Bey

James Johnson Bey appeals from judgment of conviction by jury trial of first degree murder. (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated.) He argues that statements he made to police were used to impeach his testimony in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. We agree, but find the error harmless beyond a reasonable doubt. Appellant raises multiple claims of instructional error. We conclude that the instructions on the use of his statement to the police were adequate, as were the instructions on his other out-of-court statements, and on reasonable doubt. We find a sufficient factual basis for the jury instructions on appellant’s failure to explain evidence against him and on adoptive admissions. We find no basis for reversal in appellant’s claims of misconduct by two witnesses and by the prosecutor. Finally, we modify appellant’s sentence to reflect one less day of presentence credit to correct a miscalculation.

Factual and Procedural Summary

Discussion

I

Appellant’s Statements to the Police

Appellant argues that the trial court erred in allowing the…