People v. Rundle

The jury deliberated further for less than a full court day before returning a verdict of death.

B. Guilt Phase

1. Prosecution Evidence

At approximately 3:00 p.m. on Sunday, September 7, 1986, Caroline Garcia left her home in Roseville. She planned to go to the bus station to take a bus to Colfax, where she planned to visit her husband Trinidad Garcia, from whom she was separated. She was wearing a black skirt and a red jacket. Trinidad saw Caroline at a park in Colfax sometime near 9:00 p.m. She told him she was going to the house of Chris Paoli, a friend who lived in Colfax. She also called Kim Manzano, who lived with Garcia in Roseville, and told Manzano she was going to Paoli’s house and was planning to take a bus back to Roseville that night and would be home at approximately 1:00 a.m.

After arriving at Paoli’s house, Garcia told Paoli a drunk man had bothered her earlier that evening, but another person had intervened on her behalf. She said she expected that person to come to Paoli’s house to drive her back to the bus station. At approximately 10:45 p.m., defendant arrived in his car and Garcia left with him.

No one, other than defendant, reported seeing Garcia alive again.

On Monday, September 8, 1986, the day after Garcia disappeared, a motorist reported finding discarded clothing near a turnout on Interstate Highway 80 between Weimar Cross Road and Colfax. A California Highway Patrol officer responded to the scene and found a dark-colored denim skirt, a pair of black and purple women’s panties, and a blue and white striped

On September 16, 1986, another motorist reported finding a red blazer, a purse, and a wallet containing Garcia’s identification near a railroad crossing on Carpenter Road, a secluded area approximately two miles from Chris Paoli’s house in Colfax and six miles by road from where the skirt, underwear, and blanket had been found. Inside the purse was a bus ticket issued on September 7, 1986, for travel from Colfax to Roseville, a pipe commonly used to smoke marijuana, and an unopened package containing a condom. An extensive search of the area the next day failed to disclose any other evidence.

At trial, Kim Manzano testified that on September 7, 1986, Garcia was wearing the skirt, blouse, and jacket that were found. Manzano also identified the purse as the one Garcia took with her that day, and the panties as a pair Garcia had purchased the day before when she and Manzano were shopping. Defendant’s mother testified she had given defendant the blanket in May 1986 and that it did not have any red stains on it when she gave it to him.

Criminalist James Streeter examined the clothes and the blanket. He testified the clothing did not appear to be ripped or tom in any way, and was not stained with blood or any other bodily fluid. The blanket showed several bloodstained areas, in which there was a mixture of blood and a mucous material, most likely saliva, but no semen or seminal fluid. Based upon a comparison of the blood on the blanket and blood samples from Garcia’s parents, it was determined that the blood on the blanket was consistent with Garcia’s blood type.

In September 1986, defendant was employed as a general laborer by George Willson, a carpenter. The work involved physical labor, and defendant was strong for his size. Defendant did not show up for work on September 8 or 9, the days following Garcia’s disappearance.

On September 8, 1986, defendant told his ex-girlfriend Heather Smith that the authorities had been speaking with him about Garcia, and that they appeared to believe he had killed her. On the following day, defendant told his friend James Sciacca that he (defendant) was the number one suspect in Garcia’s disappearance because he was the last person seen with her. Defendant also had a chance meeting with Trinidad Garcia in Colfax on that day. Defendant mentioned he had given her a ride to the bus station the night she had disappeared. Trinidad insisted defendant go to the police to make a report, which defendant did. Defendant told the officers he had given Caroline Garcia a ride to the bus station, and had dropped her off after she declined his

Several days after Garcia’s disappearance, defendant and Sciacca went to a carwash, where defendant cleaned and vacuumed the interior of defendant’s car.

Defendant had two more interviews with the authorities, on September 11 and October 21, 1986, during which he provided essentially the same statement of events as above, except for adding that on the way to the bus station, they had stopped and smoked a small amount of marijuana Garcia had with her, and that defendant had asked Garcia to have coffee with him but she declined. Defendant denied he had anything to do with Garcia’s disappearance or had given her his blanket, and maintained he returned to the trailer where he was staying after dropping Garcia off that night. Defendant said a person named Bob who was staying at the trailer could verify that defendant had returned there that night, but defendant could not find Bob. He also told the officers “things had heated up” for him in Colfax because people thought he was involved in Garcia’s disappearance, and therefore he was avoiding the Colfax area.

On September 15 or 16, 1986, George Willson mentioned to defendant he had seen a search party looking for the “missing girl.” Defendant told Willson the authorities would not find anything, because they were “stupid,” adding they no longer were interested in him as a suspect in Garcia’s disappearance because someone else had been seen with her at the bus station and officers had found blood at her husband’s apartment. Defendant also said Garcia was a “slut” and a “sleep around,” as were most of the girls in Colfax.

On the evening of Thursday, October 10, 1986, Lanciann Sorensen and her friend Laura Yowell were at a friend’s house in Roseville, where they each consumed a beer. Later, they went to Yowell’s sister’s house, also in Roseville. Sorensen left alone sometime between 9:00 and 10:00 p.m., stating she was planning to hitchhike back to her mother’s house in Auburn. At approximately 10:00 p.m., Sorensen called her boyfriend, Matthew Sklansky, and said she was in a telephone booth near the freeway in Loomis. Sorensen sounded intoxicated, and told Sklansky she had been drinking alcohol and smoking marijuana. She said she was with a person she met that day named Dave, who lived in Colfax and with whom she had been hitchhiking. Sklansky had told Sorensen he wanted to see her that night, and Sorensen agreed to come to his house when she arrived back in Auburn, but also told him they could not have sexual intercourse because she was menstruating. Sorensen and Sklansky twice before had engaged in sexual intercourse together. Their conversation ended when Sorensen said she should go because

No one reported talking to or seeing Sorensen alive after this telephone call. Her mother reported her missing on Monday, October 13, 1986.

In mid-October Willson observed that defendant was not his usual energetic and well-groomed self. Eventually, on October 17, 1986, Willson noticed defendant was distracted and unable to complete a simple project. Defendant told Willson that “Violence is golden.” Willson sent defendant home for the day, and defendant did not work for Willson again, despite a well-paying assignment that was to start soon thereafter.

At the October 21, 1986 interview, defendant also was asked about Sorensen’s disappearance. He denied ever having met her, stating he had worked in Roseville on October 10, the day Sorensen disappeared, and had spent the evening in Colfax with James Sciacca, a friend. Sciacca testified, however, that he had breakfast with defendant on October 11, 1986, and defendant told him that the previous day he had traveled to Sacramento where he had sexual relations with a prostitute, and then hitchhiked back, receiving a ride from a newspaper delivery man.

After the interview on October 21, 1986, Sciacca drove defendant to Reno, Nevada. Defendant told Sciacca he had spoken to the officers earlier that day about Garcia’s disappearance, and asked Sciacca whether he knew how defendant could secure identification in order to assume a new identity.

On November 7, 1986, a motorist traveling on Interstate Highway 80 stopped at the Loomis exit to let his dog out and saw what appeared to be a human body in a culvert off the road. Because he was afraid, the motorist waited several days to report the sighting. Thereafter, on November 14, 1986, officers went to that location and found Sorensen’s body mostly covered with dirt and weeds in a culvert approximately six feet below the level of the road. Her body was completely nude, and her hands were tied behind her back with a pair of pants. The officers also found a blouse and a purse in the area. Sorensen’s mother identified the pants, blouse, and purse as belonging to Sorensen.

The pathologist who conducted the autopsy testified Sorensen was slightly over five feet tall and weighed approximately 110 pounds. Because of the advanced decomposition of her body, the pathologist was unable to determine conclusively the cause of death, although a likely cause, in his opinion, was asphyxiation, secondary to strangulation, based upon hemorrhages and damage to muscle and cartilage in the neck area. The decomposition also

Despite his earlier denials, defendant also admitted during the drive to Auburn that he killed Sorensen, providing the following details. He had met Sorensen at a mall earlier that day. Defendant had ingested LSD and was “really stoned.” Defendant killed Sorensen by strangling her “by a road.” He said, “It was all so fuzzy.” When asked whether he had sexual relations with Sorensen, defendant said, “I think so.” He stated he did not remember tying her hands, or exactly how he had returned to Colfax that night, although he remembered delivering newspapers along the way.

After arriving at the jail in Auburn and having dinner, defendant was interviewed by the authorities again, providing more details concerning the murder of Sorensen. Defendant said he and Sorensen were hitchhiking and were dropped off at the Loomis exit. Sorensen walked into town, returned about an hour later, and they then smoked marijuana together. Defendant began thinking about his difficulties with his family and became enraged. Sorensen thought defendant was “freaking out,” which made defendant more angry. He placed his hands on her shoulders and Sorensen swung at him, at which point defendant “blew up.” Defendant said he did not remember much after that point, but knew he engaged in sexual relations with Sorensen at some point, and ultimately strangled her because he was frightened. He also remembered covering the body with weeds and throwing away Sorensen’s purse before leaving the scene.

Teresa Jackson testified she introduced defendant to Garcia in July of 1986. According to the testimony of James Sciacca and Janet Spafford, defendant on several occasions prior to September 7, 1986, had asked Garcia out for a date, but Garcia had declined, once commenting that she thought defendant was “strange” or “weird.”

Teresa Jackson, Janet Spafford, and Heather Smith, all former girlfriends of defendant, testified they had seen defendant smoke marijuana, but never had seen him ingest LSD. George Willson testified that in July or August of 1986, when he and defendant were conversing about drug use, defendant said he did not consume LSD. James Sciacca testified, however, that defendant once ingested LSD in his presence.

Heather Smith visited defendant on several occasions in the Placer County jail after his arrest. During her last visit, Smith asked defendant why he killed

2. Defense Evidence

Defendant testified as follows: He met Garcia in June or July 1986, and they became friends. They twice went to Rollins Lake and smoked marijuana together, and once defendant invited Garcia to spend the night at the house where he was staying because she had no place to sleep. Defendant and Garcia never had sexual intercourse on these occasions, although they engaged in “deep kissing” during their visits to the lake. Garcia at that time did not want to be sexually involved with defendant or other men, because she was still in the process of divorcing Trinidad Garcia.

Contrary to what defendant confessed to the authorities, he testified very clearly remembering what happened on the nights he killed Garcia and Sorensen. After defendant picked up Garcia from Chris Paoli’s house on the night of September 7, 1986, Garcia inquired whether he had any marijuana. To avoid being detected, they went to the remote location of Carpenter’s Flat, parked, smoked marijuana, and talked. Garcia mentioned that her bus left at midnight. As Garcia began to speak about her difficulties with her husband, Trinidad, defendant became annoyed because he felt Garcia was nagging and overdramatizing her problems. Defendant began talking about his problems with his own family, but Garcia did not adequately recognize the seriousness of defendant’s troubles, which led to a heated discussion. After things calmed down, the two kissed for about 10 minutes. At some point, Garcia pulled away from defendant and again started talking about her problems with Trinidad. She said, “I can’t do this because of Trino.” They began to argue again about the relative seriousness of their personal difficulties, and Garcia again belittled defendant’s problems by stating they “don’t mean nothing,” telling him he “should just sit there and listen to her and keep [his] mouth shut.” This made defendant very angry and he, in rapid succession, punched Garcia in the face with his fist, lowered the back of the front seat in which she was sitting, and pushed her into the backseat of his car. At some point during these actions, Garcia said what had happened was all defendant’s fault. As Garcia was facedown in the backseat, defendant climbed on top of her, found a piece of wire on the floor of the car, wrapped the wire around Garcia’s neck, and strangled her. Defendant intended to kill Garcia when he put the wire around her neck, but at that point had no intention of having sexual relations with her.

When the blood came out of Garcia’s mouth, defendant stopped sodomizing the body, but continued again several minutes later after the bleeding ended. He eventually had an orgasm. About five to 10 minutes later, after again becoming aroused, he turned the body over and had vaginal intercourse until he had another orgasm. While defendant was having sexual relations with Garcia’s body, he tied her arms behind her back.

When he finished, defendant dressed, got out of the car briefly, then returned to the car, threw Garcia’s purse and jacket out the window, and drove away. Defendant drove around Colfax for approximately an hour and a half, during which time he went to his parents’ house, parked in the driveway and honked the horn, and also repeatedly drove past the Colfax police station—all while Garcia’s body was lying uncovered in the backseat of the vehicle. Defendant eventually disposed of Garcia’s body by throwing it down an embankment adjacent to a remote road, and rolled up Garcia’s clothes in the blanket and threw them from his car while en route to the nearby town of Weimar. Defendant did not know why he discarded the various items at different locations.

The next day, defendant returned to the location where he had discarded the body, but could not find it. Defendant proceeded there again on the following day, found the body, and pulled it up to the tree. He sat next to the body, thinking and talking to himself and to the body about his remorse at what had happened, how he hated his mother, and how Garcia’s actions had reminded him of his mother. Defendant returned to the body several times. After his last visit, defendant covered it with a piece of wood, rocks, and leaves.

On October 10, 1986, defendant hitchhiked to Sacramento. He ingested LSD during the trip, and smoked marijuana and consumed alcohol while there. He engaged in sexual activities with two prostitutes and then began

At some point, while defendant was lying on his side on the ground and Sorensen was next to him, she reached over and unbuttoned his pants, reached inside his underwear, grabbed his penis, and moved her head toward him in an attempt to orally copulate him. Defendant became infuriated because he did not want to be touched, and jumped up, grabbing Sorensen by the neck in the process. He held her off the ground, spun her around while shaking her violently, and then threw her down. When she did not move, defendant knew she was dead. He was not thinking clearly when he killed Sorensen; he was very angry because of her unexpected and unwelcome sexual advance.

After realizing Sorensen was dead, defendant stomped around the area for several minutes and punched a nearby fence. He then returned to the body and sat down next to it for approximately 10 minutes. Defendant thought about the Garcia incident and became sexually aroused. He undressed himself as well as Sorenson’s body, and sodomized and had vaginal intercourse with the body. During a second act of sodomy, defendant tied Sorensen’s arms behind her back with her pants. After having an orgasm, he moved the body 15 to 20 feet away, covered it with grass and weeds, and left.

The sexual activities defendant engaged in with Garcia’s and Sorensen’s bodies were more exciting than any prior sexual encounters he had ever had, because he had complete control of the victims. The act of tying the victims’ hands behind their back, even though they already were dead, was thrilling to him and was brought on by (and heightened) his feeling of total control over the two women.

Defendant testified that when he was eight or nine years of age and residing with his family in Charleston, South Carolina, his mother began

Defendant also saw his mother having sexual intercourse with a 17-year-old neighbor in South Carolina, Ron K., and learned she had exposed her naked body to, and had sexual relations with, other men who visited the family home or were crew members on trains that passed behind the family’s house in Georgia. This behavior occurred in each of the towns in which the family resided, and continued in Colfax until close to the time of the Garcia and Sorensen killings.

Defendant’s mother also was present one night when Ron K. tied a rope to a rafter, placed the rope around defendant’s neck, and kicked away the chair upon which defendant was standing. Defendant hanged by his neck for 10 to 12 seconds before Ron K. removed the rope. Defendant’s mother laughed while defendant was hanging.

After one final incident of molestation in Georgia when defendant was 15 years of age, he refused to participate further and began to stay away from home. Defendant’s absences caused problems with defendant’s father, who believed defendant merely was being rebellious. Defendant, however, felt he could not tell his father why he was avoiding home. When defendant was 16 years of age, he left home permanently after a severe argument with his father about defendant’s behavior.

Defendant moved often during the next year, eventually coming to Colfax. Thereafter, defendant’s family, which included defendant’s two younger brothers and a younger sister, also moved to Colfax, causing more problems because defendant’s parents did not want him residing near them. Defendant was not welcome in their home, and his parents spread rumors about him to make his fife in Colfax difficult. They twice paid him to move away, which he did, although he returned in May 1986 and decided to remain there despite his difficulties.

Defendant testified his mother’s molestation of him caused him to feel angry and defenseless. He also later became confused when he reached sexual maturity and sometimes felt pleasure during the sexual activities he engaged in with his mother. His mother’s exhibitionism and her affairs with Ron K. and other men, which were widely known by other persons in the several communities in which they resided, angered and embarrassed defendant, especially when his friends or others mentioned the subject to him.

Defendant denied having said anything to Heather Smith about the killings or about having “had a good thing going while it lasted.” He admitted he had

Philip Bodily, who resided near defendant from 1975 to 1977 in South Carolina, testified that he, too, observed defendant’s mother having sex with Ron K. He never saw defendant’s mother engage in sexual behavior with defendant, but testified she did act in a sexually provocative manner toward Bodily on two occasions and Ron K. teased defendant about his mother’s sexual activities.

The parties stipulated that James and Sara Jo Ennis were defendant’s neighbors when his family resided in Georgia, and would testify that defendant’s mother often stood nude at the rear door of the house and sometimes would open and close her blouse while trains were passing on the tracks behind the house, but they did not see her board any of the trains.

Jeffrey Miner and Ronald Ballard testified that, on approximately five or 10 occasions over a two-month period in 1985, a woman standing at a window in defendant’s grandfather’s house in Colfax exposed her breasts by lifting up her shirt as Miner and Ballard drove by on the road in front of the house. Once, the woman exposed herself to Miner as he drove by, and then about 15 to 20 minutes later Miner and Ballard drove on a dirt road approximately 50 yards behind the house in order to avoid seeing the woman, but she came out

Dr. Richard Yarvis, a psychiatrist employed by the defense, had treated victims of incest and molestation. He met with defendant for a total of approximately 20 hours. According to Dr. Yarvis, boys who are victims of incest committed by their mothers are more likely to become psychotic than girls who have incestuous relationships with their fathers. Both types of victimization, however, have “disastrous” impacts upon the victims. Victims of parental incest often have significant feelings of guilt, despondency, anxiety, and anger created by their powerlessness at being compelled by a parent to engage in behavior that the victim knows is wrong. Dr. Yarvis considered it very unlikely that a victim of parental incest would be “normal” in the psychological sense. Rather, the three likely outcomes were severe psychosis, in which the victim would be unable to distinguish reality from fantasy; less severe mental illnesses, such as chronic depression and drug and alcohol abuse; and antisocial behavior, such as criminal activity and sexual promiscuity.

During their meetings, defendant described to Dr. Yarvis an unpleasant childhood in which his father, who was in the Navy, was mostly absent and was often physically abusive to defendant when he was home. Defendant told Dr. Yarvis that his mother was sexually provocative, promiscuous, and an exhibitionist, and carried on an incestuous relationship with defendant for several years. Although Dr. Yarvis did not believe defendant was psychotic, defendant exhibited low self-esteem and nervousness at close physical proximity to others, and had a serious temper with a “short fuse.” Defendant unreasonably interpreted a remark made by Dr. Yarvis during one interview, and on another occasion defendant fell out of his chair and became so angry, distressed, and embarrassed that Dr. Yarvis became mildly frightened that defendant might become violent.

Dr. Yarvis testified it is rare for a woman to be an exhibitionist, and that exhibitionists rarely commit more active sexual crimes. He also stated that necrophilia, or sexual activity with dead bodies, is quite abnormal and rare, and he had no clinical or research experience in that area.

Defendant re-called his mother as a witness for the defense. She denied, however, that she had an incestuous relationship with defendant, that she had sexual relations with Ron K. or any train crew members, or that defendant had been subjected to a hanging in her presence. She denied ever having

3. Prosecution Rebuttal Evidence

The prosecution re-called the lead investigating officer, who testified that photographs of defendant’s vehicle showed that the lever that would lower the back of the driver’s seat was on the outside of the seat, near the door. The officer did not photograph or examine the lever for the front passenger seat, and did not know whether the front seats would fully recline.

C. Penalty Phase

1. Prosecution Evidence

a. Murder of Elizabeth Lactawen

After defendant was arrested, officers from the Sacramento County Sheriff’s Department interviewed him concerning a series of other homicides in the Sacramento area. During the first interview, defendant waived his Miranda rights and denied involvement in any other murders. During a second interview, defendant continued to deny any role in the murders the officers were investigating, but confessed to another murder that had occurred in the City of Sacramento. Investigators from the Sacramento Police Department were summoned and they interviewed defendant for a third time regarding the murder of Elizabeth Lactawen.

On May 10, 1986, a homeless man reported finding a dead body near the Sacramento River in an area overgrown with vegetation and known as a homeless encampment. Responding police officers found a woman’s body, mostly covered by plastic and cardboard. The unclothed body of Elizabeth Lactawen was not yet cold to the touch. Lactawen was 24 years of age, was four feet five inches tall, and weighed 76 pounds. A cloth gag was tied around her mouth, and her arms were tied behind her back with an electrical cord. There were bruises around her neck and left breast, and blood and other fluids coming out of her nose. The pathologist who performed the autopsy believed Lactawen had been strangled with a thin rope or wire.

There also was evidence of sexual assault, including blood clots in the vagina and on the cervix and bruising on Lactawen’s inner thighs, injuries which in the pathologist’s opinion could have been caused by someone forcibly spreading open her legs and raping her. The bruises were inflicted

On April 24, 1979, Brian M. and Cori H. were riding their bikes when they came across a person jogging who said he knew of good trails for bike riding. During his testimony Brian identified defendant as this person. The boys agreed to follow defendant, who led them to the bottom of a 15- to 20-foot-deep pit in a very remote area. Once there, defendant said he had a gun in his pocket and threatened he would either shoot the boys or crush them with a rock if they did not do what he said. Defendant ordered the boys to disrobe and then told Cori to lie on the ground and Brian to “fuck him.” When Brian said he did not understand, defendant told him to lie on top of Cori, which he did. Defendant then told them to get up, took out his penis, and had the boys orally copulate him until he ejaculated. He then left with the boys’ clothes and told them not to leave the pit for 15 minutes or he would shoot them, and not to tell anyone about what had happened or he would find them and kill them. After the boys left the pit, they found their clothes nearby, returned home, and reported what had happened. Later, Brian was taken to a house, where he identified defendant as the perpetrator.

c. Marital Abuse

Defendant’s ex-wife testified she married defendant in March of 1984 and separated from him in July of 1985. Defendant was physically violent toward her during the marriage. He often struck her, once pushed her from a moving car, and on one occasion during an argument threw her down and pounded her head on the floor approximately 20 times. On many occasions defendant also physically forced her to engage in oral copulation and sodomy. Defendant continued with these acts even though on various occasions she told him to stop, vomited while his penis was in her mouth, and tried to keep away from him.

d. Psychiatric Testimony

Dr. Irwin Lyons, a psychiatrist, interviewed defendant on behalf of the district attorney’s office soon after defendant’s arrest, in order to evaluate defendant’s mental status. Defendant described the incidents with Rebecca Y., Brian M., and Cori H., as well as the Garcia and Sorensen murders. Defendant did not mention that Sorensen had attempted to orally copulate him, or that his mother sexually molested him as a child. Defendant said his family rejected him, and his problems with his family caused him to have attacks of extreme rage during which he could not control himself. Dr. Lyons did not believe defendant suffered from any psychosis, but concluded he did

2. Defense Evidence

Dr. Richard Thomas, a psychologist, treated defendant in Idaho after his sexual assault on Rebecca Y. In his opinion, defendant at that time had an “explosive personality disorder,” which commonly involves overreacting to a situation, blaming others, and making excuses for one’s difficulties and inappropriate actions. Defendant was not psychotic or schizophrenic.

At counseling sessions, defendant refused to speak about the assault, a circumstance that concerned Dr. Thomas because defendant also said he enjoyed inflicting pain upon others and, in the doctor’s opinion, had a “real high potential ... to act out.” Defendant’s mother encouraged his refusal to speak about the incident, thus negatively affecting defendant’s ability to accept responsibility and obtain any benefit from treatment. Dr. Thomas felt defendant’s family had problems in communicating and that defendant’s mother was overwhelmed by having to care for the four children during the father’s frequent, and at times lengthy, absences. Dr. Thomas, having provided marriage counseling to defendant’s parents after defendant was sent to a state juvenile facility, believed they had made progress in addressing their problems.

Defendant’s aunt and uncle, George and Bonnie Mae Russell, testified that defendant was a “bright, alert” child and was “full of promise and potential.” According to them, defendant’s mother singled defendant out for discipline and often verbally abused him, never acting in a motherly way toward him. George testified he saw defendant’s mother attempt to stab his father during a fight that occurred in defendant’s presence. When defendant was no more than a year and a half old, George also observed what he thought was evidence of sexual abuse upon seeing defendant’s penis. In George’s opinion, defendant’s mother’s denial of abuse was insincere, and she often lied. George viewed defendant as a victim of his mother’s abusive parenting and of dealers who supplied defendant with drugs.

Several of defendant’s past employers testified he was a hard-working, conscientious, and trustworthy employee. Deborah Peters, with whom defendant resided in Nevada after the murders, testified he was nice and helpful and that she would not have expected him to be charged with murder. Sherry Couzens, an instructor in a high school equivalency program who met with defendant in jail once a week for approximately two months, testified defendant completed

A defense investigator testified defendant’s ex-wife said defendant’s relationship with his family was very strained and she never saw them act affectionately toward him. She also said defendant told her his mother was not faithful to his father, and his mother had strange sexual “quirks.” Defendant’s ex-wife told another investigator she wanted to “pull the switch” on defendant and have a party to celebrate.

3. Prosecution Rebuttal Evidence

The prosecution’s investigator testified that George Russell, defendant’s uncle who testified on defendant’s behalf, stated he felt very strongly that the death penalty should not be imposed in this case because defendant was not fully responsible for the crimes. Additionally, Russell earlier told the investigator he was unaware of any sexual conduct between defendant and his mother; Russell had not mentioned observing any evidence of sexual abuse when defendant was an infant or of defendant’s being physically disciplined by his parents.

Donald Rundle, defendant’s brother, testified that defendant was not treated differently from any of his siblings, was not subjected to violent discipline or verbal abuse, and refused to follow the family’s rules. Donald saw marijuana in defendant’s possession, but never observed other drugs. Donald told a defense investigator that after defendant was arrested for the murders, their father was so upset that “if [defendant] was to get hit by a car in front of Dad, Dad would turn around and walk away sooner than help him.”

4. Defense Surrebuttal Evidence

The defense investigator testified that Donald had said defendant’s father would rather run over defendant with a car than stop for him, and that this statement referred to the father’s attitude before defendant was arrested for the murders.

A. Sufficiency of Appellate Record

Defendant contends his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution to a record adequate to permit meaningful appellate review were violated by the trial

Defendant, however, has not established that any hearing actually occurred that morning that could have been transcribed. The trial court merely directed defense counsel to contact the court in the morning before proceedings began and report to the court defendant’s decision so the jury and the prosecution could be notified when proceedings would resume. The court then confirmed on the record that defendant no longer wished to absent himself from the proceedings, which presumably is what defense counsel reported earlier that morning. Unlike other instances in which the record explicitly mentions off-the-record discussions, here there is no indication anywhere in the record, including in the settled statements on appeal, that any discussion between counsel and the court took place regarding defendant’s ultimate decision to attend the proceedings. Defendant’s suggestion a meeting occurred at which such a discussion transpired is no more than unsupported speculation, and he has not shown the existing record is inadequate in this respect.

2. Jury Instructions

In contrast to the situation discussed above, it is undisputed that a number of informal meetings concerning proposed guilt and penalty phase jury instructions were held off the record and hence were not transcribed. The trial court instead afforded defendant the opportunity to place on the record after the instructions were finalized any objections to the jury instructions to be given or requests for other instructions that were not resolved to his satisfaction during the conferences. As the trial court and the parties later acknowledged, this procedure was erroneous. Section 190.9, subdivision (a)(1), requires that all conferences and proceedings in a death penalty case must be conducted “on the record with a court reporter present.” We previously have held, however, that such an error is not reversible per se; instead the defendant must demonstrate prejudice. (See People v. Freeman (1994) 8 Cal.4th 450 , 509 [ 34 Cal.Rptr.2d 558 , 882 P.2d 249 ]; People v. Cummings (1993) 4 Cal.4th 1233 , 1333, fn. 70 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) We decline defendant’s request to reconsider this holding.

“[S]tate law entitles a defendant only to an appellate record ‘adequate to permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective

When a defendant challenges the admission of his or her statements on the ground they were involuntarily made, the prosecution must prove by a preponderance of the evidence the statements were, in fact, voluntary. (People v. Guerra (2006) 37 Cal.4th 1067 , 1093 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ] (Guerra).) A statement is involuntary if it is “not ‘ “the product of a rational intellect and a free will.” ’ ” (Mincey v. Arizona (1978) 437 U.S. 385 , 398 [ 57 L.Ed.2d 290 , 98 S.Ct. 2408 ] (Mincey).) The court in making a voluntariness determination “examines ‘whether a defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.” (Dickerson, supra, 530 U.S. at p. 434.) Coercive police tactics by themselves do not render a defendant’s statements involuntary if the defendant’s free will was not in fact overborne by the coercion and his decision to speak instead was based upon some other consideration. (Colorado v. Connelly (1986) 479 U.S. 157 , 167 [ 93 L.Ed.2d 473 , 107 S.Ct. 515 ] (Connelly); People v. Maury (2003) 30 Cal.4th 342 , 404-405 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ] (Maury).) The determination whether the authorities improperly coerced a defendant’s statements involves an evaluation of the totality of the circumstances, including the nature of the interrogation and the circumstances relating to the particular defendant. (Dickerson, supra, 530 U.S. at p. 434.)

The same inquiry applies when a court evaluates the voluntariness of a Miranda waiver. (Connelly, supra, 479 U.S. at pp. 169-170.) Such a waiver must be knowingly and intelligently made, meaning that the defendant must have been capable of freely and rationally choosing to waive his or her rights and speak with the officers. (People v. Frye (1998) 18 Cal.4th 894 , 988 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye).)

Even if a defendant voluntarily has waived his or her Miranda rights to remain silent and to have counsel present, the defendant later may revoke the waiver. In such a case, “once a defendant has indicated an intent to assert his right to remain silent or to counsel, all further attempts at police interrogation should cease.” (People v. Jennings (1988) 46 Cal.3d 963 , 977 [ 251 Cal.Rptr. 278 , 760 P.2d 475 ].) “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or

On appeal, we review independently the trial court’s legal determinations of whether a defendant’s statements were voluntary (Guerra, supra, 37 Cal.4th at p. 1093), whether his Miranda waivers were knowingly, intelligently, and voluntarily made (People v. Mayfield (1993) 5 Cal.4th 142 , 172 [ 19 Cal.Rptr.2d 836 , 852 P.2d 331 ] (Mayfield)), and whether his later actions constituted an invocation of his right to silence (People v. Gonzalez (2005) 34 Cal.4th 1111 , 1125 [ 23 Cal.Rptr.3d 295 , 104 P.3d 98 ]). We evaluate the trial court’s factual findings regarding the circumstances surrounding the defendant’s statements and waivers, and “ ‘accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.’ ” (Ibid.; Guerra, supra, 37 Cal.4th at pp. 1092-1093.)

1. Invocation of Right to Silence at First Interview

Defendant first contends he invoked his right to remain silent at the conclusion of the first interview with the Placer County officers at the Carson City jail when he told them he wanted to stop the interview because he had a headache and wished to return to his cell. Defendant never raised this claim in the trial court. He filed only a generic written motion requesting the suppression of all statements made to the authorities, without any discussion of which particular grounds for suppression existed; indeed, his attorney conceded after the first suppression hearing that there was no basis to challenge the admission of the statements made by defendant to Placer County officers on grounds of involuntariness, and never mentioned an invocation of the right to silence. No further testimony or argument regarding an invocation of the right to remain silent during the interviews conducted by the Placer County officers was offered at the second hearing, and the trial court made no finding regarding whether defendant invoked his right to silence at the conclusion of the first interview.

It was not until defendant was asked somewhat leading questions on redirect examination that he testified his “principal motivation” for speaking to Dr. Lyons was his desire to receive help from him. Even if this claim is true, it does not establish that defendant’s decision to speak with Dr. Lyons was the result of any coercive activity by Dr. Lyons, as opposed to defendant’s internal beliefs and desires.

Defendant argues on appeal, however, that the very circumstances of the interview were improperly coercive because, prior to meeting Dr. Lyons, the officers had told defendant they had arranged for psychological help for him. This argument, however, is refuted by the evidence in the record. Dr. Lyons testified he repeatedly told defendant he was not meeting with him to provide psychiatric help, and defendant, in fact, understood this and did not expect help from Dr. Lyons, but rather expressed his desire for future psychological help in a general sense. Thus, any misapprehension defendant initially may have had regarding Dr. Lyons’s role and what defendant might gain from speaking with him would have been dispelled during the interview. There is no evidence in the record supporting defendant’s claim that he did not knowingly, intelligently, and voluntarily waive his Miranda rights before speaking with Dr. Lyons, or that his statements were otherwise involuntary because of improper coercion.

4. Total Length of Interrogations

Defendant makes an additional claim on appeal that was not raised below: he asserts his statements to the officers concerning the Lactawen murder and to Dr. Lyons were involuntary because of the “extensiveness of the interrogations.” Defendant stresses the total amount of time he was interrogated on the day he was transferred from Nevada to California. (See Mincey, supra, 437 U.S. 385 ; Spano v. New York (1959) 360 U.S. 315 , 322 [ 3 L.Ed.2d 1265 , 79 S.Ct. 1202 ].) Again, this claim was not raised or addressed in the trial

C. Guilt Phase Claims

1. Assertedly Erroneous Evidentiary Rulings

a. Admission of Defendant’s Suppression Hearing Testimony During Cross-examination at Trial

Before defendant testified at the hearing on his motion to suppress his statements to the officers, his counsel clarified that defendant was making a “limited waiver” of his right not to be called as a witness, in that he would not be testifying as to the substance of any of his statements, but only regarding his Miranda waivers and the voluntariness of his statements. During cross-examination at the suppression hearing, the prosecutor asked defendant whether he had spoken with the officers at the Carson City jail and given them a “full statement” concerning the Garcia killing. When defendant answered that he had not given them a full statement, defense counsel objected and moved to strike the answer as nonresponsive, further objecting to the question because “to the extent that the question calls for anything substantive, it is beyond the scope of the limited waiver of self-incrimination.” The court struck the answer and asked the prosecutor to rephrase the question. The court also advised defendant to answer the prosecutor’s questions “without saying the actual things that you said.” Soon thereafter, the following questions and answers were exchanged:

“Q [by prosecutor]: Were you cooperating with [the officers] because you thought that that was the right thing to do and you were going to just tell the truth?

“A [by defendant]: I was sure that’s what you do when you are in that position. I had to do it before.

“Q: Did you decide to talk to them yourself? Did you make that decision that ‘I’ll talk with them because I am going to tell them the truth’?

“A: Well, they come and asked me. They said they had all the evidence, so I—yes, I guess so.

“Q: Okay. You decided on your own to talk to them, is that right?

“A: After they told me they had all the evidence, yes.

“Q: Okay. And did you want to tell the truth at that interview at the jail yourself?

“A: I did.”

At that point defense counsel objected to the prosecutor’s question as “substantive.” The trial court described the question as “mixed” and stated, “I think the question [sz'c] will be admitted not for the substantive notion of wanting to tell the truth—” at which point the prosecutor interjected, stating the answer was offered “for his state of mind.” The court then stated, “Yes. Accepted solely for that purpose, limited to it.” The prosecutor then followed up with a reiteration of the question whether defendant wanted to tell the truth to the officers, and defendant answered, “I didn’t walk in voluntarily. I figured that that’s what you do when you are caught by the law. Tell them what you know.”

At trial, defendant testified that the version of the Garcia and Sorensen killings he gave the officers during the interviews—that he engaged in sexual activities with the victims and strangled them because he was frightened— was not true, primarily because he now was stating that he had strangled the victims in fits of rage and did not decide to engage in sexual activities with them until after they were dead. He also testified he did not want to tell the officers what really happened because the truth was embarrassing; he did not want to talk about his problems with his mother; he thought it would be worse for him if he gave them a true account, and he thought that giving the untrue versions would cause the officers to stop questioning him.

Defense counsel then expressed concern that the only way to avoid misleading the jury would be to disclose the context in which defendant’s prior testimony was given, but telling the jury that the hearing concerned defendant’s motion to suppress those statements would unduly prejudice defendant. Accordingly, defense counsel argued, the testimony should be excluded under section 352 of the Evidence Code. The trial court, although not convinced disclosure of the full context of the testimony would be prejudicial, agreed that disclosure of these circumstances was unnecessary and could be avoided through certain precautions, and therefore permitted the prosecutor to make use of the prior testimony during cross-examination.

The prosecutor then cross-examined defendant primarily by reading the suppression hearing questions and answers and asking defendant whether his testimony at the hearing—that he wanted to tell the truth to the officers—was itself truthful. Defendant responded essentially that he wanted to tell the truth in part—that he killed Garcia and Sorensen—but did not want to tell the whole truth, for example, the details of the murders. Defendant did not request any clarifying admonition to the jury or revisit his prior testimony during the subsequent redirect examination.

On appeal, defendant contends that the trial court erred by allowing the prosecutor to impeach him with this testimony from the suppression hearing, and that this error denied him his “rights to a fair trial, confrontation, due process, effective assistance of counsel and a reliable and non-arbitrary sentencing process under the Fifth, Sixth, Eighth and Fourteenth Amendments.” Defendant argues use of the prior testimony was improper because it was limited specifically to his state of mind and should not have been used to impeach his testimony about the actual truthfulness of his confessions. Allowing the prosecutor to do so, defendant contends, changed “the rules in the middle of the game,” depriving him of a fair trial and effective assistance

During the cross-examination of Lanciann Sorensen’s mother, Stephanie Bradish, defense counsel inquired whether she “had any evidence that Lanciann was sexually active at about the time of her disappearance.” The prosecution objected on relevance grounds. A sidebar discussion was held, at which the defense made an offer of proof that Bradish found a book containing a list of men or boys with whom Sorensen had sexual relations. Defense counsel argued this evidence showed Sorensen was sexually active and therefore it was more likely she made the supposedly unwelcome sexual advance toward defendant that caused him to become enraged and strangle her. The trial court sustained the prosecutor’s objection, subject to revisiting the issue outside the presence of the jury. At the following noon recess, defendant clarified his offer of proof, contending a list of the names and ages of 16 males found on a page in Sorensen’s address book was a list of her sexual partners, and a police report prepared by Officer Valerie Miller, who was investigating the initial missing persons report, mentioned that Bradish told Miller that Sorensen “kept a list of men she slept with.”

Bradish and Officer Miller then testified outside the presence of the jury regarding the list. Bradish said she did not remember telling Miller there was a list of men with whom Sorensen had had sexual relations. In fact, Bradish stated she had no information about Sorensen’s sexual activity in general or about the meaning of the list. Bradish did not find the address book until after Sorensen was missing, and Sorensen never had mentioned a list of individuals with whom she had had sexual relations. In Bradish’s opinion it was equally likely the list was, or was not, a list of Sorensen’s sexual partners.

Officer Miller testified that after the missing persons report was filed, Bradish frequently furnished the officers with the names of individuals who might have had information concerning Sorensen’s whereabouts. At some point there was a discussion of Sorensen’s boyfriends and sexual partners, which Miller found noteworthy because Sorensen was a minor. Miller did not know where Bradish had obtained her information, but was under the impression Bradish “was working off some reference to guide us.” It was Miller’s understanding that a list of Sorensen’s boyfriends existed, and some of the names on this list were those of persons with whom Sorensen had had sexual relations. Miller never saw an actual list of names, and did not recognize the list of 16 names in Sorensen’s address book as a list of boyfriends.

The trial court found that, even assuming the list was admissible under a hearsay exception and did not constitute prohibited character evidence, defendant had not established a sufficient foundation for its admission. The

Dr. Yarvis’s answer to the more abstract question concerning whether incest “tends to run in families” was based upon the equivocal opinion discussed in his prior response, not his knowledge of any separate statistical analysis of the frequencies of incest within families. Thus, his response, “what you’ve just said is probably correct,” was merely a restatement of the prior answer in a slightly different context and did not add independent weight to the testimony.

On appeal, defendant cites other evidence of the asserted correlation, but we evaluate the trial court’s exclusion of the proffered evidence based upon the evidence before the court when it made its decision. (People v. Fairbank (1997) 16 Cal.4th 1223 , 1249 [ 69 Cal.Rptr.2d 784 , 947 P.2d 1321 ] [“Of course, we cannot consider on appeal evidence that is not in the record.”].) Defendant also cites, for the first time on appeal, the opinion of the Supreme Court of Minnesota in State v. Cermak (Minn. 1985) 365 N.W.2d 238 (Cermak), in which the court rejected the appellant’s challenges, including lack of foundation, to an expert’s testimony regarding the “intergenerational” nature of incest. That case, however, is distinguishable and only serves to reinforce our conclusion here.

In Cermak, the expert testified concerning her own extensive research into (and treatment of) families affected by incest, which at that time had spanned several years and included her publication of a demographic study on the characteristics of offenders, victims, and spouses. She unequivocally expressed an opinion that incest was a learned behavior that was passed from

Under California statutory law, section 1043, subdivision (a) provides that “[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.” Although, pursuant to section 1043, subdivision (b)(2), a felony trial that has commenced generally may continue if the defendant subsequently is voluntarily absent, this exception does not apply in capital cases. (§ 1043, subd. (b)(2).) Similarly, section 977, subdivision (b)(1) requires, in part, that defendants charged with a felony must be present “during those portions of the trial when evidence is taken before the trier of fact.” Under that statute, a defendant is not permitted to waive his or her presence at that stage of the proceedings. (§ 977, subd. (b)(1); see also People v. Weaver (2001) 26 Cal.4th 876 , 967-968 [ 111 Cal.Rptr.2d 2 , 29 P.3d 103 ] (Weaver).) Thus, under the statutes, a capital defendant generally must be present during the trial when evidence is taken. A defendant seeking reversal of a judgment based upon statutory error, however, must demonstrate prejudice under Watson, supra, 46 Cal.2d at page 836—that it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error. (Weaver, supra, 26 Cal.4th at p. 968.)

After defendant testified, defense counsel announced they would re-call defendant’s mother as a witness in order to examine her concerning the claimed incestuous relationship she had with defendant and about her exhibitionism. Outside the presence of the jury, defense counsel notified the court that defendant was “experiencing extreme stress at the prospect of hearing his mother testify concerning these subjects,” and instead wished to voluntarily absent himself during her testimony. Counsel stated they had advised defendant of his right to be present and his right to waive that right, and of the possible advantages and disadvantages of his not being present. The court then directly questioned defendant as to whether he had sufficiently discussed the matter with his attorneys and still wished to waive his presence. Defendant said he had, and wanted to absent himself from that testimony.

The trial court, finding defendant knowingly and voluntarily had waived his right to be present, granted his request to be absent. Before defendant’s mother testified, the court explained to the jury that due to the nature of the expected testimony, the court had granted defendant’s request to exercise “his right” to be absent during the testimony. Defendant returned to the courtroom after his mother completed her testimony.

Defendant first contends that in a capital case the defendant’s presence during the taking of testimony is so fundamental to the fairness of the

Defendant correctly contends that despite his valid waiver of his constitutional right to be present during the testimony in question, his absence violated sections 977 and 1043. We must stress that a defendant’s statutory ability to waive his presence in a capital case is more circumscribed than the associated ability to waive his constitutional right. As we previously have observed, “ ‘[t]he Legislature evidently intended that a capital defendant’s right to voluntarily waive his right to be present be severely restricted.’ ” (Weaver, supra, 26 Cal.4th at p. 968.)

Even assuming defendant has not forfeited his appellate claim of statutory error by failing to raise the claim in the trial court (cf. People v. Vera (1997) 15 Cal.4th 269 , 276-281 [ 62 Cal.Rptr.2d 754 , 934 P.2d 1279 ] (Vera) [claim of deprivation of statutory right to jury trial on prior-prison-term sentence enhancement was not a claim of the deprivation of a fundamental constitutional right that may be raised for the first time on appeal]), defendant nonetheless has not demonstrated that such statutory error warrants reversal, because it is not reasonably probable that without the error, the result of the trial would have been more favorable to him. Defendant admitted killing the victims, and the jury rejected his version of the events—that he did so in uncontrolled fits of rage and did not form the intent to have sexual relations with his victims until after they were dead—in less than one full day of deliberations. In short, the guilt phase evidence against him was overwhelming. Although, unlike the situation in Weaver, the proceedings as to which defendant was absent involved the testimony of a live witness, defendant already had testified on the subjects about which his mother was to be examined. Indeed, she was asked primarily whether defendant’s and other witnesses’ testimony was true, and she responded in the negative. Defendant’s attorneys obviously were quite familiar with what defendant possibly

3. Asserted Insufficiency of the Evidence

a. Evidence of Attempted Rape of Sorensen

At the close of the prosecution’s case-in-chief, defendant moved to dismiss, under section 1118.1, the charge of attempted forcible rape of Sorensen and the associated attempted-rape felony-murder charge and special circumstance allegation on the ground of insufficiency of the evidence. The trial court denied the motion. On appeal, defendant again contends the evidence was legally insufficient to support his convictions and the special circumstance finding. He is incorrect.

Our role in reviewing such a challenge is limited. “In reviewing a challenge to the sufficiency of the evidence under the due process clause of the Fourteenth Amendment to the United States Constitution and/or the due process clause of article I, section 15 of the California Constitution, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Cole (2004) 33 Cal.4th 1158 , 1212 [ 17 Cal.Rptr.3d 532 , 95 P.3d 811 ].) “The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978 , 1053 [ 99 Cal.Rptr.2d 1 , 5 P.3d 68 ] (Kraft).)

Defendant’s challenge to the sufficiency of the evidence of the attempted rape of Sorensen consists primarily of viewing various items of evidence in isolation and arguing each could be viewed as pointing to his innocence of the charge rather than his guilt. Even if defendant’s premise is correct, this is not persuasive on the issue we must address: whether no rational juror could have drawn the opposite inference from the evidence as a whole. Defendant also cites several past opinions in which we and the Courts of Appeal have found evidence insufficient to support a conviction for a crime involving sexual assault. Reviewing the sufficiency of evidence, however, necessarily calls for analysis of the unique facts and inferences present in each case, and

Defendant argues that even if the evidence adequately supports a finding he attempted to commit some sexual assault upon Sorensen, insufficient evidence existed for the jury to determine he specifically intended to have vaginal intercourse, which, as we stated in People v. Holt (1997) 15 Cal.4th 619 , 676 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ] (Holt), is required for the commission of a rape. He relies upon our decision in People v. Raley (1992) 2 Cal.4th 870 , 889-891 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ] (Raley), in which we concluded the evidence was insufficient to sustain a guilty verdict on a charge of attempted forcible oral copulation. As mentioned above, however, the facts of other cases, such as Raley, are not particularly helpful in evaluating the sufficiency of the evidence in this case. Here, the victim was found in a remote area, dead, nude, and bound; defendant admitted having had sex with her; evidence of the nature of the sexual assault was inconclusive due to the passage of time before her body was discovered; and defendant confessed to raping and killing another young woman in similar circumstances not long before this incident. (See, e.g., People v. Holloway (2004) 33 Cal.4th 96 , 138-139 [ 14 Cal.Rptr.3d 212 , 91 P.3d 164 ].) That defendant also may have had the intent to sodomize the victim, as one might surmise from his trial testimony, does not mean the jury rationally could not have inferred from the evidence as a whole that he had the specific intent to rape Sorensen and took a direct step beyond mere preparation toward effectuating his intent. Such a finding was not based upon suspicion and speculation, as defendant argues, but upon reasonable inferences from the evidence and, as such, was supported by legally sufficient evidence. Because sufficient evidence supported the jury’s verdict of guilt of the attempted rape of Sorensen, we reject defendant’s claim that the associated first degree murder conviction must be reversed and the attempted-rape special circumstance finding set aside.

b. Evidence of Premeditation and Deliberation

Defendant next claims the evidence was insufficient to uphold the jury’s first degree murder verdicts on a theory of premeditated and deliberated

The court correctly instructed the jury on theories of both first degree felony murder and premeditated, deliberated murder. We previously have concluded there was sufficient evidence to support a finding that defendant attempted to rape Sorensen, and defendant has not challenged on appeal the sufficiency of the evidence supporting his conviction for attempting to rape Garcia. Indeed, the evidence of the latter crime, which is strikingly similar to that supporting the Sorensen verdict (and, in view of defendant’s admissions to the officers, even stronger), is sufficient to support the verdict on the Garcia murder charge. In addition, adequate evidence existed for a rational jury to find the murders were committed during the commission of the attempted rapes, so as to support felony-murder convictions under section 189. (See People v. Hernandez, supra, 47 Cal.3d at p. 348 [“the focus is on the relationship between the underlying felony and the killing and whether the felony is merely incidental to the killing, an afterthought”].)

Further, the jury’s verdicts convicting defendant of first degree murder were accompanied by true findings on the special circumstance allegations that he committed the murders in the commission of the attempted rapes. Thus, the present case is similar to one “in which the murder verdict did not indicate the theory on which the defendant was convicted, but the jury also returned special circumstances findings on rape .... (See also People v. Boyd (1985) 38 Cal.3d 762 , 770 [ 215 Cal.Rptr. 1 , 700 P.2d 782 ] [‘Those [attempted-robbery special-circumstance] findings make it clear that whatever the jurors thought about premeditation, they agreed upon all of the elements necessary for a verdict of first degree murder based on a felony-murder theory. Consequently, any error in instructing on premeditation could not have prejudiced defendant.’].)” (Holt, supra, 15 Cal.4th at p. 671.) We therefore need not evaluate the sufficiency of the evidence of premeditation and deliberation to uphold the jury’s first degree murder verdicts in this case. (See also Young, supra, 34 Cal.4th at pp. 1177-1178.)

4. Asserted Instructional Errors

a. Assault As a Lesser Included Offense of Attempted Rape

Defendant contends the evidence presented at trial was sufficient for the jury to find that, because of his intoxicated state, he was unable to form the

It is clear, as a matter of state constitutional law, that trial courts are required to give instructions on all lesser offenses necessarily included within the filed charges, when there is substantial evidence supporting a conviction for a lesser offense, regardless of whether the parties request such instructions or even oppose them. (Breverman, supra, 19 Cal.4th at pp. 154—155.) As we explained in Breverman, however, the related federal constitutional right is more circumscribed, prohibiting only in capital cases those situations in which the state has created an “ ‘ “artificial barrier” ’ ” preventing the jury from considering a noncapital verdict other than a complete acquittal and thereby calling into question the reliability of the outcome. (Id. at pp. 166-168, citing Beck, supra, 447 U.S. 625 , Schad v. Arizona (1991) 501 U.S. 624 [ 115 L.Ed.2d 555 , 111 S.Ct. 2491 ], and Hopkins v. Reeves (1998) 524 U.S. 88 [ 141 L.Ed.2d 76 , 118 S.Ct. 1895 ] (Reeves).)

Defendant contends the trial court’s failure to give an assault instruction violated the rule of Beck, because the jury was forced into an “all-or-nothing” situation in which the choice on the attempted rape charges essentially was between the death penalty and acquittal, due to the felony-murder rule and the attempted-rape special-circumstance allegations. (See Beck, supra, 447 U.S. at p. 637.) For several reasons, defendant’s assertion is incorrect.

First, the jury was not forced to choose between convicting defendant of crimes he did not commit (assertedly, the attempted rapes and associated first degree felony murder and attempted-rape special-circumstance findings) and a complete acquittal. The jury had the option of finding that defendant did not form tiie intent to have sexual relations with the victims until after they were dead (and therefore of acquitting him of the attempted rape charges), but nonetheless of finding—if this was supported by sufficient evidence—that defendant murdered the victims with premeditation and deliberation, as well as the associated multiple-murder special circumstance, rendering him still eligible for the death penalty. In addition, the jury had the option of finding him guilty of some lesser degree of noncapital homicide for one or both of the murders, instead of issuing a complete acquittal.

Thus, for both these reasons, there is no likelihood the lack of an instruction on assault as a lesser included offense of attempted rape affected the reliability of the jury’s verdict, in violation of defendant’s federal constitutional rights. (See Reeves, supra, 524 U.S. at p. 95.)

Additionally, there is a third reason why defendant’s federal constitutional claim must fail, also disposing of his state constitutional claim: assault is not a lesser included offense of attempted rape in the present case. (Reeves, supra, 524 U.S. at p. 96; Breverman, supra, 19 Cal.4th at p. 154.) We apply the statutory elements and accusatory pleading tests to determine whether one offense is a lesser included offense of another. (People v. Reed (2006) 38 Cal.4th 1224 , 1227-1228 [ 45 Cal.Rptr.3d 353 , 137 P.3d 184 ] (Reed).) First, under the elements test, we look to the two statutes to determine whether in the defendant’s commission of the greater offense, his or her actions necessarily would satisfy all of the elements of the lesser offense. (Ibid.) One who has committed the crime of attempted rape has not necessarily committed an assault, because an essential element of assault— the present ability to inflict harm—is not necessarily present in an attempted rape.

In order to commit an attempted rape, a person must form the intent to rape and perform a direct but ineffectual act, beyond mere preparation, leading toward commission of a rape. (§ 21a; Carpenter, supra, 15 Cal.4th at p. 387.) An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) Although there is no doubt that a rape is a violent injury to another, an attempted rape is not necessarily

Defendant contends the trial court was required to instruct concerning the effect of voluntary intoxication on his ability to form the mental states required for the murder and attempted rape charges, despite defendant’s failure to request such an instruction. An instruction on the significance of voluntary intoxication is a “pinpoint” instruction that the trial court is not required to give unless requested by the defendant. (People v. Saille (1991) 54 Cal.3d 1103 , 1120 [ 2 Cal.Rptr.2d 364 , 820 P.2d 588 ] (Saille); see also People v. Clark (1993) 5 Cal.4th 950 , 1022 [ 22 Cal.Rptr.2d 689 , 857 P.2d 1099 ] (Clark).) Defendant raises three arguments why Saille is not controlling in his case, none of which we find persuasive.

Defendant first asserts because the trial court had a duty to instruct the jury on its own motion concerning the crime of assault as an “intoxication based” lesser included offense of the attempted rape charges, it also had an associated duty to instruct the jury concerning how voluntary intoxication could negate defendant’s ability to form the intent to rape, such that the jury could find he committed only an assault. Because, however, we have concluded the trial court had no duty to instruct on the crime of assault as a lesser included offense, it accordingly had no duty to clarify how the jury might reach a verdict of assault through a finding of voluntary intoxication.

Second, defendant contends the holding of Saille cannot be applied retroactively to his case because of constitutional ex post facto concerns. We previously have rejected this claim in People v. Hughes (2002) 27 Cal.4th 287 , 342 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ] (Hughes), and defendant advances no persuasive reason why we should reconsider that conclusion.

Third, defendant essentially argues the trial court was required to instruct on voluntary intoxication because other instructions regarding the mental states required for the offenses and other potential mental impairments reducing his culpability were incomplete and misleading absent an instruction concerning voluntary intoxication. Were we to accept defendant’s argument, we would, in effect, overrule our decision in Saille. If the defendant in a particular case believes voluntary intoxication is an issue that could affect the jury’s determination of the mental state elements of the charged crimes, he or she must request an instruction on that subject. Any lack of clarity regarding the consideration, if any, the jury should give to evidence of voluntary intoxication, in the absence of a request for an instruction on this subject, is of the defendant’s doing, and on appeal he cannot avail himself of his own inaction. (People v. San Nicolas (2004) 34 Cal.4th 614 , 669-670 [ 21 Cal.Rptr.3d 612 , 101 P.3d 509 ] (San Nicolas).)

Defendant observes that in the present case, the trial court did not specifically define premeditation and deliberation or the intent to rape as “mental states,” rendering Musselwhite and People v. Jones inapplicable. He further argues the trial court did not clearly instruct the jury that the mental states were defined in the instructions concerning the charged offenses. The trial court did give a modified version of CALJIC No. 3.31 regarding the concurrence of act and mental state, with language similar to the instruction on which we based our decision in Smithey, but there was a slight variance in the oral reading of the instructions. The written version stated in relevant part: “These specific intent and mental states are set out in the instructions pertaining to the specific crimes.” The oral version was: “These specific intents and mental states required in each of these crimes are set out in the instructions pertaining to a specific crime which I’ll be giving you.” Defendant argues the jury likely was confused by the oral version because it referred to a specific crime’s instructions, in the singular, which was not possible because there were two specific crimes charged. He claims this potential for confusion makes Smithey inapplicable as well.

Even assuming the transcription is completely accurate and the instructions did not clearly inform the jury that the mental states referred to in the mental condition instruction were defined in the instructions on the crimes (plural),

The Attorney General contends that because defendant did not request a clarifying instruction defining the term “sexual intercourse,” he therefore forfeited his appellate claim. The long-standing general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given. (See Hudson, supra, 38 Cal.4th at pp. 1011-1012; see also People v. Jenkins (2000) 22 Cal.4th 900 , 1019-1020 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ]; People v. Bolin (1998) 18 Cal.4th 297 , 327-328 [ 75 Cal.Rptr.2d 412 , 956 P.2d 374 ].) We agree that defendant’s failure to request that the trial court further define the meaning of the term “sexual intercourse,” which is the element set forth in the statute (§261, subd. (a)), forfeited his claim on appeal. To the extent our recent decision in Guerra, supra, 37 Cal.4th 1067 , 1138, might be interpreted as concluding that the failure to request a similar instruction in that case did not forfeit an appellate challenge to the adequacy of the instruction given, we disapprove any such interpretation. Our statement in Guerra that the asserted error consisted of an alleged failure to instruct on an essential element of the offense, and our citation to People v. Flood (1998) 18 Cal.4th 470 , 482, footnote 7 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ], cannot support a conclusion that the claim was not forfeited. When, as in Guerra and the present case, the trial court has given only an instruction on the crime of rape using the term “sexual intercourse” without further definition, the court correctly has instructed on this essential element of the crime, which, as explicitly set forth in the statute, is sexual intercourse between the perpetrator and the victim. (§261, subd. (a).) Defendant (like the defendant in Guerra) claims only that the instruction did not clearly explain the meaning of the term used in the statute and the instruction. This is distinguishable from the circumstances present in Flood, in which the trial court did not give an instruction defining “peace officer” and instead told the jury that the police officers involved were peace officers, thereby removing that element from the jury’s deliberations. (Flood, supra, 18 Cal.4th at p. 482.) Thus, the general forfeiture rule applies to the claims raised in Guerra and the present case.

Of course, despite defendant’s failure to preserve this issue for appeal, we may review his claim of instructional error to the extent his substantial rights were affected. (§ 1259.) We previously have rejected the contention that the term “sexual intercourse” must be defined for the jury. (Stitely, supra, 35 Cal.4th at p. 554, citing Holt, supra, 15 Cal.4th at p. 676.) Defendant presents no compelling reason for us to revisit that holding. Further, the charges and special circumstance allegations in the present case involved attempted rape. We see no possibility that because defendant testified he sodomized the

Defendant, primarily relying upon our decision in People v. Anderson, supra, 70 Cal.2d 15 , also argues the instructions went beyond referring to mere evidence of guilt in the general sense and impermissibly invited the jury to infer from his postoffense behavior that he had a particular mental state at the time he committed the killings. (See id. at p. 33 [in reviewing sufficiency of evidence of premeditation and deliberation, evidence that defendant cleaned up the murder scene and made false statements about what happened was “highly probative of whether defendant committed the crime, but it d[id] not bear upon the state of the defendant’s mind at the time of the commission of the crime”].) Defendant’s argument is unpersuasive.

We repeatedly have rejected the claim that the standard consciousness of guilt instructions, such as the one given by the trial court in the present case regarding defendant’s false statements, improperly describe the issue of the defendant’s state of mind at the time of the crime or direct the jury to draw any impermissible inference on that subject. (See People v. Jurado (2006) 38 Cal.4th 72 , 125 [ 41 Cal.Rptr.3d 319 , 131 P.3d 400 ] [citing cases].) Further, the trial court’s modification of the flight instruction correctly stated the law—that the jury could not consider defendant’s flight as evidence of his state of mind when the killings occurred, unless it found “defendant’s conduct in leaving actually reflected such intent or mental state at the time of the crimes.” If the jury did not find the requisite connection between the two, in which case, as defendant argues, an inference about his mental state would be irrational, the jury simply would not consider evidence of defendant’s flight for the purpose of determining his intent and mental state at the time he killed the victims. In this sense, this instruction actually benefited defendant by highlighting this requirement, and certainly did not

Finally, defendant asserts the instructions cumulatively diluted the prosecution’s burden of proof. As noted above, however, several of our prior opinions involved challenges to multiple instructions and rejected such claims. We adhere to those decisions. “Here the jury was instructed on the presumption of innocence and reasonable doubt under the then standard California instruction, CALJIC No. 2.90. The United States Supreme Court has held that this instruction satisfies due process requirements. (Victor v. Nebraska [(1994)] 511 U.S. [1,] 7-17 [ 127 L.Ed.2d 583 , 114 S.Ct. 1239 ]; People v. Millwee (1998) 18 Cal.4th 96 , 161 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ].) No federal constitutional violation occurred.” (Rogers, supra, 39 Cal.4th at p. 889.)

5. Attempted Rape As the Basis of a Special Circumstance Finding

Defendant contends that, as a matter of California law, there can be no special circumstance finding under section 190.2, subdivision (a)(17)(C) predicated upon a killing that occurs in conjunction with an attempted rape. He argues that because once the victim has been killed it is legally impossible thereafter to commit rape (see Kelly, supra, 1 Cal.4th at p. 526), no killing during the course of an attempted rape can further the purpose of completing the crime; such a killing, in fact, prevents completion of the offense. Accordingly, he claims, the killing cannot be said to have been committed in order to advance the independent felonious purpose of attempted rape. (See

Defendant raises numerous claims of prosecutorial misconduct under both the state and federal Constitutions, which we shall address in turn. Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. (People v. Strickland (1974) 11 Cal.3d 946 , 955 [ 114 Cal.Rptr. 632 , 523 P.2d 672 ].) Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with 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 ] (Darden), quoting Donnelly v. DeChristoforo (1974) 416 U.S. 637 , 643 [ 40 L.Ed.2d 431 , 94 S.Ct. 1868 ] (DeChristoforo).)

“ ‘[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913 , 952 [ 47 Cal.Rptr.3d 420 , 140 P.3d 736 ].) Defendant argues the prosecutor engaged in pervasive misconduct that excuses defendant’s numerous failures to object in the trial court to the supposed instances of misconduct he raises on appeal (see Hill, supra, 17 Cal.4th at p. 821), and that, beyond this, we should abolish the long-standing requirement that a defendant object and request an admonition if doing so would not be futile.

We decline defendant’s invitation to eliminate the requirement that defendants afford trial courts an opportunity to remedy in the first instance any prosecutorial misconduct that may have occurred during trial. Further, as will become evident in our discussion of defendant’s claims, there was no pervasive misconduct—if there was any at all—that would excuse defendant’s failure to object and request an admonition concerning particular asserted instances of misconduct.

a. Use of Defendant’s Suppression Hearing Testimony During Cross-examination

Defendant contends the prosecutor engaged in misconduct in cross-examining him by making reference to the transcripts of his suppression hearing testimony, because that testimony was admitted for a limited purpose

b. Cross-examination of Dr. Yarvis

Defendant contends misconduct occurred when the prosecutor asked questions during the cross-examination of defense expert Dr. Yarvis concerning the terms “sexual psychopath” and “sadistic rape” and other aspects of the psychology of rapists. He argues the questions exceeded the scope of the direct examination and were asked only to insinuate without any evidentiary support that, for example, defendant was a sexual psychopath who engaged in sadistic rape. After the trial court sustained defendant’s initial objection to a question about the term “sexual psychopath,” and thereafter clarified the acceptable scope of cross-examination on the subject of the psychology of rapists, defendant did not object to the prosecutor’s subsequent questions on this subject, nor claim the prosecutor had engaged in misconduct or ask the court to give an admonition to the jury. Defendant therefore may not raise this claim on appeal. In any event, his claim also is without merit, because there was nothing deceptive, reprehensible, or improper about these questions, which were well within the scope of questioning permitted by the court and, being general questions about the psychology of rape without reference to defendant or the circumstances of this case, in no way improperly “implied] or insinuate[d] the truth of the facts about which questions are posed.” (Visciotti, supra, 2 Cal.4th at p. 52.)

c. Asserted Attempts to Elicit Testimony Regarding the Lactawen Murder

Before trial, the prosecutor represented to the trial court and defendant that he would not seek to introduce evidence of the Lactawen murder during the guilt phase of the trial. Later, immediately before defendant was to testify in his defense, the prosecutor moved to introduce the Lactawen murder during cross-examination. The trial court found the evidence normally would be admissible under section 1101, subdivision (b) of the Evidence Code, but excluded it because defendant had relied upon the prosecutor’s general statement that evidence concerning this murder would not be introduced at the guilt phase. Defendant contends the prosecutor committed misconduct by nonetheless attempting to elicit testimony on this subject during cross-examination of defendant and defense witness Philip Bodily.

Assuming defendant preserved prosecutorial misconduct challenges to these exchanges, we are not persuaded by defendant’s claims that through these questions the prosecutor was attempting to bait defendant into making a response that would open the door to the introduction of the Lactawen evidence. After the first challenged question was asked, the prosecutor told the trial court he did not intend to mention the Lactawen murder, and it appears the court accepted that representation, although it advised him to avoid the apparently unintended problem of asking questions that might lead in that direction. Moreover, this first question—whether it was an everyday occurrence for defendant to get “furiously mad” enough to kill someone— seems essentially to have been a rhetorical question designed to discredit defendant’s claim that he had fits of rage that prevented him from thinking about what he was doing, and probably would lead to a negative answer, not a statement related to the Lactawen murder. Had the prosecutor been attempting to force defendant into making some such statement or a denial that arguably would allow for impeachment with the Lactawen evidence, he might have asked a question inviting a more factual response, such as “on what other occasions have you been furiously mad enough to kill someone?”

The second question—whether defendant liked to tie up women when they are alive—is, again, insufficient to suggest the prosecutor, despite his earlier assurance to the trial court to the contrary, intended to elicit an answer calling for the introduction of evidence of the Lactawen murder. The question, asked in response to defendant’s statement that he liked to tie up women “[i]n that set of feelings” (meaning, possibly, when the woman was dead), appears to

Near the end of the cross-examination of defense witness Philip Bodily, defendant’s childhood friend who testified about defendant’s mother’s sexual advances and activities with a neighborhood boy, the prosecutor asked Bodily, without objection, three questions regarding Bodily’s knowledge of the charges faced by defendant in this case. Bodily ultimately answered that defendant was charged with “Triple murder.” Counsel then asked Bodily whether he had communicated with defendant in the previous five years, to which Bodily answered no. This concluded Bodily’s testimony, and he was excused and the next witness was called. At a sidebar conference, the court mentioned the triple-murder answer and stated it assumed the defense did not “wish to emphasize it any further,” to which defense counsel replied, “You’ve got that right.” The court then stated, “We’ll deal with it later, if at all.” No further discussion of the question and answer was held.

Defendant’s claim on appeal—that the prosecutor’s cross-examination on the subject of Bodily’s knowledge of the charges was misconduct because it was intended to lead to the introduction of the Lactawen evidence—is forfeited and in any event also is without merit. Defendant had three opportunities to object to these questions as improper attempts to circumvent the trial court’s order, before Bodily gave the triple-murder answer. The defense failed to do so. Moreover, even at the sidebar conference that took place after Bodily was excused, defense counsel did not mention prosecutorial misconduct.

Defense counsel likely did not raise a misconduct claim in the trial court because it was apparent this circumstance was simply an unexpected, erroneous answer by the witness. Shortly before the questions about the charges, the prosecutor had explored Bodily’s testimony that he did not tell anyone about defendant’s mother’s sexual activities until several years later, and the only persons he had told about it prior to trial were Bodily’s father and the defense investigator. The prosecutor therefore seemed to be challenging Bodily’s credibility, and the circumstance that Bodily, a childhood friend of defendant’s, knew defendant was facing serious charges was relevant on that issue. In addition, for the supposed prosecutorial misconduct to have occurred, the

In sum, we conclude there is no evidence the prosecutor, through the cross-examination of defendant and Bodily, engaged in misconduct by purposefully seeking to undermine the trial court’s ruling excluding the Lactawen evidence. Even had defendant established that the prosecutor engaged in deceitful and reprehensible conduct in this regard, we would conclude there is no evidence the outcome or the fairness of the trial would have been adversely affected. The jury simply never heard about the Lactawen murder during the guilt phase of the trial. It also had no reason to suspect the prosecutor’s questions to defendant had anything to do with a third rape and murder, or that Bodily’s triple-murder answer was anything other than a misunderstanding on his part. Even if the prosecutor had been attempting to subvert the trial court’s ruling, he was unsuccessful, and the outcome of the trial was not affected.

d. Argument Regarding Condition of Victims’ Bodies and Clothing

Defendant contends the prosecutor engaged in misconduct during closing argument by telling the jurors they could “use your imaginations based on what you have heard here to recreate what those women would have looked like if we had found the bodies the next day,” and by theorizing the victims’ clothing was not tom because they might have given in to defendant’s demands in the hope of avoiding harm. Defendant claims the prosecutor improperly argued the existence of facts outside the record and, in suggesting what the victims might have said to defendant, improperly sought to inflame the passions of the jury. Defendant did not object to the statements regarding the state of the victims’ bodies, and therefore has forfeited any challenge to that comment. Even had he preserved that claim, we would conclude that, like challenges he preserved to other parts of the prosecutor’s argument, it is without merit.

The prosecutor’s comments properly asked the jurors to draw certain inferences from the evidence presented at trial. This is not a case like those cited by defendant in which a prosecutor’s statements implied the existence of facts outside the record of which counsel, but not the jury, were aware. (See, e.g., People v. Benson (1990) 52 Cal.3d 754 , 794-795 [ 276 Cal.Rptr.

e. Argument Assertedly Appealing to Jury’s Fear of Crime

At one point during his argument, the prosecutor discussed the prevalence of the crime of rape, and argued that defendant was beyond the “ordinary” rapist in that he not only wanted to satisfy his “sexual lust” and desire for control over his victims, but also chose to kill them. Defendant contends the prosecutor’s comments that the prevalence of rape had caused society to act in a more protective and restrictive manner “improperly played upon the generalized fears of the jurors.” Defendant did not object to the prosecutor’s statements below or request an admonition, and does not demonstrate that such objection would have been futile. He therefore may not raise this challenge on appeal. Even if we were to assume for the sake of argument that defendant’s claim was preserved and that the prosecutor’s reference to societal concerns about crime was improper, we would conclude that this isolated, brief remark, when viewed in the context of the entire argument, which focused on defendant’s own culpability for these particular offenses, could not have inflamed the jury’s passions to the point where the outcome of the trial was affected or the trial became fundamentally unfair.

f. Asserted Exploitation of Exclusion of the List from Sorensen’s Address Book

Defendant claims the prosecutor engaged in misconduct by arguing it was unlikely that Sorensen would instigate sexual activity with defendant in the manner described in defendant’s testimony, in light of their being essentially strangers. According to defendant, the prosecutor was taking unfair advantage of the exclusion of the list of names from Sorensen’s address book that

g. Asserted Personal Attack upon Defendant

Defendant challenges two comments by the prosecutor—that defendant “didn’t learn how to conduct himself like a human being,” but instead acted “like a caveman”—as improperly denigrating him before the jury. Because defendant did not object and seek an admonition, he has forfeited this challenge. Even if preserved, this challenge would fail because the prosecutor’s statements were a fair use of colorful language to explain the prosecutor’s view of the evidence: that defendant did what he wanted to his victims in spite of the most basic societal constraints and any protestations on their part. (People v. Williams (1997) 16 Cal.4th 153 , 221 [ 66 Cal.Rptr.2d 123 , 940 P.2d 710 ].)

h. Asserted Attack upon the Honesty and Integrity of Defense Counsel

Defendant contends the prosecutor engaged in misconduct during closing argument by “insinuating that defense counsel and appellant fabricated a defense shortly before trial,” when the prosecutor mentioned that defendant met with defense counsel and the defense psychiatrist to “clear up and get to the true version of what happened,” and then argued that defendant’s version of the killings was “designed to avoid criminal responsibility for attempted rape, first degree felony murder, commission of a rape, and the special circumstances involving rape, and for no other reason.” No misconduct occurred. The central issue at the trial was defendant’s credibility. Defendant admitted he had learned before trial it would be beneficial to his defense if it was established he did not form the intent to have sexual intercourse with the victims until after they were dead. The prosecutor’s statements constituted fair comment upon the evidence regarding the supposed need for defendant, who was the only living person who witnessed the killings, to meet with others to determine the truth of what happened, and a reasonable suggestion of a possible motive for defendant to lie about the murders. The prosecutor did not directly accuse defense counsel of encouraging defendant to lie, but even to the extent the statements swept counsel up in defendant’s asserted lies, this was not an improper comment in the context of this case, in which defendant’s story changed drastically during trial preparations. (People v. Earp

On Tuesday morning, May 23, 1989, the trial court again met with defense counsel in chambers to discuss the possible juror misconduct, without defendant or the prosecutor present. Both Smith and Humphreys stated they agreed with the court’s concern that questioning the jurors about the supposed statement might “alienate” them. The court stated it could see no detriment in postponing the investigation of the possible misconduct to avoid prejudicing the jury “should it be determined that the events as reported did not happen, or that if they happened, they happened in some fashion that did not constitute misconduct.” Again, no final decision was reached, and it was resolved that the issue would be further discussed with input from the prosecutor.

The court thereafter reconvened in a closed session with defense counsel, defendant, the prosecutor, and court staff present. The trial court generally recounted the information Smith had disclosed, and asserted that the juror’s supposed statement “doesn’t make a lot of sense in the form we received it, but there may be more out there.” The court once again expressed its view that delaying investigation into the making of the statement would not create prejudice. The court explained that in its view, if the alleged misconduct occurred, both the guilt phase and penalty phase verdicts might be set aside. The court apparently reasoned that in light of this situation, for the time being it was preferable to defer exploring the issue of Juror T.W.’s possible misconduct. The court expressed concern that “inquiring and finding that there was nothing could leave an impact on the jury that would prejudice one side or another or both.” The trial court rejected the prosecutor’s suggestion that an investigator interview the witnesses, because the court was “concerned it will get to the jury in some fashion.” The court also noted Smith might be required to become a witness in the matter, and unless and until it proved necessary to do so, the court did not want to initiate steps that might force Smith to withdraw from the case. Smith stated that in his view, if the firsthand source of the information were directly questioned concerning the statement, it was “very likely that that person would claim certain privileges which would start a legal controversy and quickly become very public and blow the whole thing up.” The court adjourned discussion of the matter until the afternoon in order to allow the prosecutor to consider what to recommend.

The court again stated its belief there would be no problem in proceeding with the trial of the penalty phase and deferring investigation into the statement until after that portion of the trial was completed. When Smith agreed and said this course of action was his “preference,” the court clarified: “[M]y motivation is in the control of the integrity of these proceedings, and I don’t see any damage to this Court’s obligations which, quite frankly, are not to your personal situation, [but to] Mr. Rundle, the People and the law, and I don’t see there is a problem with that.” The court then summoned the prosecutor, summarized the new information, and again suggested that all questioning of the witnesses related to this issue be postponed until after the jury began its deliberations. Final resolution of the matter was postponed until the following morning so the prosecutor could develop any final recommendations, but the court stated its tentative plan to order that Thomson not be contacted concerning the statement, but instead to question Thomson after the jury had begun the penalty phase deliberations, and possibly to question the jurors after they reached a verdict.

There is no record of any meeting the next day, May 24, 1989—or for the next three weeks—concerning this matter. Consistently with the trial court’s concluding remarks, however, the subject was raised again on June 15, 1989, after the jury had retired to deliberate on the penalty. The court’s bailiff was called as a witness and testified he had a conversation with the reporter, Thomson, outside the courtroom after the jury had reached a guilt phase

A recent decision of the United States Supreme Court, Mickens v. Taylor (2002) 535 U.S. 162 [ 152 L.Ed.2d 291 , 122 S.Ct. 1237 ] (Mickens), clarified several aspects of the applicable law concerning the determination whether a conflict of interest acted to deny a defendant the Sixth Amendment right to counsel. In its central holding, the high court decided that in cases in which the trial court should have inquired into the possibility of a conflict of interest on the part of defense counsel but failed to do so, before reversal is warranted the defendant nonetheless must demonstrate that an actual conflict of interest affected counsel’s performance. (Mickens, supra, 535 U.S. at pp. 173-174.) As relevant to the present case, the high court also confirmed that conflict-of-interest claims are a category of ineffective-assistance-of-counsel claims, which, pursuant to the court’s decision in Strickland v. Washington (1984) 466 U.S. 668 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ] (Strickland), generally require the defendant to demonstrate (1) deficient performance by counsel, and (2) “ ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Mickens, supra, 535 U.S. at p. 166, quoting Strickland, supra, 466 U.S. at p. 694.) In the context of a claim of conflict of interest, however, the deficient-performance prong of the Strickland test is satisfied by a showing that defense counsel labored under an actual conflict of interest, that is, “a conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.” (Mickens, supra, 535 U.S. at p. 171.) As to the second prong—that a defendant demonstrate prejudice in the outcome— the court recognized an exception to this requirement, applicable when there exist “ ‘circumstances of [the] magnitude’ ” of the denial of counsel entirely or during a critical stage of the proceeding. (Id. at p. 166.) The court acknowledged that several of its cases held that circumstances of that magnitude existed when the defendant’s attorney had “actively represented conflicting interests,” and thus no showing of prejudice was required in such circumstances. (Ibid.; see also United States v. Cronic (1984) 466 U.S. 648 , 659, fn. 26 [ 80 L.Ed.2d 657 , 104 S.Ct. 2039 ].) Those earlier cases established what has become known as a “presumption of prejudice” that would relieve the defendant of the otherwise applicable burden of demonstrating a reasonable probability that the conflict affected the outcome of the trial. (See Glasser, supra, 315 U.S. 60 , 76; Cuyler v. Sullivan (1980) 446 U.S. 335 , 349-350 [ 64 L.Ed.2d 333 , 100 S.Ct. 1708 ] (Sullivan).)

In determining whether a defendant has demonstrated the existence of an actual conflict of interest satisfying the first prong of the analysis, we consider whether “the record shows that counsel ‘pulled his punches,’ i.e., failed to represent defendant as vigorously as he might have had there been no conflict.” (People v. Easley (1988) 46 Cal.3d 712 , 725 [ 250 Cal.Rptr. 855 , 759 P.2d 490 ] (Easley).) And yet we must bear in mind, as we observed in

The Attorney General observes that defendant at all times was represented by two attorneys, and contends the record on appeal does not establish that defendant’s other counsel, Humphreys, labored under a conflict of interest. We disagree. Even assuming we could consider separately the actions of Humphreys from those of Smith such that Smith’s conflict would not automatically “taint” the entire defense team’s handling of the juror misconduct issue, we believe Humphreys’s sense of loyalty to his cocounsel was sufficient to create an actual division of loyalties on his part when viewed in light of the unreasonable failure of either counsel adequately to explore with Thomson the statement attributed to Juror T.W. Attorneys Humphreys and Smith at that time had worked together on defendant’s case for more than one and a half years. Smith spoke repeatedly of the serious personal difficulties he perceived he would face if the source of his information were publicly exposed, and he and the trial court mentioned that he even might be required to withdraw from the case, depending upon how the matter was handled. (See Roldan, supra, 35 Cal.4th at pp. 726-727.) Under these circumstances, we believe the record demonstrates that Humphreys also labored under an actual conflict of interest.

In sum, we conclude defense counsel’s questioning of Thomson was inadequate compared to what reasonable and unconflicted counsel would have done, was a result of Smith’s predicament and both attorneys’ desire not to exacerbate it, and could not have been based upon a strategic choice regarding how best to protect defendant’s rights. Defendant therefore has demonstrated that an actual conflict of interest affected counsel’s performance.

Turning to the second prong of the analysis—the question of prejudice arising from this actual conflict of interest—we conclude no presumption of prejudice should be applied in this case, and, further, the appellate record does not demonstrate a reasonable probability that, absent the conflict of interest, the result of the trial would have been different.

In evaluating claims of Sixth Amendment violation based upon conflicts of interest, we in the past have stated that the presumption of prejudice would be applicable in a variety of factual circumstances, including matters in which, as in the present case, it was alleged that the personal interests of the attorney conflicted with those of the defendant. (See, e.g., People v. Dunkle (2005) 36 Cal.4th 861 , 914 [ 32 Cal.Rptr.3d 23 , 116 P.3d 494 ] (Dunkle) [conflict based upon possibility that the attorney might be a defense witness]; Roldan, supra, 35 Cal.4th at p. 674 [conflict based upon defense attorney’s having been threatened by the defendant]; Frye, supra, 18 Cal.4th at p. 998 [conflict based upon defense attorney’s upcoming suspension from the practice of law]; Mayfield, supra, 5 Cal.4th at p. 206 [conflict based upon defense attorney’s financial and reputational interests].) The only cases in which we have had occasion to actually apply the presumption, however, have involved, like the high court’s cases, concurrent representation of adverse clients by a single attorney. (See Easley, supra, 46 Cal.3d 712 ; Mroczko, supra, 35 Cal.3d 86 ; see also Chacon, supra, 69 Cal.2d at p. 767.) In all other cases in which we mentioned the presumption of prejudice in the recitation of the applicable law, we concluded that the defendant failed to establish that an actual conflict of interest adversely affected counsel’s performance; that is, we determined “ ‘the constitutional predicate for [the] claim of ineffective assistance’ ” was lacking. (Mickens, supra, 535 U.S. at p. 175, quoting Sullivan, supra, 446 U.S. at p. 350.) Our past decisions, therefore, do not constitute controlling authority concerning the question whether the presumption of prejudice applies to all or only some conflict-of-interest situations, and we are especially reluctant to interpret those holdings broadly here, in light of the skepticism expressed by the high court in Mickens concerning an expansive application of the presumption.

4. Defendant’s Absence from Meetings Between the Trial Court and Defense Counsel Concerning the Alleged Juror Misconduct

Defendant was not present during the first two ex parte in camera hearings concerning Smith’s report of the alleged misconduct on the part of Juror T.W. He contends on appeal that his absence from these proceedings violated his federal and state constitutional rights, as well as state statutory law.

“As a constitutional matter, a criminal defendant accused of a felony has the right to be present at every critical stage of the trial. (Illinois v. Allen[, supra,] 397 U.S. [at p.] 338 . . . .) The right derives from the confrontation clause of the Sixth Amendment to the federal Constitution and the due process clauses of the Fifth and Fourteenth Amendments, and article I, section 15 of the California Constitution.” (Frye, supra, 18 Cal.4th at p. 1010.) A critical stage of the trial is one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’ (Faretta v. California[, supra,] 422 U.S. [at p.] 819, fn. 15 .. .) or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’ (Snyder v. Massachusetts[, supra,] 291 U.S. [at pp.] 105-106 . . .).” (Rodriguez, supra, 17 Cal.4th at p. 260.)

There is no indication in the case before us that defendant’s presence during the preliminary meetings held between the court and defense counsel was necessary to ensure the fairness of the proceedings or that defendant’s absence in any way affected his defense. Indeed, the record reflects that defendant was present during the several discussions that subsequently took place concerning the subjects of the alleged misconduct and Smith’s possible conflict of interest, and never sought to add his personal input into the decisionmaking process. Accordingly, defendant’s constitutional right to be present was not violated by his absence at the earlier meetings.

Turning to defendant’s statutory claims, we have long held that the presence requirement under sections 977 and 1043 is similar to that of the constitutional provisions: under the statutes, a defendant “ ‘ “is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him .... [Citation.]” [Citation.]’ [Citations.]” (Rogers, supra, 39 Cal.4th at p. 855; see also People v. Kelly (2007) 42 Cal.4th 763 , 781-782 [ 68 Cal.Rptr.3d 531 , 171 P.3d 548 ]; People v. Ervin (2000) 22 Cal.4th 48 , 74 [ 91 Cal.Rptr.2d 623 , 990 P.2d 506 ]; People v. Bradford (1997) 15 Cal.4th 1229 , 1357 [ 65

E. Penalty Phase Claims

1. Defendant’s Competency to Proceed with the Penalty Phase

As mentioned above, during a noon recess in the presentation of the prosecution’s opening statement at the penalty phase of the trial, defendant told court staff he did not wish to be present for the remainder of the trial. The trial court subsequently mentioned this on the record outside the presence of the jury, and a second recess was taken to allow defendant to discuss this matter with his counsel. After this recess, the court held an in camera meeting with defense counsel, at which counsel requested the court to adjourn for the day to allow more discussions with defendant. During this meeting, counsel stated their belief that defendant was “totally irrational and is not making a rational judgment as to whether or not he should absent himself from these proceedings and does not. . . have a reasoned understanding of the effects that decision may have on him.” The defense attorneys stated they believed they “had better declare a doubt,” but suggested that before the court did “anything that radical,” the court might consider adjourning for the remainder of the day and then seeing whether defendant “gets back in his chair by tomorrow morning.” Resuming proceedings in open court, the court adjourned the case until the following morning and advised defendant it was concerned that his decision be made in a careful, rational, calm, and reflective manner. The court mentioned to defendant that his absence during the penalty phase was likely to “make it worse” for himself. Defense counsel were directed to “report” to the court by 8:30 a.m. the next day, at which point the prosecution and the jurors would be notified as to when the proceedings would resume.

The following morning, on the record and outside the presence of the jury, the trial court “confirmed] for the record that at present there is no request

Defendant now contends that the trial court should have conducted a competency hearing based upon counsel’s representation that defendant was “totally irrational” in his initial desire to absent himself from the penalty phase proceedings, and that the court’s failure to do so violated defendant’s various constitutional and statutory rights. This claim is without merit.

It is true that an incompetent defendant—one who, because of a mental disorder or developmental disability, lacks an understanding of the nature of the proceedings and is unable to assist his attorneys rationally in conducting the defense—may not be subjected to trial, and that a trial court faced at any point in a trial with a “bona fide doubt” based upon substantial evidence whether a defendant is competent must conduct an adequate investigation into the defendant’s ability to proceed. (§§ 1367, subd. (a), 1368, subd. (a); Pate v. Robinson (1966) 383 U.S. 375 , 385 [ 15 L.Ed.2d 815 , 86 S.Ct. 836 ]; People v. Welch (1999) 20 Cal.4th 701 , 738 [ 85 Cal.Rptr.2d 203 , 976 P.2d 754 ].) It also is clear from the record that defendant’s “irrational” behavior was an emotional reaction to the stress of the penalty phase of the trial, reflecting a difference of opinion between defendant and his attorneys concerning the strategic decision whether defendant should absent himself from further proceedings. There was no evidence, let alone substantial evidence, that defendant’s behavior was caused by a mental disorder that prevented him from understanding the proceedings or assisting his attorneys in a rational manner. Defendant had behaved rationally throughout the pretrial and guilt phases of the trial and had testified, in a completely rational manner, in his own defense. Despite his attorneys’ gratuitous remark to the trial court that they thought they “had better declare a doubt,” counsel’s description of defendant’s state of mind was not that he was mentally incompetent, but that he was very emotional and “adamant” in his decision not to be present despite counsel’s best arguments to the contrary. Indeed, counsel stated defendant was “having an extreme anxiety attack right now,” and might benefit from some tranquilizing medication. Defense counsel never stated they did not believe the trial could proceed, nor did they directly ask the trial court to explore the issue of defendant’s mental competency. The court appropriately adjourned the proceedings for the day in an attempt to permit defendant’s emotional stress to dissipate, which it apparently did, as there were no further difficulties the next morning and defendant’s counsel thereafter expressed no “doubt” regarding defendant’s behavior. Accordingly, there was no statutory or constitutional error in the decision not to conduct a more searching inquiry on this matter. (Cf. Frye, supra, 18 Cal.4th at p. 1005 [“An angry and emotional reaction to a verdict of guilt does not indicate an inability to understand the nature of the criminal proceedings, or to rationally assist counsel.”].)

Defendant next contends that instructions given by the court, in the course of explaining factor (b), unconstitutionally diluted the reasonable doubt standard applicable to these sexual offenses. This contention is without merit. The trial court properly directed the jury at the beginning of the factor (b) instructions to consider this evidence “only if it is established by proof beyond a reasonable doubt that the Defendant committed such criminal acts.” The challenged instruction, which followed the trial court’s instructions concerning the elements of the factor (b) offenses of assault likely to cause great bodily injury and battery, informed the jury that “[w]ith respect to any act of violence, other than one involving a crime of a sexual nature testified to by [defendant’s ex-wife], you may consider such evidence as a circumstance in aggravation only if the elements of one of the specific offenses which I have just described to you have been proven.” This instruction simply defined for the jury, if it found them to have occurred, defendant’s assaultive acts (such as throwing his ex-wife to the ground and hitting her head against the floor) as either an assault likely to cause great bodily injury or a battery, but told them that other potential offenses might have been committed by defendant in the course of his alleged forcible sexual conduct. The instruction did not dilute the previously given controlling instruction that all of the factor (b) crimes had to be proved beyond a reasonable doubt before the jury could consider the testimony as evidence in aggravation.

Defendant raises two final, related challenges to this testimony, primarily concerning the circumstance that his ex-wife testified in a general manner to a nonspecific series of acts occurring over a period of several months, without providing exact dates upon which specific acts of forcible sodomy or oral copulation occurred. Defendant contends admission of this “generic testimony” unconstitutionally deprived him of notice of the allegations and the opportunity to present a defense, and constituted insufficient evidence of the offenses to allow the jury to consider this testimony under factor (b). We disagree.

We previously have addressed similar challenges raised in cases in which the defendant was charged with child molestation and the alleged child victim testified to a series of acts occurring over a period of time without providing specific details regarding the exact dates of particular acts. (See People v. Jones (1990) 51 Cal.3d 294 , 314-316 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ] (Jones) [approving the use of generic testimony in such circumstances if certain requirements are satisfied].) As defendant recognizes, there is a

We instead shall apply to defendant’s claim the general principles we previously have enunciated concerning similar due process challenges to the admission of factor (b) evidence. “In People v. Rodrigues (1994) 8 Cal.4th 1060 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ], we concluded that the admission of violent criminal conduct occurring many years before the penalty trial is not necessarily inconsistent with a defendant’s rights to due process, a speedy trial and a reliable penalty determination. We reasoned that ‘the state has a legitimate interest in allowing a jury to weigh and consider a defendant’s prior criminal conduct in determining the appropriate penalty, so long as reasonable steps are taken to assure a fair and impartial penalty trial.’ [Citation.] We identified those ‘reasonable steps’ as including notice of the evidence to be introduced, the opportunity to confront the available witnesses, and the requirement of proof beyond a reasonable doubt. When these steps have been taken, we concluded, the remoteness of the offense affects its weight, not its admissibility. [Citation.]” (People v. Yeoman (2003) 31 Cal.4th 93 , 136-137 [ 2 Cal.Rptr.3d 186 , 72 P.3d 1166 ]; see also Anderson, supra, 25 Cal.4th at pp. 585-586; Kraft, supra, 23 Cal.4th at pp. 1070-1071.)

We further emphasize that, unlike a criminal charging document, which must allege with sufficient specificity particular offenses (§ 952), the notice required under factor (b) is notification of the evidence to be introduced (§ 190.3). Notice of factor (b) evidence “is sufficient if the defendant has a reasonable opportunity to respond.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970 , 1051 [ 47 Cal.Rptr.3d 467 , 140 P.3d 775 ] (Lewis and Oliver).) Furthermore, we observe that, unlike what must be established with regard to

Indeed, the response made by defendant to his ex-wife’s testimony apparently was sufficiently effective to cause at least the trial court to entertain doubts about her veracity. Regardless of the trial court’s view of the evidence, and keeping in mind the objective of presenting the jury with a view of defendant’s character as complete as possible, we cannot conclude, as a matter of law, that the testimony was insufficient to enable any rational juror to find beyond a reasonable doubt that defendant committed a violent offense against his ex-wife. The absence of testimony associating particular acts with specific dates may have affected the weight of the evidence, but did not render the testimony so unreliable that as a matter of constitutional due process the jury should not have been permitted to consider it as potential evidence in aggravation.

b. Admission of Evidence of Defendant’s Juvenile Misconduct

Defendant contends evidence of his sexual assaults upon Rebecca Y., Brian M., and Cori H., should not have been admitted because defendant was a juvenile at the time of the incidents, and thus his actions were the “impetuous and ill-considered” product of his youth and immaturity and the admission of this evidence violated his constitutional rights to due process and a reliable verdict. This claim was not raised at trial and therefore is forfeited. (People v. Pinholster (1992) 1 Cal.4th 865 , 959-960 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ].) In any event, defendant’s characterization of this evidence was a proper subject for argument to the jury concerning the weight it should be accorded, but does not establish that the jury’s consideration of his juvenile adjudications was constitutional error. Moreover, as defendant observes, we have rejected several similar statutory and constitutional challenges to the admission of juvenile adjudications as evidence in aggravation. (See People v. Lucky (1988) 45 Cal.3d 259 , 295 [ 247 Cal.Rptr. 1 , 753 P.2d 1052 ]; People v. Burton (1989) 48 Cal.3d 843 , 862 [ 258 Cal.Rptr. 184 , 771 P.2d 1270 ]; Raley, supra, 2 Cal.4th at pp. 909-910; People v. Lewis (2001) 26 Cal.4th 334 , 376-380 [ 110 Cal.Rptr.2d 272 , 28 P.3d 34 ].)

c. Admission of Evidence of the Lactawen Murder

Prior to trial, defendant filed an in limine motion to exclude evidence of the Lactawen murder from the penalty phase or, in the alternative, to compel joinder of all three murder cases into one trial and to change

3. Asserted Instructional Errors

a. Failure to Define Sentence of Life Imprisonment Without the Possibility of Parole

Defendant contends the trial court erred by failing to instruct the jury on its own motion concerning the meaning of a sentence of life imprisonment without the possibility of parole, and thereby caused “an unfair, capricious and unreliable penalty determination and prevented the jury from giving effect to the mitigating evidence presented at the penalty phase in violation of the Sixth, Eighth and Fourteenth Amendments.” Defendant’s reliance upon Simmons v. South Carolina (1994) 512 U.S. 154 [ 129 L.Ed.2d 133 , 114 S.Ct. 2187 ] and other United States Supreme Court cases arising from the State of South Carolina is misplaced. As we previously have explained, juries in California specifically are instructed in capital cases that the choice of penalty is between a sentence of death and one of life imprisonment without the possibility of parole, and not merely life imprisonment—as the juries were instructed in Simmons and similar cases. (People v. Smith (2003) 30 Cal.4th 581 , 635-636 [ 134 Cal.Rptr.2d 1 , 68 P.3d 302 ] (Smith).) There was no error.

b. Failure to Instruct Regarding the Presumption of Innocence and to Define Reasonable Doubt Regarding Other-crimes Evidence

Defendant contends the trial court erred by failing to reinstruct the jury at the penalty phase that he was presumed to be innocent of the factor (b) other-crimes evidence until his guilt of those offenses was proved beyond a reasonable doubt, and by failing to redefine the term “reasonable doubt.” Defendant did not preserve this challenge by raising it in the trial court, and thus has forfeited it. It also is meritless, because the court informed the jury that the guilt phase instructions applied during the penalty phase except when

Similarly, with regard to the erroneous inclusion of CALJIC No. 3.32, the trial court, consistent with CALJIC No. 8.85, orally instructed the jury that during the penalty phase, “[i]n determining which aggravating and mitigating factors are to be applied and in deciding which penalty is to be imposed on the Defendant, you are to consider all of the evidence which has been received during both the guilt and penalty phases of the trial, except as you might be specifically instructed. [|] Your consideration of that evidence and your deliberations are to be in accordance with these instructions and the instructions which I have previously given you with certain specific exceptions that I will note for you in these instructions.” The court then told the jury it was to consider in mitigation “any aspect of the crimes or of the Defendant’s character, background and record that suggests that death is not the appropriate punishment,” “any sympathetic or other aspect of the Defendant’s conduct or record, and any sympathetic aspect of his character, upbringing and childhood circumstance that the Defendant offers as a basis for a sentence less than death, whether or not related to the offenses for which he’s been convicted” and, even more specifically, “[w]hether the Defendant was subjected to sexual or other abuse as a child and whether such abuse contributed to his criminal conduct.” This modified version of CALJIC No. 8.85 also was provided to the jury in written form. The arguments of defense counsel and the prosecutor further explained that defendant’s asserted mental condition could be considered in mitigation. Accordingly, the clear import of the instructions as a whole, in conjunction with counsel’s arguments, was that such evidence could be considered as mitigating evidence, beyond the limitation of its use at the guilt phase.

d. Failure to Clarify Instruction Under Section 190.3, Factor (d), Regarding Mental Disturbance

Defendant contends the trial court erred by not instructing the jury it could consider in mitigation evidence of defendant’s mental or emotional disturbance at the time of the crimes “regardless of whether there was a reasonable explanation or excuse for such disturbance.” He did not preserve an objection to the trial court’s instruction on this mitigating factor and therefore has

e. Asserted Unconstitutionality of CALJIC No. 8.88

Defendant raises several challenges to CALJIC No. 8.88, which described for the jury the general process by which it was to reach its penalty verdict. To the extent defendant contends the instruction was an incorrect statement of the law, this claim is not forfeited despite his failure to challenge the instruction below, and we shall therefore assume this claim is preserved. (See Hudson, supra, 38 Cal.4th at p. 1012.) These challenges, however, are without merit, as we previously have held. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1 , 123-124 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ] [the use of terms “so substantial” and “warrants” in the instruction is not unconstitutionally vague or misleading; the instruction does not fail adequately to inform the jury that the death penalty may be imposed only if aggravating factors outweigh mitigating factors or that a sentence of life imprisonment without possibility of parole is required if evidence in mitigation outweighs evidence in aggravation; the jury need not be informed that it may impose life imprisonment without possibility of parole even if evidence in aggravation outweighs evidence in mitigation].)

4. Asserted Prosecutorial Misconduct

A prosecutor commits reversible misconduct under California law if he or she makes use of “deceptive or reprehensible methods” in attempting to persuade either the trial court or the jury, and there is a reasonable possibility that without such misconduct, an outcome more favorable to the defendant would have resulted. (People v. Cunningham (2001) 25 Cal.4th 926 , 1019 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ].) Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as the denial that ensues from a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” (Darden, supra, 477 U.S. at p. 181, quoting DeChristoforo, supra, 416 U.S. at p. 643.)

a. Reading of Transcripts During Opening Statement

Defendant contends the prosecutor committed misconduct by reading extensively, during his opening statement at the penalty phase, from the transcript of defendant’s interviews with the officers concerning the Lactawen murder. This claim lacks merit because the reading of the transcripts was not deceptive, reprehensible, or otherwise improper.

b. Argument That Death Penalty Was Required

Defendant takes issue with a preliminary statement in the prosecutor’s closing argument, that “[i]t is no secret that I am going to be asking you based solely on this evidence and the law in this case and everything you have heard concerning this case over the last, oh, approximately two to three months since the first witness was called, that I believe this evidence, this evidence alone, requires the maximum punishment allowed by California law.” Defendant contends this was an inaccurate statement of the law and also minimized the jury’s role in determining the penalty, because “a death verdict is never required or preordained by the state of the evidence.” This claim, like the majority of the following claims of misconduct, has not been preserved for appellate review due to defendant’s failure to object and request an admonition. In any event, there was no misconduct, because the comment, viewed in context, was simply proper argument by the prosecutor concerning his view of the state of the evidence. (People v. Mayfield, supra, 14 Cal.4th at p. 804 [“it is not misconduct for a prosecutor in the penalty phase of a capital case to express in argument a personal opinion that death is the appropriate punishment, provided the opinion is grounded in the facts in evidence”].)

c. Argument Assertedly Minimizing Jurors’ Sense of Responsibility

Defendant contends the prosecutor engaged in misconduct by urging the jurors not to “feel guilty about making this kind of decision, [or be] afraid to make the hard decision you have to make,” and by observing that “hundreds of juries” previously have made penalty decisions. Even if it had not been forfeited by defense counsel’s failure to object, this claim is without merit, because the statements, taken in context, simply admonished the jury to

g. Reference to the Absence of a Defense to the Lactawen Murder

During his penalty phase argument, the prosecutor stated, with regard to the factor (b) evidence, “And we all know, you didn’t see any defense to any of these crimes. We didn’t see anything presented to rebut testimony about Ms. Lactawen’s murder.” When defendant objected to this statement as “Griffin error” (see Griffin, supra, 380 U.S. 609 ) the trial court reminded the jury that the burden to prove the factor (b) evidence rested upon the prosecution and that defendant bore no burden. Defendant contends on appeal that the prosecutor’s comment violated defendant’s constitutional right to choose not to testify, and that the trial court’s admonition was insufficient to cure the alleged error. He is mistaken.

The People assert the prosecutor’s comments properly emphasized the absence of evidence controverting the prosecution’s evidence. (See People v. Mitcham (1992) 1 Cal.4th 1027 , 1051 [ 5 Cal.Rptr.2d 230 , 824 P.2d 1277 ].)

Defendant also contends the prosecutor’s statement took unfair advantage of the denial of defendant’s in limine motion to exclude the Lactawen murder evidence, because the prosecutor “place[d] appellant in an untenable position and subsequently argue[d] that the choice appellant was forced to make supported sentencing him to death.” Even if defendant had not forfeited this claim by failing to raise it below, we would conclude that it fails because, as discussed above, any possible misconduct would have been harmless beyond a reasonable doubt.

h. Asserted Denigration of Defendant’s Evidence in Mitigation

Defendant claims the prosecutor engaged in misconduct by arguing “the entire defense in this case is to blame others,” by calling the defense that had been presented “penalty phase madness,” and by referring to defendant as a “snitch” in discussing his assistance to the authorities at the jail. In view of the lack of objection at trial, these challenges have been forfeited. They also lack merit. There was nothing deceptive or reprehensible about these comments, and they did not, individually or cumulatively, improperly denigrate defendant’s evidence in mitigation.

k. Argument Regarding the Role of Evidence in Mitigation

Defendant takes issue with the prosecutor’s argument at various points that mitigation involved lessening defendant’s “responsibility” and “culpability.” Defendant argues this was misconduct because it misstated the law, in that the jury is to consider “[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (§ 190.3, factor (k).) Again, the lack of an objection and request for an admonition forfeited this claim. Moreover, we discern no misconduct. The prosecutor’s isolated remarks regarding responsibility and culpability, even if erroneous, were not so significant as to overshadow the prosecutor’s other correct statements of the definition of mitigation. The prosecutor in no way argued that the jury could not consider defendant’s evidence in mitigation, and in fact he discussed essentially the entire defense case and often pointed out that it was for the jury to determine whether and to what degree particular evidence amounted to a mitigating factor. Any possible misconduct would be of minimal significance, and was rendered even less potentially harmful by defendant’s penalty phase argument, which stressed the jury’s ability to consider mercy and sympathy, and the trial court’s proper instructions on the scope of the mitigating factors.

l. Cumulative Impact of Asserted Penalty Phase Prosecutorial Misconduct

Finally, defendant summarizes the various claims of guilt and penalty phase misconduct discussed above, arguing pervasive misconduct occurred that cumulatively denied him his rights under the Eighth and Fourteenth Amendments to a fair and reliable penalty determination. He also argues this misconduct excuses his numerous failures below to object to the alleged instances of misconduct he has raised on appeal (see Hill, supra, 17 Cal.4th at p. 821), and that, beyond this, we should abolish the long-standing requirement that defendant object and request an admonition if doing so would not be futile.

As with his guilt phase claims, we decline defendant’s invitation to eliminate the requirement that defendants afford trial courts an opportunity to remedy in the first instance any prosecutorial misconduct that may have occurred during trial. Furthermore, we have not found any misconduct in this case. Even in the few instances discussed above in which we have assumed

5. Challenges to the Constitutionality of California’s Death Penalty Statute

Defendant reiterates various constitutional challenges to California’s death penalty law, all of which we repeatedly have rejected. Defendant does not provide any persuasive reason for us to reexamine our prior decisions.

Section 190.3, factor (a), which directs the jury to consider in determining the penalty the “circumstances of the crime,” is neither impermissibly vague nor overbroad, and does not result in an arbitrary or capricious penalty determination. (People v. Harris (2005) 37 Cal.4th 310 , 365 [ 33 Cal.Rptr.3d 509 , 118 P.3d 545 ] (Harris); Stitely, supra, 35 Cal.4th at p. 574; Maury, supra, 30 Cal.4th at p. 439.) Because capital defendants are not situated similarly to noncapital defendants, California’s death penalty law does not deny equal protection of the laws by depriving capital defendants of certain procedural rights accorded noncapital defendants. (Johnson, supra, 3 Cal.4th at pp. 1242-1243; People v. Allen (1986) 42 Cal.3d 1222 , 1286-1287 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ].) Accordingly, the jury may consider unadjudicated offenses under factor (b) as aggravating factors without violating a defendant’s rights to a fair trial, confrontation, an impartial and unanimous jury, due process, and a reliable penalty determination. (People v. Sapp (2003) 31 Cal.4th 240 , 316 [ 2 Cal.Rptr.3d 554 , 73 P.3d 433 ] (Sapp); People v. Bolden (2002) 29 Cal.4th 515 , 566 [ 127 Cal.Rptr.2d 802 , 58 P.3d 931 ].)

The use of terms such as “extreme,” “reasonably believed,” and “at the time of the offense” in the list of potential mitigating factors does not impermissibly restrict the jury’s consideration of evidence in mitigation or otherwise result in an arbitrary or capricious penalty determination. (Harris, supra, 37 Cal.4th at p. 365; Sapp, supra, 31 Cal.4th at p. 316; Maury, supra, 30 Cal.4th at p. 439.)

“The statute is not invalid for failing to require (1) written findings or unanimity as to aggravating factors, (2) proof of all aggravating factors beyond a reasonable doubt, (3) findings that aggravation outweighs mitigation beyond a reasonable doubt, or (4) findings that death is the appropriate penalty beyond a reasonable doubt.” (Snow, supra, 30 Cal.4th at p. 126.) The decisions in Ring v. Arizona (2002) 536 U.S. 584 [ 153 L.Ed.2d 556 , 122 S.Ct. 2428 ] and Apprendi v. New Jersey (2000) 530 U.S. 466 [ 147 L.Ed.2d 435 ,

Except as to “other crimes” evidence under section 190.3, factors (b) and (c), the court need not instruct regarding any burden of proof, or instruct the jury that there is no burden of proof at the penalty phase. (Carpenter, supra, 15 Cal.4th at pp. 417-418; see also Harris, supra, 37 Cal.4th 310 , 360; People v. Box (2000) 23 Cal.4th 1153 , 1216 [ 99 Cal.Rptr.2d 69 , 5 P.3d 130 ].) The court need not omit from the instructions factors that apparently are inapplicable. (Raley, supra, 2 Cal.4th at p. 919.) The claim that section 190.3, factor (g), which concerns “extreme duress,” has no relevance in this case and should not have been mentioned to the jury is of no consequence, because defendant acted alone in perpetrating the murders. (Rogers, supra, 39 Cal.4th at pp. 895-896.) There is no reasonable possibility that in light of the instructions as a whole and the arguments of counsel, the jury could have been misled by the inclusion of factor (g) to conclude that mitigating evidence could not be considered unless it constituted a legal excuse for defendant’s crimes.

The statute is not invalid for failing to create a presumption in favor of a sentence of life imprisonment without the possibility of parole, nor is the trial court or this court required to engage in intercase proportionality review when examining a death verdict. (Sapp, supra, 31 Cal.4th at p. 317.) The existence of prosecutorial discretion in deciding in which cases the death penalty should be sought does not render that punishment unconstitutional. (Ibid.)

F. Asserted Cumulative Error

Defendant contends the cumulative effect of the asserted errors requires reversal of his conviction and death sentence even if none of the errors is prejudicial individually. We disagree. In the few instances in which we have found error or assumed the existence of error, we have concluded that any error was harmless. These errors combined do not compel the conclusion that defendant was denied a fair trial.

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

Appellant’s petition for a rehearing was denied May 14, 2008, and the opinion was modified to read as printed above.