People v. Waidla

In count 1, the district attorney charged that Waidla and Sakarias murdered Viivi Piirisild in the home that she shared with her husband Avo Piirisild in North Hollywood. To make them subject to the penalty of death, he alleged that they committed the murder under the special circumstances of felony-murder robbery and felony-murder burglary. To enhance any noncapital sentence that they might receive, he alleged that, in committing the murder, they personally used a deadly and dangerous weapon in the form of a knife. For the same purpose, he similarly alleged that, in committing the murder, they personally used a deadly and dangerous weapon in the form of a hatchet. In count 2, he charged that, in the same incident, they robbed her at home. Among his allegations were separate ones for sentence enhancement against both men, one for personal use of a deadly and dangerous weapon in the form of a knife, the other for personal use of a deadly and dangerous weapon in the form of a hatchet. In count 3, he charged that, also in the same incident, they burglarized the home. Here, as above, his allegations included separate ones for sentence enhancement against both men, one for personal use of a deadly and dangerous weapon in the form of a knife, the other for personal use of a deadly and dangerous weapon in the form of a hatchet. In count 4, he charged that, in an earlier incident, they burglarized a cabin that the Piirisilds owned in Crestline in San Bernardino County. In count 5, he charged that they fraudulently obtained telephone services. In count 6, he charged that they concealed, sold, and withheld stolen property that they took from the cabin. In count 7, he charged that Sakarias alone committed grand theft by taking an automotive vehicle.

Waidla and Sakarias (see People v. Sakarias, supra, 22 Cal.4th at p. 609) each pleaded not guilty to the charges, and denied the allegations.

Subsequently, the superior court found that Sakarias was not mentally competent to stand trial, and suspended criminal proceedings against him alone. (See People v. Sakarias, supra, 22 Cal.4th at p. 616.) It severed Waidla’s and Sakarias’s cases, and allowed Waidla’s to go forward.

Trial of Waidla was by jury. After the guilt phase, by its verdicts and findings, the jury found him guilty of the following felonies under the following special and other circumstances: murder in the first degree against Viivi, under the felony-murder-robbery and felony-murder-burglary special circumstances, with the personal use of a deadly and dangerous weapon in the form of a hatchet but not a knife; robbery in the first degree against her, again with the personal use of a deadly and dangerous weapon in the form of a hatchet but not a knife; burglary in the first degree as to the Piirisilds’ home, yet again with the personal use of a deadly and dangerous weapon in the form of a hatchet but not a knife; burglary in the first degree as to their

cabin; fraudulently obtaining telephone services; and sale of stolen property. After the penalty phase, by its verdict, it fixed the punishment for Viivi’s murder at death instead of a term of imprisonment for life without possibility of parole.

The superior court rendered judgment against Waidla accordingly, sentencing him to death for Viivi’s murder and also to a term of imprisonment for each of the other felonies, whose execution it stayed, totaling 18 years.

Later, having found that Sakarias had recovered mental competence, the superior court reinstated criminal proceedings. (People v. Sakarias, supra, 22 Cal.4th at p. 617.) Trial was by jury. (See id. at p. 615.) After the guilt phase, the superior court apparently dismissed the charge of grand theft. (See id. at p. 608.) Thereupon, the jury found him guilty of the same felonies, under the same special and apparently other circumstances, as had Waidla’s jury with respect to Waidla. (See ibid.) After the penalty phase, it fixed the punishment for Viivi’s murder at death. (See id. at pp. 608-609.) The superior court rendered judgment accordingly, sentencing him to death for her murder and also to a term of imprisonment for each of the other felonies, whose execution it stayed, totaling 18 years. (Ibid.)

At the guilt phase, the People introduced evidence, including a confession that Waidla made to the police, to prove to the jury that he was guilty beyond a reasonable doubt of all of the felonies charged under all of the special and other circumstances alleged, including first degree murder both on a theory of willful, premeditated, and deliberate murder and also on theories of felony-murder burglary and felony-murder robbery.

Avo and Viivi Piirisild were bom in the Baltic state of Estonia. In 1951, they came to the United States. They subsequently married, and had a single child, their daughter Rita. They were active in the Baltic American Freedom League, a volunteer organization whose purposes included securing the independence of the Baltic states of Estonia, Latvia, and Lithuania, which were then occupied by the former Union of Soviet Socialist Republics. They owned a home in North Hollywood and a cabin in Crestline. By the time pertinent here, Rita had grown to adulthood, left home, and married, taking her husband’s surname Hughes, and living with him in the general area.

Around April of 1987, Avo and Viivi met Waidla and Sakarias. It appears that Viivi was then vice-president and secretary of the Baltic American Freedom League, and that Avo had formerly been its president. According to

evidence including testimony that he himself would give bearing on his background and character, Waidla was born in Estonia apparently in 1967, and was reared there; he was conscripted into the Soviet Army, an altogether brutal environment, in 1986; he was sent to what was then East Germany for basic training; he ended up in a military hospital; once there, he met Sakarias, himself an Estonian conscript, who was assigned to drive a paramedic vehicle; they decided to desert; they left one night under the cover of darkness; after completing a journey of about three days, they crossed the border into what was then West Germany; apparently together with Sakarias, Waidla asked for, and received, political asylum, and sought, and obtained, permission to go to the United States; also apparently together with Sakarias, Waidla arrived in New York City in January of 1987, to the welcome of the Estonian-American community there, and arrived in due course in Los Angeles in April of 1987, to the welcome of the Estonian-American community there. Both Waidla and Sakarias spoke and understood English. Of the two, Sakarias was more outgoing and outspoken, Waidla less so.

After meeting Avo and Viivi around April of 1987, Waidla and Sakarias moved into an apartment close to their home. Viivi invited them to dinner, and they accepted. Soon thereafter, she arranged for Waidla to interview for a position as a translator with the Voice of America in Washington, D.C.; he went there, something unfortunate apparently happened, and he returned about a week later.

Later in the spring of 1987, at Viivi’s suggestion, Avo invited Waidla to move into their home—Viivi had told Avo, “He has no where [sic] to go, so we have to help him.” Waidla accepted. He moved in immediately. In the time that followed, Avo and Viivi would take him with them to their cabin. They provided him with room and board; they also saw to his other needs, including clothing, medical care, cigarettes, etc. He got a little bit of money from other sources—for example, he sold to a Canadian newspaper an article that he wrote, and Viivi helped translate, relating to his flight with Sakarias from the Soviet Army to the West; he took some photographs for the Baltic American Freedom League; and he did various odd jobs. He expressed no interest in finding work or in furthering his education; indeed, he expressed an interest in not doing so: Not only did he make no effort on his own behalf, he even frustrated efforts made by others, including Avo and Viivi, as by remaining only a week at a job that they had gotten for him and by refusing to cooperate in obtaining a scholarship that they had attempted to arrange. He indicated a desire to get money—but without working. So too did Sakarias, with whom he continued to associate when he was able, Sakarias moving from place to place around the country. As Waidla and Sakarias themselves told Rita, they “wanted to get rich quickly,” and discussed “living on the beach in Hawaii and traveling all around the world making

money and living the high life”; but they “didn’t want to be working stiffs”; they “frowned upon” the “American work ethic”; and they “felt that they were treated better financially in Estonia,” where, Sakarias said, a person could obtain “government money because the government was so corrupt.”

In the summer or fall of 1987, Avo asked Waidla to do certain construction and related work in and around the Piirisilds’ home in order to cover his room and board, and not for pay; Waidla agreed. Without Avo’s knowledge, Viivi promised to give Waidla, who did not have a driver’s license, a nonrunning Triumph Spitfire sports car belonging to Avo for his transportation needs if he should get a job or enroll in school. On learning of the promise, which he thought was conditioned on Waidla’s completion of the work in question, Avo expressed displeasure, apparently to both Viivi and Waidla, but agreed’to abide by its terms.

By the fall of 1987, Viivi began to express an interest in paying for all of Waidla’s and Sakarias’s educational and perhaps other expenses if they wished to attend college. She expressed this interest to Waidla and, apparently, Sakarias, and to others as well. Evidently, neither Waidla nor Sakarias had such a wish. On one occasion, when she spoke of the matter, Waidla simply rolled his eyes. On the same occasion, she indicated a concern that he was being influenced—negatively, it appears—by Sakarias.

By mid-May of 1988, Waidla had become angry with Avo and especially Viivi, and also, apparently, with the Estonian-American community generally; he had become desperate for money; and he had begun to scheme to resolve matters in his favor. So too had Sakarias.

In a letter dated May 14, 1988, and written to Sakarias, who was then evidently in or around New York, Waidla related (in Estonian, as subsequently translated) that he had “sent an application to the Munich Radio”— referring, apparently, to Radio Free Europe in Munich. “If you want, send one also. There they are looking for workers . . . (announcers).” He cautioned: “Look, don’t breath[e] about this to anybody, otherwise the same may happen what happened to me at V.O.A. When one jerk knows, then all know. This is the way of the expatriot [sic: for “expatriate”] Estonians. You know yourself just as well.” He added: “Generally my situation is shitty . . . (more than shitty).” “I do not believe that I can stand to stay here until end of June. I believe that if we cannot get to Germany for some reason, then we could do something together. Of course, ... we must get rid of those dammed [sic: for “damned”] Estonians for once finally. This is like the Mafia, only the likes of us are the normal Estonians. I believe that to [sic: for

“we”?] know the language and we can get along without those jerks.” He continued: “I believe that maybe we should go to Hawaii. Of course, if we can get to Munich, then definitely to there. I have nothing against it if we could go skiing in the Alps or chase women in Monte Carlo. Next week I will sell this wheelbarrow”—an evident reference in slang to Avo’s Triumph. “I cannot do anything with it. I cannot obtain driver’s licenses [sic], since Viivi’s insurance apparently does not cover it. This is all, of course, bullshit, but that’s the way it goes, and in Germany or in Hawaii, one does not need an automobile.” He asked: “Listen, how can one purchase such license in New York? Can it be done this way, that I will send you money, a photo and a signature. I have not found such a place here, and I do not care to come to New York. Such a forged license can be easily exchanged in Hawaii or in Germany” “for a correct license.” He closed: “Write. What do you think of such plans?”

In late May of 1988, in the presence of Rita, Viivi and Waidla had an angry encounter about construction work around the Piirisilds’ home. For the work that he had in fact completed, which was substantial, Waidla demanded Avo’s Triumph, put into running condition, or $4,000, which he apparently believed was its value, a demand that he had made some days earlier. Viivi refused: She stated, “No, you show no incentive to work or go to school, and therefore you can’t have the car or the money”; she added, “You’ve brought this topic up before, and I don’t want to hear about it anymore.” He threatened that, if he did not get what he demanded, he would report her to the building authorities for nonpermitted construction, a threat that he made some days earlier as well. She stated that he had brought up this topic too previously, and did not wish to hear about it again. She made out a list of the cost of his room and board and other needs, which amounted to between $10,000 and $15,000. He became angry, and said, “Everyone knows what kind of person you are all around town.” She responded, “Get packed and get out of here.” She made a telephone call to Avo. Waidla threatened that, if he did not get what he demanded, he would kill Avo or break his arm. Rita calmed Waidla down, gave him a sandwich and some soda, and told him to go peacefully and not to do anything to provoke Avo. With her help, he packed, and then left. Sakarias picked him up, and together they departed.

After, if not before, Viivi and Waidla’s angry encounter, Viivi began to express fear of Waidla and Sakarias. She expressed such fear to a number of persons, including Avo and Rita and also George Charon, a Special Agent for the Federal Bureau of Investigation with whom she was acquainted.

In addition, after, if not before, Viivi and Waidla’s angry encounter, Waidla and Sakarias found themselves cut off, at least in part, from the

Estonian-American community and that community’s resources, and also from Estonians outside of the United States and their resources. According to testimony that Waidla himself would give, after the encounter he and Sakarias set out from the Los Angeles area in an automobile that Sakarias was driving; they went to Phoenix—from whose environs, apparently, they sent Viivi a postcard picturing a rattlesnake—then to Key West, Miami, New York City, Jersey City, and finally Boston; from Boston, they headed back to the Los Angeles area in a pickup truck that Sakarias contracted to deliver to San Francisco by a specified date for its owner; driving by turns, they arrived in the Los Angeles area. During the journey, again according to his own ensuing testimony, Waidla telephoned the Piirisilds several times in an effort to get Avo’s Triumph or the proceeds from its sale.

On July 4, 1988, Waidla and Sakarias drove in the pickup truck to the Piirisilds’ home. They appeared at the front door unannounced. Avo and Viivi were within. Afraid, Viivi stayed out of sight inside the house. Avo went to talk to the pair outside. In the conversation that followed, Waidla and Sakarias told Avo that they had made a coast-to-coast-to-coast journey; they also told him that they had caused damage to the pickup truck in an accident, and that they had to deliver it soon to San Francisco. In the course of the conversation, Waidla announced to Avo that he had come to get Avo’s Triumph. Avo responded that he could not give him the automobile that day: The vehicle’s title documents, which were in a bank safety deposit box, were not accessible because the bank was closed for Independence Day, and the vehicle itself was not in running condition. Waidla apparently asked whether he could give him the automobile the next day. Avo answered that he could not: He had to leave on a business trip the following morning—as he actually did—and would not return for about two weeks—as he actually did not. Waidla commented that he did not know whether he would be back from the trip to San Francisco at that time. Displaying a bank book with a balance of $18, he added that he had no money and needed some for the trip. Avo stated that he did not have any cash on hand. Waidla said that he would pay him back. Avo stated, again, that he had no cash. Instead, he offered to purchase gasoline for the pickup truck by means of a credit card. Waidla and Sakarias drove Avo to a service station. Avo made the purchase. Waidla and Sakarias drove him back home. They then departed themselves.

Between July 4 and 11, 1988, Waidla and Sakarias broke into and entered the Piirisilds’ cabin, which was unoccupied. As Waidla himself would testify in admitting the deed, they did not have much money. They stayed for some time, consuming food and drink and making telephone calls. Before they went off, with things in disarray, they took various items of the Piirisilds’ personal property, including a combination telephone/clock radio and a hatchet.

On July 11, 1988, Waidla and Sakarias sold to a pawnbroker the combination telephone/clock radio that they had taken from the Piirisilds’ cabin, obtaining only $15 for the item.

On July 12, 1988, while Avo was away on his business trip, and after Viivi left for a dental appointment, Waidla and Sakarias broke into and entered the Piirisilds’ home. Before doing so, they had been seen in the area by one of the Piirisilds’ neighbors walking towards the house, wearing jackets and not carrying bags, and displaying hard looks. On Viivi’s return, as she passed through the front door toward the living room, before she could even attempt to resist, Waidla and Sakarias set upon her, dispatched her toward death, and then dragged her to a bedroom where her body would subsequently be found. They throttled her, fracturing her larynx and hyoid bone; bludgeoned her several times about her head and face and neck with perhaps the butt of the head of a hatchet, delivering some blows with such force as to crush her skull, fracture her jaw and various facial bones with her teeth knocked back, and generally deform her features; chopped her three times around the top of her head perhaps with the edge of the head of a hatchet, delivering one blow with similar crushing, fracturing, and deforming force to penetrate her skull completely, delivering the other two blows with less force and, evidently, peri- or post-mortem; and stabbed her four times in the left chest area perhaps with a knife, inflicting two wounds that were six inches deep in the environs of vital organs, one that was three inches deep, and one that was only one-half inch deep and, evidently, peri- or post-mortem. They caused her death through the combination of the throttling, bludgeoning, chopping, and stabbing, and may have done so through any one of such means, because each was potentially fatal in and of itself. Before they went off, with things in disarray but apparently with their hands washed, they took various items of the Piirisilds’ personal property, including a purse, wallet, green jade earrings, black star sapphire pendant, and credit and telephone charge cards, all belonging to Viivi. After doing so, they were seen in the area by the same neighbor walking away from the house, now carrying bags and not wearing jackets, acting suspiciously. Within the house, near the place at which they had broken and entered, Waidla left behind his right thumbprint for later discovery. He could not have made the impression while he was living there up to about a month and a half earlier, because such an impression has a “life span” of only 10 days to three weeks. Apparently, he also left behind two cigarette butts. Tobacco smoking was not permitted in the house because Viivi was allergic to the fumes. Saliva on the butts matched Waidla’s, but not Sakarias’s.

Later on July 12, 1988, Waidla and Sakarias sold to another pawnbroker the green jade earrings and the black star sapphire pendant that they had

taken from Viivi at the Piirisilds’ home, obtaining only $20 for the items. With one of Viivi’s credit cards, they purchased two airline tickets for one-way travel from Los Angeles to New York City. They abandoned the pickup truck.

On July 13, 1988, Waidla and Sakarias flew from Los Angeles to New York City. In the days that followed, they used Viivi’s credit and telephone charge cards to make various telephone calls and to purchase various items, including a substantial amount of fine jewelry and an airplane ticket that they unsuccessfully attempted to exchange for a cash refund. They traveled, together and separately, within the Estonian-American community and without. When asked by an Estonian-American acquaintance whether they had heard that Viivi had been murdered, they made no response, and turned to talk about the weather.

On August 28, 1988, near the United States-Canada border in New York, a border patrol agent employed by the United States Immigration and Naturalization Service detained Waidla on suspicion of illegal entry into the country. Later that day, another border patrol agent detained Sakarias on the same basis at another location nearby. Seized from Sakarias was a very small amount of money, only 2 cents in American currency and 68 cents in Canadian. Seized from Waidla was a similarly small amount of money, only a few dollars in American currency and hardly anything at all in Canadian. Also seized from Waidla was a letter, dated August 26, 1988, that he had written to Sakarias, but had not sent, stating (in Estonian, as subsequently translated): “I am not sure, however, I hope that you will receive this letter sometime. At the last moment”—evidently turning back from suicide—“I did put the safety back on . . .the parabellum”—a kind of nine-millimeter semiautomatic pistol—“and I put” it “into the bag. What will come the future is unknown. Right now I am drinking Bavarian beer with the proper strength in one of the better class bars in Montreal. When you hear that I am dead, then you should know that I’ve coracked [sic: for “croaked”] with a weapon in hand. If you hear that I have been taken alive . . . (almost impossible) . . . then you should know that I did my best. However, generally you may look for me in Key West. This is a small place. You will find me. Of course, when my death notice will appear, probably there is no reason to look for me. However, . . . well. Generally you are my best friend . . . (possibly the only friend ever), so that it would be nice if we should meet again sometime. I wish you a firm hand and a cool nerve . . . .” In his own testimony, Waidla would admit that he had the “parabellum” in his possession when he was detained, and had it loaded.

On August 29, 1988, Waidla made statements to the police, in the person of detectives employed by the Los Angeles Police Department. The next

day, August 30, he made further statements to them and, ultimately, his confession. In his confession, he admitted participation in Viivi’s murder and the related burglary and robbery, but attempted to limit his involvement in the attack to a single bludgeoning blow delivered at its inception, and to expand Sakarias’s involvement to encompass all of the rest.

For his part, Waidla introduced evidence to raise a reasonable doubt in the mind of the jury as to his guilt of each of the felonies charged under each of the special and other circumstances alleged. In summation, however, his counsel would argue that, if the jury did not entertain such a doubt, it should find him guilty of first degree murder on a theory of willful, premeditated, and deliberate murder only, and not on a theory of either felony-murder burglary or felony-murder robbery.

Taking the stand in his own behalf, Waidla, among other things, denied any participation in Viivi’s murder and the related burglary and robbery, asserting as an alibi that he had left the Los Angeles area three days earlier to hitchhike to New York alone without Sakarias. He recanted his confession. He stated that he merely parroted back a story that the police schooled him in. He stated further that he did so because they threatened to hang him if he did not, and had persuaded him that they would follow through, since they behaved like interrogators of the Komitet Gosudarstvennoy Bezopasnosti or KGB, the erstwhile Soviet “Committee for State Security,” into whose hands he said he had fallen in Estonia. He presented evidence, including the testimony referred to above spanning his birth in Estonia to his arrival in Los Angeles, bearing on his background and character. He also relied on evidence that the People presented, including his article on his flight with Sakarias from the Soviet Army to the West, bearing on the same matter.

At the penalty phase, the People declined to introduce any further evidence. Relying on guilt phase evidence for aggravation, they urged the jury to fix the punishment for Viivi’s murder at death.

Having introduced, or not opposed, evidence of his background and character at the guilt phase in anticipation of the penalty phase, Waidla likewise declined to introduce any further evidence. Relying on such guilt phase evidence for mitigation, which included no prior felony convictions and no other crimina] activity involving the use or threat of force or violence, he urged the jury to fix the punishment for Viivi’s murder at a term of imprisonment for life without possibility of parole.

A. Issues Relating to Guilt and Eligibility for the Penalty of Death

Waidla raises a number of claims against the determination of guilt and eligibility for the penalty of death. As will appear, none is meritorious.

1. Conduct of Voir Dire of Prospective Jurors

Section 223 of the Code of Civil Procedure provides, among other things, that, “[i]n a criminal case,” the trial court has “discretion in the manner in which” it conducts the voir dire of prospective jurors. (Code Civ. Proc., § 223.) But it also provides that, in all such cases, including those involving the death penalty, the trial court must conduct the voir dire of “any prospective jurors . . . , where practicable, ... in the presence of the other” prospective “jurors . . . .” (Ibid.) In doing so, it “abrogates” (Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168 , 1171 [ 71 Cal.Rptr.2d 91 ]) the holding of Hovey v. Superior Court (1980) 28 Cal.3d 1 [ 168 Cal.Rptr. 128 , 616 P.2d 1301 ], wherein we “declare[d], pursuant to [our] supervisory authority over California criminal procedure, that in future capital cases that portion of the voir dire of each prospective juror which deals with” his views on the death penalty “should be done individually and in sequestration” (id. at p. 80, fn. omitted).

Waidla moved the superior court to conduct the voir dire of the prospective jurors concerning their views on the death penalty individually and in sequestration, in accordance with Hovey. The superior court denied the motion. In setting out its reasons, it stated that section 223 of the Code of Civil Procedure “abrogated” Hovey, under the provision’s terms, it had the authority to conduct individual and sequestered voir dire in the “exercise” of its “discretion”; except in areas that were “sensitive in nature,” it chose not to do so; it believed that individual and sequestered voir dire was simply not “necessary in this case”; it also believed that it had “fulfill[ed]” any “policy” underlying individual and sequestered voir dire by obtaining from each prospective juror, on its order, a completed 25-page questionnaire answered in writing under penalty of perjury, wherein he expressed, inter alia, his “opinion on the death penalty,” “individually” and “in private.”

Waidla contends that the superior court erred under California statutory law by denying his motion to conduct the voir dire of the prospective jurors concerning their views on the death penalty individually and in sequestration, in accordance with Hovey.

An appellate court applies the abuse of discretion standard of review to a trial court’s granting or denial of a motion on the conduct of the voir

he may have had “about his economic situation in the United States.” Through counsel, Waidla objected, evidently under California statutory law, on the grounds that the question was vague and ambiguous and that any answer would be irrelevant.

Outside of the presence of the jury, the superior court requested an offer of proof from the People. The prosecutor represented that the People would elicit testimony from Rita to the effect that, in the course of a conversation that she had had with Waidla and Sakarias, Waidla made statements expressing, among other things, a desire to get money without working. Through counsel, Waidla objected to the admission of such testimony, again evidently under California statutory law, as irrelevant. The superior court overruled the objection. It determined that the testimony in question was indeed relevant. It did so because it effectively concluded that the testimony had at least some tendency in reason to prove the disputed material fact whether Waidla had a motive for the murder of Viivi and the related burglary and robbery and for the other offenses and, therefore, whether he was the perpetrator thereof. It thereupon ruled the testimony admissible.

Under the People’s direct examination, now resumed before the jury, Rita testified, in pertinent part, as follows: In the course of a conversation that she had had with Waidla and Sakarias, in which Sakarias “did most of the talking” and Waidla “basically nodded or smoked a cigarette, and . . . nodded occasionally,” the two men stated that they “wanted to get rich quickly,” and discussed “living on the beach in Hawaii and traveling all around the world making money and living the high life”; but they “didn’t want to be working stiffs”; they “brought up the example of’ a man who was apparently an acquaintance who had “acquired” a “Jaguar” or “Peugeot” “at the age of 60,” and they “thought what a waste, that he is too old to appreciate such a fine car, and that it would be nice to have a fancy Cadillac or a Mercedes or whatever at an early age”; they “frowned upon” the “American work ethic,” “us[ing] the example of [a] man back east on the east coast who had two Buicks and [a] house in the suburbs and [a] country home, and . . . that was all he amounted to after 50 years of hard work, and what a waste of a life”; they “felt that they were treated better financially in Estonia,” where, Sakarias said, a person could obtain “government money because the government was so corrupt.” At one point, Rita was asked by the prosecutor to identify the speaker of certain statements to which she testified, but she failed to do so.

Waidla now contends that the superior court erred under California statutory law in its ruling on the admissibility of Rita’s testimony about his desire to get money without working, on the ground that such testimony was

inadmissible hearsay outside of any exception, including that for admissions and adoptive admissions.

Hearsay is evidence of a statement made by a declarant outside of court and offered in court for its truth. (Evid. Code, § 1200, subd. (a).) As a rule, it is inadmissible. (Id., § 1200, subd. (b).) Exceptions, however, exist. (See generally id., § 1220 et seq.) One covers admissions, which involve a statement by a declarant introduced against the declarant himself in an action to which he is a party. (Id., § 1220.) Another covers adoptive admissions, which involve a statement by a declarant introduced against a party who, with knowledge thereof, manifested his adoption of it or his belief in its truth. (Id., § 1221.)

Waidla has not preserved the claim for review. “It is, of course, ‘the general rule’ ”—which we find applicable here—“ ‘that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.’ ” (People v. Benson (1990) 52 Cal.3d 754 , 786, fn. 7 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ], quoting People v. Rogers (1978) 21 Cal.3d 542 , 548 [ 146 Cal.Rptr. 732 , 579 P.2d 1048 ]; accord, e.g., People v. Alvarez (1996) 14 Cal.4th 155 , 186 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ].) Here, Waidla rests his point on an assertion of inadmissible hearsay. Below, however, he never made any objection whatsoever on that basis. Because of his omission, we are without evidence to identify precisely what parts of Rita’s testimony about his desire to get money without working might have amounted to otherwise inadmissible hearsay. Likewise, because of his omission, we are without evidence to judge confidently what parts of the testimony in question that might have amounted to otherwise inadmissible hearsay might have come within one or more exceptions, including the apparently available ones covering admissions and adoptive admissions. He alone must bear the consequences of the evidentiary void for which he alone is responsible.

To the extent that Waidla has indeed preserved a claim for review—albeit not the one that he attempts to raise—he fails on the merits.

Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. (People v. Alvarez, supra, 14 Cal.4th at p. 201; accord, People v. Rowland (1992) 4 Cal.4th 238 , 264 [ 14 Cal.Rptr.2d 377 , 841 P.2d 897 ].) Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. (E.g., People v. Alvarez, supra, 14 Cal.4th at p. 201; People v. Clair, supra, 2

Even if Waidla can demonstrate deficient performance, a point on which we do not pass, he cannot demonstrate prejudice. It is not reasonably probable that his counsel’s failure to object on grounds including inadmissible hearsay, even if professionally unreasonable, adversely affected the outcome. That is because it is not reasonably probable that any such objection, even if sustained by the superior court in the face of the apparently available exceptions covering admissions and adoptive admissions, would have resulted in the returning of any more favorable verdict or finding by the jury. Although unflattering, the testimony in question was hardly determinative of the balance between inculpation and exculpation or aggravation and mitigation. Waidla may be right to state that the testimony presented him as “feeling entitlement to an elevated standard of living” and as “disrespecting the American work ethic itself.” But he is simply wrong to state that it was “inflammatory.”

4. Admission of Evidence of Viivi Piirisild’s Fear of Waidla

During their direct examination of Rita Hughes, the People asked, in the prosecutor’s words, “[Pjrior to” the date of Viivi Piirisild’s murder and the related burglary and robbery, “did you discuss with [Viivi] possibly visiting her at . . . home?” and Rita answered, “Yes. . . .1 called her early” one morning, “and I wanted to go home to her, and she said for me not to come home.” “Did you discuss why you should not go home?” “She said it would not be safe.” “And what was the reason for her not wanting you to come home?” “She was afraid of’ Waidla and Sakarias “coming by, and that I might be hurt.” “Did she tell you what the basis of her fears were, why she thought they might come by?”

At this point, the superior court called the prosecutor and Waidla’s counsel to the bench. Outside of the presence of the jury, it requested an offer of proof. The prosecutor represented that Rita would testify that Viivi told her that she feared Waidla and Sakarias because “she was alone” while Avo was away on his business trip, and “believed” or “thought” that “she had seen them driving by . . . the house.” As for Rita’s testimony about Viivi’s statement declaring her fear of Waidla and Sakarias, he argued that, under California statutory law, it was admissible hearsay within the state-of-mind exception because the statement was offered to prove that, in the burglary and robbery related to her murder, she did not engage in certain conduct, that is, she did not consent to the entry in the burglary or the taking by means of force or fear in the robbery. By doing so, he effectively argued that, under California statutory law, it was relevant because it had at least some tendency in reason to prove the disputed material fact of consent for the burglary and robbery. Waidla’s counsel objected, evidently under California statutory law, on the ground that Rita’s expected testimony about

Viivi’s statement declaring the basis of her fear would be inadmissible hearsay, adding that it would be “totally beyond” his “ability to cross-examine” Viivi on the matter. He also objected, again evidently under California statutory law, that Rita’s expected testimony about Viivi’s statement of the basis of her fear would be substantially more prejudicial than probative. He apparently extended his hearsay and undue-prejudice objections to reach Rita’s testimony about Viivi’s statement of her fear itself, suggesting that it was irrelevant because lack of consent was not a disputed material fact under the defense to be presented. The superior court overruled the hearsay and undue-prejudice objections to Rita’s testimony about Viivi’s statement of her fear, indicating its view to the effect that the statement was relevant and was not, in itself, substantially more prejudicial than probative, and “ruling” that consent was a “definite, genuine issue in the lawsuit.” But it sustained the undue-prejudice objection to Rita’s expected testimony about Viivi’s statement of the basis of her fear as “repetitive and cumulative.” In response, the prosecutor indicated that he had nothing further to ask Rita.

Later, during their direct examination of Avo Piirisild, the People attempted to ask about statements that Viivi made on July 4, 1988, as Waidla and Sakarias arrived at the front door of the Piirisilds’ North Hollywood home. Waidla’s counsel interposed an objection that any answer would be inadmissible hearsay. The superior court sustained the objection.

At the prosecutor’s request, the superior court called the prosecutor and Waidla’s counsel to the bench. Outside of the presence of the jury, the prosecutor volunteered an offer of proof, representing that Avo would testify to various statements by Viivi declaring her fear of Waidla and Sakarias and/or indicating such fear circumstantially, as through the tone in which they were spoken. He argued that the expected testimony would be admissible hearsay within the state-of-mind exception, apparently to the extent that it was hearsay at all, because any such statements would be offered to prove lack of consent in the burglary and robbery related to her murder. Waidla’s counsel argued to the contrary. He added that any such statements would be irrelevant because lack of consent was not a disputed material fact under the defense to be presented. The superior court asked Waidla’s counsel and the prosecutor whether Waidla and the People would each enter into a stipulation relating to lack of consent. For Waidla, his counsel answered in the affirmative. For the People, the prosecutor passed the question, expressing concern that a stipulation “may not bring the full flavor” of the evidence. The superior court stated that it had been considering whether or not to “force” the People to stipulate by “rul[ing] the evidence doesn’t come in.” It decided, instead, to hold the “issue ... in abeyance.”

Under the People’s direct examination, now resumed before the jury, Avo continued to testify on other matters.

Soon, the superior court called the prosecutor and Waidla’s counsel to the bench. Outside of the presence of the jury, it expressed its belief that “the issue of consent to take the property, the issue of consent to enter the home, is an issue in litigation,” and obtained the agreement of both the prosecutor and Waidla’s counsel on the point. “The issue,” it went on, “is whether or not” to “allow that in by stipulation or by evidence” in the form of Avo’s expected testimony about Viivi’s statements declaring and/or circumstantially indicating her fear of Waidla and Sakarias. Because it determined that a stipulation would not be equivalent to evidence, it choose not to “force” the People to enter into one. It expressed its belief that “it really boils down to a[n] . . . issue” whether Avo’s expected testimony about the statements in question would be substantially more prejudicial than probative, and obtained the agreement of both the prosecutor and Waidla’s counsel on this point as well. After stating that it had “weighted]” probativeness and prejudice, it determined that Avo’s expected testimony would not, in fact, be substantially more prejudicial than probative. As a result, it allowed its introduction. It informed Waidla’s counsel that, “[i]f the evidence comes in” and he “ask[ed] for a limiting instruction,” it would “gladly give . . . one.” Waidla’s counsel responded that he “would” indeed “ask,” “since” he “obviously” could not “cross-examine” Viivi herself.

Under the People’s direct examination, again resumed before the jury, Avo undertook to testify. Before he did so, the superior court gave the jury a limiting instruction that the “statements of [Viivi] Piirisild that you are about to hear are not being introduced for the truth asserted. They’re not being introduced for their truth. They’re being introduced to show [her] state of mind to explain her conduct”; “[n]ot for the truth asserted whatsoever, but only to [her] state of mind . . . , to explain her conduct then and later.” In response to the superior court’s query whether the admonition was “agreeable,” Waidla’s counsel stated, “Yes.” Avo proceeded to testify to statements by Viivi, in some of which she arguably declared her fear of Waidla and Sakarias, and in others of which she unarguably indicated such fear circumstantially.

Later still, at the prosecutor’s request, the superior court called the prosecutor and Waidla’s counsel to the bench. Outside of the presence of the jury, the prosecutor volunteered an offer of proof prior to the direct examination of George Charon, the Federal Bureau of Investigation Special Agent with whom Viivi was acquainted. He represented that, in pertinent part, Charon would testify to various statements by Viivi, a few days after July 4,

1988, in some of which she declared her fear of Waidla and Sakarias, and in others of which she indicated such fear circumstantially. He argued that Charon’s expected testimony would be relevant and not substantially more prejudicial than probative. He also argued that it would be admissible hearsay within the state-of-mind exception, apparently to the extent that it was hearsay at all, because any such statements would be offered to prove lack of consent in the burglary and robbery related to her murder. Waidla’s counsel effectively made irrelevance, undue prejudice, and hearsay objections to Charon’s expected testimony. As for the undue prejudice objection, he argued that “there is no way” that he could “cross-examine” Viivi herself. The superior court overruled the objections to Charon’s expected testimony. Against the undue-prejudice objection, it determined that the testimony would not be substantially more prejudicial than probative, stating that it had “weigh[edj” probativeness and prejudice. As a result, it allowed the introduction of Charon’s expected testimony. It offered to give a limiting instruction for purposes of hearsay, and Waidla’s counsel accepted.

Under the People’s direct examination, Special Agent Charon commenced his testimony. In its course, the superior court gave the jury a limiting instruction that the “statements of [Viivi] Piirisild are not being introduced for the truth asserted. They’re only being introduced to show her state of mind to explain subsequent conduct. They’re not being introduced for the truth asserted.” In response to the superior court’s query whether the admonition was “sufficient,” Waidla’s counsel stated, “Yes.” Charon proceeded to testify to statements by Viivi, in some of which she declared her fear of Waidla and Sakarias, and in others of which she indicated such fear circumstantially.

Subsequently, in its charge to the jury, the superior court instructed: “Certain evidence was admitted for a limited purpose. [¶] At the time this evidence was admitted you were admonished that it could not be considered by you for any purpose other than the limited purpose for which it was admitted. [¶] Do not consider such evidence for any purpose except the limited purpose for which it was admitted.”

Waidla now contends, in effect, that the superior court erred under California statutory law in its rulings on the admissibility of the testimony of Rita, Avo, and Special Agent Charon about statements by Viivi declaring and/or circumstantially indicating her fear of him and Sakarias, on the ground that the underlying statements were irrelevant.

At the outset, we believe that Waidla has preserved the claim for review. He adequately satisfied the specific-and-timely-objection rule.

L.Ed.2d 182 ]) in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (Miranda v. Arizona, supra, 384 U.S. at p. 444 [86 S.Ct. at p. 1612].)

In Edwards, the court laid down another rule of a “prophylactic” nature (Oregon v. Bradshaw (1983) 462 U.S. 1039 , 1044 [ 103 S.Ct. 2830 , 2834, 77 L.Ed.2d 405 ] (plur. opn. of Rehnquist, J.); accord, e.g., Davis v. United States (1994) 512 U.S. 452 , 458 [ 114 S.Ct. 2350 , 2354, 129 L.Ed.2d 362 ]), which it reaffirmed in Roberson, in order to protect the prophylactic rule of Miranda itself by preventing the “badgering” of a defendant by law enforcement officers in an effort to get him to waive his rights thereunder (Michigan v. Harvey (1990) 494 U.S. 344 , 350 [ 110 S.Ct. 1176 , 1180, 108 L.Ed.2d 293 ]; accord, e.g., Davis v. United States, supra, 512 U.S. at p. 458 [114 S.Ct. at pp. 2354-2355]): “[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him” (Edwards v. Arizona, supra, 451 U.S. at pp. 484-485 [101 S.Ct. at pp. 484-485]; Arizona v. Roberson, supra, 486 U.S. at p. 677 [108 S.Ct. at p. 2096]), and indeed until counsel is actually present (Minnick v. Mississippi (1990) 498 U.S. 146 , 153 [ 111 S.Ct. 486 , 491, 112 L.Ed.2d 489 ]), “unless the accused himself initiates further communication, exchanges, or conversations with the police” (Edwards v. Arizona, supra, 451 U.S. at p. 485 [101 S.Ct. at p. 485]; accord, e.g., Minnick v. Mississippi, supra, 498 U.S. at p. 150 [111 S.Ct. at p. 489]; Arizona v. Roberson, supra, 486 U.S. at p. 677 [108 S.Ct. at p. 2096]). “An accused ‘initiates’ ” further communication, exchanges, or conversations of the requisite nature “when he speaks words or engages in conduct that can be ‘fairly said to represent a desire’ on his part ‘to open up a more generalized discussion relating directly or indirectly to the investigation.’ ” (People v. Mickey, supra, 54 Cal.3d at p. 648, quoting Oregon v. Bradshaw, supra, 462 U.S. at p. 1045 [103 S.Ct. at p. 2835] (plur. opn. of Rehnquist, J.); accord, Oregon v. Bradshaw, supra, 462 U.S. at p. 1045 (plur. opn. of Rehnquist, J.); id. at p. 1055 [103 S.Ct. at p. 2840] (dis. opn. of Marshall, J.).) “In the event he does in fact ‘initiate’ ” such further

communication, exchanges, or conversations, “the police may commence interrogation if he validly waives his [Miranda] rights.” (People v. Mickey, supra, 54 Cal.3d at p. 649; accord, Edwards v. Arizona, supra, 451 U.S. at p. 486, fn. 9 [101 S.Ct. at p. 1085]; Oregon v. Bradshaw, supra, 462 U.S. at p. 1046 [103 S.Ct. at p. 2835] (plur. opn. of Rehnquist, J.).)

Waidla’s motion was based on, among other things, an assertion that “[t]he People have not indicated through any information provided during discovery that counsel was made available to” him, or that he “initiated the conversation with” the police, and he “does not believe the People will contend at this time that either was the case.”

The superior court conducted an evidentiary hearing on Waidla’s motion, outside of the presence of the jury, in the midst of the People’s presentation of their case at trial.

Robert Tripi was called to the witness stand by the People. In pertinent part, he testified to this effect: On August 28, 1988, he was employed as a border patrol agent by the United States Immigration and Naturalization Service in charge of the Jackman Main Border Patrol Station near the United States-Canada border at Rouse’s Point in New York; early that day, near the border, he detained Waidla on suspicion of illegal entry into the country, having received a tip from the Quebec Provincial Police; he did so with awareness that Waidla was being sought under an arrest warrant issued in this cause; he gave him an advisement of his Miranda rights; Waidla refused to make a waiver, responding instead that “he did not want to make a statement,” “he wanted an attorney,” and “he wanted a cigarette”; he was not provided with counsel; Tripi asked him no further questions of substance; some time later, he transported him to a correctional facility in the area of St. Albans in Vermont.

Victor Pietrantoni was also called by the People. In pertinent part, he testified to this effect: On August 29, 1988, he and his partner, David Crews, were employed as detectives by the Los Angeles Police Department; that day, he and Crews arrived at the Rouse’s Point station; his primary and immediate purpose was to interrogate Waidla; his secondary and more remote purpose was to take him back to California following an extradition hearing; apparently at Pietrantoni’s request, Waidla had been brought back to the station, and was being kept in a holding cell in one of its rooms; he had not been provided with counsel; Pietrantoni was in the room with the holding cell; Crews was not, but was apparently elsewhere in the station, possibly going through property seized from Waidla on his detention; a border patrol agent conducted Waidla out of the holding cell; immediately,

Waidla addressed Pietrantoni, asking, “You’re the detective from Los Angeles?”; Pietrantoni believed that Waidla may have seen him and Crews in New York City about two weeks earlier as they entered the Estonian House, which was evidently a cultural center, in an attempt to track him down; Pietrantoni “told [Waidla] what [his] name was” and “where [he] was from”; as he was “in the process of telling” Waidla that he and Crews “had come from California,” Waidla “interrupted” him and said, “What can I do for you,” or “What do you want from me?”; Pietrantoni “asked [Waidla] not to speak,” and said that he “would get a room where [they] could sit down and [he] would explain [his] reason for being there”; he did so, in part, because he “didn’t want [Waidla] to get into a discussion at that time prior to . . . having advised him of his rights”; finding a room, Pietrantoni and Waidla each took a seat across a desk from one another; Pietrantoni “began to once again explain that [he] was there from California to investigate the murder of Viivi Piirisild,” and he “may have told him [Crews’s] name again, that [they] were police detectives from Los Angeles”; Waidla volunteered that “he knew Viivi very well and that he had lived with the Piirisilds and that. . . Avo was his best friend”; Pietrantoni “once again cautioned him not to say anything,” and he “asked him to please just listen to what [he] had to say”; he told him the purposes for which he had come; he “advised him shortly thereafter that he was a suspect in the case”; Waidla again interrupted, asking, “What can I do to help you[?],” or “What can I do for you[?],” “something along those lines”; Pietrantoni “once again told him,” “Just listen to what I have to say . . .”; Pietrantoni advised him of his Miranda rights and Waidla waived such rights; at the beginning of the ensuing uncounseled interrogation by Pietrantoni, who was apparently joined by Crews, Waidla denied any participation in Viivi’s murder and the related burglary and robbery, asserting as an alibi that he had left the Los Angeles area three days earlier to hitchhike to New York alone without Sakarias; later, withdrawing the alibi, he admitted participation, albeit minimal, in the form of helping Sakarias move Viivi’s body after Sakarias had killed her by himself; the next day, August 30, 1988, now at the Clinton County Jail in New York, Pietrantoni again advised Waidla of his Miranda rights and Waidla again waived such rights; in the course of the ensuing uncounseled interrogation by Pietrantoni, who was joined by Crews, Waidla made his confession.

During his testimony, Detective Pietrantoni denied that he had been informed that Waidla had been advised of his Miranda rights by Agent Tripi, had refused to waive such rights, and had instead asserted his right to silence and his right to an attorney. In addition, he admitted that he did not possess evidence recording or memorializing his dealings with Waidla when first they met at the Rouse’s Point station. Later, Waidla’s counsel made plain

the felony-murder-burglary and felony-murder-robbery special circumstances. It did not instruct on trespass or assault, which were not charged. Waidla’s counsel did not request any such instructions.

Waidla contends that the superior court erred under California decisional law by failing to instruct the jury sua sponte on trespass and assault as offenses that were lesser than, and included in, the charged burglary and robbery, respectively.

An appellate court applies the independent or de novo standard of review to the failure by a trial court to instruct on an uncharged offense that was assertedly lesser than, and included, in a charged offense. Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is however predominantly legal. As such, it should be examined without deference.

A trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged “only if [citation] ‘there is evidence’ ” (People v. Memro (1995) 11 Cal.4th 786 , 871 [ 47 Cal.Rptr.2d 219 , 905 P.2d 1305 ]), specifically, “substantial evidence” (People v. Berryman (1993) 6 Cal.4th 1048 , 1081 [ 25 Cal.Rptr.2d 867 , 864 P.2d 40 ], italics added, overruled on a point not pertinent to this cause in People v. Hill (1998) 17 Cal.4th 800 , 823, fn. 1 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]), “ ‘which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser” (People v. Memro, supra, 11 Cal.4th at p. 871, italics in original). (Accord, People v. Lopez (1998) 19 Cal.4th 282 , 287-288 [ 79 Cal.Rptr.2d 195 , 965 P.2d 713 ]; see, e.g., People v. Breverman (1998) 19 Cal.4th 142 , 154 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ].)

For purposes of discussion only, we will accept this assertion made by Waidla: Under the “ ‘accusatory pleading’ test” (People v. Breverman, supra, 19 Cal.4th at p. 182 (dis. opn. of Mosk, J.)) if not the “ ‘legal elements’ test” (ibid.)—according to Waidla—trespass should here be deemed a lesser included offense of the charged burglary, on the ground that the burglary here, which is based on larceny, comprises elements embracing intent to steal (e.g., People v. Thompson (1980) 27 Cal.3d 303 , 313 & fn. 5 [ 165 Cal.Rptr. 289 , 611 P.2d 883 ]), whereas trespass comprises supposedly the same elements with the pertinent exception of such intent (see, e.g., Pen. Code, §§ 602, subd. (l), 602.5). Similarly, under the “accusatory pleading” test if not the “legal elements” test—again according to Waidla—assault should here be deemed a lesser included offense of the charged robbery, on the ground that robbery comprises elements embracing intent to steal (e.g.,

7. Failure to Instruct Sua Sponte on Theft as a Lesser Included Offense of Robbery

As stated, the superior court instructed the jury on the robbery of Viivi Piirisild as charged against Waidla as an independent felony, as a basis for first degree murder on a theory of felony-murder robbery, and as a component of the felony-murder-robbery special circumstance. It did not instruct on theft, which was not charged. Waidla’s counsel did not request any such instructions.

Waidla contends that the superior court erred under California decisional law by failing to instruct the jury sua sponte on theft as an offense that was lesser than, and included in, the charged robbery.

Again, a trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged only if there is substantial evidence that, if accepted, would absolve the defendant from guilt of the greater offense but not the lesser.

On independent review, we agree with Waidla that theft is indeed a lesser included offense of the charged robbery. That is true, specifically in this cause, under the “accusatory pleading” test. It is also true, here and elsewhere, under the “legal elements” test. “Theft,” as we have often held, “is a lesser included offense of robbery . . . .” (People v. Melton (1988) 44 Cal.3d 713 , 746 [ 244 Cal.Rptr. 867 , 750 P.2d 741 ]; accord, e.g., People v. Bradford, supra, 14 Cal.4th at p. 1055.) Robbery comprises elements embracing the use of force or fear to effect a taking from the victim (see, e.g., People v. Bradford, supra, 14 Cal.4th at pp. 1055-1056) and also an intent to steal (e.g., People v. Thompson, supra, 27 Cal.3d at p. 313) accompanying the use of such means (e.g., People v. Green, supra, 27 Cal.3d at pp. 52-54). Theft comprises the same elements, including intent to steal, with the pertinent exception of the use of force or fear. (See, e.g., People v. Bradford, supra, 14 Cal.4th at pp. 1055-1056.)

We do not agree with Waidla, however, that there was substantial evidence that he did not intend to steal any item of the Piirisilds’ personal property when he used force or fear to effect the taking from Viivi in the charged robbery, but came to do so only afterward, with the result that the existence of such an intent accompanying the use of such means, which is necessary for robbery, would be absent (People v. Green, supra, 27 Cal.3d at

impliedly declined to request instructions on voluntary manslaughter, involuntary manslaughter, assault, or battery.

Waidla contends that the superior court erred under California decisional law by failing to instruct the jury sua sponte on second degree murder, voluntary manslaughter, involuntary manslaughter, assault, and battery as offenses that were lesser than, and included in, the charged murder insofar as it was of the first degree.

Yet again, a trial court must instruct the jury sua sponte on an uncharged offense that is lesser than, and included in, a greater offense with which the defendant is charged only if there is substantial evidence that, if accepted, would absolve the defendant from guilt of the greater offense but not the lesser.

On independent review, we shall assume for present purposes that, under the “accusatory pleading” test if not the “legal elements” test, second degree murder, voluntary manslaughter, involuntary manslaughter, assault, and battery should here each be deemed a lesser included offense of the charged murder insofar as it was of the first degree.

But, even so assuming, we cannot conclude that there was substantial evidence that Waidla was not guilty of the charged murder insofar as it was of the first degree, but was guilty instead only of second degree murder, voluntary manslaughter, involuntary manslaughter, assault, or battery.

Apart from his confession, there was substantial, albeit circumstantial, evidence that Waidla was guilty of first degree murder on a theory of willful, premeditated, and deliberate murder. Simply recall that, for some appreciable period of time prior to the burglary of the Piirisilds’ North Hollywood home and the robbery of Viivi therein, Waidla had been angry with Avo and especially Viivi, had been desperate for money, and had been scheming to resolve matters in his favor. Also recall what attended the burglary and robbery, namely, the killing of Viivi, more precisely, the killing of Viivi under a sudden and devastating attack. All this amounts to evidence of the kind of motive, planning, and manner indicative of first degree murder on a theory of willful, premeditated, and deliberate murder. (Cf. People v. Anderson (1968) 70 Cal.2d 15 , 26-27 [ 73 Cal.Rptr. 550 , 447 P.2d 942 ] [dealing with the question of the sufficiency of the evidence, apparently under California statutory law, to support a conviction of first degree murder on a theory of willful, premeditated, and deliberate murder].)

And, apart from his confession, there was similarly substantial, albeit circumstantial, evidence that Waidla was guilty of first degree murder on

Similarly, under the Fourteenth Amendment’s due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a “stage . . . that is critical to [the] outcome” and “his presence would contribute to the fairness of the procedure.” (Kentucky v. Stincer, supra, 482 U.S. at p. 745 [107 S.Ct. at p. 2667].)

Under section 15 of article I of the California Constitution, a criminal defendant does not have a right to be personally present “either in chambers or at bench discussions that occur outside of the jury’s presence on questions of law or other matters as to which [his] presence does not bear a ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” ’ ” (People v. Bradford, supra, 15 Cal.4th at p. 1357; accord, e.g., People v. Jackson (1980) 28 Cal.3d 264 , 308-309 [ 168 Cal.Rptr. 603 , 618 P.2d 149 ] (plur. opn. of Richardson, J.).)

Lastly, under sections 977 and 1043 of the Penal Code, a criminal defendant does not have a right to be personally present where he does not have such a right under section 15 of article I of the California Constitution. (People v. Bradford, supra, 15 Cal.4th at p. 1357; accord, e.g., People v. Jackson, supra, 28 Cal.3d at pp. 308-309 (plur. opn. of Richardson, J.).)

Having examined each of the 17 “proceedings” in question, whose general nature we have identified above, we cannot conclude with respect to any one of them that Waidla’s personal presence either was necessary for an “opportunity for effective cross-examination,” for purposes of the Sixth Amendment’s confrontation clause (Kentucky v. Stincer, supra, 482 U.S. at pp. 744-745, fn. 17 [107 S.Ct. at p. 2667]); or would have “contribute[d]” to the trial’s “fairness” in any marginal way, for purposes of the Fourteenth Amendment’s due process clause (Kentucky v. Stincer, supra, 482 U.S. at p. 745 [107 S.Ct. at p. 2667]); or bore a “ ‘reasonably substantial relation to the fullness of his opportunity to defend,’ ” ’ ” for purposes of section 15 of article I of the California Constitution and also sections 977 and 1043 of the Penal Code (People v. Bradford, supra, 15 Cal.4th at p. 1357, italics added). The only possible basis for a conclusion favorable to Waidla in this regard would be speculation. Such a basis, however, is inadequate. (See People v. Horton (1995) 11 Cal.4th 1068 , 1121 [ 47 Cal.Rptr.2d 516 , 906 P.2d 478 ].)

In arguing the claim, Waidla says that the 17 “proceedings” in question were “critical,” “individually” as well as “cumulatively.” To utter the words simply does not create the reality. As perhaps clearest illustration of the weakness of the point, let us comment solely on what he himself selects as “[p]erhaps the clearest illustration” of its strength. He asserts that, had he been personally present at the conference on instructions in chambers, he

argument because the underlying issue was not litigated below. (See People v. Hardy (1992) 2 Cal.4th 86 , 134 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ]; People v. Zamora (1980) 28 Cal.3d 88 , 96 [ 167 Cal.Rptr. 573 , 615 P.2d 1361 ] (plur. opn. of Tobriner, J.).) As a result, it would not furnish us with a basis on which we could arrive at a resolution that we could be confident would be fair and reliable. (See People v. Hardy, supra, 2 Cal.4th at p. 134.)

We therefore conclude that the claim must be raised, if at all, “by petition for writ of habeas corpus” (People v. Sanchez, supra, 12 Cal.4th at p. 59), which is not limited to the record on appeal’s four corners (see, e.g., People v. Pope, supra, 23 Cal.3d at pp. 426-427, fn. 17), “rather than [on] appeal” itself (People v. Sanchez, supra, 12 Cal.4th at p. 59).

B. Issues Relating to the Penalty of Death

Waidla raises a number of claims against the imposition of the penalty of death. As will appear, none is meritorious.

1. Ineffective Assistance of Counsel

Waidla contends that his'counsel provided ineffective assistance under the Sixth Amendment’s counsel clause by failing to attempt to introduce, for mitigation, evidence of a portion of a confession that Sakarias assertedly made to the police, which was assertedly admitted at Sakarias’s later trial.

We reject the claim at the threshold. The record on appeal does not include any confession by Sakarias. Therefore, we conclude that the point must be raised, if at all, by petition for writ of habeas corpus rather than on appeal.

2. Prosecutorial Misconduct in Offering Factual Scenarios

Waidla contends that the prosecutor committed misconduct under the Fourteenth Amendment’s due process clause by assertedly “manipulating” evidence and “skewing” argument in order to offer “ ‘mutually exclusive’ ” factual “scenarios,” one to the jury at his trial, specifically its penalty phase, and another to the jury at Sakarias’s subsequent trial: For example, at his trial, the prosecutor put forth the position that he dominated Sakarias, that he wielded the hatchet against Viivi Piirisild, and hence that he inflicted the chopping blows; at Sakarias’s later trial, by contrast, the same prosecutor assertedly put forth the position that he did not dominate Sakarias, that

exercise of its supervision over a deliberating jury. (Cf. 2 Childress & Davis, Federal Standards of Review, supra, Trial Judge: Supervision and Discretion, § 11.33, pp. 11-127 to 11-129 [stating that abuse of discretion is the federal standard of review for a decision whether or not to give a so-called “Allen” charge (Allen v. United States (1896) 164 U.S. 492 [ 17 S.Ct. 154 , 41 L.Ed. 528 ]) to a deadlocked jury].)

Employing that test, we find no error. It was not at all unreasonable for the superior court effectively to refuse to instruct the jury as it deliberated in response to its request, which went to the consequences of a jury’s inability to reach a unanimous verdict as to penalty. As the superior court itself commented, the choice between death and life imprisonment without possibility of parole that is demanded of a jury after the penalty phase as its fundamental and ultimate act is “very difficult. . . . because it involves intense moral reflection.” An instruction of the sort refused, if given, might disturb the task and invite its avoidance, having as it does a “potential for unduly confusing and misguiding the jury in their proper role and function in the penalty determination process” (People v. Belmontes (1988) 45 Cal.3d 744 , 814 [ 248 Cal.Rptr. 126 , 755 P.2d 310 ]; accord, e.g., People v. Hines (1997) 15 Cal.4th 997 , 1075 [ 64 Cal.Rptr.2d 594 , 938 P.2d 388 ]; cf. Jones v. United States (1999) 527 U.S. 373 , 382 [ 119 S.Ct. 2090 , 2099, 144 L.Ed.2d 370 ] [implying as much for a jury at the so-called “selection phase” of a federal capital trial, which is similar to the penalty phase here].) The proper focus of the jury’s deliberations is which penalty to choose, and not whether to make the choice in the first place. We recognize that, under California statutory law, a trial court is required to instruct a deliberating jury on its request “on any point of law arising in the case.” (Pen. Code, § 1138.) But it is not required so to instruct on any “point of law” merely associated therewith. The consequences of a jury’s inability to reach a unanimous verdict as to penalty is a point of the latter kind and not the former. (Cf. Jones v. United States, supra, 527 U.S. at p. 382 [119 S.Ct. at p. 2099] [implying as much for a jury at the selection phase of a federal capital trial: the consequences of a jury’s inability to reach a unanimous verdict as to penalty “has no bearing on [its] role in the sentencing process”].) To repeat: The proper focus of a jury’s deliberations as to penalty is which penalty to choose, and not whether to make the choice in the first place.

Waidla argues against our conclusion. We agree that, as a general matter, the superior court may instruct a deliberating jury in response to a request going to the consequences of its inability to reach a unanimous verdict as to penalty. (See People v. Belmontes, supra, 45 Cal.3d at p. 814 [semble].) But we cannot agree that, in this cause, the superior court had to do so, whether