People v. Sassounian (182 Cal. App. 3d 361, 1986)

Opinion

CROSKEY, J.

The defendant and appellant Harry M. Sassounian (herein the defendant), appeals from the judgment imposing upon him a sentence of life imprisonment without possibility of parole following a jury trial in which he was found guilty of murder in the first degree (Pen. Code, § 187), with a true finding of the special circumstance that the killing was because of the victim’s nationality or country of origin. (Pen. Code, § 190.2, subd. (a)(16).)

Factual Background

On the last morning of his life, Kemal Arikan (herein Arikan), the Consul General of the Republic of Turkey at Los Angeles, left his home in the Westwood area of Los Angeles to go to work, unaware that two armed men waited two blocks away to kill him for no other reason than he was who he was (i.e., a Turk, and an official representative of the government of Turkey). It was 9:40 a.m., January 28,1982. He drove his usual route, east on Ashton Avenue to Comstock Street and north on Comstock with the intention of turning right on Wilshire Boulevard. He never made it.

The evidence, viewed in the light most favorable to the judgment (People v. Brock (1985) 38 Cal.3d 180, 198 [211 Cal.Rptr. 122, 695 P.2d 209]; People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]), established that about 9:45 a.m. on January 28, 1982, as Arikan stopped at the signal light at Comstock and Wilshire, two men, each armed with a large caliber handgun, approached the vehicle (which was equipped with California “Consular Corps” license plates), one from the driver’s side and the other from the passenger’s side, and fired a number of rounds at Arikan from very close range. Arikan died within a very few minutes from multiple gunshot wounds to the head and chest. Following the shooting the two gunmen ran south on Comstock, deposited their weapons under a hedge and then made their escape in a grey car. Unfortunately for the defendant, these events were witnessed by a number of people.

At least three eyewitnesses made a positive identification of the defendant as one of the two men who had been seen (1) waiting on the corner a few minutes before the shooting took place, (2) standing by the passenger side of Arikan’s vehicle while the shooting was going on and then, (3) running south on Comstock with his companion while stuffing a large handgun into his waistband. In addition, a fourth eyewitness followed the two men, watched them hide their guns under a hedge and drive away in the grey car. He noted the number on the license plate (California license No. 534 TER) which information was given to the police. A grey Chevrolet bearing that license number was registered to the defendant. He was arrested about 3 p.m. that afternoon near his Pasadena home driving that vehicle.

The defendant, an Armenian, had come with his family from Lebanon some six and one-half years earlier. This fact, taken together with his expressed hatred of the Turkish people, Arikan’s status as an official representative of the Republic of Turkey and, most importantly, a jailhouse confession by the defendant as to the motive, method and planning of the murder, served as the evidentiary basis for the jury’s true finding on the special circumstance of “national origin.”

A. Summary of the People’s Case

1. The Eyewitness Testimony

(a) Genie Goetz testified that at approximately 9:20 a.m. on Thursday, January 28, 1982, she was on her way to a class at UCLA and, driving north on Comstock, had stopped for the red light at the intersection with Wilshire. While waiting for the light to change so that she could proceed, she noticed a man she later identified as the defendant standing on the southeast comer of Wilshire and Comstock and another man standing on the opposite corner (i.e., the southwest comer of that intersection). In her testimony, she described their behavior as somewhat strange and that they were both standing very close to the street. In spite of the fact that they had a green light, they were making no attempt to cross the street but simply staring at each other (although the man on the west side of the intersection was also looking frequently up towards the nearby Beverly Comstock Hotel). She continued to observe the two men until the light for north-south traffic on Comstock changed. She then proceeded on across Wilshire to attend her class at UCLA. It was not until about 2 p.m. that afternoon that she heard anything about a “shooting” which had taken place at Wilshire and Com-stock. That evening at approximately 9 o’clock, she telephoned the Los Angeles Police Department and informed them of what she had seen. Subsequently, on February 1, 1982, she was taken to a lineup at which time she picked out the defendant from a group of seven persons who had been made available for various eyewitness identification. She also identified the defendant at the preliminary hearing and at trial. In addition, she identified a blue vest (People’s exhibit 37) as an article of clothing which the defendant had been wearing at the time she saw him. This was an item of clothing retrieved by the police from the defendant’s brother.

(b) James Jeffs testified that he left his apartment on Ashton Avenue about 9:47 a.m., drove east on Ashton and then turned left and went north on Comstock towards the intersection with Wilshire. He stated that he stopped for the stop sign at the corner of Ashton and Comstock. It was at that time that he heard six shots, or what he thought were gunshots. He then saw two men running south on Comstock. One of them, wearing a blue vest or waist-length coat, was carrying a handgun in his left hand. Mr. Jeffs subsequently identified this man as the defendant. On February 1, 1982, he was taken to a lineup of six individuals. At that lineup he indicated that he “believed” that the defendant (No. 4 in the lineup) was the man he had seen running on January 28, wearing the blue vest and carrying a handgun in his left hand. On the same date, he made a second identification of the defendant out of a photo lineup and later identified the defendant at the preliminary hearing. He made a final identification of the defendant at the trial. When asked what he meant when he said (at the original lineup) he “believed” that the defendant was the man he had seen, he described his certainty as a “high probability” and indicated that it could be quantified as a 70 to 80 percent probability.

(c) Dawn Stensrud was driving westbound on Wilshire and had stopped for the red light at the intersection with Comstock. While she was stopped, she heard a sound that “sounded like a pack of firecrackers going off.” The sound was off to her left and she looked in that direction and saw a white Ford or Lincoln on Comstock heading north on the south side of Wilshire. The vehicle was stopped and there was a man on each side of the car. Just as her attention was directed to the car by the “firecracker” noise, she saw the man on the passenger side of the car start to run and go behind the car as the man on the driver’s side turned. They met at the rear of the car and went south on Comstock. She then saw the white car slowly cross Wilshire, collide with a small red car and then crash into a tree. Photographs introduced at the trial depicted the bullet-riddled body of the victim Arikan slumped in the front seat of the white car as it rested against the tree. Just as the two men had started to run from the white car, she noticed the one on the driver’s side putting something in his waistband. She was unable to identify what it was. She later identified the defendant as the man she saw on the passenger side of the car.

A fourth eyewitness, Wells Wohlwend, an attorney, testified that he had been driving his car south on Comstock on the north side of Wilshire, intending to cross Wilshire. It was just before 10 a.m. and, as he came to the intersection, he heard what he characterized as “cracking noises.” At first, he did not think they were anything other than some construction noises. However, as he crossed Wilshire, he saw two young men running very quickly. They were crossing from the east side of Comstock just south of Wilshire in a diagonal direction over towards the west side of Comstock and were running along the sidewalk. It struck him as very unusual and he followed in his automobile. He states that he got as close as 20 feet behind them. He described the two men as of medium height, dark hair, olive complected with “very athletic capability” because they were running very fast. He saw the two men run south on Comstock and then turn and run west on Ashton Avenue. He observed them bending over a hedge area in front of a house and saw one of them kick at something in the hedge. He passed them, pulled into an alley area and continued to watch them. He observed them leave the hedge and go to a parked automobile. Mr. Wohlwend said that he then backed his car out of the alley and began heading east down Ashton towards the two men who, by this time, had entered their car and were driving towards him. He made no attempt to look at the faces of the men as they passed, but was intent on getting some sort of identification of the car. He noticed that there was no front license plate on the vehicle but that there was a license plate on the back. He observed that license number and later wrote it down on a piece of paper. It was California license number 534 TER. That license was assigned to a grey Chevrolet, and was registered to the defendant, Harry M. Sassounian. Mr. Wohlwend then returned to the intersection of Wilshire and Comstock. At this time he still did not know that anything serious had happened. When he arrived at the intersection he observed a lot of activity and when the police arrived he told them what he had observed.

Three other witnesses testified and provided probative testimony, even though they were not able to make a positive identification of the defendant as one of the killers.

(a) Valli Kaufhold testified that on the morning of January 28, 1982, at a little before 10 a.m., she was walking south on Comstock on the north sidé of Wilshire. She was taking a baby that she took care of out for a walk. She crossed Wilshire Boulevard on the west side of Comstock and as she did so, she noticed two men standing on the southside of Wilshire, one of them on the east side of Comstock, and the other on the west side, next to the Beverly Comstock Hotel. They were standing about two car lengths south of the crosswalk. She noticed that they were standing across from each other and appeared to look at each other. She walked on past them and continued south on Comstock, past the intersection with Club view Drive. She then heard a noise which “sounded like firecrackers just going off all the time.” She turned around and looked back to the Comstock-Wilshire intersection, and saw one man holding a gun and shooting. She saw two shots come out of the end of the gun. She specifically remembered seeing the flash of light or fire coming out of the gun. The man shooting the gun was the one she had seen standing on the east side of Comstock and he was holding his weapon “in a two hand stance” and “slightly crouched.” She could not see the other man who had been standing on the west side of Comstock. She continued walking slowly, pushing the baby carriage, but kept looking over her shoulder. She noticed that the two men were running south on Comstock toward her, and she was frightened for her own safety, and for the safety of the baby. She noticed both of the men with guns in their hands, and as they were running, she saw that they placed them in the waistband of their pants. The two men ran past her and turned west and went down Ashton Avenue, where they got into a grey car and left. She did not get the license number of the car, and could only describe it as a “medium sized” car. She was unable at a subsequent lineup to identify the defendant, but at a photo lineup, on the same day, she picked out the picture of one Krikor Saliba (an individual otherwise identified as a friend of the defendant, sometimes called KoKo), as the man she had seen standing on the west side of Comstock. She also recalls seeing a car following the two men as they were running, before they got into their own car and left. She continued walking and went around the block back to the intersection of Wilshire and Comstock, where she reported what she had seen to the police.

(b) Harry Warrington, an operating engineer, was working in front of the two apartment buildings that are located on the northwest corner of Wilshire and Comstock. He was approximately 300 feet from where the shooting of Arikan took place. It was a little before 10 a.m. when he heard sounds which resembled Chinese firecrackers. When he looked to the source of the sound, he saw two men in different positions around the white car on Comstock, on the south side of Wilshire. He then realized that shots were being fired into the car by the two men. As he looked up the man on the passenger side of the vehicle was by the trunk area of the white car and was starting to leave. When he came out from behind the car Mr. Warrington noticed that he had in his hand a large automatic pistol, and he was running. The man on the driver’s side of the white car turned and took a step or two and then turned back “and did the final shots.” It appeared to Warrington that the man actually had his arm inside the car and was shooting. Then the second gunman started running as well. The white car moved very slowly, at about two miles an hour, across Wilshire Boulevard and against the red light, struck a small red car, and crashed into a large eucalyptus tree on the northeast corner of Wilshire and Comstock. Mr. Warrington was unable to identify the defendant as one of the gunmen, but several days later when he was shown a photo lineup, he did make an identification of Krikor Saliba, as the gunman who he had seen on the driver’s side of the white car. Mr. Warrington had with him a small “walkie-talkie” which he used to notify a secretary in his apartment building that a shooting had occurred and that she should call the police. He remained at the scene until the police arrived and told them what he had observed.

(c) Lois Lian had, between 9:40 and 9:45 a.m., stopped her car for a red light at the corner of Comstock and Wilshire. She was proceeding north on Comstock intending to turn right, and go east on Wilshire. She had driven through that same intersection about 10 minutes before, when she discovered, after leaving her nearby home, that she had forgotten her checkbook. She recalls that about 9:30 she was going east on Wilshire and had turned right on Comstock to return home. She testified that she did not recall seeing anything unusual in the intersection at that time. Upon her return, she noticed a young man standing a little south of the intersection of Wilshire on the east side of Comstock. There was no curb there, due to the existence of a construction fence. Mrs. Lian anticipated that the young man was going to cross the street, but when he did not do so, she made her right turn and proceeded east on Wilshire. When asked whether or not she could identify anyone in the courtroom as the young man she had seen standing on the comer about 9:45 a.m., she pointed out the defendant as someone who “very much resembles the man I remember seeing on the corner.” However, she conceded that her identification was “not absolutely positive” and stated that in order for her identification to be positive, she would have had to have either spoken with the person or know them. She did not learn until several hours later that there had been a shooting at the intersection. After she saw the television reports of the crime, she realized that she had been at the intersection just a few minutes before it must have occurred. She called the police about 9 a.m. the next morning (i.e., on Friday, Jan. 29, 1982), and reported what she had observed.

2. Police Investigation and Arrest of the Defendant

(a) Discovery of the Weapons. After Mr. Wohlwend reported to the police what he had observed while following the two gunmen, including the license number of the grey Chevrolet, he pointed out to the police the area in the hedges on Ashton avenue where he saw the two gunmen bending over and kicking at something. As a result of this information, the police retrieved from the hedge areas a .45 caliber pistol and a .9 mm “Combat Commander” pistol. Latent fingerprint experts were unable to develop any fingerprints from either of these handguns.

(b) Autopsy of the Victim. Dr. Donald Kornblum, acting chief medical examiner, conducted an autopsy on the body of Arikan, during the afternoon of January 28,1982. Based upon that examination, he concluded that Arikan died as a result of multiple gunshots wounds. There were three entry wounds in the face and head, and two in the chest, one of which pierced the heart. There was also a gunshot wound in Arikan’s left knee. It was Dr. Kornblum’s determination, that Arikan died within minutes after he was shot (he was pronounced dead at 10:05 a.m. on Jan. 28, 1982).

(c) Arrest of the Defendant. After obtaining the license number supplied by Mr. Wohlwend, the police determined that the vehicle, a grey Chevrolet, was registered to the defendant and that his residence was at 1375 Villa Street, in Pasadena. The police arrived at the defendant’s residence around 12 noon, on January 28, and placed his home under surveillance. At a little past 1 p.m., deputy sheriffs going through the alley behind 1375 Villa, saw the grey Chevrolet (a 1977 Chevrolet Nova) with the license number 534 TER. These same sheriff’s deputies after driving around the block, observed a white vehicle parked in front of 1375 Villa, with a single male driver honking the horn. One of the deputies identified the driver as “KoKo” Saliba, and a few minutes later they saw the same car, at the rear of the residence near the garage area again honking its horn. A little after 3p.m. on January 28, police officers observed the defendant leave his home driving the grey Chevrolet. The car was stopped and the defendant was placed under arrest.

(d) Other Physical Evidence. On the evening of January 28, 1982, the police conducted a search of the defendant’s home, and recovered, among other things, photographs depicting the defendant, dressed in military fatigues, holding and aiming a semiautomatic weapon and two handguns, which resemble (but there is no contention that they are the same) the two weapons found at the scene of Arikan’s murder. In addition, various items of clothing were later recovered upon which certain chemical tests were made. The police spoke with the defendant’s brother, Ara Sassounian, and obtained from him a blue ski vest or parka which was identified by the witness Genie Goetz, as the one she saw the defendant wearing on the morning of January 28, 1982. Ara Sassounian told police that he and his brother often exchanged clothing, and that he had found the blue ski vest lying on a bed when he came home from school on the afternoon of January 28, 1982. Ara Sassounian also indicated to the police that he had bad feelings towards the Turkish people for the things that they had done in the past, and stated that Turks were animals. He further stated that his brother, the defendant, felt the same way.

(e) Chemical Residue Tests. Gunshot residue and hydroxy guinoline tests were performed on the defendant’s hands as well as on the several items of clothing which the police had recovered. The hydroxy guinoline test was negative, showing merely that the defendant could have been holding metal, but revealing no distinct pattern. The gunshot residue tests, according to the People’s expert, is more accurate and dependable than the hydroxy guinoline tests, and that test detected gunshot residue on the defendant’s left hand. No gunshot residue was detected on the defendant’s right hand. The expert testified that a finding of gunshot residue is consistent with the subject having recently fired a gun. The same expert also sampled a pair of brown Levi corduroy pants, in order to test them for gunshot residue. A number of particles in the waistband were found consistent with gunshot residue.

(f) Fingerprint Evidence. As already noted, the latent fingerprint experts from the Los Angeles Police Department were unable to develop any fingerprints on either of the two handguns found at the scene. Examination of the grey Chevrolet, bearing license number 534 TER did, however, produce fingerprints belonging to both the defendant and “KoKo” Saliba.

(g) Ballistics Evidence. Arleigh McCree, a detective with the Los Angeles Police Department, testified at the trial as a firearms expert. He provided evidence of both ballistics and trajectory analysis. He testified at length regarding his expert qualifications and no issue was made with respect thereto.

McCree identified the .45 caliber handgun found in the hedge on Ashton Avenue. He stated that when found it was fully loaded with the hammer on full cock, and the safety off. There was a single round or cartridge in the chamber, but the magazine, capable of holding seven cartridges, was empty. The gun was test fired to compare test shots with evidence casings and bullets which had been recovered from the scene of Arikan’s murder.

He also identified the .9 mm weapon and its accompanying magazine. It had been found also fully cocked and there was a live cartridge in the chamber, but the magazine was empty. The magazine in the .9 mm weapon was designed to hold nine cartridges. He similarly test fired this weapon in order to make a comparison with the cartridge casings and bullets recovered from the crime scene.

After examining the casings found at the scene and comparing them with the casings produced by the test firings, McCree was able to determine that all of the .45 casings had been fired from the .45 caliber weapon found on Ashton Avenue, and all but one of the .9 mm casings had been fired from the .9 mm weapon found at the scene. McCree had some doubt as to this last casing because of its mutilation, and he was not able to make a positive identification. The casings which were compared included not only those found on the street where the shooting took place, but also those recovered from the interior of Arikan’s car.

In addition, McCree testified that of the bullets and bullet fragments removed from Arikan’s body at the autopsy, one .9 mm bullet was fired from the .9 mm Colt Commander, and one .45 caliber bullet was fired from the .45 Colt automatic pistol.

McCree examined the Arikan vehicle and, from the various bullet holes that he found in the car, he was able to establish the trajectory of each of the shots fired which impacted the exterior and/or interior of the vehicle. For example, he was able to determine that the gunman using the .9 mm pistol was on the driver’s side of the Arikan vehicle, and the person using the .45 caliber handgun was on the passenger side. He further expressed the opinion that the sequence of the shooting began with shots fired as the vehicle approached the intersection of Wilshire and Comstock, and continued as Arikan’s vehicle slowly passed where the gunman had been standing (and/or the gunmen themselves moved to the rear of the vehicle as they were firing).

McCree expressed the opinion that the gunman armed with the .45 caliber pistol had commenced firing as the vehicle approached and continued firing as the vehicle slowly went past him. This was consistent with eyewitness testimony indicating that the gunman, identified as the defendant, was coming around from the rear of the vehicle as the shooting stopped and then ran south on Comstock. This was also consistent with the testimony of the witness Valli Kaufhold who saw the gunman on the east side of Comstock fire two shots from a crouched two-hand firing position.

Finally, McCree testified that in his opinion the gunman on the east side of Comstock was acting as a “stall man,” a tactic often used by assassination teams to get a vehicle to slow or stop so that an attack will more likely be successful. He learned of this tactic in conversations with police officers in foreign countries.

3. The Defendant’s Confession

Although the defendant made no formal statement to the police, evidence was introduced at trial regarding a statement which he made to another jail inmate at the time that he was being held in the Los Angeles County jail awaiting trial. This testimony came from one Jeffrey Busch (herein Busch). Busch testified that while he was in the Los Angeles County jail in February or March 1983, awaiting transfer to the state prison at Chino, California, he met and had a conversation with the defendant. Busch was unable precisely to pinpoint the time when this took place. He stated that it was sometime in February or early March but prior to March 18, 1983 when he was transferred to Chino. During this period of time, Busch was a so-called “khaki trustee” and had relative freedom of movement in the jail during the hours from 5 a.m. to 9 p.m.

Busch testified that he and another trustee, Danny Gruytch (herein Gruytch), were selling cigarettes and candy to inmates awaiting transfer to various court hearings. This was on the first floor of the Los Angeles County jail in the so-called “court line” area. Busch states that he approached the defendant, who was then alone in an open cell (i.e., one with a one-way turnstile and open bars rather than a solid steel door), and asked him if he wanted to buy any cigarettes. He stated that the defendant identified himself as “Sassounian” and asked if he (i.e., Busch) knew anything that would help him with his case.

When Busch indicated to the defendant that he needed more information in order to answer the defendant’s inquiry, the defendant indicated that he was charged with murder and that it involved the assassination of the Turkish Consul in Los Angeles and that it was a revenge killing which he and others had planned and carried out as part of their involvement with the “Justice Commandos.” It was an act of revenge against the Turkish people for what they had done years before to the Armenians. The defendant also described to Busch the weapons that were used, the number of persons involved and confirmed that they had spent sometime in surveillance of their victim in order to determine the best time and place to carry out the assassination.

This meeting, if not the entire conversation, is corroborated by the other trustee, Gruytch. He testified to the same facts as Busch, except that he did not hear defendant’s entire statement. After he heard a reference to murder, he stepped away so that he would not becomd involved and did not hear anything that the defendant said after the defendant admitted being charged with the crime of murder. However, Gruytch’s testimony does support Busch’s testimony as to the fact of the meeting itself, that the defendant was in fact accessible and the general circumstances under which it occurred. This was important in light of the defense’s assertion that the meeting could not possibly have taken place since the defendant had never been left in a cell such as the one described by Busch and Gruytch during the time that they say the meeting occurred.

Busch testified that he did not speak with anyone in authority about his conversation with the defendant until late May 1983 when he mentioned it to one of the correction officers at Chino, who apparently got in touch with the Los Angeles.Police Department. A Sergeant Engquist of that department had an initial meeting with Busch at Chino on June 1, 1983. Subsequent to that meeting, Busch had a conversation with another Chino inmate known as “W.W.” in which he asked what “W.W.” knew about the “Justice Commandos” and what other acts they claimed to have committed. Busch states that he wanted to find out what he was getting into. He decided to put down in writing what he recalled of his conversation with the defendant and he included thereon some information which “W.W.” gave him regarding other assaults on Turkish diplomats or embassies in Toronto, New York and London. This writing, introduced in evidence as People’s exhibit 50, represented a recollection by Busch of the things that the defendant had told him as well as the “credits” of the Justice Commandos which he had obtained from “W.W.”

Busch next spoke with Engquist on June 23, 1983, and at that time was unable to pick the defendant out of a photo lineup. However, he was able to identify the defendant during the trial. Busch conceded during his testimony that he had sent a letter on July 1, 1983, to Engquist making several requests for special treatment and privileges but he admitted that none of those were honored and that he had not received any of his requests. Busch also admitted that he had acted as an informant in another case in Orange County about one year before.

B. Summary of the Defense Case

The defendant did not himself testify, but he offered evidence in support of three theories of defense:

(1) Mistaken Identification. The defendant called four witnesses who were present at the intersection of Wilshire and Comstock at or about the time when the murder of Arikan took place. None could identify the defendant as one of the gunmen, and provided descriptions, neither of which resembled the defendant. Indeed, one of those witnesses, Judith Jones, positively testified that the gunman who had been standing on the southeast corner of the intersection was not the defendant;

(2) Alibi. Two witnesses were called whose testimony placed the defendant in Pasadena (an approximate 40-minute drive from the murder scene) at a food market between 10:20 a.m. and 10:40 a.m. on January 28, 1982. A third witness testified that she was having breakfast with the defendant in Pasadena from approximately 9 a.m. to 10 a.m. on that morning;

(3) Rebuttal to Busch. The defendant called four present or former incarcerated felons who, in essence, testified that Busch had fabricated his testimony about the defendant’s jailhouse confession in order to secure a better deal for himself, that he was a notorious liar and that he was a repeat informer and, in fact, was known as “King Snitch.”

By its verdict it is clear that all of this testimony was rejected by the jury.

C. The Verdict and Sentence

On January 4, 1984, the jury returned its verdict of guilty on the charge of violation of Penal Code section 187 (murder in the first degree) and found as true the special circumstance charged under Penal Code section 190.2, subdivision (a)(16) relating to the victim’s “nationality” or “country of origin.” The jury was unable to reach a verdict on the alleged special circumstance of “lying-in-wait” (Pen. Code, § 190.2, subd. (a)(16)) or the charge that the defendant had “used a gun” in the commission of the crime (Pen. Code, § 12022.5). One week later, during the penalty phase trial, the court received a note from juror Dylane Rankins, which stated:

“1-11-84.

“Your Honor, is it too late to change my vote on one of the special circumstances? On Wednesday, 4th, I was ill. I was unable to think clearly because of my illness and the pressure from the other jurors. Now my sickness is over, except for the coughing. I can think clearer. I feel I have made an error. Also based on some evidence that was brought out in our deliberations that wasn ’t evidence brought out in court. ” (Italics supplied.)

As a result of this disclosure, the court conducted a separate in-chambers interrogation of each of the 12 jurors. This interrogation began with Ms. Rankins, who elaborated upon what she was referring to in her note. She referred to some statement that was made by a female juror, whose name she did not recall, concerning a telephone call made to the Turkish consul. Eight of the other jurors had no recollection whatever of any mention of such a phone call. The remaining three jurors had some recollection about it but emphasized that it was not discussed or considered by the jury and even Ms. Rankins conceded that that was the case. The court denied the defendant’s motion for a mistrial and the companion motion to set aside the verdict on the grounds of jury misconduct. The court found that there was no jury misconduct. The court also concluded that after the recordation of a verdict, whether or not the jury has been discharged (in this case, because of the penalty phase trial, it had not been discharged), a juror may not change his or her vote on a verdict.

The jury, after hearing evidence in the penalty phase trial, returned a verdict of life without possibility of parole. That sentence was thereafter imposed by the court on June 15, 1984. This appeal followed.

Contentions on Appeal

The defendant asserts six principal contentions on appeal:

1. That there was prosecutorial misconduct with respect to (a) representations to the court regarding certain anticipated evidence, (b) cross-examination of defense witnesses, (c) alleged destruction of a certain jail record, and (d) final argument;

2. That there was jury misconduct arising from the receipt and consideration of matters not admitted into evidence and that the People failed to rebut the prejudice arising therefrom;

3. That the trial court erroneously admitted into evidence irrelevant and prejudicial matter;

4. That the trial court made three instructional errors in that (a) it gave an improper aiding and abetting instruction, (b) it improperly submitted a lying-in-wait instruction, and (c) it failed to give an instruction on circumstantial evidence as requested by the defendant;

5. That the special circumstance (Pen. Code, § 190.2, subd. (a)(16)) finding was improper in that (a) there was insufficient evidence to support it, (b) the trial court failed to instruct the jury on the requirement of a corpus delicti showing with respect to such circumstance, (c) the special circumstance relating to the “national origin” of the victim is unconstitutionally vague and (d) the trial court at the time of sentencing improperly failed to rule on the defendant’s motion to strike the special circumstance; and

6. That there was a systematic exclusion of fair and impartial venire persons from the jury in violation of the Constitutions of both the United States and California.

We discuss each of these contentions and conclude that they are without merit. We therefore affirm the judgment.

Discussion

A. Claimed Prosecutorial Misconduct

The defendant urges upon us four separate examples of what he argues was improper and prejudicial prosecutorial misconduct which deprived him of a fair trial. “Prosecutorial misconduct implies the use of deceptive or reprehensible methods to persuade either the court or the jury.” (People v. Haskett (1982) 30 Cal.3d 841, 866 [180 Cal.Rptr. 640, 640 P.2d 776]; People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal.Rptr. 632, 523 P.2d 672].) “It is not necessary to show bad faith, but it is necessary to show the defendant’s right to a fair trial was prejudiced [by the claimed misconduct].” (People v. Epps (1981) 122 Cal.App.3d 691, 706 [176 Cal.Rptr. 332].) “The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred.” (People v. Haskett, supra, 30 Cal.3d 841, 866; People v. Strickland, supra, 11 Cal.3d 946, 955.) With these principles in mind we examine the acts of misconduct cited by the defendant.

1. Expert Opinion

The defendant first argues that Detective Arleigh McCree, was erroneously permitted to give his expert opinion regarding the so-called assassination “stall man” technique. The defendant objected on grounds that there was no evidentiary basis for such an opinion, that it was beyond McCree’s expertise, and was speculative and argumentative.

Detective McCree testified, in part, that the shooting of Arikan was facilitated by a “stall man” technique which involved one assailant stepping in front of the car and forcing the vehicle to stop, thus providing a stationary target. He stated that his opinion was based upon the anticipated testimony of certain eyewitnesses (whom he had not personally interviewed), as well as upon discussions with other police officials concerning assassinations where multiple subjects have acted in unison.

The court permitted the testimony over the defendant’s objection, because (a) it believed that it was relevant to the issue of intent to kill; and (b) it understood that a witness was going to testify that a man had been observed in front of the victim’s car prior to the shooting. The record discloses that no such witness was ever produced. The prosecutor stated that she had been honestly mistaken with respect to that expected testimony. Defendant subsequently moved for a mistrial on this ground which was denied.

Conceding for the sake of argument that the admission of such testimony was error (but see fn. 28, below, where we point out that a basis for the opinion did exist in the ballistics evidence itself), was it prejudicial to the defendant? Before there can be a reversal for a conviction based upon the erroneous admission of evidence, an appellate court must be able to conclude that it is reasonably probable that in the absence of the erroneously admitted evidence, a result more favorable to the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Based upon the record, it is impossible for this court so to conclude.

The intent of the defendant, to which this particular opinion testimony was most relevant, seems clearly established by the eyewitnesses who placed him at the corner of Comstock and Wilshire at the time of the shooting (and for some time prior thereto) with a large handgun in his possession. This testimony, taken together with the evidence of the shooting itself (including the ballistics evidence), clearly justifies (if not compels) the inference that the defendant and his companion were waiting for Arikan to stop at the corner on his way to work. The jury was justified in concluding that the defendant intended to kill his victim and whether or not a “stall man” technique was actually used is not particularly material. Such expert testimony certainly added nothing to the People’s case which was not already firmly established by other credible and admissible evidence.

2. Cross-examination of Defense Witnesses

The defendant argues that the prosecutor was guilty of misconduct in the cross-examination of defense witnesses Charles Laughlin (herein Laughlin) and B. L. Bradford (herein Bradford).

Laughlin testified that he had originally been part of a plan with prosecution witness Busch to incriminate the defendant in the murder of Arikan in return for anticipated prosecution favors. According to Laughlin, he gave Busch certain newspaper clippings which Busch was then to use as the basis for fabricating the testimony which implicated the defendant in the crime. Laughlin testified that Busch, in fact, had no knowledge regarding any admission by the defendant and had fabricated his testimony.

Laughlin was vigorously cross-examined by the prosecutor and some of that inquiry went into matters which were admittedly beyond the permissible scope of Evidence Code section 787. However, an examination of the entire record sustains the People’s position that such error on the part of the trial court was harmless. The record reflects that overwhelming proper impeachment evidence was provided by the fact of Laughlin’s prior felony conviction record, and by the concessions which he made that he had repeatedly lied to police officials with respect to his knowledge of this particular case. Laughlin was impeached by proper questions directed to his admitted falsehoods to nearly every representative of law enforcement who contacted him in this case.

Bradford testified that Busch admitted to him that the testimony which Busch had given with respect to the confession of the defendant was false. In cross-examination, Bradford was asked about (a) pending charges for rape to which the court sustained the defendant’s objection and (b) a prior felony conviction for grand theft auto, which, as it ultimately turned out, was apparently a juvenile conviction. The record reflects that the prosecutor’s position was that she reasonably believed, at the time she asked that question, that it had been an adult conviction, and that, in any event, the provisions of Proposition 8 permitted impeachment with a juvenile conviction. (See, e.g., In re Javier A. (1984) 159 Cal.App.3d 913, 964, fn. 46 [206 Cal.Rptr. 386].)

Given such circumstances, this court cannot conclude that the prosecutor acted in bad faith. In any event, this was only a small part of an extensive cross-examination of a witness who, by his own admission, was himself incarcerated awaiting trial on criminal charges. The jury could well have had reason to suspect his motives. Whatever error there may have been in asking this question was clearly harmless. Since the court sustained the defendant’s objection to the question about pending charges of rape, the defendant cannot claim to have been prejudiced by that question.

3. Alleged Destruction or Suppression of a Jail Record

The defendant argues that the prosecution was guilty of misconduct by the “willful” destruction of a crucial defense document, a jail record indicating that on February 14, 1983, the defendant was located in a cell, in the Los Angeles County jail, which prevented him from having any contact with prosecution witness Busch. It was this confession to Busch that provided the principal evidence against the defendant, with respect to the “national origin” special circumstance which the jury later found to be true. The defendant claims that this particular jail record (reflecting that the defendant was in a “closed” rather than an “open” cell on the day when Busch claimed to have spoken with him) would have indicated that it was impossible for Busch to have had the conversation which Busch claims resulted in the defendant’s confession.

The defendant asserts that this record was willfully suppressed by the People and that the trial court should have (a) declared a mistrial (because the absence of the record was unknown to the defense at the time when Busch was testifying) or (b) given the jury a directive instruction regarding the contents of the record. (See, e.g., People v. Zamora (1980) 28 Cal.3d 88, 102-103 [167 Cal.Rptr. 573, 615 P.2d 1361].)

However, this argument fails for at least three reasons:

(a) The absence of the jail record could not have prejudiced the defendant, since all the information which the document could have provided was in fact supplied by the testimony of a deputy sheriff who recalled the record and what it said. In other words, the defense was able to present uncontradicted evidence as to the existence and content of the missing record;

(b) There was no evidence that the record had been willfully destroyed. A number of the records relating to the “court line” for February 14, 1983, were missing, not just the record referring to the defendant. At most, the sheriff was negligent;

(c) The jury was specifically instructed, at the defendant’s request, that if it believed that the People had willfully suppressed the record, then there was a presumption that the record if produced would be unfavorable to the People.

It is clear from the jury’s verdict that it chose not to draw that inference. It obviously believed the testimony of Busch, and that whatever the missing jail record may have said, Busch and the defendant did in fact have a conversation on February 14, 1983. This conclusion is further supported by the testimony of prosecution witness Gruytch. He testified that he saw Busch and the defendant talking together and recalled the subject of their discussion to be the offenses with which the defendant was charged. Testimony from deputy sheriffs called by both the People and the defendant indicated that it was certainly possible for Busch to have communicated with the defendant on February 14, 1983, in spite of rules which prohibited such conversations and in spite of a document which indicated that defendant had been assigned to (but not necessarily placed in) a closed cell. On this record, the jury certainly could have believed that Busch and the defendant did in fact speak and that to the extent that the missing jail record indicated that the defendant had been locked up where Busch could not speak with him, it was in error.

When substantial material evidence has been lost or destroyed sanctions may be appropriate, but the imposition and mode of sanctions depend upon the circumstances attending the loss or destruction of the evidence. (People v. Hitch (1974) 12 Cal.3d 641, 650 [117 Cal.Rptr. 9, 527 P.2d 361].) The trial court is invested with a large measure of discretion to determine the appropriate sanction. (People v. Zamora, supra, 28 Cal.3d 88, 99.) In the absence of bad faith, that sanction should not be more than is necessary to insure the defendant a fair trial. (People v. Bailes (1982) 129 Cal.App.3d 265, 272-273 [180 Cal.Rptr. 792]; Brown v. Municipal Court (1978) 86 Cal.App.3d 357, 363 [150 Cal.Rptr. 216].)

Here, the court instructed the jury that if it found that the sheriff had willfully “lost” or destroyed the jail record it could presume that such record was unfavorable to the People’s case. Nothing more was required. This is particularly true here, where comparable evidence as to the existence and content of the record was presented to the jury through the uncontradicted testimony of a credible deputy sheriff. In fact, in view of the defense’s ability to present such comparable evidence, a question arises as to whether the missing record even met the test of constitutional materiality described in California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528].

4. Final Argument

The defendant argues that the prosecutor was guilty of prejudicial misconduct with respect to certain remarks made during closing argument regarding the assassination of President Kennedy, and a reference to a defense exhibit as a “clever trick.” With respect to the first matter, the prosecutor told the jury that a “guilty verdict in this case will be a signal to the people in the entire country, and the entire world, that we do not, and will not tolerate assassinations in this country. ” Secondly, the prosecutor made a reference to a defense exhibit showing an automobile, other than the defendant’s, which had the defendant’s license plate (534 TER) on it. The defendant argues that the prosecutor was “suggesting” that the defense had fabricated evidence in offering that photograph.

It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Wein (1958) 50 Cal.2d 383, 396 [326 P.2d 457]; People v. Silva (1953) 41 Cal.2d 778, 783 [264 P.2d 27]; People v. Ross (1960) 178 Cal.App.2d 801, 808 [3 Cal.Rptr. 170]; People v. Coontz (1953) 119 Cal.App.2d 276, 282 [259 P.2d 694].)Itis also clear that counsel during a summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. (People v. Thornton (1974) 11 Cal.3d 738, 762 [114 Cal.Rptr. 467, 523 P.2d 267]; People v. West (1983) 139 Cal.App.3d 606, 611 [189 Cal.Rptr. 36].) The prosecutor is entitled to draw conclusions from the evidence presented and to state them to the jury. The right is very broad and includes the opportunity to fully state his views as to what the evidence shows and as to the conclusions to be drawn therefrom. (People v. Eggers (1947) 30 Cal.2d 676, 693 [185 P.2d 1]; People v. Beivelman (1968) 70 Cal.2d 60, 76-77 [73 Cal.Rptr. 521, 447 P.2d 913].)

Moreover, even in a case where prosecutorial misconduct is shown, reversal will not result “. . . unless the misconduct can be said to have contributed materially to the verdict in a closely balanced case or is of such a nature that it could not have been cured by a proper and timely admonition. ’ ’ (People v. McDaniel (1976) 16 Cal.3d 156, 176 [127 Cal.Rptr. 467, 545 P.2d 843].) As an examination of the evidence will show, there was nothing “close” about this case and defendant did not even object to, or seek an admonition regarding, the prosecution’s argument.

The misconduct complained of here, is the kind of matter (even assuming it was improper) to which objection should have been asserted at the time that it occurred. It should not be raised upon appeal unless there is a showing (1) that the appellant did object to the alleged misconduct, (2) that he assigned the objectionable conduct as misconduct, and (3) that he requested a corrective instruction or admonition. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Wong (1973) 35 Cal.App.3d 812, 833 [111 Cal.Rptr. 314].) It is settled that the “. . . trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury. . . . [T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution [citations].” (People v. Green, supra, 27 Cal.3d 1, 27, 34.)

The statements of the prosecution here seem no more objectionable than those found to be proper in People v. Goldberg (1984) 161 Cal.App.3d 170, 189-191 [207 Cal.Rptr. 431] and People v. Meneley (1972) 29 Cal.App.3d 41, 58-62 [105 Cal.Rptr. 432]. To the extent that they were improper a timely objection and admonition would have cured any harm. As already noted, there was no objection nor any corrective instructions asked for or given. Therefore, defendant’s argument must be rejected.

B. Claimed Jury Misconduct

The jury returned its verdict in the guilt phase of the trial on January 4, 1984. At that time it also found as true the alleged special circumstance relating to the national origin of the victim. (Pen. Code, § 190.2, subd. (a)(16).) One week later, on January 11, 1984, during the penalty phase trial, the court received a note from one of jurors (Juror No. 7, Dylane Rankins). The note, in essence, communicated two thoughts. First, that Juror Rankins wanted to change her vote on the special circumstance charge and, second, that some improper matter was considered by the jury before it reached its verdict.

After reviewing the note with counsel, the court conducted an inquiry which involved a separate in-chambers interrogation of each of the 12 jurors. This interrogation related solely to the matters allegedly received by the jury which had not been admitted into evidence. According to Juror Ran-kins, one of the jurors had made a reference during deliberations, to a “call made to the Turkish Consulate.”

Juror Rankins went on to indicate that it was this information which caused her to change her mind and vote with the other jurors that the allegation regarding the national origin special circumstance was true. However, she conceded that the subject of the telephone call was brought up only once and that there was no discussion about it.

The examination of the other eleven jurors established that eight of them had no recollection of any mention of a phone call during deliberations. Of the remaining jurors, other than the Juror Rankins, one (Juror Walker) stated that he had a “vague recollection” that a phone call had been mentioned, but he insisted that the jury as a whole did not discuss it. Furthermore, he was not even sure at what time or point in the deliberations it had come up. Another (Juror Kennelly), seemed to recall something about a telephone call for publicity which had been mentioned during the trial. However, on examination by the defendant’s counsel, she emphasized that all of the jurors were “pretty thoughtful to stop it right away if there was anything that we couldn’t talk about.”

Finally, the jury foreman (Juror Castillo) at first had no recollection of there being any discussion about a phone call to the Turkish Embassy. After a lunch break, however, he told the court that he did recall that someone had mentioned such a phone call, but he could not remember at what point and time it occurred. But he then emphasized to the court that it was something the jurors agreed they could not consider. In other words, the jury clearly followed the court’s instructions which required them to decide the case solely on the evidence presented.

The People concede that the reference to such a phone call introduced into the deliberations a matter which was not admitted into evidence and as such constituted jury misconduct. (People v. Martinez (1978) 82 Cal.App.3d 1, 21 [147 Cal.Rptr. 208].) The jury’s receipt of evidence which has not been admitted is error which, although not prejudicial per se (People v. Sutter (1982) 134 Cal.App.3d 806, 820 [184 Cal.Rptr. 829]), does create a presumption of prejudice to the defendant. (People v. Boyd (1979) 95 Cal.App.3d 577, 586 [157 Cal.Rptr. 293].) This presumption of prejudice may be rebutted only by “proof that no prejudice actually resulted.” (People v. Honeycutt (1977) 20 Cal.3d 150, 156 [141 Cal.Rptr. 698, 570 P.2d 1050]; People v. Hogan (1982) 31 Cal.3d 815, 846 [183 Cal.Rptr. 817, 647 P.2d 93].) Under such circumstances it is settled that unless the presumption of prejudice is rebutted, the accused is entitled to a new trial, regardless of the probability that a more favorable verdict would or would not have resulted absent the error. (People v. Pierce (1979) 24 Cal.3d 199 , 206-207 [155 Cal.Rptr. 657, 595 P.2d 91]; People v. Diaz (1984) 152 Cal.App.3d 926, 935 [200 Cal.Rptr. 77].)

The presumption of prejudice “may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct.” (Hassan v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 [185 Cal.Rptr. 654, 650 P.2d 1171].) The Supreme Court in Hassan noted that some of the factors which are to be considered in determining whether the presumption has been rebutted include “. . . the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct and the probability that actual prejudice may have ensued.” (Hassan v. Ford Motor Co., supra, 32 Cal.3d at p. 417; People v. Diaz (1984) 152 Cal.App.3d 926, 935 [200 Cal.Rptr. 77].)

The question thus presented is whether or not the evidence developed from the court’s interrogation of the 12 jurors, when examined in light of the entire record, rebuts the presumption that a new trial is necessary. It is apparent from the testimony of the jurors that while some reference to a phone call may have been made by one of the jurors, it was not a part of the jury’s deliberations and was not discussed by them. In fact, several jurors went out of their way to point out that whenever any extraneous matters came up the jurors conscientiously followed the court’s instructions and agreed that they could not consider anything which had not been received into evidence. These were objective expressions by the jurors themselves as to which there is no dispute.

Under such circumstances, it is clear that the jury’s impartiality was not affected, the prosecution’s burden was not lightened and no asserted defense was contradicted. (People v. Martinez, supra, 82 Cal.App.3d 1, 22; People v. Sutter, supra, 134 Cal.App.3d 806, 820.) We therefore conclude that any presumed prejudice has been rebutted by the statements of the jurors themselves. No prejudice actually resulted, because the extraneous matter was not a part of the jury’s deliberations. (People v. Hill (1980) 110 Cal.App.3d 937, 942-943 [168 Cal.Rptr. 272].)

The testimony of Juror Rankins cannot, as the defendant urges, justify a contrary result. Her statements regarding the “effect” of this extraneous evidence upon her decision as to how she would vote, is plainly inadmissible under the provisions of Evidence Code section 1150, subdivision (a). (In re Stankewitz (1985) 40 Cal.3d 391, 397 [220 Cal.Rptr. 382, 708 P.2d 1260]; People v. Ryner (1985) 164 Cal.App.3d 1075, 1082-1083 [211 Cal.Rptr. 140]; People v. Sutter, supra, 134 Cal.App.3d 806, 819-821; People v. Peavey, supra, 126 Cal.App.3d 44, 50-51.)

C. Claimed Errors in the Admission of Evidence

During the trial the defendant objected to the introduction of a map and other written material (designated as People’s exhibit 50), on the grounds that it had not been properly authenticated and contained hearsay matter. In addition, there was an objection to several photographs picturing the defendant in fatigues and holding guns. (People’s exhibits 39, 40, 41 and 42.) These photographs had been obtained from the defendant’s home pursuant to a search warrant. The defendant argued that they were irrelevant to any contested issue in the case, and whatever probative value they might have was far outweighed by their prejudicial effect.

Prosecution witness Busch testified that he prepared exhibit 50 some time after his jailhouse conversation with the defendant. He characterized the writing as a “semimap” of the area where the killing took place. He was extensively cross-examined by defendant’s counsel regarding the contents of this document. During such cross-examination, the defendant’s counsel elicited from Busch extensive testimony about all of the matters contained in that writing, including the written notations made by Busch based on his conversation with a person other than the defendant. However, no objection was asserted to the writing or its contents until the People offered it in evidence. The court in overruling the objection acknowledged that both counsel had gone into extensive amounts of hearsay in their examination of the witness Busch and, in the court’s judgment, it was entirely appropriate to permit the jury to actually see the exhibit.

The People also introduced exhibits 39, 40, 41 and 42, the blown-up copies of four snapshots seized in a search of the defendant’s home. As already noted, these photographs depicted the defendant dressed in fatigues and holding different weapons. One of them pictured the defendant holding an assault rifle, while the other showed him holding two handguns. One of the pictures showed the defendant holding a handgun with both hands, with his knees bent in a type of stance similar to that which the witness Kaufhold said was adopted by the shooter on the passenger side of Arikan’s vehicle. The prosecutor argued that these photographs resembled weapons that the defendant used in this particular case (although there was no contention that they were the same weapons), and also that the defendant obviously had in his possession various weapons and appeared to know how to use them. That is, that he had the knowledge and the means to commit the crime. (Evid. Code, § 1101, subd. (b); People v. Archerd (1970) 3 Cal.3d 615, 638 [91 Cal.Rptr. 397, 477 P.2d 421].)

A further ground for their admission was that they corroborated testimony of the witness Busch. Although the trial co