*1 S005232. Oct. [No. 1993.] PEOPLE,

THE Plaintiff and Respondent, JOHNSON,

LA VERNE Defendant and Appellant.

Counsel Court, Morris, Defendant for L. under

Barry appointment by Supreme and Appellant. General,

Daniel Williamson, E. Lungren, Attorney Chief George Assistant General, Bass, General, Ronald A. Attorney Assistant Attorney Laurence K. Sullivan, Gillette, Matthias, Killeen, Dane R. Ronald S. David Lew and Joan General, Deputy for Plaintiff Attorneys and Respondent.

Opinion

LUCAS, C. J.

I.

Introduction Court, information filed in By San Mateo defendant County Superior Láveme Code, 187; Johnson was (Pen. with two counts of murder charged § all further references are statutory indicated), to this code unless otherwise and one count (§451, (b)). of arson of an inhabited subd. The dwelling information the murders constituted a alleged circumstance of mul- special 190.2, (§ murder (a)(3)). subd. tiple counts,

The found defendant on all three true guilty finding circumstance special allegation. returned a death jury subsequently verdict, and the trial court sentenced defendant to death. This is appeal (§ 15, 1993, (b).) automatic. subd. We note that on April filed a habeas with this court. We denied the corpus petition petition 15, without an order September show cause. issuing As will we defendant’s claims of error and appear, reject prejudicial *13 affirm the in its judgment entirety.

II.

Facts 15, 1986, On and were summoned to a officers January police firefighters house, house fire in Inside the the officers found the bodies of Daly City. Castro, Holmes, Anna Maria Victoria and her Luisa 32. aged daughter, (one downstairs) had The evidence indicated that two fires and one upstairs, set, been the use of some flammable through liquid. intentionally probably Her Victim had been beaten and kicked. evidently severely body Holmes abrasions; face swollen and showed extensive contusions and her was to her An indicated she died from or more blows bloody. autopsy head and Victim face. Castro’s was burned a knife body beyond recognition; large determined, however, was found An nearby. that she died autopsy had from a wire was found strangulation; around her neck. wrapped tightly Further revealed investigation the facts: Victim was a following Holmes hotel who wore manager and an extensive expensive possessed jewelry collection of gold from Central jewelry America. She shared her home with Castro, her victim daughter, who nightclub was security guard, currently defendant, a of the dating customer club. Castro also had a collection of gold murders, and boasted of On the jewelry it. had frequently night Castro dinner for prepared defendant at her home after had driven her children they women, to a Later that babysitter. someone murdered the two evening, stole their and jewelry, set fire to their in an home cover to apparent attempt up the crimes. Fuller,

Defendant was arrested after a girlfriend, Roshaun told police he had admitted assaulting women and their to taking jewelry. According Fuller, and, he stated “knocked out” Castro when victim Holmes came he upstairs investigate, knocked her and down kicked her in the head. Defendant been had seen and later wearing, some pawning, gold it jewelry, although could not be positively traced to Defendant victims. also admitted to the officers some investigating facts his relation- regarding Castro, with ship including dinner with her her sharing home on about defendant, night murders. he left According the house after Castro had become intoxicated and fallen asleep. Although defendant denied women, that, at one told killing he point officer “I interrogating it, did do but are probably you not I me did do it.” going get say (defendant defense offered an alibi bar seen in a engaging fight on the day and evidence to cast question) doubts Fuller’s testimony, which was frequently inconsistent. to defense contradictory According Fuller investigator, admitted lying defendant’s admission police regarding that he assaulted both women.

At the penalty admitted phase, defendant’s prior crimes, four including convictions for disor- prior felony robbery, burglary, theft, alarm), conduct a false derly (transmitting and numerous unadju- *14 robberies, dicated offenses including oral and rapes, copulation, batteries assaults. evidence,

The defense relied in- background and character primarily childhood, lack defendant’s troubled his cluding testimony regarding the and he would in a guidance, supervised likelihood succeed parental setting. personally regarding Defendant testified some prison forego- matters, and some of the crimes” evidence ing mitigate attempted “prior the circumstances them. explaining extenuating surrounding Fricke, A defense Dr. testified defendant’s socio- psychologist, regarding rebuttal, On defend- stressed pathic personality. prosecution psychiatrist ant’s antisocial and his manipulative personality, potential dangerous- and ness.

III. Phase Guilt Contentions A. Juror Discharge Solano the court erred in Juror William

Defendant first contends discharging contention, In defendant asserts Solano after trial had commenced. a related to determine hearing he excluded from the in camera held was wrongfully be excused. We conclude neither contention has whether Solano should merit. case-in-chief, the court called for prosecution’s

Near the close of facts observations: conference and revealed the and following in-chambers witnesses; instead, Juror did not to be attention to Solano appear paying defendant, or was in his “doodling” he watching was either judge defendant, that the “to the extent Solano smiled” at “consistently notebook. occasions, at smiled or nodded back teeth On defendant many are showing.” addition, been arriving In noted that Solano had late Solano. court times, his eyes he to close and that tended courtroom at least three indicated that The court “nod off” court during proceedings. possibly further narcotics, had arrested for possessing Solano been records revealed police “for being his that his arrest response only contrary jury questionnaire while out late under age.” who confirmed that courtroom deputies, court the two questioned

The Kutch Deputy no attention to the be paying proceedings. Solano appeared off” had three indicated Solano “nodded his which read from logbook, occasion, nodded or had times, one for fifteen minutes on had doodled confirmed trial. Steiner Deputy seven times during smiled at defendant occasions, and time on several his for a short had closed eyes Solano lunch breaks. before at or greeted had smiled frequently his fitness to regarding Solano be examined asked that The prosecutor he one occasion noticed that on observed prosecutor remain on jury. *15 eyes that Solano’s were closed and his chin was on chest. As his resting forward, Solano to fall he began his in a startled manner. opened eyes Defense counsel to the that objected noting jurors several other hearing, had also either closed their at eyes during testimony smiled defendant. Counsel also requested that defendant be at further hearing present Solano’s status as a juror. court denied this on the request basis that trial, hearing was not of the did not part involve defendant’s and bore guilt, no reasonable relation to Addi- defendant’s to defend opportunity himself. court, tionally, according defendant’s intimidate Sol- presence might ano and make it more difficult to extract accurate from him. responses that, Solano,

Defense counsel indicated in order to avoid he alienating too would not attend the hearing. The likewise elected not to attend. prosecutor The court thereupon Solano his on a of questioned variety chambers When asked his subjects. about to the response questionnaire inquiry regard- arrests, ing Solano he been prior had arrested when cocaine acknowledged had been discovered nearby, had also been arrested for public intoxica- information, tion. When had asked he that why failed reveal he replied “I that was just trying get with this through as soon as questionnaire It didn’t possible. just seem to me.” important Solano also he had closed his acknowledged eyes occasionally during trial, and had nodded or smiled at defendant time According from to time. Solano, these and smiles were gestures a reaction someone “just smiling [to] .me . . .1 smile back.”

The court be ruled Solano should his excused because of concealment arrests, of his prior because his trial. during course sleeping The court Solano with one of the replaced alternate Samuel Ybarra. jurors,

1. absence hearing Defendant’s from Solano,

Before examining we must propriety discharging determine whether the court erred in to allow defendant refusing personally to attend the in-chambers hearing regarding discharge juror. possible Const., I, (Cal. 15)

The defendant has a constitutional art. and statutory § (§§ (b), (a)) subd. subd. to be at his trial. right personally present also United States v. Gagnon 470 U.S. L.Ed.2d 486, 490, 1482], 105 S.Ct. and cases cited has federal due [defendant to attend court if has a process right his proceedings presence reasonably himself].) substantial relation to his to defend ability *16 18 977, (b), be the defendant “shall” present

Under section subdivision examination, sentencing, certain (arraignment, plea, preliminary proceedings when the of and of trial evidence is taken before trier “those the portions fact”), he or she files and “shall” also attend “all other unless proceedings,” to be at such present proceedings. a written waiver right grant the broad of section foregoing appears Although language conferences, we to attend all in-chambers defendant unqualified right have that the absence from various court proceedings, held defendant’s waiver, his “even be declared in situations where without may nonprejudicial of not bear a fullness ‘reasonably does substantial relation presence ” (1989) v. Garrison his defend opportunity against charge.’ (People 746, 257, 419], from People 47 782 765 P.2d quoting Cal.3d Cal.Rptr. [254 333, 368, 802], (1987) P.2d Bloyd Cal.Rptr. v. 43 Cal.3d 359-360 729 [233 86, added; 2 (1992) also v. 177-178 italics see Cal.4th People Hardy [5 796, voir dire and some 825 from of portion P.2d Cal.Rptr.2d 781] [absence 522, discussions]; (1991) v. Wharton 53 Cal.3d 602-603 People in-chambers 631, P.2d from various in-chambers 809 Cal.Rptr. 290] [absence [280 870, (1990) Medina 51 Cal.3d 902-903 v. People proceedings]; [274 849, and from in-chambers conferences 799 P.2d Cal.Rptr. 1282] [absence 468, (1990) in-court of v. 50 Cal.3d People Douglas reading testimony]; 126, testi reading P.2d from 517-518 Cal.Rptr. 640] [absence [268 386, 991, Cal.Rptr. Cal.3d 1025-1028 mony]; People Lang [264 scene, from conference of murder from view 627] [absence clarification, and from reading testimony]; for regarding jury request 630, Cal.Rptr. 48 Cal.3d 1079-1080 v. Bittaker conferences]; from various hearings 774 P.2d 659] [absence P.2d (1989) 1109] Robertson People Hovey sentencing]; hearing from penalty-reduction [absence P.2d 776] [absence 44 Cal.3d 585-586 [244 from reading testimony].) was one hearing that the Solano

We defendant’s assertion reject initially fact" within the to “the trier of of evidence the presentation involving his presence (b), thereby compelling of section subdivision meaning “evidence foregoing It clear the under terms of that section. seems col- hearings in-chambers no has application presentation” provision the jury’s lateral matters held outside presence. cases, whether in determining under the foregoing

Accordingly, we must hearing, inquire from the Solano excluded by being prejudiced relation to substantial bore “reasonably presence whether defendant’s him. against the charges” to defend his against fullness of opportunity Defendant fails what manner his at the in-chambers explain presence could have enhanced his to defend hearing opportunity against charges. *17 issue, He had at he been allowed attend the he suggests might hearing have his counsel in Juror Solano. The helped seems questioning point unduly decision, in of defense own speculative, light counsel’s especially previously discussed, to absent himself from the rather than risk hearing alienating Medina, (See 903; 51 44 Cal.3d at at juror. supra, p. Hovey, supra, Cal.3d p. 585.) case,

In situations similar to the to the present although occurring prior 977, (b), enactment of section subdivision we have indicated that the defend- (In ant would no (1965) have to attend such re Lessard right hearings. 62 497, Cal.2d 506 399 P.2d from [42 private 39] [absence excused]; conference juror with to be asking People v. Abbott 47 372 P.2d from hearing regarding juror’s [303 730] [absence see also v. qualifications]; supra, United States 470 U.S. at Gagnon, L.Ed.2d at from pp. to determine hearing juror’s [84 490-491] [absence impartiality].)

Defendant relies on various federal and sister-state cases which indicate a criminal defendant has a to attend in-chambers conferences right regarding juror’s impartiality, misconduct. v. qualifications possible Walker (E.g., (8th 379, 381-382; 1988) Lockhart Cir. 852 F.2d (9th United v. Gay States 1975) 429, 435; Cir. 522 F.2d 1955) v. People Medcoff( 344 Mich. 108 [73 537, 543].) N.W.2d cites other cases which find no Respondent prejudicial in error the defendant excluding from such conferences. v. (E.g., U.S. (9th 1495,1507, 1987) cited; Patterson Cir. 819 F.2d and cases United States cert, (9th v. 1977) Cir. Lustig 714], 555 F.2d 745-746 A.L.R.Fed. [46 den. 889].). 434 U.S. 1045 L.Ed.2d S.Ct. [54 observes, As respondent of defendant’s cited cases many preceded decision United States Gagnon, Court in United Supreme States 490-491], at supra, U.S. 526-527 wherein pages pages L.Ed.2d at court high made it clear that due not do entitle process principles defendant to encounter between As appear every judge jurors. Gagnon the central in such situations is whether the defendant’s explains, inquiry at the presence could have assisted his defense hearing reasonably (Ibid.) him. charges against discussed, we have

As defendant fails to convince us that his presence Thus, that, have could assisted his defense in we conclude any way. although have had a the Solano his may statutory right hearing, attend exclusion therefrom did amount error it not because is prejudicial unlikely would have enhanced his to defend against his presence opportunity Moreover, if, as several cases have observed that a result of the charges. the affected is and an alternate is juror hearing question, discharged juror him, to the defendant will not be replace presumed. picked prejudice 737, 746; 555 F.2d v. Dell United States v. Lustig, excused sick jurors Cal.App.3d [court 3610] (Alaska 1986) without Peckham State hearing]; Ct.App. misconduct].) into juror excluded from inquiry

[defendant Dell, does not claim she was As stated in People supra, “appellant *18 does it she from the substitution of nor jurors appear actually prejudiced selected make such an Alternates are from argument. could reasonably source, manner, with the and are same in same same qualifications to the same Alternates have subject challenges. equal opportunity as regular jurors. the entire and take same oath proceedings observe case, to voir In had dire the ample this appellant opportunity [Citation.] Nor is challenges. and use her allotted peremptory alternates [Citation.] (232 were either or biased." incompetent there the alternates any allegation 256-257.) at pp. Cal.App.3d we conclude Accordingly, authorities seem here. foregoing apposite from of defendant’s exclusion no error occurred reason

that prejudicial the Solano hearing.

2. counsel’s absence hearing Defense from the Solano his counsel’s absence from

Defendant next contends that at a critical stage him of the counsel right hearing deprived merit. The contention lacks proceedings. discussed, not a tactical decision counsel made

As defense previously alienating he Solano indicated wished to avoid Counsel hearing. attend such a argues case. Although he remain juror should consent, that trial indicate our decisions his required personal decision necessity to the informed decision as has to make “an counsel discretion Medina, 51 Cal.3d at supra, (People in-chambers proceedings. attending” see also to jury]; from reading testimony absent 904 p. [counsel P.2d (1980) 149] 314 315 Jackson court proceedings and control make tactical decisions authorized to [counsel defendant].) sug Defendant’s from waiver first obtaining personal without incompe his reflected hearing forgo decision that counsel’s gestion consideration tactical of the reasonable light sustained in cannot be tence which, counsel, induced that decision. according we need not

Accordingly, reach the whether a question defendant has constitutional to his" at right counsel’s conferences for the presence called purpose whether should determining particular discharged be jurors note, however, alternates selected. We one recent case has held that “there is no constitutional violation when alternate jurors are substituted in Dell, 257; the absence of counsel.” (People Cal.App.3d In see also re Mendes 23 Cal.3d

P.2d

3. Solano properly discharged

Defendant next contends the court erred in Juror Sol discharging noted, ano. reasons, As previously the court discharged Solano for two trial, his namely, sleeping his during untruthful incomplete to the responses jury questionnaire.

Defendant contends there was no evidence that Solano was actually He cites sleeping. cases indicating that verdicts will be not overturned in the absence of that a “convincing proof" juror actually *19 trial. slept during v. 388, Hasson Ford Motor (E.g., 654, (1982) Co. 32 Cal.3d 411 Cal.Rptr. [185 1171].) 650 P.2d Defendant observes that the court failed to of inquire Solano whether in fact he had fallen or had missed asleep, any testimony. (See 420, People (1912) v. Roselle 20 424 Cal.App. P. [129

The case present does not involve a claim of juror misconduct sufficient Instead, to overturn a verdict. we must determine whether the trial court abused its discretion in one and discharging juror substituting alternate. 1089, court,

Under shown,” section upon cause “good may dis charge any juror “found to be unable to his perform duty” at time any during (See Proc., trial. also 233.) Code Civ. The determination of “good § cause” Abbott, rests in the sound discretion of court v. (People supra, 47 371; Dell, Cal.2d at p. v. People 256), 232 and the Cal.App.3d court’s thereof will finding be if upheld substantial evidence it supports (People (1986) 505, 112, v. 41 Burgener 520 Cal.Rptr. [224 1251]). stated, however, We have also that a as a juror’s inability perform must in the juror record as “appear a demonstrable reality.” (People (1971) Compton 537], 6 Cal.3d 60 P.2d fn. Cal.Rptr. 490 [98 omitted.)

Here, there was that on one or more ample indicating court, occasions Solano had its actually asleep during trial. two fallen and deputies, each stated on prosecutor they the record had observed defendant various indicia of clo exhibiting sleep, eye physical including sures, head in nodding, his chair. slumping he

As for Solano’s the court found incomplete questionnaire responses, of criminal had failed to disclose two arrests. Concealment prior prior of a under section charges constitutes cause for 1089. good discharge juror Cal.Rptr.2d v. Price Cal.4th 399-401 [3 and dismissed assault charge]; P.2d of conviction prior 610] [concealment v. Farris Cal.App.3d 45] record].) of misdemeanor and arrest Defendant prosecution [concealment detentions, no because Solano’s arrests were in effect mere argues prior legal (See 849.5.) were ever filed. Solano Assuming accusatory pleadings § (see this in entitled to his rely completing questionnaire provision McMahon Court Municipal Cal.App.3d he 782]), for he was asked if he could not these incidents also simply ignore His was incomplete had ever been “accused” of a crime. “no” response event, discussed, we court’s ruling excusing In as have misleading. Solano had on the basis its finding Solano can be sustained solely during fallen trial. asleep contention, he due by

In was denied process a related defendant suggests He of “legal necessity.” of Juror Solano without discharge showing the first impaneled to be tried by he had constitutional suggests right this None of the cases cited by support his case. try would forbid substitution indicates that due argument process principles (See, here. U.S. e.g., under the circumstances an alternate juror presented 388, 392.) (9th 1990) Bates Cir. 917 F.2d “ex the trial court’s was denied due process

Defendant also he argues In as a juror. Solano’s suitability manner of Juror investigating parte” *20 view, by as a neutral arbiter” its role the court “abandoned defendant’s Solano, conduct, and his examining ques- his recording observing secretly record, to the parties before announcing and arrest tionnaire responses to suitability. doubts as his court’s court, of in the course the trial no cases suggesting

Defendant cites suspected to a juror whether cause exists good replace investigating defendant inattentiveness, to the reveal its concerns must misconduct or It doubtful such is investigation. further his counsel before conducting necessary 1089 is protect under section limitation on the court’s discretion Keenan (See interests. legitimate of the defendant’s any court’s [recognizing 758 P.2d 1081] 533 [250 of possible investigation” limited “discreet and properly to conduct power mode as to the discretion misconduct], court’s “broad [recognizing jury of investigation”].) Solano. Juror discharged court conclude the properly

We B. Substitution Ybarra Juror

Alternate Juror Samuel Ybarra was chosen to Juror Solano. Al- replace had not though defendant to the selection Ybarra as previously objected alternate, nonetheless, once he was as a juror substituted replace Solano, defense counsel for a moved mistrial. Counsel represented Ybarra was to defendant and would have been unacceptable challenged earlier had defendant been allowed to exercise another chal- peremptory (The had lenge. court allowed both sides challenge one seat” for only “per the four alternate jurors, defendant had used his challenge for previously Ybarra.) the seat ultimately given motion was denied.

Defendant now he should have been argues given “a number of peremptory challenges the number of equal alternates selected and unen cumbered by restriction to any any seat.” The particular objection court’s allocation of peremptory challenges comes too late. to the Objections selection must be made process when the selection occurs. v. Caro 46 Cal.3d

C. Admissibility Statements of Defendant’s Defendant contends court erred in certain statements he admitting made to officers on police March 28 and We April 1986. conclude and, statements event, were admitted properly any Miranda error was harmless a reasonable doubt. beyond

1. March interview 28, 1986, On March defendant was interviewed Officers McCarthy Keate concerning murders of Castro and Holmes. Officer told McCarthy interview, defendant the purpose and defendant replied, “fine.” When recorder, McCarthy brought out “No tape objected, stating tape I recording, don’t want to incriminate The recorder not myself.” used. Officer read McCarthy thereupon (see defendant his Miranda rights *21 (1966) Miranda 706-707, v. Arizona 384 U.S. L.Ed.2d 974]), 86 S.Ct. 10 A.L.R.3d and defendant confirmed that he under- stood those and wished rights to talk with the officers. Defendant was also informed he could terminate the interview at time. The inter- any ensuing course, view lasted around two and one-half hours. its During McCarthy murders, that defendant would be explained with the two charged and defendant that his mother a bragged would hire out lawyer “high price him, murders, New York” to defend for the inquired possible penalties and initiated the of a possibility plea bargain. he with

When informed that be offenses the death carrying might charged stated, I might to talk to a be “Maybe ought lawyer, you penalty, enough charge McCarthy not have to murder.” Officer bluffing, you might to and asked defendant if he wanted to talk a at that lawyer point, thereupon he defendant made no direct to that repeat thought McCarthy reply except was “bluffing.”

Defendant, record,” if “This is off the next asked Officer McCarthy stating for murder McCarthy a sentence was possible charges. replied 10-year the court and that the matter of sentence was to the district up attorney, he counsel. Defendant was worried about receiv- defendant’s acknowledged below, (As “off the record” foregoing a death sentence. ing explained inadmissible.) was ruled discussion about sentencing to me what have and I Defendant next asked Officer “Tell McCarthy you he did customarily make a that might you McCarthy replied proposition.” he not not details. Defendant indicated that would “say” disclose evidentiary He also that “I “without some kind of declared anything arrangement.” it, to me to I did do it.” did do but are not you get say probably going and to the district attorney nego- Defendant then asked McCarthy approach tiate for the murder charges. sentence 10-year

2. 3 interview April Quinn identifying received a call from person On Officer April phone (Defendant Capriano.) also known as Antonin as “Antonin.” was himself and wished County he was the San Mateo jail Antonin indicated confined and Quinn visited defendant McCarthy officer. Officers speak he understood" him Defendant confirmed again read his Miranda again rights. with these and wished talk the officers. rights interview, what defendant to tell the officers asked At one in point discussion Defendant insisted the to Castro and Holmes. regard happened record,” himself to incriminate by that he was not going be “off the stating to manslaughter He that he would plead guilty what added telling happened. (“I want say interview don’t After terminating “for two years.” if the district else”), them to see officers back told he called the anything for case.” for straight would “go twenty years attorney General, defendant’s disputed by and not According Attorney interview counsel, at the statements April none of defendant’s appellate not defendant could it is Accordingly, apparent at trial. introduced during occurring Miranda errors asserted have been prejudiced *22 in that interview, regard. claims not discuss defendant’s and we do

25 3. Trial court’s rulings statements,

Defendant moved the to trial court his that suppress asserting the interviews continued he after had invoked his to remain silent and rights to with consult an The court had attorney. disagreed, finding waived those and did not reinvoke them. voluntarily rights, The court also ruled, however, that in light defendant’s “off record” assertions during interviews, the course of both any statements these immediately following assertions would be inadmissible. affected statements related to possible plea sentences for the bargains potential murders.

4. Discussion As we stated People Boyer 48 Cal.3d Cal.Rptr. [256 610], 768 P.2d violation, a reviewing similar claimed Miranda “The of our review of scope constitutional claims of this nature is well estab- lished. We must the trial court’s resolution of accept facts and disputed inferences, and its evaluations of if are credibility, they substantially sup- However, ported. we must determine from the independently [Citations.] facts, court, and undisputed those found properly the trial by whether statement was challenged obtained. illegally [Citation.]” a. “No tape recorder” remark

Defendant contends he invoked his to remain right silent at the outset of the March interview “No recorder. I remarking: tape don’t want to incriminate myself.” The trial court found that this remark was ambiguous did not necessarily disclose an intent to “cut off’ all ques tions, as to opposed merely expressing the use objection tape recorder view, to memorialize defendant’s In the trial court’s responses. defendant’s remarks indicated restriction” only “partial on his willingness to the officers. speak were Accordingly, they entitled continue the once interrogation clarified the situation they Miranda advise by giving ments and defendant’s obtaining consent to be We express interviewed. advisements, agree. As indicated previously, and defendant’s agreement talk, occurred his “no immediately following recorder” remark and tape clearly confirmed his general willingness to to the officers. speak

Defendant asserts his remarks showed he was unwilling “freely discuss case with completely” his the police. People v. Burton 793]; Cal.3d 491 P.2d v. Randall We find the foregoing cases recite the familiar rule inapposite. They must police interrogation

26 defendant, conduct, the words or demonstrates a desire to cease once by silent, case, to an Neither invoke his remain consult with right attorney. however, for the that a defendant invokes stands proposition automatically (such recorder”) conditions as “no those rights by imposing tape governing the the conduct of interview. that cases have held a refusal to prior suspect’s permit

Defendant contends of remain constitutes an invocation his right a interview tape-recorded (See 235-236 People silent. Hinds Cal.App.3d [201 104]; (1980) 112 v. Nicholas Cal.Rptr. Cal.App.3d [169 cases, however, 497].) In refusal to both these the suspect’s permit Cal.Rptr. clear intent other facts his disclosing recording accompanied by also and in confidence with officers. privately speak Braeseke P.2d 384] “off his for the record” discussion invoked self-incrim- request [defendant’s ination privilege].) contrast, case, found such clear intent

In the trial court no present asked “off Although go on defendant’s defendant that part. proceedings interviews, he no general the record” at various during expressed points (We discuss entire interview. privacy covering expectation that of this defendant’s contention his subsequent part opinion separate to terminate “off-the-record” treatment the officers required for requests observes, As recent case “it was for the trial further another questioning.) to . .be recorded was to determine whether refusal . court [the defendant’s] his The court found in fact invocation of silence. right [the defendant] them, his and waived and his conversations in fact had understood rights reason- Such a conclusion was voluntary. with the officers were therefore able, (People v. Maier will disturb it on this appeal. and we not [Citations.]” 226 Cal.App.3d remark with the “no recorder” observes that he linked the tape

Defendant a statement defendant “I want to incriminate myself,” that don’t explanation But the trial invocation his self-incrimination privilege. deems an explicit remark, defendant’s find linked being could reasonably court recorder,” his assumption only “no merely expressed insistence on tape after defend- him at trial. Immediately statements could incriminate recorded advisements, remark, read defendant Miranda made the officers ant this These advisements he to talk to them. defendant if wished and asked to the defendant said that anything admonition included the unqualified court of law. The trial him in a court be used against officers could miscon- cleared up any possible that this admonition could find reasonably the admissibil- regarding have entertained previously may ception to the officers. his statements unrecorded ity *24 Several California have if a cases indicated that defendant expresses remarks short of a clear waiver or of ambiguous invocation his falling Miranda the officers continue rights, with him for the limited may talking of whether he is or purpose waiving those clarifying invoking rights. (1986) 813], v. Carey 183 103 and Cal.App.3d Cal.Rptr. [227 cited; cases People Bestelmeyer v. 166 526-527 Cal.App.3d [212 605]; People v. Russo 148 Cal.Rptr. 1177 Cal.App.3d [196 466].) We the rule of these and find it Cal.Rptr. approve cases applicable here. defendant full Giving Miranda and his warnings obtaining of waiver his Miranda was a method of rights legitimate clarifying any inherent in defendant’s “no ambiguities recorder" remark. tape b. to a securing lawyer Defendant’s references interview, Midway March 28 Officer during (as indicated McCarthy he had done already interview) several times during that murder charges would be defendant. He brought against that will “My mother out replied put for a money high lawyer out of New price York.” asked for the McCarthy name of it, defendant’s lawyer, but he refused “I to furnish don’t stating, want you talking my lawyer.”

Thereafter, a (initiated defendant) discussion following possible murders, penalties be for the might imposed death life including stated, without minute, possibility “Give me parole, a I might you silence, tell something want to hear.” you After a few moments said, defendant then I “Maybe ought talk to my be lawyer, you might bluffing, you not have might enough charge murder.” Officer McCarthy asked immediately defendant if he wanted to talk to a before answer- lawyer more ing questions, and defendant that he simply repeated thought McCarthy He made no further bluffing. mention this interview. lawyers during Defendant contends that each of the references to foregoing lawyers invoked his right counsel and should have induced the officers to termi nate the interview. The trial court ruled that defendant’s initial re mark his mother regarding securing “high lawyer was “not an price" time, of an expression intent terminate the interview at that but instead related to a future trial and not to We present questioning.” agree.

The cases hold that if a defendant indicates in manner he wishes to consult with (Miranda attorney, must cease. v. interrogation Arizona, 706-707]; 384 U.S. at supra, 444-445 L.Ed.2d at pp. pp. [16 271.) 48 at Boyer, supra, Cal.3d The California found p. courts have invocations of the to counsel in such statements or as right varying inquiries ” “ Russo, (People if I have a here or what’ lawyer I don’t know should ” “ 1177), ‘Do think need an you attorney?’ we Cal.App.3d ” “ T we Court guess lawyer’ (People Superior (Zolnay) need (hereafter (1975) Zolnay) ” “ ‘Well, 1390]), I Corbin’ attorney, should talk to Mr. maybe my P.2d 165]), v. Munoz (People Cal.App.3d ” “ *25 truth, best if I had an with me?’ attorney ‘Tell me the wouldn’t it be Hinds, 234.) at supra, p. (People Cal.App.3d a statement concern- we have found no case suggesting suspect’s Yet a for would proceedings require retention of possible lawyer ing future at supra, p. a Cal.3d interrogation. Zolnay, termination of police “immediate,” not “in the merely for was attorney need [suspect’s expressed view, deemed (italics omitted)].) In our the trial court properly future” secure ability about his to high priced defendant’s statement mere bragging not a to consult with for future proceedings, request legal representation of defend- This interrogation. interpretation an attorney during present McCar- inability refusal or to Officer by give ant’s remarks is reinforced his of his name lawyer. thy remark, I talk to a is “Maybe ought lawyer,” to

Defendant’s second “maybe” trial ruled that the word more troublesome. The court considerably to in context the reference a and that rendered the statement equivocal, defendant’s to remain right as an invocation of not intended lawyer his by the interview was confirmed Defendant’s to continue silent. intent as to whether to to immediate McCarthy’s inquiry failure respond to McCarthy request an defendant’s subsequent wanted attorney, by I make a me have and might you proposition.” “Tell what you indicated, despite violations have found Miranda courts As previously review the apposite the defendant. We briefly considerable equivocation decisions. 735, we observed that the suspect’s 15 Cal.3d at Zolnay, supra, In page “ need and a codefendant] we to himself [referring ‘Do think you

question, statement, were “a lawyer,’” guess “T we need and his attorney?’” an inter- that the record discloses query The interrogation. direct result of the all but choice seemed when defendants’ at interrogation point rupted Moreover, subsequent specific defendants’ to or silence. limited confession con- both their an indicates attorney recommend that the deputies request We consult counsel. desire to and pointed concern and their specific tinuing remain right their sufficient invocation the record discloses think “ form of ‘no 736) at (id. particular Zolnay p. We stressed in silent.” ” or words conduct is necessary’ invoke the self-incrimination privilege. Randall, from (Quoting supra, 955.) case is factually distinguishable Zolnay, from in several present on this record it is that defendant’s respects. Initially, highly unlikely reference to an his or disclosed confusion about con- attorney uncertainty the interview. A of Officer tinuing reading

asked the to an deputies recommend and he to to attorney, declined respond McCarthy’s to learn his name or attempts lawyer’s to determine whether he in fact wanted to to an truly speak attorney. Munoz,

In supra, 83 the Cal.App.3d officers took a robbery to an interview room and to suspect began him. As as interrogate soon the himself, stated, “Well, officer introduced interrogating the I suspect maybe interview, should talk to Mr. my attorney, Corbin.” Rather than terminate the the officer agreed that the could talk to his but first suspect the attorney, had, officer wanted to what explain information he and to what he needed learn. the Eventually, suspect confessed. court, decision,

The Munoz our Zolnay citing held that the continued was interrogation The court that noted improper. although the remark was suspect’s it could be construed “as an invoca “ambiguous,” tion of his right to an (83 before speak attorney questioning.” Cal.App.3d 996.) at The court also relied on the fact p. that the had mentioned suspect name, his he attorney by (Ibid.) had retained indicating already counsel. Hinds, In People v. supra, 154 murder was Cal.App.3d suspect arrested and interrogated after being rights. advised his Miranda The “ officer, truth, asked the ‘Tell me the wouldn’t it be if I had suspect best an ” attorney with me?’ Rather than the the officer stop interrogation, indicated decide, to the that this matter was for him to suspect although attorney murder, “would not be the one going jail, ‘first possibly facing degree ’ ” special (Id. 231.) circumstances and the death at penalty. p. Eventually, admitted the killing. suspect “ court, The Hinds statements are to be explaining ‘Ambiguous ,’” construed as invocations . found . . that the initial was suspect’s inquiry (154 invoke to counsel. at right Cal.App.3d p. quoting sufficient to his v. Duran Cal.App.3d from however, the interrogating is for factually distinguishable,

Hinds likewise case, ambiguous rather than clarify suspect’s officer attempt remark, terminating to dissuade him from the interview. tried improperly 235.) at p. Cal.App.3d 520, 527-528, seems more

People Bestelmeyer, supra, Cal.App.3d There, molesting after the was arrested for his closely point. suspect Miranda and commenced arresting gave warnings officer stepdaughter, outset, he terminate the At the after told could interview interview. being time, what was The thinking. at was asked one officer he suspect “ thinkin’, I shouldn’t maybe anything T was replied, just say suspect ” (Id. 524.) I thinkin’ ahh.’ at The officer without a and then lawyer rights, agree that he could waive his continued explaining suspect officers, to them. rights and then reinvoke his stop talking talk to he eventually further references to an attorney, The made no suspect made statements. incriminating remark too suspect’s court found that the initial Bestelmeyer counsel, to the to an invocation of his right presence to amount

ambiguous court’s that the finding the lower supported and that substantial evidence 527-528.) (166 waived that right. Cal.App.3d pp. knowingly suspect *27 record, case, the whole we think that in light to the Turning present demeanor during interroga- defendant’s overall conduct and including tion, attorney, of his reference and tentative nature the ambiguous remark, immediate defendant’s and to clarify Officer McCarthy’s attempt thereto, evidence to there was substantial refusal to respond defendant’s his defendant did not invoke right determination that the trial court’s support asserted to determine whether the it is unnecessary to counsel. Accordingly, C.4.d., (See III. pt. post.) was Miranda error prejudicial. request

c. The “off-the-record” interview, above, after Officer in March 28 at one point As noted charging was about “bluffing" that he not assured defendant McCarthy had stated, off record.” murder, “This is defendant with abruptly defendant me don’t let stop you, go all the talking, “You’re doing McCarthy replied, years?” me 10 you get “Can McCarthy, asked Defendant thereupon ahead.” be might imposed. possible penalties discussion concerned The ensuing trial.) Soon thereaf- excluded at were (All discussions “sentencing” of these and I make have ter, might “Tell me what you asked McCarthy, defendant McCarthy After told defendant that you falsely McCarthy proposition.” knew that defendant had some the victims’ and that pawned jewelry, died, victim Holmes had she identified defendant before defendant stated that his name was not be that it would his word any pawn slip, against owner, and that a declaration from victim Holmes “would pawnshop dying time, Castro], . convict me her . . but not but killing it’s close [victim it, but I am not . I did it. . .1 did do but not saying are probably you [¶] (This I to me to did do latter it.” statement introduced at going get say trial.) thereafter, said, record,” is off the and

Immediately again “This told him to McCarthy ahead. Defendant then directed go McCarthy togo the district and me ten . I attorney “get . and will straight. years, give you want.” The something you remaining discussion concerned arrange- possible ments for reduced sentences in return for defendant’s statement about murders.

The trial court found that “off defendant’s the record” requests pertained to the only sentencing plea bargain discussions which immediately followed those and that requests, accordingly any statements not pertaining were sentencing admissible. The court ruled that only sentencing discussions would be inadmissible at trial.

Defendant contends that all statements his initial “off- following the-record” should request have been because never suppressed, McCarthy informed him that the interview was no “off the record.” He no longer cites cases such imposing rigid and we have requirement, none so found knowingly holding. The main should be whether defendant inquiry Here, waived his to remain intelligently right silent. the trial court found the waiver remained valid as to discussions not involving sentencing. Silva refusal to discuss certain not conclusive indication [suspect’s subjects *28 1070] of intent to terminate Hayes (1985) interrogation]; People Cal.3d 784-786 P.2d reluc expressed 1259] [defendant’s tance discuss “details” of did confession not invoke Miranda right silence]; see also v. Edwards 814-817 [1 Cal.Rptr.2d does not render request 436] [“off-the-record” inadmissible].) volunteered statements We find the record amply supports the trial court’s It seems defendant would his finding. unlikely have repeated “off-the-record” if he had intended or assumed request the proceedings remained off the record his initial following request.

It could be that defendant’s “off argued that interview request proceed the record” disclosed his confusion about the of his statements admissibility Braeseke, officers, In Miranda waiver. vitiating thereby 702-703, that a “off-the- we held 25 Cal.3d defendant’s

supra, pages officers, a knowing inconsistent with was acceded to by record” request, case, “defendant’s we stated in that As rights. of self-incrimination waiver of the Miranda warnings. lack of understanding revealed a marked request (D.C. Cir. (See also Frazier v. United States and fn. omitted.].” [Citation obligation 1969) F.2d App.D.C. 180] [officers’ of oral regarding admissibility defendant’s misconception clarify admissions].) however,

Braeseke, because there is distinguishable, 25 Cal.3d his the defendant’s statements despite admission of the trial court permitted case,' we have In the as treatment.” present for “off-the-record request sen- indicated, regarding possible those statements the trial court excluded Moreover, it is directed. request to which the off-the-record tencing demonstrates necessarily no longer request that an “off-the-record” arguable Braeseke, because, such following part confusion on the defendant’s interview from the affected portion insulates effectively request I that “maybe statement use. As with defendant’s courtroom subsequent connec- violation in find no Miranda because we to talk to a lawyer,” ought remark, to determine it is unnecessary the record” with defendant’s “off tion Nonetheless, because it seems apparent error. effect of such the prejudicial violation, we address that subject from such resulted that no prejudice as follows: briefly,

d. Prejudice indicated after he made statement inculpatory The principal his treatment was “off-the-record” counsel and requested needed he “maybe” Castro], are not but you victim did do it “I probably [kill statement this statement emphasized do it.” The prosecutor me to I did to get say going statement, soft- somewhat though to the jury. closing argument in his as a be viewed could reasonably nonetheless the word “probably,” ened by however, note, (as disclosed to We admission guilt. confession or his guilt denied defendant repeatedly interview the same during jury) defendant’s context, “probably viewed could have the jury murder. In either an outright than officer interrogating to the of a taunt remark as more guilty” guilt. admission *29 confession a coerced law, admitting for of the test prejudice federal

Under beyond was harmless error test, unless the reversal requiring Chapman is the 279, 309 U.S. 499 v. Fulminante (See Arizona doubt. a reasonable 1246, 1265]; 331-332, Chapman 111 S.Ct. L.Ed.2d California [113 710-711, 386 U.S. L.Ed.2d S.Ct. A.L.R.3d 1065].) the federal courts would to same test a Presumably, apply law, confession adduced in violation of Miranda. under state we Similarly, confessions, se rejected reversible error standard for coerced recently per that a concluding conviction be affirmed the erroneous admis- may despite confession, sion of when the record shows that the admission involuntary of the confession was harmless a reasonable doubt. beyond Cahill Cal.4th P.2d Cal.Rptr.2d Was Miranda error in this case harmless reasonable beyond record, Defendant, doubt? On this we believe it was. before suggesting record,” he should his “maybe” see before to lawyer, “off asking go admitted to Officer that he knew McCarthy Castro had visited her on or defendant, about the of the night murders. on According the last such visit, her, he drove Castro’s children to a ate babysitter, dinner with had “sex” with her and drank with her until she became intoxicated and fell mother, Holmes, Her victim asleep. called from downstairs to inquire Castro, and defendant told her Castro was All asleep. this evidence of defendant’s involvement with the two victims on or about the night they were murdered was untainted seemingly by defendant’s claimed subsequent invocations of his Miranda rights. addition, Fuller,

In defendant’s girlfriend, Roshaun testified at trial that defendant had Castro, admitted to her he out” “knocked victim “hit” head, victim Holmes the back of her $200 and thereafter stole and a ziploc bag from heavy gold jewelry them. Other witnesses defend- placed murders, ant with Castro on or about the and later night observed him wearing expensive gold and new jewelry clothes. other than to flaws

Significantly, pointing and inconsistencies witness Fuller’s testimony, defense failed to rebut foregoing raise any credible to the defenses murder In light of charges. strong trial, evidence that was incriminating admitted at we properly conclude that admission of defendant’s statement that he did it” was equivocal “probably harmless a reasonable beyond doubt.

D. Testimony Denise Lancaster

Defendant contends court erred in Denise witness Lancaster allowing testify at the guilt that defendant had her threatened kill and had phase told her he had killed before. At an in limine hearing, Lancaster testified she had (The defendant in he picked March 1986 while up hitchhiking. her, 1986.) murders occurred in charged January He threatened kill raped *30 could ruled that Lancaster her, before. The court her he had killed and told trial, At statements. relate the other the but could concerning rape, not testify with defendant. so, confrontation” as a to referring rape “physical she did he had killed before testimony Lancaster’s Defendant asserts murders. linked to charged statement was not because the was irrelevant 408, 417, Cal.3d (Cf. v. Hamilton statement, “Yeah, fun,] I’ll kill had my [I’ve P.2d 981] [defendant’s list,” because in more, too, held admissible first on my bemay a lot you murder connect it to [pending it no “required speculation context conduct criminal that admissions prior Defendant suggests charges]”.) being at the guilt phase, are inadmissible offense charged unrelated to the 1102, sub Evidence Code section barred by character evidence essentially (b). division made killing killings, admission a prior that defendant’s

We think committed, the ultimate was relevant to were murders charged soon after to infer that defendant was entitled The.jury of defendant’s guilt. question he could The fact that Castro and Holmes. was referring killing of his more to the weight goes to an unrelated killing have been referring Moreover, in of the other evidence light its admissibility. than to statement above, Lancaster’s error in admitting any outlined guilt, of defendant’s harmless. a was admission of prior killing defendant’s testimony concerning of Lancaster’s inadmissibility does not argue We note that defendant evidence seemingly this Although threat to kill her. of defendant’s recital it is at least defendant’s guilt, to the issue of have little relevance would mind to kill those or state of intent confirmed defendant’s the threat arguable 1013-1016.) pp. People Lang, him. who opposed harmless event, undoubtedly in the statement admitting error any In of guilt. remaining in light Claim

E. Counsel Ineffective wire with a noted, wrapped Castro was strangled victim As previously Mario expert, was examined by prosecution The wire around her neck. cut, had cord that been Soto, wire was telephone at trial the who testified Soto, to forming tom, prior the wall. According from rather than cutting wire and tried conclusion, some telephone he purchased foregoing neck. Castro’s found around of the wire the ends it to and breaking duplicate Defense at the scene. wire found resembled the more closely The cut wire testimony. to this made no objection counsel object failing was ineffective counsel now contends

Defendant was laid foundation no proper on the ground testimony to Soto’s *31 35 his out-of-court support “experiment" with the wire. Defendant asserts that failed to establish the wire People used Soto was similar sufficiently to the wire (See found around Castro’s neck. wrapped DiRosario Havens (1987) 196 1231 Cal.App.3d results Cal.Rptr. [experiment [242 423] inadmissible event]; unless conditions identical to substantially prior Andrews v. Barker Brothers Corp. Cal.App.2d [same].) Defendant the omission suggests 284] was prejudicial intentional, because Soto’s establish the testimony helped of People’s theory premeditated murder. record,

On the present we find no basis for concluding that counsel’s rule, failure to reflected his object As incompetence. general failure to to items of object specific evidence “involves tactical decisions on counsel’s and part seldom establishes counsel’s incompetence. (People v. [Citation].” Jackson, case, 292.) Cal.3d at In it is present possible Indeed, counsel deemed it unwise to tactically to Soto’s object it testimony. is conceivable that counsel investigated the matter and learned that Soto indeed used similar wire in his experiment. we not Accordingly, need resolve the whether question counsel’s omission prejudiced defendant light of the other circumstances, evidence of his Under premeditation. such claim must incompetence be denied. Pope A.L.R.4th

F. Evidence and Instructions to Relating Burglary indicated,

As previously found defendant guilty two counts of first degree murder. murder charges against defendant both alleged premeditated murder and latter, murder. To felony establish the the People defendant attempted committed an prove (§ 459), underlying burglary based in on his part possession stolen from jewelry the victims. recently (The also attempted prove was committed underlying rape 261], as G.) discussed post, [§ III. instructions pt. Objecting offense of the defense burglary, noted the absence of evidence indicating defendant entered the victim’s home with the intent to steal the jewelry.

The trial court nonetheless instructed the crime of jury regarding the instructed, burglary, additionally (5th based on CALJIC No. 2.15 ed. 1988), as follows:

“Conscious possession of recently stolen is not in and of itself property sufficient to an inference that the permit defendant committed the crime inferred, burglary. Before be be guilt may there must corroborating evidence However, defendant’s tending prove guilt. this evidence need be only inference of and need in and of itself be sufficient warrant an not slight, may possession— As corroboration consider attributes of you guilt. [¶] time, manner, that the had an to commit the opportunity place conduct, state his false charged, contradictory crime the defendant’s *32 ments, if he have made with reference to the other statements any, may defendant with and other evidence which tends connect the any property, crime charged.” the now of of error from the variety giving

Defendant raises a claims arising of them. instruction. We find no merit in any foregoing 1. Evidence burglary of

First, the was because there defendant asserts instruction improper (Cf. in fact People insufficient evidence a had occurred. burglary was (1988) 46 [improper Morris Cal-Rptr. 843] where relating CALJIC No. 2.15 instruction evidence to give unqualified unclear].) is He contends of stolen evidence possession property defendant’s he the victims’ his intent to steal at the time entered lacking was regarding (See 459.) We disagree. home. § circumstantial

Examination of record indicates there was sufficient of a and of defendant’s intent to steal the victims’ jewel- evidence burglary, (See victims’ v. Earl when he entered the home. ry rou- evidence Cal.App.3d 831] [circumstantial the officers he steal].) intent to Defendant admitted to used establish tinely and also that he was gold present was aware the victims possessed jewelry, the date of the murders. Substantial amounts at their home or about later seen from the Defendant was were jewelry missing premises. gold necklaces, and was seen bracelets and also pawning wearing gold rings, not be traced to this could (although positively some gold jewelry jewelry victims). “robbed” both He Roshaun Fuller that he assaulted and told their He also told after their rooms and taking jewelry. victims ransacking from Additionally, he women. by Fuller that made his living taking property Smith, that he to murders was he told an Constance acquaintance, prior Castro, her but looked on as in victim simply not interested romantically obtain money. from whom he could someone record, that, was sufficient in there foregoing

We conclude light Accordingly, intent steal. of a including preexisting burglary, in CALJIC No. 2.15. court did not err giving stolen jewelry 2. Evidence possession of Morris, noted, 46 Cal.3d at under As previously not be should on CALJIC No. 2.15 instruction based an unqualified page given if the defendant’s possession stolen is unclear or in property (3d 1972) also United dispute. States Cir. 456 F.2d Bamberger 1134.) Defendant asserts that the no prosecution introduced evidence estab- that he of the victims’ We lishing possessed disagree. jewelry.

Several witnesses described detail various items of victims’ missing jewelry, including large medallion worn victim Holmes. “coin-type” Witness Constance Smith testified that this medallion could have been the same one she saw defendant As wearing following murders. previously noted, necklaces, defendant was seen wearing gold bracelets and rings, seen also some He told Roshaun Fuller that pawning gold jewelry. he assaulted “robbed” both victims after their ransacking rooms and taking *33 their We jewelry. conclude the record contains sufficient evidence of pos- of session stolen the property justify instruction.

3. Presumption burglary of

Defendant asserts that CALJIC No. 2.15 created ah pre improper of sumption from the mere fact burglary arising of of stolen possession Indeed, But the instruction does not so property. state. it relates a contrary a not be proposition: from mere burglary may presumed unless possession the of (Defendant commission the is offense corroborated. the suggests instruction allows corroboration evidence of the merely by offense charged murder, that, of context, but we think it in clear read the instruction requires corroboration the of itself.) and not the murder More underlying burglary, over, observe, as the the People ultimate whether or not a question burglary "occurred, and the whether subsidiary question defendant possessed steal, requisite intent to were preexisting left through the usual Thus, instructions regarding elements of that offense. contrary to defend ant’s CALJIC No. 2.15 did not of assumption, remove the issue intent from 714, jury’s (1986) consideration. People 41 Figueroa 719, 680]; 725-727 see 715 P.2d also Cal.Rptr. People [224 Anderson 414, 422, (1989) 210 Cal.App.3d 426-431 [upholding [258 482] of 2.15].) CALJIC No. validity

Defendant nonetheless contends that CALJIC No. 2.15 ais “permissive aof kind if presumption” justified the evidence is for a only “sufficient rational juror to find the inferred fact reasonable doubt . . .” beyond . (Barnes 837, 380, 386, (1973) v. United 412 States U.S. 843 L.Ed.2d [37 2357].) S.Ct. Defendant further notes that constitutional principles require rational connection between the facts and the proved presumed (E.g., fact. 111, 792, Ulster County v. Allen Court U.S. L.Ed.2d 2213]; see S.Ct. also v. Roder 33 Cal.3d instruction Assuming challenged 658 P.2d of based on defendant’s possession amounts to a of presumption burglary (see above we think the evidence summarized pt. stolen recently property, F.2., ante) forth in Barnes and Ulster. meets the standard set F.l. and amply forth, related we must defendant’s for the reasons above set reject Similarly, convictions must be reversed on ground contention that his murder as the underlying felony. insufficient evidence burglary 2.15, No. court did not err in CALJIC giving concluded that the Having error further contentions that purported we need not address defendant’s se, be rendered harmless by and that the error cannot was reversible per murder or theories of on the alternative premeditated reliance prosecution’s U.S._[116 L.Ed.2d (see v. United States rape/murder Griffin 371, 382-383, 474]; (1993) 4 Cal.4th 112 S.Ct. v. Guiton 45]). Cal.Rptr.2d 1129-1130 [17

G. Evidence Rape indicated, the People, attempting prove As previously victims, both relied on both a premed first murder as to degree committed The latter theory and a felony-murder theory. *34 itated-murder theory of burglary of the offenses underlying on defendant’s commission based discussed, ante, F.) or III. and rape attempted rape. pt. (previously evidence of or rape attempted there was insufficient Defendant contends Consistent with as to victim Holmes. a felony-murder finding rape support however, conclude, the insuffi that we We also holdings, agree. our prior in of the valid light was harmless theory as to the rape/murder ciency were that murder and burglary/murder theories of premeditated alternative victims. with to both to the jury respect presented evidence, whether of the we must inquire sufficiency To determine doubt. reasonable could find defendant guilty beyond a rational trier of fact to the in most favorable light the evidence the we must view In this process fact every existence of in the judgment favor of judgment presume sufficient, To be the evidence. deduce from reasonably of fact could the trier must be substantial of the crime elements of each of essential evidence record as a in of sufficiency light and we must resolve question 228, 284, 721 (1986) Cal.Rptr. 42 Cal.3d 303 Barnes [228 whole. v. (People 557, Cal.Rptr. (1980) Cal.3d 576-578 110]; 26 [162 v. Johnson P.2d (1979) 738, 1255]; 431, Virginia see Jackson 16 A.L.R.4th 606 P.2d 560, 573, 307, S.Ct. L.Ed.2d U.S. 318-319 [61 a felony- to support evidence following on the relied The People Holmes: as to victim theory rape) or attempted murder (rape murders, Defendant admitted to that on or about the police he night Castro, visited the home of victims Holmes and Castro to drink encouraged intoxication, to the state of and then had “sex” with her. During police interrogation, the officers had not accused although defendant of raping victim, offense, defendant, either and indeed had not even mentioned that in him, the course of the evidence made the observation evaluating against is hard to because it if she “rape prove is inquiry] gave up pussy [the didn’t she.”

Some evidence indicated that victim Holmes have physical been may assaulted in the course of her sexually murder. Her was dressed body only bra; a sweatshirt and (Cf. she was from the waist wearing nothing down. Jennings 53 Cal.3d 807 P.2d Cal.Rptr. [279 delicti of inferred from [corpus rape 1009] evidence of murder in remote locale with coupled unclothed condition of The officers found a body].) pair on the floor of her room. had pantyhose Holmes been beaten severely; floor, blood was found on the sofa cushions and loveseat in that This room. supported prosecution’s sexual theory any activity (See 368.) nonconsensual. id. at p.

Defendant observes that no evidence correctly was introduced to indicate trauma, sexual seminal traces or other evidence of forced or penetration, otherwise, however, as to victim Holmes. The that a People argue, felony- murder charge be sustained finding attempted rape, could 189; was so instructed. 62 Cal.2d People Hillery § 401 P.2d of trauma to genitals 382] [evidence to establish unnecessary cf. attempted People v. rape]; Wright of evidence of 221] [lack not fatal to penetration sus- felony-murder/rape special-circumstance finding *35 tainable on of proof attempted rape].) Castro,

But other than the inference that defendant have victim may raped evidence of his or only of victim Holmes was ‘her rape attempted rape unclothed Defendant cites partly body. cases of this court to his prior support that the unclothed or clothed condition the victim’s position of is partly body insufficient to establish an actual or sex offense. People v. attempted Anderson 70 Cal.2d 34-36 [73 942] 288]; evidence of intent to commit lewd act under People [insufficient § Cal.2d Craig 318-319 P.2d 947] [insufficient intent specific to commit or see also rape rape]; attempted Granados found in P.2d 346] [victim bloodstained room with skirt but no evi- and pulled up genitals exposed, dence of or trauma—held insufficient to establish spermatozoa genital felony act].) on murder based commission of lewd These cases are indeed close on in point, though factually distinguishable respects. Inexplicably, some address, cite, General fails to or even these cases in his Attorney respon- dent’s brief. defendant,

In in the had his earlier Craig, evening, expressed general desire to “have a little and he with a woman loving,” subsequently quarrelled (not victim) he a bar who refused to dance with him. Later that night, attacked and killed the victim her and her 20 to 80 by beating strangling station, times. The victim’s was found in a service beneath a body lying automobile. She had been across the jacked-up apparently dragged ground feet, about 25 and cars were with blood. She was nearby wearing spattered a raincoat over a and Her had been raincoat nightgown panties. ripped open, and her were likewise tom so that the “front nightgown panties part (49 316.) was Cal.2d at Her were torn body exposed.” p. panties open (Ibid.) and were “under She her her.” was found back with her lying legs of her had suffered contusions and lacerations slightly spread, multiple face, breasts, (Ibid.) neck and lower abdomen. J.; three; Carter, (four

A divided court dis. maj. opn. by opn. by Spence, J.) held that because of the lack of evidence of the defendant’s intent specific to commit such as blood on the his trousers or other evidence rape, fly qf that a act or took could not charges attempt place, felony-murder-rape sexual and, be sustained the court modified the to second accordingly, judgment (The murder. court had also found the evidence insufficient show degree murder.) The stressed that the defendant’s although premeditated majority blood, with no blood was found on front clothing generally spattered trousers, undershorts, it a sex act was accom fly making unlikely of his of the victim’s “loses legs or even The open position plished attempted. 20 to when it is recalled that the had been some dragged significance body (49 319.) would have found feet.” Cal.2d at dissent Craig in an to commit evidence that the murder was committed attempt substantial (dis. J.).) (Id. at of Spence, pp. opn. rape. Anderson, the defendant had repeatedly

In 70 Cal.2d inflicted, wounds were female victim. More than 60 10-year-old stabbed lacerations. No evidence over her entire extending body, including vaginal under a naked was found body pile was found. The victim’s spermatozoa blankets; under and shredded dress was found of boxes and her bloodstained *36 Only out her blood-soaked panties. her bed. The crotch had been of ripped bloodstained, he was only socks and shorts were suggesting defendant’s (Id. 20-22.) at clothed the attack. during pp. partly 313, (four to court Cal.2d a divided supra, on People Craig, Relying Sullivan, JJ.) Tobriner, J.; three; Burke and dis. opns. by maj. by opn. murder, degree holding modified a first murder second degree judgment a finding that the evidence was insufficient to sustain foregoing 288, a lewd act under section as defendant’s intent to commit specific 34-36.) (70 doctrine. Cal.2d at to invoke the felony-murder pp. required introduced to Anderson concluded that insufficient evidence was majority intent; bore show the defendant’s sexual the location of the victim’s wounds 35.) (See little relevance id. at The court also found the issue. p. evidence was insufficient to establish murder. id. at pp. premeditated 24-34.) 313, Anderson,

We have cited Cal.2d and Craig, supra, supra, both 15, with in cases apparent approval subsequent determining the of the evidence of sexual offenses a sufficiency felony- underlying 489, murder v. Thomas 2 Cal.4th charge. (E.g., People 199, 2d 828 P.2d but [citing, distinguishing, Craig]', People 101] Hernandez 47 Cal.3d 1289] Anderson].) but both and [citing, distinguishing, Craig Assuming Craig (and the Anderson state law General does not correctly Attorney otherwise), contend would to be here. they appear controlling are, course, There of some factual between and the distinctions those cases Here, one. unlike we are with present supra, 49 Cal.2d not faced Craig, (such trousers) circumstances as the lack of blood on defendant Craig’s inconsistent with a that defendant or victim finding raped, attempted rape, Nor Holmes. can her clothed state be attributed to from partly being dragged Anderson, Moreover, in as unlike the situation place Craig. place, 70 Cal.2d defendant’s intent to commit supra, specific rape possibly could be inferred the fact he earlier with Holmes’s daughter, from had sex Castro. Anderson, victim’s lack

But 70 Cal.2d to hold that the supra, appears defendant was of even when with evidence clothing, indicating coupled attack, naked is insufficient to establish sexual nearly during specific intent. We have found no cases otherwise. In Jennings, holding herein, 53 Cal.3d at cited we held that page delicti be inferred from fact that the female could corpus rape young stressed, victim’s was found unclothed in a remote location. We body however, that the delicti could be satisfied corpus requirement by only “ 368.) we (Id. or facie’ As ‘slight prima showing. [Citations.]” above, is more than a mere facie” showing required explained “prima on sustain finding rape attempted rape appeal. there was no evidence

Other than victim Holmes’s clothed partly body, that, We conclude under Anderson Craig, a sexual assault her. *37 evidence was insufficient to a of first murder based support finding degree on or of victim Holmes. Does the insufficiency rape attempted rape F., reversal of the As we in III. judgment? require explained part ante, the rested on that prosecution’s felony-murder theory soundly proof Moreover, both murders occurred the course of a during burglary.

has not for the challenged legal evidentiary support prosecution’s murder the record that in premeditated shows theory. Finally, closing argu- was ment the conceded to the that “This jury prosecutor [Holmes’s murder] a but was not a murder the course of instead probably felony during rape,” the concession in gratefully murder. Defense counsel premeditated exploited his own closing argument. we rule that if one of the

Accordingly, may apply prosecution’s evi alternative theories of criminal is found liability unsupported by dence, theory of conviction rest sufficient may any legally judgment error, demonstrates that the affirmatively unaffected unless record States, supra, relied on the United ground. jury unsupported Griffin _ 371, 372-373, 474]; 502 U.S. L.Ed.2d 112 S.Ct. Guiton, 1129-1130.) 4 Cal.4th at Based on our review of the pp. record, of evidence a rape/ we conclude that the insufficiency supporting under the circumstances murder as to victim Holmes was harmless theory here. Sponte

H. Sua Instruction on Provocation instruct the trial court erred in failing Defendant next contends 8.73, in whether based on CALJIC No. that the jury, deciding sua sponte, Castro, murder of victim degree defendant could be found of second guilty that a part inducing could consider evidence of any provocation played homicide, the offense to if evidence was insufficient to reduce even instructed the jurors The record discloses that the court manslaughter. murder, them that such telling of second degree on the generally subject intentional, and was commit if the killing would be finding appropriate nor deliberate. neither ted with malice but was aforethought, premeditated could the court also instructed provocation At counsel’s request, (The to voluntary manslaughter. victim Castro involving reduce the offense Holmes, and to victim as found no substantial evidence provocation court death.) her declined to so instruct as to observes, instruction on provocation a sua sponte

As defendant the evidence of provocation be “where murder must degree given second the intent had formed that the accused would determination justify *38 kill as a direct to the and had acted to response provocation immediately” it out. v. Wickersham carry (People 32 Cal.3d Cal.Rptr. 311].) 650 P.2d Wickersham noted fact that “the that heated words were or a exchanged took physical struggle between the victim and the place accused before the be a fatality may sufficient to raise reasonable doubt” as to (Ibid.) premeditation. Defendant that because the trial argues court found apparently sufficient evidence to justify giving provocation/ instruction, then a manslaughter fortiori there must have been evi enough dence to instruct on second degree murder. with defendant’s problem is that there was analysis insufficient Thus,

evidence of to provocation any instructions on that justify subject. trial court’s instruction on manslaughter was inappropriate unnecessary, not though to obviously prejudicial defendant.

Defendant introduced no evidence whatever to a defense of support Instead, or to provocation, indicate he was on one. he relying attempted defense, mount an Castro, alibi to cast suspicion another acquaintance and to witness impeach Fuller’s incriminating A testimony. provocation defense would have been inconsistent with the denial of foregoing guilt. circumstances, Under such no sua instruction was sponte required. (People Wickersham, 329; supra, 32 Cal.3d at p. v. Sedeno 10 Cal.3d observes, however,

Defendant that at an in-chambers conference with the trial, court at close of his counsel indicated he would also on a rely defense, provocation a defense that the jury might accept despite rejecting the alibi defense. Counsel cited the testimony officer Mc- interrogating that, defendant, Carthy according Castro first became intoxicated and then became men, emotional and upset, about complaining being mistreated by defendant, over,” at “hollering” before “knocking things finally going sleep. in the

Significantly, nothing defendant’s statement that portion summarized officer testifying indicated relevant effect on defend- Indeed, ant’s state of mind from Castro’s words resulting or actions. accord- statement, ing Thus, to his defendant was not into provoked killing Castro. evidence would have no foregoing basis whatever for given that defendant concluding “formed the intent to kill as a direct response” Wickersham, Castro’s conduct as required by supra, 32 Cal.3d page 329. 152, 211, also v. Morris 53 Cal.3d and fn. 12 [279 720, 807 P.2d for basis evidentiary believing jury might 949] [no have found adequate provocation].)

The trial court likewise its doubt that defendant’s provocation expressed evidence was “substantial” enough justify provocation/manslaughter *39 instruction but nonetheless indicated it would the instruction as to give (only Castro) on The cited a reference in to avoid reversal court possible appeal. told witness to the effect that defendant her prosecution testimony Fuller’s fact, that, he In Fuller had become with Castro. testified to “upset” according defendant, and and that depressed, Castro became intoxicated defendant tired he hit her became “sick and of her . . . so and being depressed, evidence, We knocked her out.” conclude that such suggesting meager Castro, to own statement contrary conduct and defendant’s passive by being officers, that to would not be a sufficient basis for Castro concluding into her. killing actively provoked the trial court on

Defendant contends that because instructed provocation/ there have been evidence a provocation/ must manslaughter, support murder have similar contentions. second We degree theory. previously rejected (Pe 1050, 526, (1992) Cal.4th 1061 Payton Cal.Rptr.2d v. 3 ople [13 1210, 1242 1035]; (1991) 52 People P.2d v. Cal.3d Pensinger [278 839 142, 640, 899]; (1979) v. Frierson 25 Cal.3d 157 805 P.2d People Cal.Rptr. 281, 587].) 599 P.2d Cal.Rptr. [158 in to instruct sua on sponte the trial court did not err failing

We conclude conclusion, In our we a murder defense. degree light provocation/second failure consider whether defendant prejudiced need not observe, however, overwhelmingly supports We that the evidence instruct. deliberate, and Unprovoked, that both murders were premeditated, finding home, and to prevent to facilitate a of the victims’ burglary committed being v. Pride (See, People the burglar. e.g., from defendant as identifying them 195, 636, P.2d (1992) [finding 833 Cal.Rptr.2d 643] 3 Cal.4th 247-248 [10 wounds].) stab based victims’ multiple premeditation partly Kill Intent to I. 79, (1983) Cal.Rptr. 131 v. 35 Cal.3d Superior [197

In Carlos Court element of the kill was 862], necessary held intent to we 672 P.2d circumstance, (1984) in v. Turner 37 People special felony-murder 196, the Carlos we extended P.2d 690 Cal.Rptr. Cal.3d 302 669] [208 overruled both We circumstance. the multiple-murder special holding 1104 (1987) 43 Cal.3d [240 v. Anderson and Turner People Carlos but after Carlos 585, offenses committed P.2d As to 1306]. Cal.Rptr. demand Anderson, however, ex facto post principles due process before cir special any felony-murder requirement apply intent-to-kill Fierro (See People such offenses. in connection with charged cumstance 173, (1991) 426, 1 Cal.4th 1302]; 821 P.2d Cal.Rptr.2d People [3 955, Duncan 131]; fn. In re Baert Cal.App.3d

offenses involved here occurred in January during foregoing “window between Carlos and period” Anderson.

Presumably, foregoing constitutional concerns would likewise apply the multiple-murder circumstance special here. The Gen alleged Attorney Indeed, eral does not contend otherwise. concede that here, Carlos error occurred and they contend that such error was harmless. Harris *40 47 Cal.3d 1100 767 Cal.Rptr. [255 619]; 386, P.2d People (1988) v. 137, Odle 45 Cal.3d 414-415 [247 184].) 754 P.2d Odle concluded that a harmless error analysis pursuant v. Chapman California, supra, 386 U.S. at 24 page L.Ed.2d at pages [17 710-711], is appropriate constitutionally in cases permissible involving failure to instruct on an element of a special circumstance. Odle reasoned that there is no constitutional to a right jury trial on the issue of a defendant’s which, for the eligibility death an issue penalty, but for the mandate statute, state would be a (45 issue. sentencing 411-412.) Cal.3d at pp. Odle, Although defendant asserts 386, 45 supra, was incor decided, rectly we have repeatedly declined to reexamine our in that holding (See, case. e.g., v. People 1179, Gonzalez 51 Cal.3d 1267 [275 729, 1159]; Harris, People 1100; v. 47 supra, Cal.3d at p. see also 1233, v. People 45, 4 Cummings Cal.4th and fn. 850 Cal.Rptr.2d [18 P.2d Odle’s distinc [acknowledging 1] tion between failure to offense, instruct on element of an and failure to instruct on element of a special circumstance allegation].)

Our review of the record confirms that the court indeed failed to instruct the jury that an intent to kill was a true prerequisite finding the multiple- Moreover, murder special circumstance. we cannot infer necessarily such from finding the jury’s verdict or based on the court’s other findings (See, Duncan, instructions. v. e.g., People 973-974.) supra, 53 Cal.3d Although were jurors instructed murder and its regarding premeditated element, intent Thus, were also instructed they murder. felony although the issue of intent was not entirely (cf. removed from the consideration jury’s United (9th 1993) States v. Gaudin 1267), Cir. F.2d its of first finding murder did not degree include a necessarily determination that defendant intended to kill both of his victims.

But as we the evidence of explain, defendant’s intent to kill both victims and the could have had no overwhelming, reasonable doubt on that Odle, at “this is a case in 45 Cal.3d supra, page matter. As that the instructional error in the facts demonstrate overwhelmingly which Harris, at (See also 47 Cal.3d supra, p. was harmless.” intent kill harmless where evidence of such to instruct on intent to [failure overwhelming].) on Yates v. Evatt 500 U.S. 391

The dissent herein relies [114 (Rose 1884], in an earlier case language L.Ed.2d S.Ct. disapproving 460, 471, 3101]), L.Ed.2d 106 S.Ct. (1986) 478 U.S. v. Clark Odle, But at 414. through on in 45 Cal.3d pages relied part context of determining was made Yates’s criticism Rose Clark (See 500 U.S. at for rebuttable presumptions. harmless error standard proper 402-403, Yates concerned applicable fit. 8 L.Ed.2d pp. that an has been instructed improperly harmless error test where the jury (inten (malice) from certain facts could be presumed element of the offense Thus, act, if an or use of a deadly weapon). tional commission of unlawful (rather herein than charged element of the offenses intent to kill were an if herein had the jurors to the circumstance finding), special pertaining reason of to kill was presumed by told the defendant’s intent been *41 case, in order the showing in Yates would following certain facts the require under Chapman a reasonable doubt find the error harmless beyond L.Ed.2d at U.S. at p. pp. 710-711]: California, supra, [17 verdict the rested its is whether jury actually issue under Chapman “[T]he doubt, a reasonable the fact beyond evidence establishing presumed cannot be a that subjective Since enquiry presumption. independently minds, whether asking it by a court must approach into the jurors’ one with in accordance jury considered of the evidence presumably force reasonable doubt it a beyond as to leave overwhelming is so the instructions same in the have been the evidence would on that resting that the verdict at L.Ed.2d (500 U.S. pp. the presumption." absence of added; also v. Louisi 1893-1894], see Sullivan italics 111 S.Ct. at pp. _ _ 188-189, S.Ct. 2081] L.Ed.2d (1993) U.S. ana unattributable” verdict “surely jury’s guilty finding test [Chapman requires se].) reversible per deemed error; on reasonable doubt instructions faulty case, any improper not told to apply were the jurors In the present test of Yates Accordingly, issue. intent-to-kill to the as presumptions But, even as will appear, here. be Evatt, inapplicable would supra, seemingly before the test, that the would conclude we were we to apply a reasonable doubt to leave it beyond as overwhelming was so regarding been instructed had the jury the same have been verdict would to kill. an intent of finding necessity

We review the evidence as it bore briefly on the intent issue:

1. Victim Castro’s murder Defendant Castro death with a her strangled wire set telephone room, and her afire. The method of probably body, execution itself precludes inference the murder was accidental or As we have unintentional. held, “this method of repeatedly killing [strangulation] is indicative of at Hernandez, a least deliberate intent to kill. (People v. [Citations.]” 349.) Cal.3d at p. first degree murder jury’s finding reflected the jury’s determination

that Castro’s murder was either premeditated, committed in the steal, course a burglary, requiring intent to preexisting specific and/or record, committed the course of a On this rape. reasonable only one conclusion can draw from the evidence and the findings is that jury’s defendant murdered intentionally Castro facilitate his escape preclude Defendant, his apprehension after her raping her stealing jewelry. and/or defense, on an relying alibi introduced no evidence which would have justified finding unintentional homicide.

2. VictimHolmes’s murder Holmes, As for admitted she became aware of his presence in the house with Castro on the night murders. to witness According Fuller, defendant admitted after “hitting” Holmes she came upstairs Castro, about inquire who was unconscious from already defendant’s assault *42 on her. The evidence shows that defendant stole Holmes’s jewelry beat her to death her to by 10 12 times in her face kicking and head. As we have there was no explained, substantial Holmes the provoked assault. Once the methodical again, method of execution would preclude inference Pride, the was (See accidental or unintentional. killing v. People 3 supra, Cal.4th at 247 stab wounds of p. [multiple consistent with finding murder]; Hernandez, premeditated v. 47 People supra, Cal.3d p. 350 rather than “random” method of be indicative of killing may [“calculated” murder]; Anderson, premeditated 70 Cal.2d at People [“ex- acting” manner of of murder].) indicative the killing premeditated Again, defendant, reasonable only conclusion the drawn jury could have was that Castro, after then killed to killing Holmes facilitate his and preclude escape his apprehension.

We the in conclude that error to instruct on intent to kill with failing to Castro a beyond and Holmes harmless reasonable doubt. respect

IV. Penalty Phase Issues False Testimony A. Instruction on Witness’s the based on the court instructed jury, At the penalty phase, a witness who makes (4th 1979), that the of testimony No. 2.21 ed. CALJIC in be its disregarded a could point false statement on material a willfully of his in other testimony “the truth favors unless entirety, probability instruction, at the used commonly Defendant contends such particulars.” (see, function e.g., in its fact-finding assist phase jury guilt 1294]), is Allison Cal.3d 895 [258 of nonfactual subjective, at the because penalty phase inappropriate Defendant notes the decision. penalty nature of the “normative” jury’s he is testimony, description suggests inap to “material” instruction refers testimony. to much phase propriate penalty the use no cases expressly we have found approving

Although implicitly recognizes one case penalty instruction at foregoing phase, of a trial. be at both phases capital would instruction appropriate Gates instructions, as CALJIC such credibility witness [observing that P.2d 301] issue of 2.21, guilt limited are not very No. their terms specifically reasonable, innocence].) admissibility seems given Such conclusion matters, “other including on a factual variety testimony of penalty phase (See 190.3.) evidence. crimes” § case, array penalty-phase an the People presented

In the present The defense defendant. violent acts by to various witnesses attesting prior matters, additional including factual testify called witnesses likewise evidence, and testimony “other crimes” to rebut the prosecution’s facts why see no reason We background. defendant’s childhood concerning be assist given No. should not on CALJIC 2.21 instruction based where appro- testimony, phase the credibility penalty appraising *43 under the evidence. priate Other Crimes on Elements to Instruct

B. Failure of of numer evidence introduced prosecutor the the At penalty phase, 190.3, (b).) The (See subd. defendant. offenses § unadjudicated ous prior in stipulating the prosecutor joined defense counsel indicates that record the reasons, regarding instruct the jury to that, unnecessary it was for tactical

49 elements of these various offenses. Defendant now claims the trial court erred, law, nonetheless under both federal and state to so instruct failing sua is sponte. without point wholly merit.

First, record, on this error in to instruct the elements failing regarding of defendant’s crimes would prior (See be deemed invited error. v. People 771, (1991) 90, Cooper 53 865].) 827-831 P.2d Cal.Rptr. [281 reject We defendant’s related assertions that counsel’s tactical decision to detailed (1) “other crimes” instructions forgo defendant’s required personal waiver, (2) amounted (See id. at incompetent representation. pp. 827-828 waiver personal in- required], [no waiver not [counsel’s 569, see competence]; also v. People (1992) 4 Cal.4th Tuilaepa 592 [15 382, 1142].) 842 P.2d Cal.Rptr.2d

Second, that, we have held because defense counsel not the might want undue on offenses, jury place emphasis defendant’s the court is prior not required (See such instructions sua give v. Phillips sponte. People 29, (1985) 72-73, 127, 41 Cal.3d 423].) fn. 25 711 P.2d Cal.Rptr. [222 Although asks us to reconsider Phillips, we have relied frequently on its holding (See, see no reason for reconsideration. e.g., People 592; Tuilaepa, Cal.4th at People Hardy, supra, Cal.4th at pp. 206-207; People 1267; Pensinger, supra, Cal.3d at p. v. Clark 583, (1990) 399, 50 Cal.3d 127].) Cal.Rptr. 789 P.2d C. Failure to Instruct Sua Sponte Use “Other Crimes” Evidence of

Defendant contends the court erred in to instruct sua failing sponte (based on 2.50) CALJIC No. that the should not use penalty phase jury “inference of criminal drawn from of of propensity one incident proof unadjudicated conduct as of truth of proof allegations another (See (1980) such incident.” People v. Thompson 27 Cal.3d 317 [165 Code, 883]; 611 P.2d (a).) Evid. subd. We disagree. § the court owes no Generally, instruct on limited obligation purposes for which evidence of crimes is prior admissible. v. Collie 30 Cal.3d 23 A.L.R.4th rule, Defendant but it be should acknowledges general argues at the of a In case. the instructions inapplicable penalty phase capital light here, that were we given fail discern a need for such a sua sponte instruction. case,

In was told that various present jury specified criminal acts had been before the could use evidence presented, *44 circumstance, it must find a beyond such offense as an any aggravating occurred, of- reasonable doubt that such offense and for such except fenses, as the not evidence of other criminal acts any consider jury “may an circumstance.” We think the instructions sufficed aggravating foregoing the various to inform the of its to differentiate between jury responsibility instructions, con- Under these no reasonable would have juror offenses. cluded that one offense could assist in another offense of proof proving a reasonable doubt. beyond also defendant’s related that counsel’s failure to

We contention reject a instruction on the offenses reflected his limiting prior incompe request indicated, it un tence. As counsel have deemed previously may tactically requesting wise to call further attention to defendant’s offenses prior .by 25; (See fn. Phillips, supra, instructions. Cal.3d People p. special 1267.) 52 Cal.3d at cf. People Pensinger, supra, and Sponte D. Failure to Instruct on Meaning “Aggravating" Sua “Mitigating” erred in to define terms failing

Defendant asserts the court We to assist the in “mitigating” jury determining penalty. “aggravating” instructions, even on defendant’s have held the court need not such give (See v. Malone People request. in were required It follows that no sua instructions sponte

this case. Evidence

E. Failure to Give Notice Timely Aggravating unduly presenting contends the prosecutor delayed Defendant intended People notice of aggravating defense with the required 190.3.) The shows that record on during phase. rely penalty § Defendant December 1986. filed such notice on initially prosecutor nine offenses unadjudicated this notice referred to prior observes that Thereafter, 2, 1987, was after the case on June convictions. felony four prior “addendum,” selection, an filed for but before trial assigned jury On September incidents of criminal activity. more prior adding selection, filed to commencement one week prior incidents, but refer notice,” unadjudicated 20 additional adding “amended 25, the People Finally, September convictions. felony only prior ring notice,” the fourth reference to adding amended its “second submitted conviction. criminal 5, 1987, defendant, when March notices filed after the three

According trial, were calendar for master criminal from the assigned the case

51 addition, In the never untimely. gave notice of one incident People allegedly inmate, at the defendant’s presented penalty phase, namely, assault on James Fox. are to People defendant of intended required notify phase penalty a

evidence “within reasonable of time as determined the trial period court, (§ 190.3.) to trial.” We prior have held that the to trial” phrase “prior should be construed as “before the cause is called for v. (People trial." 815, (1991) 122, Daniels 52 906].) Cal.3d 879 802 Cal.Rptr. P.2d [277 however, Daniels, did not a when be deemed explain precisely case may “called" for trial. Although General has not raised it Attorney the point, is that a arguable master calendar should not be assignment deemed “call Here, a ing” case for trial. all of the notices were filed to prior selection, commencement of jury defendant failed to continu request ance, thereby that the of the indicating notices was not timing prejudicial defense. v. People 842; Cooper, supra, 53 Cal.3d at v. p. People (1988) Walker 47 Cal.3d 637 765 P.2d Cal.Rptr. [253 event, In any observe that defendant People failed object any issue, the notices at or to object evidence penalty phase ground thereof, untimeliness of notice omissions which bar appellate consid- eration (See, of the e.g., People (1991) issue. v. Mickey 54 Cal.3d 84]; 818 P.2d [286 Cooper, supra, 53 Cal.3d at p. 842.) Defendant’s that his suggestion counsel’s failure raise such objec- tion or a continuance reflected request his is meritless in incompetence light tactical possible considerations involved in such a Counsel decision. well have may concluded that such an for objection continuance request could serve to only alienate the trial court or without necessarily for his securing any client. advantage

F. Admission Evidence Prior Underlying Offenses Defendant contends the court erred in the admission of evidence allowing (see 190.3), defendant’s offenses regarding prior (1) evidence including § conviction, underlying prior evidence of two robbery unadjudicated offenses on which the statute of limitations had run. we Defendant realizes have rejected (see, similar repeatedly contentions e.g., People v. Jennings, 53 Cal.3d offenses admissible at penalty phase]; [barred People Mattson 50 Cal.3d prior conviction underlying

983] [evidence admissible at penalty phase]), and he offers no reasons for convincing those Defend- reconsidering rulings. ant’s assertion that equal principles may reliance on the protection preclude (see foregoing Guerrero *46 688, 1150]) (See is likewise without merit. v. People 748 P.2d 1, 691, 729]; 838 P.2d

Danielson 3 Cal.4th Cal.Rptr.2d 719-720 [13 335, P.2d v. 1 Cal.4th 136 820 People Bacigalupo Cal.Rptr.2d [2 _ _ 32].) 559], (1992) U.S. L.Ed.2d 113 S.Ct. on remand [121 Discretion Sentencing G. Failure to Instruct on the court erred in to instruct failing jury Defendant contends if life without even it that it could a sentence of parole impose imprisonment Duncan, supra, v. People found no evidence whatever. 53 mitigating “even in absence of mitigating at determine [jury may 979 p. insubstantial].) is We disagree. evidence” that the aggravating consider, account, was should take into and be The instructed that it jury factors; that the weigh- and guided by aggravating mitigating applicable of on each not mean “a mere mechanical factors counting does ing process scale, of weights or the of imaginary arbitrary assignment side of them”; whatever moral or sympathetic and is “free to assign jury . . . each all of the various factors .” value deem you appropriate which relevant evidence further told to “determine under the jury the totality aggra- is by considering justified appropriate penalty ... To return a with the circumstances. mitigating circumstances vating death, that the aggravating each of must be you persuaded of judgment circum- with so the mitigating circumstances are substantial comparison of life without parole.” it warrants death instead stances that [sic] incor First, were instructions foregoing defendant does not suggest rect, request Yet defendant failed were they inadequate. but only instructions, review of the issue. which bars appellate an omission clarifying 153; Sully v. People (See, supra, v. Cal.4th People Hardy, e.g., 163].) 812 P.2d 53 Cal.Sd event, advised adequately instruction we believe the foregoing In any assume he would juror No reasonable its sentencing jury responsibilities. cir- aggravating death insubstantial to impose despite she was required were found to cumstances, no circumstances mitigating because merely Indeed, mitigating conclude that would it seems unlikely exist. introduced case: the defense in this lacking were entirely circumstances mitigation. evidence in substantial Not Unconstitutional Death Statute Penalty

H. in a is unconstitutional law death penalty the 1978 Defendant asserts of the arguments each repeatedly rejected We have number respects. defendant, (See, raised and we need not them here. People discuss e.g., Danielson, 594-595; Tuilaepa, Cal.4th at pp. supra, 3 691, 730-731, cited; (1992) Mincey Cal.4th and cases Cal.4th Cal.Rptr.2d I. Consideration Additional “Other Evidence Crimes” *47 introduced, the evidence was During penalty phase, objection without by defendant, certain criminal did regarding activity that not as prior qualify 190.3, aggravating (b). evidence under section subdivision For example, “background” and his mitigating by defendant relatives was re- testimony butted on cross-examination by from these witnesses the fact that eliciting had defendant committed numerous before burglaries reaching 16. age Because the evidence of defendant’s was not foregoing juvenile burglaries 190.3, admissible under section the trial court instructed thé that this jury evidence could be considered in rebuttal of defendant’s only mitigating “or evidence as of the absence of or mitigating extenuating circum- stances raised the by defendant . .. .You not consider evidence of may other such criminal acts for any other purpose.” broad,

Defendant first contends the instruction was too foregoing the permitting jury consider defendant’s nonviolent even misconduct it did not though truly “rebut” evidence of troubled defendant’s childhood. (See 730, 792, v. People Rodriguez fn. 24 Cal.3d 667, 726 P.2d of rebuttal must be evidence must relate [scope specific; 113] to particular defendant].) incident or character trait relied on But the by evidence, instruction limited the correctly jury’s consideration to rebuttal it to the leaving counsel’s jury (guided perhaps by closing arguments) decide whether the evidence indeed rebutted evidence elicited proffered any defendant. If by defendant believed the or instruction was unclear incom he had the plete, obligation to request language. clarifying Sully, supra, 1218.) 53 Cal.3d

Next, defendant contends the instruction allowed the jury improperly consider his juvenile burglaries as evidence of the of absence mitigating evidence, the contrary rule in Davenport 861], however, dealt with Davenport, a different of problem, namely, impropriety prosecutorial argument characterizing aggravating as factor the absence particular mitigating factors, terms, such as the defendant’s mental its defect disease. By challenged instruction did not to treat defendant’s permit juvenile jury thq construed, as a challenged factor. burglaries negative mitigating Properly evidence of defendant’s any instruction would allow consideration simply of a mitigating criminal conduct that called in the existence question prior defendant had again, circumstance “raised the defendant.” Once (People Sully, clarifying language. obligation request any appropriate 1218.) supra, 53 Cal.3d case, does not either prosecutor

In the present suggest juvenile error or to use defendant’s Davenport urged committed not err in for We conclude the court did burglaries improper purpose. instruction. giving challenged Sentence Ruling Denying

J. Modification *48 verdict, to moved the court returned its death After the jury The denied court parole. life without imprisonment the sentence to modify motion, background in that defendant’s mitigating stating part purported crime, and that not extenuate the gravity and character evidence did in any character could not or other defendant’s aspect “any sympathetic conduct, or or extenuation for his be a moral justification considered way found that less death.” The court also a basis for a sentence of than serve as of these factors and that “the absence were no factors in mitigation,” “there . than normal.” the offense is . . less finding serious weighs against it erro indicate the court’s remarks foregoing Defendant contends in no (1) mitigating defendant had introduced believed neously evidence in case, mitigating to defendant’s proffered and failed consider The court carefully We disagree. sentence. on the motion to modify ruling to the and jury, evidence submitted to consider all the outlined its obligation evi “background” had introduced that defendant acknowledged expressly offense, he was raised in the fact including mitigate dence intended that the court determined environment. But and culturally deprived poor context, in the sentence. Read or mitigate failed to extenuate such evidence mitigating view no significant reflect its words merely the court’s insufficient adduced, was that such evidence evidence had been have frequently We a life sentence. crime justify extenuate defendant’s denying in trial courts remarks on similar of error based claims rejected (1992) 4 Cal.4th (See, Stansbury v. e.g., People sentence. motions modify Daniels, 174, 756]; People 1017, 846 P.2d Cal.Rptr.2d 1070-1071 [17 648, (1990) 52 Cal.3d 892-893; Kaurish Cal.3d pp. (1990) 51 Cal.3d 788, 278]; v. Whitt 802 P.2d Cal.Rptr. 716-718 [276 849].) P.2d Cal.Rptr. 659-660 [274 is affirmed in its judgment entirety. Panelli, J., Kennard, J., Arabian, J., Baxter, J., J., and George, concurred. MOSK, J., in Concurring Dissenting. I concur the affirmance of the judgment as to the murder of guilt Luisa Anna Castro and Maria Victoria Holmes and the arson of their residence. I also concur in the affirmance of review, for the After I judgment imprisonment arson. have found no other error or defect that reversal on either requires issue.1 dissent, however, I from the affirmance of the in other judgment respects, specifically, multiple-murder special-circumstance and the sen- finding tence of death which on that depends finding’s validity.

In its at the charge guilt the trial phase, court failed to instruct the true, order to find the multiple-murder it special-circumstance allegation time, to find required that defendant acted with intent to kill. At that intent kill was an element of the multiple-murder special circumstance. (People v. Turner 37 Cal.3d 669], overruled,

P.2d People Anderson 1149 [240 The trial court’s instructional omission anof element of a special circum stance is subject harmless-error Chapman v. California under analysis *49 (1967) 705, 824, 386 U.S. 18 L.Ed.2d 87 S.Ct. 24 [17 A.L.R.3d 1065] (sometimes hereafter Chapman). That is the of Odle holding v. 386, (1988) 137, 45 (some 410-415 754 Cal.Rptr. P.2d [247 184] Odle). times hereafter passing, (Miranda 1In my I state view (1966) that there was no Miranda v. Arizona 384 694, 1602, 974]) U.S. 436 L.Ed.2d by 86 S.Ct. 10 police during [16 A.L.R.3d violation the 28,1986. their interview of defendant on March right Defendant did not invoke his to counsel stated, he “Maybe when I ought to talk to my lawyer, you might bluffing, might be you not context, enough have charge In plain murder." it is he simply playing that was for time as interrogators he probed his in preparation for an at attempt “plea bargaining.” The he cases appeal factually cites on are distinguishable. Similarly, right he did not invoke his to silence occasions, desire, context, when he expressed his on two to go “off the record.” In it is plain continue, simply too, that he was attempting open, and then “plea bargaining.” Here he appeal factually distinguishable. (1979) cases cites on are In v. Braeseke 25 Cal.3d 691, 684, 384], 702-703 judgment vacated and case [159 remanded sub 784, 2147], nomine v. Braeseke 446 U.S. 932 L.Ed.2d 100 S.Ct. [64 California 603, entirety 149]; reiterated in its Cal.3d 86 P. 2d we stated: “A [168 request speak knowing ‘off record’ cannot intelligent rights constitute a waiver of which include ‘anything says the advisement that can suspect] against be used him in a [a Indeed, request court law.’ revealed marked lack of understand [Citations.] [Braeseke’s] case, contrast, ing warnings.” of Miranda In this twice-expressed defendant’s desire to go waiver; purport already “off record” did not even to constitute a he had effected one. rather, it understanding warnings Neither did reveal lack of of the Miranda on his it part; change in “subject” disclosed effort to his role the interview from “negotiator.” L.Ed.2d 111 S.Ct. In Yates v. Evatt 500 U.S. 391 1884] [114 _ Yates), (1993)_U.S. (sometimes v. hereafter and Sullivan Louisiana 2078], the Court Supreme L.Ed.2d 113 S.Ct. United States pro- [124 following vided the explanation. a reasonable doubt that

“The test is whether it Chapman appears ‘beyond finding] did not to the verdict ob the error contribute complained [or ” Evatt, L.Ed.2d at (Yates supra, 500 U.S. at pp. p. tained.’ v. [114 Louisiana, accord, 1892]; v. at supra,_U.S. 111 S.Ct. at Sullivan p. 188-190, 2081-2082].) “To at 113 S.Ct. at L.Ed.2d pp. pp. pp. [124 is . .to find not contribute to the verdict . finding] that an error did say [or in else the considered on jury that error relation to unimportant everything Evatt, at (Yates . .” v. 500 U.S. supra, p. the issue in . . question [114 Louisiana, 1893]; accord, 111 S.Ct. at Sullivan supra, L.Ed.2d at p. p. _U.S. 188-190, at at 113 S.Ct. 2081- at L.Ed.2d pp. pp. pp._-_[124 2082].)

Thus, jury is what the decided Chapman actually the focus under its issue ... is whether whether the error have tainted decision. may “[T]he verdict finding] rested its actually instructions] [and [or (Yates Evatt, , at p. of the” error. 500 U.S. . . . independently 1893].) differently, at Stated L.Ed.2d at S.Ct. p. p. verdict adverse effect had the guilty is “what upon [or question [the error] Louisiana, (Sullivan at supra,_U.S. p._ at hand.” in the case finding] words, at Or in still other 113 S.Ct. p. L.Ed.2d rendered actually . verdict finding] is “whether the . . [or [the] inquiry (Ibid.) to the error.” unattributable surely trial court reviewing under is not what a Chapman the focus consequence, As record. decide if it looked to the entire itself might (Sullivan v. First, is not the decisionmaker. *50 court reviewing proper 188-190, at 113 Louisiana, L.Ed.2d pp. at supra,_U.S. pp._-_[124 as “not.. correct” 2081-2082].) The Yates court at disapproved S.Ct. pp. 460, 570, 579 L.Ed.2d v. 478 U.S. in Rose Clark [92 “statement” Clark), an error is harmless (sometimes hereafter 106 S.Ct. 3101] “ at trial developed can find that the record court a reviewing ‘[w]here ” Evatt, (Yates v. 500 supra, a reasonable beyond doubt[.]’ establishes guilt 1892], 402-403, 111 S.Ct. at p. 8 L.Ed.2d at p. fn. U.S. at pp. [114 471].) at Clark, L.Ed.2d p. 478 U.S. at p. v. 579 supra, [92 Rose quoting to consider the Second, is entitled automatically court not the reviewing in various broad court rejected “assumption” The Yates entire record. however, cite on this it not decisions, (which, expressly did Clark including

57 that the “harmlessness of error is to be after a review of point), judged record”—unless, is, entire as “jurors, persons, reasonable would Evatt, have considered the . in (Yates entire . . record" of the error. v. spite 449-450, 500 U.S. at at supra, L.Ed.2d pp. S.Ct. at pp. p. [114 1894].) terms, course, its

By very a Chapman court from precludes finding harmlessness based view of evi- simply “upon ‘overwhelming [its own] ” dence.’ v. (Chapman California, supra, at 386 U.S. L.Ed.2d at p. p. [17 710].)

Neither is the focus under what a Chapman reviewing court might conjec ture the would have decided in the jury absence of the error. The “hypothet whether, error, ical if the had been inquiry” jury not to the it would exposed have made the decision it did “is inconsistent with the harmless-error standard announced in Chapman While .... such a hypothetical inquiry has, fact, ensures that the State in in proved fact a question] beyond [the doubt, reasonable it does not ensure it that has a reason proved beyond [it] able doubt Evatt, to the a (Yates v. jury.” at U.S. p. satisfaction of L.Ed.2d 1898], at (conc. S.Ct. at italics in p. p. [114 original Scalia, J.); accord, Louisiana, opn. Sullivan supra,_U.S. at pp._-_ 188-190, L.Ed.2d at 113 S.Ct. pp. 2081-2082].) at “The pp. inquiry, words, whether, error, other is not in a trial that occurred without the a guilty verdict adverse would finding] (Sul [or have been rendered . . surely . .” Louisiana, livan at supra,_U.S. L.Ed.2d at p._[124 S.Ct. p. 2081].) p. at

Lastly, the focus under Chapman is a not what court reviewing might speculate “what effect the . . concerning . error might be generally expected Louisiana, have . upon (Sullivan reasonable . . supra,_U.S. at p--[124 L.Ed.2d at 2081].) 113 S.Ct. at p. p. required] “[M]ore [is (Id. than about a appellate speculation action . . hypothetical .' ." at jury’s p. _ L.Ed.2d 113 S.Ct. at p. In whether the trial court’s determining omission an instruction on intent to kill as an element of the multiple-murder special circumstance was harmless beyond reasonable doubt under we look with Chapman, may to Yates itself. profit

The error reviewed therein involved an instruction a man- incorporating *51 rebuttable datory of for malice the crime of is presumption murder: “Malice willful, deliberate, . .. both “from the presumed” and intentional of doing an unlawful act without cause or excuse” a just and “from the use of rebuttable, is, deadly but “that weapon"; presumption is that it is not 58 , (Quoted in is rest of the

conclusive . . . but it rebuttable the evidence." by 444, Evatt, at at L.Ed.2d at 111 supra, p. Yates v. 500 U.S. S.Ct. p. [114 1889].) p. an in- the for erroneous following

The Yates court established analysis necessary a rebuttable of a struction incorporating mandatory presumption fact. did not that an instruction to say apply presumption [such a]

“[T]o the is a about the of judgment significance contribute the verdict to make the other evidence to reasonable when measured jurors, against presumption the those of independently presumption. considered by jurors a a must take two distinct such court reaching “Before judgment, quite First, the considered actually it must ask what evidence jury steps. facts, did the look at the its verdict. . . . Did jury only predicate reaching the on the fact subject it consider other evidence bearing presumption? into “Once a made the first the evidence considered enquiry court has force that evidence as it must then weigh probative against jury, Chapman’s force alone. To presumption standing satisfy probative standard, considered will not be enough jury reasonable doubt it the verdict without reliance from which it could have come to Rather, whether the under is Chapman jury the issue presumption. fact presumed beyond its verdict on evidence establishing rested actually Evatt, (Yates doubt, of the presumption.” independently a reasonable 1893].) at 111 S.Ct. p. at L.Ed.2d at p. p. 500 U.S. supra, [114 for “restrictive” analysis on to even more suggest The Yates court went or “conclu irrebuttable mandatory instruction incorporating an erroneous Evatt, (Yates p. 500 U.S. at supra, fact. necessary of a sive” presumption Review of this 111 S.Ct. at p. L.Ed.2d at p. fn. [114 sort, concurring Scalia’s derived from Justice expressly which the court L.Ed.2d 491 U.S. 263 [105 in Carella v. opinion California be on under 2419], facts to relied on the only predicate “would focus S.Ct. so whether ‘are they to determine would a court require the presumption rational could be that no presumed ultimate fact to related to the closely ” Evatt, (Yates v. ultimate fact.’ finding without also find those facts at p. 111 S.Ct. at p. at fn. L.Ed.2d 500 U.S. p. at L.Ed.2d supra, 491 U.S. 1894], California, Carella quoting Scalia, J.).) appropriate focus” is (conc. This “narrow opn. pp. 225-226] from tend to deter a jury presumption the terms of conclusive “because *52 for the evidence fact evi considering any presumed beyond predicate dence; indeed, to do so would be waste of the time and jury’s contrary Evatt, (Yates its instructions." supra, 500 U.S. at fn. 10 p. L.Ed.2d at 111 S.Ct. at p. p.

It follows that an more restrictive still would be for an analysis required erroneous instruction a necessary omitting altogether. fact

Such an instruction removes the “ultimate fact” from the consider- jury’s ation without behind be leaving facts” to found. If a manda- any “predicate irrebuttable tory presumption deter from jury considering any “tend[s] (Yates evidence for the fact presumed beyond evidence” predicate Evatt, at supra, U.S. fn. 10 p. L.Ed.2d at 111 S.Ct. p. at 1894]), omission, definition, an withdraws the omitted fact entirely.

“Therefore,” reasoned the United States Court of for the Ninth Appeals Circuit in (9th 1993) United States v. Gaudin Cir. F.2d (sometimes Gaudin), hereafter en banc rehearing granted, F.3d “it is that when apparent necessary has been [a removed from the completely fact] determination, jury’s there can be no into what inquiry jury [fact], considered to establish that because from jury precluded existed, at considering all. The fact that evidence which the [fact] jury could have considered on the issue had the issue been submitted to the .... instruction, under an jury appropriate (Italics is of no moment . .” . . original.)

In a situation in element, which the fact that is is necessary omitted Yates,” prejudice court, as a matter appears of law: held the Gaudin “[U]nder consideration, “when an element... is removed from error cannot Gaudin, (United be harmless.” 1272.) States F.2d at p. bar, now to Turning the case at I am to conclude that the trial compelled court’s omission of an instruction on intent to kill as an element of the circumstance multiple-murder special was not harmless a reasonable beyond doubt under Chapman. The rule stated above controls the result: the instruc- element, here, tional omission of an like that cannot be harmless. conclusion, In at arriving I do not overlook my strong evidence of intent to kill. The view that evidence as majority “overwhelming." (Maj. ante, 45, 46.) I tend to opn., pp. agree. above,

But as evi- generally, explained “overwhelming presence dence” is insufficient. The seek to majority avail themselves an exception *53 is

that when an element is not omitted but merely apparently operates condition, how- undermined an rebuttable That improper by presumption. ever, not satisfied on this record. intent-to-kill element of the multi- is in fact circumstance was omitted. ple-murder special Moreover, disclosed, in the the situation here of “over- specific presence Yates, is evidence” immaterial. “Under the whelming completely guidance we no consider the and longer strength determine may it is whether so clear that the would have found the element to exist had jury Gaudin, (United it been instructed . . .” States v. F.2d . properly supra, 1272, in is italics This because “when an element ... is p. original.) consideration, from be (Ibid.) removed that error cannot harmless.” jury the to the it matters not that intent-to-kill Contrary majority’s implication, willful, deliberate, offense and element of the of first degree premeditated is, is not murder—which not at issue—was removed. The fact the intent-to- kill element the circumstance—which is at issue of multiple-murder special —was. Odle,

I in v. 45 Cal.3d 386—on which the People supra, that recognize court relied on and the state discussion majority’s depends—this reiterated Clark, 570, 460, 471], L.Ed.2d ment in Rose v. 478 U.S. supra, [92 record is harmless a court can find that the reviewing error “[w]here . a reasonable doubt . . .” beyond at trial establishes guilt developed 414, But, noted, Odle, 416.) as v. 45 Cal.3d at supra, pp. (Yates v. as “not . . . correct.” this “statement” Yates court disapproved Evatt, 402-403, 111 S.Ct. fn. 8 L.Ed.2d at p. 500 U.S. at supra, pp. [114 Hence, 1892].) no law. longer good on this Odle is at p. point broad and accepted applied I that in Odle this court recognize also Clark, decisions, “harmlessness of an in other that the among “assumption” (Yates Evatt, v. review of the entire record.” error is to be after a judged 449-450, 111 S.Ct. at L.Ed.2d at p. 500 U.S. at supra, pp. noted, (Ibid.) But, this rejected “assumption.” as the Yates court too, Hence, good is no law.2 longer on this Odle point of an element argued the rule that instructional omission might perhaps 2 It be (1) following “exceptions”: the element more of the allows of one or cannot be harmless defendant; by was jury; the element admitted only charge rejected by pertained other, instructions. proper under necessarily found the element (1984) 36 Garcia be in may found position for such Support 826], plurality opinion Blackmun’s earlier as well as Justice 823, 834-835, 969], 103 S.Ct. Johnson L.Ed.2d in Connecticut 460 U.S. 87 [74 California, 491 U.S. Carella opinion in concurring later and in Justice Scalia’s reasons, For the I would foregoing reverse the as to the multi- judgment ple-murder special-circumstance finding sentence of dependent *54 death.

Appellant’s for a petition Mosk, rehearing denied January 1994. J., was of the that the opinion petition should be granted. 218, 224-225], case, L.Ed.2d point need not be resolved here. In this none “exceptions” of these applicable. is notes the interro- McCarthy’s confident, reveals that from start finish gation defendant maintained a attitude, officer, with “cocky” verbally doubts about sparring expressing him, strength with admissibility against negotiating sentence, for a McCarthy possible reduced and bragging about his good looks, his various his girlfriends, ability alibi for date produce “any you want,” and his mother’s hire an ability As expensive lawyer. McCarthy noted, defendant to “almost his role as the of our appeared focus relish[] . . attention . .” Unlike the situation Zolnay, supra, defendant never