 Cal.Rptr. 1, 609 P.2d 468]; see Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657-658 [4 Cal.Rptr.3d 249] [failure to object at the time of testimony forfeited claim under Evid. Code, § 353, notwithstanding motion to strike at close of day’s trial proceedings].) “Any other rule would in a great measure do away with the necessity of interposing seasonable objections and enlarge the motion to strike out.” (People v. Scalamiero (1904) 143 Cal. 343, 346 [76 P. 1098].) The same rule applies here, even though defendant did object to the testimony before it was given, because those objections were not made on the specific ground now urged. To satisfy Evidence Code section 353, subdivision (a), the objection or motion to strike must be both timely and specific as to its ground. An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a “placeholder” objection stating general or incorrect grounds (e.g., “relevance”) and revise the objection later in a motion to strike stating specific or different grounds. In People v. Camacho (1993) 19 Cal.App.4th 1737, 1745 [24 Cal.Rptr.2d 286], for example, the appellate court held the defendant had forfeited his claim of improper examination by the trial court where, though he initially objected on other grounds, his objection that the court was improperly “cross-examining” him was raised only later, after additional testimony. Similarly, in People v. Horn (1960) 187 Cal.App.2d 68, 76-78 [9 Cal.Rptr. 578], the defendant’s hearsay claim was held forfeited because at the time the evidence was admitted the defendant objected only that it was “ ‘incompetent, irrelevant and immaterial,’ ” though he later submitted a further objection on hearsay grounds. Though the trial court in this case could perhaps have excused the untimeliness of defendant’s objection and stricken the testimony (which was, as the court noted, “limited and brief’), it was not required to do so. 3. Refusal of Jury Instruction on Claim of Right The defense requested the following special instruction be given to the jury: “A belief in the right to reclaim one’s property negates the specific intent necessary to constitute robbery. If such specific intent is not present at the time of the alleged offense then the special circumstance of robbery, or attempted robbery, is not proved.” The trial court refused this request, apparently because of counsel’s failure to present the court with published authority for the special instruction. Defendant now cites People v. Butler (1967) 65 Cal.2d 569 [55 Cal.Rptr. 511, 421 P.2d 703], as supporting the requested instruction. In People v. Sakarias (2000) 22 Cal.4th 596, 622 [94 Cal.Rptr.2d 17, 995 P.2d 152], we explained that Butler had been overruled “to the extent it allowed a claim-of-right defense to robbery where the alleged robber’s intent was to collect a claimed debt, rather than to recover specific property taken from him. (People v. Tufunga (1999) 21 Cal.4th 935, 956 [90 Cal.Rptr.2d 143, 987 P.2d 168].)” We also held, however, that “[application of that holding to conduct preceding Tufunga’s finality . . . would constitute an unforeseeable retroactive expansion of criminal liability, in violation of due process. (Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [12 L.Ed.2d 894, 84 S.Ct. 1697].)” (Ibid.) At oral argument, the Attorney General suggested defendant’s testimony did not support a claim-of-right instruction even under the law at the time of his trial because defendant testified that he went to Miller’s room with the intent of peacefully collecting the $40 debt, not with the intent of retaking his money by force, and insisted that he used force only in response to Miller’s attack. In the abstract, however, the possibility existed the jury could believe defendant about the existence of the debt, but not about his intent to collect it peacefully. Belief in this factual theory was, as explained below, very unlikely, but its theoretical possibility arguably supported the giving of a claim-of-right instmction under People v. Butler, supra, 65 Cal.2d 569. Even assuming the instruction should have been given, we agree with the Attorney General that any error was harmless even under the standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]. (See People v. Creath (1995) 31 Cal.App.4th 312, 320 [37 Cal.Rptr.2d 336] [applying Chapman standard without discussion].) Although not given the proposed claim-of-right instruction, the jury was instmcted on the element of specific intent to take property from another and deprive the other person permanently of that property necessary for a finding of robbery, and hence murder in the commission of a robbery, as well as on the specific intent to rob necessary to find attempted robbery. Defense counsel argued the special circumstance was not proved because the evidence showed “that Greg Demetrulias was in Mr. Miller’s room over a debt, not a robbery. And that Greg Demetrulias acted in self-defense when Mr. Miller came at him with a knife.” The prosecutor did not suggest to the jury that collection of a debt could constitute robbery, but rather argued defendant had simply invented the $40 debt to explain his demand for Miller’s money, which he knew had been overheard by witnesses. As defense counsel’s argument indicates, the claim defendant went to Miller’s room merely to collect a debt was closely tied to the claim of self-defense. The jury had many reasons to reject defendant’s self-defense claim, as it clearly did, and the same reasons, by and large, suggested rejection of defendant’s claim he was only trying to collect a debt. Defendant’s self-serving testimony regarding the debt was completely uncorroborated; whether he and Miller were even acquainted was disputed, but no evidence other than defendant’s testimony existed to show Miller had borrowed money from defendant. Miller’s fellow tenants heard his killer demand, “Give me your wallet,” not “Give me the $40 you borrowed.” Circumstantial evidence suggested defendant took the knife he used to kill Miller from the Mar Mac Manor kitchen on his way to Miller’s room; he would have had no reason to take a knife if he had come simply to ask for his $40. The number and severity of the stab wounds defendant inflicted on Miller strongly suggested defendant’s intent was not limited either to repelling an attack from the older man or recovering his loan. Defendant fled from the scene, indicating consciousness of guilt, and later falsely denied any knowledge of the events. Shortly after killing Miller, defendant assaulted Wissel, who had not borrowed any money from him, and stole more than $1,000 and much additional property from Wissel. If defendant’s intent with Miller were simply to seek repayment of a $40 debt, why would he come armed with a kitchen knife, stab Miller four times, flee the scene, and shortly thereafter attack an even more vulnerable victim and take from him many times the amount of Miller’s supposed debt? The jury, by its first degree murder verdict, necessarily rejected defendant’s testimony that he acted in self-defense (perfect or imperfect). We see no reasonable basis on which a jury could have rejected self-defense but accepted a claim-of-right claim. Both defense theories rested solely on defendant’s testimony, and no reason appears in the evidence for a trier of fact to believe defendant as to the debt collection but not as to Miller’s asserted attack on him; indeed, as discussed above, the evidence casting great doubt on defendant’s version of events applies to both defense theories. The jury was instructed generally on the need to find specific intent to rob or steal, and neither party’s argument to the jury suggested that collection of a debt could be robbery. Under all these circumstances, any error in failing to give the requested claim-of-right instruction was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) 4. Refusal of Instructions on Heat-of-passion Voluntary Manslaughter Defendant requested the jury be instructed on voluntary manslaughter committed “upon a sudden quarrel or heat of passion” prompted by sufficient provocation. (§ 192, subd. (a).) The trial court refused, reasoning that defendant’s testimony did not show any provocation other than Miller’s asserted attack on defendant, which warranted instructions on self-defense and voluntary manslaughter as a killing done out of an honest but unreasonable belief in the need for self-defense, but not on heat-of-passion voluntary manslaughter. The jury was therefore instructed only on imperfect self-defense voluntary manslaughter. We need not decide whether the trial court was required to instruct on heat-of-passion voluntary manslaughter, because any error in failing to do so was clearly harmless, even under the standard of Chapman v. California, supra, 386 U.S. at page 24, which defendant argues applies. (See People v. Breverman (1998) 19 Cal.4th 142, 165-166 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [failure to instruct on court’s own motion on lesser included offense in noncapital case is error of state law only].) The jury found true the special circumstance allegation that defendant killed Miller in the course of, and in order to advance, the commission or attempted commission of a robbery. The robbery-murder special-circumstance finding also dictated a finding of first degree felony murder under section 189 and the corresponding felony-murder instruction, which was properly given. The failure to instruct on one theory of voluntary manslaughter was therefore harmless, as the jury necessarily determined the killing was first degree murder, not manslaughter, under other properly given instructions. (People v. Koontz (2002) 27 Cal.4th 1041, 1085-1086 [119 Cal.Rptr.2d 859, 46 P.3d 335]; People v. Lewis (2001) 25 Cal.4th 610, 646 [106 Cal.Rptr.2d 629, 22 P.3d 392].) 5. Exclusion of Hearsay Evidence as to When Miller Paid His Rent Defendant contends the trial court erred in excluding hearsay evidence that Miller paid the rent for his Mar Mac Manor room only 20 or 30 minutes before he was killed, which defendant maintains would have tended to show he did not steal any money from Miller. Defendant does not argue that the evidence, statements of the Mar Mac Manor manager to the boardinghouse owner and to investigating officers, was within any statutory exception to the hearsay rule; instead, he urges this court to hold the evidence should have been admitted on the nonstatutory ground that it was “critical reliable evidence” offered in a capital trial. We conclude the trial court properly declined to recognize a nonstatutory exception for the proposed evidence in this case. The issue arises as follows. Detective Frogue, who investigated Miller’s death, testified he reached the conclusion that all the cash found on defendant at his arrest belonged to Clarence Wissel, and he therefore gave the cash to a member of Wissel’s family. Defense counsel’s question whether Frogue learned something about the money from Herb Hamilton, the Mar Mac Manor manager, drew a prosecution hearsay objection, which was sustained. Out of the jury’s presence, defense counsel offered to show that Hamilton, deceased by the time of trial, told Frogue that Miller had given him the rent at 9:00 or 9:30 on the night of January 10, after Miller had dinner at the Yum Yum Restaurant and shortly before he was killed. He argued such evidence was important to dispel any impression that at the time of his death Miller still had the hundreds of dollars the Yum Yum cashier observed, and hence that defendant stole that money from Miller. Counsel conceded he could think of no applicable exception to the hearsay rule, but argued due process required the trial court to admit the evidence under a “catchall” exception. The court excluded the offered hearsay, ruling it was not within any exception and was unnecessary in light of Prague’s testimony that he had concluded all the money found on defendant was taken from Wissel. The offer was later renewed, counsel noting that Hamilton’s statement was recorded in two police reports, but again arguing not for any statutory exception to the hearsay rule but for a due process or “catchall” exception. The court adhered to its earlier ruling, stating as well that it did not consider the evidence entirely reliable. Marjorie McCrary, owner of the Mar Mac Manor, testified for the defense that she kept records of rent, which was paid to her manager, in a diary. The diary reflected that Miller had paid his $275 monthly rent on January 10, 1989, the day of his death. The entry did not say what time the rent was paid or whether it was in cash or by money order, but McCrary remembered that Miller always paid cash. Just before McCrary testified, addressing “records we’ll be seeking to use,” defense counsel showed the court and prosecutor that, at the bottom of her diary entry regarding Miller, McCrary had written “murdered by a parolee shortly after paying rent on January 10th.” Counsel explained he had advised McCrary not to discuss that note during her testimony “pending any ruling you [the court] might make on it,” and that “[assuming that you find that that’s not appropriate, I would ask the Court might also advise her similarly.” The court then cautioned McCrary, out of the jury’s presence, not to volunteer anything about her note regarding Miller’s death. While the defense clearly made an offer of proof as to Prague’s testimony, the colloquy over McCrary’s testimony does not demonstrate the defense sought to introduce her note regarding Miller’s death or to elicit testimony to the same effect. Rather, it appears counsel (for obvious reasons) wanted to avoid McCrary saying that Miller was “murdered” by a “parolee” shortly after paying his rent. Counsel asked the court to caution McCrary not to discuss the note, and the court, without prosecutorial objection, did so. Defendant, by requesting exclusion rather than admission of the evidence, waived any appellate claim that the note, or testimony in accord with it, should have been admitted. (See Evid. Code, § 354.) Moreover, defense counsel did not suggest any statutory hearsay exception was applicable to either McCrary’s or Prague’s testimony. Defendant now asserts the statement in McCrary’s records was “arguably” within the business records exception (Evid. Code, § 1271) and the statement to Frogue “might be viewed” as an excited utterance (id., § 1240), but he provides no actual arguments for either assertion, even in response to the Attorney General’s detailed arguments to the contrary. The defense completely failed to establish at trial the foundational facts necessary for these exceptions, for example that McCrary’s note as to the agency, criminality, and time of her tenant’s death was made “in the regular course” of her boardinghouse business (id., § 1271, subd. (a)) or that Hamilton’s statement to Frogue was made spontaneously and while Hamilton was under the “stress of excitement” caused by perceiving the event narrated (id., § 1240, subd. (b)). The burden of producing evidence to establish these foundational facts fell to defendant as the proponent of the evidence, and in the absence of such foundational evidence, we will not assume error. (People v. Ramos (1997) 15 Cal.4th 1133, 1177-1178 [64 Cal.Rptr.2d 892, 938 P.2d 950].) Although California appellate courts have the authority to recognize nonstatutory exceptions to the hearsay rule, we do so cautiously in light of the venerable policy against admitting declarations by witnesses who cannot be cross-examined. (People v. Ayala (2000) 23 Cal.4th 225, 268 [96 Cal.Rptr.2d 682, 1 P.3d 3].) Whether or not an exception for “critical reliable evidence” in capital cases might deserve recognition, this case does not present a suitable occasion because the evidence at issue was neither critical nor entirely reliable. The jury heard that on January 10, 1989, Miller withdrew $340 from his bank account, paid his $275 rent, ate dinner at a restaurant, and had about $35 on his person when he died. Consistent with this, the jury also heard that the investigating detective had concluded the more than $1,000 in cash found on defendant when he was arrested came largely or wholly from Wissel. Defendant argues the tes