Full opinion text
Opinion WERDEGAR, J. A Sacramento County jury convicted defendant Sean Venyette Vines of the first degree murder of Ronald Lee (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated) and found true a special circumstance allegation that defendant murdered Lee while engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)). It also convicted defendant of eight counts of robbery (§ 211), five counts of assault with a deadly weapon (§ 245, subd. (a)(2)), four counts of kidnapping to commit robbery (§ 209, subd. (b)), four counts of false imprisonment (§ 236), and two counts of being a felon in possession of a firearm (§ 12021, subd. (a)). As to 19 of the counts, the jury found true allegations that defendant personally used a firearm during the commission of the crimes. (§ 12022.5, subd. (a).) The trial court found true two prior conviction allegations, one within the meaning of sections 667 and 1170.12, and one within the meaning of section 667.5, subdivision (b). The jury set the penalty for defendant’s murder conviction at death, and the trial court sentenced him accordingly. This appeal is automatic. (§ 1239, subd. (b).) I. GUILT PHASE A. Facts 1. Introduction On September 17, 1994, someone robbed the McDonald’s restaurant on Watt Avenue in Sacramento. Eleven days later, on September 28, another McDonald’s restaurant, on Florin Road in Sacramento, was robbed and employee Ronald Lee was killed by a gunshot to the back of his head. Defendant was employed at the Watt Avenue restaurant on the date it was robbed and previously had worked at the Florin Road restaurant. 2. Watt Avenue Robbery a. Prosecution case In September 1994, defendant and William Deon Proby worked at the Watt Avenue McDonald’s restaurant. Two or three weeks before the robbery, while working the closing shift, defendant asked one of the managers, Charles Ruby, Jr., about procedures in the event of a robbery. Ruby told him that employees and managers were supposed to give the robbers the money without resistance. Defendant chuckled and replied, “We are going to get robbed.” On September 17, the day of the Watt Avenue robbery, defendant was scheduled to work the closing shift at the restaurant, but called in to say he would be unable to come to work. Manager Stanly Zaharko and employees John Burreson, Michael Baumann, and Leticia Aguilar worked the closing shift that evening. Only Zaharko had access to the safe. The restaurant was scheduled to close at midnight. About 11:45 p.m., Baumann saw someone enter the restaurant and go into the restroom. Although he got only a quick glimpse of the side of the person’s face, Baumann was certain it was defendant. Just after midnight, Zaharko closed the restaurant and began to lock the doors and make sure that no one other than the employees was still on the premises. Checking the men’s restroom, Zaharko saw that someone was in a stall. He realized it was not an employee when he saw all the employees in the front counter and grill area of the restaurant a few moments later. About 12:15 a.m., Zaharko headed toward the restroom to tell the person to leave. As he rounded the comer of the lobby, he saw a man walking out of the restroom with a gun in his hand. The man was a dark-skinned African-American between the ages of 18 and 25, about six feet tall and weighing about 200 pounds. He was wearing faded jeans, a green jacket with a hood over his head, and a green scarf wrapped around his face. Believing the restaurant was being robbed, Zaharko raised his hands. The robber raised his gun and pointed it at Zaharko. The robber approached to within three feet of Zaharko, who, still facing the robber, walked backward to the counter area where the safe was located. Although he was not absolutely certain, Zaharko believed the robber was defendant. When they reached the safe, defendant, using an unnaturally low, gravelly voice, ordered Zaharko to open it. He had the gun pointed at the back of Zaharko’s head. After Zaharko opened the safe, defendant ordered him to hand over the keys. Zaharko complied by placing both the store keys and his personal keys on top of the safe. Defendant then directed Zaharko to the back of the restaurant, where the other employees were standing beside a sink. Still disguising his voice, defendant told all the employees to go downstairs. As they proceeded single file down the basement stairway, which was not visible from the customer side of the front counter, defendant kept his gun pointed at them. Aguilar recognized defendant, with whom she had worked as many as a dozen times, most recently the preceding day, as the robber. Defendant instructed them to enter the walk-in freezer. Before doing so, Baumann turned to face defendant, thinking of trying to take his gun. Baumann recognized defendant and, after looking into the robber’s eyes, was even surer it was defendant. Once the employees were inside the freezer, defendant slammed the freezer door and locked it; although the freezer’s lock was inoperable, a metal bar had been fabricated to connect with an eyelet mounted on the wall to permit locking the freezer. Defendant had several times previously locked the freezer using this prefabricated latch. After waiting about 10 minutes, Zaharko and the other employees used an ax that was stored in the freezer to break through the door and escape. In the course of escaping, Zaharko injured his hand. One of the employees called 911, and they waited in the basement until the police arrived. Upstairs, Zaharko saw that the safe had been ransacked. About $2,000 had been stolen, and Zaharko’s canvas attaché bag and Dodge Dakota truck, which he drove to work every day and routinely parked in the same spot, also were missing. About a month before the robbery, Zaharko had given defendant a ride home from work in the truck. Zaharko told the officers he believed defendant was the robber and described him as a dark-complected Black male, about 21 years old, six feet tall, and weighing 210 pounds. Vera Penilton, Proby’s girlfriend, testified that after the robbery defendant and Proby picked her up at her mother’s house and drove to the Rodeway Inn on Watt Avenue. She brought her newborn baby with her. Defendant and Proby were driving a truck, and Penilton saw a nametag bearing the name “Stanly” on the floor of the vehicle. Defendant and Proby previously had told her they planned to rob the McDonald’s restaurant where they worked, and now told her about the robbery. Defendant said he committed the robbery by himself because Proby got scared and waited in the car. Defendant described waiting in the restroom before robbing the restaurant and locking the employees in the freezer. He also told Penilton he hated his manager, Zaharko, and was going to shoot him, but did not do so. As he said this, he was laughing. Penilton saw that defendant and Proby had “a lot of money” and defendant had a small silver handgun. At some point, defendant and Proby tried to clean the truck and wipe off any fingerprints. They threw some things from the truck into a trash can behind a restaurant and tried to bum the tmck. Finally, they left the truck near a Denny’s restaurant in the Target shopping center on Mack Road. Defendant had taken the cellular phone that was in Zaharko’s tmck. Between 4:53 and 4:57 a.m. on September 18, the phone was used to call Ulanda Johnson’s home telephone and pager numbers and Sonya Williams’s home telephone number. Defendant had relationships with both women. That same night, defendant picked up Sonya Williams at her home and brought her to the Rodeway Inn, where they met Proby and Penilton. Along the way, Williams noticed defendant had a small silver gun on his lap. He told her “he did what he said he was going to do or what he talked about,” and showed her a wad of bills. (Two to three weeks earlier, defendant had told Williams that he and Proby were going to rob the McDonald’s restaurant where he worked.) Defendant elaborated that he had committed the robbery with Proby; the two men had shared the proceeds, with $900 going to defendant and $700 to Proby; and they had used Proby’s car. Defendant told Williams that during the robbery he came out of the restroom, put a gun to a man’s face, put everyone in the freezer, and took the money. When Williams asked defendant something to the effect of “What if you had killed those people that were in the freezer?” he calmly replied, “So?” After they checked into the motel, with defendant presenting his identification, Williams counted the wad of bills defendant had shown her earlier; it totaled about $260 in $5 and $1 bills. Defendant and Williams stayed at the Rodeway Inn for three nights. When they checked out on September 20, defendant paid the bill in cash. The day after the robbery, defendant went to the Watt Avenue restaurant to work the closing shift. Charles Ruby, Jr., who had learned of the robbery, told Lisa Lee, the general manager of the restaurant, about his earlier conversation with defendant in which defendant had predicted they would be robbed. Lee later said, loudly enough for defendant to hear, that the police had an idea about who had robbed the restaurant and would be coming back that night to talk to some people. Defendant dropped a basket of fries and became very nervous. After that night, defendant never worked at the restaurant again. That same day, Zaharko’s truck was found at the Target shopping center on Mack Road. Defendant had worked at the Denny’s restaurant at the same shopping center while employed at the McDonald’s restaurant on Florin Road. When he got the track back, Zaharko noticed that some items, including his cellular phone, were missing, and he found a bullet behind the driver’s seat that proved to be a .25-caliber ACP (automatic cartridge for pistol). Sean Gilbert worked with defendant and Proby at the Watt Avenue McDonald’s. A week or two before the robbery, defendant told Gilbert he owned a rifle or shotgun. Not more than a week before the robbery, Proby showed Gilbert a chrome-colored .25-caliber semiautomatic handgun. The day after the robbery, Gilbert saw defendant at work with a new Starter brand team jacket and a new Walkman. A couple of days after the robbery, Ruby saw defendant with what appeared to be a new red leather team jacket and a new portable compact disc player. b. Defense case The defense presented the testimony of several witnesses in an effort to cast doubt on the eyewitness identifications. John Burreson, who was working at the Watt Avenue McDonald’s at the time of the robbery, testified that defendant walks with a limp and he did not notice the robber doing so. Burreson did not recognize defendant as being the robber, but acknowledged he never looked at the robber’s face and only saw him take three or four steps. In an interview with a police officer on the night of the robbery, Michael Baumann indicated he thought defendant was the robber, but did not say he was sure. In a later interview with Detective Minter, however, Baumann positively identified defendant as the robber. In a March 1995 interview, Baumann told defense investigator Marilyn Mobert that the robber “kind of looked like” defendant and, when Mobert showed him a photo of Vera Penilton’s cousin, Anthony Edwards, Baumann indicated that Edwards’s nose, mouth, and complexion were similar to the robber’s. 3. Florin Road Robbery and Murder a. Prosecution case After the Watt Avenue robbery, defendant told Proby and Penilton he wanted to “do another lick,” i.e., commit another robbery. During September 1994, the month in which the two robberies occurred, Ulanda Johnson testified defendant and Proby were good friends and saw each other every day; she teased defendant that Proby was his “girlfriend.” On September 27 or 28, defendant accompanied one of Johnson’s friends, Deborah Allen, to a residence on Hillsdale Boulevard in Sacramento so she could retrieve some of her property. Allen testified defendant was holding a small silver gun. Defendant and Proby were seen together on September 28, both before and after the Florin Road robbery, at Penilton’s and Johnson’s residences. Defendant was carrying his black backpack when he left Johnson’s house that evening. Jeffrey Hickey was the manager in charge of the closing shift at the Florin Road McDonald’s on September 28. Also working that shift were Ronald Lee, Pravinesh Singh, and Jerome Williams. Previously, from October 1993 to April 1994, defendant had worked at the same restaurant. Hickey, Lee, and defendant had worked the same shift together about a dozen times. The restaurant was scheduled to close at 11:00 p.m. About 10:40 p.m., Hickey entered the men’s restroom, propped open the door, and began to scrub graffiti off the wall. A loud aluminum fan made it difficult to hear what was going on elsewhere in the restaurant. While Hickey was cleaning the wall, an African-American man standing about Hickey’s own height (five feet MM inches tall), weighing about 165 pounds, and wearing a baseball cap and a scarf over the lower portion of his face, whom Hickey later identified as Proby, came into Hickey’s view in the doorway. Pointing what appeared to be a sawed-off rifle at Hickey, Proby told him to lie down on the floor, and Hickey complied. Proby left the restroom and headed toward the main area of the restaurant, but returned after about two minutes and asked Hickey if he could open the safe. Still pointing the gun at Hickey, Proby followed him to the restaurant’s office. Ronald Lee lay on the floor just outside the office doorway. The other employees were in the stockroom just past the office. A second man, whom Hickey described as being about six feet two inches tall and weighing 185 to 200 pounds, was standing against a salad preparation table just outside the office and holding what appeared to be a small semiautomatic handgun. Although Hickey deliberately refrained from looking at the second man’s face in order to avoid giving the impression he was looking for identifying features, he perceived that the second man’s physical characteristics were consistent with defendant’s. While Hickey was opening the safe, the second man told him three times to hurry up, in an unnaturally low voice, as if he was trying to sound gruff. After opening the safe, Hickey left the office and lay on the floor facing the back of the restaurant, where the employees were. The second robber put his foot on Hickey’s head to stop him from looking at the employees. Hickey heard cash drawers being removed from the safe. The second robber reached into Hickey’s back pocket, removed his wallet, and after a few seconds placed it on Hickey’s back. After two or three minutes, Hickey heard the robbers leave the restaurant. After about two more minutes, Hickey got up, checked on the other employees, and called the police. Singh and Williams got up, but Lee still lay on the floor. Hickey then noticed that Lee had a wound on the back of his head. An ambulance later came to take Lee away. Hickey ascertained that the robbers had taken about $550 in cash and a steel box containing some gift certificates. After the robbery, about 11:30 p.m., defendant and Proby went to Ulanda Johnson’s house, where Johnson noticed defendant was wearing his black backpack on his right shoulder. The next morning, the backpack, containing a gun, was on Johnson’s living room floor. Also late in the evening after the robbery, defendant and Proby went to Vera Penilton’s house, entered her bedroom, and shut the door. Penilton stood outside the door, listening to their conversation. She heard Proby talking about how they had robbed another McDonald’s, and heard defendant say he had killed his friend. Penilton entered the bedroom, and defendant told her he had shot his friend in the back of the head because the boy had said his name. In defendant’s backpack were a metal box containing gift certificates and some rolls of coins. On September 29, the day after the Florin Road robbery murder, defendant made a deposit of $212, consisting of $5 and $1 bills, into his share account at the SAFE Federal Credit Union. Less than 20 minutes later, Proby opened an account at the same credit union. Later that day, defendant and Penilton were riding in Proby’s car while Proby drove. A police car with flashing lights came up behind them, and officers inside tried to get Proby to stop. At defendant’s urging, Proby continued to drive, running several red lights. Finally, having driven into the parking lot at Ulanda Johnson’s apartment building, defendant and Proby jumped out of the moving car, which crashed into a police car and came to a stop. Defendant and Proby were arrested. Penilton was taken to the police station and interviewed. Initially, she testified, she did not tell the officers the whole truth because she was afraid. She did, however, tell them about the conversation she had overheard between defendant and Proby in her bedroom and that defendant had told her he had killed a boy. Penilton allowed the officers to search her room. They seized money, gift certificates, and the metal box. During a second search, officers seized the phone defendant had taken in the Watt Avenue robbery. Penilton agreed to speak with the officers a second time because she felt bad she had not previously told them the truth. During the second interview, she told them what she knew about the robberies. The cause of Lee’s death was determined to be a wound to the back right side of his head from a copper-jacketed .25-caliber AGP bullet designed to operate in a semiautomatic weapon. A live cartridge of the same type of ammunition was recovered from Zaharko’s truck. b. Defense case Pravinesh Singh was cleaning the kitchen at the time of the robbery and saw only one of the robbers, whom he described as being a dark-complected African-American male about five feet eight inches tall, wearing black clothing and a green ski mask. The robber, who Singh testified was not defendant, held a small silver handgun with which he motioned nervously to Singh to get onto the floor. Singh complied, lying facedown toward a storage room and away from the robber. Singh saw Ronald Lee walking toward the safe and standing near the office door. Singh heard a voice coming from the office, angrily demanding the safe be opened, and then heard a gunshot and a “dropping” sound, like someone falling down. He did not hear Lee say anything to the robber. B. Discussion 1. Jury Selection Issues a. Asserted Batson/Wheeler error Defendant contends the judgment must be reversed because the prosecutor peremptorily challenged a prospective juror on the basis of race and the trial court erred in overruling defendant’s objection to the challenge, in violation of defendant’s constitutional rights to a trial by a jury drawn from a representative cross-section of the community, to equal protection of the law, and to a fundamentally fair and reliable trial. (Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 106 S.Ct. 1712]; People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748],) For the reasons that follow, we disagree. “ ‘Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 936 [47 Cal.Rptr.3d 420, 140 P.3d 736].) Recently, “the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, the defendant, must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67 [33 Cal.Rptr.3d 1, 117 P.3d 622]; see also People v. Mills (2010) 48 Cal.4th 158, 173 [106 Cal.Rptr.3d 153, 226 P.3d 276].) “ ‘ “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” [Citation.] [|] In determining whether the defendant ultimately has carried his burden of proving purposeful racial discrimination, “the trial court ‘must make “a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .” [Citation.]’ ” (People v. Reynoso (2003) 31 Cal.4th 903, 919 [3 Cal.Rptr.3d 769, 74 P.3d 852].) “[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.” ’ ” (People v. Stanley, supra, 39 Cal.4th at p. 936.) “Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” (People v. Lenix (2008) 44 Cal.4th 602, 613-614 [80 Cal.Rptr.3d 98, 187 P.3d 946].) Defendant’s contention relates to the excusal of M.H., an African-American male prospective juror. In response to defendant’s objection to the prosecutor’s challenge to M.H., the trial court asked the prosecutor to state his reasons for the challenge on the record, impliedly finding defendant had made a prima facie showing of discrimination. (People v. Fuentes (1991) 54 Cal.3d 707, 716 [286 Cal.Rptr. 792, 818 P.2d 75].) Turning first to M.H.’s questionnaire responses, the prosecutor explained he challenged M.H. because M.H. wrote that the OJ. Simpson trial “restore[d]” his “faith” in the justice system, whereas the prosecutor believed the Simpson trial was a “travesty.” The prosecutor also was concerned that M.H. “disagreed strongly” with the proposition that if the prosecution brings someone to trial, that person is probably guilty; the prosecutor reasoned he could “live with” a juror who “disagreed somewhat” with that proposition, but a response as extreme as M.H.’s was problematic, in the prosecutor’s view. The prosecutor also noted that M.H. believed it was better to let some guilty people go free rather than risk convicting an innocent person, whereas the prosecutor preferred a jury composed of people “oriented the other way.” The prosecutor cited M.H.’s views on the death penalty, specifically his statement (as paraphrased by the prosecutor) that he would only impose it if he were required to do so; because a death sentence is never mandatory, the prosecutor reasoned M.H. would not impose it: “And he is of the frame of mind, I feel someone is going to have to force him or require him to do it, and I don’t believe on this type of a decision I want someone with that frame of mind, because it is a major decision in someone’s life, and I think they have to feel comfortable about it, and I don’t feel he felt comfortable about it.” Finally, the prosecutor cited M.H.’s questionnaire response that he originally felt the death penalty was imposed unfairly against African-Americans, and now was unsure; the prosecutor “didn’t feel that he would have the strength to [impose the death penalty], even if he felt that it was right.” The trial court denied the motion without comment. Defendant argues the trial court failed to make a sincere and reasoned attempt to evaluate the prosecutor’s stated reasons for the excusal. As noted, the trial court is not required to explain on the record its ruling on a Batson/Wheeler motion. (People v. Reynoso, supra, 31 Cal.4th at p. 919.) “When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.” (People v. Silva (2001) 25 Cal.4th 345, 386 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Citing Silva, at page 385, defendant contends such an explanation was necessary in this case because the record contradicts the prosecutor’s stated reasons for the challenge. To the contrary, we believe a fair reading of the record supports those reasons, along with the trial court’s ruling. Of the reasons the prosecutor gave for excusing M.H., defendant here focuses primarily on one: the prosecutor’s assertion that M.H. said he would impose the death penalty only if required to do so. Defendant argues that, contrary to the prosecutor’s explanation, M.H. did not indicate he would impose the death penalty only if required to do so, but rather said, “if I were required to impose it I would,” after a fair trial. M.H.’s entire response to the relevant question asking him to briefly describe his opinions on the death penalty was that the “death penalty should only be applied under certain circumstances, only after fair trail [szc] if I were required to impose it I would.” This answer is reasonably susceptible of the interpretation the prosecutor placed on it. As the Attorney General argues, M.H. identified only two circumstances in which he would vote for death: after a fair trial and if he were required to do so. Defendant’s trial presumably would be fair, but in no event would M.H. be required to vote for the death penalty. The prosecutor therefore could reasonably be concerned that M.H. would not be a favorable juror for the prosecution. “[A] prospective juror’s scruples regarding the death penalty ‘are reasonably related to trial strategy [citation] and are a legitimate race-neutral reason for exercising a peremptory challenge.’ ” (People v. Cowan (2010) 50 Cal.4th 401, 448-449 [113 Cal.Rptr.3d 850, 236 R3d 1074].) That M.H. stated on voir dire that he could consider both penalties, and thus demonstrated he was not subject to removal for cause (see Wainwright v. Witt (1985) 469 U.S. 412, 424 [3 L.Ed.2d 841, 105 S.Ct. 844] [a juror in a capital case may be excused if his or her views would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ”]), did not preclude the prosecutor from exercising a peremptory challenge when M.H.’s questionnaire responses indicated a degree of reluctance to impose the death penalty with which the prosecutor was uncomfortable. (See Cowan, at pp. 448^-51 [discussing prospective jurors’ oral and written comments in upholding excusáis]; People v. Semien (2008) 162 Cal.App.4th 701, 708 [75 Cal.Rptr.3d 880].) The prosecutor’s interpretation of M.H.’s response to the question seeking his views on the death penalty, moreover, must be understood in light of his responses to questions Nos. 80 and 90.b, where he espoused, respectively, the views that the criminal justice system treats some individuals unfairly based on race and that, in the past and possibly in the present day, the death penalty has been imposed unfairly against members of minority groups. Given M.H.’s expressed concerns regarding the fairness of the criminal justice system, together with his statement that he could return a death verdict only after a “fair trial,” the prosecutor could reasonably have concluded that M.H. would be an unfavorable juror from the prosecution’s standpoint. Defendant contends a comparative analysis of the questionnaire responses given by Juror No. 7 demonstrates that the prosecutor’s stated reasons for excusing M.H. were mere pretexts for racial discrimination, in that Juror No. 7, a White juror whom the prosecutor did not challenge, gave responses similar to those given by M.H. We grant defendant’s request that we conduct such an analysis, even though he failed to make the corresponding argument below. (See People v. Lenix, supra, 44 Cal.4th at p. 607.) We disagree, however, that it dictates a finding of Batson/Wheeler error in this case. Defendant first contends that both M.H. and Juror No. 7 expressed similar views of the OJ. Simpson trial, which the prosecutor cited in M.H.’s case as a basis for excusal. Not so. In response to question No. 65.b (“How, if at all, did the OJ. Simpson trial affect your view of the courts and the criminal justice system?”), M.H. stated the Simpson trial “restored” his “faith.” Juror No. 7’s answer to the same question was: “It raised my concerns on jury selection and impact of televising a trial.” In response to question No. 64 (“During the past year, have you followed newspaper or television reports for any particular criminal case?” and “What opinions, if any, did you form about the criminal justice system as a result?”), Juror No. 7 reported following the OJ. Simpson and “Terry McVie” cases and observed, “The court system still works.” In response to the same question, M.H. denied following media reports for any particular court case. Plainly, Juror No. 7’s response to the question specifically dealing with the Simpson case was dissimilar to M.H.’s, and his response to the more general question about recent criminal cases did not necessarily constitute an endorsement of the result in the Simpson case. Defendant correctly points out that, in their questionnaires, both M.H. and Juror No. 7 “disagreed strongly” that if the prosecution brings someone to trial, that person is probably guilty, and that Juror No. 7 agreed even more strongly than M.H. with the proposition that it is better for society to let some guilty people go free than risk convicting an innocent person. As defendant further observes, M.H. and Juror No. 7 shared certain personal characteristics, including academic background, occupation, place of residence, and a preference for science fiction movies. But the two men differed significantly in age and life experience: Juror No. 7 was 51 years old, had been in the military, had a spouse who was employed, and had raised a child to adulthood. He was a supervisor at his place of employment, with the power to hire and fire. M.H. was 34 years old, with a spouse who was not employed and an infant child; he had no supervisory experience or responsibility. The prosecutor reasonably could have taken such life experiences into account in selecting jurors. Juror No. 7’s daughter had worked in a fast-food restaurant (such as the scenes of the crimes here) and another relative had been the victim of a crime, which might have tended to make him more sympathetic to the prosecution in this case; M.H. had no relatives with fast-food experience and knew no one who had been victimized. With respect to views concerning the death penalty, which evidently was a topic of primary importance to the prosecutor, the questionnaires of the two men revealed differences the prosecutor could have found significant: M.H. expressed uncertainty whether the death penalty is imposed too often and whether it is imposed unfairly against African-Americans or any minority group; Juror No. 7 believed the death penalty is imposed neither too seldom nor too often, but “About right,” and expressed no uncertainty whether it is imposed unfairly against minorities. In sum, significant differences in life experiences and attitudes concerning the death penalty existed between M.H. and Juror No. 7, differences the prosecutor could reasonably have taken into account in deciding to peremptorily challenge M.H. and not to challenge Juror No. 7. Defendant’s argument therefore fails. b. Excusáis based on views concerning the death penalty Defendant contends the trial court erred by excusing Prospective Juror O.A. due to her expressed views concerning the death penalty, thereby violating his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution. “The high court has established the legal standard for excusing jurors due to their views on the death penalty, first in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], and then in Wainwright v. Witt[, supra,] 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]. In Witt, the Supreme Court explained that a prospective juror may be excused in a capital case if ‘the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ (Id. at p. 424.) We apply the same standard under the state Constitution.” (People v. Gray (2005) 37 Cal.4th 168, 192 [33 Cal.Rptr.3d 451, 118 P.3d 496].) “ ‘There is no requirement that a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.’ [Citation.] ‘Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.] The trial court must determine whether the prospective juror will be “unable to faithfully and impartially apply the law in the case.” [Citation.] A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause. The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. [Citation.] “[W]here equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court.” ’ ” (People v. Gray, supra, 37 Cal.4th at pp. 192-193.) In her questionnaire, when she was asked to describe her opinions about the death penalty, O.A. wrote: “I could not agree on a death penalty. I could agree with life in prison.” She indicated she felt the death penalty was imposed “Too often,” that it served no purpose, and there was no type of case in which she thought it ought to be imposed. She indicated she would automatically refuse to vote for the death penalty and that she would automatically always vote for life in prison without the possibility of parole. Her answers during individual voir dire were less certain than those expressed in her questionnaire, but nonetheless expressed at least a distinct predisposition to favor life over death. In response to the trial court’s question whether or not she could consider both penalties, she responded: “No, I don’t think that I can.” When the trial court immediately followed this answer by inquiring if she was predisposed to one penalty, O.A. stated: “Yes. [f] . . . [][] Life imprisonment.” In response to further questioning by the trial court, however, O.A. indicated she thought she “would probably follow the court’s instructions.” In response to the trial court’s question whether, after she had heard all the evidence, arguments, and court’s instructions she concluded death was the appropriate penalty, she would vote for death, she stated: “Probably. I think so, yes.” O.A. then explained, “I think [the] reason I am hedging more is because I feel that—I would have a difficult time doing it, but I would follow the court’s instruction.” After the trial court again asked “if you felt that [death] would be the appropriate penalty, despite it being difficult and despite maybe you not liking it, you would vote [for] the death penalty, is that true, ma’am?” O.A. responded, “Yes. [][]... [][] That’s true.” After a few additional questions from the prosecutor and the trial court, O.A. explained that, based on her personal beliefs, which derived in part from religion, she believed the death penalty was “not right” and that therefore she could not make the decision to impose death. Defense counsel did not ask O.A. any questions. The prosecutor challenged O.A. for cause, defense counsel submitted the matter without argument, and the trial court excused her. In light of O.A.’s answers to the jury questionnaire, as well as her equivocal answers on voir dire, we defer to the trial court’s implicit determination regarding her state of mind and conclude substantial evidence supports the court’s ruling the juror’s views on the death penalty would “ ‘prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424; see People v. Wilson (2008) 44 Cal.4th 758, 779 [80 Cal.Rptr.3d 211, 187 P.3d 1041].) Defendant next contends the trial court applied disparate standards in evaluating “pro-life” Prospective Juror O.A. and “pro-death” Prospective Juror B.S., claiming B.S. “testified unequivocally that he believed the death penalty should be ‘automatically’ imposed on anyone who intentionally killed another person.” This unequal treatment, defendant claims, violated his rights to a fair and impartial jury and to due process. We disagree. B.S. indicated that despite his religious belief in “an eye for an eye,” he could set aside that belief and follow the law and the court’s instructions. O.A. did not make such a clear statement. Further, unlike O.A., B.S. indicated without equivocation that he could consider and impose both penalties. In light of the clear differences in the expressed views of these two prospective jurors on their ability to impose the death penalty, we reject defendant’s claim that the trial court applied disparate standards in evaluating their answers. 2. Denial of Severance Motion On July 7, 1997, shortly before trial began, defendant moved to sever the Watt Avenue charges from the Florin Road charges. Although he conceded all of the alleged offenses were of the same class, and hence permissibly joined under section 954, he argued the evidence of each set of offenses was inadmissible in the trial of the other, and their joinder would prejudice him while effecting no substantial judicial economy. The trial court denied the motion without comment. On appeal, defendant contends the trial court’s ruling constituted error under state law and denied him due process of law. For the reasons discussed below, we conclude the trial court did not abuse its discretion or otherwise violate defendant’s rights by denying the severance motion. Section 954 provides in relevant part: “An accusatory pleading may charge two or more different offenses connected together in their commission, ... or two or more different offenses of the same class of crimes or offenses, under separate counts, .. . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” Because the Watt Avenue and Florin Road charges alleged offenses of the same class, “the statutory requirements for joinder were satisfied,” and defendant “can predicate error in denying the motion only on a clear showing of potential prejudice. [Citation.] We review the trial court’s ruling on the severance motion for abuse of discretion.” (People v. Kraft (2000) 23 Cal.4th 978, 1030 [99 Cal.Rptr.2d 1, 5 P.3d 68]; see People v. Soper (2009) 45 Cal.4th 759, 773-774 [89 Cal.Rptr.3d 188, 200 P.3d 816].) “ ' “ ‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] [f] ‘The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]” ’ ” (People v. Kraft, supra, 23 Cal.4th at p. 1030, quoting People v. Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259]; see also People v. Soper, supra, 45 Cal.4th at pp. 774-775.) “Our determination whether defendant was prejudiced by joinder requires us first to examine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled. (People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316.) Conversely, however, the absence of cross-admissibility does not, by itself, demonstrate prejudice. (Id. at p. 1316.)” (People v. Kraft, supra, 23 Cal.4th at p. 1030.) Defendant contends none of the evidence of each set of offenses would properly have been admitted in a separate trial of the other set of offenses. Evidence Code section 1101, subdivision (a), he notes, generally prohibits the admission of evidence of a person’s conduct on a specific occasion to prove he acted in character on another occasion. Although subdivision (b) of that statute makes evidence of a prior bad act admissible if relevant to prove a fact in issue other than character (such as his motive, identity, opportunity, intent, plan, or knowledge), defendant contends the evidence in this case was not admissible under subdivision (b). We have said that “[i]n determining whether evidence of uncharged misconduct is relevant to demonstrate a common design or plan, it is useful to distinguish the nature and degree of similarity (between uncharged misconduct and the charged offense) required in order to establish a common design or plan, from the degree of similarity necessary to prove intent or identity. [][] The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar result. . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish ... the presence of the normal, i.e., criminal, intent accompanying such an act... .’ [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.] [ft] A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [ft] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [ft] The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757], fn. omitted.) We have also said “ ‘[o]ther-crimes evidence is admissible to prove the defendant’s identity as the perpetrator of another alleged offense on the basis of similarity “when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses.” [Citation.]’ [Citation.] The inference of identity, moreover, need not depend on one or more unique or nearly unique common features; features of substantial but lesser distinctiveness may yield a distinctive combination when considered together.” (People v. Miller (1990) 50 Cal.3d 954, 987 [269 Cal.Rptr. 492, 790 P.2d 1289].) Defendant relies on certain language in Ewoldt in arguing that the evidence of the Watt Avenue and Florin Road offenses was not cross-admissible. We said in that case: “[I]n most prosecutions for crimes such as burglary and robbery, it is beyond dispute that the charged offense was committed by someone; the primary issue to be determined is whether the defendant was the perpetrator of that crime. Thus, in such circumstances, evidence that the defendant committed uncharged offenses that were sufficiently similar to the charged offense to demonstrate a common design or plan (but not sufficiently distinctive to establish identity) ordinarily would be inadmissible. Although such evidence is relevant to demonstrate that, assuming the defendant was present at the scene of the crime, the defendant engaged in the conduct alleged to constitute the charged offense, if it is beyond dispute that the alleged crime occurred, such evidence would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value.” (People v. Ewoldt, supra, 7 Cal.4th at p. 406.) Defendant reasons the identity of the perpetrator of the Watt Avenue and Florin Road robberies was the primary issue at trial, and argues the evidence here lacks common features of sufficient distinctiveness to establish his identity as the robber. We disagree the similarities in the crimes were insufficient to establish identity. Although there may be nothing particularly distinctive about an armed robbery of a McDonald’s restaurant at closing time, per se, in this case certain common features of the Watt Avenue and Florin Road robberies before the trial court at the time it made its ruling sufficed to demonstrate defendant’s identity as the perpetrator. These included (1) defendant’s contemporaneous or former employment at both restaurants and his consequent knowledge of their layout and operations; (2) the involvement in both robberies of defendant’s friend, Proby, who also had worked at one of the restaurants; (3) the perpetrator’s use, in both robberies, of a disguised and unnaturally gruff or gravelly voice; (4) the perpetrators’ use of scarves to cover the lower portions of their faces in both robberies; (5) the circumstance that defendant was seen with Proby before and after the Florin Road robbery, and after the Watt Avenue robbery; (6) the discovery of items taken in both robberies at the home of Proby’s girlfriend, Vera Penilton; (7) the circumstance that the same type of ammunition used to kill Ronald Lee in the Florin Road robbery was found in Stanly Zaharko’s truck, which had been taken in the Watt Avenue robbery; and (8) defendant’s admissions to witnesses regarding his involvement in both robberies. In the aggregate, these common features support a reasonable inference that defendant committed both sets of offenses. (See People v. Hovarter (2008) 44 Cal.4th 983, 1004 [81 Cal.Rptr.3d 299, 189 P.3d 300].) The evidence of each robbery therefore would have been cross-admissible in a separate trial of the other, and defendant cannot demonstrate prejudice from the joinder of the two sets of offenses. The trial court did not abuse its discretion in denying defendant’s severance motion, and joint trial of the Watt Avenue and Florin Road offenses did not result in fundamental unfairness and did not deprive defendant of due process. Defendant further contends that, even assuming some evidence of each robbery would have been cross-admissible on the question of identity, the evidence should have been excluded under Evidence Code section 352 and the federal due process guarantee because evidence of the murder of Ronald Lee at the Florin Road restaurant was irrelevant to the Watt Avenue robbery counts. This argument, in essence, merely reframes the contention that the trial court abused its discretion in denying defendant’s severance motion and lacks merit for the reasons discussed above. 3. Evidentiary Issues a. Exclusion of third party culpability evidence Defendant contends the trial court violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and also erred under state law by improperly forcing him to choose between competing constitutional rights in ruling on the admissibility of proffered evidence of third party culpability. The proffered evidence fell into two categories. As to the first, defendant moved for admission of a portion of an out-of-court statement by Proby to police concerning the Florin Road crimes. In the statement, while Proby admitted that he and defendant entered the restaurant and committed the robbery and that defendant shot Ronald Lee, Proby also said a man named “Blackie” supplied one of the guns they used and served as the getaway driver. The trial court ruled that if the defense sought to introduce the portion of the statement describing Blackie’s involvement, the entirety of the statement, including the portion in which Proby stated he and defendant entered the restaurant and defendant was the shooter, would be admitted. Given the ruling, defendant declined to introduce Proby’s statement and no portion of it was admitted at trial. The second category of evidence concerned Anthony Edwards, Vera Penilton’s cousin. The defense sought to introduce Edwards’s prior acts of violence, including his convictions for assault with a firearm and spousal abuse. The prosecutor argued that the absence of any direct or circumstantial evidence linking Edwards to the charged crimes rendered the proffered evidence inadmissible. The trial court agreed, denying the defense motion “without prejudice” to the presentation of additional evidence of Edwards’s involvement in the crimes. Defendant did not renew his motion, and no evidence of Edwards’s prior acts of violence was admitted at trial. Defendant challenges both rulings on appeal. As will appear, we conclude the trial court’s rulings were consistent with applicable evidentiary and constitutional principles. i. Proceedings in the trial court Before trial, the prosecutor filed a motion to exclude third party culpability evidence. At a hearing on the issue, the prosecutor objected to the admission into evidence of any references to “Blackie.” The court made a preliminary order precluding the defense from bringing up evidence of third party culpability “unless he has a witness that can prove that.” Thereafter, defendant filed a motion to admit third party culpability evidence, supported by an offer of proof. Of particular significance, he offered to prove that in a statement made on October 3, 1994, Proby told law enforcement officers a third person, “Blackie,” was involved in the Florin Road robbery murder and that Blackie, a friend of Proby’s from the neighborhood whose true identity Vera Penilton would know, supplied a sawed-off rifle and drove the getaway car. Proby also allegedly gave a description of Blackie to police that more closely matched the description of the Florin Road shooter given by two of the percipient witnesses than it did defendant, in that Proby described Blackie as a Black male, thin and dark complected, five feet nine inches to five feet 10 inches tall, whereas defendant is six feet three inches tall. Defendant further offered to prove that Penilton told a defense investigator she had a cousin named Anthony Renard Edwards, nicknamed “Black Black” due to his dark complexion, and that Edwards would sometimes go places with Proby in Proby’s car and had done so several times during the month of the Florin Road offenses. Finally, defendant offered to prove that Edwards, who had been released on parole in Sacramento in July 1994, had an extensive record of assaultive behavior and use of weapons. The prosecutor argued that if the portion of Proby’s statement relating to Blackie’s involvement were admitted, then the portion describing defendant’s role in the crimes likewise should be admitted. The prosecutor explained that surveillance video footage in the Florin Road robbery murder showed only two robbers, and eyewitnesses spoke of seeing only two robbers; thus, he implied, the jury would be misled if it heard only the part of Proby’s statement that described his and Blackie’s roles in the offense. The prosecutor also opposed the admission of evidence of Edwards’s criminal history, arguing that its dissimilarity to the Florin Road offenses and the absence of any direct or circumstantial evidence linking Edwards to those offenses rendered it irrelevant, and that it constituted improper character evidence under Evidence Code section 1101, subdivision (a). The trial court denied defendant’s motions to limit the use of Proby’s statement and to permit evidence of Edwards’s violent conduct. Proby asserted his privilege against self-incrimination and did not testify at defendant’s trial, and no part of his statement was introduced into evidence. ii. Analysis In People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99], this court articulated the standard California courts apply in determining the admissibility of third party culpability evidence. We said: “To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39, 51 [223 P. 65]], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third' person to the actual perpetration of the crime.” (Id. at p. 833.) Nothing in Proby’s statement, considered as a whole, tended to raise a reasonable doubt about defendant’s guilt. Proby told the police that he and defendant went into the Florin Road McDonald’s to commit robbery and that defendant shot the victim. The circumstance that, according to Proby’s statement, another person also played a role in the crime by supplying a gun and waiting for defendant and Proby in the getaway car in no way negated or diminished defendant’s culpability as the actual shooter. We may properly look at Proby’s statement as a whole because, as the trial court concluded, the prosecution was entitled under Evidence Code section 356 to introduce the portion of the statement describing defendant’s participation in the offense if the defense introduced the portion describing Blackie’s participation. “The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156 [51 Cal.Rptr.2d 770, 913 P.2d 980].) Here, in view of the eyewitness and surveillance footage evidence suggesting two men committed the Florin Road robbery, for defendant to introduce the portion of Proby’s statement mentioning only Proby and Blackie would have conveyed the misleading impression that only Proby and Blackie participated in the robbery, when Proby actually told the detective that defendant too participated. This case exemplifies the policy underlying the code section. Defendant wanted to rely on a part of Proby’s statement to imply that Blackie was the shooter, which was contrary to what Proby actually said elsewhere in his statement. The rule of completeness exists to prevent such a misuse of evidence. The trial court therefore correctly concluded that Evidence Code section 356 permitted the prosecution to introduce other portions of Proby’s statement making that fact clear. Application of Evidence Code section 356 hinges on the requirement that the two portions of a statement be “on the same subject.” As he did at trial, defendant contends that section 356 is inapplicable because the portion of Proby’s statement addressing Blackie’s role in the Florin Road crimes constituted a different subject than defendant’s own role in those same crimes. We are unpersuaded. “ ‘In applying Evidence Code section 356 the courts do not draw narrow lines around the exact subject of inquiry.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 959 [17 Cal.Rptr.2d 122, 846 P.2d 704].) As the Attorney General argues, both portions of the statement were part of Proby’s description of what happened during the Florin Road robbery murder, including who was involved in the offenses and what each person’s role was that night, and the introduction of one portion without the other would have left a misleading impression in jurors’ minds. Nor, as defendant argues, would the confrontation clause of the Sixth Amendment to the United States Constitution have precluded the admission, under the hearsay exception embodied in Evidence Code section 356, of the portion of Proby’s statement that implicated defendant. In interpreting the requirements of the confrontation clause, the United States Supreme Court in Crawford recognized the continuing validity of exceptions, like the rule of forfeiture by wrongdoing, that derive from equitable considerations rather than an improper judicial determination of reliability. (Crawford v. Washington (2004) 541 U.S. 36, 62 [158 L.Ed.2d 111, 124 S.Ct. 1354].) “The Roberts test [(Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531], overruled in Crawford)] allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. For example, the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability.” (Crawford, at p. 62.) We conclude the rule of completeness also falls within this category. Other courts have reached the same conclusion. In People v. Parrish (2007) 152 Cal.App.4th 263 [60 Cal.Rptr.3d 868], for example, the Court of Appeal rejected a simil