*1 July S005707. 1997.] [No. PEOPLE, and Respondent,

THE Plaintiff BRADFORD, Defendant and

BILL Appellant.

Counsel Court, Defend- Nickerson, for Supreme David A. under appointment ant and Appellant. Williamson, General, Assistant Chief

Daniel E. Attorney George Lungren, General, General, Pollack, Attorney Wendelin Assistant Carol Attorney Glassman, Harter, David F. Deputy T. Susan Lee Frierson and William General, for Plaintiff and Respondent. Attorneys

Opinion Following the circumstance

GEORGE, guilt special phase C. J. trial, of the first degree found defendant Bill Bradford guilty capital jury Code, 187, 189).1 (Pen. Miller and Tracey murders Shari Campbell §§ defendant had com- true the circumstance that also found jury special 190.2, (a)(3).) subd. (§ mitted murder. multiple trial, death jury imposed

Following penalty phase the verdict motion for modification of After defendant’s denying penalty. for the the court defendant to death the death sentenced imposing penalty, This is automatic. Tracey appeal minders of Shari Miller and Campbell. (b).) We in its (§ judgment entirety. subd. affirm

I. Facts 6, 1984, 4 and July July that between The evidence at trial established area, stored her body in a remote desert killed Shari Miller indicated. otherwise Code unless are to the Penal statutory references 1 All further *30 hours, then her a deposited body number of his vehicle for a trunk of on the morning it was discovered in West Los where Angeles, lot parking 1984, 12, 6, on defendant July evidence also established that The 1984. July area, where he killed her same remote desert to the Campbell drove Tracey at the occasion defendant left the body On this day. that or the following day 11, site, was discovered on 1984. August where it desert Evidence A. Guilt Phase Miller Shari Disappearance

1. Klos (Nick) with Nicholas Klos 1982. became acquainted Defendant “bowl area” in an isolated part in a often horseshoe-shaped camped Base, week- Lancaster, and on two south of Edwards Air Force desert near others, defendant, driven 1983, had Klos and accompanied ends in April 4, 1984, one week to July to that site. prior their motorhomes Approximately to the bowl whether he intended to go Klos and inquired defendant contacted later, 4, again one week Approximately area on 1984. July area. for directions to the bowl Klos and asked contacted Miller, in her had been residing who was 21 of age, lately Shari years Faddis. In Peltier and Michael with Marcia automobile. She was acquainted Faddis, used but undamaged sometimes recovered June who late containers, with a snail on Shari a blouse print trash given from clothing June, a double a double-bladed knife in Shari had Faddis it. given During June, Faddis returned Near the end of that she desired to sell. sheath it for her. he had been unable to sell knife to her because Miller, mother, a shown her Mara Lyn ring June Shari had In late time Shari wore “Indian chief.” At that with a carved head of an decorated from Daniel Freeman Shari her mother hair On June telephoned her long. shower, a that, she had received while in the her Memorial Hospital, telling Shari, the elbow. on her left arm below just cut five stitches bad requiring arm, mother’s residence night, her arrived at her a on bandage wearing remaining overnight. Miller overheard June Mrs. 2:20 on Saturday,

At p.m. approximately “Bill,” she him as telling call and address someone Shari place telephone whether job him the week before and inquiring was she had missed sorry Afterward, going she mother that Shari informed her still was available. boots leather jackets for a modeling to have a job posing photographer, confirmed records subsequently Telephone for In Wind magazine. defendant’s residence from the Miller call had been made telephone *31 her 30. Miller saw for the last daughter at 2:22 on June Mrs. p.m. residence the residence at 3:00 on the approximately when Mrs. Miller left p.m. time of June afternoon 30. 1, Shari met her friend told her Carolyn and July Bury

On the afternoon of to the week to forward within the next opportunity that she was looking lot lived on for a who “had a of photographer money,” leather outfits model marina, owned a The would and motorcycle. photographer a boat in the be Shari clear that there wouldn’t and “made it very provide clothing, tattoos: had that Shari had three observed nude shots.” Bury previously any ankle, Pooh on left Winnie on her motorcycle “wings” Harley-Davidson hair, of her foot. on the bottom close her an “S” her abdomen to and pubic made wearing ring had a silver wore her hair noticed Shari long. Bury Shari from a spoon. Shari, wearing 1 or on the of night early morning July

On the July Peltier and a a residence where Marcia cutoff sleeveless arrived at jeans top, two women July a.m. and 11:00 a.m. on staying. was Between 9:00 included the lists of to do that Shari’s list things they day. made planned Bradford, Market, “Bill 6:00 Shari mentioned an notation: Meat p.m.” a.m., a Androsky, At 11:00 Kurt approximately upcoming modeling job. Shari, arrived. house who become with recently painter acquainted who knew Shari who did not have Androsky, transportation day wanted a whether she assist in the a inquired would job, completion She accepted at a residence San Fernando house-painting job Valley. and, vehicle, her left with Kurt to the driving go jobsite. to location, user, their drive to that a narcotics injected

During Androsky, but and Shari to do so was unsuccessful. attempted methamphetamine, and Shari arrived between 11:00 a.m. and noon and Androsky painted hours, Holst, for six or the owner building using yellow seven paint. Beverly residence, on when of the recalled that a date within several days July work, returned she was a Androsky Holst from noticed that employing assistant in tank observed top female dressed a and cutoff Holst jeans. Dart. a brown vehicle in size to a Dodge or blue similar

driveway filled with items. backseat was miscellaneous vehicle to at 6:30 Androsky approximately p.m. proceeded Shari departed Market, Androsky the Meat in West Los Shari mentioned bar Angeles. motorcycles an for as using that she had offer to model a photographer, call, the photog- on the After made a telephone Shari props, following day. but was unable Androsky arrived at the man the bar. Shari introduced rapher off Androsky he Shari dropped defendant as the man had met. identify Venice at that evening. 9:00 approximately p.m. bar, O’Hare, both at the Meat Market acquainted a bartender

Schylee Shari, at that bar. At approximately a former employee with defendant and for the bar to Shari waited on the sidewalk open. noon on July Schylee dime, vehicle, she and asked for Schylee stating from her drove exited up, defendant, take who had arranged photographs was going telephone a tank and leather wearing top, jeans, that Shari was observed her. Schylee knee.2 that laced to the up moccasins *32 bar the Meat Market with defendant at had become acquainted

Evans Haas on noon June, Shari. Just before had met and also previously in early date), Haas which (he4 was not certain Wednesday, July 3 or Tuesday, July to Avenue in Los Angeles inspect on Midvale visited defendant’s apartment hour one for sale. Approximately defendant had offered a later, Shari, that motorcycle arrived at defendant’s apartment. long jeans, wearing at functioning approxi- was not properly, Defendant’s motorcycle to took one of the motorcycle parts Haas and defendant 2:00 p.m., mately was in Culver The shop open, City. Bartels Harley-Davidson shop which with concerning part, a conversation an employee defendant had to the and Haas returned When defendant repaired.3 had been purportedly Defendant asked inside defendant’s automobile. Shari was asleep apartment, to Shari and took a Polaroid a bottle of next liquor to stand holding Haas later, at 2:30 Haas 45 minutes p.m., of them. Approximately photograph departed. mother, Talbot, shared the Williams, Olga who with his together

Gary defendant, Shari on was introduced to Avenue with on Midvale apartment Haas and out of the as garage recalled driving Williams day. at trial Williams testified the motorcycle. Although worked on 1, not that he had gone the circumstance the date was July relying upon testimony with his hearing he was impeached preliminary to work that day, records dem- was 3 and with his employment that the date July indicating on 3. July that he had not worked onstrating date), (he4 uncertain which on 3 or was 5:00 p.m. July

At approximately Heidrick, who become acquainted Tracey Campbell, a cousin Todd p.m. approximately 5:00 on at the bar at 2 Schylee she had seen defendant also testified that Shari, seen he defendant had Schylee When asked whether afternoon she saw Shari. the same days “Yes,” giving later. Schylee, it to her several photograph of replied and then took a however, established, subsequent to certain was taken photograph that this testimony Other Heidrick, 8, who July and Todd show on photographic taken at a photographs defendant had 9, of a waitress at photograph July noticed that he took spent time defendant on with Meat Market bar on that date. Bartels, been shop, the store had not motorcycle who worked at the 3 According to Ron on that date. in the showroom a salesman was although possible it was open July on Bartels, July records and store open on shop, it was According to William owner July motorcycles parts or on 4. indicated no sales defendant, Midvale Avenue Los on his walking along Angeles with Defendant drove in his automobile and West way Hollywood. up agreed Todd a ride. Defendant was someone whom he give accompanied by “Shari,” the time as Todd later introduced at whom identified from photographs.

At 6:00 on Shari arrived at the residence of p.m. July approximately Torre, Oliver De La she had become with whom involved the romantically month. She but at 1:00 a.m. on 4. previous spent evening departed July to be told De Shari La Torre that she had Appearing apprehensive, agreed meet someone at a bar but did not want to to the She asked De go meeting. unlocked, the door during La Torre leave because she would return but she failed to return. night, that, a.m., Talbot later told the on she at 4:30 as

Olga July awoke police store, was her custom. On her to the room way she walked past living *33 sofa where defendant re- he was not Talbot soon slept, noticing present. turned, inside the remaining for a of several hours apartment except period in the afternoon. Defendant did not return until late that evening.4 detail,

As discussed in below greater of Shari later were photographs found defendant’s The Shari possession. photographs depicted wearing blouse, various outfits such as a dress or cutoff and a jeans before posing distinctive rock formations in the desert. The on her arm was bandage down, visible. One taken while was Shari her photograph, lying depicted arms, bare breasts close with her shirt back under up, her which were pushed determined, held against her A body. forensic later police photographer by at the same taking desert sites the same time of and photographs during year shadows, the attempting that one of the of Shari duplicate photographs had been taken at 11:05 a.m. and another had been taken at approximately 2:00 approximately p.m., Shari was alive at least until the indicating early afternoon of 4. July

2. the Shari Discovery body Miller

At 6:00 a.m. on Steven who an office the July Craig, had near comer of Elm Street and West Pico Boulevard in West Los arrived at work Angeles, testified, 4 Olga prosecution. contrary Talbot testified as hostile a witness for the She to her statement to the police, got up approximately July that when she at 4:30 a.m. on 4 to have coffee, room, sleeping living defendant was on the sofa in the and was still in that location at 8:00 a.m. when Talbot went the Talbot further testified that when she returned to the store. a.m., apartment apartment, for several defendant was not at the but minutes at 10:00 that defendant left in p.m., present. when Talbot returned he Talbot also testified at 2:30 was asleep was on the early evening July the and that when she awoke at 4:30 a.m. on couch. in an Elm Street.

and his near As he walked toward alley automobile parked he noticed bundle in the lot. At 9:50 the front of the a building, large parking (LAPD) Officer Edwin Angeles a.m. that Los Police morning, Department the lot. He observed a bundle covered by Souza was dispatched parking and with blood. A odor emanated from the that was stained strong quilt quilt a human hand was visible. John, detectives, St. Rockwood John

LAPD homicide John and including coroner’s and were at the time the at the scene body present observed Doe as Jane The identified quilt. body, initially investigators unwrapped female, feet nine was Caucasian five No. that of a partially decomposed tall, and was and one hundred was nude twenty body inches pounds. and tied bound leather encircled by long thong ligature single tied wrists ankles around left together, thigh, wrapped together been front of the The neck had marks. The abdomen. ligature nipples removed, and skin tissue had removed from on the lower been areas entirely abdomen and left ankle. The tattoo on the bottom body had an S-shaped foot. The hair Yellowish matter was found under right fingernails. six inches approximately length. A medical examiner for Los Dr. Angeles County, Wegner, performed Death occurred discoloration by ligature causing autopsy. strangulation, of skin had removed after the head neck. The sections been nipples means The back of the left forearm death of a instrument. sharp cutting *34 sutures, had with five but no below the elbow had a cut that been closed blue was one of the was An Indian head silver found on present. ring bandage fingers. medical between 20 hours

The examiner estimated that death had occurred 6, or between to 3 to the time the first was examined on days prior body July on 5. The examiner 3:30 3 and 7:30 on medical p.m. p.m. July July 5, death nearer to the of July calculated the time of would be evening death, of a the trunk heat at time of assuming storage degree time on a at 6:00 a.m. during discovery vehicle of to the period prior body’s 6, cold at 3:30 and to the prior body’s storage p.m. additional July exposure that day. Shari’s, automobile, determined to be

On locked later July Bar, from lot of located two blocks discovered Samo’s parking weeks, the in Los Within several Angeles. police defendant’s apartment of Jane an record for with that matched a taken from arrest Shari fingerprint 1, Shari’s was informed of her daughter’s Doe No. 60. On mother August death. in the located and searched Shari’s vehicle towing the police

On August Shari customarily been stored since 8. July Although where it had yard automobile, neatly arranged her inside her and belongings stored of many that later was found around her at the wrapped body, with the quilt covered vehicle, were in The located the the articles inside disarray. time the police in the taken defendant were outfits Shari wore several photographs vehicle, she nor from several friends’ residences where from the recovered recovered substance on a of cutoff jeans had stored clothing. yellow pair a wristwatch recovered from automobile and on subsequently from Shari’s residence, from the of Shari’s as well as scrapings fingernails defendant’s found to have the same as the yellow were composition body, analyzed at Mrs. Holst’s residence. paint

3. Tracey Campbell Disappearance of In the moved from Tracey spring Campbell, years age, Montana, mother, McCabe, her Lida Jane who had rented joining recently (that small studio did not Midvale have a located on apartment telephone), Avenue in Los attended school Angeles. Tracey junior high during remainder of the school the first were June year. During part they Derrill, Heidrick, brother sister and cousin Todd joined by Tracey’s Tanya, all of whom soon located remained in the alone jobs. Tracey apartment after day, during putting away bedding cleaning apartment work, the others had but she declined to do the dishes. It was gone habit to leave the who door Tracey’s apartment during day. Tracey, open smoked one-half approximately pack cigarettes day, always purchased per Boulevard, them at the Arco Station located on Overland Avenue and Venice several blocks from the did not drive or hitchhike. At the apartment. Tracey time of her she had no disappearance, money. June, Todd,

In at the front of the early Tanya, sunbathing Tracey, defendant, met who lived in the apartment, adjacent apartment upstairs *35 time, and was his At the defendant told complex washing motorcycle nearby. June, them that he was a Later in Todd and had drinks photographer. Tanya with defendant at Same’s Bar. On and attended the Los Todd July Tanya Festival, festival, Pride two or after the on the and three Angeles Gay days Miller, defendant, afternoon of 3 or Shari July July accompanied by to drive Todd to West agreed Hollywood. as latter left the

On the of defendant saw Todd the morning July to a and Defendant offered to apartment purchase newspaper cigarettes. to the One drive Todd and the for him. drove They purchased cigarettes film and Hour to off drop pick up Moto-Photo store on Venice Boulevard Todd his interest a photo- indicated developed photographs. preparing to At some defendant and Todd returned modeling portfolio. point, graphic where, closet, a from the hall defendant retrieved apartment, defendant’s Todd the which He showed number developed photographs. photographs, models, to be of female several that including photographs proved depicted bar, Miller. and Todd had drinks at the Meat Market where Shari Defendant woman, a of a later identified as Schylee took blonde defendant photograph O’Hare. afternoon, at a that Todd to have defendant him agreed

Late photograph site and mentioned construction next to their Todd apartment complex, change to to when he returned to the in order Tracey apartment plan had them After Todd and defendant shooting clothing. photographs, and, to the upon returning at one-hour store developed photography members. and other family showed the to photographs Tracey apartment, at one point Defendant and the remainder of the night together, Todd spent bar. to “Tennessee" driving work, at his home

On from Todd visited July upon arriving time for at the door to inform Todd that it was apartment. Tracey appeared conversation, dinner, wanted mentioned that she and the ensuing Tracey of Faces to become a model. Defendant showed her a professional copy International, to a who desired featuring magazine photographs people models, of herself and advised to obtain a Tracey good become photograph if a submit it asked defendant would magazine. prepare and Tracey her, declined, he did not but he portfolio stating photographic went to a sand- minors. Later that Derrill and evening, Tracey photograph and brought wich where sandwich purchased “subway" shop, Tracey home, she it for lunch one-half of the would eat mentioning sandwich following day. 12, 1984, white dressed in a blue and On the morning July Tracey black, suit, top aby floral-patterned covered two-piece bathing completely outfit, an with an stone and shorts and also wore ankle bracelet amethyst a.m., initial “T” it. At 8:00 ring approximately that had the on “pinkie” work, Todd, Derrill mother Tanya, after and their left apartment go at the a knock with Tracey heard on the door. Defendant spoke apartment minutes, a job for several and Derrill defendant mention having door heard for and Derrill. Derrill approached for Todd Tracey, possible jobs about about that he was disclosing with defendant briefly job, spoke work. leave for *36 later, a.m., his Derrill for job, 8:25 departed 15 minutes at

Approximately a.m., At 9:00 Tracey. approximately a of Camel for pack cigarettes leaving a in the same who knew the building Bill and Scognamillo, neighbor family that left the door while Tracey apartment had observed she usually open inside, walked and noticed that door was by apartment cleaned closed. afternoon, At 4:30 that Todd returned from work to find the front to door locked the curtains At apartment and closed. 5:00 approximately p.m., arrived, Mrs. McCabe but because she her that given Tanya had to keys and had to she Todd the window screen in order to morning, pry open gain Inside, floor, discovered that the were still on the they entrance. mattresses inside, the cat but there were no in the and was dishes sink. dirty Tracey’s was in half-eaten sandwich still was in the her and refrigerator, purse apartment. . Todd, return, McCabe, evening, Tanya,

That when did not Mrs. Tracey Derrill Bill began and to ask neighbors complex, including apartment whether had seen Todd went to defendant’s Scognamillo, they Tracey. but he was not at and home his vehicle was not in apartment, garage. Talbot informed Todd that defendant was in Todd Olga Orange later County. to returned defendant’s and a apartment found note that had addressed Olga door, to and defendant on the defendant still had not placed indicating returned. Todd checked the times several that but garage defend- evening, ant’s vehicle was not present.5

theOn morning July Mrs. McCabe filed a at missing person report the police on department That and Tracey’s disappearance. morning after- noon, Todd checked and found that defendant’s automobile still again not in the present garage. Marshall,

At that 8:30 approximately Steven morning, private investiga- defendant, who tor was an acquaintance defendant’s telephoned apartment to spoke Olga Talbot. Talbot told she him was worried that defendant had “taken the little next door the and was girl yet home.” previous day Marshall to proceeded apartment, defendant’s and he observed Mrs. McCabe walking nearby. Marshall she seen inquired whether had defendant. Mrs. she McCabe said had not but was for him because looking day the previous defendant and had left Tracey and defendant “had together, her daughter.” Marshall offered assist the search and to the proceeded apartment Talbot, witness, 12, 1984, 5 According Olga testifying July as a on hostile Talbot prepared placed apartment, inside Talbot’s and defendant’s note to defendant Tracey referred to and to missing According testimony, Talbot’s vacuum cleaner. Talbot’s apartment defendant had nightfall, following returned to their sometime after morn July ing, proceeded she and Tracey’s apartment Tracey to ascertain whether returned, Tracey’s family had were but told she not returned. No other witnesses apartment verified that Talbot and at Tracey’s defendant had visited that time. *37 At he that defendant’s automobile was present. where noticed garage, Marshall defendant’s and telephoned apartment, least five times day him At 4:00 Talbot told defendant had not returned. approximately each time to answered and meet with telephone agreed defendant the personally p.m., At meeting, another location. when Marshall inquired Marshall at he stated that he had driven her to Tracey, whether defendant had seen and had her off at Venice Boulevard because cigarettes dropped purchase she to hitchhike to the beach. wanted date, defendant, a observed who carried

On the same Bill Scognamillo briefcase, his door of apartment. small or medium-sized front unlocking seen Tracey. asked defendant had and whether Scognamillo approached and Scognamillo did not and entered the apartment, Defendant respond nervous, Defendant, brief- who dropped followed him inside. appeared table, and told magazine, case on coffee a grabbed pornographic a moved briefcase look Defendant to at some Scognamillo photographs. again to Scognamillo to front door and then When hallway. first that he had been seen he responded asked whether defendant had Tracey, seen When Scognamillo and had not her. the desert taking photographs seen in the two days, whether defendant had last Tracey inquired a visited his to make that the had previous day Tracey apartment replied to then departed. Scognamillo apart- call and had telephone proceeded on whether defendant’s vehicle had dust ment’s to discover parking garage it, inform but it clean. then went to to Tracey’s apartment was Scognamillo her of what he had learned. family Mrs. on the afternoon of defendant visited July

At 5:00 approximately she, Derrill, Todd, and where Tanya, Scognamillo McCabe’s apartment, Defendant, did was appeared highly agitated, were who present. trembling, contact, stood in When doorway not make apartment. eye he and where Tracey in nonconfrontational manner whether had seen asked a been, was and that he had he did not know where she he defendant stated a black stated that Tracey, wearing had Defendant gone Orange County. suit, his had outfit a blue bathing stopped apartment shorts and over top a girlfriend. 2:30 the afternoon previous telephone at approximately of Midvale ride to the comer Defendant had subsequently given Tracey store. liquor at cigarettes Avenue Venice Boulevard purchase him was beach. told that she to the going Tracey defendant, and Todd Tanya proceeded with this conversation Following clean that defendant’s automobile noticed parking garage. They near When saw defendant Todd on the windows. that there were water spots clean. vehicle was so why the Todd asked his later that apartment evening, *38 clean that he had had to the interior and exterior of the responded Defendant the because a fire had heater or carburetor. ignited automobile 14, LAPD Taylor On Officer Michael interviewed defendant at his July the that had apartment concerning missing person report Tracey’s family Officer that at Taylor p.m. filed. Defendant informed 2:30 on approximately who wore a bikini covered with a had his July Tracey, wrap, visited to her a telephone, use the and defendant had apartment given subsequently comer ride to the of Midvale Avenue and Venice Boulevard. at his

On LAPD interviewed defendant Officer James July Gillespie account, remarking a this time Defendant identical apartment. gave nearly desire a that while had mentioned her to become apartment, Tracey model, defendant, and who had informed her he was a photographer, to a her. agreed Following for prepare photographic portfolio interview, police defendant consented to a search of his apartment. looked over on the in the room and briefly items tables and kitchen living closet, a hall did not opened but locate to relate anything appeared case. After defendant executed a form consent authorizing police automobile, search his inside police briefly examined the and trunk the vehicle without finding significant, but that the anything they noticed floorboard Defendant he stated had washed vehicle that damp. day. The interview and searches were within one-half hour. completed

4. initial arrest Defendant’s On LAPD July officers obtained warrants arrest defendant connection with the death of presumed Tracey conduct a Campbell, search of his apartment and vehicle. At 6:00 Detectives approximately p.m., Worthen, Charles Robert arrested at Rooney, John Rockwood automobile, the Meat Market bar and seized his it police to the transporting station.

Detective Donald Ravens in the search of defendant’s participated police closet, Inside a apartment. box located in a hall the officers a silver found chain, a bracelet with a rainbow one design, pair earrings purple having stones, and one "stones On a pair earrings resembling diamonds. having table, coffee the officers found a chain with four attached to key keys other chains. multiple key

At 6:30 Detective Robert and other officers approximately p.m., Rooney vehicle, searched defendant’s in the discovering knife and an address book vehicle, trunk. Inside the officers discovered Polaroid two photographs as well as a camera negatives, bag containing a number of photographic floorboard, and camera Under the equipment. negatives, photographs, chain with several and three attached. One of keys rings officers found key to fit the locks and both of ignition was discovered subsequently these keys vehicle and Talbot’s vehicle. Olga Shari’s *39 the items and them on the “homicide

Detective removed Rooney placed a young station. The Polaroid photographs depicted desk” inside the police inside the Several and negatives a vehicle. asleep photographs woman clearly with a bandage the same woman camera bag depicted young posing, arm, observing desert. her at various locations in the Upon visible on St. to Detective noticed and commented Detective Rockwood photographs, the woman John, No. the death of Jane Doe who was investigating of the where body same area had an ankle tattoo in the in the photographs 60, and that there from the of Jane Doe No. the skin had been removed body Thereafter, an LAPD forensic connection between the two cases. be a might those of Shari of Jane Doe No. 60 with matched the fingerprints expert Miller, of her arrest in taken from a record 1980. 31, Detectives defendant’s arrest on the of July

Following evening hours, and on the Rockwood interviewed him for four to five Worthen and for additional seven to ten hours. The asked defend- an following day police he of a woman in several photographs ant about the identity young depicted He had Defendant told them that her name was Shari Miller. had taken. at the Meat her two met her when she was a barmaid having known years, divorce, had been a bar. She was in the a obtaining Market process (he was as a house had restaurant manager, currently working painter on her and intended to major noticed she had flecks paint clothing), arts at graphic college. of herself to

Defendant stated that Shari had wanted recent photographs last to Defendant had taken the during part her mother. give photographs off some of June at Castle Rock in Defendant had dropped Topanga Canyon. bar, he other retaining prints for Shari at the Meat Market prints He last had seen Shari on were to show to her in very thought good, person. his and he took the June 30 or she July apartment when stopped to the On the fourth of he had July, gone Huntington Polaroid photographs. did not take Beach area to watch the tall but photographs. ships, book, num- Defendant his address which contained telephone identified friends, residence, her several of bers for Shari’s mother’s addresses for she then staying. where a she had drawn for defendant map indicating stones and bracelet, (with white When asked about the two of earrings pairs stones), a chain seized from his defendant stated that apartment, purple earlier, him, Shari them him given two months had approximately asking remounted, a and medallion re-plated, earrings have bracelet added He that the chain with three attached key belonged to the chain. stated rings him, ex-wives, and the had to several of his belonged rings including Susie, had returned them. who Cindy following asked Campbell, provided

When about Tracey he Defendant met when July account the detectives. first on Tracey Todd at the construction site. He denied took having photographs on her to become conversation with Tracey July concerning plans On he at Culver model. had cleaned and vacuumed morning July At returned to his Camera 2:30 as he City p.m., Shop. approximately *40 a shorts with gym blue apartment, Tracey appeared, wearing floral-patterned to tie and a bikini swimsuit and asked to his matching use top top, telephone a contact Defendant then a to the of girlfriend. ride comer gave Tracey Boulevard, Midvale Avenue and Venice but did learn where she intended to after that. Defendant to drive a route go circuitous to Santa proceeded Monica Del to Marina back Santa Monica airport, Rey, Century City, the Mormon El Los airport, Temple, Loyola University, Angeles Segundo, Harbor, Malibu, Beach, International Leo Carillo State and Airport, King Camera, Culver and then City returned to his apartment. 1983,

The officers had learned and that defendant previously April Lancaster, Nick Klos had driven to the bowl area in the desert near and they asked defendant whether he had gone that desert with a part group of individuals that included Klos. stated had the Defendant that he gone time, desert with those at that but denied that the he persons gone desert with else. Defendant was anyone released from on 3. custody August 7, Parren,

On the August Juanita an police questioned of employee Boulevard, One Hour Moto-Photo on Venice where defendant was a shop customer. regular obtained police store records establish- subsequently 6, 9, that ing defendant had in film for on brought developing July and August 9. Among submitted were those negatives during period Shari. depicting

On August at arrived and asked to shop photography Parren, with speak who outside the He told her that he knew stepped store. were him and drew police following her attention to a vehicle particular street, across the that it as to stating was Defendant inquired vehicle. police what Parren had told the went inside the police. Parren then Defendant and store. Defendant had them in a stack and reviewed brought of negatives ones he wished to have reprinted, eventually requesting

determine which examined one of he cut strip negatives, 60 be As defendant reprinted. 50 to scissors, in his placed negative one of the with negatives pair off it, off the emulsion with his teeth. Defendant and chewed scraping mouth remainder of that strip reprinted. had the body Tracey Campbell

5. Discovery of in the desert Klos directed the to the bowl area On Nick August police officers, Lancaster, assisted by near 75 law enforcement approximately Klos, a severely conducted a search of the area. There discovered they on 16 through skeletonized identified body, August decomposed partly near some her dental records as that of Bloodstains Tracey Campbell. moved boulders marked the location of the which had been body, original hands, feet, as Both approximately probably by activity coyotes. bones, limbs, leg well as bones from all of the were Other missing. including bones, from located some had been animals and were separated body by was no remaining distance from the There amount skin body. significant down, on the from the waist and the skin that did remain was body mummified. The were genital organs completely decomposed completely nude, the sex of the no was ascertainable. The but body longer body *41 on it a blouse with a snail was around face. print wrapped examiner, the Los medical On Dr. August Wegner, Angeles County an that the cause of death was ligature performed autopsy, determining There were the midline deep ligature imprints along strangulation. back, neck, into two lines around the extending

upper splitting imprint with the use of a to cause death. A similar consistent rope V-shaped imprint victim had been tied to on the chest indicated that the up, probably prior death, death. Dr. was unable to establish the exact date of but Wegner testified that the condition of the was consistent with death having body on 12. occurred July

6. second arrest Defendant’s to Parker Center

On defendant was re-arrested and August transported Detectives St. John in downtown Los At 6:45 Angeles. approximately p.m., room was interrogation and Melleker to interview defendant. The attempted recorder, St. John also carried with a hidden and Detective equipped tape of his that contained another Defendant was advised tape briefcase recorder. Miranda,6 and defendant informed the detectives rights pursuant that he wished to his The attorney have detectives escorted him present. to a and he his attempted contact The detectives telephone, lawyer. switched off the devices. recording unable to

Defendant was contact the attorney was returned to the Meanwhile, Worthen, room. Detective interrogation who had returned to just station, police informed that defendant did not to waive wish his later, to an Five to ten right minutes Detective Worthen informed attorney. Detective St. John defendant now was to answer willing questions without the of his presence attorney. Melleker, reactivat-

At 7:30 Detectives St. John and approximately p.m., devices, and inquired reentered the room ing recording interrogation Defendant, whether defendant now wished to to them. responding speak his to Miranda. was re-advised of and waived affirmatively, rights pursuant Defendant told the officers that known Shari he had Miller approximately two he years. Asked when last had seen Shari and whether he ever had taken June, her defendant account. In defendant photograph, gave following had Shari. She their agreed missed scheduled had photograph meeting him from her mother’s telephoned residence San Pedro to for apologize later, June, one canceling. Approximately week the last during part on June possibly had taken one and one-half rolls of film of Shari in Topanga Canyon, later that had to see evening they gone film, at a drive-in theater. Defendant then dropped Shari off Survivors, The at the Meat bar. Market Shari following day, at defendant’s appeared apartment while

defendant and Evans Haas were on motorcycle. defendant’s Defend- working ant and Haas drove Bartels City. Culver re- Harley-Davidson They *42 turned automobile, to discover Shari in defendant’s he asleep and recorded the scene with his Polaroid camera. Shari her for departed payment collect house work she had in painting the San performed Valley, arrang- Fernando to meet ing defendant that the Meat at Market bar obtain the evening time, that defendant had did photographs taken. Shari at that and appear defendant never her saw weeks wave to her again, except several later to as she drove in her vehicle.

Defendant told the detectives that he had Shari in photographed only bar, Topanga inside the Meat and vehicle in the Canyon, Market inside his garage his apartment. Defendant told detectives that the photographs 6 Miranda v. S.Ct. 10 A.L.R.3d 384 U.S. 436 16 L.Ed.2d Arizona 974]. in rock formations were taken in front of the desert standing of Shari the fact that the had been photographs Confronted with Topanga Canyon. area, that the desert defendant replied photographs in the Lancaster taken Chatsworth area” near Castle Rock. “taken in the were up that he had met Tracey’s defendant Tracey, explained When asked about in his front his cleaning motorcycle apartment while he was family he took of Todd at had met Tracey day photographs building, one when he visited Defendant saw Tracey again morning construction site. afternoon, she visited defendant’s her That apartment family’s apartment. on Venice he her off at a coffee use the and later dropped shop telephone, Boulevard. had been discov-

The detectives informed defendant that Tracey’s body ered from the same desert location as depicted approximately yards in of Shari. Defendant stated that he was unfamiliar defendant’s photographs When the told defendant that could they “place” with that location. police defendant and Shari in the same desert location where Tracey’s body discovered, “I if defendant can’t it to Asked responded, explain you.” been He asked to he had killed Shari or “No sir.” “try Tracey, replied, the interview concluded. attorney again,” 16, LAPD Lancaster sheriff’s deputies The same officers and day, August for defendant’s In the hall obtained a second search warrant apartment. closet, with a dark band flecked with yellow discovered wristwatch they similar to the watch Shari wore in the taken in the desert. photographs paint, name, as well The found 50 documents in defendant’s police approximately automobile. In as a of beach similar to found Shari’s thongs thongs pair son, Williams, found, inside a the bedroom of Talbot’s Olga Gary police box, a of white that Williams denied The police section rope owning. from the closet and the area storage recovered number hall photographs locker, located From the same garage. storage police apartment knife. recovered a leather and a double-bladed shoelace-type thong warrant, vehicle was On to a search defendant’s August pursuant Luminol indicated the possible presence searched. tests phenolphthalein of blood on the floor mat the trunk. Because these tests also may produce substances, results if the chemicals utilized have contact with other positive such as meat or a human test was conducted. vegetables, *43 precipitant was or result was not either that no human blood indicating present positive, that the used was too minute to a reaction. sample produce at defendant’s the box in

The white recovered from a bedroom rope impressions the ligature to make an identical to apartment proved impression trial, was to body. During jury discovered on view Tracey’s transported site. The shown that the location where the bowl was was jury Tracey’s body feet discovered was from the location of Shari in one of approximately of defendant’s identifiable because the distinctive rock forma- photographs, in the tions background.

The defense rested without evidence. presenting any above, the evidence After described found defendant hearing jury of two counts of first The also true the murder. found guilty degree jury circumstance that defendant had murder. committed special multiple B. Penalty Phase Evidence

1. Prosecution case seven prosecution called witnesses who testified a concerning prior convicted, for which rape defendant as well as charged eventually trial, number of prior criminal activities. this uncharged During phase witnesses, F., prior prosecution’s presentation of its final three Ellen F., V., Cindy Cheryl defendant moved to relieve his successfully Defendant, appointed attorneys and proceeded represent himself. stating that “no defense” be would presented, declined to cross-examine two those witnesses.

a. P. Julianne P., In August Julianne who several spent nights in her automo- bile, defendant, met who her invited to move into his motorhome. They commenced a sexual relationship October that year. Julianne moved out in but February they had sexual intercourse two or three times in 9,1983, March 1983. On the weekend of defendant and April Julianne drove in defendant’s Lancaster, motorhome to the desert near in order to watch the landing the NASA Space Shuttle. were Nick Klos They joined by and five other individuals who arrived in Klos’s motorhome. The then drove group motorhomes area in bowl-shaped the desert to At spend night. 3:00 on the approximately afternoon of Klos defendant April drove their respective motorhomes from the bowl site. When the away motorhomes reached the Klos highway, turned in the direction Los Angeles, but direction, defendant turned the other at a market. Defendant stopping then site, drove the motorhome back the bowl Julianne that he telling wanted to make certain that the had been campfire extinguished. location,

At 4:00 approximately when arrived at p.m., they so, motorhome, told Julianne to check the She did reentered the campfire. *44 fire and reminded defendant they was that extinguished, that reported turned off the a ignition, opened to return to Los Defendant Angeles. needed beer, to and stated that he needed relax that in the they stay can of and might out a knife from side until Defendant of the pulled desert Wednesday. a told Julianne that he was to ass” one going “piece driver’s seat and get a and that she must He made motion with the strip. twisting or another way knife, her or going Julianne that clothes were to come off one way telling he cut them off if did not remove them. Julianne another and that would she clothing. removed her to He told her told her to to the back of the motorhome. go

Defendant masturbate, the motor- back of and she Defendant moved to the complied. home, drawer, her to use oils telling a and retrieved various and gels, opened masturbate, oil over Julianne. to an began them. Defendant then poured in and move the dildo Defendant had her insert a dildo into her and vagina bag him. a while Defendant simultaneously orally copulating produced out belt, half-bra, had on a put garter with various and Julianne lingerie garments He a began her that he wanted her to look like “whore.” telling and g-string, dildo still was to her in the face while her a whore. While the calling strike her to cut off her defendant her a of scissors and told gave pair inside vagina, hair, look,” to “a and her her so that she would have told teenage place pubic the hair in a bottle. Defendant filmed this activity. had

Defendant then Julianne to drink a liquid appearance ordered milk, a taste of diluted substance that caused her and apparently containing to “full Her cognizance lose awareness.” sequence subsequent At some defendant Julianne the dildo events uncertain. point, pull of her and it in her anus. When she refused his out vagina place subsequent anus, dildo, into her it order lick the defendant stuck his removed finger it, excrement on and forced her to lick his and dildo. finger with Defendant some and threatened to tie Julianne use the rope up produced she beat her with belt knife on her if made run. Defendant any attempt buttocks, back, on bruising and belt buckle her lower thighs, producing for several weeks. was observable beer At after Julianne whether she wanted a initially asking another point, one, into beer and then her refusing eventually poured give numb, make body a substance that he said was cocaine and would her bottle ice up her drink She Defendant an picked and told it. refused. initially hand, and at knee to stab her made a stab her breast and pick, attempted back, if she did not her to stab the back of her head hair pulled threatening it. She drank drink liquid. bathroom, he told defendant that she had to togo

When Julianne told in the motorhome and he her to his bathroom” her that did want “dirty up *45 outside, cold, it had in very ordered her where become and urinate go douche Defendant this and then ordered her to drink activity bottle. filmed but the urine. She to drink it lost consciousness. When she began regained defendant, consciousness, erection, had an who was in the standing doorway of the motorhome. Defendant forced Julianne’s head onto his and she penis, him. urinated mouth Defendant in her and urinated all over orally copulated her, her at reaction. laughing motorhome, had Julianne the bed in back of

Defendant on and get twisted, sucked, and on bit her and very clothespins nipples painfully placed her them. Defendant had her while on orally him copulate again lying stomach, her so that the were then told to sit Defendant clothespins painful. Defendant, on of him and had sexual intercourse his top penis with her. with still inside Julianne’s when she fell Julianne fell and vagina, asleep. asleep, awoke, her, She defendant on sexual intercourse. having again top fell asleep. Julianne find

Eventually, awoke to that defendant had dressed. Defendant drove the motorhome to Angeles. Los After Julianne her own departed vehicle, advice, she Nick told Klos what had Pursuant to Klos’s happened. Julianne the incident went and to the Several after his reported hospital. days 16, 1984, offenses, arrest on for the August defendant no present pleaded contest to one count of rape.

b. Tamara H. and Mark W. In the summer of Mark W. met while defendant both were residing at a trailer Del Marina W. park Rey area. Mark lived in a recreational Marshall, vehicle with together Steve his former personal manager during musician, Mark’s earlier career as a and Marshall’s Later that girlfriend. year, Marshall departed, Mark’s taking personal Mark moved to belongings. Phoenix, Arizona, H., where in March he Tamara then 21 years met age, Venice, moved to together they California. through Learning mutual friend that defendant needed assistance a rape involving case P[],” introduced, “Julieanne to whom Mark been Mark met previously with Marshall and defendant. Mark on agreed testify defend- truthfully loan, room, ant’s behalf. As a defendant for paid Mark Tamara’s motel food, and other necessities. time, this

During to have work as attempted arrange Tamara a model for him. Tamara refused to do Mark being present. so without Defendant both Tamara be eventually agreed present Mark and would in June during modeling session. At 4:00 one afternoon approximately in his to an proceeded airport, them vehicle up defendant picked bars, them to several including and then drove where he took photographs, *46 There, he had to do a defendant told Mark that “drug “Tennessee” bar. the effect, drinks, left which seemed to have a and strong had several run.” They 11:00 Defendant drove until Mark and at p.m. the last bar approximately outside, when it was still dark and fell Tamara awoke Tamara asleep. Tamara on the knee desert. Defendant tapped were the they discovered rifle He was a and a carrying light her to out of the automobile. and told get Tamara, clothing her to remove her ordering that he at pointed or shotgun shot, Defendant fired a of shorts and a top. and on an outfit consisting put Defendant, had an had his down and who pants and Tamara complied. mouth erection, him. Her force Tamara to orally copulate to attempted a second.” his for “half penis touched

Meanwhile, were in the desert and awoke and realized that they Mark out, saw He heard a got gunshot, inside the vehicle. only person he was the Tamara, for of the sound of the and gunshot, yelled the direction light a vehicle, was able toward the and Mark who in return. The moved light yelled defendant, to be a fluorescent and what light appeared see carrying to Tamara, rifle, who was dressed in lingerie 20 feet behind .22-caliber walking vehicle, defendant the the placed and was When they approached crying. trunk, vehicle, and several mats from on removed dirty light top Tamara the vehicle. He ordered Mark and them on the behind ground placed toward the as did they their two shots clothing, firing ground to remove all mats, to tie Mark with to lie on the and told Tamara so. He directed them him. vehicle’s and to orally copulate that were attached to the bumper ropes aroused, so that the to become defendant placed gun When Mark failed to “blow his balls off’ testicles and said he was going barrel touched Mark’s erection. Defendant forced Tamara orally copulate if Mark did not defendant, an get minute, and then ordered Tamara which she did for less than hour, but for one-half Mark. She did so approximately again orally copulate he did not respond. that he was being paid told Mark and Tamara defendant

Eventually, arrive, them, $1,800 for others to and that were they waiting to detain said that when hired defendant. Defendant who had including person arrived, Mark was nude it.” Mark and Tamara were “going get others soon time, suggestive forced to into change sexually while Tamara was the entire vehicle. At one point, from the trunk of the that defendant retrieved clothing nude, with a long rope, defendant tied her arms and legs Tamara was while her, things kind of “kinky” and asked her what Polaroid photographs took had done with men. she “this person defendant stated that it

As became light, appeared the sky it,” is Mark, “this untied Defendant and saying, to show going up.” him him to walk a ravine. the rifle at and forced into Tamara pointed began said, are me in to Mark turned toward defendant and cry. “you shooting told to face him and shoot him while Mark looked back.” Mark at his down the rifle. Defendant cry gathered Defendant eyes. began put he had doused them with taken throughout night, lighter photographs fluid, them on and set fire. automobile,

When returned to defendant told them that Steve they Tamara, Marshall taken “contract” on Mark and they out a must leave Los or Marshall would learn the had not been Angeles job performed and kill them all. Defendant drove them back to Los Mark Angeles, after *47 room, and Tamara retrieved their the from motel defendant drove belongings them to and a San Mark Tamara checked into motel room. When Diego.

defendant to to refused leave Tamara went and asked immediately, lobby to minutes the room after a few them manager inform telephone successful, all the had to This and leave. was defendant guests ploy departed. Mark and for a Tamara asked different room and returned to Phoenix day. had no contact with defendant did following They and subsequent contact the Mark believed that Marshall a police. truly “con- arranged tract” on him.

c. Ellen F. In June or Leslie July (then Carlson and his wife Ellen F. years of Niceville, met defendant while age), in a trailer court in living Florida. In invitation, at August Carlson’s defendant began to live with the couple. During the first week of Carlson and Ellen F. September separated and Carlson Defendant to live Ellen in departed. continued with a platonic out relationship, with rent and helping expenses. 20, 1980,

At Ellen, 2:00 a.m. on approximately September awakened by noise, defendant, intoxicated, discovered who was her with beating dog a stick that had nails in Ellen it. told defendant to Defendant “please quit.” trailer, then entered the told Ellen to remove her and to beat clothing, began fist, throat, neck, her with a closed her in striking and legs. Ellen refused to remove her Defendant clothing. then inside” began “shoving her. things rectum, Defendant shoved the handle of a brush into and dog vagina her and sauce, then down her throat. Defendant a bottle of Tabasco shoved it opened rectum, in Ellen’s and vagina then down her sauce throat. poured rectum, Defendant also shoved coat a into Ellen’s and and hanger vagina Defendant, then scissors, down her throat. a grabbing opening pair threatened cut off her but she knocked scissors out of his nipples, hand. Defendant choked Ellen and her with his attempted penetrate vagina the ordeal. Ellen was crying to beat her during He continued

penis. he told her to shut and said he was with defendant to but stop, up pleaded The incident lasted three to four hours until he wanted to do. what doing fell asleep. minutes, Ellen asked him to take her to When defendant awoke after a few and, so, he to do Ellen crossed the street spitting up When failed hospital. blood, for an at the residence of a who girlfriend, telephoned appeared taken to the station and then to police hospital, ambulance. Ellen was for two weeks. Her source pain where she was hospitalized primary choke, when a nurse piece in her throat. One she night, began pulled from A later Ellen moved from inside her throat. month a coat hanger Florida, file defendant. and she did not charges against

d. F. Cindy time, F., met defendant in who was Culver at the Cindy living City him, or when she was 15 or 16 fell love with years age, him. six within several weeks commenced with living Approximately *48 later, he defendant to beat on a basis. Often Cindy weekly months began these became Cindy pregnant, forced her to have intercourse after beatings. to slam stomach into a door. Cindy’s and at one defendant point attempted in the door and She was able to move out of the but her way, finger caught son, Their named after his father and known as entirely was almost severed. 2, B., was bom on 1976. September B. against

Defendant continued to beat and twice threw the infant Cindy, in On one occasion between Christmas December 1976 and Day the wall. 1, 1977, Defendant gave defendant at appeared Cindy’s workplace. January box, her, and a “here’s Christmas Cindy telling your present,” departed. B., box and found whom defendant had in an Cindy unwrapped placed holder, a with the hood his face and covering infant underneath windbreaker in returned to their that to find that Cindy apartment evening tied back. demolished, in it been all of the including baby’s presents, everything or cut in with B. that Cindy departed evening. which had been tom pieces. 1977, In in with another man and became pregnant moved early Cindy him, to take her back him. Defendant to return to agreeing asked Cindy In the other man. she told him then was although pregnant by she commenced Cindy living together again, summer of defendant and married. got a in near and Michigan Cindy’s parents, moved to motorhome to her birth gave on a basis. Cindy daily Cindy Defendant to beat began later, he son, said A., 1977. Two defendant second December days on defendant was not the father. hid A. Cindy pile would kill A. because B., defendant attacked him a wall. throwing against and dirty clothing, defendant although her and Cindy telephoned parents, grabbed telephone room, screams, could hear her parents and threw it across Cindy’s motorhome, defendant from to the proceeded prevented committing any this came the motorhome Cindy’s further violence. During period, parents 20 to 30 times to defendant from with stop fighting Cindy. to live with defendant until June this

Cindy during continued basis, her on a also defendant beat both children. On period daily striking occasion, B., one threw so defendant a rock into of water that who body swim, was one could not would year enter the approximately age occasion, water. On another defendant locked the children in the motorhome and turned on the he was “blow them gas, stating going up.” Defendant also with his bare Soon after attempted strangle Cindy hands. incidents, the latter two defendant to the that she Cindy, telling going the children the automobile and drove laundry, put to California. California, Later in while in received a at her Cindy message that defendant had for workplace her at the residence of a mutual deposited friend some of the children’s books and her baby personal belongings residence, and, she had left behind drove to the friend’s Michigan. Cindy automobile, the children in the leaving knocked on the front door. When no door, one appeared, Cindy to the proceeded back which was As open. Cindy door, entered the back closed door behind her. He asked her to him, Defendant, return to but she declined. that he should lock stating up residence, asked her When her extinguish lights. turned back to Cindy *49 so, neck, do defendant of around her placed piece clothing attempted her, and beat her in strangle the face. Defendant walked outside to the A., automobile and retrieved of then one while age, approximately year B., then Cindy two picked up approximately years age. residence,

Once had returned defendant they found and shotgun to, told that if did not she do he told her “were Cindy everything they going to die.” Defendant to beat also proceeded up Cindy, attempting repeatedly force her to him. black copulate Defendant B. a and orally gave eye, A., repeatedly at that he to kill pointed shotgun saying was him. going Defendant said that he was or to make love him no one else Cindy going would ever love them. Defendant a handful Codeine tablets swallowed and said that children. after took effect he kill He they would and Cindy later, continued to beat and kick two hours their Cindy. Approximately mutual friend returned to the from residence and stopped proceed- defendant ing further. nose, suffered from the near

Cindy bleeding temple right eye, and the mouth from this as well as blindness. episode, temporary She incurred loss from several incidents in permanent partial hearing which defendant her in kicked the side of the head.

e. V. Cheryl In defendant became with V. acquainted his then Cheryl through Theresa, girlfriend, when in their Cheryl stayed in California apartment for three months before her own On obtaining apartment. May Cheryl, then 17 lived with her years age, infant in her daughter Mar apartment a.m., Vista. At 3:00 defendant at approximately appeared Cheryl’s apart- ment. Defendant was and that he had been in a limping reported motorcycle accident and was locked out of his told him that he could apartment. Cheryl on the waterbed room. sleep returned to in her living Cheryl sleep bedroom. room,

From the living out to began calling for various Cheryl reasons, at one her that her point telling was at the front door. She boyfriend room, door, returned to the the front living and found no one opened present. bedroom, her, As she started toward her defendant grabbed threw her down waterbed, on the and to remove her began robe. Cheryl began biting, scratching, kicking, pushing, Defendant sat on screaming. top Cheryl mouth, his in her attempted place but she would not let penis him. He then masturbated on her chest until he Defendant her ejaculated. told “he leave, wanted to do it so he always did.” told him to Cheryl he eventually contacted the departed. Cheryl and later filed police charges defendant for against attempted rape.

2. case Defense After defendant eventually granted to act permission as his own he attorney, rested without calling witnesses to any and without testify evidence in presenting any to the mitigation.7 Subsequent clos- prosecutor’s defendant made ing argument, to the following closing argument jury: *50 “Think of how don’t even know many you about. You’re so That’s it.” right.

At the conclusion of the the fixed the at death. penalty phase, jury penalty witnesses, 7 Prior defense counsel subpoenas compel had contacted several served to their appearances, served a subpoena produce concerning during to his records defendant’s conduct stay county jail, requested dependency judicial juvenile files notice be taken of the pertaining to defendant’s two and waited to be sons. arrived at court Defendant’s mother testify called to as a witness by but was not called defendant.

II. Discussion

A. Guilt Phase

1. Issues to searches and arrests pertaining 31, 1984,

a. Motions to and traverse the quash July search warrant to evidence suppress Defendant contends that the trial court erred in his denying part motions and traverse the search warrant the quash and to suppress evidence seized in the search conducted on 31. several July Following evidence, hearings motion to suppress trial court ultimately on permitted prosecutor to introduce into evidence several photographs Miller, negatives depicting Shari as well as a knife seized in of the course that search. We set forth the relevant procedural facts below. Worthen,

Detective assigned investigate disappearance Tracey Ravens, and Detective Campbell, assigned investigate murder of one Stewart, defendant, Mischa believed to have been murdered by decided to conduct their respective searches on 31. simultaneously July Detective Worthen assumed subsequently for responsibility both investigations. Stewart, male,

Mischa an African-American homosexual years age, last was seen alive near time on closing of October night from the Pink departing Elephant, bar located in gay Santa Monica. Stewart left in the of a man who company earlier in the evening informed the that his doorman name was “Bill” and that he was to sell trying his truck or motorhome. The Stewart’s following nude was morning, body discovered in an across the alleyway street from the Tennessee & Savings Co., Beer a bar bra, frequented defendant. A woman’s used as a ligature Stewart, neck, strangle around his and a wrapped of women’s pair panties Ass,” bearing “Genuine logo, covered Harley his face. Semen was discovered on his upper leg. doorman at the Pink subse- Elephant identified quently defendant from a photographic as the man who left lineup with Stewart.

On July Detective Worthen an prepared affidavit cause in probable of a warrant support to search defendant’s person, and vehicle. apartment, The affidavit did not refer to Jane Doe No. who had not been yet identified defendant, as Shari Miller nor connected to but did refer to Tracey as well Campbell, as to Mischa Stewart. The affidavit included extensive information as to the circumstances surrounding Camp- disappearance Stewart, bell and the death of to both describing defendant’s connection *51 cases, he to the last to circumstance that be including appeared person the The also the in have with each victim. affidavit described incident been seen the P. for which then were charges pending against desert Julianne involving defendant.

The affidavit defendant’s considerable involvement photog- explained of modus that and stated that it as defendant’s raphy appeared, part operandi, or his affidavit to he “takes films victims.” The referred photographs [of] attachments, the the including following: police reports numerous cases; and medical and Stewart the Campbell police investigations incident, with she had been threatened of the Julianne P. noting reports atrocities,” and to to sexual a knife and ice “forced submit various pick, a interview of police of these acts were filmed by suspect”; report “part Heidrick, that defendant photo- with cousin Todd noting Tracey’s him;8 with and defendant’s activity him in sexual engaging graphed prior sexual or violent other incidents of sheet” “rap indicating three-page assaults. of from defendant’s

The warrant authorized seizure person search blood, semen, saliva, With and and hair. pubic regard of head samples any the search and seizure of the warrant authorized Tracey Campbell, and, blood, hair, of and jewelry and and items clothing head pubic particular Stewart, author- The warrant also with to Mischa a particular jacket. regard of and camera negatives,” equip- ized the seizure and all “any photographs bras, ment, devices, as novelty such panties, sexual items “underclothing” books, cards, items, gasoline pur- bank credit defendant’s negligées, for items purchased.” such “receipts chase mail order receipts, catalogs, warrant, the other items 189 among photo- Pursuant to the seized police knife, Miller), rifle. and a (including those Shari graphs Defendant, by and not that the warrant was overbroad supported asserting moved itself and exploratory, cause and that the search was general probable seized. and to numerous items and traverse the warrant suppress to quash counsel, trial ruled that the warrant court Following argument and all “any photographs” it the seizure overbroad to extent permitted effect, that, the references to any the warrant amended so and deemed or to” or Stewart Campbell “pertaining were limited those photographs all to certain lingerie. overbreadth, it was that, warrant’s despite then prosecution urged seized, faith” “good because evidence any

unnecessary suppress from the evidence was excluded relationship 8 That detail of with Heidrick defendant’s presented at trial. *52 of evidence seized to an pursuant the rule requiring suppression exception seized and that evidence any beyond warrant was applicable, invalid to the rule.” To was admissible “nexus pursuant of warrant scope proper and nexus rule and applied, whether the faith good exception determine conducted, court search had been the trial whether general, exploratory an hearing. ordered evidentiary Detectives Worthen testified that he provided

At that Detective hearing, with of the search warrant explained Ravens and Rooney copies detectives, as to as well and affidavit to these contents warrant warrant Rockwood and other officers. The officers discussed Detective on held a meeting over the course of several and Detective Worthen days, the officers the search. Detective Worthen instructed morning females, Stewart, males and for and other Campbell, search photographs (due to his that items Campbell’s females young suspicion particularly in certain of the be worn other photographs), clothing might by subjects the officers desert scenes. Detective Worthen told for photographs depicting value, the items to search for anything having evidentiary including speci- affidavit, ice fied in the warrant and the attachments to the such as an pick, knife, or rifle. based in Worthen testified that he had these instructions

Detective given defendant’s information he had received part upon concerning previous criminal activities. Detective Worthen had been informed San Fernando district office of the incident that had occurred Valley attorney’s in which defendant had several weeks to the prior disappearance Tracey, had taken Mark W. and Tamara H. out to the desert. Detective Worthen learned, officers, threat- and informed the that defendant had investigating rifle, ened Mark H. to oral W. with a have forced Tamara may perform and had taken of one or both victims. copulation, photographs Detective Worthen relied he had concerning also information upon circumstances of the attack on Julianne P. alleged Although police in connection with that searched defendant’s motorhome previously case, be located in Detective Worthen believed additional items might defendant’s apartment. wife, Cindy, defendant’s former

Detective Worthen also had learned from awakened screaming sometimes had many years previously, buried,” and that defendant due to of a that he murdered “nightmares girl of interviewees had A number with a rifle. once had threatened Cindy defendant had of several years, that for period informed Detective Worthen them dress in often having women and girls, various young photographed *53 outfits Worthen learned of at one other selected defendant. Detective least in 1972 or in which unreported criminal incident possible occurring a female 15 of Malibu age driven to years purportedly take her Canyon, where he to her narcotics and attempted give photograph. Based his his review of criminal and of upon history knowledge defendant’s cases, the facts Detective Worthen that defendant suspected present be to for deaths of in addition Stewart and might the responsible persons Campbell. that he also defendant’s “rap

Detective Worthen testified relied upon of with included a assault sheet.” Defendant’s record prior charge intent to to to defendant’s guilty plea, commit reduced rape, battery pursuant dismissed, been and several of indecent in 1971 that had charges exposure of theft. several earlier automobile charges to he he had cause probable

Detective Worthen testified that believed seize each of the on the basis of the warrant and affidavit. photographs assigned Detective Worthen had informed the officers to search police warrant, that were not limited to items described they apartment were item to mentioned but to seize that have relevance any might anything whether he had a in the affidavit. Detective Worthen did recall photo- at and officers of or Stewart with him the time he graph Campbell executed the search warrant. Ravens, who of charge apart-

Detective was the search defendant’s ment, search, he had read the affidavit of probable testified prior were to police cause but not its numerous attachments. He believed that the if, inside the an not listed the warrant once the were police seize item murder victims there evidence related other apartment, appeared possible in future be used might investigations. hall closet in defendant’s seized of the contents police many in the rifle not described Detective Ravens seized a .22-caliber apartment. warrant, in a to seize all firearms practice because it was common police all warrant’s direction to seize photographs, homicide case. Pursuant might a in the that photographs Detective Ravens seized album belief photo been Ravens had not another Detective investigation. be relevant to criminal when she wearing disap- informed what Tracey specifically jewelry believed that he and therefore seized numerous pieces jewelry peared, to her. might belong conducted a search Detective Rooney

After 6:00 on July p.m. Mischa the death of had investigated The detective defendant’s automobile. scene, Stewart, observed his at the murder body had seen his and photograph a of Tracey. also had received photograph description Rooney warrant, him had examined and had with of the search but copy previously affidavit. searched for those items listed in did not recall reading Rooney and also for items value with evidentiary the warrant having regard criminal activities. defendant’s items, that he seized various

Detective testified Rooney including bag that contained numerous to the search photographs negatives, pursuant *54 directive to seize “all Due to the warrant’s photographs.” difficulty vehicle, the items with a inside the and because he examining flashlight their believed that Detective Worthen would be better able to determine desk Detective removed the items and them on a relevancy, Rooney placed inside the station. the briefly examining police Upon photographs—includ- believed it those that to be of Shari Miller—Detective Rooney ing proved be of relate either they or that possible might Tracey Campbell, they might to the case the sexual assault involving and torture of defendant’s girlfriend desert, in the or the case the man and woman who were occurring involving tied and threatened with a “knife” in the Because he believed a knife desert. case, was involved in that Detective also seized a knife found inside Rooney the trunk. Rockwood,

That same Detective who had evening, observed body 60, Jane Doe No. reviewed the that Detective photographs Rooney on the desk. Detective placed Rockwood noticed that a woman in the to have photographs tattoos in the same area of the left ankle as the appeared area in which skin had been removed from the of Jane Doe No. 60 and body concluded there was some connection between the two women.

The trial court denied the defense motion to evidence. The court suppress search, ruled that the officers had not an but police conducted exploratory rather had seized items described in the warrant or such closely resembling items, or that were so interconnected with described items that it specifically would be or their the items impossible impracticable separate prior seizure. Prior to the trial court’s our that items not named in court had held ruling, “ ‘

a search if the officer is aware of some warrant be seized may “presently which a rational link between the item and articulable fact from specific ’ ” (1983) seized and can be inferred.” v. (People Easley criminal behavior 858, 309, 813]; P.2d v. Ramos People 34 Cal.3d 671 872 Cal.Rptr. [196 266, 553, 908]; (1982) P.2d People 30 Cal.3d 639 Cal.Rptr. 573-574 [180 716, 67, 73-74 598 Court 25 Cal.3d Superior (1979) Cal.Rptr. [157 (Meyers) 1290 731, 393, 877]; (1974) Cal.Rptr. v. Hill 12 Cal.3d People [117

P.2d 1], (1977) 18 Cal.3d grounds DeVaughn on other People P.2d overruled Thereafter, 872].) United fn. 5 P.2d Cal.Rptr. [135 Court in v. Hicks 480 U.S. States Supreme Arizona that, 1149, 1153, 347], held when initial that 94 L.Ed.2d intrusion S.Ct. view of an item is one of the officers within brought plain supported such as circum- requirement, exigent warrant recognized exceptions stances, is if only seizure of items not listed a warrant legal police (rather merely to believe than a reasonable suspicion) have cause probable are to crime. items related mo- moved for reconsideration of the Based ruling, upon reconsideration, sup- the trial court the motion in tion. granted part, Upon from but to sup- the rifle seized defendant’s apartment, declining pressing Miller The trial the several Shari or knife. photographs depicting press overbreadth, the court determined that the warrant’s despite photographs *55 exe- were admissible the officers seized from defendant’s vehicle because valid, belief warrant was and because cuted the search faith” the “good the connection he Detective Rockwood’s testimony concerning perceived in the Jane Doe No. 60 established between the woman photographs author- and the items whose seizure was nexus between those photographs between ized warrant. The court found that a nexus was established by the “two of where a knife had been used.” the knife and acts criminal behavior (1) scope Restriction inquiry of of of that limited the scope

Defendant asserts the trial court improperly items, all to to introduce the hearing by declining permit reflects the had seized. The record 189 that police including photographs, The officers that each item seized. police defendant’s motion catalogued defense, concerning only who were the not extensively testified examined to have sought that prosecutors the knife and several the photographs admitted, and items seized. but also numerous other concerning photographs into introduction

The court not err in the declining permit trial did item as every single examination of officers evidence and the police the recording and related minute orders seized. The reporter’s transcript the demonstrate that motion involved in the lengthy suppression proceedings motion, number court, of the nature and trial was well aware on ruling investigations, of that not subject items seized did directly pertain was evaluate, the search for whether therefore could example, properly in nature. exploratory

1291 (2) Consideration applicability good exception of faith Defendant asserts that the warrant was so deficient that no facially search, could have relied to conduct the reasonable officer it police upon the trial court erred in even whether to considering apply therefore otherwise faith” rule “good exception requiring suppression valid determined evidence seized to a warrant pursuant facially subsequently above, in the determined to be invalid. As noted case the trial court present overbroad, that the reference the search warrant to all photographs thus the warrant invalid. finding partially 28, Constitution, I, subdivision section

Pursuant to California article derived from (d), review related to the of evidence our of issues suppression standards. constitutional searches and seizures is federal police governed by 780, 592, 818 (1991) 54 Cal.Rptr. Camarella Cal.3d 595-596 [286 354, 63]; (1995) P.2d see v. Glaser 11 Cal.4th People Cal.Rptr.2d [45 926, 729]; (1993) P.2d v. Banks 6 Cal.4th People [25 769]; 863 P.2d v. McPeters 2 Cal.4th Cal.Rptr.2d People 146].) 832 P.2d warrant clause of the Cal.Rptr.2d [9 Fourth issue Amendment that no warrant expressly provides may except searched, those to be and the or “particularly describing place persons Const., Amend.; (U.S. to be seized.” 4th Walter v. United States things 649, 656-657, 2395, 2402, (1980) 447 U.S. 65 L.Ed.2d fn. 8 S.Ct. warrants, course, 410].) “General are the Fourth Amend- prohibited by ‘(T)he warrant) ment. is intrusion problem (posed by general *56 se, but of a in a general, per exploratory rummaging person’s belongings (The . . . . Fourth Amendment addresses the a by problem) requiring of the to be seized.’ v. New (Coolidge Hamp- “particular description” things shire, 443, (1971).” (Andresen (1976) 403 U.S. 467 .. . v. 427 Maryland 463, 2737, 2748, 627].) U.S. court 480 S.Ct. 49 L.Ed.2d also high [96 however, has that in a case the recognized, complex resting upon piecing evidence,” of of warrant be more together may bits the “many properly the resting than would be case a more case generalized simplified upon 481, 2749].) (Id. more direct at evidence. fn. 10 S.Ct. at p. p. [96 3405, (1984) In v. 82 United States Leon 468 U.S. S.Ct. 897 [104 677], L.Ed.2d the held obtained to a court that evidence high pursuant valid search warrant be invalid is admis- determined to facially subsequently the the reasonable reliance sible if officers executed search in objectively (Id. the issued a neutral at of a search warrant upon validity by magistrate. Camarella, 3420-3421]; 54 supra, S.Ct. at v. People 922-923 pp. pp. [104 614, 618, 592, 602-603; (1994) v. fn. Cal.3d see 7 Cal.4th People Machupa 775, 114].) several P.2d The court in Leon noted 1 872 Cal.Rptr.2d [29 1292 circumstances, evidence under to the of seized these admissibility

exceptions however, the in which the warrant is facially situation “so defici- including ent—i.e., in the to be searched or be failing particularize place things it to executing reasonably presume the officers cannot be seized—that Leon, 897, 3405, (United v. 468 923 supra, valid.” States U.S. S.Ct. [104 3421].) for

A officer shift all may police responsibility protection accused’s Fourth Amendment rights magistrate by executing an to be warrant no how deficient it be in may describing places matter a warrant is searched and items to be seized. An officer for applying Camarella, v. (People exercise reasonable required professional judgment. 604; 592, (1992) 11 Cal.App.4th 54 Cal.3d v. Court Bailey Superior 1107, 1114 was cause so probable apparent Cal.Rptr.2d [15 17] [lack unreasonable]; (1988) v. see Maestas People reliance warrant upon 1208, 739].) 1218-1221 Cal.Rptr. Cal.App.3d [252 courts of Defendant relies several cases from federal upon ap- observed, decisions, we rather Such as often have provide persuasive peals. 83, 120, fn. (1994) v. Crittenden 9 Cal.4th binding than authority. 843, 887]; Burton 48 Cal.3d People 885 P.2d v. Cal.Rptr.2d [36 1270].) cited fn. 2 P.2d The cases Cal.Rptr. (9th 1989) Cir. are event. In U.S. Stubbs any distinguishable warrant, 210, 212, held so invalid that a F.2d a search to be facially valid, have it to be reasonable officer could not presumed permitted during all that had been created seizure of accounts business records references to a number of individuals. contained seven-year period - Hawaii, 1989) (9th Art Inc. v. U. Cir. 875 F.2d In Center Galleries S. (id. 752-753) be invalid at permitted the warrant held to facially pp. “ ‘documents, books, which of all records are objects seizure ledgers, ” (Id. 749.) at In U.S. criminal law.’ p. evidence of violations federal 701, 707-708, warrant to be (9th 1988) 844 facially Cir. F.2d held Dozier “ statements, records, ‘written financial invalid authorized the seizure *57 ” books, books, v. Wash- and bills.’ In United States address . . . telephone 807, 819-820, the court held to be (9th 1986) facially 782 F.2d Cir. ington of of evidence the asso- suspect’s a warrant the seizure authorizing invalid with as well as unnamed persons. ciation several named persons any case, contrast, the that the of warrant In the the present by only portion and all “any reference to court to be was the trial deemed overbroad trial correct in that the court was Assuming arguendo finding photographs.”9 overbroad, to the reference to photographs of the warrant be that part items, of and the warrant otherwise speci- one only category encompassed warrant’s failure to items within particularize fied the to be seized. The items not render it so deficient of to be seized did facially this articles category it to valid. no could be that reasonable officer presume the conduct was Finding objectively police officers’ reasonable that, validity even the warrant’s facial assuming

Defendant contends valid the search performing officer in it and presuming reasonable justified authorization, that the to failed to demonstrate prosecutor its the pursuant First, to according in manner. objectively officers acted an reasonable defendant, warrant in of the few of the officers involved the execution cause, warrant, or the affidavit in of had read the actually support probable the the contrary, evidentiary hearing the attached exhibits. To record Ravens, to the who executed the warrant search establishes that Detective warrant, and had read the affidavit in the search apartment, support vehicle, the search had the Detective who executed warrant to the Rooney, and the of the warrant. In warrant his seized items within possession scope Worthen, addition, the Detective who had and Stew- investigated Campbell art cases and had learned of had dis- prior activity, defendant’s criminal officers, Rooney, cussed with the Ravens and the contents the including well affidavit and and the acts under as as presently investigation, warrant criminal acts. charged uncharged previously Second, faith is demon- defendant asserts that officers’ lack good Ravens, of Detective Worthen and Officer which by strated testimony belief, offic- indicated either their or their communication other personal ers, that the were not limited to the items named the warrant investigators crime, gained and could seize once anything possibly relating having In of the entire testimony access automobile. view apartment comments, officers, effect these we do not believe that their isolated to the warrant, could seize items not listed in the demonstrates failure on that they act in objectively their an reasonable manner. part author in the course of a search doctrine plain-view permits, warrant, warrant, if item not listed ized a search seizure of an item, if its in a view lawfully they are from which police position if have a the officers character is incriminating immediately apparent, *58 application the reference to 9 The trial also from warrant court deemed omitted the search accounts, receipts. receipts, gasoline purchase defendant’s bank credit card 1294 (Horton (1990) v.

lawful of access the right object. 496 U.S. California 2301, 128, 2307-2308, 112]; 135-137 S.Ct. 110 L.Ed.2d v. Texas [110 730, 1535, 1541-1542, (1983) U.S. Brown 460 739 S.Ct. 75 L.Ed.2d [103 366, (1993) see Minnesota v. Dickerson 508 U.S. 374-375 (plur. opn.); 502] 2130, 2136-2137, circumstances, 334].) S.Ct. L.Ed.2d In such [113 crime seizure of of in warrantless evidence view is not plain prohibited by Amendment, the Fourth (Ho even if the of the evidence is not inadvertent. discovery 128, 2301, U.S. California, supra, S.Ct. [110 rton 2304].) Where an officer has a valid warrant to search for one item but cause, a not a second merely suspicion, amounting probable concerning item, a that second item is not if found during immunized from seizure (Id. lawful search for the first item. at S.Ct. at pp. 138-139 pp. [110 2308-2309].) in in the context This rule was stated court Horton by high warrant, the circum of a search conducted pursuant notwithstanding stance that in other cases view doctrine in various applying plain contexts, the determination that the nature of an item was incriminating was based whether the officers had “immediately apparent” probable upon or cause to believe that item either evidence of a crime contraband. Dickerson, Minnesota v. 508 U.S. S.Ct. (E.g., supra, [113 Hicks, 2136-2137]; 480 U.S. 326-327 S.Ct. Arizona 1153-1154].) case,

In the of the officers involved in the testimony present in the search indicated their belief that could search for items not listed they in warrant. This read context and considered testimony, light not information their possession concerning only Campbell incidents, their entirely Stewart matters but the other reflected simply appro- that such items be seized if understanding lawfully might reasonably priate believed to be related to criminal Absent indication activity. any that the officers’ conduct was this does demonstrate contrary, testimony unreasonable. objectively between items a nexus Finding authorized nonauthorized

seized that a nexus

Defendant contends that the trial court erred determining items named in the search warrant and the photographs existed between (items not described and the knife found in defendant’s vehicle Shari Miller He the seizure of those items. warrant), in the thereby improperly justifying those items. cause did not exist to seize urges probable above, by of a search authorized As course discussed in the be authorized warrant, may in the warrant the seizure an item not listed

1295 not create an view doctrine does indepen view doctrine. plain the plain clause, but is an extension of the warrant simply to dent “exception” for officers’ “access to an the be the may prior justification whatever 730, 1535, Brown, S.Ct. 460 U.S. 738-739 v. (Texas supra, [103 object.” be from which can view 1541].) they must in a lawfully The officers position area; the items they be to them that it must immediately apparent a particular contraband, crime, or subject of a otherwise be evidence may are observing seizure, access to the have a lawful of right the officers must to lawful 2301, 128, 136-139 S.Ct. v. 496 U.S. (Horton California, supra, object. [110 366, Dickerson, U.S. 374-375 2307-2309]; 508 supra, [113 see Minnesota v. 443, U.S. 2130, 2136-2137]; (1971) 403 v. New Coolidge Hampshire S.Ct. however, 2037-2039, If, 2022, 564].) the L.Ed.2d S.Ct. 29 465-468 [91 immediately is not appar character of an view object incriminating plain ent, (Horton California, v. its seizure. the view doctrine cannot justify plain 2301, 2307-2308]; v. 128, 135-137 Minnesota U.S. S.Ct. see supra, 496 [110 2130, 2136-2137].) Dickerson, U.S. 375 S.Ct. supra, 508 [113 the were seized As we have explained, previously photographs warrant, a later the court to overbroad to to determined trial be pursuant by a the extent it the officers seize and all authorized to “any photographs,” assume, we the sake to be Detective argument, determination for correct. in the belief that the warrant Rooney, acting objectively reasonable valid, Therefore, the seized to that warrant. no basis photographs pursuant has been which to this evidence. presented upon suppress addition,

In the even were faith not available to the good exception justify seizure of the the of the nexus were satisfied. photographs, elements rule seize, Officer and to Rooney was authorized to search the vehicle expressly minimum, at a to Mischa Tracey Stewart. photographs relating Campbell fell, As 100 night negatives Rooney transported bag photographs feet to desk a inside the station in order to examine them. Within police time, Rockwood, short Detective also to the assigned investigation cases, and Stewart that bore resem- Campbell observed photographs Therefore, blance Jane 60. this discovery during Doe No. the officer made (See of the warrant. course search for authorized photographs Horton U.S. 140-142 S.Ct. 2309- California, supra, [110 that were discovered [weapons locating proceeds prior 2311] Rockwood, seized].) Detective named in the warrant were robbery lawfully and realized merely without further examined investigation, photographs 60—thus, Doe it was “immediately apparent” their Jane No. similarity him evidence of a crime or otherwise that the items he observed be might (Id. at object. further search to seizure without subject conducting any Dickerson, 508 U.S. 2307]; S.Ct. at Minnesota p. p. [110 2130, 2136-2137].) S.Ct. *60 The elements of the rule nexus also were established with regard to the seizure of the knife. Detective was in Rooney lawfully position view the trunk, contents of the vehicle and it immediately to him apparent that the knife be evidence might to a relating (Horton criminal incident. 128, 2301, California, supra, 2307-2308]; 496 U.S. 136 S.Ct. [110 Minne Dickerson, 366, sota v. 2130, 508 U.S. 374-375 S.Ct. 2136- [113 2137].) The trial court did err in that the nexus determining rule applied.

(5) that the Finding search was not general or exploratory Defendant contends that the utilized the warrant to police improperly conduct a general, search of exploratory his and vehicle. apartment

The purpose “particularity” of the Fourth Amendment requirement is to avoid and general searches exploratory by de- requiring particular scription the items to be seized. v. New (Coolidge 403 Hampshire, supra, 443, 2022, U.S. 2038-2039]; S.Ct. (1965) [91 v. Texas U.S. Stanford 506, 511-512, S.Ct. 431].) 13 L.Ed.2d [85 court has high however, the rejected, contention that action police disregarding author- ized of a warrant scope transforms the warrant into an impermissible general warrant, search, of the entire requiring suppression fruit of the rather than merely those items as to which there was no cause to probable support seizure—where the officers have not exceeded the of the warrant in scope searched, the places but only items unconnected to seizing the investiga- circumstances, tion or of the crime. In prosecution such when all items seized are unlawfully “there is suppressed, no certainly requirement seized lawfully evidence be as (Waller well. suppressed [Citations.]” 39, 43-44, (1984) 2210, 2214, Georgia 467 U.S. fn. 3 S.Ct. 81 L.Ed.2d [104 31]; 463, 482, Andresen v. Maryland, supra, 427 U.S. fn. 11 S.Ct. case,

2749].) In the present officers searched for and seized items— some that the trial court considered including seized and ordered unlawfully from the suppressed—only in the warrant. “places” designated In that the search was asserting defendant relies general exploratory, the contention made and upon earlier—that the officers rejected executing had not read the contents of the warrant or the affidavit of cause. probable Defendant also asserts that because the officers seized more items not named named, in the warrant than items this circumstance establishes the explor- nature of the search. In view of the information atory possessed by cause, officers the contents of the affidavit of and the charge, probable attachments, did not itself information contained in the that circumstance establish that the search was exploratory. search August traverse quash

b. Motions evidence warrant to suppress issuance supported cause probable Finding affidavit of search warrant *61 trial court in his motions contends that the erred denying

Defendant Defendant the search warrant issued on 16. August and traverse to quash false and the the affidavit were that several of statements contends corrected, that, excised or if were considered such statements misleading finding a were to justify of the affidavit insufficient remaining the contents of the warrant. cause to issuance support of probable 2674, 57 (1978) In v. Delaware 438 U.S. S.Ct. Franks [98 667], a may held that defendant L.Ed.2d the United States Court Supreme the of in an affidavit of probable statements contained challenge veracity made in of a search warrant. When presented cause issuance support hearing must an evidentiary with such a the lower courts conduct challenge, contains (1) if defendant makes a substantial that: the affidavit showing a of that or were reckless deliberately disregard statements are false made contents, (2) truth and affidavit’s after the false statements remaining the the excised, are At the insufficient to of cause. finding probable are justify the if the evidentiary statements are hearing, proved by preponderance reckless, If to be or must excised. the evidence false be considered they contents of the affidavit are insufficient to establish remaining probable cause, that the must be voided and evidence seized to any pursuant warrant (Id. 2676-2677].) be at pp. must at 155-156 S.Ct. suppressed. warrant pp. [98 an affidavit upon A defendant who a search warrant based challenges were the that the omissions omissions bears burden containing showing (See the People Luttenberger determination of cause. material probable 633].) 14-15 & 784 P.2d (1990) 50 Cal.3d fn. Cal.Rptr. Constitution, 28[, I,] (d), article section “Pursuant [California subdivision] is the of Illinois 462 U.S. 213 evaluated test v. Gates materiality , the the circumstances in determining which looks to totality . . . for a good a warrant affidavit establishes cause search. [Citation.]” whether 1, 23.) 50 Cal.3d Luttenberger, supra, warrant, 16 search August In and traverse moving quash affiant, John, that the Detective made contended St. statements eventually false misleading. prosecution that were affidavit the hearing, that an evidentiary hearing necessary. Following conceded trial denied St. John at court length, which Detective testified at to introduce into evidence motion, ultimately permitting prosecution warrant, the double-bladed knife and including items seized pursuant the leather sheath, shoelace-type with yellow paint, wristwatch flecked of white rope. and the section thong, seen June 30- that Shari was

(a) Omission after information Shari that the last whom stated in the affidavit person St. John Detective as identified to visit was a photographer, to have intended was known from her mother’s had made calls Shari defendant through telephone he in the affidavit Detective St. John also stated on June 30. residence Collins, seen Ms. he had last who “informed me that Danny had interviewed to meet a photographer.” . . and that she was going Miller on 1st. July He had testified as follows. Detective St. John the evidentiary hearing, At *62 not Miller had that Shari to infer that it was possible intended the magistrate however, 16, St. John Detective June 30th. Prior to August been seen after associates, believed that who indicated they four of Shari’s had interviewed 4, knew and Detective St. John 1 and July July had seen Shari between they also had 4. Detective St. John been killed to prior July that Shari had not in the defendant and Shari store had seen learned that of a camera employees addition, had observed Detective St. John 1. In July store on approximately 1, rose, and dated discovered July Shari’s signature of a drawing bearing a not John did Detective St. of Shari Miller’s vehicle. the search during in the affidavit. include this information in selective St. John had been determined that Detective

The trial court conveying the intention of with magistrate, information to the providing The court in death. role Shari’s defendant’s regarding particular impression reckless disre- intentional or demonstrated an that Detective St. John found associates, interviews with Shari’s to mention his of the truth in failing gard found, also 1. The court him had seen her after July who had told they informa- however, affidavit, include this considered as amended that the of the tion, issuance cause supporting was to establish probable sufficient information, that, Detective in of this light The observed even warrant. court magistrate a conclusion making John remained “justified St. 30, 1984, named to see a photographer that Shari Miller intended after June between the time Bill, time—during this during saw Mr. Bradford that she died, foul met with play.” and that she at which she 30 and the point June misled by have been would not that the magistrate It does appear brief, the in his the fact acknowledged defendant has not affidavit. Although between defendant itself, contact after there had been indicating affidavit Collins had seen Shari on Danny July June stated that and Shari on not frame of Shari’s exact. As that the time disappearance suggesting observed, the affidavit described the discovery General has Attorney her on estimate of death as No. 60 and noted coroner’s July Jane Doe between 36 48 hours that also previously—information occurred having or after June 30. Shari had been alive for so day suggested Moreover, statements did mislead the even omitted assuming magis- June Shari last had been seen alive on those omissions trate believe of the not circumstances. light were material clearly totality discovered through affidavit stated that the had police photographs that Shari through search and records fingerprint recovered in previous own No. also had discovered defendant’s through was Jane Doe had he with Shari and taken statements that was photographs acquainted that the her The affidavit her within several explained days disappearance. at lied about the and location had determined that defendant had date police taken, been taken were that Shari’s had photographs which the photographs desert P. in the where Julianne at the same location approximately Mojave discovered, had both and where been Tracey’s body been raped in a The trial court did err murder victims were killed similar manner. that, informa- considered as amended to include the above described finding tion, the affidavit established cause. probable *63 custody in

(b) already police to search items Request for automobile, a of On St. John led search Shari’s Detective August other The removed belongings. police her and containing clothing personal items, five pierced which a spoon ring, and inventoried included silver bracelets, wrist silver of cutoff a black earrings, jeans, strap, two two pairs and a of brown pair thongs. items, John sought of similar Detective St.

Despite prior recovery a “women’s ring,” in the for “silver spoon authorization warrant search shorts,” bracelet,” a “female watch a “blue cut off earrings,” pierced “gold band,” as shown in series of 9 with black and “female any clothing [a] affidavit, to the depicting of Shari Miller” as exhibits photographs attached band, wrist of blue brown a thongs, her a cutoff a wearing pair pair jeans, did not state that Shari’s vehicle probable and affidavit cause jewelry. inventoried, nor were police earlier been that similar articles already custody. due John failed to exercise that Detective St.

The trial court determined that already spoon ring for the silver care in search seeking authorization was in The court also found police custody. Detective St. John negligent “not more and fully which explicitly revealing items were already police custody and for his reasons for expressing requesting permission search for sets additional of those items.”

Defendant contends that Detective St. John knew or should have known that the silver spoon was in ring already police and that his custody, request to search for this article demonstrated an intentional or reckless disregard the truth. Detective St. John testified that on he August directed personally articles, of the taking inventory of the photographs as well as the of the preparation The silver property report. of Shari’s spoon ring many item, were belongings included within one “one red duffle containing bag miscellaneous the contents of which objects,” Detective St. John did not examine or record. The evidence does not establish that at he the time cause, the affidavit of prepared Detective probable St. John had personal knowledge seizure of the prior spoon ring.

Defendant further contends that even if Detective St. John did personally not know the was in spoon ring other police custody, officers inves- police seized, Shari’s death had tigating item personal this had been knowledge and should have so informed Detective St. John. it is Although the rule that the insulate one “police officer’s deliberate [cannot] misstate- ment it merely by an officer-affiant relaying through personally ignorant (Franks Delaware, 154, 163-164, its 438 U.S. falsity” fn. 6 [98 2674, 2680]; (9th S.Ct. U.S. v. 1992) DeLeon Cir. 764), F.2d in the nothing record indicates that the officers who police searched Shari’s vehicle withheld from deliberately Detective St. John information that the had been spoon ring seized earlier. The trial court did not err in determining that Detective St. John merely negligent.

Defendant also contends that additional items Detective St. sought by bracelet, John—pierced cutoff earrings, gold woman’s watch with jeans, band, black and a of brown pair were in thongs—already police custody, *64 the inclusion of them in the affidavit demonstrated an intentional or reckless of the truth. disregard Detective St. John testified he had observed that Shari ears, and he knew pierced she wore occasionally pierced earrings. Although Detective St. John was aware that had been pierced earrings vehicle, recovered from Shari’s he was not unreasonable in certainly seeking their seizure based the surmise upon that she owned additional pierced earrings. bracelet in gold appearing the and listed in the photographs affidavit was distinct from the two silver clearly bracelets that the police held in already custody. Music,

Detective St. John testified that Doreen a criminalist with working John, Detective St. of cutoff with compared pair in the jeans photographs

1301 vehicle, the two of cutoff recovered from Shari’s jeans was unable pairs either as those Shari wore in the positively identify pair photographs. Detective St. John observed that the in the pair thongs depicted photo- was the same color as the in and he did graphs pair already police custody, not know whether Shari owned additional Detective St. John was any pairs. to determine from an unable examination of the whether the photographs watch, black wrist worn Shari included a or whether it matched the strap black wrist found inside her vehicle. strap evidence,

We have reviewed this it that the items does appear recovered from the vehicle matched those Although photographs. in the thongs resembled pair depicted pair already photographs were police custody, thongs nature and it was not unreason- fungible addition, able to conclude that Shari have In may owned additional pairs. officer who seized the watch with flecks was yellow aware Shari’s paint recent as a a circumstance that activity painter, supplied independent prob- able cause for seizure of that item. we conclude that the trial Accordingly, court did not err in finding Detective St. John should have although disclosed in his affidavit that items similar to those in the photographs were in already his failure to police custody, do so merely negligent and was not intentional or reckless.

(c) Omission searches relating prior of information Detective St. John did not describe in the affidavit the two searches prior that had been conducted defendant’s and vehicle on apartment 16 and July 31. These July searches consisted of a consensual and search cursory conducted aby officer on single police and the July more extensive ante, (discussed, search 1285-1297) pp. conducted to a pursuant warrant by several officers on July 31. The trial court found that the 16 affidavit August search, referred several times to the 31 that the July attachments to the later affidavit included a of the earlier copy warrant and the related property return, and that the had sufficient time to magistrate read the contents of the 16 attachments, affidavit as well August as portions including return, warrant and prior would have reasonably understood there had been a search on prior before July issuing August warrant.10

Defendant contends that (9th 1988) U.S. v. Whitworth pursuant Cir. F.2d (Whitworth), 1281-1282 it was not for law enforcement “proper brief, 10 In appellate his August defendant contends probable that the 16 affidavit of cause searches, did expressly not refer July July either to the 16 or or to the circumstance *65 search, released, following the latter charges defendant was arrested and with no filed. suggests Defendant further that the probable July warrant and affidavit of for 31 cause the may search not have been attached as August probable exhibits to the 16 cause. affidavit August The search, 16 affidavit itself expressly July does not refer it to the 16 nor does specify Nonetheless, affidavit, the date of July the 31 August referencing search. the 16 a 1302 to withhold information

officials searches of the regarding same prior pre- mises for warrant magistrates considering That decision applications.” others have observed that case has declined to prior authority establish a per “ searches, se rule consecutive ‘in against the absence of presuming, some to the that officers their showing contrary, duties and perform properly ” 1282; (Id. execute the in their hands.’ at processes placed p. Filippelli (9th 1925) 125.) United States Cir. 6 F.2d Whitworth,

In a warrantless but consensual search was conducted of the residence, defendant’s and a second search to a warrant was pursuant (856 1278-1279.) conducted 11 later. F.2d The court found the days intentional failure to in the subse- mention the initial search government’s concluded, however, affidavit to be It that the consent- quent “problematic.” based search had not been as as a warrant-based performed thoroughly been, search would have and that cause still existed for the probable case, (Id. 1282.) search. at In the 16 subsequent p. present similarly, July consensual search of defendant’s and vehicle was apartment extremely in nature and did not cause to believe that incrimi- cursory negate probable evidence would be found a search based nating during a subsequent upon warrant.

Moreover, searches, with to the warrant-based regard subsequent is case distinct from Whitworth in two present factually important respects. First, the 16 affidavit referred to a search con- August expressly previous warrant; a ducted the affidavit’s attachments that it pursuant specified occurred on 31 and documentation of the of that search July provided objects Second, as well as its results. the issuance of the second search warrant was based of additional criminal upon showing activity. cause 31 search warrant was probable supporting July predicated defendant’s connection with two incidents in the “westside” of

upon arising Los on 12 and Angeles—the disappearance Tracey Campbell July exhibit, clearly particular does refer to Detective Worthen’s search and to defendant’s arrest murder, specifying for that at that time defendant had informed the detective that he last had addition, warrant, original August seen Shari on June 30. In we have reviewed the 16 affidavit, exhibits, copy July and all attached which include a of the 31 search warrant and (the search) probable referring July affidavit of cause latter document itself to the as well as the return to that search warrant. itself, Accordingly, considering August by magistrate even would have affidavit previously prior ascertained that defendant had been arrested and a search had been conducted Moreover, during prior August magistrate appears sometime the six weeks 16. it search, presented virtually July including description with the entire record of the Nothing August seized in search. in the trial traverse the quash items court motions to evidence, suppress and the motions to filed oppositions warrant related or in the suggest issuing magistrate. prosecutor, that this information somehow was not before the *66 of Mischa Stewart in October 1982. 31 search Following July murder vehicle, and but to the for a prior defendant’s search apartment application warrant made on had made several police discoveries. August major Lancaster, found in the desert area near as Tracey’s body, provided specifics to the and manner of her Shari’s location death. had been identified in body admitted defendant’s of her and he had through part possession photographs, his and contacts with her to her personal acquaintance just prior disappear- that, others, combined with information ance—circumstances provided by Further, connected defendant with her death as well. as Detective St. John testified, defendant’s from cus- release during period following police on 3 until his re-arrest on defendant had the tody August August on human to conceal small items his or opportunity person—jewelry parts— and transfer them to his in the Even had it been apartment. emphasized affidavit of 16 that two been conducted August searches had prior separate within one-month could have concluded magistrate period, reasonably that additional cause existed to conduct a third search. probable that the search was not Finding general and exploratory

Defendant contends that the trial court erred in his motion denying all evidence seized in the suppress 16 search on the August ground the search was and The search general warrant issued on that exploratory. date authorized the to search defendant’s and police “all facilities apartment structure, units, within basements, attics, or garages and all storage containers located either inside the or on the premises grounds premises use,” for designated their a 1965 a 1984 Dodge, Dodge Daytona, Datsun, and a Del Marina area Rey storage rented to Talbot. The Olga warrant numerous items of specified property, which con- majority Shari, sisted and clothing worn or jewelry by camera Tracey equipment film, hair, and cigarettes, of Los maps Angeles, human such as specimens, blood, fluids, books, and defendant’s body bank credit cards and receipts, mail order as well as knives and catalogues, instruments. The sharp cutting items, return the search warrant reveals that a number of additional vehicle, medicines, toiletries, an additional including and miscel- magazines, laneous were seized. papers,

A was conducted at hearing which the officers the search conducting for testified Talbot testified for the defense. The prosecution Olga trial court determined that the search exceeded the authorized scope warrant the search of a vehicle and several encompassed lockers storage not named in the warrant. it ruled that seized Accordingly, evidence during the unauthorized of the search could not be introduced trial portions at items, ordered numerous suppressed a belt buckle with a motor- including that the cycle logo prosecution to admit at trial. trial court sought *67 however, defendant’s motion to all evidence seized rejected, suppress during search, the that including lawfully seized—a motion the premised upon that the conduct of the inwas theory police “flagrant disregard” of search authorized the and must be a total scope punished by suppression of evidence. of the search did Although remarking “portions possess and that the seizure of numerous items exploratory qualities, of property broad,” the trial court found that “the officers had not acted overly in bad faith,” and that “the of the items seized” were majority seized The lawfully. court concluded that “whatever criticism be directed toward the conduct may of this search it does not to particular rise to the level of the appear egregious misconduct which the the justifies of ultimate sanction of total imposition of items seized the course of suppression during this search.” (a) Restriction scope inquiry of of contends, search,

Defendant as he did with to the that the respect July trial court limited the improperly scope hearing the by declining permit defendant to introduce all of the individual items seized police. record reflects that defendant’s motion each item seized. The catalogued officers who testified were police examined numer- extensively concerning ous items seized. The defense motion as well as the return to the warrant recorded the number and of items seized and the areas searched. The variety court, entire record of the reflects that the trial on the proceedings ruling motion, was of the areas searched that were not cognizant clearly designated in the warrant and the nature and number of items seized that did not pertain to the directly subject therefore could evaluate investigations, properly whether the search was in nature. The trial court did not err in exploratory declining the introduction into evidence of permit every single item seized.

(b) that the were Finding police “flagrant not in disregard” of the search scope authorized Defendant contends that the officers’ failure to executing peruse search, contents of the warrant to or their failure to limit the prior during warrant, area of the search to those areas described and their failure to confine their seizures to those items in the warrant demonstrate designated that the officers’ conduct was in of their “flagrant disregard” scope defendant, authorization. prior conduct According improper police seizure, necessitated total of the fruits of the those suppression including items seized within the of the warrant. scope above, footnote,

As noted court in Waller v. Georgia, supra, the high U.S. discussed and the defendants’ contention that the rejected the warrants in disregard[ed]” scope conducting so “flagrant[ly] police turned the warrants into war they impermissible general the seizures rants, search, of the entire fruit of the rather than requiring suppression items as to which there was no cause of those merely suppression probable 43-44, 2214].) fn. 3 S.Ct. at The court (Id. seizure. at p. support pp. *68 did not assert that the officers exceeded the scope noted that the defendants unlawfully of searched but that the places the warrant in the only police all unconnected to the Because seized and took items away prosecution. these circum were seized were items that unlawfully suppressed, “[i]n stances, be seized evidence there is no certainly requirement lawfully 427 (Ibid.; supra, as Andresen v. Maryland, well. suppressed [Citations.]” 463, 482, 2737, 2749].) 11 S.Ct. U.S. fn. [96 39, number of v. 467 U.S. a Georgia, supra, Waller

Subsequent observed, that, decisions of the lower federal courts—decisions as earlier Crittenden, v. su rather than binding authority (People provide persuasive 83, 120, 3)—have Cal.4th fn. addressed the issue. The 9 pra, foregoing Ninth Circuit has the footnote in Waller to mean that when the interpreted seize items in of the limitations police flagrant disregard imposed by warrant, search a blanket seized to the both of items suppression pursuant (U.S. warrant and those seized outside the of the warrant is mandated. scope 440, 444; (9th 1993) (9th 1992) v. Mittelman Cir. 999 F.2d U.S. v. Chen Cir. 714, 716-720; (9th 1985) F.2d 979 United States v. Cir. 777 F.2d Crozier 1376, 1381; 597; 591, 1982) (9th see United States v. Tamura Cir. F.2d 694 418, (9th 1978) 423.) States v. United Cir. 589 F.2d The Rettig majority other circuits also have concluded that conduct flagrant disregard police of the warrant evidence scope total may justify suppression 1099, 1105; (U.S. (1st 1989) seized. v. Cir. F.2d U.S. v. Matias Young 877 744, 747-748; 1988) 1994) (2d (4th Cir. 836 F.2d v. Jones Cir. 31 F.3d U.S. 1304, 1314; 1374, 1383-1384; (6th 1988) v. U.S. U.S. Henson Cir. 848 F.2d 779; 773, (8th 1992) (8th v. Decker Cir. United States 956 F.2d Marvin v. 669, 674-675; 1984) (10th 1986) Cir. Cir. 732 F.2d United States v. Medlin $149,442.43 407, 410-411; (10th F.2d U.S. v. U.S. Cir. Currency 798 868, 875; 1568, 1992) 1989) (11th 965 F.2d U.S. F.2d v. Lambert Cir. 887 1572-1573; 1343, (11th 1982) United F.2d States v. Cir. 683 Wuagneux 1354; 850, 322]; (D.C. U.S. 1991) v. Cir. F.2d 858 Nicely App.D.C. [287 1238, (D.C. 1981) United States v. Heldt Cir. 668 F.2d 1259-1260 [215 the “fla 206].) one circuit has declined adopt App.D.C. Only expressly (U.S. (5th Willey grant disregard” standard blanket suppression. requiring 1374, 1995) Cir. 1390.) 57 F.3d Chen, 714,

In States Court of Appeals U.S. v. the United F.2d supra, 919 of all evidence is an for the Ninth suppression Circuit that the explained used when the violations of the extraordinary remedy, only warrant’s re- are so extreme that the search is transformed an quirements essentially into (Id. 717.) search. at impermissible general p. courts have rarely actually concluded that conduct was so extreme as to police warrant total suppres- sion. The has been when the remedy justified exceeded the police “scope 39, (Waller the warrant in the searched” v. Georgia, 467 U.S. places supra, Decker, 2214]; 779), fn. S.Ct. U.S. v. F.2d supra, 956 used the warrant as a to search for evidence of unrelated police pretext (United 423), crimes States v. or the were Rettig, supra, 589 F.2d police ’ ” motivated a desire to rather than indiscriminate ‘“by engage “fishing” 714, 717; Chen, F.2d (U.S. “considerations practicality” 1194, 1199).11 (10th 1988) Cir. The mere magnitude U.S. v. Medlin 842 F.2d Constitution. of the seizures does not establish violation of the federal *69 Lambert, 1568, 1572-1573; (U.S. Wuag- United States v. supra, 887 F.2d neux, 1343, 1352.) 683 F.2d supra, that the of total is when

Assuming police remedy suppression required warrant, we conclude conduct is in of the limits of the that flagrant disregard in the case the trial court found that the of that present properly application extreme was not warranted and items not covered remedy only suppressed the warrant. the record indicates the officers searched by Although vehicle and several locker that were not in the areas named storage clearly warrant, no it also establishes that defendant had reasonable expectation with to the vehicle of the locker privacy regard and certain areas. It is also that other locker such areas which he had a reasonable apparent expecta- tion of were close vehicles privacy within to the as well as to the proximity lockers identified at the scene as used the inhabitants of defendant’s being by residence. outside the officers seized a number of items that fell

Although clearly warrant, of the these items record reveals that the bulk of might scope Tamura, (United have had some the current offenses. States v. bearing upon 591, 597.) 694 F.2d The remarks witnesses indica- supra, by police several tive of a broader do not establish a of the limits flagrant disregard purpose the warrant when considered the context of the total testimony. to unrelated officers have entertained the that evidence may hope pertaining discovered, that the search was crimes also would be but it is very apparent of unrelated crimes. for a search for evidence simply pretext general not been briefed or The record does not demonstrate that the officers had contexts, Supreme subjective intent 11 Inother search-related Court has commented ” “ itself, (Whren v. illegal ‘does not make otherwise lawful conduct or unconstitutional.’ _ _ 1769, 1774, 89]; (1996) United States 135 L.Ed.2d Scott v. United States U.S. S.Ct. [116 1717, 1723-1724, 168].) 436 U.S. S.Ct. 56 L.Ed.2d Heldt, (see United States v. supra, to the search objects as prepared 1238, 1259-1262), their search amounted to a “fishing or that F.2d Medlin, 1194, 1199-1200.) 842 F.2d Nor was (Cf. U.S. v. supra, expedition.” to a due officers so unconscionable as amount process the behavior of the Tamura, 597.) Under these F.2d (United States v. violation. circumstances, the “extraor- court did not err in to order declining the trial of all items seized. of total suppression dinary remedy” 16,1984, statements to the August c. Motion suppress defendant’s police trial, of statements moved to the evidence

During suppress 16. Out on August an conducted during interrogation by police he made defendant’s on hearing the trial court held a jury, of the presence evidence, was testimony following at which the motion suppress presented. De- on 6:45 p.m., defendant’s arrest at

Upon August approximately him in interrogation tectives St. John and Melleker to interview an attempted secretly at Parker Center in downtown Los The conversation room Angeles. SID), was (hereafter, the scientific division taped by investigation *70 St. additional device inside briefcase that Detective an taped by recording The detectives informed defendant John to the room. brought interrogation to to were division and wanted they speak part robbery-homicide him with him about Shari Miller and After they provided Tracey Campbell. Miranda, detectives that the advisements defendant informed the required Detective St. John he wished to have his attorney present dining questioning. briefcase, switched off and defendant was the device his recording the escorted from the The detectives left room to his telephone attorney. room and instructed SID to cease recording.

At unsuccessful attempts 6:50 several approximately p.m., following room, contact his back to the interrogation defendant was escorted attorney, Worthen, where he Detective who was handcuffed to a chair and left alone. had been earlier that had informed mother that day Tracey’s Tracey’s body desert, room, discovered in arrived at the squad the and who recently constitutional Several rights. was informed that defendant had invoked his later, and had a minutes Detective Worthen entered the room interrogation the brief with Worthen returned to squad conversation defendant. Detective out to and defendant had called room informed Detective St. John that Detective he now was to answer ques- Worthen and indicated that willing the At 7:25 p.m., tions without his attorney. approximately presence detectives, and the Detective St. John advised SID recommence taping, having repeated the advisements to Miranda and pursuant received a waiver defendant, from rights began him. At times question during the defendant, interview, who be did appear injured, laughed and engaged the friendly conversation with detectives. The interview continued for two hours until approximately defendant an requested and the attorney ceased. questioning

theAt the two hearing, parties presented contrasting accounts the conversation between Detective Worthen defendant that preceded that, interview. Detective Worthen testified as he was walking past room, said, Worthen, interrogation defendant you?” “Detective can I talk to room, After Detective Worthen entered the stated “did not defendant he that, understand what was on.” Detective Worthen informed him going just as in earlier session when Detective Worthen had questioned about Detectives St. John and now to ask Tracey Campbell, Melleker wanted him about Shari Miller and some about last time that photographs, defendant had seen Defendant said Tracey Campbell. he understood and now would be to answer the willing questions of detectives. This conversation minute, with Detective Worthen continued for one approximately following which Worthen left the interrogation room.

Defendant testified that Detective Worthen entered the initially interroga- tion room prior to time defendant was escorted outside to contact his attorney. the course of his During testimony, defendant indicated after chair, he was returned to room and interrogation handcuffed to the and, Worthen, door was closed within three minutes Detective whom defend- arrest, ant knew from the his interrogation entered the following previous room initiated a conversation with defendant. in- Detective Worthen formed defendant that he find would himself “in if he great bodily injury” *71 John, did not with cooperate Detective St. that Worthen Detective had just found, returned from desert the where had been and that if Tracey’s body John, defendant did to Detective St. would speak Worthen take defend- the ant to desert leave in and him the same condition as Tracey.

Following this the was re- testimony, When it was hearing interrupted. later, sumed five testified the days defendant that door to interview room room, had been only closed. After Detective Worthen entered the in partially comments, addition to he had defendant’s shirt making threatening grabbed him, back, with both hands and shaken and had him the at lower punched which defendant hear point could his ribs cross-exami- “popping.” During nation, defendant further that a gun testified Detective Worthen forced throat, teeth. Defendant testified that down defendant’s his Detec- injuring tive Worthen’s threat to hurt defendant was not made conditional on defend- ant’s confession.12 defendant, to Detective Worthen left the

According room Detectives returned, John and St. Melleker When recommencing questioning. defendant Worthen near nothing, said Detective returned and remained the door until he was defendant indicated to answer Detective willing questions. Worthen remained for the first On more doorway interview. than one part occasion, evasive, when Worthen defendant became Detective to began move inside the room. Defendant fear for when he decided to was in his life answer the the entire answered them his will questions, against during two-hour Defendant interview. conversation with the engaged friendly detectives in an to attempt them. Several times the course of pacify during interview, defendant to to his requested speak attorney. Eventually, interview, defendant terminated he himself to be in still felt although physical danger. interview,

Defendant further testified that was during he asked several P., questions his concerning alleged Julianne for which he rape faced defendant, formal that were trial. charges to approaching Attor- According Gottesman, Mark who ney defendant in that case and whom represented cases, defendant had in the retained two to contact present defend- attempted at ant 10:45 that but was evening, informed that was in defendant transit. defendant, According that evening, of his book- following completion he asked to be examined ing, by a that physician, indicating jail guard he had suffered to his injuries ribs and was trouble The having breathing. following defendant day, was examined who by filed a physician report describing defendant’s complaints. physician’s indicated that report defendant had that his stated lower hurt ribs and a rib had after he popped hit in that area Detective Worthen.

theAt conclusion conceded that hearing, prosecution any defendant’s made statements during the interview the Julianne pertaining P. case were inadmissible. The trial court and ordered the agreed references incident redacted from the to be tape presented to the transcript court, The trial while jury. that the noting tape demonstrated *72 detectives, paused to to to the prior assenting talk determined that that, 31, 12 Inaddition testified July prior defendant on the occasion of his earlier arrest on defendant, interrogating punched Detective Worthen had three defendant or four times in cage. rib prompted That interrogation conduct defendant to talk to the The detective. hours, days, lasted 16 on 2 separate attorney. and ended when an requested defendant 1310

defendant’s waiver of his subsequent right have counsel present dining the interview was valid and The trial court voluntary. based its determination defendant, the relative of Detective Worthen upon credibility and upon the absence in the or tape transcript any reference to the that he had received injuries allegedly the interview. prior

(1) Amendment privilege against Fifth self-incrimination

Defendant contends that the statements were obtained violation of his Fifth Amendment privilege self-incrimination. against standards enunciated in Miranda were to assure “designed protection federal Constitution’s Fifth Amendment against self-incrimination privilege under coercive’ (1993) circumstances.” v. 5 Cal.4th ‘inherently Sims (People 405, 537, 992].) 440 853 P.2d Cal.Rptr.2d [20 Statements obtained by in violation of Miranda police (ibid.) are inadmissible to establish guilt, I, 28, to the

“[Subsequent (d) of article section adoption subdivision Constitution, of the California we federal apply standards reviewing defendant’s claim that his or her statements were elicited in violation of Crittenden, 83, 129; Miranda.” Sims, v. (People supra, Cal.4th 9 v. People 405, 440.) supra, Cal.4th “ Miranda,

Under the familiar standards of ‘a not be suspect may to custodial subjected unless he or she interrogation and intelli- knowingly silent, has waived the gently right remain to the of an presence attorney, and to appointed counsel the event the is suspect indigent.’ [Citation.] ‘Once invoked having these the accused rights, “is not to further subject him, interrogation by authorities until counsel has been made available to communication, unless the accused himself initiates further or exchanges, ’ Crittenden, conversations with the police.” (People supra, [Citations.]” 83, 128; 477, Cal.4th see (1981) Edwards v. 451 U.S. 484-485 [101 Arizona 1880, 1884-1885, 378]; S.Ct. Arizona, 68 L.Ed.2d Miranda v. supra, 436, 444-445, 1602, U.S. 1612-1613, 1627-1628]; 473-474 S.Ct. see [86 also (1991) McNeil v. Wisconsin 501 U.S. 176-177 S.Ct. [111 2207-2209, 158]; 115 L.Ed.2d (1988) v. Roberson 486 U.S. Arizona 2093, 2097-2098, 680-682 “If, S.Ct. 704].) 100 L.Ed.2d subsequently, there is no break in assuming initiate a in the custody, police meeting counsel, absence of statements are suspect’s presumed involuntary trial, are inadmissible as substantive evidence at even if the executes suspect a waiver and the statements would be considered under traditional voluntary Crittenden, standards. 128.) Cal.4th [Citations.]” accused, however, “The initiation of further does dialogue by not in itself justify Bradshaw 462 U.S. reinterrogation. (Oregon v.

1311 2834, 2830, 405].) 1039, L.Ed.2d if a conversa- S.Ct. 77 1044 ‘[E]ven [103 his desire to deal with the after the accused has “expressed tion taking place accused, counsel,” where reinterroga- is initiated through by police only subse- follows, to show that the burden remains prosecution tion upon to have Amendment indicated a waiver of the Fifth right events quent Sims, 5 v. (Ibid.)” supra, (People counsel interrogation.’ present during Therefore, be resumed 405, 440.) may it is clear that a conversation Cal.4th initiates further himself if the “accused only in the absence counsel (Edwards v. communication, the police” or conversations with exchanges, 1880, 1885]) Arizona, 477, 451 U.S. 484-485 S.Ct. supra, [101 knowing intelligent made a indicate that the accused has circumstances (1983) 462 U.S. Bradshaw to an v. right attorney. (Oregon waiver 2830, 2834-2835, 405].) 1039, L.Ed.2d 1044-1045 S.Ct. 77 [103 is claims of this nature of our review of constitutional scope trial must well established. When the facts are we accept disputed, inferences, and its evaluations court’s resolution of facts and disputed Crittenden, supra, if are v. credibility, substantially they supported. 83, 128.) Cal.4th We must determine from the undisputed 9 independently court, facts, and those found whether the challenged trial properly by (Ibid.; (1993) statements were obtained. v. Johnson 6 Cal.4th illegally People 1, 593, 673]; (1990) 50 25 859 P.2d v. Mattson Cal.Rptr.2d People [23 826, 802, 983]; P.2d v. Boyer Cal.3d 857-858 789 Cal.Rptr. People [268 610].) P.2d Cal.3d Cal.Rptr. [256 case,

In on” defendant’s as to “what was present going query would not in itself his reinitiation of have been sufficient to establish Bradshaw, S.Ct. contact. 462 U.S. (Oregon supra, 2833]; Sims, 405, 440.) 5 Cal.4th to Detective People According Worthen, however, ex- defendant went further and on his own initiative his with the detectives. The record of the pressed willingness speak that, commencement, ex- interview confirms at its defendant subsequent readvisement of his willingness following rights pursuant pressed speak Therefore, to Miranda. with to whether defendant’s reinitiation respect established, communication and waiver were knowing voluntary or defend- determination turns whether Detective Worthen’s version upon ant’s version of their was the more credible one. meeting

The trial court’s resolution of the facts and inferences disputed pertaining witnesses, to the contact between the two and that court’s evaluation of their hearing. is the evidence adduced at the credibility, substantially supported confirmed in various Detective Worthen’s account was and was plausible John, Worthen and both with that of Detective St. who respects by spoke to and their encounter. prior following *74 1312 contrast, defendant’s was inconsistent in a number of testimony

By par- ticulars, as to whether Detective Worthen him including approached prior or his defendant’s contact whether the door following attempts attorney, room was or closed when Detective Worthen interrogation open him, and whether Detective Worthen was approached present during Defendant also to embellish his recollection interview. of asserted appeared conduct, of Detective Worthen’s threats or violent instances after defendant to reflect had had an circumstances their encounter. opportunity upon Defendant, mentioned verbal threats the initial having only during portion assaulted, his five later described and still testimony, days being physically with later cross-examination stated he had been attacked and during injured a defendant Detective also an earlier attack gun. Belatedly, reported claimed initial Worthen that he him had induced in the participate above, interview on 31. As described that lasted commencing July interview several hours on that date and seven to ten hours on the date until following an requested attorney.

Moreover, defendant’s was in- credibility impaired by tape-recorded that, terview itself. defendant testified been Although just having punched the ribs and in the mouth with a he was in fear the entire injured gun, during interview, the of that interview reveal that he and had tapes laughed friendly conversation with his interviewers. Defendant he testified that an requested interview, as as four times but and attorney many during tape reveal no such Nor do the transcript requests. tapes transcriptions interview previous attack had occurred. suggest any prior In view of the the trial court’s determinations that testimony presented, defendant had initiated the renewed his waiver questioning, express were knowing substantial evidence. Ac- voluntary, supported by we sustain the trial court’s that defendant waived his Fifth cordingly, finding Amendment self-incrimination. privilege against

(2) Sixth Amendment to counsel right

Defendant contends that the statements were obtained violation of his Sixth Amendment to an under Massiah v. United States right attorney 201, 1199, (1964) 1202-1203, 246], 377 U.S. 205 S.Ct. 12 L.Ed.2d [84 that, attached, which once the to counsel has provides right subsequent waiver Because accused during interview is ineffective. an police-initiated has a Sixth Amendment to counsel with to formal right charges only respect however, Massiah incrimi- those brought, requires suppression only statements made such 53 nating concerning charges. Sully 1195, 144, Cal.3d 1233-1234 163]; 812 v. Hovey P.2d Cal.Rptr. People [283 776]; (244 P.2d see In re (1988) Cal.Rptr. Cal.3d 1222].) 838 P.2d (1992) 3 Cal.4th 950-951 Cal.Rptr.2d Wilson to a regard particular charged after an accused has counsel with Even *75 offense, following he or be Miranda advise- may questioned by police she Wisconsin, (McNeil v. supra, ments with to offense. any uncharged respect 2204, 171, 2207-2209].) S.Ct. state- 501 U.S. 175-177 Incriminating [111 offenses, to those as to which the Sixth Amend- ments uncharged pertaining attached, has not are admissible at a trial of those ment right yet subsequent 159,180, 477, (1985) 474 U.S. fn. 16 S.Ct. (Maine offenses. v. Moulton [106 1195, 489, 1234.) 481]; 53 Cal.3d Sully, 88 L.Ed.2d v. People supra, of he without benefit Defendant contends that the statements made counsel, for had not been formally the offenses which he concerning yet (the murders of Shari Miller and charged Tracey materially Campbell), with to the interfered his to with right representation respect formally issue, (the P.). offense of Julianne In the both charged rape addressing defendant and the or People implicitly explicitly rely upon language 1195, v. 53 Cal.3d which stated that interference People Sully, supra, such with the offense occur right representation regarding charged might “ where the offenses are ‘so enmeshed charged uncharged inextricably it factually was conceptually virtually impossible distinguish ” (Id. 1234.) events.’ at The circumstances of the earlier and those of p. rape murders do not meet those criteria. As our more recent present clearly clear, decisions make defendant’s Sixth Amendment counsel had not right murders, attached in the yet and the circumstance that present, uncharged defendant had been previously charged and incarcerated and counsel ap- in the unrelated pointed wholly does not conclusion. rape compel contrary 494, 779, (1993) v. Webb 6 Cal.4th 862 P.2d Cal.Rptr.2d [24 779]; 610, (1993) 788, v. People Wader 5 Cal.4th 635-636 Cal.Rptr.2d [20 80]; 629, 854 P.2d (1992) v. Clair People Cal.4th 657-658 Cal.Rptr.2d [7 564, 705].) 828 P.2d

Moreover, even that the trial court erred in defend assuming admitting statements, that, admissions, ant’s and further considered as assuming these were to the same subject standard of review for prejudice applicable (Arizona 279, (1991) confessions v. Fulminante 499 U.S. 306-310 S.Ct. [111 1246, 1262-1265, 113 L.Ed.2d constitutional “trial error” such 302] [federal as admission of confession to harmless error of involuntary subject analysis 824, 17 Chapman (1967) (87 386 U.S. 18 S.Ct. L.Ed.2d California 1065)]; A.L.R.3d v. Cahill 5 Cal.4th 509-510 People does Cal.Rptr.2d 853 P.2d Constitution not require 1037] [California standard]; Sims, 447), stricter see 5 Cal.4th People admission of The substance of defendant’s this evidence was not prejudicial.

account had simply given confirmed statements he at the interviews following his arrest on 31. July Although defendant informed the officers Shari, a few new details of contacts with as his such that she had arranged (but failed) to meet defendant at Meat Market subsequently bar on she the same visited at his evening day (in defendant his apartment account, June), the last during new he occurring part information was not itself a few provided incriminating. Although provided additional details of his with meeting family, Tracey’s reported dropping at a on Tracey shop off coffee Venice Boulevard rather than on the as comer he defendant did not alter previously materially the substance reported, account, his and the previous information he provided inculpa officers, *76 tory. the defendant that Although advising they could place in defendant and Shari in the same desert which had location Tracey’s body discovered, been did defendant’s that “I it to elicit statement can’t explain nonetheless, one officer when asked defendant he had you,” directly whether Shari killed or defendant sir.” “No There is no reasonable Tracey, responded that the would verdict have been more favorable to possibility these statements not been admitted. v. U.S. (Chapman California, 386 supra, 18, 824, 34 832-833].) S.Ct. [87

2. Denial motion severance murder the two counts of for of

Defendant contends that the trial court denied his improperly motion to sever trial on defendant’s the count alleging Tracey murder from the Campbell count the murder of Shari In alleging Miller. particular, he contends that in its determination making that evidence would have been cross-admissible in trials of the separate because existence of a com- modus trial mon court operandi, erred in relying upon circumstance Shari Miller was in murdered the desert. Defendant asserts that common features of each murder were not sufficiently unique establish modus He common also operandi. contends that trial court erred in to consider the failing to defendant.13 ensuing prejudice Section 954 two provides . . . accusatory pleading may charge “[a]n more offenses, or different offenses same class of crimes or under counts, triable, . . . that the which separate provided, court in a case is shown, the interests of for and cause in its justice good discretion order may that the different or offenses counts set be forth in accusatory pleading 115, 1990, 13 Proposition adopted statutory June new constitutional and contained several Const., I, 30, (a); provisions subjects (See on the joinder art. severance. Cal. subd. § 954.1.) 115, accordingly prior Proposition Defendant was to the tried effective date of § apply predating Proposition regarding we the law of defendant’s claims 115 in our review (People 770, (1996) 92, 126, v. Arias severance. Cal.Rptr.2d 13 P.2d Cal.4th 7 913 [51 fn. 980].)

1315 of said into two or more each groups groups or divided tried separately offenses involved murder and thus belonged Because both tried separately.” crimes, for were statutory requirements joinder the same class of Therefore, the motion to defendant can error predicate denying satisfied. v. Osband (People a clear showing potential prejudice. sever only upon 26, 622, 640]; P.2d v. (1996) People 13 Cal.4th 666 919 Cal.Rptr.2d [55 155, 342, 862], P.2d 4 172-173 841 (1992) Sandoval Cal.4th Cal.Rptr.2d [14 1239, (1994) 511 1 S.Ct. 127 sub nom. Victor v. Nebraska U.S. affd. [114 583].) L.Ed.2d claim, of review

In this we the familiar standard reviewing apply has that the trial court’s be reversed if the court may providing ruling only 668, (1997) v. 14 Cal.4th 720 Mayfield abused its discretion. (People [60 1, 463, 485]; (1995) P.2d v. Davis 10 Cal.4th 508 People 928 Cal.Rptr.2d Osband, 119]; P.2d see v. 13 Cal.4th People supra, Cal.Rptr.2d [41 622, 666; 4 Cal.4th People Cummings Cal.Rptr.2d 1].) An be found the trial P.2d abuse discretion when may “ ” Osband, court’s ‘falls outside the bounds of reason.’ ruling 666.) Cal.4th

“ ‘The burden is on the severance to establish party seeking clearly that there is a substantial that the be danger prejudice requiring charges tried.’ ‘The determination of is necessar separately prejudice [Citation.] [*][] case, on the ily dependent circumstances each individual but particular certain criteria have to in and review emerged provide guidance ruling upon a motion to sever trial.’ ing Refusal to sever be an abuse of may [Citation.] (1) discretion where: evidence on the crimes to be tried would not be jointly trials; cross-admissible (2) in certain of the are separate charges unusually defendant; to (3) inflame the likely a ‘weak’ case has been jury against case, case, with a joined or with another ‘weak’ so that the ‘strong’ ‘spill over’ effect of evidence on aggregate several well alter charges might (4) outcome some or all of the charges; and one of the carries any charges the death or of them turns the matter into a penalty joinder case. capital Sandoval, 155, 172-173; v. 4 Cal.4th v. (People supra, People [Citations.]” 668, 721; 14 Cal.4th Mayfield, supra, (1995) v. Memro 11 Cal.4th People 786, 219, 1305]; Davis, 849-850 P.2d 905 v. Cal.Rptr.2d People supra, [47 463, 507-508; 909, 10 Cal.4th (1991) v. Mason 52 Cal.3d People 933-934 166, 950]; (1984) 802 P.2d Williams v. Court 36 Cal.Rptr. Superior [277 441, 700, Cal.3d 699].) 452-454 683 Cal.Rptr. P.2d [204 Furthermore, we have observed that the criteria enumerated in Sandoval are not first combined equally significant. in whether a step assessing “[T]he trial have is to evidence on each prejudicial [would determine whether been]

1316 admissible, of the been charges would have joined under Evidence Code 1101, so, section If separate trials on the others. inference of any prejudice 144, is (1985) v. 41 dispelled.” (People Balderas Cal.3d 171-172 [222 184, 480]; 668, P.2d v. People 711 see 14 Cal.Rptr. Mayfield, Cal.4th supra, 721.) suffices negate to but it is not Cross-admissibility prejudice, essential “ for that ‘we have held that Although purpose. cross-admissibility ordinarily we inference have never dispels any prejudice, held the absence of ” itself, to cross-admissibility, by sufficed demonstrate v. prejudice.’ (People Sandoval, 155, 173.) 4 Cal.4th supra, case, found,

In the and the trial court present urged, prosecutor each evidence of incident would have been cross-admissible trial of separate charge the other because the inci- relating incident dents disclosed a distinctive modus establish the operandi killer’s tending 1101, identity. (b), Pursuant to Evidence Code section subdivision offense, evidence that a defendant has committed an inadmissible although crimes, to demonstrate a defendant’s disposition commit be received may establish, motive, intent, other among or To be things, identity, plan. admissible to demonstrate a modus distinctive evidence must operandi, identifiers, that, disclose common marks or considered or in singly combi- nation, strong inference that support committed both crimes. 954, (1990) 492, v. Miller 50 Cal.3d 988-989 Cal.Rptr. 790 [269 1289]; (1988) P.2d v. Bean 46 Cal.3d People Cal.Rptr. [251 Memro, 996]; 786, 851; 760 P.2d see People Cal.4th People Ewoldt Cal.4th 757].) 867 P.2d Cal.Rptr.2d found, court trial based upon record preliminary hearing as well as the evidence at the on the presented hearing motion to that, common, the victims were *78 suppress, females young White who died as a result of were tied ligature strangulation, were killed up, approximately other, defendant, within nine of each were days with acquainted were induced to him as a result of their accompany belief that defendant would in ambitions, them their photograph furtherance of professional modeling to and near the time prior of their deaths had defendant to accompanied remote, a desert he particular inaccessible area that fairly had previously visited. The court trial further determined that the in time of the proximity murders, defendant, two the victims’ with the nature prior relationships defendant, their to inducement and the desert location where accompany death, both the they were at or time of were near present significantly which, distinctive and common marks considered with the together more characteristics, general common demonstrated numerous significant a similarities in two to establish common homicides sufficient modus operandi and a that it was defendant who had com- raise inference strong mitted each offense. trial the circum- that the court erred relying upon

Defendant contends desert, killed in the because there was that both victims were no stance was killed in the desert. evidence consid- that Shari The actually evidence was with defendant in present ered the trial court demonstrated that Shari a area of the desert near time of her death. The during period that remote that it relied the circumstance that both victims upon trial court did state rather, death, near the at that location but that at or time of both were killed that with defendant at location. been trial court asserts that the factors identifying employed by Defendant Bean, which 46 Cal.3d this to those in People were similar a modus to that the common factors that establish court held purported case, the circumstances were insufficient. In that we concluded that operandi within who were killed three that victims were females of same both age other, with the same and consistently of each in the days general vicinity residences, were insufficiently same scheme to their burglarize general noted of a modus We operandi. distinctive a common permit finding window, two entered a residence a one offense assailants through couple’s hammer, the victim a ball and took substantial property, attacked with peen other, door whereas in the assailant entry through single gained (Id. 937-938.) to die took a the victim of a heart attack. at purse, causing pp. case, In the the circumstances that defendant was with present acquainted victim, each had utilized the career ambitions of each to and monetary him, her to and had victim to the same remote induce taken each accompany commission desert location at or of each during period preceding murder, with unusual when considered the other similar but less or together case, features of each more distinctive com- singular present considerably mon features than those before the court in Bean. trial court correctly ruled that the evidence of both was cross-admissible. Contrary murders assertion, fail did not defendant’s additional trial court subsequently joint consider the to defendant from a trial potential despite prejudice would at on the issue of length but stated it not dwell finding, merely because would from prejudice, joinder defendant that arise prejudice value. outweighed by probative considerations *79 court determined issue of cross- concluded the trial the Having correctly (See we the factors described above. need not other admissibility, analyze Nonetheless, 668, 721.) we Cal.4th observe Mayfield, v. 14 People supra, would not have been that demonstrated that the evidence even had defendant cross-admissible, He has not shown that he to establish has failed prejudice. inflame jury against the likely one the offenses more was significantly defendant, gruesome. nature equally the were since murders similar 1318 shown that evidence of guilt significantly stronger

Defendant has not case, that that case would be used to bolster the creating danger one case, evidence was nearly equal strength weaker because prosecutor’s (See ibid.) as to both offenses. to the special case is one in which the itself rise joinder gave

The present murder, 190.2, (a)(3)), requiring subd. circumstance allegation (multiple § (Williams v. be issue of joinder. that a higher degree scrutiny given Sandoval, 4 454; Court, 441, supra, cf. v. People 36 Cal.3d Superior supra, 155, heard extensive 173.) argument It is that the trial court Cal.4th apparent Our closely. evidence very on the issue and scrutinized the counsel by in denying the trial court has not disclosed abuse of discretion by review any demonstrated prejudice motion to sever. Nor has defendant defendant’s Memro, v. at trial. (People resulted from the joinder charges actually 727, 786, 851; 735 (1995) v. Hill 34 People Cal.App.4th 11 Cal.4th supra, 39].) Cal.Rptr.2d [41

3. cause prospective jurors Excusadfor Amendment right contends that he was denied his Sixth

Defendant because, following challenge to a fair and impartial jury prosecutor’s trial court excused two prospective for cause and defense objection, McCanlies, of their state- Stewart and Glen on the basis jurors, Carolyn law. would be unable to the death they apply penalty ments indicating case, is, the trial court Whether the contention as in the present bias, an anti-death or erred in who exhibited excluding prospective jurors bias, to exclude who exhibited a erred in failing prospective jurors pro-death Crittenden, v. 9 supra, the same standard has been held to (People apply. 195, 83, 121; 3 227-228 (1992) Cal.4th v. Pride Cal.4th People [10 408, 636, 643]; 456 (1992) 2 Cal.4th Mincey 833 P.2d v. People Cal.Rptr.2d 822, for cause 388].) 827 P.2d A bemay challenged Cal.Rptr.2d juror [6 if those his or views concerning capital punishment only based her upon of the juror’s or substantially impair” performance views would “prevent v. (Morgan and the oath. duties as defined the court’s instructions juror’s 2229, 492]; 719, 2222, L.Ed.2d (1992) 504 728 S.Ct. 119 Illinois U.S. [112 844, 852, 83 424 S.Ct. (1985) v. Witt U.S. Wainwright [105 S.Ct. 841]; (1968) U.S. 510 L.Ed.2d see v. Illinois Witherspoon [88 120-121; Crittenden, 776]; v. Cal.4th 20 L.Ed.2d People 1050,1062-1063 (1992) Cal.Rptr.2d 3 Cal.4th Payton People [13 408, 456.) “More 1035]; specifi- 2 Cal.4th P.2d People Mincey, supra, views about capital punishment ‘whether the the determinant is juror’s cally, in the of death a verdict to return or ability would prevent impair juror’s ” 959, 1003 3 Cal.4th v. Hill case the juror.' before *80 984], italics.) If the original prospective juror’s P.2d Cal.Rptr.2d court’s are or trial conflicting equivocal, voir dire questions to responses the reviewing state of mind is binding upon of the true juror’s determination 668, 727; v. Cummings, People 14 Cal.4th Mayfield, supra, court. v. 1004; Hill, 1279; Cal.4th People supra, Cal.4th 408, 456-457.) 2 Cal.4th Mincey, supra, People Stewart, court case, by asked

In the prospective juror present to, of, or opposed in whether she was favor voir dire examination during to be hard that would very it the death regarding penalty, responded neutral automatically she life in her own hands. Asked whether take someone else’s evidence, she of vote a verdict death against regardless would sure, less that penalty was but was even in favor that she not responded whether, if Asked than at the time she had questionnaire. completed juror she could warranted the death she concluded that circumstances penalty, courtroom, in indicate her vote look defendant in the eye return said, doubt it.” Asked to favor of the death she “I rather explain penalty, had to take another she indicated she did not feel that she a right why, in she could envision life. Asked to conceive case which person’s any death, be obnox- for she that there an offense “so might voting explained involved, it, were ious” that she could herself to do if a child bring perhaps whether could but could not envision other of case. When asked she type any death, she voted verdict of she indicated inform defendant that for a yes.” “Perhaps,

Questioned defense how would vote on the death counsel she by penalty electorate, as a member of the “would Stewart prospective juror probably no.” she “automatically, absolutely Further whether was not say queried case but she affirmatively was every opposed” “mostly opposed,” responded a and indicated that there were she could render situations which perhaps death verdict. She stated would follow the court’s instructions she attempt law, to be and believed in the but would know until the decision had made whether she could render death verdict. in the

When asked whether she could look defendant prosecutor chamber, Stewart sentence him die in the gas juror eye prospective know,” it difficult “I don’t and stated that she found responded, really very render a death verdict. She for the decision to accept responsibility death as a deterrent indicated that she had justified penalty previously deterrent, and to hearing but no was prior certain the penalty longer without the for life in prison evidence would be more inclined to vote any other for a verdict not vote She indicated she would possibility parole. facing question than to avoid guilty of first murder order degree just *81 the death but not know whether she could impose death did penalty, in the case. penalty present indicated in the juror questionnaire, McCanlies

Prospective juror court, Questioned that he was to the death penalty. by informed opposed were, McCanlies stated he could as to how his feelings the court strong if that would the victim back to conceive of only bring imposing penalty is his were that a human never executing being life. He stated that principles circumstances, McCanlies of the evidence. regardless under any justified inform defend- be unable to return to the courtroom and indicated he would unless voted for death under circumstances that McCanlies had any ant like were involved. “something espionage” he in which asked defense counsel conceive circumstances

When by verdict, in the case McCanlies he could do so could render a death suggested commandant, monthly out victims the thousands on a “grinding of a death basis,” mass murder or where a hired killer performed premeditated in which a that there are circumstances acknowledged schoolchildren. He When is so that he or she has to be removed. person dangerous society death whether he could listen to the evidence and consider the questioned He indicated he would McCanlies indicated that he did not know. penalty, law, would listen to the instructions and follow the also he stating judge’s “to the last minute resist” the death very imposing penalty.

We satisfied that the trial court did not err in granting prosecutor’s are for two Both jurors expressed cause these challenges prospective jurors. death views indicative of an unalterable against penalty. preference the law would not their statements that would follow Accordingly, they Illinois, 734-736 “rehabilitate” them. v. 504 U.S. (Morgan supra, 2222, 2232-2234].) S.Ct. the death penalty both indicated could

Although jurors they impose cases, extreme their specified, particularly hypothetical examples presented (See case. e.g., more facts than those involved in the present egregious excusal v. 4 Cal.4th 1280-1281 People Cummings, supra, [for-cause horrendous” case when could death in “awfully proper juror impose penalty People but would vote for life imprisonment]; “probably” automatically when juror 3 Cal.4th excusal Payton, proper supra, [for-cause for for life but allowed death pen- would vote automatically imprisonment “ ”].) Their can examples ‘in the most case you imagine’ alty aggravated at issue in the of the murders were not to the circumstances analogous Hill, 1003.) (See 3 Cal.4th before them. People proceedings jurors, Even to some extent the of both prospective though responses indi- as and ambiguous, Stewart’s were responses particular, conflicting true state jurors’ cated above the trial as to the court’s determinations demeanor, this mind, their is court. binding upon factors such as based upon *82 that each would vote a justified finding automatically Their statements The of the evidence in this case. trial death regardless the against penalty views or that each would substan- prevent court determined correctly juror’s his or his or her duties as defined her by the of tially performance impair Witt, the court. (Wainwright and the instructions given by oath as a juror 852].) S.Ct. U.S. statements 4. motion to exclude witnesses during opening Denial of his motion court in denying Defendant contends that the trial erred counsel, courtroom, of the statements from the during opening exclude on of the prosecution— three who were scheduled to behalf testify witnesses brother) and Lida Jane mother (Shari’s Mara and David Miller Lyn trial, in mother). 1102.6 provided, McCabe At the time of section (Tracey’s entitled and seated at “(a) The victim shall be to be pertinent present part: the finds of victim would pose trial. If the court that the the presence testimony, substantial risk of or the content of the influencing affecting any court in as to shall exclude the victim from the trial or so effect part entirely HQ the the (b) of this section. the court’s of victim’s granting purposes Upon order of testimony, the defendant the the victim’s request, may object first, which case the victim shall if the foundation subject exclusion testily or delicti is not later the of other established corpus by testimony prosecut- (c) of either the ing witnesses. the or court’s Upon request upon party HD motion, own the victim excluded from on a hearing shall be motion any section, HQ (e) to this As ‘victim’ pursuant section. ... used this HO (1) the victim the offense and one member of the victim’s alleged means of

immediate in the event that the victim is unable to attend the family trial, to two members of victim’s who are actual or the immediate up family witnesses.” potential matter,

As the an initial defendant contends that trial court erred failing (who to grant defendant’s to exclude these three witnesses request clearly victims) were within the statutory hearing definition from held to decide whether should excluded from counsel’s statements. they opening be found, however, The trial court that the on the motion con- hearing individuals, ducted outside the of these were hearing they conversing and that were unaware themselves among during hearing, they with It the trial former substance of the court hearing. complied appears 1102.6, these were (c), essentially section subdivision because witnesses from the defendant’s motion. excluded on hearing his motion to erred in denying

Defendant next contends that the trial court themselves. exclude these witnesses statements during opening version of the statute the exclusion of a victim from applicable requires trial if the or a thereof that victim “would portion presence pose or the content of influencing affecting any substantial risk testimony.” that defendant’s is correct and he was entitled to Assuming interpretation statute, exclude to the these victims from statements opening pursuant trial court did not err. Defendant’s mere assertion that the victims could or influenced would be statements was insufficient to establish opening “a that the victims’ substantial risk of or affect- presence posed influencing content of ing any testimony.”

Moreover, defend- denial of the motion was not to According prejudicial. ant, Miller the because David had testified at previously preliminary his his the statements enabled him to tailor hearing, presence during opening (that he had not located the effects contained testimony personal among had worn Shari’s vehicle the items Shari in the clothing photographs desert) to taken in the render it consistent with the prosecutor’s opening statement that defendant Shari certain wearing suggesting photographed her, defend- killed of that clothing. Nothing clothing, disposed prevented his ant from cross-examination at trial whether Miller inquiring during addition, his that he had not so tailored In Miller testified testimony. merely recovered two items worn Shari in the Defendant chal- photographs. failure Miller’s other for his lenged credibility by suggesting explanations those items of Miller’s that he had not locate clothing, eliciting testimony not obtained an to locate those items and had attempted particular of the items from the inventory police. con-

Defendant also that Mrs. McCabe altered her suggests testimony form to the account in the statement. Defendant given prosecutor’s opening out that at the Mrs. McCabe testified that she points preliminary hearing, used her own but at keys open apartment day Tracey disappeared, the trial she testified she did not have the and therefore she keys day, and Todd had been forced to the window in order to enter the “jimmy” Mrs. Defendant also out that at the hearing apartment. points preliminary McCabe testified that members were when McCabe present only family she defendant about the but at trial disappearance Tracey, questioned instances, however, Bill In testified that also was both Scognamillo present. were not statement during opening other witnesses at trial who present at trial. corroborated Mrs. McCabe’s testimony

5. Admission ordered suppressed evidence previously evidence erred in admitting

Defendant contends that the trial court above, at the As the court had ordered suppressed. explained previously was seized on August evidence that to suppress on the motion hearing than that authorized by was broader that the search court determined date, seized certain items and ordered suppressed the warrant of that terms of of Faces International a 1984 including copy at apartment, defendant’s label. name on the mailing Talbot’s bearing Olga trial, visited defendant’s Tracey testified that when

At Todd Heidrick model, become a her aspiration 11 and mentioned on apartment July he knew someone her that telling her that magazine, defendant showed flattering her to obtain a and advising with that connected publication When the prosecutor submit to the magazine. of herself to photograph of Heidrick in order to inquire of Faces International copy produced defense shown Tracey, defendant had that was the magazine whether type not the one basis that the magazine counsel on the objected defendant, he advised the court that and further shown the victim by actually Accord- be of the magazine suppressed. had asked that 1984 copy never of Heidrick copy, inquired prosecutor, substituting ingly, *84 it, it at that he had seen he and Heidrick responded whether recognized defendant’s apartment. into evidence both the to admit

When prosecutor subsequently sought was irrele- defense that the magazine of the the magazine, objected copies of The admitted into evidence 1984 copy vant and not court probative. defend- closing argument, prosecutor emphasized magazine. During showed the of the magazine. ant’s statements to and Tracey jury copy the trial court by It is evident that defendant waived error committed any of its previous evidence of the 1984 admitting copy magazine despite of the evidence. Defendant substitution order requested suppressing the court offered assuring 1984 for the copy copy prosecutor, 1985 subse- be that defendant had not asked that this evidence suppressed, on unrelated to the admission of the magazine only quently objected 879, Code, 353; (1995) Cal.4th (Evid. see 9 People Champion grounds. § Wader, 547, 93]; 5 Cal.4th P.2d People 891 Cal.Rptr.2d [39 610, 635-636; (1991) 204-205 v. Morris 53 Cal.3d People [279 949].) 807 P.2d Cal.Rptr. addition, introduced

In was not prejudicial. prosecutor error any the type whether that was of Heidrick for the magazine purpose inquiring the course of their during that defendant had shown Tracey magazine Heidrick’s illustrate merely conversation. The magazine employed erroneous, was not prejudi- Admission of the even if testimony. copy, nature of contents cial in view of the witness’s of the description Code, 353; (Evid. v. Watson 46 Cal.2d magazine. People § 243].) P.2d 6. Exclusion evidence another potentially implicating individual

Defendant contends that the trial court erred in evidence excluding that Shari feared an individual other than defendant. Defendant asserts that that Shari’s statements determining constituted inadmissible hearsay this the trial court of his excluding testimony, Fifth deprived Amendment to due of law as well his right as Sixth Amendment process evidence in his defense. right present what examination of Shari’s mother she disclosed

During prosecutor’s she knew Shari’s and described final communications her acquaintances with Shari in the her The defense days preceding disappearance. sought elicit Mrs. Miller’s that Shari had fear of a man she testimony expressed identified as Ted McGee. The moved in limine to exclude such prosecution evidence on the that Shari’s to her re- ground merely statements mother fear, flected a mental state of and that evidence of Shari’s fearful past prior state of mind was not “itself an issue in the action” within the meaning in Evidence Code section subdivision hearsay exception recognized (b). motion,

At the on the Mrs. Miller testified that Shari hearing prosecutor’s had told her that Shari was with a crowd” than “running rougher previously. Ted, A friend of Shari’s had told Mrs. Miller one of Shari’s boyfriends, *85 “carried knives and liked to cut Mrs. Miller was aware that Shari people.” had been at a at which the had conducted a raid.” present place police “drug 23, Mrs. Miller testified Shari her that visited her on June she told when (whose mother that she had been afraid of a man name Mrs. previously recall). Miller could Mrs. Miller indicated that Shari had not described fear, and had stated that she no was afraid of the man. present longer Shari had told her mother that she felt someone was “after her.” When previously for,” “Oh, her mother asked “what stated: it doesn’t matter because I Shari court, don’t think are the state- they trial anymore.” determining ments were of a rather current fear and that than previously existing trial, Shari’s state of mind itself was not an issue at the excluded the prior statements.

The trial court were not made did not err in that the statements ruling admissible statute an by provides excep- Evidence Code section 1251. That for a statement tion the rule that are inadmissible statements hearsay unavailable, the is the witness describing past mental state or emotion if

1325 action, issue in the state itself is an of mind or emotional witness’s state such state of mind or fact other than any is not offered to prove evidence an emotion or state of mind that that Shari recounted It is apparent emotion. the time she made the but no felt at longer harbored the past she had Therefore, if Shari’s state of statements were admissible only statements. and the statements was an issue in the action or emotional state itself mind of mind or emotion. other than her state offered to fact prove any were not not solely to introduce the statements clear that the defense sought It is state basis for that of mind but to a factual suggest fearful state Shari’s prove of mind. the hearsay were not made inadmissible the statements

Even assuming however, exclusion rule, the trial court’s we do not agree him or of law deprived defendant’s to due statements violated right process We defense. evidence in his own opportunity present that, admissible, of the culpability to be evidence have indicated repeatedly that a reasonable a defendant to demonstrate of a third offered by party link the third either doubt exists his or her must guilt, person concerning In to the of the crime. assess- or actual directly circumstantially perpetration evidence, the court must decide an offer of to such ing relating proof doubt as to defendant’s guilt whether the evidence could raise a reasonable under Evi- more than substantially prejudicial probative and whether it is 501; 463, Davis, Cal.4th (See Code section 352. v. 10 People supra, dence 390, 585, 863 P.2d (1993) 6 Cudjo Cal.Rptr.2d Cal.4th People [25 432, 742, 635]; (1992) 4 Cal.4th Cal.Rptr.2d v. Alcala 792-793 People [15 1192]; (1990) Cal.Rptr. 842 P.2d v. Kaurish 52 Cal.3d People [276 278]; Cal.3d 1017-1018 802 P.2d v. Edelbacher People 1].) she pre- P.2d Shari’s statements that Cal.Rptr. link someone were insufficient to had been fear of “a man” viously clearly (See of Shari’s murder. to the actual other than defendant perpetration Edelbacher, 983, 1018.) 47 Cal.3d People

Moreover, refusal to allow constitute a the trial court’s did not ruling *86 defense, concern- but certain evidence defendant to present merely rejected review is that enunci- the standard of the defense. ing Accordingly, proper Watson, 818, (1994) (People Fudge 46 Cal.2d 836. ated in People 321, 1075, 36].) We 875 P.2d agree 1102-1103 Cal.Rptr.2d 7 Cal.4th [31 In error was not light with the General any prejudicial. Attorney defendant, not reasonably probable it was evidence extremely strong against trial the defense had the more favorable to that the verdict would have been unnamed admitted fear of an evidence held court of Shari’s previously individual.

1326 testimony photographer’s Admission police

7. trial court admitted the erroneously contends that the Defendant Ohanesian, Steven defend- thereby depriving photographer testimony police reliable verdict. At the to a fair trial and to a of his constitutional rights ant witness, of this testimony to introduce the sought time the prosecution that the instead had to prosecution on objected ground defense counsel on The trial court determined astronomy. of an testimony expert present Thereafter, Ohanesian testified testimony required. that such expert 10, 1987, the desert and taken he had driven to the bowl area in on July to take the the same as that used viewpoint from a series photographs that the photo- of Shari at that location. Ohanesian testified photographs most matched closely between 11:00 a.m. and 2:00 p.m. he had taken graphs of defendant’s photographs. and other features the shadows have been excluded because that this should testimony Defendant asserts a foundation that the astronomical failed to establish the prosecutor 10, 1987, to those existing on were identical nearly weather conditions July 4, failed to also that the on Defendant contends prosecutor 1984. July methods used by and the photographic establish conditions present 4, defendant on 1984. July to admit “experimental”

It that a trial court has discretion is settled burden of production of such evidence bears the evidence. The proponent rests an adequate whether such evidence upon on the proof question of the follow- of such evidence depends upon proof foundation. “Admission relevant; (2) (1) it must must be experiment foundational items: ing [t]he similar, not nec- although under at least substantially have been conducted occurrence; identical, (3) the actual conditions as those of essarily absolutely concerning experimentation of the individual testifying qualifications (4) evidence of the must be demonstrated with some particularity; time, issues, confuse the or mislead will not consume undue experiment (1994) 8 Cal.4th Cal.Rptr.2d v. Turner [32 jury.” 521]; Cal.3d Cal.Rptr. P.2d v. Bonin People 460].) 765 P.2d con- these foundational determined that

The trial court properly First, the experimental in the case. siderations were established present to compare was relevant because the afforded jury, opportunity evidence the same taken at with those subsequently of Shari defendant’s photographs was assisted determining the same time of year, site at nearly and in determining in the desert that Shari still was alive time approximate *87 evidence with other tending time was consistent whether that approximate evidence the establishing the her death. The photographic time of establish also relevant to assess the of defend- veracity of was day time approximate he had taken. the concerning photographs ant’s statements Second, similar substantially were under produced the photographs police his photographs. as when defendant had taken existing conditions those defendant, at used by at location as that stood the same photographer police photographic time and similar the same of day, employed approximately were Third, clearly Ohanesian’s as a photographer equipment. qualifications Fourth, did not brief and testimony established. Ohanesian’s was quite or the jury. confuse mislead addition, counsel, the court instructed

In of defense the trial request upon consider that in the of this the was to considering weight testimony, jury jury to con- the professional qualifications whether witness sufficient possessed results, whether the and to evaluate and describe its and duct demonstration under similar substantially the demonstration was conducted circumstances Thus, the to those at the time defendant took his present jury photographs. of was made of the inherent limitations such evidence. aware the Defendant has cited no California decision admission disapproving He decisions from other comparable demonstration evidence. relies upon but these are jurisdictions, distinguished. readily 319], court

In Jones v. Talbot 87 Idaho P.2d the 498 [394 of a colli- held inadmissible certain taken site properly photographs sion, at had because several witnesses had testified that conditions the site case, since the In the altered the time of collision. the conditions present only at were the human being compared positions subjects shadows upon certain times from at the time of several fixed same day vantage points Defendant, that the were taken on year. merely by observing photographs different have camera filters or other day may using and been taken different how were so has failed demonstrate conditions far different components, time at the took the as police photographer photographs preclude admission this evidence. 750, 752-757, (7th 1981)

In United States v. Tranowski Cir. 659 F.2d held astronomer testimony court inadmissible the of an proffered purporting ascertain chart” which a photograph from a “sun date on specific taken, determined to be the chart had not been been on grounds technology by accurate relied generally upon experts, case, In the general present relied had not scientific upon gained acceptance. contrast, explained offered photographer merely photographs *88 on a subject, using in of shadows appearance duplicating experiment in of the understood commonly equipment, light common photographic of a similar at a length particular that the sun casts shadows phenomenon err in court did not time of The trial time of at a particular year. day the evidence. admitting Forren’s testimony Admission Juanita

8. of testimony court erred in admitting Defendant contends the trial 1984, 9, visited defendant Parren testified that on August Juanita Parren. of store, store, Parren, her outside the asked to step spoke the photography interviewed were him and had he knew that police following indicated Parren, Parren, vehicle to and inquired out a unmarked nearby police pointed store, While in the had told the about defendant. what she police and a chewing up particular also inspected strip negatives, separating that defendant negatives inspected Parren testified that none negative. Shari, that whom she day recognized. depicted under Evidence Code contends the evidence was inadmissible

Defendant defendant’s and guilt, because it did not have any bearing upon section it was substan- Evidence Code section because was inadmissible under out that the police more than Defendant points tially prejudicial probative. and vehicle. He also had searched defendant’s apartment twice previously connection with he was not being investigated asserts that as of August death, as a missing was classified simply Shari’s Tracey’s disappearance case. person in defendant’s possession had discovered police

By August Shari, Jane Doe identification of negatives leading photographs that he had learned from defendant himself spent No. 60. The police had taken with her in the her death and photographs time days preceding that defendant was the her also had discovered during period. police an interest modeling, last to see that she had expressed person Tracey, Defendant’s her to portfolio. that he had advised prepare photographic them, and his as as he received conduct in soon negatives inspecting them, observance of the police his following one of destroying closely clearly had told the police, Parren as to what she vehicle and inquiry so in the his This is especially with to the issue of regard guilt. relevant immediately preced- the negative of other evidence establishing context bare Shari’s defendant depicted the one destroyed by ing sequence breasts.

Moreover, substantially outweighed of the evidence value probative Parren, unusual, conduct describing noteworthy effect. while any prejudicial *89 or defendant, of behavior so extreme an account did not give on part inflamed against would be of the jury that the passions in nature bizarre defendant. Shari Miller murdered that evidence Sufficiency

9. defendant at trial was insuf- evidence that the presented Defendant contends he that reasonable doubt a of law to prove beyond as a matter ficient The well established. of review is The standard Shari. murdered “ most favorable in the light whole record ‘must review the court appellate substantial evidence— discloses determine whether it below to the judgment that reasonable, credible, value—such of solid is, and which is that evidence reasonable beyond guilty find the defendant trier of fact could a reasonable whole on the test is evidence The focus of the substantial doubt.’ [Citations.] ‘ fact, bits “isolated rather than on to the trier of of evidence presented record ’ 252, 260- (1995) 12 Cal.4th v. Cuevas (People of evidence.” [Citation.]” italics; v. 135, 1290], Mayfield, People P.2d original 906 Cal.Rptr.2d [48 764, 767; (1995) 10 Cal.4th 792-793 Stanley at v. People 14 Cal.4th supra, p. is the same in , 481].) of review P.2d The standard 543 897 Cal.Rptr.2d [42 evidence. circumstantial in which the rely primarily upon cases People Bean, 792-793; 46 Cal.3d v. supra, at People v. (People Stanley, supra, pp. “ if it 919, a defendant 932.) of the to acquit it is ‘Although duty jury one of two interpretations, evidence is finds that circumstantial susceptible [citations], it is the jury, and the other innocence of which suggests guilt beyond the defendant’s guilt must be convinced of court which appellate “ the trier reasonably justify doubt. ‘If the circumstances a reasonable that the circumstances court reviewing fact’s findings, opinion warrant does not with a contrary finding also be reconciled reasonably might ‘ ” evi- “Circumstantial a reversal of the judgment.’ [Citations.]’ [Citation.] the crime and prove a defendant with be sufficient to connect dence may Stanley, v. a reasonable doubt.”’ his guilt beyond [Citations.]” 919, Bean, 792-793; 764, 46 Cal.3d supra, People Cal.4th 1117, 1124 932-933; Cal.Rptr.2d 2 Cal.4th see People Perez 577, 1159].) 831 P.2d evidence. is substantial determination supported

The jury’s and a items of jewelry Shari certain possessed evidence established blouse, laces, and a double- watch, a snail print with leather long moccasins to model and had plans with defendant knife. Shari was acquainted bladed arm, 29, cut on her requiring received a On June Shari for him. clothing to meet him. arranged June Shari sutures. On telephoned that, job, the anticipated her about Bury Shari told friend Carolyn On July of July the morning On modeling. did not involve nude any Shari reported, friend about the job, told her Marcia Peltier made a anticipated Shari “Bill on a list of to do to meet Bradford” at the Meat Market things notation and, as in the working process, On or while evening. July painter wristwatch, her Shari told person, clothing, on Kurt getting paint about the That Shari intro- modeling job. evening, Androsky anticipated to the this Shari saw During duced Androsky photographer. period, Schylee O’Hare, her contact defendant in also that she order telling attempting *90 4, On Evans at as a model. 3 or Haas saw Shari defendant’s work July defendant the same that Haas and visited the day motorcycle apartment shop owner, that, 4. 5:00 to its was closed At July according approximately p.m. 4, Shari, Todd met who driven in on 3 or Heidrick defend- July being 3, De La Torre On the of Shari visited Oliver evening July ant’s vehicle. and, voiced her to her in the hours of departure early morning July prior Shari’s body a at a bar. person at to meet having particular apprehensions on 6. early July was discovered with that witnesses inconsistently

Defendant asserts numerous testified and preceding to Shari’s defendant’s whereabouts regard during period death, and testified a manner inconsistent with the prosecution’s her in Although in the desert on 4. several July that killed Shari theory which had they unable to as to the exact dates on seen testify witnesses were estimates, Shari, is not difficult to from their considered relation it deduce another, the actual on which observed Shari to her they prior one dates that, observes, the as defendant testimony circumstance disappearance. that were at with the statements of of Talbot and of her son variance Olga whereabouts of Shari and defendant on the other witnesses regarding dates, in no These guilt. pertinent way jury’s finding precludes more were with consis- impeached hearing testimony witnesses preliminary evidence, and in any that of the witnesses at trial or other tent with other It is clear that was free to of their portions testimony. case the jury disregard witnesses, fact, a trier of assigning greater credibility particular rational and Shari met that demonstrated defendant could have decided the evidence not alive. on and she did leave his July company sometime that establish defend- Defendant also asserts that the evidence does not the time of her in the desert were taken near ant’s Shari photographs evidence, to others On the Shari’s statements contrary, including death. evidence, on her arm and the sutured wound including and the physical her demonstrates that on person apparel, amply flecks paint occurred July session modeling prior anticipated photographic with the above Shari’s final contacts within a or days but occurred day with the evidence of in turn is consistent witnesses. That evidence described on as well July the desert bowl area to visit defendant’s intention apparent from his residence during the evidence of defendant’s disappearance as period. him no evidence connected to Shari other

Defendant asserts that physical bracelet, chain, for which he had his of her earrings, than possession her wrist- On the contrary, paint-flecked an innocent explanation. provided knife, watch, similar to that on her laced and a leather strap double-bladed possessed photo- also were found in his Defendant moccasins possession. of the desert area remote and secluded of Shari taken particularly graphs Lancaster, had visited. Defendant’s photo- an area that he near previously breasts; of that the negative of her bare of Shari included close-up graphs defend- destroyed by the one immediately preceded sequence photograph ant, In removed. her was discovered with nipples subsequently body defendant, the area in which was photographed by a location near Shari very the other her snail blouse was discovered tied to the head of Tracey, print victim, also was whom Shari never had met and with whom defendant *91 inside defend- Traces of what was blood were found acquainted. possibly two blocks from ant’s vehicle. Shari’s automobile was discovered parked determined defendant’s residence. A rational could have that jury clearly defendant murdered Shari Miller. Failure permit testify

10. to to defendant

Defendant that he was denied his constitutional to contends right rendered ineffective on his own behalf. He asserts that his counsel testify assistance the trial court out of defendant’s by presence notifying counsel did not intend to call to the stand his express defendant despite conflict, erred, to of this desire and that the trial court testify, upon learning to or obtain his failing testify either advise defendant of his by right waiver of that right. that, 10, 1987,

The record reflects on November the conclusion following case, of the the defense outside the prosecutor’s hearing presence requested and a witness and the prosecutors. prosecutors departed, report- er’s and notes of the were ordered transcript ensuing proceedings placed under seal. also the record does not indicate that defendant left the Although courtroom a settled statement 1994 during hearing, prepared (after seal could defense counsel the documents under appellate placed located) be indicates that defendant was not present.14 statement, informed the court settled defense counsel to the

According witnesses and without to rest without calling any that it was their intention order, “(Parties if and counsel checked notation: which bears the pertinent 14 The minute name, “Trial resumes from and also states: by defendant’s present),” a check mark reflects 1332 the court that defendant Defense counsel advised testify.

calling he had changed that he wanted to testify, although had indicated previously he had told defense counsel wanted to several times. Defendant his mind murders, that he had not committed the he could tell the jury so that testify Shari, Worthen had beaten him and that Detective severely that he loved 16,1994. on The trial court told made his statement August before defendant defendant’s desire could rest without mentioning defense counsel they own, the court did not raise the issue on his and that if defendant to testify it with him. would not raise her in his or in a criminal case has right testify

A defendant 803, 813 (1985) Cal.Rptr. v. Frierson Cal.3d behalf. 39 (People [218 own 205, 214-215 73, 396]; (1970) 2 Cal.3d [85 v. Robles People 705 P.2d 166, 710].) right The defendant exercise may 466 P.2d Cal.Rptr. of, of, counsel. to the advice defense and contrary over objection testify 525, 415, P.2d (1995) 12 Cal.4th Cal.Rptr.2d v. Lucas [48 1, P.2d 373]; (1988) Cal.Rptr. 45 Cal.3d Lucky People or whether to 1052].) is whether to testify “When the decision [citation] trial it is only at the of a guilt phase capital a defense [citation] present and counsel that between the defendant of an conflict arising case express situation, no In there is duty desires must the latter the defendant’s prevail. comes to unless the conflict secure an on the record waiver to admonish and (In re Horton 54 Cal.3d 95 [284 the court’s attention. [Citation.]” 1335]; (1988) 45 Cal.3d People 813 P.2d Cal.Rptr. Guzman *92 Frierson, 917]; v. People supra, 755 P.2d see Cal.Rptr. 935-936 [248 803, 818, 8.) Cal.3d fn. case, some indicates that at

In the settled statement the present at point his desire to but another testify, told his counsel of point so, mind his changed to do and that defendant indicated he did not wish court, conflict that an express The trial concluding several times. apparently exist, it informed counsel that not then counsel and defendant did between intent. There- from defendant as to his further expression would await any It after, made no comment. rested and defendant immediately the defense had counsel and defendant conflict between does not that an appear express Guzman, 82, 95; Horton, supra, 54 Cal.3d (In People re emerged. 5, 1987, The present as heretofore." jurors, and defendant with all counsel November or his absence. departure defendant’s reporter’s transcript does not indicate by appellate prepared proposed settled statement accepting order The trial court’s hearing, there present at party counsel for one counsel states that because defense court, settlement, having no although the concerning proposed dispute was no proposed accuracy of hearing, could not vouch for the of the independent recollection or the statement, of counsel questioning the recollection any basis for neither did it have proposed forth in the statement. accuracy any representation set of 915, 935-936.) 45 Cal.3d Accordingly, trial court was not obligated to advise defendant of his expressly right to or to testify, obtain his personal (45 935-936.) waiver that Cal.3d at right. pp.

Nor, assertion, to contrary defendant’s does it appear defendant’s trial counsel defendant from prevent or learning his attempted exercising right testify by advising court outside the presence defendant of witnesses, counsel’s intent not to call any defendant.15 including Although defendant attributes to defense counsel an intent secretly the court apprise of defendant’s desire to in order to enlist the testify court’s assistance in preventing defendant from exercising that to inform him right, by omitting of that right, defense counsel’s comments to the court at the do not hearing support interpretation. trial court’s to defendant’s response, contrary contention, does not it suggest defense counsel in a joined “conspiracy of silence” in order to avoid defendant the affording opportunity openly Rather, declare a conflict with his over the issue. attorneys the court’s that, conduct, reflects its response belief in view of defendant’s previous defendant would not hesitate to so inform the court if he once again entertained the desire to testify.

11. Alleged prosecutorial misconduct

Defendant contends that the in this case prosecutors committed selection, prejudicial misconduct following jury during presentation evidence, and during closing to the at argument jury guilt phase.

“In general, prosecutor commits misconduct the use of deceptive or reprehensible methods to persuade either the court or the jury. [Cita- (1991) v. Price tions.]” 1 Cal.4th 447 Cal.Rptr.2d 610].) P.2d The defendant generally need not show that the acted prosecutor in bad faith or with conduct, appreciation of his or wrongfulness her because the prosecutor’s conduct is evaluated accordance with an objec- (Ibid.; tive standard. People Berryman 6 Cal.4th 1072 [25 *93 867, 864 Cal.Rptr.2d 40].) P.2d “To for preserve a claim of appeal prosec- misconduct, utorial the defense must make a at trial and timely objection admonition; otherwise, an request the is reviewable if point an admo- only nition would not have cured the harm caused the by misconduct. [Citation.]” Price, 324, 447; v. Davis, 1 supra, Cal.4th People 463, 531-532;

Cal.4th 1048, People 1072.) Berryman, supra, Cal.4th 15 Such attempt by an asserted counsel would have been inconsistent with counsel’s conduct during phases other of the proceedings for transcript example, prior which a For exists. to penalty commencement of phase, the when sought represent to speak himself and behalf, client, on his own counsel my stated: “I’ve indicated taking to if he insists on the stand, ethically obliged witness I’m put him to on the witness stand. . . .” juror

a. Concealment a regarding of information that the committed misconduct in prosecutors Defendant contends the after an to inform defense the learned that timely prosecutor failing had not described his criminal record juror accurately prior during alternate 14, 1987, dire, Jack during juror voir dire. On voir July prospective juror of conduct disorderly stated that he had been arrested convicted Stafford 1987, 10, On trial On commenced. August earlier. approximately years Stafford, had been to who the excuse prosecutors sought August court Prosecutor the that selected as an alternate to juror. They explained of several records had check of the criminal Ferraro sought computer 3, 1987, that revealed dated that a computer printout, August jurors, and disorderly had of battery Stafford suffered conviction misdemeanor not had a that she had Prosecutor Ferraro conduct 1984. May explained the 1987. The August to the until week printout chance inspect did not that Prosecutor Ferraro’s lack of urged knowledge defense personal defense upon the failure of the district office to the attorney’s notify mitigate the on The court accepted prosecu- 1987. receipt printout August that that she had not learned of the recent until time charge tor’s explanation defense, not from the and the and had concealed information deliberately court the motion dismiss alternate granted juror. err The does

The trial court did not the motion. record granting or their disclose either the staff acted prosecutors deliberately failing More- the defense once had obtained notify computer they printout. over, no has been established. Had both been prejudice parties cognizant dire, recent record of voir completion prosecu- Juror Stafford’s prior excusal, would have his as tors obtained undoubtedly sought just they of trial. record did at this reflects that several stage although jurors early were excused and alternates the course of the replaced lengthy by during trial, of alternates was not exhausted trial. completion pool excused, that, it had Alternate Juror Stafford not been suggests Nothing outcome would have been more favorable reasonably probable defendant. held

b. Introduction evidence inadmissible in introducing Defendant that the committed misconduct prosecutors urges inadmissible. of a that the trial court ruled previously evidence magazine earlier, a 1984 to trial the court ordered suppressed copy As explained prior *94 on the label. At name mailing of Faces that Talbot’s International had Olga Heidrick, a trial, the produced Todd prosecutors the examination of during International, whether defendant Heidrick 1985 Faces copy questioning

1335 had shown that Defense counsel Tracey type magazine. objected, stating that never had the 1984 be they requested magazine Accord- suppressed. the substituted the 1984 ingly, magazine, the prosecutors subsequently court admitted into evidence that of the magazine despite defendant’s copy that it was irrelevant and not probative. objection

As defendant waived error previously explained, any regard with to the admission into evidence of the ordered magazine previously suppressed. (See Champion, 914.) v. 9 Cal.4th the People supra, assuming Even committed misconduct in in accor- prosecutors introducing magazine counsel, however, dance with the wishes of defense to the an admonition Price, 324, 460), would have cured harm 1 Cal.4th jury any (People supra, earlier, and as admission of the could not have explained magazine possibly defendant of the witness’s of its nature and prejudiced light description use defendant and the by circumstance version otherwise 1985 Watson, would have been admitted into evidence. (People 818, 836.) Cal.2d

c. Revelation was in jury custody defendant Defendant that the committed prosecutors by contends misconduct reveal- to the ing that defendant was in In jury the trial. the course of custody during Talbot, the direct examination of Prosecutor Olga Ferraro attempted reveal Talbot’s toward defendant and motive lie partisanship establish- by ing their continuing asked friendship. Accordingly, whether prosecutor Talbot defendant, remained friends with and still visited when Talbot last defendant, had seen and whether The spoke by they telephone. prosecutor then whether Talbot inquired given anything during past month, him, and Talbot retorted: “Like can I what give writing paper?” defense moved a for mistrial on the basis that the prosecutor attempting to elicit information that defendant was in apprising then jury custody. counsel, Following argument court trial found that the witness had not made any express statement from which the would infer that jury necessarily defendant was in custody, also held that to show testimony tending defendant’s status custodial should be excluded because it was substantially more prejudicial than probative. context,

In a slightly different we have commented previously upon the effect of of a reminders defendant’s custodial status. It is established that a court may defendant to attend trial require wearing jail clothing, because such a would that a defendant is requirement impair presumption innocent unless and until doubt. proved reasonable guilty beyond v. Taylor (1982) 115]; Cal.3d P.2d In re Cal.Rptr. *95 1336 1017].) P.2d (1996) 12 Cal.4th Cal.Rptr.2d

Avena [49 is a clothing has that the defendant’s jail “The Court observed Supreme in tends the that the defendant is jury custody, reminder to constant risk the of innocence an that by creating unacceptable undercut presumption consider this will factor. the jury impermissibly [Citation.]” information, 494.) It be inferred that other may 31 Cal.3d Taylor, the is in remind that a defendant the same tendency jury custody, having a effect. have similar might at in the by

The information received the this jurors juncture however, case, had that The could not have effect. possibly prose- present not to the circumstance that defendant was in did refer expressly cutor defendant, Talbot her ties to concerning continuing questioning custody found, and, made the court the comment single, by as trial spontaneous in fact in did raise the inference that defendant was necessarily Talbot not had, however, is in an isolated comment that a defendant Even if it custody. of for the the does create potential custody simply impairment innocence repeatedly that arise were such information of might presumption addition, In we that in certain circumstances a to the observe conveyed jury. learn a defendant is for the current custody charged will inevitably jury offense, is with testimony for where the jury presented example 604, 617, (See, informant. Alcala Cal.3d e.g., People jailhouse 1126].) 685 P.2d The did not commit prosecutor Cal.Rptr. as nature the witness to the of her examining continuing misconduct defendant, with could have from her prejudice contact no arisen possible unpredicted response.

d. evidence not ruled admissible Display previously committed misconduct in momen- Defendant contends the prosecutor human hair and remov- a Jovan bottle perfume containing tarily displaying from that the trial court had hair an circumstance envelope, ing despite reflects that earlier hearing not ruled evidence admissible. record evidence, did not match the hair of was held to determine whether this which victim, counsel, the trial court argument either was admissible. After with regard its examination Detective Rockwood deferred ruling. During Ferraro the hair to his search of defendant’s Prosecutor produced apartment, and moved for a mistrial. The prosecutor Defense counsel objected samples. admissible, but had been ruled after asserted that evidence previously court it had not trial determined examining transcript, daily reporter’s evidence, then proceeded ruled the admissibility on previously more substantially, because it rule that the was inadmissible evidence court instructed jury the trial Subsequently, than prejudicial probative. *96 relevant, and strike not from mind you’re your any the hair was “that made, and not to it further.” any which was consider you’re reference that find, record, from the and the trial court did not that the It does not appear that the trial having the evidence known intentionally presented prosecutor Rec- deferred on the of the evidence. ruling admissibility earlier had court in order to misconduct a defendant need not demon- that establish ognizing faith, Price, v. 1 Cal.4th a bad however supra, strate prosecutor’s if 447), we observe that even the committed misconduct prosecutor evidence, of this the the evidence and refer- exhibiting apprehension jury’s ences thereto was and it was informed trial court fleeting, specifically by it disregard that must that evidence. This admonition would have cured the (See any Berryman, harm caused misconduct. 6 Cal.4th by People supra, 1048, 1072; Price, 324, 447.) Cal.4th People

e. Intimidation and incitement of defendant Defendant contends that conduct a and a by detective prosecutor during trial, defendant, down” consisting “staring done to intentionally intimidate, or provoke, induce defendant to “blow before the up” jury, therefore constituted use prosecution deceptive reprehensible or methods to either attempt persuade the court or the As the jury. parties observed, have the record that reveals defense counsel advised trial court that Prosecutor Conn and Detective Worthen “would stare in such repeatedly a fashion and use facial (defense such fashion expressions which counsel’s) is intended to bait opinion Mr. Bradford.” When the prosecutor countered own, that defendant had been rude gestures of his making defense counsel responded “oftentimes his are remarks being his provoked—not remarks, his are gestures being provoked” officers. by prosecutors police The prosecutors out pointed that defendant had mouthed the regularly phrase “fuck you” to both had prosecutors, given “the finger” Prosecutor Conn times, on daily basis and to Prosecutor Ferraro in excess and had the asked previous day Prosecutor Ferraro she whether was wearing “falsies” that day. Defense counsel indicated had remonstrated with they not to such behave in a manner and also informed had the prosecutors that Detective court, Worthen was at their staring client. trial noting it had observed defendant’s bad conduct and only observed Detective Worthen from direction, time to time in defendant’s did not glancing order sanction, any but suggested consider course prosecutors “appropriate action” and that the defense warn client their not to continue such behavior. it,

Although have not noted parties the record further reveals related later, incidents as the trial Several progressed. weeks Prosecutor following that defendant had called her a “bitch” when she stood complaint Ferraro’s him, court admonished defendant not to make behind the trial remarks to the officers, later, or witnesses. One the court investigating day prosecutors, had been court that for the several indicated it apprised by personnel past witnesses, Rockwood, weeks several law enforcement Detective primarily *97 defendant, observed at him to become in had been staring causing agitated Prosecutor Ferraro advised the security problem. lockup, creating potential court that she would to the about that and that speak police problem, to return Rockwood was not scheduled as a witness. that, counsel for both to although

It thus sides appears attempted prevent enforce- recurrence of this behavior between defendant and law antagonistic Nonetheless, witnesses, those were not ment successful. attempts altogether defendant, sides, not to the trial court advised counsel for both as well as behavior, further in this and received assurances from counsel that engage the matter would be addressed. The record does not where the reveal exactly occurred, later conduct of the officers or that it continued this beyond nothing the record that of the juncture, suggests any objectionable or behavior was observable to noticed members of the miscon- by jury. Any Arias, duct the was not v. by prosecution prejudicial. (People supra, 92, 161; Price, 324, 447; Cal.4th 1 Cal.4th see v. People People 1048, 1076, 6.) 6 Cal.4th Berryman, supra, fn. Conduct

f. during closing argument

(1) error Griffin

Defendant contends that during closing argument prosecutor made numerous comments defendant’s failure to emphasizing testify the burden of to defendant to establish his innocence. shifting proof During Prosecutor Conn advised the that the defense did not argument, jury case, in the have a burden to call witnesses and that any prosecution the burden of and the to sufficient evidence to proof obligation present establish defendant’s The then noted that the course guilt. prosecutor during trial, witness, the defense had not nor called a single produced single of evidence to defendant’s innocence. on piece pointing Following objection that the defense was not defendant’s innocence grounds obliged prove had, essence, and that the commented defendant’s prosecution upon failure to the trial court advised the to “clear it testify, prosecution up.” burden of reiterated to the that the had the prosecutor jury prosecution proof to call sufficient witnesses to defendant’s and that the defense prove guilt had no to call witnesses. obligation any the victims had been killed

Subsequently prosecutor, arguing In on commenting for noted “there is no evidence to the contrary.” pleasure, blood, a stain that found on a mat inside the trunk possibly of defend- vehicle, ant’s out to prosecutor pointed that “no evidence jury has been introduced on that by issue.” The also ob- prosecutor [the defense] served that the defense did not call an witness to expert testify contrary the conclusions reached the coroner with the time frame of regard death, Shari Miller’s is free to although call his own “certainly witness to to those facts.” In testify time discussing which period during killed, had been Tracey noted that Campbell prosecutor defendant “pre- time sented no alibi witnesses for that nor period,” “photographs prove where he was.” In 380 U.S. 609 S.Ct. Griffin California 106],

L.Ed.2d the United States Court held that the Supreme prosecution *98 not comment a defendant’s may failure to own upon his or her testify not, however, behalf. Its does holding extend to bar comments prosecution based the state of the evidence or upon the failure of the defense to upon introduce material evidence or to call v. witnesses. anticipated (1992) 1183, Johnson 702, 3 Cal.4th 1]; 1229 842 P.2d Cal.Rptr.2d [14 1027,1051 v. People (1992) Mitcham 1 230, Cal.4th 824 P.2d Cal.Rptr.2d [5 1277]; (1990) 931, People 160, v. 51 Kelly Cal.3d 967 800 Cal.Rptr. [275 516]; P.2d 1194, v. People (1989) Johnson 47 Cal.3d 1236 Cal.Rptr. [255 569, 1047]; 767 P.2d 1, People (1988) v. Morris 46 Cal.3d 35 Cal.Rptr. [249 119, 843].) Nonetheless, 756 observes, P.2d as defendant we have held that a prosecutor may commit error if he or she to the argues jury Griffin certain uncontradicted, or testimony evidence is if such contradiction or denial could defendant, be provided the only by who therefore would be Johnson, take the required 1183, witness stand. v. {People Cal.4th supra, 1229; Mitcham, 1027, 1051; v. People Cal.4th supra, v. Murtishaw People (1981) 733, 757-758, 29 Cal.3d & fns. 19-20 631 P.2d Cal.Rptr. [175 446].) case,

In the present there were brief comments by prosecution during closing argument noting absence of evidence what contradicting produced by on prosecution several and the failure of the points, defense to introduce material evidence or alibi any witnesses. These com- ments, however, cannot be fairly interpreted as referring defendant’s failure to Neither the testify. general comment directed to the lack of defense evidence or nor testimony, the more comments particularized regarding mat, possibly bloodstained the coroner’s or the opinion, absence of alibi for time particular period, would have defendant to take the required stand. assertion, Contrary defendant’s the prosecutor’s comment that “there is no evidence to the contrary,” arguing the victims had been killed for plea- sure, does not constitute error within the of our decision in meaning Griffin Murtishaw, 733, 757-758, 19-20, v. 29 Cal.3d

People and footnotes and similar cases. The did not allude to the lack of prosecutor refutation or witness, defendant, denial sole by remaining but rather to the lack of evidence, which have been might the form of presented evidence physical event, “indirect, other than or that of defendant. In testimony brief and any mild references ato defendant’s failure to without testify, any suggestion therefrom, that an inference of be drawn are held to consti- guilt uniformly tute harmless error. 44 Cal.3d (People Hovey, supra, [Citations.]” 572.) did

Nor comments prosecutor’s shift the burden of impermissibly outset, to defendant. At the trial proof advisement following court, Prosecutor Conn reiterated that the the burden prosecution sufficient evidence to proof by establish defendant’s and that defend- guilt, ant had no or (See burden to duty produce evidence. any People Ratliff 41 Cal.3d 665].) 715 P.2d A Cal.Rptr. distinction exists between comment clearly permissible that a defendant has not evidence, and on the produced any other hand an statement that a improper evidence, defendant has a or burden to duty or a or produce burden to duty his or her innocence. prove

(2) Miscellaneous argument *99 Defendant contends that during closing the argument, made prosecution evidence, various comments that misstated the relied or upon speculation, asserted beliefs. Defendant personal contends that his were sus- objections tained but without sanction of the or admonition prosecution to the jury. With one defendant exception, has not to describe attempted these instances or provided citation to specific but has authority, references merely provided to the record. We are not those tasks ourselves. obligated perform Rodrigues Cal.4th fn. 20 Cal.Rptr.2d [36 1]; P.2d People (1937) 10 Gidney 1186].) Cal.2d 142-143 P.2d event, In the any record reflects that in most instances alluded to by defendant, either the was advised prosecution to and did reform its argu- ment, or the was admonished jury the After disregard argument. prosecution slightly misstated a witness’s Talbot’s testimony regarding Olga statements about evidence found in the lockers at defendant’s apartment to, did, evidence, building, prosecution was advised restate the aloud the reading from the testimony After the reporter’s transcript. prose- cution made a comment speculative defendant’s statement to the concerning Shari’s police efforts to obtain a was advised to regarding job, jury the comment. After the disregard that the manner in prosecution speculated “unnatural,” breasts was held her arms her photograph which Shari advisement, it the court’s informed the could jury the prosecution, upon from When the later draw its own inferences the photographs. prosecution reference to the circumstance that the victim’s arms have been might made a criss-crossed, then prosecution the court sustained objection, with invited the another. jury compare photograph simply defendant, other instances referred to the comments In by by prosecu- tor were too to warrant admonition. The simply insignificant any prosecutor commented that he did not believe it was for necessary police personally Ohanesian to conduct his demonstration in the photographer photographic and the court. The made a reference to what presence jury prosecutor instance, would In each the court police investigator “normally” testify. sustained the more was We conclude simply objections—nothing required. misconduct, that defendant has not demonstrated or failure prosecutorial any on the of the trial court to address the raised the defense. part objections

(3) Argument that robbed Shari Miller Defendant contends that the that defendant prosecutor improperly argued Shari, with, robbed the circumstance he had not been despite charged of, there was no evidence the course of his robbery. During closing argu- ment, Prosecutor Conn reminded the killer Shari’s took her jury jewelry watch, and her and that these items were found in defendant’s possession. said, watch, then “We know that the killer had taken her prosecutor taken her would rob her of her The defense jewelry, property.” immediately on the basis that the objected comment was a misstatement of the evidence and that there was no evidence of The court robbery. noted objection. that, Prosecutor Conn continued “We know that the killer would take her *100 watch, and noted property,” that defendant had her knife in and his jewelry, possession. the

Although prosecutor may have been incorrect comment- technically that the ing killer “would rob” Shari of her of the state the property, given evidence, the defense did not to the In admonition request any jury. any event, the circumstance that no evidence of had been robbery produced counsel, to the defense and the emphasized jury by implicitly prosecutor endorsed that comment his as a by immediately recharacterizing description theft of the did rather than a The statement property, robbery. prosecutor’s misconduct, not amount to misled could not have been jury possibly Price, prejudice by single to defendant’s this comment. 324, 447, 460.)

Cal.4th the law circumstantial evidence Characterization of of Defendant contends that the prosecutor committed misconduct misstat- by the law circumstantial evidence. In ing concerning closing Pros- argument, ecutor Conn stated: “I’ve about what we spoken must prove, that is all we that must . . . that he prove, [QQ committed the crime. In deciding crimes, whether he committed the are to look you at the circumstantial crimes, evidence that—or in that conclusion that he is reaching of the guilty are to those you rely circumstantial evidence upon pieces that think is you [QQ essential for that determination. What I mean that is this: jurors [sz'c] evidence, other of circumstantial may rely upon You don’t have to pieces [f] on what agree circumstantial evidence convinces that he is piece yourself crime, [QQ of the as another There is guilty opposed juror. nothing wrong well, with with one I believe disagreeing, nothing wrong juror really saying, [QQ fact, this witness. I’m convinced of this this circumstantial piece evidence, [QQ or a different with that In the final juror disagreeing juror. is in analysis only own mind is has question your prosecution [sz'c] the case a reasonable proven doubt.” beyond

The defense on the basis that the had misstated objected prosecutor law. At a later recess in the defense counsel that the proceedings, explained 4.71.5, “has misstated prosecutor No. in what the title of the [CALJIC ] instruction, aware, as the court is is must show act within the proof specific [QQ time The has alleged. told the need not prosecutor jury they agree the relevant dates and time upon of the acts which is alleged, specifically to this court’s contrary instruction . . . which indicates that the commission acts must be specific agreed when occur upon by jury they . . . the has told the don’t have to prosecutor jury they agree among themselves as to what occurred.”

The trial court advised the 4.71.5 does indi- prosecutor: “[CALJIC No.] cate that the have to the commission of jurors agree unanimously upon act each crime within the I specific constituting ... think period alleged be your argument them with the do not may leaving impression they facts, have to agree have to upon underlying they only agree upon of—the And I think that that’s to some question question guilt. contrary 4.71.5, extent to four and—four and five.” The court specifically, paragraphs cautioned Prosecutor Conn to “clear that up.” prosecutor subsequently *101 that, informed the he needed to clear several “In jury including up points, evidence, to the circumstantial it is the who determines which regard jury of circumstantial evidence he relies its conclu- pieces upon reaching [sz'c] sion. But whatever circumstantial evidence pieces you rely upon m conclusion, bear in mind those reaching your that the facts un[der]lying

1343 evidence, circumstances, be must proved those circumstantial pieces doubt.” a reasonable beyond circumstantial evi- the law concerning did not misstate

The prosecutor that the requirement jury We have concluded previously dence. to ensure that jurors agree is intended in criminal cases primarily unanimity of more than one act consti- possible act when evidence a particular upon introduced; it “does not extend to the criminal offense is tuting charged act was committed. minute details of how a single, agreed-upon [Citation.]” 511, 140, 814 P.2d (1991) 54 Cal.3d 178 Cal.Rptr. v. Mickle [284 290].) It that the was attempting convey point appears prosecutor his described above. argument

Nonetheless, that both the court and defense counsel it also appears construed the remarks as to the instruction prosecutor’s contrary unanimity a crime that is when a defendant is in a count with charged single required between certain and the evidence establishes several acts that occurring dates 294, (See (1990) constitute that offense. v. Jones 51 Cal.3d might People 611, 643]; 321-322 792 P.2d Diedrich Cal.Rptr. People [270 263, 354, case, 971].) Cal.3d In the P.2d Cal.Rptr. present 1, information in count that defendant murdered Shari Miller on or alleged, 6, 1984, 2, between 3 and and in that defendant murdered count July July 11, on or between 12 and Tracey 1984. Campbell July August Obviously, did not than one act as to each evidence of more prosecution produce Therefore, count. the court was not to instruct the required jury pursuant 4.71.5, CALJIC No. and the was not to avoid prosecutor arguing required that the did not have to as to which act was jury agree unanimously precise committed defendant with reference to a count. particular caution, in an excess of nevertheless instructed the court

Perhaps jury instruction, to an amended CALJIC Nos. 4.71 and pursuant combining 4.71.5, that in order to to find return a verdict of it was guilty, required that defendant committed the murder within the dates unanimously specified in the information as to that count.16 The argument prosecutor’s to that instruction and did not constitute misconduct. contrary given by provided: charged 16 Theinstruction the trial court is in Count I with “Defendant Miller, July July the murder Shari on or between 1984 and 1984. Defendant is [¶] charged Tracey Campbell, July in Count II with the between murder of on or When, case, August charged alleged as in this it is that the crime was committed [¶] 1984. dates, proof ‘on and between’ on or certain must show that the crime was committed guilty, necessary between those dates. In order to find the it is for defendant [¶] prosecution prove beyond specific constituting a reasonable doubt the commission of a act And, period alleged. guilty, each crime within the time in order to find the [¶] jury unanimously agree constituting upon specific must act each commission of the same *102 1344

(5) Cumulative error defendant contends Finally, that cumulative error that occurred due to the misconduct, as prosecutors’ alleged well as the trial court’s failure to sanction the and admonish prosecutors jury, prejudicial defendant. We do not find cumulative error reversal of the requiring (See judgment. 950, (1993) v. Clark 5 689, Cal.4th People 1017 Cal.Rptr.2d [22 857 P.2d 1099].)

12. instructions Jury

a. Instruction on second degree murder

Defendant contends that the trial court erred in instructing jury on the lesser brief, included offense of second murder. In his degree reply defendant also that the trial urges court’s the matter of delay raising instructions on second murder degree until after the defense had rested him from prevented into account that taking theory whether to deciding present evidence or to in his testify own defense.

During conference on instructions that jury occurred after both the rested, and the prosecution defense but prior closing argument, prosecution urged instructions on second murder be degree while given, defense counsel that such requested instructions not be The given. trial court that, determined pursuant 307, v. People (1982) Wickersham 32 Cal.3d 436, 311], 650 P.2d Cal.Rptr. [185 the instructions should be given. trial court thereafter instructed the jury pursuant to CALJIC No. 8.30 (definition of second murder), degree CALJIC No. 8.70 to determine (duty murder), degree (1979 rev.) CALJIC Nos. 8.71 (doubt and 17.11 as to degree second compels verdict), murder degree (1976 CALJIC No. 8.74 rev.) (unanimity as to requirement murder), degree CALJIC No. 8.75 (1982 new) (order of consideration of of murder). degree

It is well established that the trial court has a sua sponte duty instruct the on lesser jury included offenses when the evidence raises a question as to whether all of the elements of the offense were charged and there present is evidence that would justify conviction of such a lesser offense. (1991) v. (People 53 Cal.3d Cooper Cal.Rptr. 865];

P.2d People Bunyard 45 Cal.3d 1232-1233 [249 795].) Cal.Rptr. P.2d Second murder is a degree lesser included offense of first 771, 827; murder. degree 53 Cal.3d Cooper, supra, period crime within the alleged. time It is necessary particular [¶] act or acts agreed upon committed so be stated in the verdict.”

1345 307, Nonetheless, Wickersham, 326.) 32 Cal.3d even when v. People supra, the trial court a sua instruct the as sponte duty jury, the law imposes upon offenses, included is not duty triggered it with to lesser regard does “ less than there is no evidence that the offense was that charged.’ ‘when 920, (1995) 10 Cal.4th v. Hawkins 952-953 [42 [Citation.]” 636, 574].) 897 P.2d Cal.Rptr.2d a notwithstanding as to second murder is

Instruction degree proper his or her that such instruction is inconsistent with defendant’s objection case, from record contains substantial evidence as as the theory long was not which a could conclude that the defendant reasonably guilty jury (See v. murder but of second murder. only degree People first degree 186, 569, 531].) (1995) 201 P.2d Barton 12 Cal.4th 906 Cal.Rptr.2d [47 no Defendant contends that the record case contains present that the occurred without or evidence deliberation. killing premeditation record contains substantial evidence from which the could jury reasonably find that defendant killed either or both victims without or premeditation deliberation. defendant’s initiation of the offenses Although by luring victims to the same isolated location exhibits considerable premeditation deliberation, the nature of the murders themselves would not a preclude that defendant acted finding The circumstance that the manner upon impulse. of killing, ligature be somewhat more strangulation, might time-consuming methods, than other for does not obviate the example firing weapon, conclusion that defendant have or deliberated before might premeditated the victims. killing Moreover, it that defense counsel’s was motivated appears objection by “ ”

deliberate decision to ‘utilize an tactical all-or-nothing strategy,’ that the hope jury decide if it had doubts might against guilt any regarding whether a murder particular was the result of or instead of deliber- impulse 771, 827; ation or premeditation. v. 53 Cal.3d (People Cooper, supra, People 1189, v. Bunyard, 1234-1236.) 45 Cal.3d supra, In discussing offenses, of instruction as to lesser importance included we have previously admonished that the should not be confronted with an “all or jury nothing” choice when it believe that the may accused is of a lesser guilty only that, included offense. We have observed if no to convict given opportunity offense, of the lesser convict the defendant of the jury wrongly may offense, even it believes an element of is greater though that offense missing, rather than (1991) defendant v. Webster acquit entirely. (People 411, 1273]; Cal.3d fn. 17 814 P.2d People Cal.Rptr. [285 613]; Ramkeesoon Cal.3d 702 P.2d Cal.Rptr. Wickersham, 307, 324-325.) It People 32 Cal.3d appears that, murder, the trial court instruct as to second deciding degree heeded that admonition. properly we that the

Finally, reject suggestion trial court unfairly “surprised” the issue of as instruction to second murder after raising degree There apparent the defense rested. was no for request by defense an *104 on the matter of ruling earlier instructions. counsel proposed Defense the would have been well aware of throughout proceedings the possibility in that such instructions be of might given light requirements existing law, case in event could have to their any requested reopen permission case in order to evidence consistent with that present instruction.

b. Instruction on circumstantial evidence (CALJIC 2.01) No.

Defendant contends that the trial in court erred the standard giving of version CALJIC 2.01 and in No. to his declining instruction give pinpoint regarding circumstantial evidence. Defendant asserts that the standard in- that, struction misled the in “A of jury stating, pertinent part, finding guilt as to any crime cannot be based on circumstantial evidence unless the (1) are proved circumstances not with only consistent the that the theory (2) defendant is the crime of but cannot be reconciled with guilty any other [<]|] . rational conclusion . . If . . . one the interpretation [of evidence] to the you to be reasonable and other appears to be unreason- interpretation able, it would be to duty the reasonable your accept to interpretation the unreasonable.” reject Defendant that the suggests language foregoing undermined the constitutional of reasonable requirement beyond a proof doubt, because it directed the to jurors an the accept interpretation evidence as such an supporting as reason- guilt long interpretation appeared able and consistent.17

This court has similar claims. The instruc- repeatedly rejected challenged tion that specified “circumstantial evidence is sufficient to if prove only guilt it ‘cannot be reconciled with other rational conclusion.’ The any words in ‘rational’ ‘reasonable’ context the must read in be [of instruction] (CALJIC with the instruction conjunction 2.90). on reasonable doubt No. That instruction informs the that in the event harbor jurors [Citation.] a they reasonable doubt are to . . concerning guilt, they . . . . required acquit. [H 334, People Jennings (1991) acknowledges 17 Defendant 53 386 [279 Cal.3d 780, 1009], Cal.Rptr. rejected 807 we quoted language P.2d the claim that informs the the reasonably appears jury may it guilty find a if or she guilty, defendant he to even be jury guilt. when the still a entertains reasonable doubt as to the defendant’s stated in As we Jennings, plain meaning of merely jury reject informs the unrea “[t]he [this instruction] interpretations give sonable of the evidence and any defendant benefit of reasonable juror interpreted permit doubt. No reasonable would have these instructions criminal ‘apparently’ guilty, yet guilty beyond conviction where the evidence shows (Ibid.; People (1995) 694, 165, v. Medina doubt.” Cal.Rptr.2d reasonable 11 Cal.4th 764 [47 2].) 906 P.2d

1347 as to the Thus, theory interpre- can find the prosecution’s jury properly alternate evidence ‘reasonable’ and theories the circumstantial tation of ‘unreasonable,’ within of these instruc- meaning to the defense favorable tions, is a reasonable doubt of beyond if the convinced jury only v. Wilson 3 theory. prosecution’s [Citation.]” accuracy 1212]; P.2d v. Ray (1996) 838 People Cal.4th Cal.Rptr.2d [13 Davis, 846]; 914 P.2d People Cal.Rptr.2d Cal.4th 463, 521.) the claim in defendant’s reply Cal.4th We made reject No. CALJIC light not consider CALJIC 2.01 might brief that the jury instructions. The two due to the separation presentation No. 2.90 No. 2.01. CALJIC err in instructing jury court did not pursuant trial *105 to the according to instruct the did the trial court err in declining jury Nor to No. defendant. That modification CALJIC 2.01 sought by proposed evidence “To a defendant on circumstantial modification convict provided: alone, every must exclude to a moral certainty the circumstances proved above, of As the standard single other one discussed theory guilt.” but instruction, instructions, considered with the other and together accurately to the to circumstan- that its with conveyed jury findings regard adequately addition, tial be doubt. the modifica- evidence must a reasonable In beyond tion trial would have introduced into CALJIC No. at sought by 2.01 the of “moral that the United States Court certainty” Supreme concept Nebraska, 1, criticized in 14-17 supra, Victor v. 511 U.S. specifically [114 1239,1247-1249] Sandoval, 155), S.Ct. v. Cal.4th (affirming People “ ” in the abstract’ that it finding determining and concept ‘ambiguous (1994) added of value to instruction. v. Freeman nothing (People 450, 558, 249].) Cal.4th 501-503 882 P.2d It is clear that Cal.Rptr.2d [34 such it a modification was not nor would have constitutionally required, been in other an the standard version of any respect improvement upon No. CALJIC 2.01.

13. misconduct Alleged juror

a. Sleeping juror that,

Defendant the trial awareness that a contends court’s despite it failed had fallen to juror asleep slept during day, also previous to be ought conduct an order to determine whether the juror inquiry Worthen the defense cross-examination of Detective discharged. During he the prose- the interview conducted with defendant on regarding July to on the defense counsel failed to refer cution basis that objected of Defense counsel of that interview. pertinent portions transcription was time to each page that he to save referring responded attempting the trial court “I’ll [‘JQ announced: overrule the transcript, objection. We have a counsel juror that’s Defense “That’s I’m asleep." responded: why to make this fast. The trying go juror all asleep day also.” yesterday, The “I court know.” responded: observed,

As we trial court recently a may discharge juror who “[a] ill, upon ‘becomes or other cause shown good to the court is found to be unable his to . . .’ perform (§ 5th Once a trial duty, par.) [or her] exist, court is on it put good may notice cause a is discharge juror court’s ‘to make whatever is to determine necessary’ duty inquiry reasonably whether have ex- should be We discharged. recently juror [Citation.] however, that the ‘inattention’ does not plained, mere suggestion juror a formal the trial of a case. require hearing (People disrupting [Citation.]” 204].) Espinoza 3 Cal.4th 838 P.2d Cal.Rptr.2d “ bias, ‘The whether decision investigate juror incom- possibility or misconduct—like the ultimate decision retain or petence, discharge within the sound discretion the trial court. juror—rests [Citation.] court does its not abuse discretion because it simply fails investigate any ” information all new obtained about trial.’ juror during *106 Osband, 622, 675-676.) 13 Cal.4th A supra, is where hearing required only which, true, the court information if to be would possesses constitute proved cause” “good to doubt a to or her juror’s ability his duties and perform would his or her the (Ibid.) removal from case. justify 806, 821,

In Espinoza, v. Cal.4th we People supra, 3 concluded that defense counsel’s that a have been speculation juror might was sleeping insufficient to the trial court that exist apprise good might discharge cause to juror, and therefore did not the court conduct obligate to further any 1198, In v. (1992) DeSantis 2 inquiry. People Cal.4th 1233-1234 [9 628, 1210], P.2d 831 we concluded trial Cal.Rptr.2d that the court’s “self- directed which involved several to deter- inquiry,” observing jurors closely mine were whether none was was they that asleep, determining dozing, sufficient, and that more formal was under the not hearing required circumstances. case, contrast,

In the the court observed that a present by juror know,” comment, the court’s “I currently asleep. Although subsequent is somewhat because it have been either to defense ambiguous may directed counsel’s remark that he was to hasten the examination or attempting defense counsel’s remark that the had been during juror asleep previous it that the court also had been day, appears likely asleep recognized juror Nonetheless, that at time as well. record more reveals no than that in have been appears on the day question had fallen juror asleep earlier; juror that the continued fall it does appear one day asleep of time. longer for a period or had been asleep asleep inat- recognizing “[although juror have observed that implicitly We misconduct, an understand- courts have exhibited constitute may tentiveness of inattentiveness verdicts on the ground to overturn jury able reluctance fact, to our attention which case has been brought trial. In not a single during involve cases Many reported a new trial on ground. granted of a trial. part that one or more jurors slept through contradicted allegations from a viewed effect of trials when the soporific many Perhaps recognizing a new trial to order these cases decline uniformly layman’s perspective, during were actually asleep that the convincing proof jurors the absence of 599, (1922) 189 Cal. v. Lee Yick of the trial. portions material 83, 538]; (1915) 88-89 P. 171 Cal. People Ung Sing [151 609-610 P. [209 178, 883]; (1935) 4 P.2d 1145]; Cal.App.2d v. Maurer Callegari [40 477]; .)” P. . . (1912) 20 423-424 v. Roselle People Cal.App. [129 (Hasson v. Co. 32 Cal.3d Cal.Rptr. Ford Motor 1171].) 650 P.2d is a lower as to misconduct activated

Although duty inquire juror case reference threshold in the the absence present any proof, indicates record to the inattentiveness over a more substantial period juror’s its to conduct an that the trial court did not abuse discretion failing Johnson, (Cf. 21-22 court Cal.4th People inquiry. [trial juror actually excused when evidence established that juror ample properly occasions, or also had juror had fallen trial on one more asleep during dire].) The court demon- failed to disclose arrests voir trial prior during *107 of its continual of the attentiveness and attitude the on scrutiny jurors strated view the this In of trial court’s and numerous other occasions trial. during extremely the slow pace admonitions to both to accelerate previous parties that a it is the court reasonably the trial determined proceedings, apparent further in the to address the matter not justified interruption proceedings the the conduct thus far exhibited Defense counsel’s observation by by juror. a assertion of miscon- juror the made without concomitant concerning juror, Davis, (cf. duct for a the People or on request hearing subject had 546-548), conduct not juror’s Cal.4th further indicates the a the trial court did not abuse its warranted such We conclude hearing. conducting inquiry. discretion an Hostile jurors

b. failing court erred both in trial

Defendant contends once it to discharge jurors, an and in failing make adequate inquiry learned that several had indicated jurors toward prejudice defendant. On 3, 1987, deliberations, December the third during day the trial court Bonner, received a note from the jury Kimiko “We foreperson, stating: do have big We must to talk to problems. We and we would judge. took vote (8-3-1 not be able to on stand.)” go any longer. The trial court conferred with counsel, them that it did not believe advising had had sufficient jurors evidence, time to review the and did not know what of vote jurors type had taken. the court summoned the and

Accordingly, interviewed the jury foreperson. Bonner informed the court: “We do have a few hostile jurors group. And some other—a few other juror[s] can’t on as as expressed they go long those few hostile are on jurors When the trial court asked panel.” Bonner to she Foreperson advised that a conflict explain, had arisen between a few and “some jurors, jurors express remark . . . prejudice this [a]gainst case defendant. So therefore I feel we personally don’t think we should defendant, on because some of go the juror[s] fate already express even—not even discuss the entire evidence.” Bonner further advised the court that she did not think it would be to reach a verdict possible unless the hostile jurors were Bonner that the replaced. vote taken was not to explained whether, determine innocence or but to guilt, determine because of their differences, personal could deliberate jury further. Eight jurors had further, indicated could they deliberate three had indicated that could they further, not deliberate and one had juror abstained. counsel,

After further consultation with the trial court summoned again jurors how much evidence inquired had reviewed. they Foreperson Bonner that the reported jurors reviewed 25 to 30 only percent deliberations, evidence their three during which days at a few point jurors “made a remark” very prejudiced and the commenced. When controversy asked whether those were jurors in further delibera- willing participate tions, she indicated that they were “more than willing” participate. trial court then individually each “Do questioned juror: feel this you can jury in further engage deliberations?” Seven answered jurors affirmatively, three jurors answered one negatively, indicated she juror could continue to delib- in, erate if two new were jurors substituted Bonner was not Foreperson *108 polled.

Outside the of the presence the the trial court jury, to prosecutor urged deliberate, reread the instructions the to and to advise concerning jury’s duty hand, the to continue its jury deliberations. The defense on the other urged, that the presence prejudiced had contaminated the deliberation jurors whole, and that either the as process a or individual should be jury jurors, No. and reread CALJIC the jury The court summoned again trial discharged. considering after opinion his or her individual (each must render juror 17.40 vol.) (it is evidence) (4th ed. 1979 bound and No. 17.41 the discussing outset; at jurors to or her the opinion for a state his juror “rarely productive” the aside any The trial advised to jury put court not but judges). are partisans deliberate. and continue to hard feelings basis of misconduct. juror for a mistrial on the moved

Defense counsel deliberations recommenced court the motion. The jury The trial denied day that the remainder of further and deliberated during without incident to a verdict. additional court days rendering for 10 prior above, discharge to the trial court may indicated section 1089 As pursuant ill, is cause shown to the court who “becomes or other upon good a juror once on notice put to be his duty,” found unable to perform [or her] exist, make court has a to may duty cause to the discharge juror good juror determine the is to whether inquiry reasonably necessary whatever 806, 821.) As we v. 3 Cal.4th Espinoza, should be (People supra, discharged. 666, 743 (1987) 43 v. Gates Cal.3d People Cal.Rptr. observed “ 301], misconduct, ‘an the facts must establish P.2d establish juror functions of a and that must juror, appear inability perform inability Johnson, 1199; (Id. as v. People the record a demonstrable at reality.”’ p. 1, 21.) 6 Cal.4th supra, bias,

The of juror decision whether to investigate possibility misconduct, whether or as well the ultimate decision incompetence, as or within discretion the trial court. discharge retain rests the sound juror, Osband, 622, 675-676.) If substantial any Cal.4th of its evidence exists the trial court’s exercise discretion pursuant support (See People to section the court’s action be on appeal. will upheld Price, 324, 400.) supra, Cal.4th case, an

In reached having jury learned present discovered trial court an court impasse, inquiry. conducted apparent strongly made two that the arose because of comments disagreement they other to conclude jurors that had caused several jurors opinionated any with because could not deliberate further those jurors—and The court with of defendant’s guilt. deadlock to the substantive issue regard including duties as jurors, then reinstructed the their jurors, emphasizing upon of each based juror entitlement of each to the individual opinion party evidence, manner and the a consideration and discussion of appropriate an task, declaring inadvisability in which to their approach including at the outset. opinion

The trial court did not abuse its discretion in that determining no juror misconduct had occurred of the warranting discharge entire or jury individual The jurors. record reflects that several jurors, apparently having failed to heed the in (4th admonition CALJIC No. 17.41 ed. 1979 bound vol.) read, the first time it was had in fact stated their or their opinions deliberations, intended vote in the very early in an manner that emphatic conduct, offended or certain other That upset jurors. identified in the instruc inadvisable, tion as “rarely nevertheless did productive,” not con although stitute misconduct. The of the instruction is derived from an language early decision this court instruction that “it would be by advising upholding jury better that refrain from they declarations of hold their emphatic opinion minds ‘in a state of so inter abeyance,’ that they might ‘fully freely other,’ views with change each it ‘for interests of the State and the being ” defendant, benefit of the that verdict should be returned.’ v. (People Selby (1926) instruction, 426].) 198 Cal. P. This while strongly [245 terms, (See in suggestive its is not Neely mandatory. People Cal.App.3d 531].) Cal.Rptr. 1011.

The statements made certain emphatic in their delibera jurors early tions did not disclose conduct on their after any improper jurors, part. duties, reinstruction and an receiving of their continued explanation deliberate the remainder of during and for an additional 10 court day incident, this days on a number of following occasions to see the requesting exhibits or hear a read-back of without indication testimony, giving any they were differences or were unable having personal to review the evidence as a deliberative together The record does in body. demonstrate any way an on the inability their part jurors functions. perform Gates, 1168, 1199.) 43 Cal.3d

B. Penalty Phase

1. Failure to a new impanel jury

Defendant contends that the trial court erred his motion denying or, a new at the commencement impanel jury penalty phase alternative, to voir dire the in order to determine whether existing jury good cause existed to Defense based discharge jury. counsel’s motion was upon above-related circumstances to the trial attention on court’s brought 3,1987, December initial regarding jury’s difficulty deliberating together due to the remarks and of several outspoken opinions jurors.

The trial court denied the observing motion a lengthy explanation one or two their views in the although jurors early stated forcefully

1353 deliberations, one the that the or two other with jurors impression leaving exercise, as an the unnecessary further deliberations any jurors regarded instructions, reread pertinent had jury’s difficulty of the upon learning court the commitment jurors’ and had obtained admonished the jurors, had further next court had deliberated over the 10 resume deliberations. jurors to of exhibits time to a number large course of that view the days, requesting of At no testimony. of the to to the a substantial rereading portion and listen in the did the indicate further problems after December 3 foreperson time factors, the court determined of the In view of these trial deliberations jury. to function an inability it the had demonstrated that did not appear jury evidence, the the that fact an to consider and or unwillingness properly that during The court indicated a deliberative process. jury engaged to it their earlier commitment would remind the of jurors the penalty phase all evidence an mind the alternate until concerning punishments keep open heard, the would of jurors on the issue had been that it bearing inquire as to their to honor that commitment. ability evidence,

At the of outset of the to the phase, prior presentation penalty the trial court reminded the had indicated jurors they they previously mind, would an of ideas or regardless preconceptions they keep open any had, evidence, statements, to arguments and that would listen they both The trial court then and received parties. individually inquired, mind affirmative of each that he or she could an response juror keep open with to the respect penalty. question

The trial court’s second for the decision to a impanel jury penalty or the trial to re-voir dire the is reversal jury subject only upon phase 415, 482; Lucas, abuse supra, an of discretion. v. 12 Cal.4th (People People 377, 238, 897].) 4 (1992) v. Rowland Cal.4th 268 841 P.2d Cal.Rptr.2d [14 190.4, (c), Section “If the of fact which convicted the subdivision states: trier a defendant of a crime for which he be death may subject penalty consider to be for jury same shall ... unless jury, penalty applied, cause shown the court in which case new good discharges jury jury shall be drawn. The shall facts in finding good court state support cause be into minutes.” This upon cause the record and them to entered “ single statute ‘reflects for long-standing legislative preference jury ” Lucas, 12 determine both Cal.4th guilt supra, v. penalty.’ 483; 817 v. Nicolaus 54 Cal.3d People Cal.Rptr. Gates, 893]; 1199.) v. supra, P.2d 43 Cal.3d People More or desire of counsel is necessary than defense speculation Rowland, v. establish cause to the jury. (People good discharge 195, 252-253; 238, 268; Pride, People Cal.4th supra, Cal.4th People *111 792, 24, (1992) 2 Fauber Cal.4th 846 249].) 831 P.2d Cal.Rptr.2d [9 As we Gates, observed in is no direct on the of authority “[t]here meaning ‘good are, however, cause’ in this context. There cases involving the of question for cause of a good discharge juror under sections 1123 and 1089. As to the statutes, latter the facts must ‘show an to the functions inability perform of a and that juror, must in the record as a inability appear demonstrable reality.’ Gates, 1168, Moreover, v. 43 (People supra, 1199.) Cal.3d [Citation.]” cause is a showing good to the motion prerequisite to granting discharge or the to voir dire. The trial jury court is not to voir reopen obliged reopen dire based mere cause upon speculation to good discharge jury {Ibid.) be discovered. thereby may

We have held that a trial court did not abuse its discretion in to refusing when, dire, a new impanel jury voir the court during had advised the that the defense prospective jurors would in evidence at present mitigation but thereafter the defense decided not penalty phase, to evidence present Lucas, in 415, at that mitigation (People v. 12 phase. Cal.4th 483- supra, 484.) we have held Similarly, that the trial court did not abuse its discretion in to a new declining impanel because defense jury at the simply strategies guilt Pride, and the phase were penalty phase different. v. 3 (People supra, 252; 195, 719, (1990) Cal.4th v. People Taylor 52 Cal.3d 737-738 [276 391, 1142].) 801 P.2d Nor Cal.Rptr. does the trial court abuse its discretion in to declining a new impanel jury based the assertion that upon at jury be penalty phase might prejudiced by heard the evidence of having Pride, 195, 252; crimes. v. capital (People 3 Cal.4th supra, see v. People Balderas, 144, 41 204.) Cal.3d supra, cases,

In a number of we also have similar rejected substantially argu ments for the voir dire of the reopening before the jury penalty phase. 719, v. (People Taylor, 52 supra, Cal.3d court did not err in [trial defendant’s denying to re-voir dire the request based jury upon contemplated deviation between defense at strategy guilt penalty phases]; People v. 1, (1988) 525, Malone 47 Cal.3d 27-28 762 P.2d Cal.Rptr. [252 1249] bias, assertions of possible [defendant’s based juror upon inflammatory verdict, nature guilt phase evidence and jury’s promptness rendering court]; held insufficient to impose duty inquiry upon People Ainsworth (1988) 45 Cal.3d 1028-1029 755 P.2d Cal.Rptr. [248 1017] [trial court did not err defendant’s voir dire denying request reopen where counsel could no facts point cause furnishing good only specula tion that the found jury, having defendant no could be guilty, longer impar tial]; see v. Melton People Cal.3d 748-750 Cal.Rptr. 741].) Gates, 750 P.2d Similarly, we concluded that the defense motions, based upon generalized assertions of general publicity prejudice, crimes, afforded no ground the judicial system, about and criticism Gates, voir dire of the or reopen jury. discharge 1168, 1198-1199.) Cal.3d out, case, the defense as defendant has motions pointed

In the present near the at conduct of the that occurred jurors were directed more specific determined, as As trial court carefully outset of their deliberations. concluded, however, have no was shown to have misconduct we previously cause Thus, good furnishing has facts any not pointed occurred. *112 having sitting jury, to that the motion—only in of his support speculation had demon- be or thereby no could longer impartial found defendant guilty, Ainsworth, 45 Cal.3d lack of strated its impartiality. its that good did 1028-1029.) deciding The trial court not abuse discretion a new jury and the motion to impanel cause not been shown in denying had the or to voir dire existing jury. hearings

2. absence Defendant’s from from certain court proceed- contends that his absence Defendant to a fair trial. on defeated his constitutional ings right several occasions was on the occasions. following Defendant absent 10,1987, above, On as was not November described defendant apparently with an ex at which defense counsel discussed present during parte hearing to to The the trial court their intention rest without defendant calling testify. to trial court advised it would await any by testify that request his own behalf. 5, 1988, the

On of the phase, the commencement January prior penalty a trial alerted was absent due to court that one juror temporarily parties death in her and the available family, options postponing discussed or the trial court trial an alternate substituting During hearing, juror. after requesting noted that in court. Later present day, defendant was an ex the trial court that defendant defense counsel informed parte hearing, defense counsel did but that mitigation, not wish evidence present defendant’s wishes. Defense would evidence in despite present mitigation was court decision to beard counsel also advised the that defendant’s grow his instability increasing. that mental sign court, 14, 1988, stating On outside defendant’s January presence, held a his without contradiction that defendant waived appearance, of Julianne P. exclude rape on a defense motion evidence hearing file in that case. to locate the court parties attempts portions discussed 19, 1988, On January counsel, following statements opening by prosecutors called Julianne P. to Prior to testify. her defense testimony, counsel, that defendant had stating concerns over expressed “his ability himself,” conduct informed the court that defendant had to be requested excused case. The during prosecution’s trial court his permitted excusal witness, in-court identification following each and exten- specifically advised sively defendant of his to be right present all of the during phases absence, proceedings, potential of his consequences would that he not have the to raise the issue on right appeal. Defendant waived specifically his to be right and to error present appeal any from his absence. arising defendant, Following Julianne P.’s appearance identification he ab- sented himself from the courtroom for the remainder of her On testimony. 20, 1988, H., January called similarly, prosecutor Tamara and after she defendant, identified he exited from the courtroom. Defendant subsequently a desire to be expressed at trial and was present present during testimony of Mark W. and the witnesses. remaining *113 25, 1988,

On a.m., court January commenced proceedings at 11:00 trial court informing that a parties juror taken ill and that the of evidence presentation would be continued to the After a following day. brief instructions, discussion submission concerning of jury the court ad- 26, 1988, journed at 11:05 a.m. On proceedings January court proceedings commenced at 2:00 and the p.m. prosecutors defense counsel conferred with the trial court regarding proposed penalty phase jury instructions. Court adjourned at 3:40 p.m. hiatus,

After a defense, one-day which the during with apparently defend- court, ant met ex present, with the parte prosecution the defense 28, further presented argument concerning instructions on jury January 1988, in defendant’s absence. The trial court issued its proposed on rulings the jury instructions. 1, 1988,

On February defense counsel a requested hearing outside the defendant, at which presence informed the court they that defendant again was to seeking himself. Counsel represent informed the court that defendant did not wish any witnesses to on testify his behalf and wished to testify before the that he wanted to be executed. jury Defense counsel alerted the court that believed defendant was they The trial incompetent proceed. court denied the defense for a continuance and for on requests hearing In ex court competency. defendant subsequent parte hearings, queried his directly concerning himself. request represent It is established that a defendant has a federal constitutional right, from the emanating confrontation clause of the Sixth Amendment and the

1357 Amendment, at any stage to be present due clause of Fourteenth process if his to its outcome presence “that is critical the criminal proceedings v. (Kentucky Stincer to the fairness of the procedure.” would contribute 2658, 2667, 730, L.Ed.2d (1987) 631] U.S. 745 S.Ct. 96 [no 482 [107 hear- defendant was absent from competency constitutional violation when 522, 1482, U.S. S.Ct. Gagnon (1985) v. 470 526-527 ing]; United States [105 1484-1485, violation when 84 L.Ed.2d constitutional 486] [no addition, has In a defendant discussion with juror].) absent from judge’s to the at critical state pursuant to be right personally present proceedings, Johnson, 1, Const., I, 15; v. 6 Cal.4th (Cal. supra, People Constitution art. § 977, 1043). 18), (§§ as well as statute pursuant to be held that a defendant is not entitled

This court has repeatedly at that occur either in chambers or bench discussions personally present matters as to on law or other outside jury’s presence questions “ ‘ which the defendant’s does not bear substantial presence “reasonably ’ ” fullness of the charge.” relation to the his defend opportunity against 1046, 630, (1989) 1080 774 v. Bittaker 48 Cal.3d (People Cal.Rptr. [259 1068, 659]; (1995) v. 11 1120-1121 People P.2d Horton Cal.4th [47 516, 1, 18; Johnson, 478]; P.2d v. 6 Cal.4th supra, Cal.Rptr.2d People 849, 870, (1990) v. Medina 51 Cal.3d 902-903 People Cal.Rptr. [274 1282]; P.2d v. 50 Cal.3d People Holloway Cal.Rptr. 1327].) 790 P.2d Sections and 1043 do not defendant’s require waiver, a written presence, or unless that standard has been met. 825; Medina, 53 Cal.3d 51 Cal.3d

Cooper, supra, People *114 1116; 902; 1098, v. v. Holloway, Bloyd 50 Cal.3d People supra, People 333, 368, 802].) (1987) 43 Cal.3d 359-360 P.2d Cal.Rptr. 729 [233 has the his Defendant burden of his absence demonstrating prejudiced 1098, him fair Cal.3d case or denied trial. v. 50 (People Holloway, supra, 257, 1116; 746, (1989) v. Garrison 47 Cal.3d People Cal.Rptr. 783 [254 419].) P.2d has not met his burden of establish- Defendant clearly in the ing present case. prejudice conferences,

Defendant notes his absences from various in-chambers but that he waived when the court fails to observe had his specifically presence event, In any discussed instructions certain other of law. questions jury relation it did not substantial is that the matters discussed bear a apparent his v. (People “the fullness of to defend against charge.” opportunity Medina, 870, 771, 825; v. 51 Cal.3d supra, 53 Cal.3d Cooper, supra, People of 902-903.) In those the court defend- instances in which counsel advised reveals that desire to the settled statement ant’s proceed persona, propria of counsel be held outside presence defense that such requested hearings defendant in order to and secure his his efforts protect rights, despite Moreover, his from in his best interests. prevent attorneys acting was to act on several occasions until he permitted propria persona at that role. Defendant has not shown how his attendance such relinquished of would have assisted the defense or otherwise altered the outcome hearings Horton, trial, v. his and therefore has not demonstrated prejudice. 870, 1121; Medina, 51 Cal.3d Cal.4th People supra, 902-903.) witnesses,

Defendant notes his absences of several testimony during their but fails to observe that he to be absent during expressly requested were concerned and that defendant and his counsel testimony, specifically case, he be that his adverse behavior would be to his should detrimental (See to remain in court. 50 Cal.3d required People Holloway, supra, above, 1116.) As he of his and the advised explained fully rights absence, of his waived his possible consequences validly presence this v. Jackson during portion penalty phase. (People 1254].) Cal.4th 1209-1212 920 P.2d Cal.Rptr.2d Accordingly, (Id. 1210.) no violation of defendant’s Federal Constitutional occurred. at p. Nor, defendant’s threatened did violation given disruption, any statutory Moreover, (Id. 1210-1211.) occur. at how defendant has failed pp. explain attendance altered his of these witnesses would have during testimony and, the outcome his trial has not demonstrated any accordingly, prejudice. (I 1211-1212.) at pp. d. 3. The notice prosecution’s evidence aggravation him

Defendant contends that the failed to provide prosecution with notice of the evidence of circumstances to be timely aggravating at the and that he was denied his presented penalty phase thereby rights law, trial, due a fair and a reliable determination process penalty pursuant Const., 5th, 8th, Amends.) (U.S. to the federal & 14th In Constitution. defendant contends that the notice concerning particular, prosecution’s *115 F., one of incident Ellen who was to to the facts involving testify underlying activities, defendant’s not meet the of sec- criminal did prior requirements 190.3, a tion in to the defense and that the trial court erred declining grant this incident. continuance to the evidence investigate concerning that the prosecution may Section 190.3 relevant provides part of the defendant “notice evidence in if it has only given present aggravation time as to be introduced . . . within a reasonable the evidence period court, must be to To be the notice determined the trial.” by prior timely, as the “before the cause is called to trial or as soon thereafter given Pride, v. Cal.4th supra, learns the evidence exists.” (People prosecution content, to the must afford the defend- 258.) sufficient as notice To be “ allegations.” defense to the ‘a to prepare ant reasonable opportunity’ Arias, 92, 166.) bemay provided 13 Cal.4th Actual notice supra, v. (People notice, as information such but by the only statutory supplemental not by 195, 258-259; Pride, People 3 Cal.4th police reports. 334, 391.) 53 Cal.3d Jennings, supra, case, the cause to the time considerably

In the present prior 3, 1986, trial, describing filed a notice the on July called for prosecutors at to introduce intended they several evidence that categories aggravating to be the “There appears the notice included following: That penalty phase. the committed defendant in by evidence of a sexual and assault physical more I to obtain State of Florida about seven am years ago. attempting be and should about incident from the sheriff’s department, information this next and of any police reports by able with details provide you copies week.” trial, 11,1988, and

On at the of the defendant orally January penalty phase as this incident was written that the notice provided motion asserted by insufficient, and for a order investigate moved one-week continuance the incident. At the the defense noted that defense hearing, investigator counsel, noting had interviewed Ellen F. on December Defense 1987. Florida, one from Police the Valparaiso, supplemental reports incident, the medical evidence did described the asserted that Department hence defendant found it the victim’s statement and appear support to consult a The stated without contradiction necessary physician. prosecutor that defense counsel earlier had that he “was in acknowledged receipt F.” Defense then described the information concerning Ellen counsel reports notice, received, reports, had they already July police including victim, from Prizio from the and “a Al physician’s report, report report [sic], Florida.” but that court that the notice was original “wanting,” trial found that reports had cured the circumstance lack been

original specificity by to the the assault question, providing had been sent defense specifying dates, information, names, for the an followed opportunity specific victim, information had that certain defense to interview the investigator court notice. The trial been soon” after the provided “fairly July the motions. no denied concluded that defendant suffered prejudice, *116 notice of the original found that the insufficiency The trial court correctly by prosecution had been cured the materials subsequently provided materials, and that a after it obtained those additional continuance was 815, (See (1991) v. Daniels 52 Cal.3d 879-880 unnecessary. People [277 906].) 802 P.2d Defendant has not demonstrated how his Cal.Rptr. given. defense was the manner in which notice was “actually hampered” by 765, 824 P.2d 1 Cal.4th (People Pinholster 958 Cal.Rptr.2d 3, 1986, 571].) defense knew The record reflects that as of September and an that the incident involved a sexual assault strangulation incorporating as of January to cut off the victim’s that nipples; attempt Florida defense knew that the incident occurred in approxi- additionally earlier; 17, 1987, months seven and that as of several mately years February trial, of defendant’s the defense to commencement of the guilt phase prior and, in court’s knew that the incident related to Ellen F. order to seek the witness, had authorization for funds to travel to Florida to interview this and received a indication from the trial court that the sought preliminary evidence would be admissible at the to the defense penalty phase, prior 11, 1988, had received all available materials and had motion on January interviewed Ellen F. This witness was not called until upon testify 2,1988. Moreover, defendant there is no reasonable that February possibility from manner in which the suffered any prejudice prosecution provided Pinholster, (See notice of this evidence in People aggravation. 865, 958.)

Cal.4th 4. Failure to the nature medication investigate of defendant’s court, been alerted to the

Defendant contends that the trial having medication, him due that defendant was taking deprived circumstance to determine of law to conduct an by failing adequate inquiry process or effects defend- whether it was administered what side being involuntarily, ant was experiencing. defendant

Prior to the witnesses at the any penalty phase, appearance himself. During indicated to the trial corn! that he wished represent defendant understood all fully extensive examination as to whether court’s decision, the adverse of such a consequences prosecutor the potentially defendant medicated with drug alerted the court that then being court, affect his himself. Upon inquiry by might ability represent [s/c],” that he had stated he was taking “Sinequan, psychotic case, time of the motions in been the medication since the pretrial taking to receive the medication during and that he he would continue anticipated whether, When the course of the the trial court phase. inquired penalty the course during view of defendant’s with the medication daily experience trial, his ability represent he believed it would have effect any upon

1361 himself, in the Defense counsel observed responded negative.18 defendant defendant, had not of their of noticed they that the course representation defendant, he on the of that part difficulties or disorientation any perceptual that would cause him to be as a of the medication had no result disability counsel, that he understood the clearly unable to as his own and function his own and assisted in defense. and actively participated proceedings 1810, 118 504 127 S.Ct. L.Ed.2d (1992) In v. Nevada U.S. Riggins [112 defendant, to 479], the court certiorari decide granted relied high upon trial of medication during “whether forced administration antipsychotic (Id. Sixth Amendments.” at and Fourteenth violated guaranteed by rights 1814].) held S.Ct. The court that a p. potential depriva 132-133 at pp. [112 involuntarily of of occurs defendant is tion due law when a process pre scribed such medication criminal and once during proceedings, administration of medica defendant moves to terminate antipsychotic tion, is to that the medication needed obligated state becomes establish 1814-1815].) (Id. S.Ct. 134-135 medically at pp. at pp. appropriate. [112 case,

In the did to terminate the administra- defendant not move present medication, tion of or he was medicated invol- otherwise assert that being raise for time on the claim that untarily. may Defendant the first appeal were to to he was denied due of law because administered him process drugs control v. Jones his mental condition during proceedings. 119, 386, 960].)

15 Cal.4th 152-153 931 P.2d Cal.Rptr.2d [61 that, We the trial light Riggins, also defendant’s contention reject re- court that defendant was medicated was upon becoming aware being sua to determine or not he was medication receiving whether quired sponte to and whether or not that medication had defendant voluntarily, exposed side effects. That case limited which its clearly holding, imposed upon trial court a to the in which a defendant has moved situation duty inquire, to terminate the administration of medication. v. Ne- (Riggins involuntary vada, 1810, Jones, 1815]; supra, 504 U.S. S.Ct. v. People [112 119, 155-156.) 15 Cal.4th supra, case,

In the defendant did not make such motion. Addition- any present in the that the administration defendant’s ally, record nothing suggests Nevada, 504 U.S. supra, medication was (Riggins involuntary. 1810, 1815]; Jones, 152-154.) S.Ct. Cal.4th People required defendant holding inquire 18 Inview our the trial court was not whether medicated, Attorney being involuntarily request of both we decline the (h), of judicial Code section subdivision pursuant General take Evidence notice Physician’s categorization properties regarding in the Desk several entries Reference Sinequan. *118 to determine defendant’s

During hearing act as his own competence counsel, moreover, the court received information from both defendant and that, treatment, his counsel based months’ with the upon many experience defendant’s to function and to a defense had not been ability present the medication. Defendant was not denied due of law impaired by process Nevada, under v. 504 U.S. S.Ct. Riggins supra, 135-138 1815-1817], administration and he has not established that the voluntary Jones, medication rendered him to stand trial. incompetent 119, 155-156.) 15 Cal.4th

5. court in appearance jail clothing Defendant’s

Defendant contends that the trial court erred in him to compelling wear rather than civilian The record does not county jail clothing apparel. 20, 1988, this claim. at in support On defendant trial January appeared fact, The trial court county jail clothing. noted that that it had observing advised the to take in deputy have defendant dressed civilian steps but that defendant had stated his desire to in court in apparel, appear county court, The that at all court defendant jail clothing. noting prior appearances had been dressed in civilian of defendant whether he clothing, inquired realized he still could into civilian whether he desired to change clothing, clothes, in and whether he realized the draw county jail appear jury might adverse inferences from his in attire. Defendant informed appearance jail court that he wished to in attire and realized that the appear jail jury might occasion, draw such inferences. On this defendant for court appeared only witness, H., him, then, a few moments until the Tamara identified to his was escorted from the courtroom for the remainder pursuant request, of the day. 21, 1988,

On the occasion about which January defendant complains, defendant The court its again appeared county jail clothing. repeated whether defendant wished to attire rather than civilian inquiry appear jail Defendant civilian clothes have been stolen from the clothing. replied: “My haven’t been released be I’ll wear whatever. . . . This will county jail, yet. sufficient here.” Defendant wore for the duration of the right jail clothing penalty phase. observed, ante,

As we a court not defendant page may require 488, 494.) wear trial. 31 Cal.3d jail clothing during (People Taylor, supra, that the to remind the jury wearing jail clothing, constantly serving defendant is in tends of innocence by to undermine the custody, presumption will consider that an risk creating that the unacceptable impermissibly jury circumstance in (Ibid.) its verdict. rendering matter, that defendant was from the record it is clear

As an initial so, attire, even his desire do but expressed jail to wear county compelled to wear such not to be compelled of his right been advised having after draw adverse that the jury might been informed clothing. Having expressly attire, waived that nonetheless of this his wearing from inferences not alter the stolen does had been civilian clothing His remark that his right. *119 to take offered to steps the court had day that the previous circumstance defend- day, and the following that on that day and civilian clothing, secure Thus, attire. in jail attend trial dressed county his to had indicated ant desire that his claim defeats to clothing appear jail stated preference defendant’s free court, is not he and in event do so the trial any to by he was compelled 501, (1976) 425 U.S. (Estelle Williams v. raise the issue on appeal. Pride, 126]; 1691, 1694-1695, v. see People 48 L.Ed.2d S.Ct. 507-508 [96 195, 253-254.) 3 Cal.4th supra, occurred, has

Moreover, error defendant if we were to assume that even above, the rule As explained not demonstrated any prejudice. possibility is or garb to attend trial jail prison a defendant not be may compelled so subvert might presumption the notion that doing premised upon case, defendant’s In the until present an accused is innocent proved guilty. at the guilt phase of both had been determined already murders guilt trial, jury in county jail clothing, and at the time defendant appeared Because issue of the appropriate penalty. confronted with the remaining been and defendant had had been rebutted already innocence presumption doubt, was no reasonable possibility reasonable there found guilty beyond of defendant’s its decision on the factor that the would base jury penalty 1060, prejudice 8 Cal.4th 1179 (See supra, attire. People Rodrigues, [no when, observed transported at penalty phase, juror inadvertently 86,179-180 handcuffs]; 2 Cal.4th (1992) [5 with People Hardy custody 796, handcuffed of defendants P.2d viewing Cal.Rptr.2d 781] [mere unfair inherently penalty did not result in an view of crime scene during jury trial].) phase self-representation

6. Defendant’s both in initially deny the trial court erred Defendant asserts that for self-representation his motion and in twice granting, ing, subsequently Amendment of the to the Sixth Pursuant during penalty phase. Constitution, his or her own to conduct a defendant has the right federal waives the defense, right he or she and knowingly intelligently providing 2525, 806, 835-836 S.Ct. (1975) 422 U.S. (Faretta v. [95 counsel California to abide 2541-2542, (Faretta)), willing and “is able 45 L.Ed.2d 562] (McKaskle v. Wiggins courtroom protocol.” rules of procedure 944, 948, 168, 122].) L.Ed.2d To find a (1984) S.Ct. 465 U.S. 173 [104 waiver, “whether the defendant does actually court must determine valid decision and of a consequences particular understand the significance U.S. (Godinez v. Moran whether the decision is uncoerced.” omitted.) 321], 125 L.Ed.2d italics fn. 12 S.Ct. [113 Faretta, self-representation that a defendant who chooses In the court held clear that but also made it and intelligently,” must do so “competently determina- to the is “not relevant” “technical legal knowledge” defendant’s that, counsel, and is to waive right tion whether he or she competent own to his ultimately defense conduct his own the defendant although “may 806, 834 detriment, 422 U.S. (Faretta, be honored.” his choice must Thus, 2525, 2541].) represent “a criminal defendant’s ability S.Ct. to choose self-representation.” his himself has no bearing upon competence *120 2680, 389, 2687], and Moran, fn. U.S. 400 S.Ct. (Godinez v. 509 supra, [113 omitted.) italics to the the constitutional right for to waive

The standard competency to stand with that for has been equated competency assistance of counsel “ to consult with a ability whether the defendant has ‘sufficient present trial: ” “has ‘a and of rational understanding,’ his with a reasonable degree lawyer ” him.’ of the against as well as factual understanding proceedings rational 2680, 389, 396, Moran, S.Ct. U.S. 397-402 (Godinez v. 509 supra, [113 788, 4 S.Ct. 2685-2688]; (1960) States 362 U.S. 402 see v. United Dusky [80 that a curiam).) The state constitutionally may presume (per L.Ed.2d 824] of to shoulder the burden him or her defendant is competent require the evidence. a his or her incompetence by preponderance proving _ _ 1373, 1377, _, 134 (1996) U.S. S.Ct. v. Oklahoma (Cooper [116 437, 498, S.Ct. 515]; (1992) U.S. 449 Medina v. 505 [112 L.Ed.2d California 870, Medina, 2572, 2579, 353]; Cal.3d v. 51 supra, 120 L.Ed.2d People 885.) is not limited in Faretta

The recognized right self-representation trial, but extends to of the of a defense during guilt phase to the conduct 583, Cal.3d (1990) 50 in a case. v. Clark (People capital penalty phase 399, 127]; (1989) 48 v. Bloom People P.2d 789 Cal.Rptr. 617-618 [268 669, 774 1194, 698].) “Notwithstand P.2d 1222-1224 Cal.Rptr. Cal.3d [259 determination, a interest in a reliable penalty the state’s significant ing sentencer, defendant’s fun a informed determination best made by fully his defense governs. to control [Citation.] damental constitutional right both the stand and and to take no defense defendant has the right present It death penalty. [Citations.] confess guilt request imposition determination a reliable ensuring penalty follows that the state’s interest

1365 not be as a basis for defendant his fundamental urged denying capital may himself at all of the trial.” representing stages to control his defense right 583, 617-618, Clark, omitted.) fn. v. 50 Cal.3d (People supra, held, trial a defend- As we have a criminal although repeatedly constitutional, unconditional right self-representation, ant has a federal assertion invoke that he or she must make an order to right, unequivocal of trial. within a time to the commencement reasonable right prior 347, 799, (1996) 919 v. Marshall 13 Cal.4th 827 Cal.Rptr.2d [55 Horton, 1068, 1107; 1280]; v. Clark 11 supra, People P.2d v. Cal.4th People 41, 554, 561]; v. (1992) 3 Cal.4th 833 P.2d People 98 Cal.Rptr.2d [10 1187].) P.2d (1977) Windham Cal.3d 127-128 Cal.Rptr. [137 a motion for is not made in a fashion When self-representation timely prior trial, no is a matter of but is to the self-representation longer right subject 668, 809; court’s trial discretion. v. 14 Cal.4th (People Mayfield, supra, 86, 193-194.) v. 2 Cal.4th People Hardy, supra,

For the timeliness of a motion purposes assessing for self-representa- tion, the in a guilt penalty phases are considered capital prosecution part Therefore, of a trial. a motion made between trial of the two unitary phases is and is to the untimely, subject court’s discretion. (People Mayfield, 668, 810; Cal.4th People v. 7 Cal.4th Kirkpatrick 248]; 1006-1007 874 P.2d Cal.Rptr.2d People Hardy, supra, 86, 193-194.) case, Cal.4th As is in the apparent present *121 did not assert his Faretta in a rights manner at in the timely any point proceedings. observed,

As we have an motion is addressed to the untimely court, sound discretion of the trial which should consider such factors as the defendant, of counsel’s quality of the representation the defendant’s prior counsel, to proclivity substitute the reasons for the and request, length of the stage and the proceedings, or disruption delay reasonably might be to expected Marshall, follow the of such a motion. granting v. (People 799, 827; 13 Cal.4th supra, v. People 1 Cal.4th Kirkpatrick, supra, 1006-1007; Clark, 41, 98-99; Windham, v. People 3 Cal.4th supra, v. People 121, 128.) Cal.3d supra, 19 28, 1987,

a. Denial December motion self-representation for Defendant asserts that he asserted his to unequivocally right pro- ceed in and that in his propria persona, the court violated his denying request right self-representation. verdict rendered Following guilty jury by to the prior commencement of the defendant on Decem- penalty phase, 28, 1987, ber moved to his discharge counsel and appointed represent himself. Because the Boland) judge (Judge at trial was on who presided

vacation, Munoz). the motion was heard another judge When (Judge judge defendant as to his reasons for questioned wanting represent himself, defendant stated he did not wish to have his members or family friends called to and did not wish to testify present any defense. The court denied the motion for self-representation.

Defendant did not assert that defense counsel had rendered ineffective assistance or that their with defendant had so relationships deteriorated that could not they defendant with effective provide representation at the penalty (See 668, 795.) v. 14 Cal.4th phase. People Mayfield, supra, As the trial court recognized, of the motion would granting cause unnecessary and the of the disruption delay, given length stage proceedings, defendant’s himself to be motivated in request represent appeared part by an effort to create reversible error The trial court’s proceedings. reluctance to such motion at this of the in a grant phase proceedings capital reasonable, trial was the lack of on the given judge opportunity part to review the course of temporarily presiding the trial or the conduct prior defendant over the months. The court considered the previous adequately Marshall, 799, 827-828; factors described above 13 Cal.4th Windham, People 128), Cal.3d supra, 19 and did not abuse its event, discretion in the motion. In denying any cannot show because defendant’s renewed prejudice, motion for self-representation shortly granted. 12, 1988,

b. Grant January motion self-representation for Propriety granting motion 12, 1988, Defendant asserts that the trial court erred on January his granting counsel and himself requests discharge appointed represent counsel, with the assistance of because his mental condition “had advisory 5, 1988, into On the return of degenerated incompetency.” January upon *122 vacation, Boland from defense Judge counsel alerted the court to defendant’s motion for to the prior circumstance that the self-representation, following motion, denial of that defendant had directed counsel not to present defense at the and to defendant’s penalty decision to a beard— phase, grow viewed counsel as a of defendant’s mental deterioration. On sign January 12, 1988, evidence, to the of prior defendant renewed his presentation any counsel, to himself and his in order request represent to discharge appointed ensure that no evidence be penalty would on his behalf. phase presented Defense counsel noted their to evidence and obligation present mitigating stated their view that defendant was The insane. trial court observed that defendant to be and advised that it would conduct an appeared competent to inquiry pursuant Faretta. defendant indicated he was without ready proceed that

During inquiry, earlier had advised that defendant’s medica- Because the delay. prosecutor scrutinized, the court and received defendant’s inquired tion status should be was him more at that time affecting assurance that the medication not any earlier trial. The trial court than it had during phase expressly was and had under- found that defendant mentally competent knowingly, waived his to counsel. The court granted standingly, intelligently right for and also his his request self-representation, granted request appoint former counsel as counsel. advisory motion,

Defendant contends that in the trial court failed to granting Windham, the factors described in v. People 19 Cal.3d weigh supra, stated, however, 128. We have that if a is defendant’s request granted, defendant not be heard to on that his or her motion may complain appeal Clark, 41,109; should not have been v. 3 Cal.4th (People supra, see granted. Bloom, 1194,1219-1220.) People Cal.3d Because the trial court supra, insistence, the motion at defendant’s he as error the granted may assign Clark, trial court’s failure to the Windham factors. weigh 41, 109.) Cal.4th

(2) Limitation on role advisory counsel Defendant asserts that the trial court erred in the role of restricting counsel, advisory thereby effectively defendant from preventing conducting his own defense and ultimately him to his forcing forgo to self- right The record reflects that representation. counsel had various appointed filed defense motions to the time defendant prior sought obtained self- representation appointment former counsel as counsel. advisory Thereafter, the trial court reviewed those defense motions. When pending motions, the court of defendant inquired various concerning advisory counsel, them, having prepared repeatedly offered motions. explain that, On each occasion the trial court advised because re- defendant had himself, he quested represent would have to to the personally respond court’s questions. defendant, the trial

Subsequently, court’s during following inquiry prosecution’s objection whatever essentially repeating counsel told him to advisory counsel be say, advisory suggested they allowed to argue the motions and be legal that defendant allowed to examine the witnesses and make the statement and opening closing argument. *123 court,

trial again having and received defendant’s assurance that he inquired himself, wished to continue to declined counsel’s represent advisory sugges- tion and admonished the defense that defendant not simply repeat could whatever counsel told him. advisory

1368 to Evidence Code section 402 to determine the

At a held hearing pursuant of defendant's no-contest to one count of plea rape, 1984 admissibility witness, Rust, first commenced the examination its Meredith prosecution her advisement to defendant of concerning district attorney, prior deputy (At to that this of his no-contest count. plea point, the consequences lost.) to that had been When advisory court file plea apparently pertaining continued to the defense that counsel trial court admonish interjected, also his and defendant could witness or question explain objections, only relieved, be on the basis denied several counsel to by advisory requests when advisory defendant could make that Later the same day, only request. counsel, of defend- be relieved as the court counsel moved to again inquired time defendant ant whether he wished to continue himself. This representing no wished longer asked the court to counsel and stated that he reappoint himself. represent criminal self-

A defendant does not have a to simultaneous right Clark, 3 counsel. v. (People supra, and representation representation by 41, 97; 730, (1991) Cal.4th see v. Frierson 53 Cal.3d 741 People [280 440, 1142, 1197]; (1989) P.2d 48 Cal.3d v. Hamilton Cal.Rptr. People 701, 730].) forms of 774 P.2d Cal.Rptr. ‘hybrid’ [259 “[N]one ‘cocounsel,’ counsel,’ whether labeled or ‘standby representation, ‘advisory counsel,’ Bloom, v. is sense any constitutionally guaranteed.” (People 1194, 1218.) 48 Cal.3d supra,

We have observed that the attendant upon powers responsibilities of a accused never should be conferred criminally representation person “Rather, in all cases of on the accused and the jointly equally attorney. or divided either the or the must be attorney shared accused representation, otherwise, be clear that the Stated at all times the record should charge. counsel; the accused accused is either or self-represented represented by 1194, 1219; Bloom, cannot be both at once.” v. 48 Cal.3d (People supra, 988, 1003.) v. 1 Cal.4th People Kirkpatrick, supra, When a defendant chooses he or she retains self-representation, primary case, control over the conduct of the the role of advisory consequently Clark, 41, 112; counsel is limited. v. 3 Cal.4th v. People supra, Bloom, Hamilton, 1142, 1164, 14; supra, 48 Cal.3d fn. see v. supra, People 1218-1219, 1194, 1226.) to exercise its authority 48 Cal.3d The court retains to which such counsel may partici- the extent judgment regarding advisory (See (1993) Cal.Rptr.2d v. Cal.4th pate. People Stansbury [17 756], Stansbury revd. on sub nom. v. grounds 846 P.2d other California Clark, 293]); People 511 U.S. 318 S.Ct. 128 L.Ed.2d Marshall, 41, 115; 13 Cal.4th supra, 3 Cal.4th cf. People in the of a represented 827-828 [participation professionally *124 is a matter within the of case sound discretion of the trial presentation 988, 1003; 7 Cal.4th v. judge]; People Kirkpatrick, supra, People Miranda addition, 1127].) 44 Cal.3d 75-76 744 P.2d In Cal.Rptr. [241 above, as described a defendant’s to conduct his or her own right defense is to the that he or she must abide the rules of and subject proviso by procedure (McKaskle courtroom Wiggins, supra, U.S. protocol. 944, 948].)

S.Ct. case,

In the the trial former present appointed court authorized counsel, defense counsel to and at all limited role as perform advisory times to have than sought counsel remain within the limits of that role rather counsel to act in a role and permit primary by making arguments, objections or defendant defend- by what to next. instructing exactly say Having granted counsel, ant’s for and for the court was requests self-representation advisory to accede to the obliged defense’s both for requests self-representation and for whatever degree in the it desired for participation proceedings counsel. The court was well within its advisory discretion in refusing defendant both to permit himself and to represent have benefit professional representation.

Moreover, defendant was not the trial court’s prejudiced by action. Defend- ant sought granted the opportunity to himself on represent January 12, 1988, and to cease requested and to renew self-representation his repre- sentation by time, counsel on appointed January 1988. During defendant made several arguments the written concerning motions previ- filed his former defense ously counsel. The sole witness during who, was a above, district period deputy as noted attorney, testified at a held to Evidence hearing pursuant Code section 402 that defendant had of, waived, received advisements his constitutional when he rights entered his 1984 of no contest. plea her During defendant inter- testimony, numerous on the posed objections grounds hearsay, nonresponsiveness, and lack of foundation. When defendant discontinued his self-representation counsel, resumed representation by defense counsel appointed per- formed an extensive cross-examination of this witness. As discussed in below, detail greater evidence to defendant’s conviction for pertaining conviction, this offense was inadmissible as a but its admission con- prior stituted harmless error because this evidence was admissible as violent criminal and Julianne P.’s activity established that the testimony amply criminal underlying occurred. activity 1, 1988,

c. Grant February motion self-representation for 1, 1988, On February to the of the final three prior testimony prosecution witnesses, outside the presence moved prosecutors, again *125 his counsel

discharge and appointed represent himself. Defense counsel that defendant had informed (i) his he explained attorneys that did not wish defense, (ii) (after to vacillation) desired some present any (iii) to testify, for would if defense counsel testify prosecution presented testimony mother, of defendant’s (iv) who come to court to and intended to testify, be in a manner totally disruptive testify to death designed guarantee counsel, verdict. to defense defendant had both de- According threatened fense counsel with and desired to his defense. It was bodily injury sabotage their belief that he was this in a for a “doing setting post-conviction better tactically position.”

The court directed the to asked defendant prosecutors return again counsel, whether he understood his to be whether he right represented by understood his duties as counsel and examin- (including making arguments continuance, witnesses), whether he could ing proceed without whether any he realized examination or any must take while defendant argument place table, was seated at counsel’s whether he realized the draw jury might adverse from inferences his self-representation, and whether he realized that detrimental, his lack of technical would be expertise vocabulary neither the court nor the would assist him with related prosecutors anything defense, that his custodial status would preparing his impede ability witnesses, locate and that he would be from subpoena on precluded raising counsel, issues from appeal arising and that if inadequacy subsequently defense counsel were encounter reappointed, they might difficulty repre- defendant due to their lack of with senting what had familiarity transpired the case. In his to each of the trial court’s defendant response inquiries, indicated that he understood. Asked to consider all these consequences total, defendant stated he wished to himself. The trial court represent granted defendant’s motion for former defense coun- self-representation, appointing sel as counsel.”19 “standby prosecution proceeded of its final three present testimony

witnesses, as described above. Immediately following jury’s rendering death, its verdict at defendant and was fixing punishment sought granted counsel, who him the remainder of the reappointment represented during proceedings.

Defendant contends that in the motion self- again for granting the trial court failed to the factors described in representation, People weigh Windham, above, 19 Cal.3d 128. As indicated because the trial supra, insistence, court the motion at defendant’s not be granted may heard to on that the trial court failed to complain appeal weigh point appoint advisory

19 Thetrial court at this declined to counsel. Clark, 41, 109.) Windham factors. 3 Cal.4th We also reject contention that trial court’s failure to conduct an inquiry pursuant Windham or otherwise state its reasons for granting defendant’s motion of a record precluded preparation adequate for appellate review. Defendant *126 that the trial court was to state its reasons for urges required granting motion for and that the self-representation, record is for existing inadequate our review of the due to the loss of of various in camera ruling, transcripts discussed below. We have reviewed statement con- proceedings, the settled these and conclude that the of the cerning proceedings, absence original of these does inade- transcripts not render the record proceedings existing for the of our quate review of the nor does it warrant purpose ruling, imposing a to our requirement (contrary of an precedents) expression reasons for granting defendant’s motion for self-representation.

Defendant contends the trial court his motion because improperly granted that, defendant at effect, the time had made it clear he wished to commit First, suicide. the record does not establish that at the time the trial court considered the motion for self-representation, defendant’s intent to seek the Defendant, death penalty clear. his during prior period self-represen- tation, had argued the various motions filed previously his appointed attorneys. Even after the trial court granted himself, his motion to represent 1, 1988, defendant on advised February the court that he call might his mother as and, a witness in mitigation asked that accordingly, she be excluded from the courtroom. Defendant briefly cross-examined F. as Cindy status, to her marital her eliciting that she testimony had remarried without a divorce from obtaining defendant and without whether he had learning obtained a divorce. Defendant waited until after the rested prosecution on 2, 1988, February to inform the court that he did not intend to present any evidence in mitigation. Following verdict jury’s at fixing punishment death, defendant immediately sought of defense reappointment counsel.

Second, we have held that a trial court that permits a defendant to herself, represent himself or even with knowledge intends to seek the death does not penalty, violate the public policy state- against Bloom, assisted 1194, suicide. v. (People 48 1222-1224.) Cal.3d Even when a defendant who is representing himself or herself openly states that he or she will seek the death penalty refuses to introduce evidence in mitigation or argue to the the trial jury, court is not obligated to revoke the defendant’s self-representation and counsel to appoint conduct the defense. (Ibid.)

We have rejected similar arguments that the Eighth Amendment interest in a reliable determination penalty overcomes the defendant’s Sixth Amend- ment interest in self-representation. Although a defendant has no right

1372 waive the automatic statutory from a appeal judgment the death imposing (1985) v. Massie 40 Cal.3d penalty (People Cal.Rptr. [221 1309]), P.2d or otherwise seek the suicide, state’s assistance in it committing does not follow that a defendant’s right must be self-representation circumscribed in order to thwart his or her decision not to present mitigating evidence at the of the trial. penalty phase Stansbury, supra, 1017, 1062-1063.) Cal.4th

In People Deere 41 Cal.3d 360-368 Cal.Rptr. 925], P.2d we indicated that defense counsel should evidence in present defendant, over the mitigation objection but we subsequently disap- that decision proved to the extent it that the suggested failure to present evidence in mitigating and of itself is sufficient to render a death judgment *127 unreliable, holding instead that the failure to present evidence at mitigating the penalty does not phase make the unreliable in proceeding constitutional terms. (1992) 495, v. (People 353, 3 Cal.4th 566 834 Diaz Cal.Rptr.2d [11 1171]; P.2d 787, v. People (1991) Edwards 54 Cal.3d 811 Cal.Rptr.2d [1 696, 436]; 819 P.2d (1991) 705, v. Deere People 53 Cal.3d 716-717 [280 424, 1181]; 808 P.2d Cal.Rptr. (1989) 991, v. People Lang 49 Cal.3d 1030 386, 627]; Bloom, 782 P.2d Cal.Rptr. 1194, [264 v. People 48 supra, Cal.3d 1228, 9.) fn. We have stated that “a verdict is constitutionally reliable ‘when the has prosecution its discharged burden of at the proof guilt and penalty phases to the pursuant rules of evidence and within the guide- statute, lines of a constitutional death penalty the death verdict been has returned under instructions and proper procedures, the trier of penalty has duly evidence, considered the relevant if mitigating which the any, ” defendant has Diaz, chosen to 495, v. present.’ (People 3 supra, Cal.4th 566.) conditions, Under those a despite defendant’s avowed intent not to present available in evidence mitigation, the state’s interest in a ensuring reliable and fair penalty determination has been met. (People v. Stansbury, 1017, 1062-1063; 4 supra, Clark, Cal.4th 41, 109; v. People 3 Cal.4th supra, see People (1992) 1132, v. Howard 1 268, Cal.4th 1185-1186 Cal.Rptr.2d [5 1315].) 824 P.2d the trial Accordingly, court did not err in permit- himself, defendant to ting even represent if it understood that his intent was not to present any evidence. mitigating

Defendant also contends that the trial court erred to failing recognize that defendant’s motions for self-representation actually constituted motions counsel, to substitute that the court requiring and afford him an inquire to his opportunity reasons for explain such (See substitution. requesting Bean, 919, 947-948; v. People supra, 46 Cal.3d (1970) v. Marsden 2 People 118, 156, Cal.3d 123 44].) 465 P.2d Cal.Rptr. [84 court fully inquired defendant with to his regard reasons for Defend- preferring self-representation. ant himself requested advisory counsel. His preference for self-representa- tion reflected his to desire more control fully rather than a proceedings were made for the clearly new counsel. Defendant’s motions acquire wish and the trial court was not self-representation, obtaining required purpose make further v. Crandell Cal.3d 854-855 inquiry. 423].) 760 P.2d Cal.Rptr. [251

Defendant contends the trial court to conduct a failing erred into his to waive counsel or act as his own hearing attorney, competency time he sought self-representation. at the As we have the standard explained, “ case is ‘a for either whether the competency possessed ” as well rational as factual him’ understanding proceedings against Moran, 389, 396, (Godinez v. 509 U.S. 401-402 S.Ct. supra, [113 2685, 2687-2688]), and state may a that a defend- constitutionally presume is him ant or her to a competent require prove incompetence by Oklahoma, U.S. __, __ of the evidence. (Cooper supra,__ preponderance 1373, 1377, 498, 515]; Medina, S.Ct. L.Ed.2d People 870, 885.) Cal.3d a court is conduct Although a in the required hearing event reasonable arises as doubt to a competence (§§ defendant’s 1368), the record in the case does not indicate that present a reasonable existed doubt as to defendant’s to understand the ability proceedings against him. His with extent of changing preferences regard to the his own partici- in the pation proceedings, extent to which defense be would *128 did not create a reasonable presented, doubt as to his to competence proceed. Nor did his eventual choice not to a defense establish present reasonable as to doubt his competence.

7. Admission evidence rape conviction of of

a. Admission as a conviction prior

Defendant contends next that the court trial erred in admitting evidence of his 190.3, for conviction section rape pursuant (c), factor which for the provides admission of conviction” a “any prior felony as trial, circumstance in the aggravation. of During defendant’s penalty phase the prosecution introduced court records that defendant had documenting suffered a conviction for the of rape Julianne The records P. included the reporter’s of the transcript proceedings at which defendant had entered of no addition, contest to In plea that offense. called Julianne prosecutors P., who described the incident detail.

Defendant is correct trial court admitted the evidence improperly 190.3, (c). section factor pursuant on Although rape, occurring April 10, 1983, offenses, 23, 1984, preceded the on present August his entered of no plea contest his commission rape charge, following two law murders. The is well settled that for of that purposes subdivision, “prior felony are limited to those convictions conviction[s]”

1374 entered to the prior commission of the offense or subject offenses. v. 313, 349; 13 Cal.4th Ray, supra, (1992) 495, v. People Kelly 1 Cal.4th 677, 385]; Balderas, 549-550 822 P.2d Cal.Rptr.2d v. People [3 41 supra, 144, 201-203.) Cal.3d This limitation arises because the basis for the prior- conviction circumstance in aggravation is that “an offender undeterred his brushes with the law deserves prior more severe criminal (41 treatment.” 201, Cal.3d at omitted.) italics p.

Nonetheless, no occurred. The prejudice evidence of the conviction for 190.3, was admissible rape (b), section pursuant factor as of proof defendant’s in the participation violent criminal activity underlying rape 495, conviction. 550; v. 1 (People Kelly, Webster, Cal.4th supra, v. People 411, 454; 54 Cal.3d supra, 527, see v. People Morales 48 Cal.3d 244].) 770 P.2d Cal.Rptr. The prosecutor’s and the argument jury instructions the evidence as admissible describing (c) to factor pursuant do Webster, not establish prejudice. (People v. supra, 454.) 54 Cal.3d Even had the relied prosecutors conviction, evidence of solely upon that evidence would have been 190.3, admissible to section pursuant factor “ (b). As this court has concluded: recently prosecution ‘[T]he may rely upon conviction of a crime prior the use or involving threat force or violence to establish the presence criminal activity the use or involving threat of ” force or violence for (b).’ purposes [satisfying] factor (People v. Jack son, 1164, 1234, supra, Moreover, 13 Cal.4th italics.) original in the jury case present heard credible from the testimony victim rape recounting circumstances of the crime. We often have held underlying that such evi dence is sufficient to establish a circumstance in described in aggravation (b). factor 550; (People Kelly, supra, Webster, Cal.4th People v. 411, 454; Morales, supra, Cal.3d People 567.) Cal.3d b. Admission plea as evidence a prior conviction of Alford *129 Defendant also contends that the trial court erred in admitting defendant’s 190.3, conviction for to section rape pursuant (c) factor (prior con felony victions), because the conviction followed a of no contest plea (§1016), which does not constitute an admission of express but a guilt consent to only be (North as if 25, punished (1970) Carolina v. guilty. 400 U.S. Alford 35-36, 160, 167, fn. 8 S.Ct. 162]; 27 (1970) L.Ed.2d v. [91 West 3 People 385, above, Cal.3d 595 477 P.2d Cal.Rptr. 409].) As [91 the court explained erred the conviction admitting from resulting this as a convic plea prior 190.3, tion under section (c), factor but the error was harmless because the evidence was admissible as evidence of violent criminal under factor activity (b).

Defendant’s of a entry of no contest does plea not alter that circumstance. As we have section 1016 recognized, that the explicitly effect provides legal

1375 is the same for all as a felony to a crime punishable of a no-contest plea (1988) Belmontes 45 Cal.3d v. (E.g., People as a of plea guilty. purposes 126, 744, 310]; (1990) Lewis 50 P.2d see v. People Cal.Rptr. 809 [248 Therefore, 834, 262, 892].) evidence of 786 P.2d Cal.Rptr. Cal.3d [266 was of based a no-contest plea properly defendant’s conviction rape upon violent criminal activity. as evidence to establish defendant’s utilized activity incident as evidence violent prior 8. Admission rape No. with 11 Defendant was in case A804290 charged originally 10, that occurred on counts in connection with the incident April different were two counts of forcible two counts of rape, 1983. The offenses charged with and five sexual two counts battery, penetration foreign object, of no counts of oral As a condition of defendant’s contest on copulation. plea 23,1984, to one count of forcible dismissed the August rape, prosecution ten counts. At the remaining penalty phase unsuccessfully sought all exclude evidence to the incidents the dismissed pertaining underlying counts.

a. Implied acquittal Defendant contends that the doctrine of implied acquittal precluded from for the consideration of the prosecution introducing jury’s any aspect Julianne P. Section incident. 190.3 that “in no event shall evidence provides criminal be admitted for an offense for which the defendant prior activity Pursuant to the doctrine of prosecuted acquitted.” implied acquittal, a defendant’s conviction of a lesser or lesser included offense of that degree Nonetheless, constitutes an charged implied offense. acquittal greater dismissal, whether or not to a is not the pursuant agreement, plea equiva- of, constitute, lent and does not an to section acquittal pursuant 190.3. (1993) v. Garceau Cal.4th 862 P.2d Cal.Rptr.2d 199 [24 664]; Pride, 195, 257; People 3 Cal.4th v. Heishman supra, People 629]; Melton, 45 Cal.3d 753 P.2d Cal.Rptr. People 713, 755.) 44 Cal.3d b. Collateral or double estoppel jeopardy

Defendant contends that evidence of the incidents the dis- underlying missed counts was barred under the doctrine of collateral estoppel, prevent- *130 of ing relitigation an issue decided at a We have prior proceeding. repeatedly claim, this rejected noting that the of evidence of criminal presentation past conduct does not a defendant in place for offenses. v. jeopardy past (People 691, 1, (1992) 729]; Danielson 3 Cal.4th 720 838 P.2d Cal.Rptr.2d [13 1, 495, v. 2 (1992) 388].) Visciotti Cal.4th 825 P.2d People Cal.Rptr.2d [5 that, Defendant in of the avowed need for in argues light greater reliability case, in a determination our decisions are erroneous. We penalty capital decline defendant’s invitation to overrule these decisions. 190.3, c. Dual use rape pursuant (b) evidence to section of factors (c)

Defendant also contends that both to intro- by permitting prosecutor 190.3, duce the victim to section (b), factor testimony rape pursuant (c), and to establish the fact of the conviction to factor the trial pursuant court of erroneously dual use evidence. As we permitted rape previously (c), have the evidence was admitted recognized, under factor improperly (See not for the reason advocated although defendant. v. presently by People 495, 1 Cal.4th both Kelly, supra, of conviction and underlying [use (b) circumstances is (c), admissible under factors because each factor Price, serves a People 472.) v. 1 Cal.4th We separate purpose]; supra, concluded, however, have that no already resulted from the intro- prejudice duction (c). of this evidence under factor

9. Admission evidence unadjudicated beyond period of of offenses limitations

Defendant contends that admission of evidence of 11 unadjudicated offenses, for which the statute of limitations had applicable violated expired, law, laws, his to due right process equal and the need for protection greater reliability matters. The capital sentencing introduced prosecution Ellen F.’s and asked the to consider whether testimony jury defendant had committed assault means of force by likely produce great bodily injury, on The occurring 1980. introduced F.’s September prosecution Cindy and asked the to consider whether testimony defendant had committed jury assault means of force spousal rape, likely produce great bodily injury, abuse, abuse, with serious battery child false bodily injury, spousal impris- onment, and to June also battery, occurring prior 1978. prosecution introduced V.’s and asked the Cheryl consider whether testimony jury defendant had committed oral false attempted copulation, imprisonment, battery, 1972. The statutes of occurring May limitations were applicable of three or less. years

Defendant that this court has affirmed that Califor- recognizes repeatedly nia law no time limitation the introduction of evidence of imposes upon crimes, violent and the consider such acts at jury may occurring any stage Heishman, 147, 192; a defendant’s life. 45 Cal.3d v. supra, People Balderas, 144, 202; DeSantis, 41 Cal.3d see 2 Cal.4th supra, People 1198, 1252; v. Jones 53 Cal.3d People Cal.Rptr. 757].) 811 P.2d We have defendant’s further claim specifically rejected Court, United States need under the stressing special Supreme

1377 whether in the death for the determination reliability Amendment Eighth v. conclusion. dictated a different (People has is appropriate, penalty 1183, Johnson, 1244.) have denied the We also previously 3 Cal.4th supra, due or process violates of time-barred offenses that the admission claim 51-52; Johnson, 1, 6 Cal.4th supra, v. (People principles. equal protection 870, Medina, 906-907.) Cal.3d v. 51 supra, People evidence nonstatutory aggravating 10. Admission in evidence of admitting the trial court erred Defendant contends of the evidence of violent prior in course nonviolent activity presented of nonstatutory aggravat- thus introduction permitting criminal activity, that P.’s testimony describing Defendant out Julianne points factors. ing 10, 1983, that included the information incident that occurred on April an that defendant have reached may orgasm, defendant masturbated and her that he wanted telling wear items of her ordered her to various lingerie, “whore,” hair that defendant her cut off her so pubic to look like a that had look,” to let her drink a a that defendant refused she would have “teenage her and defendant ordered to urinate beer after she was that learning thirsty, in Mark the events testimony concerning into a bottle. Tamara H.’s and W.’s information he them was on June 1984 included that defendant told vehicle, of his that run” had to the bottom defendant “drug drugs taped he them to San Diego had an look in his that after drove “eery eye,” [sz'c] leave, motel rooms they changed him they difficulty getting were defendant return. Ellen F.’s testimony because afraid might they information her with that she discovered defendant beating dog included the it, at time. stick nails in intoxicated very with defendant not evidence may It is well established that prosecution present enumerated statutory other than that to the factors aggravation pertaining 394, (1996) section v. Avena 13 Cal.4th 438-439 [53 190.3. 764, 301, 1000]; 10 Stanley, v. Cal.4th 916 P.2d Cal.Rptr.2d People 1, 823; 762, 700 (1985) v. 38 Cal.3d 773-775 Boyd Cal.Rptr. People [215 factor ... 782].) P.2d The statute lists as an aggravating presence “[t]he use criminal which involved the use or activity by attempted to use force or of force or violence or the or threat express implied 190.3, (b).) violence.” factor (§ activity issue of violent criminal encom-

We have observed that the other but all the of such also activity pertinent existence only passes 932, (1991) 54 Cal.3d 985 of that v. Ashmus activity. (People circumstances 754, 214]; (1990) Benson 52 Cal.3d 820 P.2d Cal.Rptr.2d People [2 330]; 46 Cal.3d P.2d Karis People Cal.Rptr. [276 1189].) presenting P.2d The prosecution, Cal.Rptr. *132 1378 to of not activity, obliged evidence violent was prior

the above-described the course of acts committed pertaining particular during omit evidence incident, In an were not violent. each incidents that in themselves or a particular of defendant’s conduct preceding following explanation of the understanding forceful or violent act assisted clearly jury’s to the of of the threats implied and continuation express inception this The trial did not err in evidence. admitting victims. court prosecutorial 11. misconduct Alleged committed misconduct

Defendant contends the prosecutor He this misconduct to the further contends that jury. closing argument trial, law, due a fair violated his federal constitutional rights process Const., 8th, 5th, 6th, (U.S. & 14th reliable determination and a penalty Amends.), reversal of the verdict and of death. requiring penalty judgment

Defendant, himself, then failed object any representing claim of mis- here Absent challenged. objection, prosecutorial statements Jones, 15 supra, on v. argument (People conduct is reviewable appeal. 801; 668, 181; Cal.4th v. People v. 14 Mayfield, supra, Cal.4th People 1048, 1072; Cal.3d v. Harris 47 6 Cal.4th Berryman, supra, People 619].) That even 767 P.2d rule applies Cal.Rptr. Clark, supra, v. defendant was himself. though representing Nor, a defendant 618.) elected having self-representation, may Cal.3d at trial or she ineffective representation claim on that he received appeal objection. without argument permitted because assertedly objectionable Bloom, 583, 618; Clark, see (See People supra, Cal.3d People 1194, 1226.) 48 Cal.3d

Nonetheless, on the even defendant’s contentions considering merits, first incident we conclude that no misconduct occurred. The In an misconduct in the context. following occurred alleged prosecutorial time still was (at which statement at the penalty phase opening counsel), alluded to defense counsel had represented appointed defendant’s function was to determine when circumstance that the jury’s Defense a time set should “in God’s time or in by you.” death take place, during also characterization made by prosecutor counsel recalled a killing conduct in at the of defendant’s argument guilt phase, opening “lustmord,” as word translated a German loosely victims as constituting between was a difference counsel that there urged “bloodlust.” Defense hand, . . . even bloodlust. revenge maybe on the one “or [U justice machine can this anyone you stop choice is ultimately yours death.” defend- which time (by at the phase her

During closing argument penalty counsel’s himself), recalled defense Prosecutor Ferraro ant was representing in “God’s defendant would die time” whether concerning statement opening and, *133 stated the defense was implying the that by jury, having or at a time set God, that the she commented state had that the role usurping the jury and that this the that it was not arbitrarily applied, a to right impose penalty, validity. or to its was not the time place question of the dif- Ferraro also recalled defense counsel’s discussion

Prosecutor bloodlust, or and defense counsel’s between justice, revenge ference be if defendant to death it would jury engag- that the sentenced implication the that the in Prosecutor Ferraro emphasized jurors only bloodlust. ing that their valid execute was that so act justice required, reason to for the could not be with defend- in to vote death deciding penalty equated defendant, victims, victims, ant’s that the unlike did not killing acts and that the situation of rights, their constitutional any protection receive should be with that of in a appearance victims contrasted defendant’s we’re we’re all courtroom “where dressed tries everybody carpeted, up, other, to each we have a of the gentleman right speak nicely protect bailiff accused. If we have a who is armed all of things go protect wrong out us here. Contrast that with what to Shari and in the Tracey happened [<][] You will see there difference murdering desert. is a between someone huge for an pleasure executing justice someone because demands execution.” Ferraro further been Prosecutor noted that defendant’s rights scrupu- and that would have an to die with “a lot lously protected opportunity he more than he to either victim. dignity” gave

Defendant asserts that the committed misconduct by prosecutor appealing to the of the them to victims’ jury consider the passions by urging sufferings from the victims’ an to view perspective. Although appeal suf- of the victim from the of the at the victim is ferings viewpoint improper guilt 1017, 1057), v. we stage (People Stansbury, Cal.4th have indicated supra, that (See, such is at the argument permissible e.g., People v. penalty phase. Garceau, 140, 205-206.) 6 Cal.4th supra, Whereas prosecutor commits misconduct comments to arouse or passion calculated making 668, 803), prejudice (People Mayfield, 14 Cal.4th the comments in supra, this case were not so A have calculated. reasonable would construed juror argument remarks as of a more prosecutor’s part generalized simply aimed at the offense of from the morally murder act of distinguishing death as the a court law. assigning penalty proper punishment Defendant asserts that the to the of the by alluding presence prosecutor, bailiff, committed misconduct to consider defendant’s by inviting jury make concern- argument future dangerousness. prosecutor properly may Clark, future Cal.4th ing a defendant’s dangerousness. context, Moreover, that, 161.) it is obvious considered in prosecutor all guarding for the purpose the bailiff was present noted that merely defendant) from harm caused by in the (including proceedings participants defendant was of the legal features many process intruders—one victims at the with that of the contrast this situation order to undergoing—in murders. of their time misconduct Ferraro also committed by that Prosecutor

Defendant contends when were were afforded no rights they the victims that because arguing trial to his killed, to fair jury prior should defendant have any right neither demands an execu- stating “justice contends execution. Defendant *134 and tion,” “frontier appealed the to apply justice” the urged jury prosecutor the would have understood that a reasonable jury It is clear to vengeance. to be considered between the the differences penalty to emphasize arguments not as that to be considered—and urging that caused it and the offenses the should act out of a fair trial or that jury had no to jury defendant right sense of “frontier justice.” miscon- Conn committed asserts that Prosecutor defendant

Finally, factors” when “irrelevant and speculative the to consider duct by urging jury whether, in “a prison by placing the to evaluate jury he asked who have not committed and other people with employees prison population crimes,” capacity who has shown tremendous would be “a man giving they As noted that violence again.” “an to manifest for violence” opportunity future above, a defendant’s concerning may argue the prosecutor properly Clark, 161.) It is not Cal.4th (See v. supra, People dangerousness. defendant, if to that a at the argue misconduct for a penalty phase prosecutor is factual when there kill prisoner, another might sentenced prison, of violence defendant’s record derived from the for this argument support 719, 750.) 52 Cal.3d Taylor, supra, of v. (People outside prison. but for that exists proposition that authority

Defendant acknowledges legal violence for defendant’s propensity the record established only observes that record with him. The women, in would not be prison who present against Mark W. and assertion. At the penalty phase, not defendant’s does support ordeal, that, months within several occurring their H. testified during Tamara Mark, him forced murders, kill defendant had threatened and, Tamara, perform him to attempt had forced repeatedly using strip violent acts repeated as to defendant’s F. had testified Cindy sexual acts. that he asserting in accurate Nor is defendant his own son and stepson. upon violence, females, in prison. of his object the primary would not encounter the circumstance note, his argument, as did the prosecutor We take including employees, male and female persons, contain both may a prison misconduct. not commit did The prosecutor encounter defendant. who might report probation 12. Consideration defendant’s the considered that the trial court improperly Defendant contends of the verdict for modification his ruling upon application report probation that, motion “in an automatic ruling have held upon We repeatedly of death. only consider may trial court penalty, for modification it to consider the is error therefore jury, evidence before not the jury. a matter before [Citations.]” report, probation Avena, 83, 151; Crittenden, Cal.4th see People Cal.4th supra, “Nonetheless, court has considered the 447-448.) in the event the trial absent thereby, influenced we assume the court was improperly report, 151.) (9 at p. Cal.4th contrary. in the record to the evidence [Citations.]” case, that, reviewed the factors the record reflects having In the present motion then denied the automatic the trial court mitigation, aggravation recess, Thereafter, court observed that it without for modification. any to sentence report, proceeded had read and considered probation had read and considered defendant. the trial court Although apparently motion for modification to the time it ruled on automatic report prior *135 for of statement of reasons the in the record the court’s penalty, nothing court, motion, the utilized any the in on ruling motion denying suggests in record in that were not contained the probation matters noted report Therefore, that the trial before the no exists jury. reasonable possibility its v. (People of the affected decision. court’s consideration probation report 83, Avena, Crittenden, 151-152; 13 v. supra, People supra, 9 Cal.4th see 394, 448.) Cal.4th

13. record on Inadequacy appeal of is because

Defendant contends that the record on appeal inadequate, that took in the court notes of several place reporter’s reported proceedings or, chambers were lost and related either were not transcripts prepared however, contain, a been also were lost. The record does having prepared, to and acceded by settled statement defense counsel prepared appellate General, of in-chambers the contents of each these Attorney describing discussions and that were advanced. indicating arguments legal 1181, 9, authorized to a court is reviewing

Pursuant section subdivision destruction, in whole or in order a new trial “because of the loss or test is in light substantial of the court notes. “The whether part” reporter’s is in that it lost ‘substantial’ all the circumstances it appears portion a review meaningful of the court to conduct reviewing affects ability v. (People his of the defendant ability properly perfect appeal.” “ 259, 610].) (1979) Cal.Rptr. Morales 88 267 Cal.App.3d [151 ‘[W]here available, the defendant are other methods of the trial record reconstructing 1382 ”

must with those alternatives order to proceed obtain review. [Citations.]’ (1992) v. 4 (People Hawthorne Cal.4th 66 841 Cal.Rptr.2d P.2d [14 118].) find the

We record case present the task at hand. adequate When the resolution of a defendant’s claims does not depend verbatim upon Hawthorne, transcription, a settled statement suffices. v. 4 supra, 43, 66; 1098, 1116; Cal.4th see People Holloway, v. supra, Cal.3d see Pinholster, 865, 921-922, also v. People 1 Cal.4th supra, and cases cited therein.) The raised issues to the pertaining no proceedings which court record do reporter’s exists not a verbatim of the require report proceedings for resolution of these issues. This is a case in which or crucial large (1 Therefore, record is portion 921-922.) Cal.4th at missing. pp. we conclude there has been no violation defendant’s under the due right clause to process meaningful (Rushen review. appellate Spain 453, 456-457, U.S. 267]; S.Ct. 78 L.Ed.2d Haw- People thorne, 66.) Cal.4th

14. Cumulative error Defendant contends that the cumulative effect of asserted errors at and after the of his penalty phase trial—in particular, the conduct of proceedings absence, in his the failure to evidence in present mitigation, and the failure to an preserve him adequate record—denied his federal constitutional rights Const., 8th, a fair trial and a (U.S. 5th, reliable verdict & penalty 14th Amends.), reversal of the as to requiring We have judgment penalty. rejected error, all defendant’s nearly and when we assignments have determined *136 erred, that the trial court we have concluded that the error did result not in to defendant. Even prejudice considered were not collectively, errors Defendant was not significant. denied his federal to a constitutional fair right trial a reliable determination. v. penalty Mayfield, 14 (People supra, 668, 809; 803, Marshall, 799, 866; Cal.4th People v. 13 supra, Cal.4th 313, 362; Arias, v. People Ray, 13 Cal.4th supra, v. 13 Cal.4th People supra, 92, 194.)

15. Constitutionality the death penalty

a. Failure to as to require evidence unanimity aggravating factors that,

Defendant contends light in of the Amendment Eighth require- cases, ment of enhanced reliability section 190.3 is unconstitu- capital tional because it not does to find that a defendant require jury unanimously has committed other or within the actual threatened violent criminal activity 190.3, that, (b). of section factor Defendant also contends view meaning of the trial court’s refusal to that the give defendant’s instruction requested

1383 proved, have been which criminal acts must agree upon unanimously jury that informing jury explicitly argument, in view prosecutor’s occurred, criminal acts with which regard it not be unanimous need statute prejudicial. of this unconstitutional assertedly application observed, that the jury no we there is constitutional requirement As have in aggravation circumstance or circumstances find true the unanimously 92, 190; Arias, v. People v. 13 Cal.4th supra, its verdict. (People support 618, 153; 83, Crittenden, Cox 53 Cal.3d v. People 9 Cal.4th supra, 692, we have 351].) In particular, repeatedly 809 P.2d Cal.Rptr. 692 [280 that the defendant not conclude unanimously that the need jury concluded crimes in aggravation. before those considering committed other crimes Alcala, 405, Sims, 462; 4 5 v. Cal.4th supra, Cal.4th supra, People v. 1183, Johnson, 1245; 742, 809; v. DeSan 3 People v. Cal.4th People supra, 86, 1198, 1252; 207.) tis, 2 supra, 2 v. Cal.4th People Hardy, Cal.4th supra, not consider other jury may is before jury unanimity required Because 190.3, criminal factor or violent acts section actual threatened pursuant so (b), it follows that the trial court did not err in instruct refusing jury, that it and the did not commit misconduct prosecutor by informing jury criminal in order defendant had committed need which acts agree upon to consider them as circumstances aggravation.

b. Other alleged defects for death lacks Defendant contends the 1978 statute penalty providing defects. We and contains numerous substantive procedural safeguards previ- have and decline defendant’s such claims ously rejected majority however, invitation to below the nature specify reconsider our we rulings; the claims in them. denying

1. There is define which factors are no section 190.3 requirement and which need not be labeled are and the factors aggravating mitigating, Osband, supra, as or v. exclusively mitigating. (People aggravating 152-153; 704-706; Crittenden, Cal.4th v. Cal.4th People supra, 806, 827; (1993) 5 People v. Montiel People Espinoza, supra, Cal.4th McPeters, 1277]; People Cal.4th 855 P.2d Cal.Rptr.2d 1148, 1191.) 2 Cal.4th *137 to written as findings 2. The court need not that the submit require jury death it pen- which circumstances relied aggravating upon imposing Crittenden, 83, 153; v. People v. Livaditis 9 Cal.4th alty. (People supra, 759, 72, 297]; v. (1992) People 2 Cal.4th 831 P.2d Cal.Rptr.2d 786 [9 931, Fauber, 792, 859; 51 Cal.3d 2 v. Kelly, supra, Cal.4th supra, People 970.) does not intercase require proportionality

3. The federal Constitution 879-880, 871, 37, (1984) S.Ct. (Pulley review. v. Harris 465 U.S. 50-51 [104 1384 29]; Crittenden, 83, 157;

79 L.Ed.2d People v. 9 Cal.4th supra, v. People 408, 2 476.) Mincey, Cal.4th Nor does our state supra, Constitution require intercase review in order to ensure proportionality due of law process laws, or to avoid the equal protection infliction of cruel or unusual Crittenden, 156-157; 83, v. Cal.4th punishment. (People 9 supra, v. People 408, 476; 2 Marshall, Mincey, Cal.4th see v. supra, People supra, 13 Cal.4th 799, 865-866; 1050, Payton, v. Cal.4th People supra, 1074-1075.) 3 Al review, is a sentence intracase though subject defendant’s sentence clearly is not to the for grossly offenses which it was disproportionate imposed. 408, 476.) (People Mincey, v. 2 Cal.4th supra, that,

4. A trial court need not instruct the before it fix the jury may death, at it must find penalty beyond reasonable doubt that the aggravating Crittenden, circumstances v. outweigh mitigating circumstances. (People 83,153; Clark, 41, 170; 9 Cal.4th v. 3 supra, People Cal.4th v. supra, People Livaditis, 759, 786; McPeters, 2 Cal.4th see v. supra, supra, 2 Cal.4th People 1148, 1195.)

5. is no There that a trial instruct requirement court that it must jury conclude beyond reasonable doubt that is the death appropriate penalty. Crittenden, 83, 153; Diaz, v. 9 Cal.4th supra, v. 3 People supra, 495, 569-570; Clark, 41, 170; Cal.4th v. 3 Cal.4th People supra, v. People Livaditis, 759, 786; McPeters, 2 Cal.4th see v. 2 supra, supra, People Cal.4th 1148, 1195.)

6. The to each district her delegation his or attorney, through authority decide whether seek the death to decide penalty, power effectively death, which will be defendants be sentenced to eligible does rise give to an arbitrary does capricious capital punishment system and not violate law, laws, due principles underlying process equal protection and the cruel or prohibition against punishment, unusual nor does it trans gress the constitutional v. Crit principle separation powers. (People tenden, 83, 152; 9 Cal.4th 7 supra, People Kirkpatrick, v. Cal.4th supra, 1024; v. Keenan (1988) Cal.3d People Cal.Rptr. [250 1081].) P.2d

7. It has been observed repeatedly that the factors statutory aggrava tion are not v. 512 U.S. vague. (Tuilaepa 975-980 California 2630, 2636-2639, 750]; S.Ct. Berryman, L.Ed.2d v. People supra, 1048, 1096-1097; 585, 637; 6 Cal.4th 6 Cal.4th People Cudjo, Webb, 494, 535.) People supra, 6 Cal.4th Defendant does not provide or factors are argument authority that the overbroad. demonstrating

III. Disposition is affirmed its judgment entirety. *138 Kennard, J., Baxter, J., Chin, J., Brown, J., J., Werdegar, and concurred.

1385 in the in all J., I concur Dissenting. judgment and MOSK, Concurring of death as unreliable under I vacate sentence save one. would respects I, Constitution and article to the United States Amendment Eighth counsel introduced none Constitution because trial 17 of California section (See (1996) v. Avena 13 Cal.4th People evidence. the available mitigating of 301, Mosk, (dis. J.) 394, 916 of opn. P.2d Cal.Rptr.2d 449-450 1000] [53 vacated as unreliable under of death should be any sentence [implying I, if trial counsel introduced article section 17 Amendment and Eighth evidence]; (1995) v. 12 Lucas mitigating People of the available none 415, 525, dis. (conc. P.2d and 501-502 907 Cal.Rptr.2d 373] Cal.4th [48 Mosk, 184, 216, 1 J.) [same]; (1995) In re Ross 10 Cal.4th fn. of [40 opn. Mosk, 544, (dis. J.) [same]; v. P.2d of People opn. 892 Cal.Rptr.2d 1287] 824, 394, (1995) 835 P.2d 9 Cal.4th 889 Stansbury Cal.Rptr.2d 588] [38 Mosk, J.) [same], v. People Stansbury and dis. of (conc. opn. reiterating 174, 1017, (conc. 4 Cal.4th 846 P.2d (1993) 1074 Cal.Rptr.2d [17 756] Mosk, J.), (1994) of revd. sub nom. v. 511 Stansbury dis. opn. California 1526, curiam); 318 128 L.Ed.2d (per U.S. S.Ct. People [114 293] Diaz 353, 495, (conc. 3 Cal.4th 834 P.2d (1992) 577 Cal.Rptr.2d [11 1171] Mosk, [same]; J.) (1992) dis. of see also v. Howard 1 Cal.4th People opn. 1132, 1197 268, Mosk, (cone, and of 824 P.2d dis. Cal.Rptr.2d opn. [5 1315] J.) a sentence of death unreliable under the Amendment and [finding Eighth I, section article 17 when trial counsel introduced none of available evidence, albeit at the defendant’s v. Sanders mitigating request]; People 471, 537, (1990) 51 Cal.3d (dis. 531-533 P.2d 797 Cal.Rptr. opn. [273 561] Mosk, 991, J.) [same]; (1989) v. Lang 49 Cal.3d People 1059-1062 [264 386, Mosk, [same]; (conc. J.) 782 P.2d Cal.Rptr. and dis. opn. 627] 1127, 635, (1988) v. Williams 44 People Cal.3d 1158-1161 Cal.Rptr. [245 (conc. Mosk, J.) P.2d dis. similar effect under the opn. 901] [to Amendment]; 353, (1985) v. Deere Eighth 41 Cal.3d 360-368 People [222 [same].) 710 P.2d Cal.Rptr. 925] issue,

If I had to I reach the would conclude that the court erred trial when it defendant’s reversibly motion to himself at granted represent was, effect, for phase—which the case penalty “request prosecute death” Bloom Cal.3d Cal.Rptr. Mosk, (conc. P.2d J.)). and dis. opn. 698] for a denied petition rehearing was 1997.

Appellant’s September