Full opinion text
Opinion CHIN, J. A jury convicted defendant Alfredo Valencia of the first degree murder of Roberto Cruz under the special circumstance of robbery murder and with personal use of a knife. (Pen. Code, §§ 187, 190.2, subd. (a)(17), 12022, subd. (b).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase During the evening of December 15, 1993, defendant stabbed Roberto Cruz to death in Cruz’s red Camaro. This is undisputed. The prosecution theory at trial was that defendant murdered Cruz while robbing him of money Cruz had obtained earlier that day when he cashed a paycheck. The defense theory at trial was that defendant did not rob Cruz and that, due to the ingestion of methamphetamine, he acted in “imperfect self-defense”; he killed Cruz in the actual but unreasonable belief he had to do so in self-defense. (See In re Christian S. (1994) 7 Cal.4th 768 [30 Cal.Rptr.2d 33, 872 P.2d 574].) 1. Prosecution Evidence Ana Mendoza testified that she worked at 825 North Cypress, an industrial complex in Orange, California. On December 15, 1993, around 9:30 to 9:40 p.m., while she was arriving at work, a man wearing black shorts, a cap, and a black jacket approached her car and said something in English. The man appeared normal, and Mendoza could not see him carrying anything. He pointed to a nearby red car. Mendoza, who does not speak English, could not understand what he said. The man then left. Although Mendoza could not identify anyone as the man she encountered, other evidence showed that he was defendant, and he had just stabbed Cruz in the red car. In the early morning hours of December 16, 1993, the police were called to the same industrial complex. They arrived around 1:45 a.m. and observed Cruz’s body in the driver’s seat of a red Camaro. The back of the driver’s seat was broken and swiveled to the right. The seatbelt was wrapped around Cruz’s neck and then went down between his feet. Cruz’s head and left shoulder were on the rear seat, with his legs and knees on the floorboard. Cruz had bled to death from multiple knife wounds to his chest, left leg, and neck. One of the wounds entered his heart. He also had defensive wounds on his hands and arms. The Camaro’s keys were in the ignition, and a “for sale” sign was displayed on the front passenger’s side window. The interior of the car was in disarray. Blood was found throughout the interior, including on the victim’s clothes. A knife with a three-inch blade was found on the floor. It had belonged to one of defendant’s neighbors, whose house defendant frequently visited. The knife could have inflicted the wounds. A wallet, containing the victim’s identification and $52, was found under the body. The bulb from the car’s dome light was on the rear right floorboard. Defendant’s left thumbprint was on the bulb. It had been left after the thumb had come into contact with blood. On the rear floor was a pair of bloodstained blue jeans containing a watch with “Fred” and “Big C” scratched on it and a set of keys that opened the garage door of defendant’s home. Cruz had worked at McKibbon Screenprinting. December 15, 1993, was a payday. Company records showed that Cruz worked until 3:34 p.m. that day and received a payroll check for $686.46. Bank records showed that Cruz cashed the check at 4:10 the same afternoon. Cruz received cash and did not deposit the money into his account. The balance in his account at that time was $38. Guillermo Padilla, Cruz’s neighbor, who lived on Oak Street in Orange, testified that Cruz owned a red Camaro. Between 8:15 and 8:45 the evening that Cruz was killed, Padilla observed Cruz working on the car. Defendant, known to Padilla as “Chino,” was with Cruz. Padilla had seen defendant in the neighborhood several times previously. Norma Pulido lived with Cruz and others in an apartment on North Oak Street in Orange. She testified that Cruz owned a red Camaro like the one in which his body was found. He also always carried a blue backpack to and from work and routinely wore a pair of gloves. On December 15, 1993, she observed Cruz working on his car between 7:00 and 9:00 p.m. She saw him again in his bedroom writing around 9:30 p.m. That was the last time she saw him alive. She never saw Cruz’s backpack or a large amount of money after that night. On the seat of the red Camaro, the police found a pair of gloves matching the description Pulido gave of the gloves Cruz wore. They never found the backpack or a large sum of money despite searching the car, Cruz’s home, and defendant’s home. A search of Cruz’s room uncovered no documents or anything else indicating that Cruz had spent the money from the payroll check. Defendant and Cruz lived about two-tenths of a mile from each other and approximately a mile and a half from where Cruz’s body was found. Cruz was 22 years old when he died, was five feet six inches tall, and weighed 144 pounds. After his death, his blood was examined and found to contain no alcohol, marijuana, or other drugs. A sample of defendant’s blood was drawn at 10:40 p.m. on December 16, 1993. It contained 240 nanograms of methamphetamine per milliliter. Defendant was arrested in this matter at 3:10 p.m. on December 16, 1993. Detective Jorge De Souza of the Orange Police Department and another detective spoke with him beginning at 5:27 p.m. A long and rambling tape-recorded interview ensued. During the interview, Detective De Souza observed no unusual or bizarre behavior on defendant’s part. Defendant was uninjured. After waiving his constitutional rights and agreeing to talk to the police, defendant said he knew the victim. He did not know his name but knew he lived on Oak Street. He called him “Paisan,” which was like a “border brother” or someone who came from a ranch. Defendant was with Cruz the night Cruz died because he was interested in buying Cruz’s car. Cruz was asking $700 for it. At one point, defendant said that he and Cruz had “smoked a joint.” Later, he said he had smoked one or two joints but took nothing else. He specifically said he did not “do speed” that night. While being interviewed, defendant said he was missing his wallet, the key to his garage door, and his watch. Detective De Souza told him they had found the key and watch, although not the wallet, inside a pair of pants. Defendant said the pants found in the car were his and identified the watch and keys as his. He said that the “Big C” scratched on the watch stood for Chino. At first, he denied knowing anything about a backpack. Later, he said that “Octavio,” an acquaintance, might have had a backpack in his car, although he did not know where it was at the time of the interview. Still later, he again denied knowledge of a backpack. Defendant admitted driving with Cruz in Cruz’s car that evening but at first denied stabbing him. Later, after the police confronted him with some of the evidence, he admitted the stabbing, although even after that he would sometimes deny it. He agreed that he was uninjured and stated that no one had attacked him the night before, and he had had no need to defend himself. He said he stabbed Cruz while the two were alone in Cruz’s car. When asked why he stabbed Cruz, defendant gave varying accounts. He said that Cruz was a “queer man” and a “faggot” and he, defendant, “got hypnotized.” He said, “The queer is dead.” Later he said that Cruz “tried to kill me . . . and I killed him.” He also said that he used “the knife that he tried to kill me with.” When asked how many times he stabbed Cruz, defendant responded that he did not know. “I just went off.” He also said, “I killed him [because] we got to survive.” At first defendant said that Cruz had produced the knife, but then he said that he had brought it himself. He said he got the knife from a house near “Orangegrove and Handy” (presumably defendant’s neighbor whose house defendant frequently visited). He said, “I’ve been hypnotized now ... to kill and that was my first victim last night.” He also said that “there was some .. . girl had the light the video light right there on the street.” She was “shooting a video.” He denied taking Cruz’s wallet or any other property. He also said “we have to take our stand in America . . . [a] gainst the dope pushers against the fags against the diseases.” That, he said, was what he had done the night before. Defendant said he talked to a woman on Cypress (presumably Ana Mendoza). At that point, he was running from someone “who was attacking me.” “I was running for my life.” He knocked on the woman’s car window and asked for a ride. She said no, so he “took off.” He left in his shorts, leaving his pants behind. The pants were covered with Cruz’s blood. Defendant reiterated that he had stabbed Cruz, but at this point said he did not know why. He said there had been no sex act between him and Cruz, and that one was not going to happen. When asked why he called Cruz a “queer,” defendant replied it was because “he was gonna attack me.” Defendant said he had brought the knife with him to stab Cruz, but he had no plan. He did it just “[b]y impulse.” When asked how it could just be an impulse, he responded that he did not know because “it was telling me to do it.” Voices were telling him to do it. Towards the end of the interview, defendant summarized what had happened. He possessed the knife intending to stab or kill Cruz. He got into the car with Cruz and they drove to Cypress Street, where he stabbed Cruz. He took off his pants because they were bloody, and left wearing his jogging shorts. At this point, defendant said that Cruz “didn’t attack me.” He agreed that Cruz did not do anything to him. He said he stabbed Cruz “to survive,” and it was his “duty.” 2. Defense Evidence Defendant presented evidence suggesting that Cruz might have sent the money from his paycheck to his family in Mexico and suggesting other reasons the money might have disappeared. He also presented evidence that Cruz did not routinely carry the backpack. Max Schneider, an expert on chemical dependency, testified regarding the effect methamphetamine use might have on a person. Among other things, it can cause paranoia. Defendant presented evidence that he had often used heroin and methamphetamine. Several witnesses testified regarding defendant’s strange behavior during the time period leading up to Cruz’s killing. Jerry Valencia, defendant’s brother, testified that the night of the killing, defendant and he smoked a joint of marijuana and drank beer with Cruz. Jerry did not see Cruz smoke marijuana. B. Penalty Phase 1. Prosecution Evidence The prosecution presented evidence that defendant committed the following crimes, some of which resulted in felony convictions. On December 20, 1978, defendant and others kicked in an apartment door in Orange, robbed three men of their wallets at gunpoint, and hit one of the victims in the head with a gun. Defendant confessed to his involvement. He said he took the wallets but did not personally hit anyone or kick in the door. On March 9, 1979, defendant and three or four others assaulted two men in Orange who were sitting in one of the victim’s 1965 Mustang. They stole a paycheck and the car. For this incident, defendant was convicted of aggravated assault. On June 29, 1981, defendant, wielding a gun, robbed a man who was standing at a bar bathroom urinal in Santa Ana of money from his wallet. On September 3, 1982, defendant robbed a gas station attendant at gunpoint in Fullerton, taking over $1,000 from a safe. For this incident, defendant was convicted of robbery with use of a firearm. On September 22, 1982, defendant robbed a man and a woman at gunpoint in a liquor store in Garden Grove. He took about $300 to $500 from a cash register. For this incident, defendant was convicted of robbery with use of a firearm. On September 23, 1982, defendant robbed a gas station attendant in Garden Grove at gunpoint of more than $100. On September 26, 1982, defendant robbed a grocery store clerk in Anaheim. As he was leaving the area, he threatened to kill or shoot a man who had witnessed the crime. For this incident, defendant was convicted of robbery. On September 27, 1982, defendant robbed a gas station attendant in Anaheim at gunpoint of around $500. For this incident, defendant was convicted of robbery with use of a firearm. On October 1, 1982, defendant robbed a gas station attendant in Anaheim at gunpoint of around $200. For this incident, defendant was convicted of robbery with use of a firearm. On October 2, 1982, defendant robbed a liquor store manager in Orange at gunpoint of around $500. For this incident, defendant was convicted of robbery with use of a firearm. On October 9, 1982, defendant robbed a gas station attendant in Anaheim at gunpoint of around $600. For this incident, defendant was convicted of robbery with use of a firearm. On October 21, 1982, defendant robbed a clerk at a 7-Eleven store in Orange at gunpoint of money from a cash register. Defendant was convicted of robbing Kenneth Eckman on October 29, 1982. Defendant was convicted of grand theft from the person committed on ■ August 7, 1988. On August 13, 1988, defendant assaulted two men in a residential hotel with an aluminum baseball bat, injuring both men. On August 25, 1988, defendant robbed a man in Santa Ana at knifepoint of money and stole his car. On October 9, 1991, defendant, holding a baseball bat, and another person, holding a gun, approached a man in a truck in Santa Ana and forced him to drive to a nearby house, where they robbed him of his wallet, which contained $252. Roberto Cruz’s parents, Juana and Martin Cruz, testified about their son and his background, and the impact his death had on them. 2. Defense Evidence Defendant presented evidence in mitigation from many lay witnesses and one expert. As defendant summarizes in his appellate brief, “the layperson testimony ranged from generalized testimony from [defendant’s] Little League coach, neighbors, young niece and nephew and brother-in-law regarding his good natured demeanor, team spirit, generosity and love for others to testimony from his family and former girlfriend regarding his descent into drug addiction. [Defendant’s] mother, sister and brother provided additional details to supplement their guilt phase testimony regarding [defendant’s] mental deterioration after he became addicted to methamphetamine. The Valencia family members also described their painful recollections of physical abuse inflicted upon them, and [defendant], by [defendant’s] father.” Dr. George Woods, a psychiatrist specializing in chemical dependency treatment and forensic psychiatry, testified generally regarding defendant’s drug addiction. In Dr. Woods’s professional opinion, defendant “was suffering from an amphetamine psychosis at the time of the crime.” II. Discussion A. Guilt Issues 1. Alleged Prosecutorial Misconduct Defendant contends the prosecutor engaged in prejudicial misconduct “from the starting gate to the finish line” of the trial. He first contends that the prosecutor improperly “cast[] aspersions upon defense counsel and witnesses.” The first act allegedly doing so occurred during jury voir dire. In questioning the prospective jurors about the death penalty, defense counsel stated, “The law says you do not have to return a verdict for the death penalty unless you feel that that’s necessary and appropriate.” The prosecutor objected that the statement misstated the law. The court overruled the objection even though it noted that the statement “wasn’t exactly precise.” Later, when it was the prosecutor’s turn to question the jurors, he said, “I’m not saying Mr. Chaparro [defense counsel] would intentionally misstate anything, but obviously his view of the facts and his view of the law differs from mine or we wouldn’t be here. . . . Mr. Chaparro, and maybe mistakenly, said it’s up to you to determine whether or not the death penalty is necessary and appropriate. That’s not what the law says. The law says in weighing the various circumstances, you determine under the relevant evidence which penalty is justified and appropriate. Which penalty is justified. Not necessary. It’s never necessary to execute anyone. We would never be able to prove it’s necessary to impose the death penalty. The question is whether that penalty is justified under the evidence, whether the aggravating factors substantially outweigh the mitigating factors so that the appropriate penalty is the death penalty.” Defense counsel objected that the statement “does misstate—it’s incomplete.” The court overruled the objection. Defendant contends that the prosecutor “cleverly engaged in the ‘rhetorical device’ of ‘paraleipsis’—stating one thing but ‘suggesting exactly the opposite’ ... to plant the first suggestion that defense counsel would be deceptive.” (See People v. Wrest (1992) 3 Cal.4th 1088, 1107 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) However, he did not object on that basis at trial. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2].) Defendant’s only objection to these comments was that the prosecutor misstated the law. Accordingly, only that objection is cognizable on appeal. Defendant does not now argue that the prosecutor misstated the applicable law. In fact, the prosecutor’s statement of the law was more accurate than defense counsel’s. (See People v. Brown (1985) 40 Cal.3d 512, 541-544 [230 Cal.Rptr. 834, 726 P.2d 516].) As the prosecutor properly noted, no requirement exists that the death penalty be “necessary.” Even if the issue regarding paraleipsis were cognizable, in the context in which the prosecutor’s comments arose, we see no impropriety. It was appropriate for the prosecutor to correct defense counsel’s inaccurate description of the law while emphasizing he was not accusing counsel of being deliberately deceptive. Next, defendant complains that, during the direct examination of a prosecution witness, the prosecutor stated in front of the jury, “Your honor, I had one other area I wanted to go in, but I think the defense wants a 402 hearing before I ask the questions.” Defense counsel asked to approach the bench, and a conference outside the jury’s presence ensued. Defense counsel objected that the prosecutor’s reference to a “402 hearing” was “basically telling the jurors that he wants to put in some evidence but the defense is trying to keep it out. That’s improper, that’s unethical.” He moved for a mistrial. The court denied a mistrial but instructed the attorneys “not to indicate that one party or the other is objecting to the next line of questioning.” The prosecutor agreed not to do so in future. He also explained that he made the comment because defense counsel had told him he would object to certain evidence and would want the hearing. He had decided not to ask questions and elicit an objection but instead to explain to the court that a hearing would be needed before he could continue. The court and parties then held the hearing that defense counsel had wanted. Defendant argues that using the term “402 hearing”—obviously a reference to Evidence Code section 402, which provides for a hearing outside the jury’s presence on the admissibility of evidence—was another example of the prosecutor’s denigrating defense counsel. We disagree. As the prosecutor noted, it is unlikely the jurors knew what a “402 hearing” was. Additionally, what the prosecutor said was accurate, for defense counsel did want a hearing, and the comment cast no aspersions on defense counsel. It is not, and should not be, a secret to juries that rules exist for the presentation of evidence, and that parties sometimes object to the admission of evidence. If the prosecutor had simply asked the questions and defense counsel had objected, the jury would have known defendant was trying to exclude evidence. The reverse occurs when the defense asks questions and the prosecutor objects. This process is not inherently prejudicial. The prosecutor did not again suggest that the defense would be objecting to evidence after the court instructed him not to do so. We see no misconduct. Defendant next complains of some of the prosecutor’s cross-examination of defense witnesses, especially of defendant’s siblings. The prosecutor questioned some of these witnesses in detail regarding how many times they had spoken with members of the defense team. Defendant complains that this cross-examination “improperly created the illusion that the defense had scripted and rehearsed their witnesses and that the witnesses had as a result fabricated new information for their testimony.” The Attorney General argues that some of the current complaints are not cognizable on appeal because defendant did not object at trial. We disagree. After reading the entire record, we believe defendant adequately objected to the comments on the ground asserted on appeal. But we also see no misconduct. The prosecutor asked legitimate questions going to the witnesses’ credibility. As he did at trial, defendant complains that asking about conversations is different from asking about substantive interviews regarding the case. He claims that the prosecutor’s “strategy intentionally blurred the distinctions between contacts during which the witness’s personal testimony was discussed, and contacts that were nothing more than a reminder call about an appointment or court appearance.” However, as the trial court repeatedly noted in response to the argument at trial, this is what redirect examination is for. If one party believes that questions on cross-examination leave the jury with an incorrect impression, it can ask clarifying questions on redirect examination. In the same way, if an attorney believes questions on direct examination may have been incomplete or misleading, the attorney can explore the topic on cross-examination. That process occurred here. On redirect examination, defense counsel questioned the witnesses further about the nature of their conversations with the defense team. Defendant asserts that the trial court “barred defense counsel from using redirect examination to clarify the nature of each contact with the challenged witnesses,” but the record does not support the assertion. We have examined all of defendant’s specific complaints regarding the prosecutor’s cross-examination of the witnesses and find no impropriety. Sometimes the prosecutor cross-examined witnesses vigorously, but the trial court maintained control and permitted defendant to ask clarifying questions on redirect examination. Defendant contends the prosecutor committed misconduct during his guilt phase argument to the jury. First, he complains that the prosecutor continued to cast aspersions on defense counsel and witnesses. Essentially, he complains that the prosecutor argued, over objection, that the number of times the witnesses spoke with members of the defense team meant that the witnesses must have been coached. We have reviewed the comments complained of and see no impropriety. The prosecutor was entitled to argue his interpretation of the evidence, just as defendant was entitled to argue his interpretation of that same evidence. “[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the deductions are illogical because these are matters for the jury to determine. [Citation.] The prosecutor may not, however, argue facts or inferences not based on the evidence presented.” (People v. Lewis (1990) 50 Cal.3d 262, 283 [266 Cal.Rptr. 834, 786 P.2d 892]; see also People v. Cash (2002) 28 Cal.4th 703, 732 [122 Cal.Rptr.2d 545, 50 P.3d 332].) The comments complained of come within this wide range of permissible argument. Defendant also complains that the prosecutor stated at one point that the defendant “has had a fair trial. He has had two competent attorneys who were representing him. They were entitled to present any witnesses they wanted over the course of the last month.” Defendant objected and later moved for a mistrial due to these comments. The court overruled the objection and denied the mistrial motion. As he did at trial, defendant argues the argument was incorrect because the defense was not allowed to present any witnesses they wanted due to certain evidentiary rulings. Although the prosecutor’s statement was not literally correct, its significant gist—that defendant had received a fair trial represented by competent counsel who were allowed to present their case—was correct. Reasonably implicit in the statement was that the defense was entitled to present any witnesses it wanted consistent with the rules of evidence. The jury was not misled in any significant way that prejudiced defendant. On another occasion, over objection, the prosecutor argued that “it seems like the mental defense that they’re using is either intoxication, that he was under the influence of methamphetamine, which they haven’t really shown us, or, number two, that he was paranoid, that he had some type of mental disease, mental defect, or mental disorder, which, again, they haven’t shown us.” Defendant claims that this argument misstated the evidence. He notes that the evidence showed that blood drawn from him after his arrest tested positive for methamphetamine and thus claims there was evidence he was under the influence of methamphetamine. He also argues that other evidence supported the defense case. However, defendant was arrested some 17 hours or so after the killing. The evidence showed that he took methamphetamine sometime before he was arrested. But the prosecutor could at least argue that there was no evidence he was under the influence of methamphetamine at the time of the killing, which is what matters. Indeed, although defendant told the police that he smoked marijuana the night of the killing, he specifically denied using methamphetamine. The overall evidence was fully consistent with the prosecutor’s theory of the case, which was that defendant murdered Cruz to obtain money to support his drug habit, then used the money to buy and consume the methamphetamine that was in his system when arrested. Whether or not defendant had shown that he was under the influence of methamphetamine or was paranoid when he killed Cruz was certainly open to debate. The prosecutor was entitled to argue defendant had not shown these facts; defense counsel was entitled to argue the opposite. The comments came within the wide range of permissible discussion of the evidence. Defendant also contends the court erred in denying his new trial motion due to the alleged misconduct. We disagree. Because the prosecutor engaged in no misconduct, the court acted within its discretion in denying the new trial motion. (People v. Seaton (2001) 26 Cal.4th 598, 693 [110 Cal.Rptr.2d 441, 28 P.3d 175].) 2. Exclusion of Defense Evidence Defendant sought to elicit testimony from three witnesses that on the day he died, Cruz said that he wanted to have sex that night. Specifically, defense counsel offered testimony from defendant’s brother, Jerry Valencia, that Cruz used the Spanish word “cojer,” meaning “getting some,” i.e., sex; and from two of Cmz’s coworkers who would testify that at work that day Cmz said to them something like “esta noche come pancho,” which, defense counsel stated, meant “in the vernacular that this night he was going to score with a woman.” Defendant argued that the evidence was relevant to show that Cmz might have made similar comments to defendant before defendant stabbed him and that “if [defendant] was on methamphetamine or was on a methamphetamine psychosis, he could easily misinterpret the information given to him and react accordingly.” The evidence, defendant argued, “would tend to prove circumstantially that [defendant] possibly misunderstood Roberto Cmz’s statement and that’s why he panicked and that’s why the killing occurred.” He also argued the testimony from Jerry Valencia was relevant to rebut suggestions the prosecutor made in cross-examination that the witness had not spoken with Cmz. The prosecutor objected on hearsay grounds and on the ground that the evidence was more prejudicial than probative under Evidence Code section 352. After hearing arguments from both sides and reviewing a trial brief defendant submitted on the question, the court sustained the objection. Defendant contends the court erred in excluding the evidence. He argues it was admissible for a nonhearsay purpose—as circumstantial evidence that Cmz made similar comments to him later that same day—or under the state-of-mind exception to the hearsay rule. (Evid. Code, § 1250.) We may assume for present purposes that the hearsay rule did not preclude admission of this evidence, for the court had discretion to exclude the evidence for another reason. Its prejudicial effect substantially outweighed its probative value. “In general, the trial court is vested with wide discretion in determining relevance and in weighing the prejudicial effect of proffered evidence against its probative value. Its rulings will not be overturned on appeal in the absence of an abuse of that discretion. [Citations.] This discretion is not, however, unlimited, especially when its exercise hampers the ability of the defense to present evidence.” (People v. Cooper (1991) 53 Cal.3d 771, 816 [281 Cal.Rptr. 90, 809 P.2d 865].) We see no abuse of discretion in this case. In light of the rest of the evidence, admitting this evidence could have confused the jury regarding how to consider it. Neither defendant’s statement to the police nor other evidence supported the inference defendant urged at trial. Defense counsel’s offer of proof said that Cruz was interested in sex with a woman, not with a man. Although defendant occasionally said to the police that Cruz was a “queer” or a “fag,” he never said that Cruz had made any sexual overtures towards him or that he stabbed Cruz in response to any such overtures. Indeed, he specifically denied that any sex act had occurred between himself and Cruz and said one was not going to happen. Defense counsel argued that the evidence would circumstantially prove that defendant may have “misunderstood Roberto Cruz’s statement,” but defendant never claimed to the police that Cruz had made any statement regarding sex that he could have misunderstood. Additionally, although one who kills in the unreasonable but actual belief in the need for self-defense is guilty of manslaughter rather than murder (People v. Blakeley (2000) 23 Cal.4th 82, 92 [96 Cal.Rptr.2d 451, 999 P.2d 675]), the belief must be in the need to defend against imminent danger “to life or great bodily injury.” (In re Christian S., supra, 7 Cal.4th at p. 783; see People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [56 Cal.Rptr.2d 142, 921 P.2d 1].) Defendant did not testify at trial, choosing instead to rely on his statement to the police and other evidence. But his statement said little suggesting he believed he had to stab Cruz to death to defend against imminent death or great bodily injury. More importantly regarding the issue here, mere sexual overtures would not alone suffice to support a perfect or imperfect self-defense claim. Under the circumstances, the trial court had discretion to conclude that the prejudicial effect of the proffered evidence—primarily by confusing the issues—substantially outweighed any probative value it may have had. We see no error. 3. Jury Instructions Defendant contends the court made several instructional errors. First, defendant contends the court erred in instructing the jury on perfect as well as imperfect self-defense. His theory at trial was that he killed Cruz in the unreasonable belief he had to do so in self-defense. This theory is called “imperfect self-defense,” which makes the crime manslaughter because in that situation the defendant is deemed to have acted without malice. (In re Christian S., supra, 7 Cal.4th at p. 771.) Because defendant did not claim his belief was reasonable, he did not assert perfect self-defense, which would have been completely exonerating. For this reason, he asked the trial court to instruct the jury on imperfect but not perfect self-defense. After considerable discussion among the court and parties as to how the court should do this, the court ultimately instructed the jury on the elements of both perfect and imperfect self-defense. It also explained the difference between the two theories. The instructions included that a “person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation, seeing and knowing the same facts, would not have had the same belief Such an actual but unreasonable belief is not a defense to the crime of voluntary or involuntary manslaughter.” (Italics added.) Later, the court explained, “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him.” It went on to explain when and how much force a person may use in such circumstances. After reading all of the instructions, the court reiterated the difference between perfect and imperfect self-defense. It explained that “[i]t is lawful for a person who is assaulted by deadly force or by force likely to inflict great bodily injury to defend himself by the use of deadly force. If a jury finds that this instruction applies, then the taking of life is lawful or justifiable.” It explained which of the written instructions the jury would receive governed “this type of self-defense.” It then said, “there is a second type of self-defense. Actual but unreasonable belief self-defense.” It explained which of the written instructions governed this second type of self-defense. It went on to state, “If a jury finds that this instruction applies, the taking of life is deemed unlawful; however, since malice aforethought is negated, the unlawful killing cannot be murder. That’s the distinction between those two types of self-defense.” It pointed to differences in the written instructions between the two types of self-defense, and specifically noted that perfect self-defense used a reasonable person standard and imperfect self-defense involved an “unreasonable belief.” It also explained, “By making this effort to clarify this area, I am not trying to highlight the instructions or to tell you that these instructions are applicable or not applicable. It is for you, the jury, to determine the facts and apply the appropriate laws.” Defendant claims the court should not have said anything to the jury regarding perfect self-defense because he was not relying on this theory and no evidence supported it. He notes that “ ‘[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case’ ” (quoting People v. Guiton (1993) 4 Cal.4th 1116, 1129 [17 Cal.Rptr.2d 365, 847 P.2d 45]), and asserts the jury might have “misunders[tood] the combined instructions as requiring a finding that [his] actions would have been lawful under standards of objective reasonableness before they could accept his theory of defense against first degree malice murder—i.e., his honest but unreasonable belief in his need to exercise self-defense.” We disagree. The concepts of perfect and imperfect self-defense are not entirely separate, but are intertwined. We have explained that “the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical attack or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified. [Citations.] It follows, a fortiori, that the imperfect self-defense doctrine cannot be invoked in such circumstances.” (In re Christian S., supra, 7 Cal.4th at p. 773, fn. 1.) As applied to this case, this means that if defendant had first assaulted Cruz, then unreasonably believed Cruz was assaulting him, a claim of imperfect self-defense would be unavailable because a claim of perfect self-defense would have been unavailable had the belief been reasonable. To make the observation in In re Christian S. more general, not every unreasonable belief will support a claim of imperfect self-defense but only one that, if reasonable, would support a claim of perfect self-defense. The trial court reasonably concluded that instructing the jury on perfect self-defense would help it to understand fully the law of imperfect self-defense. Thus, even if the evidence did not support a finding of perfect self-defense, instructing the jury on both theories was appropriate as long as the court made sure the jury was aware of the differences between the two theories, as it did. We see no error. The trial court instructed the jury on both premeditated first degree murder and first degree felony murder. Defendant contends the court erred in not requiring the jury to agree unanimously which of these theories applies. We disagree. (See People v. Morgan (2007) 42 Cal.4th 593, 617 [67 Cal.Rptr.3d 753, 170 P.3d 129]; People v. Nakahara (2003) 30 Cal.4th 705, 712-713 [134 Cal.Rptr.2d 223, 68 P.3d 1190].) Moreover, the jury found true the robbery-murder special circumstance, showing that it unanimously agreed he was guilty of first degree murder on at least a felony-murder theory. (People v. Seaton, supra, 26 Cal.4th at p. 671.) Defendant contends the court erred in instructing the jury on first degree murder because the information charged him only with malice murder under section 187. We disagree. (People v. Morgan, supra, 42 Cal.4th at p. 616.) The information in this case alleged that the murder was committed under the special circumstance of murder in the course of a robbery, thus providing notice that the prosecutor would proceed under a felony-murder theory. (Id. at pp. 616-617.) 4. Sufficiency of the Evidence Defendant contends the evidence was insufficient to support a first degree murder verdict on either a felony-murder or a premeditation theory and the robbery-murder special circumstance. As we explain, the evidence supports the felony-murder theory and the robbery special circumstance. The special circumstance finding shows the jury relied at least on a felony-murder theory in finding defendant guilty of first degree murder. Accordingly, we need not consider whether the evidence would also support a finding of premeditation. (See People v. Kelly (2007) 42 Cal.4th 763, 789 [68 Cal.Rptr.3d 531, 171 P.3d 548]; People v. Guiton, supra, 4 Cal.4th at p. 1130.) The applicable law is settled. As we explained in a recent case also involving a challenge to the sufficiency of the evidence to support a robbery-felony-murder conviction and related special circumstance finding, “ ‘ “To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rationale trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citations.] ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ [Citations.] The standard of review is the same when the prosecution relies mainly on circumstantial evidence. [Citation.]” (People v. Valdez (2004) 32 Cal.4th 73, 104 [8 Cal.Rptr.3d 271, 82 P.3d 296].) The same standard of review applies to the special circumstance finding. (Id. at p. 105.) Whether defendant killed Cruz with the intent to rob him or due to a drug-induced paranoia was a hotly contested issue at trial, indeed, essentially the only contested guilt issue. But the evidence supports the jury’s resolution of this issue. A mere few hours before defendant stabbed him to death, Cruz cashed a payroll check for almost $700, receiving cash that he did not deposit into his account. The money was never found. Norma Pulido, a woman who lived with Cruz, testified that he always carried a backpack to and from work and routinely wore a pair of gloves. The gloves were found in the car after the stabbing, but the backpack was never located. A backpack would not normally simply disappear. Defendant took with him into Cruz’s car a knife he had taken from a neighbor, suggesting his actions were planned and not, as he claimed at trial, caused by a sudden belief he had to kill. If, as the evidence suggests, his actions were planned, robbery was the most likely purpose. “Murders are commonly committed to obtain money or other property.” (People v. Horning (2004) 34 Cal.4th 871, 903 [22 Cal.Rptr.3d 305, 102 P.3d 228].) In his rambling statement to the police, defendant clearly was trying to minimize his culpability as much as possible consistent with the evidence. At first he denied stabbing Cruz, then he admitted it. At first he claimed Cruz produced the knife, then he admitted he brought it from a neighbor’s house (as other evidence showed). At times he claimed Cruz had attacked him, at other times he admitted Cruz had not done so. Ultimately, he admitted he possessed the knife intending to stab or kill Cruz, although he also said he had no plan and stabbed Cruz “[b]y impulse.” He consistently denied taking any of Cruz’s property, but eventually he said that an acquaintance, “Octavio,” might have had a backpack in his car. He also specifically denied using methamphetamine before the killing, although he said he smoked some marijuana. Defendant was uninjured at the time of the interview and, as far as the police could tell, acting normally. This evidence supports the prosecution’s theory that defendant robbed and killed Cruz to support his drug habit, then used the money to buy and consume the methamphetamine that was found in his system after his arrest. A reasonable jury, considering this same evidence, could reject defendant’s explanation at trial as unreasonable. It was not required to believe defendant’s claim to the police that he had not taken any of Cruz’s property. Defendant argues the habit evidence alone—here, the evidence that Cruz habitually carried the backpack—would not support a robbery finding. But it was not the sole evidence. For example, the evidence that Cruz received several hundred dollars in cash a few hours before defendant killed him, money that was never found, was not habit evidence. The evidence that Cruz habitually carried a backpack was probative (see People v. Webb (1993) 6 Cal.4th 494, 529 [24 Cal.Rptr.2d 779, 862 P.2d 779]) in light of the additional evidence that the backpack was never seen again after the killing. Defendant also argues the trial court erred in not granting his motion, pursuant to section 1118.1, to dismiss the special circumstance allegation at the end of the prosecution case. The argument fails for the same reason his primary sufficiency-of-the-evidence argument fails. The evidence was sufficient to permit a reasonable jury to find that defendant stabbed Cruz to death in the course of robbing him. B. Penalty Issues 1. Admission of Preliminary Hearing Testimony The prosecution presented evidence showing that on October 9, 1991, defendant, holding a baseball bat, and Vincent Valdez, holding a gun, forced Heman Sanchez to drive his truck to a nearby house, where they robbed him of his wallet. Over objection, the court ruled that Sanchez was unavailable to testify and admitted his testimony to this effect, given at the preliminary hearing on the felony charges arising from the 1991 incident. In addition to Sanchez’s preliminary hearing testimony, the arresting officer for the 1991 incident testified in the instant trial that he had found defendant, appearing “shocked and . . . sweating,” in one of the back rooms of the house, and found Valdez hiding in the bathroom. The officer also found a baseball bat in one of the bedrooms. The officer testified that Sanchez had identified defendant as one of his assailants. Defendant contends that, for several reasons, the court erred in admitting Sanchez’s preliminary hearing testimony. We disagree. “A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must ‘have made a good-faith effort to obtain his presence at trial.’ ” (People v. Smith (2003) 30 Cal.4th 581, 609 [134 Cal.Rptr.2d 1, 68 P.3d 302], quoting Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 88 S.Ct. 1318].) California law and federal constitutional requirements are the same in this regard. (People v. Smith, supra, at p. 609.) Moreover, for the prior testimony to be admissible, the defendant must have had the opportunity to cross-examine the witness at that hearing with an interest and motive similar to that which defendant has at the hearing at which the testimony is admitted. (Evid. Code, § 1291, subd. (a)(2); People v. Smith, supra, at p. 611.) “The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable.” (People v. Smith, supra, at p. 609.) Defendant contends the court incorrectly found Sanchez was unavailable to testify. The court held a hearing outside the presence of the jury regarding the efforts the prosecution made to, find Sanchez. John Santy, an investigator for the district attorney’s office, testified that he began trying to locate Sanchez in August 1994. He called the telephone number that Sanchez had given in the police report regarding the incident, but the number had been reissued. He attempted to get a new telephone number for him through the telephone company but did not succeed. He also tried to get a new telephone number for Sanchez’s address but did not succeed. He went to the home address Sanchez had given, but Sanchez no longer lived there. He checked with the Department of Motor Vehicles (DMV), using the driver’s license number Sanchez had given. The driver’s license number was correct, and he obtained an address for Sanchez at two different apartments at the same street address. He went to both apartments, but Sanchez no longer lived at either one. He spoke with five or six persons who lived in the apartments but received no leads. He received no information from the DMV regarding any vehicles Sanchez owned and no other relevant information. Using Sanchez’s name and date of birth, he ran a “CII rap sheet” on him but found nothing. He also “ran a check through TRW,” i.e., checked Sanchez’s credit information, and checked various real estate holdings and information but found nothing. He also “ran through civil and public court proceedings” to see if Sanchez had any cases in court but found nothing. He rechecked these various sources of information the morning of his testimony in July 1995 but received no new information. After the hearing, the court determined that the prosecution had used due diligence in trying to find Sanchez. When, as here, the relevant facts are undisputed, we review this determination independently. (People v. Cromer (2001) 24 Cal.4th 889, 901 [103 Cal.Rptr.2d 23, 15 P.3d 243].) After independent review, we agree with the trial court that the prosecution satisfied its burden of showing due diligence. The term “due diligence” “ ‘connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.’ ” (Id. at p. 904.) “Relevant considerations include ‘ “whether the search was timely begun” ’ [citation], the importance of the witness’s testimony [citation], and whether leads were competently explored [citation].” (Ibid.) The investigator began his efforts to locate Sanchez several months before trial. Although Sanchez’s testimony was critical to establish this prior crime, his testimony was not particularly important to the trial as a whole. Defendant’s crime against Sanchez was only one of many prior crimes the prosecution presented at the penalty phase, many accompanied by felony convictions. Investigator Santy competently explored his leads. During cross-examination of the investigator, and in argument to the trial court and to this court, defendant has suggested other things the prosecution might have done. But these suggestions do “not change our conclusion that the prosecution exercised reasonable diligence. ‘That additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion. [Citation.] It is enough that the People used reasonable efforts to locate the witness.’ (People v. Cummings (1993) 4 Cal.4th 1233, 1298 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Thus, the trial court did not err in determining that [Sanchez] was ‘unavailable as a witness.’ (Evid. Code, § 240.)” (People v. Wilson (2005) 36 Cal.4th 309, 342 [30 Cal.Rptr.3d 513, 114 P.3d 758].) Defendant also argues that he did not have adequate opportunity to cross-examine Sanchez at the preliminary hearing. The record shows that after Sanchez testified, an investigator for Valdez (defendant’s cohort, according to Sanchez) uncovered evidence impeaching that testimony. Essentially, some witnesses impeached some of Sanchez’s testimony regarding his exact movements before defendant and Valdez confronted him and after the incident, and two persons, one a cousin of Valdez’s, impeached other parts of Sanchez’s testimony. This information suggested that Sanchez went to the house with a prostitute. After this information was uncovered, on the day trial for this crime was scheduled to commence, the charges were dismissed in the interest of justice on the district attorney’s motion. Defendant infers that the charges were dismissed due to the discovery of this information, but the record does not reflect the reason the district attorney moved to dismiss the charges. After hearing argument and reading Sanchez’s preliminary hearing testimony, the trial court ruled that defendant had had adequate opportunity to confront Sanchez at the preliminary hearing, and admitted the prior testimony. It also invited defendant to present his impeaching evidence, and defendant did so. Defendant argues that his cross-examination of Sanchez would have been different had the impeaching information been known at the time he testified. This circumstance does not render the prior testimony inadmissible. Preliminary hearing testimony is generally admissible to show a prior crime at the penalty phase of a capital crime. (People v. Smith, supra, 30 Cal.4th at pp. 624-625.) “Moreover, a defendant’s interest and motive at a second proceeding is not dissimilar to his interest at a first proceeding within the meaning of Evidence Code section 1291, subdivision (a)(2), simply because events occurring after the first proceeding might have led counsel to alter the nature and scope of cross-examination of the witness in certain particulars. (People v. Alcala (1992) 4 Cal.4th 742, 784 [15 Cal.Rptr.2d 432, 842 P.2d 1192].) The 1 “motives need not be identical, only ‘similar.’ ” ’ (People v. Samayoa[, supra,] 15 Cal.4th [at p.] 850.) ‘Both the United States Supreme Court and this court have concluded that “when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.” ’ (People v. Wilson[, supra,] 36 Cal.4th [at p.] 343 . . . ; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].)” (People v. Harris (2005) 37 Cal.4th 310, 333 [33 Cal.Rptr.3d 509, 118 P.3d 545].) Additionally, the fact the previous charges have been dismissed does not prevent their being proved at the penalty phase. (People v. Stitely (2005) 35 Cal.4th 514, 563 [26 Cal.Rptr.3d 1, 108 P.3d 182].) At the preliminary hearing, the court sustained a few objections on relevance grounds to defendant’s cross-examination of Sanchez concerning Sanchez’s actions after he left the house where, he said, he had been robbed. Defense counsel had argued he wanted to ask Sanchez regarding when and under what circumstances he had reported the crime to the police. Defendant argues, as he did at trial, that these rulings denied him an adequate opportunity to confront Sanchez. After reviewing the transcript of Sanchez’s testimony, the trial court found that defendant had received adequate opportunity to cross-examine Sanchez. We agree that these minor rulings at the preliminary hearing did not make the previous testimony inadmissible. We have recognized that in an extraordinary case, it might be “ ‘necessary to explore the character of the actual cross-examination to ensure that an adequate opportunity for full cross-examination had been afforded to the defendant.’ ” (People v. Wilson, supra, 36 Cal.4th at pp. 346-347, quoting Ohio v. Roberts (1980) 448 U.S. 56, 73, fn. 12 [65 L.Ed.2d 597, 100 S.Ct. 2531].) This is no such extraordinary case. The few relevance objections the court sustained did not deprive defendant of a reasonably full opportunity to cross-examine. Indeed, as the district attorney pointed out at trial, the attorney for codefendant Valdez had been permitted to ask Sanchez how long it was after he left the house before he called the police. Finally, defendant argues that all of these circumstances rendered the evidence of this incident too unreliable to be admissible. We disagree. As the district attorney noted in his argument to the jury, the subsequently discovered impeaching evidence that the defense presented at this trial may have shown that Sanchez went to the house to obtain the services of a prostitute, and that he changed some of the details of the actual events to hide this fact, but none of the impeaching evidence directly challenged the basic core of Sanchez’s testimony—that defendant and Valdez robbed him at that house. This was the testimony that mattered. The trial court properly admitted the preliminary hearing testimony and the rest of the prosecution’s evidence, and permitted defendant to present his impeaching evidence, and then let the jury decide whether the prosecution had proven this crime beyond a reasonable doubt so that it could consider it in aggravation. The reliability of this evidence “was a jury question, and went to the weight of the evidence, not its admissibility.” (People v. Anderson (2001) 25 Cal.4th 543, 587 [106 Cal.Rptr.2d 575, 22 P.3d 347].) 2. Admission of Hearsay Evidence to Prove Corpus Delicti The prosecution presented evidence that on December 20, 1978, defendant and three others kicked in an apartment door, robbed three men of their wallets, and hit one of the victims in the head with a gun. The victims were not available to testify. Instead, the prosecution presented the testimony of two police officers who responded to the scene and evidence of defendant’s confession to the crime. Armando Marrajo and D.C. Ogan, who were police officers in 1978, testified that they responded to the apartment in question on December 20, 1978. They observed that “the door frame at the point where the lock engages was shattered, had been forced open.” Officer Marrajo observed that one of the occupants “was holding a cloth to his forehead and it was saturated with blood.” He appeared to have received a recent injury that was still bleeding. Defendant admitted his involvement in the crime. He said that one of his cohorts kicked in the door. Then, when one of his cohorts said to pass the money, the persons inside “handed me their wallets. I got the money and . . . I ran outside.” He said that when he was running, one of his group hit one of the victims with his gun. Later, the group met to divide the money. They had gotten $109 dollars, which was “split up three ways.” Defendant received “thirty some odd dollars,” as did the other two. Over objection, the court also permitted Officer Marrajo to testify that the victim who was bleeding told him that one of the suspects told him, “Give me the money.” The court admitted the statement to satisfy the corpus delicti rale, finding that it qualified as an exception to the hearsay rale as a spontaneous statement. Defendant argues the court erred in admitting the victim’s hearsay statement that one of the suspects said, “[g]ive me the money,” and that the error violated his Sixth Amendment right to confront witnesses. He also argues that without this statement, there was no evidence to establish the corpus delicti of the crime and, accordingly, his confession should not have been admitted. We conclude that, even without this hearsay statement, the prosecution adequately proved the necessary corpus delicti, and defendant’s confession was properly admitted. We also conclude that any error in admitting the hearsay statement was harmless beyond a reasonable doubt. The corpus delicti “rule generally requires the prosecution to prove ‘the body of the crime itself’ independent of a defendant’s extrajudicial statements.” (People v. Sapp (2003) 31 Cal.4th 240, 303 [2 Cal.Rptr.3d 554, 73 P.3d 433].) We have never decided whether the rule applies to unadjudicated crimes admitted in aggravation at the penalty phase of a capital trial under the current death penalty law. (Ibid, [assuming without deciding that the rule does apply].) In People v. McClellan (1969) 71 Cal.2d 793, 805-806 [80 Cal.Rptr. 31, 457 P.2d 871], and People v. Hamilton (1963) 60 Cal.2d 105, 129-130 [32 Cal.Rptr. 4, 383 P.2d 412], concerning an earlier death penalty law, we held that the corpus delicti rule does apply to evidence of other crimes at the penalty phase. We relied on McClellan when we held that, under the current law, the prosecution must prove other crimes at the penalty phase beyond a reasonable doubt before the jury may consider them. (People v. Robertson (1982) 33 Cal.3d 21, 54 [188 Cal.Rptr. 77, 655 P.2d 279].) We have also cited McClellan and other older cases in concluding that “the rule requiring corroboration of accomplice testimony applies at the penalty phase of a capital trial.” (People v. Miranda (1987) 44 Cal.3d 57, 100 [241 Cal.Rptr. 594, 744 P.2d 1127].) The corpus delicti “rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1169 [119 Cal.Rptr.2d 903, 46 P.3d 372].) Although a jury does not convict the defendant of other crimes at a penalty phase (People v. Visciotti (1992) 2 Cal.4th 1,