Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. 194257, 2196902
McGuiness, P.J.
Appellant Michael Douglas Rogers was convicted by one jury of charges arising from the robbery of a liquor store and, after retrial to a second jury, was also convicted of second degree murder. Based on deadly weapon enhancements found true in each case and appellant’s prior serious felony convictions, the court sentenced appellant to serve consecutive terms of 41 years to life in prison. In this appeal, appellant raises several claims including prejudicial joinder of the murder and robbery charges, excessive delay in bringing his case to trial, juror misconduct, erroneous evidentiary rulings, and instructional error. We conclude none of these claims has merit, and we affirm the convictions.
BACKGROUND
An amended indictment filed June 7, 2005, charged appellant with committing two crimes on August 17, 2003—the murder of Lawrence Edward Kimble (Pen. Code, § 187) and assault of Phris Michelle Keaton-Kimble with a deadly weapon (knife) (§ 245, subd. (a))—and three crimes on August 15, 2003—the robbery of Chong Kwang Chung (§ 212.5, subd. (c)), assault of Chung with a deadly weapon (bottle) (§ 245, subd. (a)(1)), and second degree burglary of Martell’s Liquors (§ 459). The indictment alleged enhancements to the murder and robbery charges for personal use of a deadly weapon (§ 12022, subd. (b)(1)) and alleged appellant had suffered three prior strike convictions (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)) and serious felony convictions (§ 667, subd. (a)). The case proceeded to a jury trial on all charges.
All statutory references are to the Penal Code unless otherwise stated.
I. Liquor Store Robbery on August 15, 2003
A. Prosecution Case
Chung, who is 60 years old, is the owner of Martell’s Liquors. Around 3:00 in the afternoon on August 15, 2003, Chung was alone in the store when a man entered and walked to the refrigerated display cases in the back of the store. He called out to Chung and, thinking the man needed assistance, Chung walked back to answer him. As soon as Chung reached the man, he grabbed Chung in a headlock and dragged him toward a storage room that was located behind the refrigerated cases and out of sight from the rest of the store. Chung yelled out for help, but the man told him to “shut up” and began punching him in the face and head. At one point, Chung tried to bite his attacker on the forearm, but he did not know if he succeeded in doing so. Chung grabbed a bottle and tried to hit the man with it, but he believed this attempt to strike the attacker was also unsuccessful. The man seized control of the bottle and hit Chung on the head with it. Chung thought he lost consciousness, and he did not know how many bottles he was hit with.
Meanwhile, Chea Thiang and her friend Katriana Johnson stopped at the liquor store so that Johnson could buy cigarettes. Thiang waited in the car and watched as Johnson emerged from the store looking confused and distraught. When Thiang asked what was wrong, Johnson said she heard a man screaming inside the store. After entering and exiting the store again, Johnson approached Jung Hansen and asked him to help. Hansen, who was homeless at the time, had just sat down in front of the store to eat a sandwich. He went inside and noticed the proprietor was not standing at the counter as usual. Hansen proceeded to the back storeroom and saw a man he identified in court as appellant with an arm around the store owner’s neck, choking him. The store owner’s face and shirt were covered in blood. When Hansen told the man to stop, the man claimed he was the store owner and Chung had tried to rob him. Because he had dealt with the owner in past visits, Hansen knew the man was lying, and he said he would call the police if the man did not release Chung. After he failed to do so, Hansen left and called 911 from a pay phone outside the store. While Hansen was on the phone, he saw the man emerge from the store carrying a green money satchel. From her seat inside Johnson’s car, Thiang also saw the man exit the store, and she described him as a tall, light-skinned black man, around 210 pounds, bald and with a goatee. He walked out of the store nonchalantly, turned, and walked away at a fast pace.
Lieutenant Dan Leydon of the San Francisco Police Department spoke with Hansen at the scene and interviewed Chung in the hospital emergency room. Chung gave the officer an account of the attack, mentioning that the suspect had hit him on the head with a full beer bottle. Chung said the suspect released him after he managed to bite the man’s arm.
The store was equipped with four surveillance cameras, and one of these recorded the incident on videotape. This videotape was played for the jury, and enlarged still images of the attacker taken from the tape were admitted in evidence. The camera’s clock indicated the robber left the store at 2:53:58 p.m., and Chung thought this time was accurate. Based on the surveillance tape and the description received from Hansen, the police department’s photo lab generated a collage of photographic images that were circulated in a crime bulletin. When this bulletin circulated, appellant was identified as a suspect. Lieutenant Leydon then generated a photo spread using appellant’s most recent photograph and pictures of five similar-looking individuals. When he was shown this photographic lineup, Chung eliminated all but two of the individuals, one of whom was appellant. At the trial, Chung identified appellant as the person who assaulted him.
On August 28, 2003, Leydon and other officers went to appellant’s home to interview him about the robbery. Appellant agreed to come to the station for questioning but asked to change his shirt first. When appellant removed his shirt, Leydon noticed he had a scab on his right forearm and his hands appeared swollen and bruised. The left side of appellant’s head also had a slight swelling. Because these injuries appeared consistent with the beating of Chung, including a possible strike with a bottle Chung may have inflicted, Leydon arrested appellant on the spot. When appellant’s wounds were photographed later that day, Leydon noticed that the scab he had previously seen on appellant’s forearm had been removed, making it appear more like a fresh wound. Leydon generated a new photo spread using appellant’s arrest photo, and he showed this photographic lineup to Hansen. After just a couple of seconds, Hansen pointed to appellant’s picture and said excitedly, “ ‘This is close. This is real close. I’d know for sure if I saw him.’ ” At the trial, Hansen testified he had no doubt appellant was the person he saw attacking Chung. Leydon prepared another photo spread and sent it to a detective at San Diego State University, where Thiang was attending school. Thiang looked at the spread for between 30 seconds and a minute, then pointed to appellant’s picture in the middle of the top row and identified him as the person she saw exiting the liquor store. Asked to explain her choice, Thiang wrote that only the circled picture fit the description she remembered and, “ ‘on a scale of one to ten on the basis of familiarity,’ ” this photo rated “ ‘about a seven.’ ”
Among other injuries, Chung suffered a depressed skull fracture accompanied by a stellate scalp laceration, which indicated the wound had been inflicted with a high degree of force. Chung suffered a mild traumatic brain injury, which affected his memory “a little bit,” and he had to stay off work for a month. The only thing missing from the store after the incident was a green bank deposit bag, which contained documents but no money.
B. Defense Case
A neurophysiologist who testified as an expert in eyewitness memory described confounding factors and influences that decrease the accuracy of an eyewitness’s identification of a suspect.
The property manager for appellant’s apartment building testified that the building’s front door is equipped with a controlled access reader, and an access card is needed to enter. Appellant was given only one of these cards. The access reader records every time a card is used to enter through the front door of the building, and another reader records if a card is used to enter the elevator. The defense offered a database printout listing the use of appellant’s access card on August 15, 2003. The card was used at the front entrance of the building at 7:37 a.m. and again at the main elevator bank at 2:54 p.m., and no other use of the card was recorded on August 15, 2003. Next, a defense investigator testified that she drove the route between Martell’s Liquors and appellant’s apartment three times on a Friday afternoon and once again at lunchtime on the Thursday when she testified. Twice the trip took 16 minutes, once it took 17 minutes, and once it took as long as 21 minutes.
II. Murder of Lawrence Kimble on August 17, 2003
Because the murder charge was retried to a new jury after the first jury was unable to reach a verdict, we derive the facts about this offense from evidence presented at appellant’s second trial.
A. Prosecution Case
1. Background and Prior Incidents
Phris Keaton-Kimble lived with her husband, Lawrence Kimble, in a one-bedroom apartment on Golden Gate Avenue in San Francisco. They had been married for 12 years and “together” for 22 years. Appellant was a friend of Lawrence’s and was also involved in a relationship with Phris’s sister, Marsha. Shortly before Lawrence was killed, Marsha asked Phris if she had engaged in sexual relations with appellant. Phris denied it and also talked with Lawrence to reassure him she had not been intimate with appellant. Angry that appellant had spread an untrue rumor about her, Phris encouraged Lawrence to confront appellant and ask him about it.
For clarity, we use first names to refer to family members who share the same last name (i.e., Phris and Lawrence Kimble, Morman and Marsha Keaton).
According to the testimony presented at trial, appellant and Lawrence argued on two occasions in the month before Lawrence’s death, and both times the argument escalated into violence by appellant. The evidence does not disclose why the men were fighting.
One evening about a month before Lawrence was killed, appellant and Marsha came to the Kimbles’ apartment for a visit. After Lawrence and appellant exchanged some hostile words, appellant charged at Lawrence with a knife or an ice pick and pinned him to the couch. Referring to their long friendship, Lawrence raised his hand and said, “Man, we got 40 years. What’s the problem?” Appellant backed off, but after this incident Lawrence told Phris he was afraid of appellant. In the week before he died, Lawrence also told his father-in-law, Morman Keaton, that he was afraid because a person named Michael wanted to kill him.
Appellant was involved in another violent incident on August 1, 2003, a little more than two weeks before Lawrence was killed. Marsha had been sleeping when she was awakened by the sounds of appellant and Lawrence arguing in the hallway outside appellant’s apartment. When Marsha urged appellant to come inside, he closed the door, but then he went into the kitchen and grabbed a butcher knife from the cutlery set. Appellant came into the bedroom with the knife in his hand, and when he went to sit next to Marsha on the bed, his hand “swung” out and the knife accidentally cut Marsha’s knee. The injury required Marsha to go to the hospital for stitches. Marsha lied that someone else had caused the injury, and at the time she refused to identify appellant as the person who had cut her.
2. Killing of Lawrence Kimble
Appellant came to the Kimbles’ apartment on the morning of Sunday, August 17, 2003, with his friends Darrell Buckins and Jerry Jackson. The mood was calm. Appellant and Phris played chess, and about an hour later appellant left alone. Phris noticed that appellant had an injury, “a scar,” on his right hand. About 30 minutes to an hour later appellant returned, and Phris buzzed him in through the front gate. Appellant burst through the front door, pushed Phris out of the way and strode directly to where Lawrence was standing in the kitchen. Buckins and Jackson ran out the front door. When appellant reached Lawrence, he grabbed him and said, “ ‘I’m going to show you I’m not a coward.’ ” Appellant then threw Lawrence to the kitchen floor, pinned him down and began stabbing him with a knife he held in his right hand. Phris tried to throw a table at appellant, but it would not fit through the doorway to the kitchen. Appellant continued stabbing Lawrence until the knife blade broke off in Lawrence’s leg. At that point, appellant pulled another knife out of the waistband of his pants. When she saw this, Phris approached and hit appellant with a chair, but appellant reached back as if to stab her. Phris then ran outside into the street, barefoot and screaming for the police. She was down the block when she saw appellant emerge from the apartment building. He looked at her, then made a motion with his hands, turned and walked the other direction.
When the police arrived, they placed Phris in handcuffs and took her to the police station. An officer who examined her there at approximately 5:15 p.m. observed no cuts or bruises and no blood on her hands or feet.
3. Police Interviews
a. Phris
Homicide Inspectors Edward Wynkoop and Herman Jones of the San Francisco Police Department first interviewed Phris around 3:30 on the afternoon of the stabbing. During this interview, Phris was nervous and upset, often crying and talking hysterically. She told the officers she had left to go buy cigarettes but then changed her mind and went back home. When she returned to the apartment, she knew something was wrong because the door was open, and so she started screaming for the police. She was afraid because she thought she heard her husband screaming inside. After this interview, the police released Phris without arresting her.
Phris’s father, Morman, picked her up from the station when she was released from custody. Morman lives in St. Louis, Missouri, but was in town visiting a friend, and he took Phris to his friend’s house. When Phris finally told him what had happened at the apartment, Morman advised her to go back to the station and tell the police the truth. He telephoned the police inspector, repeated what Phris had told him, and then drove Phris back to the police station.
Phris returned to the station at 10:00 p.m. for a second interview, in which she identified appellant as the person who had killed Lawrence. She said when appellant first came over earlier in the morning, around 9:00, she and Lawrence talked and socialized with him and “it was . . . mellow.” Appellant left but then returned around 10:00 or 11:00. After Phris buzzed him in, appellant ran into the apartment, pushed Lawrence down in the kitchen and stabbed him. She thought the knife had a green handle. The knife broke while appellant was stabbing Lawrence, but appellant pulled out another knife and continued to stab him. At the time Phris described the broken knife, the police had not told her they had recovered a broken knife from the scene. Phris also mentioned that appellant had recently loaned Lawrence his ring, and on the day of the stabbing appellant had a cut on his knuckles, which he had covered with a bandage. Phris said she “didn’t want to be no snitch” and explained she was telling the officers about appellant only because she was afraid appellant would hurt her sister.
Phris testified she did not initially tell the police about seeing appellant stab Lawrence because she was afraid for herself and her family, and Lawrence’s family, because appellant was “out on the street.” She admitted she lied when she told the police she did not know what had happened and “ ‘wasn’t even there.’ ” On cross-examination, Phris denied seeing drugs in the house, suggesting that any drugs the police found could have been left there by appellant.
b. Appellant
After this interview, Inspector Wynkoop left messages for appellant, and appellant came into the station for questioning the following day. Because appellant came voluntarily and was not in custody, the police did not read him Miranda warnings. Appellant was cordial and even jovial at times during the interview, but he did not appear to be under the influence of alcohol or narcotics.
Miranda v. Arizona (1966) 384 U.S. 436.
A videotape of appellant’s interview was played for the jury. Appellant first told the officers he had last seen Lawrence around 6:00 or 7:00 a.m. the previous morning, then later amended this estimate to 7:00 or 8:00 a.m. He was sitting around at the Golden Gate Avenue apartment for about an hour, getting high with Lawrence and Phris. No one else was there. Appellant played a chess game with Phris and talked with Marsha on the phone, then he went home, where another girlfriend, Tonette Phillips, had spent the night and was waiting for him. Appellant said he left because all the powdered cocaine (his drug of choice) was gone, and he wanted to return Phillips’s car before she woke up. When he came home, appellant told Phillips to leave, and around the time she left Marsha called appellant on his cellular phone. For the rest of the morning, the two girlfriends continued calling, until the phone’s battery expired. Eventually, he left his apartment and took a bus to Phillips’s house, arriving around 10:15 a.m. Around 1:00 p.m., appellant said he received a phone call from his brother, Mario Rogers, telling him Lawrence had been killed and the police had taken Phris into custody. When appellant’s sister returned to Phillips’s house—after she had borrowed appellant’s keys and entry card and gone to retrieve some clothes from his apartment—appellant had her drive him to Lawrence’s mother’s house. Shortly after he arrived, Lawrence’s brother and some other people came outside and got into a physical fight with appellant and accused him of killing Lawrence. Appellant thought this belief was based on the fact that he and Lawrence had argued about a month earlier and, during the argument, appellant had grabbed a pen or a knife. Tempers cooled, however, and the two had remained friends after the incident.
Appellant did not say whether he had recharged the dead battery on his phone.
During the interview, appellant had some noticeable scratches on his hand. He told the officers his hand was swollen before he got into a fight with Lawrence’s brother and others, and it swelled again after the fight. The same thing happened to a knot on appellant’s head. Appellant said, “I got hit upside my head,” and explained the knot was previously bigger. In addition to the swollen right hand, which appellant said he suffered because he punched the wall during a fight with Marsha a week earlier, the officers also observed appellant had a cut on his left hand. Appellant told the police this injury also happened during the flight with Marsha, because she broke a window and he cut his hand on the glass. The officers who interviewed appellant and photographed these injuries on August 18, 2003, were not aware of the Martell Liquors robbery, and the police did not associate appellant with this robbery until many days later.
Appellant told the officers he did not return to the Kimbles’ apartment after he left early on Sunday morning. After the fight with Lawrence’s brother, appellant returned to Phillips’s house, and he stayed there the rest of the day and night. Appellant consented to a search of his apartment and allowed the officers to photograph his injuries. The police did not arrest appellant after the interview, and they found nothing of evidentiary value in the search of his apartment.
4. Investigation
Paramedics who responded to the scene at 10:50 in the morning found Lawrence lying on his back in the kitchen, surrounded by a large pool of blood. He was barefoot. In addition, a black knife handle with no blade attached was lying in the corner of the room. Lawrence was not breathing and had no pulse. The body did not appear to have been moved, since the pool of blood was “very crisp-edged [and] stagnant.” Rather, it looked to paramedic Matthew Schwartz like the victim had “dropped and bled out right where [he] was, and . . . no one else had come [and] tried to help him or move him, or anything.” The body was lying entirely in the kitchen, and despite the large volume of blood in the kitchen there was no blood in the living room. Paramedics dragged the body into the living room so they would have adequate space to work, and this act brought a large amount of blood onto the living room carpet. There, they attempted resuscitation, but their efforts were unsuccessful. A stab wound was visible on Lawrence’s outer thigh, but it was no longer actively bleeding. Schwartz testified that he did not recall seeing a tourniquet applied to the wound and would have definitely noted such a thing if he had seen it. If applied properly, a tourniquet could have stopped the bleeding.
San Francisco Police Officer Lyn O’Connor, an expert in crime scene reconstruction and blood spatter interpretation, arrived at the Kimbles’ apartment at roughly 11:30 on the morning of August 17, 2003. O’Connor saw two bloody shoeprints on the living room carpet and Lawrence’s body lying partially in the living room and partially in the kitchen. There was a large pool of blood in the kitchen, with a broken knife blade lying in it, but no blood was present in the living room except in the area immediately adjacent to the kitchen. In the kitchen, investigators found blood spatter on the floor and baseboards, but no spatter was observed higher than four inches above the ground. O’Connor testified this finding suggests the incident occurred very close to the ground. Notably, although Lawrence’s left leg had been stabbed deeply enough to sever an artery, no blood appeared on the inside of this leg from the groin down to the foot. O’Connor explained this finding suggests the victim was stabbed while lying down, because if he had been standing up gravity would have caused the blood to flow down all parts of the leg. The absence of blood on the soles of Lawrence’s feet is also significant because it shows he did not step in his own blood. In addition, although one photograph showed blood on the top of Lawrence’s foot and between the toes, O’Connor testified that she knew the blood on the top of the foot resulted from transfer—and not from blood flowing down the leg—because she saw the foot before the body was transported, and before the photograph in question was taken, and this area did not have blood on it. She did not recall whether there was blood between the toes before the body was moved, though she conceded it would be difficult to cause a blood transfer in this area.
The defense recalled O’Connor and attempted to impeach this opinion with a still image from a video taken before O’Connor arrived at the crime scene. The image showed blood on the top of the victim’s foot. However, O’Connor explained that the blood appeared to have been the result of a transfer from some other object because there was no indication of directionality or flow.
The broken knife blade and a black knife handle were collected from the kitchen. O’Connor testified that this knife handle was similar in size and shape to the handles in a cutlery set from the Kimbles’ kitchen, which was in fact missing one knife. All of the handles in the Kimbles’ cutlery set were green, however, not black. Police investigators also found several drug-related items in the apartment: a marble slab covered with lines of suspected narcotics, a canister containing what appeared to be powder cocaine, a razor blade, a spoon covered with a powdery residue, and an item that appeared to be a crack pipe fashioned out of a glass bottle.
DNA testing determined that blood swabs taken from the stains in the street, the sidewalk, the stairway, and from blood on the knife blade and the kitchen floor, all came from a single man. Lawrence Kimble’s DNA matched this profile, and appellant was excluded as a source of this blood. Although there was no blood on the knife handle that was recovered from the scene, criminalists performed DNA testing on two swabs of a biological substance present on the handle. Both swabs contained DNA contributed by three different individuals: partial profiles of two minor contributors and a complete profile of a major contributor. Based on his DNA profile, Lawrence was included as a possible minor contributor. Appellant’s DNA profile matched all 10 genetic markers of the major contributor of DNA to the knife handle, and a criminalist calculated that this DNA profile only occurs in one out of 826 billion African Americans. The knife handle had approximately three times as much genetic material from the major contributor as it did from minor contributors.
The county medical examiner who reported to the scene observed that a male victim was lying dead surrounded by a large pool of blood, but there was no significant blood to be seen on the soles of his feet, which were bare. Thus, it did not appear that he had walked in any of the blood. She identified the victim as Lawrence Kimble and concluded he died from multiple sharp-force injuries inflicted in a homicide. Specifically, he suffered two incised wounds—i.e., slashes—and three stab wounds. The deepest of these stab wounds penetrated through six inches of tissue in the left thigh, severing the femoral artery and even nicking the femoral bone. Although it was impossible to determine the type of blade that caused the incised wounds, all of the stab wounds appeared to have been inflicted by a single-edged blade that was thrusting upward, i.e., toward the victim’s head. Two of the stab wounds were to the left thigh and one was to the right knee. In the examiner’s opinion, the slashes on Lawrence’s right wrist appeared to be defensive wounds. All of the wounds were inflicted just before or during the victim’s death. There was no blunt force trauma to his hands or feet, but the examiner did find a thin linear abrasion on the side of his lower back, which indicated Lawrence had come in contact with some object that scraped the skin. He had another abrasion on the upper chest area and also a bruise on one arm. Although the examiner could not determine Lawrence’s position when he was killed, her findings were consistent with the victim having been stabbed while on his back by an assailant who was using his right hand. On cross-examination, however, the examiner agreed that blood present between the toes indicated the stabbing could have occurred while the victim was standing, such that the blood ran down his leg, across the top of the foot and to the toes. A toxicology scan indicated the presence of cocaine and a metabolite of cocaine in Lawrence’s blood and the same substances, plus codeine and morphine, in his urine.
B. Defense Case
Percy Blunt was awakened on the morning of August 17, 2003 by the sound of Phris screaming for help. Blunt knew the Kimbles and had visited their apartment several times. When he approached, Phris handed him her keys and asked him to check on Lawrence. As he walked toward the apartment, Blunt saw appellant walking down the street. Phris yelled, “ ‘[t]here he is, there he is,’ ” but Blunt did not know what she meant. He entered and found the living room in disarray, then saw Lawrence lying on the floor in the kitchen with what looked like a towel or rag wrapped around his leg. Lawrence appeared to still be alive. Blunt told him to “hold on,” then looked for a phone and called 911. About two minutes later, Lawrence died. Blunt said he had known Lawrence “a few years” and had never seen him violent.
Darrell Buckins testified that he spent the night and early morning of August 17, 2003 drinking, playing games and getting high at the Kimbles’ apartment with Lawrence, Phris and Gerald Jackson. People were using heroin, cocaine, crack and marijuana. Appellant arrived around 5:00 or 6:00 a.m., and at some point he and Buckins walked to the store to buy alcohol. Appellant left the apartment about an hour later. During the time appellant was gone, the atmosphere in the apartment continued to be pleasant and “mellow,” and Buckins did not hear a fight between Lawrence and Phris concerning appellant. They were all in the same room, so Buckins would have heard such a conversation if it occurred. The next time appellant returned, Buckins walked outside, and Jackson followed him out. He could not say whether appellant was calm when he walked in. Buckins testified he did not see any knife or other weapon in appellant’s hand when he entered the apartment, and he did not see appellant push Phris. Buckins heard a woman screaming as he and Jackson walked down the street, but he continued walking away.
Finally, appellant testified in his own defense. He said he drove Phillips’s car to the Kimbles’ apartment around 6:00 or 7:00 in the morning. After a trip to the store with Buckins to buy alcohol, appellant returned to the apartment. He snorted heroin with Lawrence and Jackson in the kitchen and then played a game of chess with Phris. Appellant had called a woman named Gina who sells cocaine and was waiting for her to arrive During the chess game, Lawrence accused appellant of flirting with his wife, so appellant decided to leave. He testified that he and Phris had a sexual encounter once when Phris gave him oral sex in exchange for some cocaine. Appellant never told Lawrence about this encounter.
After he returned home, appellant received several phone calls, including three calls from the Kimbles telling him Gina had dropped off the cocaine and urging him to hurry over. Appellant took the bus to their apartment, then rang the bell and walked through the gate and upstairs. On his way in, he saw Buckins and Jackson walking out. When he entered, Lawrence told him the “D,” i.e., “dope,” was in the kitchen, and so appellant proceeded toward the kitchen. As he walked past Lawrence, however, Lawrence swung at him, and a physical “tussle” ensued in which the men yelled at each other. Appellant said Lawrence punched him, causing a mark on the bridge of his nose, and also said Lawrence held a knife in his hand. Appellant managed to dislodge the knife by hitting Lawrence’s hand against the wall, but then he “went down” because Lawrence hit him in the head with something hard. As he struggled to stand, appellant was struck in the head again, this time by Phris, and he fell to the floor. He then saw the knife lying on the floor, so he picked it up and started swinging it. Meanwhile, Lawrence kept hitting appellant and appellant kept swinging the knife at Lawrence until Lawrence suddenly stopped and sat down. Appellant testified Lawrence was in the process of kicking him when he stabbed him in the leg. When Lawrence sat down, appellant rose, walked over to him and asked “what the fuck is going on?” After Lawrence cursed him in response, appellant broke the knife with his bare hands, threw it down and left. On the way out, he told Phris, “ ‘Go get your man,’ ” then he took a bus home.
After cleaning the blood from his shoes and changing clothes, appellant took a bus to Phillips’s house. Appellant later got a phone call telling him Lawrence had been stabbed in the back and killed, and this scared him because he knew he had not stabbed Lawrence in the back. When appellant went to Lawrence’s mother’s house to find out what had happened, he was attacked by Lawrence’s brother and some other people who thought he had killed Lawrence. Appellant explained he wanted to talk with the police because he knew he had not stabbed Lawrence in the back, but he was too afraid to tell them he had fought with Lawrence.
In the prosecution’s case-in-chief, Marsha testified that when she first talked to appellant after she learned Lawrence was dead, appellant did not say that he stabbed Lawrence in self-defense. He did not tell Marsha he had acted in self defense until a month before his second trial on murder charges.
III. Verdicts and Sentencing
At the conclusion of the first trial, the jury returned verdicts finding appellant guilty of robbery, burglary and the assault of Chong, but not guilty of first degree murder. The jury also found true the allegation that appellant had personally used a deadly weapon (bottle) in assaulting Chong. After further deliberations, the jury found appellant not guilty of assaulting Phris and all lesser-included offenses to this charge. Because the jury announced it could not deliberate further on the lesser-included offenses of first degree murder, the court declared a mistrial on this count. On December 19, 2005, the court sentenced appellant to an indeterminate term of 25 years to life on the robbery charge, plus a one-year enhancement for personal use of a deadly weapon (§ 12022, subd. (b)) and three five-year enhancements for his prior serious felony convictions (§ 667, subd. (a)), for a total sentence of 41 years to life imprisonment.
At appellant’s retrial on the murder charge, the jury found him guilty of second degree murder and found true the allegation that appellant personally used a deadly weapon (knife) in committing the offense. In a second proceeding, the jury found all allegations of appellant’s prior convictions to be true. On April 28, 2006, the court sentenced appellant to an indeterminate term of 25 years to life on the murder charge, plus a one-year enhancement for personal use of a deadly weapon and three five-year enhancements for his prior serious felony convictions, for another total sentence of 41 years to life imprisonment. The court ordered that this sentence run consecutive to the 41-years-to-life sentence previously imposed for the robbery charge.
Appellant filed timely notices of appeal from both judgments.
DISCUSSION
I. Denial of Severance Motion Was Not Reversible Error
Appellant asserts he was prejudiced by an improper joinder of the murder and robbery charges in the first trial, and he argues this error requires us to reverse his convictions for the liquor store robbery and burglary and for the assault of Chung.
Section 954 authorizes the joint trial of different offenses “of the same class of crimes” but provides that a trial court may, in its discretion, order separate trials “in the interests of justice and for good cause shown.” Robbery and murder are the same class of crime for purposes of section 954 because both offenses “involve a common element of assault on the victim.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1243.) Accordingly, the statutory requirements for joinder were satisfied here, and the question is whether the trial court abused its discretion in denying appellant’s motion to sever.
Appellant filed a pretrial motion to sever the charges relating to the incident at the Kimbles’ home from the charges relating to the liquor store robbery. He argued there was no cross-admissibility of evidence regarding the two incidents and his ability to defend against the robbery charges would be substantially prejudiced by the admission of evidence about the homicide. In addition, appellant argued joinder compromised his Fifth Amendment rights as a practical matter, because he could not testify about one offense and remain silent about the other without giving the impression he was hiding something. Defense counsel represented to the court that appellant would be testifying in the homicide case but did not intend to testify in the robbery case. The court denied the motion without explanation. The following day, defense counsel urged the court to reconsider this ruling, stressing the dilemma joinder of the charges posed for appellant with respect to testifying. Appellant “definitely need[ed]” to testify in the homicide case to support his defense of self defense, but having the cases tried together meant that appellant would either be forced to testify about the robbery as well, in violation of his Fifth Amendment right, or, if he remained silent on the robbery charge, he would be impeached with prior convictions that otherwise would have been inadmissible. The prosecutor responded that appellant’s “last minute” claim that he would be arguing self defense was not plausible in light of the absence of forensic evidence to support such a defense. Upon reconsideration, the court again denied the motion without comment.
At trial, appellant asserted his Fifth Amendment privilege to remain silent regarding the liquor store robbery; however, he waived the privilege and testified regarding the charges that he murdered Lawrence Kimble and assaulted Phris Keaton-Kimble, and he was impeached with the fact that he had previously sustained numerous felony convictions. At the conclusion of this trial, the jury convicted appellant of all charges related to the robbery of Martell’s Liquors.
Appellant moved for a new trial based, in part, on the argument that he suffered substantial prejudice as a result of the court’s refusal to sever the murder charges from the robbery trial. Defense counsel declared that one juror (the lone “holdout” who would not vote to convict appellant of second degree murder) informed counsel that two of the jurors “brought up in deliberations the fact that the defendant has testified in the homicide case but not in the robbery case.” Counsel provided no further details regarding what the jurors may have said, and the court denied the motion. Appellant now renews his claim that the court should have severed the murder and robbery charges.
Section 954 evinces a legislative preference for joint trials. (People v. Sullivan (2007) 151 Cal.App.4th 524, 557; see also People v. Ochoa (1998) 19 Cal.4th 353, 409 [“Because consolidation ordinarily promotes efficiency, the law prefers it”].) “When, as here, the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant’s severance motion. [Citations.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161.)
We review the trial court’s denial of severance for abuse of discretion (People v. Smith (2007) 40 Cal.4th 483, 510; People v. Ochoa, supra, 19 Cal.4th at p. 408), taking into account that “[t]he state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence. [Citation.]” (People v. Cummings (1993) 4 Cal.4th 1233, 1284; see also People v. Arias (1996) 13 Cal.4th 92, 127 [because of factors favoring joinder, a stronger showing of prejudice is required to support severance than is necessary to exclude other-crimes evidence].) In determining whether prejudice sufficient to require joinder has been shown, an appellate court must limit its evaluation to the showings made and facts known at the time the motion for severance is made. (People v. Balderas (1985) 41 Cal.3d 144, 171; People v. Gomez (1994) 24 Cal.App.4th 22, 27.)
A trial court’s refusal to sever charges “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. Sandoval (1992) 4 Cal.4th 155, 172-173; see also People v. Smith, supra, 40 Cal.4th at pp. 510-511 [applying these factors].)
The Attorney General argues much of appellant’s statement to the police after the Kimble homicide would have been cross-admissible in a robbery trial because the interview documented the presence of injuries (and appellant’s somewhat incriminating attempts to account for them) that appellant arguably incurred in committing the strong-arm robbery. The interview also provided an admission that appellant sometimes loaned his building access card to others, such as his sister, which would have been relevant to counter his defense to the robbery based on building access records. Finally, somewhat less persuasively, the Attorney General points to evidence of various behaviors appellant exhibited in regard to the murder—quickly overtaking his victim, calmly walking away from the scene of the crime, and efficiently cleaning and disposing of bloody clothing—as relevant to identity him as the person who committed the liquor store robbery. While conceding there may be some “overlap of tangential evidence” in the robbery and homicide cases, appellant argues the offenses themselves would not have been cross-admissible in separate trials. We need not resolve this dispute because it is now well-settled that “cross-admissibility is not the sine qua non of joint trials. [Citations.]” (People v. Sandoval, supra, 4 Cal.4th at p. 173; see also People v. Geier (2007) 41 Cal.4th 555, 575 [lack of cross-admissibility alone is not sufficient to show prejudice barring joinder].) Indeed, section 954.1, which was enacted by voter initiative (see People v. Belton (1993) 19 Cal.App.4th 1279, 1285-1286), expressly states that “where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact.” (Italics added.)
Setting aside the debate about cross-admissibility, none of the remaining factors for assessing prejudice weighs in favor of severance. Despite appellant’s focus on the brutal circumstances of the stabbing, the homicide in this case was not unusually inflammatory when compared to the callous beating of a vulnerable victim that occurred in the liquor store robbery. (See People v. Musselwhite, supra, 17 Cal.4th at pp. 1244-1245 [joinder of murder case with case of robbery, assault and attempted murder was not prejudicial].) Nor does this appeal present the situation of a weak case joined with a strong one, or two weak cases thrown together in the hope that they would unfairly bolster each other; on the contrary, the state’s evidence against appellant in both cases was strong. Although prosecutors did not have DNA evidence to support the robbery case against appellant, as they did in the homicide case, they did have solid eyewitness testimony linking him to the crime. Appellant was identified as the liquor store robber by the victim and two independent bystanders, one of whom testified at trial he had no doubt appellant was the perpetrator. “Whenever a defendant is tried for multiple crimes of the same class, the jury will be presented with evidence that the defendant committed multiple offenses. This necessary concomitant of joinder is not sufficient to render the joinder unduly prejudicial. If it were, joinder could never be permitted. The danger to be avoided in joinder of offenses is that strong evidence of a lesser but inflammatory crime might be used to bolster a weak case on another crime. [Citation.] That danger was not present here where neither incident was significantly stronger or more inflammatory than the other.” (People v. Hill (1995) 34 Cal.App.4th 727, 735-736.)
Given the overlapping evidence regarding appellant’s injuries, the absence of prejudice from the nature of the joined offenses, and the relative strengths of the prosecution’s case for each, and given the policies favoring joinder, the trial court did not abuse its discretion in denying appellant’s motion for severance. However, our inquiry does not end here because “[e]ven if a trial court’s severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at p. 162; see also People v. Smith, supra, 40 Cal.4th at p. 510; People v. Rogers (2006) 39 Cal.4th 826, 851.)
Beyond the Sandoval factors, appellant argues joinder caused him to suffer substantial prejudice because it interfered with his ability to testify in regard to the murder charge but not the robbery. He relies heavily on language from Cross v. United States (D.C. Cir. 1964) 335 F.2d 987, 989, which explained that prejudice can arise from such a testimonial dilemma because, when causes are joined for trial, the accused cannot weigh the decision whether to testify separately as to each count. “If he testifies on one count, he runs the risk that any adverse effects will influence the jury’s consideration of the other count. . . . Moreover, a defendant’s silence on one count would be damaging in the face of his express denial of the other.” (Ibid.)
The court that decided Cross later narrowed its view of what constitutes prejudice. (See Baker v. United States (D.C. Cir. 1968) 401 F.2d 958, 976-977 [requiring defendant to make a “convincing showing” of the need to testify on one count and the need to remain silent on another].)
In considering a similar argument, our Supreme Court adopted the view of federal courts that “severance is not mandatory every time a defendant wishes to testify to one charge but not to another. ‘ “If that were the law, a court would be divested of all control over the matter of severance and the choice would be entrusted to the defendant.” ’ (United States v. Archer (7th Cir. 1988) 843 F.2d 1019, 1022.)” (People v. Sandoval, supra, 4 Cal.4th at p. 174; see also People v. Belton, supra, 19 Cal.App.4th at p. 1287 [noting California has adopted the federal rule].) On the contrary, Sandoval explained, a “need for severance does not arise in federal courts ‘ “until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other.” ’ [Citations.] Federal courts have required the defendant to present enough information to satisfy the court that the claim of prejudice is genuine and to enable it to weigh the considerations of economy and expedient judicial administration against the defendant’s interest in having a free choice with respect to testifying. [Citation.]” (People v. Sandoval, supra, 4 Cal.4th at p. 174.) When a defendant fails to explain both the nature of the testimony he intends to give in one case and the specific reasons why he wishes to refrain from testifying in the other case, California and federal decisions consistently hold that severance is not required. (Ibid.; see also People v. Belton, supra, 19 Cal.App.4th at p. 1287; United States v. Archer, supra, 843 F.2d at pp. 1022-1023; United States v. Valentine (10th Cir. 1983) 706 F.2d 282, 290-291.) A bare assertion that the defendant would benefit from remaining silent and holding the state to its burden of proof because the evidence against him is weak is simply not sufficient to show that a claim of prejudice is genuine. (People v. Sandoval, supra, 4 Cal.4th at p. 174; see also United States v. Freland (7th Cir. 1998) 141 F.3d 1223, 1227-1228.)
Appellant plausibly explained that he needed to testify about the homicide in order to establish his self-defense claim. In contrast, the only concrete reason appellant offered to explain why he wished to invoke his Fifth Amendment privilege in the robbery case had nothing to do with the testimony he could or could not give in regard to that case; rather, it stemmed from a tactical desire to prevent the jury from hearing about his prior convictions. If the robbery case were tried separately and appellant did not testify, the jury would decide his guilt for the Martell Liquors robbery without learning that he had seven prior felony convictions, some of which were for robbery.
Appellant cites no case law supporting his claim that a desire to avoid impeachment with prior convictions constitutes such a compelling showing of prejudice as to render the denial of severance an abuse of discretion, or the outcome of a joint trial grossly unfair. In fact, federal courts have grappled with an arguably more thorny version of this question—i.e., whether it is an abuse of discretion to deny severance when proof of a prior conviction is required as an element of one of the charged offenses. In such cases, the defendant’s prior conviction is admissible as substantive proof of an offense, and not just for purposes of impeachment. Nevertheless, the federal courts have resisted adopting a per se rule against joinder in these circumstances. Although the Third Circuit Court of Appeals once suggested in dicta that severance should be granted unless evidence of a defendant’s prior conviction is independently admissible (United States v. Busic (3d Cir. 1978) 587 F.2d 577, 585, revd. on other grounds sub nom. Busic v. United States (1980) 446 U.S. 398), it appears no other circuit has adopted such a presumption. (See United States v. Dockery (D.C. Cir. 1992) 955 F.2d 50, 53, fn. 3 [collecting cases].) Rather, the federal courts have undertaken a case-specific inquiry to determine whether, given how the case was tried, joinder created a significant risk of unfairness or prejudice. When a defendant’s prior conviction is established by stipulation, for example, or when the prior conviction does not receive unnecessary or undue emphasis at trial, these facts weigh against a finding of prejudice. (See, e.g., Breeland v. Blackburn, supra, 786 F.2d at p. 1242; United States v. Daniels (D.C. Cir. 1985) 770 F.2d 1111, 1114, 1118; United States v. Valentine, supra, 706 F.2d at p. 290.) Limiting instructions that caution the jury against drawing improper inferences from the prior conviction can also mitigate any prejudice to the defendant. (See United States v. Silva (4th Cir. 1984) 745 F.2d 840, 844; United States v. Roe (10th Cir. 1974) 495 F.2d 600, 604.)
This problem occurs, for example, when a charge that the defendant was a felon in possession of a firearm—which requires proof of the prior felony—is joined for trial with other charges. (See, e.g., Breeland v. Blackburn (5th Cir. 1986) 786 F.2d 1239.)
Here, appellant’s prior convictions were not unduly emphasized at trial. Defense counsel elicited testimony from appellant on direct examination that the last conviction occurred 10 years earlier, and appellant was able to characterize the convictions as all “theft-related.” On cross-examination, the prosecutor asked appellant if he recalled five of these convictions (three of which were for robbery, one for attempted burglary and one for auto theft) but did not attempt to introduce evidence about the facts underlying the offenses.
Moreover, the jury was instructed that evidence of appellant’s prior convictions could be considered only for the purpose of assessing his believability as a witness. Another instruction noted that appellant had testified as to certain matters but not others and stated that the jury was prohibited from discussing or drawing any inference from the fact that appellant had not testified with regard to the robbery charges. Along these lines, the jury was also told it had to decide each count separately. We must presume the jury understood and followed these instructions and considered the relatively brief mentions of appellant’s prior convictions solely as impeachment of his testimony in regard to the homicide charges. (People v. Panah (2005) 35 Cal.4th 395, 492; People v. Danielson (1992) 3 Cal.4th 691, 722.)
Finally, because the evidence that appellant committed the liquor store robbery was strong, appellant was not prejudiced by any error in the denial of his severance motion. “[E]ven where capital charges are involved, ‘consolidation may be upheld on appeal where the evidence on each of the joined charges is so strong that consolidation is unlikely to have affected the verdict. [Citation.]’ [Citation.]” (People v. Arias, supra, 13 Cal.4th at p. 130, fn. 11; cf. People v. Smallwood (1986) 42 Cal.3d 415, 431-432 [finding joinder to be prejudicial where evidence of one of the charged offenses was so untrustworthy that an acquittal would have been likely].) The victim and two independent eyewitnesses identified appellant as the robber, and jurors were able to draw their own conclusions from the videotaped image captured by the store’s cameras. Appellant also had injuries—swollen hands, a laceration on his arm and a bump on his head—that were consistent with his participation in a scuffle with the store owner. Finally, appellant’s primary defense to the robbery, which was based on his apartment building’s access records on the afternoon in question, was undermined by evidence (from appellant’s statement to police regarding the Kimble homicide) that he sometimes loaned his access card to others. Given the weighty evidence that appellant committed the robbery, it is unlikely that the consolidation of charges, or the impeachment of appellant’s testimony with prior convictions, had any affect on the robbery verdicts.
II. Delay in Prosecution Did Not Violate Due Process or Speedy Trial Rights
Appellant was arrested for the robbery of Martell’s Liquors on August 28, 2003, and a felony complaint alleging various charges related to the robbery was filed on September 3, 2003. Over the next several months, appellant repeatedly and personally waived his rights to a speedy preliminary hearing and trial. Then, on July 29, 2004, appellant was arrested for the Kimble murder. The prosecution later dismissed the robbery complaint after the grand jury returned an indictment covering both offenses.
We previously granted appellant’s request for judicial notice of these pre-indictment court filings.
On the eve of trial, appellant filed a motion to dismiss claiming his state constitutional right to a speedy trial and his federal right to due process were violated because the delay in proceeding to a preliminary hearing after the filing of the robbery complaint allowed the prosecutor to file charges against him for the Kimble homicide and join them with the robbery charges. The motion was denied, and appellant now renews his arguments on appeal. For the same reasons urged previously, appellant claims he was prejudiced by the joinder of the homicide and robbery charges and, consequently, prejudiced by the delay that enabled it.
Appellant’s state and federal speedy trial rights commenced at approximately the same time. Under the federal constitution, his right to a speedy trial attached on August 28, 2003, when he was arrested for the robbery and placed under continuing restraint, and the state constitutional right attached five days later, with the September 3, 2003, filing of a felony complaint. (See People v. Martinez, supra, 22 Cal.4th at p. 765 [explaining the events that trigger the two rights].)
We need not address appellant’s due process claim separately because in this context the federal due process right is coextensive with the state constitutional right to a speedy trial. (People v. Martinez (2000) 22 Cal.4th 750, 767-768; Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1545, fn. 7.) We would observe only that such due process claims are typically raised by defendants who have suffered unusually long periods of incarceration or confinement due to the delay (see, e.g., People v. Anderson (2001) 25 Cal.4th 543, 603-606; Craft v. Superior Court, supra, 140 Cal.App.4th at pp. 1542-1545), whereas appellant does not complain the length of his pretrial incarceration was oppressive in and of itself.
Appellant did not assert his constitutional rights to a speedy trial at any time during the 11-month period of delay of which he now complains. Nor did he simply remain silent. Instead, throughout this period, he “personally ‘waived time’: that is, he formally and knowingly relinquished his right to a speedy trial for the period covered by each continuance.” (People v. Seaton (2001) 26 Cal.4th 598, 633-634 [speedy trial claim based on delay of more than two years was waived by defendant’s waivers of time and failure to assert the right in an objection or motion to dismiss]; see also Barker v. Wingo (1972) 407 U.S. 514, 532 [observing a defendant’s failure to assert the speedy trial right “will make it difficult” to support a later claim for violation of the right].)
As he did below, appellant now insists he waived time only because he was misled by the prosecutor into believing the district attorney’s office was awaiting the results of DNA testing related to the robbery, when in fact the prosecution was using the time to gather evidence against appellant to support the homicide charges it intended to file. In support of the motion to dismiss, appellant’s trial counsel declared that, during the months before homicide charges were filed, appellant relied on representations by the district attorney’s office that DNA testing was underway because appellant believed such results could yield exculpatory information, yet counsel learned in June 2005 that no DNA testing had ever been done in the robbery matter. Appellant declared he would not have waived time if he had known testing was not being performed in the robbery case. In response, the Attorney General points to evidence in the record showing that DNA tests were in fact performed on items taken from appellant’s apartment when he was arrested for the robbery, and defense counsel received at least some of the results of these tests in December 2003. We need not wade further into this factual dispute because substantial evidence supports the trial court’s finding that the prosecution did not act in bad faith or with the intention of discouraging appellant from asserting his speedy trial rights. However, as appellant observes, a delay in prosecution need not be deliberate to support a speedy trial claim. (See Doggett v. United States (1992) 505 U.S. 647, 656-658 [Sixth Amendment speedy trial claim may be based on official negligence]; cf. People v. Roybal (1998) 19 Cal.4th 481, 512 & fn. 6 [rejecting defendant’s claim of intentional delay but proceeding to analyze merits of speedy trial claim].)
“To determine whether federal speedy-trial rights were violated, courts apply a balancing test involving four factors: length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. [Citations.]” (People v. Anderson, supra, 25 Cal.4th at p. 603; see Barker v. Wingo, supra, 407 U.S. at p. 530.) Analysis of the state constitutional right is slightly different, although it too focuses on prejudice: “[W]hen a defendant seeks dismissal based on delay after the filing of the complaint and before indictment or holding to answer on felony charges, a court must weigh ‘the prejudicial effect of the delay on defendant against any justification for the delay.’ [Citations.] No presumption of prejudice arises from delay after the filing of the complaint and before arrest or formal accusation by indictment or information [citation]; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice [citation].” (People v. Martinez, supra, 22 Cal.4th at pp. 766-767.)
It is settled that prejudice must be assessed in light of the interests the speedy trial right was designed to protect. (Barker v. Wingo, supra, 407 U.S. at p. 532; see also People v. Roybal, supra, 19 Cal.4th at p. 512; Craft v. Superior Court, supra, 140 Cal.App.4th at p. 1540.) The highest courts of our state and our nation have described only three such interests: (1) protecting against oppressive pretrial incarceration or otherwise prolonged imprisonment; (2) relieving the anxiety and public suspicion attendant upon one accused of a crime; and (3) limiting the possibility that an accused’s ability to defend himself at trial will be impaired, for example, by the loss of witnesses or dulling of memory. (Barker v. Wingo, supra, 407 U.S. at p. 532; Barker v. Municipal Court (1966) 64 Cal.2d 806, 813; see also People v. Martinez, supra, 22 Cal.4th at p. 768 [observing parenthetically that the same interests protected by the state speedy trial right are served by the federal right].)
Appellant has not shown—and does not even argue—that the delay in bringing the robbery case to trial prejudiced any of these protected interests. Recognizing, perhaps, that he would have been arrested in the homicide case no matter how quickly the robbery case proceeded, appellant does not claim he suffered excessive pretrial incarceration. Nor does he complain the untried robbery charges caused him serious anxiety or made him an unfair object of public suspicion. Finally, appellant does not argue the delay diminished his ability to defend against the robbery charges at trial because the lapse of time resulted in a loss of evidence or helpful testimony from witnesses. Indeed, because the state’s case against appellant was based almost entirely on testimony from eyewitnesses and the victim (who suffered a traumatic brain injury in the incident), any memory impairment that could have been induced by the delay in bringing the robbery charges to trial likely damaged the prosecution’s ability to secure a conviction rather than appellant’s ability to defend the robbery case.
Appellant argues instead that he suffered prejudice because the delay enabled the prosecution to file charges against him for the Kimble homicide and then consolidate these charges with the robbery charges. For the reasons discussed in regard to his motion for severance, appellant complains this consolidation prejudiced his ability to defend himself in the robbery case. We have already rejected appellant’s claim that joinder of the homicide and robbery charges unduly prejudiced his defense. Moreover, appellant’s claim of prejudice is highly speculative. There was no evidence showing the district attorney’s office intentionally delayed prosecution of the robbery in order to file additional charges against appellant, or that the delay was engineered as a deliberate effort to procure a prejudicial consolidation. The Supreme Court recently rejected as speculative a similar claim of prejudice based on the argument that a delay in trial deprived the defendant of an opportunity to serve concurrent, rather than consecutive, sentences. (People v. Lowe (2007) 40 Cal.4th 937, 946.) The court held that “a defendant claiming a speedy trial violation under the California Constitution must show that the delay has impaired the ability to defend against the charged crime because, for instance, a witness has become unavailable, evidence has disappeared, or the memory of a potential witness has faded.” (Ibid., italics added & fn. omitted.) In so doing, the court disapproved of an appellate decision that suggested prejudice could be established by situations other than the “typical prejudice from a speedy trial violation, i.e., fading memories, lost witnesses or evidence.” (People v. Martinez (1995) 37 Cal.App.4th 1589, 1597, disapproved in People v. Lowe, supra, 40 Cal.4th at p. 946 & fn. 3.)
Appellant’s claim of prejudice is speculative and foreclosed by the Supreme Court’s reasoning in Lowe. Accordingly, he suffered no state or federal constitutional violation from the challenged delay in trial of the robbery charges.
III. Evidentiary Claims Do Not Require Reversal
Appellant claims the trial court committed certain evidentiary errors in both trials and argues these errors require reversal of both the robbery and murder convictions. We disagree.
A. Appellant’s Impeachment with Prior Convictions
With respect to the first trial, which resulted in appellant’s convictions for robbery, assault with a deadly weapon and burglary, appellant argues the court erred in allowing the prosecution to impeach his testimony with all seven of his prior felony convictions. These convictions were for grand theft (in 1978), second degree burglary (in 1978, 1981 and 1993), auto theft (in 1979), and robbery (in 1989 and 1995). Appellant moved in limine to exclude all of the convictions under Evidence Code section 352, arguing they were too old to be probative; however, the trial court denied the motion and ruled that all of the convictions were admissible for impeachment purposes. As discussed, the jury was instructed it could consider evidence of the prior convictions only for purposes of assessing appellant’s believability as a witness.
Appellant does not dispute that his prior convictions were eligible for use in impeaching his testimony. Section 28(f) of article I of the California Constitution, which was added in 1982 by Proposition 8, permits “[a]ny prior felony conviction” to “be used without limitation for purposes of impeachment . . . in any criminal proceeding.” The Supreme Court has observed that, subject to the restraints of Evidence Code section 352, this constitutional provision “authorizes the use of any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty.” (People v. Castro (1985) 38 Cal.3d 301, 306.) Appellant’s complaint is thus premised on Evidence Code section 352. He argues the probative value of the convictions was slight because the most recent conviction occurred 10 years before trial, and the prejudicial effect was high, both because the number of convictions was high and because five of the convictions (for robbery and burglary) were similar in nature to the charged offenses. These arguments are unpersuasive.
The age of appellant’s convictions is misleading because appellant was on parole until only one year before the current offenses were committed. As the trial court observed, appellant’s criminal record demonstrated that most of his adult life consisted of “one long chain of . . . criminal activities,” speckled throughout with “a number of prison commitments.”
To the extent appellant now claims prejudice from the sheer number of his prior convictions, or suggests the court should have limited the number that could be mentioned, the argument is waived because it was not raised in the trial court. (Evid. Code, § 353; People v. Holt (1997) 15 Cal.4th 619, 666-667.)
Appellant’s claim of prejudice based on similarity of the offenses is also unavailing. In People v. Hinton (2006) 37 Cal.4th 839, 887-888, the Supreme Court rejected a similar argument that the defendant’s prior convictions should have been excluded as too similar to the charged crime, noting that, after passage of Proposition 8, past offenses similar or identical to the offense on trial are no longer automatically subject to exclusion. Rather, “ ‘ “[t]he identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.” ’ [Citations.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 926.) Here, any prejudice from the similarity of the offenses was mitigated by the minimal emphasis placed on the prior convictions at trial. No details about these prior crimes were admitted in evidence, and the prosecutor mentioned the fact of the prior convictions only once, and briefly, during the lengthy closing arguments. Moreover, because nearly all of appellant’s prior convictions were for theft-related offenses such as the ones for which he was currently on trial, excluding evidence of these prior crimes “would have given [him] a ‘ “false aura of veracity.” ’ [Citations.]” (People v. Hinton, supra, 37 Cal.4th at p. 888.)
Accordingly, the trial court did not abuse its discretion in allowing appellant’s prior felony convictions to be admitted for impeachment.
B. Evidence of Past Knife Incident with Marsha Keaton
Appellant next challenges the admission of evidence in his second trial about the incident in which he cut Marsha Keaton with a knife, arguing the evidence was inadmissible under Evidence Code sections 352 and 1101, subdivision (a). In the event the evidence was properly admitted, appellant contends the trial court erred in failing to give a limiting instruction.
The defense filed pretrial motions to exclude evidence of “prior bad acts” and “bad character evidence,” but neither of these motions mentioned the knife incident with Marsha or described any specific evidence to be excluded. At trial, the jury heard testimony about the incident from three prosecution witnesses, but defense counsel never objected that this testimony was unduly prejudicial or inadmissible character evidence. Phris testified that appellant had cut Marsha with a knife a week before Lawrence was killed. After ascertaining that Phris learned about the incident from Marsha, defense counsel objected and moved to strike the evidence as hearsay The court ruled the evidence was admissible to show Phris’s state of mind (i.e., fear for her sister) and instructed the jury the testimony was to be used for this limited purpose only. Marsha later described the incident herself when she was called as a witness for the prosecution. No objection was made to this testimony. In fact, defense counsel brought up the subject again in cross-examination, eliciting helpful testimony from Marsha that the cut was an accident and that appellant had apologized and driven her to the hospital. The jury heard about the incident a third time when, during cross-examination by defense counsel, Morman Keaton explained that he came to town in August 2003 to see his daughter Marsha because Lawrence told him appellant had cut Marsha on the knee. Morman testified that Marsha initially lied to him about how she was injured, but when she eventually told the truth she did not say the cut was accidental. Counsel did not move to strike these comments as hearsay or based on Evidence Code sections 352 or 1101.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, italics added.) Although no particular form of objection is required, “ ‘the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 435.) Appellant waived his present claims of error under Evidence Code sections 352 and 1101 by failing to identify the specific “bad acts” and “bad character evidence” he sought to exclude in pretrial motions and by failing to object to testimony about the knife incident. (See, e.g., People v. Zepeda (2001) 87 Cal.App.4th 1183, 1208 [general objection before trial to admission of gang-related evidence was insufficient to preserve claim of error regarding specific testimony].) Nevertheless, we must reach these arguments because appellant now asserts counsel rendered constitutionally ineffective assistance by failing to make the appropriate objections. (Strickland v. Washington (1984) 466 U.S. 668, 690, 694.) We conclude counsel’s assistance was not deficient, and it is not reasonably probable that the defense would have obtained a more favorable result had counsel raised objections under Evidence Code sections 352 and 1101, because evidence about the knife incident with Marsha was clearly admissible to prove appellant’s motive and intent in the killing of Lawrence Kimble. (See, e.g., People v. Williams (1997) 16 Cal.4th 635, 681 [if the challenged testimony was admissible, defense counsel does not render ineffective assistance by failing to object]; People v. Davis (1995) 10 Cal.4th 463, 532 [same].)
Evidence Code section 1101, subdivision (b) permits the introduction of evidence of uncharged crimes or other misconduct by the defendant “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” In a given case, “[t]he admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.)
Evidence about the knife-wielding incident in which appellant injured Marsha’s knee was highly relevant to prove appellant’s motive and intent to kill Lawrence Kimble. On the night in question, just over two weeks before Lawrence was killed, Marsha heard appellant and Lawrence arguing so loudly in the hallway outside appellant’s apartment that their voices awakened her. Marsha testified that when appellant came inside he was very upset, and he proceeded directly to the kitchen and grabbed a butcher knife from the cutlery set. In his anger, appellant lashed out and—accidentally, according to Marsha—stabbed his girlfriend in the knee so severely that she had to be hospitalized. This incident demonstrates that appellant was angry with Lawrence only weeks before he killed the man. It therefore served both as evidence that appellant had a motive and the intent to kill Lawrence and as impeachment of appellant’s story to the police that he and Lawrence had resolved their differences and remained friends after the fight in which appellant wielded a pen or a knife (or possibly an ice pick) to pin Lawrence to the couch. “ ‘Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted . . . to show the motive and state of mind of the defendant.’ [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 668; see also People v. Butler (2005) 127 Cal.App.4th 49, 60-61 [prior quarrel between defendant and a group that included the victim was properly admitted to explain defendant’s motive for what appeared to be an unprovoked attack in which defendant killed the victim].)
Appellant argues the evidence was unduly prejudicial because “[i]t would have been almost impossible for the jury not to use the evidence for the impermissible basis of proving appellant’s propensity to unjustifiably attack and stab people with a knife.” However, what appellant attempts to cast as an impermissible propensity inference is exactly what makes the prior knife incident especially probative of appellant’s intent in the Kimble homicide. California courts “ ‘ “have long recognized ‘that if a person acts similarly in similar situations, he probably harbors the same intent in each instance’ [citations], and that such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.” ’ (People v. Gallego (1990) 52 Cal.3d 115, 171.)” (People v. Roldan (2005) 35 Cal.4th 646, 706; see also People v. Steele (2002) 27 Cal.4th 1230, 1244 [“the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous”].) The fact that appellant wielded a knife on two occasions after (or during) quarrels with Lawrence logically tends to prove that his killing of Lawrence was intentional. Given appellant’s claim of self-defense, intent to kill was by far the most important issue the jury had to resolve at the murder trial. Evidence about the knife wielding incident in which appellant cut Marsha was properly admitted because it was relevant to this disputed issue and not unduly prejudicial.
In a related argument, appellant contends the trial court erred in failing to give a limiting instruction that advised the jury it could consider evidence about the prior knife incident only for a permissible purpose, and not to support a propensity inference. “Trial courts generally have no duty to instruct on the limited admissibility of evidence in the absence of a request. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1020.) Recognizing his trial counsel made no such request, appellant now argues the trial court had a sua sponte duty to give a limiting instruction based on the “narrow exception” the Supreme Court has recognized for “the ‘occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.’ [Citations.]” (People v. Rogers, supra, 39 Cal.4th at p. 854, quoting People v. Collie (1981) 30 Cal.3d 43, 64.) This is not such an extraordinary case. Evidence about the knife incident with Marsha was briefly presented and did not comprise “a dominant part” of the state’s case against appellant, nor, for the reasons just discussed, was it especially prejudicial or of questionable relevance. Finally, to the extent appellant contends his counsel rendered ineffective assistance by failing to request a limiting instruction, the claim fails for lack of prejudice. The prosecutor barely mentioned the incident in closing argument, and when he did so it was in the context of arguing appellant harbored an intent to kill Lawrence. It is not reasonably probable a limiting instruction would have affected the verdict.
The prosecutor also called it a “remarkable coincidence” that appellant repeatedly stabbed Lawrence in the legs and, less than a month before, had stabbed his girlfriend in the knee. This remark did not highlight the evidence or invite the jury to draw a propensity inference, as appellant claims. On the contrary, the prosecutor was merely pointing out the implausibility of appellant’s claim that although he had stabbed two people within a month he acted with innocent intent both times.
C. Evidence of Victim’s Fear of Appellant
Appellant next complains the court erred in the second trial by admitting evidence of Lawrence’s statements to others that he feared appellant. Phris testified that after the incident in which appellant had pinned him to the couch, Lawrence told her he was afraid of appellant. In addition, Phris’s father Morman testified that, in the week before he died, Lawrence also told him he was afraid because a person named Michael wanted to kill him. Appellant now argues this evidence should have been excluded under Evidence Code section 352; however, the claim is waived because appellant failed to object on this ground below. (Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124.) Once again, appellant argues his attorney’s failure to object constituted ineffective assistance of counsel, and once again we conclude the claim has no merit because the challenged evidence was admissible.
Although the defense raised no hearsay objection to Morman’s testimony repeating Lawrence’s statement that he was afraid appellant would kill him, the trial court sua sponte instructed the jury that the evidence was offered for the limited purpose of showing Lawrence’s state of mind and to show any acts or conduct by him at a later date.
“Circumstantial evidence showing that the victim feared the defendant may be admissible if the acts or conduct of the victim prior to the crime are at issue. [Citations.]” (People v. Cox (2003) 30 Cal.4th 916, 957.) In Cox, the Supreme Court concluded testimony about the victim’s apparent fear of the defendant after an argument in which he threatened to “get her” was admissible to show the victim would not have voluntarily entered the defendant’s car on the night she was murdered. (Id. at pp. 957-958; see also People v. Sakarias (2000) 22 Cal.4th 596, 628-629 [evidence that murder victim feared defendant admissible to show she would not have voluntarily given him her personal property].) Here, the conduct of the victim was a central issue at trial. Evidence that Lawrence feared appellant was relevant to rebut appellant’s claim that Lawrence was the aggressor in the knife fight. It suggested Lawrence would not have provoked appellant or lured appellant into his home for the purpose of attacking him.
Appellant argues this probative value was substantially outweighed by the danger of unfair prejudice based on the Supreme Court’s observation that testimony about a defendant’s prior threats against the victim “ ‘is a particularly sensitive form of evidence of the victim’s state of mind’ ” that carries a danger the jury will consider the evidence for an improper purpose. (People v. Armendariz (1984) 37 Cal.3d 573, 589.) However, quite unlike this case, the victim’s state of mind was not at issue in Armendariz. (Id. at p. 586.) There, because the only disputed issue was the identity of the victim’s killer, testimony that the victim had reported being threatened by the defendant should have been excluded as inadmissible hearsay. (Id. at pp. 587-588.) The court also observed the hearsay statement was unduly prejudicial because the alleged threat was “extremely remote in time” (approximately 17 months before the killing) and was cumulative of other evidence. (Id. at p. 589.) Here, in contrast, Lawrence told Morman appellant wanted to kill him only weeks before appellant, admittedly, did so, and no other evidence established this reason for Lawrence’s fear.
IV. Alleged Juror Misconduct Did Not Warrant Further Investigation or Mistrial
Appellant claims he was deprived of his constitutional rights to due process and a unanimous jury verdict in his first trial because the court failed to conduct an “adequate inquiry” into allegations that a juror was sleeping on occasion.
After the jury returned verdicts in the guilt phase, trial continued before the same jury on August 17, 2005 regarding appellant’s prior convictions. During a discussion between the court and counsel just before closing arguments, defense counsel asked to “put on the record that Juror Number 3 was asleep throughout a good portion of this trial.” Counsel asked that he be replaced with an alternate juror for deliberations. Noting that counsel had mentioned once during the presentation of the prosecutor’s case that this juror had “dozed off,” the court observed it immediately took note of the issue and asked everyone in the jury to take a break and stretch. The court also stated it had not noticed that the juror was inattentive for any extended period of time. When the prosecutor disputed whether the juror had fallen asleep, defense counsel responded, “I saw Juror Number 3 with [his] head leaned back against the wall, eyes closed and mouth wide open for at least five minutes . . . .” The court agreed that the juror appeared to have dozed off but stated, “I certainly didn’t notice for that length of time.” The court denied the motion to replace Juror Number 3, and the matter proceeded to verdict on appellant’s prior convictions.
Both sides appear to agree this incident occurred during the prosecutor’s direct examination of robbery victim Chung. Shortly after the courtroom lights were dimmed, when the prosecutor was preparing to show jurors the videotape taken by the store’s surveillance camera, the court interrupted the prosecutor, saying, “It’s a good time to take a break. Everyone can stretch.”
Appellant raised the “sleeping juror” issue again in his motion for a new trial. In this motion, defense counsel stated he had brought incidents of sleeping to the court’s attention on three separate occasions. According to counsel, the first time the court responded by urging jurors to take a break, the second time the juror woke up as soon as counsel alerted the court to the sleeping, and the third time the court disputed that the juror was sleeping and denied the defense’s motion to replace him. In the motion, defense counsel also stated that Juror Number 11 (the one “holdout” juror who refused to convict appellant of second degree murder) told him “Juror # 3 admitted during deliberations that he had fallen asleep during large portions of the trial.” Counsel submitted a declaration in support of the new trial motion, but his declaration made no mention of any juror sleeping incidents witnessed by himself or anyone else. At the hearing on the motion, the court recalled that the sleeping incidents counsel described occurred very close together in time—on only one or two days over the course of a six-week trial—and did not pose an ongoing problem during the trial. Moreover, with respect to the third alleged incident, the court simply did not think the juror was asleep. The motion was denied.
“A trial court may discharge a juror who ‘becomes ill, or upon other good cause shown to the court is found to be unable to perform his [or her] duty, . . .’ [Citation.] Once a trial court is put on notice that good cause to discharge a juror may exist, it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 821.) However, “the mere suggestion of juror ‘inattention’ does not require a formal hearing disrupting the trial of a case. [Citation.]” (Ibid.) “ ‘ “The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial.” ’ [Citation.] A hearing is required only where the court possesses information which, if proved to be true, would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties and would justify his or her removal from the case. [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1348.)
The trial court did not abuse its discretion in declining to investigate the allegation of juror misconduct. Defense counsel did not raise any complaint about a juror sleeping until just before deliberations in the trial on prior convictions, and at that time he discussed only one specific incident, which had occurred weeks earlier during the prosecution’s case. Upon noticing that the juror had dozed off in the darkened courtroom, the trial court responded appropriately by calling for an immediate break and urging jurors to stretch. No other incidents were mentioned on the record until defense counsel described two additional episodes months later in appellant’s motion for new trial, and the court disputed one of these had even happened. This record amply supports the trial court’s conclusion that Juror Number 3’s sleeping was not a recurring problem during trial. (See People v. Bradford, supra, 15 Cal.4th at pp. 1348-1349 [contemporaneous reference to a juror sleeping on two days of trial, with failure to show inattentiveness over a more substantial period, did not trigger need for further inquiry into juror misconduct].) Defense counsel’s failure to assert misconduct or call for a hearing at the time of the alleged sleeping incidents further supports the conclusion that no such hearing was warranted. (Id. at p. 1349.)
Appellant also argues the trial court erred in denying his motion for a new trial due to the fact of a juror sleeping; however, he presented no evidence to support this allegation of misconduct. In the new trial motion, defense counsel merely asserted that additional incidents of sleeping occurred, but counsel’s sworn declaration made no mention of any such incidents he may have observed. Moreover, although counsel also claimed Juror Number 11 told him that Juror Number 3 had reported sleeping, he did not submit a declaration from Juror Number 3 to substantiate this claim. He did not even attempt to submit a hearsay declaration from Juror Number 11 on the issue, nor did he mention in his own declaration what Juror Number 11 had purportedly told him. Accordingly, with the exception of only two brief instances observed by the court, appellant’s claim that a juror was sleeping was entirely uncorroborated.
As the Supreme Court observed in Bradford: “ ‘[C]ourts have exhibited an understandable reluctance to overturn jury verdicts on the ground of inattentiveness during trial. In fact, not a single case has been brought to our attention which granted a new trial on that ground. Many of the reported cases involve contradicted allegations that one or more jurors slept through part of a trial. Perhaps recognizing the soporific effect of many trials when viewed from a layman’s perspective, these cases uniformly decline to order a new trial in the absence of convincing proof that the jurors were actually asleep during material portions of the trial. [Citations.]’ [Citation.]” (People v. Bradford, supra, 15 Cal.4th at p. 1349.) Given the spotty record in this case, the trial court properly denied appellant’s motion for a new trial on this ground.
Appellant’s continued reliance on People v. Rubio (2006) 141 Cal.App.4th 1214 is troubling because that decision was vacated by the Supreme Court’s grant of review on November 15, 2006 (S146283)—six months before appellant filed his reply brief. Although the matter was transferred to the Sixth District Court of Appeal for consideration of a different issue, the opinion appellant cites is no longer good law.
V. No Instructional Error Arising from CALCRIM No. 640
In a criminal case involving lesser included offenses, the court has a duty to instruct the jury that it must acquit the defendant of the greater offense if it has a reasonable doubt as to that charge. (People v. Dewberry (1959) 51 Cal.2d 548, 555-557; see generally People v. Breverman (1998) 19 Cal.4th 142 [discussing the sua sponte duty to instruct on lesser included offenses].) The trial court in this case did instruct the jury on the lesser included offense of voluntary manslaughter (based on imperfect self-defense) and also provided the jury with a separate verdict form for this lesser offense. (See Stone v. Superior Court (1982) 31 Cal.3d 503, 519 [suggesting the use of separate verdict forms for lesser uncharged offenses].) In addition, the court instructed the jury in appellant’s second trial with CALCRIM No. 640, which describes procedures for the jury to follow in completing verdict forms. In relevant part, the instruction states: “The People have the burden of proving that the defendant committed second degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of second degree murder.” Appellant now complains the jury may have misunderstood CALCRIM 640 because this language failed to specifically inform them that the People are required to prove guilt beyond a reasonable doubt.
As revised for use in this case, CALCRIM No. 640 states: “You have been given several verdict forms for (the) count of murder and manslaughter. [¶] In connection with Count 1, I have given you separate verdict forms. These are: Guilty/Not Guilty of second degree murder and second degree murder and (voluntary manslaughter)]. [¶] You may consider these different kinds of homicide in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use. As with all the charges in this case, to return a verdict of guilty or not guilty on a count, you must all agree on that decision. [¶] If you all agree the People have not proved the defendant committed an unlawful killing, then you must complete each verdict form stating that (he) is not guilty. [¶] If you all agree that the People have proved that the unlawful killing was second degree murder, complete the verdict form stating that the defendant is guilty of second degree murder. Do not complete the other verdict forms for this count. [¶] The People have the burden of proving that the defendant committed second degree murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of second degree murder. [¶] If you all agree that the defendant is not guilty of second degree murder, but you all agree the People have proved that (he) is guilty of voluntary manslaughter, then you must do two things. First, complete the verdict forms stating that (he) is not guilty of second degree murder. Second, complete the verdict form stating that (he) is guilty of voluntary manslaughter. Do not complete the verdict form stating that the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. [¶] If you all agree that the defendant is not guilty of second degree murder, and you all agree that he is not guilty of voluntary manslaughter, then you must do two things. First, complete the verdict form stating that he is not guilty of second degree murder. Second, complete the verdict form stating that he is not guilty of voluntary manslaughter. [¶] If you all agree that the defendant is not guilty of second degree murder, but you cannot all agree on whether or not the People have proved the defendant committed voluntary manslaughter, then you must do two things. First, complete the verdict form stating that the defendant is not guilty of second degree murder. Second, the foreperson should send a note reporting that you cannot all agree that voluntary manslaughter has been proved.”
“ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558, 570; People v. Carrasco (2006) 137 Cal.App.4th 1050, 1060-1061.) Appellant did not object to CALCRIM No. 640; indeed, when the trial court announced its intention to give this instruction, appellant expressly submitted to it. The parties do not dispute that CALCRIM No. 640 is an accurate statement of law in general; therefore, if appellant believed clarifying language was required, he was obliged to request it. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142.) Because he failed to do so, the objection is waived on appeal. (People v. Carrasco, supra, 137 Cal.App.4th at p. 1061.)
Moreover, assuming the claim is not waived, it fails on the merits. Several other instructions advised the jury that the People had the burden to prove their case beyond a reasonable doubt. The reasonable doubt instruction (CALCRIM No. 220) itself explained the People’s burden of proving each element of a crime and special allegation beyond a reasonable doubt, and the court’s reading of this instruction specifically declared: “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise.” Instructions defining justifiable homicide (CALCRIM No. 505), voluntary manslaughter (CALCRIM No. 571) and malice (CALCRIM No. 580) all repeated that the People have the burden to prove each element of murder or manslaughter beyond a reasonable doubt. “ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citation.] ‘ “The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” ’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Viewed as a whole, the instructions clearly informed the jury that it could not find appellant guilty of second degree murder unless the People had proven beyond a reasonable doubt that he committed this offense instead of a lesser offense. Thus, the trial court did not err in giving CALCRIM No. 640.
VI. No Cumulative Error Requires Reversal
Finally, appellant contends the cumulative effect of errors resulted in a miscarriage of justice such that his conviction must be reversed for denial of due process. (See People v. Hill (1998) 17 Cal.4th 800, 844-845.) However, because we have either rejected his claims of error on the merits or found any assumed errors to be nonprejudicial, no cumulative effect of prejudice exists that would require reversal. (People v. Sapp (2003) 31 Cal.4th 240, 316.)
DISPOSITION
The judgments are affirmed in their entirety.
We concur: Pollak, J. Siggins, J.