On Thanksgiving night 1984 an eleven-year-old boy, named in these opinions only as Danny O., ran into the middle of Limonite Avenue in Riverside County, waving his arms and shouting for a car to stop, while a man dressed “like a cop” dragged his thirteen-year-old cousin toward a striped van with a pistol pressed to her neck. Danny kicked the man, Shannon broke free and climbed a brick wall, and from the far side she heard three shots and, between the second and the third, her cousin saying, “Don’t shoot me again. I’ll die this way.” About four hours later a deputy spotted the van she had described. Shannon identified it as it drove past her, then identified the driver, Horace Edwards Kelly, who was wearing a security guard’s shirt with a badge and had eight rounds in his pocket. The .357 magnum in his toolbox had fired the bullets found at the scene.
The California Supreme Court heard two automatic appeals from the two death sentences that followed. The first, decided November 26, 1990, concerns the Riverside murder, and its central question is the confession Kelly gave that night after first denying everything. The majority held that his Miranda warnings were adequate and the statement voluntary, and affirmed the judgment in its entirety. Justice Mosk agreed with the result but wrote separately to condemn what he called serious police misconduct: the officers, he concluded, had deliberately played on Kelly’s religious beliefs to get him to talk. At the penalty phase the jury heard about two killings in San Bernardino the week before, and the defense answered with a brutal father who died when Kelly was nine, learning disabilities that left him functioning at a fourth or fifth grade level, and IQ scores of 81 and 84.
Those San Bernardino killings are the subject of the second opinion, decided January 16, 1992. Sonia Reed was shot twice from behind in the early hours of November 16, 1984, and left behind a headstone at a memorial business at Tenth and Waterman; Ursula Houser was shot in the back of the head the next morning in an alley near Highland Avenue and D Street. On both mornings Kelly had dropped his stepson at work between four and five and driven off alone, and the Dan Wesson revolver hidden behind his van’s taillight had fired the recovered bullets. A jury found him legally sane, and the court rejected his argument that California’s M’Naghten test was unconstitutionally vague. It reduced the rape of Ursula Houser to attempted rape and reversed the robbery conviction with its special circumstance, because the jury could have found that both acts came after she was dead, but it left the death sentence in place and let the appeal proceed even if Kelly had since become incompetent. That question returned in 1998, when his execution had been set and postponed and a Marin County jury voted 9 to 3 that he was competent to be executed; in June a federal appeals court agreed to rehear his case on whether his federal petition had been filed in time.
Both opinions are rulings on automatic appeals, which in California follow every death sentence whether the defendant wants one or not. The facts sections are the court’s summary of the trial evidence, told the way the verdict read it, and the holdings on the confession, the insanity test and the reduced counts are the findings. Justice Mosk’s criticism of the interrogation is a concurring opinion and decided nothing. The 1992 court says in so many words that it expresses no opinion on whether Kelly could be executed, since no date had been set. What happened after the 1998 competency verdict and the federal rehearing lies outside these pages, and we have not been able to confirm how his case ended, so nothing here describes him in the present tense.
California’s opinions are public records, free to read and reproduce in full. The court itself shortened the two children to Danny O. and Shannon P., and we have kept its form, although newspapers at the time printed their full names. Sonia Reed and Ursula Houser are named as the court named them. We reduced the other private people to initials: Kelly’s wife and his stepson, T.F., Jr.; V.H., who watched the van from outside his house; I.G. and L.M., who heard the shots in Waterman Gardens; G.V. and G.T., the last people to see each woman alive; M.C., the family friend of forty years; J.B.; and a juror. Detectives, doctors, lawyers and judges keep their names. One inconsistency is the court’s, not ours: a sentence in the 1992 opinion spells the victim Hauser, and it stands as printed.
The text comes from the Harvard Law School Library’s digitized copy of the California Reports, and the scan shows through in places we have not touched: “muifled banging,” panties “ripped ofi",” a “30-ininute” conversation. It is worst in the defense closing argument quoted near the end of the 1992 opinion, where the printed paragraph marks come through as “FD,” “[f]” and “H[],” and a bracketed question mark sits in the middle of a sentence. Footnotes are gathered after the end of each opinion rather than at the foot of the page they belong to. We have not spell-checked the text, and no word in it has been changed.
[No. S004718.
Nov. 26, 1990.]
THE PEOPLE, Plaintiff and Respondent, v. HORACE EDWARDS KELLY, Defendant and Appellant.
Counsel
Harvey Zall and Fern M. Laetham, State Public Defenders, under appointment by the Supreme Court, Edward H. Schulman, Chief Deputy State Public Defender, Richard Avila and Sandra Goldsmith, Deputy State Public Defenders, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Jay M. Bloom and Rudolf Corona, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY ARABIAN, J. type=majority]
Opinion
ARABIAN, J.
This is an automatic appeal from a judgment of death. Defendant Horace Edwards Kelly was found guilty of one count of first degree murder (Pen. Code, § 187); the jury also found to be true two special circumstance allegations that the murder was committed during the commission or attempted commission of a kidnapping (§ 190.2, subd. (a)(17)(ii)), as well as an allegation that defendant used a firearm in the commission of the murder (§ 12022.5).
Facts
I. Guilt Phase Evidence
On November 22, 1984, Thanksgiving Day, 11-year-old Danny O. was shot and killed in the County of Riverside. The events leading up to this tragedy were as follows: On the date in question, Danny and his family were visiting relatives in Riverside for the traditional Thanksgiving dinner. An hour or two after the families finished dinner, Danny and his 13-year-old cousin, Shannon P., decided to walk to a convenience store in a nearby shopping center to buy candy. It was dark when the two children left the house.
After their purchase, Danny and Shannon proceeded to walk home. Their route took them through a 7-Eleven parking lot and onto a dirt path adjacent to Limonite Avenue. As they approached a rise, they saw a man walking toward them from the opposite direction. As the man passed, Shannon noted that he was dressed “in a sort of ranger uniform,” “like a cop.” The children began to walk faster because, as Shannon recalled, the man “looked weird like he was up to something.”
The next thing Shannon remembered was Danny telling her to run. Danny ran down the path and Shannon followed. She looked back and saw that the man was pursuing them. As she ran, she noticed a van parked on the side of the road facing traffic. The van’s engine was running. She noted that it had distinctive stripes on the side.
The man caught Shannon from behind, grabbing her around the neck with his arm. She felt something hard at her side, looked down and saw that it was a pistol. Danny, in the meantime, had run into the middle of the street and was waving his arms and yelling “stop” in an effort to flag down a passing car for assistance. The man told Shannon to “get [her] brother over to where” she was. Shannon called out to Danny. As she did so, the man placed the gun against her neck and began to drag her toward the van. Shannon tried to resist by digging her heels into the ground, but to no avail. They moved closer to the van.
As Danny approached he asked the man why he was doing this. The man told him to “shut up.” Shannon asked him, “Do you want any money?” The man replied, “No, I don’t want your money. Just shut the hell up.” He continued to drag and pull Shannon closer to the van. Just then, Danny kicked the man, enabling Shannon to drop down and escape from his grasp. She ran perhaps 40 feet and started to climb a brick wall. As she reached the top, she looked back and saw a flash and heard a gunshot. She jumped off the wall and heard another shot. There was a pause. Then she heard Danny say, “Don’t shoot me again. I’ll die this way.” A third shot registered. Shannon ran and eventually obtained assistance at a nearby house.
Shortly after 6 p.m. on the same evening, V.H., who lived on a street parallel to Limonite Avenue, stepped outside of his house for a cigarette and saw a van pull up across the street. It had large exhaust pipes and a distinctive red stripe. Mr. H. noticed that the driver had his head cocked toward the side mirror, as though he was looking to the rear of the vehicle. After a few minutes, he saw the driver get out of the van and run back toward the 7-Eleven. Mr. H. returned to his house and, after several minutes, heard three noises like the sound of a car backfiring. When he went back outside, the van was gone.
A short time later, Danny’s body was discovered by a passing motorist on Limonite Avenue. The body was in the middle of the street, lying on its back, arms outstretched. The body was still warm but did not respond to CPR. There was a bullet hole between the eyes. The victim was taken to a hospital, but was pronounced dead on arrival.
Later that evening, Shannon provided the police with a detailed description of her assailant and his distinctive van. About 10 p.m., a deputy sheriff spotted the vehicle and radioed another officer, Detective Cornejo, who was at the crime scene with Shannon and her parents. Detective Cornejo took Shannon to a point where she could observe the van as it drove by; she identified it as the vehicle involved in the assault earlier that evening. The van was immediately stopped and Shannon identified the driver, defendant, as her assailant. Defendant was wearing a tan shirt with a badge and security guard patches on the sleeves. He was also wearing leather gear and a baton. A search yielded eight rounds of .357 magnum ammunition in defendant’s trouser pocket.
Defendant was transported to the Riverside County Sheriff’s Department for booking and interrogation. (The facts of the interrogation will be set forth separately below.) A subsequent search of the van revealed a tool box containing a blue steel .357 magnum caliber pistol, 12 live .357 magnum rounds and dozens of expended .357 magnum casings. Forensic tests on two bullets found at the crime scene showed conclusively that they had been fired from defendant’s gun. Blood on the barrel of the gun was consistent with Danny’s blood and inconsistent with that of defendant. Gunshot residue was found on defendant’s hands.
An autopsy revealed two bullet wounds to the victim; the first shot entered the right side of the boy’s chest and exited through the back; the second entered between the eyes and exited through the left side of the brain. The primary cause of death was the bullet which passed through the brain. Gunshot powder burns and residue on the victim indicated that the gun was four to six inches from the boy when the shot was fired between his eyes.
The gun used to kill Danny O. had been purchased from a gun shop in San Bernardino two months earlier. The dealer’s record of sale indicated that it had been sold to defendant.
II. Penalty Phase Evidence
A. Prosecution Evidence
The prosecution presented evidence of two prior instances of criminal activity involving defendant’s use of force or violence. (§ 190.3, factor (b).) Both related to homicides in San Bernardino that had occurred one week before the murder of Danny O. Early on the morning of November 16, 1984, between 4 and 5 a.m., Ms. Sonia Reed was dropped off by an acquaintance in an area of San Bernardino called Waterman Gardens, near defendant’s place of residence. Ms. Reed had a history of drug use and had smoked cocaine earlier that morning. She had once been arrested for soliciting an act of prostitution.
About 5 that morning, Mrs. I.G., who lived at 10th Street and Waterman Avenue, was awakened by a muifled banging sound. Several minutes later she heard someone say, “Oh, God,” and then a minute or two later she heard another bang. Later that morning, the body of Sonia Reed was discovered behind a headstone at a nearby memorial business. The body was nude from the waist down. An autopsy revealed two contact gunshot wounds; the first shot entered the victim through the back, the other through the back of the neck; the latter wound was inflicted while the barrel of the gun was pressed against the victim’s head. Forensic tests established that the bullets which killed her were fired from defendant’s .357 magnum pistol.
The next morning, November 17, 1984, the body of another woman, Ursula Houser, was discovered in an alleyway near Highland Avenue and D Street in San Bernardino. The victim’s skirt had been pulled up above her waist and her panties and pantyhose had been ripped ofi". The body appeared to have been dragged some distance. An autopsy revealed a contact gunshot wound similar to that inflicted on Ms. Reed. The bullet entered through the back of the head and traveled through the brain, causing instant death. Forensic tests definitively established that the bullet which killed Ms. Houser had been fired from the .357 magnum pistol recovered from defendant’s van.
B. Defense Evidence
Defendant called numerous witnesses in mitigation. Several family members, friends and school officials were called to testify to defendant’s poor and abused childhood. M.C., a friend of defendant’s family for over 40 years, described defendant’s father as “brutal” and “dominating.” The father died when defendant was nine, and thereafter defendant worked at various odd jobs to help support the family. She described defendant as shy and introspective. Several family members, including defendant’s mother, also recalled that defendant was abused and terrorized by his father. Many expressed shock over defendant’s actions, which they believed were inconsistent with his personality. They consistently described defendant as unusually subservient to authority and educationally retarded.
Two school psychologists, a learning disability specialist and a social worker presented testimony concerning defendant’s performance in high school. Their tests and observations from that period of time indicated that defendant had serious learning disabilities or perceptual impairments, that he functioned at the level of a fourth or fifth grader, and that his overall IQ measured 81, considered low average to borderline. The school officials also noted that defendant had been born prematurely, that his development as an infant was delayed, and that his learning disabilities limited his social interaction in school and caused him frustration and loss of self-esteem.
Several witnesses, including defendant’s wife and mother, testified that defendant suffered from chronic headaches. Two dentists who examined defendant following his arrest attributed the headaches to a structural problem in the joint which hinges the jaw bone.
Finally, defendant presented the testimony of a number of expert medical witnesses. Dr. Hunt, a neurologist, presented the results of a series of neurological tests administered to defendant; these included a CAT-scan and an electroencephalogram (EEG) to test brain functioning. The EEG was within normal limits; the CAT-scan revealed evidence of brain atrophy in the upper and temporal frontal lobes. Dr. Hunt explained, however, that psychological dysfunction and the effects, if any, of organic brain damage on behavior could not be determined from the CAT-scan results: “[Y]ou can have damage that is quite bad and the patient still not have any obvious trouble... .”
In addition, Dr. Kanzler, a clinical neuropsychologist, presented the results of a battery of tests he administered to defendant. His findings indicated that defendant had an overall IQ of 84, considered to be in the borderline/dull normal range, as well as cerebral “deficits” consisting of impaired memory and attention, and deficient “cognitive flexibility.” Dr. Kanzler concluded these deficits were “compatible with... brain dysfunctions,” but noted there was no necessary correlation between brain damage and cognitive dysfunction.
Finally, Dr. Hoyle, a clinical psychologist, presented testimony based upon his one interview with defendant and a review of defendant’s school and medical records. Dr. Hoyle administered a standard MMPI (Minnesota Multiphasic Personality Test) and characterized defendant as a “schyzotypal” personality, exhibiting symptoms of social isolation and occasional bizarre or strange thoughts, but not psychosis. He also concluded defendant had an attention-deficit disorder, characterized by symptoms of impulsiveness, difficulty in sleeping and distractibility. Defendant’s cognitive symptoms were consistent, in Dr. Hoyle’s view, with the neurological tests revealing organic brain damage or atrophy.
Discussion
I. Guilt Phase Issues
A. Denial of Motion to Suppress
Defendant’s principal claim of error concerns the introduction at trial of a taped confession to the police. Defendant contends the use of this evidence was reversible per se because the confession was the product of multiple Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) violations and impermissibly coercive police tactics. As explained below, we conclude the contention lacks merit.
1. Facts
As noted earlier, defendant’s van was identified and defendant was placed under arrest within hours of the shooting. He was searched and transported to the Riverside County Sheriff’s Department, where a blood sample was taken and his clothes were seized and replaced with a jail jump suit. He was then moved to a detective’s office for interrogation. No questioning of defendant took place during this time.
The interrogation of defendant commenced at 11:27 p.m. and was tape-recorded. Present at the interrogation were Detectives Cornejo and Ferguson. Defendant was informed that the officers were investigating the homicide of an 11-year-old boy and that he was suspected of having committed the offense. The officers then read defendant his rights, he waived them, and in response to close questioning steadfastly denied any involvement in the crime. He explained that he had left the job site where he worked as a security guard at approximately 10 p.m. that evening, drove his van to a 7-Eleven store for a cup of coffee and returned to his job site. Defendant repeatedly denied stopping the van at any other time or place, denied seeing two children walking by the side of the road, denied accosting the girl and denied shooting the boy. Defendant stated that he did not drink or take drugs. He admitted that he owned a .357 magnum pistol which he kept in the back of the van but denied that he had fired the gun that day.
At 12:05 a.m, after about 30 minutes of questioning, the officers interrupted the interrogation to have certain additional photographs taken of defendant. Defendant had stated that a bloodstain on his upper leg was the result of a scratch; the photos were to document that no cut was present. The interrogation resumed half an hour later, at 12:38 a.m. Detective Cornejo asked if defendant remembered the admonitions that were read to him earlier. Defendant stated that he did. The detective then asked whether, having those rights in mind, defendant wished to continue to talk to them. Defendant responded, “I’ll talk.”
In a somewhat disjointed narrative, defendant proceeded to explain the events of the prior evening. He stated that he suffered from frequent, severely painful headaches and explained that he had experienced such a headache that day. After leaving the job site, he found himself with a gun in his hand and recalled firing “[pjrobably one, two or three times.” He stated: “I think the boy ran and I fired shots at him.” He remembered that the boy had his hands in front of him as he lay on the ground. He couldn’t remember why he fired. He recalled that he told the girl to get in the van because he wanted to take her home; he denied any intent to rape. He stated that he was sorry for what he had done, and cried several times during the questioning.
Defendant also acknowledged that he was wearing his security guard uniform when he accosted the children, and that his shirt contained both a badge and patches on the sleeves.
An hour later, at 1:42 a.m., the officers stopped the interview to allow defendant to call his wife and to drive defendant to the scene of the shooting. Defendant’s remarks at the crime scene were not recorded. Detective Cornejo testified, however, that defendant told him he pulled his van over to the side of the road when he saw the children walking on the shoulder, exited the van and proceeded to walk back toward them. Defendant initially thought both children were girls. When he realized his mistake, he grabbed the girl, put a gun to her head and started to drag her to the van. He intended to rape the girl. When the boy ran into the street he shot him. When the boy fell, “I shot, I missed, and I shot again and I got him.”
Following their visit to the crime scene, the officers and defendant returned to the station house for a third and final interrogation session. In response to somewhat leading questions, defendant essentially repeated the story he had told at the scene of the shooting. The interrogation ended shortly thereafter.
Prior to trial, defendant moved to suppress the taped statement on the grounds that the Miranda warnings he was given were defective and that his confession was the product of coercive police tactics. The trial court denied the motion, ruling that defendant was properly advised of his rights, and finding that defendant’s waiver and confession were voluntary beyond a reasonable doubt.
2. Discussion
As noted above, defendant contends the trial court’s ruling was erroneous. His argument here, as below, is essentially twofold: First, he asserts that the Miranda warnings given by the officers were inadequate and misleading; second, he claims that his waiver of Miranda rights and subsequent confession were involuntary. We assess each contention in light of the following common principles.
In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant’s rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court’s resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (People v. Boyer (1989) 48 Cal.3d 247, 263 [256 Cal.Rptr. 96, 768 P.2d 610].) Although this court must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statements were illegally obtained (ibid.), we may “ ‘give great weight to the considered conclusions’ of a lower court that has previously reviewed the same evidence.” (People v. Jennings (1988) 46 Cal.3d 963, 979 [251 Cal.Rptr. 278, 760 P.2d 475], quoting Miller v. Fenton (1985) 474 U.S. 104, 112 [88 L.Ed.2d 405, 412, 106 S.Ct. 445].) Because the offenses charged in this case occurred after the addition of section 28, subdivision (d) to article I of the California Constitution, the voluntariness of defendant’s waiver and his subsequent confession must be established by a preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63 [260 Cal.Rptr. 273, 775 P.2d 1042].)
With these principles in mind, we turn to defendant’s several assignments of error.
a. The Miranda Warnings
At the commencement of defendant’s interrogation, the following colloquy transpired:
Detective Cornejo: “Before I can ask you any questions I have to read you your rights. I want you to pay close attention.”
Defendant: “Okay.”
Detective Cornejo: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question if you wish, [fl] Horace, did you understand each of these rights I’ve explained to you?”
Defendant: “What you have read? Yes.”
Detective Cornejo: “Having these rights in mind, Horace, do you wish to talk to us now?”
Detective Ferguson: “Well, you can stop talking anytime you want to and you don’t have to answer any question that you do not want to but there’s two sides to every story. And for us to hear your side you have to acknowledge that your rights have been read to you and that you waive your rights.”
Defendant: “Well, what do I say, I don’t know.”
Detective Cornejo: “Well, I’ll ask you a question. If you want to answer it, answer it.”
Defendant: “Oh, okay. Yeah.”
Defendant contends the officers misadvised him of his Miranda rights in three respects. First, he claims that Detective Cornejo’s admonition, “You have the right to talk to a lawyer and to have him present while you are being questioned,” was inadequate because it failed to indicate that he had the right to counsel prior to questioning Defendant ignores, however, the officer’s subsequent warning: “If you cannot afford to hire a lawyer, one will be appointed to represent you before any question if you wish.” (Italics added.) Although, as defendant notes, it would have been more accurate to say “before any questioning,” we do not doubt that—as given—the advice adequately informed defendant that his right to counsel attached before any questioning commenced. The United States Supreme Court has well observed that the Miranda warnings serve a prophylactic purpose (Michigan v. Tucker (1974) 417 U.S. 433, 446 [41 L.Ed.2d 182, 194, 94 S.Ct. 2357]) and therefore need not be presented in any “precise formulation” or “talismanic incantation.” (California v. Prysock (1981) 453 U.S. 355, 359 [69 L.Ed.2d 696, 101 S.Ct. 2806]; accord Duckworth v. Eagan (1989) 492 U.S. 195 [106 L.Ed.2d 166, 109 S.Ct. 2875, 2879].) “Reviewing courts... need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ ” (Duckworth v. Eagan, supra, 492 U.S. 195, 203 [106 L.Ed.2d at p. 177, 109 S.Ct. at p. 2880].) We are satisfied that the warnings here reasonably apprised defendant of his right to consult with an attorney before being questioned.
Defendant next contends Detective Ferguson’s comment that defendant could “stop talking anytime you want to and you don’t have to answer any question,” was misleading because it failed to inform defendant that he could refuse to talk altogether, and somehow implied just the reverse. Defendant overlooks the officers’ clear and unequivocal warnings that he had the “right to remain silent,” that anything he said could be used against him in a court of law, that he had the right to talk to an attorney and to have one present while being questioned, and that if he could not afford an attorney one would be appointed to represent him before any questioning. In light of these admonitions, we discern no reasonable possibility that defendant was confused about his right to remain silent.
Finally, defendant contends he was misled by the remarks of Detective Ferguson to believe that if he did not speak with the officers, his “side of the story” would never be told. Defendant appears to argue that Ferguson’s remarks both misadvised him of his right to remain silent, and improperly coerced him into giving up that right. For the reasons previously stated, we are not persuaded that Ferguson’s comments could reasonably have been understood to negate the officers’ otherwise clear and unequivocal warnings that defendant had the right to remain silent and to have an attorney present before and during questioning.
Nor are we persuaded that defendant’s free will was somehow “overborne” (People v. Sanchez (1969) 70 Cal.2d 562, 572 [75 Cal.Rptr. 642, 451 P.2d 74]) by Ferguson’s remark, “for us to hear your side you have to acknowledge that your rights have been read to you and that you waive your rights.” Defendant asks us, in effect, to infer that defendant construed this statement as a veiled threat that his “story” would never be told if he failed to talk with the officers. We find this interpretation to be excessively strained. Defendant had previously been advised that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to consult an attorney and that if he could not afford an attorney one would be appointed “to represent” him. It is self-evident that such rights are afforded for the very purpose of preparing and presenting an effective defense to the charges. While not entirely free of ambiguity, the officer’s remark, viewed in context, simply fails to resonate with the coercive force urged by defendant.
Accordingly, we hold that defendant was properly advised of his Miranda rights.
b. Voluntariness
Defendant also contends that the waiver of his Miranda rights and subsequent confession were involuntary. He claims that his will was overborne through a combination of coercive police tactics, including trickery, psychological coercion, promises of advantage and “softening up.” A careful and independent review of the record as a whole reveals the contention to be without merit.
The litmus test of a valid waiver or confession is voluntariness. “The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421, 106 S.Ct. 1135].) No single event or word or phrase necessarily determines whether a statement was voluntary. The answer must be derived from the totality of the facts and circumstances of each case, keeping in mind the particular background, experience and conduct of the accused. (North Carolina v. Butler (1979) 441 U.S. 369, 374-376 [60 L.Ed.2d 286, 292-294, 99 S.Ct. 1755]; In re Walker (1974) 10 Cal.3d 764, 777 [112 Cal.Rptr. 177, 518 P.2d 1129].) The question is “not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” (North Carolina v. Butler, supra, 441 U.S. at p. 373 [60 L.Ed.2d at p. 292].)
Defendant focuses first on the exchange between himself and Detective Cornejo following the reading of his rights. As noted, defendant’s initial response was: “Well, what do I say, I don’t know.” (Italics added.) Cornejo responded: “Well, I’ll ask you a question. If you want to answer it, answer it.” Defendant replied: “Oh, okay. Yeah.”
Defendant argues that the italicized language reveals an inadequate appreciation of the rights being abandoned, which renders the waiver invalid; one cannot knowingly waive what one does not understand. Having listened to the tape recording of the foregoing conversation, however, we are persuaded that defendant’s interpretation of this exchange is flawed. As the trial court, in analyzing the waiver, observed: “ ‘Well, what do I say, I don’t know.’ In other words, how do I proceed? I don’t know how to proceed, [if] And then Detective Cornejo says: ‘I’ll ask you a question, if you want to answer it, answer it.’ [Defendant] says, ‘Oh, okay, yeah.’ Which to me sounds like, now that I understand how you’re going to proceed, fine, proceed; yes, I understand.” We agree with the trial court’s conclusion that defendant was not expressing confusion about the nature of his rights, but rather was seeking clarification as to how to waive them. We conclude therefore that the waiver was knowing, intelligent and uncoerced.
Defendant next focuses on evidence from the penalty phase of trial indicating that his overall IQ was in the low normal to borderline range, that CAT-scans revealed atrophy of brain tissue, and that he suffered from a variety of cerebral deficits, including learning disabilities, attention-deficit disorder and impulsivity. None of the foregoing evidence, however, was presented at the suppression hearing. Moreover, standing alone such evidence does not establish that the waiver was involuntary. As the United States Supreme Court has explained, “The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.” (Colorado v. Connelly (1986) 479 U.S. 157, 170 [93 L.Ed.2d 473, 486, 107 S.Ct. 515], italics added.) In Connelly the court rejected the petitioner’s claim that his waiver of Miranda rights was rendered involuntary merely by reason of the fact that he was allegedly obeying “the voice of God” when he waived his rights and confessed. (Ibid. [93 L.Ed.2d at p. 487].) Here, similarly, defendant’s low intelligence and psychiatric symptoms, standing alone, do not render his waiver of Miranda rights involuntary.
Defendant next asserts that several instances of police misconduct occurred in the course of the interrogation which, in conjunction with his low intelligence, combined to undermine his free will and voluntary choice. He repeats his earlier claim that the Miranda warnings were misleading and deceptive. For the reasons already stated, we find this contention to be wholly unpersuasive.
He also claims that the police on two separate occasions utilized methods designed to exploit his “psychological vulnerabilities.” The first of these allegedly occurred during the initial interrogation session, in which defendant, under rigorous questioning, repeatedly denied any involvement in the crimes. Toward the end of that session, the following transpired: Detective Ferguson: “.. .I can’t understand you keeping on denying that you did this when all the evidence said that you did. [fl] Do you believe in Jesus?”
Defendant: “Yes I do.”
Detective Ferguson: “Do you believe that someday you’re going to go to heaven?”
Defendant: “Yes.”
Detective Ferguson: “Did your mother give you a Christian upbringing?”
Defendant: “Yes.”
Detective Ferguson: “Well then you realize that by your actions denied [szc], you’ve violated your Christian upbringing along with state law and everything else.”
Defendant: “Yes, I understand that.”
Detective Ferguson: “How is your mother going to feel when she finds out you’re arrested for the murder of an 11-year-old boy?”
Defendant: “Well, she’s going to feel pretty upset... .”
Detective Ferguson: “Is that what you’re afraid of?”
Defendant: “That, yeah, and losing my wife.”
Detective Ferguson: “I think it’s a going to be a foregone conclusion you’re going to be in prison for a lot of years. I don’t know if your wife is going to stick around and wait for you. Okay. That’s something you’re going to have to work out with her... .”
Defendant: “I feel bad... .”
Detective Cornejo: “How do you think the parents feel?”
Defendant: “Well, I understand they’re, they’re upset.”
Detective Cornejo: “How do you think the little girl feels?”
Defendant: “She’s upset, too.”
Detective Cornejo: “And you’re not upset at all, are you?”
Defendant: “No sir. Because I didn’t... I haven’t done anything wrong that I know of... .”
In evaluating a claim of psychological coercion, the “question posed... is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’” (People v. Hogan (1982) 31 Cal.3d 815, 841 [183 Cal.Rptr. 817, 647 P.2d 93], quoting Rogers v. Richmond (1961) 365 U.S. 534, 544 [5 L.Ed.2d 760, 768, 81 S.Ct. 735].) Viewed singly or together, we are satisfied that none of the foregoing questions was so coercive as to overcome defendant’s free will or constitute “a motivating cause” of his subsequent confession. (People v. Thompson (1980) 2 Cal.3d 303, 327-328 [165 Cal.Rptr. 289, 611 P.2d 883]; People v. Brommel (1961) 56 Cal.2d 629, 632 [15 Cal.Rptr. 909, 364 P.2d 845].)
To be sure, the tactic of exploiting a suspect’s religious anxieties has been justly condemned. (See People v. Adams (1983) 143 Cal.App.3d 970, 987-990 [192 Cal.Rptr. 290] [confession suppressed where interrogating officer attended the same church as defendant and made repeated references to defendant’s sin, guilt, apostasy, and “reprobate mind”].) So too has the shameless exploitation of a mother’s fear that if she failed to cooperate with the police she would not see her young child for many years. (United States v. Tingle (9th Cir. 1981) 658 F.2d 1332.)
Unlike the remarks at issue in Adams and Tingle, however, none of the police comments here appear to have been calculated to exploit a particular psychological vulnerability of defendant; no acute religious anxiety or sense of guilt was apparent from prior questioning, and defendant was not particularly moved by appeals to family, either the victim’s or his own. Indeed, at the conclusion of the officers’ remarks, defendant adamantly denied any involvement in the crimes. Thus, regardless of the propriety of the officers’ statements, they simply do not appear to have been a motivating cause behind defendant’s subsequent confession. (People v. Thompson, supra, 27 Cal.3d at p. 328.)
A second instance of alleged police misconduct occurred during a break between the first and second interrogation sessions, when defendant was taken to be photographed. Detective Bowen testified that when he observed defendant remove his clothes, he commented: “I don’t understand how someone as strong as you could hurt an 11-year-old boy .... [I]t must have been someone else inside of you.” According to the officer, defendant “looked around and said, ‘yes, that’s it, I have these terrible headaches.’ ” Bowen immediately told defendant to say nothing further until he could speak with Detective Cornejo. When the interrogation recommenced, defendant admitted his involvement in the shooting and attempted kidnapping.
Defendant now claims that Detective Bowen’s remark, “it must have been someone else inside of you,” constituted an impermissible suggestion that he committed the crimes while mentally ill. Defendant relies principally on People v. Hogan, supra, 31 Cal.3d 815, the seminal case in which this court condemned police questioning that “repeatedly suggested to appellant that he was unquestionably guilty and that he suffered from mental illness.” (Id. at p. 843.) Detective Bowen’s single, oblique reference to defendant’s state of mind falls well short, however, of the egregious misconduct in Hogan, where the defendant repeatedly expressed anxiety that he might be “crazy” and the police exploited that weakness by promising psychiatric treatment. (Id. at pp. 836-838.) The single, passing comment at issue here cannot reasonably be characterized as coercive, or be said to constitute a motivating cause of defendant’s subsequent confession.
Defendant’s final two claims of police misconduct need not detain us long. Citing People v. Hinds (1984) 154 Cal.App.3d 222 [201 Cal.Rptr. 104], he contends Detective Ferguson made an improper offer of leniency or “advantage” in suggesting that if defendant did not speak, his “side of the story” would never be told. As noted earlier, however, the contention is implausible. Furthermore, Hinds is inapposite. There, the police deliberately misled the defendant by telling him that anything he said “doesn’t necessarily held [szc] against you, it can be held to help you,” and further threatened that if he called his attorney they “could not help [the defendant] anymore... .” (Id. at pp. 230-231.) The record here is barren of such gross misconduct.
Defendant also attempts to characterize Detective Bowen’s statement to defendant, “it must have been someone else inside of you,” as inappropriate “softening-up” conversation. (See People v. Honeycutt (1977) 20 Cal.3d 150, 160 [141 Cal.Rptr. 698, 570 P.2d 1050]; People v. Jackson (1980) 28 Cal.3d 264, 298 [168 Cal.Rptr. 603, 618 P.2d 149].) As noted above, this single comment—while perhaps ill-advised—does not even remotely resemble the egregious misconduct that we have freely condemned elsewhere. (People v. Hogan, supra, 31 Cal.3d at p. 841.) Moreover, People v. Honeycutt, supra, 20 Cal.3d 150, on which defendant relies, is clearly distinguishable. There, the police deliberately engaged the suspect in an unrecorded 30-ininute, pre-Miranda conversation, discussing mutual acquaintances, past events and finally the victim. No misconduct of that nature occurred here.
Accordingly, we hold that the motion to suppress was properly denied.
B. Change of Venue
Defendant next contends the trial court erred in denying his motions for change of venue.
The salient principles on review of a motion for change of venue are well settled. “A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. [Citations.] Whether raised on petition for writ of mandate or on appeal from judgment of conviction, the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable. [Citations.] The factors to be considered are the nature and gravity of the oifense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.” (People v. Harris (1981) 28 Cal.3d 935, 948 [171 Cal.Rptr. 679, 623 P.2d 240]; see also People v. Williams (1989) 48 Cal.3d 1112, 1125 [259 Cal.Rptr. 473, 774 P.2d 146]; Odle v. Superior Court (1982) 32 Cal.3d 932, 937 [187 Cal.Rptr. 455, 654 P.2d 225].)
With these principles in mind, we have examined the record to determine the potential for prejudice from pretrial publicity. We find the record negates any likelihood defendant was denied a fair and impartial jury.
Defendant moved for a change of venue before trial, citing four newspaper and five radio and television reports. Most of the reports were filed at the time of the shooting, over a year earlier. All were fact based. Several credited the heroism of the victim in saving his young cousin’s life, but otherwise contained no inflammatory matter. The trial court, after a hearing, denied the motion, noting that the pretrial publicity was dated and relatively mild, that the case had not elicited unusually heavy media attention, that Riverside County contained a large and diverse population, and that the victim was not a particularly prominent member of the community—although he had attained some notoriety due to the circumstances of his death.
Defendant renewed his motion for change of venue upon completion of the jury voir dire. The motion was denied. In addition to the factors noted above, the trial court observed that the voir dire process had confirmed defendant’s ability to obtain a fair and impartial jury. Of the twelve jurors selected, six had absolutely no prior knowledge of the case; five had vague recollections of the incident but assured the court that they could decide the case based on the facts presented at trial to the exclusion of any prior knowledge; and only one, Juror B., indicated anything resembling a clear memory of the facts; she too, however, swore that she could be objective and decide the matter exclusively on the evidence at trial. Hence, the court concluded that a “fair trial [was] obtainable in this case.”
That decision was manifestly correct. The pretrial publicity was neither extensive nor particularly inflammatory. The community, Riverside County, is large and diverse. Although the victim was sympathetic, this was attributable more to his age and heroism than to any particular prominence he enjoyed in the community. Finally, the voir dire itself dispelled any doubt as to defendant’s ability to receive a fair and impartial jury. Six of the jurors had not been exposed to any pretrial publicity, and none of the remainder remembered anything damaging to defendant or held any opinion concerning his guilt or innocence. Each attested that he or she could render a fair and impartial verdict based exclusively on the evidence presented at trial.
Because six jurors vaguely recalled the shooting, however, defendant contends the jury could not be fair and impartial. We disagree. As this court has observed, “ ‘It is not required... that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case .... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” (People v. Harris, supra, 28 Cal.3d at pp. 949-950, quoting Irvin v. Dowd (1961) 366 U.S. 717, 722-723 [6 L.Ed.2d 751, 755-756, 81 S.Ct. 1639].) Examined under these guidelines, the record leaves no doubt that defendant was afforded a fair and impartial trial.
C. Sufficiency of Evidence
Defendant next contends the first degree murder conviction must be reversed because the evidence was insufficient as a matter of law to demonstrate premeditation and deliberation.
When the sufficiency of the evidence is challenged, “ ‘the relevant question 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 crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781]; accord People v. Guerra (1985) 40 Cal.3d 377, 385 [220 Cal.Rptr. 374, 708 P.2d 1252]; People v. Caldwell (1984) 36 Cal.3d 210, 217 [203 Cal.Rptr. 433, 681 P.2d 274].) With respect to a jury finding of premeditation and deliberation, we have observed that the “true test [of premeditation] is not the duration of time as much as the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly... .” (People v. Thomas (1945) 25 Cal.2d 880, 900 [156 P.2d 7]; accord People v. Robertson (1982) 33 Cal.3d 21, 49-50 [188 Cal.Rptr. 77, 655 P.2d 279].) The type of evidence this court has found to be sufficient falls into three basic categories: planning, motive, and manner. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].)
Applying these principles to the facts at hand, we find that the record amply supports a finding of premeditation and deliberation. There was strong evidence of a well-planned, sexually motivated attack. Shannon, the victim’s young companion, recalled that defendant’s van was strategically parked on the shoulder ahead of the children with the motor idling. Defendant deliberately walked past the children to observe which was female, then attacked the girl from behind, placed the barrel of a .357 magnum pistol against her head, and dragged her 10 feet toward the waiting van. When she asked if he wanted money, he replied, “No, I don’t want your money. Just shut the hell up.”
The killing, moreover, was calculated and deliberate. Defendant first demanded that Shannon call her “brother,” who had run to the middle of the street and was desperately attempting to flag a passing car for assistance. When Danny returned, he kicked defendant, enabling Shannon to escape. She ran some distance, turned and perceived a flash and a gunshot, followed by another shot. She then heard Danny say, “Don’t shoot me again, I’ll die this way.” After a pause, a third shot registered. Autopsy and forensic evidence revealed that the first round struck Danny squarely in the chest. The second, fired as Danny lay helpless on his back, missed; the third, fired from a distance of four to six inches, struck him between the eyes and caused instant death.
It is plain that this was no random or indiscriminate assault (cf. People v. Anderson, supra, 70 Cal.2d 15); defendant immobilized his victim with the first shot, fired again and missed, then placed his pistol four to six inches from the victim’s head and fired a bullet between his eyes. Defendant nevertheless insists that the facts do not demonstrate a plan or preconceived intent to kill, but at most an intent to kidnap the girl for the purpose of a sexual assault. The shooting, he asserts, was not deliberate and premeditated, but rather the result of an inexplicable “explosion of violence” more consistent with a lesser grade of homicide than first degree murder.
As in People v. Robertson, supra, 33 Cal.3d 21, however, we need not “determine whether the evidence is sufficient to [demonstrate]... that defendant had contemplated the possibility of killing his victims from the outset, for... the jury could still have found on the record that the killings were premeditated and deliberate.” (Id. at p. 49, italics added.) The jury here could reasonably have concluded that defendant formed a considered intent to kill when Danny’s actions threatened to reveal his plan to kidnap and rape the young girl, and he immediately carried out his intent to prevent any such occurrence. Accordingly, the evidence supports a finding that the killing was willful, deliberate and premeditated beyond a reasonable doubt.
D. Corpus Delicti
Defendant also challenges the first degree murder conviction on the ground that the prosecution improperly relied on an alternative theory of felony murder. He argues that the corpus delicti of the underlying felony (in this case attempted rape) must be established by evidence independent of defendant’s extrajudicial statements. The contention plainly lacks merit. It is well settled that “the People need not establish the corpus delicti of the underlying felony before introducing a defendant’s extrajudicial statements.” (People v. Cantrell (1973) 8 Cal.3d 672, 680 [105 Cal.Rptr. 792, 504 P.2d 1256], italics added; accord People v. Howard (1988) 44 Cal.3d 375, 414 [243 Cal.Rptr. 842, 749 P.2d 279]; People v. Memro (1985) 38 Cal.3d 658, 697, fn. 46 [214 Cal.Rptr. 832, 700 P.2d 446]; People v. Mattson (1984) 37 Cal.3d 85, 93 [207 Cal.Rptr. 278, 688 P.2d 887].) Thus, defendant’s statements to the officers indicating that he intended to rape the little girl constituted a sufficient basis for a finding of first degree felony murder.
Defendant’s reliance on People v. Mattson, supra, 38 Cal.3d 672, is misplaced. As we explained in People v. Howard, supra, 44 Cal.3d at page 415: “[W]e did not disapprove of Cantrell's holding in Mattson-, rather, we concluded that an exception to the Cantrell approach was required by the specific language of section 190.4,” which provides that the felony underlying a special circumstance allegation “shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.” (§ 190.4, subd. (a).) Defendant here was not charged with a special circumstance of attempted rape. Therefore, the prosecution was not required to establish the corpus delicti of that offense independently of defendant’s statements.
E. Instruction on Lesser Included Offense
Defendant further claims the trial court erred in refusing his requested instruction on felony false imprisonment.
Charged with the special circumstance of murder in the commission or attempted commission of the crime of kidnapping, defendant requested an instruction on the lesser and necessarily included offense of felony false imprisonment. (§ 236; CALJIC No. 9.60.) The trial court denied the request, observing that the evidence rendered such an instruction “superfluous.” We agree.
It is, of course, axiomatic that “in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.]... That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citations], but not when there is no evidence that the offense was less than that charged.” (People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].) Thus, it has long been settled that the trial court need not, even if requested, instruct the jury on the existence and definition of a lesser and included offense if the evidence was such that the defendant, if guilty at all, was guilty of the greater offense. (People v. John (1983) 149 Cal.App.3d 798, 810 [197 Cal.Rptr. 340]; People v. Hulderman (1976) 64 Cal.App.3d 375, 379 [134 Cal.Rptr. 223]; People v. Morrison (1964) 228 Cal.App.2d 707, 713 [39 Cal.Rptr. 874].)
Here, all of the evidence indicated that defendant intended to kidnap the children. He parked his van a short distance ahead of the children on the shoulder of the road; the engine was running. He assaulted the young girl from behind, placed a gun to her head and dragged her some distance toward the van; she resisted by dragging her heels along the ground. He said he didn’t want her money. He admitted on several occasions that he intended to drive the girl away from the scene for the purpose of sexually assaulting her.
The physical evidence, the testimony of an eyewitness, and defendant’s own statements all point indisputably to an attempted kidnapping. Defendant offered no evidence or argument that his only purpose was to forcibly detain the victims at the scene. It is true, as defendant asserts, that he made several equivocal statements during the police interrogation concerning his intent to rape; at several points he stated that he merely intended to take the victims “home.” Defendant mistakenly assumes, however, that there must be an intent to commit an underlying crime before a simple kidnapping or attempted kidnapping can be found to occur. On the contrary, a person who forcibly carries and transports another, capable of giving consent, against his or her will, is guilty of kidnapping “however good or innocent [the defendant’s] motive or intent may otherwise be... .” (People v. Oliver (1961) 55 Cal.2d 761, 765-766 [12 Cal.Rptr. 865, 361 P.2d 593]; see also People v. Apo (1972) 25 Cal.App.3d 790, 797 [102 Cal.Rptr. 242].)
The requested instruction on felony false imprisonment was properly denied.
F. Challenges for Cause
Defendant contends the trial court erroneously overruled his challenges for cause to nine prospective jurors each of whom, he claims, made it clear that his or her views in favor of the death penalty “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his [or her] oath’... .” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; see also People v. Coleman (1988) 46 Cal.3d 749, 764-771 [251 Cal.Rptr. 83, 759 P.2d 1260].) The contention lacks merit.
To complain on appeal that a prospective juror should have been excused for cause, the defendant must have exercised and exhausted his peremptory challenges. (People v. Stankewitz (1990) 51 Cal.3d 72, 103 [270 Cal.Rptr. 817, 793 P.2d 23]; People v. Coleman, supra, 46 Cal.3d at pp. 770-771.) Of the nine prospective jurors here in question, six were ultimately called to sit as jurors, three of the six were removed by defendant’s use of peremptory challenges, and one was dismissed as a result of the prosecutor’s peremptory challenge. Defendant failed to challenge the remaining two jurors, notwithstanding the fact that he had eleven peremptory challenges remaining which he never exercised. Thus, even assuming arguendo that the trial court erroneously denied defendant’s challenges for cause, the error was harmless; as noted, defendant cannot complain on appeal that objectionable jurors were forced upon him where he could have had them excused by peremptory challenge. (People v. Coleman, supra, 46 Cal.3d at pp. 770-771.)
Defendant contends, however, that the harmless error rule should not apply in a capital case. We recently rejected an identical claim in People v. Gordon (1990) 50 Cal.3d 1223, 1247 [270 Cal.Rptr. 451, 792 P.2d 251]. Defendant presents no persuasive reasoning or authority to warrant a reconsideration of our holding.
Furthermore, our review of the record discloses that although the prospective jurors in question gave conflicting answers to questions concerning their views on capital punishment—expressing a preference under certain circumstances for the death penalty—each of them ultimately confirmed that he or she would follow the court’s instructions and keep an open mind concerning life without possibility of parole as an alternative disposition. (See People v. Ruiz (1988) 44 Cal.3d 589, 618, 619 [244 Cal.Rptr. 200, 749 P.2d 854].) Where conflicting or equivocal responses are elicited on voir dire, the trial court’s determination of impartiality is generally binding on this court. (Id. at p. 619; People v. Coleman, supra, 46 Cal.3d at p. 767; People v. Ghent (1987) 43 Cal.3d 739, 768 [239 Cal.Rptr. 82, 739 P.2d 1250].) We conclude, therefore, that the trial court’s failure to excuse the prospective jurors was not error.
II. Penalty Issues
A. Cross-examination of Dr. Hoyle
Defendant contends the trial court erred in overruling an objection to the prosecutor’s cross-examination of a defense expert, Dr. Hoyle, concerning the possibility that defendant matched the sex offender psychological “profile.” Defendant predicates error on the grounds that the cross-examination: (1) exceeded the scope of the direct examination; (2) introduced inadmissible character evidence; and (3) lacked an adequate foundation because Dr. Hoyle had not been qualified as an expert in the area of personality profiles, and such profiles had not been shown to be accepted in the scientific community (see People v. Kelly (1976) 17 Cal.3d 24, 30 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 293 Fed. 1013, 1014).
Assuming, solely for the sake of argument, that any of the foregoing claims has merit, it is clear nevertheless that defendant could not have been prejudiced by the disputed testimony. Dr. Hoyle, a clinical psychologist, was one of several mental health experts called by defendant at the penalty phase. His testimony, based on an interview with defendant and a review of defendant’s school records, social history and tests performed by other experts, indicated that defendant’s psychological makeup—characterized by a low normal to borderline IQ, impulsiveness, distorted perceptions of reality, and “schyzotypal” personality—was consistent with tests showing organic brain damage or atrophy.
During his cross-examination of Dr. Hoyle, the prosecutor at one point asked: “Doctor, these items that we just covered, don’t they fit the profile of a sex offender, a rapist?” A defense objection to the question was overruled. Dr. Hoyle then responded as follows: “Well, first of all, it seems like you said mentally disordered sex offender maybe or rapist but let’s go with sex offender and rapist, neither of those terms are psychiatric diagnosis [szc], I’m not aware that Mr. Kelly had ever committed, you know, any acts of rape or sex offense. He had been sexually molested, I believe by his father, however, the only predictor I could come up with that would be useful in a case like that would be whether or not he had ever done it in the past and as far as my record indicates he had not.”
Pressed to consider whether someone would match the profile if, hypothetically, he had committed rape in the past and also had defendant’s psychosocial background—particularly the fact that he was a loner, had limited sexual experience, and was married to an older woman—Dr. Hoyle responded: “Well, again, I would have to say that those two, you know, labels that you gave me are not psychiatric diagnoses. At the same time, you know, I’d have to say obviously the man is capable of raping someone if he in fact had, but the mere fact that he marries an older woman ... I don’t feel is adequate to make that conclusion nor is the fact that he had limited sexual experience adequate to draw that conclusion, nor is the fact that he’s a loner.”
Stymied in his attempt to label defendant as a stereotypical sex offender, the prosecutor quickly retreated from this line of inquiry. His next question was: “I assume then that in the four years that you have been practicing, you haven’t worked with many people who were violent sex offenders?” The witness readily acknowledged that he had not: “That certainly wasn’t the focus of my treatment.” After several further questions, the cross-examination was completed.
As the record thus discloses, not only did Dr. Hoyle fail to respond affirmatively when asked whether defendant matched the so-called sex offender “profile,” he flatly rejected the notion. As a result, the prosecutor was compelled to abandon the inquiry. Accordingly, there is no reasonable possibility that a result more favorable to defendant might have resulted absent the testimony in question. (People v. Allen (1986) 42 Cal.3d 1222, 1281 [232 Cal.Rptr. 849, 729 P.2d 115].)
B. Photographs
Defendant next contends he was prejudiced at both the guilt and penalty phases by the improper admission of certain photographs. At the guilt phase, these consisted of five photographs of the victim (Danny O.), one of the crime scene, and one of the victim while still alive. At the penalty phase, the prosecution introduced four photographs of the victims of the San Bernardino homicides (one of Reed and three of Houser), one photo of the crime scene, and one photograph of Houser while still alive. In addition, the prosecutor showed four slides—three of Reed’s body at the crime scene and one autopsy photo of Danny O.—during penalty phase argument. Defendant claims the photographs were irrelevant, inflammatory and cumulative.
The photographs were not irrelevant. The principal point of dispute at guilt phase turned on whether Danny’s killing was willful, deliberate and premeditated, or the result of a spontaneous violent outburst. The photographs depicting the placement of the wounds and powder bums clearly supported the prosecution’s theory that the murder was cold-blooded and intentional. (People v. Melton (1988) 44 Cal.3d 713, 741 [244 Cal.Rptr. 867, 750 P.2d 741].) As we recently observed in People v. Turner (1990) 50 Cal.3d 668 [268 Cal.Rptr. 706, 789 P.2d 887], “The prosecution was not obliged to prove these details solely from the testimony of live witnesses, and the jury was entitled to see how the physical details of the scene and body supported the prosecution theory... .” (Id. at p. 706; accord People v. Melton, supra, 44 Cal.3d at p. 741; People v. Hendricks (1987) 43 Cal.3d 584, 594 [238 Cal.Rptr. 66, 737 P.2d 1350].) The Chinese proverb of old states it well: “One picture is worth more than a thousand words.” Therefore, we hold the photos of Danny were neither irrelevant nor cumulative.
Nor was the probative value of the photographs in question outweighed by their prejudicial effect. Although “murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant” (People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91]), our independent review of the photos persuades us that they were not unduly gruesome or inflammatory. (People v. Turner, supra, 50 Cal.3d at p. 706; People v. Melton, supra, 44 Cal.3d at pp. 741-742; People v. Hendricks, supra, 43 Cal.3d at p. 594.)
The photograph of Danny while still alive was not necessary to establish the identity of the victim—there was no dispute as to that issue— and was only marginally relevant to show that the victim was young and thus constituted no threat to defendant. On the whole, the photo probably should have been excluded. (People v. Hendricks, supra, 43 Cal.3d 584, 594.) The error, if any, however, must be deemed harmless. This was not a close case in which sympathy for the victim might have led the jury to improperly convict; the evidence of defendant’s culpability was clear and uncontradicted. Accordingly, the introduction of the photograph does not warrant reversal. (Id. at pp. 594-595.)
We reach the same conclusion with respect to the photographs introduced at penalty phase. The photos of the victims and the crime scenes lent credence to the prosecution’s theory that defendant sexually assaulted the two women and then deliberately killed them to eliminate any witnesses to the crimes. (People v. Melton, supra, 44 Cal.3d at p. 741.) Nor were the photos unduly gruesome. (People v. Hendricks, supra, 43 Cal.3d at p. 594.)
Finally, we reject defendant’s assertion that the admission of the photographs of Danny O. and Ursula Houser while still alive was unduly prejudicial and constituted reversible error under Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529] and South Carolina v. Gathers (1989) 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207]. Although arguably inappropriate as evidence tending to arouse sympathy for the victims, the two photographs do not rise to the level of the victim impact evidence condemned by the high court in Booth and Gathers. Therefore, we are persuaded that the error, if any, was harmless beyond a reasonable doubt. (People v. Stankewitz, supra, 51 Cal.3d at p. 112; People v. Adcox (1988) 47 Cal.3d 207, 259-260 [253 Cal.Rptr. 55, 763 P.2d 906]; People v. Malone (1988) 47 Cal.3d 1, 38-39 [252 Cal.Rptr. 525, 762 P.2d 1249].)
C. Rebuttal Evidence
Defendant next contends the trial court erred in permitting the prosecutor to introduce certain rebuttal evidence. As explained below, the contention lacks merit.
Defendant called his wife, C.K., to testify to his virtues as a loving husband and father to their infant daughter. Thereafter, over objection, the court allowed the prosecution to call Mrs. Kelly as a rebuttal witness. The court correctly noted that by testifying for the defense, Mrs. Kelly had waived her privilege not to be a witness or to testify against her spouse. (Evid. Code, § 973, subd. (a).) The court further ruled, however, that the prosecutor would not be permitted to inquire into any confidential marital communication. (Evid. Code, § 980.) As a result of the court’s ruling, defendant entered into the following stipulation. “[I]f C.K. were called as a witness, she would testify that on Saturday, November 17th, 1984, the defendant showed her two rings which have been marked People’s No. 114 and People’s No. 115. The defendant gave her the ring marked People’s No. 115. [||] The next day, Sunday, November 18th, 1984, she accompanied the defendant to her mother’s residence in Los Angeles where the defendant sold the second ring, People’s No. 114, to her mother for $10.” The prosecution subsequently called J.B., Ms. Houser’s boyfriend, who testified that both rings had belonged to the victim.
“The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of ‘palpable abuse.’” (People v. Carrera (1989) 49 Cal.3d 291, 323 [261 Cal.Rptr. 348, 777 P.2d 121].) The record here does not support a finding that the trial court committed “palpable abuse” in ruling that the evidence was unavailable to the prosecution for presentation during its case-in-chief. As to whether the evidence was within the proper scope of rebuttal, although a closer question, it does not appear the court palpably abused its discretion in admitting the sale of the ring to rebut defendant’s evidence in mitigation that he was a simple and innocent soul, honest and hardworking.
“The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of ‘palpable error.’” (People v. Carrera (1989) 49 Cal.3d 291, 323 [261 Cal.Rptr. 348, 777 P.2d 121].) The record here does not support a finding that the trial court committed “palpable error” in ruling that the evidence was unavailable to the prosecution for presentation during its case-in-chief. As to whether the evidence was within the proper scope of rebuttal, although a closer question, it does not appear the court palpably erred in admitting the sale of the ring to rebut defendant’s evidence in mitigation that he was a simple and innocent soul, honest and hardworking.
D. Other Crimes
Defendant contends the introduction of the two unadjudicated homicides charged in San Bernardino County violated his constitutional rights under the Eighth and Fourteenth Amendments. He also claims that he was constitutionally entitled to have a different jury decide the penalty phase from that which decided the guilt phase. We rejected identical claims in People v. Balderas (1985) 41 Cal.3d 144, 205 [222 Cal.Rptr. 184, 711 P.2d 480], and People v. Rodriguez (1986) 42 Cal.3d 730, 777-779 [230 Cal.Rptr. 667, 726 P.2d 113]. Defendant has presented us with no persuasive reasoning or authority to warrant departure from our holdings in those cases.
E. Instructions on Other-crimes Evidence
Defendant asserts the trial court erred in failing to instruct sua sponte that the prosecution had the burden of proof with respect to other-crimes evidence, and that defendant was presumed innocent of such charges. The trial court instructed the jury that the uncharged homicides must be proved beyond a reasonable doubt. We have held that such an instruction is adequate. (People v. Davenport (1985) 41 Cal.3d 247, 280-282 [221 Cal.Rptr. 794, 710 P.2d 861].) Further instructions in the nature of those urged by defendant were not required.
F. Alleged Prosecutorial Misconduct
Defendant contends the prosecutor committed prejudicial misconduct during penalty phase argument in three separate respects.
First, he asserts the prosecutor made improper reference to the victim’s personal characteristics in violation of Booth v. Maryland, supra, 482 U.S. 496, and South Carolina v. Gathers, supra, 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207]. The remarks in question consisted of two separate and isolated comments. The first was as follows: “You can consider the age of the defendant, probably in relationship to most of the population, the defendant is not that old. He’s in his mid 20’s. How old was Danny when he got killed.” The second remark, which also concerned Danny, came somewhat later and consisted of the following: “But that little boy exhibited a trait, something that I would hope that we would consider good, commendable, something that if everyone in our society—”. Defendant thereupon interposed an objection which was overruled, and the prosecutor continued: “We all have that. And if the defendant had just one percent of what Danny had no one would be killed.”
While arguably inappropriate, we are nevertheless persuaded that the prosecutor’s comments here had no appreciable affect on the penalty verdict. Unlike Booth and Gathers, which involved, respectively, the introduction at trial of a lengthy victim impact statement and extensive prosecutorial comment on the victim’s religious and civic character, these remarks were relatively brief and mild; they contained no details pertaining to the actual impact and suffering inflicted on the victim or his family, and made only passing reference to the victim’s character. Thus, as we concluded in People v. Ghent, supra, 43 Cal.3d 739, the prejudicial effect of the prosecutor’s comments here was “undoubtedly minimal or nonexistent.” (43 Cal.3d at p. 772.) We are persuaded that the error, if any, was harmless beyond a reasonable doubt. (People v. Adcox, supra, 47 Cal.3d at pp. 259-260; People v. Malone, supra, 47 Cal.3d at pp. 38-39; People v. Ghent, supra, 43 Cal.3d at pp. 771-772.)
Defendant next asserts the prosecutor improperly commented on defendant’s failure to produce evidence of prior acts of violence, as follows: “[I]f there was something wrong with the defendant physically because he was a premature baby why did it take 25 years to show. ffl] [I]f the violence that was directed towards him was so great, so consistent, so common, why didn’t we see signs of the same in him at an earlier age?” An objection to prosecutor’s remark as calling for “speculation” was overruled.
Defendant contends the foregoing constituted improper comment on defendant’s failure to produce evidence, in violation of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]. We do not agree. The prosecutor here merely pointed out that defendant had failed to adduce evidence to substantiate his claim that Danny’s murder was the result of long-standing psychological and social pathologies. Griffin prohibits reference to a defendant’s failure to testify in his own behalf; it does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses. (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213]; People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal.Rptr. 15, 509 P.2d 959].)
Finally, defendant claims that the prosecutor improperly argued facts not in evidence. He refers to several isolated remarks suggesting that defendant’s motive in killing Danny, Ursula Houser and Sonia Reed, was to escape apprehension by eliminating any potential witnesses to his other crimes. Defendant’s claim lacks merit. Only one of the prosecutor’s remarks elicited an objection, which was overruled. (See People v. Green, supra, 27 Cal.3d at p. 34.) Moreover, it is well settled that the prosecutor has broad discretion to state his or her views as to what the evidence shows and what inferences may be drawn therefrom. (People v. Lewis (1990) 50 Cal.3d 262, 283 [266 Cal.Rptr. 834, 786 P.2d 892]; People v. Milner (1988) 45 Cal.3d 227, 245 [246 Cal.Rptr. 713, 753 P.2d 669]; People v. Warren (1988) 45 Cal.3d 471, 485, fn. 1 [247 Cal.Rptr. 172, 754 P.2d 218]; People v. Beivelman (1968) 70 Cal.2d 60, 76-77 [73 Cal.Rptr. 521, 447 P.2d 913], disapproved on other grounds in People v. Green, supra, 27 Cal.3d at pp. 33-34.) The prosecutor here properly deduced from the evidence that defendant’s motive for the San Bernardino killings was to avoid apprehension by eliminating the witnesses to his sexual crimes. Both victims were nude from the waist down, and both died as a result of massive contact wounds from a .357 magnum pistol; the barrel of the gun had been literally pressed against the victims’ bodies. In addition, Houser’s body revealed abrasions consistent with the victim having been dragged across dirt and asphalt. The circumstances of Danny’s murder suggested even more strongly an intent to avoid detection and capture.
The facts here amply supported the prosecutor’s statements. (People v. Milner, supra, 45 Cal.3d at p. 245; People v. Beivelman, supra, 70 Cal.2d at p. 76.) There was no misconduct.
G. Failure to Delete Inapplicable Mitigating Factors
Defendant contends the court erred by failing to delete sua sponte all inapplicable mitigating factors from its instruction, specifically factors (e), (f), (g) and (j). (CALJIC former No. 8.84.1.) We have previously rejected a substantially identical claim. (People v. Miranda (1987) 44 Cal.3d 57, 104-105 [241 Cal.Rptr. 594, 744 P.2d 1127].) Indeed, we have recently observed that “the better practice [is] for a court to instruct on all the statutory penalty factors, directing the jury to be guided by those that are applicable on the record.” (People v. Marshall (1990) 50 Cal.3d 907, 932 [269 Cal.Rptr. 269, 790 P.2d 676].) Defendant has advanced no persuasive argument or authority to cause us to reconsider our prior holdings.
H. Extreme Mental or Emotional Distress as a Mitigating Factor
In accordance with section 190.3, factor (d) (CALJIC former No. 8.84.1) the jury was instructed to consider “[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Defendant asserts that by referring to “extreme” conditions, the instruction precluded consideration of any lesser disturbance.
The contention lacks merit. In People v. Ghent, supra, 43 Cal.3d 739, we held that in light of the “catchall” instruction that the jury may consider “any other circumstance which extenuates the gravity of the crime” (former § 190.3, factor (j), now § 190.3, factor (k)), the jury was aware that it could take into account a mental condition “which, though perhaps not deemed ‘extreme,’ nonetheless mitigates the seriousness of the offense.” (43 Cal.3d at p. 776; accord People v. Hunter (1989) 49 Cal.3d 957, 987-988 [264 Cal.Rptr. 367, 782 P.2d 608]; People v. Adcox, supra, 47 Cal.3d at p. 270; People v. Babbitt (1988) 45 Cal.3d 660, 720 [248 Cal.Rptr. 69, 755 P.2d 253].)
The instructions given to the jury went beyond this, however. At defendant’s request the court instructed that, in addition to the statutory penalty factors, the jury could consider additional factors in mitigation, including the “circumstances and effects of [defendant’s] premature birth,” the “circumstances and effects of his being abused as a child by his father,” his “educational background and experiences,” “his religious background and experiences,” and “his physical condition.” In addition, both the prosecutor and defense counsel devoted considerable argument to defendant’s claims of psychological impairment.
Thus, in light of the court’s instructions and the arguments of counsel, we conclude that the jury was properly permitted to consider any mitigating evidence relating to defendant’s alleged mental or emotional disturbance. (People v. Hunter, supra, 49 Cal.3d at pp. 987-988; People v. Babbitt, supra, 45 Cal.3d at pp. 720-721; People v. Lucky (1988) 45 Cal.3d 259, 296-297 [247 Cal Rptr. 1, 753 P.2d 1052].)
I. Failure to Instruct on Proof Beyond a Reasonable Doubt as to Aggravating Circumstances
In his next assignment of error, defendant contends the court erred by failing to instruct the jury sua sponte that they could fix the penalty at death only if they found beyond a reasonable doubt that the aggravating circumstances substantially outweighed the mitigating circumstances and that death was the appropriate punishment. We have previously rejected this argument. (People v. Bonillas (1989) 48 Cal.3d 757, 790 [257 Cal.Rptr. 895, 771 P.2d 844]; People v. Rodriguez, supra, 42 Cal.3d 730 at p. 777; People v. Williams (1988) 44 Cal.3d 883, 960 [245 Cal.Rptr. 336, 751 P.2d 395].)
J. Failure to Require Written Findings
Defendant next claims that the court erred in failing to require a written statement from the jury detailing the evidence upon which it relied and its reasons for imposing the death penalty. We have determined that such written findings are not required by law and are not necessary to protect a defendant’s due process and Eighth Amendment rights. (People v. Rodriguez, supra, 42 Cal.3d at pp. 777-779; People v. Jackson, supra, 28 Cal.3d at pp. 316-317; see also Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189, 1195, revd. on other grounds sub nom. Pulley v. Harris (1984) 465 U.S. 37 [79 L.Ed.2d 29, 104 S.Ct. 871].)
K. “Cumulative” Prejudice
Defendant contends that viewed together, the various alleged errors at penalty phase compel reversal of the verdict of death. Having rejected the bulk of defendant’s claims as utterly lacking in merit, however, there is simply no basis for the assertion of cumulative prejudice. From our review of the record, we are persuaded that defendant received a fair and untainted trial. That is all the Constitution requires. (People v. Williams (1988) 45 Cal.3d 1268, 1333 [248 Cal.Rptr. 834, 756 P.2d 221].)
L. Modification of Penalty
Finally, defendant contends the trial court committed prejudicial error in ruling on the automatic modification motion (§ 190.4, subd. (e)) by failing to consider that defendant had no prior felony convictions. (§ 190.3, factor (c).)
“[I]n ruling on the automatic motion to modify a death verdict, the trial judge’s function is not to make an independent and de novo penalty determination, but rather to independently reweigh the evidence of aggravating and mitigating circumstances and then to determine whether, in the judge’s independent judgment, the weight of the evidence supports the jury verdict. [Citations.]” (People v. Lang (1989) 49 Cal.3d 991, 1045 [264 Cal.Rptr. 386, 782 P.2d 627], original italics.) The court, in so ruling, must set forth its reasons with sufficient particularity to allow effective appellate review. (People v. Heishman (1988) 45 Cal.3d 147, 199-201 [246 Cal.Rptr. 673, 753 P.2d 629]; People v. Rodriguez, supra, 42 Cal.3d at pp. 793-794.)
Here, the record reveals that the trial court was aware of and executed its responsibilities under section 190.4, subdivision (e), with particular care and attention to detail. The court prefaced its analysis by expressly noting that its duty was “to consider each of the circumstances in aggravation and mitigation independently.” The court then proceeded to review each of the statutory penalty factors and special mitigating factors that had been read to the jury, cataloging the evidence that was pertinent to each, stating its views as to the direction in which the evidence cut, and ultimately concluding that “the jury’s findings and verdicts are not only supported by the weight of the evidence, but the Court in its independent review of all the evidence finds the jury verdicts and findings are not contrary to the law or evidence.”
The judge placed primary aggravating weight on the circumstances of the crime (§ 190.3, factor (a)), which evidenced a particularly cold-blooded and calculated killing, and the presence of prior criminal activity involving the use of violence (factor (b)), as evidenced by the two San Bernardino homicides. The court found that the expert psychiatric evidence offered by defendant did not show that the crimes were committed while defendant was under the influence of extreme mental or emotional disturbance (factor (d)) or that his capacity to appreciate the criminality of his acts or conform his behavior to the requirements of law was impaired by mental disease or defect (factor (h)). Nevertheless, the court considered the latter to be a mitigating factor. The court found factors (c) (prior felony convictions), (e) (victim participation or consent), (f) (moral justification), (g) (duress), (i) (the age of defendant), and (j) (whether defendant was an accomplice) to be inapplicable. With respect to factor (k) (any other circumstance which extenuates the gravity of the crime), the court found the special factors requested by defendant to be mitigating.
Defendant correctly observes that the trial judge mislabeled factor (c) (the absence of prior felony convictions) as “inapplicable.” The judge and jury were, of course, free to view the absence of prior felony convictions as a factor in mitigation. (People v. Crandell (1988) 46 Cal.3d 833, 884-885 [251 Cal.Rptr. 227, 760 P.2d 423].) However, the court was plainly aware that defendant had not suffered a prior felony conviction and clearly did not misconstrue factor (c) to be a factor in aggravation. (Cf. People v. Hamilton (1989) 48 Cal.3d 1142, 1186 [259 Cal.Rptr. 701, 774 P.2d 730].) Moreover, the judge placed primary emphasis on the brutal and cold-blooded nature of the murders. The court’s statement of decision makes clear that it did not consider the issue of penalty to be a close one. Thus, any error in the trial court’s analysis with respect to this one penalty factor was harmless by any applicable standard. (People v. Hamilton, supra, 48 Cal.3d at pp. 1186-1187; People v. Brown (1988) 46 Cal.3d 432, 462 [250 Cal.Rptr. 604, 758 P.2d 1135].)
Conclusion
We find no prejudicial error at either the guilt or penalty phases of defendant’s trial. The judgment is affirmed in its entirety.
Lucas, C. J., Panelli, J., Eagleson, J., and Kennard, J., concurred.
All further statutory references are to the Penal Code unless otherwise indicated.
The People argue that we should treat the statement as an admission rather than a confession in the event we determine it was inadmissible under Miranda, thereby invoking a reasonable doubt rather than a reversal per se standard. (People v. Murtishaw (1981) 29 Cal.3d 733, 756 [175 Cal.Rptr. 738, 631 P.2d 446]; People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal.Rptr. 163, 571 P.2d 620].) As will appear, however, defendant’s statement clearly qualifies as a confession and we shall treat it as such. (See People v. Murtishaw, supra, 29 Cal.3d at p. 756 [A confession is a declaration of the defendant’s intentional participation in a criminal act and must include all elements of the crime.].) We need not consider the applicable standard of prejudice in this case, however, inasmuch as we conclude the statement was properly admitted at trial.
The colloquy preceding the resumption of defendant’s interrogation consisted of the following: Detective Cornejo: “Remember your admonishments. Do you still remember your admonishment?”
Kelly: “Who?”
Cornejo: “Remember I read you your rights?”
Kelly: “Yeah.”
Cornejo: “Having those rights in mind, do you still want to talk to us?”
Kelly: “I’ll talk.”
In view of defendant’s failure to exhaust his peremptory challenges, and the jurors’ affirmance that they would impartially consider both sentencing options, we need not address defendant’s additional claim that the trial court erroneously applied the more stringent Witherspoon standard (Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] [whether the juror would “automatically” vote for or against the imposition of capital punishment]) rather than the test set forth in Wainwright v. Witt, supra, 469 U.S. 412, 424 [83 L.Ed.2d at pp. 851-852], and adopted by this court in People v. Ghent, supra, 43 Cal.3d at page 767 (i.e., “ ‘whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”... [T]his standard... does not require that a juror’s bias be proved with “unmistakable clarity.” ’ ”)
We have recently ruled that a qualified psychologist’s expert testimony, based in part upon his interpretation of standardized personality tests, need not be shown to meet the standards for “new scientific techniques” under Kelly/Frye. (People v. Stoll (1989) 49 Cal.3d 1136 [265 Cal.Rptr. 111, 783 P.2d 698].)
The prosecutor apparently showed several of the photos, including that of Danny while still alive, as slides during his argument.
Defendant asserts that the photo of Danny while still alive was also introduced at the penalty phase. The record does not show, however, that this particular photo was reintroduced at the penalty phase.
Defendant did not object to the reference to Danny’s age or request a curative instruction. Accordingly, the first disputed remark may not be raised on appeal. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468].)
In an apparently related argument, defendant contends the prosecutor somehow erred in pointing out that many people share defendant’s social and economic background and have IQ’s equal to or lower than defendant’s. We find nothing objectionable in these remarks, which were apparently intended to rebut defendant’s evidence in mitigation, and to focus attention on defendant’s personal moral culpability for the crimes.
These isolated comments included the following: “Ladies and gentlemen, we have been dealing with an individual, the defendant, who kills so he won’t be caught... .” “Ladies and gentlemen, the defendant did not kill by accident or because of stress. He killed the victims of his other attempted crimes so there wouldn’t be any witnesses, just as pure and simple as that. Just like he killed Danny to get away with that, that’s what he did with these two women... .” “She [i.e., Shannon P.] would have been the defendant’s fourth victim.”
These factors provided: “(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. [H] (g) Whether or not the defendant acted under extreme duress or under the substantial domination of another person. [f[]... [j[] (j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.”
The special instruction given to the jury provided, in its entirety, as follows: “Further, as a basis for sentence less than death, mitigating factors which the jury may consider include, but the jury is not limited to, any of the following: []]] 1. The circumstances and effects of Mr. Kelly’s premature birth; [H] 2. The circumstances and effects of his being abused as a child by his father; [j]] 3. His accepting responsibility of being a provider for his family at an early age; [U] 4. His educational background and experiences; [][] 5. His religious background and experiences; [If] 6. His desire and ability to work and his good record of employment. []]] 7. His love for and from his family, friends and persons who have known him; [j[] 8. His history of being a good husband and father; []|] 9. His physical condition.”
See footnote 12, ante, page 969.
[OPINION BY MOSK, J. type=concurrence]
MOSK, J.
I concur in the judgment. After review, I have found no error warranting reversal.
I write separately, however, to express my strong disapproval of serious police misconduct during the interrogation prior to defendant’s confession: in an effort to secure a statement, the officers deliberately played on defendant’s religious beliefs in violation of principles underlying the First Amendment to the United States Constitution and article I, section 4, of the California Constitution.
Prior to trial, defendant moved to suppress his confession. One of his claims was that the statement was involuntary because it was obtained by the exertion of improper influence by the police, viz., by playing on his religious beliefs. The court denied the motion, determining, inter alia, that the confession was voluntary beyond a reasonable doubt.
The law that is applicable here is clear and well settled.
An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the United States Constitution (e.g., Jackson v. Denno (1964) 378 U.S. 368, 385-386 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R.3d 1205]) and article I, sections 7 and 15, of the California Constitution (e.g., People v. Ditson (1962) 57 Cal.2d 415, 438-439 [20 Cal.Rptr. 165, 369 P.2d 714] [decided under the predecessor of Cal. Const., art. I, § 15]). (See, e.g., People v. Boyde (1988) 46 Cal.3d 212, 238 [250 Cal.Rptr. 83, 758 P.2d 25], affd. sub nom. Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190].)
A confession is involuntary under the federal (e.g., Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 84 S.Ct. 1489]) and state (e.g., People v. Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418]) guaranties of due process when it “was ‘ “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence[]” ’ ” (Hutto v. Ross (1976) 429 U.S. 28, 30 [50 L.Ed.2d 194, 97 S.Ct. 202] (per curiam)). (See People v. Berve (1958) 51 Cal.2d 286, 290 [332 P.2d 97].) “[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’... .” (Colorado v. Connelly (1986) 479 U.S. 157, 167 [93 L.Ed.2d 473, 107 S.Ct. 515].) That is the law under the Fourteenth Amendment. (Ibid.) It is also the law, in my view, under article I, sections 7 and 15, of the California Constitution.
A confession is “obtained” by governmental conduct within the meaning of the federal and state due process guaranties if and only if conduct and confession are linked, as it were, by “proximate” causation. This is certainly true for the federal right. The requisite causal connection must be more than “but for”: causation-in-fact is insufficient. (Hutto v. Ross, supra, 429 U.S. at p. 30 [50 L.Ed.2d at p. 197] (per curiam).) “If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.” (U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1.) The foregoing is also true for the state right. It is the rule in California that the conduct must be “a motivating cause of the confession.” (People v. Brommel (1961) 56 Cal.2d 629, 632 [15 Cal.Rptr. 909, 364 P.2d 845], italics added; accord, People v. Hogan (1982) 31 Cal.3d 815, 838 [183 Cal.Rptr. 817, 647 P.2d 93].) Manifestly, the rule is rooted in principles that are of state constitutional dimension.
Finally, on appeal the trial court’s determination of voluntariness is subject to independent review. (E.g., Davis v. North Carolina (1966) 384 U.S. 737, 741-742 [16 L.Ed.2d 895, 898, 86 S.Ct. 1761] [reviewing federal constitutional claim]; People v. Sanchez (1969) 70 Cal.2d 562, 571-572 [75 Cal.Rptr. 642, 451 P.2d 74] [apparently speaking of review of both federal and state constitutional claims].)
I now turn to the case at bar. It is plain that the police exerted improper influence on defendant during interrogation in an attempt to obtain a confession. As the facts set out by the majority demonstrate, the officers played on defendant’s religious beliefs, and did so in a deliberate fashion. Such conduct was altogether improper under the First Amendment and—separately and independently—under article I, section 4, of the California Constitution. In People v. Adams (1983) 143 Cal.App.3d 970 [192 Cal.Rptr. 290], the Court of Appeal put it thus: “Religious beliefs are not matters to be used by governmental authorities to manipulate a suspect to say things he or she otherwise would not say. The right to worship without fear is too precious a freedom for us to tolerate an invasion and manipulation by state officials of the religious beliefs of individuals, including those accused of crime.” (Id. at p.989.)
The majority are evidently of the opposite view. To be sure, they agree that the police may not play on religious beliefs, stating that “the tactic of exploiting a suspect’s religious anxieties has been justly condemned” and citing to People v. Adams, supra, 143 Cal.App.3d 970. (Maj. opn., ante, at p. 953.) But they disagree that the officers in this case acted improperly: “none of the police comments here appear to have been calculated to exploit a particular psychological vulnerability of defendant; no acute religious anxiety or sense of guilt was apparent from prior questioning... .” (Ibid.) Perhaps no religious sensitivity was evident earlier in the interrogation. But it plainly became evident in its course. And as soon as it did, it was purposely exploited.
Although the police exerted improper influence on defendant by deliberately playing on his religious beliefs, on this record the confession cannot be held to have been obtained by the exertion of such influence. I recognize that the evidence allows an inference that but for the officers’ misconduct, defendant would not have confessed. But it simply does not allow an inference of a causal connection that is more direct and substantial. And as explained above, causation-in-fact is insufficient.
Therefore, after independent review, I conclude that the trial court did not err when it determined that defendant’s confession was voluntary beyond a reasonable doubt.
Accordingly, having found no error on this point—and no error on any other warranting reversal—I concur in the judgment.
Broussard, J., concurred.
Appellant’s petition for a rehearing was denied February 14, 1991.
The court applied the reasonable-doubt standard evidently in reliance on People v. Jimenez (1978) 21 Cal.3d 595, 602-609 [147 Cal.Rptr. 172, 580 P.2d 672]. But since the crimes herein were committed after June 9, 1982, the effective date of article I, section 28, subdivision (d), of the California Constitution (People v. Smith (1983) 34 Cal.3d 251, 257-263 [193 Cal.Rptr. 692, 667 P.2d 149]), Jimenez did not govern, and the applicable standard was preponderance of the evidence. (People v. Markham (1989) 49 Cal.3d 63, 71 [260 Cal.Rptr. 273, 775 P.2d 1042].)
[No. S005092.
Jan. 16, 1992.]
THE PEOPLE, Plaintiff and Respondent, v. HORACE EDWARDS KELLY, Defendant and Appellant.
Counsel
Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Therene Powell, Richard Avila and Sandra L. Goldsmith, Deputy State Public Defenders, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Keith I. Motley and Rudolf Corona, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY ARABIAN, J. type=majority]
Opinion
ARABIAN, J.
This is an automatic appeal from a judgment of death. Defendant Horace Edwards Kelly was found guilty of two counts of first degree murder (Pen. Code, § 187), one count of rape (§ 261, former subd. (2)), one count of attempted rape (§§ 664/261, former subd. (2)), and one count of robbery (§ 211). The jury found that defendant used a firearm in the commission of each count (§§ 12022.3, subd. (a), 12022.5), and found true four special circumstance allegations: murder during the commission or attempted commission of rape as to both murders (§ 190.2, subd. (a)(17)(iii)), murder during the commission or attempted commission of robbery as to one murder (§ 190.2, subd. (a)(17)(i)), and multiple murder (§ 190.2, subd. (a)(3)). The jury also found defendant was sane at the time of the crimes, and then imposed the death penalty.
Facts
The jury found that defendant murdered and attempted to rape Sonia Reed on November 16, 1984, and murdered, raped, and robbed Ursula Houser the next day. Both murders were committed in San Bernardino.
I. Guilt Phase Evidence
A. Prosecution Evidence
Sonia Reed spent part of the early morning hours of November 16, 1984, with G.V.. V. last saw her around 4 to 4:30 a.m. when he dropped her off at the corner of Waterman and Orange Streets, near an area called the Waterman Gardens. Around 4 a.m. that morning, L.M., who lived in the area, heard a scream. A little later, around 4:20 to 4:30, she heard a gunshot followed, about 30 seconds later, by a second gunshot. Around the same time another area resident, I.G., heard a “bang” that sounded like the “backfire of a car,” and a voice saying, “Oh, God,” or “Oh, my God.” G. was not certain whether she heard the voice or the bang first. She thought the voice sounded like a male. G. heard a second bang about four to five minutes after the first.
Later that morning, Reed’s body, nude from the waist down, was discovered behind a headstone at a memorial business at Tenth and Waterman Streets. Various items of female clothing were strewn about the body. The victim’s bra was unfastened.
An autopsy revealed Reed had been shot twice. The first shot was through the back, severing the spinal cord and penetrating the heart. The bullet was recovered inside the victim’s jacket, indicating it hit a hard object such as concrete which stopped its flight. This wound would have caused immediate paralysis from the waist down. The second shot, fired about one to three minutes after the first, went into the back of the head and out through the right lower eyelid. It would have caused instant death. The nature of the wound indicated the head had been bent backwards at the time of the shot. Both wounds were “contact wounds”; the “muzzle of the gun [was] held tightly against the body.” There was no vaginal trauma. A small amount of semen was found that did not come from defendant.
Ursula Houser was with G.T. and others the morning after the Reed murder. She was wearing a leopard skin design dress. T. left Hauser around 4 to 5 a.m. in an alley behind a bowling alley near Highland Avenue and D Street. Houser’s body, also nude from the waist down, was discovered in the alley later that morning. Some distance from the body was a pool of blood, with drag marks leading from the blood to the body. Near the blood were some makeup articles and women’s shoes. Plastic bags, a purse, pantyhose and panties were close to the body. It appeared that Houser had been shot by the pool of blood, then dragged face down by the feet to where the body was found.
An autopsy revealed that Houser died of a single gunshot wound that entered the back of the head and traveled through the brain. As with Reed, the muzzle of the gun had been pressed against the head. Brain death would have occurred almost instantly, although the heart might have continued to pump for a short time. The body was thus essentially dead before it was dragged away. A black hair not from the body was found among the victim’s pubic hair, and another on her back under the dress. There was no evidence of vaginal trauma. A very small amount of sperm was found. Sexual contact connected to physical evidence probably occurred about 24 hours before death, although there could have been more recent sexual contact that left no trace.
Defendant lived in the Waterman Gardens area, near the scene of the Reed murder. Records showed that he purchased a Dan Wesson .357 magnum handgun on September 11, 1984. Between 4 and 5 a.m. on both November 16 and 17,1984, that is, around the time of the murders, defendant drove his stepson, T.F., Jr., to work in defendant’s van. On both occasions, defendant dropped F. off on East Highland Avenue and drove away alone.
Defendant was arrested while driving his van on November 22, 1984. Eight rounds of unexpended .357-caliber ammunition were in his left trouser pocket. His .357 magnum was found hidden behind the left rear taillight of the van. Forensic tests conclusively established that the handgun fired the bullets into Reed’s back and Houser’s head. The bullet fired through Reed’s head was never recovered.
The police searched defendant’s home pursuant to a search warrant. They seized a ring that defendant’s wife pointed out in their bedroom. The police obtained a second ring which defendant had sold to his mother-in-law shortly after the Houser murder. John Brown, Houser’s boyfriend, testified that the two rings belonged to her. She routinely wore them when “she went out,” although she would take them off when she was doing chores at home. When Brown last saw Houser the evening before she was murdered, she was not wearing the rings. She was dressed in blue jeans, and had been working in the garden.
Defendant was interviewed after his arrest. An edited tape of the interview was played to the jury. Defendant denied the murders at first, but then confessed to them. He stated repeatedly that he had had vaginal sex with both victims before he shot them. He said he was not in his “right state of mind,” and was having “headaches.” He admitted obtaining the two rings, and giving one to his wife and selling the other to his mother-in-law. He said, however, that Houser was not wearing the rings; he found them in a trash can.
B. Defense Evidence
C.K. testified she married defendant, who is 18 years younger than she, in April 1984. Defendant obtained a job as a security guard and applied for another job with the sheriff’s department. He told Christine he had bought the gun to make more money in his work and to protect her. Defendant complained of “headaches all the time.” She never knew him to be violent.
II. Sanity Phase Evidence
The defense presented two expert witnesses, Dr. Jerry Hoyle, a clinical psychologist, and Dr. Richard Rappaport, a psychiatrist. Dr. Hoyle had examined defendant regarding his claims of extreme facial pain, which was apparently related to a dental problem. After examining defendant, reviewing records, and administering a standard MMPI (Minnesota Multiphasic Personality Inventory), Dr. Hoyle opined that defendant had a “psychotic-like disturbance.” He had “impaired intellectual ability of some kind,” which caused him to “misinterpret[] and distort[] incoming information... .” He suffered from an “attention deficit disorder” and a “schizotypal personality disorder.” He was not psychotic. He had “dull normal” intelligence, and was brain damaged. Dr. Hoyle also opined, however, that defendant understood the difference between right and wrong and understood the nature and quality of his acts.
Dr. Rappaport examined defendant and reviewed various reports and tests. Defendant was born seven weeks prematurely. He told Dr. Rappaport about his difficult childhood, and said that his father had abused him. Dr. Rappaport concluded that defendant “is not a violent person.” Some “kind of unconsciousness or unconscious impulse ... led him to violence.” He was “brain damaged” and “impaired on a mental basis,” but not necessarily psychotic. He had a dysfunction causing him to react spontaneously, in “almost a knee jerk reaction.” His intellectual functioning was “borderline.”
Dr. Rappaport also believed that defendant “has at times difficulty in knowing the nature and quality of his act[s] and at times [has] questions about whether or not things are right or wrong.” Generally, however, defendant “does know right from wrong.” Defendant knew what he was doing at the time of the murders, and knew the difference between right and wrong. Therefore, Dr. Rappaport believed that at the time of the murders, defendant was sane under the California definition of sanity.
The prosecution presented one witness, Dr. David Hinshaw, a radiologist who reviewed a CAT scan taken of defendant. The only “flaw” Dr. Hinshaw found was a slight dilation of the “temporal horns that pass through a portion of the fluid filled spaces of the brain” and a “few of the sulci spaces, that is the spaces between the folding of the surface of the brain.” It was a “minor change,” was “very common,” and did not necessarily suggest mental illness.
HI. Penalty Phase Evidence
A. Prosecution Evidence
The prosecution presented evidence of criminal activity involving defendant’s use of force or violence in Riverside County a few days after the murders, i.e., the crimes reviewed in Kelly I, supra, 51 Cal.3d at pages 940-942. Briefly stated, on November 22, 1984, defendant assaulted 13-year-old Shannon P. and her 11-year-old cousin, Danny O., as they were walking down a path in Riverside. He grabbed Shannon, then fatally shot Danny twice when the boy attempted to come to her aid. The second shot—between the eyes at close range—came as Danny was pleading for his life. Shannon escaped. Defendant was convicted of first degree murder with special circumstances in the case.
B. Defense Evidence
Defendant called numerous witnesses in mitigation. His mother and aunt testified about defendant’s difficult childhood. He was bom prematurely and was abused by his father until the father’s death when defendant was nine years old. Thereafter, defendant worked at various odd jobs to help support the family. He was a loner and educationally retarded, and often complained of headaches.
Two school psychologists, a school social worker, a learning disability analyst, and two teachers presented testimony concerning defendant’s performance in school in New Jersey. He had learning disabilities and borderline intelligence, and functioned at a fourth or fifth grade level in the ninth grade. He was often harassed and rejected by fellow students. He was a loner and frustrated in school. Yet he was not a discipline problem. One teacher even described him as a “model student.”
Finally, defendant presented the testimony of Dr. Craig Rath, a clinical psychologist who examined defendant and reviewed the various reports and other documentation regarding him. Dr. Rath concluded that defendant is of borderline intelligence but is not retarded. He is best described as having a “schizotypal personality disorder in conjunction with a moderate degree of brain damage.” He is not antisocial. On the surface he would act compliant and cooperative, but was angry on the inside. His “terrible headaches” contributed to his problems. “Everything built up and then the dam burst.”
Discussion
I. Guilt Phase Issues
A. Contentions Relating to Jury Selection
1. Sequestered Questioning
The court allowed the parties to question the prospective jurors individually regarding their attitudes towards the death penalty. (See Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].) After a number of jurors had been so questioned, defense counsel asked permission also to ask the individual jurors about their attitudes regarding race. (Defendant is Black; one of the murder victims was White.) The trial court read the decision in Turner v. Murray (1986) 476 U.S. 28 [90 L.Ed.2d 27, 106 S.Ct. 1683], and then allowed such questions during the remainder of the individual voir dire. It denied defense counsel’s request to recall each juror who had already been individually questioned. Instead, the court allowed defense counsel to ask pertinent questions during the general portion of the voir dire, and to question any prospective juror in private who so requested.
Relying on Turner v. Murray, supra, 476 U.S. 28, and Hovey v. Superior Court, supra, 28 Cal.3d 1, defendant contends the court erred in not allowing him to recall all previously questioned jurors in order to question them again in private. Neither decision supports defendant.
In Hovey v. Superior Court, supra, 28 Cal.3d 1, we were concerned that repeated questioning of prospective jurors in open court regarding their attitudes on the death penalty would tend to unduly “focus on the penalty phase of the proceeding, possibly causing the jurors to anticipate guilt.” (People v. Thompson (1990) 50 Cal.3d 134, 156 [266 Cal.Rptr. 309, 785 P.2d 857].) Therefore, to “minimize the potentially prejudicial effects of exposing jurors to excessive pretrial discussion and questioning about the penalty phase” (People v. Douglas (1990) 50 Cal.3d 468, 522 [268 Cal.Rptr. 126, 788 P.2d 640]), we held that questioning of prospective jurors regarding the death penalty “should be done individually and in sequestration.” (Hovey, supra, 28 Cal.3d at p. 80.) As we noted, “Such a reduction in the pretrial emphasis on penalty should minimize the tendency of a death-qualified jury to presume guilt and expect conviction.” (Ibid.)
This sequestration rule was formulated in the unique context of death-qualifying the jury. We made clear in Hovey v. Superior Court, supra, 28 Cal.3d 1, that the rule does not extend beyond this narrow confine: “The rule of sequestration announced today does not require a sequestered voir dire when venirepersons in capital cases are interrogated about those topics routinely discussed in selecting a jury for any criminal case. For example, the following questions may be asked without sequestering the prospective jurors: Do you know the judge, the lawyers, the defendant, the witnesses, or any of the prospective jurors in this case? Have you served on a jury before, and if so, in what kind of case? Have you or your close friends or relatives ever been employed by a law enforcement agency? Or been the victim of a crime, or a witness to a crime, or testified in a criminal case? When pertinent, questions may also be asked concerning the exposure of prospective jurors to pretrial publicity, and their attitude towards proposed defenses (e.g., insanity, diminished capacity, self-defense, or alibi), potentially controversial circumstances of the case (e.g., the race of the participants, the use of alcohol or drugs, or the presence of sexual activity), or important rules of law bearing on the trial (e.g., the defendant’s right not to testify, presumption of innocence, truth beyond a reasonable doubt, or jury unanimity).
“However, if any of these questions in a specific case are relevant to the death-qualification of the panel or may tend to identify those prospective jurors whose views on capital punishment render them ineligible, then those particular questions should be answered individually and in sequestration. It is the duty of trial counsel to alert the court in advance of voir dire as to which of those general topics are likely to call forth answers bearing on the death-qualification of the jury." (Hovey v. Superior Court, supra, 28 Cal.3d at p. 81, fn. 137, italics added.)
In Turner v. Murray, supra, 476 U.S. at pages 36-37 [90 L.Ed.2d at pages 36-37], the high court held that a “capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” The court also limited the scope of the holding: “The rule we propose is minimally intrusive; as in other cases involving ‘special circumstances,’ the trial judge retains discretion as to the form and number of questions on the subject, including the decision whether to question the venire individually or collectively. [Citation.] Also, a defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the defendant has specifically requested such an inquiry.” (Id. at p. 37 [90 L.Ed.2d at p. 37], italics added.)
In combination, Hovey v. Superior Court, supra, 28 Cal.3d 1, and Turner v. Murray, supra, 476 U.S. 28, thus hold only that the death-qualifying portion of voir dire must be held with individually sequestered jurors, and the defense must be allowed to question the jurors in some fashion on the issue of racial bias. Neither rule was violated in this case. Defendant was allowed to question the prospective jurors about race. Hovey and Turner do not require the questioning be of individually sequestered jurors; they certainly do not require the recall of those jurors questioned before the defense brought the matter to the court’s attention. The court did not abuse its discretion. (See also People v. Clark (1990) 50 Cal.3d 583, 596-597 [268 Cal.Rptr. 399, 789 P.2d 127] [no abuse of discretion in limiting questioning during the sequestered voir dire].)
2. Challenges for Cause
Defendant contends the trial court erroneously overruled his challenges for cause to four prospective jurors each of whom, he claims, made it clear that his views in favor of the death penalty “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’.. .” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; see Kelly I, supra, 51 Cal.3d at pp. 959-960.) The contention lacks merit.
Our discussion of a similar contention in Kelly I, supra, 51 Cal.3d 931, applies to this case. “To complain on appeal that a prospective juror should have been excused for cause, the defendant must have exercised and exhausted his peremptory challenges.” (Id. at p. 960.) Defendant exercised only six of his peremptory challenges in selecting the original twelve jurors and eight alternates. Of the four prospective jurors here in question, two eventually were excused for cause, although not when initially challenged; the other two were excused peremptorily by defendant. “Thus, even assuming arguendo that the trial court erroneously denied defendant’s challenges for cause, the error was harmless... (Ibid.)
Defendant contends the court consistently applied the wrong standard in ruling on challenges for cause, thus discouraging additional challenges. Even assuming the contention is relevant (cf. Kelly I, supra, 51 Cal.3d at pp. 960-961, fn. 4), it finds no support in the record.
Furthermore, our review of the record discloses that although the two prospective jurors who were not ultimately excused for cause gave conflicting answers to questions concerning their views on capital punishment, both of them ultimately confirmed that they would consider life without possibility of parole as an alternative disposition. “Where conflicting or equivocal responses are elicited on voir dire, the trial court’s determination of impartiality is generally binding on this court.” (Kelly I, supra, 51 Cal.3d at p. 960.) We conclude, therefore, that the trial court’s failure to excuse the prospective jurors was not error.
B. Admission of Confession
Defendant contends his confession was erroneously admitted on several grounds. He did not object to its admission at trial; therefore, he may not raise the issue on appeal. (Evid. Code, § 353, subd. (a); People v. Benson (1990) 52 Cal.3d 754, 782, fn. 5 [276 Cal.Rptr. 827, 802 P.2d 330]; People v. Jackson (1989) 49 Cal.3d 1170, 1188 [264 Cal.Rptr. 852, 783 P.2d 211]; People v. Milner (1988) 45 Cal.3d 227, 236-237 [246 Cal.Rptr. 713, 753 P.2d 669].)
Defendant also contends his attorney was ineffective by not objecting. To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698, 104 S.Ct. 2052]; People v. Frierson (1991) 53 Cal.3d 730, 747 [280 Cal.Rptr. 440, 808 P.2d 1197].)
Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. (People v. Lanphear (1980) 26 Cal.3d 814, 828 [163 Cal.Rptr. 601, 608 P.2d 689].) “When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation’ (People v. Pope [(1979)] 23 Cal.3d [412,] 426), the contention must be rejected.” (People v. Jackson, supra, 49 Cal.3d at p. 1188.) A reviewing court will not second-guess trial counsel’s reasonable tactical decisions. (People v. Milner, supra, 45 Cal.3d at p. 238.)
The record in this case strongly suggests a reasonable explanation for the failure to object. (See People v. Lanphear, supra, 26 Cal.3d at pp. 828-829.) Although the confession was harmful in some respects, competent counsel could reasonably believe it helped the defense in other respects.
Defense counsel was representing a client who had already received one death sentence. Disregarding the confession, the evidence of identity as to the two murders was virtually unassailable—the similarity of the crimes suggested one person committed both; ballistics evidence showed conclusively that the gun defendant bought and hid in the back of his van killed both victims; defendant was alone in the area early in the morning of both murders; and shortly after the killings, defendant was in possession of two rings belonging to one of the victims.
There were two murders. If either was found to be in the first degree, a multiple-murder special circumstance was virtually unavoidable no matter what the jury found regarding the rape and robbery charges and the related special circumstance allegations. (See People v. Cooper (1991) 53 Cal.3d 771, 828 [281 Cal.Rptr. 90, 809 P.2d 865].) The evidence of premeditation supporting a first degree murder verdict was compelling—one bullet through the back of the first victim followed one to three minutes later by a second bullet through the head, and a similar bullet through the head of the second victim the next day. For these reasons, counsel could reasonably believe an eventual penalty phase was highly likely, if not a foregone conclusion, whether or not the confession was admitted at the guilt phase.
Thus, counsel could reasonably believe the major thrust of the defense as a whole was to avoid the death penalty, and that all three phases, guilt, sanity, and penalty, should be tried with that goal in mind. Indeed, outside the presence of the jury, defense counsel candidly told the court he considered the sanity phase a “precursor” to the penalty phase.
Under these circumstances, counsel had to make the tactical decision whether on balance admission of the confession would help or hurt the defense. Defendant’s statements regarding the rings supported the defense theory that he took them after the murder, which would be a defense to the robbery charge and the related robbery-murder special circumstance. (See pt. I. E. of Discussion, post.) In addition, the confession was liberally sprinkled with statements that might be considered mitigating or which might evoke sympathy. In effect, the tape was an opportunity for the jury to hear defendant testify without being subjected to cross-examination. (Cf. People v. Edwards (1991) 54 Cal.3d 787, 818 [1 Cal.Rptr.2d 696, 819 P.2d 436] [defendant attempted to introduce his postarrest statement when the prosecution did not use it].)
Defense counsel repeatedly used the taped confession in argument to the jury during the guilt and penalty phases. For example, he argued, “Horace, as you probably surmised from the tapes, is incapable of” premeditation; that defendant’s statements disproved the robbery charge; and that defendant “showed remorse during the interrogation that the prosecution played.” Dr. Rappaport relied on the confession as a basis for his sanity phase opinion.
Defendant argues that portions of the confession helped the prosecution. This is undoubtedly correct—defendant admitted he was the killer, and he insisted that he had sex with the victims before he killed them. As noted, in other regards, the confession helped the defense. This does not mean counsel’s decision was incompetent, only that it was difficult. Competent counsel often are confronted with tactical choices that have cons as well as pros; a fortiori, they are permitted, indeed required, to make them.
Defendant argues that since he did not present a diminished capacity defense, his mental state was irrelevant to the guilt phase, and thus counsel should have admitted the tape at a later phase if at all. However, counsel could reasonably believe the guilt phase was a good time to begin the campaign designed to ultimately prevail at the penalty phase. In addition, a successful suppression motion at the guilt phase would have prevented admission of the confession at any phase. Even if somehow counsel could object at the guilt phase, and then withdraw the objection and hope the prosecution would offer the confession later (or try to offer it himself as in Edwards, supra, 54 Cal.3d at p. 818), it still might be best to let the jury hear the tape early in the trial as part of the prosecution evidence. Counsel’s credibility would suffer if he argued a fact at the guilt phase that was contrary to what the jury later heard from his client’s own mouth. The record reflects counsel was understandably concerned with preserving his credibility with the jury from one phase to the next.
In People v. Lanphear, supra, 26 Cal.3d at pages 826-831, the defendant claimed his attorney was ineffective for not objecting to evidence at the guilt phase of crimes other than the charged offense. In the habeas corpus proceeding related to the appeal, defense counsel stated in a declaration that he had not objected because he did not believe the evidence was particularly prejudicial to defendant’s alibi defense, and counsel believed “that the evidence was admissible, and if not admitted at the guilt phase, it would be admitted at the penalty phase.” (Id. at p. 830.) We rejected the claim of ineffectiveness. “Defense counsel was caught in a cruel dilemma: If the prior murders were introduced for the first time when the jury was considering penalty alone, the impact would be such as to make the penalty of death a foregone conclusion. ... We cannot say that the trial counsel’s actions were not the product of informed tactical choice within the range of reasonable competence.” (Id. at p. 831.)
Lanphear teaches that counsel may reasonably treat the entire trial as a whole, and consider what effect a tactical decision at one phase will have on a later phase. Although there is no declaration of counsel in this appellate case, counsel faced a similar tactical situation. Counsel had to make the difficult decision whether on balance the defense would benefit from the jury hearing the tape of defendant’s confession as part of the prosecution casein-chief at the guilt phase. This is precisely the type of tactical decision defense counsel must be allowed to make without fear of appellate second-guessing “ ‘in the harsh light of hindsight.’ ” (People v. Lanphear, supra, 26 Cal.3d at p. 828, quoting People v. Thomas (1974) 43 Cal.App.3d 862, 869 [118 Cal.Rptr. 226].)
C. Cross-examination of the Pathologist
During the cross-examination of Dr. Irving Root, the pathologist who performed both autopsies, the defense sought to elicit testimony regarding the amount of alcohol or cocaine in the victims’ systems. The prosecution objected on relevancy grounds, and a hearing was held outside the presence of the jury. Defense counsel argued that the evidence “goes to the character of the victim,” and that it was relevant to a possible kidnapping claim. The court ruled that in the absence of prosecution evidence suggesting kidnapping, evidence on that point would not be relevant. Dr. Root stated that the alcohol or cocaine content did not contribute to the cause of death of either victim. The court sustained the relevancy objection.
Defendant contends the court erred. However, only relevant evidence is admissible, that is, evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468].) The court is vested with wide discretion in determining relevance under this standard. (People v. Green, supra, at p. 19.)
We perceive no abuse of discretion. The court is not required to admit evidence that merely makes the victim of a crime look bad. Consumption of cocaine or alcohol did not contribute to the cause of death, the victims’ character was not at issue, and there was no claim of kidnapping (even assuming alcohol or cocaine consumption would somehow be relevant to a kidnapping charge). For the first time on appeal, defendant argues such consumption was relevant to the defense of consent or reasonable belief in consent as to the rape charges. Such a defense was neither relied upon at trial nor suggested as a basis for admission of the evidence. Furthermore, evidence of substance abuse, without more, would be meaningless to a jury’s consideration of the victims’ conduct. The court properly disallowed the evidence.
D. Contentions Related to the Rape Charges
One of the defense theories at trial was that defendant first acquired the intent to have intercourse with the victims after they were dead. Over defense objection, the court gave the following nonstandard instruction to the jury in addition to the standard instructions: “7i is legally possible to rape a dead body. Where a defendant attempts to coerce his victim into intercourse with him, fails to accomplish the purpose while she is alive and kills her to satisfy his desires with her corpse, the killing falls within the felony murder rule.” (Italics added.)
Defendant contends that the emphasized language was erroneous, that the error was prejudicial as to the rape and attempted rape charges, that it invalidated the rape-felony-murder theory so as to require reversal of the first degree murder charges, and that the rape special-circumstance findings must be reversed. We agree that the emphasized sentence was error requiring reduction of the rape conviction to attempted rape. However, the error does not affect the attempted rape conviction, the related firearm-use enhancements, the validity of the rape-felony-murder theory of first degree murder, or the rape special circumstances.
Rape requires a live victim. “Rape must be accomplished with a person, not a dead body. It must be accomplished against a person’s will. A dead body cannot consent to or protest a rape, nor can it be in fear of immediate and unlawful bodily injury [as required by section 261, former subdivision (2)]. Penal Code section 263 provides, ‘[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape... .’ A dead body has no feelings of outrage.” (People v. Sellers (1988) 203 Cal.App.3d 1042, 1050 [250 Cal.Rptr. 345], fn. omitted; see also People v. Stanworth (1974) 11 Cal.3d 588, 604-605, fn. 15 [114 Cal.Rptr. 250, 522 P.2d 1058]; People v. Morales (1989) 48 Cal.3d 527, 552 [257 Cal.Rptr. 64, 770 P.2d 244]; People v. Ramirez (1990) 50 Cal.3d 1158, 1176 [270 Cal.Rptr. 286, 791 P.2d 965] [applying a similar rule to the crime of sodomy].)
This does not, however, mean that intercourse after death negates the felony-murder rule, the rape special circumstance or the rape weapon enhancements. Felony murder includes a killing “committed in the perpetration of, or attempt to perpetrate,... rape... .” (§ 189, italics added.) As relevant here, the rape special circumstance applies to a murder “committed while the defendant was engaged in or was an accomplice in the commission of, [or] attempted commission of ” rape. (§ 190.2, subd. (a)(17)(iii)), italics added.) The firearm-use enhancement applies to the “attempted commission of a felony.” (§ 12022.5, subd. (a).)
In People v. Quicke (1964) 61 Cal.2d 155 [37 Cal.Rptr. 617, 390 P.2d 393], the defendant attempted to rape his victim, but strangled her when he met resistance. He drove the body to another location where he had intercourse with it. We held these facts supported a finding that the killing “was done in the perpetration of rape.” (Id. at p. 158.)
Similarly, in People v. Goodridge (1969) 70 Cal.2d 824 [76 Cal.Rptr. 421, 452 P.2d 637], the defendant beat and stabbed the victim while attempting to rape her. After the stabbing, either immediately before or after death, he had intercourse with the body. We rejected a claim that since it is impossible to rape a dead body, the trial court should not have instructed on the felony-murder rule. In language which formed the second sentence of the special instruction now challenged, we stated, “Where a defendant attempts to coerce his victim into intercourse with him, fails to accomplish his purpose while she is alive, and kills her to satisfy his desires with her corpse, the killing is first degree murder.” (Id. at p. 838; see also People v. Booker (1977) 69 Cal.App.3d 654, 666 [138 Cal.Rptr. 347] [“When a conviction of first degree murder is based on the theory of killing during an attempted rape, it is irrelevant whether the victim was already dead at the time of penetration.”].)
Since the rape special circumstance applies to a killing while engaged in the commission or attempted commission of rape (see People v. Guzman (1988) 45 Cal.3d 915, 951 [248 Cal.Rptr. 467, 755 P.2d 917]), it also does not matter whether actual penetration did not occur until after death for purposes of the special circumstance. In sum, a person who attempts to rape a live victim, kills the victim in the attempt, then has intercourse with the body, has committed only attempted rape, not actual rape, but is guilty of felony murder and is subject to the rape special circumstance.
We now examine the instructions to determine whether this law was correctly conveyed to the jury. Once we have ascertained the relevant law, we determine the meaning of the instructions in this regard. Here the question is whether there is a “reasonable likelihood” that the jury understood the charge as the defendant asserts. (Estelle v. McGuire (1991) 502 U.S. _, _ [116 L.Ed.2d 385, 400, 112 S.Ct. 475]; Boyde v. California (1990) 494 U.S. 370, 380 [108 L.Ed.2d 316, 328, 110 S.Ct. 1190]; People v. Benson, supra, 52 Cal.3d at p. 801.) “In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. [Citation.] Finally, we determine whether the instruction, so understood, states the applicable law correctly.” (People v. Warren (1988) 45 Cal.3d 471, 487 [247 Cal.Rptr. 172, 754 P.2d 218].)
The first sentence of the challenged instruction—“It is legally possible to rape a dead body.”—is erroneous. A dead body cannot be raped. But this does not mean the jury would have misunderstood the law regarding rape-felony-murder or the rape special circumstance. A reasonable juror would have understood that for the felony-murder rule and the special circumstance to apply, the defendant must have been attempting to rape the victim at the time of the killing; it would not suffice if, after the killing, defendant acquired the intent to have intercourse with the dead body. The second sentence of the challenged instruction, which clearly was intended to explain the first, correctly stated the rule.
In addition, the remaining instructions correctly informed the jury that the felony-murder rule requires that the killing occur “during the commission or attempt to commit” the felony; that there must be “in the mind of the perpetrator the specific intent to commit” the felony; that rape must be “accomplished against [the victim’s] will by means of force, violence, or fear of immediate unlawful bodily injury”; that an attempt requires the “specific intent to commit the crime”; that the rape special circumstance requires that the murder be “committed while the defendant was engaged in the commission or attempted commission of a rape”; and that the special circumstance is not established “if the attempted rape was merely incidental to the commission of the murder.”
The arguments of counsel also correctly explained the relevant law. (See People v. Lee (1987) 43 Cal.3d 666, 677-678 [238 Cal.Rptr. 406, 738 P.2d 752].) The district attorney stressed, “It must be demonstrated that the defendant had the intent, the intent to commit these particularly felonies, rape and robbery, at the time of the deaths of these women.” He argued that the “question is what was Mr. Kelly’s intent when he was approaching” the victims. Although he stated that “it is possible to rape a dead person,” he based his entire argument on the necessity of proving an intent to rape at the time of the shooting. Defense counsel argued, “If she was killed and there was no intent to do anything sexual until afterward, and that intent was formed after her demise, it may not be criminal.”
In light of this, we conclude that it is not reasonably likely the jury misunderstood the law regarding the felony-murder rule and the rape special circumstance. People v. Sellers, supra, 203 Cal.App.3d 1042, which reversed a first degree murder conviction, is distinguishable. There, the defense version of the facts, which was supported by evidence, was “that defendant killed the victim and then left the apartment .... Defendant went home, then returned to the scene after an hour or two, washed the victim’s body, laid it back on the bed and had intercourse with it.” (Id. at p. 1049.) The appellate court found that the instructions erroneously allowed the jury to apply the felony-murder rule based solely on the later intercourse with the body, and that the error was prejudicial. (Id. at pp. 1050-1055.) Even Sellers recognizes, however, that “if the victim dies during an attempted rape which is only consummated after death, the felony-murder rule is fully applicable.” (Id. at p. 1054.) Here, unlike Sellers, the jury was not misled regarding the murder charge.
There was, however, error regarding the rape charges. If the jury found that defendant killed the victims while trying to rape them, and had intercourse afterwards, it could find only attempted rape, not completed rape. It is reasonably likely that the jury, told that it is possible to rape a dead body, would conclude otherwise, and believe defendant was guilty of the completed crimes. The error is clearly harmless as to victim Reed because the jury convicted defendant only of attempting to rape her (apparently because of the evidence that the semen found in her body did not come from defendant). The jury, however, convicted defendant of raping victim Houser.
Because the jury was misinstructed on an element of the offense of rape, reversal of this rape conviction is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. (People v. Hayes (1990) 52 Cal.3d 577, 628 [276 Cal.Rptr. 874, 802 P.2d 376].) We are unable to so conclude as to Houser. This issue was not conceded, and the jury did not resolve it in another context. (Ibid.) Although far from conclusive, the physical evidence suggested the possibility of intercourse after death. The evidence showed that the body was probably killed at one place (the pool of blood), then dragged to another spot where it was found. The victim’s underclothes were found near the seminude body, not where the killing occurred. It is true that defendant repeatedly insisted that he had “sex” with both victims before death, not after. But the verdict of attempted rape as to Reed shows the jury did not necessarily believe this claim. For these reasons, we reverse the rape conviction as to Houser.
The error would not, however, have affected a conviction of the lesser included offense of attempted rape. When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. (E.g., People v. Edwards (1985) 39 Cal.3d 107, 118 [216 Cal.Rptr. 397, 702 P.2d 555] [district attorney could retry murder conviction or accept reduction to involuntary manslaughter].) Here, outright reversal of the rape charge would probably require reversal of the accompanying rape special circumstance (People v. Morris (1988) 46 Cal.3d 1,17-18 [249 Cal.Rptr. 119, 756 P.2d 843]), and possibly the murder charge itself. (See People v. Green, supra, 27 Cal.3d at p. 69.) In light of our ultimate affirmance of the judgment of death, it is unlikely the district attorney would prefer to retry the case rather than have the rape charge reduced to an attempt. Therefore, unless the People inform us in a petition for rehearing that they desire to retry the rape charge, we will exercise our authority under section 1260, and simply reduce the rape conviction to attempted rape. The related firearm-use enhancements, the murder, and the rape special circumstances will not be affected.
E. Contentions Related to the Robbery Charge
1. Sufficiency of the Evidence
Defendant contends there is insufficient evidence to support the robbery conviction. “In reviewing the sufficiency of the evidence, we must draw all inferences in support of the verdict that can reasonably be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.” (People v. Miranda (1987) 44 Cal.3d 57, 86 [241 Cal.Rptr. 594, 744 P.2d 1127].)
Defendant agrees there is sufficient evidence that he stole victim Houser’s two rings, but contends there is insufficient evidence that the intent to take them arose before rather than after death. If the intent to steal arose only after force was used, the offense is theft, not robbery. (People v. Turner (1990) 50 Cal.3d 668, 688 [268 Cal.Rptr. 706, 789 P.2d 887]; People v. Ramkeesoon (1985) 39 Cal.3d 346, 351 [216 Cal.Rptr. 455, 702 P.2d 613].)
Defendant told the police that he found the rings in a trash can. He claims this statement was “corroborated” by the testimony of Houser’s boyfriend, Brown, that she was not wearing the rings when she left home the night before the murder. Because of this, he argues, she must have had them in her purse or elsewhere on her person, and he did not find them until after he dragged the body to the spot where it was found. The purse was found near the body.
The contention misstates the testimony. Brown said Houser was not wearing the rings when he last saw her, but that she “routinely” wore them when she “went out.” When he last saw her she was wearing blue jeans. When murdered, she was wearing a leopard skin design dress. The jury could reasonably infer that, following her routine, she put the rings on when she changed her clothes to go out.
Although the evidence was not overwhelming, the jury could also reasonably find defendant intended to steal the rings before he killed her. As we recently noted, “when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.” (People v. Turner, supra, 50 Cal.3d at p. 688.) Substantial evidence supports the verdict.
2. Instructional Contentions Related to the Robbery Charge
Defendant also contends that the court prejudicially erred in the robbery instructions. We agree, and reverse the robbery conviction, the related firearm-use enhancement, and the robbery special circumstance. We reject the contention that the error also requires reversal of the first degree murder verdict as to victim Houser.
Although we have found sufficient evidence to support a verdict that the intent to steal arose before death, the evidence was not overwhelming. There was evidence to support a contrary finding, including defendant’s statements to the police. The court gave the standard instructions on robbery and the robbery special circumstance, but did not specifically instruct that if defendant formed the intent to steal only after the killing, he was guilty at most of the lesser included offense of theft. We recently rejected defendant’s contention that the court had a sua sponte duty to give such an instruction. (People v. Webster (1991) 54 Cal.3d 411, 443-444 [285 Cal.Rptr. 31, 814 P.2d 1273].)
However, the court also did not instruct on any lesser included offenses of robbery. This was error. Since there was evidence that defendant was guilty only of theft rather than robbery, the court had a sua sponte duty to instruct on theft as a lesser included offense. (People v. Turner, supra, 50 Cal.3d at p. 690; People v. Ramkeesoon, supra, 39 Cal.3d at p. 351.) Nothing in the record suggests the error was invited. (See People v. Cooper, supra, 53 Cal.3d at pp. 827-831.)
The error was prejudicial as to the robbery count and the robbery special circumstance. “An error in failing to instruct on lesser included offenses requires reversal unless it can be determined that the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (People v. Ramkeesoon, supra, 39 Cal.3d at pp. 351-352.) We cannot so determine in this case.
In People v. Turner, supra, 50 Cal.3d at pages 690-693, we found similar instructional error harmless, but for reasons which do not apply to this case. In Turner, “the jury was given special instructions highlighting the issue of ‘after-formed intent.’ ” (Id. at p. 691, italics in original.) “In contrast to Ramkeesoon, supra, 39 Cal.3d 346, the special instructions in this case did require the jury to confront and decide the issue of ‘after-formed intent.’ The jurors were told emphatically not to convict defendant of robbery or first degree felony murder, or to find the robbery-murder special circumstance true, if they believed it reasonably possible that he killed for reasons unrelated to theft and stole only as an incidental afterthought.” (Id. at pp. 692-693.)
Here, the jury was instructed on and found true the robbery special circumstance, but the instructions did not focus on the “after-formed intent” question, or on whether the jury, having found defendant guilty of robbery, could find the robbery special circumstance not true. As we recently explained, although there is no sua sponte duty to give such instructions, their presence or absence is pertinent to “deciding whether reversible prejudice had arisen from the trial court’s erroneous failure to furnish any instructions or verdict forms on lesser included offenses supported by the evidence.” (People v. Webster, supra, 54 Cal.3d at p. 444, italics in original.)
Other factors relied on in Turner in finding harmless error are absent here. In Turner, the jury found first degree felony murder based on robbery and returned a death verdict knowing that a murder in the commission of robbery was the sole basis of the defendant’s eligibility for the death penalty. (50 Cal.3d at p. 693.) Here, the jury was instructed on rape-felony-murder as well as robbery, and there were additional special circumstances, including three murders. Unlike Turner, we cannot say with confidence that the jury necessarily “considered the question of ‘after-formed intent’ and rejected this ‘mere theft’ theory on its merits.” (Id. at p. 691.) Hence, we reverse the robbery count, the related firearm-use enhancement, and the robbery special circumstance.
Defendant argues that the first degree murder conviction as to Houser must also be reversed because the court instructed on robbery-felony-murder as well as rape-felony-murder and premeditated murder. We disagree. The general rule is that when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand. (People v. Morris, supra, 46 Cal.3d at p. 24; People v. Green, supra, 27 Cal.3d at p. 69.) Here, we can determine that the verdict rested on at least one correct theory. The jury found true the rape-murder special circumstance. Since the jury thus necessarily found the killing was committed in the course of a rape or attempted rape, the robbery instructions were of no consequence to the murder charge. (People v. Garrison (1989) 47 Cal.3d 746, 779 [254 Cal.Rptr. 257, 765 P.2d 419].)
F. Other Instructional Contentions
1. CALJIC No. 2.03
Defendant contends the court erred in giving CALJIC No. 2.03, involving consciousness of guilt. Defendant’s statements to the police originally denying the crimes provided evidentiary support for the instruction. We have repeatedly upheld the instruction when based upon evidence. (E.g., People v. Crandell (1988) 46 Cal.3d 833, 870-871 [251 Cal.Rptr. 227, 760 P.2d 423]; People v. Green, supra, 27 Cal.3d at pp. 40-41.) Defendant recognizes this, but claims that the rule must be reassessed in light of our recent decision in People v. Wright (1988) 45 Cal.3d 1126 [248 Cal.Rptr. 600, 755 P.2d 1049]. In Wright, we explained and limited the circumstances in which a defendant is entitled to a “pinpoint” instruction. (See People v. Daniels (1991) 52 Cal.3d 815, 870-871 [277 Cal.Rptr. 122, 802 P.2d 906].) Defendant contends that CALJIC No. 2.03 is in effect a pinpoint instruction favorable to the prosecution, and it is no longer appropriate under the Wright analysis.
CALJIC No. 2.03, however, does not merely pinpoint evidence the jury may consider. It tells the jury it may consider the evidence but it is not sufficient by itself to prove guilt. (See People v. Green, supra, 27 Cal.3d at p. 40.) Defendant obviously does not quarrel with the emphasized language. If the court tells the jury that certain evidence is not alone sufficient to convict, it must necessarily inform the jury, either expressly or impliedly, that it may at least consider the evidence. Nothing in Wright affects such an instruction. There was no error.
2. CAUIC No. 17.01
Defendant argues the court had a sua sponte duty to instruct the jury under CALJIC No. 17.01 that it had to unanimously agree upon which act defendant committed as to the rape and robbery charges. (See generally People v. Diedrich (1982) 31 Cal.3d 263, 280-284 [182 Cal.Rptr. 354, 643 P.2d 971].) He argues the instruction was necessary because the jury could have disagreed as to whether the crimes “were committed before or at the time of each homicide, or were committed afterwards.” However, as defendant himself has argued, and we have explained, only actions and intent before death could support the rape or robbery charges. To suggest the jury could base guilt on actions after death would have been erroneous. The court had no duty to give a legally incorrect instruction.
II. Sanity Phase Issues
A. Constitutionality of Section 25, Subdivision (b)
Defendant contends that the California test for insanity, codified in section 25, subdivision (b) (hereafter section 25(b)), is unconstitutionally vague. To place the contention into perspective, a brief historical review is necessary.
“For over a century prior to the decision in People v. Drew (1978) 22 Cal.3d 333 [149 Cal.Rptr. 275, 583 P.2d 1318], California courts framed this state’s definition of insanity, as a defense in criminal cases, upon the two-pronged test adopted by the House of Lords in M’Naghten’s Case (1843) 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722]: ‘[T]o establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.’ (Italics added; see People v. Coffman (1864) 24 Cal. 230, 235.)” (People v. Skinner (1985) 39 Cal.3d 765, 768 [217 Cal.Rptr. 685, 704 P.2d 752].)
In 1978, this court abandoned the M’Naghten test in favor of the test proposed by the American Law Institute (hereafter sometimes ALI): “ ‘A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfiilness] of his conduct or to conform his conduct to the requirements of law.’ ” (People v. Drew (1978) 22 Cal.3d 333, 345 [149 Cal.Rptr. 275, 583 P.2d 1318].)
In June 1982, the electorate passed an initiative measure that, among other things, established the state’s first statutory definition of insanity: “In any criminal proceeding ... in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and, of distinguishing right from wrong at the time of the commission of the offense.” (§ 25(b), italics added; see People v. Skinner, supra, 39 Cal.3d at p. 768.)
Despite the use of the conjunctive “and” instead of the disjunction “or” to connect the two prongs, we held in Skinner, supra, 39 Cal.3d at page 769, “that section 25(b) was intended to, and does, restore the M’Naghten test as it existed in this state before Drew,” and that “under that test there exist two distinct and independent bases upon which a verdict of not guilty by reason of insanity might be returned.”
As a result of Skinner, supra, 39 Cal.3d 765, defendant’s vagueness challenge to section 25(b) is nothing less than a challenge to the M’Naghten test itself as it existed for over a century in this state and even longer in other parts of the common law world. As we explain, that test passes constitutional muster.
Due process requires a “ ‘reasonable degree of certainty in legislation, especially in the criminal law ....’” (In re Newbern (1960) 53 Cal.2d 786, 792 [3 Cal.Rptr. 364, 350 P.2d 116], quoted in People v. Mirmirani (1981) 30 Cal.3d 375, 382 [178 Cal.Rptr. 792, 636 P.2d 1130].) Thus, a statute must be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal.Rptr. 145, 673 P.2d 732], and cases cited therein.) The second of these criteria is the more important (id. at p. 269, fn. 15, citing Kolender v. Lawson (1983) 461 U.S. 352 [75 L.Ed.2d 903, 103 S.Ct. 1855]; People v. Wooten (1985) 168 Cal.App.3d 168, 174 [214 Cal.Rptr. 36]), especially in this situation. A person does not become sane or insane while committing crimes in reliance upon a statutory definition.
The statute here is reasonably certain. “Many, probably most, statutes are ambiguous in some respects and instances invariably arise under which the application of statutory language may be unclear. So long as a statute does not threaten to infringe on the exercise of First Amendment or other constitutional rights, however, such ambiguities, even if numerous, do not justify the invalidation of a statute on its face. In order to succeed on a facial vagueness challenge to a legislative measure that does not threaten constitutionally protected conduct—like the initiative measure at issue here [cf. People v. Mirmirani, supra, 30 Cal.3d at p. 383]—a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that ‘the law is impermissibly vague in all of its applications.’ ” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1201 [246 Cal.Rptr. 629, 753 P.2d 585], quoting Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 497 [71 L.Ed.2d 362, 371, 102 S.Ct. 1186], italics added in Evangelatos.) Defendant cannot pass this test.
The M’Naghten rule has a long common law history, and has been repeatedly construed in this and other jurisdictions. (See e.g., the cases cited in People v. Skinner, supra, 39 Cal.3d 765.) “ ‘[A] statute is sufficiently certain if it employs words of long usage or with a common law meaning, “notwithstanding an element of degree in the definition as to which estimates might differ.” [Citations.]’ ” (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60 [216 P.2d 859], quoted in People v. Ballard (1988) 203 Cal.App.3d 311, 317 [249 Cal.Rptr. 806].) The history of the rule virtually precludes us from finding it impermissibly vague at this late date. The concerns that caused us to abandon it in favor of the ALI test in Drew, supra, 22 Cal.3d 333, 339-348, did not include vagueness. Defendant cites no case, and we have found none, in which a court or even a party has questioned the test on this ground.
Defendant specifically contends that the phrase “distinguishing right from wrong” is too vague. In Skinner, supra, we rejected the Attorney General’s argument that the word “wrong” is limited to a “legal, rather than a moral wrong.” (39 Cal.3d at p. 778.) We concluded that “a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful.” (Id. at p. 783; see also People v. Stress (1988) 205 Cal.App.3d 1259, 1272 [252 Cal.Rptr. 913].)
Defendant now argues that the word “moral” as used in Skinner, supra, 39 Cal.3d 765, is too broad, and that it allows “the jurors to apply their personal moral views in determining defendant’s sanity.” (Italics by defendant.) The contention might have some relevance if the statute required jurors to determine guilt if and only if they themselves considered defendant’s actions to be morally wrong. The statute does not do this. Murder, rape and robbery are wrong morally as well as legally. That is not and never was at issue at the sanity phase. Jurors do not have to apply personal moral views to determine this. The relevant inquiry regarding sanity is whether the defendant was incapable of distinguishing right from wrong, that is, of realizing that his crimes were morally wrong. There is nothing impermissibly vague in this inquiry. The M’Naghten test is constitutional.
B. Instructional Contentions
1. CALJIC No. 4.00
The trial court instructed the jury on the defense of insanity in pertinent part as follows:
“It is now your function to determine the issue raised by the defendant’s plea of not guilty by reason of insanity.
“Such plea now places before you the issue as to whether he was legally sane or legally insane at the time of the commission of each of these crimes. This is the sole issue for you to determine in this proceeding.
“Although you may consider evidence of his mental condition before and after the time of the commission of the crime, such evidence is to be considered for the purpose of throwing light on the defendant’s mental condition as it was when the crime was committed.
“Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity.
“A person may be mentally ill or mentally abnormal and yet not be legally insane. A person is legally insane when by reason of mental disease or mental defect he was incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right from wrong at the time of the commission of the offense.” (CALJIC No. 4.00.)
Defendant contends the instruction is ambiguous and misleading in several ways. However, we find no error. The standard instruction correctly and adequately explained the applicable law to the jury, and the court was not required to rewrite it sua sponte. “The trial court cannot reasonably be expected to attempt to revise or improve accepted and correct jury instructions absent some request from counsel.” (People v. Wolcott (1983) 34 Cal.3d 92, 108-109 [192 Cal.Rptr. 748, 665 P.2d 520].)
Defendant first contends that the reference to a “mental disease or mental defect” prevented the jury from considering the effects of both in combination. This is an unreasonable interpretation of the instruction. Although the court did not expressly state the jury could consider both a disease and a defect, it did not prohibit such consideration. No reasonable juror would believe an insanity finding could be based upon a mental defect or upon a mental disease, but not both. If defendant believed the instruction was incomplete or needed elaboration in this regard, it was his responsibility to request an additional or clarifying instruction. (People v. Bell (1989) 49 Cal.3d 502, 550 [262 Cal.Rptr. 1, 778 P.2d 129] [no penalty phase error in referring to “mental disease” without also referring to “mental defect”].)
Defendant next asserts that the instruction erroneously presents the two prongs of the M’Naghten test as being synonymous. He quarrels with the instruction’s punctuation, gives us a lengthy lesson on grammatical theory, and insists that a semicolon was required to separate the two prongs. (In addition to the oral instruction, the court supplied the jury with a copy of the written instructions.) We believe, however, that the standard instruction is sufficiently clear. If defendant believed the jury might engage in the same tortuous grammatical analysis as he does on appeal, and that a semicolon was needed, he should have requested one. He did not.
Defendant next contends the phrase “knowing or understanding” is grammatically confusing. Again, if defendant believed the jury might engage in a form of grammatical analysis that would make the phrase confusing, he should have requested some sort of clarification. He did not.
Defendant finally contends that instructing that “mental illness and mental abnormality” are not necessarily the same as legal sanity, while also requiring that insanity be based upon a “mental disease or mental defect,” is confusing and misleading. The same answer suffices. Defendant should have requested clarification if he believed it was necessary. Absent such a request, we find no error in use of the standard instruction.
2. CAU1C No. 1.00
At the sanity phase, the court gave a modified version of CALJIC No. 1.00, including that, “As jurors you must not be influenced by pity for a defendant or by prejudice against him. You must not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling, [ft] Both the people and the defendant have a right to expect that you will conscientiously consider and weigh the evidence and apply the laws of the case, and you will reach a just verdict regardless of what the consequence of such verdict may be.” (Italics added.)
Defendant now objects to the emphasized language as improperly diminishing the jurors’ sense of responsibility for the sanity decision. He appears to contend that in deciding the question of sanity, the jury may be swayed by sentiment, conjecture and sympathy, and need not reach a just verdict regardless of the consequences. He relies primarily on language in People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], reversed on related grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], that this language should not be given in a capital penalty trial. (40 Cal.3d at p. 537 & fn. 7.) He equates a sanity phase with a penalty phase for this purpose. The equation fails.
In People v. Brown, supra, we pointed out that unlike the guilt phase, where the possible punishment is not a proper matter for juror consideration, at the penalty phase the consequences “are precisely the issue the jury must decide.” (40 Cal.3d at p. 537, fn. 7.) For purposes of this issue, a sanity phase is similar to a guilt phase, not a penalty phase. A sanity phase jury does not decide what punishment to impose, but whether a defendant was insane at the time of the crime. This decision, like a guilt decision, has obvious penal consequences. But, unlike a penalty trial, these consequences are prescribed by law, not determined by the jury. A sanity decision, like that of guilt, and unlike that of penalty, is rendered without regard to the consequences.
Defendant also argues that under People v. Skinner, supra, 39 Cal.3d 765, the second prong of the M’Naghten test is a “ ‘moral’ test,” thus making sympathy a valid consideration. As we explained in rejecting defendant’s vagueness challenge to section 25(b), this is incorrect. The jurors do not decide questions of morality, but only whether the defendant was incapable of distinguishing moral right from wrong. This decision must be based upon the evidence of the defendant’s mental state at the time of the crimes, not feelings of sympathy or consideration of the consequences of the decision. There was no error.
3. CALJIC Nos. 4.01 and 17.42
The court read CALJIC No. 4.01, which informs the jury that a verdict of not guilty by reason of insanity does not mean the defendant will be released from custody, briefly explains the procedures that would be followed in the event of such a verdict, and admonishes the jury not to be concerned about whether or when the defendant would be found sane and released. The court concluded, “It would be a violation of your duty [as] the jury if you were to find the defendant sane at the time he committed the offenses because of a doubt that the Department of Mental Health or the courts will properly carry out their responsibilities.”
The court also instructed the jury under CALJIC No. 17.41, “In your deliberations the subject of penalty or punishment is not to be discussed or considered by you. [][] This is a matter which must not in any way effect your verdict.”
Defendant contends it was contradictory, and thus erroneous, to give the jury information regarding the consequences of an insanity verdict, but also to tell it not to consider such consequences. A brief review of the history behind CALJIC No. 4.01 is needed to place the contention into context. California law originally did not provide for this instruction. (People v. Smith (1973) 33 Cal.App.3d 51, 73 [108 Cal.Rptr. 698]; see Annot., Insanity Acquittal Instruction (1990) 81 A.L.R.4th 659, 679 & fn. 52.)
Then came People v. Moore (1985) 166 Cal.App.3d 540 [211 Cal.Rptr. 856], in which the defendant took the opposite position as urged here, and contended the court erred in refusing to give such an instruction. The appellate court agreed with the defendant, and found reversible error in not giving the instruction. It believed that the danger that a jury might find a defendant sane because of fear that he would be released if found not guilty by reason of insanity “far outweigh[s]” any danger involved in informing the jury about the consequences of an insanity verdict while also telling it not to consider such consequences. (Id. at p. 556.) The court held that upon request by the defendant or jury, the trial court should give an appropriate instruction to ensure the jury does not erroneously believe an insanity verdict will result in the immediate release of the defendant. (Ibid.) The court in People v. Dennis (1985) 169 Cal.App.3d 1135 [215 Cal.Rptr. 750] promptly agreed with Moore.
CALJIC No. 4.01 was drafted in response to these decisions. It is intended to aid the defense by telling the jury not to find the defendant sane out of a concern that otherwise he would be improperly released from custody. Defendant neither specifically requested nor objected to the instruction. Defense counsel stressed its contents in his argument to the jury. Given the instruction’s intent to protect the defense, we do not find it error of which the defendant can complain to give it under these circumstances, and certainly not prejudicial error.
C. Limitation on Expert Testimony
During the direct examination of defense expert Dr. Rappaport, the court sustained prosecution objections on relevancy grounds to these questions: (1) “Would it be accurate to say that [the defendant] is often times not able to conform his behavior to what is legally and morally right”; and (2) “Would [it] be accurate to say he cannot always conform his behavior to the requirements of law?”
Defendant contends the court erred. It did not. The questions were phrased in terms of the American Law Institute test for insanity that we adopted in People v. Drew, supra, 22 Cal.3d 333. Only that test makes relevant the ability of the defendant to “conform his conduct to the requirements of law.” (Id. at p. 345.) As noted previously, the electorate has overturned Drew, and reinstated the M’Naghten test in California. (People v. Skinner, supra, 39 Cal.3d at p. 769.)
The M’Naghten test focuses on the ability of the defendant to know or understand the nature and quality of the act or to distinguish right from wrong, not on his ability to conform his conduct to the requirements of law. Indeed, this was an important factor in our decision in Drew to abandon the M’Naghten test in favor of the ALI test. As we stated, one of the “advantages” of the ALI test was that it “adds a volitional element, the ability to conform to legal requirements, which is missing from the M’Naghten test.” (Drew, supra, 22 Cal.3d at p. 346.) After the reinstatement of the M’Naghten test, the volitional element no longer exists. The defense questions were thus irrelevant, and the trial court properly excluded them. (Evid. Code, § 350.)
Defendant argues that the questions would have elicited answers somehow supporting the expert’s ultimate opinion under the applicable M’Naghten test. Defendant never stated such a purpose at trial; use of the ALI terminology suggests a different purpose. The court never prevented the defense from eliciting evidence that would support an insanity claim under the applicable test. Indeed, when the expert was eventually asked questions under the M’Naghten test, the answers were unfavorable to the defense. (See the summary of the sanity phase evidence, ante.)
In any event, if the defense had offered the evidence as relevant to the M’Naghten test, and not merely the ALI test, it was obligated to make known to the court the “substance, purpose, and relevance of the excluded evidence... .” (Evid. Code, § 354.) The failure of the defense to do so precludes a finding of reversible error. (Ibid.; see People v. Whitt (1990) 51 Cal.3d 620, 648 [274 Cal.Rptr. 252, 798 P.2d 849].)
D. Alleged Prosecutorial Misconduct
The district attorney argued to the jury, “But the I.Q. test has absolutely nothing to do with mental illness. I asked Dr. Rappaport about that and basically came out that a person can have an extremely good I.Q. and high I.Q. and still be mentally ill or not. H] And you can have a low I.Q. and be mentally ill or not. There really is no correlation from one or the other.” He also argued, “And even if you conclude he’s got a mental illness of some sort, that doesn’t change the fact that he was legally sane at the time that he committed these offenses. H[] Doesn’t change that at all. [f] Mental illness and legal sanity or insanity are two different things in the law of the State of California.”
Defendant contends both arguments were misconduct. Since an objection and admonition could have cured any harm, the matter has been waived by the failure to object. (People v. Benson, supra, 52 Cal.3d at p. 794.) Defendant contends his attorney was ineffective for not objecting. We disagree. An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel. (People v. Frierson, supra, 53 Cal.3d at pp. 747, 749.)
In any event, there was no misconduct. Defendant first contends the district attorney referred to matters outside the record. He did not. Dr. Rappaport’s testimony fully supported the argument. He testified that persons with either a high or a low IQ could either be mentally ill or not, and that there is “not necessarily” any correlation between IQ and mental illness. Any disagreement as to the meaning of this testimony and the significance of the rest of the evidence merely presents a question for the jury. The argument came well within the broad discretion of the parties to state their views as to what the evidence shows and what inferences may be drawn therefrom. (Kelly I, supra, 51 Cal.3d at p. 967.)
Defendant also contends the argument that mental illness and insanity are “two different things” misstates the law. We disagree. Although mental illness (or defect) may cause insanity, the concepts are different. Mental illness is a medical diagnosis; it alone does not necessarily establish legal insanity. A defendant must also show that the illness made him insane under the prevailing M’Naghten test. (See generally People v. Skinner, supra, 39 Cal.3d 765.) The district attorney never suggested that mental illness cannot establish insanity; he merely argued that even if the jury found that this defendant suffered from a mental illness, he was still sane. Both sides are entitled to argue the significance of any mental illness on the question of sanity.
Defendant has also not shown prejudice from the failure to object. Although defendant presented evidence of mental illness and defect, he presented virtually no evidence that he was insane. Even his two experts essentially conceded that defendant was sane under the M’Naghten test. It is not reasonably probable the jury would have found defendant insane even if counsel had successfully objected to this argument. (People v. Frierson, supra, 53 Cal.3d at p. 747; see also People v. Cruz (1980) 26 Cal.3d 233, 251 [162 Cal.Rptr. 1, 605 P.2d 830].)
III. Penalty Phase Issues
A. Admission of Riverside County Confession
At the penalty phase, the prosecution presented evidence of defendant’s confession to the murder of Danny O. in Riverside County. (See Kelly I, supra, 51 Cal.3d at pp. 945-947.) Defendant did not object, thus waiving the matter on appeal. (See pt. I. B. of Discussion, ante.) He now contends the confession was inadmissible, and his attorney was ineffective for not objecting. He relies on the pertinent record in Kelly I, which he requests us to judicially notice. For purposes of deciding the ineffectiveness claim, we grant the request. We need not decide whether counsel should have objected in this case, for defendant has not shown prejudice. After reviewing the very record defendant asks us to judicially notice, in which there was an objection, we held that the Riverside confession was admissible. (Kelly I, supra, 51 Cal.3d at pp. 947-954.)
B. Evidence of the Circumstances of the Riverside County Crimes
Defendant challenges on several grounds the evidence of the circumstances of the Riverside County crimes. We have repeatedly rejected the contentions. (E.g., People v. Fierro, ante, pp. 173, 230-232 [3 Cal.Rptr.2d 426, 821 P.2d 1302]; People v. Ashmus, supra, 54 Cal.3d at p. 985 & fn. 15.) As explained in those cases, evidence of a defendant’s other violent criminal conduct, including all of the pertinent circumstances, is admissible whether or not the defendant has also been convicted of the crimes. The fact that defendant offered to stipulate to some of the facts and to his convictions of the crimes does not change the admissibility of the prosecution evidence. “Surely, testimony by a live witness is not barred.” (People v. Ashmus, supra, 54 Cal.3d at p. 985.)
C. Failure to Hold a Second Competency Hearing
During jury selection, defense counsel expressed doubt about defendant’s competency to stand trial, and requested the court to conduct a hearing on the question. Counsel recited in detail the facts giving rise to this doubt— essentially defendant’s mental defects and developmental disablement, and his apparently deteriorating psychological and emotional condition. Based upon these representations, the court also expressed doubt as to defendant’s competency, continued the trial pending resolution of the question, and appointed two doctors and the Inland Regional Center for the Developmentally Disabled to examine defendant. The defense requested a jury trial on the question.
All the experts found that defendant was competent to stand trial. Defense counsel therefore withdrew the request for a jury trial. The court read the written reports, and found that defendant was competent to stand trial. It then recommenced jury selection in this case, and the trial proceeded to its conclusion. The question of defendant’s competency to stand trial was never raised again.
Defendant contends that the court erred in not holding a new competency hearing at some point during the evidence portion of the trial, and that his attorneys were ineffective for not raising the matter again. He selects certain portions of the defense evidence presented at the sanity and penalty phases, and claims they presented substantial evidence of present incompetency compelling further proceedings.
We recently stated the applicable law in People v. Jones (1991) 53 Cal.3d 1115 [282 Cal.Rptr. 465, 811 P.2d 757]:
“A defendant who, as a result of mental disorder or developmental disability, is ‘unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner,’ is incompetent to stand trial. (§ 1367.) When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. (People v. Stankewitz (1982) 32 Cal.3d 80, 92 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476].) Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competence to stand trial. (Moore v. United States (9th Cir. 1972) 464 F.2d 663, 666.) The court’s duty to conduct a competency hearing arises when such evidence is presented at any time ‘prior to judgment.’ (§ 1368; see also § 1367; People v. Zatko (1978) 80 Cal.App.3d 534, 548 [145 Cal.Rptr. 643]; People v. Melissakis (1976) 56 Cal.App.3d 52, 62 [128 Cal.Rptr. 122].)
“When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. (People v. Zatko, supra, 80 Cal.App.3d at p. 548; People v. Melissakis, supra, 56 Cal.App.3d at p. 62.)” (People v. Jones, supra, 53 Cal.3d at pp. 1152-1153.)
Under this standard, there was no need to conduct a second competency hearing, and defense counsel was not obligated to request one. There was no evidence of a change of circumstances, much less a substantial change. The substance of the defense testimony relied upon on appeal was generally included in the facts defense counsel recited when they expressed their doubts as to competency in the first place. The testimony defendant now cites did not specifically address defendant’s present competency, and gave no reason to doubt, and certainly no reason to seriously doubt, the continuing validity of the unanimous expert opinion and the court finding that did specifically address the subject.
D. Defendant’s Motion to Stay This Appeal Pending a Determination of His Current Competency
In a separate motion, defendant contends he is currently incompetent to cooperate with his counsel, and seeks a stay of all postjudgment proceedings in this case and the appointment of a referee to determine his competency. He asks that the stay remain in effect until such time, if ever, that he regains his competency. Attached to the motion are the declarations of a psychiatrist, a physician, a therapist, defendant’s mother, and three of his current attorneys, and copies of medical records from San Quentin State Prison.
We have doubts about the sufficiency of defendant’s factual showing. Defendant has recently hired a new battery of experts who support his claim of incompetency. However, defendant’s mental state is not a question of first impression. Defendant had a jury trial on the question of his sanity at the time of the offenses. Several experts examined him on this point, and the jury found him sane. During trial, the proceedings were delayed while defendant’s competency to stand trial was litigated. The court appointed various experts to examine defendant. They unanimously found him competent, and the court made the factual determination that he was competent.
A massive record regarding defendant’s mental state thus already exists, including opinions reached by neutral experts not chosen by either side. Defendant’s current factual allegations are similar in some respects to those that occasioned the prior competency hearing, including alleged bizarre behavior on defendant’s part. Indeed, defendant now seems to assert that he was incompetent at trial as well as now, without acknowledging that that question was litigated and resolved adversely to him. For example, Dr. Lewis, the psychiatrist defendant relies on most heavily, found evidence that his mental condition now is similar to what it was “at and subsequent to the time of his trial in San Bernardino.”
Defendant ignores this extensive history. His new experts do not attempt to explain whether or why they disagree with the court-appointed experts, or what has happened in the interim to render the prior findings invalid, or even whether the prior reports were made available to them. The declaration of Dr. Lewis indicates, for example, that defense counsel provided her with declarations by new experts which support the claim of incompetency, but she was apparently given none of the reports of the court-appointed experts who had examined defendant for the identical purpose. It is not clear whether Dr. Lewis was even aware that she was revisiting well-trodden territory. Defendant’s attempt to evaluate his mental condition anew, but only with experts of his choosing given only selective information, also of his choosing, is not persuasive.
Defendant should confront the past findings. New witnesses should be made aware of, and should consider, contrary opinions, especially those by neutral experts. They should explain what new evidence or substantial change in circumstances exists to cast a serious doubt on the validity of the prior finding of competency. (See People v. Jones, supra, 53 Cal.3d at pp. 1152-1153.) Simply finding new experts and ignoring the past is not sufficient.
We do not, however, rely on any inadequacy in the factual showing in denying the motion. We believe the appeal can proceed even if defendant has become incompetent.
Section 1367 provides in pertinent part that “A person cannot be tried or adjudged to punishment while such person is mentally incompetent.” Section 1368, subdivision (a), establishes a procedure to follow if a doubt arises as to defendant’s competency “during the pendency of an action and prior to judgment... .” (Italics added.) This language clearly indicates the Legislature did not prohibit postjudgment proceedings even if the defendant is incompetent. Similarly, a defendant has a constitutional right not to be tried while incompetent (Drope v. Missouri (1975) 420 U.S. 162 [43 L.Ed.2d 103, 95 S.Ct. 896]), but no case has extended this right to the appeal.
A state may also not constitutionally execute an insane person. (Ford v. Wainwright (1986) 477 U.S. 399 [91 L.Ed.2d 335, 106 S.Ct. 2595].) California has its own statutory procedure for determining whether a person is insane for purposes of execution. (§ 3700.5 et seq.; see People v. Riley (1951) 37 Cal.2d 510 [235 P.2d 381].) But nothing in Ford or the statutes suggest that litigation regarding the validity of the judgment of death cannot continue even if the defendant is presently insane.
Defendant contends that his right to “meaningful appellate review” and right to the effective assistance of counsel under the state and federal Constitutions preclude proceeding with the appeal if he is incompetent. We disagree. The United States Supreme Court has not specifically decided this question, but has done so by implication. In Whitmore v. Arkansas (1990) 495 U.S. 149 [109 L.Ed.2d 135, 110 S.Ct. 1717], the high court held that a person has standing to bring a “next friend” challenge to a judgment of death only in limited circumstances. A “next friend” must show “that the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability.” (Id. at p. 165 [109 L.Ed.2d at p. 151, 110 S.Ct. at p. 1728], italics added.) The emphasized language implies that mental incompetence, although a basis for allowing “next friend” standing to challenge the judgment, does not require cessation of postjudgment proceedings. Here, of course, “next friend” status is unnecessary, since defendant is fully represented by counsel who can protect his interests.
The Arizona Supreme Court recently confronted this question in a capital case. In State v. White (Ariz. 1991) 815 P.2d 869, 878, the court, agreeing with the Michigan Court of Appeals in People v. Newton (1986) 152 Mich.App. 630 [394 N.W.2d 463], vacated on other grounds (1987) 428 Mich. 855 [399 N.W.2d 28], a noncapital case, refused to order a mental examination after the defendant made a prima facie showing of incompetency to assist in the appeal. The court noted “the American Bar Association’s position, as expressed in the ABA Criminal Justice Mental Health Standards (1989). Standard 7-5.4 (c) provides that: ‘Mental incompetence of the defendant during the time of appeal shall be considered adequate cause, upon a showing of prejudice, to permit the defendant to voice, in a later appeal or action for postconviction relief, any matter not raised on the initial appeal because of the defendant’s incompetence.’ (Emphasis added.) The Standard contemplates that an appeal proceed despite a defendant’s incompetence to assist the appeal. ‘[C]onvicted defendants, like parties to appellate litigation in general, do not participate in appeal proceedings.’ Id., Commentary Introduction. Therefore ‘mental incompetence rarely affects the fairness or accuracy of decisions.’ Id. Defendant was not denied due process of law.” (State v. White, supra, at p. 878.)
We agree with State v. White, supra, 815 P.2d 869. The considerations that prohibit an incompetent person from being tried (Drope v. Missouri, supra, 420 U.S. 162; § 1367), do not apply after the judgment. The issues on appeal are limited to the appellate record. (People v. Szeto (1981) 29 Cal.3d 20, 35 [171 Cal.Rptr. 652, 623 P.2d 213].) An appeal involves only legal issues based on that record. Attorneys do not need to rely on the defendant himself to decide what issues are worthy of pursuit.
Furthermore, “At trial, a defendant is confronted with the prosecutorial forces of organized society and immersed in the intricacies of the substantive and procedural law. A defendant who is not competent to assist trial counsel in presenting an adequate defense may be unjustly convicted because he lacks competence to respond to the criminal accusations against him. A post-conviction proceeding, on the other hand, is not part of the criminal process itself; it is a collateral attack on the judgment and is considered civil in nature.... The defendant’s guilt or innocence is not at issue; rather, a post-conviction proceeding is a new proceeding in which the petitioner raises constitutional challenges to the original conviction which have not already been adjudicated.” (People v. Owens (1990) 139 Ill.2d 351 [151 Ill.Dec 522, 564 N.E.2d 1184, 1189], citations omitted.)
We thus see no reason why the appeal may not proceed even if the defendant is incompetent as long as he is represented by able counsel, as this defendant is.
Defendant has moved to stay all postjudgment proceedings. Since none are currently pending other than this appeal, there is nothing else to stay. Arguably the situation is different regarding potential habeas corpus challenges, which may be based on matters outside the appellate record. (Cf. People v. Owens, supra, 564 N.E.2d 1184.) We cannot rule on the question in a vacuum. We suspect that most, if not all, potential challenges in a habeas corpus proceeding could be made without additional input from defendant. Current defense counsel have access to the appellate record, to investigators, to trial counsel’s case files, and to the knowledge and experience of trial counsel. As suggested in State v. White, supra, 815 P.2d at page 878, defendant’s alleged incompetency might be grounds for the untimely raising of an issue if it could not have been raised earlier because of that incompetency. The prohibition against executing an insane person provides additional protection for someone who, because of incompetency, was unable to pursue a meritorious challenge to the judgment.
For these reasons, current counsel can and should seek to challenge the judgment even if defendant is currently incompetent. If, in a petition for a writ of habeas corpus, counsel make a specific showing why specified contentions require defendant’s ability to cooperate, and why the necessary information cannot be obtained from other sources, we will consider the question at that time. Additionally, if a prima facie showing is made on any contention, and an evidentiary hearing is ordered, defendant may raise the question of his competence to participate in the evidentiary hearing at that time.
We therefore deny defendant’s motion to stay these appellate proceedings.
E. Defense Counsel Informing Jury of Prior Judgment of Death
During cross-examination of a prosecution penalty phase witness, defense counsel deliberately elicited testimony that defendant had previously been found guilty of the Riverside County crimes and had received the death penalty. Counsel also referred to the prior judgment of death while examining the defense penalty phase expert Dr. Craig Rath, and discussed it extensively during argument to the jury.
Defendant contends his attorney was ineffective in causing the jury to learn of the prior judgment of death. He contends this prejudicially diminished the jury’s sense of responsibility for its own penalty decision. (See Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633].) We disagree. Although there was certainly a danger the information might reduce the jury’s sense of responsibility, defense counsel reasonably could, and obviously did, believe that on balance, the information, in conjunction with the use counsel made of it, would increase the chances of the defense avoiding a second death verdict.
We have previously outlined the applicable law. (See pt. I. B. of Discussion, ante.) The fact that defense counsel pointedly and repeatedly referred to the prior judgment strongly implies that he believed it was in his client’s best interests to do so. The jury in the first trial, having heard essentially the same testimony as in this case, returned a death verdict. This suggests that unusual tactics might be appropriate in the second trial to try to avoid the same result. The record suggests two specific tactical reasons for counsel’s decision.
First, counsel elicited testimony from Dr. Rath that because of the prior death judgment, defendant would have little motivation to cooperate at the second trial, and he might “just go[] along for the ride.”
Second, the murder of Danny O., an 11-year-old boy who was heroically trying to save his cousin from defendant’s clutches, in which defendant applied the coup de grace with a bullet between the eyes from close range while the boy was pleading for his life, was obviously and reasonably of great concern to counsel. Reasonable counsel could worry that the jury would wonder whether defendant had received the death penalty for that murder. If not informed that he had, the jury might impose the death penalty itself just in case he had not received it the first time whether or not it felt the death penalty was warranted in this case. Informing the jury of the earlier verdict would protect against this danger.
Counsel effectively used the prior judgment in closing argument. He argued that defendant had already been sentenced to death for the earlier murder, so the jury need not duplicate that verdict. He also suggested to the jury that this second prosecution was, literally and figuratively, overkill and somehow unfair to defendant. He stated, for example, that “it’s almost like double jeopardy,” and that “two cyanide tablets instead of six will be plenty adequate.”
The decision whether to inform the jury of the prior verdict exemplifies the difficult tactical decisions that counsel may, indeed must, make without fear of appellate second-guessing. Unlike appellate counsel, trial counsel was present at trial and had a feel for the jury, which he helped select. Only he could fully weigh the risks and benefits of informing that jury of the prior verdict. Counsel was not ineffective in making this difficult but important decision.
F. Davenport Error
Without objection, the district attorney argued that the absence of two of the statutory mitigating factors—whether the victims participated in or consented to the homicidal acts, and whether the defendant reasonably believed there was a moral justification or extenuation for his conduct—was itself aggravating. Defendant correctly contends this was error (People v. Davenport (1985) 41 Cal.3d 247, 289-290 [221 Cal.Rptr. 794, 710 P.2d 861]), and argues that his attorney was ineffective for not objecting. We need not decide whether counsel should have objected, for we are satisfied that the error was harmless. The court instructed that the “absence of a mitigating factor in and of itself does not make that factor an aggravating circumstance,” and that the jury should consider each sentencing factor only “if applicable.” The jury was not misled about the nature of its weighing process. Indeed, the district attorney stressed that the weight, not the number, of the aggravating and mitigating factors was important, and that the weight to be given the factors was for the jury to decide. Under these circumstances, “a reasonable jury would not assign substantial aggravating weight to the absence of unusual extenuating factors.” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1234 [275 Cal.Rptr. 729, 800 P.2d 1159]; see also People v. Gallego (1990) 52 Cal.3d 115, 200-201 [276 Cal.Rptr. 679, 802 P.2d 169].)
G. Instructions on Violent Criminal Activity and Prior Felony Convictions
The court instructed the jury it could consider as aggravating factors both other violent criminal activity (§ 190.3, factor (b)) and any prior felony conviction (§ 190.3, factor (c)). It further instructed that “evidence has been introduced for the purpose of showing that the defendant... has been convicted of the crimes of murder and attempt kidnapping in Riverside County prior to the offense of murder in the first degree for which he has been found guilty in this case,” and that “evidence has been introduced for the purpose of showing that the defendant... has committed... murder in the first degree and attempt kidnapping... .”
Defendant contends the court erroneously allowed double counting of factors (b) and (c) of section 190.3. We have, however, held that such double counting is generally permissible, as each factor has a separate purpose. (People v. Melton (1988) 44 Cal.3d 713, 764-765 [244 Cal.Rptr. 867, 750 P.2d 741].)
Defendant next contends the instructions wrongly suggested that he had suffered the convictions before he committed the crimes of this case. Although the instructions, viewed in isolation, were ambiguous, in context, no reasonable juror could have believed the court was referring to convictions suffered before the murders. The jury knew that the murder of Danny O. occurred a few days after the murders in this case. It knew that defendant was arrested for the three murders, and was first prosecuted in Riverside County for the crimes committed there, then for the crimes committed in San Bernardino County. No other crimes were ever mentioned. Indeed, the defense repeatedly stressed that defendant had no criminal record at all when he committed these murders. There was no possible prejudice to defendant in this regard.
Error of a different kind was committed, however. A felony conviction is admissible as an aggravating factor only if it was entered before the capital crime. (People v. Webster, supra, 54 Cal.3d at p. 453; People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal.Rptr. 184, 711 P.2d 480].) Here, the convictions were entered afterwards. Nevertheless, the error was harmless. The convictions and the facts of the underlying crimes were properly considered as evidence of other violent criminal conduct. Once the facts of the Danny O. murder were disclosed, “‘[t]he additional fact that defendant was convicted of that offense could have added very little to the total picture considered by the jury... (People v. Webster, supra, 54 Cal.3d at p. 454, quoting People v. Morales, supra, 48 Cal.3d at p. 567, italics in original; see also People v. Ashmus, supra, 54 Cal.3d at p. 999.)
H. Miscellaneous Contentions
Defendant reiterates various contentions we have previously rejected:
(1) that the court was required to instruct the jury it could consider violent criminal activity and any other aggravating factor only if it unanimously agreed that such factor existed (People v. Gordon (1990) 50 Cal.3d 1223, 1273 [270 Cal.Rptr. 451, 792 P.2d 251]; People v. Miranda, supra, 44 Cal.3d at p. 99);
(2) that the court was required to instruct the jury the prosecution had the burden of proof with respect to other-crimes evidence, and the defendant was presumed innocent of such charges (Kelly I, supra, 51 Cal.3d at pp. 965-966);
(3) that the court was required to instruct the jury it could impose the death penalty only if it found beyond a reasonable doubt that the aggravating circumstances substantially outweighed the mitigating circumstances and that death was the appropriate punishment (Kelly I, supra, at p. 969);
(4) that the court erroneously failed to delete all inapplicable mitigating factors from its instruction, specifically factors (e), (f), (g) and (j) of section 190.3 (Kelly I, supra, at p. 968);
(5) that the court erroneously failed to delete “extreme” from “extreme mental or emotional disturbance” (Kelly I, supra, at pp. 968-969; People v. Benson, supra, 52 Cal.3d at pp. 803-804);
(6) that the death penalty may be imposed only for a deliberate and premeditated murder (People v. Webster, supra, 54 Cal.3d at p. 456; see also People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306] [finding no equal protection violation]); and
(7) that the court erroneously failed to require a written statement from the jury detailing the evidence upon which it relied and its reasons for imposing the death penalty (Kelly I, supra, at p. 970).
We adhere to our previous decisions.
I. Prejudicial Effect of the Errors
We have found that the rape conviction must be reduced to attempted rape, that the robbery charge and accompanying robbery-murder special circumstance must be reversed, and that two minor penalty phase errors were committed (prosecution argument that the absence of a mitigating factor is itself aggravating, and instruction that the Riverside County convictions were aggravating factors). Defendant contends that the cumulative effect of these errors requires reversal of the penalty judgment. We disagree.
The jury properly considered all of the evidence. It was well aware of the circumstances under which the murders were committed. (People v. Hayes, supra, 52 Cal.3d at p. 644.) If it believed defendant had intercourse with Houser after death, and thus erroneously convicted him of raping her instead of attempting to do so, it would not have given significant independent weight to that conviction as distinguished from the facts of the offense. Similarly, if the jury found defendant first intended to steal the rings after death, but nevertheless erroneously convicted him of robbery, it would not have given significant independent weight to that conviction or to the robbery special circumstance. The penalty phase errors were likewise insignificant.
The court instructed the jury, and both counsel stressed, that it was not to merely count the number of factors but to give each the weight to which it was entitled. Under these circumstances, and given the number and heinous nature of the murders, we find no reasonable possibility the errors, singly or in combination, affected the penalty verdict. (People v. Beardslee (1991) 53 Cal.3d 68, 117 [279 Cal.Rptr. 276, 806 P.2d 1311]; People v. Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].)
From our review of the record, we are persuaded that defendant received a fair and untainted penalty trial. The Constitution requires no more. (Kelly I, supra, 51 Cal.3d at p. 970.)
Conclusion
The rape conviction is reduced to attempted rape. The robbery conviction, the related firearm-use enhancement, and the robbery-murder special circumstance are reversed. In all other respects, the judgment is affirmed.
Lucas, C. J., Mosk, J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred.
Appellant’s petition for a rehearing was denied March 11, 1992.
All further statutory references are to the Penal Code unless otherwise indicated.
In People v. Kelly (1990) 51 Cal.3d 931 [275 Cal.Rptr. 160, 800 P.2d 516] (Kelly I), we affirmed another judgment of death imposed against defendant in a separate case. Evidence of the crimes in this case was introduced as aggravating evidence in Kelly I. Evidence of the murder in Kelly I was introduced as aggravating evidence in this case.
We do not suggest the trial court may not allow questioning of the sequestered jurors that goes beyond death-qualification, but only that it is not required to do so. The matter lies within the discretion of the court. (See, e.g., Odle v. Superior Court (1982) 32 Cal.3d 932, 936, fn. 2 [187 Cal.Rptr. 455, 654 P.2d 225] [noting that some courts in capital cases have been conducting voir dire in sequestration regarding publicity].)
Both parties refer to the statement as a confession rather than an admission, which seems correct. The distinction is not crucial to our resolution of this issue. (See Kelly I, supra, 51 Cal.3d at p. 945, fn. 2.)
Citing In re Cameron (1968) 68 Cal.2d 487, 503 [67 Cal.Rptr. 529, 439 P.2d 633], defendant argues that there need not be an objection when the record shows that the confession was involuntary as a matter of law. We need not decide whether that rule has survived in light of subsequent authority and the development of the law of ineffective assistance of counsel, for our review of the record convinces us that the confession was not involuntary as a matter of law. In this regard, we grant defendant’s motion to judicially notice the relevant portions of the record in Kelly I, supra, 51 Cal.3d 931.
In light of our disposition of this issue, we need not decide whether the rule of Arizona v. Fulminante (1991) 499 U.S. _ [113 L.Ed.2d 302, 111 S.Ct. 1246]—that the erroneous admission of a confession may be deemed harmless beyond a reasonable doubt—applies under California law. (See People v. Boyer (1989) 48 Cal.3d 247, 279-280, fn. 23 [256 Cal.Rptr. 96, 768 P.2d 610]; People v. Asay (1990) 224 Cal.App.3d 608 [273 Cal.Rptr. 737]; People v. Porter (1990) 221 Cal.App.3d 1213 [270 Cal.Rptr. 773].)
E.g., repeated references to suffering from “headaches” or a “swelling”; and the following statements: “I ain’t in my right mind”; “I just couldn’t control myself"; “I would hear things and do things beyond my, my powers”; “I been thinking crazy”; “This wouldn’t have happened... if I’d have been myself”; “I wanted to have... revenge with my father" who had been “shot and killed”; the father “beat me”; “I pray to God would have mercy for what I done”; “I don’t know who to seek for help”; “I had been dreaming, and I would break out in a cold sweat, or I’d be fighting in my sleep”; “I wanted to be a policeman”; “I don’t even know what I’m doing”; “I was always bein’ picked on. Always with the wrong crowd”; “I ask God to show me what I did wrong”; “I even tried to kill myself”; “I read... the Bible”; “He said I had a demon in me. Somethin’ that’s holding me down”; “I need psychiatric help”; “it wasn’t me that was doing these killings ... as far as my uh mental problem”; at the time of the first murder he was “going down Waterman and that’s when it all started. I had the pains. Extreme pains and cryin’ ”; the gun “took control of me”; and “I asked God forgiveness, and He showed me the way to repent.” Defendant repeatedly broke down and cried during the interrogation.
In Boyde, supra, 494 U.S. 370, the high court adopted the “reasonable likelihood” test for analyzing claims of instructional error. Subsequently, that court occasionally applied a slightly different standard. (See Estelle v. McGuire, supra, 502 U.S. at p.___ ,fn. 4 [116 L.Ed.2d at p. 399]; People v. Ashmus (1991) 54 Cal.3d 932, 977 [2 Cal.Rptr.2d 112].) The court has recently recognized this inconsistency; it reaffirmed the Boyde test, and disapproved the inconsistent cases. (Estelle v. McGuire, supra, 502 U.S. at p._, fn. 4 [116 L.Ed.2d at p. 399].)
In theory, there might have been a problem if defendant had never intended to rape the victims alive, but intended at all times to have intercourse with the bodies once dead, and had killed with that intent. Under this scenario, defendant would have had a sexual intent at the time of the killing, but never intended or attempted to rape a live body. Assuming, arguendo, the felony-murder rule and rape special circumstance would not apply in that situation, no evidence supported such a bizarre theory, and the defense never suggested it. Defense counsel argued that no sexual intent arose until after death (which, if believed, would have avoided the felony-murder rule and the special circumstance), not that the intent was always to rape a dead body. There was no hint that defendant was a necrophiliac.
The court instructed: “If you find that before this trial the defendant made willfully false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt, but it is not sufficient of itself to prove guilt.”
Citing sections 28 and 29, the Attorney General argues that the court properly excluded the evidence because it embraced the ultimate issue to be decided by the jury. We disagree. Whatever the meaning of sections 28 and 29 (we express no opinion), they do not apply to the sanity trial. Section 28 expressly does not apply to “an insanity hearing” (§ 28, subd. (c)), and section 29 applies only to the “guilt phase of a criminal action.” When the prosecution asked ultimate questions under the M’Naghten test, the court properly allowed them over defense objection.
Defendant’s sanity for execution purposes is not now at issue since an execution date has not even been set. We obviously express no opinion on any issues that may arise on that question.
Counsel also argued on rebuttal that defendant has “already suffered the supreme sanction for what he did in Riverside.... FD He can only be executed once and going to be probably in the normal course of legal proceedings in this state, going to have that happen to him for what he did in Riverside. ...[?] What occurred there has nothing to do with what occurred here, other than the fact that Horace is in essence on trial again for the same things in a, sense. FD And I think that is manifestly unfair. There certainly should be seemingly some limitation as to how much pressure and how hard the government comes down on one human being. He can only die once for Riverside and he’s going to die for Riverside. [5] That is not a problem for you. The problem for you to decide is what is the disposition based on the evidence you’ve heard in this trial concerning Houser and Reed.”
Defendant contends the jury might have inferred from the evidence that he attempted to commit certain uncharged sexual offenses. On the contrary, the court specifically told the jury it could not consider any criminal activity other than the murder and attempted kidnapping of which defendant previously had been convicted.