Full opinion text
Opinion CORRIGAN, J. A jury sentenced defendant Lanell Craig Harris to death after finding him guilty of first degree murder during the commission of a robbery, attempted murder, and three counts of robbery, all with personal use of a firearm. The jury hung on another murder charge, and on whether the attempted murder was premeditated. This appeal is automatic. We affirm the judgment. I. FACTS The facts may be briefly stated for background purposes; further details and procedural matters will be discussed in connection with defendant’s contentions. A. Guilt Phase 1. Prosecution a. The Contreras Murder On the evening of August 7, 1991, defendant approached a group of men gathered in a grassy area of the Van Nuys Recreation Center. Defendant asked if they had drugs to sell; when they said no, he offered to sell them a camera. No one wanted the camera. When one of the men offered defendant a cup of soup, he became angry and knocked the cup to the ground. Another man, Alfredo Calleros, saw defendant try to pull up a large pipe that was partially buried in the ground. Calleros picked up a milk crate and prepared to throw it at defendant. Defendant left, saying he would be back. Defendant returned with another man about 15 minutes later. He approached Calleros and tried to shoot him, but the handgun misfired. As Calleros ran, defendant pointed the gun skyward and pulled the trigger. This time it fired. Most of the men in the area fled, but a group playing cards remained. Defendant and his companion approached them. Defendant aimed the gun at Efren Reyes’s head and took money from his pocket. Defendant’s companion took money from Reynaldo Villatoro. Defendant approached Julian Contreras and reached for his wallet. When Contreras resisted, defendant shot him in the thigh. Contreras fell and defendant shot him twice more in the back. Defendant took Contreras’s wallet and left with his companion. Contreras died at the hospital. b. The Rodriguez Murder The murder charge on which the jury was unable to reach a verdict arose from events in January 1991 in Los Angeles. On the night of January 2, Alba Rodriguez went with her mother Marta to a Winchell’s donut shop where Marta worked. Around midnight, Marta left to get supplies from another store. She returned and tapped on the door, signaling Alba to open it. As Alba approached the door, she saw defendant standing at the service window. The door was stuck closed; Marta told Alba to wait on the customer. Alba noticed that defendant had trouble speaking when he gave his order. While Alba was preparing the order, she heard her mother scream. Alba ran to the door and saw Marta struggling with defendant, who had a butcher knife. There was blood on Marta’s chest. Alba unsuccessfully tried to open the door. Marta twice told her to call the police. As she went to the telephone, Alba saw defendant leaving. While she was making the phone call, Marta came through the door, collapsed, and died. Marta had a stab wound on the left side of her chest, four inches deep, which cut through a piece of one rib and completely through her heart. She also had a wound on her left forearm, which the medical examiner characterized as a typical defensive wound. 2. Defense Defendant presented an alibi defense to the Contreras murder. His wife, Lucinda Harris, testified that she and defendant spent the entire afternoon and evening together. They visited Lucinda’s parents, went to a pool hall for about an hour, and then to Lucinda’s apartment, arriving around 8:30 or 9:00 p.m. They drank some beer, and Lucinda took a bath. She could hear defendant talking on the telephone as she bathed. He did not leave her apartment that night. The defense called no witnesses regarding the Rodriguez murder. B. Penalty Phase 1. Prosecution Contreras’s son and daughter testified about the impact his killing had on them and their family. The court took judicial notice of defendant’s six prior convictions, all resulting from pleas of guilty or no contest: (1) a residential burglary on November 21, 1984; (2) an assault with a deadly weapon or force likely to produce great bodily injury on December 16, 1984; (3) a first degree robbery on December 16, 1984; (4) an assault with a deadly weapon that resulted in the intentional infliction of great bodily injury on December 17, 1984; (5) a second degree robbery on December 17, 1984; and (6) an escape from police officers on December 18, 1984. The prosecution presented witnesses to three incidents of defendant’s uncharged criminal activity. William Scott testified that on August 21, 1979, when he was in high school, he was approached by three young men as he was leaving a store. One of them was defendant, who appeared to be about 16 years old. They commented on Scott’s bicycle, an expensive racing model, and defendant asked if he wanted to trade it for an inferior bicycle. When Scott refused, defendant hit him in the windpipe without warning and left with Scott’s bicycle. On the morning of his testimony, Scott was unable to identify defendant from a group of six photos, but when shown a single larger picture he recognized defendant as the person who had hit him. In 1982, Christopher Stokes and Louie Magdaleno were employed as police officers for the Los Angeles Unified School District. On December 7 of that year, Stokes detained defendant, then a student, near the auditorium at San Fernando High School. He brought defendant in handcuffs to the security office and sat him in a room with Magdaleno. Defendant appeared to be under the influence of drugs. Stokes went to an adjacent office, where he heard defendant yelling threats at Magdaleno. Defendant demanded to know why he was there, and threatened to kill Magdaleno. Stokes reentered the room, and defendant threatened to kill him and his wife, saying he knew where they lived, or could find out. He was “screaming and yelling,” and “had spit coming out of his mouth, a lot of foam and mucous from his nose.” Defendant began to walk toward Magdaleno, who subdued him with the assistance of two Los Angeles police officers. Shortly thereafter, defendant tried to walk out the door, and a scuffle ensued. Defendant was sprayed with Mace but continued struggling for five or 10 minutes. Both officers took defendant’s threats seriously. Stokes had 24-hour police protection at his house, and Magdaleno stayed away from his home for the rest of the week. Jerome Van Tress testified that he was a Frito-Lay salesman in 1984. Early on the morning of December 17, he drove to a 7-Eleven store in Pacoima. Looking inside, he saw someone throwing the clerk, who was a small man, from one end of the counter to the other. Van Tress drove to a police station and reported the attack. Returning to the 7-Eleven, he saw several police cars. The clerk was being taken to an ambulance; there was blood on the floor of the store and on the sidewalk outside. Van Tress identified defendant as the assailant. Detective Richard Knapp of the Los Angeles Police Department testified that he investigated the 7-Eleven robbery. Following a lead, he and a detective went to an apartment across the street, where a woman answered the door. Knapp saw defendant lying on the floor inside, with a bloody folding knife on a table next to him. The jury was told that this incident led to defendant’s conviction for robbery and assault with a deadly weapon, and that he admitted intentionally inflicting great bodily injury on the 7-Eleven clerk. 2. Defense At the penalty phase, defendant’s stepmother Doris Harris testified about his experiences growing up, particularly his troubled relationship with his father. Dr. Robert White, a psychologist hired by the defense, interviewed defendant seven or eight times, and concluded that defendant suffered from chronic severe depression. Dr. White related traumatic events in defendant’s life as well as his positive behavior in structured settings, like prison. Sonja Fox, a chaplain at a probation camp for juveniles, testified about her favorable impression of defendant’s conduct during his six-month stay at the camp. Defendant’s football coach in junior college, Charles Perrero, testified that he was a positive influence on the team. Christine Branich, a correctional officer from Folsom, testified that defendant was a good worker and a good influence on other inmates while serving a prison term beginning in 1987. A deputy sheriff at the Los Angeles Central Jail, Jeffrey Creager, testified that while defendant was in custody in 1993, the year of the trial in this case, he was chosen as a trusty inmate worker, and had helped rescue another inmate who attempted suicide. II. DISCUSSION A. The Adequacy of the Record Defendant challenges the adequacy of the appellate record in a number of respects. He initiated lengthy proceedings below to correct and augment the record, which resulted in three settled statements designating omissions that could not be rectified. “[S]tate law entitles a defendant only to an appellate record ‘adequate to permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. [Citation.] The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858 [48 Cal.Rptr.3d 1, 141 P.3d 135]; see also People v. Rundle (2008) 43 Cal.4th 76, 110-111 [74 Cal.Rptr.3d 454, 180 P.3d 224].) Defendant urges us to reconsider our rule placing on the appellant the burden of demonstrating that the record is so inadequate as to frustrate meaningful review. He argues that he should not be required to speculate about issues that might have arisen from missing parts of the record, and that an incomplete record amounts to a structural defect requiring reversal without a specific showing of prejudice. Certainly a substantially defective record could amount to such a structural defect, but it remains the appellant’s burden to make that showing. Defendant fails to do so here. Defendant complains about the absence of a number of items in the first settled statement that are not typically reflected in an appellate record, so that their omission cannot be said to be an obstacle to review absent some special circumstance. These include physical gestures by witnesses during testimony and by the prosecutor during argument; charts referred to by counsel during the course of argument but not entered into the record as exhibits; the identities of jurors whose comments or questions were recorded by the reporter or whose actions were otherwise described in the transcript; the specific portions of a witness’s taped statement that were played for the jury during closing argument; and the circumstances surrounding notes sent by the jury during its deliberations (i.e., why only certain portions of a witness’s testimony were read back to the jury, exactly when the court received a note, and when or how counsel agreed to a response). A defendant must rely on counsel to make items like these a part of the record if they have some significance regarding a potential appellate issue. Defendant also contends that various off-the-record discussions deprived him of his right to a complete record. Section 190.9 requires “all proceedings” during trial to be transcribed in a capital case. This requirement does not include “private conferences between defense counsel and defendant, or among counsel and cocounsel or their witnesses.” (People v. Samayoa (1997) 15 Cal.4th 795, 820 [64 Cal.Rptr.2d 400, 938 P.2d 2].) Here, the record does not reflect the nature of the discussions in question. Although the failure to transcribe them may have been a violation of section 190.9, it gives rise to no presumption of prejudice. Defendant must demonstrate that the omissions deprive him of meaningful appellate review. (People v. Hinton (2006) 37 Cal.4th 839, 919 [38 Cal.Rptr.3d 149, 126 P.3d 981].) He makes no effort to do so, failing to analyze the context of the “off the record” references in the reporter’s transcripts. In each instance counsel and the court were unable to recall the substance of the discussions. Thus, the likelihood is that they involved either private discussions, routine issues of scheduling and the like, or other matters that would not affect our review. The second settled statement concerned four pretrial hearings in municipal court that were not recorded. Neither the court nor counsel could recall these hearings, which should have been reported under section 190.9. (See People v. Freeman (1994) 8 Cal.4th 450, 509 [34 Cal.Rptr.2d 558, 882 P.2d 249].) Clerks’ transcripts reflect the subject matter of each of these hearings, however. Defendant does not analyze these transcripts or make any effort to discuss how the absence of reporters’ transcripts affects his right to meaningful review, other than to complain that he lacks the information they would have provided. He fails to show prejudice. (People v. Hinton, supra, 37 Cal.4th at p. 919.) The third settled statement reveals that the prosecutor and defense counsel submitted lists of proposed jury instructions at both the guilt and penalty phases, neither of which could be located by the clerk’s office for inclusion in the record. The attorneys could not find the originals or copies of these lists. Furthermore, the court was unable to ascertain if it had compiled a list of the instructions it rejected; if such a list existed, its contents could not be settled. Defendant argues that without knowing which of his proposed instructions were refused by the court, his appellate counsel cannot provide him effective assistance and there can be no meaningful review of the guilt and special circumstance verdicts. As to the guilt phase instructions, the record includes lengthy discussions between the court and counsel on substance and terms. Defendant makes no attempt to detail how these discussions are insufficient for our review. He merely asserts that in many instances, which he does not specify, it cannot be discerned which party requested the instruction being discussed, or what it was the trial court refused to adopt. This assertion is insufficient to establish an inadequate record. Defense counsel stated on the record that he had gone over all the modifications worked out by the court and counsel, and had no further changes or deletions to suggest. Counsel raised no omissions from the guilt phase instructions in his motion for a new trial. Appellate counsel has raised a number of guilt phase instructional issues, which are addressed below. The lack of a written list of proposed instructions, and of instructions refused, does not appear to have hindered this effort. Regarding the penalty phase, defendant acknowledges that the court read into the record all but one of the six special instructions his counsel submitted. He contends the contents of the omitted instruction cannot be ascertained. However, the court and counsel discussed this instruction, which concerned mitigating factors, in sufficient detail that it is clear defendant was not entitled to have it read to the jury. The prosecutor objected to the instruction because it singled out particular incidents and identified them as mitigating factors, when they could also be viewed as aggravating. The court noted that the instruction tended to “pinpoint certain pieces of evidence and not pinpoint others.” Defense counsel argued that the instruction properly allowed the jurors to consider the incidents in mitigation “if you find they so apply.” The prosecutor responded that if the instruction were given, she would in turn be entitled to a pinpoint instruction on every aggravating factor shown by the penalty phase evidence. The court concluded that the substance of the instruction was appropriate for argument, but not for instruction. We have frequently ruled that instructions providing a partial list of mitigating factors, with reference to particular items of evidence, are improper. (See, e.g., People v. Cook (2007) 40 Cal.4th 1334, 1364 [58 Cal.Rptr.3d 340, 157 P.3d 950], and cases therein cited.) Defendant establishes no likelihood that the absence of a written record of his proposed special instruction has prevented his counsel from effectively evaluating the denial of this, instruction as a possibly meritorious claim on appeal. The second item on the third settled statement is a proposed questionnaire given by the trial court to counsel before jury selection, with a request for their suggestions. The clerk was unable to locate this document. Defendant mentions this omission but makes no effort to demonstrate how it might affect his right to meaningful appellate review. The third settled statement also notes that defense counsel’s proposed additional questions for the jury questionnaire could not be found by the clerk or by counsel. Defendant again fails to develop any argument as to how the lack of this document has hampered appellate review. Next, the third settled statement states that during jury selection, the court provided written questions to a group of male jurors regarding a remark by one prospective juror to the effect that “we’ll give him a fair trial and then we’ll hang him.” The comment was made to the court clerk, who was unable to identify the juror. The court and counsel devoted some time to investigating which prospective juror made the remark, and the man who was generally agreed to be the most likely suspect was eventually excused. Although the settled statement declares that the questions given to the jurors on this subject could not be found or reconstructed, the court in fact read the questions aloud to the group of jurors, and they were transcribed by the reporter. Thus, defendant has suffered no prejudice from the absence of the document itself. Finally, the third settled statement states that neither the clerk nor counsel were able to locate copies of letters given by defense counsel to the clerk to be mailed to four jurors after trial, in connection with defendant’s motion for a new trial. Defendant speculates that the content of these letters may have prevented him from establishing the basis for obtaining a new trial. Any such possibility appears remote indeed, and furnishes no ground for deeming the record inadequate. We emphasize, once again, that trial courts should take care to avoid off-the-record discussions in capital cases, and to comply with section 190.9 in all respects. (People v. Freeman, supra, 8 Cal.4th at p. 511.) Maintaining the documentary record is equally important. (See § 190.7.) These measures not only assure an adequate appellate record, but also obviate the burden of settling the record. {Freeman, at p. 511.) Human affairs being what they are, however, perfect records are not always achieved. Appellants must do more than merely complain about omissions; they must demonstrate that the record is insufficient for meaningful appellate review. (People v. Rogers, supra, 39 Cal.4th at pp. 857-858.) The significance of missing items must be analyzed with reference to what is reflected by the record. Here, defendant fails to establish that the omissions he notes resulted in a record so deficient as to make the appellate process unreliable. B. The Questioning of Reyes Defendant contends the prosecutor improperly led her witness, Effen Reyes, into an in-court identification. Reyes testified with the assistance of an interpreter. Near the beginning of his testimony, the prosecutor established that Reyes had been one of the cardplayers at the scene of Contreras’s murder, and that the assailant had been a Black male. The prosecutor then asked if Reyes saw that person in the courtroom. Reyes said “no.” The following exchange ensued: “Q. All right. You don’t see the person present in court today? Did you look in this part of the courtroom here? “A. No. “Q. Not in the audience; did you look up here also? No. I mean up here in the front. “A. Yes. At a court date that I came before, and I testified, and he was here. “Q. All right. And the person that was there when you came to court the • first time, does he look anything like the gentleman that’s sitting at this table second from the end? “[Defense counsel]: Objection. “THE COURT: Overruled. “THE WITNESS: Oh, yes, yes. It’s him; it’s him.” The prosecutor elicited the following explanation from Reyes for his failure to see defendant at first: “A. ... I was looking on this side. I didn’t look on the other side. “THE COURT: Pointing to the jury, for the record. “Q. [By the prosecutor]: Is the computer on the judge’s bench blocking your view of that end of the table? “A. Yes. This is, right here. That’s why I didn’t see him. “Q. Okay. Indicating for the record, he’s pointing? “THE COURT: The computer monitor on top of the bench.” Defendant claims the prosecutor’s leading questions violated Evidence Code section 767, subdivision (a)(1), as well as various constitutional rights. The Attorney General correctly responds that the questioning of Reyes was proper under the circumstances. “A ‘leading question’ is a question that suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) Questions calling for a “yes” or “no” answer are not leading unless they are unduly suggestive under the circumstances. (People v. Williams (1997) 16 Cal.4th 635, 672 [66 Cal.Rptr.2d 573, 941 P.2d 752]; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 165, pp. 229-230.) Furthermore, leading questions are not always impermissible on direct examination. “Evidence Code section 767, subdivision (a)(1), provides that leading questions ‘may not be asked of a witness on direct or redirect examination’ except in ‘special circumstances where the interests of justice otherwise require.’ Trial courts have broad discretion to decide when such special circumstances are present. [Citations.]” (Williams, at p. 672.) Here, the court did not abuse its discretion by permitting the prosecutor to direct Reyes’s attention toward defendant’s location in the courtroom, even if her questions were leading. Reyes was evidently unable to see defendant from the witness chair because a computer monitor was in his line of sight. He looked around those parts of the courtroom he could see, initially searching the audience and then the jury box. Moreover, the possibility of improper suggestion was remote. Reyes had already identified defendant at the preliminary hearing, and before that picked him out of a live lineup of six persons during the police investigation. Under these circumstances, defense counsel’s objection was properly overruled. C. The Denial of the Motion for Acquittal on the Rodriguez Murder After the prosecution rested, defense counsel moved for a judgment of acquittal as to the charge of first degree murder of Marta Rodriguez, contending there was no evidence of deliberation or premeditation. The prosecutor responded that during the time defendant waited to place his order with Alba Rodriguez at the Winched’s window, and after he placed the order, he had sufficient time to deliberate and choose to kill before confronting Marta at the door. The court denied the motion, finding “sufficient evidence to allow the jury to decide the issue.” The jury divided 10 to two on this charge, failing to agree on the issue of guilt in the first instance, not on the degree of the crime. Defendant argues that while the jury was unable to reach a verdict on the Rodriguez murder, the trial court’s denial of his motion for acquittal leaves him open to retrial for first degree murder. This is so. (See Smith v. Massachusetts (2005) 543 U.S. 462, 466-467 [160 L.Ed.2d 914, 125 S.Ct. 1129]; People v. Lagunas (1994) 8 Cal.4th 1030, 1039, fn. 6 [36 Cal.Rptr.2d 67, 884 P.2d 1015]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 140, p. 488.) The Attorney General contends the trial court properly denied the motion for acquittal, noting the evidence that (1) defendant was armed with a butcher knife in the early morning hours, a time when few witnesses were likely to be present; (2) Marta was stabbed in the left side of her chest with enough force for the knife to completely penetrate her heart; and (3) there was more than enough time for defendant to premeditate a killing while he stood at the service window. On a motion for judgment of acquittal under section 1118.1, the trial court applies the same standard as an appellate court reviewing the sufficiency of the evidence. The court must consider whether there is any substantial evidence of the existence of each element of the offense charged, sufficient for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213 [17 Cal.Rptr.3d 532, 95 P.3d 811].) We independently review the trial court’s ruling. (Id. at p. 1213.) Here, defendant challenges only the sufficiency of the evidence of deliberation and premeditation. “A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.] ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .” [Citations.]’” (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335].) Here, defendant was armed with a knife and stabbed Rodriguez without provocation directly in the heart with enough force to penetrate part of a rib and pierce entirely through the heart. In the time it took for Alba to go from the door to the service window, and to take and prepare defendant’s order, there was ample time for him to deliberate and premeditate before attacking Marta. Under these circumstances, we cannot say the jury could not reasonably have found defendant guilty of first degree murder. D. The Evidence of Threats Against Robert James 1. Background Robert James was the grandson of Doris Harris, defendant’s stepmother. On October 17, 1991, a week after defendant was arrested, James gave a taped interview to police detectives. He told them that on September 23, he had walked by the park in Van Nuys with defendant. James wanted to play basketball, but defendant saw some Mexicans in the area and said they had to leave, “[c]ause ... I blasted this fool in the park, and there go some of his homeboys.” James said defendant later explained that he had seen some Mexicans gambling, went home to get his gun, and returned to the park with another person. They confronted the Mexicans and asked for money, “then the sewer rat jumped up and I shot him.” Defendant’s term for Mexicans was “sewer rats.” At trial, although James went over his taped statement with the prosecutor in the morning on the day he testified, by the afternoon he could recall very little of what he had told the detectives. After his testimony, the prosecutor learned from a detective who drove James home that James had been threatened by defendant’s sister during the lunch break. The prosecutor wanted the detective to testify, so that the jury could evaluate the discrepancy between James’s statements in court and those on the tape, which would be played for the jury. Defense counsel objected, arguing that the evidence of the threat would be unduly prejudicial because the jury would likely draw the conclusion that defendant had something to do with it. The court decided to permit the detective to testify about the incident, with a limiting instruction informing the jury that the threat came from a family member, not from defendant. Detective Paul Stewart told the jury that he had been present during the interview conducted before James testified. At that time, James had recalled most of his statements in the taped interview. However, Stewart was also present when James was on the witness stand, at which time “many of the things that he remembered in the morning ... he said he did not remember when he testified.” Stewart testified that while he was taking James home later that day, James said “that he was in the cafeteria of this building when he was approached by a woman who made the statement to him [that] you and your mother could disappear.” The woman was “a family member.” The court cautioned the jury that Stewart’s testimony was admitted only “to show the state of mind [of] the witness when the witness testified,” not “to prove the truth of the statement that was made.” The jury was told that “you must not draw any inferences with respect to the defendant as to those statements,” and specifically that “you may not infer that . . . this was made by the defendant or at the defendant’s behest. It is only to indicate the state of mind of the witness at the time when [the witness] testified so that you may properly evaluate that witness’s testimony and any inconsistencies that you find that there are.” Thereafter, the prosecutor recalled James to the stand. She questioned him about the incident in the cafeteria, asking “did someone from your family and the defendant’s family approach you during the lunch hour?” James said a woman had approached him, and they were “bickering back and forth.” With some prompting, he said the woman had told him that he “better not lie on her brother” and that he and his mother might “come up missing.” On cross-examination, defense counsel asked James about the threat, confirming that it was defendant’s sister who delivered it. James said the threat had upset him at first, but did not affect his testimony in any way. 2. The Admissibility of the Threat Evidence Evidence that a witness is afraid to testify or fears retaliation is admissible because it bears on credibility. (People v. Burgener (2003) 29 Cal.4th 833, 869 [129 Cal.Rptr.2d 747, 62 P.3d 1]; accord, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 946 [44 Cal.Rptr.3d 237, 135 P.3d 649]; People v. Guerra (2006) 37 Cal.4th 1067, 1141 [40 Cal.Rptr.3d 118, 129 P.3d 321].) Defendant acknowledges this well-established rule, but raises a series of objections to its application in this case. First, he contends the prosecutor failed to lay an adequate foundation for the relevance and probative value of the threat evidence. Defendant asserts that the admission of this evidence was improperly premised on the assumption that James was telling the truth in his taped statement. This is not the case; James’s state of mind when he testified after hearing the threat had no necessary connection with the veracity of his earlier statement. Next, defendant contends the Burgener rationale is limited to cases of discrepancy between prior sworn testimony and later statements in court. This claim is supported by neither the cases cited in Burgener (People v. Warren (1988) 45 Cal.3d 471, 481 [247 Cal.Rptr. 172, 754 P.2d 218]; People v. Feagin (1995) 34 Cal.App.4th 1427, 1433 [40 Cal.Rptr.2d 918]), nor those following it (e.g., People v. Gonzalez, supra, 38 Cal.4th at pp. 945-946; People v. Guerra, supra, 37 Cal.4th at pp. 1141-1142). Defendant also argues there was no showing that James was indeed afraid to testify. He points to James’s later testimony that the threat did not affect him. The court, of course, had no way of anticipating this testimony when it made its ruling. The court was aware of the discrepancy between the statements on the tape, and James’s testimony, and the relevance of the threat he received immediately before he took the stand was obvious. Defendant claims that in any event, the probative value of the evidence was outweighed by the prejudicial impact on the jury of learning that his sister had threatened a key witness and the witness’s mother during trial. That determination, however, was “well within the discretion of the trial court.” (People v. Burgener, supra, 29 Cal.4th at p. 869.) The jury was cautioned not to attribute the threat to defendant. Defendant claims the admonition was defective because it followed Detective Stewart’s testimony, and the court spoke in terms of “the evidence you have just heard” and “the state of mind of the witness when the witness testified.” Defendant suggests the jury would have understood these references to apply to Stewart, and thus the inferences they might draw regarding the threat to James were unrestricted. The suggestion is completely meritless. The detective’s state of mind was not at issue, and his testimony was focused on the impact of the threat against James. Defendant also complains that the admonition was not repeated after James was recalled and questioned about the threat. However, the court’s cautionary instruction the previous week was lengthy and detailed, and promptly followed Detective Stewart’s testimony, which first informed the jury of the threat. The court was not required to repeat the admonition, and defense counsel made no such request. 3. The Prosecutor’s Reference to the Threat in Closing Regarding James’s testimony, defense counsel argued as follows in his closing: “He was threatened to such an extent that the People want you to believe him, and that’s why he changed his testimony. Doesn’t it strike you as a little odd that he wouldn’t say anything before the testimony or he wouldn’t want these people out of the courtroom?” In her rebuttal, the prosecutor responded that it was precisely because he was threatened that James had said nothing before he testified: “The exact thing about threats is they scare you. And you don’t necessarily run and tell on the person who just threatened you because they threatened you. And you don’t want to make them any madder. So instead you come in and try to appease them. You come in and say I don’t remember. And I might have made that part up. As they are sitting here in the audience staring at him, he is back-pedaling big time. . . . But what we know is true is his prior statement, what he said to the police, what you hear on the tape when no one was glaring at him and no one had threatened him and the defendant wasn’t sitting there looking at him.” Defendant, while refraining from making a claim of prosecutorial misconduct, contends the prosecutor’s reference to his presence and the threat against James in the same sentence undermined the court’s limiting instruction, and exacerbated the prejudice created by the admission of the threat evidence. Defense counsel made no objection or request for an admonition from the court, which could have reinforced the limiting instruction and mitigated any undue prejudice. His claim is thus barred on appeal. (People v. Thornton (2007) 41 Cal.4th 391, 454 [61 Cal.Rptr.3d 461, 161 P.3d 3].) Defendant responds to the Attorney General’s waiver argument by suggesting for the first time in his reply brief that the failure to object amounted to ineffective assistance of counsel. The argument is as meritless as it is belated. “[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Here, while requesting an admonition was one tactical option, counsel could also have decided that objecting would focus the jury’s attention on the threat incident in ways that would not be helpful to the defense. The prosecutor’s comment echoed her opening argument, where she made no mention of the threat but argued that James’s taped statement was credible because it was made when “the defendant wasn’t in the room looking at him, other family members weren’t in the audience looking at him.” The jury would understand that, regardless of any threat, James would have been more willing to incriminate his relative in a private interview than in open court, in the presence of defendant and other family members. Any implication in her later comment that defendant may have been involved with the threat was remote enough that counsel could reasonably have opted to let it pass without objection. E. The Exclusion of Evidence of James’s Probation Performance Defense counsel sought to impeach Robert James with testimony from his probation officer to the effect that James was dishonest. The court held a hearing under Evidence Code section 402 to determine what the probation officer would say. The parties agreed that because James was a juvenile, the officer could not go into specific matters reflected on his record. Harry Ridley testified that he was James’s probation officer and had been for nearly a year. He considered James irresponsible. James had been evasive, did not comply with the conditions of his probation, and failed to keep Ridley informed of his whereabouts. Ridley recalled one particular lie James told, which he did not specify, but generally he based his opinion on James’s failure to follow instructions. The court heard extended argument from counsel, during which the prosecutor stated that if Ridley’s testimony were admitted, she would be entitled to rehabilitate James by examining the reasons for his behavior. Ultimately, the court concluded that while the evidence of James’s performance on probation was relevant to show his lax character and general lack of credibility, its probative value was insufficient to outweigh the consumption of time it would take to explore the matter, including collateral issues pertaining to his failure to comply with probation conditions. Accordingly, the court excluded the evidence of his probation performance under Evidence Code section 352. Regarding specific instances of untruthfulness, the prosecutor acknowledged that Ridley remembered one time when James had lied to him. However, the court agreed with her argument that James’s failure to keep promises made to his probation officer did not amount to “lies.” After conferring with Ridley, defense counsel told the court there were “no additional grounds to go into.” Counsel had interpreted Ridley’s account of James’s failure to do what he said he would do as instances of lying. Ridley did not testify before the jury. Defendant contends the court abused its discretion under Evidence Code section 352. We disagree. “ ‘[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” (People v. Ayala (2000) 23 Cal.4th 225, 301 [96 Cal.Rptr.2d 682, 1 P.3d 3]; accord, People v. Lewis (2001) 26 Cal.4th 334, 374-375 [110 Cal.Rptr.2d 272, 28 P.3d 34].) Here, James’s failures on probation were evidently numerous, and the prospect of prolonged nitpicking was a real one. Defendant claims the court’s ruling deprived him of his fundamental rights to confrontation and to present a defense, under the Sixth and Fourteenth Amendments to the federal Constitution. However, “we have repeatedly held that ‘not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance.’ [Citation.]” (Ayala, at p. 301; see also Lewis, at p. 375.) Defense counsel had ample opportunity to question James regarding the discrepancies between his taped statement and his trial testimony. James himself testified that he had not been completely truthful during the police interview, when he incriminated defendant. Moreover, after it was shown that he had been threatened in advance of his original trial testimony, James denied the threat had affected him, but also confirmed the accuracy of the taped statements that he could not remember in his original testimony. Thus, James’s truthfulness was already seriously compromised. Evidence of his performance on probation would have introduced a variety of collateral credibility issues, and would not “have produced ‘a significantly different impression of [the witness’s] credibility.’ ” (People v. Frye (1998) 18 Cal.4th 894, 946 [77 Cal.Rptr.2d 25, 959 P.2d 183], quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 106 S.Ct. 1431]; see also People v. Smith (2007) 40 Cal.4th 483, 513 [54 Cal.Rptr.3d 245, 150 P.3d 1224].) F. The Witness Credibility Instructions Defendant claims the court erred by giving two instructions on witness credibility, CALJIC Nos. 2.13 and 2.24. He contends the former of these instructions unfairly bolstered the testimony of prosecution witnesses Robert James and Mark King, and the latter improperly skewed the credibility determination as to prosecution witness Delsie Noble. James’s testimony is described in part II.D.L, ante, at pages 1287-1288. King provided a taped interview to detectives in which he said, among other things, that defendant told King “I had to smoke one of those Mexicans” during a robbery. However, on the witness stand King refused to confirm nearly everything on the tape, which was played for the jury. Noble testified that defendant had told him about the killing the day after it happened. Respondent argues that defendant invited any error by requesting these instructions himself. Respondent is correct. “ ‘The doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a “conscious and deliberate tactical choice” to “request” the instruction.’ [Citation.]” (People v. Weaver (2001) 26 Cal.4th 876, 970 [111 Cal.Rptr.2d 2, 29 P.3d 103]; accord, People v. Thornton, supra, 41 Cal.4th at p. 436.) Defense counsel joined the prosecutor in requesting CALJIC No. 2.13, which stated: “Evidence that on some former occasion, a witness made a statement or statements that were inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasions. “If you disbelieve a witness’ testimony that he or she no longer remembers a certain event, such testimony is inconsistent with a prior statement or statements by him or her describing that event.” In his closing argument, counsel emphasized the conflicts between various witnesses’ trial testimony and their prior inconsistent statements. He also specifically asked the jury to remember a taped statement by Mark King indicating that he expected a reward for incriminating defendant, which King denied at trial. Thus, counsel had a legitimate tactical purpose for requesting CALJIC No. 2.13, and the invited error rule applies. (People v. Hardy (1992) 2 Cal.4th 86, 152 [5 Cal.Rptr.2d 796, 825 P.2d 781]; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49 [17 Cal.Rptr.3d 710, 96 P.3d 30].) In any event, defendant’s argument is devoid of merit; he complains that the instruction unfairly refers to “the truth of the facts” in a prior statement, without telling the jury it could also consider the falsity of the statement. However, the instruction in no way directs the jury to accept prior statements as the truth; it merely covers the hearsay exceptions provided in Evidence Code sections 1235 and 1236, in a neutral fashion. (See People v. Wilson (2008) 43 Cal.4th 1, 20-21 [73 Cal.Rptr.3d 620, 178 P.3d 1113].) CALJIC No. 2.24 told the jury: “Evidence of the character of a witness for honesty or truthfulness may be considered in determining his believability. If the evidence establishes that a witness’s character for honesty or truthfulness has not been discussed among those who know him, you may infer from the absence of such discussion that such character trait is good.” Defense counsel specifically requested this instruction, explaining to the court that it would cover King’s testimony that Delsie Noble “lies all the time.” Counsel’s choice here was plainly “ ‘ “conscious and deliberate,” ’ ” and it bars defendant from challenging the instruction on appeal. (People v. Weaver, supra, 26 Cal.4th at p. 970.) Again, in any event, his argument is meritless. Defendant faults the instruction for not referring to a witness’s character for dishonesty or untruthfulness. He underestimates the common sense of jurors. G. Instructions Bearing on the Standard of Proof Defendant challenges the constitutionality of a series of instructions, claiming they undermined the standard of proof beyond a reasonable doubt. (CALJIC Nos. 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.27, 2.51, 8.83, 8.83.1.) He acknowledges that we have rejected his claims, but invites us to reconsider our previous opinions in light of the facts of this case. (People v. Cleveland (2004) 32 Cal.4th 704, 750-751 [11 Cal.Rptr.3d 236, 86 P.3d 302]; People v. Crittenden (1994) 9 Cal.4th 83, 144 [36 Cal.Rptr.2d 474, 885 P.2d 887]; see also, e.g., People v. Cook, supra, 40 Cal.4th at pp. 1361-1362.) Defendant gives no persuasive reason in logic or law for us to revisit these settled issues. H. Sujficiency of the Murder Charge in the Information Defendant argues it was error to instruct the jury on first degree murder because the information charged him only with murder in violation of section 187, subdivision (a), which he characterizes as a statute defining second degree murder. Defendant claims the court lacked jurisdiction to try him for first degree murder. He recognizes that we have repeatedly held that an information charging murder in violation of section 187 is sufficient to support a first degree murder conviction. (People v. Hughes (2002) 27 Cal.4th 287, 369 [116 Cal.Rptr.2d 401, 39 P.3d 432], citing cases; see also People v. Geier (2007) 41 Cal.4th 555, 591 [61 Cal.Rptr.3d 580, 161 P.3d 104]; People v. Carey (2007) 41 Cal.4th 109, 131-132 [59 Cal.Rptr.3d 172, 158 P.3d 743].) However, he claims the rationale of these cases is irreconcilable with the holding of People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] (Dillon). Dillon held that section 189 is a codification of the first degree felony-murder rule. (Dillon, supra, 34 Cal.3d at pp. 471-472.) Because there is only a single statutory offense of first degree murder (see, e.g., People v. Geier, supra, 41 Cal.4th at p. 591), defendant reasons that the relevant statute must be section 189, not section 187, which he construes as a definition of second degree murder. Defendant misreads both Dillon and the statutes. Dillon made it clear that section 189 serves both a degree-fixing function and the function of establishing the offense of first degree felony murder. (Dillon, at pp. 468, 471.) It defines second degree murder as well as first degree murder. Section 187 also includes both degrees of murder in a more general formulation. (People v. Witt (1915) 170 Cal. 104, 108 [148 P. 928].) Thus, an information charging murder in the terms of section 187 is “sufficient to charge murder in any degree.” (People v. Carey, supra, 41 Cal.4th at p. 132.) Defendant does not contend he lacked actual notice of the prosecution’s theory of first degree murder. He does, however, assert that the information failed to allege all the facts necessary to justify the death penalty, making it defective under Apprendi v. New Jersey (2000) 530 U.S. 466, 476 [147 L.Ed.2d 435, 120 S.Ct. 2348]. The Apprendi claim is illusory; the information included special circumstance allegations that fully supported the penalty verdict. I. Jury Unanimity on the Type of Murder Defendant also argues that the court erred by failing to instruct the jury that it had to agree unanimously on whether he committed premeditated murder or felony murder. Again, he acknowledges we have repeatedly rejected this argument, but asks us to reconsider it. (E.g., People v. Nakahara (2003) 30 Cal.4th 705, 712-713 [134 Cal.Rptr.2d 223, 68 P.3d 1190], citing cases; see also People v. Geier, supra, 41 Cal.4th at p. 592; People v. Carey, supra, 41 Cal.4th at pp. 132-133.) Defendant submits no cogent rationale for a different rule, however. The United States Supreme Court has held that a jury need not unanimously agree on whether the defendant committed premeditated or felony murder, and this rule has been widely adopted by state courts. (Schad v. Arizona (1991) 501 U.S. 624, 640-642 [115 L.Ed.2d 555, 111 S.Ct. 2491] (plur. opn. of Souter, J.), citing cases; id. at pp. 649-651 (conc. opn. of Scalia, J.).) Defendant attempts to distinguish Schad on the ground that Arizona courts have not deemed premeditation and the commission of a felony to be independent elements of murder, whereas California courts have sometimes employed the “element” terminology. The distinction is merely semantic. The Arizona murder statute at issue in Schad was substantially similar to section 189, and to the common law definition of murder in existence since “at least the early 16th century.” (Schad v. Arizona, supra, 501 U.S. at p. 648 (conc. opn. of Scalia, J.); see id. at p. 629, fn. 1 (plur. opn. of Souter, J.); fn. 7, ante, at p. 1295.) Whether the mental states required for a conviction of first degree murder are described as “elements” (People v. Nakahara, supra, 30 Cal.4th at p. 712), “theories” (ibid.), or “alternative means of satisfying the element of mens rea” (Schad v. Arizona, supra, 501 U.S. at p. 632 (plur. opn. of Souter, J.)), the rule remains the same: the jury need only unanimously agree that the defendant committed first degree murder. In any event, as the Attorney General notes, here the jury unanimously found that defendant murdered Contreras during the commission of a robbery. (See People v. Cleveland, supra, 32 Cal.4th at p. 751.) J. The Failure to Instruct on Theft as a Lesser Included Offense Defendant contends the trial court erred by failing to instruct the jury on theft as a lesser included offense of robbery. He claims there was substantial evidence that he formed the intent to steal only after shooting Contreras, in which case there would have been no robbery. “If intent to steal arose only after the victim was assaulted, the robbery element of stealing by force or fear is absent.” (People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056 [60 Cal.Rptr.2d 225, 929 P.2d 544]; see also, e.g., People v. Waidla (2000) 22 Cal.4th 690, 737 [94 Cal.Rptr.2d 396, 996 P.2d 46].) However, the record in this case does not support defendant’s argument. Defendant relies on the following facts. The evidence showed that he returned to the park with a gun following a dispute with the men gathered there. He approached Calleros and tried to shoot him. When the gun failed to discharge, defendant fired a shot into the air. Calleros ran away and heard a single shot, followed by someone “screaming give me the money.” Defendant asserts that Calleros’s testimony “arguably constitutes evidence supporting the notion that an intent and attempt to steal arose only after the shooting of Contreras.” However, given that defendant’s first shot was into the air, and that Contreras was shot three times in quick succession, Calleros’s testimony in no way suggests that the murder preceded any demand for money. Nor did the fact that defendant’s first act upon his return was to assault Calleros tend to show that he did not also intend to rob the men in the park. Defendant bases his argument primarily on the testimony of Reynaldo Villatoro, who said that defendant brought his arm down and shot at Contreras “maybe a second” after firing into the air. However, viewed in its entirety Villatoro’s testimony is consistent with that of the other witnesses, all of whom agreed that a robbery was in progress when Contreras was shot. Villatoro testified that he was being robbed by defendant’s companion when Contreras was shot, and that Reyes had already been robbed. Villatoro did not see anything being taken from Contreras, because he was paying attention to defendant’s companion. He said that his money was taken before the final shot was fired at Contreras, and that after he was robbed the companion told defendant, “I have the money. Let’s go.” The two men then ran away. It is true that, unlike the other witnesses, Villatoro did not observe any attempt to steal from Contreras, either before or after the shooting. It is also true that, in response to a series of questions that appeared to confuse him, Villatoro gave answers that, considered in isolation, might suggest Contreras was shot before Reyes and Villatoro were robbed. During cross-examination, Villatoro said Contreras was shot twice while standing and again as he was falling to the ground, at which time Villatoro stopped watching because he was being robbed by defendant’s companion. The following exchange then took place: “Q. Now, after the other person took your money, did he take somebody else’s money? “A. From Efren [Reyes]. “Q. Okay. Was that before or after you? “A. Before me. “Q. And was Don Julian [Contreras] already on the ground at this time? “A. Yes. “Q. Okay, some money was taken from Efren and you in that order? “A Yes. What? Excuse me one moment. What do you mean in that order? “Q. Well, the first person who had money taken was Efren? “A. Yes. “Q. And then money was taken from you? “A. Yes.” Shortly thereafter, Villatoro confirmed that he was robbed by defendant’s companion just as Contreras fell to the ground. On this record, the jury could not reasonably have concluded that the shooting preceded the robbery. The witnesses gave varying accounts of who was robbed first; according to Sanchez, it was Villatoro; according to Juan Quijas, the first thing that happened when defendant approached the group was that “his friend started to take the money from everybody,” but Quijas did not notice who the first victim was; according to Reyes, defendant and his companion first tried to take Contreras’s wallet. What was clear from all the accounts was that the shooting occurred during the robbery'. One statement by Villatoro indicating that Contreras was on the ground, already shot for the last time, when Reyes was robbed, did not constitute a substantial contradiction of the general account. Villatoro immediately made it clear that it was he who was being robbed as Contreras fell, and that Reyes had already been victimized. “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could . . . concluded” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 162 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; accord, e.g., People v. DePriest (2007) 42 Cal.4th 1, 50 [63 Cal.Rptr.3d 896, 163 P.3d 896].) The evidence here did not require instruction on theft as a lesser included offense of robbery. K. The Defective Special Circumstance Instruction The court gave the following version of CALJIC No. 8.81.17: “To find that the special circumstance, referred to in these instructions as murder in the commission of robbery, is true, it must be proved: “1. The murder was committed while the defendant was engaged in the commission or attempted commission of a robbery or “2. The murder was committed in order to carry out or advance the commission of the crime of robbery. In other words, the special circumstance referred to in these instructions is not established if the robbery or attempted robbery was merely incidental to the commission of the murder.” (Italics added.) Defendant correctly observes that use of the disjunctive “or” between the enumerated paragraphs was erroneous. (People v. Prieto (2003) 30 Cal.4th 226, 256 [133 Cal.Rptr.2d 18, 66 P.3d 1123].) The court replaced “and” with “or” at the prosecutor’s request, and with defense counsel’s agreement. The Attorney General contends counsel’s acquiescence forfeited defendant’s claim on appeal. However, “[t]he invited error doctrine will not preclude appellate review if the record fails to show counsel had a tactical reason for requesting or acquiescing in the instruction. [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 28 [32 Cal.Rptr.3d 894, 117 P.3d 591].) Here, as in Moon, the record shows no tactical reason, and therefore we do not apply the invited error doctrine. (Ibid.) The error is reversible unless it was harmless beyond a reasonable doubt. (People v. Prieto, supra, 30 Cal.4th at pp. 256-257.) Defendant contends the second paragraph of CALJIC No. 8.81.17 is a required element of the felony-murder special circumstance, which must be found true by the jury. We have rejected that view. The second paragraph of the instruction does not set out a separate element of the special circumstance; it merely clarifies the scope of tire requirement that the murder must have taken place “during the commission” of a felony. (People v. Monterroso (2004) 34 Cal.4th 743, 766-767 [22 Cal.Rptr.3d 1, 101 P.3d 956]; People v. Kimble (1988) 44 Cal.3d 480, 501 [244 Cal.Rptr. 148, 749 P.2d 803].) “Thus, unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony, there is no duty to include CALJIC No. 8.81.17’s second paragraph. [Citations.]” (Monterroso, at p. 767.) Here, of course, the second paragraph was presented to the jury as an alternative, not as a clarification of the first paragraph. Defendant notes this permitted the jury to find the special circumstance true based only on a finding that the murder occurred while he was engaged in the commission of a robbery, without making the further finding that the murder was committed to carry out or advance the robbery. Relying on the same evidence underlying the lesser included offense argument discussed in part II.J., ante, at pages 1296-1298, defendant claims the record supports an inference that he intended to murder Contreras without intending to steal from him until after the shooting occurred. However, neither paragraph of the instruction reflected defendant’s after-acquired-intent theory. If the murder were committed while he was engaged in robbery, under the first paragraph, the intent to rob would already have been formed, just as it would have been if the murder were committed to carry out the robbery under the second paragraph. In any event, the evidence did not support defendant’s theory, as discussed above in part J. The defect in the instruction clearly did not affect the verdict. In addition to returning a true finding on the felony-murder special circumstance, the jury found defendant guilty of robbing Contreras. The evidence simply did not support the notion that the robbery was somehow incidental to the murder. Defendant makes much of the fact that he tried to shoot Calleros before any robbery attempt was made. However, by all accounts a robbery or robberies were being committed when he shot Contreras. By most accounts, Contreras was shot after he resisted. In addition to th