People v. Alfaro

Defendant’s first penalty phase trial, at which she testified, ended in a mistrial. At the penalty retrial, defendant did not testify but presented evidence of her impoverished and violent childhood, her history of drug abuse, and her impaired mental state. Defendant’s testimony from her first penalty phase trial was read to the jury.

B. Procedural History

Following a preliminary hearing held in mid-November 1990, at which no affirmative defense was offered, defendant was held to answer in the Orange County Superior Court. In an information filed in late November 1990, the Orange County District Attorney charged defendant in count I with the June 15, 1990 murder of Autumn Wallace in violation of section 187, subdivision (a). Defendant was charged in count II with first degree residential burglary, in violation of sections 459 and 460.1, and in count III with first degree residential robbery in violation of sections 211 and 212.5, subdivision (a). The information further alleged that defendant personally used a deadly and dangerous weapon (a knife) during the commission of all three charged offenses within the meaning of section 12022, subdivision (b). The information further alleged two special circumstances—that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i)), and that the murder was committed while defendant was engaged in the commission of a first degree burglary (§ 190.2, former subd. (a)(17)(vii)).

Defendant entered a plea of not guilty to each count and denied the special circumstances and weapon allegations. Prospective jurors were sworn, and opening statements commenced in mid-March 1992. Nearly two weeks later, the jury found defendant guilty as charged and found true the knife-use and special circumstance allegations. The first penalty phase trial began in late March 1992. The court declared a mistrial as to the penalty phase in early April 1992 after it determined there was no reasonable probability that the jury would be able to reach a verdict. (§ 1140.)

Prospective jurors were sworn, and a second penalty phase trial commenced in mid-May 1992. The jury determined early in June 1992 that defendant should be sentenced to death.

The trial court denied defendant’s motions for modification of sentence and for new trial, sentencing defendant to death and ordering that imposition of

C. Guilt Phase Evidence

Autumn Wallace, the murder victim, was nine years of age. She resided with her mother, Linda Wallace, a clerk employed by the Orange County Superior Court, her older sister April Wallace, and April’s infant son on Hedlund Street in Anaheim, California. Autumn’s friend, Christina S., testified that their school had an “early day” on Friday, June 15, 1990; school recessed at 2:35 p.m., and about that time she and Autumn left school and went to Autumn’s home.

Three of the Wallaces’ neighbors testified that on the afternoon of Autumn’s murder, they each separately observed a “reddish” or “goldishbronze” Monte Carlo parked in the driveway of the Wallace residence and two Hispanic men standing nearby facing the street. One of the men was holding a child, approximately 18 months of age. The man with the infant subsequently was identified as Antonio “Shorty” Reynoso.

April Wallace testified that she attempted to telephone Autumn at approximately 4:30 p.m. to inform Autumn that she would arrive home late from work, but Autumn did not answer the phone. April returned to the residence at approximately 5:15 p.m. and found the front door locked. She entered and observed the residence was in a state of disarray. The hall closet was open and things were “scattered around.” April called out for Autumn but received no answer. When April entered her bedroom, she noticed that her television and mirror were missing and some clothing had been thrown around. April immediately left the residence and went across the street to a neighbor’s home.

At approximately 5:40 p.m., Linda Wallace arrived at the residence and was informed by April that the house had been burglarized and that Autumn was missing. Linda entered in search of Autumn and noticed that many items were missing. Unable to locate a telephone in the house, Linda instructed April to telephone the police from another location. While April ran to a neighbor’s residence to make the call, Linda searched her home and discovered Autumn’s body in the back bathroom.

Defendant was a high school friend of April Wallace’s and resided approximately three blocks from the Wallace residence. In the course of her friendship with April, defendant visited the Wallace home on many occasions and resided there for a short time while pregnant with her second child. April

Orange County Sheriffs Department Investigator Tom Giffin testified that he arrived at the Wallace residence approximately 7:20 p.m. on the night of the homicide. Approximately 11:15 p.m., defendant, her boyfriend Manuel Cueva, and their son Manny walked past the Wallace home. Defendant asked Giffin for permission to speak with April, but Giffin declined. Giffin testified that while speaking to defendant, he recalled witness accounts that a small child had been seen in front of the house with two Hispanic men. The following day, after learning that a fingerprint lifted from the Wallace bathroom matched defendant’s fingerprint, Giffin conducted an interview with defendant at the sheriffs department substation in Stanton. Defendant denied any involvement in the crimes during this interview.

Sometime after the murder, defendant left a bag of clothing at Maria Ruelas’s home, where defendant and Cueva periodically stayed overnight. Ruelas testified that the clothes belonged to defendant. Defendant had telephoned Ruelas and asked her to leave the bag of clothing outside, because defendant was leaving for Mexico early the next morning, but defendant never returned for the clothes. Investigator Giffin obtained the bag from Ruelas on June 24, 1990. When the bag was searched pursuant to a warrant, it was found to contain April Wallace’s boots and defendant’s LA Gear tennis shoes.

Immediately thereafter, the police obtained a warrant for defendant’s arrest, and she was arrested the following day. Shortly thereafter, defendant was interviewed during a Videotaped session that lasted more than four hours. In the course of the interview, defendant confessed to murdering Autumn and burglarizing the Wallace residence. Defendant’s videotaped confession was presented to the jury. Defendant told the police that on the day Autumn was murdered, defendant was staying at Manuel Cueva’s father’s home in Anaheim. Defendant was 18 years of age, the mother of two children, and pregnant with twins. Cueva was the father of defendant’s younger children. Defendant was addicted to heroin and cocaine, and on the day of the murder she left Cueva’s residence approximately 11:00 a.m. to purchase drugs, taking Manny with her. Defendant was driven by an unidentified acquaintance to an area of Anaheim known as “Little Tijuana,” where defendant sought out a man named Juan, who was employed with her mother at Disneyland. Juan directed defendant to a nearby apartment, where “some guy downstairs named Huero” was rumored to be selling drugs. Defendant left Manny with Juan at his apartment while she and another woman named Sabrina left to

Defendant’s acquaintance, Antonio Reynoso, who had been released from prison the previous day, also visited Juan’s apartment that afternoon. When defendant and Sabrina exhausted their supply of drugs, Reynoso offered to share his own drags if defendant would share her “rig” (a term referring to the needle, syringe, and other paraphernalia used to inject drags). After defendant agreed, she and Reynoso injected additional quantities of drags while Sabrina looked after Manny. After consuming Reynoso’s entire supply of drugs, defendant desired to continue taking drags, but had ran out of money.

Thereafter, defendant, Reynoso, and a second man drove to the Wallace home. Defendant told Reynoso that she formerly resided with the Wallaces and was willing to sell Reynoso a videocassette recorder (VCR) that she had left at the residence. Defendant admitted to the police that she knew Autumn would be home alone that afternoon because both Linda and April Wallace were at work. Upon arriving at the Wallace home, defendant told Reynoso to hold her baby son while she entered the residence.

Defendant admitted stabbing Autumn, initially telling the police that shortly after entering the house, she saw a knife on the ground and stabbed Autumn. Later in the interview, defendant told the police that she noticed and picked up the knife, which was on top of the washer or dryer near the rear bathroom, and then called Autumn into the bathroom and stabbed her. Defendant subsequently described taking the knife from a kitchen drawer after Autumn admitted her to the residence. Defendant repeatedly stated that she acted alone in killing Autumn and repeatedly denied that either of the men who came with her to the Wallace residence knew of defendant’s plans to burglarize the house.

Defendant told the police she decided to kill Autumn because the child could identify her as the perpetrator of the burglary. She explained that she took the knife into the bathroom with her and for several minutes considered killing Autumn. After calling Autumn into the bathroom, defendant removed some eyelash curlers from her makeup bag and asked Autumn to clean them for her. Autumn agreed to do so, and after she turned around at defendant’s request, defendant began to stab her. Defendant told the police she repeatedly stabbed Autumn in the back, chest, and head.

Defendant told the police that she next removed the television set from April’s room and a VCR from the living room and carried these items outside

Although defendant consistently maintained that Reynoso remained outside in the driveway with Manny throughout defendant’s commission of the homicide and the burglary, defendant was inconsistent during the course of the police interview in describing the whereabouts of the second man. Defendant initially said he exited from the vehicle to help her place the items she had removed from the Wallace residence inside the vehicle but did not enter the house. Later, defendant suggested that the man may have entered the residence. When defendant explained her decision not to take the microwave, however, she implied that the man had gone inside the residence as far back as the rear bedroom.

Defendant told the police that the vehicle driven to the Wallace residence was an older model, dark blue Camaro and that neither she nor Reynoso knew the identity of the driver. The police repeatedly challenged her description of the vehicle, telling her that numerous witnesses had described the car as a goldish-bronze or brown Monte Carlo. Defendant nonetheless repeated that the vehicle was blue and that she did not know the identity of the driver. Despite being afforded numerous opportunities by the police to implicate another person in Autumn’s murder, defendant repeatedly insisted that she had acted alone.

At trial, Reynoso testified that he and the driver, whom he did not know and could not identify, remained outside the Wallace residence, in or around the driveway, for approximately 10 minutes until defendant exited from the house carrying some household items. Reynoso testified that neither he nor the driver ever entered the Wallace home. Reynoso confirmed at trial that defendant told him she formerly resided at the house and that he initially believed defendant when she told him she owned the property she had removed from the house. After loading the car, defendant, defendant’s son, and Reynoso were driven back to “Little Tijuana” by the second man.

Reynoso variously testified that he decided not to buy the VCR, because he knew it was stolen, and conversely that he had grown angry because defendant had sold the VCR to someone else. Reynoso testified he did not notice any blood on defendant and did not learn about Autumn’s murder until

In attempting to identify the second Hispanic male (other than Reynoso) who had been observed by witnesses outside the Wallace home, police investigators considered more than 100 individuals. The police identified but subsequently eliminated as a possible suspect a man named Robert Frias Gonzales. Investigator Giffin testified that the police pursued this part of the investigation because Giffin had difficulty believing that defendant could have committed the murder alone. Giffin concluded that defendant knew who the driver was but would not reveal his identity.

As noted above, an autopsy revealed that Autumn Wallace suffered more than 50 stab wounds on her head, neck, upper portion of her torso, chest, front, and back. Wounds to Autumn’s heart and larynx caused her death. The coroner testified that the angle of most of the wounds suggested they were inflicted contemporaneously, and that a paring knife, discovered on the floor near the murder scene and admitted as People’s exhibit No. 61, had a “configuration and appearance” that could easily have caused “most if not all of the injuries.” With regard to at least one of the wounds, the coroner could not state positively that it was caused by the paring knife. During the police investigation, Linda Wallace informed the police that a boning knife with a 12-inch blade was missing from her residence.

DNA testing conducted by the Orange County Sheriff’s Department crime laboratory revealed that blood found on the bottom of defendant’s LA Gear shoe was consistent with Autumn Wallace’s blood and was not consistent with defendant’s. Several shoe prints found on the linoleum floor outside the bathroom revealed the same general class characteristics as hash marks made by defendant’s LA Gear shoes. Additionally, defendant’s fingerprints and palm prints matched some of the 26 fingerprints and a palm print discovered at various locations in the house. The paring knife and an eyelash curler were found on the bathroom floor next to Autumn’s body.

Defendant waived her right to testify in her own defense, and the defense rested without calling any witnesses. The jury found defendant guilty of the charges and found true the allegation that she used a knife in the commission of the offense, as well as the special circumstance allegations that she committed the murder in the course of a first degree burglary and a robbery.

D. Evidence Received at the First Penalty Phase Trial

At the first penalty phase trial, the prosecution rested after introducing a photograph of the murder victim taken when she was alive.

Manuel Cueva, defendant’s boyfriend and the father of three of defendant’s four children, testified that defendant was the loving and caring mother of four children, two of them twin boys bom after her arrest in the present case. Following her arrest, defendant continued to express concern for her children and to write and speak to them.

Janell Laird, a friend of defendant’s who had known her since preschool, testified that defendant’s father was an alcoholic who often vomited in front of them and struck defendant and her mother. Laird explained that she was afraid of defendant’s father, who eventually abandoned the family. Laird testified that defendant was in the sixth grade when she started using drags. Laird recounted that defendant had written her from jail, telling her of the importance of staying away from drags and living a law-abiding life. Laird also testified that defendant had telephoned her from jail, telling her that Autumn Wallace did not deserve to die and that defendant never planned to harm her.

Tamara Benedict, a neighbor of defendant’s during defendant’s childhood, remembered defendant’s father as a violent alcoholic. She testified that defendant dropped out of school in seventh grade, at which time she began to ran away from home and started injecting “speed balls,” a mixture of heroin and cocaine, as often as 50 times each day. Defendant often told Benedict that defendant wanted to quit taking drags but was unable to do so because of her addiction. Benedict testified that defendant sometimes had sex with her drag dealers in order to obtain drags, had attempted to “clean up” on multiple occasions, and was able to obtain temporary employment. Defendant wrote Benedict several letters from jail, expressing sorrow for what she had done.

Defendant’s mother, Sylvia Alfaro, testified that she worked 10 to 14 hours each day, sometimes seven days a week. She testified that defendant’s father was an alcoholic, often struck both Sylvia and defendant in the presence of the other children in the family, and threw the family out of the home during drunken rages. Defendant began to be truant from school at the age of 11 years. Sylvia became aware of defendant’s drag problem when defendant was 12 years of age, and thereafter attended counseling with her three to four times a week. Defendant became a prostitute when she was 13 years of age in order to support her drag habit. Thereafter, defendant was sent to reside with her grandmother in Mexico but was returned home within five months, after which defendant’s mother often found her on the streets, dirty, hungry, and shoeless. Defendant’s father refused to intervene and abandoned the family when defendant was 14 years of age, the same year defendant became pregnant with her first son, Danny.

Dolores Onofre, who had known defendant since she was a child, testified that defendant’s father was an alcoholic who had acted violently in the presence of his children and had threatened to kill his wife. Betty Clearly, a manager at a McDonald’s restaurant where defendant had worked briefly, testified that defendant was a good employee, dependable and congenial.

Sylvia Archuleta, an employee of a Christian program called Teen Challenge, testified that she met defendant at the Orange County jail. She testified that defendant often cried and expressed sorrow for the grief she had caused the victim’s family.

Norman Morein, a sentencing consultant, testified that defendant had adjusted satisfactorily at the county jail and that her confrontation with an inmate, which Morein explained stemmed from the other inmate’s discussing defendant’s case with prison staff, was natural and expected behavior. Morein testified that defendant expressed genuine remorse and sorrow for the underlying crime, and that she had become religious since being incarcerated. Morein opined that defendant could have a positive influence on other persons if allowed to live.

Dr. Armando Morales, a psychosociologist, testified that defendant had a relatively stable childhood until the age of five years. Thereafter, she was abused by her violent and alcoholic father, was raped at the age of nine years by her father’s friend, experienced racism at school, and suffered from drug abuse. Dr. Morales opined that defendant developed emotional problems, including depression associated with trauma, which contributed to her substance abuse. He further believed that in light of defendant’s stable early childhood, she was capable of developing close attachments and of being a positive influence on others. Morales testified that defendant felt remorse and empathy for the victim and her family.

Defendant testified at the first penalty phase trial. She told the jury of her unhappy home life, her violent and abusive alcoholic father, the racial prejudice she suffered at school, and her problems with drug abuse. She testified that she began to use “hard” drugs in the sixth grade. She was forced

The court ruled that defendant’s reference to “we” had “opened the door” to cross-examination regarding the circumstances of the crime. During cross-examination, defendant admitted she had murdered Autumn Wallace, but testified she had done so under pressure from the second Hispanic male, whom she referred to as “Beto.” She refused to reveal anything more regarding the identity of the second man. She testified she had used cocaine and heroin shortly before going to the Wallace home, and was “out of [my] head.” She testified she did not know Autumn would be home and did not plan to harm her. She also testified that Autumn recognized her before letting her into the house, that she gave Autumn her eyelash curlers and asked her to clean them, and that she had brought the curlers into the house because she “wanted to play the part.” Defendant testified that “Beto” also was “wired” on drugs, and that upon discovering Autumn in the house, he had become angry, put a knife to defendant’s back, and threatened to kill her baby if she did not stab Autumn. Defendant testified she stabbed Autumn “a couple of times” initially, but claimed “Beto” must have inflicted the remainder of the stab wounds found on the victim’s body. She testified that when she came down from her “high,” she learned—but could not believe—that Autumn was dead.

The prosecutor questioned defendant extensively regarding the identification of “Beto” that she had provided to Dr. Consuelo Edwards, a mental health expert who had examined defendant on behalf of the defense but had not testified. Defendant testified that initially she told Edwards that the third man’s name was “Miguel” and that he was a friend of defendant’s father, and subsequently that she had told Edwards that the man’s name was, in fact, “Beto” and that on his neck a woman’s name was tattooed in cursive writing. Defendant identified as “Beto” the man depicted in the photograph marked exhibit No. 89.

In questioning defendant and Reynoso, defense counsel suggested that Robert Frias Gonzales was “Beto.” In rebuttal, the prosecution presented witnesses Robert Frias Gonzales and his sister Rosalinda Gonzales, both of whom testified that the police had contacted them and investigated Robert’s involvement in Autumn Wallace’s murder. Robert Gonzales testified that he is known as “Beto,” but explained he was home with his sister all day and night

Ultimately, the jury at the first penalty phase trial was unable to reach a verdict, and the trial court declared a mistrial.

E. Evidence Received at the Second Penalty Phase Trial

At the penalty retrial, held in April 1992 before a newly sworn jury, Christina S., April Wallace, and Linda Wallace each testified for the prosecution regarding the grief and suffering they had endured as a result of Autumn Wallace’s death. The prosecution also introduced testimony from most of the witnesses who had testified at the guilt phase of the trial.

Defendant did not testify. Defense witnesses Manuel Cueva, Janell Laird, Tamara Benedict, Dolores Onofre, Sylvia Archuleta, Sylvia Alfaro, and Dr. Armando Morales testified again, in a manner substantially similar to their testimony at the first penalty phase trial. The defense additionally called the following witnesses.

Marc Taylor, a criminalist retained as an expert by the defense, testified that he examined various items of evidence, including pieces of clothing, bloodstained flooring, shoe prints, blood-spattered furniture, a bloodstained towel, plastic casts of shoe prints found outside the Wallace home, men’s and women’s LA Gear tennis shoes, boots, and sandals. Taylor testified that some of the shoe prints found inside and outside the house did not match defendant’s LA Gear shoes. He testified his tests established that the bloodstains on the towel were caused by the wiping of a knife other than the weapon designated as exhibit No. 61. On cross-examination, Taylor acknowledged that examining blood wipes was not an exact science and that the patterns could have been caused by wiping a belt or a shoe on the towel.

Toby Silver, a registered nurse and mental health professional at the Orange County jail during defendant’s incarceration, testified that during clinical sessions, defendant exhibited signs of depression and low self-esteem, stated that she missed her children, and expressed remorse for her crimes.

Kenneth Harer, a deputy sheriff at the Orange County jail, testified that he identified a man named “Beto” as a person who resembled the suspect depicted in a flier posted after the murder. After he saw the flier, Harer remembered that he had seen the same man entering a blue Camaro parked across the street from the main jail.

Gerardo Rangel, a bilingual school counselor who knew defendant while she was a junior high school student, testified that he met with defendant’s

Albert Lopez, a minister with Gleaners, an inmate ministry, testified that he visited with defendant on approximately 20 to 25 occasions at the Orange County jail and believed she exhibited remorse for having committed the crime. On one occasion, Lopez recalled, defendant cried in Lopez’s presence, and he believed her sorrow to be genuine.

Finally, defense counsel presented Dr. Consuelo Edwards as a mental health expert witness. Dr. Edwards, a medical doctor trained in Spain, testified extensively regarding defendant’s childhood, referring to her abusive father, her drug use, her multiple pregnancies, her limited work as an employee at McDonald’s, and her relationship with Manuel Cueva. Edwards described defendant’s intellectual functioning as “borderline,” opining that she had an IQ of 78 and learning disabilities that were exacerbated by her traumatic experiences as a child. In Dr. Edwards’s opinion, defendant was a passive and dependent person with low impulse control, a condition that was further compromised when she was under the influence of drugs. Edwards described defendant as a follower.

Dr. Edwards also testified that although defendant admitted to her that she had killed Autumn Wallace, and defendant described in detail the events preceding the homicide, she refused to answer any questions regarding the second Hispanic male, other than to say he was a friend of her father’s named “Miguel.” Edwards testified that defendant told her “Miguel” had threatened to kill defendant and her baby unless she killed Autumn Wallace, and that after stabbing the victim four or five times, defendant ran from the room, not having planned to kill her. In a subsequent interview with defendant, Edwards told defendant that her defense attorney had shown Edwards a photograph of “Beto,” whom the defense identified as the man seen outside the Wallace residence. At that time, defendant agreed that the man with her on the day of the murder was named “Beto.” Edwards testified that defendant had expressed great sorrow for her involvement in the crime.

Edwards was of the opinion that defendant was legally sane at the time of the crime, but was suffering from an ongoing organic mental disorder and was under the influence of drugs, either because of intoxication or withdrawal. Edwards also diagnosed defendant as having attention deficit disorder, learning disabilities, a conduct disorder characterized by childhood antisocial behavior, an adjustment disorder characterized by anxiety and

In rebuttal, the prosecutor presented the testimony of several Orange County jail employees. One employee testified he had seen defendant strike another inmate. Other jail employees testified to having heard her comment during a conversation with another inmate: “I’m a frustrated person who takes things out on people, and have to learn to live with that,” and “I’m not going to be able to do this again. I’m no actor. I’m going to be cold this time. I just want to get this over with.”

The prosecution presented in rebuttal the testimony of Orange County Sheriff’s Department Investigator Robert Harper, who contradicted the defense claim that Robert Frias Gonzales was the person outside the Wallace home identified as Beto. Harper testified that Gonzales had a butterfly tattoo on his neck, but not a tattoo of a woman’s name. Investigator Thomas Giffin testified that defense witness Lopez stated he was going to marry defendant when her trial was concluded. The prosecution also called a consulting psychologist, Martha Rogers, who had conducted psychological testing of defendant on behalf of the defense and whose notes and raw data were provided to Drs. Morales and Edwards by defense counsel. Rogers was questioned regarding the meaning of the phrase “probable fake bad,” which she had entered in her written notes. As discussed below in detail, Rogers testified that this phrase was susceptible of multiple meanings, among them malingering.

After argument and instructions, the matter was submitted to the second penalty phase jury, which returned a verdict of death.

A. Guilt Phase Issues

1. The Trial Court’s Asserted Failure to Address an Alleged Conflict Between Defendant and Defense Counsel Concerning Defendant’s Desire to Enter a Plea of Guilty

Defendant contends the trial court erred by failing to address adequately a conflict that arose between defense counsel and defendant concerning her desire to enter a plea of guilty shortly before the commencement of the guilt phase of the trial. Defendant maintains that she repeatedly informed her counsel that she wished to plead guilty but that counsel “unreasonably withheld” consent to a guilty plea and thereafter insisted on presenting a

b. Analysis

As a threshold matter, the parties vigorously disagree with respect to whether the guilty plea proffered by defendant was conditional or unconditional. Defendant contends that the discussion between the trial court and defense counsel clearly establishes that defendant sought to enter an unconditional plea. The Attorney General maintains, on the other hand, that defendant sought to enter a conditional plea of guilty, that is, she desired to plead guilty in exchange for receiving a sentence of life imprisonment without the possibility of parole—and that this offer was communicated by defense counsel to the prosecutor, who rejected the offer. The Attorney General reasons that because evidence of a desire to plead guilty conditionally (that is, in exchange for an agreement to avoid the death penalty) would not have provided evidence that defendant was remorseful, defense counsel did not render ineffective assistance by refusing to accede to defendant’s wish, and the trial court did not err in failing to further investigate the purported conflict.

The record supports the inference that defendant had communicated to her counsel a desire to enter an unconditional guilty plea. The transcript of the in camera proceedings conducted to discuss defense counsel’s “request for special instruction” reflects that defense counsel and the trial court discussed defendant’s desire to plead guilty to a capital offense and that doing so could subject her to the death penalty. When the trial court asked defendant what she wanted to do, she answered, without any expressed condition, “plead guilty.” Defense counsel stated several times that his objection to entry of a guilty plea was based upon his refusal to allow defendant to plead guilty to a capital offense. Counsel stated, “I can’t turn around and say I consent to allow my client to plead guilty when I know she’s pleading guilty for all intents and purposes to a death sentence,” and “A twenty year old child is going to plead guilty to a death penalty?” The trial court, in turn, expressed doubt that any attorney in Orange County “would consent to somebody pleading guilty to a capital offense.” The clear inference is that defense counsel withheld his consent to what he perceived as an unconditional guilty plea.

Moreover, approximately one week after the foregoing hearing, the prosecution moved to exclude evidence of defense counsel’s offer to “allow his client to plead guilty to life without possibility of parole in lieu of the death penalty. In lieu of us seeking the death penalty.” Thus, it appears that defense

Emphasizing the plain language of section 1018, and concluding the trial court committed prejudicial error in accepting the defendant’s plea, we reversed the judgment of death. (Chadd, supra, 28 Cal.3d at pp. 754—755.) Although acknowledging that in California’s system of criminal justice, the decision how to plead to a criminal charge is personal to the defendant, we also emphasized that “it is no less true that the Legislature has the power to regulate, in the public interest, the manner in which that choice is exercised.” (Id. at pp. 747-748.) We specifically considered the interplay between the section 1018 consent requirement and the Sixth Amendment right of self-representation discussed in Faretta, and observed that, as Faretta recognized, the Sixth Amendment grants the right to defend directly to the accused, because he or she suffers the consequences in the event the defense fails. (Chadd, at p. 751.) In rejecting the Attorney General’s contention that therefore the so-called veto power vested in defense counsel renders section 1018 unconstitutional, we explained that “in capital cases ... the state has a strong interest in reducing the risk of mistaken judgments. Nothing in Faretta, either expressly or impliedly, deprives the state of the right to conclude that the danger of erroneously imposing a death sentence outweighs the minor infringement of the right of self-representation resulting when defendant’s right to plead guilty in capital cases is subjected to the requirement of his counsel’s consent.” (Chadd, supra, 28 Cal.3d at p. 751.)

Defendant urges us to revisit and limit our holding in Chadd because unlike the defendant in that case—who sought to waive any defense entirely and confirmed unambiguously that his desire to plead guilty amounted to an attempt to commit suicide with state assistance—defendant in the present case sought to plead guilty in order to help establish a foundation for a “remorse” defense at the penalty phase. But we need not decide in this case

During the ex parte colloquy prior to jury selection, defense counsel informed the court that defendant refused to testify because she was in “absolute fear of her safety and she’s in absolute fear of the safety of her family should it become known to Beto that we in some way, shape, or form, for lack of a better term, have given him up.” Although defense counsel did not state explicitly that defendant’s desire to plead guilty and her refusal to testify were interconnected, the tenor of the lengthy discussion clearly supports that inference. Defendant, who was present at the colloquy, did not dispute counsel’s characterization of her position and said nothing more than that she desired to “plead guilty.” In particular, she made no overt or implicit reference to remorse or a desire to take responsibility for the crime. Thus, as defense counsel informed the trial court, although defendant told him that “Beto” had pressured her to murder Autumn by threatening defendant’s child, she refused to testify to that effect, because she allegedly continued to fear for the safety of herself and her family. In other words, it appears that defense counsel reasonably believed that defendant sought to plead guilty to a capital offense not in order to help establish a foundation for a defense of “remorse” at the penalty phase, but instead to avoid naming an alleged coconspirator and thus protect herself and her family from harm. Defense counsel’s refusal to consent to a guilty plea under these circumstances was not unreasonable.

As we recognized in Chadd, the 1973 statutory revision adding to section 1018 the requirement of counsel’s consent was part of a more extensive revision of California’s death penalty legislation and thus was intended to serve as a “further independent safeguard against erroneous imposition of a death sentence.” (Chadd, supra, 28 Cal.3d at p. 750.) In Chadd, we explained that “ ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.’ ” (Chadd, supra, 28 Cal.3d at p. 748, quoting Boykin v. Alabama (1969) 395 U.S. 238 , 242 [ 23 L.Ed.2d 274 , 89 S.Ct. 1709 ].) The consent requirement of section 1018 has its roots in the state’s strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairness of its criminal proceedings. (Chadd, at pp. 750, 753.) The statute constitutes legislative recognition of the severe consequences of a guilty plea in a capital case, and provides protection against an ill-advised guilty plea and the erroneous imposition of a death sentence.

We likewise reject the claim that counsel’s refusal to consent to the guilty plea became unreasonable because defendant’s refusal to testify at the guilt phase of her trial hindered counsel’s presentation of her defense. Defendant contends that because counsel was well aware she would not testify, and because the defense strategy would be substantially undercut by defendant’s silence, counsel should have consented to defendant’s entering an unconditional guilty plea. However, in view of the circumstance that the trial court admitted into evidence the videotape of defendant repeatedly confessing to the murder of Autumn Wallace, defense counsel was not unreasonable in attempting to present a defense that would mitigate defendant’s culpability in the crime.

Defendant faults the trial court for failing to inquire into defendant’s reasons for desiring to plead guilty. She claims that had the trial court done so, it would have discovered that defendant sought to take responsibility for the crime in order to demonstrate her remorse, and that defense counsel’s refusal to consent was patently unreasonable in light of the weak defense case. Although defendant vigorously argues that the trial court had a duty to intervene after it was apprised of the conflict between defendant and her counsel, there is no express duty on the part of the trial court to ensure that counsel’s consent to a guilty plea is not unreasonably withheld. Even assuming the existence of such a duty, the trial court conducted a complete and adequate inquiry into the purported conflict between defendant and her counsel in the present case. The court reasonably relied upon counsel’s representation, unrebutted by defendant, that the conflict concerned defendant’s desire to plead guilty in order to avoid testifying against “Beto,” who might retaliate against her and her family. Although defendant had ample opportunity during the lengthy ex parte discussion between defense counsel and the court to elaborate on her motivation to enter a guilty plea, she told the court only that she wished to “plead guilty.” Moreover, as we have held in the context of Marsden hearings (People v. Marsden (1970) 2 Cal.3d 118 [ 84

Defendant further faults the trial court for failing to appoint second counsel after defense counsel conveyed the circumstances of the conflict between himself and defendant and suggested that another counsel be appointed to advise defendant. Section 987, subdivision (d) provides in relevant part: “In a capital case, the court may appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed. . . . The court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation.” (See also People v. Keenan (1982) 31 Cal.3d 424 , 430 [ 180 Cal.Rptr. 489 , 640 P.2d 108 ].)

Defendant concedes that defense counsel did not file a written request for cocounsel as required by section 987, subdivision (d), but asks that we interpret defense counsel’s oral suggestion as a formal request for Keenan counsel. We decline to do so. The sole allusion to such a request was defense counsel’s suggestion that second counsel might be appointed to advise defendant regarding the consequences of her decision not to testify. The trial court was not requested to, and did not, rule on a formal motion to appoint second counsel. Thus, the issue was not preserved for appeal. (Evid. Code, § 353, subd. (a); People v. Alvarez (1996) 14 Cal.4th 155 , 186 [ 58 Cal.Rptr.2d 385 , 926 P.2d 365 ].)

In the alternative, defendant asserts that defense counsel rendered ineffective assistance by failing to invoke the trial court’s discretion to appoint a second attorney to assist counsel at the guilt and penalty phases of this capital

The record on appeal does not establish that counsel provided constitutionally inadequate assistance in failing to request cocounsel. Nothing in the record demonstrates that Monroe performed below constitutional standards, especially in light of the lack of cooperation he received from defendant. (People v. Michaels (2002) 28 Cal.4th 486 , 523 [ 122 Cal.Rptr.2d 285 , 49 P.3d 1032 ] (Michaels).) To the contrary, the record reveals that defense counsel sought to present a defense that would minimize defendant’s culpability based upon her own description of the events, and that possibly would avoid imposition of the death penalty. The circumstance that defendant refused to assist counsel in presenting that version of the events to the jury, allegedly because she was afraid of the consequences of further identifying the second man, thereby hindering presentation of her defense, does not render unreasonable the refusal of counsel to accede to defendant’s desire to plead guilty or counsel’s continuing representation inadequate. Moreover, the cooperation between Monroe and his investigator in performing “quasi-legal” tasks such as examining appropriate areas of defense and/or mitigation was not improper and does not demonstrate that Monroe was overwhelmed in conducting the defense.

In any event, “because the claim is presented as one of ineffective assistance of counsel, relief depends solely on whether counsel’s error, if any, may have affected the outcome.” (People v. Webster (1991) 54 Cal.3d 411 , 437 [ 285 Cal.Rptr. 31 , 814 P.2d 1273 ], citing Strickland v. Washington (1984) 466 U.S. 668 , 692-693 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ] (Strickland)) The record does not reflect that, but for counsel’s refusal to permit defendant to enter an unconditional guilty plea, or his failure to request appointment of second counsel, a more favorable verdict was reasonably probable. (Michaels, supra, 28 Cal.4th at p. 525.)

2. Failure to Admit Evidence of Offer to Plead Guilty

Defendant urges that the trial court erred in ruling inadmissible defendant’s offer to plead guilty, thereby depriving her of crucial mitigating evidence and

Defendant’s claim also fails on the merits. The jury at the second penalty phase trial was presented with extensive evidence of defendant’s remorse, including her full taped confession, during which she repeatedly expressed remorse for her commission of the crime. The jury also heard the testimony given by defendant at her first penalty trial, in which she read a letter she had written to the victim and her family expressing remorse for committing the murder. Finally, numerous defense witnesses described defendant’s sorrow and remorse concerning the murder, and provided multiple accounts of defendant breaking down and crying because of her remorse. The admission of defendant’s offer to enter a conditional plea of guilty to demonstrate her remorse and her acceptance of responsibility for the crime would have been cumulative to these accounts. There is no reasonable possibility the outcome would have been different had the trial court admitted evidence of defendant’s conditional offer to plead guilty. (People v. Robinson (2005) 37 Cal.4th 592 , 641-642 [ 36 Cal.Rptr.3d 760 , 124 P.3d 363 ]; People v. Brown (1988) 46 Cal.3d 432 , 448 [ 250 Cal.Rptr. 604 , 758 P.2d 1135 ].)

Although the prosecutor’s motion to exclude the offer to enter the guilty plea, and the ensuing discussion between the parties and the trial court at the hearing, focused solely upon defendant’s conditional offer to plead guilty, defendant now contends that the trial court erred in granting the motion because, as the court was well aware, defendant sought (but was not permitted) to enter an unconditional plea of guilty at the February 21, 1992 in camera hearing. Defendant apparently contends the trial court had a duty, on its own motion, specifically to acknowledge and admit evidence of defendant’s desire to plead guilty unconditionally, having become aware at the in camera proceedings of that desire. As noted above, defendant’s claim of error

During the colloquy with defense counsel at the hearing, the trial court observed there was no evidence that defendant’s mother or children ever had been threatened with harm, or that the unidentified man was “even in the area or counsel would have been able to locate the person.” The court further advised that the defense of duress was not available in a capital murder case, that the facts did not support an aider and abettor theory of culpability, and that therefore it was unclear that defendant could present a defense based upon the proposed testimony. The court observed that the clear inference from the declaration was that defendant did, in fact, know the identity of the second man and that therefore her testimony in open court might facilitate his identification and apprehension. The court also explained that closing the courtroom to the public during defendant’s testimony might lead the jury to infer that the court attached some credibility tó defendant’s testimony or “in fact, believed that there was a valid threat to exclude the public during her testimony. And I don’t believe any instruction to the contrary would alleviate the possible danger of that interpretation.”

Although many of defendant’s claims on appeal are founded upon the premise that defense counsel rendered ineffective assistance by presenting a third party culpability defense, she implicitly embraces that same defense in advancing her present claim of error. She contends the trial court’s failure to close the trial prevented her from testifying because of her fear for the safety of her family, and was prejudicial because her testimony would have provided evidence in mitigation at the penalty phase.

As we have recognized, the trial court in unusual circumstances may exercise its discretion to close portions of a criminal trial to the public without the consent of the defendant for good cause in order to promote the interests of justice or for the protection of witnesses or parties. (People v. Cummings (1993) 4 Cal.4th 1233 , 1298-1299 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ] (Cummings); People v. Cash (1959) 52 Cal.2d 841 , 846 [ 345 P.2d 462 ], citing discussion in Kirstowsky v. Superior Court (1956) 143 Cal.App.2d 745 [ 300 P.2d 163 ].) The trial court in Kirstowsky ordered the courtroom closed during the testimony of the defendant at a murder trial because she intended to testify regarding embarrassing “abnormal sexual practices” that had been

2. Failure to Excuse Prospective Juror A.P. for Cause

Defendant contends that the trial court erred in declining to excuse Prospective Juror A.P. for cause during the initial voir dire after A.P., dming a private conference in chambers, informed the court that a preteen friend of his granddaughters’ had been raped and murdered shortly after leaving their home, that the girls had been subjected to participation in trial proceedings for several years in that case, and that, as a result, the subject of the present case was “emotional” for him. In a capital case, a juror is properly excused for cause if that juror would “automatically” vote for a certain penalty or if the juror’s views on capital punishment would “ ‘ “prevent or substantially impair” ’ ” the performance of his or her duties in keeping with the juror’s oath and the court’s instructions. (People v. Stitely (2005) 35 Cal.4th 514 , 538 [ 26 Cal.Rptr.3d 1 , 108 P.3d 182 ] (Stitely), quoting Witherspoon v. Illinois (1968) 391 U.S. 510 , 522, fn. 21 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], and Wainwright v. Witt (1985) 469 U.S. 412 , 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ].)

In the present case, the trial court asked A.P. whether his emotions would influence his fairness in this case, to which A.P. responded; “I don’t think it would have any impact on the case. I think I could act fair in this trial.” In response to a followup question from the court, A.P. stated that the circumstance that the victim in the present case was a young girl would not bias his judgment. After voir dire resumed, in response to a question whether he would have a strong emotional reaction to videotaped evidence of the crime scene and of the victim’s body, A.P. stated he believed he could examine such evidence without having a strong emotional reaction to it. The court thereafter denied defense counsel’s motion to challenge Prospective Juror A.P. for cause, and counsel used his last peremptory challenge to strike this prospective juror.

Defendant asserts that the trial court erred in denying defendant’s motion to excuse this prospective juror for cause, and in denying defendant’s request for additional peremptory challenges. Defendant further contends that because the trial court failed to conduct adequate questioning of all prospective jurors, it is difficult to discern how many other prospective jurors should have been excused for cause. Defendant notes that she exercised peremptory challenges to remove Prospective Jurors V.E., T.B., S.S., and G.L. after each individual expressed some hesitation concerning his or her impartiality in a child-victim murder case. Defendant speculates that further questioning

A defendant who claims a trial court wrongly denied a challenge for cause must demonstrate that his or her right to a fair and impartial jury thereby was affected, by establishing that he or she (1) was deprived of a peremptory challenge that he or she would have employed to excuse a juror who sat on the case, (2) exhausted all available peremptory challenges, and (3) expressed to the court dissatisfaction with the jury selected. (People v. Crittenden (1994) 9 Cal.4th 83 , 121-122 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ]; People v. Hawkins (1995) 10 Cal.4th 920 , 939 [ 42 Cal.Rptr.2d 636 , 897 P.2d 574 ]; People v. Horton (1995) 11 Cal.4th 1068 , 1093 [ 47 Cal.Rptr.2d 516 , 906 P.2d 478 ].) Defendant has not identified any person who sat on her jury panel whom she would have peremptorily challenged but for the circumstance that she had used her final challenge to excuse another prospective juror. Accordingly there was no error in failing to excuse A.P. for cause. Moreover, any error in failing to excuse A.P. for cause would not have been prejudicial, because there is no basis for us to conclude that the jury empanelled was anything but impartial. (Ross v. Oklahoma (1988) 487 U.S. 81 , 86-91 [ 101 L.Ed.2d 80 , 108 S.Ct. 2273 ]; People v. Yeoman (2003) 31 Cal.4th 93 [ 114 Cal.Rptr.3d 186 , 72 P.3d 1166 ] (Yeoman).) Finally, defendant’s claims that Prospective Jurors V.E., T.B., S.S., and G.L. should have been excused for cause are purely speculative, and there is no support in the record for defendant’s claim that further questioning would have revealed a basis for removing any of those jurors for cause.

Defendant claims the trial court erred in failing to grant her request for additional peremptory challenges. The court was not required to grant such a request absent a likelihood that defendant otherwise would receive an unfair trial before a partial jury (People v. Pride (1992) 3 Cal.4th 195 , 230 [ 10 Cal.Rptr.2d 636 , 833 P.2d 643 ]), a standard not met in the present case. As noted above, defendant has not demonstrated that the trial court erroneously denied any challenge for cause, and no basis for reversal has been shown. (Ibid.)

3. Denial of Request for Sequestered Voir Dire

Defendant contends that the trial court erred in failing to conduct individual death-penalty-qualification voir dire at both the guilt phase and the

Notwithstanding Code of Civil Procedure section 223, defendant contends the trial court’s failure to conduct individual voir dire as enunciated in Hovey violated her federal constitutional rights. We disagree. The rule in Hovey was not constitutionally compelled. (People v. Anderson (1987) 43 Cal.3d 1104 , 1135 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ]; accord, Vieira, supra, 35 Cal.4th at p. 287.) This statute was intended to overrule the conclusion in Hovey that individual sequestered voir dire is required during death penalty qualification (Vieira, supra, 35 Cal.4th at p. 288; People v. Waidla (2000) 22 Cal.4th 690 , 713-714 [ 94 Cal.Rptr.2d 396 , 996 P.2d 46 ]), and defendant does not cite any authority in support of her argument that individual sequestered voir dire is constitutionally compelled.

Defendant asserts the trial court mistakenly determined it lacked discretion to conduct Hovey voir dire following the passage of Proposition 115. This contention clearly is belied by the record. In denying without prejudice defendant’s request for sequestered voir dire, the trial court observed: “[0]ne of the principal reasons Proposition 115 passed was to eliminate—the court overruled the requirements of the Hovey case. I recognize the court would have discretion to have individual voir dire, but counsel hasn’t pointed out on the Witherspoon type of voir dire any unique aspect of the case . . . that would separate this case from any other special circumstances case insofar as individual voir dire on death penalty qualification .... In your response you indicate that even though Prop. 115 might have overruled Hovey, the court still has discretion to allow it if there was some unique fact of this case that would separate it just from the ordinary, if there is such a thing, capital case .... I’m not inclined, unless there is some unusual circumstances, to allow Hovey voir dire.” Although the trial court subsequently stated that Hovey voir dire is “not permissible” under Proposition 115, the court’s earlier remarks reveal that it understood that it retained discretion to allow sequestered voir dire in an appropriate case.

1. Failure to Substitute Counsel

Defendant contends the trial court violated her Sixth Amendment right to counsel by denying her request for substitute counsel after her first penalty phase trial ended in a mistrial. Defendant urges that the initial breakdown in the attorney-client relationship when defense counsel refused to consent to defendant’s entry of a guilty plea was exacerbated by counsel’s insistence on presenting what defendant terms a “some-other-dude-did-it defense” despite defendant’s refusal to testify and the absence of any independent evidence to corroborate that theory of the crime. Defendant asserts the ongoing conflict culminated in a complete breakdown in the attorney-client relationship after defendant testified at the first penalty trial, allegedly while under the impression that she was not subject to cross-examination with regard to the circumstances of the crime.

On direct examination during her first penalty phase trial, defendant testified concerning her background and upbringing. At defense counsel’s request, she also read a letter she had written to Autumn Wallace, stating in part: “Autumn, if you could hear me, please don’t turn away ’cause I want you to know that I’m sorry we took your innocent life.” Thereafter, the prosecutor began to cross-examine defendant about the circumstances of the crime, over defense counsel’s repeated objection. The trial court ruled that the defense had opened the door to cross-examination concerning the details of the crime. A week later, the first penalty phase jury informed the trial court that it was unable to reach a verdict, and a mistrial was declared. The following day, defendant requested that the trial court appoint substitute counsel.

At the subsequent hearing held pursuant to Marsden, supra, 2 Cal.3d 118 , defendant stated to the trial court that her attorney had “misrepresented” to her the scope of cross-examination, and that her attorney wanted “to do things I never wanted to do. He still goes ahead and does them.” She told the trial court that her “main complaint” was that her attorney had informed her she would not be cross-examined regarding the circumstances of the crime, “and I kept asking him, ‘is the D.A. going to ask me that? Is he going to bring that up?’ and he told me he wasn’t going to. And that’s why I went up there on the stand. But ’cause he told me the D.A. wasn’t going to ask me anything.” Defendant also described the larger, central dispute between herself and her attorney—his insistence on pursuing and presenting a defense that implicated the “other person” and her persistent refusal to name or implicate another person in Autumn Wallace’s murder. Defendant complained, among other things, of her attorney’s decision to call as a witness at

The trial court conducted a diligent and in-depth inquiry into the subject of the discussion that had taken place between defendant and her counsel prior to defendant’s taking the stand, specifically focusing upon what counsel had told defendant regarding cross-examination and repeatedly questioning Attorney Monroe with regard to whether he actually told defendant she would not face cross-examination if she testified. Counsel acknowledged that defendant’s recollection or perception of what counsel had told her was different from his own, but stated that although his memory was imprecise, “I did not say to her unequivocally that I would keep [the prosecutor’s] cross-examination out. I said I would object to it in the event—not in the event, when he did attempt to get into it.”

Defense counsel also told the trial court that counsel had attempted to avoid questioning defendant regarding the circumstances of the crime, but acknowledged having asked defendant to make a statement of remorse to Linda Wallace which subsequently was determined by the trial court to have opened the door to the prosecutor’s cross-examination. Defense counsel acknowledged having reviewed defendant’s letters to Autumn and Linda Wallace, repeatedly having discussed with defendant the importance of her testimony, and having told her that, should the prosecutor seek to cross-examine her, counsel would object. “How Rosie perceived that, I can’t say; or how she interpreted it, I can’t say.”

The trial court stated with regard to the comment defendant directed to Autumn Wallace, “I’m sorry we took your innocent life,” that in its view “under any reasonable interpretation of evidence that anybody is going to be able to cross-examine about what she meant by that. So I’m puzzled as to what kind of advice you gave her about that.” Defense counsel admitted he had not provided any advice as to the significance of the comment insofar as it might determine the scope of the prosecution’s cross-examination. Defense counsel denied, however, having advised defendant that she would not be cross-examined, and reiterated he had informed defendant he would object in the event the prosecutor attempted to cross-examine her regarding the circumstances of the crime. Defense counsel also agreed with the trial court’s statement that after the jury had seen defendant’s videotaped confession, “if [defendant] didn’t testify, she didn’t have much of a chance to save her life.”

The trial court observed that the “alleged betrayal” with respect to the possible scope of cross-examination was not raised by defendant on the day she testified. When questioned about the delay, defendant told the trial court: “I didn’t really know what I was supposed to do to bring it up. I had to ask one of the girls in the jail and they kind of told me what—that I could talk and say anything I want whenever I wanted [to] ... so I didn’t know I could have brought it up at that point. I didn’t know that at the time.”

Ultimately, the trial court found that defendant’s request for substitute counsel was untimely, having been made on the morning of the day the court had scheduled a hearing to set a date for retrial. Substantively, the court found that although defense counsel did not specifically tell defendant she would not be subject to cross-examination, she misunderstood his explanation regarding the scope of cross-examination and was under the impression she could read a letter to Autumn without being cross-examined regarding the circumstances of the crime. The court also explained that even if defendant did not understand the nature of cross-examination before her trial began, she should have acquired an understanding, after observing the direct testimony and cross-examination of numerous witnesses, that her statement in the letter—declaring that she was “sorry we took your innocent life”—would subject her to cross-examination regarding the circumstances of the victim’s death.

The trial court also found that counsel had not committed any misconduct, and had not demonstrated incompetence, by aggressively pursuing a defense theory that minimized defendant’s role in the murder. The trial court noted that if another attorney were appointed to replace Monroe, such an attorney invariably would pursue the same defense strategy because, in light of defendant’s videotaped confession, a defense that would attempt to lessen defendant’s culpability for the murder of Autumn Wallace by placing shared responsibility for the crime on the second man would provide significant mitigating evidence.

The trial court explained in sum that although defendant and her counsel consistently disagreed regarding tactics, and defendant threatened to withhold

We find no error in the trial court’s ruling. As we have stated, “a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” (People v. Hines (1997) 15 Cal.4th 997 , 1025 [ 64 Cal.Rptr.2d 594 , 938 P.2d 388 ].) The trial court afforded defendant ample opportunity to set forth her complaints regarding counsel’s representation, and after hearing defendant’s complaints the trial court allowed counsel to respond. The trial court was not required to do more.

Defendant complained primarily of defense counsel’s (1) insistence on pursuing a defense that would attempt to temper defendant’s culpability for the murder of Autumn Wallace by placing shared responsibility for the crime on the second man, “Beto,” and (2) defense counsel’s allegedly inaccurate advice regarding the scope of the cross-examination to which defendant would be subjected. The complaints regarding Monroe’s defense strategy were essentially tactical disagreements, which do not by themselves constitute an “ ‘irreconcilable conflict.’ ” (Cole, supra, 33 Cal.4th at p. 1190; see Welch, supra, 20 Cal.4th at pp. 728-729.) As noted above with regard to the alleged conflict between defendant and counsel regarding entry of a guilty plea, a disagreement of this nature, by itself, is insufficient to compel discharge of appointed counsel. (See People v. Smith (2003) 30 Cal.4th 581 , 606 [ 134 Cal.Rptr.2d 1 , 68 P.3d 302 ].)

“When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.” (People v. Carpenter (1997) 15 Cal.4th 312 , 376 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ].) The record does not establish that Attorney Monroe was incompetent or that he would not provide adequate representation during the forthcoming retrial, assuming he received defendant’s cooperation. (Co le, supra, 33 Cal.4th at p. 1190, citing Michaels, supra, 28 Cal.4th at p. 523.) To the contrary, the record reveals that defense counsel vigorously and conscientiously pursued a defense designed to temper defendant’s culpability, based upon the version of events conveyed by defendant both to counsel and to the expert witness Dr. Edwards. The circumstance that defendant refused to assist counsel in presenting that version of events to the jury, assertedly because she feared the consequences of her identification of

As a threshold matter, defendant’s claims are undermined by her failure to exercise all of her available peremptory challenges. “In the absence of some explanation for counsel’s failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel’s inaction signifies his recognition that the jury as selected was fair and impartial.” (People v. Daniels (1991) 52 Cal.3d 815 , 854 [ 277 Cal.Rptr. 122 , 802 P.2d 906 ] (Daniels).)

Defendant’s claim also fails on the merits. The first factor we consider in determining whether error occurred in the trial court’s denial of a motion for change of venue, the nature and gravity of the offense, might weigh in favor of granting the motion. This factor alone is not dispositive, however. (Panah, supra, 35 Cal.4th at p. 449; People v. Weaver (2001) 26 Cal.4th 876 , 905 [ 111 Cal.Rptr.2d 2 , 29 P.3d 103 ] (Weaver).) With regard to the second factor, the pretrial publicity in this case was neither extensive nor prejudicial. In her motion, defendant cited 20 newspaper articles concerning her case that appeared between July 1990 and April 1992. Twenty articles during a 22-month period cannot be considered “extensive” coverage. (Panah, supra, at p. 448 [18 articles over 12-month period not “extensive”].) Nor were the articles particularly prejudicial. Certain of the articles were news stories that variously reported the circumstances of defendant’s arrest and the victim’s death, and others reported developments as the case proceeded through the guilt phase and the first penalty trial. Although the articles recounted the disturbing circumstances of the crime and described the victim’s mother’s grief and desire that the defendant receive the death penalty, the coverage was not biased or inflammatory. {Ibid, [articles describing the circumstances of the child’s murder and grief of the victim’s family were not biased or inflammatory].) Moreover, defendant’s trial did not commence until February of 1992, more than 18 months after publication of many of the articles. Any potential prejudice arising from those articles was attenuated by the passage of time. (Welch, supra, 20 Cal.4th at p. 744.) The two articles that were published, respectively, six and four weeks prior to trial, quoting the victim’s mother as supporting imposition of the death penalty, were neither biased nor inflammatory.

None of the remaining relevant factors support a change of venue in the present case. Defendant’s trial was held in Orange County, which, as we previously have observed, is one of the largest counties in population not only in the State of California, but in the entire United States. (People v. Edwards (1991) 54 Cal.3d 787 , 807 [ 1 Cal.Rptr.2d 696 , 819 P.2d 436 ]; People v. Douglas (1990) 50 Cal.3d 468 , 495 [ 268 Cal.Rptr. 126 , 788 P.2d 640 ].) Accordingly, the size of the community does not support a change of venue. (People v. Staten (2000) 24 Cal.4th 434 , 449 [ 101 Cal.Rptr.2d 213 , 11 P.3d 968 ].) Moreover, neither defendant nor the victim occupied positions of prominence and popularity. Autumn Wallace became known following her murder, but otherwise was not prominent as an individual or as a member of a well-known family. (Panah, supra, 35 Cal.4th at p. 449; Daniels, supra, 52 Cal.3d at p. 852.) Although the articles describe Autumn as “popular” and “well-liked,” these assessments were made by the limited audience of her grade school peers and her teachers at the school she attended. Moreover, nothing in the record suggests that Linda Wallace’s status as an employee of the Orange County Superior Court had any effect on members of the jury pool. (Panah, supra, 35 Cal.4th at p. 449; Weaver, supra, 26 Cal.4th at p. 906.) Although defendant urges that the pretrial publicity emphasized her status as a Hispanic, drug-addicted prostitute who had failed to integrate into Anaheim’s middle class, “ ‘there was no evidence of unusual local hostility to such persons, such that a change of venue would likely produce a less biased panel. Nor was the pretrial publicity calculated to excite local prejudices in this regard.’ ” (Panah, supra, at p. 449, quoting People v. Balderas (1985) 41 Cal.3d 144 , 179 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ]; cf. People v. Williams (1989) 48 Cal.3d 1112 , 1129 [ 259 Cal.Rptr. 473 , 774 P.2d 146 ] [pretrial publicity focused on the defendant’s race and status as an outsider to the community, in contrast with the victim’s ties to the community].)

3. The Prosecution’s Examination of Defense Expert Witnesses

Defendant contends the trial court committed reversible error by permitting the prosecutor to cross-examine two defense expert witnesses based on the rough notes and data prepared by a third expert, and by allowing the prosecutor to call that third expert, a defense consulting psychologist, to testify as a “rebuttal” witness. We find no error.

Defendant asserts the trial court erred in permitting the prosecutor to cross-examine Drs. Morales and Edwards regarding the “probable fake bad” notation, because both experts testified they had not relied upon the MMPI data in forming their conclusions, and their testimony regarding the raw data therefore was irrelevant. Defendant further contends that Dr. Rogers’s preliminary test scores and notations constituted inadmissible hearsay. Defendant urges that the prejudicial nature of the data and the notation outweighs their probative value as a basis for expert opinion, and accordingly the evidence should have been excluded altogether.

The Attorney General contends that defendant has forfeited the issue, because defense counsel failed to object to each prosecutorial question regarding the MMPI. We find no forfeiture. Defense counsel repeatedly objected to the prosecution’s questions regarding the MMPI and the “probable fake bad” notation during the questioning of both Dr. Morales and Dr. Edwards, variously contending that the questioning was irrelevant, argumentative, and beyond the scope of the direct examination. The trial court overruled all those objections. The issue was not forfeited by counsel’s failure to object to each and every question posed on the issue of the MMPI, because it is clear that further objections would have been unsuccessful.

On the merits of the claim, we conclude the trial court did not abuse its discretion in permitting the prosecution to cross-examine Dr. Morales and Dr. Edwards regarding their evaluation of the MMPI raw data and Dr. Rogers’s notations, including the term “probable fake bad.” First, the line of questioning was not irrelevant. Although both experts testified they had not utilized the MMPI results in evaluating defendant’s sociological and psychological state of mind, both acknowledged having reviewed the raw data and notations before concluding the information was of no use to them. “A party ‘may cross-examine an expert witness more extensively and searchingly than a lay witness, and the prosecution was entitled to attempt to discredit the expert’s opinion. [Citation.] In cross-examining a psychiatric expert witness, the prosecutor’s good faith questions are proper even when they are, of necessity, based on facts not in evidence. [Citation.]’ ” (People v. Wilson (2005) 36 Cal.4th 309 , 358 [ 30 Cal.Rptr.3d 513 , 114 P.3d 758 ], quoting People v. Dennis (1998) 17 Cal.4th 468 , 519 [ 71 Cal.Rptr.2d 680 , 950 P.2d 1035 ].) Here, the trial court properly allowed the prosecutor to inquire as to both experts’ reasons for disregarding the MMPI data as well as Rogers’s “probable fake bad” notation.

Even if the court had erred in allowing the prosecution to present evidence of the “probable fake bad” notation for the truth of the matter asserted (that is, to establish that defendant was malingering), any such error would not have been prejudicial. The court stated on three occasions that the evidence was being received only for the purpose of indicating the basis for the witness’s opinion. Moreover, the testimony regarding the MMPI was relatively brief, as was the prosecution’s mention of the issue during closing argument. Dr. Morales testified he did not understand the data and was not qualified to interpret MMPI tests. Nothing in his testimony would lead the jury to find that Dr. Rogers’s notation was conclusive evidence of defendant’s malingering. Similarly, although Dr. Edwards testified regarding her understanding of the meaning of “probable fake bad” and acknowledged that in some circumstances the phrase could indicate malingering, she also testified that there were many other meanings for the phrase, and that it was meaningless to her and of no use in her evaluation because the notation was raw data and was unaccompanied by a psychologist’s report. In addition, Rogers testified that the phrase “probable fake bad” had multiple meanings other than that defendant was malingering. Moreover, in closing argument, defense counsel again told the jury that the term “probable fake bad” was meaningless because it was being discussed out of context and should be disregarded.

Additionally, the jury was given a limiting instruction—prior to Dr. Morales’s testimony, again during his testimony, and a third time in the final instructions—informing them that the statements made by an expert in the course of examining defendant could be considered only for the limited purpose of disclosing the information upon which the expert based his or her opinion, and that such statements were not to be considered as evidence of the truth of the facts related in the expert’s testimony. We presume the jury followed these instructions, and defendant has not rebutted this presumption. (People v. Boyette (2002) 29 Cal.4th 381 , 453 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ].)

5. Prosecutorial Misconduct

Defendant raises numerous claims of prosecutorial misconduct relating to the retrial of the penalty phase. She contends the prosecutor committed prejudicial misconduct by (1) eliciting evidence of defendant’s juvenile misconduct through the reference in the direct examination of investigator Tom Giffin to the term “Cal. I.D. hit” as it related to his arrest of defendant; (2) eliciting evidence of defendant’s juvenile misconduct during the cross-examination of Morales; (3) eliciting evidence that defendant was a “bad mother” by questioning Morales regarding his awareness that defendant allowed “ex-cons” to babysit her children; (4) asserting during closing argument that defendant lacked remorse for her crimes; (5) soliciting evidence of intent to kill during redirect examination of the coroner; (6) denigrating defense expert witnesses Dr. Consuelo Edwards and Marc Taylor, and insinuating that defendant’s third-party-involvement defense was created only after she acquired a defense team; (7) mischaracterizing the law in a remark to a prospective juror during voir dire; (8) mischaracterizing the law with regard to defendant’s burden of proof; and (9) inflaming the jury’s passions during closing argument.

A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168 , 181 [ 91 L.Ed.2d 144 , 106 S.Ct. 2464 ]; see People v. Cash (2002) 28 Cal.4th 703 , 733 [ 122 Cal.Rptr.2d 545 , 50 P.3d 332 ].) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894 , 969 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ].) In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Earp (1999) 20 Cal.4th 826 , 858 [ 85 Cal.Rptr.2d 857 , 978 P.2d 15 ].)

With regard to defendant’s contentions concerning the prosecution’s cross-examination of Dr. Morales, and the alleged denigration of Dr. Edwards, it is not misconduct to question a defense expert’s veracity. (People v. Clark (1993)

Defendant contends that cumulative prejudice resulted from a pervasive pattern of misconduct by the prosecution and that such misconduct rendered defendant’s penalty phase trial fundamentally unfair, requiring reversal of the penalty judgment. Having rejected each of defendant’s claims of misconduct, we reject her claim that she was prejudiced by the cumulative impact of the alleged misconduct.

6. Constitutionality of California’s Death Penalty Statute

Defendant raises numerous constitutional challenges to California’s death penalty statute, claims we consistently have rejected and find no persuasive reason to reexamine.

We repeatedly have rejected the contention that California’s 1978 death penalty statute unconstitutionally fails to narrow in a meaningful manner the class of death-penalty-eligible defendants, and we have concluded that section 190.2 adequately narrows the class of murders for which the death penalty may be imposed. (People v. Snow (2003) 30 Cal.4th 43 , 125 [ 132 Cal.Rptr.2d 271 , 65 P.3d 749 ]; People v. Frye, supra, 18 Cal.4th at p. 1029.) We also have rejected claims that the death penalty statute unconstitutionally grants unfettered discretion to prosecuting officials to decide whether to charge eligible defendants with a capital offense, thereby resulting in disparate imposition of the death penalty throughout the state. (Vieira, supra, 35 Cal.4th at p. 304; People v. Lucas (1995) 12 Cal.4th 415 , 477 [ 48 Cal.Rptr.2d 525 , 907 P.2d 373 ].)

Defendant contends section 190.3, factor (a) is unconstitutional as applied, because it is susceptible of “arbitrary, wanton and freakish” application. We repeatedly have held that consideration of the circumstances of the crime under section 190.3, factor (a) does not result in arbitrary or capricious imposition of the death penalty. (People v. Harris (2005) 37 Cal.4th 310 , 365 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ]; People v. Brown (2004) 33 Cal.4th 382 ,

Defendant asserts that factor (d) (“extreme mental or emotional disturbance”) within the list of mitigating factors under section 190.3 (and in CALJIC No. 8.85; see also Judicial Council of Cal. Crim. Jury Instns. (2006-2007) CALCRIM No. 763) unconstitutionally precludes the jury from considering mental or emotional disturbance that is less than “extreme” in mitigation of penalty. We repeatedly have rejected this contention, explaining that section 190.3, factor (k), the so-called catchall provision, is the statutory factor under which “ ‘ “consideration of nonextreme mental or emotional conditions” ’ ” clearly is permitted. (Stanley, supra, 39 Cal.4th at p. 963; see People v. Nicolaus (1991) 54 Cal.3d 551 , 586 [ 286 Cal.Rptr. 628 , 817 P.2d 893 ].)

Defendant contends the death penalty law is unconstitutional in failing to require that the jury be instructed on certain burdens and standards of proof as to aggravating and mitigating evidence. It is settled, however, that California’s death penalty law is not unconstitutional in failing to impose a burden of proof—whether beyond a reasonable doubt or by a preponderance of the evidence—as to the existence of aggravating circumstances, the comparative weight of aggravating and mitigating circumstances, or the appropriateness of a sentence of death. (Stanley, supra, 39 Cal.4th at p. 963; Brown, supra, 33 Cal.4th at p. 401; People v. Lenart (2004) 32 Cal.4th 1107 , 1136 [ 12 Cal.Rptr.3d 592 , 88 P.3d 498 ]; People v. Hillhouse (2002) 27 Cal.4th 469 , 510-511 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ].)

Defendant’s remaining contentions all are without merit. The jury need not determine the existence or nonexistence of every aggravating factor set out in section 190.3 before returning a verdict of death (People v. Cook (2006) 39 Cal.4th 566 , 603 [ 47 Cal.Rptr.3d 22 ]; People v. Prieto (2003) 30 Cal.4th 226 , 262-263 [ 133 Cal.Rptr.2d 18 , 66 P.3d 1123 ]), and need not prepare written findings identifying the aggravating factors upon which it relied (People v.

7. Violations of International Law

Defendant contends she was denied the “right to a fair trial by an independent tribunal and the right to protection against the arbitrary deprivation of life and the discriminatory application of a state’s criminal laws” established by customary international law and the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Declaration of the Rights and Duties of Man. We assume, without deciding, that defendant has standing to invoke provisions of the international charters and agreements upon which she relies. (See Sanchez-Llamas v. Oregon (2006) 548 U.S. 331 [ 165 L.Ed.2d 557 , 126 S.Ct. 2669 ]; Breard v. Greene (1998) 523 U.S. 371 , 377 [ 140 L.Ed.2d 529 , 118 S.Ct. 1352 ].) Defendant’s claim lacks merit, because she was not denied a fair trial or subjected to racial discrimination. “ 1 “International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.” ’ ” (People v. Cornwell (2005) 37 Cal.4th 50 , 106 [ 33 Cal.Rptr.3d 1 , 117 P.3d 622 ]; see People v. Harris, supra, 37 Cal.4th at p. 366.)

8. Denial of Automatic Application for Modification of the Death Verdict

Section 190.4 provides for an automatic motion to modify the jury’s death verdict. Pursuant to this statute, the trial court rules on the motion after independently reweighing the evidence supporting the aggravating and mitigating factors (§ 190.3) and determining whether in the court’s independent judgment this evidence supports the death verdict. (People v. Steele (2002) 27 Cal.4th 1230 , 1267 [ 20 Cal.Rptr.2d 432 , 47 P.3d 225 ].) This court then independently reviews the trial court’s ruling in light of the record, “but we do not determine the penalty de novo.” (Ibid.)

Defendant contends the trial court improperly failed to consider as mitigating factors the absence of criminal activity involving the attempted use of force or violence (§ 190.3, factor (b)) and the absence of any prior felony conviction (§ 190.3, factor (c)). Although the trial court recognized that the aggravating factors of prior felonies and violent criminal activity were not present, defendant urges that the court should have gone further and considered the absence of prior felonies or violent criminal activity as factors in mitigation. Defendant further contends the trial court improperly discounted

In denying the automatic motion for modification of the verdict, the trial court considered each factor set forth in section 190.3, finding that neither factor (b) nor (c) was present. The trial court further found that, although some evidence indicated that defendant committed the offense while under the influence of extreme mental or emotional disturbance (§ 190.3, factor (d)), the evidence was “insubstantial to justify a finding that this factor is present.”

With regard to section 190.3, factor (g), whether defendant acted under extreme duress or under the substantial domination of another person, the court acknowledged that the jury had heard evidence that defendant committed the murder under the substantial domination of the second man. After observing that defendant had multiple opportunities to implicate another person during the course of her confession to Investigator Giffin, but failed to do so until she was represented by counsel, and noting the utter lack of physical evidence to support the presence or participation of another person in the murder, the court concluded that “the evidence is grossly insufficient to even raise [the participation of another person in the murder] as a strong inference in this case, especially when you consider the numerous opportunities Mr. Giffin gave [defendant] on the videotape.”

With regard to section 190.3, factor (i), the age of the defendant at the time of the crime, the court acknowledged that the circumstance that the defendant was 18 years of age when she committed the crime might be a mitigating factor, but concluded that nonetheless there was no mitigation in this case because “you have to put the age in context of what her background shows.” The court observed that defendant was a high school dropout who had been on the streets and involved with the drug culture for a substantial period of time. The court concluded that in a “streetwise” sense, defendant was “more mature” than her age would indicate.

Finally, with regard to section 190.3, factor (k), concerning extenuating circumstances of the crime, the trial court considered defendant’s disadvantaged background, her early involvement with drugs, and her troubled relationships with her own father and with the fathers of her own children. The court found no mitigation, however, because although defendant was a young mother, she “chose to use drugs. She chose to engage in acts of prostitution on the streets. She chose to hang out in the area . . . where . . .

In reviewing the circumstances of the crime, the court remarked that the murder of Autumn Wallace was “one of the most senseless, brutal, vicious, callous killings that this court has ever seen.” The court concluded that not having found the presence of any mitigating factors, the “circumstances of the crime itself standing alone far outweigh any mitigating circumstances, if there are any, that are presented in this case.”

In ruling upon a motion to modify, “ ‘[t]he trial judge’s function is not to make an independent and de novo penalty determination, but rather to independently reweigh the evidence of aggravating and mitigating circumstances and then to determine whether, in the judge’s independent judgment, the weight of the evidence supports the jury verdict. [Citations.]’ ” (People v. Guerra (2006) 37 Cal.4th 1067 , 1161 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ], italics omitted.) The trial court is not required to find that evidence offered in mitigation does in fact mitigate. (People v. Scott (1997) 15 Cal.4th 1188 , 1222 [ 65 Cal.Rptr.2d 240 , 939 P.2d 354 ].)

In the present case, the record indicates the trial court considered all of the evidence offered in aggravation and mitigation. The court noted the evidence of defendant’s age and troubled background, her intoxication on the day of the murder, and her lack of felony convictions or history of violent criminal conduct. The court then independently weighed the evidence of aggravating and mitigating circumstances and found, as stated above, that the evidence of aggravating circumstances substantially outweighed that of mitigating circumstances. The court concluded that the findings of the jury were appropriate in light of the evidence presented. The trial court is not required to do more. (People v. Guerra, supra, 37 Cal.4th at p. 1163; People v. Lang (1989) 49 Cal.3d 991 , 1045 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ].)

9. Ruling on Motion for New Trial

Section 1181, subdivision 7 allows the trial court to modify a verdict and impose a lesser punishment without granting or ordering a new trial if the court concludes that a “verdict or finding is contrary to [the] law or [the] evidence.” Defendant asserts the trial court erred by failing to consider, in connection with her motion for a new trial, evidence that was not presented to the jury but which was known to the court. Defendant contends that because not all of the available mitigating evidence was presented to the jury, its determination that the aggravating factors outweighed the mitigating factors is “contrary to evidence.” Specifically, defendant claims that the trial court

The trial court did not err in its consideration of defendant’s motion for a new trial. Prior to ruling upon defendant’s motion, the court stated it had considered the information submitted with the probation officer’s report— information it appropriately had not previously considered in denying defendant’s motion to modify the verdict pursuant to section 190.4. Moreover, evidence contained in the probation officer’s report and supporting materials (documenting defendant’s drug abuse history, difficulty in school, and expressions of remorse) was duplicative of evidence presented at trial and thus already had been evaluated by the trial court in its ruling on defendant’s motion to modify the verdict. Finally, even if the trial court erroneously failed to consider evidence of defendant’s desire to plead guilty unconditionally in ruling upon defendant’s motion under section 1181, subdivision 7, such error would have been harmless, because abundant evidence of defendant’s remorse was presented at trial and was evaluated by the trial court in ruling upon defendant’s posttrial motions.

Although the trial court’s rejection of defendant’s motion for a new trial makes reference to its ruling denying defendant’s motion for modification of the verdict, we infer from the record of the hearing that the court properly discharged its separate duty to conscientiously consider the motion for new trial. The transcript of the hearing on the latter motion reveals that the court considered both the evidence presented at trial and the evidence contained in supplemental materials that had not been presented to the jury. The hearing transcript reveals that the court carefully considered defendant’s claims before ruling on the motion for new trial. (People v. Lewis and Oliver (2006) 39 Cal.4th 970 , 1063 [ 47 Cal.Rptr.3d 467 , 140 P.3d 775 ].) “Because no manifest or unmistakable abuse of discretion appears, we will not disturb the ruling on appeal.” (Ibid.)

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

Appellant’s petition for a rehearing was denied October 24, 2007.