People v. Clark

         Superior Court Orange County, No. 94CF0821 John J. Ryan Judge

          Peter Giannini, under appointment by the Supreme Court, for Defendant and Appellant.

          Bill Lockyer, Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.

          Cuéllar, J.

         An Orange County jury found defendant William Clinton Clark guilty of the first degree murders of Kathy Lee (count 1) and Ardell Williams (count 7). (Pen. Code, §§ 187, 189.)^[1] The jury found true the five special-circumstance allegations charged, as follows: that defendant committed the murder of Lee while engaged in the commission of a burglary (§ 190.2, subd. (a)(17)(G)) and while in the attempted commission of a robbery (§ 190.2, subd. (a)(17)(A));^[2] that the murder of Williams was the murder of a witness for the purpose of preventing her from testifying in a criminal proceeding (§ 190.2, subd. (a)(10)) and a murder while lying in wait (§ 190.2, subd. (a)(15)); and a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)).^[3] The jury hung on a penalty verdict, but a new jury returned a verdict of death at the penalty phase retrial. The trial court denied defendant’s motions for a new trial (§ 1181) and modification of the penalty (§ 190.4, subd. (e)), and it sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

         We vacate the burglary-murder and robbery-murder special-circumstance findings, but otherwise affirm the judgment.

         Introduction

         The jury convicted defendant and sentenced him to death for two murders. He was the shooter in neither of them. The first murder was that of Kathy Lee, who was shot by Nokkuwa Ervin on the evening of October 18, 1991, during an attempted robbery of a CompUSA store in a Fountain Valley shopping center.^[4] The second murder was that of defendant’s former associate Ardell Williams, who was shot in Gardena during the early morning of March 13, 1994, by either Antoinette Yancey, who was defendant’s girlfriend at the time, or by someone acting at Yancey’s direction.^[5] The prosecution’s theory of defendant’s accomplice liability for Lee’s murder was that defendant organized, and was present at, the CompUSA murder. The prosecution’s theory of defendant’s accomplice liability for Williams’s murder was that defendant conspired with Yancey to have Williams killed because Williams had testified to a grand jury about defendant’s involvement in the CompUSA murder, and she was going to testify against defendant at his trial.

         Defendant denied involvement in either murder. As to the first murder, the defense sought to challenge the credibility of the prosecution witnesses, including Williams. Defendant also presented as an alibi evidence that he was present at a recording studio in Glendale during the time of the CompUSA murder. As to the second murder, the defense acknowledged defendant’s close personal relationship with Yancey, but it contended there was no evidence he conspired with Yancey to have Williams murdered.

         I. Facts

         A. Guilt Phase

         1. The Prosecution’s Case

         a. The CompUSA Murder

         i. Surveillance of the Store

         The prosecution introduced Williams’s Orange County grand jury testimony to establish defendant’s preparations for the attempted robbery at the CompUSA store.^[6]

         At the end of August or in the early part of September 1991, Ardell Williams accompanied defendant while he surveilled a CompUSA computer store in the Fountain Valley Mall near its 10 p.m. closing time.^[7] From the vantage point of a Del Taco restaurant parking lot –– which faced the CompUSA store about 500 feet away –– defendant, his brother, Eric Clark, ^[8] and his cousin, Damian Wilson, scrutinized the closing operations of the computer store and noted the amount of time it took the employees to leave. During Williams’s conversations with defendant that night, defendant implied several times that he was planning some sort of crime involving the CompUSA store. After defendant and his companions finished watching the CompUSA store, they drove to a street near the mall where defendant checked on a U-Haul truck that he had parked there.

         ii. The Night of the Crime

         At approximately 10 p.m. on October 18, 1991, after the CompUSA store had closed for the evening, a man later identified as Ervin approached the three remaining employees in the store with a gun and eventually handcuffed them in the men’s restroom. At about 10:30 p.m., Fountain Valley Police Officer Raymond Rakitis was on car patrol near the CompUSA store when he heard a gunshot. From 15 to 20 yards away, he saw a silver BMW back out of the parking lot and Ervin run from an open loading door in the back of the CompUSA store toward the BMW. When Ervin reached the BMW, he tried to enter the car through the driver’s window and then tried to open the passenger side door. But the BMW did not wait for him, and it drove off, leaving him in the parking lot. Officer Rakitis exited his police car and subdued Ervin. Officer Rakitis then noticed a dead woman lying on her back with blood pooling under her head near the CompUSA loading doors. The police later determined that the woman, Kathy Lee, had come to pick up her son, who was an employee at the store. The autopsy showed that she died as a result of a single gunshot wound to the head, fired while the gun directly touched the skin behind her left ear.

         Police recovered a blue-steel.38-caliber revolver with a two-inch barrel, from the left inside pocket of Ervin’s jacket. The cylinder of the revolver contained one expended.38 caliber cartridge casing and some human tissue. Ballistic testing matched the bullet that killed Lee to the revolver found on Ervin. At trial, two CompUSA employees identified Ervin as the man who held them at gunpoint.

         iii. Matthew Weaver’s Testimony

         Matthew Weaver was present in the CompUSA parking lot that night and placed defendant at the scene of the crime. Weaver testified under a grant of transactional immunity. Weaver knew Eric and Wilson, who were fellow members of the Moorpark College basketball team. They had offered to pay Weaver $100 to help them move computers to a warehouse from a store they said belonged to defendant. On the night of the crime, Eric drove Weaver to the mall parking lot where they waited for the CompUSA store to close. While they were waiting, Wilson introduced Weaver to his brother “Bill, ” who had driven up in a BMW. Weaver identified defendant in court as the man to whom he had been introduced.

         Defendant eventually told Weaver that the group could start moving the computers, and he drove Weaver over to the store in the BMW.^[9] As they approached the store, Weaver saw a woman lying on the ground next to a car. Suddenly Weaver saw an African-American man, later identified as Ervin, run up and unsuccessfully attempt to dive through the driver’s side window of the BMW. Weaver ducked down toward the dashboard and noticed that two police cars with flashing lights were approaching the BMW. Defendant made a U-turn and drove off, leaving Ervin in the parking lot. After driving some distance away from the mall, defendant stopped at the side of the road and told Weaver and the other passenger to get out.

         iv. Investigation of the U-Haul Truck

         On October 22, 1991, four days after the CompUSA murder, police investigators found a U-Haul truck that had been parked near the store for several days. They determined that Jeanette Moore had rented the truck on October 3, 1991, using a fraudulent driver’s license with her picture but with the name “Dena Carey.”^[10] Moore testified under a grant of transactional immunity. She testified that, in June or July of 1991, defendant obtained the fraudulent driver’s license for her.^[11] Defendant and Moore had gone to the DMV where defendant knew the clerk who processed the license. Moore subsequently rented the U-Haul truck at defendant’s request using the license.^[12] Eric drove Moore to the U-Haul lot and drove the truck away after Moore filled out the forms and obtained the key. Defendant rewarded Moore with $100 the next day. A U-Haul clerk testified that, on October 9, 1991, which was six days after Moore rented the truck, an African-American male came to the U-Haul lot in Glendale and extended the contract.^[13]

         Moore moved to Yuma, Arizona in 1992 or 1993 and did not see defendant again. But while living in Arizona in 1993, she received a three-way phone call from Gary Jackson (an ex-boyfriend through whom she had met defendant) and a woman identifying herself as “Nina, ” who claimed to be defendant’s wife.^[14] Nina told Moore to expect some money via Western Union. In the winter of 1993, Moore received $100.

         In June 1994, while Moore was in custody at the Orange County Jail pursuant to a commitment under section 1332 to ensure her availability as a witness at defendant’s preliminary hearing, she received an anonymous letter urging her not to testify. The letter included a photocopy of a newspaper article describing a witness who was released from jail after refusing to testify at a trial.^[15]

         v. Sale of Defendant’s BMW After the CompUSA Murder

         Defendant bought a BMW model 735i on July 31, 1991. On October 24, 1991, six days after the CompUSA murder, he arranged to sell it through the dealer from whom he had bought it. The dealer suggested that defendant would get more money selling it retail rather than on auction wholesale, but defendant told him that he just needed to get rid of it and wanted to sell it wholesale.

         b. The Murder of Williams

         i. Arrest of Defendant and Williams in Las Vegas and Her Cooperation with the Authorities

         In September 1991, sometime after Ardell Williams had accompanied defendant during his surveillance of the CompUSA store, she traveled with him to Las Vegas. On the evening of September 22, the police arrested Williams and defendant for passing stolen traveler’s checks at the Mirage Hotel. Defendant posted bail and was released the next day, but Williams remained in jail. While in custody, Williams helped the local police and the FBI in their investigation of the Mirage Hotel incident and other related bad check cases.

         Williams subsequently testified to the Orange County grand jury that she had a conversation with Eric approximately two weeks after her arrest in Las Vegas, when she had returned to Los Angeles. Eric asked her whether she had been talking to anyone about “this Las Vegas thing” because someone was “pointing the finger” at defendant, saying that he was “the top dog in this case.” Williams denied talking to the authorities. She asked Eric, “[W]hatever happened to the computer store?” Eric answered that “it went down bad.” He recounted that his group of burglars went into the store and handcuffed a cashier and a night manager to a hand rail in the bathroom. But the mother of one of the employees came into the store looking for her son and surprised one of the burglars, who shot her. Eric told Williams not to mention what he said to anyone.^[16]

         Seven to ten days after this conversation, defendant called Williams, telling her that he was going to find her a lawyer in Las Vegas to take care of the bad check charges pending against her. Williams asked defendant about his BMW, and defendant stated that he had sold it “because you never know who could have seen the two of us sitting eating nachos that one night, ” and “he didn’t want anybody to suspect anything.”

         After her conversation with Eric, Williams decided to tell the authorities about the CompUSA murder because her own sister had been the victim of an unsolved murder many years before. On December 31, 1991, she contacted FBI Special Agent Todd Holliday, whom she had met following the bad check incident in Las Vegas. Williams told Holliday about the surveillance of CompUSA and about her later conversations with defendant. Agent Holliday contacted the Fountain Valley police and the Orange County District Attorney’s investigators to tell them that Williams claimed to have information about the CompUSA murder. Williams agreed to talk on the phone with Frank Grasso, an inspector with the Orange County District Attorney’s Office, on April 1, 1992. In two interviews, which were tape-recorded and played to the jury, Williams implicated defendant in the CompUSA murder.

         ii. Tape Recordings of Defendant’s Phone Calls

         In August 1992, Inspector Grasso provided Williams’s sister, Elizabeth Fontenot, with a tape recorder so that Fontenot could record phone calls she received from defendant. The tape of defendant’s conversations with Fontenot was played in court to the jurors. During these conversations, defendant expressed concern that Williams might talk to authorities and try to link him to a murder in Orange County. Defendant told Fontenot that the authorities knew things that only Williams knew. He said he was “shocked” that Williams “rolled over so quickly.” He told Fontenot that if Williams were to testify against him, it would be “serious” and would “wipe [him] out.” He stated that the best answer that Williams could tell the authorities about him was “I don’t know.” He explained, “[Y]ou’re her big sister, she don’t know nothing about me. Whatever she’s told them, that’s it. You follow me?... She can ‘I don’t know’ ’em to death.” “Anything that she might of [sic] already said, she could come to court and get complete amnesia.”

         iii. Defendant’s Admissions to a Fellow Inmate

         While defendant awaited trial for the CompUSA murder, he was incarcerated in the Orange County Jail. There, he met fellow inmate Alonzo Garrett. Unbeknownst to defendant, Garrett was acquainted with Williams because one of Garrett’s friends was married to Williams’s sister. At one point, defendant showed Garrett what appeared to be a trial transcript and referred to Williams.^[17] Garrett stated in a phone call to an acquaintance, which was recorded and played to the jury, that defendant had said, “ ‘Hey, this is the woman right here that could put me away.’ ”^[18] Concerned that Williams was involved in a dangerous situation because she was “snitching, ” Garrett phoned Williams, who admitted that she was the key witness in defendant’s case, but assured him that there was nothing to worry about.

         Before trial, prison authorities seized from defendant’s cell an apparently undelivered letter to Garrett threatening him for talking to the police.^[19]

         iv. How Defendant Received the Grand Jury Transcripts

         The prosecution’s theory was that the transcripts that defendant had shown to Garrett concerning Williams were transcripts of her grand jury testimony. The prosecution had provided these transcripts through discovery to defendant’s attorney, who gave them to defendant. Criminal defense attorney John D. Barnett testified as an expert witness that a competent defense attorney would have given a defendant information about Williams’s interviews with the police and her grand jury testimony - information that would had been produced in discovery by the prosecution. Barnett testified that Williams’s police interviews and grand jury testimony would be, absent certain exceptions, inadmissible at trial if she was unavailable as a witness because she had not been subject to cross-examination at those proceedings.

         v. The Flower Delivery at the Home of Williams

         On February 10, 1994, an African-American woman who said her name was “Carolyn” and claimed to be from a local flower delivery shop, delivered flowers bearing a card signed “Secret Admirer” to Williams at the Gardena home where she lived with her mother, Angelita Williams, and her sister, Nena Williams. Nena thought the delivery girl was suspiciously trying to loiter around the house after making the delivery, including spending a long time in the restroom. In court, Nena identified the woman who had called herself “Carolyn” as Yancey. During defendant’s preliminary hearing, the parties stipulated that Angelita also identified Yancey as “Carolyn.”

         On March 9, 1994, Williams phoned Inspector Grasso and told him about “Carolyn” and the unusual flower delivery. Grasso assembled a series of photos of women associated with defendant, including Yancey, and showed them to Williams, Nena, and Angelita. All three identified Yancey as the person who delivered the flowers. The parties stipulated at trial that one of Yancey’s fingerprints was found on the box in which the flowers were delivered.

         vi. Phone Calls to the Home of Williams and a Purported Job Interview

         After the flower delivery, someone calling herself “Janet Jackson” telephoned Williams. This person had previously spoken by phone several times to Angelita. “Janet Jackson” asked Williams to come for a job interview at a company named Continental Receiving on Sunday, March 13, 1994 at 6:30 a.m.^[20]

         vii. The Morning of the Murder and the Crime Scene

         Williams went to the purported job interview sometime after 6:00 a.m. on the morning of March 13, 1994. At 8:00 a.m., a neighborhood resident discovered Williams’s body near Williams’s car in the driveway of Continental Receiving in Gardena, which was about a two-minute drive from her home. Williams had a gunshot wound behind her left ear. She was clothed with no evidence of sexual assault, and had $114 in cash on her person. A.25-caliber bullet casing and two job application forms were found near her body - one on the trunk of the car, and the other one on the ground. The application form on the ground was partially completed. A photograph of patterns in dust on the trunk of the car suggested that an arm had been resting on the trunk lid near where the partially completed form had been.

         Yancey visited defendant at the Orange County Jail the same morning. Her visit began at 8:45 a.m. and ended at 9:35 a.m. According to Inspector Grasso, it would take 37 minutes to drive from Continental Receiving to the Orange County jail, driving on average at the speed limit of 55 miles per hour.^[21]

         viii. Investigation of Williams’s Murder

         Five days after Williams’s murder, police conducted a voice lineup, where they played tapes of four voices to Angelita and Nena. Both of them identified Yancey’s voice as that of the woman who had called herself “Janet Jackson” in her telephone calls.

         On March 17, 1994, the police searched Yancey’s apartment. They found: (1) a California driver license with Yancey’s picture on it and the name “Keia Thomas”; (2) a resume with Thomas’s name; (3) a Western Union receipt for $100 sent to “Jeanette Alexander” from “Nina Howard” on December 27, 1993;^[22] (4) an income tax return and receipts in defendant’s name; (5) a phone bill receipt in Eric’s name; and (6) numerous love letters from defendant to Yancey where defendant expressed explicit sexual fantasies. The trial court provided edited versions of the letters to the jury.^[23]

         Yancey’s phone records for the period of January through March of 1994 listed numerous calls to the home of Williams; to the office of defendant’s attorney, Jack Earley; to the office of defense investigator, Alan Clow; and to a pay phone in Orange County Jail accessible to defendant.

         2. Defense Case

         a. Williams’s Credibility

         To challenge Williams’s credibility, the defense called Satanand Sharma, a neuropsychologist who had seen Williams on four occasions through court-ordered counseling. In his notes from one of the sessions, Dr. Sharma wrote: “She [Williams] feels that Bill [defendant] was involved in that case [the computer store attempted robbery and murder] because she was pushed [sic - parked] in front of a computer store and had conversations with Bill regarding the bust at the store.” Dr. Sharma’s recollection was that Williams said she was present at the attempted robbery.

         A loss prevention officer at the Disney Store in Torrance where Williams had worked described how she was fired in February 1994. The Disney Store fired Williams after the officer investigated her for employee theft. Williams admitted to the officer that she had put extra merchandise into her friends’ bags when they made purchases.

         b. Alibi Evidence

         As an alibi, defendant presented evidence of his whereabouts during the CompUSA murder on the night of October 18, 1991 through the testimony of Geoffrey Gilstrap, a musician in a band called Full Swing that defendant was managing at the time. Defendant had booked time for the band at a Glendale recording studio and, on the evening of a Friday at the end of October (either Friday, Oct. 18, or Friday, Oct. 25), Gilstrap was at the studio at about 8:30 p.m. for a scheduled recording session. Defendant was there, but no recording took place because the recording engineer did not show up, owing to a pay dispute concerning the previous session. Gilstrap left the studio after about 15 to 20 minutes, which was between 8:30 and 9:00 p.m. The manager of the recording studio also testified and brought the studio’s schedule book, which showed that defendant had reserved time there for October 12, 13, and 18, 1991. She did not remember seeing defendant in the studio on October 18, the night of the CompUSA murder.

         B. Penalty Phase Retrial

         1. Prosecution Evidence

         Defendant’s first penalty trial resulted in a hung jury.^[24] At the penalty phase retrial, the prosecution re-presented the guilt phase evidence from both the CompUSA murder and the murder of Williams. The prosecutor did not present any other evidence in aggravation.

         2. Defense Evidence

         For his case in mitigation at the penalty phase retrial, defendant mounted a lingering doubt defense for both murders. As in the guilt phase, he again attacked the credibility of the main prosecution witnesses and presented alibi evidence for his whereabouts on the night of the CompUSA felony murder. Defendant also presented evidence in mitigation based on his family background, his good character, and his ability to be a positive influence on other inmates. Finally, he presented evidence that he had brain damage and psychological impairments because of head injuries he suffered during childhood and young adulthood.

         a. Credibility of Moore

         The defense presented the testimony of Gary Jackson, Moore’s former boyfriend. Moore, as described above, had linked defendant to the CompUSA murder by testifying that defendant had obtained a fraudulent driver license for her and then asked her to use it to rent the U-Haul truck that the police later found parked near the crime scene.

         Jackson portrayed Moore in a negative light, describing her as a fellow drug user and thief whom he had dated for about six months between 1990 and 1991. In May 1991, Jackson and Moore found a wallet that contained department store credit card receipts in the name of Dena Carey. Moore devised a plan to obtain a driver license with Carey’s name so that she could use the department store receipt numbers to buy merchandise on those accounts. But she needed to have an address for the driver license, and Jackson refused to let her use that of his father. In May 1991, Moore met defendant through Jackson. Moore asked defendant if she could use his address for her welfare checks because she did not have a stable address.

         Jackson further testified that a man called “Ricky, ” not defendant, asked Moore to rent the U-Haul truck that was found parked near the CompUSA robbery scene. Jackson described Ricky as one of his “dope dealers” who was a five foot, 10 inch tall light-complected African-American man with a Jheri curl.^[25] Ricky drove a grey BMW.

         b. Family Background

         Many of defendant’s family - including defendant’s father, mother, aunt, first wife, and two cousins - along with several family friends, testified about defendant’s life. Defendant’s mother and father married at a young age and had a tumultuous 10-year marriage, during which defendant and his brother Jonathan were born. Defendant’s father remarried and had two more children: defendant’s half brothers Eric and Jason.

         Defendant was described as having a high IQ but failing to perform academically the way he should have; he had a C average in high school. With a combination of high Scholastic Aptitude Test scores and his basketball ability he was admitted to UCLA. But he did not complete a degree there, nor did he become a starting player on the basketball team. He eventually went to Fresno, where his father was living, and attended Fresno State University, where he continued playing basketball. He left Fresno, returned to Los Angeles, and moved into an apartment building owned by his mother. He was married for five years, and had two children. During this time, defendant and his brother Jonathan started a business venture to design and license animated characters for the 1984 Olympic games in Los Angeles. Defendant lost approximately $750, 000 of investment money provided by his mother and aunt on this unsuccessful business.

         Many of defendant’s family members described him as lively and positive in attitude as a young man but, as his first wife testified, he became depressed and distant after the business failure. She eventually filed for divorce. In 1985, soon after the divorce, defendant’s young son from his first marriage died. The deaths of defendant’s grandmother and brother-in-law followed in close succession. Defendant’s first wife testified that defendant was deeply affected by all these deaths in the family. By 1987 or 1988, defendant married his second wife, with whom he had a son and daughter.

         Family members described several serious accidents that defendant suffered in his life. When he was six or seven, he was accidentally hit in the head with a champagne bottle by his young cousin at a wedding, and, as a result, suffered convulsions. While playing football at Fresno State, he tripped on a lawn sprinkler and broke his jaw and leg. Just before his first marriage, he was in a car accident and remained in a body cast for six months.

         c. Inmate Testimony

         Three inmates testified about defendant’s positive influence on them while they were incarcerated in the Orange County Jail. Two of these inmates also testified that it was common for inmates to write sexually explicit letters to women outside of jail.^[26]

         d. Asserted Brain Damage

         Through the testimony of Dr. Joseph Wu, the director of the University of California, Irvine Brain Imaging Center, defendant presented evidence that he had brain damage and psychological impairments. Based on a positron emission tomography (PET) scan of defendant’s brain done on June 11, 1996, Wu stated that defendant had abnormalities in his frontal lobes that were consistent with a closed head injury. Wu gave his opinion that the abnormalities shown in the PET scan indicated that defendant had “suffered some kind of serious blow to the head which caused some kind of severe malfunction of his frontal lobes.” What the PET scan showed was consistent with the fact that, when defendant was six years old, he had been struck on the head with a champagne bottle. Wu further stated that people with damage to their frontal lobes, “in many cases, ” exhibit personality changes in which they “seem to lack the ability to be able to fully understand or appreciate the significance of their actions” and have “impaired social judgments.”

         Psychiatrist George Woods testified to his clinical assessment that defendant suffered from a mild case of bipolar affective disorder. Woods explained that people suffering from this mood disorder experience periods of elevated mood, are very easily distracted, and lack good insight into their actions. The diagnosis of this mood disorder was consistent with the frontal lobe damage shown in defendant’s PET scans.

         II. Pretrial Issues

         A. Order Denying Defendant Telephone Access from Jail

         On March 23, 1994, at the initial arraignment of defendant and his then-codefendant Yancey for the murder of Williams, the trial court granted, over defense objection, the prosecutor’s request for an order restricting defendant from making any telephone calls from jail, including any calls to defense counsel. About a year later, defense counsel successfully moved the court to modify the restriction to allow defendant to call his defense counsel or defense investigator at specified hours. Defendant contends the March 23, 1994 restriction prevented him from communicating with his counsel, investigator, and potential witnesses in the case, which violated his federal constitutional rights and his rights under state law. As discussed below, we conclude: (1) the court did not err in granting the prosecutor’s request for the initial March 23, 1994 restriction on defendant’s telephone calls; (2) defendant forfeited his claim concerning the continuing application of the restriction order when defense counsel expressly declined to argue against it in the April 15, 1994 hearing and asked to take his motion challenging the order “off calendar”; and (3) even if his claim is not forfeited, defendant has failed to show that his defense was prejudiced by the phone call restriction.

         1. Background

         Attorney Jack Earley began representing defendant in September 1992 for the charges arising from the CompUSA murder.^[27] Earley was defendant’s attorney when Williams was murdered on March 13, 1994. Four days later, on March 17, the police searched Yancey’s apartment. Among other evidence connecting Yancey and defendant was Yancey’s personal phonebook, which contained the name and phone numbers of Earley and his investigator, Alan Clow. Phone records showed several telephone calls from Yancey’s apartment to Earley’s office in the period before Williams’s murder, as well as several phone calls from Yancey’s apartment to Clow’s office both before and after Williams’s murder. On March 23, 1994, 10 days after Williams was murdered, the prosecutor charged defendant and Yancey with her murder. The prosecutor initially refused to give discovery information to Earley because the prosecutor was fearful for the safety of the other witnesses in the case.^[28]

         On March 23, 1994, at the initial arraignment hearing for defendant and his then-codefendant Yancey, the prosecutor stated that new information had developed, and that Earley and his investigator might be potential witnesses in the case.^[29] The prosecutor asked that Earley come to the prosecutor’s office to discuss the situation. The prosecutor also requested “a blanket order” to deny defendant any telephone access (including to Earley) for at least 48 hours until the prosecutor had a chance to discuss the situation with Earley and devise a course of action. The prosecutor, however, agreed to allow Yancey telephone contact with her attorney if a deputy sheriff dialed the number. The trial court granted the prosecutor’s request for the order over defense counsel’s objection and continued the arraignment to two days later, Friday, March 25, 1994, when the court would review the restrictions on phone calls.

         At the March 25 hearing, Earley raised the issue of the telephone restrictions, which Earley thought would expire at this point. The prosecutor stated his position that the court’s order should remain in effect. The parties agreed to a hearing on the issue, with the restrictions remaining in the meantime. The hearing was held on April 15.

         At the April 15 hearing, Earley stated, “[T]he people at this point are alleging that my client made various phone calls from the jail to make some arrangements. I’m not asking that we change the order at this point today.” Earley said he could work out an agreeable order with the prosecutor concerning defendant’s telephone access and stated, “I don’t mind taking it off calendar to deal with it at the preliminary hearing, if need be.” Yancey’s defense counsel, however, argued that the trial court should modify its order to allow Yancey to telephone people other than her attorney. After hearing argument from Yancey’s counsel and the prosecution, the court ruled that it was retaining the existing restrictions on Yancey’s telephone access as stated in the March 23, 1994 order.

         Earley did not again ask the court to modify the restrictions on defendant’s telephone access until about a year later, on March 10, 1995, when he made a motion, unopposed by the prosecutor, to allow defendant to have contact with defense counsel at specified times if the number was dialed by a deputy sheriff.

         2. Analysis

         Citing Small v. Superior Court (2000) 79 Cal.App.4th 1000, 1010, petitioner contends that former section 2600, the statute defining the civil rights of prisoners, is the starting point for matters involving security measures affecting prisoner rights.^[30] But, unlike Small, petitioner’s claim does not involve a challenge to a security measure promulgated by prison authorities. Rather, it involves a restriction imposed by the trial court at the urging of the prosecutor due to concerns that defendant would use telephone access to threaten or order the execution of witnesses in the case. In the absence of authority applying former section 2600 to a court-ordered limitation on the telephone access of a pretrial detainee, we decline to apply it here.

         Yet defendant may challenge the telephonic restriction based on his right to access to counsel under the state and federal Constitutions. Restrictions on the ability of a prisoner, including a pretrial detainee, to use the telephone to consult with counsel implicate the right to assistance of counsel in the prisoner’s defense. (See In re Grimes (1989) 208 Cal.App.3d 1175, 1182.) Nevertheless, “[n]ot every restriction on counsel’s time or opportunity... to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 11.)

         We recently rejected a claim with similar facts. A defendant who was a pretrial detainee in jail faced restrictions on telephone contact with her attorney based on her misuse of that privilege to attempt to solicit the murder of a witness. (People v. Rodriguez (2014) 58 Cal.4th 587, 621.) As we noted, “[j]ail authorities and the court did limit defendant’s telephone privileges, but properly so given her criminal behavior in jail that abused those privileges.” (Ibid.)

         Given the grave and highly unusual circumstances under which the prosecutor made the initial request to restrict defendant’s phone access, we find no error in the trial court’s ordering a complete restriction of defendant’s telephone access. Initial evidence indicated that defendant had used the jail telephones to arrange the murder of a prosecution witness, and the prosecutor subsequently discovered evidence that defendant’s attorney or his investigator had been in communication with the individual suspected of carrying out that murder.^[31] Under these circumstances, a blanket restriction of defendant’s phone access was justified for at least the limited period between the March 23, 1994 order and the April 15, 1994 hearing at which the court took up its continuing status. At that hearing, the court asked defense counsel to address the issue of whether the restriction should be modified after the limited period, and defense counsel asked that the court take the issue off calendar in favor of defense counsel’s working out an agreement with the prosecutor. Defendant therefore forfeited the issue of the restriction on defendant’s telephone access from the period of April 15, 1994, until March 10, 1995, when defense counsel again raised the issue and sought modification of the order.

         Finally, even if defendant’s claim were not forfeited for that period, he has failed to show that his defense was negatively affected by this period of telephonic restriction such that we could conclude he had been denied his right to the effective assistance of counsel. Defendant acknowledges that he was not denied personal visits from trial counsel. As reflected in the record, defendant’s trial counsel actively litigated the case during this period at the preliminary hearing and through various pretrial motions and hearings. Defendant generally contends that his “input” was crucial to the defense’s investigations of his alibi and other aspects of the case, including his life history in preparation for a possible penalty phase. But he fails to show that he was unable to provide this input during personal visits from trial counsel, and fails to indicate any area of the defense’s investigation of the case that was inadequate because of his lack of telephone communication with his attorney during the period in question.

         B. Continuance of the Preliminary Hearing

         Defendant contends that his right to a speedy preliminary hearing was violated because the trial court continued the date of the preliminary hearing over defendant’s objections. As discussed below, the court did not violate defendant’s statutory rights concerning his preliminary hearing. Even if it had, defendant fails to show any prejudice.

         1. Background

         Defendant entered a not guilty plea to the amended complaint on April 15, 1994, and requested that his preliminary hearing be set for April 28. On April 28, on the motion of codefendant Yancey, and over the objection of defendant, the trial court ordered the continuance of both Yancey’s and defendant’s preliminary hearings to June 30, 1994 for good cause under section 1050.1. On June 29, 1994, the prosecutor filed the second amended complaint, to which defendant also pleaded not guilty. Yancey’s counsel also requested another continuance based on the need to review additional discovery material that the prosecutor had disclosed in connection with the second amended complaint. Again, over defendant’s objection, the court found good cause for the continuance and continued the matter for both codefendants to July 13. On July 13, both defense counsel agreed to a continuance to July 18, when the preliminary hearing commenced.

         2. Analysis

         Defendant now contends that the trial court’s granting of the first continuance on April 28, 1994 violated his statutory right under section 859b. Section 859b provides that a criminal defendant has a right to a preliminary hearing within 10 court days of the arraignment or plea, unless the parties waive this right or the court finds good cause to continue the preliminary hearing under section 1050. (Landrum v. Superior Court (1981) 30 Cal.3d 1, 5.) Under section 1050, a “trial court has broad discretion to determine whether good cause exists, ” and we review its decision on the motion for abuse of discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) Section 1050.1 provides that, “[i]n any case in which two or more defendants are jointly charged in the same complaint” and the magistrate finds good cause to continue the preliminary hearing regarding one defendant, the continuance constitutes “good cause to continue the remaining defendants’ cases so as to maintain joinder.” (§ 1050.1; Tapia v. Superior Court (1991) 53 Cal.3d 282, 299.) At the April 28 hearing, the court found good cause to continue the preliminary hearing for Yancey because her counsel requested additional time to review the large amount of discovery recently disclosed by the prosecutor. This, in turn, established good cause to continue defendant’s preliminary hearing for the purpose of maintaining joinder. We therefore conclude that the court did not abuse its discretion.

         In his reply brief, defendant raises an additional argument. He notes that section 859b also provides that the “magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of the arraignment [or] plea..., unless the defendant personally waives his or her right to a preliminary examination within the 60 days.” (§ 859b, subd. (b).) Defendant contends that section 859b was violated because he entered a not guilty plea on April 15, 1994, and the preliminary hearing started 94 days later, on July 18, 1994. But he fails to address whether his not guilty plea to the second amended complaint on June 29, 1994 reset the 60-day period under section 859b. If so, defendant’s July 18, 1994 preliminary hearing, which commenced 19 days later, was timely under the 60-day rule. Nonetheless, we need not resolve this apparently still-undecided issue of California law. (See Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 724, fn. 3 (Ramos) [deferring the question of whether an arraignment on an amended felony complaint starts a new 60-day period under section 859b].) This new argument is forfeited both because defendant failed to raise it in the opening brief (People v. Tully (2012) 54 Cal.4th 952, 1075) and because he failed to object below. Moreover, even if he had preserved the claim, defendant shows no prejudice from the delay. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529-530.)

         Defendant contends, citing Ramos, supra, 146 Cal.App.4th at page 737, that violation of the 60-day rule does not require a showing of prejudice. To the extent the Ramos court correctly concluded a defendant need not show prejudice, that case involved circumstances where the defendant objected to the delay and sought a pretrial writ to dismiss the information. Here, defendant did not object; moreover, he raises the issue for the first time on appeal. As we stated in People v. Pompa-Ortiz, supra, 27 Cal.3d at page 529, “[t]he presence of a jurisdictional defect which would entitle a defendant to a writ of prohibition prior to trial does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought.” We further stated that non-jurisdictional irregularities in preliminary examination procedures do not require reversal unless the defendant establishes that he or she was deprived of a fair trial or otherwise suffered prejudice as a result. (Ibid.) A denial of a defendant’s right to trial within a prescribed statutory time period falls within this class of irregularities that are not jurisdictional in the fundamental sense and which, therefore, require a showing of prejudice. (Ibid.) The same analysis applies to a violation of the 60-day rule in section 859b.

         In the alternative, defendant contends that, because his trial was severed from that of codefendant Yancey after the preliminary hearing, and because the strategy and tactics in preparing for a joint trial are different than that of preparing for a single trial, he ended up with less time to prepare for trial as a single defendant. Defendant bases this contention on the assumption that the severance with Yancey would have occurred earlier if the preliminary hearing had occurred earlier. Even assuming for the sake of argument that this is so, defendant points to no specific issue at his trial that he would have presented differently and thus fails to make a showing of prejudice.

         C. Asserted Violations of Venue and Vicinage Rights

         Defendant contends that his venue and vicinage rights under the United States Constitution, the California Constitution, and California statutes were violated because he was tried in Orange County for the Williams murder, which took place in Los Angeles County. Defendant raised a vicinage claim as one of several claims in an unsuccessful motion to dismiss the indictment under section 995. He raised the vicinage claim again during pretrial motions, and the trial court rejected it. As we conclude below, the venue of defendant’s trial was proper under statutory law and did not violate defendant’s vicinage rights under the federal and state Constitutions.

         Venue and vicinage are distinct. Venue concerns the location where the trial is held; vicinage refers to an area from which the jury pool is drawn. (Price v. Superior Court (2001) 25 Cal.4th 1046, 1054.) Defendant’s contentions implicate both venue and vicinage because he contends that the venue of his trial, Orange County, was statutorily improper and that the racial composition of the jury pool of Orange County violated his vicinage rights because there were fewer jurors of defendant’s race (African-American) in Orange County than in Los Angeles County (where defendant contends venue was proper).

         Under section 790, the proper venue for a murder trial lies in the county where the fatal injury was inflicted, where the victim died, or where the victim’s body was discovered. But under section 781, venue is also proper in the county where “the defendant made preparations for the crime.” (People v. Price (1991) 1 Cal.4th 324, 385.) “The long-standing former rule was that venue presented a question of fact and was thus for the jury to decide.” (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Jurisdiction and Venue, § 65, p. 179 [citing cases].) Ten years after the completion of defendant’s trial, we rejected that rule in favor of the new rule that venue is a question of law to be determined by the trial court. (People v. Posey (2004) 32 Cal.4th 193, 215 (Posey).) Following People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 (Simon), Posey, at page 200, set forth a prospective rule that a defendant must raise a claim of improper venue to the court prior to the commencement of trial. Since defendant’s case was not final at the time of the new rules set forth in Simon and Posey, these new rules do not apply to him.

         Defendant could have proceeded under the authority at that time and submitted the issue of venue to the jury. Instead he elected to challenge venue in front of the trial court before the commencement of trial (a procedure that would become the exclusive method for deciding the issue after Posey.) The burden of proof for proper venue remains unchanged - it rests with the prosecutor and must be proved by a preponderance of the evidence. (4 Witkin & Epstein, Cal. Criminal Law, supra, Jurisdiction and Venue, §§ 66-67, pp. 181-182 [citing cases].) Either direct or circumstantial evidence may suffice. (4 Witkin & Epstein, § 67, p. 181.) Whether we review the sufficiency of the evidence in light of the court’s decision or in light of the possible decision of a hypothetical jury to whom defendant could have submitted the issue, the result is therefore the same. The evidence presented by the prosecutor was sufficient to prove, by a preponderance of the evidence, that Orange County was an appropriate place for the trial under section 781. (Posey, supra, 32 Cal.4th at pp. 220-221.)

         The evidence establishes numerous visits and phone calls between defendant and Yancey while defendant - in the months before Williams’s murder - was incarcerated in the Orange County Jail. A reasonable conclusion from this evidence is that it was during this period that the two planned for Yancey to lure Williams to her death. Defendant objects that the evidence of Yancey’s visits and phone calls was not sufficient to support the conclusion that defendant and Yancey conspired to kill Williams because this evidence is circumstantial - not direct - evidence of defendant’s guilt. Defendant protests that there was no direct proof of what was discussed during those visits or phone calls. But the evidence supporting venue can be either direct or circumstantial. In combination with the totality of incriminating evidence in the case, the visits and phone calls were compelling circumstantial evidence that it was within Orange County that defendant conspired with Yancey to have Williams murdered. Venue in Orange County was therefore proper for the Williams murder under section 781 because it was the county in which defendant made preparations for the crime.

         Defendant’s vicinage claim also falters. His rights under the United States and California Constitutions, we conclude, were not violated. The vicinage clause of the Sixth Amendment^[32] has not been incorporated by the Fourteenth Amendment to apply in a state criminal trial. (Price v. Superior Court, supra, 25 Cal.4th at pp. 1063-1069.) For vicinage rights under the state Constitution, “the vicinage right implied in article I, section 16 of the California Constitution... constitutes simply the right of an accused to a trial by an impartial jury drawn from a place bearing some reasonable relationship to the crime in question.” (Posey, supra, 32 Cal.4th at p. 222, citation omitted.) Defendant contends that, at the time of defendant’s trial, African-Americans comprised 21.5 percent of potential jurors in Compton, the superior court judicial district of Los Angeles for Gardena, where the Williams murder was committed, but comprised only 1.77 percent of the potential jurors of Orange County, where the trial occurred. The prosecutor below stipulated to the truth of defendant’s statistical breakdown of the racial composition of the jury pools in Compton and Orange County. But the prosecutor pointed out that defendant failed to produce any authority that the vicinage right under the state Constitution gives rise to a defendant’s right to have a trial moved to a county that has a greater percentage of jurors with the same race as that of the defendant. On appeal, defendant likewise fails to produce any authority for this position. To the contrary: because venue was proper in Orange County under section 781, as the place where preparations for the crime were committed, the place of trial did bear “some reasonable relationship to the crime in question” and therefore satisfied the implied vicinage requirement of the California Constitution. (Posey, at p. 222.)

         D. Asserted Unduly Suggestive Identification of Defendant by Weaver

         Weaver identified defendant to police investigators as being present at the CompUSA murder through a pretrial photographic array. Defendant unsuccessfully made a pretrial motion to exclude admission of the identification on the ground that the photographic array was unduly suggestive. Defendant contends the trial court erred and that Weaver’s in-court identification was tainted due to the photographic array. As we conclude below, the court did not err in denying defendant’s pretrial motion. And because the pretrial photographic array was not unduly suggestive, Weaver’s in-court identification of defendant was not tainted.

         1. Background

         According to Weaver’s testimony, he met defendant in the CompUSA parking lot on the night of the CompUSA murder. Inspector Grasso testified that, at a hearing on defendant’s pretrial motion to suppress that about eight months after the CompUSA murder, he showed Weaver three photographic array cards. Each photographic array card contained six photographs. Grasso gave Weaver a lengthy admonition that instructed him, among other things, that he did not have to identify anyone (because it was just as important to free innocent persons from suspicion as it was to identify those who were guilty); that photographs do not always depict the true complexion of a person, which might be lighter or darker than that shown in the photograph; and that he should pay no attention to whether the photos were in color or black and white or to any other difference in the type or style of the photographs.^[33] The first photographic group included a photograph of defendant’s brother Eric and photographs of five other men. The second photographic group contained a photograph of defendant and photographs of five other men. The third photographic group contained a photograph of Ervin (the shooter in the CompUSA murder) and photographs of five other men.

         Eric is a dark-complexioned African-American man, as were the five other men in his photographic array card. Defendant, however, is a light-complexioned African-American man, and the five other men in his photographic group were apparently White, Hispanic, or of mixed race. ^[34] Ervin is a dark-complexioned African-American man, as were the five other men in his photographic group. Weaver identified Eric from the first photographic array card and defendant from the second, but he did not identify anyone from the third.

         At trial, during his direct examination by the prosecutor, Weaver made an in-court identification of defendant. In recounting his interviews with the police during the investigation and his pretrial identification of defendant through the photographic array, he was again shown the pretrial photographic array card, from which he also identified defendant.

         2. Analysis

         In determining whether a defendant’s right to due process is violated by the admission of identification evidence, we consider “(1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances.ˮ (People v. Kennedy (2005) 36 Cal.4th 595, 608.) A claim that an identification procedure was unduly suggestive raises a mixed question of law and fact to which we apply a standard of independent review, although we review the determination of historical facts regarding the procedure under a deferential standard. (Id. at p. 609.)

         Defendant contends that the background color of the photographs of defendant and his brother was darker than the background color of the other photographs. Examining the array cards, we note that the background colors of the photographs of defendant and his brother are a slightly darker shade of gray. But this difference did not render the photographic lineup unduly suggestive, particularly in light of the express admonition given to Weaver that he should pay no attention to whether the photos were in color, in black and white, or to any other difference in the type or style of the photographs. We have previously rejected claims that photographic arrays were unduly suggestive based on minor variations in background color or discoloration of the photograph. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; People v. Gonzalez (2006) 38 Cal.4th 932, 943.)

         Defense counsel asserted below, and defendant renews on appeal, the argument that defendant’s photographic array card was unduly suggestive because defendant was the only African-American man in it. But, as the prosecution argued below, the races of the five other men in the photographic array card were never established. Like defendant, the five other men were similarly complexioned, had dark hair, and had mustaches. As the trial court remarked, defendant’s “racial characteristics are not outstandingly apparent.” Indeed, defendant’s substantial mustache, almost a handlebar, was his most distinctive feature. In preparing the photographic array, the police were faced with matching at least three relevant features of defendant’s appearance - his complexion, his prominent mustache, and his apparent racial or ethnic identity. The police here did an admirable job of matching complexion and mustaches. But apparent racial or ethnic identity is something that is harder to quantify and agree on, so opinions in this area can vary.

         The additional factor here is that Weaver knew that his teammate Eric Clark, defendant’s brother, was African-American. Given this, Weaver may have (correctly) assumed that defendant, as Eric’s brother, was also African-American. and been primed to look for a photograph of an African-American on the card, or, conversely, to reject out of hand a photograph of someone of another race.

         But we need not decide the issue here because, even if we assume for the sake of argument that the photographic array was unduly suggestive in regard to apparent racial or ethnic identity, we conclude that the pretrial identification was “nevertheless reliable under the totality of the circumstances.” (People v. Cunningham (2001) 25 Cal.4th 926, 989.) In making this determination we take into account “such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.” (Ibid.) Weaver certainly had a meaningful opportunity to closely observe defendant during their extended contact on the night of the CompUSA murder, including both a face-to-face meeting in the parking lot and being in the passenger seat while defendant drove towards and later made a quick getaway from the computer store. That Weaver was a passenger in defendant’s car as defendant engaged in a high-speed escape from police cars with their signals flashing also supports the inference that Weaver was focused on defendant during such a memorable event.

         E. Asserted Unconstitutional Coercion of Alonzo Garrett

         Prosecution witness Alonzo Garrett refused to take the oath at defendant’s preliminary hearing and was held in contempt of court. But he later testified at defendant’s trial. Defendant contends that Garrett’s trial testimony was coerced and unreliable because Garrett had been held in contempt for refusing to take the oath at the preliminary hearing. But as we explain below, defendant fails to show that Garrett’s trial testimony was made unreliable by coercion.

         1. Background

         At the preliminary hearing, the prosecution called Garrett as a witness. As Garrett had previously told the authorities and later testified at defendant’s trial (recounted, ante at pages 10 to 11), Garrett was a fellow prisoner with defendant at the Orange County jail and knew Ardell Williams. Defendant had shown Garrett transcripts of Williams’s grand jury testimony and stated, “ ‘Hey, this is the woman right here that could put me away.’ ” Concerned that Williams was involved in a dangerous situation because she was “snitching, ” Garrett later phoned Williams, who admitted that she was the key witness in defendant’s case but assured him that there was nothing to worry about.

         Garrett refused to even be sworn as a witness at the preliminary hearing. Before Garrett was brought to the courtroom, his counsel stated that he believed that Garrett had a Fifth Amendment right to remain silent if asked any questions about the murder of Williams. Garrett’s counsel also acknowledged that he did not “know if we’ll ever get there because... [Garrett] doesn’t even want to be in the courtroom.” Garrett had asked counsel “to inform the court that he’s not going to say a word.” Garrett’s counsel contended that Garrett could invoke his Fifth Amendment privilege on the grounds that his phone call to Williams could be interpreted as an attempt to dissuade a witness. The prosecutor’s position was that the burden was on the witness for taking the Fifth Amendment and that the prosecution should at least be allowed to ask the witness questions before he could assert the privilege.

         Garrett was then brought before the trial court and refused to speak. After twice instructing Garrett, in the face of his continued silence, to take the oath, the court informed him that he could be found in contempt of court under section 166, subdivision (a)(6), which provides that an unlawful refusal of any person to be sworn as a witness constitutes a misdemeanor. When Garrett continued to refuse to take the oath, the court found that he had unlawfully refused to be sworn as a witness and found him in contempt. The court committed him to custody “until such time as he can purge himself of contempt by taking the oath as a witness.” Garrett never agreed to return to court as a witness at the preliminary hearing. He pleaded guilty to the contempt charges and was sentenced to one additional year to be served consecutively to the 25-year sentence he was already serving.

         But almost two years later, when the prosecution called Garrett to testify at defendant’s trial, he agreed to testify. As part of his testimony, Garrett acknowledged that he had refused to testify at the preliminary hearing. But he stated that he was testifying at defendant’s trial for a number of reasons: (1) the prosecutor persisted in bringing Garrett to court to testify; (2) Garrett did not want to accrue any additional prison time by being held in contempt of court again for refusing to testify; and (3) he had “finally gotten over” the anger he had before the preliminary hearing, when he refused to testify.

         2. Analysis

         Defendant contends that Garrett’s Fifth Amendment right against self-incrimination was violated at the preliminary hearing when the trial court found him in contempt of court for refusing to testify. Respondent counters that Garrett failed to properly invoke his privilege against self-incrimination at the preliminary hearing and that, even if Garrett had made a proper invocation, his claim would have failed because Garrett’s testimony would not have been incriminating to him. But we need not evaluate the substantive legal issues surrounding Garrett’s constitutional rights. Even if his Fifth Amendment rights were violated at the preliminary hearing, such an error alone does not provide a basis for excluding his trial testimony. Defendant has no standing to raise a claim involving an alleged violation of Garrett’s Fifth Amendment privilege. (People v. Jenkins, supra, 22 Cal.4th at p. 965.) The issue in this appeal is whether the circumstances of Garrett’s testimony impacted defendant’s constitutional rights.

         Defendant can raise a claim that the admission of Garrett’s allegedly coerced testimony rendered defendant’s trial fundamentally unfair. (People v. Jenkins, supra, 22 Cal.4th at p. 966.) But he can succeed only if he demonstrates “fundamental unfairness at trial, ” usually by establishing that the evidence was made unreliable by coercion. (Ibid.) Defendant fails to do so.

         What defendant contends is that Garrett’s testimony was coerced because Garrett had been previously held in contempt for refusing to testify and he stated that one of the reasons that he was now agreeing to testify was that he did not want to be held in contempt again and accrue additional prison time. Under these circumstances, though, Garrett was no more “coerced” than is any witness at trial who is subject to compulsory process and called to testify. Furthermore, an analysis of the immediate circumstances surrounding Garrett’s testimony at defendant’s trial shows that Garrett was not coerced when he testified there. Whether or not he had properly invoked his privilege against self-incrimination at the preliminary hearing by refusing even to be sworn, he took the oath at defendant’s trial and would have been able to invoke his privilege against self-incrimination when being questioned if he chose to do so. He did not. Defendant points to the fact that Garrett’s attorney was not present when he testified at defendant’s trial as indicating that he would have not believed that he could successfully assert his Fifth Amendment privilege. But before he testified in front of the jury, the trial court held a colloquy with Garrett in which he stated that he was agreeing to proceed with his testimony even though his attorney was not present and that his decision to do so was uncoerced and voluntary. Defendant also points to Garrett’s statement to the court and the parties, outside the presence of the jury, that Garrett had heard rumors that if he did not testify he would “find [himself] somewhere in Pelican Bay, ” the state’s supermaximum security prison. But outside the presence of the jury, the prosecutor told him, “I want you to know before the jury is brought in, that, as a representative of the District Attorney’s office, I am telling you that there is not going to be a recommendation from the District Attorney’s office to send you to Pelican Bay.” Defendant therefore fails to show that Garrett was threatened with retaliation that would have rendered his testimony unreliable.

         Considering Garrett’s testimony in light of the wider circumstances also indicates that coercion did not render his testimony unreliable. First, any pressure that was exerted on Garrett was for him to testify, not for him to testify in a particular manner. Defendant fails to show that there was any pressure on Garrett to testify in a way that helped the prosecutor and hurt the defense. Along these lines, defendant fails to show that Garrett had something to gain personally by testifying against defendant. Indeed, defendant acknowledges that, in Garrett’s testimony, he “demonstrated that he cared only about avoiding additional jail time and his own ‘snitch’ status.” Defendant concludes that this shows that “Garrett therefore clearly did not have appellant’s interests in mind when he testified, nor should he have.” But by the same reasoning, Garrett did not have a motivation to skew his testimony against defendant either. Second, the fact that Garrett gave the same account of his jailhouse discussion with defendant before the allegedly coercive events at the preliminary hearing further undercuts the claim that the events at the preliminary hearing rendered his trial testimony unreliable.^[35] Finally, the jury heard Garrett’s own account that he was now testifying at defendant’s trial, at least in part, because he had previously been held in contempt. The jury could therefore evaluate his testimony in light of that fact. In conclusion, because defendant has not met his burden of showing that Garrett’s testimony was unreliable as a result of coercion, defendant fails to show that the admission of the testimony rendered his trial fundamentally unfair.

         F. Admission of Conversations Between “Janet Jackson” and Members of the Williams Family

         Defendant contends the trial court erred in admitting Yancey’s statements under the Evidence Code section 1223 coconspirator exception to the hearsay rule. As recounted, ante, at page 12, the prosecutor presented evidence of the delivery of flowers to Williams’s home on February 10, 1994 and a subsequent series of phone calls where a woman identifying herself as “Janet Jackson” arranged a “job interview” for Williams, resulting in her murder. Defendant contends insufficient evidence was presented to support a prima facie case of the existence of the conspiracy under Evidence Code section 1223 to allow the admission of Yancey’s statements under the coconspirator exception to the hearsay rule.

         Respondent contends that no objection was made at trial, thus forfeiting this claim on appeal. Defendant responds that, at the preliminary hearing, defense counsel raised an objection under Evidence Code section 1223, which was rejected, to the admission of Yancey’s statements. We agree with respondent that the claim is forfeited for failure to raise it below. Defendant fails to provide any authority that an objection at a preliminary hearing is sufficient to preserve the issue at trial and on appeal. Defendant is also unconvincing in his argument that raising the hearsay issue again at trial would have been futile. The absence of an objection deprived the prosecutor and the court the opportunity to identify which statements were actually hearsay and which were not, and, for the hearsay ones, to assess the exceptions under which they might be admissible. For example, many, if not most, of the statements Yancey made in posing as “Carolyn, ” the flower delivery girl, and as “Janet Jackson” were lies and part of a scheme of deception to lure Williams to her death. Thus, these statements were not offered for the truth of the matters asserted, but for the effect they had on Williams. “[A]n out-of-court statement can be admitted for the nonhearsay purpose of showing that it imparted certain information to the hearer, and that the hearer, believing such information to be true, acted in conformity with such belief.” (People v. Montes (2014) 58 Cal.4th 809, 863.) On the other hand, some parts of Yancey’s statements to Williams, like the date and time of the job interview to which Williams was lured, arguably were meant to be used for the truth of the matter asserted. But because there were no hearsay objections at trial to Yancey’s statements generally, let alone objections to specific statements, the court was deprived of the opportunity to rule on these issues.

         Even if we considered this claim on the merits, we would conclude that Yancey’s statements were properly admitted under Evidence Code section 1223. Under Evidence Code section 1223, three preliminary facts must be established for evidence of a coconspirator’s declaration to be admissible: (1) that the declarant was participating in the conspiracy in question at the time of the declaration, (2) that the declaration furthered or was meant to further the conspiracy’s objective, and (3) that the party against whom the evidence is offered was - at the time of the declaration - participating in the conspiracy, or would later participate in it. (People v. Leach (1975) 15 Cal.3d 419, 430-431, fn. 10; see also People v. Hardy (1992) 2 Cal.4th 86, 139.) The party offering the coconspirator statements is required to present “independent evidence to establish prima facie the existence of... [a] conspiracy.” (People v. Leach, supra, 15 Cal.3d at p. 430.) As we have stated in the context of establishing criminal liability for a conspiracy, “[e]vidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.)

         In this case, the prosecution presented sufficient independent evidence from which the trial court could have found a conspiracy between defendant and Yancey to kill Williams. Williams’s grand jury testimony, in which she described her knowledge of defendant’s involvement with the CompUSA murder and her subsequent cooperation with the police, was evidence pointing to defendant’s motive to have her murdered to prevent her from testifying at his trial.^[36] Garrett testified about defendant’s awareness that Williams was a damaging witness by recounting defendant’s remark that “this is the woman right here that could put me away.” Yancey’s relationship with defendant in the period leading up to the Williams murder (Jan. through Mar. 1994) was established through evidence of her phone records indicating numerous calls to defendant’s attorney and investigator, a pay phone in the Orange County Jail accessible to Clark, and to Williams’s home. During a search of Yancey’s apartment, police recovered numerous letters between Yancey and defendant.

         Moreover, considerable evidence established that Yancey was the woman who delivered the flowers to the Williams’s household and who represented herself as “Janet Jackson” in the phone conversations with Williams’s mother. In a voice lineup, Williams’s mother and sister identified Yancey’s voice as that of “Janet Jackson.” They also identified Yancey in a photo lineup as the person who delivered the flowers. One of Yancey’s fingerprints was found on the box in which the flowers were delivered.

         Defendant also raises questions about the evidence showing that Yancey was the flower delivery girl and the “Janet Jackson” of the phone calls. He contends that “this evidence is meaningless in the absence of what was said during the Janet Jackson calls or flower delivery” because “the prima facie finding of the conspiracy must be made in the absence of those statements.” In making this argument, defendant presupposes that the only basis for admitting any of Yancey’s statements was through Evidence Code section 1223, the coconspirator hearsay exception. But defendant fails to appreciate the point, discussed above, that many, if not most, of Yancey’s statements were also admissible as nonhearsay. Thus, the trial court admitted the statements independent of the requirements of the coconspirator hearsay exception. As independent evidence, these statements supported the inference that Yancey was involved in a conspiracy with defendant to kill Williams.

         Finally, defendant contends that the admission of the statements under the coconspirator exception to the hearsay rule violated his right to confrontation under the Sixth Amendment to the United States Constitution as it has subsequently been defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Defendant failed to raise a confrontation clause objection at trial. But because defendant’s trial occurred before the decision in Crawford, he has not forfeited his Crawford challenge. (People v. Rangel (2016) 62 Cal.4th 1192, 1215-1216.) Defendant’s claim nonetheless fails on the merits because he fails to show how Yancey’s statements to Williams and her family were “testimonial” under Crawford. The high court has left open the possibility that statements to individuals who are not law enforcement officers may, in certain circumstances, qualify as testimonial. (Ohio v. Clark (2015) 576 U.S. ____ [135 S.Ct. 2173, 2181].) It has also noted, however, that “statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.” (Id. at p. 2182.)^[37]

         III. Jury Selection Issues

         A. Asserted Witt Error

         Defendant contends that various prospective and serving jurors were erroneously included or excluded by trial court rulings on prosecution and defense motions to exclude prospective jurors for cause based on their views of the death penalty under Wainwright v. Witt (1985) 469 U.S. 412 (Witt). We reject all of defendant’s Witt claims.

         The federal constitutional standard for excusing a prospective juror for cause based on his or her views of capital punishment is whether “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. at p. 424, fn. omitted.) Applying Witt, we have stated that a prospective juror “is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1146.) “On appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, ” and we accept “as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” (People v. Mayfield (1997) 14 Cal.4th 668, 727.) “The same analysis applies to claims involving erroneous juror exclusion or inclusion.” (People v. Hoyos (2007) 41 Cal.4th 872, 905.)

         1. Erroneous Inclusion Claims

         Defendant contends the trial court erred in denying his challenges for cause against 12 prospective jurors. Respondent contends defendant has forfeited these claims. “[A] defendant challenging on appeal the denial of a challenge for cause must fulfill a trio of procedural requirements: (1) the defense must exercise a peremptory challenge to remove the juror in question; (2) the defense must exhaust all available peremptory challenges; and (3) the defense must express dissatisfaction with the jury as finally constituted.” (People v. Weaver (2001) 26 Cal.4th 876, 910-911.) Defendant acknowledges that he failed to meet these requirements, to which there are no exceptions. He has therefore forfeited his claims.

         Even if these claims were not forfeited, defendant fails to show any possible prejudice. The 12 prospective jurors defendant challenges are from defendant’s first trial in which the jury returned a guilt phase verdict but failed to return a penalty phase verdict. Witt error does not require reversal of a guilty verdict. (People v. Tate (2010) 49 Cal.4th 635, 666.) Therefore, even if a Witt violation occurred for any of these jurors, defendant is not entitled to a reversal of his guilt phase conviction.

         Defendant advances further Witt claims regarding five of the jurors who sat at his penalty retrial, where the jury returned a sentence of death. But defendant acknowledges that he failed to meet the procedural requirements for an erroneous inclusion claim. In fact, defendant acknowledges that “[s]everal of these jurors were not challenged for cause by appellant’s counsel.” And defendant does not identify where in the record trial counsel challenged any of these jurors. Defendant therefore forfeited these claims. Contrary to defendant’s assertions otherwise, a trial court has no sua sponte duty to excuse jurors for their views on the death penalty. (People v. Taylor (2009) 47 Cal.4th 850, 884.) As noted ante, to preserve a claim of error, the defendant must challenge the juror for cause, exercise a peremptory challenge, exhaust the available peremptory challenges, and express dissatisfaction with the jury ultimately selected. (Ibid.) Defendant, satisfying none of these requirements, has forfeited these claims.

         2. Erroneous Exclusion Claims

         Defendant contends that the trial court erroneously granted, over his objection, three of the prosecutor’s challenges for cause based on the prospective jurors’ death penalty views. These three prospective jurors, however, were at defendant’s first trial, where no death verdict was returned. As explained above, defendant cannot show any prejudice from a Witt error at his first trial because no death verdict was returned at that trial and any Witt error would not be reversible on the guilty verdict.

         B. Batson/Wheeler Challenge

         Defense counsel brought a motion under Batson v. Kentucky (1986) 476 U.S. 79, 84-89 and People v. Wheeler (1978) 22 Cal.3d 258, 276-277 based on the prosecutor’s use of a peremptory challenge against a Native American prospective juror. The trial court denied the motion, finding that defense counsel failed to make a prima facie showing that the prosecutor had exercised a peremptory challenge in a discriminatory manner. As discussed below, we conclude the trial court did not err in its ruling.

         1. Background

         The prosecutor exercised a peremptory challenge against Prospective Juror P. M., to which defense counsel objected on Batson/Wheeler grounds. The trial court then held a hearing outside the presence of the prospective jurors. Defense counsel explained that he had brought the motion because of the small number of minority prospective jurors in the pool and stated: “I don’t see anything in his questionnaire that would make him any different than any other member that’s on the jury. This is as vanilla as you can get, this juror.” When defense counsel was asked to make his prima facie showing of discrimination, he stated that P. M. had been one of the two minority prospective jurors in the jury box. Defense counsel explained that there had been three minority prospective jurors: Prospective Juror C. T., whom the parties dismissed by stipulation; juror number 9, a Hispanic woman, who was currently in the jury box; and P. M., whom the prosecutor had dismissed. P. M. self-identified as “American Indian” in his jury questionnaire. The prosecutor responded that defense counsel had not made a prima facie case, and the prosecution would not indicate its reasons for the peremptory challenge unless the court made such a finding. The court denied the motion, finding that the defense had not made a prima facie showing of discrimination.

         2. Analysis

         We follow a familiar three-step analysis in considering a Batson/Wheeler motion: (1) a defendant must make a prima facie case by demonstrating that the totality of the relevant facts establishes an inference of discriminatory purpose; (2) if the defendant makes a prima facie case, the prosecutor bears the burden of adequately explaining the exclusion with permissible race-neutral justifications; and (3) if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved purposeful racial discrimination. (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)

         Defendant argues that we should presume the trial court applied the “strong likelihood” standard for the first stage, which was controlling California law before the United State Supreme Court’s articulation of the standard in Johnson v. California, supra, 545 U.S. at page 168. But, as we have held, “[r]egardless of the standard employed by the trial court, and even assuming without deciding that the trial court’s decision is not entitled to deference, we have reviewed the record and, like the United States Supreme Court in Johnson... [we] are able to apply the high court’s standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race.” (People v. Cornwell (2005) 37 Cal.4th 50, 73, citation omitted.)

         Defendant contends that the trial court erred in denying the motion because the court at one point referred to “no prima facie showing of pattern.” Defendant points to the United States Supreme Court’s statement that even “ ‘ “a single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.” ’ ˮ (Johnson v. California, supra, 545 U.S. at p. 169, fn. 5.) But the court merely referred to defendant’s failure to make a prima facie showing of discrimination on the grounds that defendant himself raised in explaining his basis for the motion, which was based on pattern - namely the fact that P. M. was one of two minority jurors in the jury box at the time that the prosecutor excused him. The court did not state that only evidence of a pattern of improper challenges could establish a prima facie showing of a violation. As we have stated, “To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion ‘is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias.’ [Citation.] But in drawing an inference of discrimination from the fact one party has excused ‘most or all’ members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the party’s challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult.” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.)

         We agree with the trial court: defendant failed to make a prima facie case based on the excusal of this one Native American prospective juror. Defense counsel below pointed to no circumstances beside an asserted pattern of exclusion of minority prospective jurors in support of his Batson/Wheeler motion. But one challenge is not a pattern. The excusal of one minority juror was the result of a stipulation by the parties. There was one minority juror remaining in the jury box when the prosecutor challenged P. M. The fact that defense counsel said he saw no reason for the prosecutor to challenge P. M. does not raise an inference that the prosecutor’s reason for doing so was improper group bias.

         On appeal, defendant seeks, for the first time, to make a case based on comparative juror analysis, contending that, based on statements made during voir dire, R. R., a Caucasian prospective juror not challenged by the prosecutor, was more likely to vote for a sentence of life without the possibility of parole than P. M. We decline to engage defendant’s attempt to raise comparative juror analysis for the first time on appeal in this stage one Batson/Wheeler claim. Our obligation to consider comparative juror analysis for the first time on appeal only applies to stage three Batson/Wheeler claims, not stage one claims. (People v. Lenix (2008) 44 Cal.4th 602, 622, fn. 15.) Defense counsel did not engage in comparative juror analysis below by pointing to any specifics about any other prospective jurors. Defense counsel merely made the generic claim that P. M. was no different than the other jurors. As we have stated in declining to consider comparative juror analysis in a first-stage Batson/Wheeler claim, “[w]here, as here, no reasons for the prosecutor’s challenges were accepted or posited by either the trial court or this court, there is no fit subject for comparison. Comparative juror analysis would be formless and unbounded.” (People v. Bell, supra, 40 Cal.4th at p. 601.)

         IV. Guilt Phase Issues

         A. Exclusion of Defendant from the Immunity Proceedings of Prosecution Witnesses

         Under the Fifth Amendment to the federal Constitution, “a defendant is guaranteed the right to be present at any stage of the criminal proceeding... critical to its outcome if his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer (1986) 482 U.S. 730, 745.) Defendant contends that his federal constitutional right was violated because he was excluded from the section 1324 immunity hearings for prosecution witnesses Matthew Weaver and Jeanette Moore.^[38] Defendant forfeited this claim by failing to object or seek relief from the trial court. Defendant also contends that the appellate record is inadequate because transcripts of the immunity hearings are not included in the record. Defendant fails to meet his burden of showing that this deficiency is prejudicial to his ability to prosecute his appeal.

         Weaver and Moore were important witnesses for the prosecution in tying defendant to the CompUSA murder. Both witnesses were also potentially liable for prosecution for aiding and abetting the crime. Weaver was at the scene of the CompUSA murder in order to help move the computers. Moore fraudulently obtained a driver’s license in someone else’s name, which she used to rent the U-Haul truck that defendant intended to use to haul away the computers. Thus, the prosecutor sought immunity for Weaver and Moore under section 1324, which was granted by another judge in a separate proceeding that occurred on the mornings that Moore and Weaver testified at defendant’s trial.

         Defendant contends that he was “excluded” from the Moore and Weaver immunity hearings. But defendant failed to raise any objection to his or his attorney’s absence from the hearings. The prosecutor informed defendant and the trial court about the immunity proceedings for Moore and Weaver that were to take place in front of another judge. Defendant did not seek any ruling from the court on these immunity proceedings. Rather, the court, out of a stated concern for the record, independently inquired: “Have adequate provisions been made for the reporting, and is there any requirement that for that proceeding, in view of the status of the trial, that [defendant] and his counsel be present at any proceeding involving a during-the-trial grant of immunity?” The prosecutor replied, “Not to my knowledge, there is none. I mean, it’s not between [defendant] - [defendant] is not a party to that.” The court stated, “I will rely on your opinion. I just wanted to throw it out.” Defendant states that “ultimately appellant and counsel were not present at the immunity hearing for either Jeanette Moore or Matt Weaver, ” but nothing in the record establishes the defense asserted a right to be present or even asked to attend. Similarly, at no point during the trial did the defense assert that these witnesses could not be effectively cross-examined in light of the defense’s absence from the hearings or the lack of a transcript of the hearings. On this record, defendant has forfeited his claim that his rights were violated and we therefore do not address the merits of the claim.

         Defendant also contends that the appellate record is inadequate because transcripts of the immunity hearings are not included in the record in violation of his constitutional rights and section 190.9 and its implementing rule of court, currently rule 8.610 of the California Rules of Court. In fact, Weaver’s immunity hearing on Tuesday, April 2, 1996, was reported and is included in the record. Moore’s immunity hearing, however, does not appear to be in the record.

         Defendant fails to point to any particular provision of the rules to support his contention that the transcripts of the immunity proceeding should have been included. But even if they should have been, defendant fails to show prejudice. “ ‘ “A criminal defendant is... entitled to a record on appeal that is adequate to permit meaningful review.... The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. [Citation.] It is the defendant’s burden to show prejudice of this sort.” ʼ ˮ (People v. Huggins (2006) 38 Cal.4th 175, 204.) Defendant contends that defense counsel was prejudiced by the lack of a transcript because counsel could not effectively cross-examine Moore and Weaver about the precise nature of the immunity they were granted and any other benefits they received. Defendant contends that, on appeal, he cannot now show that their testimony before the jury was false.

         Defense counsel had the opportunity to cross-examine Moore and Weaver on the precise nature of the immunity these witnesses were granted. Indeed, the topic of their immunity was thoroughly explored when each one testified at trial. At the beginning of each witness’s testimony, the prosecutor extensively questioned each one about the immunity that had been granted. Defense counsel cross-examined Moore on the topic, but did not raise the issue with Weaver. Because defendant fails to specify what aspect of these witnesses’ grant of immunity was not already explored at trial - and would have been illuminated by the transcripts of Moore’s hearing - he has failed to show how the assumed deficiency in the record is prejudicial to his appeal.

         B. Admission of Williams’s Statements for a Nonhearsay Purpose

         Defendant contends the trial court improperly admitted Williams’s grand jury testimony and police interview statements for the nonhearsay purposes of establishing defendant’s motive to kill her and establishing that she was a witness against defendant, as alleged in the murder of a witness special-circumstance allegation under section 190.2, subdivision (a)(10). The court did not err in admitting this material for these nonhearsay purposes or in denying defendant’s objection to this material under Evidence Code section 352.

         1. Background

         The prosecutor initially sought to admit Williams’s grand jury testimony and police interview statements under Evidence Code section 1350, a hearsay exception for instances in which a defendant causes the unavailability of a witness. The prosecutor also raised the possibility of admitting the material for the nonhearsay purpose of showing motive. ^[39] The trial court conducted a hearing and called witnesses to assess whether Williams’s statements were made under circumstances that indicated trustworthiness, as required by Evidence Code section 1350, subdivision (a)(4). Ultimately, the court ruled that Williams’s statements did not meet the trustworthiness requirement of Evidence Code section 1350 and denied the admission of the statements under that section.

         But the trial court also ruled that the statements were admissible for the nonhearsay purposes of showing motive and establishing the corpus delicti of the witness-killing special-circumstance allegation. Defendant argued, however, that only the fact that Williams testified to the grand jury and gave statements to the police should have been admissible, not the content of her statements. The court inquired whether there was another way of placing before the jury the information that she had been a witness adverse to defendant, other than admitting the statements verbatim. The court presented as a possibility, “thinking out loud, ” that someone who had been present at the grand jury proceeding could testify that Williams was called as witness against defendant and gave statements that were detrimental to him. The prosecutor replied that “the heart of the People’s case... is how the information was given by the prosecution to the defense team during that period of time, and what [defendant] then did with that knowledge, ” and that this information “fuel[ed] the motive for [defendant’s] wanting Ardell Williams murdered in retaliation for giving the information, and to prevent her testimony” at trial. The prosecutor stated that merely calling a witness to testify that Williams testified at the grand jury and implicated defendant would deny the prosecution “the ability to show ...