THE PEOPLE, Plaintiff and Respondent, v. JOHN GALEN DAVENPORT, Defendant and Appellant, 11 Cal. 4th 1171

Opinion ARABIAN, J. This case reaches us again after a penalty phase retrial following this court’s affirmance of defendant John Galen Davenport’s 1980 first degree murder conviction (Pen. Code, §§ 187, subd. (a), 189), and torture-murder special-circumstance finding (§ 190.2, subd. (a)(18)), and reversal of his death sentence based on instructional error.

In reversing the penalty phase, we concluded that the penalty instructions erroneously failed to inform the jury of the standard of proof required before certain aggravating evidence could properly be considered, failed to inform the jury of its discretion to consider any element of defendant’s background or character as a factor in mitigation of penalty (an instructional error compounded by the prosecutor’s closing argument), and misled the jury by failing to make clear that the weighing of aggravating and mitigating circumstances is not a mechanical or numerical process, but rather entails the jury’s responsibility for determining the appropriate punishment based on all the relevant evidence. (People v.

Davenport (1985) 41 Cal.3d 247, 280 [221 Cal.Rptr. 794, 710 P.2d 861] (Davenport I).) For the guidance of the trial court on retrial of the penalty phase, we further found erroneous the prosecutor’s reference to the Governor’s power to commute a sentence of either death or life imprisonment without the possibility of parole, and his argument that the absence of evidence of a mitigating factor could be considered evidence of an aggravating factor. (Id. at pp. 277-278, 280, 287-289.) At the ensuing 1989 retrial, the jury fixed the penalty for murder in the first degree with a special circumstance at death, and thereafter the court imposed a sentence of death.

The case is before us on automatic appeal. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) For the reasons that follow, we conclude that the judgment should be affirmed. I. Facts A. Davenport I Because this retrial involves only the penalty phase, we briefly review the evidence presented at the guilt phase, which was fully described in Davenport I, supra, 41 Cal.3d at pages 256-260. Gayle Lingle, the victim, spent the evening of March 26, 1980, at the Sit ’N Bull Bar in Tustin. Between approximately midnight and 1 a.m., she and defendant left the bar.

The victim’s body was found the next morning lying in a large, uncultivated field south of the 1-5 freeway near Tustin. There were motorcycle tracks in the area. The victim, nude except for a sweater draped over her upper torso, suffered numerous and extensive stabbing and slashing wounds about her neck, chin and jaw as well as defensive wounds to her hands and forearms. Her carotid artery had been severed, and her breasts were bitten and bruised. A 52-inch nail-embedded wooden stake had been driven into her rectum, through her body, injuring various internal organs and tissues, and up to her right armpit.

The autopsy pathologist, Dr. Walter Fischer, testified that the cause of death was the loss of blood from the severed carotid artery, and that the victim’s impalement by the wooden stake was a contributing factor. In Fischer’s opinion, the victim was alive when she was impaled by the wooden stake. Dr. Renee Modglin, a pathologist called by the defense, opined that the stake had probably entered the victim’s body after her death.

Defendant owned a “350 cc” Honda motorcycle, and his nickname was “Honda Dave.” The prosecution produced three eyewitnesses who placed a motorcycle similar to one owned by defendant at the murder scene between 12:30 and 1:30 a.m. on March 27. Three expert witnesses testified to facts that connected defendant’s motorcycle to the crime. Bonnie Driver, a criminalist employed by the Orange County Sheriff’s Department, testified that she had examined vegetable matter taken from defendant’s motorcycle and compared it with vegetation taken from the area where the victim’s body was found.

Driver found the gross morphology of the plants in both samples to be consistent with each other. A forensic microscopist, Skip Pallinick, examined and compared the heavy mineral content of soil samples taken from defendant’s bike with samples taken at the murder scene. He testified that the samples were generally consistent with each other. One of the samples from the motorcycle contained sufficient similarity to the murder scene samples that the witness concluded they were virtually indistinguishable.

Both of these witnesses admitted they had not compared the samples taken from defendant’s bike with samples taken from other parts of Orange County. Dr. Stephen Dana, a geologist retained by defendant, examined the same soil samples and found similarities and differences in all of them. Based on his knowledge of the geology of the area, Dana opined that the samples could have come from anywhere in Orange County.

Jack Leonard, the production manager for the International Sport and Rally Division of Dunlop Tire Company, testified that the tracks of the rear tire at the crime scene had the same highly unique and distinctive characteristics as the rear tire of the motorcycle. Both were Dunlop brand motorcycle tires, size 4.00-18 with a K-70 tread pattern, and both were characterized by a rare defect in a portion of the tread pattern known as the cross-slot. The degree of wear of defendant’s tire was consistent with the tracks at the scene.

The track of the front motorcycle tire at the scene showed a tread pattern which he recognized as a Bridgestone tire, similar to the front tire on defendant’s motorcycle. The prosecution also called as a witness John Farmer, who testified to incriminating admissions defendant made to him while both were in a holding cell at the Orange County Superior Court at various times between September 8, 1980, and December 19, 1980. Defendant testified and relied on an alibi defense. B. Penalty Retrial 1. Prosecution Evidence

a) Circumstances of the Crime At the penalty retrial, the prosecution introduced much of the evidence from the guilt phase, including evidence regarding the circumstances of Lingle’s death and connecting defendant to the crime. By the time of the retrial, Dr. Fischer, the doctor who performed the Lingle autopsy, was deceased. Dr. Fukomoto, a pathologist who performed autopsies, and who had been Fischer’s partner at the time of the Lingle autopsy, opined that Lingle was alive when she was impaled by the stake.

b) Other Crimes The prosecution offered as evidence in aggravation testimony regarding two other instances of criminal activity by defendant which involved the use of force and violence. Susan Tewes (who at the time of the penalty retrial was Susan White) testified that one night in November 1974, as she slept on her couch, she was awakened by a man straddling, smiling, and stabbing her. Ms. Tewes thought she was having a dream and kept trying to wake herself. As she slowly realized it was not a dream, she began to fight.

The man, later identified as defendant, continued smiling as he stabbed her in the throat, severing her jugular vein, and in her eye, breast, lung, stomach, arm, and hand. Following the attack, Tewes managed to leave her apartment. Neighbors administered emergency aid and called an ambulance. Doctors were able to save her life and her eye. Her esophagus was severed so that she could not eat for several weeks. A tooth was severed at the gum line. Tewes had suffered 23 stabbing wounds. She never returned to her apartment.

On December 19, 1980, while in custody for the charges in this case, defendant and others were in the same holding tank as James B. James testified that he gave his sandwich to someone in the tank. Defendant and other cellmates told James that because he had given his sandwich to one inmate, he had to do something for them. One person began to beat James, and told him he would have to orally copulate all of them. James was pulled into the bathroom, and forced to orally copulate between three and seven inmates, including defendant. Each one ejaculated.

Defendant then pulled down James’s jumpsuit and underwear and sodomized him. James told defendant he was hurting him, and asked defendant to stop, but he refused. When defendant realized he could not fully penetrate James he stopped. James did not report the incident. 2. Defense Evidence Defendant presented evidence intended to create a lingering doubt as to the guilt phase jury’s finding that Lingle was alive when she was impaled by the stake, an element of the special circumstance of torture murder. Stephan Schliebe, a criminalist for the California Laboratory of Forensic Science, examined the stake.

His tests revealed no evidence of blood on the stake or the nails on the stake. He stated that the passage of time would not preclude a finding of blood. However, he conceded that he did not know the effect of silver nitrate, a chemical used to reveal fingerprints, on blood after a nine-year lapse. Dr. Ronald Komblum, a medical examiner for Los Angeles County and pathologist, testified that in his opinion Lingle died before she was impaled by the stake. Defendant’s mother, two sisters, two nieces, and nephew testified.

The purpose of this testimony was to persuade the jury that defendant’s life had value because defendant was a loving and attentive relative from whom the family received significant emotional support. In addition, defendant’s nephew testified that defendant had expressed remorse for the Tewes assault. Defendant also testified, identifying certain artwork he had created while incarcerated. These paintings and certain correspondence written by defendant were admitted into evidence. 3.

Rebuttal Evidence Margaret Ann Black, a supervisor in the identification bureau of the sheriff’s coroner’s office, testified that the stake had been treated with silver nitrate. Dr. Fukomoto testified again regarding in

part certain additional tissue slides that he had not reviewed prior to his original testimony. His conclusions were consistent with his original testimony. II. Discussion A.

Constitutionality of Penalty-phase Only Retrials Defendant contends that penalty-phase only retrials are unconstitutional per se, depriving him due process, equal protection of the law, his Sixth Amendment right to a fair trial, Eighth Amendment right to a reliable and proportional sentence, and “analogous provisions of the California Constitution, and that we should therefore remand his case for a new unified trial.” We have recently rejected a substantially similar claim. In People v. Hawkins (1995) 10 Cal.4th 920, 966 [42 Cal.Rptr.2d 636, 897 P.2d 574] the first jury deadlocked at the penalty phase.

The second penalty phase jury unanimously agreed on a sentence of death. (Ibid.) On appeal, Hawkins made “several claims of error revolving around the constitutionality of having a second penalty phase jury sentence him to death without having heard all the guilt phase evidence.” (Ibid.) First, he noted that a defendant has an Eighth Amendment right to introduce mitigating evidence at the penalty phase, and argued that “[b]y divorcing the penalty phase from the guilt phase and presenting defendant’s guilt in the . . . murder as a given, defendant was deprived of the possible benefit of whatever lingering doubts the first jury may have possessed as to whether defendant was” the murderer. (Ibid.) “It was this lack of lingering doubt, [Hawkins] contended], that allowed the second penalty phase jury to do what the first jury was unable to do; unanimously agree on a sentence of death.” (Ibid.) We rejected this claim, stating, “It is true that residual doubt about a defendant’s guilt is something that juries may consider at the penalty phase under California law, and a trial court errs if it excludes evidence material to this issue.” (People v.

Hawkins, supra, 10 Cal.4th at pp. 966-967.) “Here, however, defendant was not prevented from putting on guilt phase evidence at the penalty phase so as to raise the possibility of lingering doubt, or from advocating this theory at closing argument. Defendant did in fact argue to the jury that the forensic evidence had failed to establish beyond a reasonable doubt that the . . . murder had been committed with premeditation and deliberation; he chose not to present evidence or to make an argument, however, that would raise the issue of reasonable doubt regarding his identity as [the] murderer.

We have never held that the right to introduce evidence of residual doubt translates into the right to have the same jury at the guilt and penalty phases. Indeed, the Terry court, which first recognized the former right, assumed that a capital defendant’s trial by different guilt and penalty phase juries was lawful, so long as defendant was able to introduce to the penalty phase jury guilt phase evidence intended to show lingering doubt.” (People v.

Hawkins, supra, 10 Cal.4th at p. 967.) We also rejected Hawkins’s further contention that “a capital defendant has [a] federal constitutional right to have the jury consider lingering doubt at the penalty phase of the trial. (Franklin v. Lynaugh (1988) 487 U.S. 164, 173-174, fn. 6 [101 L.Ed.2d 155, 165-166, 108 S.Ct. 2320].)” (People v. Hawkins, supra, 10 Cal.4th at p. 967; see People v.

DeSantis (1992) 2 Cal.4th 1198, 1240 [9 Cal.Rptr.2d 628, 831 P.2d 1210] [“United States Supreme Court has . . . essentially found constitutionally sound the practice of penalty-only retrials”].) Finally, as relevant to this case, we rejected Hawkins’s equal protection claim that “he was put in a worse position than a similarly situated, death-eligible defendant whose guilt and penalty were decided by the same jury, because he could not benefit from lingering doubt to the same degree as the latter defendant.” (People v.

Hawkins, supra, 10 Cal.4th at p. 967.) We observed, “a bifurcated trial does not restrict a defendant’s ability to introduce guilt phase evidence designed to foster residual doubt. Nor, of course, is it at all clear that a defendant whose penalty has been determined by a second jury is put at a disadvantage; he may also benefit from having a jury which has not focused at length on the details of his crimes. Defendant’s equal protection claim is therefore without merit.” (Ibid.) Thus, contrary to defendant’s assertion, penalty-phase only retrials are not unconstitutional per se.

Indeed here, unlike Hawkins, the first penalty jury did unanimously agree on a judgment of death; however, that judgment was reversed on appeal. Moreover, also unlike Hawkins, a significant portion of the guilt phase evidence was presented to the jury. Defendant strenuously litigated this evidence and sought to raise a lingering doubt in the penalty jurors’ minds as to the torture-murder special circumstance, i.e., whether Lingle was alive when she was impaled by the stake.

In addition, in an abundance of caution, the court instructed jurors to consider any lingering doubt as to whether the murder involved torture, and placed no limitation on counsel’s argument regarding this theory. Defendant did in fact argue that the forensic evidence had failed to establish that Lingle died after she was impaled by the stake. B. Jury Selection Issues Defendant contends certain trial court rulings during jury selection were constitutionally defective. We conclude these rulings were within the trial court’s discretion. 1.

Denial of Defendant’s Motion to Join Defendant contends the trial court abused its discretion and committed reversible error in denying defendant’s motion to join in a motion made at the trial court level in People v. Ramos (S005499, app. pending) and People v. Cinco (S006096, app. abated Mar. 20, 1989), both capital cases, one of which is currently pending before this court, and in prejudging the motion.

In particular, he claims that the trial court’s ruling deprived defendant of the opportunity to be heard, to fully develop his record in the trial court, and precluded effective appellate review, in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments. These claims are meritless.

On May 23, 1986, defendant moved to quash the jury venire “on the ground that Hispanic persons are underrepresented in the composition of Orange County jury panels in relationship to their numbers in the community-at-large and, consequently, Defendant cannot receive a fair trial by a jury of his peers.” “Rather than litigate this motion on his own,” defendant requested that he be allowed to join in a similar motion pending in the Ramos/Cinco cases. Defendant’s trial was scheduled to begin on September 15.

Defense counsel asserted in a declaration filed in support of the motion that the Ramos/Cinco hearing was scheduled for August 1. The motion to join was heard on June 20, 1986. The trial court began the hearing by informing counsel that the Ramos/Cinco motion “will not even be ready any earlier than September 22,” or “after the date that your case was set to start.” It noted that under

section 1050, “criminal cases should go to trial without delay and unless there is good cause for continuance.” The court stated that it had had a number of motions in other death cases to join in the Ramos/Cinco motion, but that so far it had resisted allowing such joinder for a number of reasons. First, the Ramos/Cinco motion was “large enough by itself . . . almost unwieldy because of the number of counsel involved.” Second, “there is simply no legal possibility that any ruling which might result from [the Ramos/Cinco motion] would only be prospective in operation.” Third, the court did not want to slow down the Ramos/Cinco cases in violation of

section 1050 by adding additional defendants. Finally, the court stated that “there is no legal authority for one criminal defendant to join another criminal defendant’s case.” “[F]or all of those reasons,” the court believed each defendant ought to proceed on his own, “and if he has a meritorious motion the court should, no question about it, give it full consideration.” Following argument by counsel, the court denied the motion without prejudice.

In so ruling, the court stated, “If your case is . . . continued for some other reason . . . , for good cause, then you know, I would reconsider it, if you want to make a motion at a later time. But at the present time .... I don’t want this joinder to be used as an excuse to continue the criminal trial unless it is not otherwise ready for other reasons.” Defendant neither raised the issue on his own, nor did he renew his motion to join at a later date. Jury selection actually commenced nearly three years later in February 1989.

Defendant asserts that he was “denied his constitutional right to trial before a jury drawn from a fair cross-section of the community because Orange County’s method of drawing jurors from the community systematically resulted in underrepresentation of [H]ispanics.” As noted above, defendant pursued this objection solely in the form of a motion to join a similar motion pending in the Ramos/Cinco cases. It was denied without prejudice, and he never renewed it or filed his own motion to quash although he had ample opportunity to do so. Hence he has waived the issue for appeal.

We further conclude that the trial court’s denial of defendant’s motion to join in the motion in the unrelated Ramos!Cinco cases was a proper exercise of the trial court’s discretion. The trial court reasonably found that because the Ramos!Cinco motion would not be heard until after defendant’s trial was scheduled to commence, granting the motion to join would in effect be granting a continuance. Furthermore, because the court found that there was no reason for granting the motion to join, it implicitly found there was no good cause for continuing the trial as required by

section 1050. Denial of what is essentially a motion for a continuance, when no good cause is demonstrated, is not an abuse of discretion. (§ 1050; cf. People v. Zapien (1993) 4 Cal.4th 929, 972 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Moreover, defendant did not renew his motion to join, or file his own motion to quash the venire, despite the fact that jury selection did not actually commence until February 1989. Finally, defendant does not assert how the trial court abused its discretion, or how he was prejudiced by the denial of his motion for joinder.

Contrary to defendant’s assertion, the trial court’s reasoning does not “conflict[] with established principles of judicial efficiency.” Nor do we agree with defendant that “[b]ecause judicial economy is clearly not served by requiring duplicative litigation of an identical issue, the judge’s ruling strongly suggests that he knew he would rule adversely in the Ramos and Cinco cases, which were pending before him.

Bias of the trial court, in the form of prejudging a key legal issue, violates the constitutional right to a fair trial.” Defendant never challenged the trial judge on the ground that he was biased; hence he has waived any such claim. Nor was the trial court’s refusal to allow defendant to join in a motion in an unrelated case even colorable evidence that the trial judge was guilty of bias or prejudging.

Defendant also argues that “given the substantial investment of time, money, investigation and expertise, required to mount a challenge to a county’s method of drawing jurors from the community, many affected defendants will not proceed on their own,” thus “interfering with effective representation of the capital case defendants.” Defendant did not make this argument below; indeed, even on appeal he does not assert that these factors affected his decision to not make an individual motion challenging the Orange County grand venire.

The assertion is therefore entirely speculative and untethered to any issue in this case. Defendant further asserts that the trial court erroneously considered whether defendant was Hispanic or Spanish-speaking in ruling on his motion to join.

In fact, while the trial court made such an inquiry, it stated that defendant did not have to be “a member of the same racial group that he is claiming is in dispute with the jury commissioner,” and that it asked the “question because I think it should be in the record in case there is some appellate review and they need to determine how important it really is on a personal basis for the defendant to make the motion.” Defendant appears to argue that the trial court erred by observing that six years had elapsed since the crime was committed. No error is apparent.

After delineating its reasons recited above for denying the motion for joinder without prejudice, the trial court noted that “the crime allegedly occurred in 1980 and it is already six years old.” Defense counsel stated, “As the court knows it was tried and has been up and back. It’s just been back since March.” The trial court responded, “I am not suggesting its [szc] anybody’s fault. But basically that has been a very long time.

And we do like to see a speedy resolution of these criminal cases and six years does not qualify as a speedy resolution.” Defense counsel stated, “I would agree.” Contrary to defendant’s assertion, this colloquy does not indicate the trial court was blaming defendant for delays “associated with the appointment of counsel or the prosecution and decision of meritorious appeals”; indeed, the trial court expressly stated just the opposite. 2.

Alleged Wheeler Error Defendant contends the prosecutor impermissibly exercised three of his first six peremptory challenges to exclude members of a cognizable group, those with Hispanic surnames, from the jury in violation of his right to trial by a jury drawn from a representative cross-section of the community, guaranteed by

article I,

section 16, of the California Constitution, “the Fair Trial guarantee of the Sixth Amendment,” and the prospective jurors’ right of equal protection. The trial court denied the motion, finding that defendant had failed to establish a prima facie case of discrimination. We conclude defendant’s claims are without merit.

a) Factual Background The prosecutor exercised three of his first six peremptory challenges against prospective jurors who had Hispanic surnames, Salcido, Venegas, and Flores. Following the peremptory challenge of Flores, defense counsel requested a sidebar, stating he was “asking the court to require the district attorney to justify why it is that out of the first six per-empts [szc] he’s exercised, three of them have been people of Hispanic origin with Hispanic surnames, and we would suggest that under [People v.

Wheeler (1978) 22 Cal.3d 258 (148 Cal.Rptr. 890, 583 P.2d 748)] there aren’t any grounds to do that.” The trial judge asked the prosecutor, “Do you wish to respond?” The prosecutor then delineated his reasons for exercising each challenge, all of which he stated arose from the prospective jurors’ responses and the prosecutor’s observations during Hovey voir dire. (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301].) The judge asked the defense attorney making the motion if he had been present during the Hovey voir dire of the three prospective jurors.

He replied, “No, all I’ve done is read the transcript.” The court stated, “Well, I think under the circumstances, the court would like to look at those transcripts, too, before we go any further with this.” The court noted it was almost 4 p.m. Defense counsel noted that the remedy under People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr 890, 583 P.2d 748] “is that the court brings in a new panel ... I don’t mind the court taking it under submission, but it’s of particular concern for me because there are still Hispanics in the courtroom.” The court responded, “I think you’re jumping way ahead.

I have not even made a determination at this point that there’s a prima facie showing sufficient to require the district attorney to respond. I asked him if he wanted to respond, and he did. But I didn’t say he had to. So you’re jumping ahead and talking about the remedy. We aren’t anywhere near that.” Defense counsel stated, “I think we can continue with the voir dire process. I don’t think we have to stop here. We can review the transcripts at any time.” The court stated, “I disagree with that. I think we should face the issue when it’s raised, and that’s now.” Court was then adjourned.

The following morning, defense counsel argued that it had made a prima facie showing of discrimination, and stated, “It is my belief that this court needs to make the people justify their decisions.” Defense counsel then called defendant as a witness to testify outside the presence of the jury as to his French, Italian, Irish, and American Indian heritage. Following this testimony, the court reiterated what it had said the day before, that defendant was entitled to make a Wheeler motion regardless of his own racial heritage.

The court then stated that it was not “satisfied that a prima facie case of discrimination has been made out sufficient to require the prosecutor to justify.” The court explained that while defendant had made a complete record, and demonstrated that the persons excluded were members of a cognizable subgroup, he had failed to demonstrate that “there is a strong likelihood that these people have been excluded because of their group association rather than because of a specific bias.” The court stated that it had reviewed the transcripts of Hovey voir dire which had occurred several weeks earlier to refresh its recollection, and that it remembered “very well how the court handled this.” In response to prosecution challenges for cause, the judge had strictly complied with the “Witherspoon and Witt standard.” (Witherspoon v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]; Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844]; see People v. Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250].) The judge stated that “all three of these people [were] on are my list of ones that I expected the People to use peremptory challenges on” because of their demeanor and reservations against the death penalty. Accordingly, he was “not satisfied at all that any of these three jurors have been excluded because of their Hispanic or Spanish surnames or because of their race.

You have failed to convince me that there is a likelihood that they are being challenged because of their group association, rather than because of their specific answers to questions in the Hovey voir dire.” The court continued, “So I will not require the district attorney to justify his use of the peremptory challenge up to this point. I recognize that to a certain extent he already did that when I asked him at the bench if he wanted to respond to your objection. I assumed he was going to tell me that he didn’t think you had made a prima facie case. But instead he began to justify the challenge.

That doesn’t change the fact that the court did not require him to do so and I am not convinced that a prima facie case has been made out, for the reasons indicated.” The court then denied the Wheeler motion, noting, “I think it is significant that we aren’t anywhere near finished with this process.”

b) Analysis “It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitutions.” (People v. Turner (1994) 8 Cal.4th 137,164 [32 Cal.Rptr.2d 762, 878 P.2d 521]; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89 [90 L.Ed.2d 69, 82-83,106 S.Ct. 1712]; see J.E.B. v. Alabama ex rel.

T.B. (1994) _ U.S. _, _ [128 L.Ed.2d 89, 96-97, 114 S.Ct. 1419, 1421].) Under Wheeler and Batson, “ ‘[i]f a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, ... he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule.

Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association . . . (People v. Howard (1992) 1 Cal.4th 1132, 1153-1154 [5 Cal.Rptr.2d 268, 824 P.2d 1315], italics in original; People v. Turner, supra, 8 Cal.4th at p. 164.) When a trial court denies a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire. (People v.

Crittenden (1994) 9 Cal.4th 83, 116 [36 Cal.Rptr.2d 474, 885 P.2d 887].) “If the record ‘suggests grounds upon which the prosecutor might reasonably have challenged’ the jurors in question, we affirm.” (People v. Howard, supra, 1 Cal.4th at p. 1155, quoting People v. Bittaker (1989) 48 Cal.3d 1046, 1092 [259 Cal.Rptr. 630, 774 P.2d 659].) The penalty retrial in this case preceded our'decision in People v.

Fuentes (1991) 54 Cal.3d 707 [286 Cal.Rptr. 792, 818 P.2d 75], in which we concluded that the trial court’s statement that before trial, it would “ ‘have the reasons set forth by the People,’ ” and the court’s instructions following voir dire that the prosecutor obtain his records and justify his challenges, “clearly indicate[d] that the court had implicitly found a prima facie case of improper exclusion on the basis of race,” despite its contrary ruling on the following day. (Id. at pp. 715, 716, italics in original.) We stated that under these circumstances the issue of whether a prima facie case was established was moot. (Id. at p. 717.) We have since clarified that when a trial judge expressly rules that a prima facie case was not made, and then for purposes of completing the record in case the court on appeal disagrees with this conclusion, asks the prosecutor for his or her justifications, the issue of whether a prima facie case was made is not moot. (People v.

Turner, supra, 8 Cal.4th at pp. 166-167.) That is the situation here. The trial judge did not ask the prosecutor to state his reasons, as the trial judge did in Fuentes. The prosecutor, however, did so. The trial judge then observed that he had not solicited these reasons, and that no finding of a prima facie case had been made. He then took the matter under submission, and independently reviewed the transcripts.

The next day, after hearing oral argument from defense counsel regarding whether a prima facie case had been demonstrated, and testimony from defendant, the trial court expressly found that no prima facie case had been established requiring the prosecutor to justify his challenges. We conclude that under these circumstances the issue of whether a prima facie case has been established is not moot.

A trial judge who asks a prosecutor to respond to a Wheeler motion is not required to forcibly interrupt the prosecutor when the response concerns not whether a prima facie case was made, but the prosecutor’s reasons for exercising his peremptory challenges, in order to retain his or her discretion to determine whether a prima facie case was established. “Thus, when an appellate court is presented with such a record, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsel’s justifications for the peremptory challenges.” (People v.

Turner, supra, 8 Cal.4th at p. 167.) Second, we conclude that the trial court acted within its discretion in determining defendant had failed to demonstrate a prima facie case of discrimination. In particular, defendant failed to establish from all the circumstances of the case a strong likelihood that Salcido, Venegas, and Flores were challenged because of their group association. (People v. Howard, supra, 1 Cal.4th at p. 1154.) Rather, the only basis for establishing a prima facie case cited by defense counsel was that three of the six challenged prospective jurors had Hispanic surnames.

This is insufficient. (People v. Turner, supra, 8 Cal.4th at p. 167; People v. Rousseau (1982) 129 Cal.App.3d 526, 536 [179 Cal.Rptr. 892] [defense counsel’s statement that “ ‘there were only two blacks on the whole panel, and they were both challenged by the district attorney’ ” failed to establish a prima facie case]; see People v. Howard, supra, 1 Cal.4th at pp. 1154-1155; People v. Dominick (1986) 182 Cal.App.3d 1174, 1193-1196 [227 Cal.Rptr. 849].) Indeed, as defense counsel noted, there were a number of Hispanics remaining in the venire.

Of course, a trial court should not “blind itself to everything except defense counsel’s presentation.” (People v. Howard, supra, 1 Cal.4th at p. 1155.) Here, the trial judge, who had observed the voir dire, was in the best position to determine under “all the relevant circumstances” of the case whether there was a “ ‘strong likelihood’ ” these prospective jurors were being challenged “because of their group association.” (People v. Howard, supra, 1 Cal.4th at p. 1156; see People v.

Johnson (1989) 47 Cal.3d 1194, 1221 [255 Cal.Rptr. 569, 767 P.2d 1047].) The record, reviewed independently by the trial court, clearly established specific nonrace-related reasons, i.e., the prospective jurors’ aversion to the death penalty and their demeanor, why a prosecutor might want to excuse these prospective jurors. (People v.

Bittaker, supra, 48 Cal.3d at p. 1092.) During Hovey voir dire prospective juror Loretta Salcido was asked by the court, “Is there anything about the possibility of imposing either the death penalty or the penalty of life without possibility of parole which causes you to have such strong feelings you feel you would automatically vote for one or the other?” Salcido responded, “Yes, there is. ... I haven’t thought it out clearly, but I don’t think I believe in death.” The court inquired, “All right. You don’t believe that the law should allow for a death penalty; is that what you mean?” Salcido answered, “Probably.

I haven’t thought very much about it because I’ve never been on a—where I had to make a decision, but I would—I wouldn’t like to pass the death sentence.” After further discussion with Salcido, the court asked, “Are you saying that in any case you would not vote for death?” Salcido responded, “I wouldn’t—no, I probably wouldn’t, even in any case.” Salcido then indicated she would need to think more about it before she could “make up my mind whether I definitely would never vote for the death penalty.” The judge and Salcido agreed that she would go to the court cafeteria for 30 minutes to consider the issue.

Salcido subsequently indicated she “could pass the death sentence.” Prospective juror Carlos Venegas, when asked on Hovey voir dire how he had voted on the 1978 death penalty initiative, said, that he had “voted to ban it.” When asked why he voted to ban it, Venegas said, “I felt I wanted a society that—that could deal with the problems without resorting to this brutal penalty.” “Do you feel that to execute somebody for something they have done is a brutal way to deal with it?” “It’s kind of last resort, yes.” Prospective juror Roman Flores, in response to the question on Hovey voir dire whether he had an opinion about the death penalty, responded, “Well, I would have to say that there’s a lot of things to be considered.

It’s the highest punishment one can receive. ... I’d have to be very careful in making a decision—or coming to a decision. And if I’m not—oh, if I’m not with the other jurors on the decision that they’re making, I—I’ll stick to my guns, if I don’t think something is right, and I’ll have to go that way. They have got to convince me or I’ve got to be convinced that it’s the right thing. It’s the taking of a life.” Flores conceded that the subject of the death penalty “kind of overwhelm[ed]” him.

He agreed with the prosecutor that he was an actively religious person, and that his “religious belief [was] anti-capital punishment or anti-death penalty.” He stated that he “might not believe everything that my religion teaches,” he thought there should be a death penalty, and that he would be open to imposing either sentence. The prosecutor’s challenge for cause, based not “on any specific answer . . . [b]ut rather his demeanor and the hesitation on certain things,” was denied.

Contrary to defendant’s assertion, we have previously upheld the prosecutor’s exercise of peremptory challenges against death penalty skeptics— i.e., prospective jurors who, although not excusable for cause nevertheless expressed reservations about the death penalty. (People v. Pride (1992) 3 Cal.4th 195, 230 [10 Cal.Rptr.2d 636, 833 P.2d 643].) We see no reason to reconsider that conclusion here. In addition, peremptory challenges are properly made in response to “ ‘ “bare looks and gestures,” ’ ” or the demeanor of a prospective juror. (People v. Turner, supra, 8 Cal.4th at p. 171; People v.

Wheeler, supra, 22 Cal.3d at p. 276.) Finally, a juror who indicates he or she may tenaciously cling to an opinion regardless of the evidence or the views of other jurors constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict. (See People v. Turner, supra, 8 Cal.4th at p. 170.) Defendant contends that the trial court’s ruling is not entitled to deference because the court reviewed the Hovey voir dire transcripts before making its ruling. Not so. Here, Hovey voir dire occurred several weeks before the general voir dire.

The trial court’s diligence in reviewing the transcripts to refresh its recollection does not negate the fact that it had observed the entire voir dire process, and was therefore in the best position to determine whether a prima facie case had been established. Nor do we agree with defendant that no deference is due because the trial court acted under a misapprehension of the law. No such misapprehension is apparent. 3. Voir Dire Limitations Defendant contends the trial court committed reversible error in restricting questioning of the jury during Hovey voir dire. (Hovey v.

Superior Court, supra, 28 Cal.3d at pp. 80-81.) No abuse of discretion occurred.

a) Sexual Victimization Defendant first contends the trial court improperly denied his motion to conduct voir dire of the prospective jurors as to any sexual victimization they may have experienced. In fact, defendant’s motion below was limited to childhood experiences of the prospective jurors, or those close to the jurors. The trial court denied the motion based on the weakness of the showing of the relevance of childhood sexual victimization to the death-qualifying process in this case. There was no error.

The purpose of Hovey voir dire is to ascertain whether any prospective juror has such conscientious or religious scruples about capital punishment that his or her views would prevent or substantially impair adherence to the instructions and the juror’s oath. (People v.

Clark (1990) 50 Cal.3d 583, 596 [268 Cal.Rptr. 399, 789 P.2d 127].) The inquiry “seeks to determine only the views of the prospective jurors about capital punishment in the abstract, to determine if any, because of opposition to the death penalty, would ‘vote against the death penalty without regard to the evidence produced at trial.’ ” (Id. at p. 597, italics in original.) However, “[a] prospective juror who would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is therefore subject to challenge for cause.” (People v.

Kirkpatrick (1994) 7 Cal.4th 988, 1005 [30 Cal.Rptr.2d 818, 874 P.2d 248].) In this case, no evidence regarding defendant’s sexual victimization of children was anticipated. Rather, both the sodomy of James B., and any inference of sexual violence arising from Lingle’s impalement by the stake, were committed against adults. The trial court acted within its discretion in concluding that inquiry regarding the prospective jurors’ childhood sexual victimization experiences was too remote from the issues at hand. (See People v.

DeSantis, supra, 2 Cal.4th at pp. 1217-1218 [refusal to allow voir dire questioning about specific crimes that would cause prospective juror to vote automatically for death]; People v. Hovey, supra, 28 Cal.3d at p. 81, fn. 137.) Moreover, contrary to defendant’s assertion, the trial court expressly stated that it was not deciding what questions could be asked during general voir dire.

Thus, defendant was not precluded from attempting to show during general voir dire that a prospective juror harbored any specific bias that would cause him or her to vote for the death penalty without regard to the evidence presented, and thus should be excused for cause. (People v. Clark, supra, 50 Cal.3d at p. 597.)

b) Torture Allegation Defendant next asserts that the trial court erred in limiting counsel to informing the prospective jurors that defendant had been convicted of first degree murder and that the special circumstance of torture murder had been found true, and prohibiting mention of the specific facts surrounding the torture murder, in violation of his Sixth Amendment right to a fair trial. No abuse of discretion is apparent.

Counsel was permitted to explore the subject of torture with the prospective jurors in an effort to determine if that issue would cause the jurors to automatically vote for or against the death penalty regardless of the evidence. It was not required that they also question the prospective jurors regarding the precise scenario of torture murder presented in this case. (People v. DeSantis, supra, 2 Cal.4th at pp. 1217-1218.) Moreover, contrary to defendant’s assertion, it is apparent from the record that the trial court was only discussing limitations on Hovey, not general, voir dire.

Thus, defendant was not precluded from attempting to show during general voir dire that a prospective juror harbored any specific bias that would cause him or her to vote for the death penalty without regard to the evidence presented, and thus should be excused for cause. (People v. Clark, supra, 50 Cal.3d at p. 597.) 4. Jury Cross-section Claim Defendant contends that exclusion for cause of prospective jurors who oppose the death penalty abridges his right to a jury chosen from a representative cross-section of the community. Defendant did not raise this issue below, and it was therefore waived. (See People v.

Mickey (1991) 54 Cal.3d 612, 662-663 [286 Cal.Rptr. 801, 818 P.2d 84].) On the merits, we have repeatedly held to the contrary. (E.g., People v. Mickey, supra, 54 Cal.3d at p. 662; People v. Hamilton (1988) 46 Cal.3d 123, 136 [249 Cal.Rptr. 320, 756 P.2d 1348]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [197 Cal.Rptr. 803, 673 P.2d 680].) The United States Supreme Court has likewise held that the fair cross-section requirement is not violated by “death qualification” of a jury. (Lockhart v. McCree (1986) 476 U.S. 162, 111 [90 L.Ed.2d 137, 150, 106 S.Ct. 1758]; see also Holland v.

Illinois (1990) 493 U.S. 474, 483 [107 L.Ed.2d 905, 918, 110 S.Ct. 803].) Defendant cites no persuasive reason to revisit our conclusions. C. Challenged Evidentiary Rulings Defendant challenges numerous trial court evidentiary rulings. None of these claims have merit. 1. Admission of Certain Exhibits Defendant asserts that the trial court improperly admitted certain exhibits in violation of defendant’s right to a fair trial, impartial jury, due process, and heightened capital case due process guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments.

In particular, he challenges the admission of crime scene and autopsy photographs of the “victim’s dead and naked body,” and certain physical evidence, i.e., the victim’s clothing retrieved from the crime scene and his motorcycle, that were “indescribably inflammatory and utterly devoid of probative value.” Defendant has waived this claim by failing to object. (People v. Williams (1988) 44 Cal.3d 883, 906 [245 Cal.Rptr. 336, 751 P.2d 395]; Evid. Code, § 353.) The claim is also meritless. We have held that because evidence of violent crimes is expressly made admissible by factor (

b) of

section 190.3, the court has no discretion under Evidence Code

section 352 to weigh the prejudicial impact of such evidence against its probative value when it is offered at the penalty phase. (People v. Karis (1988) 46 Cal.3d 612, 641 [250 Cal.Rptr. 659, 758 P.2d 1189].) Here, the challenged evidence, which illustrated the precise nature of the crime, was not admissible under

section 190.3, factor (b), but it was admissible under factor (a).

Section 190.3, factor (a), expressly makes admissible evidence of the “circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true . . . .” Accordingly, just as the trial court did not have discretion under Evidence Code

section 352 to exclude evidence expressly made admissible by

section 190.3, factor (b), at the penalty phase on the basis that it was unduly inflammatory or lacking in probative value, it similarly lacked discretion to exclude evidence expressly made admissible under factor (

a) on this basis. The trial court does, however, retain its inherent discretion to exclude evidence admissible under factor (

a) based on the form of the evidence, i.e., that a particular photograph or piece of clothing was inaccurate or cumulative. (People v. Freeman (1994) 8 Cal.4th 450, 512 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) 2. Expert Testimony Issues Defendant challenges the trial court’s rulings regarding the testimony of certain expert witnesses. We conclude none of these contentions have merit.

a) Soil Testimony Defendant asserts that the trial court improperly admitted the testimony of Skip Pallinick, a prosecution soil expert. In fact, while the court ruled that Pallinick would be permitted to testify in a limited capacity, the prosecution chose not to present him as a witness in light of the trial court’s ruling. Because Pallinick never testified before the jury, the trial court’s ruling could not have prejudiced defendant.

b) Homicide Investigator’s Testimony Defendant contends that the trial court improperly limited the testimony of Officer Ronald Veach, a former homicide investigator with the Irvine Police Department called by the prosecution. This contention is meritless. 1) Background At trial immediately prior to Officer Veach’s testimony, the prosecutor moved to limit Veach’s testimony with respect to his conclusion as to whether Lingle was impaled by the stake ante mortem or post mortem. In his police report, Veach had stated that he believed Lingle was impaled post mortem. A foundational hearing was then held.

At the hearing, Veach testified that he had no medical training or training in either pathology or serology; accordingly his knowledge of causes and time of death was limited and general in nature. He had viewed only eight corpses in the two years he had been an investigator. Veach had never, prior to Lingle, “seen a body with something inserted in the rectum.” He reached the conclusion that Lingle had been impaled post mortem because there was no bleeding around the anal orifice. After the autopsy was performed, and Veach learned the results, he came to a different conclusion as to when she had been impaled.

Following this testimony, the trial court stated, “So, I see him as totally unqualified in this case to render an expert opinion on the subject to which we are talking about here. He may be an excellent homicide investigator. He may be an excellent crime scene investigator.

But the court has to look at the specific question which is before the court in determining whether a person qualifies as an expert, and I don’t think he does.” The trial court excluded Veach’s opinion that Lingle had been impaled by the stake post mortem. 2) Analysis “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid.

Code, § 720, subd. (a).) “ ‘The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.’ ” (People v. Cooper (1991) 53 Cal.3d 771, 813 [281 Cal.Rptr. 90, 809 P.2d 865].) The trial court properly excluded Veach’s expert opinion as to when Lingle was impaled. First, Veach lacked the qualifications necessary to render such an opinion. He had no medical, serology, or pathology training.

He had viewed only eight corpses in the two years he had been a homicide investigator, none of which involved a similar injury. He also had only a limited understanding of the manner in which the cause and time of death is clinically determined. In sum, the trial court did not abuse its discretion in limiting Veach’s expert testimony.

c) Impeachment of Defense Pathologist Defendant asserts that the trial court improperly allowed impeachment of defense expert pathologist Dr. Ronald Komblum, and that the probative value of this evidence was substantially outweighed by its prejudicial impact. Defendant has waived his claim under Evidence Code

section 352, and his other contention is meritless. On cross-examination, the prosecutor inquired of Dr. Komblum, who was also the Los Angeles County Medical Examiner, “When you work independently, I take it you don’t use county time or county facilities or things like that to do your own independent work?” Komblum responded, “Correct.” Over defense objection, the district attorney then asked Komblum if he had asked a relative who was an employee of the Los Angeles County Crime Lab, to have a plug from the wooden stake tested.

Komblum conceded he had done so, but that he thought the testing had occurred on a Saturday. Defense counsel argued that the relative would not be called to testify and Dr. Komblum did not rely on the results of this testing in formulating his opinion. He did not object under Evidence Code

section 352. The trial court overruled the objection, stating that the impeachment evidence was relevant and probative as to Komblum’s credibility. We conclude that the trial court properly allowed the prosecution to demonstrate that Dr. Komblum was not telling the truth when he initially denied using public resources to perform private work in this and other cases. Such evidence tended to show his possible abuse of the public trust to advance his own endeavors as a private expert, and apparent dishonesty in attempting initially to conceal his actions from the jury.

Nor, contrary to defendant’s further assertion, did the prosecutor commit misconduct in exploring this area. 3. Allocution Defendant contends that the trial court erred in denying him the opportunity to address the jury in allocution in violation of his right to due process. In fact, defendant made no such motion in the trial court. Rather, defendant sought to 1) read a prepared statement while he testified, and 2) obtain an advance mling from the court that if he limited his direct testimony to certain topics, he would not be cross-examined about the Lingle murder.

Defense counsel stated, “So the court understands, . . . we’re not asking for anything like allocution. We’re proposing that this would be part of his direct. . . .

We’re not asking him to have the ability to talk to the jury without the right of cross-examination or not under oath.” The trial court later stated, when mling on the motion: “[Tjhis is not a situation where the defendant wants to take the stand and profess his innocence of the crime and not be subjected to cross-examination. ... as I understand your offer of proof, that is not going to be the situation here.” Defense counsel responded, “Correct, your honor.” The trial court ruled that defendant would be allowed to read his statement, and noted that the prosecution would have the opportunity to cross-examine him regarding that testimony.

The court declined to issue an advance ruling regarding the scope of cross-examination. In any event, we have repeatedly held that a capital defendant has no right to address the penalty phase jury in allocution, immune from cross-examination by the People. (People v. Clark (1993) 5 Cal.4th 950, 1036-1037 [22 Cal.Rptr.2d 689, 857 P.2d 1099]; People v. Nicolaus (1991) 54 Cal.3d 551, 583 [286 Cal.Rptr. 628, 817 P.2d 893]; People v. Keenan (1988) 46 Cal.3d 478, 511 [250 Cal.Rptr. 550, 758 P.2d 1081].) Defendant asserts no reason for us to revisit that conclusion. D.

Prosecutorial Misconduct Claims Defendant contends that the prosecutor committed misconduct on numerous occasions. Most of these claims were waived, and none of them have merit. 1. Voir Dire Defendant contends that the prosecutor committed misconduct during general voir dire in violation of his right to an individualized and reliable penalty determination, due process, and heightened capital case due process, under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Not so.

Defendant first contends the prosecutor attempted to obviate defendant’s “lingering doubt defense” regarding the torture-murder special circumstance by informing prospective jurors during general voir dire that defendant had been found guilty of first degree murder with the special circumstance of torture, that they must accept this verdict, and that they need not concern themselves with the concept of proof beyond a reasonable doubt.

We reject defendant’s claims at the outset because he “failed to satisfy the general rule requiring assignment of misconduct and request for admonition as to any of the comments by the prosecutor of which he now complains,” and no exception is applicable. (People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40]; People v. Clair (1992) 2 Cal.4th 629, 664 [7 Cal.Rptr.2d 564, 828 P.2d 705].) We also reject defendant’s claim on the merits. We have reviewed the prosecutor’s challenged comments and discern no misstatement of law and certainly no misconduct.

As we have repeatedly stated, at the penalty phase, defendant’s guilt beyond a reasonable doubt is established. (People v. Cain (1995) 10 Cal.4th 1, 66 [40 Cal.Rptr.2d 481, 892 P.2d 1224] [penalty jury “has no cause to deliberate further on whether any of them harbor reasonable doubt as to guilt or truth of the special circumstances”].) Here, the prosecutor properly informed the prospective jurors that defendant had already been found guilty of first degree murder with the special circumstance of torture murder. Thus, their duty would be limited to the determination of penalty.

The prosecutor did not intimate in any fashion that “lingering doubt” or doubt beyond reasonable doubt as to the truth of the special circumstance could not be considered. Indeed, both sides discussed lingering doubt in their closing arguments, and the jury was ultimately instructed on lingering doubt as to the special circumstance. We presume that the jury followed the court’s instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331 [19 Cal.Rptr.2d 529, 851 P.2d 811]; People v.

Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Next, defendant claims the prosecutor undermined defendant’s lingering doubt defense by “insinuating . . . that jurors should not be concerned by the many things which they would never know about the crime.” Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. We have reviewed the challenged statements. The prosecutor merely pointed out the obvious, that the prospective jurors would not be hearing from the victim, and thus would never know “one hundred percent” of what happened that night.

He asked them if they felt unable to vote for the death penalty in a case where they still had questions about “what else occurred at the event.” Contrary to defendant’s assertion, this statement does not invite jurors to “entirely disregard” any lingering doubt they might have as to the torture-murder special circumstance.

Next, defendant contends that the prosecutor improperly told the prospective jurors that they would choose between two sentences, death and life imprisonment without the possibility of parole, “free from the constraints of any legal guidelines.” Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless.

The prosecutor stated: “Now, is there—based on that, do you think that, knowing that you are ultimately going to render an opinion or a vote as to the particular penalty, knowing that there is not going to be a specific burden of proof, that it’s really going to come down to your particular judgment, is there anything about that that leaves you with a feeling that, gee, the law’s not going to step in and guide me and tell me that, hey, I have to vote for death under this circumstance, so, in essence, it’s really going to be placed on my shoulders; do you think you could handle a responsibility like that?” We discern no misstatement of law and certainly no misconduct.

Penalty phase jurors do in fact have discretion to decide whether death or life imprisonment without the possibility of parole is the appropriate punishment. Nor is there a reasonable likelihood that the statement could have been understood to mean the jurors would be making the penalty determination “free from the constraints of any legal guidelines.” (People v. Clair, supra, 2 Cal.4th at p. 663.) In any event, the jury was properly instructed on the guidelines applicable to making its determination.

Next, defendant asserts that the “prosecutor attempted to condition the jurors to believe that they could or should not vote for life imprisonment rather than death, simply out of sympathy for the defendant.” This claim was waived by failure to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. The prosecutor stated: “This case is a little bit different than most criminal cases in that normally a jury in a criminal trial is instructed that they are not to consider sympathy or passion or prejudice, that they are to make a finding on the facts themselves.

Now, in this particular case you may consider sympathy and give or attach to it any credit or weight you believe it is deserving of.” The prosecutor then inquired of various prospective jurors whether they would make a penalty decision solely on the basis of sympathy and “automatically disregard” any other evidence, whether they felt the task of weighing aggravating and mitigating factors was “too difficult a task to handle,” whether seeing the defendant in the courtroom every day would make choosing the death penalty more difficult, and whether their ability to choose a penalty would be affected by the way a defendant appeared in court.

These inquiries sought to reveal prospective jurors who did not have an open mind about sentencing; none “condition [ed] the jurors to believe that they could [not] or should not vote for life imprisonment rather than death, simply out of sympathy for the defendant,” nor is there a reasonable likelihood that any prospective juror so understood them. (People v. Clair, supra, 2 Cal.4th at p. 663.) Finally, defendant contends that the prosecutor committed misconduct by “implying that no juror should hold out for a particular penalty and hang the jury.” Defendant waived this argument by failing to object. (People v.

Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. The prosecutor stated: “Although both the defense and the people are entitled to your individual verdict, before there can ever be a verdict in this case, it has to be a unanimous finding by all twelve people.

So if one person gets back in that deliberation room and says, ‘Hey, this is my decision, and I’m going to be reading this book and when you people come around my way, let me know,’ that one side is going to suffer one way—both sides are going to suffer, actually, because even though that person is rendering their individual verdict, they are not deliberating with, they’re not attempting to listen to the other jurors in an attempt to reach a verdict in the case.” Contrary to defendant’s assertion, nothing in this statement urged the prospective jurors not to vote as they thought the evidence as a whole indicated, or “that any decision would be the right one if the eleven other jurors agreed with it.” Nor is there a reasonable likelihood that any prospective juror so understood the statement. (People v.

Clair, supra, 2 Cal.4th at p. 663.) Rather, the prosecutor simply commented on the jury’s duty to deliberate in good faith in attempting to reach a unanimous verdict. 2. Opening Statement Defendant contends the prosecutor committed a variety of errors amounting to misconduct during his opening statement. All of these claims were waived, and none of them have merit.

a) Reference to Defendant as a “Biker” Defendant contends that the prosecutor committed misconduct by characterizing defendant as a “biker” in violation of his First Amendment guarantee of freedom of association, and for the purpose of inflaming and biasing the jury. Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. The prosecutor stated: “You will hear that Mr. Davenport also went by the name of Dave or Honda Dave.

As you can see in the court well right now, there is a Honda 350, which at the time and on that particular evening was owned by Mr. Davenport and that was his means of transportation. You will hear that Mr.

Davenport, among other things, was an individual who liked to frequent a bar ... for individuals who are biker types—biker-type individuals, a biker bar or motorcycle enthusiast.” Contrary to defendant’s assertion, there is no reasonable likelihood that any prospective juror understood this statement to imply that defendant was a member of a “dangerous motorcycle gang.” Moreover, remarks made in an opening statement cannot be charged as misconduct unless the evidence referred to by the prosecutor was so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted. (People v.

Wrest (1992) 3 Cal.4th 1088, 1108 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) Here, evidence that the Sit ’N Bull Bar was frequented by motorcycle enthusiasts or “bikers,” and that defendant relied on a motorcycle as his means of transportation, scarcely can be characterized as “patently inadmissible”; defendant does not attempt to argue otherwise. b) “Prediction” of Defense Evidence Defendant contends that the prosecutor improperly predicted both that defendant would testify, “thereby setting the stage for a negative inference if [defendant] exercised his constitutional right to refrain from testifying,” and the defense defendant would present, in violation of his Fifth Amendment privilege to remain silent, and his right to due process, a fair trial, the assistance of counsel, and a reliable and nonarbitrary penalty determination.

Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. The prosecutor’s statements were no more than fair comment on what he anticipated would be defense strategy and the evidence adduced at trial; there is no reasonable likelihood that the jurors would have construed the statements as impermissible comment on defendant’s failure to testify. (People v. Clair, supra, 2 Cal.4th at pp. 662-663; Griffin v.

California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].) Moreover, the challenged statements by defendant that the prosecutor referred to in his opening statement were introduced through the testimony of the police officer who interrogated defendant. Nor, contrary to defendant’s assertion, did the prosecutor’s statements shift any burden of proof to the defense, or present the prosecutor as having knowledge of special facts, thus improperly inviting reliance on his views instead of on the evidence.

Defendant also asserts that the prosecutor improperly argued that the reason defendant “felt free to lie [on the stand] was because he had learned to murder his victims so that they couldn’t contradict him.” Once again, defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. The prosecutor stated: “You will hear of a few of the other lies that Mr. Davenport will tell the police, that did not check out. The evidence is going to show that really what happened is Mr. Davenport learned an invaluable lesson about five years before this incident.

The evidence is going to show that Mr. Davenport had another victim who lived to identify him.” Nothing in this statement constitutes a prediction that defendant would testify, much less a prediction that he would perjure himself. Rather, the prosecutor’s statement simply and properly referred to what he expected the evidence to show.

c) Prosecutorial Stance on Sexual Character of Offense Defendant contends the prosecutor improperly changed his position regarding the sexual character of the crime in violation of defendant’s due process rights. Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless.

As defendant acknowledges earlier in his brief in this court, during Hovey voir dire “the prosecution took the position that voir dire concerning prospective jurors’ adult experiences with sexual victimization were relevant, but that childhood experiences were not.” (Italics added.) During his opening statement, the prosecutor said: “Now later on Mr. Davenport will somewhat deny this and try and paint a picture of just being there and not really having much interest in [Lingle]. But I believe the evidence will demonstrate, throughout the course of the trial, Mr.

Davenport had a real interest in her that night and was attempting to make a hustle for her.” Given that Lingle was 28 years old at the time of her death, and the sexual overtones of the crime, no inconsistency is apparent.

d) Reference to Certain Exhibits Defendant contends that the prosecutor improperly referred in both his opening statement and closing argument to certain “inflammatory and irrelevant items of evidence” discussed ante, in

part II.C.l. Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) The claim is also meritless. As we have already discussed, these items were properly admitted; hence the prosecutor did not commit misconduct in either referring to or emphasizing them. (People v. Wrest, supra, 3 Cal.4th at p. 1108.) 3. Examination of Witnesses Defendant contends that the prosecutor committed misconduct in the examination of two witnesses, Patricia Moore and Dr.

Fukomoto, when he “bullied them, put words into their mouths, and effectively testified himself.” We reject defendant’s claims at the outset because he “failed to satisfy the general rule requiring assignment of misconduct and request for admonition as to any of the comments by the prosecutor of which he now complains,” and no exception is applicable. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) Moreover, as discussed below, the claims are meritless.

a) Patricia Moore Defendant contends that in questioning Patricia Moore, the prosecutor “resorted to. extreme persistent leading, putting words into the witness’s mouth and pressing her to accept them.” Not so. Moore testified at both the first trial and the penalty retrial. At the penalty retrial she testified that on her way home from work at approximately 12:30 a.m. on March 27, 1980, she saw a motorcycle and a man who appeared to be digging in the field where Lingle’s body was found. She identified that man as defendant.

The record reveals that in addition to the difficulty of testifying to events that occurred nine years earlier, Moore was a fearful and reluctant witness. She conceded at the penalty retrial that she had failed in the first trial to identify defendant as the only person in two different photographic lineups whom she believed to be the person in the field, as well as in-court at the first trial, because of pressure from her husband and fear for her family’s safety.

While Moore did not make an in-court identification of defendant, she did ultimately testify at the first trial that the person in the field was the same person shown in one of the photographs used in the lineups. That photograph was of defendant. The prosecutor elicited this concession and the motivation underlying it presumably to defuse or prevent defense impeachment with the same information. Such a tactic is clearly permissible on direct examination. (People v.

Hardy (1992) 2 Cal.4th 86,171 [5 Cal.Rptr.2d 796, 825 P.2d 781].) Contrary to defendant’s assertion, the prosecutor did not place “special emphasis on facts purportedly known to himself,” “create, from the whole cloth, an eye witness identification placing Davenport at the crime scene, where none otherwise would have existed,” or insinuate that defendant “could cause harm to innocent children as long as he lived, even if incarcerated.” Nor, as defendant asserts, did the questioning improperly affect defendant’s lingering doubt defense, which in any event was focused solely on the torture-murder special circumstance and not defendant’s guilt.

b) Dr. Fukomoto Defendant contends the prosecutor employed aggressive leading questioning to elicit the desired testimony from Dr. Fukomoto that Lingle was alive when she was impaled by the stake. This claim is meritless. Contrary to defendant’s assertion, Fukomoto did not imply in his testimony that Lingle was impaled by the stake four minutes after her heart stopped, and then change that testimony out of “misunderstanding or simple desire to give the prosecutor the testimony he wanted.” Rather, Fukomoto testified consistently and repeatedly that in his opinion Lingle was impaled while she was alive.

On cross-examination, he continued to assert this opinion. Defense counsel then elicited testimony that Lingle’s heart could have stopped anywhere from one to five minutes after the carotid artery was severed. On redirect, the prosecutor asked, “Whatever the time was, whether it was five minutes or one minute from the point that the artery was cut, do we know that, in whatever time there was left, that that stake was impaled before her heart stopped beating?” Fukomoto replied, “Yes, sir.” Such questioning simply clarified and reinforced Fukomoto’s earlier testimony. There was no misconduct. 4.

Closing Statement Defendant complains of several instances of alleged misconduct by the prosecutor during closing argument. None of these claims have merit.

a) Alleged Assertion of Personal Knowledge and Reliance on Facts Not in Evidence Defendant contends that the prosecutor argued the jury should “substitute his own recollection of the testimony of the prosecution’s pathology expert from the guilt phase trial, in place of the testimony of either pathologist called to testify at the penalty phase retrial.” Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless. Dr.

Fukomoto testified on rebuttal that because tissue slides were available, he had not formed a definite opinion regarding whether Lingle was alive when she was impaled by the stake until he examined the slides. Fukomoto examined the slides on April 11, 1989, the day before his testimony in the prosecution’s case-in-chief. On the evening of April 10, after viewing the slides, he spoke to the prosecutor to tell him his conclusion. The prosecutor’s opening statement was on April 5, 1989.

On cross-examination, the following colloquy ensued between Fukomoto and defense counsel: “So [the prosecutor] started this trial not having any idea what you were going testify to.” “I think he’s pretty close to it.” “He just kind of winged it?” “Well, I don’t know what he did.” Defendant objects on appeal to two comments by the prosecutor in his closing argument. First, the prosecutor stated: “In this case you know Dr. Fukomoto was cross-examined about whether or not—when he formulated his opinion and when he ultimately told me of his opinion on the stake itself and he told you that he told me the night before.

Then there was a question about well, then, you told him before [the prosecutor] made his opening statement, which in some way, almost impugns Dr. Fukomoto. Ladies and gentlemen, what I would say to you is before I make an opening statement, you know I have the transcripts. We have gone through all of those transcripts of the prior trial. We know what Dr. Fischer said. The fact that I purport or believe that the evidence is going to demonstrate that, you can’t hold Dr.

Fukomoto or impugn him in some respect.” The prosecutor also stated, in the context of urging the jurors to not credit the testimony of defendant’s paid expert pathologist: “We know that the one true pathologist that conducted the autopsy is now dead, is deceased. How easy is it to come in nine years after the fact and to riddle his opinion. He was there. He saw the body, you know. He was being paid for that, 75 bucks an autopsy. Is that guy, for 75 bucks going to come in here and, you know, make all of his findings up or try and sway them? He saw Gayle Lingle. He did the autopsy.

He came to the conclusion that that occurred while she was alive, plain and simple.” No misconduct occurred. The first comment indicates that the prosecutor was urging the jurors not to discredit Fukomoto’s testimony simply because the prosecutor had stated that the evidence would show that Lingle was alive when she was impaled by the stake during his opening argument, or before Fukomoto’s opinion was formed. The second comment simply suggested that there was no basis for harboring a lingering doubt as to the truth of the torture-murder special circumstance in light of Dr.

Fischer’s autopsy report, which, consistent with Dr. Fukomoto’s testimony, indicated that Lingle was alive when impaled.

Contrary to defendant’s assertion, there is no reasonable likelihood that the jury could have construed either comment as an invitation to substitute the prosecutor’s “own recollection of the testimony of the prosecution’s pathology expert from the guilt phase trial, in place of the testimony of either pathologist called to testify at the penalty phase retrial.” Nor, as defendant also asserts, do the prosecutor’s comments constitute vouching for the credibility of the deceased pathologist, improperly “invite jury reliance on the prosecutor’s opinion based on his official position and superior knowledge of the facts,” or violate defendant’s rights to “due process, confrontation, and jury trial.” Moreover, contrary to defendant’s further assertion, the prosecutor reasonably inferred that Dr.

Fischer had received $75 for the Lingle autopsy based on Dr. Fukomoto’s testimony that he had been Dr. Fischer’s partner for 25 years, and in particular was his partner at the time of Lingle autopsy, and that Dr. Fukomoto at the time of the Lingle autopsy was paid $75 for each autopsy he performed. Reference to this modest payment suggested that Dr. Fischer had no motive to fabricate in making his report and that he was therefore more trustworthy than defendant’s retained expert, Dr. Komblum, who opined that Lingle was not alive at the time she was impaled.

b) Alleged Invitation to Speculate Defendant contends that the prosecutor improperly urged the jury to speculate that defendant behaved poorly in prison and was still violent, that defendant was still a threat to other inmates, that multiple prison sodomies committed by defendant might have gone unreported, that defendant was so “institutionalized” he actually enjoyed his life in prison such that life imprisonment without the possibility of parole would be no punishment for him at all, and that the jury could consider whether defendant was smiling when he stabbed Lingle, in violation of his right to due process.

Defendant waived these arguments by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) They are also meritless. We have reviewed each of the challenged statements, and conclude they were all fair inferences drawn from the evidence. Contrary to defendant’s assertion, none of the prosecutor’s comments “ask[edj the jurors to speculate, rather than relying upon the facts proven by the evidence admitted at trial,” or “solicited the jurors to disregard the law.”

c) Alleged Misstatements of Law Defendant contends that the prosecutor “invited reversal” by allegedly misstating the law on several occasions. None of these claims have merit. 1) Torture Defendant contends that the prosecutor misstated the law by arguing that the stabbing alone, without impalement by the stake while Lingle was alive, constituted torture. Defendant waived this argument by failing to object. (People v. Berryman, supra, 6 Cal.4th at p. 1072.) It is also meritless.

In the context of discussing defendant’s lingering doubt claim, the prosecutor stated: “But remember this, ladies and gentlemen, evidence of torture, and I will get to that stake in a moment, is not limited to just the stake.” The prosecutor then read the elements of the torture-murder special circumstance, and asked, “Did the perpetrator intend to inflict extreme physical pain and suffering upon a pe

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