THE PEOPLE, Plaintiff and Respondent, v. CURTIS FLOYD PRICE, Defendant and Appellant, 1 Cal. 4th 324

Opinion KENNARD, J. After a year-long trial, a jury convicted defendant Curtis Floyd Price of the first degree murders of Elizabeth Ann Hickey and Richard Barnes (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), and it made special circumstance findings, as to the Hickey murder, of multiple murder (§ 190.2, subd. (a)(3)) and burglary-murder (§ 190.2, subd. (a)(17)(vii)). The jury also convicted defendant of one count each of robbery (§ 211) with the use of a firearm (§§ 1203.06, 12022.5), burglary (§ 459), receiving stolen property (§ 496), and conspiracy (§ 182).

The jury further found that defendant had twice previously been convicted of serious felonies (§ 667, subd. (a)), and had completed two prior separate prison terms (§ 667.5, subd. (a)). The jury fixed the penalty for the murder of Hickey at death. The trial court denied the automatic motion to modify the verdict of death (§ 190.4, subd. (e)), and it sentenced defendant on the noncapital counts to imprisonment for a determinate term of 10 years, consecutive to an indeterminate term of 25 years to life.

Defendant’s appeal from the judgment is automatic. (§ 1239, subd. (b).) The sentence for the offense of burglary shall be stayed, but the judgment shall otherwise be affirmed. I. Facts A.

Summary of Facts Relating to Guilt Defendant was released from prison in September 1982. On January 23, 1983, the gun collection of Richard Moore disappeared from his residence, apparently having been stolen in a burglary. On February 13, 1983, the body of Richard Barnes was found in his residence. He had been shot in the back of the head three times. On the morning of February 19, 1983, Berlie Petty found the body of Elizabeth Ann Hickey in the residence they shared.

Hickey, the stepdaughter of burglary victim Moore, had been beaten to death with a blunt instrument; guns belonging to her and to Petty were missing from their residence. That same evening, a gunman robbed employees of the Triplex Theater. The Barnes killing occurred in Los Angeles County. The Moore burglary, the Hickey killing, and the Triplex Theater robbery all occurred in Humboldt County. The police arrested defendant for the Triplex Theater robbery.

After a lengthy investigation, he was also charged with the Barnes and Hickey murders, receiving stolen property (the Moore weapons), and robberies at three other commercial establishments in Humboldt County during January and February of 1983. At trial, the prosecution presented evidence that defendant belonged to the Aryan Brotherhood (AB), a prison gang, and had committed the charged offenses in furtherance of a conspiracy originating with the gang leadership.

The principal objective of the conspiracy was the murder of Richard Barnes, who was the father of an AB member who had testified against other gang members. Defendant obtained the stolen Moore weapons, possibly with the knowledge or assistance of Hickey, to use in the killing of Barnes or for other AB assignments. Hickey was killed to obtain the guns in her residence and/or because she could incriminate defendant in the theft of the Moore weapons and/or the murder of Barnes. Defendant committed the Triplex Theater robbery to obtain funds with which to carry out his AB assignments.

The defense denied that defendant had committed any of the offenses. It offered alibi evidence to show that defendant was not in Humboldt County at the time of the Hickey killing and the Triplex Theater robbery. It attempted to cast doubt on the identification testimony of the robbery victims and the veracity of the prosecution’s AB witnesses, and it sought to cast suspicion on Petry for Hickey’s murder. The jury convicted defendant of two counts of first degree murder (one with special circumstances) and one count each of robbery, possession of stolen property, burglary, and conspiracy.

The jury acquitted defendant of one count of robbery, and it was unable to reach verdicts as to the remaining robbery counts.The description of the evidence that follows omits evidence of the charges that did not result in convictions. B. Prosecution Evidence 1. The Conspiracy and Barnes Murder Before this case arose, Steven Barnes, an AB member, had testified as a prosecution witness against other AB members and against several non-AB members. During the summer of 1982, the AB leadership, which included Michael Thompson and Clifford Smith, decided to retaliate.

The decision was made during a series of meetings at Palm Hall, an area inside the state prison at Chino. Prison authorities had placed Steven Barnes in protective custody, so the AB leaders decided to kill members of his immediate family instead. They selected defendant to do the killing. Defendant was then serving a sentence in the Montana state prison, but he was scheduled for release from prison soon without parole supervision. One of the AB leaders brought defendant to Palm Hall in August 1982 by subpoenaing him to testify at the leader’s trial.

After defendant arrived at Palm Hall, AB leaders offered him the “contract” to kill Richard Barnes. Defendant accepted. The AB leaders instructed him to procure weapons in Northern California before returning south to kill Richard Barnes. Janet Myers visited Smith regularly in prison. She was an AB “runner,” relaying messages to and from other AB members. Smith instructed Myers to take care of defendant. Defendant went to Myers’s house on the day he was released from prison. Joseph O’Rourke, an AB leader who normally supplied weapons to AB members in Southern California, picked defendant up there.

Defendant spent about one month working for O’Rourke. After O’Rourke was arrested in October 1982, defendant went to Humboldt County, where he spent most of the next three months. Defendant returned to Southern California in late January 1983. He stayed at the Santa Ana home of Michelle Scarborough, another AB runner, for approximately a week. He then stayed with Myers in Claremont. Defendant had a blue airline bag in which he kept a sawed-off shotgun and a revolver. While staying with Myers, defendant made a weekend trip to Auburn, near Folsom Prison, where he stayed with Rebecca Williams.

One night Myers drove defendant to different addresses he wanted to see. One of the addresses was the Temple City residence of Richard Barnes. On February 12, 1983, at 11 p.m., defendant left Myers’s house with Tammi Shinn, another AB “runner.” He returned early the next morning, collected his belongings, and left. On February 13, 1983, sheriff’s deputies discovered the body of Richard Barnes in the bedroom of his residence. The body was on the bed. The cause of death was three contact-range gunshot wounds to the back of the head inflicted by a .22-caliber handgun.

After the murder, Myers brought Smith a note signed by defendant. It stated: “That’s took care of. Everything went well. I am going back north. I will be in touch with you later.” Myers destroyed the note after showing it to Smith. The evidence against defendant on the conspiracy and Barnes murder counts consisted primarily of the testimony of Michael Thompson, Clifford Smith, and Janet Myers. In addition, the prosecution introduced evidence that defendant had testified in an earlier, unrelated trial that he was an AB member.

Credit card receipts showed that defendant had purchased gasoline in Pomona on February 12 and in Anaheim on February 13, 1983. In the room defendant had occupied in his mother’s house in Eureka, police found a slip of paper on which Richard Barnes’s address had been written, together with the name “Nate,” a nickname for Steven Barnes, and the words “send subpoena to him.” In defendant’s wallet, which they obtained from defendant’s mother, police found another note with a reference to an address and telephone number for “Steve Barnes’ step-father in Fountain Valley.” 2.

The Moore Residence Burglary and the Hickey Murder On January 23, 1983, William Eaton reported an apparent burglary at the Humboldt County residence of Richard and Dottie Moore, Eaton’s stepfather and mother, who were away from their residence for the weekend. The only items missing were the firearms in Richard Moore’s collection, which included two rifles, three shotguns, and a .22-caliber handgun. The house had not been ransacked. On February 18,1983, Berlie Petry had been living with Elizabeth Hickey and her two minor children for three or four years.

Hickey was the daughter of Dottie Moore and the stepdaughter of Richard Moore. Petry worked the night shift as a security guard at a lumber company. Both Petry and Hickey owned guns, including rifles, shotguns, and handguns. They kept the guns locked in a bedroom closet, except for a revolver that Hickey kept in a trunk. Petry left for work as usual at 11:30 p.m. As was his custom, he called the residence every hour on the hour. He spoke to Hickey at 1 a.m. and at 2 a.m., but he received no answer at 3 a.m. The line was busy at 4 a.m. and thereafter.

When Petry returned home at 8:30 a.m., the telephone receiver was off the hook. In the bedroom, he found Hickey’s nude and lifeless body on their bed. Both the bedroom closet and Hickey’s trunk had been ripped open. The guns were gone. Also missing was a combination radio and tape player that Petry had recently given Hickey. In Hickey’s trunk, officers found a note in Hickey’s handwriting that said “Call Curt at [telephone number of Rebecca Williams] about money for guns.” Hickey had been killed by blows to the head with a bar like a tire iron or crowbar.

There were five or six depressed skull fractures that left brain tissue exposed. Bruises on the upper right chest and each shoulder indicated Hickey had been forcibly held down. There were defensive wounds on the back of the hands. Two small knife incisions in the chest near the sternum were apparently inflicted after death. A day or two after Hickey’s murder, defendant arrived at his stepfather’s residence in Reno, Nevada. He had two bundles wrapped in blankets. Defendant said they were guns that might have been stolen. Defendant’s stepfather gave him permission to leave the guns at the residence.

On February 28, 1983, defendant returned to Reno and moved the bundles to a ministorage unit. A search of defendant’s automobile yielded a product manual for one of Petry’s rifles, a knife that had belonged to Hickey and had the name “Liz” written on it in fingernail polish, and a notebook in which someone had written, “Elizabeth, weapons, corner of Simpson and Pine [the location of Hickey’s residence].” Hickey’s telephone number was written on the same page. Another note with the name “Liz” and Hickey’s telephone number was found in defendant’s room at his mother’s residence in Eureka.

A third note with Hickey’s name, address, and telephone number was found in defendant’s wallet. Defendant’s mother gave police a combination radio and tape player that had been in defendant’s room. It was identical to the one taken from the Hickey residence. In a suitcase in the garage of defendant’s mother’s residence, the police found a shotgun like one taken from the Moore residence. The barrel and stock had been sawed off. On March 31, 1983, law enforcement authorities searched the mini-storage unit in Reno, Nevada.

They found all of the guns taken from the Moore residence except one shotgun (apparently the one found in defendant’s mother’s garage) and the handgun. They also found all the guns belonging to Hickey and Petry, and over 1,000 rounds of various kinds of ammunition. Most of the guns were loaded. Moore’s handgun, which was one of only four makes that could have fired the bullets that killed Richard Barnes, was never found. 3. The Triplex Theater Robbery A man entered the Triplex Theater on February 19, 1983, at approximately 6:30 p.m. He had long, thin blond hair and was wearing sunglasses, a watch cap, and gloves.

During the movie, he came out into the lobby, pointed a revolver at the manager, and directed him into the office. At the man’s direction, the manager put $7,000 in a bag and gave it to the man, who ran out of the theater. A month earlier, on January 16,1983, an employee of the theater had seen a man with thin blond hair, wearing sun glasses, a large coat, a watch cap, and gloves, who came out into the lobby several times during the movie. The man’s behavior seemed so unusual that she eventually decided to report it to the police, but the man had left before the police arrived.

This employee selected defendant’s photograph from a photo lineup, but she was unable to identify defendant at a live lineup. The theater employees assisted the police in preparing a composite sketch of the robber. Five of the employees selected defendant’s photograph from a photo lineup as being similar to the robber, although none of them made a positive identification. Defendant bought an automobile for $1,602 in cash on February 25, 1983. Later that day, defendant was involved in an automobile accident. He paid the other driver $100 in settlement, taking the cash from a box that contained stacks of currency.

When he rented the storage locker in Reno, Nevada, defendant paid $150 for six months’ rental in advance. Although defendant used credit cards to purchase gasoline in January and February of 1983, including three purchases on February 18, he did not use the credit cards after that day. In a suitcase in defendant’s mother’s garage, the police found a blond wig, black gloves, a watch cap, a handgun, and various items of theatrical makeup (including spirit gum, liquid latex, derma wax, and nose putty).

In the room defendant occupied in his mother’s house, the police found a note that was apparently a list of defendant’s expenses and debts. On it defendant had written “need mucho dinero” and “$1,000.001 owe Mom means it’s all about ‘movie time.’ ” In the room, the police also found $400 in cash in a plastic container. 4. Investigation and Additional Evidence Defendant was arrested in Humboldt County for the Triplex Theater robbery on March 3,1983. His mother visited him in jail on March 27,1983.

Defendant asked her to move the guns and ammunition from the storage locker in Reno and to dispose of them so they would never be found. He referred to the guns as “Brand business.” “The Brand” is another name for the AB. In September 1983, Michael Thompson agreed to cooperate with law enforcement on the Barnes killing. Thompson persuaded Janet Myers to cooperate also. In October 1985, after testifying as a defense witness at defendant’s preliminary hearing, Clifford Smith renounced the AB and agreed to testify for the prosecution.

At trial, Una Ransbottom, one of Hickey’s neighbors, testified she had seen a man with Hickey on two occasions shortly before Hickey was killed. When police showed her a photographic lineup, she selected a photograph of defendant as the man she had seen with Hickey. C. Defense Evidence The defense called three prison inmates, Wendall Norris, John Stinson, and Robert Rowland, who testified that the AB existed only as an outlook, a way of life, or a loose social club rather than an organized criminal gang. They also said it was a label that prison authorities used to justify restrictive confinement.

The defense adduced evidence to show that Petry had the motive and the opportunity to kill Hickey. As part of his job, Petry was required to patrol the lumberyard each hour with a punch clock and put special keys in it at each of 33 key stations. Petry’s tape for the morning of February 19, 1983, showed that no keys were punched between 5:35 and 6:15 a.m. Petry explained, however, that he missed some of his key stations because he had to attend to a boiler breakdown, and because he had gate duty. Also, Petry’s telephone log showed he had received telephone calls at 6 a.m. from security guards at other locations.

Petry’s relationship with Hickey was troubled. Hickey frequently visited bars while Petry was at work and brought men home with her. A neighbor testified Hickey had brought over 100 men to her home. Petry once came home from work and found another man in bed with Hickey. Hickey infected Petry with venereal disease at least twice. Petry testified that Hickey was the first and only woman with whom he had been sexually intimate. A cab driver testified that Petry began hitting Hickey once while they were riding in his cab. Friends recalled seeing Hickey with black eyes and bruises on her face a couple of times.

A defense expert, psychiatrist Martin Blinder, testified about domestic homicides and the kinds of relationships that are most often associated with the killing of a spouse or lover. He said that mutilation of the victim’s face indicated a close personal relationship between the killer and the victim. Rebecca Williams testified that defendant arrived at her home in Auburn on February 13 or 14,1983. He stayed there until February 17. He borrowed her car that day and returned the next day, February 18, with long bundles. He left again in her car the same day.

Defendant’s stepfather testified that defendant arrived in Reno, Nevada, with two long bundles on February 18 and remained there until February 20, 1983. Defendant’s brother testified that he had purchased the radio and tape player found in defendant’s mother’s residence, and that he had given it to defendant as a present. D. Facts Relating to Penalty In 1967, defendant was convicted of possessing marijuana and of escape from Tehama County jail. He was released on parole in 1971. Defendant violated his parole by going to Montana, where he attempted to rob a small grocery store with a gun.

Defendant was placed in a drug program, but he escaped from custody. Defendant robbed a store in Humboldt County in September 1971. He was later arrested in Florida and brought back to Montana to complete his sentence. In December 1971, while being transported in Montana, defendant grabbed a gun from one of the two transporting officers. After forcing the officers to drive to a remote location, defendant locked them both in the trunk of their patrol car and used the gun to force his way into the car of a passing motorist, John Digalis. Defendant told Digalis to drive to Idaho.

Law enforcement officers stopped the car. Defendant pointed the gun at Digalis’s head and threatened to kill him if the officers approached. At defendant’s order, Digalis again began to drive, but the officers shot out a tire. Defendant eventually surrendered. He was convicted of inmate holding a hostage, a Montana felony. Defendant was in San Quentin Prison in May 1978. Defendant came to the cell of fellow inmate Ricky Carpenter. He told Carpenter he was going to kill Leroy Banks, an African-American inmate, because Banks had been disrespectful to an AB member. Carpenter pointed out Banks.

Defendant stabbed Banks 10 to 15 times in the chest. Banks died of his wounds. Prison authorities found defendant in possession of stabbing instruments in October 1978 and May 1980. While in jail awaiting trial in this case, defendant struck jail guards on two occasions, and on another occasion he violently resisted being taken to court, hitting and biting the guards who were escorting him. Testifying in his own behalf at the penalty phase, defendant said he had not testified at the guilt phase because the trial court had ordered him shackled in the courtroom.

Because he had not yet been convicted, he had refused to appear before the jury in chains. He denied he was guilty of any of the charged offenses. He admitted that he knew Hickey. He said Hickey had asked him to sell her guns for her on consignment. The final arrangements were made during a telephone call from Hickey to the home of Rebecca Williams in Auburn. He said he received the guns on February 18, 1983, in Lakeport from a man named Kenny. He said he had supported himself between October 1982 and March 1983 by selling marijuana.

Defendant presented evidence of the harsh conditions of his imprisonment in Montana. A woman who had visited defendant during that time testified that he was a valuable friend. Joseph O’Rourke testified that defendant had been a valuable employee in his handyman business during the one month he had worked for him; O’Rourke refused to answer any questions about the AB or his relationship to it. The defense presented evidence about the conditions of defendant’s confinement in jail pending the trial in this case. Defendant was confined apart from other prisoners.

Because he refused to eat meat, a special diet was necessary. Defendant found the food unappetizing and lost 20 pounds. A nutritionist testified that the food provided was monotonous and nutritionally inadequate. A counselor appointed to meet with defendant each week testified that defendant found the conditions of his confinement humiliating and stressful, and that these conditions made him seriously depressed and adversely affected his ability to communicate.

Fred Rosenthal, a psychiatrist, testified that defendant’s isolation in a dimly lit area caused sensory deprivation, leading to anxiety, depression, and hostility. Defendant’s mother, sister, and brother testified that they loved defendant and did not want him to die. Three officers who worked at Humboldt County jail and one who worked at San Quentin testified that defendant had been a respectful and cooperative inmate. II. Guilt and Special Circumstance Issues A.

Territorial Jurisdiction and Vicinage Defendant contends that Humboldt County Superior Court lacked territorial jurisdiction to try him for the murder of Richard Barnes, that trial of that offense in Humboldt County violated his right under the state and federal Constitutions to be tried by a jury drawn from the locality where the crime occurred, and that in any event the convictions for conspiracy and for Richard Barnes’s murder are invalid because the jury failed to find the required jurisdictional facts. We reject each of these contentions.

Defendant maintains that territorial jurisdiction to try him for the murder of Richard Barnes existed only in Los Angeles County, because it was there that Richard Barnes was fatally wounded and died, and there that his body was discovered. Defendant relies on

section 790, which provides that a charge of murder may be tried in a county where the fatal injury occurred, the victim died, or the victim’s body was found. Defendant argues that

section 790 gives him a state entitlement to be tried in Los Angeles County for the Barnes murder, and that deprivation of that entitlement denied him the due process of law guaranteed by the Fifth and Fourteenth Amendments to the federal Constitution. Defendant recognizes that many cases have held that

section 790 is not exclusive and that

section 781 also applies to a charge of murder. (E.g., People v. Douglas (1990) 50 Cal.3d 468, 493-494 [268 Cal.Rptr. 126, 788 P.2d 640].) Under

section 781, a public offense may be tried in a jurisdiction in which the defendant made preparations for the crime, even though the preparatory acts did not constitute an essential element of the crime. (People v. Powell (1967) 67 Cal.2d 32, 62 [59 Cal.Rptr. 817, 429 P.2d 137].) Defendant urges us to overrule decisions applying

section 781 to the crime of murder because they failed to consider the argument that

section 790, as a special statute providing for trial of the offense of murder, should take precedence over a statute of general application like

section 781. The rule of statutory construction cited by defendant applies only when two statutory provisions are inconsistent. (See Code Civ. Proc., § 1859 [“when a general and particular provision are inconsistent, the latter is paramount to the former”]; International Assn, of Fire Fighters Union v. City of Pleasanton (1976) 56 Cal.App.3d 959, 976 [129 Cal.Rptr. 68].) Two statutes dealing with the same subject are given concurrent effect if they can be harmonized, even though one is specific and the other general. (Acco Contractors, Inc. v.

McNamara & Peepe Lumber Co. (1976) 63 Cal.App.3d 292,295 [133 Cal.Rptr. 717]; see also People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 487-488 [204 Cal.Rptr. 897, 683 P.2d 1150].) Because sections 781 and 790 are not inconsistent and can be harmonized, we decline to overrule, and instead reaffirm, the decisions of this court holding that both sections are proper sources of territorial jurisdiction for trying the crime of murder. Under

section 781, the courts of Humboldt County had territorial jurisdiction to try defendant for the murder of Richard Barnes. The prosecution’s evidence showed that defendant was instructed to go to Northern California to procure a weapon or weapons with which to kill Barnes, that defendant went to his former home in Humboldt County a month after his release from prison, and that he returned three months later with a revolver and a sawed-off shotgun. He arrived in the Los Angeles area with these weapons just days after the Moore weapons were stolen.

Meyers testified that the shotgun found in defendant’s mother’s garage appeared to be the same one defendant brought with him to Los Angeles. This shotgun was the same model as the one taken from Moore. The jury could reasonably infer that the shotgun was Moore’s and that the revolver defendant brought back to Los Angeles was the one taken from Moore and never found. The jury could reasonably infer from these facts that defendant committed acts in Humboldt County that were preparatory to the murder of Barnes.

Defendant next argues that trial of the Barnes murder in Humboldt County deprived him of the right to be tried by a jury drawn from the locality or “vicinage” where the crime was committed, a right he contends is constitutionally guaranteed at both the federal (U.S. Const., Amends. VI, XIV) and state (see People v. Powell (1891) 87 Cal. 348, 355-360 [25 P. 481]; but see also People v. Guzman (1988) 45 Cal.3d 915, 938 [248 Cal.Rptr. 467, 755 P.2d 917]) levels. The issue is not preserved for appellate review, however, because no objection on this ground was made in the trial court. (Code Civ.

Proc., § 225, subd. (a); former § 1060; People v. Hernandez (1988) 47 Cal.3d 315, 340 [253 Cal.Rptr. 199, 763 P.2d 1289].) Defendant contends that his trial counsel’s failure to object in the trial court on vicinage grounds constituted ineffective assistance in violation of his right to effective counsel under both the federal (U.S. Const., Amends. VI, XIV) and state (Cal. Const., art. I, § 15) Constitutions. We disagree.

A defendant seeking relief on the basis of ineffective assistance of counsel must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 Cal.Rptr. 855, 659 P.2d 1144]; see also Strickland v.

Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699, 104 S.Ct. 2052].) Here, a reasonably competent attorney would have been aware that a Court of Appeal had held in 1974 that trial of a murder charge in a county in which the defendant performed preliminary acts did not violate the defendant’s vicinage rights even though the defendant completed the crime in a different county. (People v.

Powell (1974) 40 Cal.App.3d 107, 123 [115 Cal.Rptr. 109].) We have no occasion here to consider the soundness of that holding, but we conclude that a reasonably competent attorney might well have determined that an objection on vicinage grounds would have been futile in light of this precedent. Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.

Defendant next argues that we must set aside his convictions for conspiracy and the murder of Richard Barnes because the jury failed to make express findings of the jurisdictional facts. He asserts that the lack of such findings renders the guilt verdicts unreliable, thereby violating the Eighth Amendment to the federal Constitution.

A charge of conspiracy may be tried in “any county in which any overt act tending to effect such conspiracy shall be done.” (§ 182, subd. (a).) The information charged defendant with conspiring to commit robbery, grand theft, and murder “at and in the County of Humboldt.” The information alleged that defendant committed specified overt acts in Humboldt and Los Angeles Counties, and in Washoe County, Nevada. The jury found defendant guilty of the crime of conspiracy as charged in the information. It made no findings as to the commission of particular overt acts.

Because the information charged defendant with committing the crime of conspiracy in Humboldt County, the jury’s general verdict convicting defendant of conspiracy as charged necessarily encompasses a finding that defendant committed the offense in Humboldt County. This in turn implies a finding that defendant committed at least one overt act in Humboldt County in furtherance of the conspiracy. Thus, the jury made a sufficient finding of the required jurisdictional fact.

Defendant disputes this conclusion, arguing that the general verdict convicting defendant of conspiracy did not establish the required jurisdictional fact because the jury was not instructed on the need to determine jurisdictional facts, and so it may not have focused on whether the conspiracy occurred in Humboldt County.

Defendant cites no authority for this argument, and we are not persuaded that the court was required, absent a request, to instruct on the determination of jurisdictional facts, or that the lack of instructions provides a basis to challenge the verdict as a finding of territorial jurisdiction. (See People v. Sering (1991) 232 Cal.App.3d 677, 687 [283 Cal.Rptr. 507].) The information charged defendant with the murder of Richard Barnes in the County of Los Angeles, and the jury found defendant guilty as charged.

This verdict by itself does not establish territorial jurisdiction of the murder charge in Humboldt County. As we have seen, however, the jury also convicted defendant of conspiracy to commit murder. The evidence showed that the object of the conspiracy was the murder of Barnes, not the murder of Hickey. Because the jury found that defendant committed an overt act in furtherance of the conspiracy in Humboldt County, it necessarily found that defendant committed acts preliminary to the murder in that county, and thus it found the facts necessary under

section 781 to establish territorial jurisdiction in Humboldt County for the Barnes murder. B. The Motion to Sever Defendant contends the trial court abused its discretion when it denied his pretrial motion to sever the conspiracy and Barnes murder counts from the Hickey murder and burglary charges. He further contends that the denial resulted in unreliable guilt verdicts in violation of the Eighth Amendment to the federal Constitution.

As defendant concedes, the offenses charged in the information satisfied all statutory requirements for joinder. (See § 954.) Therefore, to establish abuse of discretion in the denial of the severance motion, defendant must make a clear showing of prejudice. (Williams v. Superior Court (1984) 36 Cal.3d 441, 447 [204 Cal.Rptr. 700, 683 P.2d 699].) To determine whether the court abused its discretion in denying severance, we examine the record before the trial court when it ruled. (People v.

Balderas (1985) 41 Cal.3d 144, 171 [222 Cal.Rptr. 184, 711 P.2d 480].) The first step in the analysis is to determine whether evidence of the conspiracy and the Barnes murder would have been admissible in a separate trial of the Hickey counts. (People v.

Walker (1988) 47 Cal.3d 605, 622 [253 Cal.Rptr. 863, 765 P.2d 70].) If evidence of these offenses would have been so admissible, it is very unlikely defendant could have been prejudiced by their joinder. (Ibid.) When it denied the motion to sever, the trial court said it had concluded that the evidence presented at the preliminary hearing supported a finding that defendant committed the Hickey and Barnes murders to further a single complex conspiracy. Defendant disputes this conclusion.

He maintains that the evidence presented at the preliminary hearing was sufficient to establish only a simple conspiracy to kill Barnes, and that the Hickey offenses, because they occurred after the killing of Barnes, were necessarily unrelated to that conspiracy. The preliminary hearing evidence supports the trial court’s conclusion that a single conspiracy linked all the charged offenses. Michael Thompson testified that after the AB council decided to give defendant the contract to kill Richard Barnes, he and two other council members told defendant of the decision.

They instructed defendant to “go to Northern California and by means of robbery, burglary or association with drug dealers, procure the weapons necessary to carry out the contracts in Southern California.” Although the only murder contract given to defendant at that time was for the killing of Barnes, the council intended that the weapons defendant was to steal would be available for other contracts as well. After defendant was released from prison, but before he killed Barnes, the council decided to give him two other murder contracts. A courier informed defendant of these additional contracts.

This evidence provided proof of an ongoing conspiracy to kill perceived enemies of the AB, or their relatives, and to commit robbery and other crimes for the purpose of obtaining money and weapons with which to accomplish these killings. This evidence would have been admissible in the trial of the Hickey counts to show motive. (Evid. Code, § 1101, subd. (b).) The jury could reasonably have inferred that defendant killed Hickey because she knew how he came into possession of the Moore weapons, which might have been used in the Barnes killing, and also to obtain additional firearms from her residence.

Evidence of the Barnes murder would have been admissible in a separate trial of the Hickey offenses to confirm the existence of the conspiracy and defendant’s participation in it, and thereby to further establish the motives for the Hickey offenses.

The trial court could reasonably have concluded that the probative value of the conspiracy and Barnes murder was substantial enough to outweigh the prejudice to defendant resulting from evidence of these other crimes. (Id., § 352.) Were we to conclude that evidence of the conspiracy and Barnes murder would not have been admissible in a trial of the Hickey burglary and murder, it would not follow that severance was required. Cross-admissibility of evidence in separate trials is but one of the factors the trial court must consider in determining whether potential prejudice requires severance. (Frank v.

Superior Court (1989) 48 Cal.3d 632, 641 [257 Cal.Rptr. 550, 770 P.2d 1119].) To discharge his burden of showing prejudice, defendant must show, for example, that one of the offenses was substantially more inflammatory than the other or was supported by significantly stronger evidence. (Ibid.) Defendant has made neither showing here. The evidence that defendant killed Barnes was not significantly stronger than the evidence he killed Hickey. No eyewitnesses testified to either killing, nor did defendant confess to either. The prosecution’s case as to each was strong but not overwhelming.

Nor was the Barnes murder significantly more inflammatory than the Hickey murder. The Barnes murder was an execution-style slaying of a person whose only offense was fathering a son believed to have betrayed a prison gang; the Hickey murder was an exceptionally brutal slaying of a young mother. Although different in their particulars, the two killings were equally abhorrent. We conclude that defendant did not make a sufficiently compelling showing of prejudice to require severance.

Therefore, the trial court did not abuse its discretion in denying the motion to sever the conspiracy and Barnes murder counts from the other charges in the information. C. The Motion for Change of Venue Defendant contends the trial court erred in denying his pretrial motions to change venue away from Humboldt County.

He asserts that the error deprived him of these rights under the federal Constitution: his Sixth and Fourteenth Amendment right to a fair and impartial jury, his Fifth and Fourteenth Amendment right to a fair trial consistent with due process of law, and his Eighth Amendment right to a reliable guilt determination in this capital case. When a defendant shows a reasonable likelihood that a fair trial cannot be had in the county of original venue, a motion for change of venue must be granted. (§ 1033; People v.

Coleman (1989) 48 Cal.3d 112, 133 [255 Cal.Rptr. 813, 768 P.2d 32].) The most significant factors to be considered are the gravity and nature of the crime, the size and nature of the community, the extent and nature of the publicity concerning the crime, the status of the victim, the status of the accused, and “any indication from the voir dire of prospective and actual jurors that the publicity did in fact have a prejudicial effect.” (Coleman, supra, at p. 133.) On appeal from a conviction after denial of a motion to change venue, a reviewing court makes an independent appraisal of these factors. (Ibid.) The charges against defendant included two counts of first degree murder, one with special circumstance allegations.

Humboldt County is predominantly rural and is one of the state’s smaller counties, with a 1984 estimated total population of 108,024. Therefore, the first two factors favor a change of venue. Examination of the other factors and the voir dire, however, indicate that defendant failed to demonstrate a reasonable likelihood that, as a result of pretrial publicity, a fair trial was not obtainable in Humboldt County. The record shows that publicity in this case began with accounts in April 1983 that defendant had been charged with the Hickey murder.

Newspaper articles described Hickey as “a 22-year-old mother of two,” mentioned that her children were sleeping in another room of the house when she was killed, and related that she died “of multiple skull fractures from numerous blows to the head.” After these initial articles, there was a six-month hiatus in publicity until the first preliminary hearing in October 1983.

Accounts of the preliminary hearing, in addition to noting evidence implicating defendant, related that defendant’s fingerprints were not found in the Hickey residence; that defendant’s stepfather placed him in Reno, Nevada, on the night of the Hickey murder; that Petry, described as Hickey’s “live-in boyfriend,” had “admitted his anger at Hickey’s promiscuous behavior”; and that the defense was contending it was Petry who had killed Hickey.

The accounts also mentioned that a cab driver said he frequently drove Hickey to two local bars, and that a truck driver remembered seeing her in one of these bars at midnight on the night she was killed. In January 1984, the media reported on hearings on a habeas corpus petition through which defendant sought changes in the conditions of his confinement.

They noted his successful request for a special diet because of a stomach condition and his complaints that his frequent shackling was unnecessary because he had “never assaulted any jail employee or police officer.” In February 1984, the media reported that the prosecution was seeking to expand the charges against defendant to include allegations that he killed Richard Barnes “as part of a conspiracy he formed with other members of a prison gang called the Aryan Brotherhood.” They related allegations in a prosecution news release that the conspiracy included plans to steal weapons and to kill four people.

In March 1984, the media reported that the prosecution had filed new charges against defendant, requiring a new preliminary hearing. These accounts mentioned that defendant’s prior preliminary hearing “was reputed to be the longest and most expensive in Eureka Municipal Court history” and that two supervisors had temporarily blocked payment of court costs “in what has become the most expensive criminal action in Humboldt County.” The media reported on the second preliminary hearing in April and May of 1984.

They related Michael Thompson’s testimony that the AB was “one of many prison gangs in which inmates of the same race band together” and “ ‘just short of being a white supremist [sic] organization,’ ” and that defendant was chosen to carry out murder contracts because of his “ ‘calculating nature,’ his past criminal record and ‘his mentality in general.’ ” They also related the testimony of defense witnesses Wendell Norris and Merlin Forbes that defendant was not an AB member, that the AB was more like a social club than a gang, and that the AB was never involved in any conspiracy to kill relatives of persons who had acted against the AB.

An

article appeared in a Eureka newspaper in August 1984, based on an

article printed in a San Francisco newspaper, alleging that the AB had become “a national crime organization with links to the Mafia,” and that it was “involved in criminal activities outside the prison system, including loan-sharking, wholesale narcotics dealing, extortion, arson and murder.” The

article did not mention defendant or make any reference to the crimes charged in this case. Coverage of the case by local radio and television stations, like the newspaper coverage, was intermittent rather than continuous. A Eureka television station, KIEM-TV, carried stories about defendant on its newscasts on just 10 days between March 3, 1983, and January 4, 1985. The average length of the broadcasts was less than one minute. Viewed as a whole, the media coverage was restrained and balanced, prominently featuring the defense evidence and arguments, and it abated almost entirely after the preliminary hearings.

The remaining factors, the community status of the victim and the defendant, do not demonstrate a necessity to change venue. Defendant was not a minority group member, nor was he a friendless outsider. Although the first newspaper articles described defendant as an Oregon resident, the media later reported that defendant’s mother lived in Humboldt County and that defendant had lived with her. Richard Barnes was not a resident of Humboldt County and was apparently unknown there. Elizabeth Hickey lived in the community, but she was not prominent.

As a young mother she was undoubtedly a sympathetic figure, but there is nothing in the record to indicate that her death caused unusual emotion in the community. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1002 [254 Cal.Rptr. 586, 766 P.2d 1].) The defense filed its original motion for change of venue in January 1985. On March 12,1985, before jury selection had begun but more than two years after the Barnes and Hickey killings, the trial court denied the motion without prejudice.

As the court remarked, there had been at that time “a nine-month span of near media blackout.” Jury selection began on June 11, 1985. The defense filed a second motion for change of venue on August 21, 1985, in the midst of jury selection. Attached to the motion as an exhibit was an analysis of potential jurors’ responses to a questionnaire they were required to complete.

According to this analysis, 76 percent of the potential jurors said they had not heard of defendant, 78 percent had not heard of Hickey, 94 percent had not heard of Richard Barnes, and 78 percent had not learned anything about the case from the media. Jury selection was completed on October 30, 1985. The trial court heard and denied the second venue motion the next day. In denying the renewed motion, the court said that more than 730 prospective jurors had been examined on exposure to pretrial publicity. Of these, 484 said they had no knowledge of the case and no knowledge of the AB.

Another 48 to 50 had knowledge of the AB but no knowledge of the case and could be fair. Thus, over 530 prospective jurors, or more than 72 percent, said they had no previous knowledge of the case. This is hardly the picture of a community in which knowledge of the case had become so deeply imbedded as to preclude a fair trial. The record does not support defendant’s assertion that the jurors who determined the verdicts had significant pretrial familiarity with the case.

Juror Stovall was familiar with the names of Price and Hickey, and recalled some discussion of the case at Areata Redwood, where both she and Petry had worked, but she said she did not know much about the case and had not formed an opinion. Juror Olivieri said that a coworker told him defendant had sued “the City,” and that it had “something to do with mistreatment when he was taken into custody,” but he was sure this would not affect his ability to be fair. Juror Gustafson said he had heard of defendant, but he apparently confused this case with another.

Juror Kramer’s husband was a psychologist and was appointed by the court to examine defendant for competency, but there is no indication she discussed the case with her husband. Some jurors indicated acquaintance with one or more of the witnesses, but none said this would interfere with credibility determinations. None of the actual jurors demonstrated significant recall of the charged offenses. Defense counsel was able to select a jury while using only 18 of his 26 peremptory challenges, and 6 of his 8 peremptory challenges to alternate jurors.

The failure to exhaust peremptories is a strong indication “that the jurors were fair, and that the defense itself so concluded.” (Balderas, supra, 41 Cal.3d at p. 180.) Apart from the traditional factors, defendant maintains that a change of venue was required in this case because Juror Southworth was acquainted with the prosecutor’s wife and was herself prosecuted during the trial by the local district attorney’s office, Juror Kramer (as previously mentioned) was married to a psychologist appointed by the court to examine defendant for competency, and the local jail had inadequate facilities to house an inmate of defendant’s reputed dangerousness for an extended period of time.

None of these facts was urged as a ground for changing venue, and none alters our conclusion that defendant has failed to demonstrate error in the denial of his motions to change venue. D. The Threatened Sanctions Against Defense Counsel During jury selection, the trial court issued a written order denying without hearing a defense motion to dismiss the case for violation of defendant’s statutory speedy trial rights (§ 1382).

In this order, the trial court criticized the two attorneys representing defendant for making repetitive motions and for including misleading and incomplete factual statements in their motion papers. The court cited specific instances of such conduct and said they were grounds for sanctions under Code of Civil Procedure

section 128.5. The court said it would hold a hearing after the trial to determine whether to impose sanctions under this

section and would consider compliance with its ruling as a factor at that hearing. Defense counsel moved to advance the date for the hearing regarding sanctions.

Counsel requested a prompt resolution of the sanctions issue because, in counsel’s words, “[t]he mere knowledge that at the end of the trial the Court will impose financial sanctions, as well as perhaps other sanctions, against defense counsel is ... so threatening and intimidating that it reduces defense counsel’s ability to fully protect [defendant’s] rights, knowing that to protect those rights or vigorously defend [defendant] will only result in stronger sanctions.” The trial court denied the motion at the next court session.

In doing so, the court said its previous order meant only that there was a possibility of a posttrial hearing on sanctions, and that the court now believed a hearing might not be necessary. The court explained that it had referred to sanctions only to remind counsel of their ethical duties, not to curb vigorous advocacy. The court ordered counsel not to allow concern about possible sanctions to interfere with their representation of defendant.

Defendant contends that the trial court erred in not promptly resolving the sanctions issue because the threat of possible sanctions may have inhibited counsel in forcefully advocating defendant’s cause at trial.

He contends that the error deprived him of these rights under the federal Constitution: his Sixth and Fourteenth Amendment rights to effective assistance of counsel, to present a defense, and to completely cross-examine witnesses; his Fifth and Fourteenth Amendment right to a fair trial consistent with due process of law; and his Eighth Amendment right to reliable guilt and penalty phase verdicts in this capital case.

We agree it is usually preferable for the trial court to promptly resolve any issue that arises regarding misconduct by counsel, rather than deferring hearing on possible sanctions until after the trial. Here, however, the trial court indicated it had not initiated sanctions proceedings and had mentioned sanctions only to impress upon counsel that certain practices, including making motions that duplicated motions already denied, were unacceptable. We do not find such warnings improper (see People v.

McKenzie (1983) 34 Cal.3d 616, 632 [194 Cal.Rptr. 462, 668 P.2d 769] [attorney must respectfully yield to court’s rulings, whether right or wrong]), particularly where, as here, the court also emphasizes counsel’s duty to vigorously represent their clients by all legitimate and appropriate means. Counsel presumably knew that their due process rights to notice and hearing and their statutory rights to appellate review gave them effective protection against the unwarranted imposition of sanctions. We find no error and no prejudice. E.

Defendant’s Competence to Stand Trial During jury selection, the court held a hearing in camera, in the absence of both prosecutors and defense counsel, to permit defendant to express concerns about his legal representation. Defendant explained that his primary problems were the conditions of his jail confinement and the court’s rulings denying motions his counsel had made. He said the court’s comments in rejecting defense positions suggested to him that the court believed his counsel to be incompetent.

In the presence of the prosecutors and defense counsel, the court announced it would appoint another attorney to advise defendant. Defendant protested that he would not trust anyone the court appointed. After defendant had left the courtroom, a prosecutor suggested the court might wish to comment on defendant’s demeanor. The court replied that defendant was “extremely upset” and “[i]rritated with the whole process.” Referring to the

section of the Penal Code dealing with competence to stand trial, the court said that it was “unclear at this point whether we have a 1368 problem or not.” The court said it might “appoint someone to attempt to interview” defendant and added that it was “not at this point expressing a 1368 doubt.” The prosecutor commented that “defendant’s voice was shaking, as well as his body, hands, legs.” The court agreed that defendant was “apparently under a great deal of emotional stress.” Defense counsel, who represented that she was a state-certified social worker, said she shared the court’s concern about defendant’s competence.

She added that “there is some question as to whether or not he is having a psychotic episode,” and that she had the impression he was suffering from delusions. Later that day, the court appointed Richard Kramer, a clinical psychologist, as a court’s expert to examine defendant on his competence to stand trial. The next day, Dr. Kramer met with defendant for 30 minutes, after which he submitted a confidential report to the court. In his written report, Dr.

Kramer said he found defendant to be depressed and anxious, but defendant’s thought processes were normal and there was no evidence of delusions or hallucinations. He found defendant to be “competent enough to comport himself in court,” but said he had insufficient information to determine defendant’s ability to rationally collaborate with his current counsel. The court noted that Dr. Kramer’s report was inconclusive. The court did not commence formal proceedings under

section 1368 to determine defendant’s competence to stand trial. Defendant contends that the court erred in failing to commence formal competency proceedings or, in the alternative, that it erred in failing to take further steps to determine whether such proceedings should be commenced. He contends that the error denied him his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution to due process of law, fair trial, trial by jury, confrontation and cross-examination of witnesses, presentation of a defense, effective assistance of counsel, and reliable guilt verdict.

We find no error and no constitutional violation. If “a doubt arises in the mind of the judge as to the mental competence of the defendant,” the judge is required to state the doubt on the record. (§ 1368, subd. (a).) This is the first step in initiating formal proceedings to determine a defendant’s competence to stand trial. Defendant does not contend that the record here contains substantial evidence of defendant’s incompetence to stand trial, and he concedes that the trial judge did not say he had a “doubt” about defendant’s competence. Indeed, the judge expressly said he was not expressing any such doubt.

Defendant nonetheless argues that when the judge spontaneously raised the question of competence, this should be deemed the expression of a doubt. The law is otherwise. A trial court’s expression of preliminary concerns about competency does not require the commencement of competency proceedings. (People v. Gallego (1990) 52 Cal.3d 115, 159, 162-163 [276 Cal.Rptr. 679, 802 P.2d 169].) Defendant next contends that the trial court failed to take appropriate steps to resolve its preliminary concerns. We disagree. The court appointed its own expert to examine defendant and it alerted counsel to the potential issue.

After reviewing the expert’s report, the court was apparently satisfied that there was no present incompetence and no need for finther examination. The expert found no impairment of defendant’s ability to think logically, to understand the case against him, or to express his views. He found defendant to be anxious and depressed, but these findings are hardly surprising in a defendant on trial for his life. At the expert’s suggestion, the court appointed a counselor to meet with defendant at the jail each week to provide him with emotional support. The court proceeded reasonably and in accordance with the law.

We find no abuse of the court’s discretion. F. The Motion to Prohibit Reference to “Aryan Brotherhood” Before trial, the defense made two motions under Evidence Code

section 352 to preclude the prosecution from introducing any evidence of the name “Aryan Brotherhood.” The defense argued that the name was inherently prejudicial because the word “Aryan” was popularly associated with Nazism and other racist ideologies. The trial court denied the motion each time, ruling that the prosecution could not effectively present its case without using the name and that undue prejudice to defendant could be avoided by excusing for cause any potential jurors whose responses indicated they would be unduly prejudiced by the name.

We reject defendant’s contention that the ruling was an abuse of discretion and denied him his state and federal constitutional rights to an impartial jury, to due process of law, and to reliable verdicts in a capital case. In ruling on the pretrial motions, the court was guided by the preliminary hearing evidence. That evidence showed that defendant’s membership in the AB was central to the prosecution’s case, under which all of the charged offenses originated with a conspiracy by the AB leadership to murder the father of a defecting member. (See People v.

Frausto (1982) 135 Cal.App.3d 129,140-141 [185 Cal.Rptr. 314], and cases there cited.) The defense, on the other hand, appeared to dispute the AB’s very existence, defendant’s membership, and tibe AB’s character as a gang rather than a mere social club. To litigate the existence and character of an organization without naming it would have been a practical impossibility and might have caused the jury to speculate about why the name was being withheld. Also, voir dire provided an effective means to remove any jurors who might be so prejudicially influenced that they could not fairly try the case. G.

The Sufficiency of the Pleadings and the Evidence to Support the Conviction for Conspiracy Count 12 of the information charged defendant with the crime of conspiracy “at and in the County of Humboldt,” and it alleged that defendant committed 13 overt acts in support of the conspiracy. But the information alleged that defendant committed the conspiracy “on or about the months of April to September, 1982,” whereas the earliest date on which it alleged defendant committed any overt act was January 15,1983.

Defendant contends that the information was fatally defective because it did not allege that defendant committed any overt act during the time of the conspiracy. Alternatively, he argues that there was no substantial evidence at trial that he committed any conspiracy in Humboldt County on the dates alleged in the information. These contentions are unavailing.

Any uncertainty caused by the wording of the information was dispelled by the verdict form, which recited that defendant was charged with a conspiracy “formed between April and September 1982, and ending in March 1983.” The verdict of guilty entered on this form is supported by substantial evidence.

Michael Thompson testified that the AB leadership decided during the summer of 1982 to kill disloyal AB members or their immediate family, including Richard Barnes; that this assignment was given to defendant; that he was instructed to prepare for the assignment by obtaining weapons in Northern California; and that defendant accepted the assignment. The prosecution introduced other evidence to show that defendant committed various acts in Humboldt County in January and February of 1983 to achieve the objectives of the conspiracy.

By not demurring to the information’s conspiracy charge, the defense waived the claim that the conspiracy charge was ambiguous or uncertain. (People v. Thomas (1986) 41 Cal.3d 837, 843 [226 Cal.Rptr. 107, 718 P.2d 94]; People v. Jackson (1978) 88 Cal.App.3d 490, 500 [151 Cal.Rptr. 688].) Assuming the information was ambiguous, defendant could not have been misled. The preliminary hearing evidence gave defendant ample notice of the charge against which he was required to defend. (People v. Paul (1978) 78 Cal.App.3d 32, 43 [144 Cal.Rptr. 431].) H.

Juror-challenge Issues Defendant disputes various trial court rulings that denied defense challenges for cause, granted prosecution challenges for cause, and excused one sitting juror. He asserts that the rulings denied him these rights under the federal Constitution: the Sixth Amendment right to effective assistance of counsel, the Fifth and Fourteenth Amendment right to due process of law, and the Eighth Amendment right to reliable guilt and penalty determinations in a capital case. We find no error in these rulings. 1.

Juror Number Three In January 1986, in the midst of the guilt phase of the trial, the prosecutor informed the trial court he had recently learned that Juror Number Three had been “far less than candid” during voir dire. In December 1963, Juror Number Three had begun serving a sentence in the Oregon State Correctional Institution for assault with a dangerous weapon. In 1967, he had been paroled to California, where he was supervised by Dick Wild, a prosecution witness in the current proceeding. In October 1972, the Governor of Oregon had granted Juror Number Three a full pardon.

In December 1976, Humboldt County District Attorney John Buffington had charged Juror Number Three by complaint with assault with a deadly weapon (§ 245). Juror Number Three had secured a dismissal of the Humboldt County charge before the preliminary hearing, after which he had filed an action, which the court eventually dismissed in 1983 for failure to prosecute, against District Attorney Buffington and others. Buffington was later appointed to the superior court; he was the trial judge in the current proceeding.

Juror Number Three had revealed none of this information during voir dire, even though all prospective jurors had been asked by questionnaire whether they had been involved in a criminal proceeding as a defendant or witness. Juror Number Three had responded to this question with the statement that he had once been a witness. When asked if he knew any of the prosecution witnesses, Juror Number Three said he knew Dick Wild through an organization called Toastmasters International; he never revealed that Wild had been his parole officer. The trial court questioned Juror Number Three about the matter.

The juror admitted he had been guilty of the Oregon offense, to which he had pleaded guilty, but he said he had relied on a legal

interpretation he had received from the State of Oregon stating that a full pardon “totally obliterates” a conviction. He said he “saw no reason” to mention, when asked about his relationship with Wild, that Wild had been his parole officer because it was “over and done.” He said he was not guilty of the Humboldt County offense, and he had not thought it necessary to disclose the charge because it had been dismissed. He admitted that the Humboldt County charge had “ruined a military career” for him, but he denied harboring any grudges against the system.

He said he could be fair and impartial to both sides in this case. The prosecutor moved to disqualify Juror Number Three from the jury. Defense counsel opposed the motion. The trial court excused Juror Number Three and substituted an alternate juror in his place, explaining that by concealing material information about the Oregon offense Juror Number Three had denied the prosecution the opportunity to intelligently exercise its peremptory challenges.

A sitting juror can be removed only for illness or other good cause. (§ 1089.) An appellate court reviews a trial court’s finding of good cause under the deferential abuse-of-discretion standard. (People v. Abbott (1956) 47 Cal.2d 362, 371 [303 P.2d 730]; People v. Thomas (1990) 218 Cal.App.3d 1477, 1484 [267 Cal.Rptr. 865]; People v.

Goins (1981) 118 Cal.App.3d 923, 926 [173 Cal.Rptr. 655].) When the trial court discovers during trial that a juror misrepresented or concealed material information on voir dire tending to show bias, the trial court may discharge the juror if, after examination of the juror, the record discloses reasonable grounds for inferring bias as a “demonstrable reality,” even though the juror continues to deny bias. (People v. Farris (1977) 66 Cal.App.3d 376, 386-387 [136 Cal.Rptr. 45]; see also People v.

Hecker (1990) 219 Cal.App.3d 1238, 1244-1245 [268 Cal.Rptr. 884].) Here, the information concealed by Juror Number Three was material. When considered in light of the juror’s conduct in concealing it during voir dire, that information established substantial grounds for inferring that Juror Number Three was biased against the prosecution, despite his protestations to the contrary. (See People v.

Morris (1991) 53 Cal.3d 152, 183-184 [279 Cal.Rptr. 720, 807 P.2d 949] [“Concealment by a potential juror constitutes implied bias justifying disqualification"].) The trial court did not abuse its discretion in discharging Juror Number Three and seating an alternate in his place. 2. Denial of Defense Challenges for Cause Defendant contends the trial court erred in denying defense challenges for cause to 11 prospective jurors. Defendant is precluded from making this contention, however, by the failure to exhaust peremptory challenges.

The defense used peremptory challenges to remove 7 of the 11 jurors he now contends should have been removed for cause. Of the 4 remaining jurors, 2 were selected as regular jurors and 2 as alternates. When the defense accepted the jury, it had 8 peremptory challenges it could have used against the 2 regular jurors it had challenged for cause. When it accepted the alternates, the defense had 2 peremptory challenges it could have used against the 2 alternates it had challenged for cause.

Because the defense had sufficient peremptory challenges remaining to remove each of the jurors unsuccessfully challenged for cause, defendant cannot have been prejudiced by the trial court’s failure to sustain the challenges for cause. (People v. Morris, supra, 53 Cal.3d 152, 184; People v. Stankewitz (1990) 51 Cal.3d 72, 103 [270 Cal.Rptr. 817, 793 P.2d 23]; People v.

Coleman (1988) 46 Cal.3d 749, 770 [251 Cal.Rptr. 83, 759 P.2d 1260].) Defendant argues that his failure to exhaust peremptory challenges is excused because the trial court used a jury selection system under which counsel knew the order in which prospective jurors would be called into the box. We rejected the same argument in People v.

Morris, supra, 53 Cal.3d 152, reasoning that, regardless of the system used, “a party’s failure to exercise available peremptory challenges indicates relative satisfaction with the unchallenged jurors.” (At p. 185.) As another excuse for the failure to exhaust peremptory challenges, defendant points out that the pool of 20 prospective jurors remaining after the jurors and alternates had been accepted included 6 more prospective jurors the defense had unsuccessfully challenged for cause. We reject this excuse for the same reason.

Defendant has not shown that exhausting his remaining peremptories would necessarily have resulted in the seating of a juror who ought to have been removed for cause. In this situation, his failure to exhaust peremptories waived the contention that defense challenges for cause were erroneously overruled. 3. Granting Prosecution Challenges for Cause Defendant contends the trial court erroneously excused two prospective jurors, on prosecution challenges for cause, because of the jurors’ death penalty views.

In a capital case, a prospective juror may be excluded if the juror’s views on capital punishment would “prevent or substantially impair” the performance of the juror’s duties. (Wainwright v. Witt (1985) 469 U.S. 412,424 [83 L.Ed.2d 841, 851, 105 S.Ct. 844]; People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) During the voir dire, prospective juror Janet Ohligschlager answered “correct” when asked if her opinion concerning the death penalty was such that she would be unable to vote for it even though the evidence indicated it was a proper punishment.

Under questioning by the defense, she said she could try to put aside her personal feelings about the death penalty and consider the evidence presented by both sides. When again questioned by the court, Ohligschlager said she did not think she could conceive of any situation in which she would vote for the death penalty. Prospective juror Sandy Natt also expressed serious reservations about his ability to return a verdict of death.

As he put it, “. . . to take a life, I don’t know if I could handle that.” Asked whether he would be able to vote for death, he said, “I don’t think I could.” He also indicated, in response to defense questioning, that he could consider the evidence presented by both sides. Asked by the prosecutor whether he could return a verdict of death, Natt said, “Might be—if he had enough real bad stuff about him, maybe I could. But I don’t really think I could.” We find no error in the rulings sustaining the challenges for cause to these prospective jurors.

Each juror gave answers showing substantial impairment of the juror’s ability to fairly decide the issue of penalty. To the extent the jurors’ other answers were conflicting or ambiguous, the trial court’s implied determination as to their states of mind is binding upon this court. (People v. Daniels (1991) 52 Cal.3d 815, 875 [277 Cal.Rptr. 122, 802 P.2d 906].) I.

Shackling of Defendant On November 21, 1985, shortly after the guilt phase of the trial had begun, the trial court ordered that during all further court proceedings defendant would be secured to his chair in the courtroom by a single belly chain that would not be visible to the jury. The order followed a two-day hearing out of the jury’s presence.

Based on the evidence presented at that hearing, the court found that defendant had struck correctional officers at the jail on several occasions, that the frequency of the assaults had “increased dramatically within the last month for some unknown reason,” and that this conduct had caused the court to have concern for the safety of court attaches, jurors, and witnesses. Defendant contends that the court’s findings are not supported by the evidence received at the hearing and that by making the shackling order the trial court abused its discretion.

He asserts that the ruling violated these rights under the federal Constitution: the Sixth Amendment rights to present a defense and to confront and cross-examine the witnesses against him, and the Eighth Amendment right to a reliable guilt verdict in this capital case. A criminal defendant may be shackled at trial only as a last resort and only upon a showing of manifest need. (People v.

Duran (1976) 16 Cal.3d 282, 290-292 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1].) A trial court’s decision to require that a defendant be shackled is reviewed on appeal under the deferential abuse-of-discretion standard. (People v. Stankewitz, supra, 51 Cal.3d 72, 95.) Because the record adequately shows a manifest need to have defendant shackled during courtroom proceedings, we find no abuse of discretion in this case. On October 26, 1985, about four weeks before the shackling order, two correctional officers went to an exercise and recreation area at the jail to escort defendant to his cell.

Officer Silvia was standing near defendant as defendant was dressing. Defendant brought his face close to Silvia’s face, blew cigarette smoke in Silvia’s face, and flicked cigarette ash on Silvia’s pants. Addressing Silvia with a derogatory racial epithet, defendant said Silvia owed him an apology, and he dared Silvia to report the incident. When Silvia said he would report it, defendant struck Silvia on the left side of the jaw. On Sunday, November 17, 1985, at 9:30 a.m., Officer Silvia told defendant it was time for lock-down. Defendant told Silvia not to speak to him in an angry manner.

Defendant said if Silvia met him in an angry manner, defendant would meet Silvia in an angry manner. If Silvia pushed him, defendant would push Silvia. Silvia told defendant he had already had 10 minutes over the allotted hour and said he was asking defendant to lock down. Defendant responded with a sexual taunt. On November 19, 1985, at 7:45 a.m„ Officer St. Denis gave defendant a notice of disciplinary violation relating to the incident that occurred two days earlier.

Shortly after 8 a.m., as he was taking his shower in an area near his cell, defendant called to Officer Wolf, asking him to get Sergeant Gray and Officer St. Denis. Officer Wolf entered the shower area because he was not able to hear defendant clearly from outside. Defendant asked Wolf to remain outside. When Wolf did not immediately comply, defendant rushed at Wolf and either struck him or pushed him out of the shower room. Defendant then called Wolf derogatory names. About an hour later, correctional officers shackled defendant in the usual manner for transportation to the courtroom.

The restraints consisted of handcuffs, belly chain, and leg irons. After walking about 20 yards, defendant turned his back to the wall and complained that one of the leg iron cuffs was too tight. The officers escorting defendant asked him to turn so his side was toward the wall. Defendant refused three times. The officers then moved defendant across the hall so he faced the opposite wall. Defendant resisted, striking at the officers with his elbows and feet and biting one officer on the arm. The officers returned defendant to his cell.

About an hour later, when Lieutenant Doane asked him whether he was willing to go to court, defendant responded with profanity and insults. The evidence thus established that defendant had committed multiple acts and threats of violence against officers at the jail or while being transported to court. The two separate violent incidents on the morning of November 19 were particularly disturbing. The trial court could reasonably infer that defendant was experiencing increasing difficulty in controlling his violent impulses.

Under these circumstances, the trial court had grounds for concluding that, unless restrained physically, defendant would resort to violence in the courtroom if he became irritated or frustrated with the proceedings. Correctional officers testified that defendant is very strong, and that he is difficult to handle when violent. The hearing evidence thus established a manifest need for the trial court’s order requiring that defendant be restrained in the courtroom by a single concealed belly chain. J.

Waiver of Presence During Guilt Phase of Trial After the court made its ruling that defendant would be chained in the courtroom during further proceedings, defendant said he would rather be absent from the trial than appear before the jury in chains. The trial court allowed defendant to leave the courtroom and return to the jail, after informing defendant that his leaving would be construed as a voluntary waiver of presence.

After giving the matter further thought, the court directed jail officers to bring defendant back to the courtroom, but defendant refused to dress in civilian clothing for the court appearance. The court then concluded that defendant had effectively waived his presence. The remainder of the guilt phase proceeded in his absence. We reject defendant’s contention that the right of presence during the guilt phase of a capital trial is of such fundamental importance that, as a matter of state or federal constitutional law, it may not be waived.

The United States Supreme Court has never held that a defendant cannot waive the constitutional right to be present at critical stages of even a capital trial, and this court has concluded, as a matter of both federal and state constitutional law, that a capital defendant may validly waive presence at critical stages of the trial. (People v. Lang (1989) 49 Cal.3d 991,1026 [264 Cal.Rptr. 386, 782 P.2d 627]; People v. Robertson (1989) 48 Cal.3d 18, 59-62 [255 Cal.Rptr. 631, 767 P.2d 1109]; see also, People v.

Sully (1991) 53 Cal.3d 1195, 1238-1240 [283 Cal.Rptr. 144, 812 P.2d 163].) We find no constitutional infirmity in the trial court’s decisions in this case to accept defendant’s actions as a voluntary waiver and to proceed with the guilt phase in defendant’s absence. Defendant also argues that the trial court, by holding the trial in defendant’s absence, violated

section 1043, subdivision (a), which provides that in a felony case the defendant “shall be personally present at the trial.” Although

section 1043 provides for certain exceptions to the presence requirement, defendant maintains that none applies in this case. The provision that a trial may proceed when a defendant is “voluntarily absent” is inapplicable, he argues, because this exception by its terms applies only in noncapital cases. (§ 1043, subd. (b)(2).) The provision that a defendant may “waive his right to be present in accordance with

Section 977” (§ 1043, subd. (d)) is inapplicable, defendant argues, because

section 977 by its terms does not permit a defendant accused of a felony to waive personal presence at “those portions of the trial when evidence is taken before the trier of fact.” Finally, defendant recognizes that a trial may proceed in the absence of a defendant who has been removed for disruptive behavior (§ 1043, subd. (b)(1)), but he maintains that this did not occur. The trial court did not violate

section 1043. In addition to finding that defendant had voluntarily waived his presence, the trial court found that defendant’s conduct “has disrupted and continues to disrupt the procedure of this Court.” The record amply supports this finding. After announcing that he would not appear before the jury in chains, defendant walked out of the courtroom and declined to dress in civilian clothes to be returned to the courtroom.

Because defendant had recently assaulted officers during transportation to the courtroom, the trial court could reasonably anticipate that any effort to bring defendant to the courtroom against his will would endanger the safety of the transporting officers and of persons in the courtroom. A trial court need not wait until actual violence or physical disruption occurs within the four walls of the courtroom in order to find a disruption within the meaning of

section 1043. K. Presence at Other Hearings Defendant contends he was denied his statutory and constitutional right to be present at various hearings that occurred both before and after the events discussed in the preceding section. We conclude that defendant’s presence was either validly waived or not required at each of these proceedings. 1. Voir Dire Defendant was absent from jury voir dire during the morning of July 31, 1985, and again on August 5, 1985. Each time, defendant sent a note to the court explaining his absence and signed a waiver form.

On July 31, defendant said in the note that he preferred to use the morning for a doctor’s appointment and for court-ordered recreation at the jail. On August 5, defendant said in the note he preferred to use the time for exercise. Although the waiver forms were not executed in open court and did not use the precise language of

section 977, they substantially complied with that provision. Accordingly, the waiver was valid under sections 977 and 1043, subdivision (d). Defendant maintains the waiver was involuntary because recreation and exercise were necessary to his physical and mental health and he could obtain them only by waiving his right to be present in court. We find insufficient support in the record for these factual assertions. The trial court had previously ordered that jail authorities provide defendant with five hours of exercise or recreation each week.

If jail authorities interpreted or implemented this order in a manner that unreasonably interfered with defendant’s right to be present during critical stages of the trial proceedings, defendant’s remedy was to apply to the trial court for a further order. Having failed to exhaust this avenue of relief, defendant cannot claim that his decision to remain absent from a small portion of the jury selection proceedings, a decision in which his counsel concurred, was other than voluntary. 2.

Requests to Relieve Defense Counsel On February 11, 1986, during the guilt trial and after defendant had waived his presence, defendant sent the court a memorandum purporting to be a motion to relieve Anna Klay, one of the two attorneys representing him. Defendant did not express any dissatisfaction with Klay’s performance as his counsel. Rather, defendant sought to discharge her so she could testify to prior inconsistent statements of prosecution witness Clifford Smith without violating the rule that forbids an attorney to b

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