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People v. Walker

December 27, 1988

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARVIN PETE WALKER, JR., DEFENDANT AND APPELLANT



Superior Court of Santa Clara County, No. 73790, John Schatz, Jr., Judge.

Opinion by Eagleson, J., with Lucas, C. J., Panelli, Arguelles and Kaufman, JJ., concurring. Mosk, J., concurred in the judgment. Separate concurring and dissenting opinion by Broussard, J.

Eagleson

Defendant Marvin Pete Walker, Jr., was convicted of first degree murder and other crimes stemming from two separate incidents joined for purposes of trial. In the first incident, during commission of a liquor store robbery, three people were shot, including a 15-year-old boy, Joseph Vasquez, who died as a result. In connection therewith defendant was convicted of the first degree murder of Vasquez (Pen. Code, § 187);*fn1 two counts of assault with intent to commit murder upon Andy Zamora and Jerry Romero (§ 217); and robbery of Romero (§ 211). The jury found that defendant personally used a firearm in the commission of each offense. (§ 12022.5) One special circumstance under the 1978 death penalty law (§ 190.1 et seq.) was found true: that the murder was committed while defendant was engaged in the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(i).)

In the second incident, also during the commission of a robbery, defendant sexually molested, beat and twice shot a young woman, Rose Olveda, in the head. She survived. In connection therewith defendant was convicted of assault with intent to commit murder (§ 217) and robbery (§ 211) with

personal use of a firearm in the commission of each offense (§ 12022.5), and theft of Olveda's vehicle. (Veh. Code, § 10851.)

The jury fixed the penalty at death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We filed an initial opinion in this case on December 31, 1985, affirming the judgment of guilt and reversing penalty. Thereafter, we granted a rehearing when it became clear that the People had not been afforded a full and fair opportunity to address, brief and argue the merits of one of the penalty phase errors upon which reversal was predicated. We subsequently authorized the California Appellate Project to file an amicus curiae brief on defendant's behalf. We shall address the various claims of guilt and penalty phase error raised by defendant as well as amicus curiae. For the reasons set forth hereafter, we affirm the judgment in its entirety.

I. Guilt Phase

A. Facts

1. The Liquor Store Incident.

Near closing time on August 6, 1979, defendant, accompanied by a second man, entered Dan's Bottle Shop in San Jose. Present were co-owner Jerry Romero and two young employees, Joe Vasquez and Andy Zamora, who was mentally retarded. Defendant drew a handgun from his waistband, announced that it was a holdup, warned Romero not to do anything or he would be shot, then marched the three into the back room. He ordered Romero to open the safe. Romero, fearing defendant would become enraged if he found the small amount of petty cash kept in the safe, replied that he did not have the combination. Defendant responded by grabbing a claw hammer and exclaiming, "If you don't open the safe I'm going to hit you with the hammer." The second robber told defendant to "wait a minute" and asked for Romero's wallet. After unsuccessfully searching the wallet for the combination, he told defendant, "He doesn't know it, just forget it." Defendant's companion returned the wallet to Romero.

At that moment the bell on the front door sounded, indicating that a customer had entered the store. Defendant ordered Vasquez to wait on the customer, warning that if he made any "funny moves" he would be shot. Defendant climbed on top of the storage shelves to watch Vasquez, who waited on the customer and returned to the back room.

Defendant and his companion next ordered the group to the front of the store. Defendant opened the cash register and removed approximately $150.

His companion said, "Come on. We got the money. Let's get out." Defendant replied, "No. We're not going to leave any witnesses."

Defendant again marched Romero, Vasquez and Zamora into the back room at gunpoint. As they entered, Romero observed defendant hand the gun to his companion. Romero testified that throughout the ordeal the second robber, who "had a very boyish look to his face," exhibited no violent behavior; "[he] was very passive. Very calm. That's one of the reasons I -- I really thought that we weren't going to be harmed the way we were." At no time did Romero observe the second robber pointing or brandishing the weapon. Defendant then hit Romero across the forehead with a full wine bottle. As Romero fell to the floor, defendant struck him again over the head with a second full bottle of wine. Romero lay on the floor, holding his breath and pretending to be dead. Defendant took Romero's wallet from his back pocket, then felt Romero's back and said, "We don't have to worry about this guy any more."

Defendant walked toward Vasquez and Zamora and ordered them to "Get on your knees." The two youths complied. Romero, still conscious, testified he heard the boys crying and pleading for their lives. Three shots were then fired in rapid succession. Neither Romero nor Zamora directly observed who fired the shots. Joe Vasquez died of a .32 caliber gunshot wound which entered his forehead and exited through the back of his head. Andy Zamora was also shot in the head but survived. Romero was shot in the abdomen; the bullet ricocheted off his hip and traveled through several major organs, lodging in his chest.

As defendant and his companion fled, Romero heard the customer bell go off and the sound of a bottle breaking in the front of the store.*fn2 He got up, saw the two boys lying in pools of blood, went to the rear door which opens into the parking lot, and saw defendant getting into a car in which the second robber was already seated. A resident of an adjacent apartment testified he heard gunshots and then saw two Black men leave the liquor store and get into what appeared to be a rust or tan-colored Chevy Nova with heavy oxidation. The witness identified a picture of defendant's car as being of the same body style, color and condition of the robbers' vehicle.

Both Romero and Zamora positively identified defendant at trial; Romero had previously identified him at a physical lineup. Another witness, William Cisco, testified that at a party in late September 1979, he had heard defendant talking about his involvement in a robbery. Defendant said that

during the robbery "some punk got in the way," and so he "took him out of the game." Defendant had a gun tucked in his waistband at the time he made the statement.

2. The Assault Upon Rose Olveda.

Late in the evening of September 5, 1979, defendant entered a medical building in San Jose and pointed a gun at 20-year-old Rose Olveda, who was working late. Although he was wearing a ski mask, Olveda positively identified defendant as her assailant at a physical lineup and at trial. Defendant ordered Olveda to open the safe. She replied that there was no safe. He then ordered her into the back room where he demanded her money and car keys. She handed him $11 and the keys. He told her to lie down so he could tie her up, but he could find nothing with which to tie her. He ordered her to stand up, ripped open her blouse, and touched her breasts. He then began pistol-whipping her about the head, striking her an estimated 12 times before she was able to momentarily break away and run for the door. Defendant pulled her back and continued beating her, injuring her back and fracturing her neck. Olveda finally fell to the floor, pretending to be unconscious. Defendant then shot her twice in the head -- once through the left ear, the bullet traveling through her head and jaw and lodging in her neck; and once through the left eye, the bullet traveling downward and lodging in her throat. Although she miraculously survived, Olveda lost her left eye and the hearing in her ear as a result of the attack.

3. The Subsequent Investigation.

Within five hours after the assault upon Olveda, the police located her car parked in a carport less than a block from defendant's sister's residence where he sometimes stayed.

During 1979, Officer Evan ("Danny") MacIvor was operating a "sting" operation in an undercover capacity in San Jose. MacIvor fronted as a businessman who purchased stolen property. On September 26, 1979, defendant contacted MacIvor and sold him a .32 caliber semiautomatic pistol, telling MacIvor that the gun belonged to him. After arranging to meet with defendant again on September 28, MacIvor turned the gun over to the police department crime lab. Joe Vasquez had died from a .32 caliber gunshot wound to the head. Through comparison with the spent .32 caliber bullet casings recovered at both the liquor store and the office in which Olveda was attacked, a criminalist was able to positively identify the gun as the weapon used in the murder of Vasquez and the shootings of Romero, Zamora and Olveda.

When MacIvor and defendant met again on September 28, MacIvor told defendant that the gun did not work. Defendant responded that the gun did indeed work and had made a lot of money for him in the last six months. Defendant also told MacIvor to be careful not to get caught with the gun because it "had done a murder." When asked what he meant, defendant replied that the gun originally belonged to a friend who had killed someone with it, and that the friend was now serving time in Soledad prison.

When the two next met on October 2, MacIvor secretly recorded their conversation. Defendant told MacIvor that the weapon had been used eight months previously in a murder in Salinas, and that the person responsible was currently serving time for it.*fn3 MacIvor asked him why he kept the gun for eight or nine months. Defendant replied that the murderer had called him on the phone, told him the gun was in his room, and asked him to get rid of it. Defendant claimed he subsequently picked up the gun, oiled it down, and buried it in his mother's backyard. The gun did not appear to MacIvor to have been oiled or buried in the ground; a criminalist testified he saw no evidence that the gun had recently been buried or oiled down.

4. Defense.

The defense attempted to impeach the eyewitness identifications through cross-examination of the witnesses on the various details of their descriptions of defendant and his companion. Defendant testified on his own behalf, denying any complicity in the murder of Joe Vasquez or the assaults and attempted murders of Jerry Romero, Andy Zamora, and Rose Olveda. He admitted selling the murder weapon to Officer MacIvor, but claimed he had bought it from two men in a blue van. Each statement defendant made on the stand conflicted with his last. His previous statements to MacIvor and the police at later dates were used to impeach his testimony; these statements in turn conflicted not only with his trial testimony but with each other as well. The defense also sought to present an expert witness on the subject of eyewitness identification, but the court ruled the testimony inadmissible.

B. Guilt Phase Issues

1. Severance.

Defendant contends that the trial court erred in denying his motion to sever the counts based on the liquor store incident from the counts stemming from the assault upon Olveda. We disagree.

Section 954 provides in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, . . . or two or more different offenses of the same class of crimes or offenses . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses . . . be tried separately . . . ."

Robbery, murder and assault with intent to commit murder are all offenses of the same class. "[Section] 954 permits joinder of all assaultive crimes against the person, all of them being considered 'of the same class.'" (Coleman v. Superior Court (1981) 116 Cal. App. 3d 129, 135 [172 Cal. Rptr. 86], cert. den., 451 U.S. 988 [68 L.Ed.2d 846, 101 S.Ct. 2325]; see also Williams v. Superior Court (1984) 36 Cal. 3d 441, 447 [204 Cal. Rptr. 700, 683 P.2d 699].) Hence these offenses were properly joined in the first instance.

"Since the statutory requirements for joinder were clearly met in this case, [defendant] can predicate error only on clear showing of prejudice." (Williams v. Superior Court, supra, 36 Cal. 3d at p. 447; People v. Smallwood (1986) 42 Cal. 3d 415, 425 [228 Cal. Rptr. 913, 722 P.2d 197].) As we explained in Williams, the first step in the analysis is to determine whether the evidence in each case would be admissible in the other. Such cross-admissibility would ordinarily dispel any inference of prejudice.

We conclude that, had there been separate trials, evidence relating to the liquor store incident would have been admissible in the trial for the assault and robbery of Olveda, and vice versa. Other-crimes evidence is admissible to prove the defendant's identity as the perpetrator of another alleged offense on the basis of similarity "when the marks common to the charged and uncharged offenses, considered singly or in combination, logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpetrator of the uncharged offenses was the perpetrator of the charged offenses." (People v. Haston (1968) 69 Cal. 2d 233, 246 [70 Cal. Rptr. 419, 444 P.2d 91].)

Here, both incidents were committed in San Jose one month apart; both were armed robberies leading to unprovoked deadly assaults; and in both instances defendant entered business premises shortly after 10 p.m., demanded that a safe be opened, marched his victims to a back room, and began his attack with a vicious beating to the victim's head. Then, using the same gun in each instance, he shot the victim in the head while he or she was lying on the floor. We are not persuaded by defendant's argument that several dissimilarities -- i.e., that the liquor store incident involved two unmasked robbers, while the assault and robbery of Rose Olveda was committed

by a single, masked assailant -- were significant enough to negate the inference of a common design or modus operandi.

In any event, even were we to conclude that evidence of each incident would not have been cross-admissible in the separate trial of charges stemming from the other, it would not follow that the trial court abused its discretion in denying severance. "'[The] judge's discretion in refusing severance is broader than his discretion in admitting evidence of uncharged offenses. . . .' [A] ruling on a motion to sever is based on a weighing of the probative value as against the prejudicial effect, but in the weighing process the beneficial results from joinder are added to the probative-value side. This requires the defendant to make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial." (Coleman v. Superior Court, supra, 116 Cal. App. 3d at pp. 138-139, quoting People v. Matson (1974) 13 Cal. 3d 35, 41 [117 Cal. Rptr. 664, 528 P.2d 752]; accord Williams v. Superior Court, supra, 36 Cal. 3d at p. 451.)

Defendant's showing of prejudice is insufficient to establish an abuse of discretion. Although this was a pre-Williams trial, none of the remaining factors detailed in Williams, supra, 36 Cal. 3d at pages 453-454, militated against joinder. This is not a case such as Coleman v. Superior Court, supra, 116 Cal. App. 3d 129, where there was danger that strong evidence of a lesser but inflammatory crime might be used to bolster a weak prosecution case on a murder charge. Nor does this case resemble Williams, where at least one and possibly two relatively weak charges were joined to support each other, raising the danger that the jury would aggregate the evidence to convict on both charges. (36 Cal. 3d at p. 453.) Here the prosecution presented overwhelming evidence of defendant's guilt as to both incidents. The surviving victims all positively identified him. Defendant's gun had been used in each incident. In the liquor store incident, defendant's car was identified as the getaway vehicle, while shortly after the robbery and assault of Olveda, her stolen car was located abandoned less than a block from defendant's sister's apartment where he sometimes stayed. Defendant's own statements, particularly those made when he sold the gun to undercover Officer MacIvor, incriminated him in each incident. Finally, this was not a case in which joinder itself rendered defendant death-eligible (see Williams, supra, 36 Cal. 3d at p. 454); the Vasquez murder carried its own felony-murder special circumstance.*fn4

2. Jury Selection Issues.

a. Sequestration.

Defendant contends that the voir dire of each prospective juror regarding "death qualification" should have been done individually and in sequestration. In Hovey v. Superior Court (1980) 28 Cal. 3d 1 [168 Cal. Rptr. 128, 616 P.2d 1301], we held that in future capital cases this procedure must be followed in order to minimize the potentially prejudicial effects of open voir dire. The rule of Hovey was prospective only (id., at p. 80) and therefore does not apply to this trial which commenced prior to the filing of that case. (People v. Holt (1984) 37 Cal. 3d 436, 449 [208 Cal. Rptr. 547, 690 P.2d 1207]; People v. Turner (1984) 37 Cal. 3d 302, 316 [208 Cal. Rptr. 196, 690 P.2d 669].)

b. Challenges for Cause.

Two prospective jurors were excused for cause under Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]. Defendant maintains that the court erred in excusing one of these prospective jurors: Ms. Holt.

The United States Supreme Court recently modified the Witherspoon standard in Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], and we adopted that modification in People v. Ghent (1987) 43 Cal. 3d 739, 767-769 [239 Cal. Rptr. 82, 739 P.2d 1250]. The new standard is whether a juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (Wainwright v. Witt, supra, 469 U.S. at p. 424 [83 L.Ed.2d at pp. 851-852].) Prospective juror Holt unequivocally announced her inability to vote for the death penalty, "regardless of what the facts might be in this case[.]" Our review of her voir dire supports the court's determination that she held views regarding the death penalty that would substantially impair the performance of her duties as a juror. She was properly excused.

c. Peremptory Challenges.

Defendant contends that the prosecutor's exercise of peremptory challenges against death penalty skeptics -- i.e., prospective jurors who, although not excusable for cause under Witherspoon v. Illinois, supra, 391 U.S. 510, nevertheless expressed reservations about the death penalty -- violated People v. Wheeler (1978) 22 Cal. 3d 258 [148 Cal. Rptr. 890, 583 P.2d 748]. We have repeatedly rejected this argument; there is "no . . . constitutional infirmity in permitting peremptory challenges by both sides on the

basis of specific juror attitudes on the death penalty." (People v. Turner, supra, 37 Cal. 3d at p. 315.)

On rehearing, amicus curiae assigns as error the trial court's denial of defendant's motion for a mistrial pursuant to People v. Wheeler, supra, 22 Cal. 3d 258. In Wheeler we held that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. (Accord, Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].) We defined group bias as the presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic or similar grounds. (22 Cal. 3d at p. 276.)

Under Wheeler, a party who believes his opponent is improperly exercising peremptory challenges for a discriminatory purpose must raise a timely challenge and make a prima facie case of such discrimination. Once a prima facie case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates other, valid bases for the challenges -- i.e., reasons relevant to the particular case on trial (People v. Wheeler, supra, 22 Cal. 3d at pp. 280-282), or as the United States Supreme Court has put it, "a neutral explanation related to the particular case to be tried." (Batson v. Kentucky, supra, 476 U.S. at p. 98 [90 L.Ed.2d at p. 88].)

It then becomes the duty of the trial court to make "a sincere and reasoned attempt to evaluate the prosecution's explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily. . . ." (People v. Hall (1983) 35 Cal. 3d 161, 167-168 [197 Cal. Rptr. 71, 672 P.2d 854].) We have explained that we will "rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination." (People v. Wheeler, supra, 22 Cal. 3d at p. 282.)

In the present case, the court concluded that defendant had presented a prima facie case. The prosecutor in turn gave a number of reasons for challenging each of the three Black prospective jurors. He recalled that prospective juror Michael George had come to court in metal-studded leather motorcycle garb, and had related that he had been repeatedly stopped and harassed by San Jose police officers while riding his motorcycle because he fit what he called the "average black man syndrome." Once when George was stopped for speeding, the officer held a gun to his head; George felt this was an excessive display of force, filed a complaint with the San Jose police internal affairs division, and seemed unsatisfied with its

resolution. The prosecutor also recalled that George had volunteered, without being asked, "that he was not comfortable at all with the fact that it was a death penalty situation."

Prospective juror Dorothy King had expressed strong scruples against the death penalty. She also displayed a general antiprosecution bias. She related that the San Jose police had "harassed" her husband by stopping him without sufficient cause. She had served on a jury in a prior homicide case which resulted in the defendant's acquittal. She related that she disliked sitting on a jury in a murder case.

As for the third prospective Black juror, Dorothy Brown, the prosecutor recalled that she was barely able to suppress her apparent amusement when asked about her views on the credibility of police officers. She had founded a group to "counterbalance the popular image of Black people in the media," and showed incredulity and disdain when the prosecutor asked follow-up questions about the group's functions. She believed the San Jose Police Department had followed her husband home every night for a protracted period of time. She stated she could not imagine herself siding with the prosecutor's side of the case.

We are satisfied that the trial court fulfilled its obligation to critically evaluate the prosecutor's explanations. The record supports the court's conclusion that the prosecutor properly exercised his peremptory challenges on grounds of individual bias.*fn5

d. Misleading Voir Dire.

Several of the prosecutor's questions during voir dire properly implied that the jurors should not let their judgment at the guilt phase be swayed by undue pity or sympathy for the youthful defendant or his family members who might be present in the courtroom. Some of the questions, however, may have implied that these considerations would also be improper at the penalty phase. Defendant argues the questions were reversible misconduct, but the lack of an objection waived any such claim on appeal. (People v. Green (1980) 27 Cal. 3d 1, 27 [164 Cal. Rptr. 1, 609 P.2d 468].) Moreover, any such error was later cured by instructions that counsel's questions were not themselves evidence or definitive statements of the law,

and by the special penalty phase instruction that "pity and sympathy for the defendant would be proper considerations."

Defendant also assigns as misconduct the prosecutor's questions put to several prospective jurors about whether they knew what life imprisonment without the possibility of parole "really meant." We reject defendant's claim that the questions constituted reversible Ramos error (People v. Ramos (1984) 37 Cal. 3d 136 [207 Cal. Rptr. 800, 689 P.2d 430]); no "Briggs Instruction" concerning the Governor's commutation power was given in this case, nor was the jury otherwise affirmatively informed of such gubernatorial powers. To the extent the questions invited improper speculation, any error was clearly harmless. They arose at the earliest stage of trial, and the jury was thereafter instructed not to assume the truth of any insinuations suggested by the attorneys' questions.

3. Exclusion of Expert Witness Testimony.

Defense counsel called a professor of psychology, Dr. Craig Haney, as an expert witness to give testimony on the factors that may affect the reliability of eyewitness identification. Dr. Haney planned to identify numerous factors in this case which, in his expert opinion, increased the likelihood of the misidentification of the defendant. He had hoped to expound on various experimental studies which have concluded that persons under stress do not perceive details well, that mistaken identifications may result from suggestion or unconscious influences, that victims of a crime in which a gun is used tend to focus on the gun rather than on the perpetrator, and that many people find it difficult to identify persons of another race. The prosecution objected to the introduction of this testimony, and after an in camera hearing the court ruled that it would be excluded. Although the court agreed that the listed factors may have played some part in the eyewitness identification in this case, it nevertheless concluded that the subject matter of the proposed testimony was common knowledge and would tend to usurp the basic function of the jury. Defendant now contends the court abused its discretion in excluding the expert testimony.

The trial court relied on two Court of Appeal decisions which held that the trial judge did not abuse his discretion in excluding expert testimony on eyewitness identification. (People v. Guzman (1975) 47 Cal. App. 3d 380, 385-386 [121 Cal. Rptr. 69]; People v. Johnson (1974) 38 Cal. App. 3d 1, 6-7 [112 Cal. Rptr. 834].) The court, however, did not have the benefit of our later-filed opinion in People v. McDonald (1984) 37 Cal. 3d 351 [208 Cal. Rptr. 236, 690 P.2d 709, 46 A.L.R.4th 1011], wherein we criticized the reasoning of those decisions, and made it clear that in an appropriate case

the exclusion of expert testimony would constitute not only an abuse of discretion, but reversible error. (Id., at p. 376.)

In McDonald we held that "in the usual case the appellate court will continue to defer to the trial court's discretion in this matter." (Id., at p. 377.) We also characterized the unusual case in which the exclusion of such evidence may be an abuse of discretion: it is one in which "an eyewitness identification of the defendant is a key element of the prosecution's case but is not substantially corroborated by evidence giving it independent reliability, and the defendant offers qualified expert testimony on specific psychological factors shown by the record that could have affected the accuracy of the identification but are not likely to be fully known to or understood by the jury." (Ibid.)

The present case is one in which the trial court had discretion to admit or exclude the expert testimony. Although Dr. Haney offered to identify factors that might suggest the witnesses misidentified the defendant, ample circumstantial evidence linked defendant to the crimes and gave the identifications an independent source of reliability. As we noted earlier, defendant admitted possession of the gun that was used in both incidents; his car was identified as the possible getaway vehicle from the liquor store; Olveda's stolen vehicle was found parked less than a block from where defendant's sister lived; and defendant made numerous incriminating statements both to friends and police. Although the trial court, under these circumstances, had discretion to admit Dr. Haney's testimony, we find no abuse of discretion, and clearly no prejudicial error, in its decision to exclude that evidence.

4. Statements to Undercover Officer MacIvor.

Defendant contends that his statements made to Officer MacIvor were erroneously admitted at trial because he was unlawfully "entrapped" into making them. He also claims that his Fifth Amendment rights were violated by Officer MacIvor's "interrogation."

As previously noted, during 1979 Officer MacIvor was operating a "sting" operation in an undercover capacity in San Jose in which he posed as a businessman who purchased stolen property. Three weeks after the Olveda assault and robbery, defendant sold MacIvor the handgun which was subsequently determined to be the weapon used in the murder of Vasquez and the shootings of Romero, Zamora and Olveda. Shortly thereafter MacIvor again twice met with defendant; on the second occasion the undercover officer wore a concealed wire and their conversation was tape-recorded. During these meetings defendant made various inculpatory statements:

e.g., that the gun belonged to him and had been in his possession for the last six months; that he had "made a lot of money with it" during that period; and that it had "done a murder." Although defendant was arrested on suspicion of possession of other, unrelated stolen property on the same day he sold the weapon to Officer MacIvor, he was only briefly detained and released. Defendant was not in custody during the subsequent meetings with MacIvor, and had not yet been arrested or charged with these crimes.

Defendant's "entrapment" claim is plainly without merit. Entrapment is a defense to a charged crime. (People v. Barraza (1979) 23 Cal. 3d 675, 688 [153 Cal. Rptr. 459, 591 P.2d 947].) It is not a crime to make incriminating statements to an officer, nor was defendant charged with having done so.

Defendant's reliance on Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], as authority for suppression of his statements to Officer MacIvor is likewise misplaced. The requirements of Miranda apply only when a suspect is in custody. (Rhode Island v. Innis (1980) 446 U.S. 291, 300 [64 L.Ed.2d 297, 307, 100 S.Ct. 1682].) Defendant was not in custody during his meetings with Officer MacIvor. As in People v. Leach (1975) 15 Cal. 3d 419 [124 Cal. Rptr. 752, 541 P.2d 296], we reject defendant's "rather preposterous contention that the undercover agent should, prior to insinuating himself into the confidences of [defendant], have delivered to [him] the Miranda warnings normally required as a concomitant of arrest." (Id., at p. 442.)

5. Physical Restraints.

On rehearing, defendant for the first time contends it was error to allow the jury to see him restrained in handcuffs and a leg brace. The record, however, is unclear as to what types of restraints were used, when they were used, or whether they were apparent to the jury, since defendant never objected below. For this reason, the claim has been waived on appeal. (People v. Taylor (1982) 31 Cal. 3d 488, 495-496 [183 Cal. Rptr. 64, 645 P.2d 115] [failure to object to being tried in jail clothing]; People v. Duran (1976) 16 Cal. 3d 282, 289 [127 Cal. Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1] [wrist and ankle restraints].)

6. Prosecutorial Misconduct.

Defendant contends that the prosecutor engaged in misconduct requiring reversal of the judgment of guilt. In particular, defendant claims the record reflects the prosecutor made some facial expressions of disbelief when the trial court dismissed a prospective juror for cause, and made an

unsolicited comment about the philosophical leanings of this court during questioning of another prospective juror. Both matters occurred early in the jury selection process and were of a minor, harmless nature. The failure to object waived any claim of misconduct on appeal. (People v. Green, supra, 27 Cal. 3d at p. 27.)

Defense counsel moved for a mistrial on grounds of misconduct when the prosecutor showed the witness who discovered the victims in the liquor store incident a high school yearbook photograph of murder victim Joe Vasquez. The witness reacted briefly with some emotion upon viewing the photograph, and counsel charged that its use was calculated to arouse the jury's sympathy. The record, however, supports the trial court's findings and conclusion that use of the photograph for identification purposes was not misconduct. The prosecutor explained that the photograph, which simply depicted Vasquez in a baseball uniform, was the only one available to him; that its identification by the witness was crucial to demonstrate that the witness could distinguish Vasquez from assault victim Enrique Guerrero (defendant was ultimately acquitted of assault with intent to murder Guerrero); and that he (the prosecutor) had no knowledge or reason to suspect that the witness personally knew Vasquez or would react emotionally upon seeing the photograph. The trial court had discretion to admit the evidence (People v. Thompson (1988) 45 Cal. 3d 86, 114-115 [246 Cal. Rptr. 245, 753 P.2d 37]); nor has misconduct or prejudice been demonstrated.

7. Validity of Felony-murder Rule.

Defendant urges that California should abandon the felony-murder rule. We have repeatedly rejected the argument and upheld the continuing viability of the rule, and do so again. (People v. Dillon (1983) 34 Cal. 3d 441 [194 Cal. Rptr. 390, 668 P.2d 697].)

8. Instructions on Assault With Intent to Commit Murder.

Defendant claims that the jury was erroneously instructed on assault with intent to commit murder because the instructions as a whole may have led the jury to believe it could determine guilt without finding express malice. (See People v. Murtishaw (1981) 29 Cal. 3d 733, 763-765 [175 Cal. Rptr. 738, 631 P.2d 446]; People v. Martinez (1980) 105 Cal. App. 3d 938, 943 [165 Cal. Rptr. 11].)

The contention is meritless. Following instructions on first and second degree murder and on express and implied malice, the jury was instructed that "[the] defendant is also charged . . . with . . . assault with intent to commit ...


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