Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC450512
McAdams, J.
A jury convicted defendant of second degree murder and found true allegations that he had personally used a firearm and intentionally discharged it, causing death. (Pen. Code §§ 187, 12022.5, subd. (a), 12022.53, subd. (d).) The court sentenced defendant to prison for 40 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant contends: (1) the court erroneously admitted irrelevant and highly prejudicial evidence of sex and drugs; (2) the prosecutor committed misconduct; (3) the court erroneously denied his motions for mistrial and a new trial based on that misconduct; (4) the court erroneously failed to instruct the jury on the lesser included offense of involuntary manslaughter; (5) the court erroneously instructed the jury that it could consider evidence of defendant’s other crimes on the issue of intent; (6) the court erroneously instructed the jury with CALJIC No. 2.11.5; (7) the court erroneously instructed the jury with CALJIC No. 2.21.2; (8) the impeachment of a key prosecution witness with his prior inconsistent statements violated Crawford v. Washington (2004) 541 U.S. 36; (9) the cumulative effect of the claimed errors requires reversal; (10) the court erroneously denied defendant’s request for a continuance to retain new counsel for sentencing; and (11) the court erroneously stayed rather than struck the sentence imposed for the section 12022.5 enhancement. We affirm.
STATEMENT OF FACTS
The Crime Scene
On April 7, 2004, Mrs. Elizabeth James became concerned when she had not heard from her 24-year-old daughter, Mary James, for over a week. She went to Mary’s apartment and found her daughter’s dead body on the bed in the bedroom of the apartment. Mary had blood coming out of her eyes, ears and nose and had begun to bloat. Mary had a pen in her right hand, a partially smoked cigarette next to her and some books at the foot of the bed. There was a cigarette butt near her head, ashes on her neck, and a burn mark on the mattress near the cigarette butt. Her fingers were curled as if she had been holding the cigarette in her hand at the time of her death. A postmortem thermal wound to her chin could have been caused by a burn from a cigarette in her mouth when she was shot.
Mary was killed by a “contact gunshot wound” to the top of her head; the bullet entered the top of Mary’s skull, went through her brain, and lodged in soft tissue behind her spinal cord. The bullet’s vertical trajectory, as well as the objects in Mary’s hands, were inconsistent with suicide. Nor had the pathologist ever seen a self-inflicted wound to the top of the head. The bullet that was recovered from Mary’s corpse likely came from a .38 Special.
Because of the way Mary’s body was positioned, with her head resting in the corner of the room against which the bed was placed, it was very difficult to see her and there were no obvious signs of death or trauma. However, when the body was moved, a blood stain became visible on the wall behind Mary’s head, with strands of hair adhering to it. This indicated there was a large gush of blood in motion that hit the wall followed by the hair from the head striking the wall. The physical evidence demonstrated that when she was killed she was sitting on the bed, most likely in a forward-leaning position, exposing the top of her head in the direction of the doorway to the room.
Mary had been diagnosed as bipolar approximately one and a half years earlier. She had been a student at Santa Clara University when she began having severe mood swings between very manic times and very down times. She had been prescribed Depakote but stopped taking her medication because it knocked her out to the point where she could not function or take care of her daughter, who began living with Mrs. James. By January 2004, it became clear to family members that Mary was self-medicating with methamphetamines. Although Mrs. James paid the rent on Mary’s apartment, Mary was being evicted. In the last month of her life, a lot of people came into Mary’s life and apartment who were previously unknown to Mrs. James.
The Milieu
Verlin “Ching Ching” Lampkin, Maylene Osio, Vincent “Spud” Bell and Rotta Gonzalez were some of those people. Lampkin met Mary in late March or early April 2004. He went to Mary’s apartment to smoke crystal methamphetamine and “chill” with Bell and others. Her apartment was a place where people went to smoke dope. At the time, Lampkin was selling methamphetamine “for and with Spud” as well as using about half an ounce of the substance a week. Bell kept his drugs and a .45 caliber gun in a zippered black bag the size of a shaving kit which he usually kept right next to him. He also had a .38 caliber gun, which was black with a brown handle with a diamond pattern inset and a 9 millimeter gun. Lampkin saw Bell pull the .45 on a person named Javon Evans at Mary’s house the Thursday or Friday before Mary was killed.
Maylene Osio was a methamphetamine addict and Lampkin’s girlfriend. Lampkin beat her, but she stayed with him for drugs. Maylene met Mary through a person named André. She started going over to Mary’s apartment with him and ended up living there. Mary’s apartment was a “kickback . . . spot” so drug users did not have to “be out there in the street.” “Everybody would go there and smoke.” There were people coming and going all the time.
Bell was also introduced to Mary by André a couple of weeks before she died. The day after he met her, he went to her apartment to meet Lampkin. Thereafter, he went to Mary’s apartment several times to meet with Lampkin, drop off drugs and pick up money. According to Bell, Mary was using methamphetamines before she met him, but he did not supply her with drugs. A day or two after he met Mary, she gave him the keys to her apartment.
Bell referred to Verlin “Ching Ching” Lampkin throughout his testimony and pre-trial statement as “Ching-Ching”; Maylene Osio generally referred to him as “Verlin,” and both Lampkin and Maylene referred to Vincent Bell as “Spud.” For ease of reference, we will refer to these witnesses as Lampkin, Bell and Maylene, and we will refer to witness Rotta Gonzalez as Rotta.
Rotta Gonzalez was also methamphetamine user and a friend of Bell. Bell sold her drugs, and she gave him rides in exchange for gas money. It was Rotta’s understanding that Mary was behind in her rent, and Bell agreed to give Mary the money to pay rent on the condition that he could sell drugs out of the apartment and Maylene could stay there. Mary was also romantically interested in Bell. She would try to stop him from leaving the apartment by hiding his stuff.
Events Leading Up to Mary’s Death
The day and night before the murder, Maylene, Lampkin, Rotta, Bell and defendant were in and out of Mary’s apartment, taking drugs. At about 2:30 or 3:00 a.m., Rotta gave Bell a ride to deliver drugs, but he fell asleep in the car and they returned to Mary’s apartment. When they returned, Lampkin and Maylene were in the living room and defendant and Mary were in the bedroom talking. Rotta went into the bedroom to use the bathroom, and Bell lay down on the bed on his stomach to watch television. Mary was a few feet away from him. It was a little television and Rotta did not have her glasses on so she asked what they were watching. She recalled: “And I went and I looked, I noticed it was a porno, oh, man, you guys suck. And so I just turned around and then they were kind of laughing, they thought it was funny. And then I left.” Defendant walked her out of the apartment and physically closed the door behind her. When she left, it was sunrise.
Maylene was at Mary’s apartment doing her hair, “smoking cigarettes, smoking dope, and just sitting there, just hanging out.” During the evening, Lampkin pulled a black gun out of his pocket and was showing it off. He walked in and out of the bedroom. People came and went, but at the end of the “party-thing,” only Maylene, Lampkin, Bell and defendant were left. At 3:00 or 4:00 a.m., Lampkin fell asleep on the couch in the living room and Maylene decided to do laundry. Defendant, Bell and Mary were in the bedroom with the door closed.
Defendant was the first person to come out of the bedroom. Maylene and defendant were both high, and they talked about how irritating Mary could be when she would “lose it” and “be crazy” and say weird things. A couple of hours later, Mary woke up. Mary “just started talking and talking about weird stuff.” Maylene went into the bedroom and saw Bell sitting in a chair trying to wake up; his dope, a pipe and a black gun were on a table near him. Mary and defendant were also in the bedroom. Mary would not stop talking, and at one point defendant yelled at her to “Calm the fuck down” and told her to get in the bathroom with him. Mary went into the bathroom with defendant and they shut the door. Maylene went back into the living room to iron a skirt. The door to the bedroom was shut. While Maylene was ironing, she heard a gunshot. Lampkin was still asleep. Bell came running out of the bedroom yelling, “We got to get out of here.” He told Lampkin to “wake the fuck up.” Twenty seconds later, defendant came out. Defendant looked panicked and nervous. He looked at Maylene and said: “I didn’t mean to do it.” Maylene walked into the bedroom, saw “Mary lying down on the bed … blood coming out of her head” and walked back out. Maylene grabbed her purse and clothes and stood at the door with Lampkin, waiting to leave, while defendant and Bell ran around. Defendant said, “Clean off the fingerprints,” while he wiped the top of the entertainment center. They all left in Bell’s car.
According to Lampkin, on the weekend before Mary was killed, he was at her apartment with Maylene and Bell. Maylene was his girlfriend at the time, and he sometimes gave her drugs. They played dice, Bell left, he and Maylene had sex in the living room, Bell returned, and then Lampkin fell asleep on the couch. When Lampkin fell asleep the gun was in his pocket. The next thing he remembers was Maylene and Bell waking him up, saying “we have to get out of here quick.” The gun was no longer in his pocket; he did not know what had happened to it. When he went into Mary’s bedroom to grab his DVD player and phone charger, he saw Mary lying on the bed. At first he thought she was sleeping, but then he saw blood on the wall and realized “something wasn’t right.” Defendant was in the bedroom sitting on a stool about three feet away from Mary’s bed with his head down talking to himself. Lampkin heard defendant say: “Damn, I don’t know why I gave it to her.” Lampkin was so scared he grabbed his stuff and went straight out to the car to wait with Maylene. About five or six minutes later, defendant and Bell came out and the four of them left in Bell’s car.
Lampkin admitted that he told Detective Knopf that he was still awake when defendant arrived at Mary’s apartment, and that Bell took the .38 revolver from him and handed it to defendant. However, Lampkin testified that he lied to the detective because he was afraid of being implicated in the murder if the police learned that he had the gun in his pocket the night before Mary was shot.
Bell had introduced defendant to Lampkin as Bell’s brother several days earlier.
Lampkin was in custody awaiting sentencing at the time of trial. He had been charged with 12 burglaries that had been packaged into a plea bargain consisting of his guilty pleas to eight burglaries and a maximum sentence of five years. He was hoping that his testimony at defendant’s trial would translate into leniency when he was sentenced.
According to Bell, on the Friday before Mary was killed, he dropped off drugs to Lampkin at Mary’s apartment, accompanied by defendant, who drove him there. They stayed about 15 minutes and left. Bell returned to Mary’s apartment at about 7:00 p.m. on Saturday. Mary, Lampkin, Maylene and Dré were there. He got money from Lampkin and left with Rotta, who came to pick him up. Rotta brought him back to Mary’s apartment later that night and Bell slept there that night. On Sunday, Bell left to make his rounds selling drugs.
Bell testified that defendant is his wife’s niece’s husband. They were such close friends they referred to each other as brothers, even up to the time of trial. Bell pleaded guilty to being an accessory after the fact to the murder of Mary James for driving away from the scene of the crime. He was prosecuted by the same deputy district attorney who was questioning him, and he received the maximum sentence for the crime. He was currently serving that sentence, as well as a sentence for transportation, distribution and trafficking in methamphetamines.
Bell returned sometime Sunday night. Mary, Maylene and Lampkin were there. They were getting high, and Bell joined them. Defendant was not there. According to Bell, Rotta could not have seen him, Mary and defendant sitting on Mary’s bed watching a movie, because she was not there. He eventually fell asleep on the floor in Mary’s room. He could not recall if he had sex with Mary that night, although he admitted having sex with her one time that weekend.
Bell denied that Mary had sex with him in exchange for methamphetamine. Although he agreed that Mary was pretty heavily addicted to methamphetamine at that time, he denied knowing whether Mary had sex with men to get drugs. He “might have” told police that “any guy who had drugs who went over there got action.” But he did not recall what he said to the police.
Bell testified that he did not recall telling police “I mean I wasn’t hooked up with her. I mean, that right there, to come to find out was anybody went there you had action at. … [s]o that was not something that I wanted to be a part of.”
Bell awoke at 1:00 p.m. Mary was in the bathroom. He asked her to come out so that he could use it. She exited and he entered the bathroom. While he was in the bathroom, “[S]he got into an argument with whoever.” A few minutes later, Bell heard a gunshot. He came out and saw Mary on the bed. She was not moving. Nobody was in the room with her. Bell did not see a gun, although he admitted that Lampkin carried a .38 and he carried a Glock 9 millimeter.
Bell denied that he killed Mary. He said he went into the front room and told Maylene and Lampkin they had to get out. They all left in his car. Bell said he was on parole, and he had to get out of there because he was on drugs and drugs were being sold out of the apartment.
Bell alternately denied or did not recall telling Detective Knopf that (1) he gave defendant the .38 the night before; (2) defendant shot Mary; (3) defendant was at the park with him, Lampkin and Maylene where he and defendant told the other two that if either one of them talked to the police about the murder, they were both dead; (4) defendant told Bell that he was playing a game of Russian roulette with Mary when she shot herself or he shot her; (5) defendant told Bell ‘I can’t believe that I killed her”; (6) defendant killed Mary because she had stolen defendant’s drugs. Bell also said he did not remember anything he said because he was “high” when he gave a statement to Detective Knopf.
An audiotape of Bell’s statement to Detective Knopf was played for the jury. In it, Bell said that after getting high and playing dice all night, he fell asleep on Mary’s bed at 1:00 or 2:00 a.m. When he awoke at 9:00 a.m., Mary, Maylene, Lampkin and defendant were in the front room. Bell immediately went to the bathroom. He could hear that Maylene, Mary and defendant were in Mary’s room laughing. Lampkin was still asleep. Bell heard defendant say “Give me my shit,” and Mary respond “Cut it out.” “[T]hen they be saying something. I couldn’t tell what they were saying.” He couldn’t hear what they were saying because Mary was talking gibberish. A short while later he heard a “pop” or a “bang.” He came out of the bathroom to see what had happened; he didn’t even have his underwear up. He saw Mary on her back on the bed. She had a pair of scissors in her hand. Nobody was in the room. He saw blood and he panicked. Everyone was in the front room, panicked. Bell was hysterical and defendant told him to calm down. Defendant said, “This never happened.” He also said, in front of everybody, “I can’t believe that I killed her.” Defendant never said what happened. Lampkin was waking up and everyone was preparing to leave the apartment. Bell retrieved his backpack from Mary’s room and they all left in his car. In the backpack were Bell’s drugs (crystal methamphetamine), his clothes, bullets for his .38 gun, and his 9 millimeter gun.
Bell told Detective Knopf that defendant said he shot Mary over “[d]rugs, man, drugs.” Bell also said Mary stole some of defendant’s crack cocaine, “[a]nd then something happened where they played a little game, a Russian roulette game, and that’s what was told to me.” According to Bell, defendant’s “exact words” were: “ ‘I spinned the one in the chamber and I told her “ ‘We’ll just play a little game then.’ ” Then she spinned it, all right. And then he – he had it pointed at her or whatever like this and he said, ‘Okay, Now, you do it,’ and I guess he said he gave it to her and he said she put it up here. Saying ‘she wouldn’t.’ Something about ‘she wouldn’t do it’ or ‘she didn’t think I’d do it’ or some shit like that to that effect and the next thing you know a hole.”
According to Bell, defendant did not sell crack cocaine, “[h]e just got high” on it.
The .38 gun used by defendant belonged to Bell. Bell gave defendant the gun the night before “because of the situation that was going on in there, in the front [room] … because there’s a lot [of] people walking around and I had a lot of dope.” Bell did not know what defendant did with the gun after the murder.
Events After Mary’s Death
Lampkin, Maylene, Bell and defendant drove to Chris Findley’s house. In the car, Lampkin overheard defendant say “I shouldn’t had did that.” Bell told defendant to be quiet. At Findley’s house, Maylene, Lampkin, and defendant smoked dope for a couple of hours with Findley’s girlfriend. Defendant smoked crack cocaine in the kitchen. He had a revolver with a diamond-shaped pattern on the grip. At some point, defendant got a ride to Morgan Hill from Rodney Hobson at Bell’s request. According to Maylene and Bell, the two of them and Lampkin left Findley’s house and went to a motel. Maylene testified that at one point, defendant came to the motel to shower; he had a black gun.
Chris Findley was an associate of Bell. Bell sold him methamphetamine. Findley also sold drugs as well as used them.
According to Lampkin, however, defendant returned to Findley’s house with his truck. Bell then drove Lampkin and Maylene to a park, while defendant followed them there in his truck. At the park, the four discussed what the story was going to be in the event they were questioned about Mary’s death. Bell told Lampkin to say that he and Maylene left at 10 p.m. the night before the shooting. At this point, defendant said that he and Mary had been playing Russian roulette and Mary shot herself on the first shot. Defendant told them that Mary had been “talking shit” and “pissed him off.” “He said … he put a bullet in the gun, spun the chamber, handed it to her, and she shot herself.” Defendant said if the police investigated, they were to say “[t]hat they was playing Russian roulette.”
At another point, Lampkin, defendant and Bell walked about 10 or 12 feet away from Maylene. Defendant said he did not trust Maylene and wanted to get rid of her. Lampkin told defendant, “Don’t even trip, I can take care of it.” Defendant said, “All right, but if she talks then that’s both you guys’ ass.” Lampkin took that to mean that defendant would “probably shoot us or something.” Defendant told Lampkin that he was responsible for “handling her.” Lampkin told defendant not to worry about it because he could “keep her in check … she ain’t going to talk to nobody.”
Lampkin testified that he understood this to mean that he was supposed to “[j]ust keep an eye on her… [a]nd make sure she doesn’t talk to the police.” He denied that he was supposed to beat her up if she got out of line, and also denied that he had hit her in the past to keep her in line. He admitted that she did what he said because he was giving her drugs.
After the discussion in the park, Lampkin got in the truck with defendant, and Maylene got in the car with Bell, and they drove to a motel. Defendant had the 9 millimeter gun on his lap. Lampkin did not see him bring it into the motel. Later, when Lampkin went to Bell’s car to get methamphetamine out of the trunk, he saw the .45 caliber gun in the black shaving kit in which Bell kept his drugs.
Bell testified that the discussion in the park occurred seven or eight days after the murder, and that defendant was not there. Bell told Lampkin to say whatever he wanted, but to leave him and Maylene out of it. Bell felt sorry for Maylene because Lampkin used to “[b]rutalize her.” In his statement to police, Bell said that a couple of weeks after the murder, the four of them met at a park. They discussed what to say to the police. If they were questioned by the police, they were to say that they had left the apartment at 9:00 a.m. the day before Mary was shot. Also, “[t]he point was made that, if anything was said, … that it was unpredictable about what would happen.”
Maylene testified that the meeting in the park occurred after she had moved from the motel into the home of people who were friends of Lampkin. They agreed that if the police ever started questioning people, they would say they were not at Mary’s apartment the night before she was killed. Afterwards, Lampkin told her that she was considered by the others to be the most likely to say something to the police, and that they were planning on getting her, but Lampkin convinced them that she would not break down.
After the meeting in the park, defendant visited Maylene one day. He asked her to promise she would not “break down” and say anything if she were questioned by the police. Maylene was scared and she was determined to stick to the story when questioned by police. However, when Lampkin came into the interview room and told her it was okay to say everything she knew, she did tell the police everything.
Defendant was employed as a welder. On April 5 and 6, he called in sick and did not go to work. A relative of defendant called defendant’s employer to say that defendant had not been at work because his brother had been seriously injured in a car accident and defendant had been staying at the hospital with him. Defendant told his employer that his brother’s name was Vincent Price. The next day, defendant went to work but he was acting strangely. He started crying and said he was living in a motel. Defendant said: “[I]t looks like I’m going to have to go away for a long time.” He was so upset his employer told him to go home and get some rest.
Other Forensic Evidence
Two live rounds of .38-caliber ammunition were found in the bedroom. The parties stipulated that at the time of her death, Mary had alcohol, methamphetamine, amphetamine, nicotine and cotinine, but no cocaine metabolites, opiates or phencyclidine, in her bloodstream. They also stipulated that Bell was the source of the semen on the vaginal swab collected from Mary. Defendant was the source of DNA found on an orange Marlboro brand cigarette butt collected from a table in the dining room of the apartment, and of a finger print found on the mirror in the bathroom. Mary was the source of DNA on the bloodstained portion of the Newport brand cigarette butt collected from the apartment. A small baggie and a pipe, associated with smoking drugs, as well as short straws associated with snorting drugs, were found in the apartment. The absence of fingerprints was unusual.
The weapon was never recovered.
DISCUSSION
I. Admission of Prejudicial Evidence of Sex and Drugs
Defendant complains that the trial court erroneously admitted gratuitous evidence that Mary had traded sex for drugs with people other than defendant, that defendant had watched pornography with her, and that he had flirted with her by slapping her on the “butt.” He argues that this evidence was irrelevant (Evid. Code § 210); was more prejudicial than probative (Evid. Code § 352); and constituted inadmissible character evidence (Evid. Code § 1101). As such, it “impermissibly reduced the People’s burden of proof and created substantial risk that [defendant] was convicted on the basis of other inflammatory and irrelevant conduct, rather than the evidence of the charged offenses, in violation of state and federal principles of due process.” In addition, he argues that the trial court should have ordered a foundational hearing on the existence of preliminary facts. For the following reasons, we disagree.
a. Factual Background
Prior to trial, the parties argued about the admissibility of Bell’s statement that defendant was a seller of crack cocaine and had convictions for possession for sale or transportation of that drug. The prosecutor also sought admissibility of Rotta’s testimony that (1) Mary was a methamphetamine user who could not pay her debts; (2) Mary had sex with defendant as payment for narcotics; and (3) Mary let defendant use her apartment as a place to sell narcotics as payment for narcotics. In addition, the prosecutor sought to prove that Lampkin “was part of this sort of sales organization” that was selling drugs and was holding drugs and holding weapons for the defendant. The prosecutor’s theory was that defendant and Bell “acted together” to sell drugs, based on anticipated testimony that Bell and defendant referred to each other as brothers and were very close. “[I]n particular … there’s going to be testimony in this case that the two were together all the time, that they would go on these, I believe from Rotta Gonzalez’ testimony, that the two would go on drug sales together.” The prosecutor also offered testimony that “when asked specifically why did this murder happen, [Bell] makes the statement because of drugs, and specifically because Mary James owed the defendant for drugs. … [¶] And I think that’s important because of the fact that … Mr. Bell’s statement to the police is that immediately before the shot is fired, that there is a statement heard by the defendant saying, ‘Give me my shit.’ And that Mr. Bell knew that to mean, give me my drugs, and/or, give me my money for drugs.”
Defense counsel responded that Rotta had no personal knowledge that defendant was drug dealing, or that there was any personal relationship between defendant and Mary. Bell told the police defendant was not selling drugs, he just got high; and, as to the statement “Give me my shit,” even if defendant said it, Bell had no personal knowledge as to what defendant may have been referring. Finally, he had no discovery showing any factual basis for the prosecutor’s assertions. Defense counsel admitted defendant had a 1995 conviction.
The court ruled that, based on the offer of proof, all of the proffered evidence was relevant and probative. However, the court was concerned about the potential for prejudice, and particularly wanted to avoid tarring defendant with guilt by association with Bell: “[I]f Ms. Gonzalez heard Mr. Bell say, I’m taking over this place and I’m going to sell drugs here, well, that’s pretty relevant as to what was going on here. However, if she’s going to get up there and testify, I’ve heard them say, implicating Mr. Bynum, when Mr. Bynum never said that, there’s a problem with that because that’s prejudicial evidence. And I think that’s a valid concern that the defense has. [¶] Now, your theory is that Mr. Bynum and Mr. Bell kind of acted in tandem as partners in crime and whatnot. … [T]hat’s okay, I don’t have a problem with that evidence. But I think we’ve got to be real specific when the testimony comes out as to whether we’re talking about them as a group or as partners, or are they talking about Mr. Bell doing something and Mr. Bynum not.” The prosecutor responded that he understood that the questioning needed to be precise, and he believed the admissibility of the evidence could be handled by objections on a question by question basis. Defense counsel maintained that Rotta should not be allowed to testify at all, but acknowledged that “there’s going to be no question that the jury will be well aware that this girl’s apartment, Mary James, was a place where people went to use copious amounts of methamphetamine and other drugs. But, again, Rotta … does not have personal knowledge of … where [defendant] fit in all of that.”
The court ruled the evidence admissible, finding that the evidence was relevant to intent and motive, probative on those issues, and that the probative value outweighed the prejudicial effect. However, the court cautioned that “we’re going to have to be very careful of crafting the questions, allow complete cross-examination.”
On the specific question of Rotta’s testimony that Mary watched a pornographic movie with defendant and Bell, the court asked the prosecutor for an offer of proof as to its probative value. The prosecutor stated: “[T]he fact that Mary James was having sex with the defendant for …drugs, is certainly going to be relevant issues to the motive in this case. [¶] … [¶] [A]s I’ve indicated in my moving papers Rotta Gonzalez is going to indicate that she saw, she actually saw the defendant having sex with Mary James and that her impression was that it was for drugs. And this is just one piece of evidence that corroborates her testimony in that regard.” Defense counsel objected that he did not see the relevance of the porno movie reference, and he did not think it added anything to the prosecution’s theory. The court ruled that it did have probative value and the prejudicial effect did not outweigh it. However, the court instructed the prosecutor not to mention the porno movie in his opening statement, and to confirm with the witness before Rotta testified to it. “If she confirms what she said in the statement then I have no problem … with that.” The court also cautioned the prosecutor to think about how to present evidence that the defendant had sex with Mary: “Because, again, I don’t want the suggestion in front of the jury unless it’s something that is … admissible” and the court indicated that if defense counsel objected to speculation or lack of foundation, the court might sustain an objection.
b. Analysis
We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 832-833.) Most of the evidence to which defendant objects (in his supplemental opening brief) was never admitted at trial. For example, there was no testimony from any person that defendant was a drug dealer, or that defendant had ever had sex with Mary. In fact, the only evidence on those topics was to the contrary: in his statement to police, Bell said that defendant used crack cocaine, but did not sell it; and though he flirted with Mary by slapping her “butt” (making her giggle), to his knowledge, Mary never had sex with defendant. Moreover, Bell admitted that he did have sex with her, and that they were locked in a “mutual lust” relationship. Bell also denied that Mary had sex with him, or anyone else, for drugs. He suggested she was merely promiscuous.
As defense counsel anticipated, there was ample evidence that Mary and her newfound friends were methamphetamine users, that Bell was a methamphetamine dealer, and that Mary’s apartment was the place where Bell and the others went to use and/or sell drugs. Furthermore, there was ample evidence that Mary’s killing was tied to her involvement with drug use and drug users, and that drugs provided the motive for the killing. Defendant was in her apartment because he was a friend of Bell; Bell carried guns to protect himself and his stash of drugs; he gave defendant the gun with which Mary was shot; immediately before the shot was fired, Bell heard defendant say “Give me my shit.” Finally, when asked by the police about the motive for the killing, Bell responded “drugs, man, drugs.” As the Attorney General also points out, testimony about everyone’s drug use was also relevant to the witnesses’ abilities to accurately perceive and recollect events; evidence of defendant’s drug use was also relevant to his mental state. Under these circumstances, the court did not abuse its discretion in allowing extensive evidence of drug use by Mary, defendant and the others.
The jury was instructed on the effect of voluntary intoxication on mental state.
The court did not err by failing to conduct a foundational hearing pursuant to Evidence Code section 402. The prosecutor was entitled to prove that defendant was a drug dealer who traded drugs for sex with Mary if he could do so with admissible evidence. The prosecutor identified the sources of his information. The court was well aware of the potential prejudice to defendant if the prosecutor’s assertions were shown by way of insinuations and impressions. To that end, the court cautioned the prosecutor to confirm the anticipated testimony with his witnesses before calling them to testify, and to be precise in his questions. In our view, the court did not abuse its discretion in determining that the prosecutor’s offers of proof were foundationally sufficient. “The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.” (People v. Lucas (1995) 12 Cal.4th 415, 466 (Lucas).) As it developed, the prosecutor’s evidence did not pan out and was never presented. Defendant was not prejudiced by the trial court’s failure to hold a foundational hearing to test the existence of facts which were never presented to the jury.
As for the fact that defendant watched pornography at dawn with Mary and Bell, “[t]he very irrelevance of the evidence … without proof or even evidence of the preliminary fact” – that defendant traded drugs for sex – militates against finding this comment prejudicial. “This was not inherently prejudicial evidence, the admission of which may require reversal.” (Lucas, supra, 12 Cal.4th at p. 468.)
Likewise, we discern no abuse of discretion under Evidence Code section 352, based upon the prosecution’s anticipated evidence and theory at trial. In light of the actual evidence adduced at trial, of course, Rotta’s testimony proved to be of marginal relevance, at best, since there was no evidence that defendant and Mary ever had sex. By the same token, its prejudicial potential was minimal. In the absence of evidence that Mary had sex with defendant, the evidence that she watched something pornographic on a small television at dawn with Bell and defendant had no “sinister overtones” and provided no traction for any inference that defendant “was in the predatory process of demanding sex when the shooting occurred.” Rotta’s testimony mentioned the television show’s content in passing, even as it established that Mary was alive at sunrise. Furthermore, her testimony tended to show that Bell, Mary and defendant viewed the television show’s content as funny rather than erotic, and that defendant did not even stay to watch it; instead, he got up and walked Rotta to the door. As presented, the evidence was not unduly inflammatory, especially when considered in light of the properly admitted evidence of rampant drug use among Mary and the witnesses. Thus, even assuming arguendo it was error to admit evidence that defendant, Bell and Mary watched pornography on television, there is no probability that the error prejudiced defendant under the California Constitution. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) And, in our view, the admission of this evidence did not rise to the level of federal constitutional error. (Estelle v. McGuire (1991) 502 U.S. 62, 70 (McGuire); McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.)
In his reply brief, defendant expands his attack to include “evidence about Ms. James trading sex for drugs (with others), [defendant] flirting with Ms. James (slapping her on her butt), and pathology indicating she had sex soon before death; on top of all this was evidence of violence and misogyny on the part of Lampkin toward the other woman present, Ms. Osio.”
Putting aside the fact that defendant never objected below to this evidence, and did not advert to it in his opening brief, this court has found no evidence that Mary traded sex for drugs. Bell denied it. There was evidence that Maylene traded sex for drugs. Lampkin admitted he used drugs to control her. Lampkin denied that he beat her, although both Maylene and Bell said he did. This was not gratuitous evidence of sex and violence. It was relevant to explain what defendant meant when he told Lampkin in the park to “handle” Maylene so that she did not tell the police what she knew. Defendant’s statement to Lampkin, in turn, was relevant to consciousness of guilt.
As for the evidence that Mary had sex soon before her death, defense counsel stipulated that the semen found in Mary came from Bell. This evidence not only cleared defendant of having sex with Mary that weekend, it also squarely pointed to Bell as her sexual partner and, along with other evidence that he sold methamphetamine and she used it, not cocaine (defendant’s drug of choice), and that she often took his stuff and hid it from him so that he would not leave her apartment, provided support for defendant’s claim that Bell killed Mary.
As for Bell’s statement to police that defendant was not above flirting with Mary by slapping her on the “butt” and making her giggle, the statement was made in passing and in the broader context of Bell’s denial that defendant had a sexual relationship with Mary. The reference was not unduly inflammatory and could not have prejudiced defendant. The defense did not ask to have the reference deleted from the transcript and the audiotape, as it did with a passing reference to defendant’s criminal record, and the court did not err by failing to edit it out on its own motion. Assuming arguendo it was error not to excise the reference to butt-slapping, it is not reasonably probable that defendant would have obtained a better result in the absence of the error. (Watson, supra, 56 Cal.2d at p. 836.) Nor did the reference rise to the level of a federal constitutional violation. (McGuire, supra, 502 U.S. at p. 70.)
Finally, defendant argues that even if the court’s pretrial evidentiary rulings were correct at the time they were made, reversal is required because, without the foundational basis for the admitted evidence, “gross unfairness” resulted from the admission of “this visceral evidence, even in the truncated form in which it was admitted.” For the reasons we have discussed above, we reject this contention. We reiterate that, in our view, none of the evidence actually admitted was unduly inflammatory.
II. Prosecutorial Misconduct
Defendant argues that the prosecutor committed misconduct when he argued that Bell could have said anything in his testimony because he had already pleaded guilty to being an accessory to murder and been sentenced for that offense. Citing People v. Riley (1993) 20 Cal.App.4th 1808, he argues in his opening brief that the comment was wrong and misleading because double jeopardy did not bar Bell’s later conviction for murder. He argues that defense counsel was excused from objecting to the prosecutor’s comment and requesting a curative admonition to the effect that Bell remained vulnerable to prosecution for murder, because such an admonition was not likely to be forthcoming, given the court’s prior ruling that Bell could not refuse to testify by asserting his Fifth Amendment privilege against self-incrimination and did not require the appointment of counsel. He argues that the point is preserved for appeal by his motion for mistrial and motion for new trial, both of which were denied. Finally, he argues that defendant was prejudiced by the comment because “[t]he jury was left with the impression that the prosecution of Mr. Bell for the shooting was barred, and that therefore he was free to admit the shooting. That he did not do so to assist [defendant] was used by the prosecution to bolster the credibility of his initial statement to the police, implicating [defendant].”
In his supplemental opening brief, defendant argues that the prosecutor’s comment was deceptive and misstated the law to the jury, violating state law and denying him a fair trial in derogation of his federal constitutional rights. He claims it also constituted misconduct because “it amounted to vouching for the credibility of a witness based on presumed expertise outside the evidence in court.” He agrees that double jeopardy principles would not bar Bell’s later conviction for murder, but claims the prosecutor’s comment was misleading because Kellett v. Superior Court (1966) 63 Cal.2d 822 and section 654 do not “provide a clearcut bar to a murder charge after Bell’s conviction as an accessory” because section 654’s multiple prosecution bar is “far more fluid” than double jeopardy and has several exceptions. He argues the comment was prejudicial under either the federal constitution’s Chapman (Chapman v. California (1967) 386 U.S. 18, 24) standard or the state constitution’s Watson standard, because the error eviscerated the defense contention that Bell was responsible for Mary’s death and Lampkin and Maylene were covering for him. He argues that “[s]urely the jurors would infer Bell, the only other person in the room, would have taken the fall for his close friend if he could admit the shooting without any further exposure.”
Finally, recognizing that defense counsel’s delayed motion for mistrial may have been too little too late, defendant argues that counsel’s failure to timely object, or to request an admonition, was excused because the error was incurable; the misconduct is reviewable as the basis for the mistrial motion; and if counsel was wrong that the error was incurable, defense counsel rendered ineffective assistance of counsel. We reject all of defendant’s arguments.
a. Factual Background
The challenged comments, which are italicized below, occurred in the context of the following argument by the prosecutor: “You saw that when Mr. Bell finally came into court that he did everything in his power to protect the defendant. [¶] And there’s an instruction I want to read to you about prior statements that a person may have made, it’s important. You may have already got this, but: [¶] Evidence that at some other time, a witness made a statement or statements that is or are inconsistent or consistent with his or her testimony in the trial may be considered by you, here’s the key part, not only for the purpose of testing the credibility of the witness but also as evidence of the truth of the facts as stated by that witness on that former occasion. [¶] Okay, so this is an obvious point, it’s one that needs to really be emphasized here. The fact that Vincent Bell came in and told you, I was at Mary James apartment. I passed out. When I woke up, I heard a gunshot, she’s dead. Jim Bynum wasn’t there. [¶] The fact that he said that, now, the fact that on this prior occasion, he gave this three-hour statement saying, no, the defendant shot her, and he confessed to me. [¶] Not only can you use that prior statement to consider that he is lying now, but you’re also allowed to look at that prior statement and say, I believe that what he said on that prior occasion was the truth. You can use that as evidence in your deliberations as to what really happened. And that may seem obvious to you; sometimes people think, we didn’t know we could consider that. But you can. You are allowed to look at what he told Detective Knopf and say, is that what really happened? [¶] You say that the defendant, Vincent Bell, is in a position where he can say anything now. He can say anything in the world now. He’s pled guilty. He’s been sentenced. He’s serving his sentence. If he wanted to come in here and say, I killed her, he could do it. If he wanted to come in here and say, yeah, Mr. [Prosecutor], you screwed up, you got the guy. Oh, by the way, I already pled guilty, you can’t prosecute me again. He could have said that. [¶] He could have also said that Verlin Lampkin killed her. He could have said Maylene Osio killed her. He could have said anything. In fact, you noticed, when I did my opening statement, I didn’t mention what he was going to say. Now we know what he said. He told the police that night, why did this … killing happen? What was it that took place to kill Mary James? The statement was, drugs, man, drugs. … Probably [the] most truthful thing that Vincent Bell has ever said in his life. All right, drugs, man, drugs.” (Italics added.)
The prosecutor’s argument continued (for three more transcript pages) and then a 10-minute break was taken. The prosecutor resumed argument (for another six pages of transcript). Then the noon recess was taken. After the noon recess, defense counsel registered an objection to the prosecutor’s argument.
Asked by the court if he was requesting an admonition or making a motion for mistrial, defense counsel responded: “I don’t think that an admonition would be sufficient. And again, let me leave it at that.” The court took the objection under submission so it could review its notes about the pretrial motion and Bell’s testimony. The prosecutor added that, under “the whole Kellet line of cases,” there was no dispute that he could no longer prosecute Bell for murder because Bell had already pleaded guilty to “the same operative facts.”
As anticipated, defense counsel argued that Bell had the motive, the gun, and the criminal disposition to kill Mary and was in fact the true killer. He reminded the jury that a reliable confidential informant had told police that Bell was the killer and that Bell told his wife, in a phone call from the police station, that he was going to be charged with murder. Defense counsel discounted the suicide theory, and Bell’s trial testimony. Addressing the prosecutor’s comments, defense counsel argued that Bell was not called by the defense as a witness to protect defendant. “Mr. [Prosecutor] suggests that he was free to say anything he wanted. He had pled as an accessory. But if he was free to say anything he wanted to, why didn’t he just say, oh, I killed Mary James? He didn’t say that. He just said, I’m trying to tell you that Mr. Bynum wasn’t there. Consider it carefully, please. Who is benefiting from those? I mean, on the surface, superficially, it may seem like he comes in to do that for Mr. Bynum’s sake. But obviously, that’s madness, because there’s a prior inconsistent statement that’s going to come into evidence that totally, you know, contradicts his testimony that Mr. Bynum wasn’t there. So that’s not what’s going on. For whose benefit? Who benefited? He did. Bell did. [¶] Why do I say that now? Because he’s in prison. And that review, that environment, he wants to be able to insulate himself and say, I never testified against nobody. I’m not a rat. I’m no informer. I went down there and I didn’t testify. I didn’t squeal on anybody. To protect himself. To cover himself. Not for Mr. Bynum’s benefit, for his own benefit. [¶] And, in fact, the fact of the matter is, sadly, that because he claimed not to be able to remember any of his interview with Detective Knopf back in April, we couldn’t cross-examine him on it. We couldn’t cross-examine him on it. And when you can’t cross-examine a witness, you have very little help, hope of getting to the truth, getting to the bottom of things. So that was another benefit to him; it insulated him from cross-examination on that statement.”
After the jury retired to deliberate, the court held a hearing on defense counsel’s objection, which it interpreted as a mistrial motion. The court noted that the objection was made belatedly, and not when the prosecutor made the comment. The court observed that it had “suggested perhaps some carefully worded admonition to the jury, once we fleshed out whether the objection was valid or not. And you indicated, and I think probably tactically correctly, … that you didn’t feel that an admonition would be appropriate if, for anything, calling attention to the comments back to the jury and then giving them an admonition may exacerbate whatever the problem there was. So you weren’t asking for an admonition to the jury; you were asking for the mistrial, because you felt the damage had been done.” Defense counsel responded: “That’s correct, your Honor.”
The court ruled that the prosecutor was not trying to mislead the jury, and that its reading of the Kellet cases indicated that Bell’s guilty plea to being an accessory to murder would preclude the prosecution from charging him now with murder, even if he had said he killed the victim in this case. Further, the court found that the prosecutor had only asked the jury to draw a reasonable inference from the evidence, “that [Bell] plead guilty, that he was serving the maximum for what he pled guilty to, and now he could come in and he could say just about anything without fear of some other … later reprisal.” The court noted that as an added safeguard it had instructed the jury with CALJIC 1.02. Finally, the court ruled that it did not find the prosecutor’s comment sufficiently prejudicial or misleading, based on the evidence before the jury, to justify a mistrial. Asked to comment, the prosecutor added that it was “sort of laying a trap to not object during closing argument, think about it over lunch, and then come back and say, now, I want a mistrial. And it’s the most serious remedy that you have in a trial, is to say, the entire trial is thrown out by something I said, where I think, at best, if I was in error, it was easily remedied if there was a problem on my part, on what I said, by telling the jury, disregard what he said and form your own conclusion about what his exposure was, or don’t consider it at all.”
CALJIC 1.02 states, in part: “Statements made by the attorneys during the trial are not evidence.”
b. Applicable Legal Principles
1. Prosecutorial Misconduct
“The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutor’s ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. When the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Smithey (1999) 20 Cal.4th 936, 960, internal quotation marks and citations omitted.) “In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970; accord, People v. Lopez (2008) 42 Cal.4th 960.)
2. Forfeiture
A defendant may not complain on appeal that the prosecutor has committed misconduct during argument unless the defendant made a timely and specific objection and requested that the jury be admonished “to disregard the perceived impropriety.” (People v. Lopez, supra, 42 Cal.4th at p. 966.) A defendant will be excused from the necessity of objection and/or request for admonition if either would be futile or would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820-821 (Hill); People v. Boyette (2002) 29 Cal.4th 381, 432.)
3. Motion for Mistrial
The standards for review of the denial of a motion for mistrial are also well established. We review the denial of a motion for mistrial for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 953; People v. Ayala (2000) 23 Cal.4th 225, 282.) “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 565.) Prosecutorial misconduct may provide a basis for a finding of incurable prejudice. (Ibid.)
With these principles in mind, we address the parties’ contentions.
c. Analysis
As a preliminary matter, the Attorney General argues that defendant’s failure to make a contemporaneous objection forfeits his claim of prosecutorial misconduct on appeal. In People v. Carter (2005) 36 Cal.4th 1114, 1204, our Supreme Court deemed seven of eight claims forfeited on appeal because “defense counsel did not object when the comments were made.” However, that case does not indicate when, in relation to the comments, the objections were lodged. The general rule is that the objection must be “timely.” In our view, the objection here was sufficiently close in time to the challenged comments that, if the court had given an admonition, it would have been effective. As we read the record, the court was willing to consider a carefully worded admonition, even though, in its view, the Kellet line of cases precluded the prosecution from charging Bell with murder at this late date. The prosecutor suggested that, if defense counsel had objected in a timelier fashion, the court could have told the jury to disregard the prosecutor’s comment and form its own conclusion about what Bell’s exposure was (presumably based on his testimony), or it could have told the jury not to consider the question of exposure at all. We think either admonition would have taken the sting out of the prosecutor’s argument, whether or not it was misconduct.
However, we need not decide if defendant forfeited his claim, because we are not convinced the prosecutor’s comment constituted misconduct. We also need not decide whether section 654 interposed an absolute bar to Bell’s future prosecution for murder, although we agree that, as a general matter, Kellet stands for the proposition that when the prosecution is or should be aware of multiple offenses arising out of the same course of conduct, “ ‘[f]ailure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.’ ” (Sanders v. Superior Court (1999) 76 Cal.App.4th 609, 614.) However, the Kellet rule plays little part in our determination that no error occurred here.
As noted above, our task is to determine whether there is a reasonable likelihood that the jury construed or applied the complained-of comment in an objectionable fashion, and we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. The trial court viewed the comments as no more than an invitation to the jury to draw the inference, from the evidence before it, “that [Bell] pled guilty, that he was serving the maximum for what he pled guilty to, and now he could come in and he could say just about anything without fear of some other … later reprisal.” In fact, the evidence before the jury included not only Bell’s testimony about his plea and sentence, but also his pretrial statement, in which he was told by Detective Knopf that the District Attorney might decide to charge him with murder, and he repeated that threat to his wife in a recorded phone call to her (“I’m being charged with the murder, yeah”).
Furthermore, the jury was instructed that it “must decide all questions of fact in this case from the evidence received in the trial and not from any other source.” The prosecutor did not mention Kellet or section 654, or double jeopardy or any other “law,” and the jury received no instruction on section 654, or the Kellet line of cases on multiple prosecution. In our view, there is no reasonable likelihood on these facts that the jury interpreted the prosecutor’s comments in an objectionable fashion.
Nor do we agree that the prosecutor’s comments “amounted to powerful vouching for a key witness, because it comprised blanket assertions of law based on presumed expertise outside the trial evidence that the jurors had no way to second guess.” As noted above, the challenged remarks mentioned no legal precepts; they referenced nothing more than Bell’s testimony. We therefore conclude that defendant’s motion for mistrial was properly denied. The trial court concluded that defendant did not suffer incurable prejudice from the prosecutor’s comments, and we find no basis for finding that the court abused its discretion. For the same reasons, the trial court did not abuse its discretion in denying defendant’s motion for a new trial based on the same argument. (People v. Williams (1997) 16 Cal.4th 153, 210 (Williams).) Perforce, defendant’s federal constitutional rights were not violated either.
III. Involuntary Manslaughter Instructions
The jury convicted defendant of second degree murder. Defendant contends that the trial court erred by failing to instruct the jury sua sponte regarding the lesser included offense of involuntary manslaughter. We disagree.
Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531)’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) “The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
“That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense.” (Breverman, supra, 19 Cal.4th at pp. 154-155.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could … conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.” (Breverman, supra, 19 Cal.4th at p. 162.)
“ ‘Involuntary manslaughter is ... inherently an unintentional killing.’ ” (People v. Hendricks (1988) 44 Cal.3d 635, 643.) Defendant argues: “Contact wound to the crown of the head or not, this sort of senseless, sparsely described single-shot killing, with vague indications of an argument, is exactly the type of killing calling for instruction on involuntary manslaughter.” Perhaps relying on expert evidence that gunshot residue (GSR) was found on Mary’s left hand, and that it could have gotten there as the result of her attempt to push the gun away when it discharged, defendant posits that “[a] volatile victim ducking down could easily deflect a shot fired for emphasis at ear level; this could occur quite quickly and in and unpredictable manner, resulting in a strange wound to the head.” (Italics added.)
There was no evidence that the shooting occurred in the manner described by defendant. On the other hand, there was evidence that Mary was shot at point blank range by a person placing a gun on the top of her head and discharging a bullet into her brain. Even if the GSR evidence was sufficient to support an inference that Mary raised her hand to push away the gun pointed at the top of her head, it did nothing to dispel the strong evidence that the gun was intentionally discharged. We agree with the Attorney General that “[t]he location of the entrance wound, and the vertical trajectory of the bullet, demonstrate that the killing was intentional.” The trial court has no duty to instruct on involuntary manslaughter when there is no substantial evidence that the killing was unintentional, and there is substantial evidence that the killing was intentional. (People v. Hendricks, supra, 44 Cal.3d at p. 643; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556 [“If a killing is intentional, no involuntary manslaughter instructions may be given.”].) In addition, the jury found that defendant intentionally discharged the gun. Even accepting defendant’s argument that the jury’s finding did not resolve exactly how the killing occurred or whether defendant harbored implied malice, the finding did establish that the jury believed he intentionally discharged the single bullet that killed Mary. Therefore, the failure to instruct on involuntary manslaughter could not have prejudiced defendant. (People v. Lewis (2001) 25 Cal.4th 610, 646.)
IV. Instruction on Consideration of Other Crimes
Defendant complains that the trial court instructed the jury as follows: “Evidence has been introduced for the purpose of showing that the defendant committed a crime or crimes other than that for which he is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. [¶] It may be considered by you only for the limited purpose of determining if it tends to show the existence of the intent which is a necessary element of the crime charged, or, a motive for the commission of the crime charged.” Defendant surmises that the “other crimes” to which the instruction referred included “drug use and possession, and implications of sex for drugs.” We agree that the instruction must have been referring to evidence that defendant possessed and used drugs, but we reject the suggestion that it referred to “implications of sex for drugs” for the reason that no such implications existed, as discussed at length earlier in this opinion. Defendant concedes that the instruction on motive was probably appropriate, but argues that extending the instruction to intent was error.
Pursuant to a written defense motion, evidence of defendant’s criminal record of convictions and prison sentence(s) was excluded, and an allusion to that in Bell’s audio taped statement was blacked out of the transcript of the tape.
The court was not required to give this limiting instruction. However, “[e]ven if the court has no sua sponte duty to instruct on a particular legal point, when it does choose to instruct, it must do so correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
The intent at issue here included the intent to kill, implied malice (i.e., conscious disregard of the risk to human life), and the intentional discharge of a gun. In our view, all the evidence that was presented about the rampant drug use and sales by Mary and others at Mary’s apartment, and the evidence that Mary grabbed something from defendant just before he shot her (“Give me that”), as well as evidence that defendant illegally possessed and used drugs on the morning he killed Mary, was relevant not only to his motive for killing her but also to his intent when he pulled the trigger.
Assuming arguendo that the court erred in referring to intent in its instruction, no prejudice appears. The instruction was permissive, not mandatory, and it was largely protective, cautioning the jury against using the other crimes evidence to prove bad character or criminal disposition. Furthermore, the jury was instructed that “whether some instructions apply will depend upon what you find the facts to be” and was cautioned to “[d]isregard any instruction which applies to facts determined by you not to exist” and to refrain from concluding “that because an instruction has been given that I am expressing an opinion as to the facts.” We presume the jury heeded the court’s instructions. Finally, in light of the evidence presented that everyone else used drugs, the evidence that defendant also used drugs was not particularly noteworthy or inflammatory. We conclude that if there was error, it was not prejudicial to defendant. (Watson, supra, 46 Cal.2d 818.)
V. CALJIC 2.11.5
Defendant argues that the trial court committed prejudicial error by instructing the jury regarding unjoined perpetrators with the 2004 version of CALJIC No. 2.11.5. The instruction provided: “There has been evidence in this case indicating that a person other than the defendant was or may have been involved in the crime for which the defendant is on trial. [¶] There may be many reasons why that person is not here on trial; therefore, do not speculate or guess as to why the other person is not being prosecuted in this trial or whether he has been or will be prosecuted. Your duty is to decide whether the People have proved the guilt of the defendant on trial.”
Defendant contends it was reversible error to give CALJIC No. 2.11.5 in this case because Bell, Lampkin and Maylene could have faced a potential murder prosecution as accomplices, and accomplice instructions were given as to Lampkin and Bell. He argues that the 2004 version of CALJIC No. 2.11.5 “chills jurors’ consideration of significant accomplice witness bias going to credibility.” In People v. Hernandez (2003) 30 Cal.4th 835 (Hernandez), our Supreme Court held that CALJIC 2.11.5 was improperly given, and that “trial courts should not give CALJIC No. 2.11.5 in an unmodified form when, as here, a person who might have been prosecuted for the crime has testified at trial.” (Id. at p. 875.) In that case, crucially, “standard instructions on accomplice liability” were not given. (Id. at p. 877.)
The Attorney General argues that the 2004 revision of CALJIC No. 2.11.5 avoids the vice of the instruction given in Hernandez because the current version does not tell the jury “do not discuss or give any consideration to why the other person is not being prosecuted.” (Hernandez, supra, 30 Cal.4th at p. 875.) Therefore, it does not discourage the jury from discussing or considering otherwise appropriate instructions on witness credibility. (People v. Fonseca (2003) 105 Cal.App.4th 543, 550 [suggesting that “speculate” or “guess” be used instead of “discuss” and “consider”].) Conceding that it is nonetheless “inadvisable” to give CALJIC 2.11.5 when a person subject to prosecution testifies, he argues that our Supreme Court has repeatedly held that there is no error in giving CALJIC 2.11.5 when standard instructions on accomplice liability and witness credibility are also given. (Hernandez, at p. 877; People v. Brown (2003) 31 Cal.4th 518, 561.) We agree, and we find no prejudicial error here.
CALJIC No. 2.11.5 applies to people who may have been involved in the crime, whether or not they qualify as accomplices. (Williams, supra, 16 Cal.4th at p. 226.) “The purpose of the challenged instruction is to discourage the jury from irrelevant speculation about the prosecution’s reasons for not jointly prosecuting all those shown by the evidence to have participated in the perpetration of the charged offenses, and also to discourage speculation about the eventual fates of unjoined perpetrators.” (People v. Price (1991) 1 Cal.4th 324, 446.) Another purpose for the instruction “is to focus the jury’s attention on an individualized evaluation of the evidence against the person on trial without extraneous concern for the fate of other participants irrespective of their culpability.” (People v. Cox (1991) 53 Cal.3d 618, 668, italics added, fn. omitted.)
“ ‘CALJIC No. 2.11.5 … should not be given when a nonprosecuted participant testifies because the jury is entitled to consider the lack of prosecution in assessing the witness’s credibility.’ ” (Williams, supra, 16 Cal.4th at p. 226.) Arguably, this limitation on instructing with CALJIC No. 2.11.5 did not apply here to witness Bell because he had been prosecuted, albeit for a lesser crime. Of the two witnesses who were named in the accomplice instructions, clearly Bell was the more important witness against defendant. By all accounts, Lampkin slept through the events.
More importantly, our Supreme Court has declined to label a mistake in giving CALJIC No. 2.11.5 as error in cases such as this. (People v. Jones (2003) 30 Cal.4th 1084, 1113-1114.) In Jones, the court explained: “As defendant correctly observes, we have often said that trial courts should not give CALJIC No. 2.11.5 in an unmodified form when, as here, a person who might have been prosecuted for the crime has testified at trial. [Citations.] The impact of this mistaken instruction, however, was ameliorated because the court gave proper instructions that in assessing the credibility of witnesses the jury could consider ‘[t]he existence or nonexistence of a bias, interest, or other motive’ and ‘[t]he witness’[s] prior conviction of a felony.’ (CALJIC No. 2.20.) The jury was again instructed: ‘The fact that a witness has been convicted of a felony … may be considered … only for the purpose of determining the credibility of the witness.’ (CALJIC No. 2.23.) Finally, the jury was told that the testimony of an accomplice should be viewed with mistrust. (CALJIC No. 3.18.) … We have declined to label a mistake in the giving of CALJIC No. 2.11.5 as error when, as here, ‘the instruction is given with the full panoply of witness credibility and accomplice instructions.’ ” (Ibid.)
As in Jones, the trial court here gave proper instructions that in assessing the credibility of a witness the jury could consider the existence or nonexistence of a bias, interest, or other motive and the witness’s prior conviction of a felony. (CALJIC No. 2.20.) The court also instructed that the fact that a witness had been convicted of a felony or a misdemeanor may be considered only for the purpose of determining the credibility of the witness. (CALJIC No. 2.23.) In addition, the court instructed the jury regarding accomplice testimony and told the jury that the testimony of an accomplice should be viewed with caution. (CALJIC No. 3.18.) “ ‘When [CALJIC No. 2.11.5] is given with the full panoply of witness credibility and accomplice instructions, as it was in this case, [jurors] will understand that although the separate prosecution or nonprosecution of coparticipants, and the reasons therefor[e], may not be considered on the issue of the charged defendant’s guilt, a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses.’ ” (People v. Lawley (2002) 27 Cal.4th 102, 162.) Even in cases in which the instruction should be clarified or omitted, it is not error to give the instruction. (Id. at pp. 162-163.) Thus, the trial court did not err in giving CALJIC No. 2.11.5 here.
VI. CALJIC 2.21.2
Defendant argues the court erred in giving CALJIC 2.21.2, which states: “You may reject the whole testimony of a witness who willfully has testified falsely to a material point unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.” (Italics added.) Relying primarily on People v. Rivers (1993) 20 Cal.App.4th 1040, 1046, defendant contends the “probability standard” referenced in CALJIC No. 2.21.2 improperly “permits jurors to apply a probability standard to the dispositive testimony in a case.” This argument has been rejected in People v. Riel (2000) 22 Cal.4th 1153, 1200. (See also, People v. Nakahara (2003) 30 Cal.4th 705, 714.) Defendant acknowledges this, but submits, for the purposes of exhausting state remedies, “that the unnecessary probability reference … constitutes federal constitutional error.” We are bound by the holdings in Riel and Nakahara to reject defendant’s argument in this case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
VII. Crawford Error
In his original opening brief, defendant argues that the admission of Vincent Bell’s pretrial statement to police violated his confrontation rights under Crawford v. Washington, supra, 541 U.S. 36, and California v. Green (1970) 399 U.S. 149, because Bell’s failure of recollection precluded a full and fair opportunity to cross-examine him. In his supplemental opening brief, defendant acknowledges that “footnote 9 of Crawford appears to permit use of testimonial statements where the declarant appears at trial, as Bell did here.” Indeed, that appears to be the entire thrust of Crawford. Bell appeared at trial, and was subject to cross-examination. The admission of his prior inconsistent statement to police did not violate Crawford. Nor was his statement made inadmissible by Green. Notwithstanding defendant’s assertion that “Bell credibly claimed complete lack of recollection of the statement,” the court expressly found that Bell willfully pretended not to remember and admitted the pretrial statement on that basis. In addition, the jury was instructed: “If you disbelieve a witness’ testimony that he or she no longer remembers a certain event, that testimony is inconsistent with the prior statement or statements by him or her describing that event.” Here, on direct examination, Bell was asked to explain statements he made to police; he was subject to cross-examination; and he was excused subject to recall. All the requirements of the Confrontation Clause and Evidence Code sections 1235 and 770 for the admission of a prior inconsistent statement were met. Here, as in People v. Green (1971) 3 Cal.3d 981, “[d]efendant thus had the opportunity to cross-examine him, but in effect declined to do so. Whether or not a witness is actually cross-examined, the fact the defendant has an adequate opportunity to carry out such an inquiry satisfies the confrontation clause.” (Id. at p. 990.) We reject defendant’s claim that his Sixth Amendment confrontation rights were violated by the admission of Bell’s prior inconsistent statement to police as substantive evidence against him.
Footnote 9 states, in relevant part: “Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 [supra]. It is therefore irrelevant that the reliability of some out-of-court statements ‘ “cannot be replicated, even if the declarant testifies to the same matters in court.” ’ [Citation.] The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Crawford v. Washington, supra, 541 U.S. at p. 59, fn. 9)
VIII. Cumulative Error
Defendant finally contends that even if no single trial error was prejudicial, in combination, all of the errors had a prejudicial cumulative effect. In some cases, “a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Hill, supra, 17 Cal.4th at pp. 844-845, and cases there cited.) We have rejected outright most of defendant’s claims of trial error. We have assumed for the purposes of argument that the jury should not have heard that defendant, Bell and Mary watched pornography on television, or that defendant slapped Mary on the butt and made her giggle, but we found that the evidence was not prejudicial. We have also assumed for the purposes of argument that the court should not have included intent in its instruction on the consideration of defendant’s commission of other crimes. We do not see how these arguable, independent errors had a cumulative effect. Their whole did not outweigh the sum of their parts. (People v. Roberts (1992) 2 Cal.4th 271, 326.) Furthermore, we find that in the context of this lengthy and complex trial, “no prejudice is shown, in light of the record as a whole.” (People v. Sanders (1995) 11 Cal.4th 475, 527.)
IX. Denial of Continuance
Defendant argues that the court erred and denied him due process as well as his right to counsel of choice when, on January 6, 2006, the date set for sentencing on November 8, 2005, the date of the verdicts, the court denied him a continuance to secure the services of retained counsel from Sacramento. Out-of-town counsel did not himself appear at the hearing due to scheduling conflicts; instead, he sent local counsel to appear for him. No written motion to continue the sentencing hearing, which had been set for some time, was filed. Out-of-town counsel would not have been ready to proceed in any event. A continuance of the hearing was necessary to allow out-of-town counsel “to raise any potential ineffective assistance of counsel issues that might be appropriate.”
The prosecutor opposed the motion to continue. He had first heard from out-of-town counsel at 4:00 p.m. on the previous day. He had filed an opposition to the new trial motion and was prepared to argue it; he had “a courtroom full of people” who were ready to appear at the sentencing hearing, and for that reason he had specifically called the court the day before to confirm that nothing had been filed to prevent the hearing from going forward. When he spoke with out-of-town counsel at 4:00 p.m., counsel had no knowledge of the case and was not clear if he had been retained to do a new trial motion or an appeal.
The court denied the motion as untimely, stating: “Counsel, with all due respect, I’m going to deny the motion. It is untimely…. The matter has been calendared, there’s been no motion to continue the matter. [¶] The indication is that the attorney that wants to come in as counsel of record is not here and not ready to proceed, so I’m not really in a position to inquire of him … whether he has been retained for the motion or whatever. [¶] So it’s inappropriate, and the court’s going to deny the motion. But I appreciate you being here.” A number of members of the victim’s family attended the hearing, and Mary’s mother made a statement to the court.
We review the court’s denial of a motion to continue made for the purpose of securing retained counsel for abuse of discretion. (People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) Relying on People v. Trapps (1984) 158 Cal.App.3d 265 (Trapps), defendant argues that the court abused its discretion here because the requested continuance was “modest,” sentencing occurred on the very first appearance after the verdicts, the court did not question defendant or his trial attorney about the request and the sentencing hearing did not present any trial related concerns. We disagree.
In our view, Trapps is distinguishable. In that case, the Court of Appeal found error because the sentencing which took place was not lengthy, it had already been delayed three months by a Department of Corrections diagnostic study of defendant, other charges were still pending, and when the defendant asked for a continuance he had just returned from the study and was not unjustifiably dilatory in making his request. (Trapps, supra, 158 Cal.App.3d at pp. 272-273.)
Here, by contrast, the hearing to be postponed included not only sentencing matters but also a motion for a new trial; no additional charges were pending; despite the fact that the hearing date had been set for two months, the motion was brought on the day of the hearing, with no prior filing of a motion to continue and less than 24 hours’ advance notice to the prosecutor, who had already arranged for the victim’s family to appear; the victim’s family did appear; but retained counsel did not appear, and so could not explain to the court why the request for a continuance was so tardy, and whether the contemplated continuance would be modest or lengthy. While it may be, as defendant suggests, that the court could have taken the victim impact statements and then continued the hearing (no one asked the court to do that), defendant has not carried his burden of demonstrating that, under all the circumstances present here, the trial court abused its discretion by denying defendant’s day-of-hearing continuance. (People v. Jeffers, supra, 188 Cal.App.3d at p. 850.) We find no error.
X. Stayed Term for Firearm Use Enhancement
Defendant was sentenced to a term of 15 years to life for second degree murder. The court also imposed a mandatory enhancement of 25 years to life for the intentional discharge of a firearm under section 12022.53. The court then imposed and stayed the four-year midterm enhancement for personal firearm use under section 12022.5. Defendant claims that the trial court erred by imposing and staying, rather than striking, the enhancement under section 12022.5, subdivision (a)(1). We disagree.
The question whether an enhancement under section 12022.5, subdivision (a) should be stayed or stricken, when an enhancement under section 12022.53 is also found by the jury, is currently before the Supreme Court. (People v. Gonzalez, rev. granted Mar. 14, 2007, S149898; People v. Warner, rev. granted Nov. 28, 2007, S157246.) Our view is that the trial court correctly stayed the section 12022.5 enhancement.
Former Section 12022.5, subdivision (a)(1), which was in effect at the time of defendant’s crimes, provided: “Except as provided in subdivisions (b) and (c) [not relevant here], any person who personally uses a firearm in the commission or attempted commission of a felony shall, upon conviction of that felony or attempted felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of the offense of which he or she was convicted.” (Stats. 1999, ch. 129, § 5.) Section 12022.5, subdivision (c), added in 2002, and therefore applicable to defendant’s sentence, provides: “Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. … [¶] … [¶] SEC. 13. The amendments to subdivision (c) of Section 12022.5 …, in Section 3 of this act, to prohibit striking the enhancement, are intended to be declaratory of existing law as contained in People v. Thomas (1992) 4 Cal.4th 206, and People v. Ledesma (1997) 16 Cal.4th 90.” (Stats. 2002, c. 126, § 3.)
Generally, a statute in effect at the time of the defendant’s crimes is applicable to his sentence. (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1144.) The exception for ameliorative amendments is not applicable here. (People v. Vieira (2005) 35 Cal.4th 264, 305.) Section 12022.5 was subsequently amended in 2005.
Here, the trial court properly imposed the longest term of imprisonment under section 12022.53, subdivision (d), and defendant does not contend otherwise. Since section 12022.53, subdivision (f) provides that only one term of imprisonment shall be imposed, the trial court was required to decide, depending on the applicable law, whether to strike or stay the remaining firearm enhancements. Section 12022.53, subdivision (h), provides, as it did at the time of defendant’s crimes (Stats. 2000, ch. 287, § 23): “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”
Defendant invokes the holding of People v. Bracamonte (2003) 106 Cal.App.4th 704 (Bracamonte) that enhancements under section 12022.5 may, and should, be stricken, when enhancements under section 12022.53 are also found by the jury. However, before addressing the section 12022.5 issue, Bracamonte first grappled with the issue of how to harmonize the seemingly inconsistent language of section 12022.53, subdivisions (f) and (h). (Bracamonte, at p. 713.) Subdivision (f) provided that only the longest enhancement under the section could be imposed for a single crime, while subdivision (h) provided that no enhancement under the section could be stricken. Noting that “[t]he better rule is the trial court must either impose an enhancement or strike the underlying finding” (id. at p. 711) and that the broad and general language of section 12022.53, subdivision (f), accordingly, would favor such a result, the court acknowledged that the express language of section 12022.53, subdivision (h) prohibited striking the finding. (Bracamonte, at p. 713.) Thus, the court held that when the jury has found true the allegations under section 12022.53, subdivisions (b), (c), and (d), for the same count, the trial court should impose all three enhancements, but should stay executing the enhancements for section 12022.53, subdivisions (b) and (c). (Bracamonte, at pp. 713-714.) We find this analysis persuasive.
However, in analyzing the enhancement under section 12022.5, Bracamonte concluded that the proper procedure was to strike the finding. (Bracamonte, supra, 106 Cal.App.4th at pp. 712-713.) Under today’s version of section 12022.5, this holding would be inconsistent with its analysis of the section 12022.53 enhancements. Section 12022.5, subdivision (c), consists of language virtually identical to and materially indistinguishable from that of section 12022.53, subdivision (h), and thus also prohibits striking the enhancement finding. In 2000, however, when Bracamonte and his codefendant Medina committed their crimes, section 12022.5 contained no such prohibition. Accordingly, Bracamonte was arguably correct on its own facts. (But see People v. Thomas, supra, 4 Cal.4th 206 [1989 amendment to section 1170.1, deleting section 12022.5 from list of enhancements that may be stricken if mitigating factors exist, also stripped trial court of the power to strike section 12022.5 enhancements under section 1385]; see also Bracamonte, at p. 712, fn. 5 [discussing the legislative history of the current version of section 12022.5, subd. (c)].)
However, section 12022.5, subdivision (c), did exist when this defendant committed his crimes in April of 2004. The reasoning of Bracamonte leads us to conclude that, just as section 12022.53, subdivision (h) prohibits the striking of the enhancement finding, so too the cognate language in section 12022.5, subdivision (c) prohibits the striking of the enhancement finding under that statute. Our view is consistent with a number of cases which provide that, unless a statute provides otherwise, an enhancement must be imposed or stricken and may not be stayed. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.) In this case, the statute applicable to defendant does provide otherwise. Therefore, we conclude that when the jury has found true an enhancement allegation under section 12022.53, and for the same count has also found true an enhancement allegation under section 12022.5, subdivision (a)(1), the trial court should impose both enhancements, but should stay executing the enhancement for section 12022.5, subdivision (a). (Bracamonte, supra, 106 Cal.App.4th at pp. 713-714.) We think this result is true to the reasoning, if not the result, in Bracamonte. We conclude that the trial court correctly stayed the personal firearm use enhancement under section 12022.5, subdivision (a), given the statutory scheme in effect in 2004.
CONCLUSION
The trial court did not commit prejudicial error in admitting evidence that defendant watched pornography on television with the victim and Bell, and slapped the victim on the butt. The prosecutor did not commit misconduct, and defendant’s mistrial and new trial motions were properly denied. The court was not required to instruct on involuntary manslaughter. The court did not err by instructing with CALJIC Nos. 2.11.5 and 2.21.2. There was no Crawford or Green error. There was no cumulative prejudice. The court did not abuse its discretion in denying defendant’s day-of-hearing motion to continue sentencing to retain counsel. The court properly stayed the personal firearm use enhancement under section 12022.5.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.
In his audio taped statement to police, Bell admitted that he had sex with Mary, but he quickly discovered that she would have sex with anyone who came to her apartment, and he was afraid of contracting AIDS. After that, he mostly just got high with her. Nevertheless, he described their relationship as “locked into … mutual lust.” The last time he had sex with Mary was the day before she died. Asked if Mary “would screw for dope,” Bell said he did not know. She did not screw him for dope. Repeatedly asked if Mary had a sexual relationship with defendant, Bell insisted that, to his knowledge, she did not. Defendant never told Bell that he had sex with Mary. Bell added: “[D]on’t get me wrong. He sat there and bullshitted with her, you know. Gave her a slap her on her [sic] ass or whatever. She laughed, giggled. You know but as far as the actual do, no.”