respectfully but vigorously dissent from the judgment of my colleagues. In my_view they misperceive the essential issue raised by *888this petition. Whether or not the evidence which was presented at the trial points unerringly to the defendant’s guilt is not the fundamental is*889sue, because in any trial if an effective defense is throttled there can be no conclusion other than one of guilt. The basic immediate question be*890fore this court is whether the petitioner was afforded due process in his trial; that is, was the conviction procedure, when examined as a whole, fundamentally fair?
A trial which is not fundamentally fair is no trial at all. It is a nonsequitur to argue that a defendant is obviously guilty if it is an estab*891lished fact that the defendant was not afforded a.fair trial. This case, like all cases, invites the question, can any defendant feel assured, no matter how apparent his guilt may appear from an examination of the prosecution evidence that he is, under our system, afforded due process? If the answer is not affirmative, if the procedural methodology adopted in our trials lacks fundamental fairness, then the price we pay for a conviction is more costly than we may surmise—the loss of the foundation of any free society—untarnished administration of justice.
By a petition for writ of habeas corpus the petitioner herein challenges his conviction of July 28, 1972, asserting that it was gained in violation of his constitutional rights in that: (1) a key prosecution witness, Julio Butler, committed perjury at the trial by denying his status as an informant, (2) the government has concealed and withheld evidence which is relevant and in part, corroborative of petitioner’s alibi defense and, (3) the government was privy, by unlawful means to communications concerning defense strategy during the trial. These allegations, in my view, if true, constitute a denial of due process which would mandate relief. Petitioner seeks, by way of relief a dismissal or, in the alternative a new trial or an evidentiary hearing. For the reasons which follow I am of the opinion that an evidentiary hearing should be granted.
I
The Record Before the Court Indicates That There Were Informants in the Defense Counsel’s Environs During the Trial Who Had Access to All Information and Strategy Utilized by the Defendant.
The record before the court, which includes a review of certain documents at an ex parte in camera hearing of this court on August 21, 1980, reveals that prior to and during the trial there was more than one person who had access to the information the defense had and any strategies that it would utilize and that these persons acted as informants to the Federal Bureau of Investigation. The information before the court reveals that these informants were present at several conferences between petitioner and his attorney during the trial. The existence of one such informant was revealed to the petitioner for the first time in December 1979.
The majority apparently find no due process flaw in this revelation. They take the position that since the informants did not testify and *892since the FBI states that the informants only obtained general information which was not transmitted to the prosecution this constitutes no basis upon which to grant relief to the petitioner.
It is now well established that a defendant has an absolute right to effective counsel which includes the absolute right to communicate with his counsel in private. The intrusion of an informant into the attorney-client relationship when a defendant is preparing for trial or is in trial is a violation of the constitutional guarantees contained in the Sixth Amendment to the United States Constitution and in the California Constitution, article I, section 15. Moreover, our Supreme Court has recently explicitly enunciated this right in Barber v. Municipal Court (1979) 24 Cal.3d 742, 759-760 [157 Cal.Rptr. 658, 598 P.2d 818], a case involving intrusion into the attorney-client relationship through the use of informants: “The intrusion, through trickery, of the law enforcement agent in the confidential attorney-client conferences of petitioners cannot be condoned. The right to confer privately with one’s attorney is ‘one of the fundamental rights guaranteed by the American criminal law—a right that no legislature or court can ignore or violate.’ In re Rider, supra, 50 Cal.App. at p. 799 [195 P. 965].)” (See also United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183].) Two arguments against relief which have been presented in this case are nullified by the Barber decision. The court said that it is immaterial that the purpose of the intrusion is to detect future crimes rather than to discover defense strategy. Moreover, it was argued in Barber, as here, that there was no evidence present that the information was transmitted to the prosecution. The Supreme Court held that, nonetheless, the only effective remedy was dismissal of the charges. The rationale of this ruling is that people are entitled to be assured of confidentiality whether their communications be with the attorney alone or in a conference setting. An exclusionary rule is inadequate because the use of illegally obtained evidence would be difficult to prove and because an exclusionary rule would not provide the necessary incentive to deter state agents from such violations.
The majority see a distinction between the fact that in Barber the informant was a sheriff posing as a codefendant whereas, in this case, the informants were acting under the auspices of the federal counterintelligence program (Cointelpro). I see no distinction. Informants in this case were in a position to report to a state agency and, if that is a crucial point, an evidentiary hearing seems appropriate to resolve the issue since there are no affidavits in this record from the Los Angeles Police *893Department-criminal conspiracy section (LAPD-CCS) to indicate that they did not receive the information uncovered. In any event, such a distinction is artificial inasmuch as the principle involved is to guard against government removal of the effective right to counsel. One either has absolute privacy with counsel or one does not. If the rule begins to be eroded by factors such as making distinctions between governments or agencies of governments, or by evaluating whether the information obtained was “specific” or “general,” skimpy and obvious or substantial and obscure, then soon there is no rule. Similarly, it is an exercise in artifice to say a principle of law that is applicable to one category of people is inapplicable to another because that group is perceived by the agency which perpetrates the infiltration to be a “militant, violence-prone hate group.” Is this or any court to permit the establishment of a rule which is dependent upon the perceptions of the director of an agency? How often must we remind ourselves that it is illegal acts which must be curtailed, not deviate thought? We must not surreptitiously curb variance in thought, no matter how extreme, for this bodes ignorance of the contributions of our most severe critics and ignores that such curbs are the first step in generating a climate of conformity and neutrality. Nor may we distinguish the situation in Barber from this one on the basis that the offenses involved here are brutal in nature. The issue is not whether we permit dismissal as to misdemeanants versus violent felons. The essential issue is, do we adhere to principles which resist degradation of judicial procedures which insure fairness no matter how petty or how serious the offense at issue? It is of no moment that this governmental intrusion was discovered subsequent to trial and conviction. There is no duty upon the defendant to discover government misconduct prior to trial. (See In re Johnson (1979) 24 Cal.3d 769 [157 Cal.Rptr. 674, 598 P.2d 834], the companion case to Barber, supra.) The retroactive effect of Barber or extension of its principles to other factual situations is of no concern here inasmuch as I do not at this point urge per se dismissal and inasmuch as the petitioner has met his limited burden o*f establishing prima facie evidence in support of his contention. Whether or not the information obtained by the informants was disseminated to the prosecutor, it is clear that there was sufficient denial to petitioner of due process to warrant relief.
II
The Record Before the Court Indicates That the Prosecution Witness Butler May Have Been an Informant and May Have Perjured Himself Regarding This Fact.
*894Julio Butler was the principal witness for the prosecution. At trial he testified that petitioner had orally confessed to shooting the Olsens. Butler testified he had been a sheriff for Los Angeles County but resigned to operate a beauty shop and that he had severed all ties with law enforcement. He was specifically questioned and answered as follows:
“Q. And when you were' working for the Black Panther Party were you also working for law enforcement at the same time?
“A. No.
“Q. You had severed any ties you had with law enforcement?
“A. That’s correct.
“Q. Have you at any time since leaving the Sheriff’s Department worked for the FBI or the CIA?
“A. No.
“Q. Are you now working for the FBI and the CIA?
“A. No.”
Petitioner contends that Butler committed perjury and that this circumstance necessitates a reversal of his conviction. The record before the court contains a statement by Butler (not made under penalty of perjury) dated November 17, 1979, denying that he was ever an FBI informant. Also before us is a letter dated January 16, 1980, written by Acting Director Lee Colwell of the FBI to our Attorney General transmitting to that office what is described as “40 pages of documents which set forth contacts between the FBI and Julius Butler.” The letter, of course, is not in affidavit form nor are the single-page reports of the contacts furnished by the Bureau anything but hearsay. There is apparently, however, no dispute that these pages were produced by the FBI from their files. These memoranda establish initial contact by the FBI and Butler on August 14, 1969. The memoranda show that there was discussion regarding the possession of a Thompson machine gun by Butler and FBI interest in maintaining contact with Butler. The major *895subject of conversation was the Black Panther Party and these memoranda show some 33 contacts between Butler and the FBI from August 14, 1969, to April 28, 1972, during which he supplied information to the FBI about the Black Panther Party in Los Angeles.
Of additional interest is a Los Angeles FBI document summarizing a five-month surveillance of petitioner between January 29, 1969, and May 23, 1969, which includes a report (pp. 12-13) of a Black Panther Party meeting in Gardena. The informant’s name has been blacked out but the word “Julius” is handprinted at the top of page 13. The explanation of the reference to “Julius” is provided in a letter dated January 16, 1980, from acting director of the FBI Lee Colwell to the State Attorney General, George Deukmejian.
“In response to the question as to the reason ‘Julius’ appears at the top of Page 13 of a Los Angeles report dated June 2, 1969, on Pratt, which was furnished to you by Congressman McCloskey, the name appears for FBI indexing purposes. The meeting referred to on Page 13 of this report was held at the residence of Julius Butler early in 1969, and while he was not the source of the information contained on this page of the report, his name was marked for indexing at FBI Headquarters as ‘Julius Carl Butler.’ However, in the Xeroxing process only ‘Julius’ remained on the copy furnished to you.” From these documents it is apparent that Butler supplied the FBI with information about the Black Panther Party in Los Angeles from at least August 14, 1969. While there may be semantic distinctions regarding what criteria defines an “informant” and about what constitutes “working for” the FBI, the memoranda indicate that Butler was, in some instances, described therein as a “PRI” which, translated, means a probationary racial informant.
In my view, Butler’s status as an informant was a material fact which could have affected his credibility at the Pratt trial. His status as determined at an appropriate evidentiary hearing would be relevant as to his interest in testifying truthfully or falsely. (See People v. Ruthford (1975) 14 Cal.3d 399 [121 Cal.Rptr. 261, 534 P.2d 1341], where the court reversed the conviction of the defendant because the fact that the key prosecution witness had a motive to lie was kept from the jury. The court felt this was not harmless beyond a reasonable doubt.)
There is nq evidence befqre this ccurt that the prcsecutcr Deputy District Attorney Richard Kalustian knowingly suppressed Butler’s re*896lationship, whatever it was, with the FBI. He has denied, under oath, that he had any knowledge of FBI involvement in the Pratt prosecution. Good faith, however, is immaterial here. (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218-219, 83 S.Ct. 1194].) And, as was explained in People v. Ruthford, supra, 14 Cal.3d 399, 407, quoting Napue v. Illinois (1959) 360 U.S. 264, 269 [3 L.Ed.2d 1217, 1221, 79 S.Ct. 1173]: ‘“The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.’”
Petitioner has, in my view, made a sufficient prima facie showing of possible perjury on the part of Butler to warrant further inquiry.
Ill
The Record Before the Court Indicates That Certain Information Which May Have Affected the Jury’s Decision Was Not Revealed to Petitioner.
A. The Petitioner May Have Been a Target of Cointelpro
During the period of petitioner’s arrest and trial it appears that he may well have been, as petitioner contends, a principal target of the FBI’s counterintelligence program (Cointelpro). That program was covert and aggressive and utilized informers and secret campaigns with the objective it seems, of discrediting the petitioner. Three documents serve to illustrate the point. A memorandum from the special agent in charge (SAC) of the Los Angeles field office to the FBI director, with the date January 28, 1970, is. captioned, “Counterintelligence Program, Black Nationalist—Hate Groups, Racial Intelligence, BPP.” The memorandum proposes the creation of an anonymous underground newspaper “to attack, expose, and ridicule the image of the BPP in the community and foment mistrust and suspicion amongst the current and past membership.” It also proposes the creation and distribution of two fake leaflets, one of which was to be directed at petitioner. On page 2 the memorandum states: “Operation Number One is designed to challenge the legitimacy of the authority exercised by Elmer Gerónimo Pratt, BPP Deputy Minister of Defense for Southern California.”
*897The second document is a report regarding the petitioner’s activities from May 6, 1969, to June 21, 1970, which states: “Constant consideration is given to the possibility of the utilization of counterintelligence measures with efforts being directed toward neutralizing Pratt as an effective BPP functionary.”
The third document is an Airtel from SAC Los Angeles to the FBI director dated August 10, 1970, which recommends that the FBI send fake letters to Huey Newton upon his release from prison charging that during Newton’s absence BPP members were “brutalized and mistreated” by Pratt and one David Hilliard, the BPP national chief of staff. The objective of the letters proposed was to split the BPP and to turn Newton against Pratt and Hilliard.
If, in fact, the petitioner was an object of such a program as Cointelpro that information would have been relevant and material to the jury. At the time of trial, if this information had been made known to the petitioner, it might have profoundly affected the outcome of the trial. An evidentiary hearing might well determine the truth or falsity of the charge that petitioner was a target and, if so, determine if that information was, in fact, suppressed.
B. The Percipient Witness Olsen May Have Made a Prior Positive Identification of Other Subjects.
Petitioner alleges that Kenneth Olsen prior to trial positively identified a man named Ranald Perkins, who had no facial scar, as the man who shot his wife and identified another man named Vance as his accomplice. This purported identification took place on December 24, 1969, at a police lineup. This assertion is based upon the declaration by Los Angeles County Deputy Public Defender Lawrence E. Rivitz who was representing Perkins. Allegedly the witness slip which was signed by Olsen to this effect was withheld from petitioner.
Inasmuch as the only percipient witness, Kenneth Olsen, positively identified petitioner at the trial as the shorter of his two assailants, such a witness slip, it seems to this observer, if it existed was material, and relevant evidence which the prosecution should have provided the de*898fense during discovery. Its importance is emphasized in that Olsen’s partial testimony at trial regarding the lineup was:
“Q. Were you able to identify anybody at that lineup?
“A. ... I didn’t feel I could really make an identification of that person, because I didn’t feel, really, that it was the person.” This testimony directly contradicts the strong statement by Rivitz in his declaration that the Olsen identification of Perkins and Vance was positive. An evidentiary hearing is required to make a factual determination regarding the event. Since the jury of necessity had to evaluate the credibility of Olsen’s identification, such information regarding a prior identification would have been material. Denial of an evidentiary hearing by this court has the effect of a finding that if Mr. Olsen did make the identification as alleged, this ID is not substantially material evidence, or is substantially material evidence which was harmless beyond reasonable doubt. In my view such a finding is erroneous. We note parenthetically that the issue of the Rivitz declaration was raised in 1972 at a motion for new trial in the context that Kenneth Olsen had perjured himself at the trial. The motion was denied on the basis of due diligence because defense counsel should have known that Rivitz was present at the lineup [under the authority of United States v. Wade (1967) 388 U.S. 218 (18 L.Ed.2d 1149, 87 S.Ct. 1926),] and had an opportunity to ascertain if he would controvert Mr. Olsen’s version of the identification. The issue posed here is different. The declaration raises an issue not previously litigated that the state, through the police department and, or the district attorney’s office, suppressed material evidence; to wit, the witness slip. It is, therefore, not res judicata nor the subject of collateral estoppel.
C. The Name of a Second Suspected Assailant May Have Been Uncovered, Revealed to the Los Angeles Police Department, but Not Revealed to Petitioner.
Before the court also is a document which indicates that on or about March 29, 1971, the FBI provided to the Los Angeles Police Department the name of a person (deleted) that the FBI apparently believed was the second person involved in the Santa Monica shooting. The defense attorney Johnnie Cochran, by his declaration of July 18, 1980, *899asserts that he was never provided this information and that Richard Kalustian, the prosecutor, advised him that he possessed no information regarding the second assailant. There is no question but that evidence regarding a second assailant’s identity is evidence directly bearing upon the issue of guilt or innocence. The precise nature of the information regarding this second suspect, whether or not it was provided to the district attorney and whether further investigation regarding that suspect was undertaken is, at this time, unknown to petitioner. It is manifest, indeed, that an evidentiary hearing directed at discovering the specifics of the information and its materiality is in order. If the information is substantive and material and was withheld from the petitioner, then due process was denied him. The majority by ruling against an evidentiary hearing hold as a matter of law that whatever the evidence regarding the other possible assailant may be, it cannot constitute substantially material evidence which, if suppressed, would be grounds for reversal. Such a position defies logic inasmuch as knowledge of the identity of the second assailant would in most probability provide insight into the identity of the other assailant, be it petitioner or someone else.
D. Exculpable or Inculpable Evidence May Have Been Uncovered by Telephone Surveillance and Not Revealed to Petitioner.
Petitioner further charges that the government “has concealed and withheld” evidence “corroborative, in part, of petitioner’s alibi defense.” Pratt’s defense at trial included his assertion that he was in the San Francisco Bay Area from December 13th, 14th or 15th, 1968, to December 26, 1968. He testified that while in northern California he called the Los Angeles Black Panther Party’s main office on a daily basis. Clearly, reliable evidence regarding petitioner’s whereabouts on December 18, 1968, is the most compelling evidence that petitioner could obtain. Before the court are two documents indicating radio and telephone surveillance of BPP headquarters from November 15, 1968, to December 20, 1968. There are two other pages of memoranda which show that the FBI maintained an interest in the activities of Black Panthers in Oakland, California in December 1968. The memoranda have been released with the usual deletions which render the information contained therein practically unintelligible. If, however, telephones were tapped, it is conceivable that the records will either confirm or refute *900the petitioner’s contention that he was in northern California at the time of the murder. Certainly, in my view, this potentially excylpable or inculpable evidence should have been provided to the petitioner’s defense counsel. The FBI has indicated (not by affidavit) that the transcripts of the conversations recorded by these telephone taps have been lost or destroyed. An evidentiary hearing will provide an opportunity to determine if they are inextricably lost, or if they can be produced or reconstructed. It seems most apparent that such information is relevant and material.
In summary, from the evidence presented to this court one can conservatively and reasonably conclude that (1) Mr. Olsen may have positively identified other people as his assailants prior to the trial and that this information may have been kept from the petitioner; (2) the LAPD probably were given the name of a person suspected of being one of the assailants of the Olsens and this was not revealed to the petitioner; (3) telephone and/or radio “taps” on BPP headquarters in Los Angeles and/or Oakland were in existence for a month prior to and including the date of the murder and this information was not provided to petitioner, and (4) the FBI may have targeted the petitioner for “ neutralization” prior to his trial.
Suppression of evidence favorable to an accused by conduct which is attributable to the state is sufficient ground for reversal of a conviction. People v. Ruthford, supra, 14 Cal.3d 399. The rule of Ruthford is that if evidence which bears directly upon the question of guilt or innocence is suppressed, the defendant is not required to establish prejudice to himself due to the denial of the opportunity to present the evidence, and reversal of the conviction is mandated. {Id., at pp. 406-407.) It is apparent that the alleged suppression of information relating to the possible identity of the second assailant and the knowledge of the LAPD, if indeed they had such knowledge, of the existence of the telephone taps would come under this rule. Ruthford, further holds that if the suppressed evidence bears upon the credibility of a key prosecution witness (Kenneth Olsen and Julius Butler) then the defendant must establish substantial materiality and, in addition, that he was prejudiced by his lack of ability to present the evidence at trial. {Id., at p. 408.)
I am not dissuaded at this point by the argument that acts by federal agents, if unknown to state authorities, cannot fall under the umbrella of Ruthford because it is not conduct attributable to the state. In my *901view an evidentiary hearing is required to determine the degree, extent and nature of the relationship and cooperation which existed, if it did, between the state authorities and the federal authorities with regard to each of the issues raised herein. Upon a showing of a federal-state liaison as to any of the issues, knowledge of information in the possession of one should, in fairness, be imputed to the other, whether or not actual knowledge was possessed by the prosecuting authority. (See United States v. Antone (5th Cir. 1979) 603 F.2d 566, 569-570; People v. Mejia (1976) 57 Cal.App.3d 574, 581-582 [129 Cal.Rptr. 192].) In the Mejia case the defendant was arrested concurrent with two Mexican nationals. The latter were turned over to immigration and were deported. The defendant’s motion to dismiss on the ground of unavailability of the deported witnesses who, by the facts of the case, were in a position to testify to matters material to the defense was granted and upheld on appeal. The reasoning of the court was that had the state authorities informed Mejia of the pending deportation of the witnesses before it occurred, he could have subpoenaed them and held them available for trial. The court rejected the argument that the state was in no way involved with the deportation of the witnesses. The court held that where there was cooperation between the state and federal authorities the responsibility for the deprivation of a constitutional right had to be shared. (Id., at pp. 581-582.)
Being cognizant of the many problems inherent in the position that an evidentiary hearing should be granted, but being equally mindful of the crucial issue of assuring that due process was exercised in this case, I urge that further exploration is required here. For it is due process which protects not only the personal freedom of each individual, but the collective rights of those in a free society.
The petitioner having made a prima facie case for the alternative relief requested by his writ of habeas corpus, a judge of the superior court should be appointed as referee to hold an evidentiary hearing including the taking of evidence and allowance of such discovery as is necessary and fair in the exercise of sound discretion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-536 [113 Cal.Rptr. 897, 522 P.2d 305]; Pen. Code, § 1474.) Inquiry should be made and findings of fact rendered regarding, but not necessarily limited to the following issues:
1. Did any government entity have an informant or informants present during any communication between petitioner and his attorney *902or any other individual regarding petitioner’s defense either before, during or subsequent to the trial?
2. If such an informant or informants existed, is the government agency prepared to disclose the identity of such informant, and, if "not, why not?
3. If the said informant’s identity is disclosed and the informant is examined under oath, under what conditions, at what places and on what dates was the informant present and what information was reported regarding the communications and to whom and when?
4. Was Julius Butler an informant for the Federal Bureau of Investigation prior to giving testimony at petitioner’s criminal trial? Did Butler testify accurately or falsely at petitioner’s trial with regard to his status or relationship with the FBI, and if not, what constituted his motivation for false testimony?
5. Was the petitioner a subject focused on for “neutralization” by Cointelpro prior to his trial in 1972?
6. Was there a state-federal relationship of any kind regarding the prosecution of petitioner? If so, what was the nature of that relationship? What information, if any, was transmitted by any federal agency to any state agency regarding the petitioner?
7. Was there another individual suspected of involvement in the crime of which petitioner was accused? If so, was any information regarding such person transmitted to any state agency? What steps, if any, were taken to pursue to a resolution this information? If no investigation was undertaken, why not?
8. Did the witness Mr. Olsen identify any other person or persons as the assailant(s) prior to his testimony at trial? If so, what were the par-" ticulars of that identification?
9. Has any governmental agency withheld from petitioner evidence regarding petitioner’s whereabouts during the period December 18, 1968, through December 26, 1968? Is there presently in the possession of any governmental entity information regarding petitioner’s whereabouts during these dates?
*903The procedure of an evidentiary hearing must be taken to resolve the question of whether there was governmental impropriety which resulted in a denial of due process to the petitioner herein.
A petition for a rehearing was denied December 30, 1980. Dunn, J.,* was of the opinion that the petition should be granted.
Appendix a
Following is a typed copy of the nine-page letter handwritten in red ink which was contained in the sealed envelope given by witness Julius C. Butler aka “Julio” to Sergeant Duwayne Rice on August 10, 1969, but which was not opened until October 20, 1970 (grand jury exh. No. 32). The envelope had written on the back “Attn: Sgt. Rice.” Across the sealed portion of the envelope was printed in capital letters by hand: “Only to be Opened in the event of my Death” followed by the initials “J.B.”.
“Aug 10, 1969
“To All Concerned Persons;
“At the time of this writing I’ve been working and living under the threat of assination [szc] by Local and National Leaders of the Black Panther. Namely Bobby Seale, (Chairman of the Black Panther Party) Elmer G. (‘Gerónimo’) Pratt, (Dep. Minister of Defense, So. Calif. Area), John (‘Long John’) Washington (So. Calif. Field Sec., Rank of Major), Rodger (‘Blue’) Lewis (Body-Guard and Assasin, Rank of Capt.) Omar (In Charge of Goon Squad, Locally).
“At one time I held the position of So. Calif. Security Lt. (Responsible for safeguarding Lives of Persons Attending Rallys [sz'c] and Events.
“During the year of 1969 I began to notice the party changing its direction from that set forth by Huey P. Newton, and dissented with some theorys [szc] and practices of the So. Calif. Leadership. During the months of June and July 1969 I more strongly critisized [sz'c] these Leaders, because I felt they were carelessly, and foolishly doing things that didn’t have a direction benificial [sz'c] for the people. I also critisized [sic] the Physical Actions or threats to Party members who were attempting to sincerly [sz'c] impliment [sz'c] programs that oppressed people could Respond to. First I was Relieved of all duties and offical [sic] working capacities. The following week, Just Prior to the Oakland Conference for a United front, while I was drinking and talking to four male friends, the door bell rang, at which time I let in Gerónimo, Long John and Omar. A Heat [sz'c] discussion grew out of the fact I still Refuse [sic] to Adhere to this New gang Like Direction and was order [sz'c] shut up, at which time Long John Drew a Rugers Black Hawk 357 magnum and cocked it to full cock and pointed it at my Head, then Gerónimo shouted several times ‘shoot him, if you don’t shoot him, I’ll shoot you.’ At this time my four visiting male friends told them, If they shot me they would have to deal with them and other people in the building who had seen them arrive.
“They then withdrew from the Building.
“I immediately set about arming myself for the crisis I knew wasn’t over. I then telephone [sz'c] the main office and informed them I was immediately withdrawing from the Black Panther Party. I attempted on several occasions to contact the Northern Leadership and inquire if they had knowledge of the situation here in Los Angeles. The first time I was able to contact any one I was answered By John Washington (‘Long John’) who was answering the Phone at the Residence of David Hillard [¿7c] (Chief of Staff). Almost immediatly [sz'c] I Received Death threats from Long John and Geroni*904mo, also persons on the streets (who Had Relationships with the party) who advise [íz'c] me of a [ízc] impending Danger to my life, their Knowledge came from hearing Long John, Blue, Gerónimo say I was just like Capt. Franko and that the party was go: ing to kill me. On one occasion I Listened in on a phone conversation from my second Phone while a disgruntled-member or I should say supporter of the Party asked ‘Long John’ why the Party was going to kill Julio.
“1 heard ‘Long John’ state ‘Julio is a pig., He is Receiving ‘$1,200.00 per month from the C.I.A. and the Los Angeles Police Dept., That they Had evidence proving my badge number and Rank in the C.I.A.’ He Also stated I was the man who killed Capt. Franco, and I was the man Responsible for the Deaths of ‘Bunchy’ Carter and John Huggins at UCLA And that the order was out to Kill me, to save the people’s Liberation struggle. And that I Had put the ‘Feds’ on Omar’s trial [ízc] and He was in Hiding (which I had no Knowledge of.)
“I’ve Continually Received calls by persons unknown ‘such ás you’re a Dead man,’ ‘you know too much and must die.
“I call [íz'c] Bobby seel [íz'c] in Oakland and was unable to talk to Him, several Hours later He called my Home and said that I was foul for Hanging up the Phone on Gerónimo, I stated to Him I was writing a position paper directing His attention to the situation Here in Los Angeles and the Death threats I Received from Gerónimo and others. And that I was a man dedicated to principles and not gang-land Activities. He told me that any paper I wrote would be put in the Trash can. And I was ordered to get $18.00 together, catch a plane and bring my ass to Oakland. I declined by stating if he understood and condoned what was going on in Los Angeles, the whole conversation was futile and why a one-way Airline ticket. He simply Laughed and said ‘you got the message’ and I hung the phone up.
“The Following Day I contacted Sgt. D. Rice of the Los Angeles Police Dept. Community Relations Sec. I met with Him and I informed Him of the situation and that [ízc] was also advised by Gerónimo that [ízc] I went to Jail or the Penitentery [íz'c] They would get me there.
“The following Reason I feel the Death threat may be carried out. Through Listening to Breggado [íz'c] conversation with these men, myself and other persons Have Reasonable cause to believe these persons were Responsible for Acts of murder they carelessly Bragged about. [11] No. 1: Gerónimo for the Killing of a White School Teacher and the wounding of Her Husband on a Tennis Court in the City of Santa Monica some time during the year of 1968. [II] No. 2: Gerónimo and Blue being Responsible for the Killing of Capt. Franco (Black Panther Party) in Jan 1969 and constantly stating as a threat to me that I was just like Franco and gave them No Alternative but to ‘Wash me Away.’
“I can not [íz'c] Afford to testify to this in court because this Letter Represents the only Real Protection I have for my family.
“All the Above Statements Are True and done by my own Hand, and of my own free will.
“Julius C. Butler
“AKA: Julio
“/s/ Julius C. Butler”
(Original italics.)
*905APPENDIX B
(Not for Publication)
[Crim. No. 22504.
Second Dist., Div. Four.
Feb. 1, 1974.]
THE PEOPLE, Plaintiff and Respondent, v. (Super. Ct. No. A-267020) ELMER G. PRATT, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Parker, Judge. Judgment of conviction, affirmed; sentencing procedure reversed, and case remanded for resentencing.
Saltzman and Goldin and Martha Goldin for Defendant and Appellant.
Evelle J. Younger, Attorney General, Edward A.-Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
DUNN, J.—By Grand Jury indictment, defendant was charged with five felonies, i.e.: (Count I) murder of Caroline Olsen on December 29, 1968,1 in violation of Penal Code section 187, (count II) robbery of Kenneth Olsen on December 18, 1968, in violation of Penal Code section 211, (count III) robbery of Caroline Olsen the same date, in violation of the same code section, (count IV) assault on Kenneth Olsen the same date, with intent to commit murder, in violation of Penal Code section 217 and, (count V) conspiracy to commit robbery the same date, in violation of Penal Code section 182, subdivision 1. As to this latter crime, three overt acts were alleged; as to the first four counts, it was alleged that, in committing the crimes, defendant used a firearm, namely, a revolver and an automatic pistol. Defendant was apprehended and arraigned, pleading “not guilty.” During the trial, count V was dismissed on the prosecution’s motion. A jury found defendant guilty of murder, fixing it in the first degree; found defendant guilty of both robbery counts, fixing each in the first degree, and it also found defendant guilty of assault with intent to commit murder, as charged in count IV. As to each count, it was found that defendant used a pistol. Defendant’s motion for a new trial was denied and defendant was sentenced to state prison on each of the four counts, the sentences on counts II, III and IV to run concurrently with that of count I and the sentence on count III to be stayed, the stay to become permanent if defendant’s conviction is sustained on appeal.
Defendant’s notice of appeal states that his appeal from the judgment is on three grounds, i.e.: (1) Penal Code section 1181, (2) Insufficient evidence,2 and (3) error of law. The statutory ground stated relates only to new trials and to requests for modification of the verdict or judgment. No separate appeal lies from a court’s ruling denying a new trial motion (Pen. Code, § 1237), although the ruling may be “reviewed” on appeal from the judgment. (Pen. Code, §§ 1237, 1259.) Accordingly, any separate appeal, if such is intended, based upon the court’s ruling on the section 1181 motion, is dismissed._
*906I. Error Claimed in the Court’s Denial of Defendant’s Motion to Discharge Petit Jury Panel
Defendant’s first contention is that the trial court erred in denying his motion, heard June 1, 1972, to discharge the petit jury panel. This motion attacked the method by which trial juries were selected in the central district of the Los Angeles County Superior Court. The crimes charged against defendant all occurred in the City of Santa Monica; the prosecution offered and moved to have defendant’s case transferred there for trial (the Los Angeles superior court’s “west” district) but defendant resisted the motion and declined the offer. The prosecution’s motion was denied by the court which then heard defendant’s motion. It was agreed between counsel that defendant is a Negro and that, in deciding the motion, the court would read the transcript of a similar motion made by a Negro in another case, namely, People v. Adams, Los Angeles Superior Court No. A-276392, the evidence received in that case on that motion to be considered as received here.
Although defendant attacks the court’s ruling, he does not provide us with the transcript mentioned; its content does not appear in the record before us nor was it marked as an exhibit. However, the Adams case was considered by a sister division of this court in Adams v. Superior Court (1972) 27 Cal.App.3d 719 [104 Cal.Rptr. 144] and its opinion summarizes the evidence there received. That case involved a jury selected county-wide to try a Negro defendant for“crimes committed in the central district. In our case it should be noted, the crimes occurred in another district but, since defendant insisted that his trial take place in the central district, no question of “vicinage” (People v. Jones (1973) 9 Cal.3d 546 [108 Cal.Rptr. 345, 510 P.2d 705] is raised. Indeed, since the petit jury here apparently was selected county-wide, there is no reason to conclude that prospective jurors from the Santa Monica area were excluded?
Defendant argues the petit jury selection method was arbitrary, denying him his constitutional rights to equal protection and due process. However, the appellate decision in Adams v. Superior Court, supra, 27 Cal.App.3d 719, determined these issues directly contrary to defendant’s contentions. Defendant’s only response to such outcome is to say that the court was wrong. We do not think so nor, apparently, does our Supreme Court which denied a hearing in that case and in two companion cases, all on November 9, 1972. (Sandoval v. Superior Court (1972) 27 Cal.App.3d 741 [104 Cal.Rptr. 157]; People v. Superior Court (Bowen) (1972) 27 Cal.App.3d 738 [104 Cal.Rptr. 159].) Accordingly, defendant’s contention is rejected.
Defendant made two other pretrial motions, namely, a motion under Penal Code section 1538.5 to suppress evidence, and another motion to suppress an in-court identification of defendant, expected to be made by Barbara Reed. Both motions were heard out of a jury’s presence and both were denied; defendant contends these rulings were erroneous.
II. Error Claimed in the Denial of Defendant’s Motion to Suppress Anticipated In-court Identification of Defendant by Barbara Reed
Regarding the second motion Mrs. Reed testified, out of the jury’s presence, that on December 18, 1968, she was alone in her hobby shop in Santa Monica. Shortly before closing time at 8 p.m. o’clock, two Negroes entered her store and were in there approximately five to eight minutes. Defendant Pratt, who was in court, was identified by Mrs. Reed as the shorter of the two men who entered. She described him as being about 5’-6” tall, weighing approximately 155 pounds, being clean shaven, having a *907short haircut and having a depressed scar above the bridge of his nose. She stated that he wore brown pants, light brown shoes and a long, loose, tan jacket which she called a “safari” jacket. She talked to him face to face.
On two occasions before coming to court she had been shown collections of photographs by the police, which collections included two pictures of defendant.' She testified: “Q. . .".tell us whether.. .not seeing those photographs you could have identified Mr. Pratt today? A. Yes. ... I could have identified him today.”
Defendant objected in the trial court (and objects here) that the photographic identification procedure was impermissibly suggestive and not fair. Mrs. Reed gave testimony to the effect that, nearly two years after the incident and just before she testified in front of the grand jury, Santa Monica police officers showed her approximately 16 photographs in an album. Toward the end of the book were two photographs which she identified. Defendant Pratt was the person shown. Prior to showing her the photographs the police told her only that they had some photographs they would like her to look at, to take her time and see if she might recognize the man or men in her store that night.
Approximately a month before that meeting with Santa Monica police, she had seen police in downtown Los Angeles. She had told them about the incident, described the defendant and was shown a photograph album, preceded by similar admonitions. The men in these photographs were not all Negro: “Some were mixed. It was a mixture of pictures." She testified that, before seeing these, she had “retained a general impression of the appearance of the men that had been at [my] store,” but, as to the “short one, I could just picture his entire face, his entire person in my mind.” He had a deep, round scar above the bridge of his nose which directed her attention to his face. Of the two photographs of defendant shown to her, one was a profile view and thus did not show the scar. The other photograph was full view, but the camera was too far away to show the scar. She did not identify defendant in the photographs by the scar.
The two photographs of defendant shown to her in Los Angeles were identical with the two photographs shown to her in Santa Monica. She testified she did not recognize the other photographs in the Santa Monica album as having been seen before in Los Angeles.
The photographs exhibited to her at the grand jury hearing depicted a number of male Negroes. A height chart appeared in each photograph. These apparently showed that defendant and only one other man were under six feet tall, but Mrs. Reed testified she had paid no attention to the height charts when she was shown this group of photographs.
Portions of our opinion in People v. Adair (1969) 2 Cal.App.3d 92, 96 [82 Cal.Rptr. 460] are pertinent. There, we referred to People v. Pettersen (1968) 268 Cal.App.2d 263, 267-268 [73 Cal.Rptr. 693], which quoted from Simmons v. United States (1968) 390 U.S. 377 [19 L.Ed.2d 1247, 88 S.Ct. 967] as follows: ‘““Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that *908each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden'tification.””’ (Also see People v. Lawrence (1971) 4 Cal.3d 273, 278-279 [93 Cal.Rptr. 204, 481 P.2d 212].)
The procedure used here was not “impermissibly suggestive” as contended by defendant. We conclude the trial court neither abused its discretion nor ruled erroneously on defendant’s motion.
III. Error Claimed in Denial of Defendant’s Motion to Suppress Evidence
Defendant’s motion to suppress evidence, directed toward a pistol, a photograph of it and “everything that was obtained from the search of that house,” was based upon a contention that such prospective evidence was obtained by means of an illegal search and seizure. It was stipulated that no search warrant had been issued. Five witnesses testified for the People. None were called by defendant.
John Naveau, a California state policeman, testified that he was assigned to duty on the campus of UCLA, in an undercover capacity to penetrate subversive groups there. He was a member of “SDS” and “Friends of the Black Panther Party,” two such groups. Joe Brown, a member of the “Black Panther Party,” previously had informed him reliably regarding various campus activities. On January 17, 1969, John Huggins and “Bunchy” Carter, two “Black Panthers,” were shot and killed'on the campus. Joe Brown told Naveau they had been killed by members of “US,” a group with an outlook similar to that of the Black Panthers. He also told Naveau that Black Panther members were going to Huggins’ house to get weapons and retaliate against not only US but also against Los Angeles police officers, whom they believed “had set this murder up.” The house was located at 806 Century Boulevard. Naveau telephoned to give this information to his immediate superior, to the Los Angeles Police Department and to the state C.I.I.
Former Los Angeles police detective lieutenant Keel testified he was present about 4 p.m. on January 17, 1969, when information was received about the killings and about the Black Panthers going to the two-story rear house at 810 Century Boulevard to gather weapons to retaliate (806 and 810 were on the same lot).
Police officers Lucy, Baker and Finn testified, in summary, that at about 4:10-4:15 p.m., the afternoon of January 17, 1969, Lieutenant Keel informed them of the double-murder of the two Black Panther members and that other members were going to the rear house, at 806 West Century Boulevard, to get guns stockpiled there in order to retaliate. The officers went to the premises.
A blue Volkswagen was seen to arrive and a female alighted; she went up the stairway and entered the second floor of the rear house. A station wagon drove up, stopped in the driveway and someone alighted. Next, a man and the same female emerged from the top of the stairway, the man carrying a large cardboard box and an army ammunition box. The woman carried a rifle partially concealed under a coat, its stock protruding. They put these things in a Chevrolet automobile and drove off", but were stopped a few blocks away by the police. Just before the car stopped, its driver had intentionally ignored the display by an officer of his badge and his command to stop; the officer finally produced his service revolver. The car stopped; these two persons got out of the car and were given a pat-down search. The woman had a loaded .45 caliber *909automatic pistol tucked into her waistband, together with two loaded pistol clips of .45 caliber ammunition in her purse. The rifle was seen on the automobile’s floor. The cardboard box also was there. It had no top on it and observation of it showed that it contained additional ammunition cans. A search of the vehicle disclosed another rifle, considerable ammunition, gas masks, medical supplies and miscellaneous equipment.
The three officers returned to the house. A woman came down the stairs, apparently saw one of the officers, screamed and ran back upstairs. A male Negro (Nathaniel Clark) was observed standing by the open driver’s door of the station wagon, holding a rifle and a suitcase. Defendant Pratt was seen on his hands and knees on the ground on the passenger’s side of the vehicle, apparently hiding and trying to “sneak down past the side of the car to the door.” The police asked him if there was anyone in the house and he replied, “Yes”; he then was asked, “‘Do they have guns in there?”’ and again answered, “Yes.” Defendant Pratt and Clark were handcuffed and laid on the ground. Thereafter, Clark was observed reaching toward a .45 caliber automatic pistol which was seen tucked into his waistband. The officers took this gun away from him. People in the house then were ordered to come out and four women emerged, one with a young child. The officers were not at all certain that no more people were inside, or if they were armed. Officers entered the house; officer Finn explained, “Well, my reason for entering was to insure the safety of myself and the other officers in that immediate area. This building being a two-story building, being used for the apparent purpose that it was, and being occupied by militant people, members of a militant organization, it was only reasonable for me to be in fear and assume that there were other people still there, and that the location did contain arms and ammunition.”
A room at the bottom of the stairway was first entered and was found-to be empty of people. Upstairs, rooms were searched for people and, again, no one was found. However, a gun and its clip (subjects of the motion to suppress) were seen in plain view on top of a table, as shown in the photograph (also involved in the motion). Officer Finn testified on cross-examination that he did not know any of the persons he saw; that from the conduct of Pratt and Clark, he believed they intended to attack the officers; that “previous occurrences with this organization made me very fearful”; that although he did not know of any of the persons, “I know many members of the Black Panther Party and what they are capable, of doing.” In general, he testified, he was fearful of persons in this organization. He believed that the women who came out of the house, after the police order, were involved in a “conspiracy to commit ADW against another militant organization.”
A warrantless search is prima facie unreasonable, requiring the prosecution to justify it. (Horack v. Superior Court (1970) 3 Cal.3d 720, 725 [91 Cal.Rptr. 569, 478 P.2d 1]; People v. Haven (1963) 59 Cal.2d 713, 717 [31 Cal.Rptr. 47, 381 P.2d 927].) Defendant contends the police were bound to seek and to obtain a warrant and they did not do so, rendering their entry into the house unreasonable. We disagree. Defendant’s theory is that some of the officers could have gone for a warrant, leaving other officers in place to prevent entry into or exit from the establishment. In retrospect, perhaps, the officers could have done this, but it did not reasonably so appear to the officers whose presence there had become known to the suspected occupants of the house. So far as the officers knew, militant, armed and dangerous persons remained inside; indeed, there was testimony that officers sought concealment and protection against weapons which might be fired from inside. To demand that an officer expose himself to possible fire in order to go and secure a warrant, under these circumstances seems unreasonable, not only as to any departing officers but, also, as to any officers remaining.
Entry into the house without a warrant was not unreasonable. True, entry was not justified as being incident to the arrest of the two persons in the Chevrolet several *910blocks away. Likewise, the arrest of Clark and of defendant did not justify entry, inasmuch as they were arrested at a place remote from the interior of the house. However, entry does appear justified by circumstances of emergency, i.e.: there had been a double-murder; immediate, violent retaliation was in prospect; there was more than reasonable ground to believe that any persons remaining inside the house were planning retaliatory action. Quick action by police was required reasonably to prevent this impending violence. We conclude the police acted properly. People v. Block (1971) 6 Cal.3d 239 [103 Cal.Rptr. 281, 499 P.2d 961], although factually distinguishable, expresses reasoning which is applicable to the present case, as does People v. Sommerhalder (1973) 9 Cal.3d 290, 305-306 [107 Cal.Rptr. 289, 508 P.2d 289], Although no one actually shot at the officers here, they had reason to believe this could occur; they knew weapons were being transported and they had been told weapons were stored there; they had been told retaliation against “US" was planned and also was planned against Los Angeles police officers. Penal Code section 844 is inapplicable under the circumstances.
The pistol was not discovered in the house as the result of a search. It was in plain sight. (Dillon v. Superior Court (1972) 7 Cal.3d 305, 310 [102 Cal.Rptr. 161, 497 P.2d 505].) The only question is: was its seizure justified? We recognize that no law prevents a person from possessing a loaded pistol in his home. (Pen. Code, § 12026.) A pistol is not “contraband” in the same sense, for example, that illegal narcotics are. Here, however, the police officers reasonably believed the persons who appeared when ordered out of the house and any persons remaining inside had conspired to commit assault with a deadly weapon—a felony (Pen. Code, § 182) committed in the officers’ presence. Inasmuch as such expected assault was to be committed with deadly weapons, seizure of the pistol and its photographing were lawful. If any persons were in the house, it would have been foolhardy for the officers to permit them access to the pistol.
The order denying defendant’s motion to suppress evidence was properly within the court’s legal discretion.
IV. Defendant's Contention that Barbara Reed’s In-court Identification of Defendant Was Inherently Improbable, Depriving Defendant of a Fair Trial
Mrs. Reed’s testimony before the jury parallels the testimony she gave outside of their presence, as already summarized. She positively identified defendant in court, describing him as the shorter of the two men, approximately as she had before. In addition, she testified that about 8 p.m. the night of December 18, 1968, she was busy, in her hobby store addressing Christmas cards, and waiting for her husband to arrive. It was near closing time. Defendant and another man entered the store. She walked over to serve them. Defendant asked if she had any materials with which to build a doll house for his wife and she said she did not as she and her husband were just moving into the premises. The men were in the store about five to seven minutes altogether, then went outside. Mrs. Reed closed and locked the door, turning an “open” sign so as to read “closed.” Soon she heard voices outside and observéd the two men again, standing just outside the door. The taller man had a gun; the shorter man rattled the doorknob and said, “Let us in.” She immediately went toward the rear of the store intending to telephone the police but the two men departed.
Mrs. Reed’s husband testified that he drove toward the store that night at approximately 8 p.m. and stopped for a traffic signal located at the intersection nearest to it. While stopped there, he observed two Negroes shaking the handle of the shop’s door. *911He drove on, circling the block and, while doing so, saw the same two Negroes hurrying along the street and turning into a parking lot. He did not see them again. Although he could not identify either of the two men, one of them wore a “safari” jacket, from which fact he concluded the men were the same he had seen in the doorway of his hobby store.
Kenneth Olsen testified that the night of December 18, 1968, he and his wife went to the Lincoln Park tennis courts in Santa Monica at about 8 p.m. to play tennis with another couple whom they expected to meet there. No one else was at the courts when they arrived. (It was stipulated the hobby store is about four blocks south of the tennis courts. They put a coin in the light meter there and it turned the court lights on. Two male Negroes, armed with a .45 caliber automatic pistol and with a .38 caliber snub-nose police revolver, walked up, pointed the pistols at them and told them to put up their hands, demanding their money “or we’re going to burn you.” Olsen positively identified defendant Pratt in court as one of the two men. These two men told the Olsens to lie down on the court surface, took from them a wallet and purse containing money and started out the gate of the tennis court. They then turned and fired their pistols at the supine Olsens. Mr. Olsen was struck five times by bullets; his wife also was struck several times. The two men then left, having been there about five minutes. Both Olsens were conscious. Olsen went to get help. His wife died in the hospital about 10-11 days after the assault. (See fn. 1.) Olsen thereafter was shown photographs by the police on a number of occasions also attending lineups.
Although defendant contends the identification evidence was inherently improbable and should be disregarded for that reason, no motion to strike the testimony was made. No objection was made in the trial court to its relevancy nor was it made a ground of defendant’s motion for new trial. Accordingly, we are not asked to review any trial court action and determine if any rulings were erroneous. We are asked to find that the evidence was inherently so improbable as to merit no credence. We have reviewed all of the evidence relating to identification and have concluded it was not so improbable as to require, as a matter of law, that it be disregarded.
V. Defendant’s Contention the Court Had a Duty, and Failed in Its Duty, to Instruct the Jury, Sua Sponte, That the Eyewitness Identification Testimony Should Be Viewed With Caution
Defendant argues that, despite the language of Penal Code section 1096a,3 whenever a defendant justifiably requests an instruction outlining an area of specific doubt it must be given in a proper case. Defendant relies upon People v. Roberts (1967) 256 Cal.App.2d 488 [64 Cal.Rptr. 70] wherein the court stated (p. 493): “However, it has been held that where an additional reasonable doubt instruction which points up the theory of the defense is requested, it is error (notwithstanding Pen. Code, § 1096a) to refuse to give it.” In our case, although no such instruction was requested, defendant would make it the trial court’s duty to prepare and read such an instruction to the jury. Defendant cites us to the many cases requiring a court to instruct, sua sponte, on "the general principles of law relevant to the issues raised by the evidence” (see, e.g. People v. St. Martin (1970) 1 Cal.3d 524, 531 [86 Cal.Rptr. 166, 463 P.2d 390] and defendant contends that the inherent improbability of the identification testimony, coupled with the alibi testimony of his witnesses, made such an instruction a requirement. How*912ever, it is our view that the identification testimony, although subjected to the usual attack on cross-examination, nevertheless was clear and positive. It was not, as defendant claims, a “general principle” in this case that the identification testimony was suspect. If defendant had desired such an instruction it was incumbent upon him to request it. Its absence does not create reversible error and defendant’s contention in this respect is rejected.
VI. Defendant’s Contention That the .45 Caliber Automatic Pistol Found at Huggins' House Was Not Connected With Defendant and Was Irrelevant, Its Admission Into Evidence Being Prejudicial
Defendant contends there was no evidence that the .45 caliber automatic pistol, seen on the table at 806 Century Boulevard and seized by the police, was his gun; and, therefore, evidence of ballistic comparisons between test cartridges fired in it and shell casings and bullets found at the tennis court should have been excluded. At the trial, defendant voiced a similar objection and was overruled after the People had made an offer of proof.
Defendant contends the overruling of his objection was prejudicially erroneous. He correctly points out that a motion made under Penal Code section 1538.5 goes only to claimed unlawfulness of a search and seizure, so that he need not earlier have objected on the ground of claimed irrelevance.
We examine the evidence. If, as defendant claims, the gun should not have been admitted, we may ask if defendant was prejudiced by the ruling, or is defendant arguing that, absent the gun, the evidence was insufficient to support his conviction? If the latter is what defendant is arguing, then his professed abandonment of the ground of insufficient evidence seems to stand in the way. (See fn. 2.) Be that as it may, we conclude there was sufficient circumstantial evidence to justify the drawing of the inference that the gun was one used by defendant.
Thus, Mitchell Lachman testified that on the night of December 18, 1968, at 8:15 p.m., he saw a couple enter the tennis courts. A short time thereafter he heard shots fired and observed two “youthful” Negro men run very fast from the tennis courts and enter a dark red convertible automobile, with a white top, which sped away. He did not notice the autombile’s license number but did observe that its license plates had dark numerals on a white background. He testified that these plates were similar to North Carolina plates for the year 1968 which were admitted into evidence and shown to him in court, and that the car was similar in appearance to one shown to him in the photographs, also received in evidence. He testified that he saw the man, whom he had seen earlier walking into the courts with a female, leave the courts holding his head and trot into the Broken Drum restaurant across the street. Lachman followed him into the restaurant and also went back to the tennis courts where he saw the woman again.
Police officer Plasse testified he went to the tennis courts the night of December 18, 1968, observed Mrs. Olsen lying there, saw considerable blood and recovered spent shell casings on the courts, also recovering “slugs” (i.e., bullets) from the surface underneath and near Mrs. Olsen.
Police officer Higgins testified he had stopped defendant on April 12, 1969, when he was driving a red Pontiac automobile with a white convertible top and equipped with a California license plate. It was stipulated that: records of the states of California and North Carolina showed that on October 3, 1967, Pratt had purchased a 1967 Pontiac convertible automobile in North Carolina, being assigned a North Carolina license *913plate; the automobile had a red body and a white top; it entered California on September 6, 1968; on March 27, 1969, California issued license plates for the car and new plates again were issued for it on September 4, 1969. It was further stipulated that photographic exhibits Nos. 11 and 12 showed the same car. It was further stipulated that a slug removed from Mrs. Olsen, together with spent shell casings found at the scene by police officer Plasse, were delivered to the crime laboratory of the Los Angeles police department.
On January 17, 1969, John Huggins and “Bunchy" Carter were shot and killed at UCLA; police officer Lucy testified that he was sent that day to 806 or 810 West Century Boulevard. There he saw a Pontiac station wagon, which appears in photographic exhibits Nos. 23 and 24, and there he first saw defendant Pratt sprawled on the ground on the passenger side of that vehicle. He asked Pratt if there were people in the house and if there were guns in there and Pratt answered, “Yes” to both questions. Police officer Finn testified that, on that same date, he entered the house where he observed the loaded .45 caliber automatic pistol lying on a table top next to a loaded clip.
Julius Butler, a hair stylist, testified that he became a member of the Black Panthers in early 1968 and knew defendant Pratt, who was a bodyguard for “Bunchy,” holding the “rank” of “lieutenant." (Pratt became a “Deputy Minister of Defense" after Carter was killed.) Defendant Pratt usually was called “Gerónimo” by his fellow Black Panthers. On the night of December 18, 1968, Pratt told Butler he was “going out on a mission" and introduced Butler to another Negro, “Tyrone,” who was taller than Pratt. Butler next saw Pratt later on that night, after midnight. Pratt was nervous. He told Butler he had shot some people in Santa Monica but didn’t know if he had killed them. Butler read a newspaper account of the shooting in Santa Monica the next day. Later that same day he saw defendant Pratt, showed him the newspaper and Pratt said that was what he had told him about the night before. In response to Butler’s questions Pratt said his car, which Butler described as a red Pontiac convertible with a white top, was “hid out,” that he was the one who had shot the people as Tyrone “couldn’t shoot” and that he had destroyed the barrel of the gun; Butler testified Pratt did not say what kind of gun he used but that Pratt “usually carried a .45 automatic.” Later on, Butler told Pratt that a newspaper article reported a .45 caliber gun had been used. Pratt replied that he wasn’t worried as he had disposed of the gun barrel. Butler testified that several, but not many, other members of the Black Panthers carried .45 caliber automatic pistols.
DeWayne Wolfcr, a ballistics expert, testified that, on comparing test cartridges fired in the .45 caliber automatic with the casings found at the tennis courts, it was his opinion both were fired from the same gun, and only from that gun. As to the bullets or “slugs,” however, he could not fully match striation marks on them, leading him to conclude either that the gun barrel had been changed or the gun had been fired excessively since its firing on the tennis courts.
We think the foregoing evidence, summarized as it must be so as to favor the judgment, is adequate to justify all inferences necessary to establish that defendant used the .45 caliber automatic pistol found at the West Century Boulevard address in shooting the Olsens.
VII. Defendant's Contention That a “Prejudicial Atmosphere" Prejudiced the Jury and Deprived Him of a Fair Trial
Defendant insists that “outside influences” precluded the jury from acting fairly, arguing that a “repressive atmosphere” surrounded the trial. Defendant cites us to no *914instance wherein he requested a mistrial because of such an alleged situation. Indeed, on the one occasion mentioned in his brief, defense counsel merely requested the court to admonish the jury and the court did so, leaving us to speculate what further action, if any, defendant now has in mind. Although defendant’s brief argues in florid and imaginative terms about an “armed camp” and about the possible effect upon the'jurors of alleged news reports of othfer criminal trials then, or shortly before then, in progress no record of such appears. We reject defendant’s contention.
VIII. Defendant’s Contention That the Court Made Erroneous Rulings on Evidence, to His Prejudice
Defendant contends that police testimony, regarding his presence at the house on West Century Boulevard, was admitted over his objection and tended only toward proof of “guilt by association.” We disagree and reject the argument.
He further contends the trial court erred in admitting, over his objection, testimony regarding Butler’s delivery of a letter to a friend, police officer Rice, the envelope containing which said “To be opened only in case of my death.” Rice testified Butler told him he felt he was “going to be killed.” There was no evidence of the letter’s content. The testimony was admitted by the court as falling within Evidence Code section 1250, subdivision (a)(2).
Whether the court’s ruling was, or was not, error we need not decide since we conclude defendant has not shown that any miscarriage of justice resulted from the testimony’s admission (Cal. Const, art. VI, § 13; Evid. Code, § 353).
IX. Defendant’s Contention That the Court’s Denial of His Motion for a New Trial Was an Abuse of Its Discretion
Defendant contends the trial court was required to grant his motion for a new trial because he had discovered two new witnesses whose expected testimony would tend to impeach the testimony of two prosecution witnesses, Julius Butler and Kenneth Olsen. We have reviewed the record in this respect and disagree. The trial court did not, as a matter of law, abuse its discretion.
X. Defendant’s Contention the Trial Court Failed to Use Its Discretion in Sentencing Him
Defendant’s argument here is that he was under 23 years of age when the crimes were committed on December 18, 1968, (although he admittedly was 24 years old at the time he was sentenced) and the court erred in refusing to exercise the discretion given to it by Penal Code section 1202b.4
The record shows that defendant’s attorney asked the court to consider sentencing defendant pursuant to this code section, but the prosecutor argued against use of the *915section, contending that the section excluded “offenses which carry life or death punishment.” The court commented “I think, Mr. Cochran [one of defendant’s attorneys], that the court’s hands are pretty well tied as far as sentence is concerned in this matter.”
In People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], our Supreme Court earlier that year, on February 18, 1972, had decided that California’s death penalty statute was unconstitutional under California’s Constitution. It appears from the Penal Code that first degree murder is also punishable by life imprisonment (Pen. Code, § 190). There is parole eligibility after seven years (Pen. Code, § 3046), but use of a firearm (Pen. Code, § 12022.5) adds another five years’ minimum to the seven years just mentioned. Accordingly, if the trial court had seen fit to fix a cumulative minimum term of six months, as allowed by Penal Code section 1202b, defendant could have benefited from it.
The trial court did not expressly state that its hands were tied because of the wording of the code section, although that may be inferred. While, under the evidence as established by the verdicts in this case, we find it difficult to conceive that any trial judge would exercise the discretion granted by this code section, we cannot substitute ourselves into the trial judge’s robes.
The judgment of conviction is affirmed; as to the sentencing, the case is reversed and remanded, the trial court being directed to resentence defendant giving due consideration to the prerogative given to it by Penal Code section 1202b.
NOT FOR PUBLICATION
Jefferson (Bernard), Acting P. J., and Kingsley, concurred.
APPENDIX C
UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF INVESTIGATION WASHINGTON, D.C. 20535
March 10, 1980
Honorable Paul N. McCloskey, Jr.
House of Representatives Washington, D. C. 20515
Dear Congressman McCloskey:
At our meeting on January 23, 1980, you asked for copies of certain documents. In addition, you requested permission to inspect all FBI files reviewed by our Pratt Task Force, and to interview certain current and former Bureau employees. Finally, you asked us to prepare a summary of the January 23 briefing. This letter responds to your requests.
*916First, you asked for the following documents:
* the portion of the Pratt trial transcript setting forth Butler’s denial that he worked for FBI;
* portions of FB.1 manuals setting forth the operative definitions of probationary racial extremist informant during 1969-1972;
* the quotation from the January 23, 1971, article in the Black Panther Party (BPP) Magazine that was read to .you during our meeting (we do not have copies of the magazine); and
* the FD-302 report on the August 19, 1969, interview of Dwaine [m'c] Rice by FBI Agents.
I have enclosed all of these documents, except for the FD-302 report on Dwaine [s/c] Rice. Since the release of that document may vilate Mr. Rice’s rights under the Privacy Act, we cannot furnish it to you at this time. We have reviewed the document, however, and it does not support Mr. Rice’s allegations.
Next, you asked for authority to inspect all of the files that were reviewed by our Task Force (thousands of pages, located at Headquarters and the Los Angeles and San Francisco Field Offices), and to interview all current and former Agents who were involved in the Pratt case or the counterintelligence program (COINTELPRO). Although I appreciate your interest, long-standing Department of Justice policy precludes consideration of such broad requests unless they are the result of formal Committee action.
Finally, in response to your request, I asked the members of our special Pratt Task Force to prepare a written synopsis of the material disclosed to you in the January 23 briefing. I have enclosed a copy of that synopsis.
Sincerely,
/s/ William H. Webster Director
Enclosures (4)
1 - Honorable Don Edwards (Enclosures 4) .
1 - Honorable Richardson Preyer (Enclosures 4) 1 - Counsel (Enclosures 4)
Office of Professional Responsibility 1 - Assistant Attorney General (Enclosures 4) Office of Legislative Affairs 1 - Assistant Attorney General (Enclosures 4) Criminal Division
*917UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF INVESTIGATION WASHINGTON, D.C. 20535 Synopsis Of Pratt inquiry
History of Task Force
On April 6, 1979, Congressman McCloskey wrote to the Director expressing an interest in the case of Elmer “Gerónimo” Pratt, a former BPP member who was convicted of a 1968 murder. His letter asked the Director to “institute an internal FBI investigation of the Pratt case to determine whether there is any evidence in the files to indicate the possibility of Pratt’s innocence or doubt as to Pratt’s guilt?”
Pursuant to Congressman McCloskey’s request, a search for records was conducted at FBIHQ, Washington, D. C., and at the Los Angeles and San Francisco Field Offices. The search followed regular FBI searching procedures, which rely to a very large extent on a card index. The records retrieved by this search and information received from certain Special Agents, constituted the factual basis upon which a July 12, 1979, letter to Congressman McCloskey was prepared. This letter was a good-faith effort to respond to his inquiry based upon the information received as a result of our normal retrieval process.
In a letter dated September 21, 1979, Congressman McCloskey expressed dissatisfaction with the July 12, 1979, letter.1 The Director met with him on September 26, and agreed to take a new look at the impact of COINTELPRO (the counter-intelligence program) on the Pratt case. Accordingly, the Director ordered the formation of a special Task Force.
Task Force Methodology
The Task Force reviewed all FBIHQ files relating to Elmer Pratt and his known associates to determine if the FBI had any information concerning Pratt’s trial and conviction for the “Tennis Court Murder” that should have been made available to the court. This file review far exceeded normal file review procedures. Ordinarily, as in the initial Pratt inquiry, a search covers only indexed references. Here, however, the Task Force reviewed, page-by-page, line-by-line, all files that may have contained relevant information, even if there were no indexed references to Pratt. A similar file review was conducted by the Task Force at the San Francisco and Los Angeles Field Offices. In addition, the Task Force reviewed the Los Angeles County prosecutor’s files and the trial transcript in the Pratt case.
Events Leading to Conviction
On December 18, 1968, Dr. Kenneth Olson and his wife Caroline were robbed and shot on a Santa Moiiica, California, tennis court. Caroline Olson died as a result of the wounds she received.
*918In January of 1969, Alprentice Carter and John Huggins, members of the BPP, were shot and killed while attending a meeting of the Black Student Union at the UCLA campus. Afterwards, members of the BPP congregated at John Huggins’ house. The Los Angeles Police Department (LAPD) conducted a search of the Huggins’ home and found numerous weapons and explosives. As a result, the LAPD arrested many of the persons found inside the house (including Pratt) and interviewed many others who had been congregated outside (including Butler).
In view of the mandate from the Attorney General to the FBI to “use the maximum resources” in the investigation of civil disorders,2 the Los Angeles Office of the FBI opened a substantive investigation on each of the individuals present at the Huggins’ house. As was the standard procedure in this type of case, the Field Office investigated each subject’s background and then secured Bureau (FBIHQ) authority to interview him. In April of 1969, Pratt was interviewed. He was uncooperative and denied any BPP affiliation.
In August of 1969, FBIHQ authorized an interview of Julius Butler. After being advised of his rights and refusing to sign a waiver of those rights, he was interviewed. Butler stated the reasons for his resignation from the BPP. He further stated that on resigning from the BPP, “Gerónimo” Pratt threatened him, telling him that his (Butler’s) life was in danger. Butler said he hung up the phone on Pratt and was not afraid because he (Butler) had written- a letter that would put certain members of the BPP “in the gas chamber.” He said the letter was in the hands of an unnamed friend of his. The Los Angeles FBI determined Butler had a friend named Dwaine [szc] Rice, a Community Relations Officer for the LAPD, who had received an envelope from Butler containing a letter to be opened in the event of Butler’s death. Agents of oúr Los Angeles Division interviewed Rice in August of 1969. He admitted he had the letter but did not turn it over to the FBI. The FBI did not receive a copy of the letter until November 1970, when the LAPD opened it and sent a copy to our Los Angeles Field Office.
Pratt became the subject of an FBI Unlawful Flight to Avoid Prosecution investigation in September of 1970, because of his failure to appear in local court on charges stemming from a BPP shootout with the LAPD on December 8, 1969.
On December 4, 1970, a local sealed indictment was returned at Los Angeles, California, charging Pratt with the “Tennis Court Murder.” This indictment was apparently based on Butler’s letter and additional investigation.
Pratt was arrested by FBI Agents in Dallas, Texas, on December 8, 1970, on the Unlawful Flight to Avoid Prosecution charge.
Pratt’s conviction for the “Tennis Court Murder” was apparently based on the following evidence:
* The victim’s husband, Dr. Olson, who was shot during the robbery, identified Pratt as the murderer.
* A shopkeeper testified that Pratt was in the vicinity of the tennis courts where the murder occurred, at the time of the murder, with a gun.
*919* A vehicle fitting the description of Pratt’s vehicle, as to make, model, color, and color of out-of-state license plates was seen in the vicinity of the tennis courts at the time of the murder.
* Julius Butler testified that Pratt admitted committing the murder.
* LAPD firearms analysis matched shell casings found at the murder scene with a weapon found near Pratt at the time of his arrest at John Huggins’ house in January of 1969.
* The State’s identification witnesses said the murderer was clean shaven. The defense contended that at the time of the murder Pratt had a beard, and it produced a Polaroid photograph of Pratt with a beard to prove the point. The State countered with an expert from Polaroid who testified that the film in question was not made until six months after the photograph was supposedly taken.
Notification of California Authorities
On November 20, 1979, Pratt filed a writ of habeas corpus in California state court. The Task Force’s review of FBI files identified three pieces of information uncovered during the inquiry that are arguably relevant to that petition.
1. Pratt contended that Julius Butler, a primary prosecution witness, was unreliable because he was an FBI informant, and that Pratt was denied a fair trial because the jury was not aware of Butler’s relationship with the FBI. The Task Force found documents delineating Butler’s connection with the FBI.
2. Pratt asserted that the FBI knew he did not commit the murder because he was under constant FBI surveillance at the time. The Task Force found documents containing information derived from an apparently illegal local wiretap indicating Pratt’s whereabouts a few days after (but not on the day of) the murder.
3. The Task Force found indications that an FBI informant(s) may have been present at meetings at which Pratt’s attorneys and associates discussed legal defense strategy.
These matters were promptly discussed with the Office of Professional Responsibility and the Criminal Division of the Department of Justice (DOJ). The Department’s Office of Professional Responsibility did not consider this a matter for their attention. The Criminal Division advised, after review, that California authorities prosecuting the Pratt matter should be advised of the information recently located by the FBI. Two FBI Agents and a DOJ Attorney traveled to Los Angeles and gave oral briefings on all three issues to Andrea Ordin, United States Attorney, on December 11, 1979; John Van De Kamp, Los Angeles District Attorney, on December 12, 1979; and Michael Nash, Deputy State Attorney General, on December 13, 1979. Each of these briefings was given after the Bureau received assurances that the material disclosed would remain confidential (except for in camera disclosures to the California court). The California State Attorney General’s Office advised that it was handling Pratt’s habeas *920corpus petition, and in view of the new information contained in the FBI briefing, it would need time to decide on a course of action. On December 17, 1979, Michael Nash contacted the FBI and made a formal request for all FBI documents on which the briefing was based; he indicated that the California State Attorney General’s Office planned to oppose Pratt’s petition despite the new information. Mr. Nash was informed that some of these documents may not be available because they are classified, but that the FBI had no objection to an in camera inspection of the documents by the Judge.
Subsequently, Mr. Nash was told that certain FBI documents, including forty (40) pages setting forth FBI contacts with Julius Butler, and two (2) pages indicating Pratt’s whereabouts in late December, 1968, could be made available to him. In order to protect the identities of any FBI informants, Mr. Nash agreed that a summary concerning the defense camp information would suffice. These documents were provided to Mr. Nash and the California court for review, prior to Pratt’s habeas corpus hearing on January 18, 1980. Following the hearing, the court denied Mr. Pratt’s petition.
Julius Butler
Both Pratt and Congressman McCloskey maintain that Julius Butler was an FBI informant, that this taints Butler’s incriminating testimony, and that Pratt was denied a fair trial because the jury was not aware of Butler’s relationship to the FBI. The Task Force determined that for a time Butler was evaluated as a “probationary informant.”3 More important, FBI files establish that the Bureau neither paid nor otherwise compensated Butler for testifying against or providing information about anyone. Butler’s letter incriminating Pratt was delivered to Sergeant Rice of the LA PD before Butler had any contact with the FBI, indicating that the FBI had nothing to do with Butler’s testimony in the Pratt trial.
Finally, the assertion that Butler was a law enforcement informant is not new. Defense counsel was aware that Butler was a Los Angeles Sheriffs Deputy before he *921joined the BPP, so at the trial he asked Butler whether he “severed [his] ties.. .with law enforcement” and whether “since leaving the SherifFs Department [he] worked for the FBI or the CIA?”4 Butler responded that he had severed his ties with the SherifFs Department, and he denied “working” for the FBI or the CIA. In the new trial motion, defense counsel again raised the issue, contending that Butler was a paid LAPD informant and part of a LAPD conspiracy against Pratt. The motion was denied. And still again, in Pratt’s recent habeas corpus petition, defense counsel alleged that Pratt was denied a fair trial because of Butler’s role as an informant. After reviewing pertinent FBI documents, the court denied Pratt’s petition.
Local Wiretap
Pratt contends he was under FBI surveillance at the time of the murder, and that Bureau records show that he was not at the scene of the crime. Pratt was not under surveillance by the Bureau. However, FBI records include information about Pratt’s whereabouts based on an apparently illegal local wiretap. These records indicate that “Gerónimo” arrived in Oakland on December 20, 1968, was still there on December 23, and was hiding from someone.5 Thus, while FBI records place Pratt in the Oakland area in late December, 1968, they do not establish an alibi for him on December 18, 1968.6
These records were not previously located because they were not indexed to Pratt at FBIHQ. In fact, it appears that at the time the records were made our San Francisco Division was unaware of Pratt’s identity as “Gerónimo.”
Defense Meetings
In the late 1960’s and early 1970’s, the FBI conducted a substantive investigation of the BPP. As part of this investigation, a number of informants reported on activities of BPP members including Pratt and his close associates. The Task Force discovered that on a few occasions an FBI informant(s) may have been present at meetings in which the following subjects were discussed:
* Pratt’s unhappiness with one of his lawyers;
* alleged problems with the FBI’s arrest of Pratt in Texas;
* Pratt’s interest in finding witnesses who.would testify that Butler had a grudge against him;
* possible approaches to the defense summation in the Pratt trial, and possible strategies in an appeal if Pratt were convicted; and
* the effectiveness of the testimony of certain trial witnesses.
The significance of this discovery must be placed in perspective. First, the Task Force was unable to determine whether the FBI informant(s) was actually present at these meetings or merely heard about the discussions later. Second, the records indicate that attorneys were actually present at these meetings on only a few occasions. Third, *922and most important, while a number of reports refer to meetings at which strategy was discussed, the reports do not—with one exception—elaborate on the nature of the strategy. The reports merely state that the topic of defense strategy was discussed. The one exception is the report that Pratt wanted witnesses to testify that Butler had a grudge against him, and in that case, there is no reason to believe that the report was based on a meeting involving an attorney. Finally, there is no indication in the records that the Bureau disseminated any of this information (to the local prosecutors or otherwise) until the December, 1979, briefings of California authorities.
Because these findings suggested the possibility that FBI informants may have been involved in meetings at which defense strategy was discussed, however, the Bureau immediately notified the Department of Justice and appropriate California authorities.7 The California authorities, in turn, notified the court hearing Pratt’s habeas corpus petition. The court, after reviewing this information, rejected Pratt’s petition.
COINTELPRO
Pratt’s attorneys assert that “Pratt was a target and a victim of the FBI’s counterintelligence program,”8 and that as a result of COINTELPRO, he was denied a fair trial. The Task Force found no evidence of any COINTELPRO action designed to influence Pratt’s trial. Nor is there any evidence—Pratt’s attorneys’ cited none—establishing that the Bureau framed Pratt or anyone else.9 Instead, Pratt’s attorneys argue that the Bureau’s attempt to alienate Pratt from other BPP members10 (as part of a general effort to “foment mistrust and suspicion among the current and past membership”11) “directly led to the loss of witnesses at his trial.”12 Pratt’s attorneys are unable to produce any witnesses who were dissuaded from testifying, however, and their contention is belied by the trial transcript, which establishes that BPP members and leaders testified in behalf of Pratt. In any event, this wholly speculative contention was presented to the California court that denied Pratt’s petition for habeas corpus.
Miscellaneous ■
1. A typed June 2, 1969, report on Pratt’s efforts at a meeting to encourage BPP members to retaliate against “US” contains the handwritten notation “Julius” at the top of the page. This led Congressman McCloskey to the mistaken conclusion that Julius Butler was the source of the information. The meeting referred to was held at Julius Butler’s residence in early 1969, and his name was marked on the page for indexing purposes. But Julius Butler was not the source of the information contained in the report.
2. Johnnie Cochran, Pratt’s former defense attorney, and now an Assistant District Attorney for Los Angeles County, has represented that he believes Pratt is innocent of the “tennis court” murder. Mr. Cochran’s views, however, are diametrically opposed to the official opinion of the Los Angeles County District Attorney’s Office. District At*923torney John Van De Kamp stated in a December 21, 1978, letter to the State of California Community Release Board (responding to Cochran’s letter):
It is disconcerting to me that apparently competent professionals are considering the possibility of Mr. Pratt’s innocence... unless they possess information not furnished to me, this office, or the Marin County Deputy District Attorney assigned to Mr. Pratt’s hearing.
In closing, I wish to make it clear that this office does not concur in Mr. Cochran’s personal views in this matter. On the contrary, we are of the firm belief that Mr. Pratt should not be released.-
Task Force Conclusions
The Task Force did not uncover any information that tends to exculpate Pratt of the 1968 “Tennis Court Murder.” It found no indication that the FBI had Pratt under surveillance on December 18, 1968, the day of the murder. Nor did it find any information supporting Pratt’s alibi that he was not in Los Angeles at the time of the murder. Finally, it found no evidence to corroborate Pratt’s argument that his trial and conviction were the result of COINTELPRO.
APPENDIX D Not to Be Published
[Crim. No. 21638. Second Dist., Div. One. Apr. 22, 1974.]
THE PEOPLE, Plaintiff and Respondent, v. (Super. Ct. Nos. A-253348
consolidated with A-253349 and A-254028)
ELMER G. PRATT and WILLIE STAFFORD, Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County. George M. Dell, Judge. Affirmed.
Marvin Zinman, under appointment by the Court of Appeal, for Appellant Elmer G. Pratt.
Albert D. Silverman, under appointment by the Court of Appeal, for Appellant Willie Stafford.
Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, William E. James, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Respondent.
Opinion
LILLIE, Acting P. J.—Following a protracted trial a jury found Pratt guilty of conspiracy to violate Penal Code sections 12220 (possession of machine gun), 12303 *924(possession of destructive devices [bombs, grenades and tracers]) and 452 (possession of firebombs); and Stafford and others not here involved guilty of conspiracy to violate Penal Code sections 12303 (possession of destructive devices) and 452 (possession of firebombs) as charged in count III of a 12-count information. Pratt and Stafford appeal from the judgments.1
Around 5:30 a.m. on December 8, 1969, police with search and arrest warrants, entered the Central Avenue and Exposition Boulevard headquarters of the Black Panther Party and seized a large amount of illegal weaponry. All defendants moved to suppress the evidence (Pen. Code, § 1538.5). At the conclusion of an extensive hearing de novo, the motions were denied as to all but three items and granted as to them. Again Pratt and Stafford challenge the order denying their motions on the ground police unlawfully entered the headquarters.2 The search warrant included a “no knock” provision inserted by the magistrate which the trial court correctly ruled was improper. (Parsley v. Superior Court (1973) 9 Cal.3d 934, 940 [107 Cal.Rptr. 192, 507 P.2d 1400, 55 A.L.R.3d 191].)3 As to the entry, the trial court found there was no compliance with Penal Code sections 844 and 1531 at either location although at Central Avenue headquarters there was an attempt to comply (there was no substantial compliance because of insufficient time delay between the warnings and break in); and as to the legality of the entry, it found that police were excused from complying with Penal Code section' 1531 at both locations because the circumstances existing at each at the time of entry were such as to lead police to reasonably believe they would meet with physical resistance, and for their own protection it was necessary to enter without knocking. We find sufficient substantial evidence on the motion to support the trial court’s finding that exigent circumstances made an immediate police entry imperative, and compliance with section 1531 was excused. (People v. Gale (1973) 9 Cal.3d 788, 792 [108 Cal.Rptr. 852, 511 P.2d 1204]; People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621]; People v. Waters (1973) 30 Cal.App.3d 354, 359 [106 Cal.Rptr. 293].)
*925Based on defense testimony that the occupants were asleep on the morning of December 8 and police did not identify themselves, Pratt and Stafford argue that they could not assume that those entering were officers in the performance of their duties, and they should have been given time to act upon an official demand for entry. A lengthy hearing at which numerous witnesses testified was had on the motion, and the evidence shows that a great body of information relating to activities of Black Panther members and maintenance of the Central Avenue and Exposition headquarters in latter November up to December 8, was amassed by the criminal conspiracy section, Los Angeles Police Department, through personal observations and surveillance by numerous officers; it established that at the time of entry on December 8 each headquarters was a veritable fortess manned with weaponry and explosives, and that Black Panther members literally were at war with police.
From the latter part of November up to December 8, police were aware of extensive sandbagging and barricade work being done at both Central Avenue and Exposition Boulevard headquarters—they were heavily barricaded with sandbags, plywood and bed springs were nailed across the windows, and gun ports revealed military fortifications. Police also knew that Black Panther members were becoming more and more militant and antipolice, and several recent attempts to assassinate police officers had been made; tensions with law enforcement officers were building up; Black Panther members were engaged in activities designed to result in confrontation with police who according to their propaganda literature were “pigs” to be killed; and police had seen “coloring books" which illustrated for children ways in which to kill a police officer.
Various confrontations between police and Black Panther members had been reported,4 among them a November 28, 1969, incident between Lieutenant Morton and George Young and Paul Redd. Around 1 p.m. on November 28 Lieutenant Morton in plain clothes visited Central Avenue headquarters at the request of Lily Smith, owner of a clothing store next door, on her complaint that Black Panthers were using a loudspeaker in a loud and offensive manner that could be heard in her store and disturbed her customers, and to ask them to turn down the volume; he opened the screen door to what appeared to be a place of business, entered, identified himself as a police officer to Young seated at a desk and asked to speak to him; Young picked up a .45 automatic pistol and pointed it at him ordering him to “get out"; Redd moved to a corner where he picked up a shotgun, and again Lieutenant Morton identified himself and said he would like to talk about the loudspeaker; Young said, “Get out or 1 will shoot” and Redd said, “Yeah, yeah,” holding a shotgun; Young then thrust the .45 automatic toward Lieutenant Morton approaching within eight feet and said, “Get out or I will shoot”; again he identified himself and stated his purpose but Young said he would count to three and shoot; Young counted to “three” whereüpon he said, “Don’t shoot, cool it,” and left. That night (Nov. 28) police passing Central Avenue» headquarters reported they observed Elmer Pratt at a window on the second floor pointing a machine gun at them. In early 1969 Pratt had been arrested twice—one case involved a pipe bomb and stick of dynamite, the other, a handgun growing out of a killing of two Panthers at UCLA; Pratt told police he was going to get even with them for causing him to be handcuffed and was going to kill them.
*926Continuing from latter November through December 8 an armed guard was stationed on the roof of Central Avenue headquarters; persons armed with rifles were seen at Exposition Boulevard headquarters which had been named after Walter “Toure” Pope who had been killed in the gun battle with police in an attempt to assassinate several officers. Young, a Marine, had been in the brig around this time for theft of weapons from Camp Pendleton; one of the guns taken was a machine gun, and police saw a machine gun at Central Avenue headquarters. One Williams reported that the Exposition Boulevard location was a Black Panther headquarters and he had been inside and seen six or seven firearms (handguns, rifles and shotguns) and six pipe bombs; the place was fortified with sandbags up and down stairs and there had been a discussion about setting up a trap to shoot police—firing a nearby building to attract officers and then “sniping” them from headquarters. A photograph showed a Panther on the front porch of Exposition sewing a sandbag; later officers saw a male Negro seated on the front porch carrying a rifle in a port arms position. At Central Avenue headquarters persons with shotguns were observed inside; and two officers observed through binoculars four male Negroes behind sandbags in the second story window with an automatic weapon.
Around 5:30 a.m. on December 8, officers wearing distinctive black “SWAT” (special weapons and tactics team) uniforms and/or caps or regulation police hats bearing police emblems (Los Angeles Police Department), police badges and flack jackets or military vests, arrived at Central Avenue and Exposition headquarters. At Central Avenue headquarters Sergeant McGill shouted in a loud voice that they were police, there in response to search and arrest warrants and to “Open the door or we will force entry”; he had been informed the location was heavily barricaded and persons inside would resist violently any attempt to enter; he waited a short time, nothing happened and it was “very quiet,” then he ordered the officers to batter down the door and as they did so he repeated the announcement in a loud voice; just before going over the threshold Sergeant McGill shouted they were “coming in”; as they did so they were met with gunfire from six directions from holes in the walls, fire from machine guns, and hand grenades, Molotov Cocktails and pipe bombs thrown from the building in a battle that lasted five hours; finally police gained entrance through the roof by a jet axe; Stafford and 11 persons were taken, including an armed guard who was a lookout on the roof. Inside of the buildings were pipe bombs, hand grenades, explosives, machine guns, a Thompson submachine gun, a fully loaded carbine, shotguns, a bolt-action rifle, a .45 caliber automatic, two M-14s, firearms of all descriptions, ammunition, materials for making pipe bombs, and in a gun locker various guns being repaired. Immediately before entry on December 8, teams checked the Exposition headquarters and. reported it was still barricaded; Lieutenant Keel at the command post nearby communicated with the units at Central Avenue headquarters by radio and knew of the gun battle taking place. The evening before and around 3 a.m. on December 8 just before going to the locations, all members of the “SWAT” team had been thoroughly briefed; they had been told what to expect and warned of the dangers they would probably face. Expectation became a reality and various officers were wounded in the battle.
“It is settled that noncompliance with the announcement requirements of section 844 of the Penal Code is excusable where there are reasonable grounds to believe that com*927pliance would endanger the arresting officers. (Parsley v. Superior Court, supra, 9 Cal.3d 934, 938; People v. Dumas, 9 Cal.3d 871, 878 (4) [109 Cal.Rptr. 304, 512 P.2d 1208].)” (People v. Bennetto (1974) 10 Cal.3d 695, 700 [111 Cal.Rptr. 699, 517 P.2d 1163]; People v. Tribble (1971) 4 Cal.3d 826, 833 [94 Cal.Rptr. 613, 484 P.2d 589].) “The proposition that unannounced entry may be excused on the basis of information received before reaching the locations at which entry is to be effected, when the information reasonably leads the officer to believe that compliance would increase his peril or frustrate the arrest, has been affirmed more recently in Duke v. Superior Court (1969) 1 Cal.3d 314, 323 [82 Cal.Rptr. 348, 461 P.2d 628], The ability of police officers to rely on such prior information in deciding to effect an unannounced entry is also clearly established by People v. De Santiago (1969) 71 Cal.2d 18, 28-29 [76 Cal.Rptr. 809, 453 P.2d 353],... [H] Thus, compliance with the announcement requirements may be excused where police officers on the basis of previously obtained information, supported by facts occurring on the scene, are aware at the time they approach particular premises to effect entry that they are faced with an emergency situation as defined in our decisions.” (People v. Dumas (1973) 9 Cal.3d 871, 878 [109 Cal.Rptr. 304, 512 P.2d 1208]; Parsley v. Superior Court (1973) 9 Cal.3d 934, 940 [109 Cal.Rptr. 563, 513 P.2d 611].)
In People v. Dumas, supra, 9 Cal.3d 871, in upholding an unannounced forcible entry, the Supreme Court said at page 879: “In the present case, however, the police had reliable information that defendant not only possessed weapons but habitually answered the door armed with a firearm. They could reasonably infer from this activity that a substantial possibility existed he would employ deadly force in order to prevent his apprehension. As the officers approached the location to be searched, they became aware of no further circumstances that would defeat this inference. They could therefore reasonably conclude at the time of entry that they were faced with an emergency and that compliance with the announcement requirements would substantially increase their peril. On these facts we hold that the officers’ failure to comply with section 1531 does not give rise to an application of the exclusionary rule.”
The facts presented here are much stronger than those in Dumas. The situation facing the officers at the time they entered both locations was such that they could reasonably conclude that they were in great personal danger from the occupants who would violently resist their entry, and was more than adequate to show a good faith belief on their part that compliance with sections 844 and 1531 would substantially increase their peril. The real purposes for withholding judicial approval of unannounced police entries in the absence of emergency circumstances are fourfold: “(1) the protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation] ; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations] ; and (4) the protection of police who might be injured by a startled and fearful householder.” (Duke v. Superior Court (1969) 1 Cal.3d 314, 321 [82 Cal.Rptr. 348, 461 P.2d 628]; People v. King (1971) 5 Cal.3d 458, 464, fn. 3 [96 Cal.Rptr. 464, 487 P.2d 1032].) In light of the extensive fortifications of their manned arsenals and the activities of Black Panther members and their relations and encounters with police, appellants can hardly claim in good faith-that they did not know that those breaking down the door and entering (assuming they did not hear Sergeant McGill in the quiet of the early morning shout three times in a voice loud enough to be heard a block away) were police officers acting in the performance of their official duties; and it stretches the imagination far beyond reason to believe that at some time during the ensuing five-hour battle in which they were resisting police entry they did not know they were officers, surrendering only when the police blew a hole in the roof. Black Panther *928members spent weeks barricading the premises against possible police entry and arming themselves for just such an occasion, had an armed lookout stationed on the roof to warn them of intruders, were ready and waiting for the officers and were prepared to meet them with gunfire and did ambush the officers; their advance careful preparation is reflected in the immediate attack on officers by gunfire from six directions from holes in the walls and the number of bombs and Molotov Cocktails thrown out of the building during the battle. There was no real element of surprise involved and the premises, although housing those who worked there in the daytime and accomodating those who kept guard at night, were in fact no private home but an arsenal of deadly weapons located in what appeared to be a place of business in a business area. Under the circumstances defendants hardly fall in that class of “innocent persons” or “individuals in their homes” whose security should not be disturbed, or “fearful householders” who shoot whom they believe to be prowlers.
Likewise without merit is Pratt and Stafford’s claim of error in the trial court’s refusal to give their requested instruction that Melvin Smith, the main prosecution witness, was an accomplice as a matter of law, and in the submission of the issue to the jury.5 Until granted immunity Smith was a codefendant he having taken part in the December 8 battle and been arrested with the others. The theory of the prosecution was that he was a Black Panther cooperating with police after the December 8 battle. Thus the trial judge originally intended to instruct that Smith was an accomplice as a matter of law but the subsequent testimony of Louis Tackwood created “some question as to this for the jury,” and under People v. Hill (1967) 66 Cal.2d 536 [58 Cal.Rptr. 340, 426 P.2d 908], did not give such an instruction because it would imply that he did not believe Tackwood’s testimony: Louis Tackwood was a defense witness,6 and his testimony created a factual conflict as to the “accomplice” status of Smith.
Tackwood, a paid police informer, testified that he had been advised that Smith had been an informant at least in September 1969; in September 1969 Sergeant Farwell showed him photographs of Black Panther members, including Smith, who, Farwell told him, was to be his “contact” in the party; he was to infiltrate the Panthers but *929something came up and he did not meet Smith until July 1971 when he entered the room of the criminal conspiracy section of the police department with Sergeant Ma-honey who introduced Smith, who was working on a building model at the rear of the room, as “Captain Smith”; during various conversations Smith told him he had been working for police for “a long time”; when working for the criminal conspiracy section he was assigned number C-14 and learned Smith had been assigned C-26; the letter “C” referred to criminal conspiracy section. To establish that Smith was an accomplice as a matter of law the evidence on the issue must be undisputed and such that reasonable men may draw but one inference which points unerringly to the existence of such fact. Where the facts are disputed or susceptible of different inferences the question of complicity must be submitted to the jury. (People v. Santo (1954) 43 Cal.2d 319, 326 [273 P.2d 249]; People v. Jones (1964) 228 Cal.App.2d 74, 94 [39 Cal.Rptr. 302].) There is an implication that Smith was a feigned accomplice, thus not a true accomplice; the testimony of an undercover agent or paid informer, and consequently a feigned accomplice (State v. Arriola (1965) 99 Ariz. 332 [409 P.2d 37, 39]), falls outside the ambit of Penal Code section 1111 making it unnecessary to show that it was sufficiently corroborated. (People v. Gossett (1971) 20 Cal.App.3d 230, 234 [97 Cal.Rptr. 528].)
Even had it fairly appeared that Smith was an accomplice as a matter of law, such an instruction in effect would have told the jury that the court did not believe Tack-wood’s testimony thereby invading the province of the jury and unfairly prejudicing defendants. Tackwood, a defense witness, was called for the purpose of attacking Smith’s credibility. Cases of a similar nature in which the trial court was thus compelled to leave the matter of whether a witness was an accomplice to the jury’s determination (People v. Hill (1967) 66 Cal.2d 536, 555-556 [58 Cal.Rptr. 340, 426 P.2d 908]; People v. Cuff (1898) 122 Cal. 589, 591-592 [55 P. 407]; People v. O'Brien (1892) 96 Cal. 171,181 [31 P. 45]; People v. Valerio (1970) 13 Cal.App.3d 912, 924 [92 Cal.Rptr. 82]; People v. Hartung (1950) 101 Cal.App.2d 292, 295 [225 P.2d 614]), although not directly in point, support the trial court’s refusal to give the requested instruction.
Assuming that Smith was an accomplice, Pratt and Stafford contend that his testimony was not corroborated. We find substantial factual support in the record for the jury’s implied finding that either Smith was not an accomplice (People v. Rosoto (1962) 58 Cal.2d 304, 329 [23 Cal.Rptr. 779, 373 P.2d 867]; People v. Santo (1954) 43 Cal.2d 319, 326-327 [273 P.2d 249]; People v. Platnick (1958) 161 Cal.App.2d 313, 320 [326 P.2d 585]; People v. Comstock (1947) 147 Cal.App.2d 287, 292 [305 P.2d 228]) hence one whose testimony need not be corroborated (People v. Gossett, supra, 20 Cal.App.3d 230, 234; People v. Canard (1967) 257 Cal.App.2d 444, 460 [65 Cal.Rptr. 15]; People v. Salazar (1962) 201 Cal.App.2d 284, 287 [20 Cal.Rptr. 25]; People v. Griffin (1958) 98 Cal.App.2d 1, 22 [329 P.2d 930]) or he was an accomplice and his testimony was more than adequately corroborated. (People v. Henderson (1949) 34 Cal.2d 340, 343 [209 P.2d 785]; People v. Trujillo (1948) 32 Cal.2d 105, 112 [194 P.2d 681]; People v. Smith (1970) 4 Cal.App.3d 41, 49 [84 Cal.Rptr. 229]; People v. Griffin (1950) 98 Cal.App.2d 1, 24 [219 P.2d 519].)
Smith told of months of preparation by Black Panther members resulting in the obtaining and storing in both headquarters of various weaponry, including machine guns, bombs, ammunition, etc.,7 and fortifications transforming each into an armed fortress. He testified that Pratt and another ordered fortifications to be made which included *930cutting walls open to a height from the floor and filling them with sand or dirt, and filling sandbags which were placed at strategic points along walls in both buildings; that a tunnel to be used for escape was under construction at Central Avenue headquarters; that Stafford was present and working on the fortifications at both headquarters and on the tunnel at the Central Avenue headquarters; that Stafford designated the guard on the roof of the Central Avenue location on December 8, 1969; and that he (Smith) fled to Texas to avoid prosecution where he met Pratt and Stafford, they discussed their status as fugitives and ultimately were apprehended on December 8, 1970.
The following evidence tends to connect Stafford and Pratt with the commission of the offenses with which they were charged in such a way as would reasonably satisfy the jury that Melvin Smith was telling the truth. (People v. Lyons (1958) 50 Cal.2d 245, 257 [324 P.2d 556]; People v. Johnson (1971) 18 Cal.App.3d 458, 464 [96 Cal.Rptr. 421].) The testimony of various police officers establishes that on December 8, 1969, an armed guard was on the roof of Central Avenue headquarters and arrested after a five-hour battle during which police were met with gunfire, explosives, bombs, and machine guns, and that Stafford was the third occupant to come out of the building and surrender; in Central Avenue headquarters on December 8 were various weaponry including shotguns, machine guns, bombs, ammunition, etc., and sandbags and gun ports as part of the fortifications; walls had been cut to a height from the floor and filled with dirt and sandbags placed along the walls; and a tunnel was under construction with dirt of the same consistency as that in a pile on the floor in another room. As in the case of Central Avenue, Exposition headquarters was fortified by sandbags and contained similar weaponry and explosives. The extensive fortifications and weaponry in Central Avenue headquarters established that it was not an “innocent” place but a fortified arsenal, and the inference is plain that Stafford, who came from the building shirtless, was a night occupant in what amounted to a fortress; he had actively participated in the battle in which fire bombs and pipe bombs were used against police after which he surrendered. Under the circumstances his presence there could hardly be deemed innocent or without knowledge. As to Pratt, officers testified that on November 28, 1969, for about two and one-half hours they observed at the window of the second floor Central Avenue headquarters, illuminated by street lights and a spotlight, Elmer Pratt holding in his hands and pivoting on a sandbag downward toward them on the street a .50 caliber machine gun; that a machine gun was fired from, and pipe bombs and fire bombs were used in the battle at Central Avenue headquarters on December 8. On the issue of intent, an envelope (addressed to Pratt at the Central Avenue headquarters’ address) containing a letter and notes on a bomb fuse and the cost of length per fuse, was found in Pratt’s bedroom when he was arrested on 55th Street; also found in a brief case in the Pratt bedroom were two photographs of his wife, Saundra Pratt, holding a machine gun similar to that found in Central Avenue headquarters; and on April 12, 1969, Pratt was arrested driving a vehicle in which pipe bombs and a piece of paper containing directions on how to construct a bomb were found.
The foregoing “is not insignificant” when added to evidence of defendants’ flight to Texas before the trial began8 where subsequently they were apprehended with Melvin *931Smith. (People v. Hurd (1970) 5 Cal.App.3d 865, 876 [85 Cal.Rptr. 718].) Evidence of flight supports an inference of consciousness of guilt and constitutes an implied admission; flight tends to connect an accused with the commission of an offense and may indicate that an accomplice’s testimony is truthful. (People v. Perry (1972) 7 Cal.3d 756, 771, 778 [103 Cal.Rptr. 161, 499 P.2d 129]; People v. Mulqueen (1970) 9 Cal.App.3d 532, 543 [88 Cal.Rptr. 235].) “[Defendant's flight constitutes an implied admission by conduct and affords an inference of consciousness of guilt, [citation] and constitutes sufficient corroboration under the section. [Citations.]” (People v. Hurd, supra, 5 Cal.App.3d 865, 876.)
The jury was instructed in the language of CALJIC No. 2.04, as modified, that “Evidence that a defendant attempted to persuade a witness to testify falsely may be considered by you as a circumstance tending to show a consciousness of that defendant’s guilt. However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your determination.” Stafford claims that as to him there was no evidence to support the instruction and whatever false testimony was given related only to the 1538.5 motion not to the- trial.
First, the evidence shows the involvement of Stafford. Melvin Smith testified concerning the testimony he gave on the 1538.5 motion “in this case,” that he was arrested on December 8 and taken with others, including Stafford, to Parker Center; “Well, the first day we were arrested, we had started saying what we would say and wouldn’t say, what we would tell the police and wouldn’t tell the police, if anything at all,” and those participating in this discussion were identified (by Smith) as himself, Stafford, Redd and Pharr; sometime later in December or January other conversations concerning their “future testimony” occurred; those present and involved were “Well everyone—all of the males that were at 4115 South Central [Stafford was at Central]” and Houston and Pratt; when their cell doors were unlocked they all got together in the corridor and talked about the case and their testimony; Pratt told them he still ran the chapter even in jail and what he said “still went”; part of the time Pratt gave instructions to Smith as to what to say and another time Pratt and others (Williams, Bryan, Pharr) gave him instructions; “[tjhere was an agreement of what I would say when I got on the stand in court between me and some of the other participants [Pratt, Williams, Pharr, Bryan]”; on numerous occasions at which “everyone was present [those in custody including Stafford],” Pratt and others “instructed” him on “what to say when I got on the stand” and to tell the court that the police started firing machine guns through the skylight and that is what awakened him; another meeting was had on the morning before the preliminary hearing; and he testified on the 1538.5 motion as instructed, as did the others, but his testimony was a lie and it was different than what really happened on December 8. After they were released on bail there were further conversations about how they would testify.
The fair inference from the foregoing is that after their arrest various defendants, including Stafford and Pratt who agreed concerning their own testimony, conspired to have Melvin Smith testify falsely on the motion to suppress, which he did. The conversations were indicative of the purpose of all defendants to fabricate their testimony on the 1538.5 motion, and that they should consider it necessary to have such conversations and agree as to what their testimony would be affords some evidence of a guilty mind. (People v. White (1920) 47 Cal.App. 400, 401 [190 P. 821].) As a result of these conversations Smith falsified his testimony on the 1538.5 motion. Not only is evidence of efforts by a defendant himself to persuade a witness to testify falsely admissible against him but such efforts by a third person are admissible if done in his presence and he authorized the conduct of such third person. (People v. Terry (1962) 57 Cal.2d 538, 566 [21 Cal.Rptr. 185, 370 P.2d 985]; see also People v. Burton (1961) 55 Cal.2d *932328, 347 [11 Cal.Rptr. 65, 359 P.2d 433]; People v. Caruso (1959) 174 Cal.App.2d 624, 641 [345 P.2d 282]; People v. Moore (1945) 70 Cal.App.2d 158, 163 [160 P.2d 857]; People v. Burke (1912) 18 Cal.App. 72, 91-93 [122 P. 435].) Stafford was personally involved in some of the conversations relating to how Smith and others including himself would testify, and most conversations in which Pratt gave instructions were had in the presence of Stafford and nothing indicates Stafford objected either to instructions to Smith or to being told what to say in court. Without merit is Stafford’s further argument that any attempt to persuade Smith to testify falsely was in connection with the rnotion to suppress and not with the trial, thus there was no evidentiary basis for CALJIC No. 2.04.
The evidence supports the giving of the instruction, but if the jury found that Stafford or any other defendant did not attempt to persuade anyone to testify falsely, the instruction would not apply to him because by its very language 2.04 is restricted in application to a defendant who attempted to persuade a witness to testify falsely and to a consideration thereof “as a circumstance tending to show a consciousness of that defendant’s guilt.” Moreover, during Smith’s testimony in this regard the trial judge expressly instructed the jury that if one defendant attempted such persuasion his action could not be imputed to any other defendant but could be considered for whatever weight it might have as to that defendant only and would not be binding on any other.9 Finally, Stafford claims that in giving the 2.04 instruction the court indicated to the jury his commission of another offense, an attempt to commit subornation of perjury. CALJIC No. 2.04, as modified, indicates nothing of the kind. The evidence was admissible and could be considered by the jury for the purpose expressed in the instruction. (People v. Burton, supra, 55 Cal.2d 328, 347; People v. Cole (1903) 141 Cal. 88, 90 [74 P. 547]; People v. Moore, supra, 70 Cal.App.2d 158, 162-164.)
With no serious attempt to set forth the material evidence, Stafford contends that the evidence is insufficient to support the judgment. He argues briefly that although firearms, inflammables and destructive devices were found in the Central Avenue headquarters on December 8, his mere presence there was not sufficient to establish he was a party to any agreement “to go forward with a criminal scheme” and it was no crime to belong to the Black Panther organization, attend its classes or help sandbag the premises.
Stafford was found guilty of conspiring with others to possess destructive devices and fire bombs. “A criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement. [Citations.] It need not *933be shown that the parties met and actually agreed to jointly undertake criminal action. [Citation.] The agreement may be inferred from the conduct of the defendants in mutually carrying out a common purpose in violation of a penal statute. [Citation.]” (People v. Cockrell (1965) 63 Cal.2d 659, 667-668 [47 Cal.Rptr. 788, 408 P.2d 116].) A conspiracy may be. established by direct or circumstantial evidence or a combination of both. (People v. Calhoun (1958) 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Fain (1971) 18 Cal.App.3d 137, 144 [95 Cal.Rptr. 562].) We have assumed the responsibility of reviewing the lengthy trial record which runs in excess of 10,000 pages and, viewing the evidence in a light most favorable to respondent and presuming in support of the judgment the existence of every fact that can be reasonably deduced from the evidence (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649]), we find sufficient substantial evidence to establish all elements of the criminal conspiracy, and that Stafford was not just a member of the party who happened to be present during the battle on December 8 but one who had attended courses in the use of weaponry, helped build fortifications, designated the guard on the roof on December 8, actively engaged in the battle with police personally placing fire bombs and destructive devices and fled the jurisdiction to avoid trial.
The Black Panther Party is a militant organization of which Stafford became a member early in October 1969. From October to December 8 he participated in numerous Party activities. Once or twice a week, mostly at Central Avenue headquarters, he attended “military classes” at which the use of various weaponry (guns and bombs) and different ways to kill (using firearms, bombs and explosives) and ambush and assassinate people were taught, and “political education classes” at which the party’s 10-point program, doctrine and goals such as its revolutionary purposes to spread propaganda and preach violent revolution were discussed by members, including Stafford. A frequent statement made by “every Panther here” (all defendants, including Stafford) was “to get rid of the gun, you had to pick up the gun,” and “a daily thing just about” with Stafford and others was the term “off the pig” or “offing the pig” meaning to kill the police. Weaponry, including guns, bombs and ammunition were kept at all headquarters and “all of the weapons at any of the Panther locations had been or were specifically there for the purpose of killing any policeman that came in the place”; all weaponry belonged to the Party, none to the individual member; on December 8, after the battle, a Thompson submachine gun, assorted firearms, powder, liquid, gas masks, hand grenades, fire bombs, pipe bombs and Molotov cocktails were found in the headquarters. During October and November, up to December 8, alterations and construction changes were made and fortification work was done at both headquarters, and Stafford participated in this work. Once during the time Smith was working at Exposition a small boy wandered into the building and picked up one of the large pipe bombs which he took from him, and report and reprimand regarding this were made to either Houston or Stafford.10 At Central Avenue headquarters in addition to cutting out portions of walls and filling them with dirt, filling and placing sandbags, making portholes, nailing wire mesh and bed frames to windows, a trap door was cut into the floor and a tunnel was under construction; and Stafford worked with others on these fortifications and helped dig the tunnel the purpose of which was thus described by Smith—“too many Panthers had been killed by the police, so that when the police come to 4115 South Central, they didn’t want the people to find anything there but dead pigs, so we were to have the tunnel completed by the time the police got there, so any police arrived there would be killed at the door and we were to take our weapons and escape through the tunnel”; the tunnel had not been completed by December 8. On one occasion a small group of members, including Stafford, met in the tunnel and dis*934cussed whether an enforcer carbine would penetrate bulletproof vests worn by police if they came to the headquarters; it was demonstrated by Pratt in the tunnel in Stafford’s presence that it would firing a carbine eight or nine times and a Thompson submachine gun.into a bulletproof vest. Weapons were kept in an armory, desk drawers, the front office and in a gun rack upstairs.
Bombs were kept “throughout the building [at Central Avenue]” during the summer and fall of 1969; Smith testified he saw all kinds of weapons and “about four pipe bombs” at Exposition. Commencing the last several weeks in November 1969 through December 8 there was a lookout on the roof at Central Avenue, and it was Stafford who designated and assigned the man who was the armed guard on the roof on the morning of December 8. On December 8 Smith awakened Stafford who was sleeping on a divan at Central Avenue headquarters; Stafford “jumped up and picked up an enforcer carbine that was lying on the top of the divan” and went to the second floor. Among bombs thrown from the second floor during the battle was the “granddaddy of them all,” a pipe bomb about six inches long that was to be ignited with a match; Bryan and Stafford discussed “why it was taking so long getting this bomb out of the window” and later either Bernard Smith or Stafford called down to Bryan that the bomb had been thrown out the window, then it exploded. During the battle Melvin Smith heard “Willie Stafford [who was on the second floor] and Bernard Smith communicating with Robert Bryan about when to throw the Molotov cocktails and some of the bombs”; police officers saw Molotov cocktails and pipe bombs being thrown out of the second floor of Central Avenue headquarters. During the battle Stafford was asked whether they should continue the exchange of gunfire with the police and he said that he was going to give up; Stafford surrendered and was arrested. On the elevator at Parker Center Stafford removed gunshot shells (live rounds) from his pocket and dropped them to the floor saying he did not want them found on him. After arrest the defendants, including Stafford, “were saying what they would say and would not say to the police.” While on bail and before trial Stafford fled the jurisdiction to Texas where he was later arrested with Smith and Pratt.
Pratt contends that evidence of “other crimes”—three incidents on March 15, 1969 (a bombing and shooting at a Naval armory in Compton, a shooting in the Doss apartment and a bombing of a branch post office in Compton) and one on April 12, 1969 (his possession of pipe bombs)—was erroneously admitted. It was offered for the purpose of supporting certain testimony of Melvin Smith concerning Pratt; the jury was so instructed and in addition, that if it believed Smith’s testimony as to Pratt’s involvement in any of these incidents the testimony of others that the incident actually occurred may be considered in determining whether it tends to show the existence of the specific intent to commit the objectives of the conspiracy alleged against Pratt. Also for this' purpose and to show that Pratt had knowledge of the nature of pipe bombs and had knowledge or possessed the means that might have been useful or necessary to the commission of the conspiracy, evidence that on April 12, 1969, Pratt was driving an automobile in which were three pipe bombs, directions on bomb making and other items, was received. Pratt makes no claim of error in the admission of evidence of a bombing of the 77th Street police station in May 1969 in which he participated, thus we assume either that no-error was committed in this regard or that Pratt has abandoned or waived any claim of error concerning it. (People v. Scott (1944) 24 Cal.2d 774, 783 [151 P.2d 517]; People v. Doolittle (1972) 23 Cal.App.3d 14, 16, fn. 1 [99 Cal.Rptr. 810].) Pratt argues that evidence of the three incidents on March 15, and the one on April 12 served only to show that he was a person of bad character and possessed of criminal disposition or propensity, and that the court committed prejudicial error in admitting it.11
*935Pratt claims that (1) evidence of the three March 15 incidents was admitted over his objection, and as to each refers to certain pages of the reporter’s transcript, and (2) there is no evidence that he participated in these events except the testimony of Smith that he (Pratt) had mentioned the incidents to him. Pratt’s record references in connection with each incident fail to show any objection interposed to the testimony therein contained of witnesses Cox, Rupp and Beidle. Pratt’s assertion that the testimony of these witnesses in this regard was admitted over his objection is borne out by neither his record references nor any other portion of the testimony of these witnesses. Nor does he indicate where in the record such objection, if any, is to be found. He “in effect, merely invite[s] this court to read the transcript..., ascertain the nature of the objection made, if one was made, and consider the propriety of the court’s ruling in each instance.” (People v. Martinez (1966) 239 Cal.App.2d 161, 177 [48 Cal.Rptr. 521].) “It is the duty of the defendants to show error, and that means defendants are under an affirmative duty in that respect. It is not proper to attempt to shift that burden upon the court or respondent.” (People v. Goodall (1951) 104 Cal.App.2d 242, 249 [231 P.2d 119]; People v. Klimek (1959) 172 Cal.App.2d 36, 44 [341 P.2d 722]; People v. Justice (1959) 167 Cal.App.2d 616, 618 [334 P.2d 1031].) This court is not required to search the record to establish the existence or nonexistence of error and the general charge may be disregarded in the absence of a reference where the alleged errors may be found. (People v. Taylor (1973) 30 Cal.App.3d 117, 123-124 [106 Cal.Rptr. 216]; People v. Bowman (1966) 240 Cal.App.2d 358, 379 [49 Cal.Rptr. 772]; People v. Garris (1953) 120 Cal.App.2d 617, 618 [261 P.2d 765].) Finally, “It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal [citations], and it does not appear that any exception to that rule is applicable here.” (People v. Welch (1972) 8 Cal.3d 106, 114-115 [104 Cal.Rptr. 217, 501 P.2d 225].) Thus, the absence of any showing of a specific and timely objection at the trial on the ground sought to be urged on appeal would permit us to disregard Pratt’s contention; however, we have found no error in the admission of the evidence of the three March 15 incidents.
Melvin Smith testified that in the spring of 1969 Pratt ordered him to go to a specified place and bring his “stuff’ (meaning weapons); two men picked him up and they went to the place where others arrived also bringing weapons; a map was spread on the floor and Pratt and others bent over it; he (Smith) was assigned to a squad; “Pratt was in charge of the overall operation and everyone else, you know, they had to come under him and he would assign them to the squads”; Pratt picked the “target” for him—“an US organization membership house”—the squad of which he [Smith] was a part subsequently (Mar. 15) fired into the Doss apartment through the upstairs windows; incendiary tracer bullets were used; the next morning at a debriefing session at Central Avenue headquarters Pratt reported that the squad he (Pratt) had been with had used bombs and submachine guns, placed a bomb in the door of the Compton post office and after they blew off its door drove over to the Naval Reserve armory and fired sub-machine guns into two of them.
As to the Doss apartment (the “US organization membership house”) P. L. Cox testified that James Doss was second in command to Ron Karenga of the US organization; George Hall, comanager with Doss of a four-unit apartment building, testified Doss lived on the second floor in apartment 2, on the morning of March 15 he went to apartment 2 and observed (describing) its bullet ridden condition; Officer Martin testified he went to apartment 2 and found extensive gunfire damage therein, including different size bullet holes, which had come from outside. As to the Compton post office, Richard Beidle, a postal inspector, testified that on the morning of March 15 he went there and saw extensive damage to the building and its interior. As to the United *936States Naval Marine Reserve Armory, Officer Rudd testified that on the morning of March 15 he went to the armory where he saw bullet holes and a piece of pipe stuck in the wall and fragmented pipe scattered around.
Save for certain recognized exceptions, evidence of other crimes may not be introduced in a criminal prosecution. (People v. Schader (1969) 71 Cal.2d 761, 772 [80 Cal.Rptr. 1, 457 P.2d 841]; People v. Durham (1969) 70 Cal.2d 171, 186 [74 Cal.Rptr. 262, 449 P.2d 198].) Such evidence of other conduct should be excluded if it does not substantially tend to prove any fact other than the criminal character of defendant for “[h]e should not be confronted with attempted proof of other offenses interjected only to prove a criminal propensity that might have led him to the commission of other crimes.... We exclude such evidence of other crimes not because it lacks probative value but because its prejudicial effect outweighs its probative value.” (People v. Schader, supra, 71 Cal.2d 761, 772.) Although the balance of opposing elements of probative value and prejudicial effect is frequently struck in favor of admitting evidence of other crimes showing a modus operandi similar to that employed in the crime charged (People v. Schader supra, 71 Cal.2d 761, 776-777; People v. Haston (1968) 69 Cal.2d 233, 245-247 [70 Cal.Rptr. 419, 444 P.2d 91]), “a common modus operandi is not the exclusive element upon which the balancing process will favor probative value and admissibility: other elements are ‘motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ (Evid. Code, § 1101, subd. (b).) Variations on some of these include elements such as proof of conspiracy where relevant (People v. Durham, supra, 70 Cal.2d 171, at pp. 180 [fn. 7], 182 [fn. 9])....” (People v. Lynn (1971) 16 Cal.App.3d 259, 267 [94 Cal.Rptr. 16]; see also People v. Kelley (1967) 66 Cal.2d 232, 239 [57 Cal.Rptr. 363, 424 P.2d 947]; People v. Westek (1948) 31 Cal.2d 469, 480 [190 P.2d 9].) The evidence here was offered to corroborate Smith’s testimony which was offered on the issue of specific intent to commit the objectives of the conspiracy charged against Pratt. Inasmuch as it was not received to show identity of the perpetrator of the offense charged there is no issue concerning whether there are distinctive common marks under the test of People v. Haston (1968) 69 Cal.2d 233, 246-250 [70 Cal.Rptr. 419, 444 P.2d 91], Evidence of the March 15 events—the existence of other incidents in which Pratt ordered Smith to shoot up the Doss apartment, which he did using among other things incendiary tracer bullets, and in which Pratt himself used bombs and a submachine gun in the post office and armory bombing and shooting—‘“tend[s] logically, naturally, and by reasonable inference, to establish [a] fact material for the people.’” (People v. Peete (1946) 28 Cal.2d 306, 315 [169 P.2d 924].) That material fact was Pratt’s specific intent to commit the objectives of the conspiracy alleged against him—conspiracy to possess a machine gun, destructive devices (bombs, grenades and tracers) and fire bombs. The record shows that the trial judge fully weighed the admissibility problem presented by the evidence even though no objection was raised by Pratt to the testimony of Cox, Rupp and Beidle, found the evidence to be relevant, material or necessary in connection with the crime charged and balanced the probative value of the other evidence against its prejudicial effect concluding that the former outweighed the latter.
The foregoing testimony of Smith, Cox, Rupp and Beidle shows attacks on a member of the US organization (a Panther rival) with incendiary weapons, and on the post office and armory (two symbols of the establishment) with submachine guns and bombs. Pratt “in charge of the overall operation” chose the “targets” for the shooting and bombing, assigned squads to make these “hits” and supervised them actually being present at and participating in two; such activity is relevant to the charge of conspiracy to commit murder (count I) of which he was acquitted, and conspiracy to possess certain illegal weapons (count III) the subject of this appeal, and relevant on the issue of specific intent to possess said weapons. Thus, the testimony of Melvin Smith that before December 8, 1969, Pratt with specific intent entered into a conspiracy with other *937Black Panther members to use incendiary weapons, machine guns and bombs against those he considered to be their enemies including two establishment organizations and the rival US group, was relevant to show his specific intent to conspire with other Black Panther members on December 8, 1969, to possess a machine gun and destructive devices such as bombs and tracers for use against their “enemies,” the police; and the testimony of Cox, Hall, Rupp and Beidle that the bombings and raids actually took place was proper to corroborate Smith’s testimony.
In relation to the April 12 incident, Pratt makes record reference to the testimony of Officer Wilson and Officer Wolfer but again no objection was made by him to the admissibility of this evidence; nevertheless we consider the merits of his appellate contention that “the reasoning” under which the trial court admitted the evidence is erroneous. More than 100 years ago our Supreme Court considering claimed error in the refusal of certain instructions held that “we do not try the sufficiency of the arguments of the [trial] Judge, but only the soundness of his conclusions.” (People v. Sears (1861) 18 Cal. 635, 636, quoted and applied in People v. Selz (1955) 138 Cal.App.2d 205, 210 [291 P.2d 186] [denial of motion to vacate murder conviction].) “In other words, it is judicial action, and not judicial reasoning or argument, which is the subject of review; and, if the former be correct, we are not concerned with the faults of the latter.” (Davey v. Southern Pacific Co. (1897) 116 Cal. 324, 330 [48 P. 117]; People v. Ramos (1972) 25 Cal.App.3d 529, 540 [101 Cal.Rptr. 230]; People v. Gurley (Í972) 23 Cal. App.3d 536, 539-540 [100 Cal.Rptr. 407]; People v. Rhone (1968) 267 Cal.App.2d 652, 658 [73 Cal.Rptr. 463]; People v. Evans (1967) 249 Cal.App.2d 254, 257 [57 Cal.Rptr. 276].) We do not suggest that the trial court’s “reasoning” was erroneous but we do point out that Pratt’s contention is based on a matter not properly subject to appellate review. Pratt asserts that the court’s “reasoning” was that the evidence was admissible to show his knowledge of pipe bombs, and specific intent; if this was the court’s reasoning we concur therewith.
Officer Wilson testified that on April 12, 1969, while on patrol duty he activated his red lights for a vehicle ahead, to stop; Pratt, who was the driver, stopped at an angle at a deadend street; Pratt was accompanied by Roger Lewis; in the middle of the front seat were a pipe capped at both ends with a protruding fuse and a shaving kit with a pipe capped at both ends without a fuse, a similar device with one end not capped, various bullets, pieces of fuse, plastic caps, wire, a stick of dynamite and a paper containing directions on how to construct a bomb; he took these devices to the police station.12 Officer Wolfer, a member of the bomb squad, examined the objects and testified concerning his investigation, including the formula for construction of bombs contained in the writing. Clearly the evidence was admissible to show Pratt’s knowledge of the nature of pipe bombs and his specific intent in conspiring with other Black Panthers to possess pipe bombs at the Central Avenue headquarters.
We conclude that the probative value of the evidence of the prior offenses outweighs any undue prejudice which might have resulted by its receipt. There was no abuse of *938discretion by the trial court in admitting the evidence. (People v. Beamon, supra, 8 Cal.3d 625, 635 [105 Cal.Rptr. 681, 504 P.2d 905].)
For the foregoing reasons the judgments are affirmed.
Thompson, J., and Hanson, J., concurred.
Assigned by the Chairperson of the Judicial Council.
Mrs. Olsen apparently died this date, having been shot on December 18, 1968.
Defendant abandons this ground, his brief stating, “Appellant’s challenge is not to the sufficiency of the evidence but to errors....’’
Penal Code section 1096a reads: “In charging a jury, the court may read to the jury section 1096 of this code, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.”
Penal Code section 1202b states: “In any criminal proceeding in which defendant is convicted of a felony or felonies and is committed to the custody of the Director of Corrections, if defendant was, at the time of commission of the offense or offenses, or of the apprehension from which the criminal proceeding resulted, under the age of 23 years, the court may, notwithstanding any other provision of law fixing or affecting the penalty for the offense or offenses, specify that the minimum term of imprisonment for the offense or the offenses cumulatively shall be six months. This section does not apply to any offense punishable by death.”
The FBI released thousands of pages of documents to Pratt as a result of a Freedom of Information Act request he filed in 1976. Congressman McCloskey’s dissatisfaction is apparently based on his reading of some of those documents.
Memorandum from Attorney General to the FBI Director September 14, 1967, quoted in Select Committee to Study Governmental Operations, Final Report, Book III: Supplementary Detailed Staff Report on Intelligence Activities and the Rights of Americans, S.Rep. 94-755, 94th Cong., 2d Sess. 492 (1976) [hereinafter Church Committee Report}.
There has been some confusion about whether Julius Butler was an FBI informant. This confusion is understandable in light of the contrast between the broad dictionary definition of informant and the precise law enforcement usage of that term. These semantic differences—briefly addressed below—should not divert attention from the primary issue, which is whether Pratt is entitled to a new trial because the jury was unaware that Butler supplied information to the FBI.
Webster’s New Collegiate Dictionary (1977) defines “informant” as “one who gives information.” Of course, under that broad definition Butler would be considered an informant, for he supplied information to the FBI.
In FBI Manuals, however, “informant” does not merely mean “one who gives information.” Rather, “informant” is one of several kinds of person “who gives information” to the FBI. The “informant” label refers to reliable persons actively engaged in obtaining and furnishing information to the FBI. Traditionally, “informants” are assigned symbol numbers; ordinarily, they are paid. Butler was not assigned a symbol number or paid, and he was not considered an “informant.” The FBI regularly receives, on a confidential basis, information from individuals who are not considered informants.
Bureau documents show that Butler was considered a “probationary (racial) informant.” This term refers to a person being cultivated as an informant, but whose reliability and willingness to cooperate are not yet established.
Therefore, while Butler falls within the dictionary definition of informant because he supplied information, he was not an “informant” as it is defined in FBI Manuals. Again, however, this definitional question is not particularly important. The crucial issue is whether Pratt was denied a fair trial because the jury was not told that Butler supplied information to the FBI. As noted above, the California court considered Pratt’s claim on this issue (in his habeas corpus petition) and rejected it.
This quotation is found on the enclosed page of the trial transcript.
These records also indicate that on the evening of December 18, 1968, “Bobby Seale stated he was going to pick up some people, including Kathleen and go to” a private residence.
The travel time between Los Angeles and Oakland is only a few hours.
Letter, Acting Director to California Attorney General, January 16, 1980.
Petition for Habeas Corpus, 46.
The Church Committee Report describes the DOJ’s “Special Review Committee” assigned to notify COINTELPRO victims who were harmed. Church Committee Report, 76, cited at fn. 2, supra. DOJ advised the Task Force that it did not notify Pratt.
See, e.g., Airtel, LA to Director 2 (January 28, 1970); LA Report on Pratt, cover page C (June 26, 1970).
Airtel, LA to Director, January 28, 1970, quoted at Id. 47.
Petition for Habeas Corpus, 49.
Nine defendants appealed seven of whom failed to file a brief on appeal, and their appeals were dismissed pursuant to rule 17a, California Rules of Court; two appellants remain, Pratt and Stafford.
Defendants petitioned this court for writs of mandate and prohibition; both were denied. As to the three items, the People filed petition for writ of mandate on which an alternative writ issued. (People v. Superior Court [Young, et al.] (1970) 13 Cal.App.3d 545 [91 Cal.Rptr. 699].) In ordering the superior court to set aside its order granting the motion to suppress the three items as evidence, the court said at page 547: “Defendants’ petitions for writs of prohibition and mandate have previously been denied by this court. The petition for writ of mandate particularly raised the issue of unlawful search and seizure by the police, the contention being made that the police had unlawfully entered the premises of the defendants. We ruled against the contention. The Supreme Court of this state has now denied hearing to the defendants on each of these petitions. It is therefore unnecessary to reopen that question upon the instant petition. We assume the police were legally on the premises.” [Italics added.] Appellants have had appellate review of their contention but by virtue of Penal Code section 1538.5, subdivision (m), Penal Code, the decisions on the petitions are not res judicata (People v. Medina (1972) 6 Cal.3d 484, 491-492 [99 Cal.Rptr. 630, 492 P.2d 686]) although People v. Superior Court (1970) 13 Cal.App.3d 545 [91 Cal.Rptr. 699], could be “law of the case on an appeal from a judgment of conviction.... ” (People v. Medina (1972) 6 Cal.3d 484, 492.) However, we do not predicate our decision on the former appellate writ determinations.
It does not follow, and appellants do not contend, that the inclusion of the “no knock” provision operated to invalidate the entire warrant. (Aday v. Superior Court (1961) 55 Cal.2d 789, 797 [13 Cal.Rptr. 415, 362 P.2d 47].)
A gun battle between four Panthers and police took place at University Police Station; a gun battle between an active Panther, Fitzgerald, and a highway patrolman resulted in injuries, and later Fitzgerald shot and killed a special officer who was eating his lunch in Willowbrook; an altercation occurred between Panthers and police over the sale of -Panther newspapers which interfered with traffic, and when police followed them to Central Avenue headquarters they heard someone say “Get the gun” and saw through the window someone holding a shotgun; officers seated in their car at a taco stand were approached by Pope and Richards, both armed, and fired upon resulting in a gun battle in which one officer was wounded and Pope killed; Armour, a Panther, *926was involved in a gun-pointing incident when officers entered headquarters relative to a traffic violation; two officers in the Wilshire area stopped four Panthers in an automobile who fired upon them resulting in a gun battle in which three Panthers were killed and both officers injured; Pratt was involved in an altercation and he threatened to kill the officers calling them “pigs” (punctuated with profanity); and Panthers in various areas had attempted to kill or succeeded in killing law enforcement officers.
At the request of defendants (and also requested in some instances by the People) the jury was instructed on the definition of “accomplice” (CALJIC No. 3.10), that testimony of an accomplice must be corroborated (CALJIC No. 3.11), what constitutes sufficiency of the evidence to corroborate an accomplice (CALJIC No. 3.12), that one accomplice may not corroborate another (CALJIC No. 3.13), necessity of criminal intent to make one an accomplice (CALJIC No. 3.14), and that the testimony of an accomplice is to be viewed with distrust (CALJIC No. 3.18):
Stafford asserts that állhough Tackwood was called by Pratt and other defendants he was not his witness. The record does not bear this out for Tackwood was called “as a witness by and on behalf of the defense” and although he .was not examined by Stafford’s attorney, there is nothing in the record to show that he was not also Stafford’s witness. However, he raises no real issue concerning this and had he done so it would avail him nothing for at no time in the trial court did Stafford or his counsel voice objection to the testimony of Tackwood, move to strike his testimony or seek other remedy; there was complete silence on the part of both Stafford and his counsel. Under such circumstances he may not now raise the issue for the first time on appeal. (People v. Washington (1969) 71 Cal.2d 1061, 1083 [80 Cal.Rptr. 567, 458 P.2d 479]; People v. Varnum (1969) 70 Cal.2d 480, 486 [75 Cal.Rptr. 161, 450 P.2d 553]; People v. Robinson (1965) 62 Cal.2d 889, 894 [44 Cal.Rptr. 762, 402 P.2d 834].) Moreover, evidence admitted without objection cannot be challenged on appeal (People v. Gallegos (1971) 4 Cal.3d 242, 249 [93 Cal.Rptr. 229, 481 P.2d 237]) and must be considered as part of the evidence in the cause. (People v. Moore (1970) 13 Cal.App.3d 424, 435-436 [91 Cal.Rptr. 538]; People v. Goss (1961) 193 Cal.App.2d 720, 727 [14 Cal.Rptr. 569].)
Appellants were convicted of conspiracy between July 1 and December 8, 1969, to possess a machine gun, destructive devices and fire bombs (Pratt) and to possess destructive devices and fire bombs (Stafford).
After the hearing on the 1538.5 motion and appellate conclusion thereof, Pratt, Stafford and Smith “skipped bail” and’illegally fled from California to Texas; bench warrants were issued for them and eventually they were located and arrested in Dallas on December 8, 1970, from which they were returned for trial. This constitutes evidence of flight; at the very least “Whether the actions of defendants amounted to flight and denoted a consciousness of guilt was for the jury’s determination.” (People v. Santo, supra, 43 Cal.2d 319, 330.) “[I]t is also probable that only one who expects his guilt to be proved at trial will attempt an escape and that an innocent man will stay for trial in *931order to clear his name and win lawful liberty.” (People v. Terry (1970) 2 Cal.3d 362, 395 [85 Cal.Rptr. 409, 466 P.2d 961].)
At the conclusion of Smith’s testimony in this regard the trial court admonished the jury that if a defendant attempted to persuade a witness to testify falsely at the trial that “may be considered by you as a circumstance tending to show a consciousness of guilt, but again that type of evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for the jury’s determination... .If you believe that one or more of the defendants did try to persuade Mr. Smith to testify falsely, then that is a circumstance for your determination which may in your judgment be evaluated to show a consciousness of guilt although it is not sufficient in itself to prove guilt... .You are the exclusive judges of the facts and of the credibility of the evidence. I would simply state to you that the fact that one defendant or more than one defendant if in your discretion you determine it, did urge or suggest that this witness testified falsely is not to be imputed to all of the defendants. In other words, if you should find that one defendant attempted to have Mr. Smith testify falsely, then that might in your discretion be interpreted as showing a consciousness of guilt on the part of that defendant but it wouldn’t be binding as to any of the other defendants.”
While this does not prove Stafford had been connected with this particular incident, the inference is clear that he was one of those who had undertaken to see that such pipe bombs did not fall into other hands.
At Pratt’s request a limiting instruction was given in which the jury was expressly directed “such evidence was not received and may not be considered by you to prove that he is a person of bad character or that he has the disposition to commit crimes.”
During the taking of this testimony and at the instance of Pratt’s counsel, judicial notice was taken that both Pratt and Lewis were criminally charged as a result of this incident, Lewis had been tried and convicted, and Pratt had not been tried because he did not appear for trial. In People v. Beamon (1973) 8 Cal.3d 625, 633 [105 Cal.Rptr. 681, 504 P.2d 905], the court held that a prior offense was not rendered inadmissible by reason of the fact that defendant had been acquitted thereof. A fortiori, that defendant has not been tried of charges emanating from another offense does not constitute an impediment to its admissibility and Pratt does not contend otherwise. Subsequently Pratt was convicted of knowingly possessing and transporting a destructive device (bomb) (Pen. Code, § 1230); on January 28, 1974, this court affirmed the judgment (People v. Pratt, 2d Crim. No. 22838).