Between June and October 1979, Lawrence Bittaker and Roy Norris, two men who had met in state prison, used a van to abduct five teenage girls in Los Angeles County: Lucinda Schaefer, sixteen, taken as she walked along the Pacific Coast Highway in Redondo Beach; Andrea Hall, eighteen; Jacqueline Gilliam, fifteen, and Jacqueline Leah Lamp, thirteen, taken together; and Shirley Ledford, sixteen. All five were raped and killed. The bodies of Lucinda Schaefer and Andrea Hall were never recovered. Norris pleaded guilty to five murders in exchange for a sentence of forty-five years to life and testified against Bittaker, who was convicted and sentenced to death in March 1981.
The file holds four rulings. The centerpiece is the Supreme Court of California's opinion of June 22, 1989, on Bittaker's automatic appeal, about twenty-two thousand words, which affirmed the convictions and the death sentence. It begins with Norris's testimony, murder by murder, and then the physical evidence: the photographs of Andrea Hall and Jacqueline Gilliam found in Bittaker's possession and the audiotape, found in the van, of Shirley Ledford being tortured. Before it comes a 1978 Ninth Circuit ruling on an old burglary conviction and his right to represent himself, and after it two Ninth Circuit orders from 2003 in his federal habeas case, the second an en banc opinion by Judge Kozinski holding that a prisoner who accuses his trial lawyer of incompetence gives up the attorney-client privilege only as far as that claim requires.
Bittaker was never executed. He died of natural causes on death row at San Quentin State Prison at 4 p.m. on December 13, 2019, at seventy-nine. Norris died in prison in February 2020.
A warning belongs at the head of this page. The 1989 opinion describes the crimes in the plain language of the trial record, including what can be heard on the Ledford tape, and a reader who comes for the law of the case will find it in the later sections on the arrest warrant, the jury, and the defense psychiatrist, Dr. Coburn, whose opinions the prosecutor was allowed to comment on. The account of the murders is Norris's, given under a plea bargain that spared his life; the court sets out his testimony first and the corroboration after, and the defense case, that Norris and not Bittaker was the driving force, in its own short section.
The court gives the date of Lucinda Schaefer's abduction as June 24, 1979. The Department of Corrections' release announcing Bittaker's death gave her date of death as June 14. The trial record is the likelier to be right and we have followed it. His middle name appears in the courts as Sigmond and in some later accounts as Sigmund.
Several living people have been shortened to initials. The woman Bittaker and Norris tried to drag into the van in a garage on September 30, 1979, who fought them off, is J.M. here, and a seventeen-year-old girl who testified about photographs he showed her is C.D. Eleven prospective and sitting jurors whose answers in voir dire the court quotes are each reduced to an initial. The rape victim who identified him in a photographic lineup was already Robin R. in the court's text. The opinions are public domain, printed from the Caselaw Access Project without spelling repair.
Lawrence S. BITTAKER, Petitioner-Appellee, v. J. J. ENOMOTO, Respondent-Appellant.
No. 75-3419.
United States Court of Appeals, Ninth Circuit.
Aug. 3, 1978.
Rehearing and Rehearing En Banc Denied Dec. 6,1978.
Howard J. Schwab, Deputy Atty. Gen. (argued), Los Angeles, Cal., for respondent-appellant.
Jerome B. Falk, Jr. (argued) and Steven L. Mayer, San Francisco, Cal., for petitioner-appellee.
Before MERRILL, GOODWIN and TANG, Circuit Judges.
[OPINION BY GOODWIN, Circuit Judge: type=majority]
GOODWIN, Circuit Judge:
Lawrence S. Bittaker was convicted in a California court on a charge of burglary some four years before Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), confirmed to defendants in state prosecutions the constitutional right of self-representation earlier recognized in federal courts. Bittaker brought habeas corpus before Faretta. The district court held after Faretta that the state’s denial of Bittaker’s right of self-representation was a federal constitutional defect requiring the setting aside of his state conviction. The state appeals; we affirm.
While the parties have briefed and argued the case in terms of the “retroactivity” of Faretta, it is not necessary to reach that question because the law of this circuit at the time of Bittaker’s state court trial had already been established in a fashion consistent with the Supreme Court’s statement of the law in Faretta. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967). This circuit had stated in federal cases that self-representation was a corollary of the Sixth Amendment right to counsel. Because the defendant could waive his Sixth Amendment right, we said he could also insist on self-representation as a constitutional, as well as a statutory, right. Until now, we have had no occasion to apply the federal constitutional right to state habeas petitioners. The Second Circuit, however, had done so. United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). We avoided the question in Meeks v. Craven, 482 F.2d 465, 466 (9th Cir. 1973), because the petitioner’s assertion of the right was inadequate.
There can be little doubt, however, that, if squarely faced with the issue, we would have applied the right to self-representation to a state habeas petitioner.
We had already characterized the right as a constitutional one in Arnold v. United States, 414 F.2d at 1058. The Supreme Court had previously applied virtually the entire Sixth Amendment to the states. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Accordingly there was no obvious reason to refuse to apply the implied Sixth Amendment right to self-representation as well. We therefore agree with the district court that Bit-taker would have been entitled to habeas relief had he sought it under the pre-Fare i-ta law of this circuit.
The state emphasizes that Faretta has a somewhat different conceptual basis from our prior holdings. The Supreme Court held that the right to self-representation is implied in the structure of the Sixth Amendment. We had expressed it as a counterpart to the right to counsel.
According to the state, the conceptual distinction makes our previous cases irrelevant. We disagree. Before Faretta a state defendant in this circuit had a federal constitutional right to self-representation. After Faretta the right was the same, whether or not its rationale was expressed in the same terms. The state would have us tell Bittaker that even though he had the same right before Faretta as prisoners in other circuits have since, we must refuse relief because the Supreme Court used different words than we had used in justifying that right. We will not engage in such a verbal minuet.
Finally, the state argues that we should apply the harmless-error doctrine to denials of the right of self-representation. Again, we disagree.
Before Faretta we had held that the defendant need not show prejudice resulting from the denial of the right. United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973). The Supreme Court vacated the judgment in Faretta without considering possible prejudice to the defendant. 422 U.S. at 836, 95 S.Ct. 2525. Indeed, it noted that in most cases a defendant’s case will suffer if he or she asserts the right. 422 U.S. at 834, 95 S.Ct. 2525. Some defendants may be able to show prejudice from the assistance of unwanted counsel, but we will not speculate on the volume of such cases. To require such a showing could make the right to conduct one’s own defense virtually unenforceable on appeal in the majority of cases.
The purpose of the right is to protect the defendant’s personal autonomy, not to promote the convenience or efficiency of the trial. 422 U.S. at 834, 95 S.Ct. 2525. Thus, a denial of the right automatically prejudices the defendant’s freedom interest. More is unnecessary. We do not reach other arguments urged in support of the judgment below.
Affirmed.
Before Faretta, California courts denied that there was such a right. People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, cert. denied 410 U.S. 944, 93 S.Ct. 1380, 35 L.Ed.2d 610 (1973). A district court used this fact to deny habeas relief in Houston v. Nelson, 404 F.Supp. 1108, 1115 (C.D.Cal.1975). The district court noted that before Faretta the Ninth Circuit and California had different rules, and it therefore applied the California standard to a state habeas petitioner. This decision was never reviewed by this court. Federal courts must apply federal constitutional law in cases properly before them under the federal habeas statute. Sesser v. Gunn, 529 F.2d 932, 934-35 (9th Cir. 1976). It is thus a district court’s duty to apply the law of the appropriate circuit to all persons presenting claims within its jurisdiction. State interpretations of the federal constitution and laws are persuasive authority, but a district court may consider them on federal questions only if the question is otherwise open.
The state mentions several times that one of its prisoners who may benefit from the Faretta decision is Charles Manson. We do not encourage this type of advocacy. A federal court must make its decisions in accord with the Constitution and the laws, without regard to the notoriety of parties or nonparties.
[No. S004359. Crim. No. 21942.
June 22, 1989.]
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE SIGMOND BITTAKER, Defendant and Appellant.
Counsel
Richard Such, under appointment by the Supreme Court, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John R. Gorey, Norman H. Sokolow, Susanne C. Wylie and Andrew D. Amerson, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY BROUSSARD, J. type=majority]
Opinion
BROUSSARD, J.
From June through October of 1979, defendant and Roy Norris kidnapped and murdered five teenage girls in the Los Angeles area. Most of the killings involved the rape and torture of the victims. Defendant now stands convicted of 26 felony counts, as follows:
Date of Crime
Victim
Crimes
June 24, 1979
Lucinda Schaefer
first degree murder kidnapping 3 counts of rape
July 8, 1979
Andrea Hall
first degree murder kidnapping 2 counts of rape forcible oral copulation
Sept. 2, 1979
Jacqueline Gilliam
first degree murder kidnapping 3 counts of rape
Sept. 2, 1979
Leah Lamp
first degree murder kidnapping
Oct. 31, 1979
Shirley Ledford
first degree murder kidnapping rape forcible oral copulation forcible sodomy
Various
3 counts of possession of firearm by ex-felon
June-Oct. 1979
conspiracy to commit kidnapping and murder
The jury found 38 special circumstances: 20 multiple-murder special circumstances (the arithmetic combinations of 5 murders), 5 felony-murder special circumstances based on kidnapping and 5 based on rape. It found felony-murder special circumstances based on forcible oral copulation as to victims Hall and Ledford, and forcible sodomy as to Ledford. The jury found intentional murder by means of torture as to all victims except Lamp; with respect to Lamp, it found as a special circumstance that she was killed to prevent her from testifying as a witness.
Defendant was sentenced to death. His appeal is automatic. We affirm the conviction and sentence.
I.
Summary of Facts
Defendant met Roy Norris while they were inmates in state prison. Defendant had been convicted of assault with a deadly weapon, arising from an incident in 1974 in which he stabbed a store clerk who accused him of shoplifting. Norris had been convicted of rape. The two men became friends, and frequently discussed their mutual interest in rape, and analyzed methods of abducting and raping women without getting caught.
Defendant was paroled in November of 1978 and rented a room at the Scott Motel in Burbank; Norris was paroled in January of 1979. After raping a woman in Colorado, Norris returned to California and called defendant. They would get together on weekends, and go to the beach where defendant would photograph teenage girls. They continued their discussion of rape, and explored various fire roads in the Southern California mountains, looking for places with adequate privacy. Defendant bought a van, choosing one with sliding doors to make it easier to seize a victim and drag her into the van.
In June of 1979 Norris attempted to rape a woman, but she escaped. He told defendant, and they agreed that thereafter they would act together in all their criminal activities.
1. The testimony of Roy Norris.
Norris testified for the prosecution pursuant to a plea bargain under which he pled guilty to five murders and received a sentence of forty-five years to life.
(a) The murder of Lucinda Schaefer.
On June 24, 1979, defendant was driving the van, with Norris as passenger, on the Pacific Coast Highway in Redondo Beach. They saw Lucinda (Cindy) Schaefer, age 16, walking along the highway. She turned onto a residential street. Defendant drove by and offered her a ride, but she refused. Defendant then parked the van a short distance down the street. Norris got out and pretended to be repairing it. When Schaefer walked by, he grabbed her and dragged her into the van. While defendant drove away, Norris bound and gagged the victim.
When they arrived at the fire road in the mountains, Norris raped Schaefer while defendant stood lookout. Defendant raped her, then Norris a second time. She asked Norris if the men intended to kill her, and asked for time to pray before they did; Norris, however, assured her that she would not be killed. Defendant then returned to the van, and Norris stood watch outside. After about 45 minutes defendant emerged, and the 2 men argued whether to kill Schaefer. Norris said he had told Schaefer that she would not be killed, but defendant insisted on killing her so she could not identify them. Defendant said that kidnapping with bodily harm carried a sentence of life imprisonment without possibility of parole. Norris was unwilling to risk such a sentence, and finally agreed to the killing.
Defendant held Schaefer while Norris tried to strangle her, but when he changed his grip Schaefer and defendant fell over backwards. Defendant dropped his cigarette, which burnt a hole in his shirt and scarred his chest. Defendant then attempted to strangle Schaefer, but was unable to squeeze tightly enough. He took a clothes hanger, and looped it around her neck. Norris could not get the hanger tight enough, but defendant used pliers to tighten it and kill Schaefer. They then threw the body into the bushes.
(b) The murder of Andrea Hall.
On July 4, 1979, defendant and Norris set out to find another victim. While driving in Manhattan Beach they saw Andrea Hall, age 18, who was hitchhiking to visit her boyfriend in Wilmington. Before they could offer her a ride, a man in another car picked up Hall. Defendant and Norris followed that car to Redondo Beach, where Hall got out and resumed hitchhiking. Defendant offered her a ride. After she entered the van Norris, who had been hiding in the back, attacked her and after a fight managed to bind and gag her.
They drove into the mountains, passing the place where Schaefer was killed. Norris got out and stood guard while defendant raped Hall. The men then traded activities. When it was Norris’s turn to wait outside again, he thought he saw headlights coming up the fire road. Defendant took Hall into some bushes by the road while Norris drove the van, searching unsuccessfully for the intruder. When Norris returned, they drove to a new location. Defendant took Hall up a small hill, maintaining communication with Norris by walkie-talkie. Upon returning two hours later defendant showed Norris eight photographs he had taken. One of these photographs, which shows Hall about to perform oral copulation on defendant, is in evidence. Norris described the other photographs, which showed Hall nude in various poses.
Defendant drove to another place, said he wanted to rape Hall again, and again took her to a hill near the road. Norris drove to a store, keeping in communication by radio. When he returned, defendant was alone. He told Norris he had taken more pictures. He showed Norris two pictures in which Hall appeared frightened, and told Norris that he took them after telling Hall that he was going to kill her, and challenging her to come up with as many reasons as she could why he should not kill her. Defendant then killed Hall by thrusting an ice pick through her ear into her brain. When she did not die instantly, he turned her over and pushed the pick through the other ear, and stepped on it until the handle broke. He then strangled Hall until she died and threw the body over an embankment into some bushes.
(c) The murders of Jacqueline Gilliam and Leah Lamp.
On September 2, 1979, Jacqueline Gilliam, age 15, and Leah Lamp, 13, were hitchhiking in Redondo Beach. Defendant and Norris picked them up in defendant’s van. After the girls entered the van, Norris hit Lamp with a sap (a plastic bag filled with lead weights), then subdued and tied Gilliam. Lamp recovered consciousness and attempted to escape, but defendant caught her and forced her back into the van. Defendant then drove into the mountains, driving beyond the site of the other two murders.
Neither defendant nor Norris was sexually interested in Lamp. Defendant set out to rape Gilliam. Learning that she was a virgin, he set up a tape recorder to record her cries during the rape. After Norris also raped Gilliam, they retied the girls, and all remained in the van over night.
The next morning defendant took Lamp up a hill, took some photographs, and left her there. Upon returning, he arranged for Norris to take a series of photographs of him with Gilliam, beginning with them clothed, then nude, then during intercourse and oral copulation. Defendant brought Lamp back to the van, and they drove into town for food and supplies.
Upon their return, defendant took additional nude photographs of Gilliam. Some of these photographs came into possession of defense counsel, who turned them over to the police, and they were admitted into evidence. (At this point, according to Douglas, defendant tortured Gilliam. Norris does not mention torture.) Norris suggested that they kill Gilliam quickly because she had been so helpful, but defendant replied that “they only die once, anyway.” Defendant then took Gilliam out of the van and killed her, first thrusting an ice pick through her ear into her brain, then choking her. Defendant returned to the van, aroused Lamp (who had been forced to take tranquilizers to keep her quiet), and as she stepped out of the van, struck her with a sledgehammer. Defendant choked Lamp while Norris struck her with the hammer until she was dead. The men threw both bodies over an embankment into the chaparral.
(d) The attempted abduction of J.M.
On September 27, 1979, defendant and Norris attempted to abduct an unidentified woman, but she dodged behind the van and escaped. On September 30, they saw J.M. park her car in an apartment garage, and return to the garage entrance to close the garage door. Defendant approached, sprayed her with Mace, and attempted to drag her into the van. J.M. screamed, and people started to come out of the houses nearby. Norris then drove away without defendant, who fled on foot. J.M.’s testimony corresponded to Norris’s account.
(e) The murder of Shirley Ledford.
Late in the evening on October 31, 1979, defendant and Norris picked up Shirley Ledford, age 18, who was hitchhiking home from her job. Defendant drove to a secluded area, stopped, and drew a knife. Norris then moved into the driver’s seat. Defendant turned on his tape recorder. As Norris drove, he could hear screams coming from the back of the van. After one to two hours, defendant turned off the recorder and changed places with Norris. Norris compelled Ledford to orally copulate him, then turned on the recorder and began hitting her on the elbow with a hammer.
When Norris finished torturing Ledford, defendant told him to kill her. Norris strangled the victim with a coat hanger. Defendant suggested dumping the body in someone’s front yard so they could see the reaction in the newspaper. They put Ledford’s body in a bed of ivy in a suburban neighborhood, where it was discovered by an early morning jogger.
2. Other prosecution evidence.
(a) The bodies.
The bodies of Lucinda Schaefer and Andrea Hall were never found. Friends and family testified that they had never been seen after the date when Norris said they were killed. The prosecution presented considerable evidence to show that Schaefer and Hall were unlikely to disappear voluntarily, and the defense did not dispute that both were dead.
With Norris’s assistance, the police discovered and identified the skulls of Jacqueline Gilliam and Leah Lamp. A portion of an ice pick was lodged in Gilliam’s skull. Lamp’s skull showed the effect of the hammer blows.
Shirley Ledford’s body was discovered shortly after she was killed. The coat hanger was still wrapped around her neck. The body had extensive bruising and tearing on the breasts, bruises on the genitals, and bruises on one elbow. Laboratory examination showed sperm in her mouth, vagina and anus.
(b) Tapes, photographs, and other physical evidence.
As we have noted, one of defendant’s photographs of Andrea Hall and six of Jacqueline Gilliam were identified and introduced into evidence. The tape recording of the torture of Shirley Ledford was discovered in defendant’s van. The first portion of the tape contains a male voice, identified as defendant’s, and screaming from a female voice, stipulated to be Ledford’s. At one point defendant demands Ledford tell him what she is doing, and she describes an act of oral copulation. The second portion of the tape contains Norris’s voice, urging Ledford to scream, and more screaming by Ledford.
Ledford’s bracelet was discovered in Norris’s apartment. Defendant’s van contained a small sledgehammer. In his room police discovered seven bottles of various acids, which Norris said defendant planned to test on his next victim.
(c) Testimony of other motel residents.
Richard Dryburgh, another resident of the Scott Motel, testified in return for dismissal of a charge of possession of an explosive. He said defendant showed him nude photographs of the victims, told him one was named “Cindy,” and that she had been killed. Shown a picture of Lucinda Schaefer, Dryburgh said she was one of the girls in the photographs he had seen. Dryburgh further testified that defendant told him of kidnapping and killing two girls on one occasion, but incorrectly identified Schaefer as one of the two. He correctly identified a photograph of Gilliam. Mike Horn, another resident, testified that defendant showed him photographs of Gilliam and Hall.
C.D., a 17-year-old girl staying at the motel, said defendant showed her photographs of Gilliam and four other girls, and said, “The girls I get won’t talk any more.” On another occasion she heard a tape, apparently the recording of the rape of Gilliam, which defendant played for her. Steven Eastman, a visitor at the motel, also heard the tape.
(d) Testimony of inmates.
David Lambert shared a jail cell with defendant. At defendant’s request, Lambert drew a picture of a girl on the cell wall. Defendant said it looked like “Cindy,” and asked Lambert to add coat hangers and pliers to the picture. Defendant then signed it “Pliers Bittaker,” a jail nickname he had acquired from his stories of torturing women with pliers. Defendant signed autographs for other prisoners using that nickname. One said, “hitch-hikers welcome, females especially”; another said, “Norris did it.” Defendant also told Lambert of his abduction of two girls on one occasion, and of another girl on Halloween night (when Ledford was murdered).
Lloyd Carlos Douglas testified that defendant told him in detail of the abduction of Gilliam and Lamp, the rape and torture of Gilliam, and the murder of both girls. (Norris did not describe any torture of Gilliam.) According to Douglas, defendant said he pinched Gilliam’s legs and breasts with a vise grip, finally tearing off part of the nipple, then thrust an ice pick through her breast and twisted it. He then pushed the ice pick through Gilliam’s ear; she screamed and fell dead. Defendant told Douglas that he tortured Ledford by pulling on her genitals and breasts with a vise grip.
3. Defendant’s case.
The defense contended that Norris, not defendant, was responsible for the murders. Richard Shoopman, a convict friend of defendant and Norris, said Norris had told him many times of his desire to rape young women. Norris said the look of shock and fear on the victim’s face particularly aroused him. Defendant, on the other hand, seldom talked to Shoopman about sex.
Defendant testified on his own behalf, and said that he was not involved in the abduction and murder of Lucinda Schaefer, but that Norris told him that Norris and another man had committed those crimes. He testified that he and Norris picked up Andrea Hall when she was hitchhiking, and offered her $200 for sex and photographs, to which she agreed. They drove into the mountains, engaged in various sexual acts, and took pictures. Defendant then returned to the van. A while later Norris returned alone, and told defendant that Hall could find her own way home.
Defendant testified that after he and Norris picked up Gilliam and Lamp, he offered Gilliam money if she would pose for photographs. She agreed. They drove to the mountains where he and Norris took the photographs and made a tape recording. The next day Norris dropped defendant at Norris’s residence and left to drive the girls home in the van. Defendant testified that he never saw them again.
Defendant admitted the assault on J.M., and his description of the incident corresponds to that of Norris and J.M. He claimed, however, that his purpose was not to kidnap J.M., but to test the effectiveness of Mace as a defensive weapon.
Finally, defendant testified that Shirley Ledford agreed to sexual acts for money, and to making of a tape. She screamed on cue for the tape, but was not tortured in his presence. Defendant said that after making the tape he returned to his motel, leaving Ledford with Norris.
On cross-examination, defendant acknowledged that he had begun writing a book, and had shown drafts to a newspaper reporter and a guard. The book, entitled “The Last Ride,” contained a detailed account of the murder of Lucinda Schaefer by Norris and the author. It also described the abduction and rape of Andrea Hall (but not her murder), and the abduction of Gilliam and Lamp. In explanation, defendant said that the book was part fact, based on what he had been told by Norris, and part fiction.
4. Penalty phase evidence.
Gary Louie, the victim of defendant’s 1974 assault, testified at the penalty trial. He saw defendant leave a grocery store with a package of meat hidden in his clothes. Louie followed defendant outside and asked if defendant had forgotten to pay for anything. Instantly, without saying a word, defendant stabbed Louie. Defendant was caught by two other employees. The defense presented psychiatric evidence that defendant may have been in an altered state of consciousness at the time of the assault; the prosecution presented contrary expert evidence in rebuttal.
Psychologist Michael Maloney testified for the defense. He described defendant’s lengthy criminal career dating from adolescence, but noted that except for the 1974 incident the crimes were nonviolent, primarily shoplifting and auto theft. On one occasion defendant committed a crime and was returned to custody the day of his release. Dr. Maloney said defendant was quite intelligent (I.Q. over 130). He has no mental illness except an inability to empathize with others. He classified defendant as an “antisocial personality,” a diagnostic category that replaces the former designations of psychopath and sociopath.
II.
Search and Seizure Issues
Defendant contends that both his arrest and the subsequent searches and seizures were illegal. Defendant’s motion to suppress the seized evidence under Penal Code section 1538.5 was denied by the trial court.
1. Validity of arrest warrant.
Defendant argues that the warrant for his arrest and, hence, his arrest, the searches and seizures incident thereto, and statements obtained from defendant while under arrest were improperly obtained because no complaint was on file at the time the arrest warrant was issued.
Defendant was arrested pursuant to a “Ramey” arrest warrant based upon an affidavit filed by a Sergeant Bynum of the Hermosa Beach police department. The affidavit, which said that defendant had been positively identified in a photographic lineup by rape victim Robin R. and contained a lengthy police report implicating defendant and his van, contained sufficient probable cause to arrest defendant. Thus, defendant does not allege insufficient probable cause; rather, he contends that the procedure and form used for the issuance of the warrant were illegal.
A “Ramey” arrest warrant is issued by a magistrate upon the filing of an affidavit form entitled “Probable Cause Complaint in Support of Felony Arrest Warrant.” At the bottom of the form is the phrase “The complaint underlying this warrant of arrest does not initiate a criminal proceeding.” Defendant contends that an arrest warrant can issue only upon a complaint, that a complaint is a document which institutes a criminal proceeding, and thus that a document which says it does not institute criminal proceedings cannot be the basis for an arrest warrant.
Neither constitutional nor statutory directives concerning warrants require that criminal proceedings must be instituted before an arrest warrant may be issued. As the Court of Appeal correctly found in People v. Case (1980) 105 Cal.App.3d 826, 834 [164 Cal.Rptr. 662]: “Reported decisions in cases interpreting Penal Code section 872 [order holding defendant to answer] have uniformly held that the ‘complaint’ filed with the magistrate under Penal Code sections 813 and 806 serves only the purpose of providing a basis for the issuance of a warrant of arrest. Once an individual is arrested and is before the magistrate, the ‘complaint’ is functus officio... .” (Fn. omitted.)
It is apparent that the “complaint,” as the term is used in the Penal Code, serves two different purposes. One is to initiate criminal proceedings; the other to demonstrate probable cause for an arrest warrant. A complaint can be used to institute criminal proceedings without serving as a basis for an arrest warrant, and we see no reason why the converse may not also serve— that a complaint can furnish probable cause for arrest even though a different document is used to institute proceedings. The important point, and one defendant concedes, is that probable cause was shown to support the issuance of the arrest warrant; it is immaterial whether that same document initiated criminal proceedings against him.
2. Arresting officers' compliance with section 844.
Defendant argues that during his arrest the police failed to comply with sections 844 and 1531 because they failed to identify themselves as police officers or to explain the purpose of their demand for admittance. After Norris was arrested by the Hermosa Beach police, Sergeant Bynum directed the police dispatcher to request the Burbank police to arrest defendant on the warrant which Sergeant Bynum held. Six or seven uniformed police officers participated in defendant’s arrest. After the officers were stationed at all of defendant’s windows, Officer Valento knocked on the door of defendant’s motel room. Although the evidence on this point is conflicting, Officer Valento may have announced that it was the Burbank police. After receiving no response from within the motel room, Officer Valento knocked two more times. After the third knock, the bathroom window to the immediate right of the door was opened by the defendant, who asked, “Who is it?” Officer Valento, who recognized defendant, stated that defendant was under arrest, and grabbed his arm through the open window. After defendant responded in the negative to Officer Valento’s inquiry whether anyone else was present in defendant’s room, the officer directed another officer to kick in the locked door so that the officers could enter the room and take defendant completely into their custody.
The notice requirements of section 844 provide that before breaking into a home to effect an arrest, a police officer must identify himself, announce his purpose and demand entry. (People v. Hill (1974) 12 Cal.3d 731, 758 [117 Cal.Rptr. 393, 528 P.2d 1].) It is undisputed that Officer Valento technically complied with the knock requirement. Whether the identification/notice of authority requirement was fulfilled is less clear. We may presume, however, that the trial court resolved the conflicting testimony in favor of the testimony of Sergeant Farrand that an announcement was made.
All that is lacking by way of full compliance with section 844 is an announcement of the officer’s purpose. But when defendant appeared at the window, an announcement of purpose before arresting him would have been hazardous. Defendant was known to carry weapons. Any delay would have allowed him to duck back inside the room and resist entry. Thus the police seizure of defendant, whether preceded or followed by an announcement of purpose, was justified by the circumstances. (See Parsely v. Superior Court (1973) 9 Cal.3d 934, 938 [109 Cal.Rptr. 563, 513 P.2d 611].)
Defendant unpersuasively argues that the second entry by the officers, when the door was kicked in, violated section 844 because the officers failed to give defendant an opportunity to admit them. But the officers, having seized defendant at the window, could not release him without giving him a chance to grab a weapon and resist entry.
3. Legality of search of motel room.
Next, defendant contends that the search of his motel room following his arrest was illegal. Defendant claims his purported consent to the search was vitiated by the allegedly illegal arrest (a contention we have already rejected), that the trial court failed to rule on the voluntariness of his consent, that if defendant did in fact consent to the search, he did not consent to the seizure of evidence, and that the items seized by the police officers failed to meet the “nexus” requirement of Warden v. Hayden (1967) 387 U.S. 294 [18 L.Ed.2d 782, 87 S.Ct. 1642], and People v. Hill, supra, 12 Cal.3d 731, 763 (overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896 [135 Cal.Rptr. 786, 558 P.2d 872]).
Following defendant’s arrest, Officer Valento informed defendant that he was under arrest for robbery, rape, and “288.” (Section 288 is lewd or lascivious acts involving children. The arrest warrant in fact specified forcible oral copulation, which is section 288a.) After the arresting officers had notified the Hermosa Beach police department that they had defendant in custody, the officers were informed that defendant may have been involved in “some 187’s [murders] of females, that there was Mace or some other type of chemical agent used in one of the attacks,” and that some of the victims may have been photographed. Officer Valento explained this to defendant, and asked if defendant had any objections to the police searching his room for evidence concerning those crimes. Defendant indicated that he had no objection to a search. In fact defendant helped throughout the search, pointing out photographs in a box, and opening his combination safe for the officers. The officers ultimately seized numerous photographs, several police scanners, a replica .45 caliber gun, several bottles and jars of chemicals, pornographic film, and various other items.
Defendant’s contention that the trial court failed to rule on the voluntariness of his consent, and thus failed to adjudicate a fundamental issue, is meritless. Defendant’s case is distinguishable from the cases upon which he relies (People v. Rios (1976) 16 Cal.3d 351 [128 Cal.Rptr. 5, 546 P.2d 293]; People v. Kanos (1969) 70 Cal.2d 381 [74 Cal.Rptr. 902, 450 P.2d 278]; People v. Henry (1967) 65 Cal.2d 842 [56 Cal.Rptr. 485, 423 P.2d 557]; People v. Sesslin (1968) 68 Cal.2d 418 [67 Cal.Rptr. 409, 439 P.2d 321]; People v. Blair (1975) 51 Cal.App.3d 480 [124 Cal.Rptr. 123]) because here the sole ground asserted by the People to justify the warrantless search of defendant’s motel room was consent. Therefore, when the trial court denied defendant’s suppression motion, it necessarily ruled on the voluntariness of defendant’s consent.
Finally, defendant argues that even if his consent to the search was voluntary, he did not consent to the seizure of evidence. This argument, however, depends upon defendant’s further claim that there was no “nexus” between the items seized and criminal activities, for given a suitable “nexus,” the police may seize any item discovered during a consensual search.
In People v. Hill, supra, 12 Cal.3d 731, we noted that in Warden v. Hayden, supra, 387 U.S. 294, the United States Supreme Court held that police may not indiscriminately seize items discovered during the course of a lawful police search. Rather, “ ‘[T]here must... be a nexus—automatically provided in the case of fruits, instrumentalities or contraband—between the item to be seized and criminal behavior. Thus, in the case of “mere evidence,” probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. [Citation omitted.]’ ” (Hill, supra, 12 Cal.3d at p. 762.)
In light of the content of defendant’s arrest warrant (robbery, rape, and forcible oral copulation) and the communications received over the telephone from the Hermosa Beach police department (possible photographs taken of victims, and possible involvement in murders), there appears to be sufficient nexus for the police to seize at least the photographs, camera, pistol, and chemicals. Most of the other items seized were not offered into evidence, and their seizure did not prejudice defendant.
4. Legality of seizure of van.
Defendant contends that the warrantless seizure of his van following his arrest was illegal because the officers did not come upon the van “inadvertently” (Coolidge v. New Hampshire (1971) 403 U.S. 443 [29 L.Ed.2d 564, 91 S.Ct. 2022]), and lacked probable cause for its seizure. However, the trial court properly relied on People v. Teale (1969) 70 Cal.2d 497 [75 Cal.Rptr. 172, 450 P.2d 564] and its progeny to uphold the seizure of the van as an instrumentality of the crime.
The officers lawfully seized defendant’s van when “incidental to a lawful arrest, [they seized it] in the reasonable belief that such object is itself evidence [fn. omitted] of the commission of the crime for which such arrest is made... .” (People v. Teale, supra, 70 Cal.2d 497, 511, italics in original.) In Teale, Federal Bureau of Investigation officers arrested defendant in his car and thereupon seized, locked and stored the car until California authorities were able to examine it 10 days later. A subsequent examination of the car, performed without the authority of a search warrant, indicated that the victim had been in the car at the time he was shot. In upholding the car’s seizure, this court drew a distinction between seizure of a car which is itself evidence of a crime, and a car which is a mere container of incriminating articles.
North v. Superior Court (1972) 8 Cal.3d 301 [104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155], relied on Teale, supra, 70 Cal.2d 497, to uphold a seizure of the defendant’s car, parked outside his apartment, although the defendant had been arrested inside his apartment. We held that Teale did not intend to limit the seizure of evidence in plain view only to those objects within the immediate reach of the person arrested. (North, at p. 306.) Rather, seizure of any object in plain view which is itself evidence of a crime is legal (ibid.) provided the arresting officer views it from a position in which he has a legal right to be.
The majority in North, supra, 8 Cal.3d 301, rejected the defendant’s contention that the police must come across the evidence inadvertently, the requirement urged by a minority of the United States Supreme Court in Coolidge v. New Hampshire, supra, 403 U.S. 443. Although the plurality opinion of Justice Stewart concluded that a seizure could not be justified on the theory that the vehicle was itself the “instrumentality” of the crime because the plain-view doctrine applied only to inadvertent discovery of incriminating evidence (id., at pp. 464-473), only four members of the court signed that portion of the opinion. North therefore declined to view Coolidge as controlling.
The facts in North, supra, 8 Cal.3d 301, parallel those of the present case. In North a young girl was abducted at knifepoint by the defendant and forced into his car. The victim identified defendant and described the car. Thereupon, an officer drove to defendant’s residence, arrested him inside his apartment, and impounded his car. The car was later searched at the police station and incriminating evidence was discovered.
In the case at bar, the police were furnished a description of defendant’s van by Robin R., who was allegedly kidnapped and raped by defendant and Norris in the van. Ms. R. also selected defendant’s photograph out of a photographic lineup of potential suspects. Although Ms. R. did not describe the van with the same specificity as North’s victim’s description of the car, the critical similarity is that in both cases the police had probable cause to believe the vehicle was not merely a container of evidence, but an instrumentality of the crime. Thus, the trial court correctly upheld the van’s seizure based upon People v. Teale, supra, 70 Cal.2d 497, and North v. Superior Court, supra, 8 Cal.3d 301.
Defendant, however, contests probable cause because of Ms. R.’s “inaccurate” description of the van’s color. (She described the van in which she was abducted as light blue, when defendant’s van in fact is silver.) Despite this inconsistency, the fact that Ms. R. positively identified defendant in a photographic lineup, in addition to the fact that her description of the van closely approximated its actual appearance, create sufficient probable cause for the arresting officers to seize the van as an instrumentality of a crime.
5. Lawfulness of search of impounded van.
Three days after the police seized defendant’s van, Sergeant Bynum and another officer entered it to search for bloodstains, semen stains, and other evidence of Ms. R.’s rape. Upon entering the van, they realized that its interior did not match Ms. R.’s description. They saw, however, a number of items in plain view which, they realized, might be evidence of other crimes they were investigating. They eventually seized a number of items, including two pieces of jewelry (crosses with chains), a douche package, a “sap,” a book on locating police broadcasting frequencies, a container of Vaseline, and several cassette tapes, including the tape recording the torture of Ledford. All of these items were admitted into evidence except for the tapes other than the Ledford tape.
Defendant argues that the postimpoundment search of the van and seizure of the items inside exceeded the scope of a permissible examination to determine the van’s “evidentiary value” as is permitted by the Teale (supra, 70 Cal.2d 497) line of cases. He claims that when the officers began seizing items contained in the van, rather than merely “examining” the van for its “evidentiary value,” the officers went beyond the permitted examination. Their actions turned into a “search,” and thus a warrant was necessary.
Teale, supra, 70 Cal.2d 497, did not address the propriety of the seizure of independent items of evidence during the examination of the instrumentality. However, in North v. Superior Court, supra, 8 Cal.3d 301, the court refers to tests conducted on defendant’s car (e.g., tire impression, wheel span, etc.), and it also stated that “examination of the vehicle turned up additional evidence linking [defendant] with the crime.” (Id., at p. 305, italics added.) It is unclear exactly what the “additional evidence” was, but the implication is that it was evidence other than that resulting from the various scientific tests conducted on the car itself. Further, in People v. Rogers (1978) 21 Cal.3d 542 [146 Cal.Rptr. 732, 579 P.2d 1048], we relied on Teale, supra, 70 Cal.2d 497, to uphold the seizure of magazines and paraphernalia and a loaded revolver from a van belonging to the defendant, who was accused of molesting children and photographing them in his van. (Rogers, at p. 546.) Both North and Rogers appear to suggest that the permissible examination following a warrantless seizure of an instrumentality of a crime includes the search and seizure of independent items of evidence contained within the instrumentality itself.
In People v. Minjares (1979) 24 Cal.3d 410 [153 Cal.Rptr. 224, 591 P.2d 514], however, the court criticized the use of the “instrumentality of the crime” theory to justify the search of an automobile. Holding that the doctrine did not permit the search of a closed container within a vehicle (p.423)—a holding that does not affect the present case—the court remarked that “[i]f there were any vitality to the ‘instrumentality’ exception as it applies to automobiles.. ., it would be applicable only to a scientific examination of the object itself, for example for fingerprints, bloodstains, or the taking of tire impressions or paint scrapings.” (P. 422.)
Thus while the instrumentality doctrine justifies the officer’s entry into the van to search for bloodstains and other evidence of Ms. R.’s rape, it may not in itself justify the search of the van for other objects not attached to or part of the van itself. But that argument does not help defendant, for once the officers were lawfully in the van, they were entitled to seize, without a warrant, those objects then in plain view which evidenced defendant’s criminal acts. (See Warden v. Hayden, supra, 387 U.S. 294.) Thus, the search of the van and the seizure of items therein were properly held to be lawful by the trial court.
6. The “search” (listening) of the Ledford tape.
Defendant argues that assuming the seizure of the cassette tapes from his van was lawful, it was unlawful for the police to “search” (i.e., listen to) the Ledford tape without a warrant. (See Walter v. United States (1980) 447 U.S. 649 [65 L.Ed.2d 410, 100 S.Ct. 2395] [warrant required to view films lawfully in possession of Federal Bureau of Investigation].) Defendant, however, is barred from raising this objection on appeal because he failed to object to the playing of the tape in the trial court. (People v. Rogers, supra, 21 Cal.3d 542, 547-548.) Because defendant failed to object, the prosecution did not attempt to justify the search, with the result that the record on appeal is insufficient to resolve the issue of its validity. For the same reason, we cannot determine whether it is reasonably probable that a result more favorable to defendant would have resulted from a timely objection. (See People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144].)
7. Searches pursuant to a warrant of defendant’s van, storage boxes, and jail cell.
Defendant contends that subsequent searches of his van, storage boxes, and jail cell, done pursuant to a warrant, were unlawful. In the trial court defendant objected to the admission of evidence seized in these searches on the ground that the warrant was based on an affidavit containing reference to the contents of the Ledford tape, which was allegedly illegally seized. Since we have determined that the tape was properly seized, and defendant failed to object to the playing of the tape, the issue does not warrant further discussion.
On appeal, defendant alleges that he was denied effective assistance of counsel evidenced by his counsel’s failure to object to the searches at issue on the following additional grounds: (1) the seizure of items not specified in the warrant exceeded the scope of the warrant; (2) some of the items authorized for seizure by the warrant were not supported by probable cause; and (3) the warrant for seizure of “sexual literature” was impermissibly overbroad. As was the case with the listening to the Ledford tape, the record on appeal is insufficient for us to conclude these asserted grounds constitute ineffective assistance of counsel.
8. The search of Shoopman’s jail cell.
After finding several letters from Richard Shoopman to Norris and defendant during the search of Norris’s residence, the police became interested in the extent of Shoopman’s knowledge of and possession of evidence of the alleged crimes. Therefore, on December 27, Judge Woolpert of the San Luis Obispo Superior Court executed a warrant authorizing the search of Shoopman’s cell in the California Men’s Colony for letters or photographs sent to Shoopman from defendant or Norris. The police ultimately recovered fourteen photographs and five letters, two of which were introduced as evidence.
Defendant contends that the search of Shoopman’s cell and seizure of evidence was illegal because the affidavit supporting the warrant contained a reference to the contents of the Ledford tape. We have held, however, that the Ledford tape was properly seized, and that defendant’s failure to object bars him from attacking the police’s listening to the tape. Even if we were to assume that the search and seizure of the Ledford tape was unlawful, the affidavit supporting the warrant authorizing the search of Shoopman’s cell contains more than sufficient probable cause. Among other information, the affidavit contains the contents of letters seized from Norris’s residence in which Shoopman acknowledged receiving photographs of young girls from Norris and defendant. Further, the affidavit recounts a conversation between defendant and one of his fellow inmates, in which defendant admitted that he had sent Shoopman three photographs which show where defendant and Norris had dumped the bodies of the girls.
III.
Defendant’s Right to Be Present
Defendant claims he was improperly deprived of his constitutional and statutory right to be present on seven occasions during trial. He argues he was prejudiced by his absence (1) from a continuance hearing on the Friday prior to trial; (2) from an in-chambers conference where the trial court advised the district attorney and defense counsel that it would limit the death-qualifying voir dire to four questions; (3) when the court advised a jury-selection expert, who arrived in the court’s chambers without prior notice, that it would not authorize payment of county funds for her fees; (4) from a hearing following the prosecution’s subpoena requiring defense counsel to produce photographs allegedly given him by defendant; (5) from an ex parte communication with the jury where the court advised the jurors on the “gruesome” nature of the evidence and reminded them of their obligation to evaluate it dispassionately; (6) and (7) from at least two in-chambers conferences on the scope of cross-examination.
“[T]he accused is not entitled to be personally present either in chambers or at bench discussions which occur outside of the jury’s presence on questions of law or other matters in which defendant’s presence does not bear a ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” (People v. Jackson (1980) 28 Cal.3d 264, 309-310 [168 Cal.Rptr. 603, 618 P.2d 149]; People v. Bloyd (1987) 43 Cal.3d 333, 360 [233 Cal.Rptr. 368, 729 P.2d 802]; People v. Teitelbaum (1958) 163 Cal.App.2d 184 [329 P.2d 157].) With respect to six of the seven instances cited, we see no arguable basis for claiming that defendant’s absence “prejudiced his case or denied him a fair and impartial trial.” (Jackson, supra, at pp. 309-310; Bloyd, supra, at p. 360.)
The only doubtful matter is defendant’s absence from a hearing on his counsel’s motion for a continuance the Friday immediately prior to the trial. Defendant’s attorney had just learned that Lloyd Douglas would be a witness against defendant, and asked for additional time in which to investigate Douglas. Defendant claims that if present he could have given the court or his attorney information that may have served as a basis for the court granting a continuance. This would have enabled his attorney to research Douglas’s background, prepare for his testimony and assess whether they should have modified the defense strategy in light of Douglas’s expected testimony.
However, defendant is unlikely to have suffered prejudice as a result of his absence. The trial court continued the hearing until the following Monday when defendant could be present. Defendant presumably could have given the court or counsel any information he had at that time. Even if the court had already reached a tentative decision, it could have reconsidered on the basis of any new information presented. We note also that considerable time elapsed between the date of the motion and Douglas’s actual testimony, during which defendant could have investigated Douglas.
IV.
Jury-selection Issues
1. Dismissal of defendant’s jury-selection expert.
Defense counsel hired Maureen McLaughlin, a psychologist, to advise him concerning the selection of the jury. He agreed to pay her $500 a day.
During the first day of jury selection, jurors were questioned individually in chambers concerning their views of the death penalty. McLaughlin was present during this voir dire to assist defense counsel. At the start of the second day, the court called counsel and McLaughlin into chambers and told her that “I am not authorizing your services.” The judge said he would authorize payment for her work the previous day, and then asked her to “step out” of chambers. Defense counsel raised no objection, but instead apologized for not keeping the court informed about his arrangement with McLaughlin.
If defendant had moved under section 987.9 for funds to hire a jury-selection expert, we could view the judge’s statement as a denial of that motion, and inquire whether it was an abuse of discretion. But defendant never made such a motion.
Defendant claims that the judge acted precipitously in ordering McLaughlin to leave his chambers where the jury was being selected. If McLaughlin were willing to work pro bono, or counsel to pay her fees from some other source, she would be entitled to remain and continue to assist in the selection. But defendant did not allege then, and does not now claim, that such an arrangement was feasible.
2. Limitation on death-qualifying voir dire.
Concerned about the implications of our discussion in Hovey v. Superior Court (1980) 28 Cal.3d 1, 71-75 [168 Cal.Rptr. 128, 616 P.2d 1301], where we explained how the death-qualifying process can bias the jury, the trial court here decided to limit that process as much as possible. It formulated four specific questions, which were put to all jurors, and refused to permit further questions from counsel. The first two questions inquired about guilt and special circumstances. Question three asked: “Do you have such a conscientious opinion or religious conviction regarding the death penalty that if you found the defendant guilty of murder in the first degree and you found the special circumstances alleged to be true, that you would automatically find the penalty to be life imprisonment without the possibility of parole?” The fourth question asked: “Do you have such a conscientious opinion or religious conviction regarding the death penalty that if you found the defendant guilty of murder in the first degree and the special circumstances herein alleged to be true, that you would automatically find the penalty to be death?” When answers were ambiguous, the judge sometimes asked further questions, but did not permit counsel to ask questions on this subject. Defendant asserts this limitation constitutes reversible error.
Problems stemming from the trial court’s ruling arose frequently during the voir dire. Juror M., asked whether she would automatically vote in favor of death, responded, “That’s hard to say.” The court asked no followup questions, but observed that the juror’s response was not sufficient to disqualify her. Defense counsel agreed, but again objected that vague answers to the court’s questions did not really reveal the views of the jurors, and the court’s ruling did not give attorneys latitude to explore the matter.
Juror P., asked whether she would automatically vote in favor of life imprisonment, replied, “Well, the death penalty, I believe in. If you take somebody’s life, willfully take somebody’s life, that you give up your own.” On further questioning from the judge, she agreed that she “would have to really think about it... according to what I felt had preceded.” In response to the fourth question, whether she would automatically vote for death if she found defendant guilty of first degree murder with special circumstances, she replied, “Well, if all the evidence pointed that way, yes.”
The answer appears equivocal: it could mean she would automatically vote for death if the evidence pointed toward guilt with special circumstances, or it could mean she would automatically vote for death if the evidence pointed toward death as the appropriate penalty (although under the latter interpretation the word “automatically” has little meaning). Defense counsel interpreted that answer as an automatic vote for death; the court interpreted it differently. Expressing his frustration at being unable to question the juror, counsel challenged for cause, but the court denied the challenge.
Juror A., asked if she would automatically vote for life imprisonment, answered, “Yes, I guess so.” The prosecutor challenged for cause. The court told defense counsel that under the rules he could not rehabilitate her, and granted the challenge. Similar exchanges occurred with respect to Jurors D., R., and E.. Finally, when Juror S., on general voir dire, said that because of her bias against rapists she might go for a “stiffer sentence,” defense counsel was not permitted to ask if she would automatically vote for death.
Even under the rule of People v. Edwards (1912) 163 Cal. 752 [127 P. 58] (overruled prospectively in People v. Williams (1981) 29 Cal.3d 392 [174 Cal.Rptr. 317, 628 P.2d 869], which broadened the scope of voir dire to permit examination for peremptory challenge), a party was entitled to put questions which might expose a basis for a challenge for cause. Although the trial court’s policy is understandable in light of what we said in Hovey, supra, 28 Cal.3d 1, it nonetheless appears erroneous in two respects.
First, the judge cannot reserve voir dire for himself and exclude counsel. As we stated in People v. Hughes (1961) 57 Cal.2d 89, 94-95 [17 Cal.Rptr. 617, 367 P.2d 33]: “[C]ounsel for a defendant in a capital case has the right to question the prospective jurors on voir dire for the purpose of ascertaining whether any would vote to impose the death penalty without regard to the evidence in the event of a conviction. ... In order to intelligently exercise the right to challenge for cause defendant’s counsel must be accorded reasonable opportunity to lay a foundation for the challenge by questioning the prospective jurors on voir dire to learn whether any entertain a fixed opinion of this nature.”
Second, and perhaps more important, the judge did not conduct an adequate voir dire himself. By failing to follow up on meaningless (Juror M.) or ambiguous (Juror P.) answers, he placed counsel in an impossible position; counsel had reason to believe the jurors were disqualified, but could not prove it without further questions designed to elicit a clear and unambiguous response. The judge also excused several jurors whose responses suggested an automatic vote for a life sentence, without questions to probe whether the juror was really disqualified.
In defense of the trial court’s ruling, the Attorney General relies on People v. Ketchel (1963) 59 Cal.2d 503 [30 Cal.Rptr. 538, 381 P.2d 394] and People v. Nye (1969) 71 Cal.2d 356 [78 Cal.Rptr. 467, 455 P.2d 395], Both cases appear distinguishable. In Ketchel (which was tried before Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]) the judge asked the jurors if they had any belief “that would prevent you from voting for the death penalty simply because of the fact that it is the death penalty?” He excused those jurors who raised their hand. We found no error, stating that “[t]he determination whether a juror has shown that he entertains ‘conscientious scruples against conviction where the penalty is death’ and to refuse further examination on the point [citation] reposes within the discretion of the court.” (59 Cal.2d at p. 529.) In Nye, supra, 71 Cal.2d 356, the judge also excused prospective jurors each of whom had “made it unmistakably clear that he would not vote in favor of the death penalty under any circumstances, no matter what evidence was presented.” (P. 363.) We upheld the court’s refusal to allow defense counsel to question those jurors for the purpose of rehabilitation, citing Ketchel. (Ibid.)
Both cases permit the court to excuse a juror when that juror has given an unequivocally disqualifying answer. Neither permitted a court to prohibit voir dire of jurors who gave equivocal answers. Nye observed expressly that the trial judge had excused only those jurors whose answers made their disqualification unmistakably clear, and said there was no need for further examination of those particular jurors. (71 Cal.2d at p. 364.) We do not question a judge’s discretion to decide that a juror’s disqualification is so clear that further voir dire is pointless, and to excuse the juror, but this does not justify denying voir dire when the juror’s answers are equivocal and the juror is retained.
We turn, therefore, to the question of prejudice. Defendant calls our attention to People v. Carmichael (1926) 198 Cal. 534, 547 [246 P. 62], which appeared to find improper limitation on voir dire reversible per se. Carmichael said that “[n]o authority has been called to our attention which can be construed as holding that section 41/2 of article VI [now art. VI, § 13] of the constitution can be relied upon to sustain the judgment herein.... The ruling of the court in thus limiting the appellant in his examination of the jurors was, in our opinion, the deprival of the appellant of a fundamental right,—a right to be tried by an impartial jury. It was never intended by this provision of the constitution to take from the defendant in a criminal action his fundamental right to a jury trial or in any substantial manner to abridge this right.” (Carmichael p. 547.)
Subsequent cases, however, have steadily drawn back from the use of a per se standard. In People v. Estorga (1928) 206 Cal. 81 [273 P. 575], the court affirmed a judgment, despite erroneous restriction of voir dire, because defendant confessed from the stand, “the result was just, and... would have been reached if the error had not been committed.” (P. 85.) People v. Barrett (1929) 207 Cal. 47 [276 P. 1003], then confirmed the Estorga holding, but declined to apply it to a case in which the credibility of prosecution witnesses was open to question. After a 50-year gap in which we have found no reported cases, this court again addressed the subject in People v. Williams, supra, 29 Cal.3d 392, 412, and declared that “[ajlthough in many contexts a procedure depriving defendant of the right to secure an impartial jury necessarily dictates reversal (see, e.g., People v. Wheeler (1978) 22 Cal.3d 258, 283 [148 Cal.Rptr. 890, 583 P.2d 748]; People v. Carmichael, supra, 198 Cal. 534, 547), that standard should not apply if the potential for bias relates only to a particular doctrine of law.” In the most recent decision, People v. Kronemyer (1987) 189 Cal.App.3d 314 [234 Cal.Rptr. 442], defendant, an attorney, was accused of defrauding a senile client. The court restricted defense counsel’s voir dire on the jurors’ experience with senility. The Court of Appeal found error, but declined to reverse because the court permitted some inquiry into the area, the defense voir dire of jurors was extremely cursory, and the defense exercised only one peremptory challenge.
This list of exceptions to the per se rule of Carmichael, supra, 198 Cal. 534, convinces us that the rule itself should be abandoned. To categorize any erroneous restriction as the denial of the right to jury trial implies reversal for the most trivial of errors, and invites the creation of more and more exceptions to the rule. Judicial limitations on voir dire vary in scope and severity, and in their impact on the jury selection and the ultimate outcome of trial. We see no reason why the courts should not recognize those differences, and limit reversals to those cases in which the erroneous ruling affected defendant’s right to a fair and impartial jury.
In adopting this standard to measure reversible error, we follow our recent decision in People v. Coleman (1988) 46 Cal.3d 749 [251 Cal.Rptr. 83, 759 P.2d 1260]. In that decision we offered a number of reasons for rejecting the claim that an erroneous denial of a challenge for cause was reversible per se; the most important, we said, was that “the error here did not result in a jury particularly apt to impose the death penalty, and there is no indication that the jury before which defendant was tried was anything other than fair and impartial.” (46 Cal.3d at p. 768.) Coleman in turn relied on the decision of the United States Supreme Court in Ross v. Oklahoma (1988) 487 U.S. 81 [101 L.Ed.2d 80, 108 S.Ct. 2273], which also involved the erroneous denial of a challenge for cause, compelling defendant to remove the biased juror by peremptory challenge. The Supreme. Court reasoned that the right of peremptory challenge is not itself of constitutional dimension; it is a means to protect the constitutional right to an impartial jury. (See Ross, supra, 487 U.S. at p. 88 [101 L.Ed.2d at p. 90, 108 S.Ct. at p. 2278].) Since defendant did not claim that any of the 12 jurors who heard the case were subject to challenge for cause, or were not impartial, his right to an impartial jury was not abridged.
The right to voir dire, like the right to peremptory challenge at issue in Coleman, supra, 46 Cal.3d 749, and Ross, supra, 487 U.S. 81, is not a constitutional right but a means to achieve the end of an impartial jury. Here certain prospective jurors gave insufficient or ambiguous answers to questions relating to their views on capital punishment, so the parties should have been permitted to ask follow-up questions. But every one of those jurors was removed by prosecution or defense challenge. When the jury was finally selected, defendant did not claim that any juror was incompetent, or was not impartial. We therefore find no prejudicial error.
3. Denial of defendant’s challenges for cause.
The defense objected to the judge’s rulings denying its challenges for cause to five jurors, but used peremptory challenges to dismiss those jurors. When defendant had used all 26 peremptory challenges given him by statute (former § 1070), the judge observed that defense counsel had said he intended to exercise all his challenges to protect the record. The judge then announced that, although he was satisfied with his rulings on challenges for cause, “I have decided ... to give you two additional peremptories in addition to the 26 based on an abundance of caution.” The prosecution requested two additional challenges also, to which the court agreed.
The defense exhausted its additional challenges. At that point the prosecution had used 21 challenges. It dismissed five additional jurors, bringing its total to twenty-six, but did not utilize the two extra challenges given it by the judge.
Defendant now renews his claim that the court erred in denying the challenges for cause to five jurors. Defendant maintains that a single erroneous denial of a challenge for cause is prejudicial; the Attorney General argues that since defendant received two extra peremptory challenges, he must show that at least three challenges were improperly denied.
The denial of a peremptory challenge to which defendant is entitled is reversible error when the record reflects his desire to excuse a juror before whom he was tried. (People v. Armendariz (1984) 37 Cal.3d 573, 584 [209 Cal.Rptr. 664, 693 P.2d 243].) Since the erroneous denial of a challenge for cause compels the defense to use a peremptory challenge, a similar analysis applies to denial of a challenge for cause. (People v. Coleman, supra, 46 Cal.3d 749, 770-771.) Defendant must show that the error affected his right to a fair and impartial jury. (P. 771.)
Thus, defendant must show that he used a peremptory challenge to remove the juror in question, that he exhausted his peremptory challenges (see Coleman, supra, 46 Cal.3d 749, 770 and cases there cited) or can justify his failure to do so (People v. Box (1984) 152 Cal.App.3d 461 [199 Cal.Rptr. 532]), and that he was dissatisfied with the jury as selected. But if he can actually show that his right to an impartial jury was affected because he was deprived of a peremptory challenge which he would have used to excuse a juror who sat on his case, he is entitled to reversal; he does not have to show that the outcome of the case itself would have been different. (See People v. Helm (1907) 152 Cal. 532, 535 [93 P. 99]; People v. Diaz (1951) 105 Cal.App.2d 690, 696-699 [234 P.2d 300].)
This reasoning necessarily implies that an erroneous denial of a challenge for cause can be cured by giving the defendant an additional peremptory challenge. One older case, People v. Freeman (1891) 92 Cal. 359, 365-366 [28 P. 261], so holds. More recent cases which speak of defendant’s obligation to advise the court of his dissatisfaction with the jury assume that the court, so advised, could fashion an appropriate remedy (see, e.g., People v. Crowe, supra, 8 Cal.3d 815, 832), and the grant of additional peremptory challenges would seem to be such a remedy. We therefore conclude that defendant must show that the court erroneously denied challenges for cause to at least three prospective jurors.
We therefore turn to an analysis of the jurors in question, bearing in mind that in view of defendant’s two additional challenges, it is necessary for him to show erroneous rulings affecting three jurors to prove prejudice.
(a) Juror G..
During voir dire, Juror G. stated that “before I ever came here, I felt in my head he was already guilty.” This opinion was based on reading newspaper accounts of the case. The mother of one of the victims worked in the same building as G., but there is no indication that they knew each other or had even met. G. remembered hearing some conversation that included the fact that a victim’s mother worked in the building, but recalled no other details of the conversation.
Section 1076 provides that “[n]o person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to the jury, founded upon public rumor, or statements in public journals, circulars, or other literature, or common notoriety if upon his or her declaration, under oath or otherwise, it appears to the court that he or she can and will, notwithstanding that opinion, act impartially and fairly upon the matters to be submitted to him or her.” The challenge to G. is governed by this section, since she had formed an opinion of the case based upon accounts in a public journal. The critical question is whether G. properly declared that she could act impartially and fairly.
G.’s own testimony is conflicting. While at one point she agreed that she could not fairly judge and evaluate the case, she later said she could decide it strictly from the evidence presented in court, ignoring the newspaper account.
As stated in People v. Linden (1959) 52 Cal.2d 1, 22 [338 P.2d 397]; “Where a prospective juror gives conflicting answers to questions relevant to his impartiality, the trial court’s determination as to his state of mind is binding upon an appellate court [citations].” People v. Ghent (1987) 43 Cal.3d 739, 768 [239 Cal.Rptr. 82, 739 P.2d 1250] further declares that “where equivocal or conflicting responses are elicited..., the trial court’s determination to his true state of mind is binding on an appellate court.”
This principle requires us to uphold the ruling denying the challenge to Juror G.. On the record before us, G. showed a commendable ethical concern about her ability to be fair in light of the opinion she had formed. When directly questioned on her ability to reach a decision strictly based on the evidence presented in court, she indicated her belief that she could do so. The trial court cannot on this record be said to have acted improperly in denying the challenge for cause.
(b) Juror S..
Juror S. had heard something about the case on television and in the newspaper. She recalled that the case involved people being picked up and raped in a van, and also that pictures were taken of the people who were killed. S. told the judge that she had worked at a rape crisis center, and did not believe she would be impartial in a case involving charges of rape. Her voir dire presents no unqualified statement that she actually felt that she could be fair and impartial in the penalty phase of this case.
Defense counsel asked S. if it was her position that, because of “your strong feelings about victims of rape, that you would be unable to really fairly and impartially judge and evaluate such a situation?” She responded with an unqualified “yes.” The prosecutor, attempting to rehabilitate her, could obtain only a statement that she would act impartially at the guilt phase. The judge asked if she would be willing to listen to the evidence and be a fair and impartial juror; she said that “I could try, but I believe it would be difficult.... [Ojne of the questions I do remember was about listening to gruesome testimony. And I think I would have a tendency to have a saturation point perhaps below what other people—an anger point, perhaps, or something to that effect. So that I wouldn’t be listening wholly to the evidence.”
In short, Juror S. said she did not think she could be impartial at the penalty phase, and when asked if she would listen to the evidence and judge fairly, replied that she might not be able to listen to all the evidence. On this record we conclude that the trial court erred in denying the challenge for cause.
(c) Juror H..
Juror H. formed an opinion of the case based on reading newspaper accounts. His opinion thus falls under those covered by section 1076. In response to a question whether he could put that opinion out of his mind and decide the case on the evidence, he replied, “I wish I could say yes, okay, but I really don’t think so.” Following a lecture by the court on the duty of jurors, H. said he would try to be impartial, “[b]ut I would have a very difficult time... because I’ve got preconceived ideas on it already.” Defense counsel asked if “what you’re telling us is that because of what you have read, you have preconceived notions which would be most difficult if not impossible to put out of your mind?” H. responded, “That’s correct.”
The trial judge denied a defense challenge for cause because the juror “just said he would have a difficult time. He didn’t say that he couldn’t do it.” But this reasoning is inconsistent with section 1076, which provides that if a juror has an opinion based upon public journals, he is qualified only if he affirmatively declares that he can and will act impartially. A declaration that he will try to be impartial, but doubts that he can succeed, is insufficient. We conclude that the court should have sustained the challenge for cause.
(d) Juror K..
Juror K. had not been exposed to media accounts of the case, and had no preformed opinions. During voir dire, K. stated that she did not think that she could be fair, because she would get emotionally involved. This feeling apparently stemmed from having a 15-year-old daughter, and the number and the nature of the charges.
K., however, also stated that she believed she had the ability to follow the court’s instructions and base her decision solely on the evidence as it comes from the witness stand. She also spontaneously stated that she believed that a person is innocent until proven guilty.
These conflicting answers present the same issue as arose with Juror G.. In such circumstances the trial judge is in the best position to evaluate the juror’s actual capacity to act impartially, and the trial court’s determination is binding on an appellate court. (People v. Ghent, supra, 43 Cal.3d 739, 768; People v. Linden, supra, 52 Cal.2d 1, 22.)
Any juror sitting in a case such as this would properly expect the issues and evidence to have an emotional impact. A juror is not to be disqualified for cause simply because the issues are emotional. Disqualification for cause must ultimately rest on the existence of preconceptions which will prevent a decision from being reached based on the evidence and the instructions of the court. Here, there is no significant evidence of preconceptions which would bias the deliberations, and a clear statement of the ability to decide on the basis of the evidence. The trial court acted properly in denying this challenge for cause.
(e) Marguarite P..
We have previously discussed the voir dire of Juror P., and noted that her answer to a question asking whether she would automatically vote in favor of death was equivocal. Because it was equivocal, the judge did not err in finding it insufficient to require her dismissal for cause.
4. The prosecutor’s use of peremptory challenges.
Late in the voir dire of the jury defense counsel objected that the prosecutor was exercising his challenges on a basis showing group bias. (See People v. Wheeler, supra, 22 Cal.3d 258, 280.) The record showed that the prosecutor challenged 5 of 6 Black jurors (83.3 percent) and 21 of 60 White jurors (35 percent). Defendant claimed that these figures demonstrate a prima facie case, shifting to the prosecutor the burden to justify the challenges. The court afforded the prosecutor a chance to respond—the prosecutor denied the charge—and then denied defendant’s motion.
Defendant argues that by offering the prosecutor a chance to respond to the motion, the court in effect found that defense counsel had made a prima facie showing of group bias, thus shifting to the prosecutor the burden to justify his challenges. We do not so interpret the judge’s ruling. He did not call upon the prosecutor to explain his challenges, but to respond to the defense motion. When the judge then denied the motion, he did so on the ground that the defense had not made out a prima facie showing of group bias, not that the prosecutor had rebutted such a showing.
To establish a prima facie case, the defendant “must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (People v. Wheeler, supra, 22 Cal.3d 258, 280.) In determining whether the defendant has made such a showing, trial judges may “bring to bear on this question their powers of observation, their understanding of trial techniques, and their broad judicial experience.” (Id., at p. 281.)
As in People v. Dominick (1986) 182 Cal.App.3d 1174 [227 Cal.Rptr. 849] and People v. Rousseau (1982) 129 Cal.App.3d 526 [179 Cal.Rptr. 892], the record here suggests grounds upon which the prosecutor might reasonably have challenged the five Black jurors he excused. Juror T. had studied psychology and, on voir dire, said, “I really feel that I would try to be an amateur psychologist, psychiatrist, if I was in this case, in due fairness.” Juror M. expressed considerable doubt whether she could vote for a verdict of first degree murder in a case in which the body had never been found. Juror W. initially said that she would automatically return a verdict of life imprisonment; she later equivocated, and the judge denied the prosecutor’s challenge for cause. Juror W. opined that in a death penalty case, the standard of proof should not be that of reasonable doubt, but absolute proof. Juror M. was uncertain whether he could return a death verdict and told the judge, “If you ask me if I could kill somebody, I don’t know. So I can’t just sit here and tell you.” Under these circumstances, we believe the trial court did not err in finding no prima facie showing of group bias.
V.
Guilt Phase Issues
Defendant raises 40 guilt phase issues. We omit those that are not of arguable merit, or which have been resolved by opinions filed subsequent to briefing.
1. Norris’s plea bargain.
Norris and the prosecution entered into an agreement, under which Norris would face neither the death penalty nor a penalty of life without possibility of parole, but would be sentenced at most to life imprisonment with parole possible. Norris in return agreed to help the sheriff to find the bodies of the victims and physical evidence relating to the murders, to testify at defendant’s trial, and to plead guilty to five counts of murder without special circumstances, two counts of rape, and one of robbery. The parties carried out their bargain, and Norris is presently serving a life sentence.
In People v. Medina (1974) 41 Cal.App.3d 438 [116 Cal.Rptr. 133], the Court of Appeal held that a plea bargain was invalid if it required the witness to testify to a particular version of the facts, and that testimony given pursuant to that bargain was tainted. Later in People v. Fields (1983) 35 Cal.3d 329, 361 [197 Cal.Rptr. 803, 673 P.2d 680], we endorsed Medina, but declared that “the requirements of due process, as explained in Medina, are met if the agreement thus permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.”
Defendant contends that the agreement between the prosecution and Norris does not meet these criteria. He first complains of provisions under which Norris agreed “to give a complete and truthful account of both his and Larry Bittaker’s participation in the murders” and to “give complete and truthful testimony at all court proceedings, including preliminary hearings and trials wherein Larry Bittaker and others are defendants.” Defendant suggests that these provisions required him to testify that defendant participated in the murders, even if that testimony were untrue. We think this is not a reasonable interpretation of the agreement. Norris was required to testify truthfully. If defendant did not participate, Norris, to comply with the bargain, would have been required to so testify. Nothing in the bargain requires or permits Norris to testify falsely against defendant.
Defendant further complains that the agreement provides that “[t]he District Attorney’s Office of the County of Los Angeles shall have authority and discretion to determine whether or not Roy Lewis Norris testified truthfully and completely .... If requested by Roy Lewis Norris, Superi- or Court Judge Edward Hinz of the Southwest Judicial District shall determine whether or not there has been an abuse of such authority and discretion.” Under the agreement, if the district attorney finds that Norris did not testify truthfully, and Judge Hinz finds no abuse of discretion, the bargain is set aside, and the prosecution may seek the death penalty.
The provision in the agreement providing for judicial review to determine whether the district attorney abused his discretion is troubling. The legal principles, established in the cases discussed earlier, are clear: if Norris testified fully and truthfully, he is entitled to the benefit of his bargain; if not, the district attorney has discretion to revoke the bargain. We do not believe they can be altered by contract so as to limit the court to reviewing the district attorney’s discretionary finding as to whether Norris told the truth.
As we have noted, the agreement called for full and complete testimony. We do not believe that the language concerning the scope of judicial review in this case presents any significant risk of inducing Norris to give false or incomplete testimony. Thus while we advise against language in a plea bargain which purports to give the district attorney, and not the court, discretion to determine whether the witness testified truthfully, we find no reversible error.
2. Availability of the original Ledford tape.
About eight months before trial the prosecution permitted defense counsel to listen to the tape recording of the torture of Shirley Ledford, and furnished counsel with a copy of that tape. During the presentation of the prosecution’s case at trial, the defense asked permission from the prosecution to make a better copy. The prosecution objected to taking the original tape from the court, and the court refused to permit any copying. The defense then filed a formal motion for copy and a continuance to permit testing of the copy; the court denied the motion.
It is clear that defendant’s motion was untimely. The time for obtaining copies of evidence and submitting them to expert examination is before trial, not during the prosecution’s case. Even though defendant’s original request, unlike his later motion, was not accompanied by a request for continuance, the trial court could reasonably fear that granting the request would delay proceedings.
3. Testimony of J.M.
Defendant objects to testimony concerning his attempt to abduct J.M. because he was not charged in this proceeding with any crime against J.M. Defendant was charged with conspiracy to kidnap women, however, and this incident was listed as an overt act in support of the charged conspiracy. Evidence of the J.M. incident was excluded at the preliminary examination but defense counsel did not move to dismiss or strike the accompanying overt-act allegation. (See § 995.)
Defendant now contends that since this evidence was excluded at the preliminary examination, the accompanying overt-act allegation should have been dismissed on a motion under section 995. Although defense counsel failed to move for dismissal of this overt-act allegation, defendant asserts that this omission was due to ineffective assistance of counsel. But whether or not counsel was ineffective in this regard—an issue which cannot be decided upon the present record—in light of counsel’s failure to move to strike the overt-act allegation, the trial court did not err in admitting the evidence. (We express no opinion as to whether the evidence might also be admissible to prove identity under Evidence Code section 1101.)
4. Admissibility of “The Last Ride. ”
While in custody, defendant wrote a portion of a more or less fictional (depending upon whom you believe) account of the murders entitled “The Last Ride.” He showed the book to a newspaper reporter who wrote an article describing it. According to defendant’s offer of proof, Sergeant Budds asked defendant about the book, and he facetiously asked if Budds would like “to read and correct it.” Budds declined to do so. A few days later, however, he asked defendant if he could read and review it. Defendant “stated that in submission to authority only he would let him see it and for the limited purpose of correcting it and that it not be disclosed to anyone or used by anyone for any purpose.” The prosecution did not introduce the book in its case-in-chief, but made use of it, over defense objection, in cross-examining defendant.
The trial court denied defendant’s objection as untimely. Defendant concedes here that the objection was untimely to the extent it was based on a theory that defendant submitted to authority and did not voluntarily consent to the seizure of the manuscript. (§ 1538.5, subd. (h).) He maintains, however, that the objection was also based upon violation of his Fifth and Sixth Amendment rights, because Sergeant Budds asked him for the manuscript without giving Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) warnings and without defendant’s counsel being present.
Defendant’s argument mistakenly assumes that his consent was essential to the validity of the seizure of the manuscript. But defendant had no reasonable expectation of privacy in property within his jail cell either under federal law (see Hudson v. Palmer (1984) 468 U.S. 517, 526 [82 L.Ed.2d 393, 402-403, 104 S.Ct. 3194]) or under California decisions which govern searches antedating DeLancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142] (see People v. Valenzuela (1984) 151 Cal.App. 3d 180, 189 [198 Cal.Rptr. 469] and cases there cited). Since Budds could have seized the manuscript without asking for or receiving consent, the issues defendant raises are immaterial to the validity of the seizure.
5. Evidence of defendant's 1974 assault.
On cross-examination, the prosecutor asked defendant why he had not objected when Norris abandoned Andrea Hall in the mountains. Defendant replied that he was intimidated by Norris. The prosecutor asked, “in fact, Mr. Bittaker, Mr. Norris was afraid of you, isn’t that true?” Defendant responded that Norris had training in martial arts. The prosecutor then asked, “But you’re the one that almost killed a person before with a knife. Is that true?” The court overruled defendant’s objection. The prosecutor then put on further evidence of defendant’s 1974 assault on a store clerk.
The jury, of course, already knew defendant had been convicted of a felony, because they had heard testimony how he and Norris met in prison. They did not know the nature of the felony. Defendant claims that because the 1974 offense had almost no marks of similarity with the charged crimes, evidence showing the nature of that offense was inadmissible under Evidence Code section 1101. Section 1101, subdivision (a), however, prohibits the use of prior specific conduct only “when offered to prove [defendant’s] conduct on a specified occasion.” (Italics added.) The prosecutor offered the evidence to prove defendant’s state of mind—that defendant did not feel intimidated by Norris—rather than defendant’s conduct on any particular occasion. The evidence was admissible.
6. Barring mention that Norris had been adjudicated a mentally disordered sex offender.
The court refused to permit defense counsel to mention in his opening statement that Norris had been adjudicated a mentally disordered sex offender (MDSO). The prosecutor’s objection was that “laypeople... have no idea what that means, it connotes a lot of things, we’re going to get into a lot of side issues getting experts to testifying about what mentally disordered sex offender means.” The court’s ruling was apparently based on those grounds.
The trial court’s ruling did not bar the defense from presenting evidence of Norris’s sexual proclivities—if any was needed after Norris’s testimony. It barred only proof of his classification. Since that classification is a technical one, which would have to be explained to the jury, and when explained would add little to the case, we believe the trial court’s ruling was within its discretion.
7. Exclusion of evidence of crimes of Norris and Jackson.
When examining Joe Jackson, defense counsel asked him whether he and Norris were involved in an attempted rape in April of 1979. The court sustained the prosecutor’s objection.
Defendant certainly had a right to attempt to show that Norris and Jackson had committed some of the crimes of which he was charged. But evidence that they committed some other crime would ordinarily be inadmissible. Defendant’s question to Jackson did not suggest any relationship between the attempted rape in April and the charged crimes that would render the evidence admissible, and when the court sustained an objection defendant made no offer of proof. We therefore find no error in the ruling.
8. Impeachment of C.D..
C.D. testified that when she rejected defendant’s advances, he pulled a gun and said, “you wouldn’t argue if I pulled the trigger.” Defense counsel sought to impeach her by evidence that she had made false charges of sexual molestation against two other men. The trial court upheld an objection under Evidence Code section 352. Its ruling is not an abuse of discretion. The value of the evidence as impeachment depends upon proof that the prior charges were false. This would in effect force the parties to present evidence concerning two long-past sexual incidents which never reached the point of formal charges. Such a proceeding would consume considerable time, and divert the attention of the jury from the case at hand.
9. Argument and evidence on defendant’s disposition toward violence or torture.
The prosecutor offered considerable evidence, generally without objection or request for limiting instructions, which tended to show defendant’s psychological disposition toward acts of violence and his interest in sexual torture. The evidence included testimony concerning defendant’s discussion of his sexual fantasies with Richard Shoopman, various sadomasochistic and bondage magazines found in defendant’s possession, and evidence that defendant wrote a threatening letter to the judge who presided over his prior assault trial. The prosecutor relied on this and other evidence to argue defendant’s psychological proclivities.
Defendant’s failure to object to inadmissible evidence, or to request limiting instructions when evidence was admissible for other purposes, bars him from raising the issue on appeal. (See People v. Baines (1981) 30 Cal.3d 143, 149 [177 Cal.Rptr. 861, 635 P.2d 455].) Likewise his failure to object to the allegedly improper argument bars that issue on appeal. (See People v. Green (1980) 27 Cal.3d 1, 28 [164 Cal.Rptr. 1, 609 P.2d 468].)
10. The prosecutor’s question concerning a letter to Shoopman.
Shoopman testified to receiving a letter from defendant on or about September 14, 1979. On cross-examination the prosecutor asked him, “Isn’t it a fact, Mr. Shoopman, that he [defendant] wrote you about the rape and killing of a girl in the mountains before September 14?” Shoopman denied receiving such a letter, and the prosecutor did not mention the matter further.
Defendant invokes the rule that it is “improper to ask questions which clearly suggested the existence of facts which would have been harmful to defendant, in the absence of a good faith belief by the prosecutor that the questions would be answered in the affirmative, or with a belief on his part that the facts could be proved, and a purpose to prove them, if their existence should be denied.” (People v. Lo Cigno (1961) 193 Cal.App.2d 360, 388 [14 Cal.Rptr. 354], quoted in People v. Perez (1962) 58 Cal.2d 229, 241 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946].) The problem in applying this rule is that it makes the issue turn on the prosecutor’s good faith, and the record will rarely contain evidence bearing on that matter. In the present case, there is evidence that Shoopman received letters from defendant which he destroyed, but we have no information as to the contents of those letters, or what the prosecutor knew of their contents. Neither can we determine whether the prosecutor, at the time he asked the question, intended to prove the fact at issue. One might infer lack of intent from the fact that the prosecutor did not introduce evidence to prove the content of the destroyed letter, but one can readily imagine that by the time he could offer rebuttal evidence the prosecutor might have concluded that such additional evidence was unnecessary. On the record before us, misconduct has not been demonstrated.
11. Questions and comment on defendant concealing evidence.
On cross-examination defendant admitted that he had hidden a number of photographs and one tape by burying them at Forest Lawn Cemetery. He refused to say exactly where he buried them and, despite being found in contempt of court, persisted in that refusal. The prosecutor returned again and again to this topic, asking defendant nine times where the photographs were; each time defendant refused to reveal their location. At closing argument the prosecutor suggested that the photographs and tapes may show scenes of torture or murder.
Defense counsel argues that the prosecutor was badgering defendant, but when a defendant admits to concealing evidence, and defies a court order to reveal its location, surely the prosecutor has considerable latitude in questioning him on the matter. Defendant also argues that the prosecutor’s closing argument was contrary to the evidence, since Norris and others who had seen the photographs said they described only scenes of sexual activity, not torture. But when a defendant conceals evidence the prosecutor can argue the inference that the evidence was unfavorable to defendant. (See People v. Redmond (1981) 29 Cal.3d 904, 910 [176 Cal.Rptr. 780, 633 P.2d 976].) Thus the prosecutor here could reasonably argue that if the photographs supported defendant’s version of the facts, defendant would not continue to conceal them.
12. Instructions on the use of prior felony convictions to impeach.
The trial court instructed the jury that in determining the credibility of a witness it could consider prior felony convictions. (CALJIC No. 2.20.) The problem is that the jury had heard evidence of some felony convictions which, under the law at time of trial, would not be admissible to impeach. It had learned of defendant’s prior conviction for assault with a deadly weapon, and Shoopman’s prior conviction for murder. Prosecution witnesses were equally tainted: the jury learned of Norris’s prior rape conviction and Lloyd Douglas’s convictions for manslaughter and burglary.
Under People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1], which states the law governing defendant’s trial, a felony conviction was admissible to impeach only if the offense bore upon veracity. (See People v. Rist (1976) 16 Cal.3d 211, 219 [127 Cal.Rptr. 457, 545 P.2d 833]; People v. Delgado (1973) 32 Cal.App.3d 242, 250 [108 Cal.Rptr. 399].) Of the convictions brought before the jury, only Douglas’s conviction for burglary would meet that test. Thus the court should either have limited its instruction to convictions bearing on veracity or, when admitting the evidence, admonished the jury that it could not be used to impeach the credibility of the witness. Since the error is not of constitutional dimension, the appropriate test of prejudice is the “reasonable probability” test set out in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], In light of the overwhelming evidence of defendant’s guilt, we find no reasonable probability that, absent the error in question, the jury would have reached a different result.
13. Instructions that Norris was an accomplice.
The court instructed the jury that Norris was an accomplice as a matter of law, and his testimony required corroboration. This instruction was legally correct. We have, however, cautioned that “where a codefendant has made a judicial confession as to crimes charged, an instruction that as a matter of law such codefendant is an accomplice of other defendants might well be construed by the jurors as imputing the confessing [cojdefendant’s foregone guilt to the other defendants.” (People v. Hill (1967) 66 Cal.2d 536, 555 [58 Cal.Rptr. 340, 426 P.2d 908]; see People v. Valerio (1970) 13 Cal.App.3d 912, 924 [92 Cal.Rptr. 82]; People v. Richardson (1960) 182 Cal.App.2d 620 [6 Cal.Rptr. 61].) Under the circumstances of this case, however, there is no significant danger that the jury would impute Norris’s admitted guilt to defendant.
14. Instructions on false imprisonment.
Defendant argues that the court should have instructed on false imprisonment as a lesser included offense of kidnapping. There was evidence that all of the victims except Schaefer voluntarily entered defendant’s van. Norris testified, however, that all were immediately subdued, and then transported a considerable distance against their will. Defendant testified that none of the victims was restrained involuntarily in his presence. There is no evidence that any victim went voluntarily to the place of her death, and only then was restrained against her will. Thus there is no evidence to support an instruction on the crime of false imprisonment.
15. Instructions on torture murder.
The trial court instructed the jury that it could find first degree murder based on the infliction of torture if two requirements were met: “(1) the act or acts which cause the death must involve a high degree of probability of death, and (2) the defendant must commit such act or acts with a wilful, deliberate and premeditated intent to inflict extreme and prolonged pain.” Defendant claims such instructions are incomplete because they omit the purpose of the torture.
In People v. Tubby (1949) 34 Cal.2d 72, 76 [207 P.2d 51], we defined murder by torture as requiring an intent to cause cruel suffering “either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity.” (P. 77.) People v. Steger (1976) 16 Cal.3d 539 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206], however, omitted mention of the purpose of the torture, and defined it as “murder conmitted with a wilful, deliberate, and premeditated intent to inflict extreme and prolonged pain.” (P. 546.)
Six months after we filed People v. Steger, however, People v. Wiley (1976) 18 Cal.3d 162 [133 Cal.Rptr. 135, 554 P.2d 881] quoted Tubby, supra, 34 Cal.2d 72, with approval (18 Cal.3d at pp. 172-173) and endorsed a jury instruction which required that defendant “commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose.” (P. 168.) We explained in a footnote that Steger did not define all the elements of murder by torture, but was concerned only with establishing that the act of torture must be premeditated. (18 Cal.3d at p. 173, fn. 4.) A later decision, People v. Davenport (1985) 41 Cal.3d 247, 267 [221 Cal.Rptr. 794, 710 P.2d 861], endorsed the Wiley definition of murder by torture, and relied upon it to cure deficiencies in the instructions on torture-murder special circumstances.
When defendant was tried in 1981, the court apparently overlooked both Wiley, supra, 18 Cal.3d 162, and the CALJIC instruction which was based on Wiley, and instructed in the language of People v. Steger, supra, 16 Cal.3d 539. We agree with defendant that this instruction was erroneously incomplete. It is apparent, however, that defendant was not prejudiced under any applicable standard of prejudice, for while defendant disputes how many victims were tortured, it is undisputed that whatever torture was inflicted was done for a “sadistic purpose.”
VI.
Special Circumstances Issues
Defendant challenges five of the thirty-eight special circumstance findings. He objects to the finding that Lamp was intentionally killed because she was a witness to a crime. He points out that this special circumstance applies only if “the killing was not committed during the commission... of the crime to which he was a witness” (§ 190.2, subd. (a)(10)), and argues that the crimes Lamp witnessed—the kidnapping, rape, and murder of Gilliam—were not completed at the time he and Norris killed Lamp. He also objects to the findings that the murders of Schaefer, Hall, Gilliam, and Ledford “involved the infliction of torture” (§ 190.2, subd. (a)(18)), raising the question whether the acts of torture must be the cause of death. (Compare People v. Hoban (1985) 176 Cal.App.3d 255, 264 [221 Cal.Rptr. 626] [torture-murder special circumstance does not require proof of causation] and People v. Talamantez (1985) 169 Cal.App.3d 443, 455-456 [215 Cal.Rptr. 542] [torture murder under § 189 requires proof of causation].)
We find it unnecessary to resolve these issues. A single valid special-circumstance finding is sufficient to determine that defendant is eligible for the death penalty. (See People v. Velasquez (1980) 26 Cal.3d 425, 436 [162 Cal.Rptr. 306, 606 P.2d 341].) Errors involving additional special circumstances, while they may prejudicially affect the penalty trial, do not undermine the verdict at the close of the guilt phase of the trial.
VII.
Penalty Phase Issues
1. Excessive special circumstances.
The jury found 38 special circumstances. Among them were 20 multiple-murder special circumstances. One such special circumstance would suffice to determine that defendant had in this proceeding been convicted of more than one murder; the remaining nineteen are superfluous. (People v. Harris, supra, 36 Cal.3d 36, 67.) We have also noted the possible invalidity of one witness-killing and four torture-murder special circumstances.
Despite finding 20 multiple-murder special circumstances, the jury was aware at all times that there were 5, not 20, murders. The questions concerning the validity of the witness-killing and torture-murder special circumstances are technical matters which do not affect the admissibility of evidence. Regardless of those circumstances the jury would still have heard evidence that defendant killed Lamp because she had witnessed the crimes he perpetrated on another victim, and that defendant had tortured four of his other victims. Finally, the jury found at least 14 valid special circumstances—far more than is found in most death penalty cases. In view of these facts, we find no reasonable possibility that any error respecting the number of special circumstances affected the result.
2. The rebuttal testimony of Dr. Markman.
In the penalty phase, defendant presented testimony from Dr. Maloney, a psychologist, who described defendant’s history and personality, and concluded that he had an “antisocial personality disorder.” He also called Dr. Tronkman, a psychiatrist, who testified that defendant may have committed the 1974 assault while in an altered state of consciousness. The prosecution then called another psychiatrist, Dr. Markman, in rebuttal. Dr. Markman testified not only that defendant was not mentally ill at the time of the 1974 assault, but also that he was not mentally ill at the time of the murders charged in the present case.
Defendant presents a variety of arguments attacking the admissibility of Dr. Markman’s testimony, but all boil down to the claim that to the extent the testimony went beyond the 1974 offense it was not proper rebuttal. Anticipating the obvious rejoinder that the defense, through Dr. Maloney, presented extensive testimony on defendant’s current mental condition (which by implication was also his condition at the time of the charged crimes), defense counsel argues that this evidence was not mitigating. Perhaps so; one can argue that evidence that a defendant has been in jail most of his life and has an antisocial personality disorder is not likely to sway a jury in his favor. But the defense had nevertheless opened up the issue of defendant’s mental condition; the prosecution should have the right to present rebuttal evidence on that topic.
3. Instructions on evidence of uncharged crimes.
At the guilt phase of the trial the jury heard evidence of uncharged crimes, the assault upon and attempted kidnapping of J.M. The prosecutor referred to this event in his penalty phase argument. The court, however, failed to instruct the jury at the penalty phase that before it could consider these crimes as aggravating factors, they must find beyond a reasonable doubt that defendant committed the crimes. In failing to so instruct, the court erred. (See, People v. Robertson (1982) 33 Cal.3d 21, 55 [188 Cal.Rptr. 77, 655 P.2d 279].)
This error, however, is of little significance. Defendant admitted the assault on J.M. The jury, while it did not find that defendant attempted to kidnap her, found defendant guilty of conspiring with Norris to kidnap women, and specified the J.M. incident as an overt act done pursuant to the conspiracy. Under these circumstances it is not reasonably possible that the failure of the court to give a reasonable-doubt instruction affected the verdict.
4. Improper prosecution argument.
Defendant attacks numerous assertions made during the prosecutor’s penalty argument. Defense counsel did not object to any of these assertions at trial. We have never required an objection to raise claims of error based upon Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633] or People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440]. With respect to the other issues, since defendant failed to object, we must consider whether the harm could have been cured by a timely admonition. (People v. Green, supra, 27 Cal.3d 1, 28.)
(a) Comment on defendant's failure to call Dr. Coburn.
Dr. Maloney, testifying for the defense at the penalty trial, said he had discussed his report with Dr. Coburn, a psychiatrist, and that Dr. Coburn agreed with its conclusions. The defense did not call Dr. Coburn as a witness. In closing argument the prosecutor remarked, “And you didn’t see Dr. Coburn testify here. Don’t you believe that if there was some psychiatric evidence favorable to the defendant, that you would have seen it, when he’s on trial for his life right now?”
Defendant argues that since Dr. Coburn examined him at counsel’s request, Dr. Coburn’s opinions were protected by the attorney-client privilege. (People v. Lines (1975) 13 Cal.3d 500, 510 [119 Cal.Rptr. 225, 531 P.2d 793].) The prosecution may not comment upon a defendant’s failure to call a witness if the defendant has a privilege to bar disclosure of that witness’s testimony. (Evid. Code, § 913; see People v. Wilkes (1955) 44 Cal.2d 679, 687 [284 P.2d 481] [marital privilege]; People v. Lathrom (1961) 192 Cal.App.2d 216, 222 [13 Cal.Rptr. 325, 88 A.L.R.2d 785] [attorney-client privilege].) But since any prejudice from the prosecutor’s comment could have been cured by a timely objection and admonition, defense counsel’s failure to object thus bars consideration of this issue.
(b) Norris's nonviolent past.
The prosecutor argued without objection that “Bittaker was the one with the violent past” and that “Norris had been sent to prison on a rape by threat, not forcible rape, but a rape by threat.” Since the evidence showed only Norris’s conviction of rape, the prosecutor’s assertion that the rape was not forcible went beyond the evidence. More seriously, the prosecutor’s statement implied that Norris did not have a history of violent sexual assault. Yet the prosecutor was aware that Norris had previously been found to have committed a violent rape in which he beat the victim with a rock, and was committed as a MDSO. The trial judge had excluded evidence of this event because of the difficulty in explaining MDSO classification and procedure to the jury. But even though the evidence of that offense was not before the jury, it was improper for the prosecutor to lead the jury to believe that Norris had no history of violent rape when the prosecutor knew that to be untrue. (Cf. Miller v. Pate (1967) 386 U.S. 1 [17 L.Ed.2d 690, 87 S.Ct. 785].)
If the only problem was the prosecutor’s misstatement of the evidence— his assertion that Norris’s 1976 conviction was for rape by threat, when the record was silent on the point—the matter could have been redressed by timely admonition. But the further implication that Norris had no history of violent rape probably could not have been cured without informing the jury that Norris had such a history. The trial court had previously refused to permit that information to go before the jury, and it is unlikely that an objection during closing argument would have changed that ruling.
We conclude that the misconduct in question is cognizable on appeal. We find, however, insufficient basis for reversal of the verdict. Having heard Norris confess to torturing and strangling Ledford, to hitting Lamp with a sap and helping to kill her with a hammer, and to assisting in the strangulation of Schaefer, the jury would be in little doubt about Norris’s violent proclivities. We see no reasonable possibility that information about another violent rape—this one committed many years earlier—would have altered the verdict.
(c) The death penalty as a deterrent.
The prosecutor argued, without objection, that the jury should impose the death penalty to deter felons from murdering their victims. Our decisions in People v. Love (1961) 56 Cal.2d 720, 729-731 [16 Cal.Rptr. 777, 366 P.2d 33] and People v. Ketchel, supra, 59 Cal.2d 503, 536-540, condemn such argument. As explained in the latter case, “[t]he argument addresses the minds of the jury to the deterrence of designated ‘potential killers’ rather than the penalty to be adjudged to the defendants.... The sought imposition of the death penalty thus rests upon the unproven and illegitimate assumption that it acts as a deterrent to the described ‘potential killers’.... The warning of the prosecution injected a false and foreign weight in the scale of the rendition of a delicate, crucial decision.” (People v. Ketchel, supra, 59 Cal.2d 503, 538-539.) The misconduct, however, could have been cured by timely objection and admonition.
(d) Consistency to preclude reversal on appeal.
The prosecutor properly argued that the death penalty was appropriate for each of the murders. He then commented, without objection, that the jurors should make a consistent finding on all of the murders because “you have a chance of having your wishes carried out, as this case goes through the appellate court, more if you are consistent in your findings.”
In Caldwell v. Mississippi, supra, 472 U.S. 320, the prosecutor argued to the jury that theirs was not the final decision as to life or death, but that the case would be reviewed by an appellate court. The United States Supreme Court reversed the penalty, holding that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” (Pp. 328-329 [86 L.Ed.2d at p. 239].)
Defendant characterizes the prosecutor’s argument here as coming within the framework of Caldwell v. Mississippi, supra, 472 U.S. 320, but the frame does not fit. Arguably the mere mention of appeal is improper, since it rarely serves any constructive purpose and may lead the jury on its own to infer that their responsibility for penalty determination is diluted. But when the context does not suggest appellate correction of an erroneous death verdict, the danger that a jury will feel a lesser sense of responsibility for its verdict is minimal.
The prosecutor’s comment, however, is clearly improper for another reason. It is not the function of the jury to “appeal proof’ its verdict. It would obviously be improper for the jury to return a death verdict with respect to one murder to protect the death verdict it returned for a different murder, and the prosecutor should not have suggested that the jury do so. But although we thus conclude that the prosecutor’s comment was improper, since it does not come within the scope of Caldwell, supra, 472 U.S. 320, defense counsel’s failure to object is fatal to his contention.
(e) The method of weighing factors and determining penalty.
The trial court instructed the penalty jury in the language of the 1978 death penalty law. In People v. Brown, supra, 40 Cal.3d 512, 538-544, we recognized that the wording of an instruction in the statutory language “leave[s] room for some confusion as to the jury’s role” in determining the appropriate penalty. (40 Cal.3d at p. 544, fn. 17.) We resolved to examine cases tried prior to Brown, such as the present case, “to determine whether, in context, the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion under the 1978 law.” (Ibid.) In this case, as in most, our inquiry begins by examining the prosecutor’s penalty phase argument.
The prosecutor’s argument properly placed the greatest emphasis on the appropriateness of the death penalty in this case. Shortly after beginning his argument, he asked the jury: “What penalty has Lawrence Sigmond Bittaker earned in this case? Has he earned the death penalty for the torture and suffering that he inflicted on Cindy Schaefer, Andrea Hall, Jackie Gilliam, Leah Lamp, and Lynette Ledford?” He continued: “Has he earned the death penalty for the barbaric and callous nature of his crimes which has shocked the public conscience and greatly affected all of us? ... Or has he earned the lesser penalty of life imprisonment without the possibility of parole? And a chance to spread his tales of torture and violence and bloodshed to other adoring prisoners such as the Richard Shoopman type who will some day be paroled to prey on the young girls in our society? Does anyone actually believe that life imprisonment without possibility of parole is punishment for Mr. Bittaker? Where do you think he’s been for 18 of the last 22 years? Prison, of course. It’s his home.”
After describing defendant’s life in prison, the prosecutor continued: “Make no mistake about it, ladies and gentlemen, a sentence of life imprisonment without possibility of parole for Lawrence Bittaker in this case would be a total complete victory for him.”
“When should the death penalty be imposed?... [S]ome cases are so brutal, so vicious, so horrendous, so inhumane that in order for us to exist as a society, we have to totally repudiate the conduct involved and we have to say, ‘we will not accept it, we will not allow it, and the one mainly responsible for it has to suffer the supreme penalty.’... [fl] If the death penalty isn’t proper in this case, when would it ever be proper?”
Finally, after reviewing the evidence in the case and discussing the statutory factors, the prosecutor concluded: “What has this monster earned? The death penalty? Or life imprisonment without possibility of parole? My only regret in this case, ladies and gentlemen, is that I can’t ask you for more than the death penalty. Because even if Bittaker is executed in the gas chamber at San Quentin, that’s quick and humane compared to what he did to these poor, tortured girls.”
Other portions of the prosecutor’s argument, however, do not correctly state the law. After reading a list of the 11 statutory factors under section 190.3, the prosecutor told the jury: “Now here’s the real important paragraph. If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.
“Now that takes some of the burden off of you. It’s not a question of whether you like the death penalty or you don’t like it or you’re in favor of it or you’re opposed to it. You’re bound by law, you’re bound as jurors to follow the law....
“What this means is, say to give a simple example, if we were to give actual weight in pounds and ounces to the aggravating circumstances and the mitigating circumstances, if the aggravating circumstances weighed 10 pounds and one ounce and the mitigating circumstances weighed 10 pounds, then you would be duty bound to impose a death penalty.
“Now obviously I don’t think in this case that it’s even close. I mean the aggravating circumstances on a scale, they’re going to put the scale way down at the bottom. And the mitigating circumstances aren’t going to make that scale even come off the ground.
“If you were to give a percentage to it, if you said 50.1 percent of the evidence pointed to aggravating circumstances and 49.9 pointed to mitigating circumstances, then you’d still have to impose a sentence of death. But again I really don’t think that it’s going to be that close in this case... .”
This argument is inconsistent with our opinion in People v. Allen (1986) 42 Cal.3d 1222, 1276-1277 [232 Cal.Rptr. 849, 729 P.2d 115], because it depicts the weighing process as one involving the application of an arithmetical formula involving the assignment of weights to each of the factors, followed by an addition of the entries in each column to determine the balance. Any process which can yield a conclusion that aggravating considerations prevail by 50.1 percent to 49.9 percentage is clearly not the kind of qualitative moral assessment required by our decisions.
Furthermore, the prosecutor’s claim that a death verdict is compelled if aggravating considerations outweigh mitigating by the slightest of margins—an ounce, or one-tenth of one percent—is directly contrary to People v. Brown, supra, 40 Cal.3d 512. Brown stated specifically that “to return a death judgment, the jury must be persuaded that the [aggravating factors are] so substantial in comparison with the [mitigating factors] that it warrants death instead of life without parole.” (Pp. 541-542, fn. 13.) Upon rehearing, we approved a jury instruction to the same effect. (P. 545, fn. 19.) Under this language, it is clear that if a jury actually found a 50.1 to 49.9 percent balance in favor of aggravation, it could properly refuse to impose a death verdict on the ground that the aggravating factors were not sufficiently substantial in comparison to the mitigating factors to warrant the death penalty.
Other portions of the prosecutor’s address implicate another concern we addressed in Brown, supra, 40 Cal.3d 512, and Allen, supra, 42 Cal.3d 1222. The prosecutor, as we have noted, told the jury that their task was not so much to determine what penalty defendant should receive—the law “takes some of [that] burden off of you”—as simply to determine whether aggravating factors outweigh mitigating. If they do “then you would be duty bound to impose a death verdict.” This language suggests that the jurors do not have the ultimate burden of determining whether defendant should live or die. Caldwell v. Mississippi, supra, 472 U.S. 320, however, tells us that the sentencer must assume the full burden of deciding whether a defendant should live or die. A capital sentencing scheme relying on jury discretion, Caldwell said, assumes “ ‘that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision [].’... Belief in the truth of the assumption that sentencers treat the power to determine the appropriateness of death as an ‘awesome responsibility’ has allowed this Court to view sentencer discretion as consistent with... the Eighth [Amendment]... .” (Pp. 329-330 [86 L.Ed.2d at p. 240], quoting McGautha v. California (1971) 402 U.S. 183, 208 [28 L.Ed.2d 711, 726, 91 S.Ct. 1454].)
Despite the prosecutor’s erroneous arguments, upon review of the whole record, we find no danger that the jury was misled into undertaking a narrowly limited, mathematical analysis of the evidence and the statutory factors. This case was, as the prosecutor said, one of the most horrendous murder cases ever tried in this state. The evidence was graphic and compelling, showing not only defendant’s commission of the crimes, but also defendant’s careful and deliberate planning of the crimes, the astonishing cruelty with which they were committed, and his intent to continue to commit crimes of this character. Defendant not only demonstrates, but glories in his readiness to commit murder, rape, and torture. The prosecutor properly emphasized such facts to show that defendant deserved the death penalty. Under these circumstances, it is most unlikely that the jury would have been led by the prosecutor’s explanation of the decisionmaking process to refrain from considering whether defendant’s conduct warranted the death penalty, and induced instead to engage in a dispassionate analysis of the statutory factors to confirm that the aggravating predominate by at least 50.1 to 49.9 percent. We find no reversible error.
5. Prejudice.
The ordinary test of prejudice for penalty phase error is described in our recent opinion in People v. Brown (1988) 46 Cal.3d 432, 447 [250 Cal.Rptr. 604, 758 P.2d 1135]: the judgment will be affirmed unless we find a reasonable possibility that the jury would have rendered a different verdict had the errors not occurred. We have already examined the penalty phase errors, and concluded that each was not prejudicial. Applying the reasonable-possibility test of prejudice, we now conclude that the combined effect of the errors was not prejudicial. This case is one in which the evidence of aggravation was unusually strong. Defendant kidnapped and murdered five teenage girls, raped four of them, and tortured at least one. The photographs of the victims and the shocking tape recording of the torture of the last victim could not help but impress a jury. The evidence in mitigation, by contrast, was particularly weak; it established only that defendant was reasonably civil to persons who were not his victims, and that he had an antisocial personality disorder. On this record we can declare that there is no reasonable possibility that had the errors not occurred a different verdict would have been rendered.
The judgment is affirmed.
Lucas, C. J., Mosk, J., Panelli, J., Eagleson, J., Kaufman, J., and Arguelles, J., concurred.
Appellant’s petition for a rehearing was denied August 24, 1989, and the opinion was modified to read as printed above.
Defendant, when arrested, had a scar on his chest as described by Norris.
Defendant had mailed the photograph in evidence to Richard Shoopman, an inmate friend. Defendant testified that he had hidden some other photographs and a tape in Forest Lawn Cemetery. Although found in contempt of court, he refused to divulge their exact location, and a police search failed to find them. Relying on the descriptions by Norris and other witnesses, a police artist reconstructed some of the photographs. The judge, however, refused to admit the drawings into evidence, ruling that they would be more prejudicial than probative.
Defendant and Norris had seen a gangster movie while in prison in which the villain killed his victims in this fashion. According to Norris, it impressed defendant as an instantaneous, quiet, and relatively painless way of killing, but as defendant said, in reality it was not that easy.
Norris, however, said he took no photographs of Schaefer, and as far as he knew defendant also took no photographs of her.
The book itself was not put into evidence. Certain portions were read by the prosecutor, and acknowledged by defendant, on cross-examination.
“Ramey” arrest warrant and affidavit forms resulted from our decision in People v. Ramey (1976) 16 Cal.3d 263 [127 Cal.Rptr. 629, 545 P.2d 1333], which held that the constitutional prohibition against unreasonable searches and seizures applies to persons as well as to property.
Ironically, despite defendant’s many crimes he was actually arrested for one which he may not have committed. Robin R. was unable to identify defendant in person, her description of the interior of the van where she was held did not match defendant’s van, and the manner of her kidnapping and rape differed from defendant’s characteristic mode of operation. Consequently defendant was not charged with the Robin R. crimes.
Penal Code section 813 provides in pertinent part: “When a complaint is filed with a magistrate charging a public offense originally triable in the superior court... if the magistrate is satisfied from the complaint that the offense... has been committed and that there is reasonable ground to believe that the defendant has committed it, the magistrate shall issue a warrant for the arrest of the defendant... .”
All statutory references are to the Penal Code unless otherwise stated.
Section 806 provides in relevant part: “A proceeding for the examination before a magistrate of a person on a charge of an offense originally triable in a superior court must be commenced by written complaint under oath subscribed by the complainant and filed with the magistrate.”
The Fourth Amendment to the United States Constitution and the identically worded article I, section 13 of the California Constitution, both simply provide that: "... a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”
Section 844 provides in relevant part: “To make an arrest ... a peace officer... may break open the door or window of the house in which the person to be arrested is.. ., after having demanded admittance and explained the purpose for which admittance is desired.” Section 1531 provides in pertinent part: “The officer may break open any outer or inner door or window of a house ... or anything therein, to execute the [search] warrant, if, after notice of his authority and purpose, he is refused admittance."
This court has held that sections 844 and 1531 are “identical in principle," so although section 844 does not expressly require notice of the arresting officer’s authority, this type of notice is “an integral part of the rule stated in section 844." (Greven v. Superior Court (1969) 71 Cal.2d 287, 292, fn. 6 [78 Cal.Rptr. 504, 455 P.2d 432].)
Sergeant Farrand, an officer participating in defendant’s arrest, testified that Officer Va-lento announced that it was the Burbank police after knocking on the door. Sergeant Farrand was stationed approximately five to six feet away from Officer Valento during the arrest. Conversely, Officer Valento testified that he “didn’t announce [his] presence at all when [he was] knocking.”
Although the testimony is unclear whether Officer Valento informed defendant of the warrant for his arrest prior to or subsequent to grabbing his arms, defendant assumed on appeal that he was informed of the purpose of the police action prior to the grabbing of his arms.
The officers reasonably assumed that defendant had access to a weapon, because the offenses charged in the warrant involved the use of a weapon, previously Officer Valento contacted defendant concerning a report that he had exhibited a firearm during a strike at his place of employment and found that defendant had a replica gun but had live ammunition as well, and the officers had received information that defendant might have some sort of chemical, Mace, or tear gas.
The present case antedates the enactment of article I, section 28, of the California Constitution, which bars exclusion of relevant evidence in criminal proceedings. Thus the trial court had authority to exclude evidence seized in violation of the California Constitution as interpreted in Minjares.
At trial, defendant objected to the seizure of the tape from the van, but not to the subsequent “search” of the tape.
Since this case arose prior to the enactment of article I, section 28, of the California Constitution, defendant relies on the vicarious exclusionary rule established by earlier California decisions (People v. Martin (1955) 45 Cal.2d 755 [290 P.2d 855]; Kaplin v. Superior Court (1971) 6 Cal.3d 150 [98 Cal.Rptr. 649, 491 P.2d 1]).
Under section 987.9, a motion for expenses must be made by written affidavit, and must be heard by a judge other than the trial judge. Thus we cannot treat defense counsel’s act of informing the trial judge orally about his arrangement with McLaughlin as the equivalent of a motion.
We said in Hovey that “In a typical death-qualifying voir dire, the judge and the attorneys repeatedly instruct the jurors about the steps leading to the penalty trial and question each prospective juror, oftentimes at considerable length, concerning his or her attitudes about capital punishment. These repeated displays of concern about the death penalty before any evidence of guilt has been presented may prompt the jurors to infer that the court and counsel assume the penalty trial will occur.” (Pp. 70-71.) We reviewed a study by Dr. Craig Haney which indicated that jurors who had been through a death-qualifying process were more likely to believe the defendant guilty and to favor the death penalty, and noted his conclusion that “ ‘[t]he more extensive the questioning, the more you would expect to find important differences between the state of mind of jurors who have been through the one process [death-qualification] as compared with those who have been though the other [voir dire without death qualification].’ ” (P. 79.) We concluded, “[t]his proposition implies a corollary: ‘the extent to which [these effects] are minimal will be a function of the extent to which the questioning is minimized.’ ” (Pp. 79-80.)
The conference at which the court made its ruling was unreported. Later during the voir dire defense counsel asked the judge to explain his ruling to defendant. The judge said, “The case law that guides this court dictates, and I make the ruling, that... only certain questions, specific questions, be asked of the jurors having to do with their attitude in regard to the death penalty. And I made that type of ruling, and I’ve made that clear to the attorneys. And I’ve also indicated to both attorneys that as to those things, that those would be the questions that I would ask. As for general voir dire ... of course the code section allows the attorney a reasonable opportunity to make inquiry of the respective jurors for cause."
Defense counsel responded: “Judge, what I’m concerned about, and I think the record should be made clear, is that you’ve indicated, if I’m interpreting correctly that in reference and regards to the death qualifying questions that neither Mr. Kay [the prosecutor] nor I would be permitted to ask any questions. It is our position, of course that... a... capital case is so unique that asking four general questions often is not adequate to really ascertain the thinking process of a particular juror, particularly in view of the fact that the questions which are based on Witherspoon sometimes create problems for an individual to comprehend.... And I think that the record should be made clear that it was based on your ruling that we cannot ask any questions." The court replied, “... that’s true. That’s true.” (Italics added.)
In People v. Crowe (1973) 8 Cal.3d 815 [106 Cal.Rptr. 369, 506 P.2d 193], we held that the trial judge may, in his discretion, adopt the federal model in which the judge alone questions the prospective jurors. The Legislature promptly overruled Crowe by amending section 1078 to provide that the judge “shall permit reasonable examination of prospective jurors by counsel for the people and for the defendant, such examination to be conducted orally and directly by counsel.”
Our most recent decision to discuss limitation on voir dire was People v. Fuentes (1985) 40 Cal.3d 629 [221 Cal.Rptr. 440, 710 P.2d 240]. Defense counsel sought to ask jurors whether they believed an accomplice who only aided and abetted a robbery, and did not intend to kill, should be punished as severely as the actual killer. We characterized the proposed questions as relevant to the felony-murder special circumstances, and held the trial court erred in excluding that area of inquiry. (Pp. 638-639.) Because the special circumstance finding was reversed on other grounds, we did not reach the question of prejudice.
The Attorney General points out that the defense was permitted to ask a broad variety of questions on general voir dire. It was not, however, permitted to ask questions relating to views on capital punishment. For example, during the general voir dire of Juror S., she said that if defendant committed rape, “I think I would probably be more inclined to go for a stiffer sentence, possible.” Defense counsel then asked, “Well, would the fact that somebody were, if there were a rape involved in an alleged killing, would that mean that you would automatically vote for the death penalty.” The district attorney objected. He started to say “that’s the type of question that you.. but the judge interrupted and sustained the objection.
Defendant points out that the court also granted the prosecutor two additional peremptory challenges, and speculates that this may have affected defense counsel’s tactics. Since the prosecutor already had five challenges remaining, we doubt that the effect was signficant. If the prosecutor had exercised the two additional challenges, however, we would face a quite different situation, since the prosecutor did not claim that the court had erroneously denied any of his challenges for cause.
It does not appear that G. formed any actual opinion based on the office conversation, but simply felt bad for the mother. In any case, this remote sort of office gossip would fall within the statute as public rumor.
Section 1076 is not directly in point, since S. was not so much prejudiced against the defendant as she was against the offense itself. (See People v. Harrison (1910) 13 Cal.App. 555 [110 P. 345].)
Defendant argues that the prosecutor did not challenge White jurors with similar problems. We have reviewed the record, and while we find statements by White jurors similar to those by the challenged jurors, in each case the statement of the challenged juror took a form more likely to inspire a prosecution challenge.
The prosecution claimed that the background noise on the tape was the engine of defendant’s van, and showed that defendant was driving the van, and thus present, while Norris tortured Ledford. Appellate counsel argues that with a better copy, an expert might be able to show some other origin for the background noise.
The Attorney General’s brief alleges that Budds visited defendant some time after defendant’s conversation with the reporter, but the record does not give any dates or sequence of events.
He maintains that he did not receive proper notice of Dr. Markman’s testimony, as would be required if the prosecution presented that testimony in its case-in-chief. He argues that the testimony was improper under Evidence Code section 730 because defendant did not put his mental state in issue. He argues that because defendant’s mental state was not in issue, Dr. Markman’s testimony was irrelevant to any aggravating or mitigating factor in issue. All of these arguments fail if Dr. Markman’s testimony was proper rebuttal to the defense penalty evidence.
Our recent opinion in People v. Ford (1988) 45 Cal.3d 431 [247 Cal.Rptr. 121, 754 P.2d 168, A.L.R.4th 1507], concerned a different situation. In that case the witness had a privilege not to testify. The majority held that since the witness had not actually asserted that privilege, the prosecutor could comment on the defendant’s failure to call the witness. Here it is the defendant who has a privilege not to call the witness.
The prosecutor’s description of the process by which the jury should decide the penalty verdict was inadequate because it left no place for a decision as to what penalty is appropriate. The prosecutor’s language did not envision an appropriateness decision during the weighing process, for it describes the weighing as a separate decision which precedes the penalty determination, and one, moreover, based on a type of arithmetic calculation incompatible with a moral assessment. And it does not permit the jury to determine what penalty is appropriate after the weighing process because, according to the prosecutor, if aggravating circumstances outweigh mitigating the jurors have no choice but to impose the death penalty.
The Attorney General points to People v. Hendricks, supra, 44 Cal.3d 635, 659, in which the prosecutor told the jury that the law “takes a little bit of sting out in the sense that you have to decide facts. Once you decide, if you do, that the aggravating circumstances outweigh the mitigating circumstances, it’s automatic.” (See also People v. Guzman (1988) 45 Cal.3d 915, 959-960 [248 Cal.Rptr. 467, 755 P.2d 917]; People v. Boyde (1988) 46 Cal.3d 212, 262-266 [250 Cal.Rptr. 83, 758 P.2d 25], cert. granted (1989) __ U.S. __ [104 L.Ed.2d 1002, 109 S.Ct. 2447].) But we did not endorse the prosecutor’s arguments in Hendricks, Guzman or Boyde. Rather, we affirmed in each case because the majority concluded that the prosecutor’s remarks did not have the effect of misleading the jury as to its responsibility to determine the appropriate penalty.
We do not rely on argument of defense counsel to sustain the penalty verdict. In view of the jury’s guilt phase verdict finding 38 special circumstances—a verdict which necessarily rejected all the defense arguments—and its subsequent verdict imposing the death penalty for each of the murders, it seems apparent that defense argument was not very persuasive.
Defendant also claims other portions of the prosecutor’s argument were misconduct: 1. The prosecutor mentioned his participation in the Manson prosecution. (See People v. Manson (1977) 71 Cal.App.3d 1 [139 Cal.Rptr. 275].) This attempt by the prosecutor to enhance his stature with the jury is arguably improper, but hardly prejudicial.
2. In discussing the murder of Cindy Schaefer, the prosecutor said: “And then her body is thrown over so that the coyotes and the maggots and the beetles can finish her off so that nobody will find her. And nobody has found her. Not even a body for her parents to give a decent burial.” Defendant claims this argument is improper under People v. Boyd (1985) 38 Cal.3d 762, 773-774 [215 Cal.Rptr. 1, 700 P.2d 782], as a reference to a nonstatutory aggravating factor. The manner in which the murderer disposes of the victim’s body, however, is part of the circumstances of the crime, admissible under section 190.3, factor (a). The prosecutor’s appeal, to be sure, was largely aimed at the emotions of the jury, but at the penalty phase, where the issue is whether defendant should be killed, considerable leeway is given for emotional appeal so long as it relates to relevant considerations. (See People v. Haskett (1982) 30 Cal.3d 841, 864 [180 Cal.Rptr. 640, 640 P.2d 776].)
3. The prosecutor said that defendant “would never be rehabilitated. He would just go out and do the same thing again.” Defendant maintains that this statement improperly invited the jury to speculate on whether defendant might be released from prison despite a sentence of life imprisonment without possibility of parole. (See People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430].) In the absence of any reference to parole, pardon, commutation, or the like, we do not think the prosecutor’s comment can be considered misconduct.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Lawrence S. BITTAKER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, California State Prison of San Quentin, Respondent-Appellant.
No. 02-99000.
United States Court of Appeals, Ninth Circuit.
Jan. 29, 2003.
[OPINION BY SCHROEDER, Chief Judge. type=majority]
ORDER
SCHROEDER, Chief Judge.
Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3.
Judge Trott was recused.
Lawrence S. BITTAKER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, California State Prison of San Quentin, Respondent-Appellant.
No. 02-99000.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 27, 2003.
Filed June 6, 2003.
A. Scott Hayward, Deputy Attorney General, Los Angeles, CA, argued for the respondent-appellant. Bill Loekyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Supervising Deputy Attorney General, and Keith H. Borjon, Supervising Deputy Attorney General, joined him on the briefs.
C. Renée Manes, Deputy Federal Public Defender, Los Angeles, CA, argued for the petitioner-appellee. Maria E. Stratton, Federal Public Defender, and Margo Roc-coni, Deputy Federal Public Defender, joined her on the brief.
Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, O’SCANNLAIN, T.G. NELSON, HAWKINS, TASHIMA, FISHER, PAEZ, BERZON and RAWLINSON, Circuit Judges.
[OPINION BY KOZINSKI, Circuit Judge. type=majority]
Opinion by Judge KOZINSKI; Concurrence by Judge O’SCANNLAIN.
OPINION
KOZINSKI, Circuit Judge.
Lawrence Bittaker was convicted in California state court of multiple murders and was sentenced to death. After unsuccessfully exhausting his state remedies, In re Bittaker, No. S052371, 2000 Cal. LEXIS 9066 (Cal. Nov. 29, 2000); In re Bittaker, No. S058797, 2000 Cal. LEXIS 9067 (Cal. Nov. 29, 2000), Bittaker filed a federal habeas petition pursuant to 28 U.S.C. § 2254 raising a multitude of claims, including a variety of ineffective assistance of counsel claims.
It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer. See, e.g., Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir.1997); Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974); Laughner v. United States, 373 F.2d 326, 327 (5th Cir.1967). The question presented to us is the scope of the habeas petitioner’s waiver: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and all purposes—including the possible retrial of the petitioner, should he succeed in setting aside his original conviction or sentence?
The district court entered a protective order precluding use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies. The state appeals this order, arguing that petitioner completely waived his privilege and the district court therefore had no authority to preclude dissemination of these non-privileged materials, or their use to re-prosecute petitioner.
Jurisdiction
The challenged order is not a final judgment, yet the parties agree that it is reviewable as a collateral order pursuant to 28 U.S.C. § 1291. See Cohen v. Beneficial Indus. Loan Corp., 387 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). While we ultimately agree, the matter is closer than the concurrence of the parties would suggest. The protective order is, after all, reviewable on appeal from the final judgment, no matter who wins below on the merits. See, e.g., Anderson v. Calderon, 232 F.3d 1053, 1061-62, 1099-100 (9th Cir.2000) (reviewing the denial of petitioner’s request for a protective order on his appeal from the district court’s final denial of his habeas petition). Moreover, at that time we will know much more about the practical effect of the order, if any. If petitioner is unsuccessful in any of his claims, and no retrial is necessary, the order would become irrelevant for all practical purposes.
Nevertheless, we conclude that the order is appealable because significant strategic decisions turn on its validity; review after final judgment may therefore come too late. If petitioner relies on the protective order by releasing privileged materials and it turns out to be invalid, he will suffer serious prejudice during any retrial. Similar reasoning has led some of our sister circuits to accept interlocutory appeals of discovery orders under the collateral order doctrine. See, e.g., In re Ford Motor Co., 110 F.3d 954, 962-64 (3d Cir.1997) (“Appeal after final judgment cannot remedy the breach in confidentiality occasioned by erroneous disclosure of protected materials.... [T]he cat is already out of the bag- [T]here is no way to unscramble the egg scrambled by the disclosure .... ”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1307-08 (7th Cir.1984) (“Once the Report was released, any error in releasing it would be impossible to correct.”); In re Grand Jury Investigation of Ocean Tramp., 604 F.2d 672, 673-74 (D.C.Cir.1979) (per curiam) (holding that, because the district court’s order “conclusively determined the question of waiver” of the attorney-client privilege, appellant “must pursue its claim of attorney-client privilege at this time in order to ensure that its claim not later become moot by reason of the documents’ disclosure to third parties”); S. Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979) (“[B]ecause[information], once revealed, could not again be concealed, review following a decision on the merits would come too late.... ”).
Moreover, as the Attorney General points out, the order complicates the litigation process, even if it is ultimately vacated. The uncertainty of the order’s validity will significantly increase the cost, delay and burden for the parties and the court.
We have reviewed such orders under the collateral order doctrine in the past. See, e.g., Osband v. Woodford, 290 F.3d 1036, 1039-41 (9th Cir.2002); Wharton, 127 F.3d at 1203-04. For the foregoing reasons, we see no reason to depart from this practice. Rather, we agree with the parties that considerations of “inconvenience and costs” to the judicial system as a whole and “the danger of denying justice by delay” favor asserting appellate jurisdiction at this time. Johnson v. Jones, 515 U.S. 304, 315, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (internal quotation marks omitted).
The Merits
A. The rule that a litigant waives the attorney-client privilege by putting the lawyer’s performance at issue during the course of litigation dates back to at least Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 (1888), where the Court stated: “When Mrs. Blackburn entered upon a line of defence which involved what transpired between herself and Mr. Weatherford [her lawyer], and respecting which she testified, she waived her right to object to his giving his own account of the matter.” Id. at 470-71, 9 S.Ct. 125. The Court thought this proposition so self-evident it felt no need to support it with either citation to authority or further analysis. In the intervening years, courts and commentators have come to identify this simple rule as the fairness principle. See, e.g., United States v. Amlani, 169 F.3d 1189, 1196 (9th Cir.1999); 8 John Henry Wigmore, Evidence in Trials at Common Law § 2327, at 636 (John T. McNaughton rev., 1961) [hereinafter Wigmore on Evidence]. The principle is often expressed in terms of preventing a party from using the privilege as both a shield and a sword. See, e.g., Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir.1992) (“The privilege which protects attorney-client communications may'not be used both as a sword and a shield.”); 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 503.41[1], at 503-104.1 to.2 (Joseph M. McLaughlin ed., 2d ed. 2003) (“[T]he privilege may be found to have been waived by implication when a party takes a position in litigation that makes it unfair to protect that party’s attorney-client communications.... The doctrine of waiver by implication reflects the position that the attorney-client privilege was intended as a shield, not a sword.” (internal quotation marks omitted)). In practical terms, this means that parties in litigation may not abuse the privilege by asserting claims the opposing party cannot adequately dispute unless it has access to the privileged materials. The party asserting the claim is said to have implicitly waived the privilege. See, e.g., Christopher B. Mueller & Laird C. Kirkpatrick, Evidence: Practice Under the Rules § 5.30, at 549 (2d ed. 1999) (“Substantial authority holds the attorney-client privilege to be impliedly waived where the client asserts a claim or defense that places at issue the nature of the privileged material.”).
Such waivers by implication differ materially from the more traditional express waivers. An express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public. See generally Mueller & Kirkpatrick § 5.28, at 530-33; Developments in the Law—Privileged Communications, 98 Harv. L.Rev. 1450, 1630 & n. 2 (1985) [hereinafter Privileged Communications]. Disclosures that effect an express waiver are typically within the full control of the party holding the privilege; courts have no role in encouraging or forcing the disclosure—they merely recognize the waiver after it has occurred. The cases upon which the state relies, see, e.g., Permian Corp. v. United States, 665 F.2d 1214, 1219-22 (D.C.Cir.1981); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423-27 (3d Cir.1991), fall into this category. These cases hold that, once documents have been turned over to another party voluntarily, the privilege is gone, and the litigant may not thereafter reassert it to block discovery of the information and related communications by his adversaries. See also In re Sealed Case, 676 F.2d 793, 809 (D.C.Cir.1982). Because these express waiver cases do not involve the court-ordered disclosure of privileged information after “the client [has] assert[ed] a claim or defense that place[d] at issue the nature of the privileged material,” Mueller & Kirkpatrick § 5.30, at 549, we do not find them particularly useful in ascertaining the scope of Bittaker’s waiver of his attorney-client privilege under the fairness principle. See In re von Bulow, 828 F.2d 94, 101-02 (2d Cir.1987) (declining to extend the fairness principle to disclosures made outside the course of judicial proceedings).
We look, instead, to the doctrine of implied waiver. “[T]he doctrine of implied waiver allocates control of the privilege between the judicial system and the party holding the privilege.” Privileged Communications, 98 Harv. L.Rev. at 1630. The court imposing the waiver does not order disclosure of the materials categorically; rather, the court directs the party holding the privilege to produce the privileged materials if it wishes to go forward with its claims implicating them. The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it. See, e.g., Amlani, 169 F.3d at 1195 (holding that courts must evaluate “whether allowing the privilege would deny the opposing party access to information vital to its defense” (internal quotation marks omitted)); Chevron, 974 F.2d at 1162. Essentially, the court is striking a bargain with the holder of the privilege by letting him know how much of the privilege he must waive in order to proceed with his claim.
Three important implications flow from this regime. The first is that the court must impose a waiver no broader than needed to ensure the fairness of the proceedings before it. Because a waiver is required so as to be fair to the opposing side, the rationale only supports a waiver broad enough to serve that purpose. Courts, including ours, that have imposed waivers under the fairness principle have therefore closely tailored the scope of the waiver to the needs of the opposing party in litigating the claim in question. See, e.g., Kerr v. U.S. Dist. Court, 426 U.S. 394, 405, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (recognizing the need to ensure that the “balance between petitioners’ claim[] of ... privilege and plaintiffs’ asserted need for the documents is correctly struck”); Amlani, 169 F.3d at 1196 (holding that “only those documents or portions of documents relating to the [claim asserted by the client] [should be] disclosed”); Greater Newburyport Clamshell Alliance v. Pub. Serv. Co., 838 F.2d 13, 22 (1st Cir.1988) (holding that the client need reveal only information “for which defendants have so far shown a true need and without which they may be unfairly prejudiced in their defense”); see also Mueller & Kirkpatrick § 5.31, at 553 (suggesting that “in applying the doctrine of implied waiver by claim assertion, courts must be careful to target only” those privileged materials without which the adverse party would be unfairly prejudiced).
Second, the holder of the privilege may preserve the confidentiality of the privileged communications by choosing to abandon the claim that gives rise to the waiver condition. Cf. Lyons v. Johnson, 415 F.2d 540, 541-42 (9th Cir.1969) (affirming dismissal of plaintiffs complaint after she persisted in hiding behind the privilege against self-incrimination by refusing to answer any deposition questions or to submit to discovery).
Finally, if a party complies with the court’s conditions and turns over privileged materials, it is entitled to rely on the contours of the waiver the court imposes, so that it will not be unfairly surprised in the future by learning that it actually waived more than it bargained for in pressing its claims. See Transamerica Computer Co. v. IBM Corp., 573 F.2d 646, 652 (9th Cir.1978) (holding that, because the district court had made an explicit ruling “protecting and preserving all claims of privilege” to expedite the parties’ discovery, “IBM did not waive its right to claim the privilege as to any documents produced after [the] date [of the order]”). It follows that the court imposing the waiver must be able to bind the party receiving the privileged materials to the court’s limitations and conditions. See id. The party receiving and using privileged materials pursuant to a court-imposed waiver implicitly agrees to the conditions of the waiver; if it does not wish to be bound, it is free to reject the materials and litigate without them, but it must do so before any disclosure is made.
B. With these considerations in mind, we turn to the question of the proper scope of the waiver in cases such as the one now before us. We start by noting that, in the federal habeas context, we must strike a delicate balance between the interests of the state and those of the federal government. See Duckworth v. Eagan, 492 U.S. 195, 211, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (O’Connor, J., concurring) (noting that federal habeas review “has always been a flashpoint of tension in the delicate relationship of the federal and state courts”). The state, for its part, has established the attorney-client privilege, Cal. Evid.Code § 954, and has made it fully applicable to “all proceedings,” id. § 910. The California Supreme Court has recently described the privilege as “fundamental to [its] legal system” and “a hallmark of [its] jurisprudence.” People v. Superior Court (Laff), 25 Cal.4th 703, 715, 107 Cal.Rptr.2d 323, 23 P.3d 563 (2001) (internal quotation marks omitted). The “lawyer-client privilege,” as it’s officially known in California, is “no mere peripheral evidentiary rule, but is held vital to the effective administration of justice.” Roberts v. City of Palmdale, 5 Cal.4th 363, 380, 20 Cal.Rptr.2d 330, 853 P.2d 496 (1993). State law imposes upon every attorney the duty “ ‘[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.’ ” Laff, 25 Cal.4th at 715, 107 Cal.Rptr.2d 323, 23 P.3d 563 (quoting Cal. Bus. & Prof.Code § 6068(e)). Lawyers in California, as elsewhere, consider this duty central to the attorney-client relationship.
At the same time, Congress has given state prisoners the right to petition the federal courts for collateral review of their state convictions to ensure that state proceedings comply with constitutional requirements. 28 U.S.C. § 2254. In performing their constitutional duties, the federal courts have determined that claims of ineffective assistance of counsel cannot be fairly litigated unless the petitioner waives his privilege for purposes of resolving the dispute. See, e.g., Wharton, 127 F.3d at 1203. However sensible and necessary the waiver rule might be in practice, it nonetheless runs counter to the rationale behind the privilege and carries with it the potential of severely undermining the state’s interest in maintaining the confidentiality of attorney-client communications. Claims of ineffective assistance of counsel are routinely raised in felony cases, particularly when a sentence of death has been imposed. If the federal courts were to require habeas petitioners to give up the privilege categorically and for all purposes, attorneys representing criminal defendants in state court would have to worry constantly about whether their casefiles and client conversations would someday fall into the hands of the prosecution. In addition, they would have to consider the very real possibility that they might be called to testify against their clients, not merely to defend their own professional conduct, but to help secure a conviction on retrial. A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote.
Were such a broad waiver necessary to satisfy federal interests, the state’s interest in protecting lawyer-client confidences might have to yield. But we can conceive of no federal interest in enlarging the scope of the waiver beyond what is needed to litigate the claim of ineffective assistance of counsel in federal court. A waiver that limits the use of privileged communications to adjudicating the ineffective assistance of counsel claim fully serves federal interests. See Laughner, 373 F.2d at 327. At the same time, a narrow waiver rule — one limited to the rationale under-girding it — will best preserve the state’s vital interest in safeguarding the attorney-client privilege in criminal cases, thereby ensuring that the state’s criminal lawyers continue to represent their clients zealously.
A narrow waiver rule is also consistent with the interests of the habeas petitioner in obtaining a fair adjudication of his petition and securing a retrial untainted by constitutional errors. Here, Bittaker is claiming that he was denied a constitutionally adequate criminal trial because he had ineffective counsel and for many other reasons as well. If he succeeds on any of these claims, it will mean that his trial was constitutionally defective. Extending the waiver to cover Bittaker’s retrial would immediately and perversely skew the second trial in the prosecution’s favor by handing to the state all the information in petitioner’s first counsel’s casefile. If a prisoner is successful in persuading a federal court to grant the writ, the court should aim to restore him to the position he would have occupied, had the first trial been constitutionally error-free. Giving the prosecution the advantage of obtaining the defense casefile — and possibly even forcing the first lawyer to testify against the client during the second trial — would assuredly not put the parties back at the same starting gate.
What s more, requiring the petitioner to enter such a broad waiver would force him to the painful choice of, on the one hand, asserting his ineffective assistance claim and risking a trial where the prosecution can use against him every statement he made to his first lawyer and, on the other hand, retaining the privilege but giving up his ineffective assistance claim. This would violate the spirit, and perhaps the letter, of Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). It is no answer to say that Bittaker created this dilemma for himself — that he was the one who voluntarily “chose” to challenge his conviction on grounds of ineffective assistance. The Constitution guarantees Bittaker the right to effective assistance of counsel at trial, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Congress has provided him an avenue to claim that his constitutional rights were violated, 28 U.S.C. § 2254. As one of our sister circuits has recognized in a different context, one may be “a ‘voluntary’ party only because there is no other means of protecting legal rights.... The scope of required disclosure should not be so broad as to effectively eliminate any incentive to vindicate [one’s] constitutional right[s].... ” Greater Newburyport Clamshell Alliance, 838 F.2d at 21-22.
Nor would a narrowly tailored waiver unfairly prejudice the prosecution. State law precludes access to materials in the defense lawyer’s casefile and commands the lawyer to stand mute if he has information damaging to his client. The fortuity that defendant’s initial trial was constitutionally defective gives the prosecution no just claim to the lawyer’s casefile or testimony. To the contrary, allowing the prosecution at retrial to use information gathered by the first defense lawyer— including defendant’s statements to his lawyer — would give the prosecution a wholly gratuitous advantage. It is assuredly not consistent with the fairness principle to give one side of the dispute such a munificent windfall for use in proceedings unrelated to the matters litigated in federal court.
We are not alone in our concern about the effect of a broad waiver on the fairness of state criminal trials. In one case that has been brought to our attention, the California Supreme Court, during the course of a state habeas proceeding, entered an order very similar to the one here. While the order is not published, and therefore presumably not binding in future cases, it does seem to strike the same balance among the competing interests as we do. Significantly, the order specifically bars the use of privileged materials at petitioner’s possible retrial. While we can only infer the court’s rationale, we believe it must have been similar to our own.
C. Relying on the majority’s analysis in Anderson v. Calderon, 232 F.3d 1053, 1099-100 (9th Cir.2000), the state argues that precluding the prosecution from using evidence found in defense counsel’s casefile in subsequent state court proceedings “would constitute an unwarranted anticipatory interference with the prerogatives of the state courts” and “contravene basic principles of comity and federalism,” in violation of Younger v. Harris, 401 U.S. 37, 43-54, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. Anderson, 232 F.3d at 1099-100. But Anderson was decided on the mistaken premise that petitioner’s waiver of the attorney-client privilege is governed by state law and therefore best determined by the state courts. Id. at 1100. For the reasons already explained, we hold that the scope of the implied waiver must be determined by the court imposing it as a condition for the fair adjudication of the issue before it. When that court is a federal court, the scope of the waiver is a matter of federal law. See Fed.R.Evid. 501; Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 340 (9th Cir.1996) (applying federal law on the question of waiver); Weil, 647 F.2d at 24 (same). After all, it is the federal courts that are inducing petitioner to waive his privilege, so the federal courts must be able to guarantee the integrity of the bargain if petitioner chooses to waive the privilege so he can litigate his ineffective assistance of counsel claim. See generally William W Schwarzer et al., California Practice Guide: Federal Civil Procedure Before Trial § 11:113.15, at 11-70 (2002) (“In appropriate circumstances, courts may grant a protective order restricting the use of any discovery to the present lawsuit.... A court may also limit dissemination of information obtained through discovery” by, among other things, “restricting disclosure.”).
Nor do we believe that the protective order impinges on the dignity or authority of the state courts. The power of courts, state as well as federal, to delimit how parties may use information obtained through the court’s power of compulsion is of long standing and well-accepted. See, e.g., Degen v. United States, 517 U.S. 820, 826, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (noting that protective orders may be used “to prevent parties from using civil discovery to evade restrictions on discovery in criminal cases”); E.I. DuPont De Nemours Powder Co. v. Masland, 244 U.S. 100, 103, 37 S.Ct. 575, 61 L.Ed. 1016 (1917) (“It will be understood that if, in the opinion of the trial judge, it is or should become necessary to reveal the secrets to others, it will rest in the judge’s discretion to determine whether, to whom, and under what precautions, the revelation should be made.”); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1469, 1471-72 (9th Cir.1992) (upholding a protective order that precluded plaintiffs in-house counsel from accessing defendant’s trade secrets while providing the information to an independent consultant); Covey Oil Co. v. Cont’l Oil Co., 340 F.2d 993 (10th Cir.1965) (upholding a protective order that restricted access to sensitive documents to counsel and independent certified public accountants and prohibited use of the materials for competitive purposes), overruled on other grounds as stated in FTC v. Alaska Land Leasing, Inc., 778 F.2d 577, 578 (10th Cir.1985); Chem. & Indus. Corp. v. Druffel, 301 F.2d 126, 130 (6th Cir.1962) (noting that the district court may enter a protective order prohibiting public disclosure of information obtained through discovery); see also 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2043, at 566 (2d ed.1994) (listing examples of protective orders “limiting the persons who are to have access to the information disclosed and the use to which these persons may put the information”). Courts could not function effectively in cases involving sensitive information—trade secrets, medical files and minors, among many others— if they lacked the power to limit the use parties could make of sensitive information obtained from the opposing party by invoking the court’s authority.
The courts of California remain free, of course, to determine whether Bittaker waived his attorney-client privilege dn some basis other than his disclosure of privileged information during the course of the federal litigation. In addition, if the district attorney is able to obtain the privileged materials through a source other than the Attorney General’s office, he would be free to present them to the state court and seek a ruling on their admissibility. The district court’s order simply precludes a party before it from misusing materials it obtained for a limited purpose by invoking the court’s power of compulsion. We are confident that the state courts will not feel in the least uncomfortable because a party may not use confidential information it secured by invoking our power and authority, just as we would respect a similar order limiting the use of privileged materials obtained during the course of state court litigation. This is comity, not encroachment.
We are comforted in our conclusion by the fact that the parties have failed to bring to our attention — and we have been unable to find — very many cases where the prosecution has even attempted to use privileged information obtained as a result of federal discovery procedures in a defendant’s retrial. Except for a small handful of cases from our own court, all originating in California, see Osband, 290 F.3d at 1042-43; Anderson, 232 F.3d at 1099-100; McDowell v. Calderon, 197 F.3d 1253, 1255-56 (9th Cir.1999) (en banc) (per curiam), the only case we have found that even remotely raises this possibility is United States v. Suarez, 820 F.2d 1158 (11th Cir.1987). In Suarez, the defendant sought to withdraw his guilty plea, claiming that he was misinformed by his lawyer. The lawyer testified, and the plea was set aside. At trial, the same lawyer testified about Suarez’s reaction — how his “ ‘attitude completely changed’ when he heard [an][audio]tape containing his voice.” Id. at 1159. This testimony supported the prosecution’s theory that defendant was involved in secretly recorded meetings involving the charged offenses.
We are somewhat surprised by the result in Suarez, but note that this holding has not been replicated in the Eleventh Circuit or any other federal court in the intervening fifteen years. In any event, Suarez’s two cautionary passages — explaining what issues the court there did not consider — distinguish the case from ours. First, in footnote 3, Suarez explicitly notes that the court did not consider the argument that the waiver of the privilege was limited to the suppression hearing, because counsel had not attempted to limit the scope of the waiver. Id. at 1160 n. 3. While it is not clear to us that counsel is required to utter magic words to demarcate the scope of the waiver, what matters for our purposes is that Suarez simply did not consider the limited waiver argument. Second, in the penultimate paragraph, the Suarez court tells us unequivocally that it did not consider Simmons because that argument had not been timely raised. Id. at 1161. We are reasonably confident that,' had the Suarez court considered these arguments, it would have reached a different conclusion.
D. We turn, finally, to the question of enforcement. As is evident, the narrow waiver rule we adopt today is not self-enforcing. That is to say, unlike the usual situation where those given access to confidential materials have an independent ethical, and perhaps legal, obligation to maintain that confidence (such as the ethical constraints on lawyers, doctors and the clergy), those who are given access to confidential attorney-client materials under our limited waiver rule have no such obligation or incentive. Given this absence of external constraints (external to the case), district courts have the obligation, whenever they permit discovery of attorney-client materials as relevant to the defense of ineffective assistance of counsel claims in habeas cases, to ensure that the party given such access does not disclose these materials, except to the extent necessary-in the habeas proceeding, i.e., to ensure that such a party’s actions do not result in a rupture of the privilege.
Fortunately, district courts have ample tools at their disposal to ensure compliance with any limitations they impose on the dissemination of confidential materials. Parties in habeas cases, unlike those in ordinary civil cases, have no right to discovery. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir.1993) (“[T]here simply is no federal right, constitutional or otherwise, to discovery in habeas proceedings as a general matter.” (citing Harris v. Nelson, 394 U.S. 286, 296, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969))). In a habeas case, discovery under the Federal Rules of Civil Procedure is available “if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Rules Governing Section 2254 Cases in the United States District Courts [hereinafter Habeas Rules], Rule 6(a); see Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). If a district court exercises its discretion to allow such discovery “to the extent that ... good cause [is] shown,” it must ensure compliance with the fairness principle. To that end, it must enter appropriate orders clearly delineating the contours of the limited waiver before the commencement of discovery, and strictly police those limits thereafter.
* * * * * *
The district court was entirely justified in entering the protective order that is the subject of this appeal; indeed, it would have abused its discretion had it done otherwise. The portion of Anderson v. Calderon, 232 F.3d 1053, that reached a contrary conclusion is overruled. On remand, the district court remains free to modify the order as it deems appropriate to fully protect petitioner’s rights.
AFFIRMED.
The order in its entirety reads as follows: All discovery granted to respondent pursuant to respondent's motion to discover trial counsels’ files and conduct depositions of trial counsel, petitioner's defense team and petitioner, shall be deemed to be confidential. These documents and material (hereinafter "documents”) may be used only by representatives from the Office of the California Attorney General and only for purposes of any proceedings incident to litigating the claims presented in the petition for writ of habeas corpus pending before this Court. Disclosure of the contents of the documents and the documents themselves may not be made to any other persons or agencies, including any other law enforcement or prosecutorial personnel or agencies, without an order from this Court. This order shall continue in effect after the conclusion of the habeas corpus proceedings and specifically shall apply in the event of a retrial of all or any portion of petitioner’s criminal case, except that either party maintains the right to request modification or vacation of this order upon entry of final judgment in this matter. This Court recognizes that Respondent objects to entry of this protective order, and that Petitioner contends the required disclosures in this action do not constitute a waiver of his rights under the 5th and 6th Amendment in event of any retrial. The Court may vacate this order at any time. The parties will immediately advise the court of any future rulings in Osband v. Woodford [, 290 F.3d 1036 (9th Cir.2002)]. ER at 8-9 (underscored portion in hand-script).
The parlies spill much ink on the subsidiary question whether the district court would have had discretion to enter the protective order even if the disclosed materials lost their privilege for all purposes. Because we conclude that petitioner’s waiver extends only to the federal habeas proceedings, and the materials therefore remain privileged for all other purposes, we do not reach this question.
At oral argument, the Attorney General described the practical problem in the following terms: Court: Is there something you want to disclose to somebody? State: Absolutely. We already dealt with this problem in the context of this case. Something came up in the course of Mr. Bittaker’s deposition that was inconsistent with information that I have from the district attorney’s office. Court: What did you do then? When that happened, what did you do? Did you go into court and say “I want to be able to disclose this ...”? State: I called opposing counsel and said ..., "I’d like to discuss some of these matters with the district attorney’s office based on things that Mr. Bittaker said in his deposition.” They said we won't agree to that. We'll have to litigate that. Court: And? State: And I didn't have time to do it. I don’t have time to go to court every time I need to have a telephone conversation with someone in the district attorney's office or the law enforcement officers that investigated the case. Oral Argument in Bittaker v. Woodford, No. 02-99000 (9th Cir. Mar. 27, 2003).
Despite the somewhat misleading nomenclature, an “express” waiver need not be effectuated by words or accompanied by the litigant’s subjective intent. See generally 1 McCormick on Evidence § 93, at 371 (John W. Strong ed., 5th ed.1999). Rather, the privilege may be waived by the client’s, and in some cases the attorney's, actions, even if the disclosure that gave rise to the waiver was inadvertent. See Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24-25 & n. 13 (9th Cir.1981); 8 Wigmore on Evidence § 2325, at 632-33. To avoid confusion, some commentators use the term "waiver by voluntary disclosure” to distinguish this type of waiver from "implied waiver,” or "waiver by claim assertion.” See Mueller & Kirkpatrick §§ 5.28, 5.30, at 530, 549; Weinstein’s Federal Evidence §§ 503.40.41[1], at 503-102 to - 104.3. Labels aside, this case concerns the latter type of waiver.
Although we do not decide the case under the express waiver doctrine, we note that the law in this area is not as settled as the state would have us believe. See, e.g., Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 n. 1, 611 (8th Cir.1977) (holding that voluntary disclosure of information to the SEC resulted only in a limited waiver and that the information remained privileged in subsequent private litigation); In re von Bulow, 828 F.2d 94, 103 (2d Cir.1987) ("[W]here ... disclosures of privileged information are made extrajudicially and without prejudice to the opposing party, there exists no reason in logic or equity to broaden the waiver beyond those matters actually revealed.”); Mueller & Kirkpatrick § 5.28, at 541 (noting that "[t]he trend of modern cases” is toward finding only limited waivers).
Although our decision is couched in terms of the attorney-client privilege, it applies equally to the work product privilege, a complementary rule that protects many of the same interests. See Upjohn Co. v. United States, 449 U.S. 383, 400, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
Justice Harlan’s opinion in Simmons holds that it would be constitutionally unacceptable to require a criminal defendant to choose between two constitutional rights' — there, the right to remain silent (Fifth Amendment) and the right to be free from unreasonable searches (Fourth Amendment). The state agrees that the right to litigate a claim of ineffective assistance of counsel is of constitutional magnitude but argues vigorously that on the other side of the scale lies a mere state-created evidentiary right, namely, the attorney-client privilege. We need not decide whether the attorney-client privilege has a constitutional dimension in the criminal context; we note only that doing away with the privilege in all criminal cases would raise a nontrivial question whether defendants would still be getting effective assistance. See, e.g., Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) (per curiam) (remanding the case for a new trial after government agents monitored and listened to confidential conversations between defendant and his attorney); Williams v. Woodford, 306 F.3d 665, 682 (9th Cir.2002) (“When the government deliberately interferes with the confidential relationship between a criminal defendant and defense counsel, that interference violates the Sixth Amendment right to counsel if it substantially prejudices the criminal defendant. Substantial prejudice results from the introduction of evidence gained through the interference against the defendant at trial, from the prosecution’s use of confidential information pertaining to defense plans and strategy, and from other actions designed to give the prosecution an unfair advantage at trial.” (citations omitted)); Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.1985) ("[Although] the attorney-client privilege is merely a rule of evidence ..., government interference with the confidential relationship between a defendant and his counsel may implicate Sixth Amendment rights.”); United States v. Castor, 937 F.2d 293, 297 (7th Cir.1991) ("Where the sixth amendment right to attorney-client confidentiality exists, prosecu-torial violation of that privilege might lead to reversal of a resulting conviction if the defendant could show prejudice.”); Greater Newburyport Clamshell Alliance, 838 F.2d at 21 ("[U]tmost candor between an attorney and client is essential to effective assistance of counsel.”); United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir.1973) ("[T]he essence of the Sixth Amendment right is, indeed, privacy of communication with counsel.”); Caldwell v. United States, 205 F.2d 879, 881 (D.C.Cir.1953) ("The Constitution’s ... guarantees of due process of law and effective representation by counsel[ ] lose most of their substance if the Government can with impunity place a secret agent in a lawyer's office to inspect the confidential papers of the defendant and his advisers, to listen to their conversations, and to participate in their counsels of defense.”); Mueller & Kirkpatrick § 5.8, at 434 ("It is doubtful that constitutional standards for adequacy of legal representation could be satisfied if a defendant’s communications to his attorney were subject to unrestricted scrutiny by the prosecutor.”). More importantly, we do not agree with the state's description of the interests at stake. As we see it, petitioner is being asked either to bypass a claim that his first trial counsel was constitutionally ineffective, or to jeopardize the fairness of his second trial by giving the prosecution access to evidence it would not otherwise have — including, possibly, the testimony of defendant's first counsel. Thus, the right to a fair trial hangs on each side of the scale. We do not believe Simmons permits conditioning the assertion of a constitutional right quite so steeply, at least absent a compelling interest requiring such a choice. Here, the state has offered no such compelling interest.
The order in its entirety reads as follows: S042737 In re Gerald Gallego on Habeas Corpus Regarding the documents provided by petitioner to respondent on July 17, 1996, in conjunction with this court’s order to respondent to show cause (dated July 10, 1996): 1. Respondent shall limit its use of the documents, and the information contained therein, to rebuttal of petitioner's habeas corpus claims, including responding to the order to show cause. 2. Respondent shall not use the documents, or the information contained therein, against petitioner in any manner during any future proceeding, including any possible retrial; and 3. Respondent shall treat the documents, and the information contained therein, as confidential and not disseminate them or disclose their contents other than in the course of its litigation of this habeas corpus proceeding. In re Gallego, No. S042737 (Cal. Aug.14, 1996).
The precedential effect of an unpublished order of the California Supreme Court is unclear to us. On the one hand, because it is unpublished, the order is difficult to find and cite by litigants in future cases. On the other hand, the California Rules of Court, which do prohibit citation to unpublished opinions of the inferior courts of California, see Cal. Rules of Court 977, do not prohibit citation to unpublished orders of the state supreme court, id. Because the order does not disclose the rationale underlying it, we presume that it would be of limited authority as to the scope of the waiver under state law. Nevertheless, in crafting an analogous federal waiver rule, we find comfort in knowing that the state’s highest court appears to share our view that a narrow waiver of the privilege strikes an appropriate balance among the interests of the habeas petitioner, the prosecution and the public.
The state seeks to impugn the precedential force of the Gallego order by arguing that the California Supreme Court has entered inconsistent orders in other cases. But the only case it points to is Hunter v. Superior Court, No. S102669 (Cal. Jan. 3, 2002). Hunter is a very different case and does not undermine the significance of Gallego. Hunter brought federal habeas proceedings raising, inter alia, an ineffective assistance claim, and the federal district court entered a protective order much like the one in our case. Hunter prevailed in federal court and was granted a new trial on grounds unrelated to his ineffective assistance claim. After the federal proceedings were over, the state moved the district court for reconsideration of the protective order in light of our opinion in Anderson v. Calderon, 232 F.3d 1053 (9th Cir.2000). Bowing to the force of Anderson, the district court vacated its protective order. Back in state court, the prosecution relied on Anderson and the district court’s order vacating the protective order to argue that Hunter's waiver of the privilege was not limited to the federal habeas proceedings. The state trial judge agreed and then proceeded to consider whether state law limited the waiver, even if federal law did not. Not surprisingly, the court concluded that state law did not supply an independent ground for limiting the scope of the waiver. See Hunter v. Superior Court, No. SC-11007 (Cal.Super.Ct. Oct. 24, 2001). Hunter sought review of that decision from the state court of appeal, No. A096762 (Cal.Ct.App. Nov. 27, 2001), and then from the state supreme court, No. S102669 (Cal. Jan. 3, 2002). It is this latter order on which the Attorney General relies in arguing that the California Supreme Court has issued orders inconsistent with that in Gallego. The difference in the two cases is manifest. In Gallego, the state supreme court was in a position precisely analogous to that of a district court with jurisdiction over a federal habeas petition — it was the court that was imposing the implied waiver in the first instance and therefore the one with authority to determine the scope of the waiver. See In re Gallego, 18 Cal.4th 825, 831, 77 Cal.Rptr.2d 132, 959 P.2d 290 (1998) (recounting the procedural history of the case and noting that, after the federal district court denied the Attorney General’s motion to dismiss petitioner’s unexhausted claims, petitioner "file[d] in this court [the California Supreme Court] a petition for writ of habeas corpus to exhaust those claims”); see also In re Gallego, 959 P.2d 290, No. S042737, 1998 Cal. LEXIS 5142 (Aug. 3, 1998) (reviewing petitioner's thirty-five habeas claims in the first instance and rejecting all of them on the merits). In that situation, the California Supreme Court appears to have determined that the fairness principle calls for a limited waiver, one that doesn't permit the prosecution to use the privileged evidence on retrial. In Hunter, the state trial court was misled by Anderson into concluding that federal law permitted use of the attorney-client materials beyond the federal habeas proceedings, and then concluded that state law did not supply the limitation it mistakenly believed federal law had omitted. The state supreme court did not disturb that ruling in its one-line order declining interlocutory review. We do not find the California Supreme Court’s action in Hunter at all inconsistent with its order in Gallego. Indeed, the fact that the state attorney general, whose office presumably monitors these cases closely, was able to come up with nothing closer on point strengthens the force of the Gallego order and confirms our view that we are writing on the same page as the California Supreme Court on the question whether the prosecution should be able to use at retrial privileged materials obtained during the course of habe-as proceedings.
Without exhausting all the possible means to accomplish the required end, we note that district courts may, as happened here, enter a Fed.R.Civ.P. 26(c) protective order to limit distribution of the materials by the attorney representing the state. They may also incorporate the limited scope of the waiver in the discovery order itself when "granting] leave” for discovery to proceed. Habeas Rule 6(a). [OPINION BY O’SCANNLAIN, Circuit Judge, type=concurrence] O’SCANNLAIN, Circuit Judge, with whom Circuit Judge RAWLINSON joins, concurring in the judgment: I concur in the result reached today by the court, that the protective order issued by the district judge was not an abuse of his discretion. Nevertheless, I cannot interpret Judge Byrne’s order as broadly as the majority. Nor am I convinced that the state attorney-client privilege must remain intact. As I see it, while a federal court has ample discretion to proscribe improper use of discovery materials obtained through its proceedings, it has no authority to determine admissibility for such underlying information under state law. Indeed, nothing in Judge Byrne’s order purports to make such a sweeping command. I Lawrence Bittaker is challenging his state conviction for multiple murders in this federal habeas corpus proceeding. He claims that he was deprived of effective assistance of counsel during his state court trial, and is thus being unconstitutionally detained. As the majority notes, it is axiomatic that when a client places the performance of his lawyer at issue, the client waives his or her right to assert the attorney-client privilege. Supra, at 718-719 (citing, among others, Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 (1888), and United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir.1999)). There is no dispute that Bittaker cannot both pursue his ineffective assistance of counsel claims and simultaneously oppose the State’s request for discovery on the basis of the attorney-client privilege. Cleverly, Bittaker refused to be deposed and refused to allow his trial counsel to be deposed or to allow the State access to his trial counsel’s files without a protective order precluding dissemination of the discovered materials outside the federal habe-as proceeding. Without determining the applicability of the attorney-client privilege or making any representations as to the continuing viability of the privilege, the district court granted Bittaker’s request. Nonetheless, the majority concludes that by filing the protective order the district court preserved the attorney-client privilege as to all future proceedings, specifically upon retrial in state court. I respectfully disagree. II My disagreement with the majority lies not so much in its determination of the scope of the federal attorney-client privilege, although I have yet to be convinced by its reasoning, but in its blanket preemption of state consideration of the effect of disclosure on the state attorney-client privilege. Even if, arguendo, the waiver of the federal attorney-client privilege extends only so far as the habeas proceeding, I see no reason why the state attorney-client privilege must necessarily also remain intact. The majority concludes that the scope of the waiver of the attorney-client privilege is determined under federal law. In the context of this case, the majority is correct: the admissibility of the evidence in a habeas proceeding is governed by the federal attorney-client privilege and thus the scope of any waiver in these proceedings is also determined under federal law. The majority fails to note, however, that when a party seeks to introduce evidence in a state tribunal raising issues of state criminal law the federal attorney-client privilege is no longer applicable. Fed. R. Ev. 1101(a) (limiting applicability of the federal rules of evidence to “actions, cases, and proceedings” in federal courts). The initial existence of any privilege and its continuing vitality are both issues of state law, see Cal. Evid.Code § 910 (attorney-client privilege applies in “all proceedings”); see also Evans v. Raines, 800 F.2d 884, 887 n. 4 (9th Cir.1986) (“[B]ecause the attorney-client relationship is created and controlled by state law, the nature and extent of the attorney-client privilege is defined by state law.”); United States v. Rogers, 751 F.2d 1074, 1077 (9th Cir.1985) (“Whether the communication between Rogers and his attorney, Miller, is in fact privileged and, thus, whether evidence of that communication can be objected to and excluded at trial, is a matter to be resolved in the trial court if the case proceeds to trial.”), just as the existence and applicability of the attorney-client privilege is a matter of federal law when one seeks to introduce evidence into federal courts on a federal claim such as a petition for a writ of habeas corpus, see Fed.R.Evid. 501 (stating that the federal attorney-client privilege applies to claims of federal law); see, e.g., Swidler & Berlin v. United States, 524 U.S. 399, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998) (holding that under Federal Rule of Evidence 501 the attorney-client privilege survives the death of the client). The fact that the federal attorney-client privilege is not fully breached is not dispositive of the state’s privilege. Invoking federalism and comity, the majority remarkably concludes that a federal district court must nevertheless protect the sanctity of the State of California’s attorney-client privilege by precluding the state from making an admissibility determination. But, why are the state courts not free to conclude that the petitioner waived his state law privilege by his bringing a federal habeas petition on ineffective assistance of counsel grounds? Why is it necessarily not a waiver under state law if the federal privilege is undisturbed? The majority’s reasoning: the “fairness” principle. The majority concludes that because the “fairness” principle dictates that Bittaker’s waiver is valid only in the current habeas proceedings federal courts must have the authority to preserve the “bargain” that the court struck with Bit-taker. To preserve such “bargain,” the majority commands that California state courts treat the information as privileged. The majority merely begs the question. How does the fairness principle provide the federal courts the right to “bargain” with the state’s authority? Federal courts can strike whatever bargain they wish with a petitioner, but we cannot simply sell the state’s rights to pay for it. Ill If indeed a conflict between the federal attorney-client privilege and the state privilege existed, the federal rule would of course triumph. This a merely a function of the Supremacy Clause. The majority, however, has not identified a conflict between the federal and state privileges—nor could it— the two privileges apply at different times, in different proceedings. See Fed. R. Ev. 1101(a)-(c); see also Timothy P. Glynn, Federalizing Privilege, 52 Am. U.L.Rev. 59, 148 (2002) (arguing that Congress must adopt a substantive federal attorney-client privilege to preempt “contrary state privilege rules”). As we stated in Wharton v. Calderon, 127 F.3d 1201, 1205-06 (9th Cir.1997), “The attorney-client privilege is a rule of evidence. It does not provide a legal basis to support issuance of the district court’s ‘protective order,’ which purports to bar out-of-court interviews to which the rules of evidence do not apply.” The current situation is no different. I agree that this case raises constitutional concerns, but I disagree that they are ripe for us to address. As in Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the problem of an unconstitutional condition only arises if the prosecutor actually attempts to use specific evidence in trial, and even under Simmons, the prosecutor may use compelled information under some circumstances, for example to impeach false testimony introduced at trial. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1288-89 (9th Cir.1994). Such principles are even more applicable when dealing with the attorney-client privilege. See Rogers, 751 F.2d at 1079 (“The prejudice [to the defendant from the government possessing privileged information before trial] does not affect [a defendant’s] ability to defend himself at trial. There is a fundamental distinction between the use of privileged information at trial, and its use during the investigatory period.”); United States v. White, 970 F.2d 328, 336 (7th Cir.1992) (“The attorney-client privilege is a testimonial privilege. Consequently, so long as no evidence stemming from the breach of the privilege is introduced at trial, no prejudice results.”). Unless we are convinced that no possible use of discovery material would be constitutional (going well beyond Simmons), we should allow the state court to address the issue. See United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981) (“Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”); see also Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (“[I]n a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.”). State courts are in a much better position to determine admissibility of such evidence and they are certainly competent to resolve any constitutional issues that may arise. Nor can the equitable powers of federal courts provide authority to proscribe state courts. The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity to the Judiciary Article of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent.... Douglas v. City of Jeannette, 319 U.S. 157, 162-63, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); see also Degen v. United States, 517 U.S. 820, 823-24, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) (“Principles of deference counsel restraint in resorting to inherent power, ... and require its use to be a reasonable response to the problems and needs that provoke it....”); Perez v. Ledesma, 401 U.S. 82, 84-85, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971) (holding that district court could not order the suppression of evidence in pending and future state obscenity trial: “The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals....”). Especially in deciding Bittaker’s claim, which arises in the habeas context under AEDPA — a statute whose “purpose [is] to further the principles of comity, finality, and federalism” — we must be careful to nurture “the historic and still vital relation of mutual respect and common purpose existing between the States and the federal courts.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Paramount: we must “limit the scope of federal intrusion into state criminal adjudications and [] safeguard the States’ interest in the integrity of their criminal and collateral proceedings.” Id. Leaving the state courts to consider the scope of its privilege in the first instance strikes such a balance. The federal habeas proceeding is not undermined—the petitioner has a full and fair opportunity to argue his case—and yet federal courts will still be able to enforce any federal interests either on direct review or through habeas review. Of course, Bittaker would prefer to know in advance whether formerly privileged information may be used against him, but the Constitution does not provide such an accommodation. See United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (“[A] hard choice is not the same as no choice”). As the Supreme Court noted in Upjohn, “We are acutely aware ... that we sit to decide concrete cases and not abstract propositions of law.... This case-by-case process and the judicial restraint accompanying it have not and cannot produce generally applicable, particularized rules that provide certainty.” 449 U.S. at 386, 101 S.Ct. 677. I would have exercised such judicial restraint here. IV That being said, I concur in the result reached by the majority: the district court did not abuse its discretion in entering this particular protective order. Despite the majority’s insistence that the protective order preserves the attorney-client privilege in state court, the language of the protective order itself makes no such pretensions. Cf. Transamerica Computer Co. v. IBM Corp., 573 F.2d 646, 652 (9th Cir.1978) (interpreting order that explicitly preserved the privilege in any documents compelled by the court). The court’s protective order simply deems the requested discovery “confidential” and allows the Office of the California Attorney General to use the materials only for the purposes of the federal habeas corpus proceeding. While the protective order explicitly prohibits disclosure of the materials’ contents in the event of a state retrial, it says nothing regarding the ability of the prosecutor to discover those same materials through state court discovery procedures if it determines the privilege was waived. In fact, Bittaker himself explicitly denies that the protective order prohibits the state courts from considering the preservation of the state attorney-client privilege. See, e.g., Appellee’s Brief at 56 (“There are no pending proceedings in California’s state court, and Mr. Bittaker cannot seek to have those courts apply California law and protect his privileges in these documents. The only way to preserve these issues for consideration by a California court is by issuing a protective order in this federal action.” (emphasis in original)). Bittaker requested and received a protective order that merely preserves the status quo so that the state court can consider whether he waived his privilege under state law. Nothing more. In its haste to reach the merits of Bittaker’s attorney-client privilege claims, the majority creates the bargain it wishes the district court had entered, rather than enforce the “bargain” actually struck between Bittaker and the district court. Once viewed correctly, Judge Byrne’s protective order is tailored to protect legitimate federal interests. The affront to the federal courts is not a possible breach of the state attorney-client privilege — a consequence of our dual sovereignties — but rather the risk that the prosecutor would use the information we gave him to build his case, circumventing the state discovery processes and any attendant limitations. Such potential abuse of federal discovery provides sufficient authority for entering the protective order. Federal courts have the discretion to restrict future use of the discovered materials when a party may suffer harm as a result of disclosure. See, e.g., Harris v. Amoco Production Co., 768 F.2d 669, 683-84 (5th Cir.1985) (“A party may generally do what it wants with material obtained through the discovery process, as long as it wants to do something legal. The federal rules do not themselves limit the use of discovered documents or information. Rule 26(c) does, however, afford district courts the ability to impose limits. If the party from whom discovery is sought shows ‘good cause,’ the presumption of free use dissipates, and the district court can exercise its sound discretion to restrict what materials are obtainable, how they can be obtained, and what use can be made of them once obtained.” (citations omitted)). Accord Parsons v. General Motors Corp., 85 F.R.D. 724, 726 (D.Ga.1980) (“This court may impose conditions on the release of information to protect a person or party from any harmful side effects of disclosure.” (citing 4 Moore’s Federal Practice P 26.67, at 26-487)); Konrad v. DeLong, 57 F.R.D. 123, 125 (N.D.Ill.1972) (holding that court has power to prohibit use of expert’s testimony in other proceedings in order to prevent abuse of process and intimidation of witness before federal court). Because habeas is a civil proceeding, the permissible discovery is broader and the free exchange of such discovery creates a situation ripe for abuse: by bringing a habeas petition to exercise his constitutional right, the petitioner must give his entire case to the State, and, if petitioner is found to be unconstitutionally confined, the prosecutor may then use that same discovery to reconvict him. Cf. Degen, 517 U.S. at 826, 116 S.Ct. 1777 (noting that protective orders are available to “prevent parties from using civil discovery to evade restrictions on discovery in criminal cases”); Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir.1962) (“A litigant should not be" allowed to make use of the liberal discovery procedures applicable to a civil suit as a dodge to avoid the restrictions on criminal discovery and thereby obtain documents he would not otherwise be entitled to for use in his criminal suit. Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other.”). The district court can minimize such harm by forcing the parties to start the adversarial process over again, and to proceed through discovery using the processes of the new forum in a subsequent case. If we properly construed the protective order, we would not have to discuss the attorney-client privilege, speculate about waivers, or strong arm the state into following a limited waiver of state law attorney-client privilege; we could simply hold that the district court did not abuse its discretion in limiting the dissemination of discovery materials. Control over the discovery itself is materially different from control over the consequences of disclosing the discovery. In the former case, the courts are merely insuring that any discovered materials are not later used; if the prosecution wants the information, it must find it somewhere else. In the latter instance, the court is not only insuring the confidentiality of the underlying information in its own proceeding, but it is also curtailing the state courts’ authority to make its own admissibility determination. Such noble intentions are simply too ambitious. Thus, Judge Byrne’s protective order does not infringe on the state’s right to determine what evidence is admissible. If the prosecution can secure the same information through state discovery processes, state courts can determine admissibility of such evidence; it is only the information gained through the habeas proceeding itself that is off limits. Cf. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (“As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court’s processes.”). If, indeed, California wishes to guard its attorney-client privilege as jealously as the majority so believes, the protective order provides it every opportunity. While I disagree with the reach of the majority’s analysis, I concur in the court’s judgment and would affirm the district court’s use of its discretion in this case.
I fail to see how the majority can uphold a protective order that precludes admissibility of all discovered evidence — -based on the attorney-client privilege — without first concluding that such privilege exists. Under our law, the party who asserts the attorney-client privilege must first prove that it applies. See United States v. Martin, 278 F.3d 988, 999-1000 (9th Cir.2002) ("Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.... The burden is on the party asserting the privilege to establish all the elements of the privilege." (citations and internal quote marks omitted)). Although some of the discoverable information is likely privileged, surely not all of it is. This is no small matter; as the majority interprets the protective order, it prohibits the state court from even considering the admissibility of evidence. What justification is there for the protective order extending beyond the confines of privileged material?
Federal courts have generally concluded that the information, once disclosed to a party opponent, waives the attorney-client privilege as to future proceedings. See, e.g., United States v. Mass. Inst. of Technology, 129 F.3d 681, 686 (1st Cir.1997) (holding that even if MIT was under a legal duty to disclose information pursuant to federal law because of its status as a defense contractor, it still waived privilege by providing such information to the IRS; MIT had the choice to become a defense contractor); Genentech, Inc. v. United States Int’l Trade Comm’n, 122 F.3d 1409, 1416, 1416-18 (Fed.Cir.1997) ("Once the attorney-client privilege has been waived, the privilege is generally lost for all purposes and in all forums.”); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993) ("An allegation that a party facing a federal investigation and the prospect of a civil fraud suit must make difficult choices is insufficient justification for carving a substantial exception to the waiver doctrine.”); Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1425 (3d Cir.1991) ("The traditional waiver doctrine provides that disclosure to third parties waives the attorney-client privilege unless the disclosure serves the purpose of enabling clients to obtain informed legal advice.”); In re Martin Marietta Corp., 856 F.2d 619, 623-24 (4th Cir.1988) (holding that disclosure to government waived attorney-client privilege as to future proceedings); In re von Bulow, 828 F.2d 94, 101-02 (2d Cir.1987) (holding that party implicitly waived his attorney-client privilege when his attorney published privileged material in a book, and the client assisted in promoting the book, as to the matters discussed in the book); United States v. Suarez, 820 F.2d 1158, 1161 (11th Cir.1987) ("[I]t has long been held that once waived, the attorney-client privilege cannot be reasserted.” (citing, among others, 8 Wigmore, Evidence § 2328 at 638 (McNaughton rev. 1961) ("A waiver at one stage of a trial should be final for all further stages ....”) (additional citations and footnote omitted))); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981) ("The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit.”). But see Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 n. 1, 611 (8th Cir.1977) (finding limited waiver after disclosure to the SEC). The mere fact that the disclosure to opposing counsel is made in confidence, i.e., under a protective order, should not alter the status of the waiver. Cf. In re Grand Jury Subpoena Dated Dec. 17, 1996, 148 F.3d 487, 492-93 (5th Cir.1998) (holding that federal statute that prohibited circulation of information outside of mediation proceedings did not create evidentiary privilege).
I am not even sure that we should be making any conclusions regarding the scope of the federal attorney-client privilege. There is no dispute that Bittaker waived his attorney-client privilege in his habeas proceeding and must allow his attorney to testify; this evidence is discoverable and admissible under Federal Rule of Evidence 501. Why the court must determine now the extent of that waiver, and thus the admissibility of evidence in a later proceeding, even a later federal proceeding, is unclear. While I agree that it may permit Bittaker to make a more educated decision regarding the claims which he brings, there is simply no controversy yet regarding the admissibility of evidence. I would leave the issue for a future court to decide when a case is brought before it. See Upjohn Co. v. United States, 449 U.S. 383, 386, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (noting that adjudications of the attorney-client privilege must be done on a case-by-case basis).
I wonder how the majority would react if the tables were turned and the state court told the federal court how far its privilege extended. Suppose that under California law the attorney-client privilege is breached, even if no confidential information is disclosed, merely by filing an ineffective assistance claim on state habeas review—the scope of which under state law includes all privileged information relevant to the claim. Under such a scenario, no state privilege would exist when the petitioner enters federal court. (Any constitutional concerns that may be raised by such a law would not be ripe upon habeas review. See infra.) Yet, the state could not enter an order, binding on the federal courts, that declared the information non-privileged. Notwithstanding the status of the state attorney-client privilege, a federal court would still be free to apply the federal attorney-client privilege as it sees fit, namely that the privilege is not breached until confidential conversations are actually disclosed. See Fed.R.Evid. 501. When the majority speaks of comity and cooperation, its words thus ring hollow. It seems to me that if a state can arbitrarily eliminate the privilege to avoid the current situation, it may also set the boundaries of how much disclosure is permissible before it chooses to no longer recognize it. That disclosure takes place in federal court does not alter the state's right to fashion the privilege in the manner it wishes so as to best balance its competing interests in encouraging frank communication between attorney and client and discerning the truth through court proceedings. As California's determination under state law would have no effect as to the continuing viability of the federal attorney-client privilege under federal law, a federal court’s determination of the scope of its waiver should have no binding effect on the state courts.
In Martinez-Salazar, the trial court refused to dismiss a potential juror for cause when he twice stated that he would favor the prosecution in the defendant’s trial because “[One] assume[s] that people are on trial because they did something wrong.” 528 U.S. at 308, 120 S.Ct. 774. The defendant was then forced to use one of his peremptory challenges to remove him; later he ran out of such challenges. Id. at 309, 120 S.Ct. 774. The Court held that the defendant had a difficult, but not unconstitutional, choice: he could choose not to use his peremptory challenge and then on appeal argue that his Sixth Amendment right to a fair trial had been impaired, or he could use the challenge, although it might be better suited for another prospective juror. Id. at 316, 120 S.Ct. 774. In contrast, a habeas petitioner's choice is not too difficult. He is imprisoned, he believes unconstitutionally, and his first concern is getting out. Any constitutional concerns regarding his retrial are secondary and, in reality, would not stop him from pursuing a valid ineffective assistance of counsel claim.
See supra at 717 n. 1 for the text of the protective order.