On December 2, 1979, the body of seventeen-year-old Dennis Frank Fox was found beside the Ortega Highway in Orange County. Over the next six months the bodies of boys and young men kept turning up in the same condition along Southern California roads: Charles Miranda, fifteen, in a downtown Los Angeles alley in February; Russell Rugh, fifteen, and Glenn Barker, fourteen, together in the San Juan Campgrounds in March; Lawrence Sharp, seventeen, at a gas station in Westminster in May; Steven Wells, eighteen, behind a gas station in Huntington Beach in June. The press called the killer the Freeway Killer. William George Bonin, a truck driver in his early thirties who had already been to prison twice for sexual attacks on boys, was arrested in June 1980.
He was tried twice. A Los Angeles County jury convicted him of ten murders, acquitted him of two more and returned death on all ten, and the Ninth Circuit gives his sentencing date as January 20, 1982; an Orange County jury convicted him of the four murders of Fox, Rugh, Barker and Sharp and he was sentenced to death again on August 22, 1983. Two young men who had been his companions, Gregory Miley and James Munro, testified that he was responsible for the Miranda and Wells killings, and a Los Angeles television reporter, David Lopez, told the juries that Bonin had admitted the killings to him.
This file holds the two California Supreme Court opinions on those trials and three rulings of the Ninth Circuit, about sixty-six thousand words in all. The Orange County opinion of August 29, 1988, written by Justice Mosk, sets out the evidence body by body and the penalty-phase record of his earlier crimes and his childhood; it affirmed. The Los Angeles opinion of January 9, 1989, affirmed everything except a technical duplication in the special-circumstance findings, and spends a good part of its length on the lawyers he tried to hire on the eve of trial. The federal rulings follow the habeas petitions: in 1993 the court refused to let the State Public Defender withdraw, in June 1995 it rejected both petitions, and on February 22, 1996, it affirmed the denial of his last ones.
Bonin was executed at San Quentin shortly after midnight the next morning, February 23, 1996. The order to begin was given at 12:09 a.m. and he was pronounced dead at 12:13. He was forty-nine and the first person California had put to death by lethal injection.
The opinions call the fourteen young men and boys by name, and we have printed every name as the courts did. Where the courts describe the living victims of his attacks in 1968, 1969 and 1975, they had already reduced them to a first name and an initial, and we have not changed that. Nobody else in the file needed to be redacted; the witnesses are his accomplices, the police, the reporter and his lawyers.
These are findings on a trial record, not the record itself. Where the California court describes the crimes it is summarizing what the juries heard, and it says so in its own words, "the tale that is told by the evidence." The Ninth Circuit opinions barely return to the facts. They are about lawyering: whether his trial counsel had a conflict, whether the public defender could argue its own ineffectiveness, whether a last set of petitions was an abuse of the writ. Accomplices' testimony, the confession to the reporter and the physical evidence were all contested at trial, and the defense tried at trial to show that the evidence did not prove what the prosecution said it did.
The two California opinions arrive without their footnotes: the capture holds the text of the official reports and none of the notes, so a reader who wants them will need the bound volumes, 46 Cal. 3d and 47 Cal. 3d. The 1995 Ninth Circuit opinion keeps its two notes. Court opinions are public domain in the United States, and apart from rejoining the lines into paragraphs we have left the text as the courts printed it, including their bracketed "[sic]" marks, which the scan renders in places as "[sz'c]".
The dates in the file are the courts' dates, and they are not the only ones in circulation. The Ninth Circuit puts the two death sentences on January 20, 1982, and August 22, 1983; other published accounts give March 12, 1982, and August 26, 1983, which may be the dates of formal judgment rather than of the verdicts on penalty. We have not been able to settle which, and we have used the court's.
[No. S004565, Crim. No. 23286.
Aug. 29, 1988.]
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM GEORGE BONIN, Defendant and Appellant.
Counsel
Frank O. Bell, Jr., State Public Defender, under appointment by the Supreme Court, Monica Knox, Chief Assistant State Public Defender, and Adrian K. Panton, Deputy State Public Defender, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Jay M. Bloom, John W. Carney and Steven H. Zeigen, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY MOSK, J. type=majority]
Opinion
MOSK, J.
This is an automatic appeal from a judgment of death (Pen. Code, § 1239, subd. (b)) imposed under the 1978 death penalty law (id., § 190.1 et seq.).
After a jury trial defendant was convicted of the first degree murder (Pen. Code, § 187) and robbery (id., § 211) of Dennis Frank Fox, Glenn Barker, Russell Rugh, and Lawrence Sharp. As to each murder count, he was found to have been convicted in the same proceeding of more than one offense of murder within the meaning of the multiple-murder special circumstance of Penal Code section 190.2, subdivision (a)(3). For each of the four murders he received the penalty of death.
As we shall explain, we conclude that the judgment must be affirmed.
I. The Facts
As a result of his activities in Southern California in the years 1979 and 1980, defendant—who was then in his early 30’s—was dubbed the “Freeway Killer” and his murders the “freeway killings.” Before he was tried in this Orange County proceeding, he was tried by a jury in Los Angeles County action No. A360975. There he was convicted of the first degree murder and robbery of Marcus Grabs, Donald Hyden, David Murillo, Charles Miranda, James Macabe, Ronald Gatlin, Harry Todd Turner, Steven Wood, Darin Lee Kendrick, and Steven Wells; as to each murder count, special circumstance allegations of multiple murder and felony murder-robbery (Pen. Code, § 190.2, subd. (a)(17)(i)) were found true; and for each murder he received the penalty of death.
The tale that is told by the evidence introduced at the guilt phase of the lengthy trial of this action is as follows.
On December 2, 1979, the nude body of 17-year-old Dennis Frank Fox was found on the side of the Ortega Highway in Casper’s Regional Park in Orange County; no clothing or other identifying evidence was discovered at the scene. Fox had been killed by ligature strangulation about November 30. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists as well as an approximately one-half inch ligature mark on the neck, revealed indications of sexual activity before death, and bore triskelion-shaped fibers in the pubic area.
On March 22, 1980, the nude body of 15-year-old Russell Rugh was found off the Ortega Highway in the San Juan Campgrounds in Orange County; no clothing or other identifying evidence was discovered at the scene. Rugh had been killed by ligature strangulation on March 21 or 22. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists as well as an approximately one-half inch ligature mark on the neck, revealed indications of sexual activity before death, and bore triskelion-shaped fibers in the pubic area.
On the same day and in the same place that Rugh’s body was discovered, the nude body of 14-year-old Glenn Barker was found; no clothing or other identifying evidence was discovered at the scene. Like Rugh, Barker had been killed by ligature strangulation on March 21 or 22. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists as well as an approximately one-half inch ligature mark on the neck, revealed indications of sexual activity before death, and bore triskelion-shaped fibers in the pubic area.
On May 18, 1980, the nude body of 17-year-old Lawrence Sharp was found at a gasoline station on the corner of Westminster Boulevard and Bolsa Chica in Westminster in Orange County; no clothing or other identifying evidence was discovered at the scene. Sharp had been killed by ligature strangulation on May 17 or 18. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists, as well as an approximately one-half inch ligature mark on the neck, revealed indications of sexual activity before death, and bore triskelionshaped fibers in the head hair.
In order to establish that it was defendant who had perpetrated the killings, the prosecution presented expert testimony that the triskelionshaped fibers discovered on the body of each of the victims were consistent with carpeting in a van owned by defendant, and that the van was stained in several places with human blood.
To establish identity, the prosecution also introduced “other crimes” evidence relating to the killing of Charles Miranda and Steven Wells.
On February 3, 1980, the nude body of 15-year-old Charles Miranda was found in an alley in downtown Los Angeles; no clothing or other identifying evidence was discovered at the scene. Miranda had been killed by ligature strangulation in the late night of February 2 or in the early morning of February 3. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists as well as on the neck, revealed indications of sexual activity before death, and bore the same kind of triskelion-shaped fiber in the pubic area that the bodies of Fox, Rugh, Barker, and Sharp bore.
Gregory Miley, a sexual partner of defendant and about 19 years old at the time relevant here, testified that it was defendant who was responsible for the death of Miranda. Specifically, he said that he was with defendant as defendant was driving his van on the night of February 2, 1980; defendant picked up Miranda in Hollywood and consensually sodomized him in the back of the van; he then tied him up; afterwards, he said to Miley, “Kid’s going to die. Kid’s going to—this kid’s going to die,” Miley responded, “Why don’t you just let the kid go?,” and defendant replied, “No, because he’ll know us and he’ll know the van”; defendant then proceeded to strangle Miranda with Miley’s help, dumped his body in an alley in downtown Los Angeles, and disposed of his clothing and other property in various locations.
On June 3, 1980, the nude body of 18-year-old Steven Wells was found behind a gasoline station in Huntington Beach; no clothing or other identifying evidence was discovered at the scene. Wells had been killed by ligature strangulation on June 2. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the ankles and wrists as well as on the neck, revealed indications of sexual activity before death, and bore the same kind of triskelion-shaped fiber that the bodies of Fox, Rugh, Barker, Sharp, and Miranda bore.
James Munro, a sexual partner of defendant and about 19 years old at the time relevant here, testified that it was defendant who was responsible for the death of Wells. Specifically, he said that he was with defendant as defendant was driving his van on June 2, 1980; defendant picked up Wells as he was hitchhiking and participated in mutual consensual oral copulation with him in the back of the van; the trio eventually arrived at defendant’s home in Downey; there, defendant and Wells continued their sexual activity; soon defendant persuaded Wells to allow himself to be tied up; defendant took money and items of identification from Wells’s wallet; he then proceeded with Munro’s help to strangle Wells and to dump his body behind a gasoline station in Huntington Beach; defendant told Munro that he was the “Freeway Killer,” and that Miley was involved with him in the killings.
To establish identity, the prosecution also introduced evidence of extrajudicial admissions by defendant linking him to the charged crimes. Among other witnesses it called one David Lopez, a reporter for Los Angeles television station KNXT. Lopez testified that defendant had admitted that it was he who killed Fox, Rugh, Barker, and Sharp, and also Miranda and Wells. Other witnesses gave testimony to the effect that defendant had said he would not leave witnesses to his criminal activity alive.
Through the examination of its own witnesses and the cross-examination of the prosecution’s, the defense attempted to show that the evidence could not support a determination beyond a reasonable doubt that it was defendant who killed Fox, Rugh, Barker, and Sharp or even Miranda and Wells. Specifically, in its case-in-chief it attacked Munro’s credibility and tried to undermine the persuasiveness of the prosecution’s expert testimony concerning the triskelion-shaped fibers found on the victims’ bodies.
At the penalty phase the prosecution presented evidence in aggravation. Some of that evidence related to prior adjudicated felonies and told the following tale. Defendant committed sexual attacks in late 1968 and early 1969 against 12-year-old Lawrence B., 14-year-old William J., 17-year-old John T., and 18-year-old Jesus M. As a result of his activities, in the spring of 1969 he was convicted of molesting and forcibly orally copulating Lawrence B., kidnapping and sodomizing William J., sodomizing John T., and forcibly orally copulating Jesus M., and was committed to Atascadero State Hospital as a mentally disordered sex offender amenable to treatment. In 1971 he was returned to court, declared unamenable to treatment, and committed to prison. Subsequent to his release, defendant committed a sexual attack on 14-year-old David M. in September 1975. Later that year he was convicted of forcibly orally copulating the boy and was sentenced to prison.
The prosecution also introduced evidence relating to the Los Angeles killings. Specifically, it attempted to prove that in Southern California between August 1979 and June 1980 defendant sexually attacked and killed Marcus Grabs, Donald Hyden, David Murillo, Charles Miranda, James Macabe, Ronald Gatlin, Harry Todd Turner, Steven Wood, Darin Lee Kendrick, and Steven Wells, all of whom were children or youths. It also attempted to show that Kendrick was killed in the performance of a ritual of the black art.
In mitigation the defense presented evidence that told the following tale. Although his father caused the family serious problems as a result of drinking and gambling, defendant was a good and helpful child. At a young age he was sodomized by older men. He joined the armed forces and served in Vietnam. There he earned a medal for gallantry for saving a soldier at the risk of his own life. There also he began to engage in violent nonconsensual homosexual activity. He returned from Vietnam a changed man. His downward course into sexual criminality continued, culminating in murder. Apart from his difficulties with regard to sex, however, he was a good and helpful man.
II. Guilt Issues
Defendant makes three claims bearing on the issue of guilt. As we shall explain, none establishes reversible error.
A. Denial of Motion for Change of Venue
Defendant contends that the court erred when it denied a motion he made seeking a change of venue because of pretrial publicity.
Penal Code section 1033 (hereinafter section 1033) provides in relevant part as follows. “In a criminal action pending in the superior court, the court shall order a change of venue: [fl] (a) On motion of the defendant, to another county when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” The provision is in essence a codification of the “standard of reasonableness” that we laid down in Maine v. Superior Court (1968) 68 Cal.2d 375 [66 Cal.Rptr. 724, 438 P.2d 372], to guide trial courts in ruling on motions for change of venue and appellate courts in reviewing such rulings. (Id. at p. 383.) The Maine standard, in turn, is ultimately an implementation of Sixth and Fourteenth Amendment safeguards relating to the right of a criminal defendant to receive a fair trial before an impartial trier of fact. (See id. at pp. 381-384.)
Under section 1033 a criminal defendant may make a motion for change of venue based on pretrial publicity and its effect on the community from which the jurors for his trial are drawn. (E.g., People v. Anderson (1987) 43 Cal.3d 1104, 1130 [240 Cal.Rptr. 585, 742 P.2d 1306]; People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal.Rptr. 679, 623 P.2d 240] (plur. opn.).)
In passing on such a motion, the trial court looks to the following factors, among others: the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and of course the nature and extent of the publicity. (See, e.g., People v. Anderson, supra, 43 Cal.3d at p. 1130 [stating the factors as guides for an appellate court’s review of a change-of-venue ruling]; People v. Harris, supra, 28 Cal.3d at p. 948 [same].)
The ultimate question that the trial court must resolve, however, is whether on the peculiar facts of the individual case (see Maine v. Superior Court, supra, 68 Cal.2d at p. 388) there is a reasonable likelihood that the jurors who will be, or have been, chosen for the defendant’s trial have formed such fixed opinions as a result of pretrial publicity that they cannot make the determinations required of them with impartiality. (Cf. Patton v. Yount (1984) 467 U.S. 1025, 1035 [81 L.Ed.2d 847, 856, 104 S.Ct. 2885] [holding that for the resolution of a claim that pretrial publicity so infected a criminal trial as to deny the defendant his Sixth Amendment right to an impartial jury, “The relevant question is... whether the jurors... had such fixed opinions that they could not judge impartially the guilt of the defendant”].)
The phrase “reasonable likelihood,” we have explained, means something less than “more probable than not.” (E.g., Martinez v. Superior Court (1981) 29 Cal.3d 574, 578 [174 Cal.Rptr. 701, 629 P.2d 502].) But in view of the plain meaning of its words it must also mean something more than merely “possible.”
Finally, as the moving party the criminal defendant seeking change of venue bears the burden of proof. (See People v. Boyce (1982) 128 Cal.App.3d 850, 856-859 [180 Cal.Rptr. 573]; People v. Whalen (1973) 33 Cal.App.3d 710, 716 [109 Cal.Rptr. 282].)
The facts relevant to defendant’s claim are as follows. In June 1980 defendant was arrested in connection with the “freeway killings.” He was subsequently charged in Los Angeles County and Orange County. In October 1981 trial in the Los Angeles action commenced with jury selection. In the course of trial, evidence of the four Orange County murders was introduced to establish identity. In January 1982 the jury found defendant guilty of 10 counts of robbery and 10 counts of first degree murder with special circumstances as to each count, and fixed the punishment for each murder at death. In March 1982 the court entered judgment in accordance with the jury’s verdicts. The news coverage relating to defendant and to the “Freeway Killer” and the “freeway killings” was extensive.
In July 1982, prior to commencement of trial in this action, defendant moved for change of venue because of pretrial publicity. After a lengthy hearing, the court denied the motion in November of the same year. Its reasoning was as follows.
“Bearing in mind the criteria which the court must take into consideration in evaluating the pending motion, the court has made the following determinations.
“First of all, with reference to the nature and gravity of the offense, certainly the court can think of no offense or offenses which would be more grave than those which are pending in this particular case, [fl] There are pending the four murder charges.
“Secondly, with reference to the size of the community, the evidence is clear that we have a community that is approximately two million people— consists of approximately two million people, [fl] Additionally, the voter registration is in excess of one million, [fl] The court... also notes that the panels now drawn also consist of both people who have registered to vote, and, in addition thereto, we also draw from people who have obtained driver’s licenses that may not be registered, [fl] Consequently, it is the court’s determination from those facts that the pool which would be available is in excess of the number of people who are registered to vote.
“The next criteria is the status of the defendant in the community or of the victims in the community. Certainly there is nothing in the record that would indicate that either of the individuals have any particular status except when we are dealing with numerous victims, then we do have a situation where, within isolated groups within particular communities which comprise the county as a whole, then a certain status does arise.
“And then the last is the nature and extent of the coverage. Obviously this is a case that has commanded a great deal of media coverage both by radio—pardon me, both television and newspaper, and in addition thereto, some radio coverage, [fl] The determination that the court has to make just what effect has this coverage had on the minds of the community which would lead the court to believe that the defendant could not—there is a reasonable likelihood that the defendant would not obtain a fair trial within this county.
“Where the court has some difficulty, and I might state for the record a reason that I have this question, I have sat on cases which in my mind have commanded a great deal of publicity when I’ve thought there’s absolutely no way that we can get anyone who has not heard of this case, and whether they’ve even formed an opinion, but they’ve never heard of the case.
“In this case, I don’t have anything, be it a poll taken informally by somebody at a shopping center, I don’t have a poll that was taken in what might be called a formal way of someone, what percentage of the people have heard of the case, formed any opinions with reference to the case.
“I don’t have any evidence as to who watched what on television, what channels they watched, if in fact they do watch, what newspapers they take, if in fact they take any newspapers, and what effect, if in fact they do take newspapers, anything that they might have read has had upon them.
“Additionally, it appears to the court that we’re not talking, and one of the manners in which the court can perhaps dilute adverse publicity, if it determines that some exists, is for continuances so that the coverage has been diluted to the extent that perhaps it would not reflect adversely upon the defendant’s right for a fair trial.
“In this case, the court does note that there has been a minimum amount of publicity regarding this case, at least since the imposition of the sentence in Los Angeles County.
“The court, in taking the totality of the evidence that has been presented, makes a determination at this time that there has been an inadequate showing that the defendant is likely not to receive a fair trial in Orange County.
“I think based upon the size of the community, that there is undoubtedly a large group of individuals who either have not heard about the case or if they have heard of it, heard so little that in no way is the defendant not going to be able to get a fair trial in Orange County.
“The motion for change of venue is denied.” (Some paragraphing not original.)
In March 1983 trial commenced with jury selection. A total, of 204 prospective jurors were subjected to voir dire. Of this number, 174 had been exposed in some degree to pretrial publicity either directly or indirectly, including 60 who had been exposed to news coverage relating to the Los Angeles action; of the 204 prospective jurors, 39 were excused because of bias. In the course of the selection process, but before he had exhausted the 26 challenges allotted to the defense, defendant moved for 8 to 10 additional peremptory challenges. The court denied the motion without prejudice to renewal later in the process. Subsequently, defendant exhausted his peremptory challenges but did not renew his motion. Twelve jurors and four alternates were eventually selected. Ten of the jurors and all the alternates had been exposed to pretrial publicity, including three jurors and one alternate who had come upon news coverage relating to the Los Angeles action. Most of these persons, however, had been exposed to such publicity indirectly and to a minimal degree.
In June 1983, after selection of the jury was completed, defendant renewed his motion for change of venue in light of the record of voir dire. He argued, in substance, that practically all the jurors and alternates had been exposed to pretrial publicity and that their memories would be refreshed by the evidence introduced at trial. The court denied the motion. Its reasoning was as follows.
“The court has examined the transcripts relating to the various prospective jurors. The court has reached the determination that there does not exist a reasonable likelihood that in the absence of a change of venue the defendant would not obtain a fair trial in this particular county.
“I think based on the court’s interpretation of the answers given by the prospective jurors and those who ultimately were seated as jurors in this particular case, it is the court’s opinion that the defendant will, in fact, receive a fair trial as it relates to the pending charges against him.
“The matter can be subject to much speculation as to what people potentially can do based upon having memories refreshed. The whole question is that there is no evidence that any of them have memories that would, in fact, be refreshed; any memories of the incidents that would in fact be refreshed based upon the information that they provided to the court and to counsel in the examination.
“In totality, the court has exercised its discretion in various—as it relates to various prospective jurors. The court has excused certain ones because of the evaluations made by the court based upon the demeanor, the method of answering questions and the answers given to the various questions propounded to the prospective jurors.
“Those that the court did not excuse for cause, the court in its view did so justifiably.
“In the court’s ultimate decision, there is no reason to grant a change of venue. The motion is denied.”
Defendant now claims that the court erred by denying his motion for change of venue. In considering his point, we review the trial court’s resolution of factual questions under the deferential substantial-evidence standard. (People v. Louis (1986) 42 Cal.3d 969, 985 [232 Cal.Rptr. 110, 728 P.2d 180].) We review its resolution of legal questions under the nondeferential de novo standard. (Ibid.) And we generally review its resolution of mixed questions of law and fact—i.e., its application of law to fact—under the de novo standard as well. (Id. at pp. 985-987.) The ultimate question of the reasonable likelihood of a fair and impartial trial is plainly such a mixed question. (Cf. id. at p. 988 [concluding that the issue of whether the prosecution has exercised due diligence in procuring a witness’s attendance is a mixed question of law and fact].)
We believe that the trial court did not err when it denied the original motion. Specifically, the court’s essentially factual determination that the crimes charged were grave; that the size of the community was very large; that defendant had no particular status in the county; that the victims were similarly without status in the community as a whole; and that pretrial publicity, though extensive in the period preceding imposition of sentence in the Los Angeles action in March 1982, had been minimal in the time that followed—each of these findings is clearly supported by substantial evidence.
Further, the court’s determination of the ultimate mixed law-fact question of the reasonable likelihood of an unfair trial was proper: on independent review, we believe that defendant failed to carry his burden.
To begin with, the factors relating to the size of the community, the status of the defendant, and the popularity and prominence of the victims weigh in favor of the likelihood of a fair trial.
It is true that the factors relating to the nature and gravity of the offense and the nature and extent of pretrial publicity go in the other direction. Among other things, the record reveals the following. As noted above, news coverage concerning defendant was extensive. There were reports that defendant had a hand in the “freeway killings” and was in fact the “Freeway Killer”; he had a history of mental illness and of prior convictions for sexual offenses against young men and boys; he was involved in homosexuality, torture, and “black magic”; he had been linked to the killing of as many as 44 young men and boys; he was implicated in certain murders by alleged accomplices; and he had himself admitted to 21 killings. It was also reported that a dispute had arisen between prosecutors in Los Angeles and Orange Counties as to who would try defendant first. Further, there were reports concerning the Los Angeles action. Among other things, these stories recounted the evidence introduced at trial—including the four Orange County murders—and stated that defendant was convicted of ten murders and sentenced to death.
We believe, however, that the weight of the factors relating to the nature and extent of the pretrial publicity must be reduced to less than that of the other countervailing factors. The potentially prejudicial effect of the news coverage here must be presumed to have diminished. As the trial court observed, the coverage had been minimal since imposition of sentence in the Los Angeles action. “That time soothes and erases is a perfectly natural phenomenon, familiar to all.” {Patton v. Yount, supra, 467 U.S. at p. 1034 [81 L.Ed.2d at p. 856].)
In conclusion, we are of the opinion that defendant failed to carry his burden of proving that there was a reasonable likelihood that jurors drawn from Orange County would have formed such fixed opinions as a result of pretrial publicity that they could not make the determinations required of them with impartiality. Defendant, we concede, may have shown the possibility of an unfair trial in Orange County. But such a showing, as we have explained, is insufficient. Hence, the court did not err by denying the original change-of-venue motion.
We also believe that the trial court did not err when it denied the motion for change of venue as renewed on completion of jury selection: on independent review and after consideration of the record of voir dire, we are of the opinion that defendant failed to carry his burden. The record, to be sure, reveals that 10 of the 12 jurors and 3 of the 4 alternates had in fact been exposed to news coverage relating to defendant—although most of them indirectly and to a minimal degree. But it simply does not support the conclusion that there was a reasonable likelihood that any of those 16 persons had formed such a fixed opinion as a result of pretrial publicity that he could not make the determinations required of him with impartiality.
Against our conclusion, defendant argues in effect as follows. The pretrial publicity in this case, he begins, carried a great potential for prejudice: this proposition, he asserts, is established by the number and enormity of the crimes involved and the extensiveness of the coverage, and is confirmed by the fact that 39 of the 204 prospective jurors subjected to voir dire were excused because of bias. This great potential for prejudice, he goes on, cannot be deemed to have diminished substantially between March 1982, when sentence was imposed in the Los Angeles action and coverage became minimal, and March 1983, when jury selection in this proceeding began: a year is simply too brief a period of time. In view of this great and undiminished potential for prejudice, he concludes, we must presume that, at least when they had their memories refreshed by the evidence introduced at trial, the jurors and alternates might not have been able or willing to be fair and impartial.
Defendant’s argument is to no avail. To begin with, it appears to be essentially empty of persuasive force, supported as it is more by conjecture than by evidence. In any event, it seems to establish at the very most the mere possibility of an unfair trial. But such a showing, as we have explained, is insufficient.
Defendant may also be understood to argue that the fact that he exhausted his 26 peremptory challenges supports his claim that there was a reasonable likelihood of an unfair trial before partial jurors. Such an argument, however, would be unpersuasive. On this record the exhaustion of peremptory challenges establishes only defendant’s dissatisfaction with 26 prospective jurors and not the reasonable likelihood of bias on the part of any of the jurors or alternates actually selected.
In conclusion, we are of the opinion that defendant failed to carry his burden of proving that there was a reasonable likelihood that the jurors and alternates actually selected for his trial had formed, or would at trial form, such fixed opinions as a result of pretrial publicity that they could not make the determinations required of them with impartiality. Hence, the court did not err by denying the renewed change-of-venue motion.
B. Denial of Motion for Additional Peremptory Challenges
Defendant contends that the court erred by denying his motion for additional peremptory challenges. Specifically, he argues that in view of the pretrial publicity in this case and its potentially prejudicial effect the federal and state constitutional guaranties of a fair trial before an impartial jury required the court to grant his motion. We do not agree.
We believe that the court’s ruling was justified on procedural grounds. As noted above (see pt. II.A, ante), defendant made his motion for additional peremptory challenges before he had exhausted the 26 peremptory challenges allotted to the defense. The court denied the motion without prejudice to renewal later in the process of jury selection. Defendant, however, never renewed the motion. On these facts, we conclude, defendant’s motion was premature and properly denied as such.
We also believe that the court’s ruling was sound on the merits. We are of the opinion that to establish the constitutional entitlement to additional peremptory challenges argued for here, a criminal defendant must show at the very least that in the absence of such additional challenges he is reasonably likely to receive an unfair trial before a partial jury. (Cf. Sheppard v. Maxwell (1966) 384 U.S. 333, 363 [16 L.Ed.2d 600, 620, 86 S.Ct. 1507] [“where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, [to protect the criminal defendant’s due process rights] the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity”].) But as we concluded above (see pt. II.A, ante), defendant has failed to make such a showing. Accordingly, we hold the court’s denial of his request was proper.
C. Prosecutorial Misconduct
Defendant contends that the prosecutor engaged in misconduct by eliciting from television reporter David Lopez testimony to the effect that defendant had admitted to 14 killings in addition to the murders of Fox, Barker, Rugh, and Sharp—for which he was on trial—and the murders of Miranda and Wells—which were introduced to establish identity. The facts relevant to this claim must be presented at length.
As noted above (see fn. 1, ante), the court had previously ruled admissible only that “other crimes” evidence which related to the killing of Miranda and Wells. After Lopez took the witness stand but before his examination commenced, a colloquy ensued among the court and counsel at the bench out of the hearing of the jury. In relevant part the discussion was as follows.
“[Defense Counsel Tracy] Stewart: When Bryan [Brown, the prosecutor,] and I discussed this morning before lunch that Lopez might be called this afternoon and I told Bryan I would prefer that [Defense Counsel William Charvet] do the cross-examination of Lopez because I didn’t have any transcript and Bryan was nice enough to photocopy some transcripts for me. [fl] But in looking at those briefly, I’m concerned that a number of things may come up that would be very prejudicial, [fi] He testified in the L.A. trial of all of the—I think 23—23 murders. []]] I don’t know to what extent he’s been cautioned not to mention the others.
“The Court: Let me indicate this. I don’t know where we are going for sure. Before we get into other things, because once again I don’t know where we are going, be sure to let me have a chance to find out what it is. In other words, if you want to do it now or what—
“Mr. Brown: Would you like an offer at this time?
“The Court: Sure.
“Mr. Brown: Can I get my notes?
“The Court: Sure.
“Mr. Brown: Mr. Lopez is a reporter for KNXT Channel Two News. He will testify that he has had a number of different conversations with Mr. Bonin starting in December of 1980 and proceeding through April 1981; that Mr. Bonin has described approximately 21 different killings to Mr. Lopez, [if] I don’t know if the court wants me to make an offer of proof of what I intend to elicit at this time.
“The Court: Well, what I’m interested in, based upon what Tracy said, obviously if Bonin admitted the four that we are concerned with down here and the two that were admitted as similar acts, I don’t have any great problem with those, [if] Now, if we’re getting into 17 other murders, then I want to know why.
“Mr. Brown: Okay, I don’t intend to elicit any conversations between Bonin and Lopez with respect to murders other than Fox, Rugh, Barker, Sharp, Wells and Miranda, [if] Mr. Bonin has told Mr. Lopez about other murders, but I do not intend to do that at this time.
“The Court: Okay.
“Mr. Brown: I was going to save those in the event that we do reach a penalty phase.
“The Court: All right.
“Ms. Stewart: The only problem I have is as far as I know, Lopez has never testified that Bonin mentioned names specifically; at least, it doesn’t appear in Lopez’ testimony.
“Mr. Brown: He has. Bonin mentioned Rugh and Barker’s name and the—there is an issue here that Tracy’s talking about. This is the issue: [if] With respect to Fox, Bonin never mentioned Fox’ name. But in that respect—I don’t mind if you read my notes; that’s okay. That’s all right, [if] With respect to Fox, Lopez said—or excuse me. There were 21—there was a list of 21 homicide victims that was generally recognized and that Mr. Lopez and Mr. Bonin had talked about and agreed on. [if] Fox’ name was on that list at the time Mr. Lopez talked to Bonin. The defendant said that he killed everyone on the list except one. The one he did not kill was a fellow named Lundgren, L-U-N-D-G-R-E-N. And Lundgren was a kid that was killed in Los Angeles and has his penis severed, and Bonin indicated to Mr. Lopez that Bonin does not cut dicks off little kids, are the words he used, [if] So Bonin admitted to Lopez that he killed everyone on the list of 21 except Lundgren. [if] Fox is on the list. Okay? [if] Bonin also said that he dumped two kids, Rugh and Barker, not far from where he dumped another body off, which would be Fox, in that Fox is just several miles down the Ortega towards the 1-5 freeway, [if] And that’s the only—Fox is the only person that the defendant was talking about when he was talking about the other body dumped, [fl] Now, with respect to Rugh and Barker, Bonin gives Lopez their names. Rugh and Barker’s names.
“The Court: Well, I might indicate, I’m not sure that I need to go into a whole lot more. I was concerned into the breadth of what you were going to go into; in other words, whether you ’re going to talk to him about 21 murders. [fl] And as I understand, all that you’re doing right now is you’re going to talk to him about the four with which he’s charged here in the manner that you’ve described, [fl] And in some way they have to be tied into it. I mean, either directly by name or some other circumstantial deal. [^|] And the other two, Miranda and Wells, and so I don’t have any particular problem with it.
“Mr. Brown: Okay.
“The Court: So, you know, it appears to me to be—
“Mr. Brown: That’s fair.
“The Court: Okay.
“Ms. Stewart: Are you offering this as an admission?
“Mr. Brown: Yes.
“The Court: Well, it’s an admission and/or confession.
“Mr. Brown: Right, it’s really a confession.” (Italics added.)
Thereupon the prosecutor began to question Lopez. He elicited testimony that defendant admitted to the killing of Barker and Rugh. He then turned to the killing of Fox.
“Q Now, with respect to Frank Fox, did you have a conversation with Mr. Bonin concerning Frank Fox?
“A Never by name.
“Q Okay. Mr. Bonin at no time mentioned Frank Fox’ name?
“A Never.
“Q Did Mr. Bonin talk to you about a—an individual that he had killed and dumped near the Ortega Highway?
“A He said it—
“Ms. Stewart: Objection, relevance.
“The Court: Overruled.
“The Witness: He said it in this manner: T dumped Rugh and Barker not far from where I dumped the other kid.’ And I never pursued who the other kid was.
“Ms. Stewart: Objection. Nonresponsive.
“The Court: What was the last, Miss Stewart?
“Ms. Stewart: As to his answer, he’s nonresponsive. Motion to strike everything after the response, which was yes or no.
“The Court: Overruled. Motion to strike denied.
“Q By Mr. Brown: Had Mr. Bonin—or did Mr. Bonin at any time indicate to you that he had, though, killed Frank Fox without using Mr. Fox’ name?
“A Well, again, the way he said it is that he dumped the bodies of Rugh and Barker—
“Ms. Stewart: Objection.
“The Witness: —not far from where he dumped the other kid.
“Mr. Brown: There’s an objection pending.
“The Court: What was the objection?
“Ms. Stewart: The answer was nonresponsive to the question. It called for a yes or no answer. I would request that the court—
“The Court: No, I think the answer was responsive. The question was objectionable as calling for a conclusion, [fl] Proceed.
“Q By Mr. Brown: Did you talk to Mr. Bonin about a list of homicide victims, murder victims, that included the name of Frank Fox?
“A Yes.
“Q What was that particular conversation?
“Ms. Stewart: Objection. Lack of foundation of the list itself. The question is not relevant.
“The Court: Lack of foundation and what’s the latter part?
“Ms. Stewart: Relevance.
“The Court: Overruled.
“The Witness: In answering that question, I’m going to have to refer to some names that deal with the Los Angeles case. Do you want me to answer that question?
“Mr. Brown: No.
“The Court: Just listen very carefully to the questions and just answer the questions if you will.
“Q By Mr. Brown: It’s not comfortable being up on the witness stand, is it?
“A Well, it’s—
“Q Because you—
“A I would much rather be doing a story that I’m supposed to be doing today, to be quite honest with you.
“Q We all understand that.
(Laughter.)
“Let me ask you this: did you talk to Mr. Bonin about a list of homicide victims that included the name of Frank Fox?
“A That’s correct, yes, I did.
“Q How many victims were on that list?
“Ms. Stewart: Objection. Relevance. And also on the court’s prior ruling.
“The Court: Overruled. He may answer that.
“The Witness: There were 21 names on that list.
“Q By Mr. Brown: And was Mr. Fox’ name included on that list? “A Yes.
“Q Was this list at some time published?
“A Yes.
“Q And was it published in a number of different media?
“A Yes.
“Q Newspapers and television?
“A Yes.
“Q And specifically was it published in the Orange County Register?
“A Yes.
“Q At the time it was published at least in the Register, were there photographs of these 21 individuals published with the list?
“A I think there were actually 20 photographs—
“Ms. Stewart: Objection.
“The Witness: With one John Doe. But to answer the question—
“The Court: Just a minute, Mr. Lopez.
“Ms. Stewart: Objection on the grounds of relevancy as to the photographs. And it’s hearsay.
“The Court: Overruled.
“Q By Mr. Brown: Now, was Frank Fox’ photograph also included—
“A Yes, it was.
“Q —in the photographs with the list?
“A Yes, it was.
“Q Did Mr. Bonin indicate to you whether or not he had murdered the people that were on that list?
“Ms. Stewart: Objection. The question is ambiguous, and it’s not relevant.
“The Court: Overruled.
“The Witness: I asked him that point blank. And his answer was, through a quote, T killed all but one. I didn’t kill Lundgren because I don’t cut the dicks off little kids.’
“Ms. Stewart: Can we approach the bench, Your Honor?
“The Court: Yes.”
Thereupon Defense Counsel Stewart moved for a mistrial. The court denied the motion. Counsel then moved to strike the testimony under challenge. The court denied that motion as well. The relevant colloquy was as follows.
“Ms. Stewart: Why did you have to do that?
“Mr. Brown: I didn’t do anything. What did I do?
“Ms. Stewart: There are 21 names on the list. You just asked him if he killed them, and he said: Yes, all of them but Lundgren.
“Mr. Brown: So? That’s—that’s Fox. That’s what we were talking about up here.
“The Court: How else was he going to get in Fox?
“Ms. Stewart: Then why did you—you brought out the 21 names, which is why I objected to the relevance. And now you’re—now we have an admission before the jury that he’s—that he’s allegedly killed all of these 21 people.
“Mr. Brown: Right. That’s what we talked about up here, Tracy.
“Ms. Stewart: We didn’t talk about 21. We only talked about—
“Mr. Brown: Yes, we did. That’s what—that was my offer of proof with respect to Fox.
“Ms. Stewart: It’s my understanding we were only going as to the six.
“The Court: You know, if you keep objecting, there’s no way that he can get the thing in other than this way.
“Ms. Stewart: I know, but he keeps—Lopez keeps going so far beyond the question, I can’t tell where he’s going. But my understanding was he wasn’t—
“The Court: What is it that you want to do now?
“Ms. Stewart: I’m making a motion for a mistrial.
“The Court: Overruled.
“Ms. Stewart: All right. Then as to—before we go away, I want to—
“The Court: I should say ‘denied.’ Pardon me.
“Ms. Stewart: It was my understanding that only information as to the four here plus Wells and Miranda would be coming in through Lopez’ testimony. Is that your ruling?
“The Court: That’s all that I wanted to get in. But, you know, he was asking about these and then you object; and I don’t know how else he’s going to get it in. This is the way it came about.
“Ms. Stewart: Well, this is why I started objecting as soon as that list came up with the 21 people because I was afraid that was going to come up.
“The Court: What is it you want? In other words, if you said, all right, fine, just tell them that there are six of them and he admitted that he killed all six of them, I mean, that’s not the way that it went down.
“Ms. Stewart: All right. Motion to strike, at least.
“Mr. Brown: I don’t think it should be stricken.
“The Court: I’m not going to strike it unless—unless, you know—. I don’t know how I can help it. If that’s the way that he admitted killing these four—
“Mr. Brown: That’s the only way that you can tie the defendant’s confession into Fox.... He never mentioned Fox’ name. Bonin did not mention Fox’ name.
“Ms. Stewart: Well, we have an admission of 21 now.
“The Court: Well, in my view, the probative value of this whole line far outweighs any prejudice.
“Ms. Stewart: It’s—
“Mr. Brown: It’s really the only evidence on Fox that ties the defendant to Fox.
“Ms. Stewart: All right. Then is it the court’s ruling that he can continue to refer to any—the number 21 on the list? And—
“The Court: This is the only thing—. As I understand it from Mr. Brown, this is the only one that we need to do that in. Fox is the only one that he didn’t mention by name, as I understand it,—
“Mr. Brown: That’s correct.
“The Court: —of our six.
“Mr. Brown: That is correct.
“The Court: And the only way we could tie Fox in as one of Bonin’s victims is in this manner. That’s my understanding of what he said.
“Mr. Brown: That’s correct.
“The Court: Okay.” (Italics added.)
Resuming his examination, the prosecutor elicited testimony that defendant admitted to the killing of Sharp, Wells, and Miranda.
At the threshold we must determine whether the claim that the prosecutor engaged in misconduct by eliciting from Lopez defendant’s admission to the 14 killings not relevant to the issue of guilt is properly before this court. To preserve such a point, the defendant must generally assign the conduct in question as error at trial and request the court to instruct the jury to disregard its effect. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 723 [135 Cal.Rptr. 392, 557 P.2d 976], disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468].) Simply to object or make an assignment of misconduct without seeking a curative admonition is generally not enough. (People v. Beivelman (1968) 70 Cal.2d 60, 75 [73 Cal.Rptr. 521, 447 P.2d 913].) “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’ ” (People v. Green, supra, at p. 27.)
As the facts stated above reveal, Defense Counsel Stewart failed to strictly comply with the requirements of the rule. But she did achieve substantial compliance: by making her motions for a mistrial and to strike the challenged portion of Lopez’s testimony, Stewart effectively gave the court more than ample opportunity to “correct the abuse.”
We turn now to the merits. Defendant’s claim is substantial. It is, of course, misconduct for a prosecutor to “intentionally elicit inadmissible testimony.” (People v. Sims (1976) 64 Cal.App.3d 544, 554 [134 Cal.Rptr. 566]; accord, People v. King (1968) 266 Cal.App.2d 437, 464 [72 Cal.Rptr. 478], citing authorities.) It appears that the prosecutor must have known thát the testimony he elicited concerning the 14 other killings was inadmissible: that evidence was plainly irrelevant to the issues material to the question of guilt, and had been ruled such by the court. It also appears that the prosecutor elicited such testimony intentionally. Had it been his intent to elicit only defendant’s admission to the killing of Fox, he would simply have pressed Lopez to answer the question he had already asked: “[D]id Mr. Bonin at any time indicate to you that he had... killed Frank Fox without using Mr. Fox’ name?” Had he failed in his attempt, he could then have asked whether Fox’s name appeared on the list of homicide victims and, if so, whether defendant admitted to killing him either expressly or by implication.
In response to defendant’s claim, the Attorney General may be understood to argue to the following effect. “Prosecutorial misconduct,” he begins in his brief, “involve[s] the resorting to the use of deceptive or reprehensible methods in an attempt to persuade the jury.” No such methods, he continues, were used here: the only way that the prosecutor could elicit the admission at issue was to question Lopez as he did; moreover, the prosecutor did not violate the court’s ruling—the purpose of that ruling being merely to govern how he should elicit defendant’s admission to the killing of Fox, not to bar him from eliciting defendant’s admission to the 14 other killings; finally, if the prosecutor did in fact elicit inadmissible evidence, he did so unintentionally.
The Attorney General’s argument is not lacking in persuasive force. It is true that not all his points are strong. For example, it is plain that the purpose of the court’s ruling was not to govern the form of the prosecutor’s examination: the court recognized, and declared, that the 14 other killings were not relevant to the issue of guilt. It is also plain that the prosecutor could have elicited defendant’s admission to the Fox murder without eliciting his admission to the 14 other murders: we explained above how the prosecutor could have conducted his examination, and hence reject the opinion of the trial judge, who stated that the “only way [the prosecutor] could tie Fox in as one of Bonin’s victims is in th[e] manner [he used].” One of the Attorney General’s points, however, cannot be rejected out of hand. The record is not without support for an inference that the prosecutor may have elicited the inadmissible evidence unintentionally, having lost his concentration at a crucial point as he was questioning a hard-to-control witness.
But whether the prosecutor’s examination of Lopez can be held to be misconduct is a question we need not resolve: having reviewed the record in its entirety, we have come to the conclusion that the conduct under challenge could not be deemed prejudicial. Defendant argues that the “misconduct” was so egregious as to render the trial fundamentally unfair and as such requires reversal whether or not it can be shown to have caused specific prejudice. We are not persuaded. To our mind, the “misconduct” could not properly be termed “egregious.” Moreover, it constituted an isolated instance in a lengthy and otherwise well-conducted trial, and therefore could not have rendered the proceeding fundamentally unfair.
Defendant next argues that even if not prejudicial per se, the “misconduct” requires reversal under the “reasonable probability” standard of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], Again, we are not persuaded. We recognize that in the abstract such misconduct as is claimed here could pose a not insubstantial threat of prejudice. Nevertheless, we believe that in this case the threat would not have been realized: since the evidence of guilt—albeit in large part circumstantial—was overwhelming, there is not a reasonable probability that in the absence of the “misconduct” an outcome more favorable to defendant would have resulted.
III. Special Circumstance Issues
Defendant raises a single contention as to the validity of the special circumstance findings. Specifically, he claims that it was error for the prosecution to allege four multiple-murder special circumstances instead of one. He is correct. As we explained in People v. Anderson, supra, 43 Cal.3d at page 1150: “The plain words of section 190.2(a)(3)—‘The defendant has in this proceeding been convicted of more than one offense of murder’—suggest that no matter how many murder charges are tried together, they constitute a single multiple-murder special circumstance. That reading is supported by certain constitutional considerations: ‘... “alleging two special circumstances for a double murder improperly inflates the risk that the jury will arbitrarily impose the death penalty, a result also inconsistent with the constitutional requirement that the capital sentencing procedure guide and focus the jury’s objective consideration of the particularized circumstances of the offense and the individual offender. [Citations.]”... [Accordingly,] appropriate charging papers should allege one multiple-murder special circumstance separate from the individual murder counts.’ [Citation.]” It follows that three of the four multiple-murder special-circumstance findings must be vacated.
IV. Penalty Issues
Defendant makes several claims bearing on the issue of penalty. As we shall explain, none establishes reversible error.
A. Refusal to Allow Two Members of Defense Team to Present Closing Argument
Defendant contends that by refusing to allow Defense Counsel Stewart to make a closing argument the court committed error under Penal Code section 1095 (hereinafter section 1095) and in fact denied him, or at least infringed on, his constitutional right to the assistance of counsel. The facts relevant to this claim are as follows.
Prosecutor Brown delivered a closing argument. Defense Counsel Char-vet then followed with a full and unrestricted argument of his own. When he finished, the following colloquy ensued in open court.
“The Court: Mr. Brown.
“Mr. Brown: I don’t have any rebuttal.
“The Court: All right. May I see counsel just for a moment? If you would approach.”
Thereupon the colloquy continued at the bench out of the hearing of the jury.
“The Court: The reason that the court is having counsel approach, it is my understanding that Miss Stewart has indicated that she was going to argue in the penalty phase and I’ll be very honest with you, that I know that the law says that two counsel can argue in the penalty phase. Whether or not that would apply like where we are right now where the prosecution has not exercised its right to, in essence, rebut the argument of the defense, and I don’t really know what the answer is.
“Ms. Stewart: Can I make a suggestion?
“The Court: Sure.
“Ms. Stewart: Since it’s almost four o’clock, I could research tonight and we’ll return in the morning. I can either give it or—
“Mr. Brown: Let’s get it over with today.
“Ms. Stewart: I don’t think I can do it that quick.
“The Court: What I am getting at, I don’t want to put anybody at a disadvantage here. I don’t want to prevent the right of the defendant to have Miss Stewart argue if he has a right to argue under these circumstances.
“Mr. Char vet: May we have five minutes just to look it up? [fl] It’s my understanding and I can be wrong that we have a right to two arguments only if he exercises his right.
“The Court: That is the normal situation.
“Ms. Stewart: What is it, 1095, I think.
“Mr. Charvet: I think we can look it up in just a few moments.
“The Court: All right. Let’s take a couple minutes. That may be worthwhile.”
The colloquy soon concluded as follows out of the hearing of the jury.
“The Court: All right. The record should reflect that the court has reviewed the annotations to section 1095 of the Penal Code, and it appears to the court that the existing law prescribes that argument where you have two counsel to argue should proceed alternately, [fl] And in this particular case, inasmuch as Mr. Brown has waived his rebuttal argument, there would be no rebuttal argument provided.
“Mr. Charvet: I understand that, and it’s—of course, he doesn’t have to tell us, but had we known that, it would have been a different situation. But anyway—
“Mr. Brown: I told everybody.
“Mr. Charvet: —I think we can go to final argument at this point.
“Mr. Brown: I told everybody.
“Mr. Charvet: He told us, but I didn’t believe him.
“The Court: Okay.”
The court then proceeded to deliver the penalty phase instructions.
We agree with defendant that in ruling as it did the court erred. Section 1095 provides: “If the offense charged is punishable with death, two counsel on each side may argue the cause. In any other case the court may, in its discretion, restrict the argument to one counsel on each side.” The statute plainly gives each side in a capital case the right to present argument by two counsel. Further, it does not require alternation of arguments or allow two counsel on one side to argue only if the other side presents two arguments.
As is revealed by a perusal of the cases collected following section 1095 in both 50A West’s Annotated Penal Code (1970 ed.) at page 572 and Deering’s Annotated Penal Code (1971 ed.) at page 281, the court’s ruling is evidently based on the decision in People v. Fair (1872) 43 Cal. 137. Fair, however, does not govern the issue at bar. In holding that alternation was required, the Fair court merely followed section 364 of the Criminal Practice Act of 1851 (hereinafter section 364). That provision declared as follows: “If the indictment be for an offense punishable with death, two counsel on each side may argue the cause to the jury, in which case they must do so alternately. If it be for any other offense the Court may in its discretion restrict the argument to one counsel on each side.” (Stats. 1851, ch. 29, § 364, p. 252, italics added.) Of course, the Criminal Practice Act of 1851 is no longer in effect. (Stats, of 1873, continued in force, ch. 52, § 664, p. 361.) Hence, section 364, together with its requirement of alternation, cannot govern the question we address here.
We recognize that in light of the similarity of language section 364 should be presumed to be the source of section 1095. But we cannot infer from such a relationship that the later provision continues the requirement of alternation contained in the earlier. First, section 1095 does not impose such a requirement by its express terms. Second, it cannot reasonably be read to impose such a requirement by implication. In enacting section 1095 in the form that it did, the Legislature chose not to continue the express requirement of alternation contained in section 364. In so doing, it evidenced an intent to change the former law by removing the requirement. Hence, section 1095 must be read as lacking such a requirement.
Although we agree with defendant that the court’s ruling was error, we cannot agree that it amounted to a constitutional violation as a denial of or an infringement on his right to the assistance of counsel. We recognize, of course, that the criminal defendant has a constitutional right to assistance of counsel. (U.S. Const., Amend. VI; Cal. Const., art. I, § 15.) That right “ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.” (Herring v. New York (1975) 422 U.S. 853, 858 [45 L.Ed.2d 593, 598, 95 S.Ct. 2550].) We further recognize that the constitutional right to the assistance of counsel encompasses the right to have counsel present closing argument. (Herring v. New York, supra, at pp. 856-862; In re William F. (1974) 11 Cal.3d 249, 255 [113 Cal.Rptr. 170, 520 P.2d 986].) Nevertheless, we cannot conclude that the court’s erroneous ruling effected a constitutional violation here.
First, the ruling did not amount to a denial of the constitutional right. As noted above, Defense Counsel Charvet presented a full and Unrestricted argument on behalf of defendant. That Defense Counsel Stewart was not allowed to make an argument is, to our mind, constitutionally immaterial on this point: the federal and state Constitutions impliedly grant the criminal defendant the right to have defense counsel present closing argument, not each member of the defense team.
Second, the ruling did not amount to an infringement of the constitutional right. In our view, the right is not infringed when “the opportunity [of the defense] to participate fully and fairly in the adversary factfinding process” (Herring v. New York, supra, 422 U.S. at p. 858 [45 L.Ed.2d at p. 598]) is not significantly limited. Here, we believe, the defense’s opportunity to participate was not significantly limited: as noted above, Defense Counsel Charvet presented a full and unrestricted argument. We recognize, to be sure, that the court did not allow Defense Counsel Stewart to make an argument. But we cannot conclude that it thereby significantly limited the defense’s opportunity to participate. Indeed, as the record reveals, Charvet himself apparently considered his argument to be sufficient and further argument by Stewart to be dispensable.
Defendant maintains that “The omission of Ms. Stewart’s argument was critical inasmuch as she had assumed the primary defense responsibilities.... Her rapport with the jury was probably better than Mr. Char-vet’s, and her familiarity with the evidence was probably greater. This made her perspective of greater significance than Mr. Charvet’s.” In urging his point defendant asks us in effect to leave analysis behind and to embark on the path to speculation and conjecture. There, however, we cannot and will not go. Thus, we must reject his point.
Accordingly, we conclude that the court’s ruling did not significantly limit the defense’s opportunity to participate in the adversary process and hence did not infringe on defendant’s constitutional right to the assistance of counsel.
But even though the court’s ruling did not amount to a constitutional violation, it was, as we have concluded, error under section 1095. The question to which we must now turn is whether the error was prejudicial. We believe that it was not. Of course, we do not and cannot know what Defense Counsel Stewart may have said to the jurors or whether she may have moved them or in what way. But as we have noted above, Defense Counsel Charvet apparently considered his argument to be sufficient and further argument by Stewart to be dispensable. Lacking any indication as to the nature and likely effect of Stewart’s intended argument, we can do nothing other than accept Charvet’s assessment. Accordingly, we are compelled to hold that under any standard of prejudice the error must be deemed harmless.
B. Claims Relating to CALJIC Nos. 8.84, 8.84.1, and 8.84.2
Defendant makes a number of claims relating to the core penalty instructions delivered by the court. In accordance with CALJIC No. 8.84 as modified and ultimately with section 190.2 of the Penal Code (hereinafter section 190.2), the court instructed the jurors as follows. “The defendant in this case has been found guilty of four counts of murder of the first degree. The charge that each of said murders was committed under a special circumstance has been specially found to be true.
“It is the law of this state that the penalty for a defendant found guilty of murder of the first degree shall be death or confinement in the state prison for life without possibility of parole in any case in which the special circumstance [sic] charged in this case have [sic] been specially found to be true.
“Under the law of this state, you must now determine which of said penalties shall be imposed on defendant as to each of the four murder convictions in this case.”
In accordance with former CALJIC No. 8.84.1 as modified and ultimately with section 190.3 of the Penal Code (hereinafter section 190.3), the court then gave the following instruction to the jurors. “In determining which penalty is to be imposed on defendant, you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed. You shall consider, take into account and be guided by the following factors, if applicable: “(a) The circumstances of the crimes of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
“(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication.
“(i) The age of the defendant at the time of the crime.
“(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, or any other factor offered by the defendant as a circumstance in mitigation.”
Finally, in accordance with former CALJIC No. 8.84.2 as modified and ultimately with section 190.3, the court instructed the jurors in relevant part as follows.
“It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on defendant.
“After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.
“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.”
1. Failure to Explain “Life Imprisonment Without Possibility of Parole'” Sua Sponte
Defendant contends that the court erred when it failed to explain to the jury sua sponte that the phrase of CALJIC No. 8.84.2, “confinement in the state prison for life without possibility of parole,” actually means what its words declare—i.e., confinement for life without possibility of parole. The point must be rejected.
When a term is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request. (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].) In this case, the term “confinement in the state prison for life without possibility of parole” was used in the common and nontechnical sense that the plain meaning of its words convey. Accordingly, the court was not required to give an instruction as to its meaning sua sponte.
Defendant argues that jurors share a “common and widespread misconception” that the sentence of “confinement in the state prison for life without possibility of parole” does not actually mean confinement for life without possibility of parole, and hence should be instructed on the court’s own motion that “without possibility of parole” means “without possibility of parole.” We are not, however, persuaded that the argument’s factual premise is supported. We recognize that 10 out of the total of 204 prospective jurors examined on voir dire—none of whom was selected as a juror or alternate—may have labored under the “misconception” of which defendant speaks. But we cannot conclude from that fact—or from any other fact presented by defendant—that such a “misconception” was “common and widespread.” Because we cannot accept defendant’s premise, we must reject his conclusion.
2. Failure to Delete Sentencing Factors Inapplicable on the Evidence
Defendant contends that the court erred by instructing on all the statutory sentencing factors and by failing to delete such factors as were inapplicable on the facts of this case. We rejected a similar point in People v. Ghent (1987) 43 Cal.3d 739, 776-777 [239 Cal.Rptr. 82, 739 P.2d 1250], and we reject this point here.
Section 190.3, the statutory source of CALJIC No. 8.84.1, states in relevant part: “In determining the penalty, the trier of fact shall take into account any of the [specified] factors if relevant... .” (Italics added.) We read the provision (1) to direct the trier of fact to the criteria that the legislative body has determined to be significant in choosing between life and death and (2) to require the trier to consider those criteria, insofar as they are actually applicable, in making that choice. Under such a reading of the statute, all the factors are “relevant” in a broad sense: together they establish the normative framework within which the penalty determination in the individual case must constitutionally be made. Further, under such a reading only those factors that are applicable on the evidence adduced at trial are to be taken into account in the penalty determination in the individual case: the statutory provision “seems to contemplate that not all factors will be relevant in all cases and further that a factor which is not relevant to the evidence in a particular case should be disregarded.” (People v. Davenport (1985) 41 Cal.3d 247, 289 [221 Cal.Rptr. 794, 710 P.2d 861] (plur. opn.).)
Defendant argues that instructing the jurors on factors inapplicable on the evidence adduced at trial may cause them to focus on constitutionally irrelevant matters: “The focus,” he maintains in words quoted from Enmund v. Florida (1982) 458 U.S. 782, 798 [73 L.Ed.2d 1140, 1152, 102 S.Ct. 3368], “must be on his culpability, ... for [the United States Supreme Court] insist[s] on ‘individualized consideration as a constitutional requirement in imposing the death sentence.’ ” We do not find defendant’s argument to be persuasive.
In this case, the jurors were instructed: “You shall consider, take into account and be guided by [specified] factors, if applicable... .” (Italics added.) In other words, they were directed to focus on defendant’s culpability and on the evidence relevant to that issue. We presume that jurors follow the court’s instructions. (E.g., Delli Paoli v. United States (1957) 352 U.S. 232, 242 [1 L.Ed.2d 278, 285-286, 77 S.Ct. 294], overruled on other grounds in Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620].) We are presented with no reason to believe that the jurors in this case did not follow the instruction here.
3. Failure to Instruct That Absence of Evidence in Mitigation Does Not Establish a Factor in Aggravation
Defendant contends that the court erred by failing to instruct the jury sua sponte that the absence of evidence in mitigation does not establish a factor in aggravation. The point must be rejected.
We recognize that section 190.3 impliedly provides that the trier of fact should disregard a factor that is inapplicable on the evidence adduced at trial (see pt. IV.B.2, ante), and that in so doing it necessarily bars the trier from considering such a factor as aggravating (see People v. Rodriguez (1986) 42 Cal.3d 730, 788-789 [230 Cal.Rptr. 667, 726 P.2d 113]; People v. Davenport, supra, 41 Cal.3d at p. 289).
We believe, however, that the court adequately instructed the jury in this regard. As we concluded above (see pt. IV.B.2, ante), the court properly directed the jurors to consider the sentencing factors only “if applicable.” Defendant argues in substance that the court should have amplified or explained its words. But when as here the instruction under challenge is adequate, the court is under no obligation to amplify or explain in the absence of a request. (People v. Anderson, supra, 64 Cal.2d at p. 639.)
Defendant may be understood to claim that the prosecutor committed misconduct by making comments in closing argument that were predicated on, and thereby communicated, an erroneous understanding of the law in this regard. The remarks under challenge were as follows.
“Going now to whether or not the olfense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“There’s absolutely no evidence whatsoever that the defendant was under the influence of extreme mental or emotional disturbance. I would suggest to you on that basis that that's an aggravating factor, that he was not under the influence of emotional disturbance.
“Item E, whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act. [fl] There can be no question that neither of the four victims in this case consented to be killed by the defendant. [lj] Russell Rugh, Glen[n] Barker, we know a little bit about them. We don’t know too much about Lawrence Sharp and Frank Fox. But there’s no evidence whatsoever that they consented to being killed. So that would be an aggravating factor.
“Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. []j] There can be no moral justification for this. This would be—at least, I can speculate that a case may come up for moral justification where you have someone dying, terminally ill of cancer or something, and you do—you participate in a mercy-type killing or something like that. That could be moral justification. Not—nothing that we have seen here in court. So that would also be an aggravating factor.
“Whether or not the defendant acted under extreme duress or under the substantial domination of another person. [i|] The one that’s really got that is—would be James Munro or Greg Miley. If you are prosecuting Miley or Munro here, they could probably get up and make a big whoop-de-do about that because they were under the substantial domination of the defendant, but it’s not the other way around. So that would be an aggravating factor here, [fl] There’s no evidence whatsoever that the defendant acted under duress or domination of another person.
“Whether or not at the time of the oifense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the effects of intoxication, [fl] There’s no evidence of that.
“So with respect to the evidence concerning that particular factor, it’s aggravating. There’s no evidence of mental disease or defect or intoxication. It’s just the opposite.
“Whether or not the defendant was an accomplice to the oifense and his participation in the commission of the oifense was relatively minor.
“... [T]he defendant is, there’s no evidence at all that he’s an accomplice. He is the force that causes all this. He is the force that seeks out Gregory Miley, the force that seeks out James Munro and turns them into killers. So that would be an aggravating factor in this case.” (Italics added.)
Having reviewed the matter closely, we are of the opinion that defendant’s claim of prosecutorial misconduct must be rejected at the threshold. As stated above, it is settled that a defendant cannot complain on appeal of misconduct at trial unless he made a timely objection thereto and requested that the jury be instructed to disregard the improper remark. (E.g., People v. Green, supra, 27 Cal.3d at pp. 27-34.) In this case defendant made no objection whatever. It is true that the rule stated above does not apply in a situation in which a timely objection and admonition would not have cured the harm. (Ibid.) Such a situation, however, is not present here. Accordingly, we conclude that defendant’s point is not preserved for review on appeal. (See, e.g., People v. Ghent, supra, 43 Cal.3d at p. 775; People v. Allen (1986) 42 Cal.3d 1222, 1283-1284 [232 Cal.Rptr. 849, 729 P.2d 115] (lead opn. by Grodin, J.).)
We are also of the opinion that defendant’s claim must be rejected on the merits. The prosecutor’s remarks, to be sure, amounted to a misstatement of the law. Though erroneous, however, they cannot be characterized as misconduct. “[A] prosecutor is not guilty of misconduct because in his argument of the law to the jury, he is wrong as to the law. Misconduct occurs only where an erroneous proposition of law was argued in bad faith [citation].” (People v. Meneley (1972) 29 Cal.App.3d 41, 61 [105 Cal.Rptr. 432]; accord, People v. Pineiro (1982) 129 Cal.App.3d 915, 923 [179 Cal.Rptr. 883]; People v. Calpito (1970) 9 Cal.App.3d 212, 222 [88 Cal.Rptr. 64]; People v. Jones (1962) 205 Cal.App.2d 460, 467 [23 Cal.Rptr. 418]; People v. Gould (1959) 170 Cal.App.2d 489, 492 [338 P.2d 938].) In this case evidence of bad faith is altogether lacking, and defendant makes no claim to the contrary. Hence, we find no misconduct.
But even if we could characterize the prosecutor’s comments as misconduct, we could not hold that they require reversal. The court instructed the jurors to consider the sentencing factors only “if applicable” and to “accept and follow the rules of law as I state them to you.” The court thereby told the jurors, in effect, to be guided by its proper statement of the law and not by the prosecutor’s misstatement. As we said above, we generally presume that jurors follow the court’s instructions. We are presented with no reason to believe that the jurors in this case acted contrary to that presumption. Further, having reviewed the record in its entirety, we believe that the remarks could have had no marginal effect on the balance of aggravating and mitigating factors or on the consequent determination of the appropriateness of death: under the sentencing guidelines as properly construed and applied, the factors in aggravation were overwhelming and the factors in mitigation virtually nonexistent. Accordingly, even if the prosecutor’s comments amounted to misconduct, they were neutralized by the court’s instructions and in any event could not be deemed prejudicial on this record.
4. Statutory Sentencing Factor (a) and “Multiple” Multiple-murder Special Circumstances
Defendant contends that the court’s instruction as to statutory sentencing factor (a) was prejudicial error because it effectively directed the jurors to consider four multiple-murder special-circumstance findings instead of one. We agree that the instruction was erroneous: as we concluded above (see pt. Ill, ante), there can be only one such finding in a proceeding. We cannot agree, however, that the error requires reversal. Although we presume that the jurors considered the invalid special-circumstance findings independent of their underlying facts, we cannot conclude that they could reasonably have given them any significant independent weight.
5. The Scope of Statutory Sentencing Factor (b)
Defendant contends that the court’s instruction as to statutory sentencing factor (b) was error. In support he argues that section 190.3 must be construed to limit the scope of that factor to crimes other than those of which the defendant was convicted in the capital proceeding. He then argues that the court’s instruction failed to so limit the scope of that factor and thereby invited the jury to “double count” the circumstances of the capital oFfense under both factors (a) and (b).
We agree that section 190.3 should be construed to contain the limitation defendant discerns. (People v. Miranda (1987) 44 Cal.3d 57, 105-106 [241 Cal.Rptr. 594, 744 P.2d 1127].)
We cannot agree, however, that the factor (b) instruction was erroneous. In determining the meaning conveyed by an instruction, we give the charge the meaning that a reasonable juror would give. (E.g., California v. Brown (1987) 479 U.S. 538, 541 [93 L.Ed.2d 934, 940, 107 S.Ct. 837, 839].) “To determine how a reasonable juror could interpret an instruction, we ‘must focus initially on the specific language challenged.’ [Citation.] If the specific instruction fails... muster, we then review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law.” (Ibid.)
When we focus on the specific language challenged, we are unable to conclude that “the [factor (b)] instruction per se amounts to error. As we stated in Miranda, supra, 44 Cal.3d 57[, 105-106,] we doubt a reasonable jury would ‘double count’ under [factors] (a) and (b), in the absence of misleading argument by the prosecutor inviting it to do so.” (People v. Kimble (1988) 44 Cal.3d 480, 505 [244 Cal.Rptr. 148, 749 P.2d 803] [construing identical instruction under 1977 death penalty law, former Pen. Code, § 190 et seq., Stats. 1977, ch. 316, § 5 et seq., p. 1256 et seq.].) In this case there was no such misleading argument.
Nor can we conclude that the factor (b) instruction was erroneous when we review the charge in its entirety. Elsewhere in the instructions the court made it plain that factor (b) was limited to crimes other than those of which defendant was convicted in this proceeding. Specifically, the court delivered the following charge to the jury.
“Evidence has been introduced for the showing that the defendant William George Bonin has committed the following ‘criminal activity ’ which involved the use or attempted use of force or violence or the express or implied threat to use force or violence: [^j] The homicide of Marcus Grabs • • •[;] [11] The homicide of Donald Hyden.. .[;] [1|] The homicide of David Murillo.. .[;] [1f] The homicide of Charles Miranda.. .[;] [1f] The homicide of James MaCabe [sic].. .[;] [H] The homicide of Ronald Gatlin • • •[;] [11] The homicide of Harry Todd Turner.. .[;] [1J] The homicide of Steven Wood.. .[;] [K] The homicide of Darin Lee Kendrich [sic].. .[;] [1f] The homicide of Steven Wells.. .[.] [H] Before you may consider any of such criminal activity as an aggravating circumstance in this case, you must first be satisfied beyond a reasonable doubt that the defendant William George Bonin did in fact commit such criminal activities. You may not consider any evidence of any other criminal activity as an aggravating circumstance other than those which are set forth in this instruction.” (Italics added.)
When the factor (b) instruction is considered in connection with the foregoing instruction, no error appears: the latter properly limits the former. (See People v. Rodriguez, supra, 42 Cal.3d at p. 787.)
6. Failure to Instruct on “Burden of Proof ’ in Determining Penalty
Defendant contends that the due process clause required the court to instruct the jurors that they might return a verdict of death only if they were persuaded beyond a reasonable doubt that the evidence in aggravation outweighed the evidence in mitigation and that death was the appropriate penalty. We rejected the substance of this claim, however, in People v. Rodriguez, supra, 42 Cal.3d 730, 778, footnote 15.
7. The Meaning of Statutory Sentencing Factor (i)
Defendant contends in substance that contrary to the.legislative intent in forming section 190.3, the language of factor (i) of the instruction on the sentencing factors may have misled the jurors to consider his “age ... at the time of the crime” as a circumstance in aggravation. The point is without merit.
As we recently held in People v. Lucky (1988) 45 Cal.3d 259, 302 [247 Cal.Rptr. 1, 753 P.2d 1052], “It is true that ‘mere chronological age of itself should not be deemed an aggravating factor.’ [Citations.] By the same token, mere chronological age of itself should not be deemed a mitigating factor. Age alone is plainly ‘a factor over which one can exercise no control’ [citation] and as such is not relevant to the issue of penalty.... [H] In our view, the word ‘age’ in statutory sentencing factor (i) is used as a metonym for any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty.”
Thus, we are of the opinion that the language of factor (i) of the instruction on the sentencing factors was not misleading. First, that language is identical to the relevant language of section 190.3. Second and more important, it would be understood by a reasonable juror in accordance with the interpretation of the statute set forth above. Accordingly, we hold that the court’s instruction was not erroneous.
8. Brown Error
Defendant contends that former CALJIC No. 8.84.2, incorporating the section 190.3 mandatory sentencing language, may have misled the jurors to his prejudice as to the scope of their sentencing responsibility and discretion in violation of the constitutional principles set forth in People v. Brown (1985) 40 Cal.3d 512, 538-544 [220 Cal.Rptr. 637, 709 P.2d 440], reversed on other grounds sub nomine California v. Brown, supra, 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837],
Section 190.3 states in relevant part that “the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. ” (Italics added.)
In Brown we held that section 190.3, as construed therein, was not unconstitutional. (40 Cal.3d at p. 538-544.) In conformity with settled constitutional principles, we interpreted the statutory language to require jurors to make “... ‘an individualized determination on the basis of the character of the individual and the circumstances of the crime’ ” (id. at p. 540, italics deleted) and a “ ‘ “... moral assessment of [the] facts.. ’ ” (ibid.)—and thereby decide “which penalty is appropriate in the particular case” (id. at P- 541).
Although in Brown we upheld the constitutionality of section 190.3, we nevertheless recognized that when delivered in an instruction the provision’s mandatory sentencing language might mislead jurors as to the scope of their sentencing discretion and responsibility. (40 Cal.3d at p. 544, fn. 17.) Specifically, we believed that a juror might reasonably understand that language to define the penalty determination as “simply a finding of facts” (id. at p. 540) or “a mere mechanical counting of factors on each side of the imaginary ‘scale’ ” (id. at p. 541). We also believed that a juror might reasonably understand the language to require him to vote for death if he finds that the evidence in aggravation outweighs the evidence in mitigation—even if he determines that death is not the appropriate penalty under all the circumstances. (See id. at pp. 540-544.) For this reason we directed trial courts thereafter to instruct jurors in conformity with the principles set forth therein, rather than in the bare words of the statute. (Ibid.) With respect to cases—such as the present—in which the jurors had been instructed in the statutory language, we announced that we would examine each such appeal on its merits to determine whether the jurors may have been misled to the defendant’s prejudice. (Ibid.)
We turn now to the case at bar. After reviewing the record of the penalty phase in its entirety, we cannot conclude that the jurors may have been misled to defendant’s prejudice by former CALJIC No. 8.84.2. We believe that they were adequately informed as to what they were to do, and how they were to proceed, in the determination of penalty, and that neither concern expressed in Brown was substantially implicated.
Defendant argues in eFfect that the prosecutor’s closing argument made the potentially misleading language of former CALJIC No. 8.84.2 misleading in the context of this case. We are not persuaded.
The theme of the prosecutor’s argument was that the evidence in aggravation was overwhelming and the evidence in mitigation was virtually nonexistent. In other words, the theme was that the evidence called for the penalty of death. Such a theme, of course, does not offend the principles of Brown.
We recognize that in setting forth and commenting on the instructions the prosecutor made the following statement. “The applicable standard is ‘shall, shall.’ In other words, if you find as a group that the aggravating factors outweigh the mitigating, then the law requires that you shall return a death penalty. If you find as a group that the mitigating factors outweigh the aggravation, then you shall return a verdict of life without parole, [if] It doesn’t give any discretion once you have found the factors either aggravating or mitigating. You have to do it one way or the other once you’ve found that to be true.”
In spite of this erroneous comment, we do not believe that the prosecutor’s argument made the language of former CALJIC No. 8.84.2 misleading in the context of this case. This is so because when the argument is considered as a whole this remark was short and isolated and hence was swallowed up in the theme that the evidence called for the penalty of death. Further, the remark did not go unchallenged. Defense counsel argued: “[I]n making the decision of whether or not you intend to kill Bill Bonin or whether you intend to allow him to live really requires not just an evaluation of all of the testimony in a very rote, numerical type fashion, but it involves a lot of soul-searching because each of you is a judge and in this particular case each of you is an executioner, [fl] So you have to look individually inside of yourself and look again at the evidence that you had during the penalty phase and look at it very carefully again, then look at the evidence that was presented during the—. I mean, that was the guilt phase. I’m sorry, [fl] But then look at the evidence that was presented during the penalty phase and look very deeply for the reasons as to why a person—and in this case, Mr. Bonin as he sits there—why he should live or why he should die. And that’s why we’re here.”
In conclusion, on this record we find no Brown error.
9. Instructions on Sympathy
Defendant contends in substance that the court erred when it failed to instruct the jurors sua sponte that they (1) could consider sympathy in choosing the appropriate penalty and (2) should not be guided by the antisympathy instruction of CALJIC No. 1.00 which was given at the guilt phase. The point must be rejected.
First, we believe that the court was not required to instruct on sympathy sua sponte. To the extent defendant argues that the jurors should have been instructed that they could indulge in sympathy unrelated to any of the evidence adduced at trial, he is unpersuasive. In California v. Brown, supra, 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], the United States Supreme Court implied that such an instruction might unchannel the jury’s guided discretion by allowing it to rely “on extraneous emotional factors, which, we think, would be far more likely to turn the jury against a capital defendant than for him.” {Id. at p. 543 [93 L.Ed.2d at p. 941, 107 S.Ct. at p. 840].) It also suggested that insofar as such an instruction frees the jury to consider matters outside the record, it might frustrate “the Eighth Amendment’s ‘need for reliability in the determination that death is the appropriate punishment in a specific case.’ ” {Ibid.) Finally, the court implied that by freeing the jury’s penalty considerations from record evidence, such an instruction might undermine “the availability of meaningful judicial review, another safeguard that improves the reliability of the sentencing process.” (Ibid.)
To the extent defendant argues that the court should have instructed the jurors sua sponte that they could consider sympathy grounded in the evidence adduced at trial, he is also unpersuasive. We believe that the jurors were adequately instructed on the point when the court told them that they could consider “any... factor offered by the defendant as a circumstance in mitigation.” Defendant may be understood to claim that the court should have provided an amplification or explanation of these words. But in the absence of a request, it was under no obligation to do so. (People v. Anderson, supra, 64 Cal.2d at p. 639.)
Second, we believe that the court was not required to instruct the jurors sua sponte that they should not be guided by the antisympathy instruction of CALJIC No. 1.00 given at the guilt phase.
Defendant argues as follows: at the guilt phase the court told the jurors that the instructions given during that stage of the trial “apply to this case ” (italics added), and hence might have been understood to mean that the antisympathy instruction governed the penalty phase—if such was to be had—as well as the guilt phase. We are not persuaded.
By telling the jurors that they could consider, under statutory sentencing factor (k), “any... factor offered by the defendant as a circumstance in mitigation,” in the context of this case the court would have been understood to imply that they could exercise sympathy if they believed the facts allowed them to do so. The reasons for our conclusion are two. The defense had presented background and character evidence in an attempt to minimize defendant’s personal culpability and thereby arouse sympathy. Moreover, in argument defense counsel had pleaded for sympathy from the jurors, and the prosecutor had acknowledged that they could consider sympathy under statutory sentencing factor (k).
In view of the foregoing, we believe that the guilt phase, antisympathy instruction cannot be deemed to have carried over to the penalty phase. Accordingly, the court did not err by failing to caution the jurors not to be guided by that instruction. (See People v. Miranda, supra, 44 Cal.3d at p. 102; People v. Gates (1987) 43 Cal.3d 1168, 1209 [240 Cal.Rptr. 666, 743 P.2d 301]; People v. Rodriguez, supra, 42 Cal.3d at pp. 785-7S6.)
C. Attack on the Constitutionality of the Sentence of Death
Defendant contends that the imposition of the sentence of death was “unconstitutionally arbitrary, discriminatory, and disproportionate, considering the facts of the oifense and [his] personal characteristics.” He presents, however, neither evidence nor argument in support of his point. Hence, we are compelled to reject the claim as not properly raised.
D. Attack on the Constitutionality of the 1978 Death Penalty Law
Defendant contends that the 1978 death penalty law is unconstitutional on various grounds. We rejected the substance of this claim in People v. Rodriguez, supra, 42 Cal.3d at pages 777-779.
The judgment is affirmed.
Lucas, C. J., Panelli, J., Eagleson, J., and Kaufman, J., concurred.
The prosecution had moved to introduce “other crimes” evidence relating to James Macabe and Darin Lee Kendrick as well as Miranda and Wells. The court granted the motion as to the latter two victims but denied it as to the former.
Defendant also contends that the introduction of Lopez’s testimony about his admission to the 14 other killings amounted to reversible error in and of itself. The point must be rejected. The testimony, to be sure, was plainly irrelevant to the issue of guilt and as such inadmissible. But as the discussion above shows, it did not subject defendant to prejudice.
The Attorney General argues that our decision in People v. Bandhauer (1967) 66 Cal.2d 524 [58 Cal.Rptr. 332, 426 P.2d 900], requires alternation of arguments and allows two counsel on one side to argue only if the other side presents two arguments. He is incorrect. In Bandhauer we did not even consider section 1095. In that case we held only that even though in criminal trials generally the prosecution opens the argument, the defendant responds, and the prosecution closes, at the penalty phase of a capital trial the defense must be given the opportunity to close with a second argument. (Id. at pp. 530-531.) In arriving at our conclusion, we recognized, to be sure, the practice of alternation. But we did not state or imply that two counsel on one side may be allowed to argue only if the other side presents two arguments.
To the extent that In re William F, supra, 11 Cal.3d 249—a case in which no argument at all was permitted—implies that error adversely affecting defense counsel’s closing argument necessarily infringes on the defendant’s constitutional right to the assistance of counsel (see id. at p. 256, fn. 6), it is unsound and is hereby disapproved.
Defendant requests that pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial notice of the record on appeal in People v. Buono (B003499, app. pending) and People v. Maxwell (B007390, app. pending). In support he argues that Buono and Maxwell have each been convicted of crimes as egregious as those of which he has been convicted, but have nevertheless received the penalty of life imprisonment without the possibility of parole. He then argues that the records in their cases are relevant to the issue whether any errors that occurred at the penalty phase of his trial were prejudicial. We are not persuaded. Under the modern system of capital punishment, which “require[s] a particularized inquiry into 1 “the circumstances of the offense together with the character and propensities of the offender” ’ ” (McCleskey v. Kemp (1987) 481 U.S. 279, 302 [95 L.Ed.2d 262, 285, 107 S.Ct. 1756, 1772]), we fail to see how the record in one case can be relevant to the evaluation of prejudice in another, no matter how similar the cases appear to be. Accordingly, we are compelled to reject defendant’s request.
Defendant claims in substance that the prosecutor’s comments on factor (i) were improper. Those remarks were as follows.
“The age of the defendant at the time of the crime.... [T]he defendant was born January 8, 1947. [fi] That means, as I count anyway, that the defendant was 32 when he killed Frank Fox and was 33 when he killed Rusty Rugh, Glen[n] Barker and Lawrence Sharp. [j|] I would think if a person was very young, that might be a mitigating factor. One might want to say a young person hasn’t had the opportunity to experience in life those experiences which mature a person. And he may not be responsible. We see that all the time, [fl] My kids. Whenever they step out of line, you’re saying to them, ‘they are not really responsible for everything they do,’ because they haven’t—they haven’t attained the maturity or the maturation that one would have as an adult. [[]] Here again, where someone is very old, one might say that would be a mitigating factor because there may be some type of mental impairment when one gets very old. [fl] But when one is 32 and 33,1 would submit to you that that’s an aggravating factor. That person has lived 32 years, a little over 32 years when he killed Frank Fox. He’s had all of the chances he could have, and he still chose to kill Frank Fox, chose to murder him. [[]] The age in this case I would submit to you is an aggravating factor.”
Under the analysis set forth above, we believe that the prosecutor’s comments were proper and accordingly reject defendant’s claim.
Defendant claims in substance that in making the comment quoted above the prosecutor intended to minimize the jurors’ sense of responsibility in determining penalty and that he effectively did so. To be sure, we recognize that such a remark is constitutionally objectionable. (Cf. People v. Brown, supra, 40 Cal.3d at pp. 538-544 [discussing the mandatory sentencing language of § 190.3].) But on the facts of this case, we cannot conclude that the prosecutor intended to minimize the jurors’ sense of responsibility: as noted above, the theme of the prosecutor’s argument was that the evidence called for the penalty of death, not that the “law” required that sanction. Nor can we conclude that the prosecutor effectively minimized the jurors’ sense of responsibility: as also noted above, the comment in question was short and isolated.
Defendant may be understood to contend that on the facts of this case the giving of CALJIC No. 1.00 at the guilt phase may have misled the jurors “into believing that mitigating evidence about [his] background or character... must be ignored” (California v. Brown, supra, 479 U.S. at pp. 545-546 [93 L.Ed.2d at p. 942, 107 S.Ct. at p. 842] (conc. opn. of O’Connor, J.)) on the ground that they were not adequately instructed that they could and should take such evidence into consideration. The argument must be rejected because its ultimate premise is false. As noted above, the jurors were expressly instructed to “consider, take into account and be guided by” specified factors and “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime, or any other factor offered, by the defendant as a circumstance in mitigation.” (Italics added.) Hence, the jurors did receive adequate instructions on background and character evidence.
We are of the opinion that in view of the theories presented and the evidence introduced, the jury’s guilt phase verdicts imply a finding that defendant actually killed, and intended to kill, the victims (Enmund v. Florida, supra, 458 U.S. at pp. 788-801 [73 L.Ed.2d at pp. 1145-1154]). Having reviewed the record in its entirety, we conclude that this finding is amply supported by the evidence and adopt it as our own. Accordingly, we hold that the imposition of the penalty of death on defendant does not violate the Eighth Amendment. (Cabana v. Bullock (1986) 474 U.S. 376, 386 [88 L.Ed.2d 704, 716, 106 S.Ct. 689].)
BROUSSARD, J.
I concur in the result reached by the majority opinion, but respectfully object to its discussion of penalty phase issue number 3, the prosecutor’s erroneous argument that the absence of mitigating evidence renders a factor aggravating.
People v. Davenport (1985) 41 Cal.3d 247, 289-290 [221 Cal.Rptr. 794, 710 P.2d 861], first established that the absence of evidence of a mitigating factors does not transform it into an aggravating factor. In the present case, tried before Davenport, apparently both prosecutor and defense counsel were unaware that such a rule might be established. Thus the prosecutor incorrectly argued that mitigating factors unsupported by evidence were aggravating factors, and defense counsel did not object.
The majority begin their discussion of this issue by noting that defendant’s failure to object bars review of this issue, and that the prosecutor’s misstatement of the law cannot be characterized as misconduct. This portion of the majority’s discussion is pointless, for this court has unanimously resolved that in cases of this type it will review the merits of defendant’s contention despite trial counsel’s failure to object or the prosecutor’s putative good faith. As we explained in People v. Lucero (1988) 44 Cal.3d 1006, 1031, footnote 15 [245 Cal.Rptr. 185, 750 P.2d 1342], “[b]ecause this case was tried before... Davenport, we do not describe the prosecutor’s mistaken argument as misconduct. For the same reason, we could not treat a defense counsel’s failure to object as incompetence or waiver. Our concern is not with the ethics of the prosecutor or the performance of the defense, but with the impact of the erroneous interpretation of the law on the jury.”
The majority accordingly turn to the merits, but their discussion betrays a misunderstanding of the significance of the prosecutor’s remarks. They conclude that since the trial court directed the jury to consider the factors only “if applicable,” and since we must presume that the jury followed the instructions, we should further presume that the jurors rejected the erroneous conception urged by the prosecutor. This is nonsense. The vice of Davenport error is that it tells the jury that factors are applicable when as a matter of law they are not and that factors are aggravating when as a matter of law they are neutral or mitigating. Nothing in the judge’s instructions would dispel such erroneous impressions. The trial judge did not tell the jurors how to determine which factors were applicable, that many factors were inapplicable, or that absence of evidence to support a mitigating factor did not transform it into an applicable aggravating factor. Consequently the prosecutor’s erroneous argument would not strike the jury as inconsistent with the instructions. We cannot presume that the jurors rejected a plausible prosecution argument and instead adopted a view advanced by neither court nor counsel.
Indeed the instructions to the jury to consider sentencing factors only “if applicable,” and to follow the law as stated by the judge, are standard instructions given in all capital cases. To hold that such instructions give rise to a presumption that the jury rejected erroneous prosecution argument would give the prosecutor carte blanche to argue whatever he chose. While we have sometimes found Davenport error nonprejudicial, our cases have carefully analyzed the impact of the prosecutor’s argument in light of the aggravating and mitigating evidence; none has presumed the absence of prejudice from form instructions. (See, e.g., People v. Ghent (1987) 43 Cal.3d 739, 775 [239 Cal.Rptr. 82, 739 P.2d 1250]; People v. Allen (1986) 42 Cal.3d 1222, 1284 [232 Cal.Rptr. 849, 729 P.2d 115].)
After making such an analysis, however, I agree with the majority that on the facts of this case the error was not prejudicial. Defendant was convicted of four murders in this case, and the penalty phase evidence showed his guilt of ten more. Under these circumstances, I do not believe it reasonably possible that, in the absence of the erroneous prosecution argument, the jury would have returned a different verdict. I therefore concur in the judgment of affirmance.
Arguelles, J., concurred.
Appellant’s petition for a rehearing was denied October 19, 1988.
[No. S004440. Crim. No. 22530.
Jan. 9, 1989.]
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM GEORGE BONIN, Defendant and Appellant.
Counsel
Frank O. Bell, Jr., under appointment by the Supreme Court, and Monica Knox, Chief Assistant Public Defender, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Michael D. Wellington and Steven H. Ziegen, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY MOSK, J. type=majority]
Opinion
MOSK, J.
This is an automatic appeal from a judgment of death (Pen. Code, § 1239, subd. (b)) imposed under the 1978 death penalty law (id., § 190.1 et seq.).
In an information filed on January 2, 1981, defendant was charged with the murder of Donald Hyden, David Murillo, Robert Wirostek, Darin Lee Kendrick, Sean King, “John Doe,” Marcus Grabs, Thomas Lundgren, Charles Miranda, James Macabe, Ronald Gatlin, Harry Todd Turner, Steven Wood, and Steven Wells. (Pen. Code, § 187.) He was also charged with robbing all of the above-named persons with the exception of Wirostek, King, and “John Doe” (id., § 211); with sodomizing Grabs (id., § 286, subds. (b)(1), (c)); and with committing mayhem on Lundgren (id., § 203). The information contained numerous allegations. For example, as to each murder count a multiple-murder special circumstance was alleged {id., § 190.2, subd. (a)(3)); as to each, with the exception of the counts involving Wirostek, King, and “John Doe,” a felony-murder-robbery special circumstance was also alleged (id., § 190.2, subd. (a)(17)(i)); and as to the count involving Grabs a felony-murder-sodomy special circumstance was alleged (id., § 190.2, subd. (a)(17)(iv)). Defendant pleaded not guilty and denied the allegations. Subsequently, the counts charging the murder of Wirostek and “John Doe” were dismissed pursuant to Penal Code section 995.
On October 19, 1981, trial by jury commenced. Defendant was acquitted of murdering King and Lundgren, of sodomizing Grabs, and of committing mayhem on Lundgren, but was otherwise found guilty as charged. With the exception of the felony-murder-sodomy special-circumstance allegation, all the special circumstance allegations were found true. Defendant received the penalty of death for each of the 10 murder convictions.
As we shall explain, we conclude that except as to the “multiple” multiple-murder special-circumstance findings, the judgment must be affirmed in its entirety.
I. The Facts
As a result of his activities in Southern California in the years 1979 and 1980, defendant—who was then in his early 30’s—was dubbed the “Freeway Killer” and his murders the “freeway killings.” After he was tried in this Los Angeles County proceeding, he was tried in Orange County action No. C-47500. There he was convicted of the first degree murder and robbery of Dennis Frank Fox, Glenn Barker, Russell Rugh, and Lawrence Sharp; as to each murder count a multiple-murder special-circumstance allegation was found true; and for each murder he received the penalty of death.
The evidence introduced at the guilt phase of this action—insofar as it concerns the crimes of which defendant was convicted—tells the following story.
On August 6, 1979, the nude body of 17-year-old Marcus Grabs was found in Malibu Canyon near Las Vírgenes Canyon Road; except for the victim’s backpack, no clothing or other identifying evidence was discovered at the scene. Grabs had been killed by multiple stab wounds on August 5. The body showed signs of beating about the face and elsewhere and exhibited ligature marks on one ankle as well as on the neck.
On August 27, 1979, the nude body of 15-year-old Donald Hyden was found in the area of Liberty Canyon near the Ventura Freeway; no clothing or other identifying evidence was discovered at the scene. Hyden had been killed by ligature strangulation about August 25 or 26. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on at least one ankle and wrist as well as on the neck, and revealed indications of sexual activity before death.
On September 12, 1979, the nude body of David Murillo was found alongside the Ventura Freeway near the Lemon Grove overpass; no clothing or other identifying evidence was discovered at the scene. Murillo had been killed by ligature strangulation about September 9 or 10. The éody showed signs of beating about the face and elsewhere, exhibited ligature marks on the wrists as well as on the neck, and revealed indications of sexual activity before death.
On February 3, 1980, the nude body of 15-year-old Charles Miranda was found in an alley in downtown Los Angeles; no clothing or other identifying evidence was discovered at the scene. Miranda had been killed by ligature strangulation the same day. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on at least one ankle and wrist as well as on the neck, and revealed indications of sexual activity before death.
On February 6, 1980, the fully clothed body of 12-year-old James Macabe was found near Walnut Drive in Walnut in front of the Pomona Freeway; no identifying evidence other than the clothing was discovered at the scene. Macabe had been killed by ligature strangulation on February 3. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on at least one ankle and wrist as well as on the neck, and revealed indications of sexual activity before death.
On March 15, 1980, the nude body of 19-year-old Ronald Gatlin was found near Central Avenue in Duarte; no clothing or other identifying evidence was discovered at the scene. Gatlin had been killed by ligature strangulation on March 14 or 15. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on at least one ankle and wrist as well as on the neck, and revealed indications of sexual activity before death.
On March 25, 1980, the nude body of 14-year-old Harry Todd Turner was found in an alley in Los Angeles; no clothing or other identifying evidence was discovered at the scene. Turner had been killed by ligature strangulation sometime on or after March 20. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on the neck, and revealed indications of sexual activity before death.
On April 11, 1980, the nude body of 16-year-old Steven Wood was found in an alley in Long Beach near the Pacific Coast Highway; no clothing or other identifying evidence was discovered at the scene. Wood had been killed by ligature strangulation on April 10 or 11. The body showed signs of beating about the face and elsewhere and exhibited ligature marks on at least one ankle and wrist as well as on the neck.
On April 30, 1980, the nude body of 19-year-old Darin Lee Kendrick was found on Avalon Street in Carson near the Artesia Freeway; no clothing or other identifying evidence was discovered at the scene. Kendrick had been killed by ligature strangulation and a stab wound to the upper cervical spinal cord on April 29 or 30. The body showed signs of beating about the face and elsewhere and exhibited ligature marks on at least one ankle and wrist as well as on the neck.
On June 3, 1980, the nude body of 18-year-old Steven Wells was found behind a gasoline station in Huntington Beach; no clothing or other identifying evidence was discovered at the scene. Wells had been killed by ligature strangulation on June 2. The body showed signs of beating about the face and elsewhere, exhibited ligature marks on at least one ankle and wrist as well as on the neck, and revealed indications of sexual activity before death.
In order to establish that it was defendant who had perpetrated the killings, the prosecution called to the stand Gregory Miley and James Munro.
Miley, a sexual partner of defendant and about 19 years old at the time relevant here, testified that it was defendant who was responsible for the death of Miranda and Macabe. Specifically, he said that he was with defendant as defendant was driving a van he owned on the night of February 2, 1980; defendant picked up Miranda in Hollywood in the early morning hours of February 3, and consensually sodomized him in the back of the van; defendant whispered to Miley, “The kid’s going to die,” and then started to tie up the youth; defendant asked, “What does your dad want for you? How much do you think we can get for ransom? Maybe a couple thousand?” and Miranda responded, “I don’t think that I can get that much”; defendant asked, “How much money do you have?” and Miranda replied, “About $6”; defendant told Miley to take the money, and he complied; Miley said, “Well, why don’t you let the kid go?,” and defendant answered, “No, man, he’ll know the van and he’ll know us”; with Miley’s help defendant proceeded to beat Miranda and to strangle him with a shirt and to crush his neck with a jack handle; defendant and Miley dumped Miranda’s nude body in an alley and disposed of his clothing in various locations.
After doing the deed, Miley continued, defendant said, “Well, I’m horny again. I need another one,” Miley responded, “Oh, man, no way. I don’t want to do it no more. I just want to go home,” but defendant went ahead and eventually picked up Macabe in Huntington Beach in the early afternoon of the same day, February 3, 1980; not long afterwards, defendant and the boy engaged in consensual sexual activity in the van; the trio then drove on; again defendant and the boy engaged in consensual sexual activity; soon, however, defendant started to tie up Macabe; he asked, “What could you get for ransom?” and stated, “This is a kidnap”; the boy tried to fight back; with Miley’s help defendant proceeded to beat Macabe and to strangle him with a shirt and to crush his neck with a jack handle; defendant and Miley dumped Macabe’s fully clothed body onto the side of a road and took money from his wallet; defendant then threw the wallet out of the van’s window.
Miley admitted that he had been arrested and charged with the first-degree murder of Miranda and Macabe. He also admitted that he had been allowed to enter a plea of guilty to those charges with concurrent sentences of imprisonment for 25 years to life on the condition that he would testify truthfully against defendant.
Munro, who—like Miley—was a sexual partner of defendant and about 19 years old at the time relevant here, testified that it was defendant who was responsible for the death of Wells. Specifically, he said that he was with defendant as defendant was driving his van on June 2, 1980; defendant picked up Wells as he was hitchhiking and participated in mutual consensual oral copulation with him in the back of the van; the trio eventually arrived at defendant’s home in Downey; there, defendant and Wells continued their sexual activity, and Munro joined in; soon defendant persuaded Wells to allow himself to be tied up; defendant took from Wells’s wallet $10, which was all the money it contained, and also various items of identification; with Munro’s help he then beat Wells and strangled him with a T-shirt, disposed of his clothing and other property, and eventually dumped his body behind a gasoline station; defendant told Munro that he was the “Freeway Killer,” that Miley was one of his partners in crime, and that he had committed about 14 murders in the course of his activities.
Munro admitted that he had been arrested and charged with the first degree murder of Wells. He also admitted that he had been allowed to enter a plea of guilty to second degree murder with a sentence of 15 years to life imprisonment on the condition that he would testify truthfully against defendant.
The prosecution also introduced evidence of extrajudicial admissions by defendant linking him to the crimes charged. Among other witnesses it called David Lopez, a reporter for Los Angeles television station KNXT. Lopez testified that defendant admitted that it was he who had killed the 10 young men and boys named above as well as others. Scott Fraser and Ray Pendleton, acquaintances of defendant, each stated that defendant said that while driving his van he picked up Grabs and in the course of a sexual encounter killed the youth. Jailhouse informers testified to various admissions on the part of defendant. Other witnesses gave testimony to the effect that defendant said he would not leave witnesses to his criminal activity alive.
The prosecution presented expert testimony to the following effect: the bodies of Miranda, Wells, and Wood each bore a kind of triskelion-shaped fiber that was not common but was consistent with carpeting in defendant’s van; the bodies of Gatlin, Grabs, and Macabe each revealed the presence of foreign hair that matched defendant’s; the body of Gatlin bore a seminal fluid stain that could have been made by defendant; and the van and defendant’s home were stained in several places with human blood.
The defense generally tried to show that the prosecution had not carried its burden of proof beyond a reasonable doubt. Particularly, it attempted to discredit the witnesses who testified against defendant.
At the penalty phase the prosecution presented evidence in aggravation. Some of that evidence related to prior adjudicated felonies. Defendant committed sexual attacks in late 1968 and early 1969 against 12-year-old Lawrence B., 14-year-old William J., 17-year-old John T., and 18-year-old Jesus M. As a result of his activities, he was convicted of molesting and forcibly orally copulating Lawrence B., kidnapping and sodomizing William J., sodomizing John T., and forcibly orally copulating Jesus M., and was committed to Atascadero State Hospital as a mentally disordered sex offender amenable to treatment. In 1971 he was returned to court, declared unamenable to further treatment, and committed to prison. In 1974 he was released. In 1975 he committed a sexual attack on 14-year-old David M. Later that year he was convicted of forcibly orally copulating the boy and was sentenced to prison. In 1978 he was paroled. The prosecution also introduced evidence relating to the Orange County killings, attempting to prove that in late 1979 and early 1980 defendant killed, and committed other offenses against, Dennis Frank Fox, Glenn Barker, Russell Rugh, and Lawrence Sharp.
In mitigation the defense presented evidence to the following effect. Defendant’s father caused the family serious problems as a result of drinking and gambling. At age 10 defendant was in trouble and was sent to a detention home; while there he was sexually molested. At age 12 he stole a truck and was put into custody. Later, he joined the armed forces, served in Vietnam, and was decorated. A psychologist opined that defendant could function in the structured setting of a prison—and only in such a setting— and that there he could be productive.
II. Guilt Issues
Defendant raises a number of claims going to the question of guilt. None, as we shall explain, establishes reversible error.
A. Conflict of Interest on the Part of Defense Counsel
Defendant contends that in violation of the rule established by the United States Supreme Court in Wood v. Georgia (1981) 450 U.S. 261 [67 L.Ed.2d 220, 101 S.Ct. 1097], the trial court failed to inquire into the possibility of a conflict of interest burdening his counsel at trial or failed to adequately act in response to what its inquiry discovered.
1. The Facts
On August 8, 1980, charges in what was to become this action were filed against defendant. On August 11, Earl L. Hanson was appointed to represent him as an indigent pursuant to Penal Code section 987.
Trial was set for May 4, 1981. Over the prosecution’s objection, the court vacated the date and ordered a continuance, in part to allow defense counsel Hanson further time for preparation.
Trial was rescheduled for August 3, 1981. Again over the prosecution’s objection, the court vacated the date and ordered a continuance, in part to allow Hanson further time for preparation. Trial was set for September 14, 1981.
At a hearing held on September 3, 1981, defendant expressed his intention to move to substitute the law firm of Charvet & Stewart and its partners William T. Charvet and Tracy L. Stewart as retained counsel in the place of Hanson, and to request a continuance to allow new counsel time to prepare for trial. The prosecution, through Deputy District Attorney Sterling E. Norris, stated that it would oppose such a motion, claiming that substitution would delay the commencement of trial and thereby seriously prejudice the People’s case, and that certain previous dealings between Charvet & Stewart and key prosecution witness James Munro threatened to burden the firm with a conflict of interest if it undertook to represent defendant. Prior to this hearing, defendant had never indicated on the record any dissatisfaction with Hanson or any ability or desire to retain other counsel.
On September 14, 1981, the date on which trial was scheduled to commence, defendant made a motion to substitute Charvet & Stewart in the place of Hanson. The prosecution opposed the request on the following grounds: “1) That said motion is not timely made, [fl] 2) That any such continuance would substantially prejudice the People’s case, [fl] 3) That there is a conflict of interest with Mr. Charvet in that he has talked to Mr. Munro and has attempted to represent him in the past. Mr. Munro will be one of the key witnesses presented by the prosecution, [fl] 4) That any retainer agreement by Mr. Charvet may involve book rights, creating an additional conflict.”
As to the timeliness of the motion and defendant’s reasons for requesting substitution, the record of the hearing reveals the following. Hanson assured the court, “of my own opinion Mr. Bonin has never tried to be dilatory.” Charvet can be understood to have stated that defendant had begun substantive discussions with him concerning representation “about four or five months ago.” Hanson admitted he “was never the attorney of choice of Mr. Bonin.” The court then asked the following questions and defendant gave the following answers.
“The Court: Mr. Bonin, you have had no difficulty with Mr. Hanson insofar as his representation of you is concerned, it’s just a matter of personal choice that you want Mr. Charvet as your attorney; is that correct?
“The Defendant: I’m sorry, could you repeat that, Your Honor?
“The Court: You just personally want Mr. Charvet as your attorney of record; is that right?
“The Defendant: Yes, I feel like I have a much better rapport with Mr. Charvet than I do with any other attorney, at this point.
“The Court: Insofar as your relationship with Mr. Hanson is concerned, that has been a good one during the time he has represented you; is that right?
“The Defendant: It has but I don’t feel that it has been to the point where it should be....
“The Court: In what regard?
“The Defendant: Well, there is certain things that we cannot—that I don’t feel I can discuss about the case.
“The Court: With Mr. Hanson?
“The Defendant: That’s correct.
“The Court: Why?
“The Defendant: Personal vibes.
“The Court: Any other difficulty you have with Mr. Hanson other than these personal vibes?
“The Defendant: No legal problems, no.”
For his part, prosecutor Norris told the court that further delay—Char-vet said he would need “at least a 120 day continuance”—would result in the erosion of the testimony of his witnesses and thereby seriously prejudice the People’s case. Norris also asserted that defendant made the substitution motion for purpose of delay. Specifically, he stated that it was defendant’s intent—expressed, he said, in a surreptitiously recorded telephone conversation that was played for the court but not transcribed—that “if the Court does not grant the continuance for Mr. Charvet he is going to go pro. per. and get a six months continuance and then get another lawyer during that period of time.”
Concerning Munro and the conflict of interest that would allegedly arise if Charvet & Stewart undertook to represent defendant, the record shows that many factual issues were hotly disputed.
Charvet denied the existence of an attorney-client relationship or the communication of significant information. For example, he said: “But as far as conflict of interest, I have nothing that I can cross-examine Mr. Munro on, any facts contrary that is not in the public record, that he has ever given me as a private attorney.” Further, in a declaration submitted in support of the substitution motion, he stated: “[I]t is my belief that at no time was there an attorney-client relationship between Charvet & Stewart and Mr. Monroe [sz'c] as we were never retained by Mr. Monroe [szc], were never court appointed on his behalf, nor, employed in any way to represent Mr. Monroe [szc].” He also declared: “[I]t is my belief that at no time has there been a conflict of interest which would prevent the requested substitution.” In another declaration, Charvet’s partner Stewart stated: “I do not recall [Munro] making any admissions, nor imparting any confidential information to either of us.” Finally, at the September 3 hearing, Charvet asserted: “We did not discuss anything regarding the case.”
By contrast, prosecutor Norris claimed that an attorney-client relationship did in fact exist between Charvet & Stewart and Munro and that significant information passed from Munro to the firm. Moreover, he offered to call, among others, Munro himself “[i]f there’s any question that [Charvet]’s talked in detail with Mr. Munro about the case... .”
It was, however, plain that Munro had sought the assistance of Charvet and Stewart with a view to obtaining their professional services, and that he had spoken with them about the matter of representation and—at least to some extent—about the facts of the case. For example, in his declaration in support of the substitution motion, Charvet stated: “During one or two of our visits to other inmates/clients, our office conversed with Mr. Monroe [szc] for a short period regarding our possible substitution in as the attorneys.” In her declaration, Stewart stated: “[S]ometime in the latter part of 1980, our office was contacted by James Monroe [szc], requesting a meeting with William T. Charvet. Subsequently, William T. Charvet and I met with Monroe [s7c] at the Los Angeles County Jail. He expressed a desire to have us substitute in as his counsel. We discussed this with him... .” At the hearing Charvet impliedly admitted that he and Stewart discussed the facts of the case with Munro—“He stated... that he was innocent”—but claimed the discussion was minimal.
Prosecutor Norris emphasized the practical danger posed by the issue of the possibility of a conflict of interest. At one point he stated: “This does now present another problem, a problem on appeal for the People if a conviction results in this case. [1f] I cannot believe that an appeal counsel would not immediately seize upon that in some fashion in that kind of conflict.” At another point he said: “What is the first thing appellate counsel is going to seize on in this case if [Charvet & Stewart] is allowed to substitute in as counsel? And that is the conflict of interest.... [fl] I think there is that possibility. That would be the first point seized on in any type of appeal.”
Finally, as to the alleged literary-rights fee agreement between defendant and Charvet & Stewart and the conflict inherent in such an arrangement, the record contains the following colloquy.
“The Court: [Mr. Charvet,] It’s suggested that you might address the subject of what your arrangements are with the defendant insofar as any book rights are concerned.
“Mr. Charvet: I told Mr. Norris the first time I talked to him and I’ll tell him now again, that absolutely, he can research all he wants to, he has absolutely no right to go into my fee arrangement with this client or any client I have ever had, or anything else and that is—in fact, the case that he cited [People v. Corona (1978) 80 Cal.App.3d 684 [145 Cal.Rptr. 894]] is on appeal and that’s even a questionable case.
“I’m not making a statement one way or the other, but I would feel very confident from the U.S. Supreme Court stating the following: That if a person’s only asset that he had in the whole world was a book right to get an attorney of his choice—let’s use this hypothesis—as long as the defendant himself did not benefit in any other way and saved the state and the county, and everyone else the money and he had the attorney of his choice then I think that they would even allow that, and I think that’s what’s going to end up with in the Corona case he’s talking about and I think that’s what’s going to come out of the appeal.
“Other than that, is there anything else the Court—
“The Court: Not at this point.”
Prosecutor Norris attempted to raise the issue again. He stated: “I think the Court is at least entitled to ask defense counsel the very limited question, ‘Are those book rights a part of your retainer?’ And if the answer is in the affirmative then I think the Corona case is substantial authority, in conjunction with the other conflict of interest that we have with Mr. Char-vet representing Mr. Bonin, and I think Your Honor is entitled to ask that question and demand an answer from Mr. Charvet in regard to that.” The court, however, made no inquiry into the matter.
Thereupon, the court denied the motion for substitution. Because of scheduling problems and in recognition of defendant’s expressed desire to seek review by petition for writ of mandate to the Court of Appeal, it continued commencement of trial to the following Monday, September 21, 1981. To support its ruling it gave the following reasons.
“I’m satisfied based upon what I have heard that to walk into court on the day of trial after fourteen months of preparation and then ask this Court for a further continuance, ninety or 120 days or beyond that is an unreasonable disruption of the judicial process.
“... I think not only does the defendant have a right to a speedy trial, the People have a right to a speedy trial, and by granting a further delay in this matter of any substantial nature is going to substantially hurt the People’s case, and I make that finding.
“Secondly, Mr. Charvet, I’m deeply concerned with whatever contact you did have with the witness Munro who is going to be a witness in this case, and I think a conflict situation has, in fact, developed to the point that I don’t see how the People can fairly call that witness to the witness stand and anticipate your cross-examination of a witness that you have talked to in the vein of possibly representing him, and there is that conflict.
“I want the record, also, if there’s a possible writ on this matter, to be also clear I am deeply concerned with the fact that I think that this is a ploy by this defendant based upon what I’ve heard at this hearing, to delay this matter going to trial and I’m satisfied that if a continuance was granted through further efforts by this defendant that further delays would be sought and that the ends of justice would further be thwarted by his effort of substituting an attorney or attempting to substitute an attorney fourteen months later on the date of trial.”
After the court ruled on the matter of substitution, defendant made a motion to represent himself if Charvet & Stewart was not allowed to substitute into the case in the place of Hanson. The court asked, “Are you prepared to go to trial next Monday acting as your own lawyer?,” and defendant answered, “I don’t know. ... I’d want to look over [the case] again and be able to answer that next Monday.” Thereupon, the court stated as follows. “Well, we will withhold any ruling on your motion to act as your own attorney in this matter, [fl] Mr. Hanson will be your attorney of record, [fl] You confer with Mr. Charvet and Mr. Hanson and decide what appellate processes are going to be sought between now and next Monday. [í¡] But if you decide not to seek any appellate review of this Court’s ruling and that be your desire to act as your own attorney, we will take that up next Monday, but it will be with no further continuance if you want to come into this case and act as your own lawyer. We’re going to go to trial on the date set. And it will not be a grant of pro. per. status to you predicated or based upon any lengthy continuance for trial preparation.”
On September 18, 1981—as we may judicially notice (Evid. Code, §§ 452, subd. (d), 459, subds. (a), (c))—Charvet & Stewart submitted to the Court of Appeal a petition for writ of mandate on defendant’s behalf seeking review of the court’s ruling. In the accompanying memorandum of points and authorities it was stated that “There is no conflict of interest” involving Munro and that “a full disclosure and waiver were obtained by counsel from Bonin.” In a form verification to the petition, defendant declared in relevant part: “I have read the foregoing Petition and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and, as to those matters, I believe it to be true.” On that same day, the Court of Appeal summarily denied the petition.
On September 21, 1981, the date to which the commencement of trial had been continued, Charvet informed the court of the Court of Appeal’s decision and stated that he intended to seek a hearing on the matter in this court. Defendant told the court that it was still his desire to proceed pro se if Charvet & Stewart was not allowed to substitute into the case in the place of Hanson.
In order to give Charvet an opportunity to file a petition for a hearing and to provide defendant with time to prepare to represent himself in the event substitution was not allowed, the court made the following order.
“All right. Here’s what I’m going to do in this matter at this time: [1f] I’m going to order a continuance in this matter for approximately 30 days. [1J] Today is the 21st. I’m going to set the matter for Monday, the 19th of October, and on the 19th of October we’re going to start the trial in this matter.
“We’re going to start the trial in one of three possible ways.
“Mr. Charvet, if you desire to come into this matter and commence trial on the 19th of October, start jury selection, if that be Mr. Bonin’s request and you are prepared to proceed to trial at that date, you will become the attorney of record. We will start the trial.
“If you indicate that you are not prepared to go to trial on that date and cannot be prepared to go to trial on that date, then we’re going to go into plan B.
“Plan B is, Mr. Hanson, you will start the trial at that time in the event that Mr. Bonin wants you as the attorney of record.
“If he does not want you as the attorney of record, we’re then going to plan C and we will go to trial on plan C, and that is, Mr. Bonin, you be prepared to act as your own lawyer. You will proceed to trial as your own attorney and, Mr. Hanson, you will be appointed as advisory counsel in the event that that does occur, and you will assist Mr. Bonin in taking this matter to trial on that date.
“But whether we go plan A, plan B, plan C, be here on that date, the 19th, prepared to proceed to trial.”
After the court made its order, Charvet sought a clarification as to the issue of conflict of interest. “Your Honor, I now have a problem with plan A. [H] There has been a ruling against me by Your Honor on three issues. Conflict of interest, delay tactics of the defendant. [1f] If, in fact, the conflict of interest is valid, if given the 30 days, let’s assume hypothetically I am prepared to go to trial on October 19th, I still have the issue of conflict of interest if the Supreme Court has not ruled one way or the other. I have a problem.”
The court failed to address the conflict issue at all, stating only: “Of course, plan A, B and C will all be nullified in the event the Supreme Court decides to stop it. [fl] All right. So we don’t complicate this matter any further,... let’s end the hearing at this time. fl|] October 19th is the date now set for trial.”
As it turned out, Charvet & Stewart did not make an application in this court for a hearing on the Court of Appeal’s denial of its petition for a writ of mandate.
On October 19, 1981, the date to which the commencement of trial had been continued, the court ordered the substitution of Charvet & Stewart as counsel for defendant in the place of Hanson. The relevant colloquy is as follows.
“The Court: All right. This case of People vs. William George Bonin, let’s have the record reflect the appearance of the defendant in court, at this time represented by his attorney Mr. Earl Hanson, Mr. Norris representing the interest of the People, [fl] This matter is here, now, for trial. ffl] However, there is pending at this time a motion for substitution of attorneys, [fíj Mr. Hanson, do you want to be heard on the matter?
“Mr. Hanson: Yes, if the Court please, Your Honor, [fl] Mr. Bill Char-vet is present in court. At the request of Mr. Bonin, Mr. Charvet is here, [fl] It is Mr. Bonin’s request that Mr. Charvet represent Mr. Bonin in his upcoming trial, [fl] It is, of course, with my consent, Your Honor, and my best wishes. [^] I understand that Mr. Charvet agrees to accept the substitution and is prepared to commence the trial.
“The Court: Mr. Charvet; do you want to be heard?
“Mr. Charvet: Yes, Your Honor, that’s correct.
“The Court: You are desirous at this time of becoming the attorney of record in this matter?
“Mr. Charvet: That’s correct.
“The Court: And that’s with the understanding that if I permit you to become the attorney of record in the matter we’ll start the jury selection today; is that correct?
“Mr. Charvet: That’s affirmative.
“The Court: And you are prepared to proceed?
“Mr. Charvet: I am.
“The Court: Are the People ready?
“Mr. Norris: People are ready, Your Honor.
“The Court: All right. [If] Mr. Bonin, is that what you want at this time? You want me to substitute Earl Hanson out as your attorney of record and Mr. Charvet to become your attorney of record for all purposes in this trial; is that correct?
“The Defendant: Yes, it is.
“The Court: All right. I’ll order thé substitution. Mr. Charvet, you are now the attorney of record for Mr. Bonin, [if] Mr. Hanson, you are excused from further services in this matter.”
Called by the prosecution at trial, Munro testified that he and defendant killed Wells. In cross-examination that spanned several days, Charvet attempted to destroy Munro’s credibility, suggesting that Munro killed Wells without defendant’s help or support. He exposed myriad inconsistencies in Munro’s testimony at and before trial and in various statements he had made; compelled him to admit that he lied on numerous occasions; and forced him to concede that he testified against defendant solely to avoid the death penalty. In closing argument, Charvet exploited the record of the cross-examination to urge the jury to reject Munro’s testimony out of hand as unworthy of belief.
2. The Law
Under both the Sixth Amendment to the United States Constitution as applied to the states through the due process clause of the Fourteenth Amendment (e.g., Powell v. Alabama (1932) 287 U.S. 45, 68-71 [77 L.Ed. 158, 170-172, 53 S.Ct. 55, 84 A.L.R. 527]; see, e.g., Holloway v. Arkansas (1978) 435 U.S. 475, 481-487 [55 L.Ed.2d 426, 432-436, 8 S.Ct. 1173]) and article I, section 15 of the California Constitution (e.g., People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839]; see, e.g., People v. Chacon (1968) 69 Cal.2d 765, 773-774 [73 Cal.Rptr. 10, 447 P.2d 106, 34 A.L.R.3d 454]), a defendant in a criminal case has a right to the assistance of counsel.
The constitutional guaranty “entitles the defendant not to some bare assistance but rather to effective assistance.” (People v. Ledesma, supra, 43 Cal.3d at p. 215, italics in original [discussing both federal and state constitutional rights]; accord, Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612 [180 Cal.Rptr. 177, 639 P.2d 248, 18 A.L.R.4th 333] [discussing state constitutional right]; see, e.g., Holloway v. Arkansas, supra, 435 U.S. at p. 481 [55 L.Ed.2d at pp. 432-433]; People v. Chacon, supra, 69 Cal.2d at pp. 773-774 [discussing both federal and state constitutional rights].)
Included in the right to the effective assistance of counsel is “a correlative right to representation that is free from conflicts of interest.” (Wood v. Georgia, supra, 450 U.S. at p. 271 [67 L.Ed.2d at p. 230]; accord, Leversen v. Superior Court (1983) 34 Cal.3d 530, 536-537 [194 Cal.Rptr. 448, 668 P.2d 755] [discussing federal constitutional right]; People v. Chacon, supra, 69 Cal.2d at p. 774 [discussing both federal and state constitutional rights]; see Cuyler v. Sullivan (1980) 446 U.S. 335, 345-350 [64 L.Ed.2d 333, 344-348, 100 S.Ct. 1708]; Holloway v. Arkansas, supra, 435 U.S. at p. 481 [55 L.Ed.2d at pp. 432-433]; Glasser v. United States (1942) 315 U.S. 60, 70 [86 L.Ed. 680, 699, 62 S.Ct. 457].)
The right to the assistance of counsel “was designed to assure fairness in the adversary criminal process. ... [In other words,] the purpose of providing assistance of counsel ‘is simply to ensure that criminal defendants receive a fair trial,’ [citation] .... [I]n evaluating Sixth Amendment claims, ‘the appropriate inquiry focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.’ [Citation.] Thus, while the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” (Wheat v. United States (1988) 486 U.S. 153, [100 L.Ed.2d 140, 148, 108 S.Ct. 1692, 1696-1697].)
Further, the constitutional guaranty protects the defendant who retains his own counsel to the same degree and in the same manner as it protects the defendant for whom counsel is appointed, and recognizes no distinction between the two. (Cuyler v. Sullivan, supra, 446 U.S. at pp. 344-345 [64 L.Ed.2d at p. 344].)
Finally, this right is “fundamental” (Cuyler v. Sullivan, supra, 446 U.S. at p. 343 [64 L.Ed.2d at p. 343]) and “is among those ‘constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.’” (Holloway v. Arkansas, supra, 435 U.S. at p.489 [55 L.Ed.2d at p. 437], quoting Chapman v. California (1967) 386 U.S. 18, 23 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]; accord, Cuyler v. Sullivan, supra, at p. 349 [64 L.Ed.2d at p. 347]; Rose v. Clark (1986) 478 U.S. 570, 577-578 [92 L.Ed.2d 460, 470, 106 S.Ct. 3101].)
Conflicts of interest broadly embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests. (See generally ABA, Model Rules Prof. Conduct (1983) rule 1.7 and com. thereto [hereinafter ABA, Model Rules].)
Conflicts spring into existence in various factual settings. For example, conflicts may arise in circumstances in which one attorney represents more than one defendant in the same proceeding. (See, e.g., Holloway v. Arkansas, supra, 435 U.S. at pp. 481-491 [55 L.Ed.2d at pp. 432-438]; People v. Mroczko (1983) 35 Cal.3d 86, 103-109 [197 Cal.Rptr. 52, 672 P.2d 835].) In such cases there is at least the possibility that “the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties” (Cuyler v. Sullivan, supra, 446 U.S. at p. 356, fn. 3 [64 L.Ed.2d at pp. 351-352] (cone. & dis. opn. of Marshall, J.)) and thereby undermine his loyalty to, or efforts on behalf of, one or all. Such a conflict, it is plain, can result in the infringement, or even the denial, of the defendant’s constitutional right to the effective assistance of counsel.
Conflicts may also arise in situations in which an attorney represents a defendant in a criminal matter and currently has or formerly had an attorney-client relationship with a person who is a witness in that matter. (See, e.g., Leversen v. Superior Court, supra, 34 Cal.3d at pp. 536-540; United-States v. Armedo-Sarmiento (2d Cir. 1975) 524 F.2d 591, 592 (per curiam).)
Such a conflict springs from the attorney’s duty to provide effective assistance to the defendant facing trial and his fiduciary obligations to the witness with whom he has or had a professional relationship. (Leversen v. Superior Court, supra, 34 Cal.3d at p. 538.) “An attorney is forbidden to use against a [present or] former client any confidential information ... acquired during that client relationship. [Citations.] Moreover, the attorney has a duty to withdraw, or apply to a court for permission to withdraw, from representation that violates those obligations. [Citation.] So important is that duty that it has been enforced against a defendant’s attorney at the instance of his former client (who was also a codefendant) even at the expense of depriving the defendant of his choice of counsel. [Citation.]” (Ibid.) In a word, a conflict based on the attorney’s obligations to a criminal defendant and to a present or former client, “as well as conflicts arising out of simultaneous representation of codefendants, may impair a defendant’s constitutional right to assistance of counsel.” (Ibid.)
Conflicts may also arise in situations in which an attorney undertakes representation of a defendant in exchange for the literary rights to a portrayal or account based on information relating to the representation. (See, e.g., Maxwell v. Superior Court, supra, 30 Cal.3d at pp. 616-617; Ray v. Rose (6th Cir. 1976) 535 F.2d 966, 974; United States v. Hearst (N.D.Cal. 1978) 466 F.Supp. 1068, 1082-1083 [53 A.L.R.Fed. 110], affd. in part and vacated and remanded in part on other grounds (9th Cir. 1980) 638 F.2d 1190; People v. Corona, supra, 80 Cal.App.3d at p. 720; ABA, Model Rules, supra, rule 1.8(d) and com. thereto; ABA, Model Code Prof. Responsibility (1982) DR 5-104(B), EC 5-4; ABA, Standards for Criminal Justice, Stds. Relating to the Prosecution Function and the Defense Function (1971) The Defense Function, std. 3.4 and com. thereto [hereinafter ABA, Standards, The Defense Function].)
As the American Bar Association has stated: “A grave conflict of interest can arise out of an arrangement between a lawyer and an accused to give to the lawyer the right to publish books, plays, articles, interviews or pictures, or related literary rights concerning the case.... [I]t may place the lawyer under temptation to conduct the defense with an eye on the literary aspects and its dramatic potential. If such an arrangement or contract is part of the fee, in lieu of the fee, or a condition of accepting the employment, it is especially reprehensible.” (ABA, Standards, The Defense Function, supra, com. to std. 3.4; see Maxwell v. Superior Court, supra, 30 Cal.3d at p. 616 [to similar effect].)
In order to safeguard a criminal defendant’s constitutional right to the assistance of conflict-free counsel and thereby keep criminal proceedings untainted by conflicted representation, the United States Supreme Court has laid down certain essentially prophylactic rules in this area.
When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter. (Wood v. Georgia, supra, 450 U.S. at p. 272 [67 L.Ed.2d at p. 230]; see Holloway v. Arkansas, supra, 435 U.S. at p. 484 [55 L.Ed.2d at p. 434].) It is immaterial how the court learns, or is put on notice, of the possible conflict, or whether the issue is raised by the prosecution (see Wood v. Georgia, supra, at pp. 272-273 [67 L.Ed.2d at pp. 230-231]) or by the defense (see Holloway v. Arkansas, supra, at p.484 [55 L.Ed.2d at p. 434]).
The trial court is obligated not merely to inquire but also to act in response to what its inquiry discovers. (See Holloway v. Arkansas, supra, 435 U.S. at p. 484 [55 L.Ed.2d at pp. 434-435].) In fulfilling its obligation, it may, of course, make arrangements for representation by conflict-free counsel. (Ibid.) Conversely, it may decline to take any action at all if it determines that the risk of a conflict is too remote. (Ibid.) In discharging its duty, it must act “ ‘... with a caution increasing in degree as the offenses dealt with increase in gravity.’ ” (Glasser v. United States, supra, 315 U.S. at p. 71 [86 L.Ed.2d at p. 699].)
After the trial court has fulfilled its obligation to inquire into the possibility of a conflict of interest and to act in response to what its inquiry discovers, the defendant may choose the course he wishes to take. If the court has found that a conflict of interest is at least possible, the defendant may, of course, decline or discharge conflicted counsel. But he may also choose not to do so: “a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests.” (Holloway v. Arkansas, supra, 435 U.S. at p. 483, fn. 5 [55 L.Ed.2d at p. 433]; accord, Glasser v. United States, supra, 315 U.S. at p. 70 [86 L.Ed.2d at p. 700].)
To be valid, however, “waivers of constitutional rights must, of course, be ‘knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences[,]’... [and] must be unambiguous and ‘without strings.’ ” (People v. Mroczko, supra, 35 Cal.3d at p. 110, quoting Brady v. United States (1970) 397 U.S. 742, 748 [25 L.Ed.2d 747, 756, 90 S.Ct. 1463], and United States v. Dolan (3d Cir. 1978) 570 F.2d 1177, 1181, fn. 7.)
Before it accepts a waiver offered by a defendant, the trial court need not undertake any “particular form of inquiry.. ., but, at a minimum,... must assure itself that (1) the defendant has discussed the potential drawbacks of [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right.” (People v. Mroczko, supra, 35 Cal.3d at p. 110; see Glasser v. United States, supra, 315 U.S. at p. 71 [86 L.Ed.2d at pp. 699-700] [to similar effect].)
When in violation of its duty the trial court fails to inquire into the possibility of a conflict of interest or fails to adequately act in response to what its inquiry discovers, it commits error under Wood v. Georgia, supra, 450 U.S. 261. (Id. at p.272 [67 L.Ed.2d at pp. 230-231].)
To obtain reversal for Wood error, the defendant need not demonstrate specific, outcome-determinative prejudice. (See Brien v. United States (1st Cir. 1982) 695 F.2d 10, 14-15.) But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performanee. (See Wood v. Georgia, supra, 450 U.S. at pp. 272-274 [67 L.Ed.2d at pp. 230-232]; Brien v. United States, supra, at p. 15, fn. 10; cf. Strickland v. Washington (1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 696, 104 S.Ct. 2052] [holding that violation of a defendant’s right to conflict-free counsel requires reversal only if the defendant shows actual conflict and adverse effect].)
3. Discussion
We turn now to the case at bar. We believe that the trial court did not fail to satisfy the requirements of Wood with regard to the alleged literary-rights fee agreement between defendant and Charvet & Stewart. The court cannot be deemed to have known, or to have had reason to know, of the possibility of a conflict in this regard. In our view, a court can be held to have knowledge or notice of the possibility of a conflict only when, as in Wood itself (450 U.S. at p. 266 [67 L.Ed.2d at p. 227]), it is provided with evidence of the existence of a conflict situation—a circumstance not present here. Otherwise, it would effectively be burdened with undertaking an inquiry in virtually all cases since it can almost always conclude that a conflict is “possible” as a matter of speculation. Such a burden, however, would be intolerable.
We recognize that in this case it seems easy to conjecture the existence of a literary-rights fee agreement. Defendant was indigent at the time defense counsel Hanson was appointed and apparently remained so; the case had an extremely high profile; and when the court raised the issue of the existence of a literary-rights fee agreement, Charvet replied nonresponsively with an opinion that the United States Supreme Court would not declare such an arrangement unlawful per se. But although these matters might perhaps lay a basis for speculation, they simply do not amount to evidence sufficient to trigger the duty of inquiry.
We believe, however, that the trial court did fail to discharge its duties under Wood with regard to the possibility of a conflict of interest burdening Charvet & Stewart arising from the firm’s former attorney-client relationship with Munro.
We recognize that initially the court acted as it was required to: it inquired into the possibility of a conflict; it then determined in effect that an attorney-client relationship had existed between Charvet & Stewart and Munro and hence that the firm faced an at least potential conflict if it undertook to represent defendant; and it denied the substitution motion in part because of the threat of that conflict.
But the court then proceeded to nullify the effect of its action when on the first day of trial it ordered the substitution of Charvet & Stewart in the place of Hanson without making any attempt at all to obtain from defendant a waiver of his constitutional right to the assistance of conflict-free counsel.
The court’s conduct in this regard is inexplicable. Prosecutor Norris had twice emphasized the practical danger posed by the conflict issue, arguing presciently that “That would be the first point seized upon in any type of appeal.” For his part, Charvet had made it plain that the danger did indeed exist: “If, in fact, the conflict of interest is valid,... I still have the issue of conflict of interest if the Supreme Court has not ruled one way or the other. I have a problem.” He also had made it plain that the danger could readily be avoided by a waiver on the part of defendant: “Now Mr. Bonin has waived all semblance of any type of conflict of interest. [If] He’d be glad to do that now on the stand. He told me that. He told Mr. Hanson that. He’d be glad, at this point, to put him under oath, have him state it on the record, and that takes care of his problem as far as any type of reversal [on appeal] from Mr. Bonin’s standpoint, if there was, in fact.”
Accordingly, we are compelled to conclude that in acting as it did the trial court failed to act properly under the Wood rule—and plainly failed to act with the caution required in a capital proceeding (see Glasser v. United States, supra, 315 U.S. at p. 71 [86 L.Ed.2d at p. 699]).
Against our conclusion, the Attorney General makes several arguments. To begin with, he may be understood to argue that defendant made no objection to the possibility of conflicted representation at the trial level and accordingly may raise no complaint about the matter on appeal. Under the relevant precedents, however, a defendant who has not made an objection below is not prohibited from raising on review a claim of a Wood violation. Indeed, it appears that in Wood itself the defendants never objected at any stage of the proceedings. (See 450 U.S. at p. 282, fn. 8 [67 L.Ed.2d at pp. 236-237] (dis. opn. of White, J.).) Moreover, under the reasoning of the case law, a defendant who has failed to make an objection should not be barred from raising the claim. To our mind, so long as the trial court knew, or reasonably should have known, of the possibility of a conflict of interest, it is immaterial whether or not the defendant made any objection. Indeed, unless the court makes an inquiry and discovers an at least potential conflict, the defendant may have no substantial reason to object to the possibly conflicted representation.
The Attorney General next argues that the prosecution must be deemed to have withdrawn its “conflict of interest” objection to the substitution of Charvet & Stewart in the place of Hanson. The record is otherwise, supporting at most an inference that the prosecution simply failed to press its objection. But in any event, whether or not the prosecution withdrew its objection is immaterial here: although on these facts the prosecution’s objection triggered the court’s duty to inquire into the possibility of a conflict, its withdrawal of an objection could not release the court from its obligation to complete the task imposed on it by law.
The Attorney General then argues that the trial court did not in fact fail to discharge its duties. In support, he maintains the court was not required to do anything more than it did. In light of the discussion presented above, however, the point must be rejected.
The Attorney General next argues that defendant must be deemed to have waived his constitutional right to the assistance of conflict-free counsel. To make his point he directs our attention to the following: defendant was present at the relevant hearings and heard the colloquy among the court and counsel about the dealings between Charvet & Stewart and Munro, including Charvet’s opinion that no attorney-client relationship had existed between his firm and Munro; defendant said that he wanted to be represented by Charvet & Stewart; Charvet made the representation, quoted above, that defendant was willing to waive his constitutional right to the assistance of conflict-free counsel; finally, the memorandum of points and authorities accompanying Charvet & Stewart’s petition for writ of mandate stated, “a full disclosure and waiver were obtained by counsel from Bonin,” and defendant executed a form verification of the petition.
As a reviewing court, “We indulge every reasonable presumption against the waiver of unimpaired assistance of counsel.” (People v. Mroczko, supra, 35 Cal.3d at p. 110; accord, Glasser v. United States, supra, 315 U.S. at p. 70 [86 L.Ed.2d at p. 699].) In this case, we find nothing that rebuts any such presumption.
First and foremost, defendant did not even purport to make a personal, on-the-record waiver of his constitutional right to the assistance of conflict-free counsel. This fact is established beyond dispute, and the Attorney General does and can make no claim to the contrary.
We recognize that defendant was present at the hearings. But what he may reasonably be held to know about the issue of the conflict of interest is hard to determine. He heard prosecutor Norris argue that Charvet & Stewart had an attorney-client relationship with Munro and as a result would be burdened with a conflict if it undertook to represent him at trial, and he heard Charvet argue to the contrary; he saw the court determine that there would indeed be a conflict, and he saw the court subsequently ignore that determination.
It is true that defendant stated that he wanted Charvet & Stewart to represent him at trial. His statement, however, is without significance here since it was not made in light of a constitutionally adequate, on-the-record advisement of the possible dangers and consequences of conflicted representation.
It is also true that Charvet declared that defendant would personally waive his constitutional right to the assistance of conflict-free counsel on the record. But the fact is that defendant did not even purport to make such a waiver.
Finally, we recognize that the memorandum of points and authorities accompanying the petition for writ of mandate stated, “a full disclosure and waiver were obtained by counsel from Bonin,” and that defendant executed a form verification of the petition. Defendant’s verification, however, cannot be deemed a waiver. On its very face, it is altogether too broad and conclusory, providing the court with none of the assurances the Constitution requires it to obtain before accepting a waiver. More important, it is lacking in relevant legal effect: it verifies the petition and not the memorandum of points and authorities in which the statement about disclosure and waiver appears.
Thus, even when we read the record as favorably as we can to support the Attorney General’s argument, we are compelled to conclude that it shows no more than that defendant might have been willing to waive his constitutional right to the assistance of conflict-free counsel and that such a waiver might have been knowing and intelligent.
A showing of that sort, however, is simply not enough. As we stated above, “at a minimum, the trial court must assure itself that (1) the defendant has discussed the potential drawbacks of [potentially conflicted] representation with his attorney, or if he wishes, outside counsel, (2) that he has been made aware of the dangers and possible consequences of [such] representation in his case, (3) that he knows of his right to conflict-free representation, and (4) that he voluntarily wishes to waive that right.” (People v. Mroczko, supra, 35 Cal.3d at p. 110.) Here, it is plain, the trial court did not even attempt to obtain such an assurance.
The Attorney General next argues in substance that defendant caused whatever error the trial court may have committed and accordingly may not be heard to raise any complaint. His argument is to the following effect: defendant’s motions to substitute Charvet & Stewárt in the place of Hanson and to proceed pro se if substitution was not allowed constituted attempts to delay trial and thereby prejudice the People’s case; confronting such attempts, the court was compelled to act as it did; therefore, if any of its acts or omissions was improper, defendant was responsible for the error and hence should not be allowed to derive any benefit therefrom.
Why defendant made his motions is hard to determine to any degree of certainty. The record does indeed support an inference that defendant acted for the sole purpose of delaying trial and prejudicing the People’s case. But the record also supports another inference—viz., that as he faced a trial at which his life would be at stake, defendant wanted to be represented by counsel in whom he had full confidence or by no counsel at all.
Whatever defendant’s motives may have been, we simply cannot conclude that defendant can be held responsible for the error of which he now complains: he did not compel the trial court to act as it did. On or before the first day of trial, the court need only have attempted to obtain from defendant a waiver of his constitutional right to the assistance of conflict-free counsel. If it had been successful—as the record shows it likely would have been—it could properly have ordered substitution and then proceeded to commence trial with Charvet & Stewart as counsel of record for defendant. If it had not been successful, it could then have denied the substitution motion to “protect the record and defendant’s right to effective assistance... .” (Maxwell v. Superior Court, supra, 30 Cal.3d at p. 620.) In that case, it could also have denied as untimely (People v. Windham (1977) 19 Cal.3d 121, 127-128 [137 Cal.Rptr. 8, 560 P.2d 1187]) defendant’s motion to proceed pro se unless he was willing to commence trial forthwith. In short, the court had more than adequate means to properly retain control of the proceedings and hence must shoulder responsibility for its error.
We turn now from the fact of Wood error to its consequences. As stated above, to obtain reversal the defendant is not required to demonstrate specific prejudice but must show an actual conflict of interest burdening defense counsel and an adverse effect on counsel’s performance arising from that conflict.
Defendant argues that Wood error is subject to automatic reversal. We cannot agree. We recognize that in a footnote the Wood majority used language that may perhaps be read to support defendant’s position: “Justice White’s dissent states that we have gone beyond the recent decision in Cuyler v. Sullivan, 446 U.S. 335 (1980). Yet nothing in that case rules out the raising of a conflict-of-interest problem that is apparent in the record. Moreover, Sullivan mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’ ” (450 U.S. at p. 272, fn. 18 [67 L.Ed.2d at p. 231], italics in original.) In our view, the quoted language must be considered dictum and cannot be deemed an accurate statement of the law. This is because the words of the Wood majority are contradicted by their actions: in that case they did not reverse but merely vacated the judgment and remanded the cause for a hearing in the trial court on the question whether an actual conflict in fact existed. Faced with an inconsistency between what the high court says and what it does, we think that we must follow as binding authority the latter and not the former. (See Brien v. United States, supra, 695 F.2d at p. 15, fn. 10; see also United States v. Winkle (10th Cir. 1983) 722 F.2d 605, 611-612 [revealing a similar understanding of Wood].)
Having considered the matter closely, we believe that reversal is not required on this record. We shall assume for argument’s sake that defendant has shown an actual conflict of interest burdening Charvet & Stewart. But we conclude that he has not shown, and cannot show, any adverse effect on counsel’s performance resulting from the alleged conflict. Our review of the record reveals that Charvet’s attack on Munro’s credibility was broad and deep. We cannot find or even conjecture any failing on Charvet’s part that could be attributed to any information he or his partner Stewart could conceivably have received from Munro when they discussed the possibility of representation. Accordingly, we hold that the Wood error in this case does not warrant reversal.
B. Ineffective Assistance of Counsel
Defendant contends that he was denied his constitutional right to the effective assistance of counsel. He does not challenge defense counsel’s actual performance at trial or the effect of that performance on the proceedings. Rather, he asserts that the assistance provided to him must be presumed to have been ineffective because counsel was given only 30 days to prepare for trial.
We recognize that in some cases ineffective assistance must be presumed “without inquiry into the actual conduct of the trial” because “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small” that the cost of litigating the issue is unjustified. (United States v. Cronic (1984) 466 U.S. 648, 659-660 [80 L.Ed.2d 657, 668, 104 S.Ct. 2039].) But we do not believe that this is such a case.
It is true that the charges defendant faced were multitudinous and of the utmost gravity. There was also much evidence of various sorts and many potential witnesses. Further, at the September 14, 1981, hearing Charvet stated he would require “at least a 120 day continuance,” and Hanson said Charvet might need “ninety days or 120 days.” Finally, when trial commenced on October 19, 1981, Charvet stated, “I’m not as comfortable with just one month [of preparation] as I would have been with two or three.”
But it is also true that at the September 14, 1981, hearing Hanson—who had worked on the case since August 1980 and was ready for trial—offered to give Charvet help in his preparation. Further, at the September 21, 1981, hearing Hanson opined that with his help defendant would be able to proceed pro se on the scheduled trial date of October 19, 1981—and thereby implied that with his help Charvet would be able to proceed as counsel on that date. Moreover, Hanson did in fact give Charvet the help that he had promised. Finally, on the first day of trial Charvet—albeit “not as comfortable with just one month as I would have been with two or three”—did indeed answer ready.
Therefore, on this record we simply cannot presume that defense counsel’s assistance was ineffective without inquiry into the actual conduct of the trial. Accordingly, we must reject defendant’s point.
C. Motion to Bar the Testimony of Munro and Miley
Defendant contends that the court erred when it refused to bar Munro and Miley from testifying against him at trial. The facts relevant to this claim are as follows.
On December 17, 1980, a meeting was held at defendant’s request and was recorded on audiotape. Those who attended included defendant, his then counsel Hanson, and prosecutor Norris. Defendant sought the meeting to explore the possibility of negotiating a disposition to this case, and any other cases involving the “freeway killings,” that would result in a sentence less than death. Before substantive discussions began, defendant sought a promise from Norris that the prosecution would not use anything he said in the course of the meeting for any purpose other than determining whether or not to participate in a settlement. Norris gave his promise. Hanson soon left the meeting. Thereupon substantive discussions began. In the course thereof, defendant made statements that incriminated Munro and Miley. The prosecution subsequently declined to enter into a negotiated disposition.
Pursuant to a discovery request and over the prosecution’s objection, Munro’s counsel and Miley’s counsel each learned of defendant’s statements. Apparently in part because of those statements, Munro and Miley each agreed to a bargain under which each would be allowed to enter a guilty plea on the condition that each would testify truthfully against defendant at trial. In the course of plea negotiations no reference was made to defendant or his statements.
Before the guilt phase opened, defendant moved to bar Munro and Miley from testifying against him at trial. He based his motion on a claim that the prosecution had obtained the agreement of each man to testify by using his statements in violation of its promise. Determining, inter alia, that the prosecution had committed no breach, the court denied the motion.
Defendant now contends that the court’s ruling was error. In support, he argues that the prosecution breached its promise and thereby violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].
At the threshold there is a question whether the claim is properly raised. It is, of course, the rule that to preserve a Miranda claim for appeal a defendant must make a Miranda objection below. (E.g., In re Dennis M. (1969) 70 Cal.2d 444, 462 [75 Cal.Rptr. 1, 450 P.2d 296].) In this case, defendant made no such objection. Therefore, to the extent the point is predicated on Miranda, it appears not to be properly raised.
For the sake of discussion, however, we shall assume that defendant’s claim is preserved in its entirety. Having considered the matter closely, we are of the opinion that the point must be rejected on the merits. The record contains credible evidence that the prosecution did not use defendant’s statements to obtain the agreement of Munro and Miley to testify against him at trial—i.e., it did not exploit those statements either directly or indirectly toward that end. Moreover, the record contains no evidence to the contrary.
Defendant asserts that the prosecution knew or at least should have known that it would be required to produce the statements to Munro and Miley in discovery. He also asserts that the disclosure of the statements led to their decision to testify. But such facts do not negate the conclusion that the prosecution’s conduct simply does not amount to an exploitation of defendant’s statements.
Thus, the prosecution did not use defendant’s statements to obtain the agreement of Munro and Miley to testify against him at trial. Consequently, it cannot be held to have violated its promise. Hence, the court’s denial of defendant’s motion was not error.
D. Admission of Experimental Evidence
Defendant contends that the court erred when it ruled admissible the testimony of a prosecution criminalist concerning an experiment conducted to determine whether the ligature marks on the neck of the body of Wells could have been made by a T-shirt as Munro had testified. As prosecutor Norris was about to elicit the testimony referred to above, defense counsel Charvet requested a hearing pursuant to Evidence Code section 402 outside the presence of the jury on the question whether the evidence was supported by an adequate foundation. The court asked Norris for an offer of proof. Norris responded that the criminalist would testify that he wrapped a T-shirt around a part of his body and concluded that the striations produced were similar to those found on the neck of Wells’s body. Without asking the prosecution to produce any evidence on the matter and without giving any statement of reasons, the court denied the request for a hearing and effectively ruled the testimony admissible. On direct examination, the criminalist testified in conformity with the offer of proof, adding that he had wrapped the T-shirt around his upper arm. On cross-examination, he admitted that he had never read of such an experiment in the scientific literature and had never conducted it previously.
The law that governs the issue at bar is settled. “Experimental evidence has long been permitted in California trial courts... .” (People v. Roehler (1985) 167 Cal.App.3d 353, 385 [213 Cal.Rptr. 353], citing People v. Carter (1957) 48 Cal.2d 737 [312 P.2d 665], and People v. Spencer (1922) 58 Cal.App. 197 [208 P. 380].) But “Admissibility of experimental evidence depends upon proof of the following foundational items: (1) The experiment must be relevant [citations]; (2) the experiment must have been conducted under substantially similar conditions as those of the actual occurrence [citation]; and (3) the evidence of the experiment will not consume undue time, confuse the issues or mislead the jury [citation], [fl] In the case of experimental evidence, the preliminary fact [citation] necessary to support its relevancy is that the experiment was conducted under the same or similar conditions as those existing when the [event in question] took place. The standard that must be met in determining whether the proponent of the experiment has met the burden of proof of establishing the preliminary fact essential to the admissibility of the experimental evidence is whether the conditions were substantially identical, not absolutely identical.” (Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 521 [109 Cal.Rptr. 110]; accord, People v. Roehler, supra, 167 Cal.App.3d at pp. 385-386.) Admissibility also depends on proof, “with some particularity,” of “the qualifications of [the] individual[ ] testifying concerning [the] experimentation... .” (People v. Roehler, supra, at p. 385.)
The proponent of experimental evidence bears the burden of production and proof on the question whether such evidence rests on an adequate foundation. (See People v. Roehler, supra, 167 Cal.App.3d at p. 385 [speaking only of burden of proof]; Culpepper v. Volkswagen of America, Inc., supra, 33 Cal.App.3d at p. 521 [same]; see generally Evid. Code, § 403, subd. (a) [speaking of burden of production as well as burden of proof].)
After review, we agree with defendant that the court’s ruling was error. The prosecution simply failed to carry its burden as to foundation. For example, it did not produce any evidence to show the experiment was conducted under conditions similar to those of the Wells strangulation. It is not self-evident that the criminalist’s upper arm and Wells’s neck were similar in relevant aspect. Nor is it self-evident that the criminalist applied pressure to his arm the way Munro said defendant exerted force to Wells’s neck. Further, the prosecution did not produce any evidence to show the qualifications of the criminalist. Indeed, on cross-examination the criminalist essentially conceded that he was unqualified to conduct the “experiment.”
We recognize that the court’s ruling implies by operation of law a finding of all the necessary foundational facts. (Evid. Code, § 402, subd. (c).) The record, however, does not support such a finding. Accordingly, we are compelled to set that finding aside and to hold that the ruling predicated on it was erroneous.
We do not believe, however, that the error was prejudicial—nor, to our surprise, does defendant claim otherwise. We are of the opinion that there is no reasonable probability that the erroneously admitted testimony had any marginal effect on the outcome (see People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]): the properly admitted evidence supporting guilt was strong, whereas the contrary evidence was weak; moreover, the erroneously admitted testimony was not substantial even with regard to the Wells killing, and therefore did not affect the balance of inculpatory and exculpatory evidence. Accordingly, we hold that the error does not require reversal.
E. Admission of Testimony by the Parents of the Victims
Defendant contends that the court erred when it allowed the parents of the victims to testify. In support he argues that he offered to stipulate to the testimony the prosecution intended to elicit, and that such an offer rendered the testimony itself irrelevant and inadmissible.
At trial the prosecution called one or both parents of many of the victims. From each it elicited testimony on such matters as what his son looked like, how old he was at the time of death, whether he had any money in his possession at the time he disappeared, and where and when he was last seen alive. From many of the parents it sought identification of photographs of the victims in life and in death. The defense offered to stipulate to the identity, of the victims and to the admissibility of the photographs. The prosecution, however, refused to accept the offer. In conducting its examination, however, it did not elicit testimony on the effect of the crimes on the victims’ relatives and friends.
In its broad form defendant’s claim must be rejected. Contrary to what defendant implies, the defense simply did not offer to stipulate to the parents’ testimony in its entirety. Thus, there was no offer that could have rendered the whole of that testimony irrelevant.
But to the extent that it concerns the parents’ testimony to establish the identity of the victims and the foundation for the photographs, the claim has merit. In People v. Hall (1980) 28 Cal.3d 143, 152 [167 Cal.Rptr. 844, 616 P.2d 826], disapproved on another point in People v. Valentine (1986) 42 Cal.3d 170 [228 Cal.Rptr. 25, 720 P.2d 913], we held that “If a fact is not genuinely disputed, evidence offered to prove that fact is irrelevant and inadmissible under Evidence Code sections 210 and 350 respectively.” Through the offer of the defense, the facts covered by the proposed stipulation—the victim was a human being and was alive before the alleged criminal act was committed and dead afterwards—were removed from dispute. Therefore, the testimony elicited to prove such facts was irrelevant and inadmissible. As we also held in Hall, “if a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence ... to prove that element to the jury.” (28 Cal.3d at p. 152.) Thus, the court should have compelled the prosecution to accept the defense’s offer and barred it from eliciting testimony on the facts covered by the proposed stipulation.
Although the court erred by admitting the parents’ testimony to establish the identity of the victims and the foundation for the photographs, we are of the opinion that the error was harmless. The prejudice threatened by an error such as that committed here is the inflaming of the jurors’ hearts against the defendant. In our view, the improperly admitted testimony— which was not accompanied by any so-called “victim impact” evidence (see Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529])— had no potential to inflame the jurors and hence could not have exposed defendant to prejudice. Accordingly, we conclude that there is no reasonable probability that the erroneously admitted testimony had any marginal effect on the outcome.
F. Failure to Give Instructions Sua Sponte On the Reliability of Informer Testimony
Defendant contends that the court erred by failing to instruct the jurors sua sponte that they should consider an informer’s testimony to be inherently unreliable and should view such testimony with suspicion. We recently held to the contrary. (People v. Hovey (1988) 44 Cal.3d 543, 565-566 [244 Cal.Rptr. 121, 749 P.2d 776].)
III. Special Circumstance Issues
A. Felony-murder Special Circumstances
1. Failure to Instruct on Intent to Kill
Defendant contends that the felony-murder special-circumstance findings must be vacated because the court did not instruct that intent to kill was an element of that special circumstance. We do not agree.
As we held in People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306], “The court must instruct on intent to kill as an element of the felony-murder special circumstance when there is evidence from which the jury could find [citation] that the defendant was an aider and abetter rather than the actual killer.” Here, all the evidence showed that defendant either actually killed the victims or was not involved in the crimes at all; there was no evidence that he was an aider and abetter. Accordingly, the court did not err in failing to instruct on intent.
2. Sufficiency of the Evidence
Defendant contends that the felony-murder special-circumstance findings must be vacated on the ground that they are not supported by sufficient evidence. That special circumstance requires the trier of fact to find, inter alia, that the defendant committed the act resulting in death in order to advance an independent felonious purpose. (People v. Weidert (1985) 39 Cal.3d 836, 842 [218 Cal.Rptr. 57, 705 P.2d 380], following People v. Green (1980) 27 Cal.3d 1, 47-62 [164 Cal.Rptr. 1, 609 P.2d 468], which was decided under the 1977 death penalty law, former Pen. Code, §§ 190-190.6, Stats. 1977, ch. 316, §§ 4-14, pp. 1256-1262.) In this case, defendant argues, the evidence was insufficient to support such a finding.
“In reviewing the sufficiency of evidence, the question we ask is ‘“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the [allegation] beyond a reasonable doubt.” ’ ” (People v. Guerra (1985) 40 Cal.3d 377, 385 [220 Cal.Rptr. 374, 708 P.2d 1252], quoting People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], quoting in turn Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781], italics in original.)
Although we believe that the question is close, we are nevertheless of the opinion that a rational trier of fact could have found the independent-felonious-purpose element of each of the felony-murder special circumstances beyond a reasonable doubt. A rational trier could surely have found that defendant committed the acts resulting in the deaths of Macabe and Miranda, for example, in order to steal: there is evidence that he talked of attempting to obtain ransom for both. A rational trier could have inferred that in committing the acts resulting in the deaths of the other victims, which were strikingly similar to those resulting in the deaths of Macabe and Miranda, defendant acted with similar intent.
Defendant argues that the evidence was insufficient to support the findings as to Hyden and Turner because the record is devoid of any direct evidence that either had any money on his person at the time of the crimes charged. We are not persuaded. The record appears to support an inference that each was carrying money at the relevant time. In any event, it is undisputed that the clothes of each were removed. Defendant asserts in substance that the perpetrator’s sole object in taking the clothing must have been to facilitate or conceal the killings. The assertion, however, is without basis. Accordingly, we must reject it out of hand.
B. Multiple-murder Special Circumstances
1. Failure to Instruct on Intent to Kill
Defendant contends that the multiple-murder special-circumstance findings must be vacated because the court did not instruct that intent to kill was an element of that special circumstance. Again we do not agree.
As we implied in People v. Anderson, supra, 43 Cal.3d at page 1150, the court must instruct on intent with regard to the multiple-murder special circumstance when there is evidence from which the jury could find that the defendant was an aider and abetter rather than the actual killer. As stated above, there was no evidence that defendant was an aider and abetter. Accordingly, the court did not err in failing to instruct on intent.
2. “Multiple” Multiple-murder Special-circumstance Allegations
Defendant correctly contends it was error for the prosecution to allege more than one multiple-murder special circumstance. (People v. Anderson, supra, 43 Cal.3d at p. 1150.) It follows that nine of the ten multiple-murder special-circumstance findings must be vacated on this ground.
IV. Penalty Issues
Defendant raises a number of claims bearing on penalty. None, as we shall explain, establishes reversible error.
A. Admission of Testimony by the Parents of the Victims at the Guilt Phase
Defendant contends that the testimony of the parents establishing the identity of the victims and the foundation for the photographs, which was erroneously admitted at the guilt phase (see part II E, ante), requires reversal of the judgment of death.
In support of his point, defendant argues at the threshold that the erroneously admitted testimony was before the jurors in their penalty phase deliberations. We agree. The court instructed the jurors that “In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case.”
Defendant then argues that the erroneously admitted testimony must be deemed prejudicial. We cannot agree. As we stated above, this testimony— which did not include any so-called “victim impact” evidence—had no potential to inflame a reasonable juror and hence could not have exposed defendant to prejudice. (See part II E, ante.)
B. Admission of Murders to Be Tried in the Orange County Action
Defendant contends that the court erred when it allowed the admission of evidence of the four murders for which he was to be tried in the Orange County action. Specifically, he argues that as a result of the ruling he was improperly compelled to surrender one constitutional right to assert another: to present a defense to the Orange County murders at the penalty phase here, he had to surrender his privilege against self-incrimination and thereby reveal at least in part the defense he would mount in the Orange County action; to preserve his privilege against self-incrimination and thereby shield his defense in the Orange County action from disclosure, he had to forgo his right to present a defense to the Orange County murders at the penalty phase here.
To the extent that defendant’s point is based on the United States Constitution, it is without merit. The federal Constitution, in our view, does not forbid imposing on defendant the choice required by the trial court’s evidentiary ruling. (Cf. McGautha v. California (1971) 402 U.S. 183, 208-220 [28 L.Ed.2d 711, 726-733, 91 S.Ct. 1454] [the federal Constitution does not prohibit the states from having guilt and punishment determined in a unitary capital trial, even though in such a trial the defendant is compelled to choose either to speak on guilt and thereby waive his privilege to remain silent on punishment or to speak on punishment and thereby waive his privilege to remain silent on guilt].)
To the extent that defendant’s point is based on the California Constitution, it is also without merit. Defendant argues that our decision in Ramona R. v. Superior Court (1985) 37 Cal.3d 802 [210 Cal.Rptr. 204, 693 P.2d 789], supports his claim. It does not. In that case we held that pursuant to the state constitutional privilege against self-incrimination the trial court, on request, must grant a minor immunity from use at trial of any statement he makes in a fitness hearing. (Id. at pp. 806-811.) Our holding was based on the premise that in the circumstances there the minor must be deemed to be subject to “a compulsive sanction against exercise of the self-incrimination privilege.” (Id. at p. 812 (cone. opn. of Grodin, J.).) We cannot conclude that defendant was subject to such a “compulsive sanction” in the circumstances here.
C. Claims Relating to CALJIC Nos. 8.84.1 and 8.84.2
Defendant makes a number of claims relating to the core penalty instructions delivered by the court. The court instructed the jury in accordance with former CALJIC No. 8.84.1 as modified and ultimately with section 190.3 of the Penal Code (hereinafter section 190.3).The court also instructed in accordance with former CALJIC No. 8.84.2 as modified and ultimately with section 190.3.
1. Failure to Delete Sentencing Factors Inapplicable on the Evidence
Defendant contends that the court erred by instructing on all the statutory sentencing factors and by failing to delete such factors as were inapplicable on the facts of this case. We rejected a similar point in People v. Miranda (1987) 44 Cal.3d 57, 104-105 [241 Cal.Rptr. 594, 744 P.2d 1127]. For the same reasons, we reject this point here.
2. Statutory Sentencing Factor (a) and ‘Multiple” Multiple-murder Special Circumstances
Defendant contends that the court’s instruction as to statutory sentencing factor (a) was prejudicial error because it effectively directed the jurors to consider 10 multiple-murder special-circumstance findings instead of 1. We agree that the instruction was erroneous: as we concluded above (see part III B 2, ante), there can be only one such finding in a proceeding. We cannot agree, however, that the error requires reversal. Having reviewed the record of the penalty phase in its entirety, we are of the opinion that there is no reasonable possibility that the error had any marginal effect on the balance of aggravating and mitigating evidence or on the consequent determination of the appropriateness of death: although we presume that the jurors considered the nine invalid special-circumstance findings independent of their underlying facts, we cannot conclude that they could reasonably have given them any significant independent weight. (See also People v. Allen (1986) 42 Cal.3d 1222, 1281-1283 [232 Cal.Rptr. 849, 729 P.2d 115] (lead opn. by Grodin, J.).)
3. The Scope of Statutory Sentencing Factor (b)
Defendant contends that the court’s instruction as to statutory sentencing factor (b) was error. In support he argues that section 190.3 must be construed to limit the scope of that factor to crimes other than those of which the defendant was convicted in the capital proceeding. On this point we agree. (People v. Miranda, supra, 44 Cal.3d at pp. 105-106.) He then argues that the court’s instruction did not so limit the scope of that factor. On this point, however, we disagree (see id. at p. 106) and so reject the claim of error.
4. The Meaning of Statutory Sentencing Factor (i)
Defendant contends in substance that contrary to what he asserts to be the legislative intent informing section 190.3, the language of factor (i) of the instruction on the sentencing factors may have misled the jurors to consider his “age ... at the time of the crime” as a circumstance in aggravation. He misconstrues the legislative intent. In People v. Lucky (1988) 45 Cal.3d 259 [247 Cal.Rptr. 1, 753 P.2d 1052], we held that “the word ‘age’ in statutory sentencing factor (i) is used as a metonym for any age-related matter suggested by the evidence or common experience or morality that might reasonably inform the choice of penalty” (id. at p. 302, italics added) and hence may be considered in aggravation as well as in mitigation. Accordingly, we reject the point.
5. Easley “Factor (k)” Error
Defendant contends that the language of factor (k) of the court’s instruction pursuant to former CALJIC No. 8.84.1 (hereinafter former factor (k)) may have misled the jurors to his prejudice about the scope of their sentencing discretion and responsibility under the Constitution, and may also have misled them about the evidence they might consider in exercising that discretion and responsibility.
In People v. Easley (1983) 34 Cal.3d 858 [196 Cal.Rptr. 309, 671 P.2d 813], we concluded at pages 877 and 878 that the language of former factor (k)—with its exclusive focus on “the crime” and not “the criminal”—might mislead jurors about the scope of their responsibility and about the evidence they might consider in exercising that responsibility. We observed at the same pages that in Lockett v. Ohio (1978) 438 U.S. 586 [57 L.Ed.2d 973, 98 S.Ct. 2954], and Eddings v. Oklahoma (1982) 455 U.S. 104 [71 L.Ed.2d 1, 102 S.Ct. 869], the United States Supreme Court held that the trier of fact may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record... that the defendant proffers as a basis for a sentence less than death” (Lockett, supra, at p. 604 [57 L.Ed.2d at p. 990], italics in original (plur. opn. by Burger, C.J.); accord, Eddings, supra, at p. 110 [71 L.Ed.2d at p. 8]).
After review, we cannot conclude that the potentially misleading language of former factor (k) was misleading in this case. In argument defense counsel Charvet told the jurors that they could and should consider such evidence and weigh it in mitigation of the penalty of death. Also, prosecutor Norris said to them, “Well, let me tell you, in terms of this penalty, you are to consider all the circumstances of his background.” Indeed, in view of the foregoing, we believe that the jurors were led to consider the criminal as well as the crime and to weigh defendant’s background and character evidence in mitigation. In conclusion, on this record we find no Easley “factor (k)” error.
6. Failure to Instruct Sua Sponte on Sympathy
Defendant contends in substance that the court erred when it failed to instruct the jurors sua sponte that they could consider sympathy in choosing the appropriate penalty.
We believe that the court adequately instructed the jurors on this matter. (See part IV C 5, ante.) Defendant may be understood to claim that the court should have amplified on or explained its instruction. But in the absence of a request, it was under no obligation to do so. (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414 P.2d 366].)
7. Brown Error
Defendant contends that former CALJIC No. 8.84.2, incorporating the mandatory sentencing language of section 190.3, may have misled the jurors to his prejudice as to the scope of their sentencing responsibility and discretion in violation of the constitutional principles set forth in People v. Brown (1985) 40 Cal.3d 512, 538-544 [220 Cal.Rptr. 637, 709 P.2d 440], reversed on other grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837].
In Brown we held that section 190.3, as construed therein, was not unconstitutional. (40 Cal.3d at pp. 538-544.) In conformity with settled constitutional principles, we interpreted the statutory language to require jurors to make a moral assessment on the basis of the character of the individual defendant and the circumstances of the crime and thereby decide which penalty is appropriate in the particular case. (Id. at pp. 540-541.)
Although in Brown we upheld the constitutionality of section 190.3, we nevertheless recognized that when delivered in an instruction the provision’s mandatory sentencing language might mislead jurors as to the scope of their sentencing discretion and responsibility. (40 Cal.3d at p. 544, fn. 17.) Specifically, a juror might reasonably understand that language to define the penalty determination as “simply a finding of facts” (id. at p. 540) or “a mere mechanical counting of factors on each side of the imaginary ‘scale’ ” (id. at p. 541). A juror might also reasonably understand the language to require him to vote for death if he finds that the evidence in aggravation outweighs the evidence in mitigation—even if he determines that death is not the appropriate penalty under all the circumstances. (See id. at pp. 540-544.)
We turn now to the case at bar. After review, we cannot conclude that the jurors may have been misled by former CALJIC No. 8.84.2. Neither concern expressed in Brown was substantially implicated. For example, both prosecutor Norris and defense counsel Charvet called on the jurors to make their penalty determination as a moral assessment of defendant’s personal culpability, Norris arguing for death and Charvet for life. Neither “counted” the sentencing factors or referred in any way to the mandatory sentencing language. Rather, we believe that the jurors were adequately informed as to what they were to do, and how they were to proceed, in the determination of penalty. In conclusion, on this record we find no Brown error.
8. Failure to Instruct Sua Sponte on “Burden of Proof’ in Determining Penalty
Defendant contends that the court erred when it failed to instruct the jurors sua sponte that they might return a verdict of death only if they were persuaded beyond a reasonable doubt that the evidence in aggravation outweighed the evidence in mitigation and that death was the appropriate penalty. In support he argues that the due process clause requires such an instruction. We rejected the substance of this claim, however, in People v. Rodriguez (1986) 42 Cal.3d 730, 778, footnote 15 [230 Cal.Rptr. 667, 726 P.2d 113].
D. Attack on the Constitutionality of the 1978 Death Penalty Law
Defendant contends that the 1978 death penalty law is unconstitutional. We rejected the substance of this claim in People v. Rodriguez, supra, 42 Cal.3d at pages 777-779.
V. Disposition
For the reasons stated above, we conclude that nine of the ten multiple-murder special-circumstance findings must be set aside on the ground that only one such special circumstance could properly have been alleged. We conclude that in all other respects the judgment must be affirmed.
It is so ordered.
Lucas, C. J., Panelli, J., Arguelles, J., Eagleson, J., and Kaufman, J., concurred.
In his concurring opinion in Cuyler v. Sullivan, supra, 446 U.S. 335, 351-353 [64 L.Ed.2d 333, 348-349], Justice Brennan presents analysis that seems to imply that a defendant may not raise a claim of a Wood violation when the court has (1) inquired into the possibility of a conflict of interest, (2) warned him of the risks of conflicted representation, and (3) ascertained that he voluntarily and intelligently chose such representation. In this case we can find no such “waiver”: the trial court plainly failed to satisfy Justice Brennan’s second and third requirements.
Nor—contrary to the position Justice Broussard takes in his concurring and dissenting opinion—is vacation required in this case. As the analysis above reveals, the record clearly permits meaningful appellate review of the crucial issue of adverse effect. Whether or not it permits such review of the issue of actual conflict is immaterial here. To establish his claim, defendant must show both actual conflict and adverse effect. This he cannot do: he cannot show adverse effect. Therefore, vacation and remand for a hearing on actual conflict would be empty.
Although we have concluded that the trial court was not required to inquire about the possibility of a conflict of interest arising from the alleged literary-rights fee agreement because it was provided with no evidence of a conflict situation, we believe that in the future trial courts should follow the safest course and make an inquiry whenever they have any reasonable suspicion of the possibility of a conflict: by acting thus, they will protect the rights of the criminal defendant to the fullest extent practical and thereby avoid the risk of unnecessary reversals on appeal.
Defendant also argues as follows: through the force of its promise—as prosecutor Norris himself admitted below—the prosecution was prohibited from presenting evidence of Sean King’s body, which it had found by using his statements; therefore, through the force of its promise it was also prohibited from presenting the testimony of Munro and Miley. We agree that the prosecution was barred from introducing evidence of King’s body: it had admittedly exploited defendant’s statements to discover its location. But we cannot agree that it was barred from calling Munro and Miley as witnesses: as stated above, the record contains credible evidence that it had not exploited defendant’s statements to obtain their agreement to testify, and contains no evidence to the contrary.
The instruction was as follows. “In determining which penalty is to be imposed on the defendant, you shall consider all of the evidence which has been received during any part of the trial of this case. You shall consider, take into account and be guided by the following factors, if applicable:
“(a) The circumstances of the crimes of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal conduct.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
“(g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or the affects [wc] of intoxication.
“(i) The age of the defendant at the time of the crime.
“(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.”
The instruction was in relevant part as follows. “It is now your duty to determine which of the two penalties, death or confinement in the state prison for life without possibility of parole, shall be imposed on defendant.
“After having heard all of the evidence, and after having heard and considered the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.
“If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole.”
Defendant also asserts that the equal protection clause requires the instruction. But since he does not present adequate argument on the point, we reject the claim as not properly raised.
In view of the theories presented and the evidence introduced, the jury’s guilt phase verdicts imply findings that defendant actually killed, and intended to kill, the victims (Enmund v. Florida (1982) 458 U.S. 782, 788-801 [73 L.Ed.2d 1140, 1145-1154, 102 S.Ct. 3368]). Having reviewed the record in its entirety, we conclude that these findings are amply supported by the evidence and adopt them as our own. Accordingly, the imposition of the penalty of death on defendant does not violate the Eighth Amendment. (Cabana v. Bullock (1986) 474 U.S. 376, 386 [88 L.Ed.2d 704, 716-717, 106 S.Ct. 689].)
[OPINION BY BROUSSARD, J. type=dissent]
BROUSSARD, J.
I concur in the reversal of eight of the nine multiple-murder special-circumstance findings. As to the affirmance of defendant’s convictions, the remaining special circumstances and perforce the penalty, I dissent.
Defendant requested that his appointed attorney be replaced by retained counsel whom the trial court at one point found to be burdened with a conflict of interest by reason of counsel’s prior contact with a key prosecution witness. (See maj. opn., ante, at p. 829.) In addition, there were clear indications that defendant’s retainer agreement included a literary-rights clause in favor of counsel, placing squarely before the court the possibility of yet a second conflict of interest. Absent further inquiry by the court, and an express and effective waiver by defendant of his constitutional right to unconflicted counsel, the court had a duty to deny defendant’s motion for substitution of counsel burdened with such conflicts of interest. (See Wood v. Georgia (1981) 450 U.S. 261, 271-274 [67 L.Ed.2d 220, 230-232, 101 S.Ct. 1097]; see also Wheat v. United States (1988) 486 U.S. 153, _ [100 L.Ed.2d 140, 149-152, 108 S.Ct. 1692].) No such waiver was obtained, and the court failed to fully explore the potential for conflict on either score; yet inexplicably it granted defendant’s motion to substitute counsel and permitted the trial to proceed.
In pages of admirable scholarship, the majority set out the law applicable to a claim on appeal that defendant’s counsel was burdened by an actual or potential conflict of interest. I have no quarrel with this learned exegesis. The majority go on to roundly defeat the People’s multilayered claim that defendant waived the conflict. Again, I have no quarrel. Yet when we come to the application of the law to the facts, the majority stumble and fall. Under established principles of law (Wood v. Georgia, supra, 450 U.S. at pp. 272-274 [67 L.Ed.2d at pp. 230-232]; United States v. Winkle (10th Cir. 1983) 722 F.2d 605, 608-612; Brien v. United States (1st Cir. 1982) 695 F.2d 10, 14-15), defendant’s convictions must be vacated and remanded to the trial court for a determination (1) whether a literary-rights agreement actually existed and (2) whether there was an actual conflict of interest arising from such agreement and from counsel’s prior relationship with witness Munro adversely affecting counsel’s performance such as to require reversal.
I am well aware of the pain and horror that this defendant has inflicted on so many. I too feel that his crimes are so shocking and heinous that it seems an outrage to question the lawfulness of the verdict in any way. Yet I am convinced that an impartial application of the law to the facts requires us to remand the matter to the trial court for an examination whether counsel operated under an actual conflict of interest which adversely affected his performance.
The majority find as to the possible existence of a literary-rights agreement that “[t]he court cannot be deemed to have known, or to have had reason to know, of the possibility of a conflict in this regard.” (Maj. opn., ante, at p. 838.) They hold that “a court can be held to have knowledge or notice of the possibility of a conflict only when ... it is provided with evidence of the existence of a conflict situation.. .” (id. at p. 838, italics in original, citing Wood, supra, 450 U.S. 261), and that no such “evidence” was present here.
It is difficult to understand what “evidence” the majority would require. The general rule has been that the duty of inquiry arises when the court “knows or reasonably should know” that a potential conflict exists. (See Cuyler v. Sullivan (1980) 446 U.S. 335, 347 [64 L.Ed.2d 333, 346, 100 S.Ct. 700]; see also United States v. Burney (10th Cir. 1985) 756 F.2d 787, 791; United States v. Winkle, supra, 722 F.2d at p. 611; Brien v. United States, supra, 695 F.2d at p. 15, fn. 10.) Wood itself established a duty to inquire into the potential for conflict when there is simply an “appearance” or “suggestion” of conflict. (Wood, supra, 450 U.S. at pp. 272, 273 [67 L.Ed.2d at pp. 230-231].) In Wood, the potential conflict was latent in the proceedings; the high court held that the trial court should have suspected a potential for conflict from defense counsel’s strategy in the case.
The defendants in Wood were employees at a pair of retail pornography establishments. They were convicted of distributing lewd materials and given heavy fines, the payment of which formed a condition of their probation. When defendants failed to pay the fines, their probation was revoked. Defense counsel leveled a constitutional attack against the statute under which defendants were convicted, rather than pleading for leniency. The court knew that the defendants’ lawyer, who had also represented them at trial, had been hired by their employer, and that the defendants had believed that their employer would also be paying their fines. The state’s representative requested that the court inquire into the possibility of a conflict of interest arising from defense counsel’s dual loyalties, but no such inquiry was made. The United States Supreme Court held that “the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further” (450 U.S. at p.272 [67 L.Ed.2d at pp. 230-231], italics & fn. omitted), and remanded the case “to determine whether the conflict of interest that this record strongly suggests actually existed... .” (Id. at p. 273 [67 L.Ed.2d at p. 231].)
The trial court in this case was on notice that an indigent defendant in a notorious case had retained counsel, who refused to deny the charge that the retainer included a literary-rights agreement. When the court tentatively questioned defendant’s retained counsel about the existence of such an agreement, he gave answers which, while nonresponsive in the strict sense, were as clearly suggestive of the existence of a possible conflict as the facts before the court in Wood. Yet the court inquired no further. To say that these facts merely “lay a basis for speculation” as to the existence of a literary-rights agreement (maj. opn., ante, at p. 838) is to dodge the clear implications of the Wood holding.
A potential conflict of interest implicates more than just the defendant’s interest in effective assistance of counsel. The Supreme Court has recently recognized that a trial court justifiably may refuse to accept a defendant’s waiver of his attorney’s potential conflict of interest, in order to vindicate the state’s interest in just verdicts, in preserving the appearance of fairness, and in preventing unethical practices by attorneys. (Wheat v. United States, supra, 486 U.S. 153,_ [100 L.Ed.2d at pp. 149, 151].) The court recognized that potential conflicts may be difficult to evaluate in the murky light of pretrial hearings, but maintained that “a court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflict warrants [different] counsel.” (Id. at p._ [100 L.Ed.2d at p. 149].) Under the circumstances of this case, the People’s charge that defense counsel’s retainer was in part a literary-rights agreement was utterly plausible. The state’s interest in the substance and appearance of justice, as well as its interest is preventing unethical practices by attorneys, required a full inquiry into the existence of such an agreement.
With respect to counsel’s prior relationship with witness Munro, the majority concede that the trial court committed error under Wood (supra, 450 U.S. 261) by ordering the substitution of retained counsel in place of defendant’s appointed counsel without any attempt to obtain a waiver from defendant of his constitutional right to conflict-free counsel. The majority misinterpret Wood, however, to require that even when a trial court has failed to inquire fully into a potential conflict, unless defendant can show from the record that counsel’s conflict of interest adversely affected counsel’s performance, his convictions must stand. (Maj. opn. at p. 843.) “[A]ssum[ing] for argument’s sake” that counsel had an actual conflict of interest (maj. opn. at p. 843), the majority declare themselves unable to “find or even conjecture any failing on Charvet’s part that could be attributed to any information he or his partner Stewart could conceivably have received from Munro when they discussed the possibility of representation.” (Id. at p. 843.) The reason that the majority cannot fully determine whether there was in fact an actual conflict arising from counsel’s representation of Munro is that although the trial court determined that counsel had a brief contact with Munro, it failed to inquire into and resolve the factual disputes raised by the district attorney and counsel regarding the extent to which this representation presented a potential for a conflict of interest affecting counsel’s representation of defendant. In fact, the court seemed more concerned that counsel’s contact with Munro presented some unfairness to the People, who intended to rely upon him as a central prosecution witness.
When the trial court fails to inquire into an apparent conflict of interest and fails to resolve the question whether there is an actual conflict, it leaves behind a record which is inadequate for a determination whether there was an actual conflict which adversely affected counsel’s representation of the defendant. The lesson of Wood v. Georgia, supra, 450 U.S. 261, is that when such a defective record prevents meaningful appellate review, the reviewing court should vacate the judgment below and remand the matter to the trial court for a hearing to determine whether there was an actual conflict which adversely affected counsel’s representation of the defendant. I would therefore vacate all counts and remand to the trial court to determine (1) whether there was a literary-rights agreement between defendant and his retained counsel, and (2) whether the conflict of interest resulting from such agreement, if it existed, and from counsel’s prior relationship with witness Munro adversely affected counsel’s performance.
Appellant’s petition for a rehearing was denied March 2, 1989.
When questioned by the court about the existence of a literary-rights agreement between defendant and himself, counsel would neither confirm nor deny it. He argued in defense of such agreements, however, and stated that the prosecution “has absolutely no right to go into my fee arrangement... .” (See maj. opn., ante, at pp. 828-829.)
It is true that unlike the trial court in Wood, supra, 450 U.S. 261, the court below did not know what arguments counsel planned to make on defendant’s behalf and thus could not know whether counsel’s manner of representation would in some way indicate the existence of an actual conflict. This is due simply to the timing of defendant’s request to substitute counsel, however, and does not diminish the strength of the indications that such a conflict was possible. As the high court pointed out in Wheat, the court normally must examine a potential conflict of interest “in the murk[y] pre-trial context when relationships between parties are seen through a glass, darkly.” (Wheat, supra, 486 U.S. at p._ [100 L.Ed.2d at p. 151].)
Indeed, they defend the point vigorously and at length. (See maj. opn. at pp. 838-841.)
The majority’s discussion on this point is flawed by its failure to consider vacation and remand as an alternative to outright reversal. Such an omission is puzzling since this was the disposition in Wood itself, and was also central to the discussion of that case in United States v. Winkle, supra, 722 F.2d at pages 611-612 and Brien v. United States, supra, 695 F.2d 10, 15, footnote 10, cited by the majority.
William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees. William George BONIN, Petitioner-Appellant, v. Daniel VASQUEZ, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
Nos. 92-56299, 93-99000.
United States Court of Appeals, Ninth Circuit.
July 16, 1993.
Michael H. Roquemore,. Deputy State Public Defender, San Francisco, CA, for petitioner-appellant.
Esteban Hernandez, Supervising Deputy Atty. Gen., San Diego, CA, for respondents-appellees.
Before: WALLACE, Chief Judge, BRUNETTI and Alex KOZINSKI, Circuit Judges.
ORDER
In these consolidated cases, Bonin, a California state prisoner facing a sentence of death, appeals from the district court’s denial of his two petitions for habeas corpus relief pursuant to 18 U.S.C. § 2254. During the pendency of these appeals Bonin’s appointed counsel, the California State Public Defender (Public Defender), filed a request to withdraw as attorney of record which we denied in an unpublished order. The Public Defender subsequently filed a motion for reconsideration, arguing that, because its own ineffectiveness may constitute grounds for relief, conflict of interest concerns mandate the appointment of new counsel. After additional briefing and further review, we adhere to our original denial of the Public. Defender’s request to withdraw, and we deny the motion for reconsideration.
I
After a jury trial in Los Angeles, Bonin was sentenced on January 20, 1982, to death for the first degree murders of ten victims. On August 22, 1983, he was sentenced to death in Orange County for the first degree murders of four victims. On July 12, 1990, after his direct appeals failed and his requests for state habeas corpus relief were denied, Bonin filed a petition for a writ of habeas corpus in federal district court arising out of his Orange County convictions and sentence (Orange County case), and on February 7, 1991, from his Los Angeles convictions and sentence (Los Angeles case). The two cases, although not consolidated in the district court, were before the same district judge.
On April 19, 1991, following the Supreme Court’s decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (McCleskey) (clarifying standards applicable to district court review of claims raised in subsequent habeas corpus petitions), the district court issued an order instructing Bonin to file any additional claims in either or both cases pending before the court by May 13, 1991. On May 17, 1991, Bonin filed a “First Amendment” to his Orange County petition, seeking to add eight new claims; the district court dismissed these additional claims, holding that they constituted an abuse of the writ. The court then denied Bonin’s motion for reconsideration of the. order dismissing the “First Amendment” in the Orange County case.
No attempt was made to add any claims to the Los Angeles case until December 24, 1991, when Bonin filed a motion proposing to add five new claims. On January 7,1992, the district court dismissed Bonin’s motion to amend-the Los Angeles petition because (1) over seven months had passed since the May 13,1991, deadline with no justification for the delay, and (2) the court held that the five “new” claims were identical to claims Bonin previously had attempted unsuccessfully to add to the Orange County case.
Later in January, the district court conducted a three day evidentiary hearing in both cases. The court issued its Order and Opinion denying Bonin’s Orange County petition on July 20, 1992. On August 18, 1992, Bonin filed a “Motion to Amend [Both] Petitions And For Belief From Judgment” setting forth six new claims that had never before been presented either on direct appeal, in state collateral proceedings, or to the district court. The court construed this pleading differently in the two cases: in the Orange County case, because the petition had already been denied, as a Federal Rule of Civil Procedure 60(b) motion for relief from judgment; in the Los Angeles ease, because no final judgment had yet been entered, as a Federal Rule of Civil Procedure 15(a) motion to amend the petition.
On September 29, 1992, the district court issued an order stating that it would treat the Rule 60(b) motion in the Orange County case as tantamount to a second petition, the new claims were abusive, and Bonin would have to satisfy McCleskey’s “cause and prejudice” test before it would reach the merits of the claims. After Bonin had an opportunity to submit a supplemental brief on whether he could satisfy this test, the district court, on October 6, 1992, denied the Orange County 60(b) motion. On November 9, 1992, the district court denied the Rule 15(a) motion in the Los Angeles case and on the same day issued its Order and Opinion denying Bonin’s Los Angeles petition. Bonin has appealed from the district court’s orders in both cases.
II
Because final judgment already had been entered in the Orange County case-when Bonin first sought to raise six new issues, the district court properly construed Bonin’s motion as a request for relief from the judgment pursuant to Rule 60(b). The district court was also correct in treating Bonin’s motion in the Los Angeles case as an untimely Rule 15(a) motion to amend the pleadings. The alleged ineffectiveness in the Orange County case relates to the question whether Bonin can establish cause .under McCleskey for bringing six abusive claims. In the Los Angeles ease, counsel’s incompetence is alleged to be relevant to the determination whether the district court abused its discretion in denying the motion to amend. Because the two cases were in significantly different postures when the issue of present counsel’s ineffectiveness was first presented, we will, address the request to withdraw as it relates to each case separately-:
A.
Along with Bonin’s supplemental brief on cause and prejudice filed with the district court in the Orange County case, the Public Defender asked to be relieved as counsel of record because of a conflict of interest stemming from the possibility that its own ineffectiveness in representing Bonin during his habeas proceedings might constitute the requisite “cause” for Bonin’s failure to raise the six new claims in a timely fashion. The" district court rejected the Public Defender’s' request, relying on Coleman v. Thompson, — U.S. -,----, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991) (Coleman), for the proposition that attorney error establishes cause only if it rises to the level of ineffective assistance of counsel at a time when a petitioner is constitutionally entitled to counsel. The Public Defender had alleged the possibility that it may have been ineffective in pursuing either Bonin’s state or federal habeas petitions. In denying counsel’s request to withdraw in the Orange County case, the district court ruled that because “[t]here is no constitutional right to an attorney in state post-conviction proceedings,” id. — U.S. at -, 111 S.Ct. at 2566, or in federal habeas corpus proceedings, McCleskey, 499 U.S. at ---, 111 S.Ct. at 1470-71, citing Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (Finley), any alleged ineffectiveness on the part of the Public Defender could not constitute the requisite “independent constitutional violation,” Coleman, — U.S. at -, 111 S.Ct. at 2567, needed to establish cause. The Public Defender now asks us to reject the district court’s facially sound reasoning and grant its request to withdraw.
We were faced with a somewhat similar situation in Harris v. Vasquez, 949 F.2d 1497 (9th Cir.1991) (Harris), cert. denied, — U.S.-, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). Harris had argued that the causefor his failing to raise a mental health claim in his first habeas petition was ineffectiveness on the part of his appointed counsel. Harris’s attorneys had filed motions to withdraw to permit an investigation into their possible ineffectiveness in representing Harris during his first habeas corpus petition. We denied the motions based on the same reasoning relied on by the district court in this case: because there is no constitutional right to effective counsel during habeas corpus proceedings, “Harris’s habeas counsel could not have been constitutionally ineffective as a matter of law.” Id. at 1513 n. 13. The Public Defender contends that Harris is either wrong or not on point. The Public Defender cannot argue Harris was wrongly decided to this three-judge panel as Harris can be overruled only by an en banc court, a Supreme Court decision, or subsequent legislation. United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989). We can, however, decide whether Harris governs this ease.
The Public Defender first argues that McCleskey is inapplicable in the Orange County case because Bonin had not filed a second habeas petition, but merely a motion for relief from judgment pursuant to Rule 60(b); thus, according to the Public Defender, the reasoning of Harris has no relevance. We disagree and join the Fourth, Eighth and Eleventh Circuits in holding that because a Rule 60(b) motion following the entry of final judgment in a habeas ease raises policy concerns similar to those implicated by a second petition, it is subject to the same cause and prejudice standard. See Bolder v. Armontrout, 983 F.2d 98, 99 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1070, 122 L.Ed.2d 497 (1993); Jones v. Murray, 976 F.2d 169, 172 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 27, 120 L.Ed.2d 951 (1992); Lindsey v. Thigpen, 875 F.2d 1509, 1511-12, 1515 (11th Cir.1989); but cf. May v. Collins, 961 F.2d 74, 75-76 (5th Cir.) (addressing merits of 60(b) motion without applying McCleskey standard), cert. denied, — U.S. -, 112 S.Ct. 1925, 118 L.Ed.2d 533 (1992).
The Public Defender next contends that Harris’s statement that “[attorney error will constitute cause ... only, when it constitutes an independent sixth amendment violation,” 949 F.2d at 1513, citing Coleman, — U.S. at ----, 111 S.Ct. at 2566-68, sweeps too broadly, for several reasons. First, the Public Defender relies on Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986) (Chaney), cert. denied, 481 U.S. 1023, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), in support of the proposition that our cases establish a constitutional right, rooted in the Fifth Amendment’s Due Process Clause, to effective appointed counsel in certain complex habeas cases. The Public Defender misconstrues Chaney, in which we stated that
the Sixth Amendment right to counsel does not apply in habeas corpus actions. Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations.
Id. at 1196 (footnote omitted), citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir.1970) (per curiam); and Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir.1965), cert. denied, 382 U.S. 996, 86 S.Ct. 582, 15 L.Ed.2d 483 (1966); see also Hatfield v. Bailleaux, 290 F.2d 632, 635 (9th Cir.), cert. denied, 368 U.S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 (1961); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889, 79 S.Ct. 131, 3 L.Ed.2d 116 (1958). These cases do not establish a “due process right to counsel.” Rather, Char ney addresses the question whether a district court abuses its discretion in denying an indigent petitioner’s request for appointed counsel pursuant to 18 U.S.C. § 3006A(g), which gives the district court discretion to appoint counsel for indigents when it determines “that the interests of justice so require.” See 801 F.2d at 1196. The answer Chaney gives is that the district court abuses its discretion when the case is so complex that due process violations "will occur absent the presence of counsel. See id. Chaney does not purport to declare that due process demands the appointment of counsel; it merely sets forth a standard for determining when section 3006A(g) so requires.
Clearly, there is no constitutional right to counsel bn habeas. See Harris, 949 F.2d at 1513-14; Finley, 481 U.S. at 555, 107 S.Ct. at 1993. There is, however, a right to due process. Under Chaney the absence or ineffectiveness of counsel doe's not in and of itself constitute a due process violation. Chaney indicates only that discretion is abused when appointment of counsel is “necessary to prevent due process violations” from occurring. 801 F.2d at 1196. If Bonin can demonstrate that his proceedings before the district court violated due process, he may be entitled to relief. But whether his right to due process was violated is an independent inquiry from whether his counsel was effective. In some complex cases where the district court abused its discretion in not appointing counsel under Chaney, a due process violation may occur on habeas that could have been prevented by effective counsel. However, in other cases, while no counsel was appointed or appointed counsel was ineffective, a habeas proceeding could still be conducted without any due process violations. The Public Defender’s reading of Chaney is strained: it is in essence an attempt to include Sixth Amendment rights within the Due Process Clause in complex habeas cases. The Public Defender’s argument is incorrect. Because our due process inquiry does not depend upon an analysis of the Public Defender’s effectiveness, there is no threat that a conflict of interest will arise in the course of that inquiry.
The Public Defender also directs-our attention to language in Coleman, — U.S. at ---, 111 S.Ct. at 2567-68, that “compels the conclusion” that ineffective representation during state postconviction proceedings will constitute an independent violation of the Sixth Amendment, enforceable against the states through the Due Process Clause of the Fourteenth Amendment, where state collateral review is the first place a petitioner can present an effective constitutional-challenge to his or her conviction; for example, where a state permits ineffective assistance claims to be brought only in post-conviction proceedings. The Public Defender apparently contends that Bonin had a Sixth Amendment right to counsel' during his state habeas proceedings because that was the first forum in which he could allege constitutional ineffectiveness on the part of trial counsel. Coleman, however, does not “compel the conclusion” that such a right exists. Rather, the Supreme Court merely remarked that “[f]or Coleman to prevail, ... there must be an exception to the rule [that there is no right to counsel in state collateral proceedings] in those eases where state collateral review is the first place a prisoner can present a challenge to his conviction.” Id. — U.S. at -, 111 S.Ct. at 2567. The Court declined to address this question on the facts of the ease before it. Id. — U.S. at --- —, 111 S.Ct. at 2567-68. Furthermore, the Court explicitly stated that “[t]he effectiveness of Coleman’s counsel before [the state habeas] court is not at issue here.” Id.
There is a practical reason why we will not follow the Public Defender’s recommendation. The actual impact of such an exception would be the likelihood of an infinite continuum of litigation in many criminal cases. If a petitioner has a Sixth Amendment right to competent counsel in his or her first state postconviction proceeding because that is the first forum in which the ineffectiveness of trial counsel can be alleged, it follows that the petitioner has a Sixth Amendment right to counsel in the second state postconviction proceeding, for that is the first forum in which he or she can raise a challenge based on counsel’s performance in the first state postconviction proceeding. Furthermore, because the petitioner’s first federal habeas petition will present the first opportunity to raise the ineffective assistance of counsel in the second state postconviction proceeding, it follows logically that the petitioner has a Sixth Amendment right to counsel in the first federal habeas proceeding as well. And so it would go. Because any Sixth Amendment violation constitutes cause, McCleskey, 499 U.S. at -, 111 S.Ct. at 1470, federal courts would never be able to avoid reaching the merits any ineffective-assistance claim, regardless of the nature of the proceeding in which counsel’s competence is alleged to have been defective. As a result, the “exception” would swallow the rule. To obviate such an absurdity, we hold that the protections of the Sixth Amendment right to - counsel do not extend to either state collateral proceedings or federal habeas corpus proceedings. See Coleman, — U.S. at -, 111 S.Ct. at 2568; Finley, 481 U.S. at 555, 107 S.Ct. at 1993; Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 2770, 106 L.Ed.2d 1 (1989) (Giarratano); McCleskey, 499 U.S. at ---, 111 S.Ct. at 1470-71.
Next, the Public Defender points to dicta in Coleman to the effect that where the federal Constitution imposes on the state a responsibility to ensure that a petitioner was represented by competent counsel, the state must bear the cost of any resulting default. - U.S. at -, 111 S.Ct. at 2567. Although states are not required by the federal Constitution to provide counsel to criminal defendants beyond the first appeal as of right, Ross v. Moffitt, 417 U.S. 600, 610-11, 614-16, 94 S.Ct. 2437, 2443-44, 2445-46, 41 L.Ed.2d 341 (1974); Finley, 481 U.S. at 555-56, 107 S.Ct. at 1993, the Public Defender argues that because California law required that Bonin be represented by competent counsel during his state postconviction proceedings, see People v. Barton, 21 Cal.3d 513, 519 & n. 3, 146 Cal.Rptr. 727, 579 P.2d 1043 (1978) (Barton); People v. Shipman, 62 Cal.2d 226, 231, 42 Cal.Rptr. 1, 397 P.2d 993 (1965) (Shipman), and the Public Defender is itself a state agency, the state must be held responsible for its failure to provide Bonin with competent counsel during state habeas proceedings, on a theory of “state interference.” The Public Defender is wrong for two reasons.
First, California law is not relevant. The Coleman dicta on which the Public Defender relies addresses only situations in which federal constitutional principles mandate that states provide counsel. See — U.S. at -, 111 S.Ct. at 2567. Second, it is not “California law” itself that has, in the past, extended a right to competent counsel to state habeas petitioners, but California’s interpretation of the Fourteenth Amendment to the United States Constitution. Barton relied on Ship-man for the proposition that “the principles of the [United States Supreme Court’s] Fourteenth Amendment cases apply whenever a state affords a direct or collateral remedy to attack a criminal conviction.” Barton, 21 Cal.3d at 519 n. 3, 146 Cal.Rptr. 727, 579 P.2d 1043 (internal quotation omitted). In Shipman, the California Supreme Court reasoned:
Although the United States Supreme Court has not held that due process or equal protection requires appointment of counsel to present collateral attacks on convictions, it has held that counsel must be appointed to represent the defendant on his first appeal as of right. Since the questions that may be raised on [collateral attack] are as crucial as those that may be raised on direct appeal, [Supreme Court precedent] precludes our holding that appointment of counsel in [collateral] proceedings rests solely in the discretion of the court.
62 Cal.2d at 231, 42 Cal.Rptr. 1, 397 P.2d 993 (citations omitted). So matters stood in 1965, when Shipman was decided, and 1978, the year of Barton. Since then, however, the Supreme Court has decided Finley, which firmly established that there is no federal constitutional right to an attorney in state posteonviction proceedings, 481 U.S. at 555, 107 S.Ct. at 1993, and Giarratano, 492 U.S. at 10, 109 S.Ct. at 2770, which extended Finley to capital cases. On this point,- Ship-man and Barton cannot control.
The Public Defender also relies on Bonin’s “due process rights under California law to competent counsel in state death penalty ha-beas corpus proceedings,.” the violation of which “provides the independent constitutional violation required by Coleman.” But the California cases on which the Public Defender relies, Shipman and its progeny, do not create a California state law right to counsel; rather, they interpret the federal Constitution as providing such a right. As we have just demonstrated, this reasoning cannot be reconciled with recent Supreme Court doctrine. Even if California’s constitutional guarantees were interpreted to grant Bonin a right to counsel in state collateral proceedings, the deprivation of that state-law right would not be the “independent constitutional violation” of Coleman, because Coleman referred only to violations of the federal constitution. See — U.S. at ---, 111 S.Ct. at 2566-68.
Lastly, the Public Defender argues that the Sixth Amendment right to counsel extended to Bonin’s first state habeas petition because, pursuant to California procedure, this petition was filed at the same time as the first appeal as of right, to which the Sixth Amendment protections undeniably attach. See, e.g., People v. Pope, 23 Cal.3d 412, 426-27 n. 17, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) (stating appropriate procedure for bringing ineffective-assistance claim in state habeas petition). The contemporaneousness of filing does not cause the constitutional guarantees present on direct appeal to be transferred to the state habeas proceedings as well, where they are otherwise inapplicable. Bonin never contended before the district court that counsel’s ineffectiveness on direct appeal itself may have been the “cause” for his failure to raise the six new claims at an earlier date. Bonin’s supplemental brief responsive to the district court’s order that he must satisfy McCleskey’s cause requirement stated only that “the performance of ... counsel at the time of the state habeas corpus proceedings need[s] to be examined in light of the McCleskey standard” (emphasis added). As we have just reiterated, no constitutional right to competent counsel extended to this proceeding. It may be that the Public Defender is attempting to argue in its supplemental brief, for the very first time, that its performance as counsel on Bonin’s direct appeal might have been inadequate. If so, we will not consider it because it was never presented to the district court in resolving the merits of Bonin’s appeal from the Orange County case. Cf. Willard v. California, 812 F.2d 461, 465 (9th Cir.1987) (Willard) (court of appeals declines to consider claims not presented in habeas petition).
As in Harris, the Public Defender has identified no point at which its alleged incompetence could have amounted to a constitutional violation. Thus, its ineffectiveness is no basis for any finding of cause to excuse the abusive claims presented in the Rule 60(b) motion, and under Harris the Orange County case presents no grounds for granting the Public Defender’s request to withdraw. See 949 F.2d at 1513 & n. 13.
B.
Because no final judgment had been rendered at the time' of filing, the district court correctly did not rely on McCleskey when it denied Bonin’s. Los Angeles motion, as the issue of cause is not relevant. It may be argued that the district court abused its discretion in denying Bonin’s motion to amend, because the Public Defender may be placed in the ethically troubling position of having to litigate the question of its own competence. But we are not faced with that issue. As we have stated, the Public Defender has identified two arenas in which its performance may have been sub-par: (1) Bo-nin’s pursuit of collateral relief in the California courts and (2) the federal habeas eases from which he now.appeals. It will be unnecessary for us to consider counsel’s performance in either forum to decide these appeals.
The Public Defender represents that Bonin is likely to raise the incompetence of his state and federal habeas counsel in seeking a remand of the Los Angeles case. But such claims are not properly raised on direct appeal. United States v. Robinson, 967 F.2d 287, 290 (9th Cir.1992). In order to examine whether counsel’s performance was egregious enough to amount to a deprivation requiring reversal, it is necessary to develop a record concerning counsel’s actions, decisions, and motives during the proceedings in question. It is impossible to develop the requisite record on direct appeal, as this court cannot engage- in such a fact-drenched inquiry.
True, if the record on appeal is sufficiently developed to permit review and determination of the -issue, or if the legal representation is so inadequate that it obviously violates the Sixth Amendment, we have discretion to consider the claim. Id. Nevertheless, the ineffective-assistance issues supposedly present in this case are not straightforward. Nor' does the record disclose any obvious Sixth Amendment violation, since the Sixth Amendment is inapplicable to habeas representation, nor an obvious due process violation, since we have held that the Due Process Clause is not the appropriate vehicle for pursuing ineffective-assistance claims. Furthermore, many questions remain concerning the Public Defender’s decision to delay the presentation of the six new claims. For example, the record before us does not establish whether this delay came about by accident or stratagem. Finally, we observe that present counsel’s alleged ineffectiveness was never even raised before the district court in the Los Angeles case as a reason for granting Bonin’s motion to amend. We will not consider this issue on which the district court never had an opportunity to rule. See Willard, 812 F.2d at 465.
Ill
Bonin has no ineffective-assistance claims relevant to the merits of either of these appeals. As such, there is no possibility that a conflict of interest stemming from such claims will arise during the course of our proceedings. The Public Defender’s motion for reconsideration of its request to withdraw is, therefore, denied.
MOTION DENIED.
William George BONIN, Petitioner-Appellant, v. Arthur CALDERON, as Warden of San Quentin State Prison; James Rowland, Director of the California Department of Corrections, Respondents-Appellees.
Nos. 92-56299, 93-99000.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 5, 1994.
Decided June 28, 1995.
Emry J. Allen and Michael H. Roquemore, Deputy State Public Defenders, San Francisco, CA, for petitioner-appellant.
Esteban Hernandez, Supervising Deputy Atty. Gen., San Diego, CA, for respondentsappellees.
Before: WALLACE, Chief Judge, BRUNETTI and KOZINSKI, Circuit Judges.
[OPINION BY WALLACE, Chief Judge: type=majority]
WALLACE, Chief Judge:
William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court’s denial of his two petitions for writ of habeas corpus relief under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291, 2253. We affirm.
I
Between 1979 and 1980, Bonin committed a string of shockingly brutal murders in Southern California. As a result of his activities, Bonin became known as the “Freeway Killer.” Although the details of each murder vary and need not be repeated here, they shared a number of common features. In general, Bonin would pick up boys between the ages of 12 and 19 years. After engaging in various forms of homosexual activity with the boys, Bonin would murder them. The victims were usually killed by strangulation. The bodies of the victims exhibited signs that they had been beaten around the face and elsewhere, including the genital area. Marks were found on the wrists and ankles of the victims, indicating that they had been tied. Several of the bodies exhibited other more gruesome injuries. When Bonin was through with the boys, he would then dump their nude bodies along Southern California freeways. Bonin was eventually apprehended, and indictments were brought in both Los Angeles and Orange counties.
A.
Bonin was charged in Los Angeles County with 14 counts of murder, as well as various related noncapital crimes, including robbery, sodomy, and mayhem. Multiple-murder special circumstances were alleged with respect to each murder count. In addition, a felony-murder-robbery special circumstance was alleged with respect to all but three of the murder counts, and a felony-murder-sodomy special circumstance was alleged with respect to one murder count. Two of the murder counts were dismissed before trial.
The evidence of guilt presented at trial was overwhelming. The prosecution demonstrated the remarkably similar features of the murders and their temporal proximity, which indicated that they had all been committed by a single perpetrator. In order to prove that Bonin was the individual that committed the crimes, the prosecution presented testimonial, physical, and scientific evidence. Experts testified that the bodies of three of the victims bore triskelion-shaped fibers that matched the carpeting in Bonin’s van. They also testified that the bodies of three other victims revealed the presence of hair that matched Bonin’s. One victim’s body also bore a seminal fluid stain that could have been made by Bonin. Moreover, Bonin’s van was severely stained with human blood.
In addition to this physical and scientific evidence, the prosecution presented the testimony of two eyewitnesses plus others to whom Bonin had made certain confessions. Gregory Miley, one of Bonin’s homosexual partners, testified that he had participated with Bonin in two of the murders. James Munro, another of Bonin’s homosexual partners, testified that he had participated with Bonin in one of the murders, after which Bonin told him that he was the “Freeway Killer” and that he had committed about 14 similar murders. The prosecution also called David Lopez, a television reporter, who testified that Bonin confessed in an interview to killing ten of the twelve boys as well as several others. Two other acquaintances of Bonin, Scott Fraser and Ray Pendleton, testified that Bonin had admitted that he had picked up one of the victims and had killed him in the course of a homosexual encounter. Jailhouse informers testified regarding various confessions made by Bonin while he was incarcerated. Finally, other witnesses testified that after he had been arrested in 1975 for a homosexual attack, Bonin said he would never again leave witnesses to his crimes alive.
The defense attempted to persuade the jury that the prosecution had not met its burden of proof, principally by impeaching the credibility of the various witnesses.
The juiy acquitted Bonin of two of the murder charges, and one sodomy and one mayhem charge, but found him guilty of each of the remaining counts. The jury also found to be true all of the special-circumstance allegations except for the felony-murder-sodomy special circumstance.
The penalty phase of the trial was then conducted. After less than one day of deliberation, the jury returned a verdict of death for each of the 10 murder convictions.
B.
After the Los Angeles trial was completed, Bonin was tried in Orange County, California for four murders and related noncapital crimes committed there. The prosecution’s case was similar to that presented in the Los Angeles trial, and, as it did in the Los Angeles trial, the defense attacked the credibility of the various witnesses. It also attempted to undermine the credibility of the prosecution’s scientific evidence by presenting the testimony of a carpet fiber expert who opined that the fiber samples were too small for accurate comparison to the carpet of the van.
Bonin was convicted of all four murder counts and of robbing each of the victims. The jury found a multiple-murder special circumstance and felony-murder-robbery special circumstance for each of the murders.
At the penalty phase of the trial, the evidence presented in aggravation and in mitigation was quite similar to that presented in the Los Angeles trial. After two days of deliberation, Bonin was sentenced to death for each of the four murders.
C.
On automatic appeal to the California Supreme Court, the Los Angeles and Orange County convictions and death sentences were affirmed. People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 765 P.2d 460 (1989) (Los Angeles); People v. Bonin, 46 Cal.3d 659, 250 Cal.Rptr. 687, 758 P.2d 1217 (1988) (Orange County). The United States Supreme Court denied Bonin’s petitions for writ of certiorari with respect to each ease, Bonin v. California, 494 U.S. 1039, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (Los Angeles case); Bonin v. California, 489 U.S. 1091, 109 S.Ct. 1561, 103 L.Ed.2d 864 (1989) (Orange County case), as well as a petition for rehearing in the Orange County case. Bonin v. California, 493 U.S. 914, 110 S.Ct. 272, 107 L.Ed.2d 222 (1989).
Bonin filed a state habeas corpus petition challenging his Los Angeles convictions and death sentences, as well as three separate state habeas corpus petitions challenging the Orange County convictions and death sentences. All of Bonin’s state habeas corpus petitions were denied by the California Supreme Court.
Bonin filed two habeas corpus petitions under 28 U.S.C. § 2254, one challenging his Los Angeles convictions and death sentences, and another challenging his Orange County convictions and death sentences. The petitions were assigned to the same district judge. The district court conducted three days of evidentiary hearings concerning issues raised by the petitions, and read the entire record of each case, including over 15,000 pages of trial transcripts. In separate published opinions, the district court denied both of Bonin’s petitions. Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal.1992) (Los Angeles); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County).
In a published order, Bonin v. Vasquez, 999 F.2d 425 (9th Cir.1993), we denied the motion of Bonin’s appointed counsel, the California State Public Defender, to withdraw as attorney of record. We rejected the contention that the defender’s own ineffectiveness in its previous handling of the petitions constitute grounds for relief and therefore create a conflict of interest mandating the appointment of new counsel. See id.
D.
In this consolidated appeal, we review the district court’s denial of both of Bonin’s habeas corpus petitions. Bonin has raised a battery of issues, some alleging violations of his federal constitutional rights at the trials themselves and others alleging errors by the district court in denying the petitions. Bonin makes the following primary arguments:
1. He was denied effective assistance of counsel at both trials because his trial attorney suffered from a conflict of interest;
2. He was denied effective assistance of counsel because his trial attorney failed to investigate adequately and present mitigating evidence at the penalty phases of both trials;
3. He was denied his Fifth, Eighth, and Fourteenth Amendment rights when the prosecution introduced evidence of the Orange County murders at the penalty phase of the Los Angeles trial;
4. He was denied a fair trial because of the Orange County trial court’s denial of his motion for change of venue;
5. He was deprived of due process and effective assistance of counsel as a result of the trial court’s refusal to allow his second attorney to argue at the penalty phase of the Orange County trial;
6. He was deprived of due process because the Los Angeles trial court refused to suppress the testimony of Munro and Miley;
7. He was deprived of due process in both trials as a result of prosecutorial misconduct;
8. The district court erred by dismissing Bonin’s proposed amendments to his habeas corpus petitions; and
9. The penalty juries in both trials were biased in favor of the death penalty due to instructional errors.
In examining these claims, we review de novo the denial of Bonin’s petitions for writ of habeas corpus. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993). However, findings of fact made by the district court relevant to the denial of his habeas corpus petitions are reviewed for clear error. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991) (Thomas). We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1945, 123 L.Ed.2d 651 (1993).
To obtain habeas corpus relief, Bonin must demonstrate that his conviction or punishment violates the federal Constitution, a federal statute, or a treaty. 28 U.S.C. § 2241(c)(3); Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975). Because of the limited scope of habeas corpus review, trial errors do not warrant relief unless the errors “had substantial and injurious effect or influence in determining the jury’s verdict” such that they deprived Bonin of a fair trial in violation of Ms right to due process. Brecht v. Abrahamson, — U.S. -, -, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (Brecht) quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) (Kotteakos). Errors wMch do not meet this test are deemed harmless. In the exceedingly rare case in wMch a court finds itself utterly unable to determine whether the error was harmless, but is rather in “grave doubt” about whether the error had substantial and injurious effect on the jury’s verdict, the court should not treat the error as harmless. O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). This assumption applies, however, only in the remarkably unusual circumstance where “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id.
II
Bonin argues that he was denied the effective assistance of counsel at both of his trials because Ms trial attorney, William Charvet, had a conflict of interest. Bonin asserts that he and Charvet had entered into a literary rights agreement before Charvet became his trial attorney, and that the existence of the literary rights agreement gave Charvet an incentive, subsequent to Ms retention, to maximize publicity about the case rather than to represent Bonin effectively. Bomn also alleges that Charvet agreed to represent him in the Los Angeles trial in return for an additional ten percent of the literary rights proceeds, and argues that a conflict of interest existed because Charvet had to pay for investigative costs out of his own pocket. Bonin further asserts that Charvet refused to call a potential witness, Dr. Lunde, at the penalty phase of the Orange County trial, because he feared Dr. Lunde would reveal the literary rights agreement. Bonin maintains that he was never warned of the dangers inherent in Charvet’s representation of both his literary interests and Ms trial defense.
• The State paints a different picture. It argues that Bomn and Charvet engaged only in tentative discussions regarding a book transaction that led merely to a letter of intent executed between the parties. The State also insists that Charvet warned Bonin and Ms family of the potential implications of Charvet’s representation of Bonin in both capacities. The State maintains that these discussions had ceased and that any arrangement had been terminated before Charvet began representing Bonin in the Los Angeles trial, and that Bonin signed a release of the letter of intent after Charvet assumed the role of trial counsel. The State further asserts that Charvet warned Bonin that it would not be a good idea to pursue a book deal while the criminal proceedings were pending.
Bonin was originally represented by Earl Hanson, an appointed public defender. While Hanson was preparing for the Los Angeles trial, Bonin contacted Charvet for assistance in having his life story published. Bomn, Charvet, and a writer, Mary Neiswender, reached a tentative understanding concerning the division of the proceeds. As indicated earlier, the State argues that these discussions eventually led to the drafting of an unsigned letter of intent but nothing more. Bonin argues, however, that the parties reached a firm agreement.
At some point, Bonin asked Charvet to take over his defense and Charvet moved to be substituted as trial counsel. Bonin was present in the courtroom throughout the substitution proceedings. Hanson did not oppose the motion and repeatedly emphasized to the court that he had never been Bonin’s attorney of choice, that Bonin had in fact requested the appointment of a different attorney immediately after he met Hanson, and that Bonin did not feel that he could talk to Hanson. When asked by the trial court whom he would rather have as his attorney, Bomn said that he wanted to be represented by Charvet, and explained that he did not feel that he could discuss certain subjects with Hanson.
The prosecution objected to the substitution on several grounds, including that Char-vet was being compensated, at least in part, with book rights. When the trial court inquired into Charvet’s fee arrangement, Char-vet declined to divulge his arrangement with Bonin, insisting that if Bonin’s only asset was a book right, he could use that asset to secure counsel of his choice. Although the trial court originally suggested that it would deny the motion to substitute so as to avoid further delay, Bonin later made it clear by moving to proceed pro per that he would rather represent himself than continue to be represented by Hanson. Given the hard choice of allowing Bonin to proceed pro per or allowing Charvet to be substituted as trial counsel, the trial court eventually allowed the substitution.
“In a federal habeas action, a claim of ineffective assistance of counsel, and/or of conflict of interest on the part of counsel, presents ‘mixed question[s] of fact and law5 and receives de novo review.” Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir.1994) (Sanders), quoting Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984) (Strickland). However, “ ‘state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement of [28 U.S.C.] § 2254(d)’.... Likewise, a federal district court’s findings ... are reviewed under the clearly erroneous standard prescribed by Fed.R.Civ.P. 52(a).” Id. at 1451-52, quoting Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, and citing Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).
The Sixth Amendment right to counsel includes the right to counsel of undivided loyalty. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981). The test for determining whether an alleged conflict of interest has deprived Bonin of his right to counsel in violation of the Sixth Amendment was established by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (Cuyler). The Court explained that “[i]n order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 350, 100 S.Ct. at 1719. Although a defendant “need not demonstrate prejudice,” he must prove that “counsel actively represented conflicting interests.” Id. at 349-50, 100 S.Ct. at 1719.
While Cuyler addressed a conflict of interest generated by multiple representation, we have specifically held that Cuyler applies to conflicts of interest generated by an attorney’s acquisition of publication rights relating to his client’s trial. United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir.1980) (Hearst), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). We have also applied the Cuyler test to conflicts resulting from counsel’s desire to keep information about himself from the court. United States v. Hoffman, 733 F.2d 596, 601-02 (9th Cir.) (Hoffman), cert. denied, 469 U.S. 1039, 105 S.Ct. 521, 83 L.Ed.2d 409 (1984).
Therefore, to obtain habeas corpus relief on the basis of the alleged conflict, Bonin must show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer’s performance. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).
In considering Bonin’s Orange County petition, the district court held an evidentiary hearing on the conflict issue. Bonin v. Vasquez, 794 F.Supp. at 963. “After listening to the testimony, observing the witnesses, examining the exhibits, and considering the briefs submitted,” the district court found that “Bonin and Charvet never had a literary rights agreement.” Id. “Instead, the evidence repeatedly demonstrated that the relevant parties—Bonin, Charvet, and Neiswender—expressed interest in such an arrangement, but the expressions of interest never came to fruition.” Id. The district court further concluded that in the absence of such an agreement, no actual conflict of interest could have existed. Id. at 964. The district court took judicial notice of this finding in its opinion concerning the Los Angeles case. Bonin v. Vasquez, 807 F.Supp. at 602.
The district court’s determination that no literary rights agreement ever came into existence is a finding of fact. We may therefore reject it only if it is clearly erroneous. Sanders, 21 F.3d at 1451; Thomas, 923 F.2d at 1364. There is a substantial amount of evidence supporting each side of this factual dispute, and the evidence does show that Charvet at least pretended to have a literary-rights agreement with Bonin for the purpose of obtaining money from his fiancee, Rhodora Hood. However, the district court’s finding that no literary rights agreement ever existed is not clearly erroneous. Therefore, Bonin has faded to prove that the alleged agreement created a conflict of interest.
Bonin also has an alternative argument. He contends that even if there was no literary rights agreement, a conflict was created nonetheless by Charvet’s “ongoing financial motive” to profit from a prospective literary rights agreement. Bonin points to a number of reasons why Charvet’s alleged desire to profit from a possible future literary rights agreement may have come into conflict with Bonin’s interests. He asserts that Charvet substituted as retained counsel in the Los Angeles case for fear of losing the alleged prospective literary rights agreement and that by doing so, Charvet deprived him of properly prepared counsel. He also argues that Charvet failed to call Dr. Lunde, a psychiatrist who had evaluated Bonin at Char-vet’s request, to testify at the Orange County trial because Dr. Lunde had learned about Charvet’s dealings with Bonin concerning the alleged literary rights agreement and might disclose them to the court, resulting in the loss of Charvet’s appointment or at least “an investigation of Charvet’s true motives.”
Cuyler not only provides the appropriate standard for analyzing claims of conflict generated by literary rights agreements, Hearst, 638 F.2d at 1193-94, it is also our guide in assessing an argument that an attorney created a conflict by his desire to keep information about himself from the court. Hoffman, 733 F.2d at 601-02. The Court explained in Cuyler that when a defendant’s attorney labors under an actual conflict of interest, for example by actively representing codefendants with inconsistent defenses, we are not to “indulge in nice calculations as to the amount of prejudice,” but instead we require the defendant to show only that counsel’s performance was adversely affected. Cuyler, 446 U.S. at 349, 100 S.Ct. at 1718, quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467-68, 86 L.Ed. 680 (1942). However, in order to show the existence of an actual conflict, Bonin cannot simply show that the interests of the attorney and client might possibly have come into conflict, as “a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.” Id. at 348, 100 S.Ct. at 1718. Rather, Bonin must show that his interests actually came into direct conflict with those of Charvet. Id.
Bonin’s contention that Charvet substituted as retained counsel in Los Angeles because of his desire to obtain a prospective literary rights agreement fails to allege the type of actual conflict required by Cuyler. Lawyers almost always undertake representation of clients because of their desire to profit from the representation. The fact that Charvet may have intended to profit not through the typical manner of hourly billing but by gaining publicity by handling a high profile case and by perhaps being included in any literary rights agreement that might be formed in the future does not change the analysis. The fact that an attorney undertakes the representation of a client because of a desire to profit does not by itself create the type of direct “actual” conflict of interest required by Cuyler.
Bonin’s argument that Charvet refused to call Dr. Lunde to testify at the Orange County trial to avoid the disclosure of Charvet’s dealings with Bonin concerning the prospective literary rights agreement also fails to allege the type of actual conflict required by Cuyler. In Hoffman, we held that an attorney’s failure to disclose to the United States District Court for the District of Arizona, before which he was representing a client, his suspension from practice in the State of Florida, which would not necessarily have resulted in his automatic suspension in the District of Arizona, did not create an actual conflict of interest -under Cuyler. Hoffman, 733 F.2d at 602. Thus, an attorney’s desire to keep personal information from the court does not invariably create an actual conflict of interest. In this case, Dr. Lunde might not have disclosed any information harmful to or embarrassing to Charvet even if he had been called to testify. Moreover, Charvet would not necessarily have lost his appointment even if Dr. Lunde had disclosed whatever information Bonin told him about the “book deal.” Because Charvet was not necessarily placed in an adversarial position relative to Bonin, he has only succeeded in showing a remote possibility of a conflict and not an actual conflict. See id.
If the types of conflicts alleged by Bonin were to be cognizable under Cuyler, the rule would become hopelessly unworkable. As human beings, attorneys always have interests of their own independent of those of their clients. Where a direct and significant conflict of interest exists between a defendant and his client, it is reasonable to presume that the defendant has been prejudiced as a result. However, minor or potential conflicts of interest often exist which might theoretically or conceivably affect an attorney’s representation, but are not likely to do so. Such “potential” conflicts are insufficient under Cuyler. In the absence of an “actual” conflict which squarely places the interests of the client in opposition to those of the attorney, and is likely to compromise a reasonable attorney’s ability to comply with his legal and ethical obligation to represent his client -with undivided loyalty, the Cuyler standard cannot be met. If a mere “potential” or “theoretical” conflict does affect an attorney’s representation in a particular case, the defendant is not without recourse. However, he cannot rely on Cuyler and obtain relief merely upon a. showing of “adverse effect,” but must instead make the showing required by Strickland that counsel’s performance was objectively unreasonable and that he suffered prejudice as a result. See Strickland, 466 U.S. at 692-94, 104 S.Ct. at 2067-68. Because Charvet’s alleged desire to profit from a prospective literary rights agreement created only a “potential” conflict of interest, Bonin has failed to make the required showing under Cuyler.
Bonin also argues that Charvet had a conflict of interest in the Los Angeles trial because his substitution as retained counsel deprived Bonin of state-funded investigators and expert witnesses, thereby requiring Charvet to pay for any investigators or experts out of his own pocket. This allegation of conflict is also inadequate under Cuyler. As we recently held in Williams v. Calderon, 52 F.3d 1465 (9th Cir.1995) (Williams), an assertion of conflict based on the fact that “payment for any investigation or psychiatric services could have come from counsel’s pocket forcing] counsel to choose between [the client’s] interests and his own ... is the same theoretical conflict that exists ... in any pro bono or underfunded appointment case.” Id. at 1473. While such arrangements create a theoretical conflict of interest, they do not typically create actual conflicts under Cuyler. Nor was an actual conflict created by Charvet’s representation of Bonin as retained counsel.
Bonin also raises two related issues concerning the alleged conflict of interest. First, the district court did not hold an evidentiary hearing on the conflict of interest issue in reviewing the Los Angeles petition. Instead, it took judicial notice of its own findings with regard to the Orange County case. Bonin v. Vasquez, 807 F.Supp. at 602. Bonin argues that the district court erred in failing to hold an evidentiary hearing on this issue in his Los Angeles case, and that taking judicial notice of its findings in the Orange County case failed to cure this defect.
The Supreme Court has held that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). However, there is no sound reason why the petitioner should be entitled to two evidentiary hearings on the same issue. There is no indication that two evidentiary hearings conducted by the same federal judge on the same issue are necessary to protect a habeas corpus petitioner’s interests. Moreover, any advantage gained by the habeas corpus petitioner certainly would not outweigh the obvious waste of judicial resources this would entail.
We hold that the district court was not required to conduct two separate hearings. In Farrow v. United States, 580 F.2d 1339 (1978), we explained that “as the new Rules Governing Habeas Corpus Cases now make express, it is consistent with the habeas corpus procedure under § 2254 that ‘the district judge ... employ a variety of measures in an effort to avoid the need for an evidentiary hearing.’ ... Where the judge’s own recollection enables him to answer in the negative the ‘real question’ ... an evidentiary hearing is unnecessary.” Id. at 1352-53, quoting Blackledge v. Allison, 431 U.S. 63, 81, 97 S.Ct. 1621, 1633, 52 L.Ed.2d 136 (1977).
Second, Bonin argues that he was denied a full and fair hearing on the conflict of interest issue because the district court refused to allow Dr. Lunde to testify on that issue and refused to allow Bonin to admit State Bar records indicating that Charvet had defrauded clients. A “district court’s evidentiary rulings are reviewed for an abuse of discretion and will not be reversed unless the party has been prejudiced.” Price v. Seydel, 961 F.2d 1470, 1474 (9th Cir.1992) (Price). Moreover, a “court may exclude testimony from witnesses not listed in the pretrial witness list.” Id. However, in determining whether to admit the testimony of unlisted witnesses, the district court should consider: (1) the possibility of prejudice or surprise to the other party, (2) the ability of the other party to cure the prejudice, (3) the extent to which waiver of the rule against calling unnamed witnesses would disrupt the orderly and efficient trial of the case, and (4) bad faith or willfulness in failing to comply with the court’s order. Id.
The district court did not abuse its discretion. The district court refused to allow Dr. Lunde to be called because he was never placed on Bonin’s witness list as required by a prior court order. Bonin did not depose Dr. Lunde, did not place him under subpoena, and did not put him on his witness list. This is the type of lack of notice that prejudices the opposing party’s ability to respond to testimony or to cross-examine effectively. More importantly, Bonin had already been allowed to call a witness who was not on his witness list and had been warned that he would not be allowed to do so again. Thus, the district court’s actions were justified by the need to prevent further disruption of the proceedings and as a sanction for the willful violation of the court’s order.
The district court’s decision not to admit records of complaints lodged with the State Bar was also not an abuse of discretion. Admittedly, we held in Sanders that an attorney’s subsequent disbarment for a course of conduct with other clients in which he exhibited “general incompetence and indifference to the interests of his clients,” was probative of whether his failure to investigate the case stemmed from a strategic decision or mere incompetence and indifference. See Sanders, 21 F.3d at 1460. However, Sanders involved the “rare case” in which counsel’s objective incompetence was so severe that the petitioner might have been convicted of murder despite his actual innocence, id. at 1455, and in which the attorney only briefly explained his actions to one other person, id. at 1452, and could not be located to testify at the evidentiary hearing conducted by the district court. Id. at 1451.
In any case, Sanders does not hold that prior instances of misconduct or unrelated complaints to state bar associations should ordinarily be admitted as evidence that an attorney acted incompetently or that otherwise presumptively reasonable decisions were actually made due to general disinterest or other impermissible reasons. Indeed, Sanders did not concern the admissibility of such evidence at all. Although we held such evidence relevant in Sanders, we did not address the standards to be employed by the district court in deciding whether to admit such evidence and the state apparently offered no objection to its admission or use.
Notwithstanding our use of such evidence in the extraordinary situation presented in Sanders, it is clear that a habeas petitioner should not be allowed to transform what should be an inquiry into the reasonableness of counsel’s performance at his trial into an general inquisition of defense counsel’s record and reputation. Because the essential inquiry is whether the petitioner received objectively reasonable and conflict-free representation, evidence that the attorney may have erred or acted inappropriately in unrelated cases will normally have little, if any, probative value, and may therefore be properly excluded by the district court pursuant to Federal Rule of Evidence 403. Moreover, because Federal Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” prior acts of misconduct on the part of defense counsel are inadmissible to support a claim that counsel must have acted similarly in a particular case.
Prior acts of dishonesty may have been useful to Bonin as a means of attacking the credibility of Charvet’s testimony (taken by means of deposition) concerning his reasons for conducting the trials as he did, and the district court properly authorized Bonin to question Charvet concerning these acts at the evidentiary hearing. However, to the extent Bonin sought admission of the State Bar records themselves to impeach the credibility of Charvet’s testimony, the admission of such evidence was prevented by Federal Rule of Evidence 608(b), which prohibits the use of extrinsic evidence to prove specific instances of misconduct for the purpose of attacking a witness’s credibility. However Bonin intended to the use the State Bar records, it is clear that the district court did not abuse its discretion by refusing to admit them.
Ill
Bonin contends that he was deprived of his Sixth Amendment right to effective assistance of counsel because Charvet faded to investigate and present substantial mitigating evidence at the penalty phases of both of his trials. He contends that Charvet should have investigated, found and presented evidence: (1) that Bonin was abandoned and abused as a child, and (2) that Bonin suffered from brain damage. He contends that had the juries been presented with both the childhood mitigation evidence and the evidence of brain damage, they would have sentenced Bonin to life imprisonment rather than death. He also argues that Charvet committed an additional prejudicial error in the Orange County trial by calling Virginia Padgett as a witness.
A.
At the penalty phase of the Los Angeles trial, the prosecution assembled a formidable case on aggravation. It presented Bonin’s record of prior adjudicated homosexual offenses: as a result of several homosexual attacks Bonin committed in late 1968 and early 1969, Bonin had pleaded guilty to molestation and forced oral copulation involving 12-year-old Lawrence B., kidnapping and sodomizing 14-year-old William J. and 17-year-old John T., and of forced oral copulation involving 18-year-old Jesus M. These victims testified in detail about the manner in which they were abducted and sexually abused by Bonin. While each of their experiences was unique, their testimony made it clear that Bonin’s actions were cruel and outrageous. They were abducted and handcuffed, forced to orally copulate Bonin and forced to be sodomized by him, and were threatened with death if they told anyone. One victim told of being gagged with his undexwear, another was choked to the verge of unconsciousness, and two victims related that Bonin hurt them by applying pressure to their testicles. When Bonin was finally apprehended in 1969, he was driving with a 16-year-old male passenger, and he told police officers that they were lucky that they had caught him because he felt that he might have killed the boy.
After Bonin pleaded guilty to the offenses, he was committed to Atascadero State Hospital as a mentally disordered sex offender amenable to treatment. In 1971, he was declared unamenable to treatment and was sent to prison.
Upon his release from prison in 1974, Bonin resumed his pattern of sexual predation. David M. testified that in 1975, when he was 14 years old, he was abducted, forced to orally copulate and allow himself to be sodomized by Bonin while Bonin held a gun to his neck. Gary E. also testified that Bonin unsuccessfully attempted to abduct him in 1975. After Bonin was arrested for his attack on David M., he told police officers that he would never leave witnesses to his crimes alive again. Bonin was convicted of forcible oral copulation and was again sent to prison, only to be paroled in 1978 and to resume his pattern of homosexual predation with new-found vigor.
The prosecution attempted to prove beyond a reasonable doubt that Bonin was responsible not only for the ten Los Angeles murders and related crimes for which he had already been found guilty, but also for the four Orange County murders and related crimes for which he had not yet been tried.
Police officers, coroners, and other witnesses, with the assistance of vivid photographs, explained the gruesome details of Bonin’s carnage. The bodies of the victims all exhibited marks on the wrists and ankles, indicating that they had been tied with rope or wire. Almost all of the victims were killed by strangulation, accomplished by twisting a rope or wire that had been wrapped around their neeks. The nude bodies of the victims were then dumped along Southern California freeways.
The prosecution presented the jury with many of the shockingly brutal details of the murders. The jury learned that Bonin forced Darin Kendrick to drink acid and that Bonin stabbed an ice pick three and one-half inches into his ear. They learned that Bonin bragged to a cellmate that he enjoyed sodomizing his victims without lubrication so that their rectums would tear and bleed, and that he would ram a foot and half long object into them. Several of the victims’ rectums exhibited signs of injury. Donald Hyden’s anus was not only visibly bruised and bleeding, but so stretched that the coroner opined that a very large object had been thrust into it. Markus Grabs had been stabbed approximately 70 times. James Macabe’s skull had been crushed. Miley testified that he and Bonin killed Macabe by laying a tire iron across the boy’s neck and pushing down on it until they could hear his neck bones cracking.
The prosecution’s aggravation evidence also included that Bonin had no remorse for his actions, but rather took a sick pleasure in them. Munro testified that while they were on their way to dispose of Steven Wells’s body, which was beginning to smell bad, he and Bonin stopped to get take-out food. While they ate the food they had purchased with money stolen from Wells, Bonin asked Munro if he wanted to “do another one.” Munro also testified that while Bonin was eating, he looked up and laughed: “Thanks Steve, wherever you are.” Miley testified that immediately after he and Bonin had disposed of Charles Miranda’s body, Bonin said: “I’m homy. Let’s go get another one.” The prosecution emphasized that Bonin was quite intelligent, with a tested IQ of 120 and had been categorized by the Department of Corrections as being of “superior intelligence.”
Reporter David Lopez added another dimension. He testified that Larry Sharp, one of the Orange County victims, was actually a close friend of Bonin. Bonin had taken him to Knott’s Berry Farm and once said they were “lovers.” Yet when asked why he killed Sharp, Bonin explained: “I just got up one morning and decided I was tired of him. I just got tired of having him around and so I decided that I should kill him.” When Lopez asked Bonin what he would be doing if he were still on the street, Bonin remarked: “I’d still be killing. I couldn’t stop killing. It got easier with each victim I did.”
Charvet vigorously cross-examined the prosecution’s witnesses and attempted to impeach their credibility, both in order to discredit some of the most damaging aggravation testimony and to create doubt as to whether Bonin actually was guilty of the yet untried Orange County murders. Charvet effectively attempted to discredit the testimony of David Lopez, who Charvet pointed out took almost no notes during his interviews yet had an uncanny ability to recite with particularity what Bonin supposedly told him. Charvet also used the testimony of Munro and Miley to suggest that they themselves were the culpable individuals, but were testifying against Bonin only in exchange for lenient plea agreements.
Bonin’s mother testified that Bonin’s father drank excessively and gambled away the family home. She reported that Bonin’s father beat her in front of the children, and that the children were also beaten when she was away. Importantly, she testified that Bonin was molested as a child while staying at a detention home. Bonin’s mother stated that she and Bonin had a long-standing conflict over Bonin’s homosexuality. She observed that Bonin was different when he returned from Vietnam. She further testified that although Bonin got into trouble when at home, he always functioned well in structured environments such as the detention home and a convent in which he lived for three years. She testified that he did “very well” in the convent and that she received “good reports” while he was there.
Charvet called Bonin’s older brother Robert whose testimony mirrored that of Bonin’s mother: their father drank and gambled excessively, he beat them and their mother, and Bonin’s attitude was different when he returned from Vietnam. He repeatedly acknowledged that Bonin always functioned well in controlled environments such as the convent and the detention home. Robert also contradicted some of Munro’s testimony. Bonin’s younger brother Paul added that he and Bonin frequently picked up hitchhikers and that Bonin never harmed any of them.
Charvet also called Everett Fraser who testified that he was Bonin’s friend from 1978 until the time Bonin was arrested. He stated that Bonin had come over to his home about 50 times during this period, that he had brought young men on 12 to 15 of these occasions, and that Fraser had introduced young men to Bonin. He stated that Bonin was never violent in any way. Fraser explained that based on his knowledge of Bonin as a “respectful” person, he was shocked to be advised of the murders.
Charvet also called Kathleen Shuttleworth, a psychologist and Bonin’s former preparóle counselor. She testified that Bonin seemed to be “very interested in helping people.” She described his participation in helping the family of a prisoner in New England. He raised money for their necessities, wrote to state welfare agencies on their behalf, started a fund to buy them a home, and even offered to make the payments himself if necessary. She stated that Bonin should not be sentenced to death because he could help other inmates and would be a useful member of prison society.
Shuttleworth corroborated Bonin’s being molested as a young child, and that Bonin was honorably discharged from the Army after Vietnam where he was awarded several medals. Finally, she testified that Bonin sincerely and continuously cried out for help while in prison, at one point even applying for a six-month treatment program conducted by the Veterans Administration.
In his closing argument, Charvet pressed his principal mitigation theory, arguing that although Bonin was dangerous outside of prison and other structured settings, he was capable of functioning very well in a controlled environment such as prison and was actually of benefit to society when incarcerated. He emphasized that Bonin helped others while in prison, and that he was willing to assist or participate in any programs to help find out what caused him and others to commit such crimes. Viewed in this light, Char-vet pointed out that nothing would be served by Bonin’s death except retribution.
Charvet also attempted to humanize Bonin in the eyes of the jury, by emphasizing that Bonin cried out for help while in prison in the seventies, and argued that Bonin’s violent experience in Vietnam was responsible for his subsequent behavior.
B.
The evidence of aggravation at the Orange County trial included every detail presented in the Los Angeles trial plus the fact that Marcus Grabs not only had been stabbed about 70 times all over his body, but his anus was so largely dilated that an item the size of a fist must have been thrust into it. In addition, the jury learned of similar injuries to the anus of Donald Hyden, and were advised that Hyden’s body exhibited a puncture wound below the ear, another puncture wound in the scrotum, a burn mark just above the groin, and that his lips and face were bruised. They also learned that Harry Turner had been bitten on the penis and shoulder. In short, with even greater force than in the Los Angeles trial, the prosecution presented what appeared to be an endless list of atrocities committed by Bonin.
The defense’s ease in mitigation was also similar to that presented in Los Angeles, except that instead of Kathleen Shuttleworth, Charvet called Virginia Padgett, the custodian of records at Atascadero. She proved to be a less favorable witness for Bonin. When asked whether there was any reason other than his homosexuality for his being declared unamenable to treatment at Atascadero, she retorted: “We’re not talking about preying upon the mentally retarded or the mentally ill. When you include your sexuality — Homosexuality?” Although Padgett conceded that there was no evidence that Bonin ever forcibly sodomized or forcibly committed a homosexual act on an inmate in Atascadero, the jury learned that Bonin had engaged in homosexual acts with two retarded patients. The use of Padgett as a defense witness also backfired during her cross-examination when she agreed with the prosecution’s statement that “the closest the defendant got to combat in Viet Nam [sic] was when he held a gun to two soldiers’ head [sic] and sodomized them?”
Padgett’s testimony did establish the mitigating circumstances that had previously been established in the Los Angeles case: that Bonin was decorated in Vietnam, that he was abused as a child, that he had volunteered for experimental treatment programs while at Atascadero, that he was neat, clean, nonviolent, attended therapy groups regularly, and that he did his work willingly in prison. In addition, she explained that Bonin was going to marry a young woman before he went to Vietnam but he returned to discover that she had already married someone else.
C.
The district court held evidentiary hearings concerning Bonin’s ineffective assistance of counsel claims. Bonin presented the evidence that he asserts should have been discovered and presented in mitigation at the penalty phases of his trials: (1) “evidence of repeated abandonment during childhood”; (2) “evidence of pervasive physical, sexual and emotional abuse during childhood”; and (3) “evidence of organic brain damage.”
The evidence of repeated abandonment during childhood consisted primarily of testimony by Dr. David Foster, an expert on the developmental effects of violence and abuse on children. Dr. Foster opined that Bonin had, as a result of repeated abandonment, not received the nurturing, protection, and behavioral feedback as a child necessary for proper psychological development. The evidence of pervasive physical, sexual and emotional abuse during childhood also came largely from Dr. Foster, who opined that Bonin had suffered such abuse and that it had led “to confusion about the differences between violence and love” as well as “detachment and the use of fantasy and denial and more primitive defenses to protect himself.” The evidence of organic brain damage was primarily the testimony of Dr. Pincus, who testified that Bonin exhibited a “snout reflex” and a “right Babinski reflex” which are indicative of frontal lobe damage. Dr. Pincus also testified that although the psychological manifestations of frontal lobe damage vary, persons with frontal lobe damage are usually impulse driven. Dr. Pincus speculated that it was also possible that Bonin suffered from “organic personality disturbance,” which involves behavioral abnormalities caused by brain damage. Dr. Foster opined that some of Bonin’s symptoms are consistent with frontal lobe damage, but also suggested that Bonin may suffer from other minor disorders, particularly attention deficit disorder.
Expert witnesses for the State came to opposite conclusions. Dr. Park Elliott Dietz, an expert in forensic psychiatry with expertise in impulse disorders and sexual sadism, testified that Bonin’s behavior was not consistent with an inability to control impulses. In addition to pointing out that Bonin has never engaged in impulsive behavior in prison, he explained that the manner in which Bonin committed his crimes, particularly the way in which he lured his victims into his van and disposed of the bodies in remote locations, are “reflective of planning and deliberate actions rather than impulsive behavior.”
Dr. Dietz also disagreed with Dr. Pincus’s opinion that Bonin suffered from frontal lobe damage. He testified that there was no evidence that Bonin suffered from seizures. Dr. Dietz stated that Bonin’s medical records showed that he exhibited no Babinski reflex when examined in 1969 after he had already been incarcerated for kidnapping and forced oral copulation. Dr. Dietz concluded that Bonin’s present Babinski reflex and its source could not be the source of his desire to sexually assault young men.
Dr. Dietz also testified that there was a great deal of evidence indicating that Bonin does not presently suffer from frontal lobe damage. Dr. Dietz observed that a Babinski reflex does not necessarily indicate frontal lobe damage. He also explained that other than a snout reflex and Babinski reflex, Bonin did not exhibit other reflexes and behaviors typically associated with frontal lobe damage.
Additionally, Dr. Dietz stated that Dr. Foster’s report had repeatedly mischaracterized and exaggerated the evidence he relied on in forming his conclusion that Bonin had been subjected to physical, emotional, and sexual abuse. He concluded that Bonin was a sexual sadist, and that Bonin may also suffer from antisocial personality disorder, but that neither of these conditions impair an individual’s free will or ability to control his actions.
A neurologist, Dr. Mark Nuwer, also testified on behalf of the state to refute Bonin’s assertion that he suffered from frontal lobe damage. Dr. Nuwer stated that Bonin’s magnetic resonance imaging and electroencephalogram tests were normal, and that in the absence of some corroboration through these tests, he would consider a snout reflex a- “red herring.” He testified that without some other corroboration, a snout reflex in combination with a Babinski reflex “doesn’t tell you anything about a diagnoses.”
D.
In assessing Bonin’s claim that Charvet’s failure to present mitigating evidence at the penalty phase of his trials constitutes ineffective assistance of counsel under the Sixth Amendment, we apply Strickland; Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986) (Darden); and Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir.1994) (Wade) cert. denied, — U.S. -, 115 S.Ct. 923, 130 L.Ed.2d 802 (1995), and require Bonin to demonstrate: (1) “that counsel ‘made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment,’” and (2) “that ‘the deficient performance prejudiced the defense.’” Campbell v. Wood, 18 F.3d 662, 673 (9th Cir.1994) (en banc) (Campbell), quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
In reviewing Charvet’s performance, the ultimate question is whether “counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this determination, however, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. at 2065. In doing so, we “will neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of hindsight.” Campbell, 18 F.3d at 673. Rather, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id., quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066. “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id.
Bonin is deemed to have suffered “prejudice” as the result of Charvet’s performance if he succeeds in demonstrating that “there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” Wade, 29 F.3d at 1323, citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Thus, in order to determine whether Charvet’s failure to present certain evidence in mitigation might have affected the jury’s decision, it is essential to compare the evidence that actually was presented to the jury with the evidence that might have been presented had counsel acted differently.
E.
Almost all of the childhood mitigation evidence offered by Bonin at the evidentiary hearing was utilized by Charvet during both of the trials. The evidence that was not presented by Charvet would have been of little value. That life at the convent was not pleasant, or that Bonin was often dirty and hungry as a child would have added little to the Bonin’s case and might actually have distracted the jury from the more potent mitigation evidence. The only significant evidence presented by Bonin at the evidentiary hearing that Charvet failed to employ was the testimony of experts on the developmental effects of child abuse and neglect. However, while the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense. Given that such expert testimony would have been of value only to the extent that Bonin could actually show that he had been subject to neglect and abuse, it would have been of slight value at best. Moreover, it would have opened the door to precisely the type of cross-examination that Charvet sought to avoid by refusing to call psychiatric experts — another recitation of all of Bonin’s atrocities for the purpose of determining whether, in the expert’s opinion, such behavior is the likely product of such abuse. Charvet’s presentation of childhood mitigation evidence was clearly reasonable.
We also conclude that it was reasonable for Charvet not to investigate further and present evidence of brain damage or other psychiatric disorder. Charvet made a tactical decision to rely principally on an “institutional adjustment” mitigation theory. This decision did not foreclose the use of other mitigation evidence. Indeed, Charvet used other mitigation evidence, including Bonin’s childhood history and Vietnam experience. When asked why he decided not to present expert psychiatric testimony at either trial, Charvet responded that he feared that the presentation of psychiatric testimony would “open the door” to allow the prosecution to parade the horrible details of each of the murders before the jury under the guise of asking the psychiatrist or other expert whether Bonin’s acts conform to the asserted diagnosis. Charvet explained that although he was willing to risk such cross-examination and rebuttal if there were some significant “objective” evidence of brain disorder upon which he could rely, he was unwilling to do so with anything less.
For the Los Angeles trial, Charvet had information about an examination of Bonin arranged by Hanson, and a copy of the Atascadero records. The Atascadero records contained no indication that Bonin suffered from organic brain damage, neurological disorder, or any psychiatric disorder other than sexual sadism and antisocial personality disorder. The Atascadero records also indicated that Bonin was quite intelligent, with a tested IQ of 120, and that he was neat, clean, well-behaved, nonviolent, and even helpful in prison. Based on this information and his personal knowledge of Bonin, it was reasonable for Charvet to conclude that no significant “objective” evidence of brain disfunction would be forthcoming, and to proceed to trial with his “institutional adjustment” argument and the other available mitigation evidence without also presenting expert psychiatric testimony.
In preparation for the Orange County trial, Charvet had this information and also retained an expert, Dr. Lunde, to determine whether any psychiatric evidence in mitigation was available. After Dr. Lunde examined Bonin and made a preliminary report that he was not turning up anything major, Charvet called off his investigation and subsequently declined to use his testimony at trial. This decision was consistent with his tactical decision not to use such expert testimony unless there was something significant and “objective” to show the jury.
The Supreme Court has explained that “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” and that “choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Charvet’s decision to employ principally an “institutional adjustment” mitigation theory obviated the need to procure extensive psychiatric evaluations of Bonin. Given the tactical decision to utilize expert psychiatric testimony only if there was some major “objective” finding upon which to rely, it was reasonable for Charvet to limit his investigation into Bonin’s psychiatric condition in preparation for the Los Angeles trial to a review of the Atascadero records and any psychiatric evaluations prepared at Hansen’s direction. It was also reasonable for Charvet to discontinue any further investigation into Bonin’s psychiatric condition in preparation for the Orange County trial after Dr. Lunde’s preliminary report corroborated the Atascadero and other medical records that indicated that Bonin did not suffer from any brain damage, neurological disorder, or other significant “objective” psychiatric condition. Although with hindsight one may question Charvet’s tactical decisions, they were certainly reasonable at the time.
Finally, although Padgett was less helpful a witness in Orange County than Shuttleworth had been in Los Angeles, it was not unreasonable for Charvet to call her as a defense witness. Given that Bonin had been sentenced to death in the Los Angeles case despite Shuttleworth’s testimony, it was reasonable for Charvet to try something different. That reasonableness is not diminished because Padgett was, in hindsight, not as effective a witness.
Bonin points to a number of cases which he contends require us to reach the opposite result. In Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), vacated and remanded on other grounds, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), for example, we concluded that an attorney’s performance was deficient where his “sole mitigation argument was that Deutscher must have had some sort of mental problem” yet counsel failed to investigate, present, or even consider presenting any such mitigating evidence. Id. at 1159. However, we specifically said that “[c]ounsel made no tactical decision not to investigate Deutseher’s possible mental impairment. He simply failed to do so.” Id. Moreover, we went on to explain that “[w]e do not hold that failure to present mitigating evidence at a capital sentencing hearing is always defective performance. In certain cases, counsel might reasonably decide that mitigation evidence would present more problems than it would solve.” Id. Indeed, Charvet ruled out the use of expert psychiatric testimony in both the' Orange County and Los Angeles trials largely because of the problems it would have caused. Furthermore, Charvet did not use mental defect as a “sole” mitigation argument, but instead relied on evidence of institutional adjustment.
In Evans v. Lewis, 855 F,2d 631 (9th Cir.1988), we also held an attorney’s performance deficient for failure to present mitigating evidence at the sentencing hearing in a capital case. But there, “counsel presented no evidence of mitigation” at all, even though the relevant death penalty statute required the sentence of death where at least one aggravating factor and no mitigating factors were presented. Id. at 637 (emphasis in original). Counsel’s failure to present any mitigating evidence in that case could not be construed as a trial tactic. Id.
Our recent decision in Wade also does not require a different result. In Wade, counsel not only failed to present “any significant evidence of abuse at the penalty phase,” but went on to call forth Wade’s alternate personality named “Othello” who challenged the jury to put him to death, and to argue that execution would be an outcome favorable to Wade. Wade, 29 F.3d at 1323-24.
While Evans, Deutscher, and Wade are clearly inapposite here, Darden is closer to the mark. There, the Supreme Court held that trial counsel’s failure to present any mitigating evidence at the sentencing hearing in a capital case did not constitute deficient performance under Strickland. Darden, 477 U.S. at 184-87, 106 S.Ct. at 2473-75. The attorney instructed Darden to “plea for mercy,” and refrained from presenting any psychiatric or other mitigating testimony. Id. at 186, 106 S.Ct. at 2474. The Court held this conduct reasonable because the attorney feared that the presentation of such testimony would open the door to more damaging rebuttal testimony. Id. Darden clearly supports our conclusion that Charvet acted reasonably in refusing to employ expert psychiatric testimony because it would have allowed the prosecution during cross-examination and rebuttal to rehash the horrific details of Bonin’s crimes.
It is clear that Bonin has failed in his burden to prove that Charvet’s decisions fell outside of the wide range of constitutionally adequate representation. Bonin has not overcome the strong presumption required by Strickland that Charvet’s conduct was reasonable.
F.
We also conclude that Bonin has failed to establish that he has suffered prejudice as a result of Charvet’s allegedly deficient representation. “[I]n cases with overwhelming evidence of guilt, it is especially difficult to show prejudice from a claimed error on the part of trial counsel.” United States v. Coleman, 707 F.2d 374, 378 (9th Cir.), cert. denied, 464 U.S. 854, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983). Similarly, in eases such as this where the aggravating circumstances are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigation evidence.
In this ease, the aggravating circumstances were so numerous and so compelling that it is highly improbable that either jury would have returned a sentence of life imprisonment rather than death, even if all of the possible mitigating evidence offered by Bonin at the evidentiary hearing had been presented at his trials.
As we explained earlier, Bonin has demonstrated the existence of very little probative evidence of childhood abuse or neglect other than the very evidence employed by Charvet in both trials. The additional childhood evidence offered by Bonin would clearly not have had any effect on either jury’s decision to impose the death penalty.
With regard to the omission of expert psychiatric testimony, the district judge concluded that Bonin “has failed to provide persuasive evidence of brain organicity or other psychiatric or neurological disorder.” Bonin v. Vasquez, 807 F.Supp. at 597. He explained that Bonin “did not demonstrate any correlation between Dr. Pineus’ findings, which were obtained in late 1991, and petitioner’s mental condition at the time of the murders.” Id. at 598. The court also found “that Drs. Dietz and Nuwer were more credible than Dr. Pineus,” and that the court “cannot help but believe that Dr. Pineus’ views on the inappropriateness of the death penalty affect his clinical interpretations in this highly subjective area of medicine.” Id.
The district court’s finding that Bonin did not prove that he had suffered from brain damage or other significant psychiatric or neurological disorder at the time he committed his crimes is amply supported by the record and is not clearly erroneous. Bonin’s evidence was insufficient to show that unlimited investigation by Charvet into Bonin’s psychiatric condition would have produced anything more significant than the unpersuasive testimony presented by Drs. Pineus and Foster. At best, such testimony would only have initiated a battle of experts on which Bonin would have been on the losing side. At worst, it would have distracted jurors from Charvet’s “institutional adjustment” theory and the childhood and Vietnam mitigation evidence, reduced Charvet’s credibility with the jury, and opened the door to powerful cross-examination and rebuttal.
The aggravating circumstances presented by the prosecution in both trials was overwhelming. Bonin has not proven that the use of expert psychiatrists would likely have changed the outcome, and has therefore failed to meet his burden of proving prejudice.
G.
Bonin also argues that a number of decisions by the district court deprived him of a full and fair evidentiary hearing on his ineffeetive assistance of counsel claims.
1.
Bonin contends that the district court erred in refusing to provide additional funds for investigative services pursuant ,to 18 U.S.C. § 3006A(e) and 21 U.S.C. § 848(q)(4)(B). On July 9, 1991, the district court approved Bonin’s $2,000 request for investigative work in Connecticut to locate potential childhood mitigation evidence. On October 30, 1991, and November 7, 1991, as the evidentiary hearing was drawing near, Bonin made two additional requests, each seeking an additional $2,000, for further investigative work in Connecticut. On November 22, 1991, the district court denied both requests. The district court also denied Bonin’s last minute requests for funds to have witnesses from Connecticut flown to Los Angeles to testify and instead agreed to accept their declarations in lieu of live testimony.
18 U.S.C. § 3006A requires the district court to provide funds to certain persons, including petitioners seeking relief under 28 U.S.C. § 2254, who are “financially unable to obtain investigative, expert, or other services necessary for adequate representation” upon a proper ex parte request. The amount of such funding, however, is limited to $1,000 unless the district court certifies that additional funds are required and the additional funds are approved by the Chief Judge of the circuit.
21 U.S.C. § 848(q)(4)(B) and (q)(9) requires the district court, upon proper ex parte application, to provide indigent habeas corpus petitioners seeking to vacate or set aside a death sentence with funds for investigative, expert or other services that are “reasonably necessary” for the representation of the petitioner if he is financially unable to obtain them himself. Section 848(q)(4)(B) and (q)(9) indicates that the amount of funds that may be provided under section 848(q)(4)(B) and (q)(9) is not, as the government argues, limited by the provisions of 18 U.S.C. § 3006A(e)(3). Instead, the district court is vested with discretion to authorize the expenditure of an amount of funds “reasonably necessary” for the representation of the petitioner. 21 U.S.C. § 848(q)(4)(B) and (q)(9).
The “decision to grant or deny a request for investigative services under § 3006A(e) is committed to the discretion of the trial court, and will be overturned on appeal only for an abuse of discretion.” United States v. Smith, 893 F.2d 1573, 1580 (9th Cir.1990) (Smith). Similarly, the district court’s decision to grant or deny funding under 21 U.S.C. § 848(q)(4)(B), and the amount of funding provided under that section, is also reviewed for abuse of discretion. See In re Lindsey, 875 F.2d 1502, 1507 n. 4 (11th Cir.1989).
We have held in non-habeas corpus cases that we will reverse a conviction because of a failure to provide funds under section 3006A only if the defendant establishes that he was deprived of effective assistance of counsel as a result. Thus, the defendant must establish: (1) that reasonably competent retained counsel would require such services for a client who could pay for them, and (2) that the lack of investigation prejudiced the defense. Smith, 893 F.2d at 1580; United States v. Fields, 722 F.2d 549, 551 (9th Cir.1983), cert. denied, 466 U.S. 931, 104 S.Ct. 1718, 80 L.Ed.2d 189 (1984); United States v. Becerra, 992 F.2d 960, 965 (9th Cir.1993) (Becerra). Prejudice must be shown by clear and convincing evidence. Becerra, 992 F.2d at 965. We hold that this standard also governs habeas corpus cases in which funds are requested under section 3Ó06A or section 848(q). We will therefore reverse the district court’s denial of Bonin’s habeas petitions only if Bonin: (1) establishes 'that reasonably competent retained counsel would have required the requested services for a habeas petitioner who could pay for them, and (2) demonstrates by clear and convincing evidence that the defense was prejudiced by the lack of further investigation.
Bonin had already secured substantial evidence of his imperfect childhood, including the declarations of several persons who had lived in the same orphanage and who stated that the conditions there were unpleasant. Additional declarations would have been merely redundant and reasonably competent retained counsel would not have required them. Reasonably competent retained counsel would also not have required these individuals to travel to Los Angeles to attend the evidentiary hearing, as the district court agreed to admit their declarations into evidence. Moreover, Bonin has failed to show prejudice flowing from the denial of funds. Therefore, we conclude that the district court did not abuse its discretion in refusing to allow additional investigative funding.
2.
Bonin also argues that certain evidentiary rulings deprived him of a full and fair evidentiary hearing before the district court. The “district court’s evidentiary rulings are reviewed for an abuse of discretion and will not be reversed unless the party has been prejudiced.” Price, 961 F.2d at 1474.
Bonin contends that the district court abused its discretion by refusing to hear evidence that Charvet was abusing drugs before and during the trials. Because we use an objective standard to evaluate counsel’s competence, once an attorney’s conduct is shown to be objectively reasonable, it becomes unnecessary to inquire into the source of the attorney’s alleged shortcomings. Strickland, 466 U.S. at 700, 104 S.Ct. at 2071. Because we conclude, as the district court did, that Charvet’s performance did not fall below the standard of objective reasonableness, it is irrelevant whether Charvet used drugs. See Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (drug use by attorney not relevant in and of itself to an ineffective assistance claim; relevant inquiry is whether counsel’s performance was deficient and caused prejudice), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986); McDougall v. Dixon, 921 F.2d 518, 535 (4th Cir.1990) (“appellant must show that the medication affected his attorney in such a way that he could not and did not render adequate legal assistance during the trial”), cert. denied, 501 U.S. 1223, 111 S.Ct. 2840, 115 L.Ed.2d 1009 (1991); see also Smith v. Ylst, 826 F.2d 872, 876 (9th Cir.1987) (attorney’s mental illness does not constitute ineffective assistance per se; court must evaluate attorney’s actual conduct of trial in light of allegations of mental illness), cert. denied, 488 U.S. 829; 109 S.Ct. 83, 102 L.Ed.2d 59 (1988). Because evidence of drug use is not relevant in and of itself, the district court did not abuse its discretion in refusing to admit evidence that Charvet used drugs.
Bonin also suggests that the district court abused its discretion by refusing to allow an expert on juror psychology (a ‘‘Strickland expert”) to testify concerning the likelihood that Bonin suffered prejudice as a result of Charvet’s alleged errors and omissions. A district court’s decision whether to allow expert testimony is reviewed for abuse of discretion. United States v. Rahm, 993 F.2d 1405, 1409-10 (9th Cir.1993).
Federal Rule of Evidence 702 permits expert testimony if “[it] will assist the trier of fact.” It was reasonable for the district judge to conclude that a juror psychology expert would not be helpful to him. The district judge is himself qualified to assess the likely responses of a jury to certain evidence and is also qualified to understand the legal analysis required by Strickland. There was no abuse of discretion.
Bonin further contends that the district court abused its discretion by refusing to allow Bonin to attack Charvet’s credibility by introducing State Bar Association records that allegedly indicate that Charvet committed bad acts against his clients. As we explained earlier in part II with respect to Bonin’s Cuyler claim, the district court did not abuse its discretion. See supra at 828-829.
3.
Bonin asserts that the district court abused its discretion by refusing to conduct an evidentiary hearing on the issue of whether Charvet was biased against him. Because Bonin failed to allege facts which, if proved, would entitle him to relief, the district court was not required to hold an evidentiary hearing. Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir.1992). The only fact alleged in support of Bonin’s charge that Charvet was biased against him is an off-the-record expression of ill feeling toward Bonin during an in-ehambers conference. Bonin does not even allege that he was prejudiced as a result. Such a statement did not constitute a breakdown of the adversarial process or deny Bonin effective assistance of counsel.
Bonin cites Frazer v. United States, 18 F.3d 778 (9th Cir.1994) (Frazer), but Frazer is clearly inapplicable. Frazer testified that his attorney called him a “stupid nigger son of a bitch and said he hopes I get life.” Id. at 780. Worse yet, the attorney threatened to “be very ineffective” if his client insisted on going to trial. Id. While the facts of Frazer supported the need for an evidentiary hearing to determine if counsel breached his duty of loyalty and denied his client effective assistance of counsel, the same cannot be said merely because an attorney expresses dislike for a client. If being liked by one’s lawyer were a sine qua non of effective representation, some clients might never be effectively represented. Thus, the district court did not abuse its discretion by refusing to hold an evidentiary hearing on this issue.
IV
Bonin contends that the prosecution’s presentation of Bonin’s Orange County murders, for which he had not yet been tried, at the penalty phase of the Los Angeles trial violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. At the penalty phase of Bonin’s Los Angeles trial, the court admitted, over Bonin’s objection, evidence of the four Orange County murders. The admission of this evidence was pursuant to California Penal Code § 190.3(b), which permits the introduction of evidence of past violent criminal activity at the penalty phase of a capital case, even if the defendant has not been tried for the crimes. People v. Phillips, 41 Cal.3d 29, 67-72, 222 Cal.Rptr. 127, 711 P.2d 423 (1985).
Bonin argues that when the Orange County murders were offered to the jury as an aggravating factor, he was presented with a Hobson’s choice — he could either admit his guilt to the Orange County murders and testify about any mitigating circumstances surrounding them or he could remain silent. If he admitted his guilt in order to testify about mitigating circumstances, however, his admission could then be used against him at the guilt phase of the Orange County trial. If he remained silent, he would preserve his ability to defend on the issue of guilt in the Orange County trial, but would forfeit his right to present all available mitigating evidence in the Los Angeles trial. Thus, he argues that by admitting evidence of crimes for which he was yet to be tried, the trial court effectively forced him to forgo either his Fifth Amendment right against self-incrimination or his Eighth Amendment right to present all available mitigating evidence in order to avoid the death penalty.
In rejecting this argument, both the district court and the California Supreme Court relied on McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated, 408 U.S. 941, 942, 92 S.Ct. 2873, 2873, 33 L.Ed.2d 765 (1972). In McGautha, the Supreme Court upheld the use of unitary trials in capital cases. Id. at 220. In challenging the constitutionality of unitary capital trials, the defendant used the same argument that Bonin now makes concerning the admission of evidence of the Orange Gounty murders. The defendant argued that unitary trials are unconstitutional because they require the defendant either to remain silent and forbear the opportunity to testify about evidence in mitigation or to risk having his testimony on the issue of punishment used against him on the issue of guilt. Id. at 210-11, 213. The Supreme Court rejected this argument, explaining that “[t]he criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow.... Although a defendant may have a right, even of constitutional dimension, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” Id. at 213 (citation omitted). The Court further stated that, “[t]he threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.” Id. After reviewing the policies of both the Fifth Amendment privilege against self-incrimination and the right to present evidence in mitigation, the Court concluded that the policies of neither right were significantly implicated by forcing the defendant to choose between remaining silent on both issues and testifying with respect to both issues. Id. at 213-20.
McGautha itself is not binding because it was later vacated, 408 U.S. at 941-42, 92 S.Ct. at 2873 (1972), in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Eighth Amendment requires that discretion of sentencing jury be limited by appropriate guidelines to prevent arbitrary infliction of death sentence). Fur-man, however, neither addressed the constitutionality of unitary trials nor in any other way undercut the rationale of McGautha that a defendant can be forced to choose between testifying in mitigation and remaining silent on the issue of guilt.
In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Supreme Court elaborated on Furman, stating that while certain Eighth Amendment “concerns are best met by a system that provides for a bifurcated proceeding ... [w]e do not intend to suggest that only the above-described procedures would be permissible under Furman." Id. at 195, 96 S.Ct. at 2935. Thus, the Court in Gregg made it clear that unitary trials in capital cases are constitutionally permissible so long as procedures are employed to guide adequately the discretion of the sentencing authority. If unitary trials are constitutionally permissible, as Gregg suggests, the rationale of the Court in McGautha must retain vitality. Further evidence that the McGautha reasoning remains sound is that the very passage we have quoted has continued to be cited both by this court and by the Supreme Court. See Newton v. Rumery, 480 U.S. 386, 393-94, 107 S.Ct. 1187, 1192, 94 L.Ed.2d 405 (1987); Corbitt v. New Jersey, 439 U.S. 212, 218-19 n. 8, 99 S.Ct. 492, 497 n. 8, 58 L.Ed.2d 466 (1978); United States v. Yarbrough, 852 F.2d 1522, 1529 (9th Cir.) (Yarbrough), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988).
Finally, in Yarbrough we expressly adopted the reasoning of McGautha in holding that a defendant in federal court is not deprived of his Fifth Amendment privilege against self-incrimination simply because he faces prosecution in state court on related charges. Yarbrough, 852 F.2d at 1529-30. A defendant in such a situation faces precisely the same dilemma that Bonin faced when evidence of the Orange County murders was introduced at the penalty phase of the Los Angeles trial, yet we concluded that the policies of the Fifth Amendment guarantee against self-incrimination were not significantly implicated by putting the defendant to the choice of testifying in one trial, at the risk of his testimony being used against him in the second trial, or remaining silent in both. Id. at 1529. We conclude that the reasoning of Yarbrough and McGautha is controlling, and that Bonin was not deprived either of his Fifth Amendment right against self-incrimination, or his Eighth Amendment or due process rights to present evidence in mitigation.
V
Bonin asserts that the denial of his motion for change of venue from Orange County deprived him of a fair trial. He asserts that pretrial publicity was so extensive that a fair jury could not be secured. Bonin did not provide us with any exhibits that were before the state trial court.
In Austad v. Risley, 761 F.2d 1348 (9th Cir.) (en banc), cert. denied, 474 U.S. 856, 106 S.Ct. 163, 88 L.Ed.2d 135 (1985), we made it clear that the district court does not have a duty to request and review the state court record sua sponte, absent a showing that the petitioner is unable to produce it. Id. at 1351. We further held that “[i]f an applicant who is able fails to produce the record, then he fails to carry his burden of establishing that the state court’s factual determination is not supported by the record.” Id. at 1353.
The state trial court found that Bonin could receive a fair trial in Orange County. This finding was affirmed by the California Supreme Court. People v. Bonin, 46 Cal.3d at 677, 250 Cal.Rptr. 687, 758 P.2d 1217. In Chaney v. Lewis, 801 F.2d 1191 (9th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), we held that “[a] determination of a juror’s partiality or bias and the. extent to which pretrial publicity was prejudicial are factual determinations to which § 2254(d)’s presumption of correctness applies.” Id. at 1194. The district court therefore properly treated this determination as a finding of fact entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(d). See Bonin v. Vasquez, 794 F.Supp. at 974. Since Bonin failed to produce any of the exhibits presented to the state trial court and failed to raise any new facts, the district court properly concluded, in accord with Austad, that Bonin had failed to overcome “the presumption of correctness that attaches to the state court’s decision.” Id.
VI
Bonin contends that he was denied effective assistance of counsel and due process because the judge in the Orange County case refused to allow his second attorney, Tracy Stewart, to make a closing argument at the penalty phase of the trial. After the close of the penalty phase evidence, the prosecutor presented his argument followed by Char-vet’s argument. The prosecutor then stated that he would not argue in rebuttal. A discussion then ensued, the relevant portion of which is provided in People v. Bonin, 46 Cal.3d at 691-93, 250 Cal.Rptr. 687, 758 P.2d 1217. The trial court was concerned because the defense team had indicated earlier that both Charvet and his associate would argue. In response, the court held that the two counsel would be allowed to argue only if they proceeded alternately, one giving a closing argument and the other providing surrebuttal. Since there would be no rebuttal, there was no opportunity for Stewart to argue in surrebuttal. The prosecutor repeatedly protested that he had “told everybody” that he would make no rebuttal argument, and Charvet responded: “He told us, but I didn’t believe him.” Because the trial court concluded that Stewart was allowed to argue only in surrebuttal, he did not allow further argument and proceeded to instruct the jury.
California Penal Code § 1095 provides: “If the offense is punishable with death, two counsel on each side may argue the cause.” In addressing this claim in Bonin’s direct appeal, the California Supreme Court held that section 1095 does not require the two members of the defense team to proceed alternately, and that the Orange County court therefore erred. Id. at 693-95, 250 Cal.Rptr. 687, 758 P.2d 1217. The California Supreme Court went on, however, to explain that section 1095 does not create an absolute right to have two counsel argue apart from the more general guarantees of the Sixth Amendment and the Due Process Clause that counsel have a full and fair opportunity to participate in the adversary process. Id. at 694-95, 250 Cal.Rptr. 687, 758 P.2d 1217. The court pointed out that Charvet had presented a “full and unrestricted” argument and had indicated that his closing argument was sufficient and that further argument by Stewart was dispensable. Id. at 695, 250 Cal.Rptr. 687, 758 P.2d 1217. The California Supreme Court concluded that Bonin received a complete and constitutionally adequate closing argument, and that “under any standard of prejudice the error must be deemed harmless.” Id. at 695, 250 Cal.Rptr. 687, 758 P.2d 1217.
Because the California Supreme Court is the final expositor of California law, we must accept its conclusion that the judge at the Orange County trial violated section 1095 by erroneously refusing to allow Stewart to argue. However, the violation of Bonin’s state law right does not warrant habeas corpus relief. The Supreme Court has frequently held that habeas corpus relief is not available to remedy state law errors, and that “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991).
Bonin argues that the California statute which gives the defendant in a capital case the right to have two-defense attorneys argue in his behalf creates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. A protected liberty interest may be created by state law, but only in limited circumstances. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460-63, 109 S.Ct. 1904, 1908-10, 104 L.Ed.2d 506 (1989) (Thompson); Dix v. County of Shasta, 963 F.2d 1296 (9th Cir.1992) (Dix). In order to create a liberty interest protected by due process, the state law must contain: (1) “substantive predicates” governing official decisionmaking, and (2) “explicitly mandatory language” specifying the outcome that must be reached if the substantive predicates have been met. Thompson, 490 U.S. at 462-63, 109 S.Ct. at 1910; Dix, 963 F.2d at 1299. In order to contain the requisite “substantive predicates,” the state law at issue “must provide more than merely procedure; it must protect some substantive end.” Dix, 963 F.2d at 1299. Indeed, we have drawn a careful distinction between procedural protections created by state law and the substantive liberty interests those procedures are meant to protect. Moran v. Godinez, 40 F.3d 1567, 1574 (9th Cir.1994); Smith v. Sumner, 994 F.2d 1401, 1406 (9th Cir.1993). The denial of state-created procedural rights is not cognizable on habeas corpus review unless there is a deprivation of a substantive right protected by the Constitution. See Olim v. Wakinekona, 461 U.S. 238, 250-51, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983). “The state may choose to require procedures for reasons other than protection against deprivation of substantive rights, of course, but in making that choice the State does not create an independent substantive right.” Id. (footnote omitted).
Section 1095 clearly does not create a protected liberty interest. To the contrary, it merely creates a state procedural right which is itself designed to facilitate the protection of more fundamental substantive rights such as the rights to effective assistance of counsel and a reliable verdict. It contains neither “substantive predicates” protecting a substantive end nor “explicitly mandatory language” requiring a particular result if the “substantive predicates” are met. Bonin’s contention that he was deprived of a state-created liberty interest in having two attorneys make closing arguments must therefore fail.
It is clear that a criminal defendant has a constitutional right to effective representation, including a right to make a closing argument. Herring v. New York, 422 U.S. 853, 858, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975). But there is certainly no federal constitutional right to have two attorneys make closing arguments even in death penalty cases. See id. at 862, 95 S.Ct. at 2555 (trial court has great latitude to regulate argument).
Preventing Stewart from making a closing summation clearly did not deprive Bonin of a fair trial or deprive him of effective assistance of counsel. Charvet’s closing argument was not limited in any way by the trial court. There is no evidence that he refrained from making any arguments in reliance on his expectation that Stewart would also be allowed to speak. Indeed, the available evidence suggests the contrary. Moreover, from an objective perspective, Char-vet’s closing remarks were more than constitutionally adequate. Bonin has failed to demonstrate any legitimate ground for granting habeas corpus relief due to the Orange County trial court’s refusal to allow Stewart to make an additional closing argument.
VII
Bonin argues that the Los Angeles trial court erred in not suppressing the testimony of Munro and Miley. The basic thrust of Bonin’s contention is that the Los Angeles prosecutor broke his promise not to use certain statements Bonin made in a plea bargain meeting, because they were used to help convince Munro and Miley to testify against him.
We do not address this contention because it is procedurally barred. The California Supreme Court concluded that Bonin had failed to raise properly any objection during his trial. People v. Bonin, 47 Cal.3d at 845, 254 Cal.Rptr. 298, 765 P.2d 460. As the Supreme Court has explained:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Bonin has not demonstrated cause for failing to object at trial. He has also failed to demonstrate actual prejudice or that a fundamental miscarriage of justice will result if this claim is barred. Thus, we do not address it.
VIII
■Bonin maintains that prosecutorial misconduct deprived him of due process. He first complains about the prosecutor’s use of David Lopez’s testimony. Dining the guilt phase of the Orange County trial, the prosecution called Lopez, a television reporter, to testify about certain confessions made by Bonin during an interview. Bonin was being tried for only four murders in Orange County. Before Lopez testified, Charvet asked the trial judge about the scope of the testimony that would be permitted. He was concerned about prejudice resulting if Lopez testified, as he had in Los Angeles, that Bonin admitted killing over 20 people. The prosecutor then made an offer of proof, explaining that he “didn’t intend to elicit any conversations between Bonin and Lopez with respect to murders other than Fox, Rugh, Barker, Sharp, Wells and Miranda.” The prosecutor explained that Bonin admitted killing all of those individuals by name except for Fox, but that he would show that Fox’s name was on a list of victims that Bonin admitted killing. The trial court clearly authorized the prosecutor to question Lopez about the six victims he named. Four of the individuals were the Orange County victims and the other two were victims killed in the presence of Munro and Miley. The court indicated reluctance to allow the prosecutor to discuss the other 17 names on the list, but never expressly ruled whether the prosecution could ask how many names were on the list and whether Bonin admitted killing all of them.
In order to get Bonin’s confession to the Fox killing into evidence, the prosecutor asked Lopez how many victims were on the list. Over Charvet’s objection, Lopez stated that 21 names were on the list. Lopez then testified that Fox’s name was among them. Then the prosecutor asked whether Bonin had admitted killing the people on the list. Again, over Charvet’s objection, Lopez testified that Bonin admitted killing all of the victims on the list except Lundgren. Char-vet protested, arguing that the statements were prejudicial. A motion for a mistrial was denied as was a motion to strike the testimony. The trial court indicated that it was allowing the testimony because it was the only way to establish that Bonin admitted killing Fox.
To constitute a due process violation, the prosecutorial misconduct must be so severe as to result in the denial of Bonin’s right to a fair trial. Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3108-09, 97 L.Ed.2d 618 (1987). Although Bonin frames this argument in terms of prosecutorial misconduct, the issue is really one of alleged trial error because the trial court allowed the testimony. Even if the court’s earlier statements could be interpreted as prohibiting such questioning, the court’s decision to overrule Charvet’s objections and subsequent refusal to strike indicate that the court made a conscious decision to permit the testimony. We conclude there was no error, but even if there were, we may grant habeas corpus relief only if the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, — U.S. at -, 113 S.Ct. at 1714, quoting Kotteakos, 328 U.S. at 766, 66 S.Ct. at 1248-49.
Applying this standard, we conclude that Bonin is not entitled to habeas corpus relief. The evidence of Bonin’s guilt was overwhelming. The brief revelation that Bonin admitted killing all the boys on the list rather than only six did not deprive him of a fair trial or have a substantial and injurious effect on the jury’s verdict.
Second, Bonin contends that reversal is required because the prosecutor knowingly used perjured testimony. Barnes, a jailhouse informant who had been incarcerated with Bonin in the Los Angeles County jail, testified at both trials that Bonin confessed to killing some boys. Barnes’s testimony departed somewhat from the rest of the evidence against Bonin in that Barnes was the only witness who connected Bonin with motorcycles and said that Bonin would talk about “a glass of snot with ice cubes in it.” Barnes was also unable to recall any names that were mentioned by Bonin or other salient details. The prosecutors in both cases placed very little weight on Barnes’s testimony. It was referred to only briefly during closing arguments in the Los Angeles trial and was not mentioned in either the guilt or penalty phase arguments of the Orange County case.
Six years later, Barnes signed a declaration stating that he had merely memorized a script presented to him by two police officers and two other persons in return for a promise that they would recommend a lesser sentence in his own case, that he discussed the matter with his attorney who instructed him to accept the arrangement, and that the officers gave him hand signals during the trials to help him answer questions in the manner they desired. Barnes signed the declaration in the name of Thomas Allen Porter. It is unclear which is his real name and which is his alias. Bonin asserts that the declaration is true and that the prosecutors knowingly used perjured testimony.
If a prosecutor knowingly uses perjured testimony or knowingly fails to disclose that testimony is false, the conviction must be set aside if “there is any reasonable likelihood that the false testimony could have affected the jury verdict.” United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989), citing United States v. Bagley, 473 U.S. 667, 678-80, 105 S.Ct. 3375, 3381-83, 87 L.Ed.2d 481 (1985). Barnes’s declaration is the only evidence offered to support a finding that the prosecutors knowingly introduced perjured testimony. The declaration, however, is patently unbelievable. It asserts that several police officers, prosecutors, a judge, and Barnes’s attorney all took part in this conspiracy. It asserts that they offered to fix any lie detector test and that they would give him hand signals at trial. The declaration is at best a curious fiction signed by a criminal incarcerated at Folsom State Prison with no reason not to lie.
But even if the declaration were true, there is no reasonable likelihood that the testimony affected the jury’s verdict. Four other witnesses testified that Bonin had admitted killing young males, and Barnes’s testimony was hardly used by the prosecution in either trial. Considering that there was overwhelming evidence of Bonin’s guilt and that Barnes’s testimony constituted but a very small fraction of the total evidence against him, it is not reasonably likely that the alleged perjured testimony affected the jury’s verdict.
IX
Bonin contends that the district court abused its discretion by denying his May 15, 1991, motion to amend the Orange County petition. Bonin filed his Orange County petition on July 11, 1990. On March 13, 1991, over eight months later, the State filed a motion to compel Bonin to identify all possible claims or waive them. See Neuschafer v. Whitley, 860 F.2d 1470, 1482 (9th Cir.1988), cert. denied, 493 U.S. 906, 110 S.Ct. 264, 107 L.Ed.2d 214 (1989). On April 19, 1991, the district court denied the motion. It explained that there was no longer any risk of piecemeal litigation because the Supreme Court had just decided McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), which held that claims raised in subsequent habeas corpus petitions would be barred absent a showing of cause and prejudice. In its order denying the motion to compel, however, the Court stated that it would “allow [Bonin] until May 13, 1991 ... to file an amended petition for either or both ... cases to include any additional claims upon which the petitioner alleges relief may be granted.” The court subsequently extended the deadline to file any additional documents including “an amended petition” to May 15.
On May 15, Bonin filed a “First Amendment” to his petition adding eight “new” claims. The court subsequently refused to allow Bonin to add the additional claims. The district judge explained that although he had granted Bonin leave to amend his petition, he did so only because of the possibility that any claims discovered after the filing of the first petition might be barred, pursuant to McCleskey, in any subsequent habeas petition. The district judge stated that all of the “new” claims presented in the First Amendment could have been raised when Bonin initially filed his petition. He then went on to treat Bonin’s proposed amendments as a second habeas petition, concluded that the new claims constituted an abuse of the writ, and dismissed the proposed amendments citing McCleskey and Rule 9(b) of the Rules Governing Section 2254 Cases.
Bonin filed a motion to reconsider, and the district court issued an eight-page order denying the motion which carefully explained the district court’s reasons. The district judge stated that in issuing his initial order allowing Bonin leave to amend his petition, he had expected that Bonin would amend only with claims discovered since the filing of his petition. He assumed this based on Bonin’s opposition to the State’s Neuschafer motion and Bonin’s representations to the court that his petition was “professionally and capably prepared and ... fully comprehensive,” and that he was not keeping claims “in his hip pocket.” The district court addressed McCleskey briefly, but did so just to explain that it had denied the government’s Neuschafer motion and granted Bonin leave to amend only to ensure that 'Bonin had an opportunity to raise any new claims that he had discovered since the filing of the petition which might later be precluded under McCleskey if not then raised. The district court then explained that four of the proposed amendments (claims V, W, X, and Y) arose out of facts that had already been raised in the Los Angeles petition — Bonin’s decision to provide the prosecution with a taped confession for purposes of plea bargaining. The court pointed out that Bonin raised this issue in his automatic appeal in the Los Angeles case and was therefore clearly aware of the issue, yet just two months before attempting to add the amendments represented to the court that the petition was full and complete and that he was not keeping any claims in his hip pocket. The court explained that claims AA, CC, and two of the three parts of BB merely restated arguments and relied on facts already raised in the petition. Finally, it explained that only claim Z and one part of claim BB were unrelated to claims already raised in the petition. However, it went on to demonstrate that the claims were patently frivolous. In summation, the court reiterated that Bonin’s federal habeas corpus counsel also represented him in his automatic appeals and state habeas proceedings (in both the Los Angeles and Orange County cases), and that counsel attempted to raise these eight “old” claims only two months after assuring the court that it had no other claims to raise.
Bonin argues that the district judge abused his discretion by refusing to allow the amendments because Rule 15(a) requires that amendments be freely allowed. Rule 15(a) allows a party to amend his complaint by leave of the court at any time, and such leave “shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). The denial of a motion for leave to amend pursuant to Rule 15(a) is reviewed “for abuse of discretion and in light of the strong public policy permitting amendment.” Outdoor Systems, Inc. v. City of Mesa, 997 F.2d 604, 614 (9th Cir.1993) (Outdoor Systems). In doing so, we often consider: bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the party has previously amended his pleadings. Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 204 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 74,121 L.Ed.2d 39 (1992). However, each is not given equal weight. Futility of amendment can, by itself, justify the denial of a motion for leave to amend. Thus, in Outdoor Systems, 997 F.2d at 614, we affirmed the district court’s denial of a motion for leave to amend because the proffered amendments would be nothing more than an exercise in futility. Additionally, we have held that a district court does not abuse its discretion in denying a motion to amend where the movant presents no new facts but only new theories and provides no satisfactory explanation for his failure to fully develop his contentions originally. Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990).
In the present case, four of the amended claims relate to Bonin’s decision to speak to the Los Angeles prosecutors in furtherance of a potential plea bargain. These facts were placed in issue in Bonin’s Los Angeles petition as well as in his automatic appeal of the Los Angeles case. These theories should have been pleaded in his petition originally. The remainder of Bonin’s proposed amendments are either duplicative of existing claims or patently frivolous, or both. Amending the petition to include them would be futile.
Bonin also argues that we must remand these claims to the district court because the district court did not properly exercise its discretion under Rule 15 because it incorrectly believed that the strict “cause and prejudice” standard of McCleskey applied. The district court is deemed to have abused its discretion if it applies incorrect legal standards. See, e.g., Zepeda v. INS, 753 F.2d 719 (9th Cir.1983) (motion for preliminary injunction). The district court’s initial order raised the McCleskey issue, but its subsequent thorough and well-reasoned order denying the motion to reconsider makes it clear that it was exercising its discretion and that its decision was guided by appropriate considerations. The district judge did state once in his denial of the motion to reconsider that Bonin was “abusing the writ.” This incidental reference to the doctrine of abuse of the writ, however, does not support the conclusion that the district court believed that it was forced to dismiss the amendments under McCleskey. We conclude that the district court did not abuse its discretion in denying Bonin’s May 15, 1991, motion to amend the Orange County petition.
Bonin also contends that the district court abused its discretion by denying his December 23,1991, motion to amend the Los Angeles petition. As explained earlier, the district court granted Bonin until May 15, 1991, to amend either petition. Bonin’s December 23, 1991, motion to amend the Los Angeles petition was therefore seven months late. Moreover, the claims raised were identical to the ones raised in Bonin’s May 15, 1991, motion to amend the Orange County petition. In denying the motion, the district court explained that the motion was untimely and expressly adopted the reasoning contained in its December 23, 1991, denial of Bonin’s motion to reconsider its May 23, 1991, order dismissing Bonin’s proposed amendments to the Orange County petition. Because the motion to amend was untimely and because the district court’s December 23, 1991, order denying Bonin’s motion to reconsider was based on appropriate considerations, we conclude that the district judge did not abuse his discretion.
Bonin also asserts that the district court abused its discretion by denying his August 18, 1992, motion to amend the Los Angeles petition. Bonin v. Vasquez, 807 F.Supp. 586 (C.D.Cal.1992). Because final judgment had not yet been entered in the Los Angeles case, this motion was correctly treated as an untimely Rule 15(a) motion to amend the petition. Bonin v. Vasquez, 999 F.2d at 427, 431. Although the district court opined that Bonin’s August 18, 1992, motion to amend the Los Angeles petition constituted “abuse of the writ,” it did not in any way rely on McCleskey. Id. at 431. The district court did not abuse its discretion in denying this motion. As the district court explained, Bonin brought this motion “long after the work in the case had concluded and seven months after the Court took the petition under submission.” Bonin v. Vasquez, 807 F.Supp. at 587. Moreover, because Bonin “brought the motion only after the Court denied the petition in his Orange County case,” the district court correctly found that Bonin had acted in bad faith by not proposing the amendments earlier. Id. The district court also pointed out that Bonin had already been granted an opportunity to amend the petition, and had failed to do so despite the fact that the claims were apparent given the briefest of investigation. Id. Although there is a strong policy of liberally allowing amendments pursuant to Rule 15(a), and this policy is of no less significance in section 2254 cases in which McCleskey will bar subsequent petitions, we conclude that the district court did not abuse its discretion. Bonin’s belated and bad faith efforts to amend the Los Angeles petition did amount to an abuse of the writ.
Finally, Bonin challenges the district court’s denial of his August 18, 1992, motion to amend the Orange County petition. In our previous order, we held that because final judgment had already been entered in the Orange County case, the district court properly construed this motion as a request for relief from the judgment pursuant to Rule 60(b) and correctly required Bonin to comply with the requirements of McCleskey. Bonin v. Vasquez, 999 F.2d at 427-28. In a “Motion and Request to Correct Prior Opinion and for Submission of Issue VIII for Decision Under Correct Standard of Review,” Bonin now contends that the judgment was never entered on a separate document as required by Federal Rule of Civil Procedure 58, and that the district court therefore erred by treating the motion as a Rule 60(b) motion for relief from judgment rather than a Rule 15 motion to amend.
To the extent that Bonin’s motion requests correction of factual statements contained in our previous opinion, it is procedurally barred due to his failure to seek such corrections by means of a timely petition for rehearing in accordance with Federal Rule of Appellate Procedure 40.
We have held that the period for filing a notice of appeal does not begin until judgment has been entered on a separate document in compliance with Rule 58. See Allah v. Superior Court, 871 F.2d 887, 890 (9th Cir.1989). We have also held that the time limit for filing a Rule 60(b) motion also does not begin to run until judgment has been entered on a separate document. See Carter v. Beverly Hills Sav. & Loan Ass’n, 884 F.2d 1186, 1188-90 (9th Cir.1989), cert. denied, 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990). However, the Supreme Court has made it clear that the sole purpose for the separate document requirement is to clarify when the time for appeal begins to run, and that Rule 58’s technical separate judgment requirement is not jurisdictional and can be waived. Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978); see also Ingram v. Acands, Inc., 977 F.2d 1332, 1339 n. 7 (9th Cir.1992); Blazak v. Ricketts, 971 F.2d 1408, 1409 & n. 2 (9th Cir.1992); Teamsters Pension Trust Fund v. H.F. Johnson, Inc., 830 F.2d 1009, 1012 (9th Cir.1987). There is no reason why the district court’s failure to comply with the separate judgment requirement of Rule 58 should have any bearing on whether Bonin’s motion should have been considered under Rule 15(a) or Rule 60(b). The district court issued a written Opinion and Order on July 20, 1992, denying the Orange County petition, which was subsequently published, Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992). Stamped on the front of the order was a notification to the parties stating: “THIS CONSTITUTES NOTICE OF ENTRY AS REQUIRED BY FRCP, RULE 77(d).” At the end of the order are the words “IT IS SO ORDERED,” and the order is signed and dated by the district judge. All of the parties treated this document as a final judgment, and Bonin has not demonstrated that he was prejudiced in any way by the district court’s failure to enter judgment on a separate document. Although entry of judgment on a separate document pursuant to Rule 58 triggers the running of the time limit for filing a notice of appeal and for filing postjudgment motions, the district court’s order marked the appropriate threshold between prejudgment and postjudgment motions. We conclude that the district court correctly construed Bonin’s August 18, 1992, motion to amend the Orange County petition as a Rule 60(b) mtion subject to the cause and prejudice standard of McCleskey.
X
Bonin argues that the penalty juries in both trials were biased in favor of the death penalty as the result of numerous instructional errors. Bonin points to six possible instructional errors which he argues violated due process and his Eighth Amendment right to a reliable penalty verdict. ‘When a habeas petitioner asserts a due process violation on the basis of jury instructions, our review is limited to determining whether an allegedly defective jury instruction so infected the entire trial that the resulting conviction violates due process.” Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir.1993) (internal quotations omitted), cert. denied, — U.S. -, 114 S.Ct. 643, 126 L.Ed.2d 602 (1993). We have further explained that “ ‘[t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.’ ” Id., quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977).
When a factor employed as an aid to determine whether the death penalty shall be imposed is challenged as being unconstitutionally vague under the Eighth Amendment, our review should be “quite deferential.” Tuilaepa v. California, — U.S. -, -, 114 S.Ct. 2630, 2635, 129 L.Ed.2d 750 (1994) (Tuilaepa), citing Walton v. Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 3058, 111 L.Ed.2d 511 (1990). A “factor is not unconstitutional if it has some ‘common-sense core of meaning ... that criminal juries should be capable of understanding.’ ” Id. — U.S. at -, 114 S.Ct. at 2635-36, quoting Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959-60, 49 L.Ed.2d 929 (1976) (White, J., concurring).
A.
In accordance with California Jury Instructions, Criminal (CALJIC) No. 8.8.42, the trial courts in both cases listed the statutory mitigating circumstances and instructed the jury to consider the listed factors that were applicable. Bonin v. Vasquez, 807 F.Supp. at 619; Bonin v. Vasquez, 794 F.Supp. at 979. Bonin argues that this allowed the juries to consider the absence of numerous possible mitigating circumstances to be aggravating circumstances.
We recently rejected a virtually identical argument. Williams, 52 F.3d at 1481. Both courts instructed the juries to consider the listed factors only “if applicable.” The cautionary words “if applicable” warned the jury that not all of the factors would be relevant and that the absence of a factor made it inapplicable rather than an aggravating factor.
B.
Bonin also contends that the instructions in both trials permitted the juries to double count aggravating factors. Both the Los Angeles and Orange County courts instructed the juries to consider: “(a) the circumstances of the crime of which [Bonin] was convicted in the present proceeding and the existence of any special circumstance found to be true; (b) the presence or absence of criminal activity by [Bonin] which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Bonin v. Vasquez, 807 F.Supp. at 620; Bonin v. Vasquez, 794 F.Supp. at 981. This instruction was taken verbatim from the then CALJIC No. 8.84.1 (subsequently amended), which was itself taken verbatim from California Penal Code § 190.3. While paragraph (a) obviously refers to the crimes for which the defendant has been convicted, paragraph (b) is intended to refer to crimes for which the defendant has not been convicted. People v. Bonin, 47 Cal.3d at 854, 254 Cal.Rptr. 298, 765 P.2d 460. Bonin’s argument has been foreclosed by the Supreme Court’s recent holding that the version of paragraph (b) at issue here is not unconstitutionally vague. Tuilaepa, — U.S. at -, 114 S.Ct. at 2637.
C.
Bonin maintains that the use of age as a factor in sentencing, without specific instructions about how age was relevant or whether it was an aggravating or mitigating circumstance was unconstitutionally vague. This argument fails because the Supreme Court has held that the use of age as a sentencing factor without specific instructions regarding whether it is an aggravating or mitigating factor is not unconstitutionally vague. Id — U.S. at -, 114 S.Ct. at 2637-38.
D.
Bonin contends that the submission of a multiple murder special circumstance for each murder improperly affected the jurors’ weighing of the aggravating and mitigating factors. Under California law, “no matter how many murder charges are tried together, they constitute a single multiple-murder special circumstance.” People v. Anderson, 43 Cal.3d 1104, 1150, 240 Cal.Rptr. 585, 742 P.2d 1306 (1987). The California Supreme Court concluded that the trial courts in both cases erred in charging Bonin with a multiple-murder special circumstance for each count of murder, but decided the error was harmless. People v. Bonin, 47 Cal.3d at 854, 254 Cal.ptr. 298, 765 P.2d 460; People v. Bonin, 46 Cal.3d at 702-03, 250 Cal.Rptr. 687. The district court also concluded that the error was harmless. Bonin v. Vasquez, 807 F.Supp. at 615; Bonin v. Vasquez, 794 F.Supp. at 981.
The error committed in charging Bonin with a special circumstance for each count of murder is an error of state law, which was cured for our purposes by the State Supreme Court’s conclusion that the error was harmless in Bonin’s case. See Williams, 52 F.3d at 1480.
E.
Bonin further contends that the juries’ sense of responsibility for their sentencing decision was unconstitutionally lessened by the trial court’s instruction: “If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death.” (Emphasis added.). This argument is foreclosed by the Supreme Court’s decisions in Boyde v. California, 494 U.S. 370, 374-77, 110 S.Ct. 1190, 1195-96, 108 L.Ed.2d 316 (1990) (holding that the “shall impose” language of California’s death penalty sentencing instructions does not violate the Eighth Amendment), and Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083, 108 L.Ed.2d 255 (1990) (holding that the mandatory imposition of the death penalty when one aggravating factor and no mitigating factors are shown does not violate the Eighth Amendment, and explaining that “[t]he requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.”).
F.
Bonin also argues that the failure to instruct the Orange County jury on the meaning of the term “life without possibility of parole” renders Bonin’s Orange County death sentence unreliable. He asserts that the jurors in his Orange County trial may have labored under the misconception that one sentenced to “life without possibility of parole” may actually be paroled, and that the trial courts should therefore have instructed the jury sua sponte that “life without possibility of parole” really means without possibility of parole.
The California Supreme Court did determine that 10 of the 204 prospective jurors examined on voir dire may have held this misconception, but that none of these individuals were selected as jurors or alternates. People v. Bonin, 46 Cal.3d at 698, 250 Cal.Rptr. 687, 758 P.2d 1217. Bonin responds that this misconception was widespread and that it is impossible to know exactly how many jurors held it because not all of the prospective jurors were asked about then-understanding of the term. Bonin’s argument is pure speculation. He offers no evidence that any of the jurors in his trials believed that “life without possibility of parole” means anything other than what it says.
XI
Finally, Bonin argues that all'of the alleged trial errors and conflicts between himself and his attorney combined to create a wholesale deprivation of counsel which defies particularized analysis and necessitates a new sentencing hearing regardless of whether prejudice is shown. Bonin correctly points out that the total denial of counsel, whether it be actual or constructive, is presumed to result in prejudice. United States v. Cronic, 466 U.S. 648, 658-66, 104 S.Ct. 2039, 2046-51, 80 L.Ed.2d 657 (1984) (discussing cases in which errors resulted in constructive denial of counsel altogether and prejudice was not required). Bonin is also correct that some Sixth Amendment violations are so severe that they fundamentally undermine the adversary process and require reversal without any showing of prejudice. See, e.g., Frazer, 18 F.3d at 782-85 (defendant entitled to new trial despite failure to show prejudice where counsel used racial epithets toward defendant and threatened not to assist defendant). Bonin’s case, however, clearly does not fit within either of these extremely limited exceptions to Strickland.
All other issues raised by Bonin were considered but rejected.
AFFIRMED.
[OPINION BY KOZINSKI, Circuit Judge, type=concurrence]
KOZINSKI, Circuit Judge,
concurring.
The facts of this case shock even those of us inured to shocking facts by years of capital cases. Most distressing, however, is that these tragedies could have been averted: Bonin gave us more than fair warning of his proclivities before he embarked on his killing spree. The sordid tale begins at least as early as Bonin’s service in Vietnam, when “he began to engage in violent nonconsensual homosexual activity.” People v. Bonin, 46 Cal.3d 659, 671, 250 Cal.Rptr. 687, 758 P.2d 1217 (1988). Upon returning to civilian life, Bonin was twice convicted of kidnapping and sexually molesting a total of five boys between the ages of twelve and eighteen. The first conviction, in 1969, brought him all of three years behind bars; the second, in 1975, only three more. People v. Bonin, 47 Cal.3d 808, 824, 254 Cal.Rptr. 298, 765 P.2d 460 (1989). In 1978, Bonin was let loose on an unsuspecting population, condemning at least fourteen (and perhaps as many as twenty-one) more boys to sexual abuse, followed by slow, painful deaths. One knows not whether to pity more the victims of this ordeal or their parents, who must live with the dreadful knowledge of how their children perished.
Scott Geddes also gave us early warning. Geddes started at age sixteen and, prior to his last offense, had already been convicted on felony charges four different times — three for brutal sexual assaults against women. Geraldine Baum, Crime & Punishment, L.A Times, Apr. 12, 1995, at El & E4. He received sentences ranging from two to five years for his first four convictions. Id. After each release, he usually committed another crime within the month. Id. Despite the obvious hazard presented by someone with Geddes’s record, the state of New York released him again in 1993. Id. at E4. Less than three weeks later, Geddes assaulted his fourth rape victim, stabbed her repeatedly and forced her to walk from her blood-soaked car to a creek. Id. There, he finished her off and left her body floating face down in the water. Id.
Walter McFadden was convicted of a double rape for which he spent less than five years behind bars. Deroy Murdock, Lifer Law for Repeat Felons?, Wash. Times, Apr. 17, 1993, at Cl. Released on parole, he hastened to rape again. Id. McFadden’s second prison stay also lasted less than five years, after which he was again placed on parole. Id. Within a year, he murdered two teenagers, and raped and then murdered an eighteen-year old girl. Id.
Kenneth McDuff was convicted in 1966 of brutally murdering two teenage boys, see Green v. Estelle, 601 F.2d 877 (5th Cir.1979), and raping a teenage girl and snapping her neck with a broomstick. Stephanie Mencimer, Righting Sentences, Wash. Monthly, Apr. 1993, at 26. Although McDuff was to receive the death penalty, his sentence was commuted to life in prison and he was paroled in 1989. Id. Over the course of the next year, he became a suspect in nine brutal rape-homicides, id., and was eventually convicted of murdering two women, one of them pregnant. Kathy Walt, Former Parole Chief Sentenced in Perjury, Houston Chron., Aug. 11, 1994, at 25A, 32A (recounting trial of parole official instrumental in McDuffs release).
Then there is the notorious case of Westley Allan Dodd. Starting in high school, Dodd was arrested numerous times for sexual offenses involving children, including the molestation of his two young cousins and a kidnapping attempt where he admitted he had intended to rape and murder the seven-year-old victim. Timothy Egan, Death Row, Vancouver Sun, Jan. 2, 1993, at A1, available in WESTLAW, VNCVRSUN database, available in LEXIS, News Library, Allnws file. Even as an adult, Dodd received only brief jail stays, the longest amounting to four months. Id. Two years after his last release, Dodd tortured, raped and murdered a four-year-old boy and two brothers, aged ten and eleven. State v. Dodd, 120 Wash.2d 1, 838 P.2d 86, 87-89 (1992). Arrested for trying to kidnap a six-year-old boy, Dodd explained that, given the leniency he had been shown thus far, he figured he could keep getting away with his crimes. Egan, Vancouver Sun, Jan. 2,1993, at Al. In all, Dodd molested over thirty children. Peter J. Ferrara et al., The Candidate’s Briefing Book 139 (1994).
There is a pattern here. Of the 2,716 death row inmates in 1993, almost two-thirds had prior felony convictions. Bureau of Justice Statistics, U.S. Dep’t of Justice, Bulletin No. NCJ-150042, Capital Punishment 1993 at 10 (1994). Twenty-eight percent of all death row inmates were on probation, parole or pre-trial release at the time of their capital offense. Id. It should come as no surprise, then, that repeat offenders — though only 6% of criminals — commit 70% of all serious crimes. Gwenn Ifill, Crime Proposal’s Effect on Gun Use Is Questioned, N.Y. Times, May 24, 1991, at A14.
Our society surely has its priorities misplaced when someone with Bonin’s record of contempt for the personal integrity of others is released in the blink of an eye, while dealers of controlled substances — even in relatively small quantities — are given ten-year, twenty-year and life terms. Many others have called attention to this disparity. In United States v. Staufer, 38 F.3d 1103 (9th Cir.1994), for example, the defendant was convicted on a one-count indictment for selling half a gram of LSD — his first conviction. Id. at 1105. The district judge noted with exasperation that he was compelled “ ‘to give Mr. Staufer for the transaction more time in prison than [he was] authorized to give a man who murdered his wife on their honeymoon.’ ” Id. Were we as committed to punishing and preventing physical violence as we are to waging the war on drugs, Bonin’s victims, and those of many other brutal killers, might still be among us.
There is a long, dreary list of similar cases. See, e.g., Oliver Starr, Jr., The Case of Richard Davis, Nat'l Rev., May 30, 1994, at 34 (describing Richard Allen Davis, who was arrested well over a dozen times before being charged with kidnapping and murdering Polly Klaas); People v. Viale, 121 A.D.2d 486, 503 N.Y.S.2d 583, 584 (1986), Charles V. Zehren, NY Debates Locking Up Repeat Felons for Life, Newsday, Jan. 16, 1994, at 19 (describing Michael Viale, who had three pri- or violent felony convictions, including one for murder, before being charged with stabbing a housewife to death); People v. Gallego, 52 Cal.3d 115, 276 Cal.Rptr. 679, 708, 802 P.2d 169, 175-76 (1990), Gallego v. State, 101 Nev. 782, 711 P.2d 856, 858 (1985), Patricia Holt, Lurid New Account of'Sex Slave’ Killer, S.F. Chron., July 17, 1990, at E5 (describing Gerald Gallego, who was charged twenty-seven times and convicted seven times on felony counts before kidnapping, torturing and killing ten young women in his search for the perfect sex slave); McKenzie v. Osborne, 195 Mont. 26, 640 P.2d 368, 381 (1981), State v. McKenzie, 171 Mont. 278, 557 P.2d 1023, 1033 (1976) (describing Duncan McKenzie, who had been convicted of brutally raping a woman, been paroled, gotten thrown back into prison for numerous parole violations and then been paroled again before brutally raping and killing another woman); State v. Fischer, 38 N.J. 40, 183 A.2d 11, 12 (1962), Reuters, July 31, 1979, available in LEXIS, News Library, Allnws file (describing Joseph Fischer, who had been convicted of murder, was released and then killed twenty more people).
There is a long and not particularly inspiring list for this category as well. See, e.g., United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.1991) (affirming life sentence without possibility of parole for twenty-two-year-old because he had previously been convicted of cocaine possession); United States v. Hoyt, 879 F.2d 505, 512-14 (9th Cir.1989) (holding that ten-year sentence for first-time offender under cocaine possession statute is constitutional); United States v. Hanlin, 48 F.3d 121 (3rd Cir.1995) (affirming ten-year sentence for possession of 167 milligrams of LSD carried on 24.3 grams of paper); Cracking Down on the Right Targets, L.A. Times, Sept. 28, 1994, at B6 (percentage of federal prisoners who are drug offenders has quadrupled from 16% to 62% since 1970).
William George BONIN, Petitioner-Appellant, v. Arthur CALDERON, Warden, Respondent-Appellee (Two Cases). William George BONIN, Plaintiff-Appellant, v. Arthur CALDERON, Warden, Defendant-Appellee.
Nos. 96-99003, 96-99004 and 96-99005.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 22, 1996.
Decided Feb. 22, 1996.
Emry J. Allen, Deputy State Public Defender, Sacramento, California, for Petitioner-Appellant.
Esteban Hernandez, Deputy Attorney General, and Dane R. Gillette, Deputy Attorney General, San Diego, California, for Respondents-Appellees.
Before: WALLACE, Chief Judge, BRUNETTI and KOZINSKI, Circuit Judges.
[OPINION BY WALLACE, Chief Judge:. type=majority]
WALLACE, Chief Judge:.
William George Bonin, a California state prisoner awaiting execution at San Quentin State Prison, appeals from the district court’s denials of two petitions for writ of habeas corpus relief under 28 U.S.C. § 2254, and an order dismissing a civil rights action under 42 U.S.C. § 1983. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. §8 1291, 2253, and we affirm.
I
The lengthy procedural history of this case and the grisly facts underlying it are discussed in Bonin v. Calderon, 59 F.3d 815 (9th Cir.1995) (Bonin II), cert. denied, - U.S. -, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996). In that decision, we denied Bonin’s first set of habeas corpus petitions, which challenged convictions and death sentences imposed as a result of separate trials held in Los Angeles and Orange Counties. Id., aff'g, Bonin v. Vasquez, 807 F.Supp. 589 (C.D.Cal. 1992) (Los Angeles County); Bonin v. Vasquez, 794 F.Supp. 957 (C.D.Cal.1992) (Orange County). On February 6, 1996, Bo-nin again filed two habeas corpus petitions with the California Supreme Court, which denied them on February 15, 1996. Bonin then filed two emergency petitions in the federal district court for the Central District of California challenging his death sentences and seeking an immediate stay of his imminent execution, scheduled for February 23, 1996. On February 20, 1996, the district court denied both petitions and denied Bo-nin’s application for stay of execution, holding that the claims raised by Bonin either constituted an abuse of the writ or lacked merit. The district court granted Bonin a certificate of probable cause to appeal, which we affirmed in a separate, unpublished order.
Bonin also filed a civil rights action in the federal district court for the Northern District of California on February 16,1996, challenging his imminent execution by means of lethal injection. Named defendants James Gomez and Arthur Calderon moved the court to dismiss Bonin’s action for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court held a hearing on February 20, 1996, and it subsequently dismissed Bonin’s action and denied his motion for a temporary restraining order. Bonin appeals from the denials of his habeas petitions and the dismissal of his civil rights action; we consolidate these appeals and address them in turn.
II
We review de novo the denial of Bonin’s petitions for writ of habeas corpus. Bonin II, 59 F.3d at 823. We may affirm on any ground supported by the record, even if it differs from the rationale of the district court. Id.
Bonin raised twelve claims in his second set of habeas petitions. Claims 1-6 allege that Bonin’s counsel on direct appeal in state court (appellate counsel) was ineffective for failing to discover a potential conflict created by trial counsel’s dual representation of Bo-nin and a potential defense witness, that trial counsel should have objected to the testimony of eodefendant Gregory Miley, and that the prosecution did not disclose threats and promises made to codefendant James Munro. Bonin alleges these errors resulted in violations of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. Although he attempted to raise these claims in a motion to amend his first set of federal habeas petitions, the district court denied the motion as an abuse of the writ. See Bonin v. Vasquez, 999 F.2d 425, 426-27 (9th Cir.1993) (Bonin I). He also raises other claims not raised in the first habeas corpus petitions: that appellate counsel provided ineffective assistance in not asserting the state trial prosecution knowingly used perjured testimony and did not disclose material impeaching evidence in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights; in not raising the issue of alleged hypnotically-induced testimony of Miley; and in failing to argue the constitutional inadequacy of his convictions due to Miley’s testimony.
Claims 7-9 allege juror misconduct, of which Bonin learned as a result of interviews with several jurors conducted by his counsel on January 8, 1996. Claim 10 alleges that Bonin’s appellate counsel provided ineffective assistance by failing to argue that executing Bonin following the State’s “institutional failure”' — terminating mental treatment and releasing him from custody, when the State knew Bonin would again commit crimes— constitutes cruel and unusual punishment. Bonin concedes that the factual basis for Claim 10 is found in the appellate record. Claim 11 arises from the amount of time Bonin has spent on death row. Claim 12 challenges the State’s authority under California law to calendar a hearing at which Bonin’s execution date was scheduled. Bonin also has challenged whether the district court’s 1992 judgments were final.
State prison warden Calderon argues that all of Bonin’s claims are procedurally barred because the California Supreme Court denied Bonin’s petitions on adequate and independent state grounds. Alternatively, Calderon argues that Claims 1-11 constitute an abuse of the writ because they could have been brought in Bonin’s first set of petitions. See McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467-68, 113 L.Ed.2d 517 (1991) (McCleskey) (abuse of the writ may occur where petitioner raises a claim in a subsequent petition that could have been raised in his first, regardless of whether the failure to raise it earlier stemmed from deliberate choice). Calderon also argues that Claim 12 lacks merit.
We do not need to consider whether adequate and independent state procedural grounds exist to support the state court’s decisions because, even if they do, we may address the merits of Bonin’s claims if he can show cause for his procedural defaults and actual prejudice as a result of the alleged violations of federal law. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991) (Coleman). The same standard applies to Bonin’s successive petitions if they were denied on federal grounds. Schlup v. Delo, — U.S. -, ---, 115 S.Ct. 851, 862-63, 130 L.Ed.2d 808 (1995) {Schlup). Either way, we need to consider cause and prejudice.
To demonstrate cause, a petitioner must show that “ ‘some objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court.” McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470, quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (Carrier). “[Constitutionally ineffective assistance of counsel ... is cause.” McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted and ellipses in original). “Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default.” Id. Thus, counsel’s ineffectiveness will constitute cause only if it amounts to an “independent constitutional violation.” Coleman, 501 U.S. at 755, 111 S.Ct. at 2567.
If Bonin can establish cause, he then must demonstrate “actual prejudice resulting from the errors of which he complains.” McCles-key, 499 U.S. at 494, 111 S.Ct. at 1470 (internal quotation omitted). Even if Bonin cannot show cause and prejudice, we may consider the merits of his claims if failure to do so would result in a miscarriage of justice. Schlup, - U.S. at-, 115 S.Ct. at 863-64. Such injustice occurs where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at-, 115 S.Ct. at 864, quoting Carrier, 477 U.S. at 496, 106 S.Ct. at 2649; see also Schlup, - U.S. at-, 115 S.Ct. at 867 (adopting Carrier standard).
A.
Bonin argues that he failed to raise Claims 1-10 in his first habeas petition because he was denied effective counsel at his first appeal as of right in the state court, which he argues includes both direct appeal and habeas review, as he had the same counsel during both proceedings. Bonin therefore argues that this is his first opportunity to assert ineffective assistance of his counsel on direct appeal in state court. See Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (defendant has constitutional right to counsel at trial and through direct appeal).
Bonin alternatively characterizes his argument as ineffective assistance on the part of his appellate counsel and on the part of his first habeas counsel, although they were the same. He bases his argument on the contention that state law extends the Sixth Amendment right to effective assistance of counsel on direct appeal to first habeas proceedings. See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (Clark). Clark, however, recognizes only a state-law right to competent counsel in a habeas corpus proceeding. See id. at 780, 21 Cal.Rptr.2d 509, 855 P.2d 729 (“Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all meritorious claims.”). We and the Supreme Court repeatedly have held that there is no constitutional right to effective assistance of counsel in habeas corpus cases. See, e.g., Coleman, 501 U.S. at 755, 111 S.Ct. at 2567-68; Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); Bonin I, 999 F.2d at 429; Harris v. Vasquez, 949 F.2d 1497, 1513-14 (9th Cir.1991), cert. denied, 503 U.S. 910, 112 S.Ct. 1275, 117 L.Ed.2d 501 (1992). Bonin therefore cannot show cause by alleging that his first habeas counsel performed ineffectively in failing to allege the ineffectiveness of his appellate counsel in the first set of habeas petitions. His counsel’s failure to raise the issue of his own ineffectiveness on appeal did not violate Bonin’s rights under the Sixth Amendment.
To the extent that Bonin argues that his appellate counsel was ineffective, this claim is barred for failure to include it in the first federal habeas petitions. Jeffers v. Lewis, 68 F.3d 299, 300 (9th Cir.) (en banc) (Jeffers), cert. denied, - U.S. -, 116 S.Ct. 36, 132 L.Ed.2d 917 (1995); see also McCleskey, 499 U.S. at 489, 111 S.Ct. at 1467-68 (claim barred where petitioner could have discovered underlying facts prior to filing first petition). Bonin unsuccessfully argues that the concerns over never-ending appeals discussed in Bonin I are not implicated here because the Sixth Amendment right to counsel attaches only to claims available at the time of the first effective challenge to the state conviction in the state reviewing court. Again, Bonin essentially argues that he had the right to effective counsel on his first set of federal habeas petitions, because that was the first opportunity he had to challenge his appellate counsel’s performance.
Although Bonin asserts that Coleman left open this issue, Bonin I and a plurality of the Ninth Circuit already have answered it in the negative. See Jeffers, 68 F.3d at 300 (plurality) (stating that there is “no Sixth Amendment right to counsel during [a] state habeas proeeeding[ ] even if that was the first forum in which [petitioner] could challenge constitutional effectiveness”), citing Bonin I, 999 F.2d at 429. Had Bonin properly raised the alleged ineffectiveness of appellate counsel in his first federal habeas corpus petitions, the district court could have made any adjustment in Bonin’s representation for this claim, if necessary, to evaluate it. What Bonin cannot do is wait until now to assert his appellate counsel’s ineffectiveness.
Bonin next argues that cause is established because he was deprived of due process during his first habeas corpus proceedings due to his counsel’s lack of diligence. In Bonin I, Bonin’s counsel requested to be removed because of a possible conflict created by arguing that his own ineffectiveness in representing Bonin during his habeas corpus proceedings caused Bonin’s failure to include all of his claims in his first petition. Bonin also argued that Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987), established a constitutional right, rooted in the Fifth Amendment’s Due Process Clause, to effective appointed counsel in complex habeas corpus cases. Bonin I, 999 F.2d at 428. Bonin I held that although there is no constitutional right to the appointment of counsel in habeas corpus cases, petitioners do have a light to due process in habeas corpus proceedings, which may require counsel be appointed. Id. at 429. Bo-nin now carries that argument one giant step further by contending that his counsel’s ineffectiveness on direct appeal resulted in a Fourteenth Amendment due process violation.
Bonin has not demonstrated an “independent constitutional violation” required by McCleskey and Coleman to show cause. In the abstract, Bonin argues that a due process violation resulting from the lack of counsel in habeas corpus proceedings may demonstrate cause for failure to raise all discoverable claims in a first habeas corpus petition. Under the circumstances presented here, however, Bonin is again attempting to equate the Sixth Amendment right to effective assistance of counsel with the Fourteenth Amendment due process right. He essentially argues that the Fourteenth Amendment violation is his ineffective assistance of counsel. See Bonin I, 999 F.2d at 429 (Bonin “is in essence [attempting] to include Sixth Amendment rights within the Due Process Clause”). Although not stated explicitly in Bonin I, we now hold that ineffective assistance of counsel in habeas corpus proceedings does not present an independent violation of the Sixth Anendment enforceable against the states through the Due Process Clause of the Fourteenth Amendment. To recognize such a claim would allow the Fourteenth Anendment to “swallow the rule” that there is no constitutional right to effective assistance of counsel in habeas corpus proceedings. See id. at 430. If Bonin believed he was denied due process in his appeals before the state court, he could have raised that claim in his first set of habeas corpus petitions. Bonin, however, represented to the district court that his first petition was “ ‘professionally and capably prepared and ... fully comprehensive,’ and that he was not keeping claims ‘in his hip pocket.’ ” Bonin II, 59 F.3d at 845.
Claims 1-10 rest on facts discoverable at the time Bonin filed his first set of federal habeas corpus petitions and Bonin presents no valid reason why he could not have raised these claims at that time, especially considering that Bonin has the same counsel now as he had then. As the district court found, all of the facts underlying Bonin’s claims, including those related to his arguments concerning the testimony of codefendants Munro and Miley, were apparent from the record. Because Bonin cannot demonstrate cause, we need not consider whether he suffered actual prejudice as a result of his counsel’s alleged shortcomings.
Aternatively, Bonin argues that failure to reach the merits of his claims would result in a fundamental miscarriage of justice. There is no serious question of Bonin’s guilt, nor does he press this issue diligently. See Bonin II, 59 F.3d at 836 (applying prejudice standard for cases in which there is “ ‘overwhelming evidence of guilt,’ ” quoting United States v. Coleman, 707 F.2d 374, 378 (9th Cir.), cert. denied, 464 U.S. 854, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983)). No fundamental miscarriage of justice would occur from denying Bonin’s petition as procedurally barred. See McCleskey, 499 U.S. at 502, 111 S.Ct. at 1474-75.
B.
In Claim 11, Bonin argues that his fourteen-year confinement on death row constitutes cruel and unusual punishment in violation of the Eighth Amendment. Bonin’s state convictions became final in 1982 and 1983, and his automatic direct appeals were exhausted in 1988 and 1989. Thus, Bonin has expended at least seven years pursuing collateral attacks on his state convictions. In McKenzie v. Day, 57 F.3d 1461 (9th Cir.) (McKenzie), adopted en banc, 57 F.3d 1493 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 1840, 131 L.Ed.2d 846 (1995), we held that condemned prisoners are not entitled to a stay of execution because of delay caused by their own collateral attacks in federal court. Id. at 1467. Whether such attacks have some merit or valid legal basis is not relevant to this conclusion. See id. at 1465 (rejecting argument that death row prisoner failed to raise Lackey v. Texas, - U.S. -, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995), claim in first habeas petition because it lacked merit). As in McKenzie, Bonin could have raised this claim in his first habeas corpus petition filed in the district court in 1992, at which time Bonin had been confined for ten years. Bonin offers no reason for not raising this claim earlier. We therefore hold that this claim is barred under McCleskey for failing to show cause.
C.
Bonin’s only argument not barred under McCleskey is that the State violated his Eighth and Fourteenth Amendment rights by sending notice of a hearing to set the date of his execution prior to the day we issued our mandate in Bonin II. Bonin contends that, because the federal district court’s stay of execution pending appeal was still in effect, state law prohibited any action related to his execution. By failing to follow its own procedures, Bonin argues, the State violated his right to the uniform and predictable application of the laws guaranteed by the Fourteenth Amendment.
We issued the mandate in Bonin II on January 16, 1996, following the Supreme Court’s denial of Bonin’s petition for a writ of certiorari on January 8, 1996. On January 9, 1996, the Los Angeles County Superior Court calendared a hearing for January 19, 1996, at which time Bonin’s execution date was set. Also on January 9, the Orange County Superior Court similarly calendared January 22, 1996, for a hearing for the setting of Bonin’s execution date. Bonin asserts that these actions, which occurred prior to January 16, 1996, violated the federal stay of execution entered on December 30, 1992. The stay states that it is to “remain in effect until the Ninth Circuit Court of Appeals acts upon the appeal or this Order.”
Even if the stay were in effect on January 9, 1996, and even if the Los Angeles and Orange County Superior Courts did not follow California procedure, Bonin could not present a cognizable Fourteenth Amendment claim. See Moran v. Godinez, 57 F.3d 690, 698 (9th Cir.1994) (Moran) (no federally recognized liberty interest where no substantive right protected by state law procedures), cert. denied, - U.S.-, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
Section 2251 of Title 28 states:
A justice or judge of the United States before whom a habeas corpus proceeding is pending, may ... stay any proceeding against the person detained in any State court ... for any matter involved in the habeas corpus proceeding.
After the granting of such a stay, any such proceeding in any State court ... shall be void.
“Any such proceeding” refers back to a proceeding “for any matter involved in the habe-as corpus proceeding.” The parties vigorously debate whether merely mailing notices of the January 19 and 22 hearings constitutes a “proceeding” under section 2251. For purposes of this appeal only, we assume that it does, and that Bonin’s execution date was set in violation of state law, which requires 10 days notice before the session of court at which the date of execution will be set. California Rules of Court 490(a).
Federal habeas corpus relief does not lie for errors of state law, unless the error amounts to a deprivation of the petitioner’s constitutional rights. See Estelle v. McGuire, 502 U.S. 62, 67-69, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Campbell v. Blodgett, 997 F.2d 512, 522 (9th Cir.1992), aff'd on reh’g en banc, 18 F.3d 662 (9th Cir.), cert. denied, - U.S. -, 114 S.Ct. 1337, 127 L.Ed.2d 685 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir.1991); see also 28 U.S.C. § 2254(a). The violation of state law alleged here does not constitute a violation of the Fourteenth Amendment because there is no violation of a substantive interest to which Bonin has a legitimate claim of entitlement. See Moran, 57 F.3d at 698, citing Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983) (Olim). “Only the denial or misapplication of state procedures that results in the deprivation of a substantive right will implicate a federally recognized liberty interest.” Moran, 57 F.3d at 698; cf. Sandin v. Conner, - U.S. -,-, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (constitutionally protected liberty interests contained in prison regulations generally limited to freedom from restraint). Because California provided Bonin constitutionally adequate procedures in setting the date of his execution, any violation of state law did not result in the deprivation of a substantive right. Moran, 57 F.3d at 698; see also Olim, 461 U.S. at 250, 103 S.Ct. at 1747-48 (stating that “Lpjrocess is not an end in itself’); Johnson v. Arizona, 462 F.2d 1352, 1353 (9th Cir.1972) (rules of sentencing adopted by state courts do not raise constitutional issues which may be reached by habe-as proceedings).
D.
Finally, Bonin contends that no final judgment ever issued in his first set of habeas corpus petitions pursuant to Federal Rule of Civil Procedure 58. He therefore contends that the federal courts have never finally ruled on whether his appellate counsel’s ineffectiveness constitutes cause under McCleskey for the purpose of amending his first federal habeas corpus petitions. See Bonin I, 999 F.2d at 432 (observing that counsel’s ineffectiveness never raised before the district court in the Los Angeles case as a reason for granting Bonin’s motion to amend). In Bonin II, however, Bonin challenged the district court’s decisions denying his motions to amend the Orange and Los Angeles County petitions. As to the Orange County petition, we held that the district court did not abuse its discretion in deciding that all of the new claims Bonin presented in his amended petitions “could have been raised when Bonin initially filed his petition.” Bonin II, 59 F.3d at 845. The district court based its decision, in part, on Bonin’s admission two months before filing the amended petition that he was not keeping claims “in his hip pocket.” Id.
As to the Los Angeles County petition, we held that the district court did not abuse its discretion by denying Bonin’s December 23, 1991, motion to amend as untimely filed. Id. at 846 (recognizing that Bonin filed the amended petition seven months late). We also held that the district court based its decision on proper considerations, including Bonin’s failure to provide a satisfactory explanation of his failure to develop his claims fully in his first petition. See id. at 845-46. Bonin filed a second motion to amend the Los Angeles petition on August 18, 1992. We held that the district court did not abuse its discretion in denying that motion, which was filed “ ‘long after the work in the ease had concluded and seven months after the Court took the petition under submission.’ ” Id. at 846, quoting Bonin v. Vasquez, 807 F.Supp. at 587.
Bonin is bound by Bonin II. We therefore reject his arguments that McCleskey does not bar amendments to his first set of federal habeas corpus petitions and that this is his first opportunity to raise the ineffectiveness of his appellate counsel because no final judgment was issued on his first set of federal habeas petitions.
Because we hold that Bonin’s claims are either barred by McCleskey or lack merit, we affirm the district court’s orders denying Bo-nin’s petitions for habeas corpus relief, and we deny Bonin’s application to vacate his execution date and for an emergency stay of execution.
Ill
We now turn to Bonin’s section 1983 action, in which he argues that Gomez and Calderon will violate state law and Bonin’s constitutional right to choose his method of execution if they execute him as planned by lethal injection. The district court exercised jurisdiction pursuant to 28 U.S.C. § 1343. Its decision was based on conclusions of law, which we review de novo. Price v. United States Navy, 39 F.3d 1011, 1021 (9th Cir.1994). Because the district court’s order shows its bases for dismissing Bonin’s action, we need not address Bonin’s argument that the court’s failure to provide him a transcript of the February 20, 1996, hearing deprived him of due process.
Bonin’s claim is premised on his alleged state-created liberty interest in choosing between lethal injection and the gas chamber. California law, however, guarantees no such choice. California Penal Code § 3604 provides, in part:
(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death....
(b) Persons sentenced to death ... shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection....
(d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishment of death shall be imposed by the alternative means specified in subdivision (a).
Use of lethal gas under California procedure was invalidated as violative of the Eighth Amendment in Fierro v. Gomez, 77 F.3d 301 (9th Cir.1996). Fierro concludes that “execution by lethal gas under the California protocol is unconstitutionally cruel and unusual and violates the Eighth and Fourteenth Amendments.” Id. Fierro also permanently enjoined Gomez and Calderon from administering lethal gas under the California protocol against the plaintiffs in that action. Because the Ninth Circuit has now affirmed the district court’s conclusions in Fierro, Bonin cannot argue that use of lethal gas upon him has not been “held invalid” under section 3604(d).
It follows that Bonin has no state-created, constitutionally protected liberty interest to choose his method of execution. Section 3604(d) does not guarantee Bonin a choice under these circumstances, thus it does not create a constitutionally protected liberty interest. See Toussaint v. McCarthy, 801 F.2d 1080, 1095 (9th Cir.1986) (where statute created only possibility of early release it did not create constitutionally protected liberty interest), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987). Bonin therefore suffers no due process violation.
The Supreme Court has stated that as long as the method selected is not cruelly inhumane, it does not violate the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976). Because Bonin does not argue that execution by lethal injection is unconstitutional, we conclude the method of execution to be implemented on February 23, 1996, is applied constitutionally. We therefore deny Bonin’s application for a temporary restraining order because his claim for section 1983 relief has no merit.
AFFIRMED; STAY PETITIONS DENIED.