THE PEOPLE, Plaintiff and Respondent, v. TEOFILO MEDINA, JR., Defendant and Appellant, 11 Cal. 4th 694

Opinion LUCAS, C. J. Defendant Teofilo Medina, Jr., appeals from a judgment of the Riverside County Superior Court imposing the death penalty following his conviction of first degree murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), robbery (§211), burglary (§ 459), and personal firearm use (§ 12022.5), accompanied by two special circumstance findings: robbery murder (§ 190.2, subd. (a)(17)(i)) and burglary murder (id., subd. (a)(17)(vii)).

Prior to trial on the criminal charges, a hearing was held to determine defendant’s competency to stand trial, and a jury determined that defendant was competent. A separate jury found defendant guilty as charged and ultimately returned a verdict of death. The trial court denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)), imposed the death penalty for the murder, and stayed execution of an aggregate 12-year sentence for the other offenses. Defendant’s appeal is automatic. (§ 1239, subd. (b).) As will appear, we will affirm the judgment in its entirety. I. Facts In People v.

Medina (1990) 51 Cal.3d 870 [274 Cal.Rptr. 849, 799 P.2d 1282] (hereafter Medina I), we affirmed a judgment of death entered by the Orange County Superior Court upon defendant’s conviction of three counts of first degree murder. Our judgment was affirmed by the United States Supreme Court in Medina v. California (1992) 505 U.S. 437 [120 L.Ed.2d 353, 112 S.Ct. 2572].

In our Medina I decision, we observed that “[f]rom October 13 to November 7, 1984, defendant engaged in a crime spree, stealing a gun from a pawnshop, holding up two gas stations, a drive-in dairy, and a market, killing three employees of these establishments (Horacio Ariza, Douglas Metal, and Victor Rea), attempting to rob a fourth employee (Moon Yoon), and shooting at two citizens (Cynthia Police and Daniel Barrow) who attempted to follow his getaway car.” (51 Cal.3d at p. 879.) The present offenses occurred in Riverside County on or about October 18, 1984, during the course of the same crime spree described in Medina I, and involving yet another gas station burglary and robbery, and the murder of an attendant (Craig Martin).

We briefly summarize the facts underlying these offenses. On October 18, 1984, Craig Martin was working the night shift at an Arco gas station in Corona. At 1:10 a.m. on October 19, a customer found Martin’s body lying on the floor and called police. A cash box was open and empty except for some pennies. Approximately $163 was missing. An autopsy confirmed that Martin had been shot, probably at close range. Shell fragments from a .22-caliber bullet were found nearby. To link defendant to the Martin murder, the People introduced evidence of the uncharged murders of Ariza and Metal, referred to above.

Ariza was killed on the evening of October 18, a few hours before victim Martin’s body was discovered. Ariza, working at another Arco gas station, was shot in the head and shoulder, probably at close range. The cash drawer was empty; around $100 was missing. A witness saw a damaged green Maverick resembling defendant’s car speed away from the station shortly before Ariza’s body was discovered. The driver of the Maverick resembled defendant, who returned to his sister’s home on the afternoon of October 19 carrying a sack filled with quarters, dimes, and nickels.

Victim Metal was shot and killed in the afternoon of November 4 at the drive-through dairy where he was employed. A “battered” green Maverick was seen parked and unoccupied, with its motor running, in front of the dairy shortly before Metal’s body was discovered. He too had been shot at close range, suffering a “contact” gunshot wound to the head. The cash register was empty and $68 was missing. A partly empty Perrier bottle was found at the scene. A forensic expert testified with “100 percent” certainty that a fingerprint found on the bottle matched one of defendant’s prints.

On October 23, defendant’s sister, Sylvia Ayala, and others saw defendant with a large amount of cash (perhaps $300). The sister found a loaded handgun in defendant’s shaving kit. She eventually placed the gun in the trunk of her car, where it was found after defendant’s arrest. Defendant had stolen the gun from a pawn shop on October 13. Ballistics experts testified that although there were some “dissimilarities” in the marks made by defendant’s gun, they nonetheless determined with “absolute certainty” that bullet fragments from the bodies of Martin, Ariza, and Metal were fired from this gun.

While being transported to the police station, an officer asked defendant about “the Corona murder.” Defendant responded, “What do you want me to say?” After being told to tell the truth, defendant replied, “If I could only cry, but I can’t cry. I couldn’t even cry when my mother died.” Although defendant unsuccessfully attempted to relitigate the issue of his competence to stand trial (he had been found competent by a separate jury), he presented no other evidence at the guilt phase and, as previously stated, the jury found him guilty as charged.

At the penalty phase, the prosecution asked the jury to consider the guilt phase evidence and also presented evidence of defendant’s murder of Victor Rea, evidence that had been excluded from the guilt phase. Rea had been shot at close range on November 5, 1984, at a service station in Santa Ana where he was employed. Approximately $166 in cash had been taken, and bullet fragments matched those fired from defendant’s gun.

Additionally, the prosecution introduced evidence of numerous prior incidents of defendant’s violent activity, including assaults on civilians, prison inmates and guards, a forcible sex offense, and several prior convictions in California and Arizona (namely, discharging a firearm into an inhabited building, burglary, assault with deadly weapon, rape, kidnapping, and lewd and lascivious acts). The defense introduced mitigating evidence from defendant’s other sister, Irene McIntosh, regarding his childhood and family background. II.

Competency Phase Issues We first review the facts underlying defendant’s competency phase contentions. In October 1987, a few months after the complaint was filed charging defendant with the present offenses, the court initiated proceedings to determine defendant’s competency to stand trial. (See § 1368.) Court-appointed experts presented their reports, and a jury was selected to try the competency issue. Dr.

Kania, a defense expert, testified that defendant suffered from a psychotic disorder, probably schizophrenia, that he needed treatment, that he was not malingering, that he was unable to provide background about himself and could not understand the legal proceedings confronting him, and that he was incompetent to stand trial. Dr. Oshrin, a prosecution expert, opined that although defendant was probably mentally ill to some degree, he was malingering, could understand the legal proceedings and could cooperate with counsel. Dr.

Rath, another prosecution expert, concluded that defendant was competent, was malingering, and was merely unwilling, not unable, to cooperate with counsel. Dr. Sharma, a third prosecution expert, found defendant competent and probably malingering. All three prosecution experts believed that defendant “overdid” or unduly exaggerated his supposed mental illness during his interviews with them. On March 16,1988, the jury found defendant was competent to stand trial.

Thereafter, on May 13, 1988, an information was filed charging the offenses previously named in the complaint and, on May 16, 1988, defendant pleaded not guilty to these charges. On January 6, 1989, following disruptive conduct by defendant, the court again suspended proceedings and appointed experts to report regarding defendant’s competency. On June 19, a few months after these experts filed their reports, the court terminated competency proceedings and ordered that defendant proceed to trial restrained with waist chains and leg irons during the remaining court proceedings.

Selection of a new jury commenced on July 5, and trial on guilt issues began on August 14, 1989. A.

Prosecutorial Misconduct During Competency Phase According to defendant, the prosecutor introduced “inflammatory and irrelevant” matters into the competency hearing, including (1) portraying defendant as a dangerous criminal by referring to his prior crimes and prior death sentence, (2) suggesting defendant could avoid punishment and possibly even escape from confinement if he were found incompetent, (3) informing the competency jury that another jury had found defendant sane and competent, and (4) improperly cross-examining the defense expert by referring to inadmissible studies and other materials.

As will appear, no prejudicial misconduct occurred. 1. Prior Offenses and Convictions Defendant complains that the prosecutor introduced information regarding defendant’s prior offenses under the guise of questioning expert witnesses regarding the bases for their opinions. Thus, on cross-examination of Dr. Kania, the prosecutor asked if the witness was aware that defendant had been convicted of 25 felonies, including 3 counts of murder with special circumstances. Similarly, the prosecutor asked Dr.

Oshrin whether he was aware of defendant’s “numerous” felonies, and in his summation the prosecutor referred generally to “all the crimes [defendant] has committed.” Additionally, during voir dire examination of competency phase jurors, the prosecutor referred to defendant’s previous death sentence, asking some prospective jurors whether they would be “disturbed” to learn such information.

The prosecutor reinforced the point during his questioning of the various experts, and referred to it again in his summation by suggesting that defendant, being under “three separate sentences of death,” had a motive to “fake a mental illness.” Defendant asserts that the prosecutor’s foregoing disclosures during the competency phase constituted prejudicial misconduct tainting the jury’s verdict by eliciting irrelevant and inflammatory information regarding defendant’s prior crimes. Defendant urges the disclosures may have minimized the jury’s sense of responsibility for its competency verdict, citing Caldwell v.

Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633] (Caldwell). Caldwell, however, involves sentencing considerations under the Eighth Amendment to the United States Constitution, and neither it nor Romano v. Oklahoma (1994)_U.S._[129 L.Ed.2d 1, 114 S.Ct. 2004], cited by the Attorney General, applies to competency proceedings, which (as we recently noted) are “civil in nature.” (People v.

Stanley (1995) 10 Cal.4th 764, 807 [42 Cal.Rptr.2d 543, 897 P.2d 481], citations omitted.) The information regarding defendant’s prior death sentence formed part of the basis of the experts’ opinions on defendant’s competency. It was, therefore, relevant and properly admitted. Additionally, defendant’s trial counsel neither objected to any of the foregoing statements or disclosures by the prosecutor, nor sought an admonition to cure the harm. Defendant thereby waived his objections for appeal. (See, e.g., People v. Montiel (1993) 5 Cal.4th 877, 914 [21 Cal.Rptr.2d 705, 855 P.2d 1277]; People v.

Proctor (1992) 4 Cal.4th 499, 544 [15 Cal.Rptr.2d 340, 842 P.2d 1100], and cases cited; Medina I, supra, 51 Cal.3d at pp. 887, 895.) Defendant contends that (1) the omission should be excused because the misconduct caused prejudice that could not be cured by an admonition to the jury, (2) the trial court had a sua sponte duty to “control” the prosecutor without awaiting an objection, and (3) counsel’s failure to object constituted inadequate representation.

The first and last of defendant’s points were rejected in Medina I, where we denied a similar claim of prosecutorial misconduct, stating: “We need not decide whether the prosecutor’s remarks exceeded fair comment on the evidence elicited at trial, because defendant failed to object to the foregoing comments or seek an appropriate admonition, and must be deemed to have waived his objection. [Citations.] Although defendant suggests the misconduct was so pervasive and offensive that an admonition would have been useless [citation], a timely objection and admonition by the court at the outset might have tempered the prosecutor’s aggressiveness before it became so extreme.

That being so, it seems reasonable to place on defendant the burden of making a timely objection.” (51 Cal.3d at p. 895.) “We likewise reject defendant’s assertion that counsel’s failure to object may have reflected his incompetence. . . . [T]o obtain relief on incompetent counsel grounds, defendant must show a reasonable probability that his counsel’s omission affected the verdict. (Strickland v. Washington [1984] 466 U.S. 668, 694 [80 L.Ed.2d 647, 697-698, 104 S.Ct. 2052].) We have no sound basis for reaching such a conclusion here.” (Medina I, supra, 51 Cal.3d at p. 895; see also People v.

Sheldon (1989) 48 Cal.3d 935, 951 [258 Cal.Rptr. 242, 771 P.2d 1330] [failure to object to argument or evidence seldom establishes counsel’s incompetence]; People v. Ghent (1987) 43 Cal.3d 739, 772 [239 Cal.Rptr. 82, 739 P.2d 1250] [same].) What we said in Medina I applies with equal force in this case. Defense counsel’s failure to object bars any claim of misconduct on appeal.

Defendant cites no apposite authority supporting his view that his failure to object should be excused because it concerned supposed errors affecting “fundamental due process concerns,” such as the determination of his competence to stand trial. In any event, as in Medina I, it is not reasonably probable that information regarding the defendant’s prior crimes or convictions would have affected the jury’s narrow decision as to his competence to stand trial.

As for the trial court’s supposed sua sponte obligation to control the prosecutor’s submission of evidence and argument (see § 1044), we have recently confirmed that “[t]he trial court . . . has no sua sponte duty to exclude evidence or to remedy misconduct.” (People v. Freeman (1994) 8 Cal.4th 450, 490 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888]; accord, People v. Montiel, supra, 5 Cal.4th at p. 918.) As we stated in People v.

Visciotti (1992) 2 Cal.4th 1, 79 [5 Cal.Rptr.2d 495, 825 P.2d 388], “[b]ecause we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.” Even if we reached the merits of defendant’s misconduct claim, we would find no basis for relief.

We rejected a similar claim in Medina I, supra, where the prosecutor presented evidence and argument regarding defendant’s prior crimes and convictions during the competency phase in that case. As we stated, “[w]e have reviewed the record and find no misconduct. The prosecutor simply outlined the competency hearing testimony and the facts on which that testimony was based, including occasional references to defendant’s prior acts and convictions.

Throughout his argument, the prosecutor explained to the jurors that his comments were not evidence, that the sole issue then before them was defendant’s competence and not his guilt of any crimes, and that any evidence of such crimes was introduced for the sole purpose of determining the competency issue and not to show that defendant was ‘a bad guy.’ FU The trial court similarly instructed the jury that the prosecutor’s comments were not evidence, and that any evidence introduced for a limited purpose, including the exhibits containing references to defendant’s prior criminal record, should be considered only for that purpose.” (Medina I, supra, 51 Cal. 3d at p. 888.) Similar admonitions and instructions were given in the present case.

We conclude that, as in Medina I, no prejudicial misconduct occurred here. 2. Reference to Possible Escape Although the trial court, during the competency phase, sustained a defense objection to voir dire questions by the prosecutor regarding defendant’s possible avoidance of criminal charges if he were found incompetent, the prosecutor, while cross-examining defense experts, included some questions emphasizing that any hospitalization for incompetence would be free of “custodial” conditions. At one point, the prosecutor observed that defendant previously had attempted to escape from a state hospital in Arizona.

Defendant contends that the prosecutor’s statements constituted misconduct. (See, e.g., People v. Babbitt (1988) 45 Cal.3d 660, 704 [248 Cal.Rptr. 69, 755 P.2d 253] [improper to tell jury that if defendant is found insane, he will be set free]; cf. Shannon v.

United States (1994)_U.S__,__-_[129 L.Ed.2d 459, 466-467, 114 S.Ct. 2419] [dictum].) But defendant failed to object to the foregoing remarks and, accordingly, the point was waived for appeal. (Medina I, supra, 51 Cal.3d at pp. 895-896.) In any event, we have reviewed the record and the remarks at issue were not so aggravated as to constitute prejudicial misconduct. Neither the prosecutor’s cross-examination nor his arguments strongly expressed or implied that a finding of defendant’s incompetence would pose a risk of possible escape. 3.

Reference to Previous Finding of Competency The prosecutor, during questioning of Dr. Rath, referred to the fact that defendant had been found competent to stand trial in Orange County. Defendant’s Orange County trial occurred almost two years prior to trial in the present case. As defendant observes, a prior finding of competence “does not prove competence at a significantly later time." (People v.

Samuel (1981) 29 Cal.3d 489, 497, fn. 4 [174 Cal.Rptr. 684, 629 P.2d 485].) Defendant, however, made no objection to the prosecutor’s remark and, accordingly, he waived the point for appeal. (Medina I, supra, 51 Cal.3d at pp. 895-896.) Moreover, it is not likely the jury’s competency verdict was affected by the disclosure that defendant had been adjudged competent some 20 months earlier. 4. Cross-examination Regarding Inadmissible Studies During his cross-examination of Dr.

Kania, the prosecutor attempted to challenge the witness’s diagnosis of schizophrenia and incompetence by asking whether he was aware of “the study done by Drs. Taylor, Gastanok, and Abrams” involving frequent mistaken diagnoses of schizophrenia. Dr. Kania was unaware of this study. The prosecutor described various similar studies, including one with which Dr. Kania was familiar. Defendant now contends the prosecutor committed misconduct by, in effect, “testifying” regarding the content and results of these studies, none of which had been admitted into evidence or relied on by Dr.

Kania in preparing his diagnosis. (See People v. Visciotti, supra, 2 Cal.4th at p. 81 [involving a substantially similar claim].) But defendant failed to object to the prosecutor’s conduct.

As we noted in Visciotti, “[cjlearly, an admonition to the prosecutor and to the jury would have cured any prejudice from the improper conduct.” (Ibid., fn. omitted.) Defendant also complains that the prosecutor’s cross-examination questions included references to the ability of certain actors (e.g., Jack Nicholson in the movie One Flew Over the Cuckoo’s Nest (United Artists 1975)) to depict realistically the symptoms of schizophrenia. Again, no objection was made, no admonition sought.

On the merits, the questions seem legitimate, being aimed at showing in a manner readily understood by lay jurors, that mental illness can be feigned. Moreover, even assuming misconduct occurred, it is not reasonably probable the competency jury was influenced by the prosecution’s references to screen depictions of schizophrenia. B. Lay Testimony of Prosecution Experts Defendant contends that two prosecution experts expressed improper lay opinions regarding his character. At one point in his testimony, Dr.

Rath, a clinical psychologist, offered his view that defendant was “street wise.” Defendant suggests that the jury may have relied on such characterization in concluding that defendant was feigning mental illness. Similarly, Dr. Sharma offered the observation that defendant had a “much shorter fuse than the average person.” Defendant speculates that the jury may have relied on this testimony in deciding that he should stand trial rather than be hospitalized. No objection was made to either comment. Although defendant claims the foregoing observations constituted improper lay opinion (see Evid.

Code, § 801, subd. (b)) which impugned defendant’s character (see id., § 1101, subd. (a)), defendant’s failure to object bars the claim. (See Medina I, supra, 51 Cal.3d at pp. 895-896.) On the merits, the testimony seems unobjectionable. Certainly, experts are entitled to express or explain their opinions in an informal manner easily understood by the jury. Moreover, it is not reasonably probable the descriptions of defendant as “street wise” and “short-fused” unduly influenced the jury in its competency decision. C.

Shackling Defendant Defendant contends the court improperly ordered him shackled during the competency phase of trial. The record shows that defendant was shackled when he arrived in court prior to the commencement of voir dire. The prosecutor recommended to the court that defendant remain shackled.

He explained that defendant had been shackled during his entire trial in Orange County (See Medina I, supra, 51 Cal.3d at pp. 897-898), following “several outbursts” by defendant, “including him picking up a counsel table and throwing it across the room where it landed at the base of the judge’s bench,” nearly striking a court reporter. Additionally, according to the prosecutor, defendant had both attempted and accomplished a number of escapes, and had “acted out in a violent fashion” while confined, “destroying” several jail and prison cells.

The prosecutor also noted that defendant had been convicted of 25 felony counts, including 3 murders. Defense counsel objected to the shackling of his client, but he neither objected to, nor contested, any of the prosecutor’s foregoing factual assertions. Counsel merely stressed that, during the past eight months, defendant had made several court appearances in Riverside County without incident, and had caused no problems in jail except for attempting to kill himself by cutting his own throat.

The court ruled that, based on the nature of the past and current charges, and on defendant’s past violent and disruptive conduct, he should remain shackled. Defendant now contends the court abused its discretion by ordering the shackling (1) “without adequate evidentiary support,” and (2) without considering “less drastic and less intrusive means” of maintaining courtroom security.

In Medina I, supra, 51 Cal.3d at p. 897, we reiterated the general rules governing claims of improper shackling: “[T]he applicable authorities have characterized shackling as a ‘last resort’ to be used where a manifest need therefor arises and no lesser measures would suffice. (See Illinois v. Allen (1970) 397 U.S. 337, 343-344 [25 L.Ed.2d 353, 358-359, 90 S.Ct. 1057]; People v. Allen (1986) 42 Cal.3d 1222, 1261-1265 [232 Cal.Rptr. 849, 729 P.2d 115]; People v.

Duran (1976) 16 Cal.3d 282, 290 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1].) [C[Q . . . [R]ecent cases of this court have upheld shackling in similar situations involving defendants who have a prior record of violence or who have displayed violent behavior in the courtroom. (E.g., People v. Sheldon[, supra,] 48 Cal.3d 935, 945-946 [258 Cal.Rptr. 242, 771 P.2d 1330]; People v. Hamilton (1985) 41 Cal.3d 408, 423-424 [221 Cal.Rptr. 902, 710 P.2d 981].)” The decision to shackle a defendant “cannot be successfully challenged on review except on a showing of a manifest abuse of discretion.” (People v.

Duran (1976) 16 Cal.3d 282, 293, fn. 12 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1].) No abuse of discretion is apparent here. Defendant’s suggestion that there was inadequate evidentiary support for shackling him is frivolous in light of the prosecutor’s uncontested statement cataloguing defendant’s prior violent conduct in and out of the courtroom. The court was not obliged to hold a formal evidentiary hearing on the matter, but could base its determination on factual information properly brought to its attention. (Cf. People v.

Cox (1991) 53 Cal.3d 618, 652 [280 Cal.Rptr. 692, 809 P.2d 351] [error to base shackling order on “rumor and innuendo,” including defense counsel’s vague reference to a possible escape attempt].) The prosecutor was an officer of the court whose representations of fact, made without objection or rebuttal by defendant, properly could sustain the court’s ruling. (See People v.

Clark (1992) 3 Cal.4th 41, 146 [10 Cal.Rptr.2d 554, 833 P.2d 561]; 27 Cal.Jur.3d, Pt. 2 (rev.) District and Municipal Attorneys, § 12, at p. 447, and cases cited.) Defendant also contends the court erred in failing to explore less intrusive alternatives to shackling, such as the use of “strategically placed guards.” But the prosecutor’s recital of defendant’s unshackled outburst in an Orange County courtroom, previously described, strongly supports the trial court’s discretionary decision to shackle defendant in the present proceedings. (We note that subsequent events indicate the court’s ruling was sound.

On June 19, 1989, shortly before trial commenced, defendant, while shackled and surrounded by four deputies, nonetheless managed to turn over the counsel table.) Defendant next contends that the court erred in failing to (1) assure that his shackles would not be visible to the jury, and (2) instruct the jury sua sponte that it should not consider defendant’s restraints or his prison clothing in deciding the issue of his competence. Although the record is silent on the question, defendant assumes from the nature of the restraints used to confine him that they were at least partly visible to the jury.

As a general rule, shackles and other restraints should be “as unobtrusive as possible.” (People v. Duran, supra, 16 Cal.3d at p. 291.) On the other hand, unless the guilt question is close, allowing the guilt phase jury to briefly view a shackled defendant is ordinarily deemed nonprejudicial error. (See People v. Tuilaepa (1992) 4 Cal.4th 569, 583-584 [15 Cal.Rptr.2d 382, 842 P.2d 1142]; People v. Sheldon, supra, 48 Cal.3d at p. 946; People v.

Duran, supra, 16 Cal.3d at pp. 287, fn. 2, 295-296.) Similarly, if the defendant’s restraints have been viewed by the jury, the court ordinarily should instruct the jury not to consider the fact that restraints have been employed in determining defendant’s guilt. (People v. Duran, supra, 16 Cal.3d at pp. 291-292.) But no sua sponte instruction is required if the restraints are not visible by the jury. (People v.

Livaditis (1992) 2 Cal.4th 759, 775 [9 Cal.Rptr.2d 72, 831 P.2d 297].) Moreover, failure to give such an instruction sua sponte may be deemed harmless if the omission is unaccompanied by other substantial errors and the guilt issue is not closely contested. (Medina I, supra, 51 Cal.3d at p. 898.) Here, the jury was not concerned with the issue of guilt, but with defendant’s competence to stand trial. Defendant’s suggestion that the jury, having probably viewed his restraints, may have been induced to find' him competent seems illogical and unduly speculative.

We cannot assume from a silent record that the jury viewed defendant’s restraints. Moreover, even assuming otherwise, we doubt the jury’s factual finding of defendant’s competence to stand trial was influenced by viewing those restraints. Accordingly, we conclude that defendant was not prejudiced by either permitting the jury to view defendant’s restraints or failing to give a cautionary instruction. As for admonishing the jury to ignore defendant’s prison clothing in deciding the competence issue, the record discloses that defendant voluntarily declined the court’s offer to appear in civilian clothes.

Under these circumstances, defendant may have had a tactical reason for wearing prison attire, and the court cannot be faulted for failing to raise the matter sua sponte. D. Use of Antipsychotic Medication Defendant observes that he was given antipsychotic medicine (Thorazine) during the competency phase of trial, at a time when various experts were examining him. Immediately following the jury’s finding of competence, the medicine was discontinued, partly because he was refusing to take it. Jail records indicate that an antipsychotic medicine other than Thorazine was thereafter given to defendant.

These records recite that defendant became “more agitated” once he stopped taking Thorazine, exhibiting a “psychotic obsession” with certain consent forms given to him for signature, and appearing “paranoid and suspicious.” Following the competency trial, and several months before the guilt phase commenced, defense counsel, without mentioning the Thorazine issue, informed the court that his client was not communicating with him. The court ordered further competence reports and, as related in

part II.E.1. (see post, this page ), Drs. Kania and Rath found that defendant remained competent to stand trial. Defendant now asserts that his competence was initially determined while he was under the “influence” of Thorazine, and that “nothing in the record” indicates the Thorazine treatment was resumed during the guilt or penalty phases of trial. Defendant finds it “unlikely" that the new medicine rendered him competent to stand trial. He suggests that these circumstances “undermine the reliability” of the jury’s competency, guilt, and penalty verdicts in this case.

As stated in a recent case involving a similar situation, “a defendant is mentally incompetent ‘if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.’ (§ 1367, italics added.) . . . [N]o substantial evidence was raised indicating he was unable to understand the nature of the proceedings or to cooperate with his counsel. ... In light of the entire record, we conclude the court was not required to order a formal competency hearing.” (People v.

Danielson (1992) 3 Cal.4th 691, 727 [13 Cal.Rptr.2d 1, 838 P.2d 729].) Similarly, in the present case, the record fails to support defendant’s assertion that he became incompetent to stand trial after his Thorazine medication ceased. Defendant’s assertions to the contrary are based solely on unsupported speculation. Nothing in the record establishes that the Thorazine or other medication taken by defendant concealed his incompetence from the experts or the jury, or rendered him unable to understand the proceedings or cooperate with his counsel. E. Failure to Hold Second Competency Hearing 1.

Defendant’s Inability to Communicate With Counsel Defendant contends the court erred in failing to hold a second competency hearing after defense counsel had advised the court, several months before the guilt phase commenced, that his client was not communicating with him. The record indicates that, 10 months after a jury found defendant competent, his counsel informed the court that defendant refused to talk to him or even acknowledge his presence. The court appointed two experts, Drs. Kania and Rath, to examine defendant, and set a date for another competency hearing.

The experts later reported, respectively, that “no new information” had been obtained (Dr. Rath) and that “no opinion can be offered regarding his present competency” (Dr. Kama). Subsequently, defense counsel informed the court that defendant had “no evidence” to present at the hearing, because defendant had refused to talk to “the psychiatrist” appointed to examine him. The court concluded that, under such circumstances, no point would be served in holding a formal hearing, as no change in circumstances had been shown since the date of the last competency hearing.

Defendant now argues the court erred in not holding a second competency hearing, based on the “substantial new evidence” of defendant’s failure to communicate with his counsel or cooperate with the court appointed experts. The argument lacks merit. Once a defendant has been found competent to stand trial, a second competency hearing is required only if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant’s competence. (See People v.

Kelly (1992) 1 Cal.4th 495, 542-543 [3 Cal.Rptr.2d 677, 822 P.2d 385] [no change in circumstance to justify second hearing]; People v. Jones (1991) 53 Cal.3d 1115, 1153-1154 [282 Cal.Rptr. 465, 811 P.2d 757] [general assertion of defendant’s worsening condition and inability to cooperate with counsel inadequate to justify second hearing].) Here, counsel conceded there was no new evidence to introduce at a second hearing, a concession on which the court could properly rely.

Moreover, the record indicates that prior to the initial finding of his competence, defendant had exhibited an unwillingness to cooperate with his counsel and examining psychiatrists, albeit by affirmative efforts to appear psychotic rather than the mutism and withdrawal he displayed during the subsequent occasions when his competency was again questioned. His continued noncooperation did not, under the circumstances, constitute substantial evidence of a change in circumstances necessitating a new hearing.

Defendant contends that once the court initially decided to hold a second competency hearing, that decision was irrevocable, as it reflected the court’s “doubt” regarding defendant’s competence, a doubt that automatically triggered a formal hearing. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 396-397 [3 Cal.Rptr.2d 106, 821 P.2d 610].) Yet defendant cites no authorities suggesting the trial court lacked authority to reconsider its decision once defense counsel announced that the defense would offer no further evidence of defendant’s incompetence. (See People v.

Danielson, supra, 3 Cal.4th at pp. 726-728 [court’s preliminary expression of concern about competence does not require formal hearing]; People v. Price, supra, 1 Cal.4th at pp. 396-397 [same].) In light of the fact that defendant had the burden of demonstrating his incompetence (see Medina v. California, supra, 505 U.S. 437 [120 L.Ed.2d 353]), the court properly could conclude that holding another competency hearing would be pointless.

In a related argument, defendant contends his counsel was incompetent in failing to argue that his client’s failure to cooperate constituted substantial new evidence of his incompetence. The record, however, indicates that counsel acted reasonably, informing the court of his client’s unwillingness or inability to cooperate and announcing that the defense had no further evidence to present on the matter. Defense counsel did not concede that a hearing was unnecessary, and instead assumed that it would be held as originally scheduled. 2. Defendant’s Disruptive Conduct As set forth in

part III.A. (post, at this page), defendant was removed from the courtroom during much of the voir dire and trial proceedings because of his continued cursing and other disruptive conduct. Defendant suggests that such conduct should have raised a “doubt” sufficient to justify a renewed competency hearing. We disagree. We have recently confirmed that more is required to raise a doubt of competence than the defendant’s mere bizarre actions or statements, with little reference to his ability to assist in his own defense. (See People v.

Danielson, supra, 3 Cal.4th at p. 727.) Defendant’s cursing and disruptive actions displayed an unwillingness to assist in his defense, but did not necessarily bear on his competence to do so, or reflect a substantial change of circumstances or new evidence casting serious doubt on the validity of the prior finding of the defendant’s competence. (See People v. Kelly, supra, 1 Cal.4th at pp. 542-543.) III. Guilt Phase Issues A.

Defendant’s Absence From Trial Proceedings By reason of his repeated disruptive conduct, defendant was absent from the courtroom during much of his trial, including jury voir dire, evidence and argument presentation, counsel’s arguments, and the reading of instructions to the jury. Defendant now contends that he had no right to waive his right to be present during trial, that his outbursts were insufficient to justify his exclusion from trial, and that the court failed adequately to inform him regarding the various rights that he would be surrendering by reason of his absence. We find no merit to these arguments.

We briefly outline the various instances of disruptive conduct the court deemed sufficient to warrant defendant’s exclusion. For convenience, we include discussion of the issue as it affects both the guilt and penalty phases. 1. Pretrial and Jury Selection Events On June 19, 1989, prior to trial, defendant, while shackled, overturned the counsel table and was removed from the courtroom. On July 6, outside the presence of the prospective jurors, defendant again lifted and threw the counsel’s table, complaining about the tightness of the chains confining him. Defendant was again removed.

On July 10, after defendant cursed and complained about his restraints, the court warned him that he would be removed from the courtroom and would be tried in absentia if he persisted in causing disturbances. Later that day, defendant called the judge and a prospective juror “pigs,” and soon thereafter cursed them repeatedly in exceptionally coarse terms.

Following the foregoing outburst, the court ordered defendant removed from the courtroom for the rest of the week, but directed that jail personnel be asked to contact defendant daily to determine whether he was willing to “behave.” On the next day, July 11, the bailiff reported that defendant responded negatively to such an inquiry, stating that “I ain’t going to promise anything. I might get worse.” On July 12, the bailiff reported that defendant responded to a renewed inquiry with more obscene language. On July 13, defendant shook his head negatively when asked if he wanted to come to court.

On July 17, defendant again responded negatively. The court ordered defendant brought to court on July 18, 1989. On inquiry, defendant confirmed that he did not want to be there, nor did he wish to watch his trial through closed-circuit television. Defendant thereupon complained about his restraints and began rocking his chair back and forth. The court again ordered defendant removed. When the bailiff approached, defendant cursed and threw his knees up against the top of the counsel table. Eventually, three deputies were able to restrain and remove him. Jury selection continued in his absence.

On July 20, the bailiff reported that defendant did not want to come to court. On July 24, defendant was brought to court, but on seeing a video camera in the courtroom, he began cursing. When the court asked defendant if he desired to remain, he replied negatively. Defendant was removed once again. The bailiff confirmed to the court that defendant declined to come to court during the remainder of the week. On July 31, defendant was brought back, but he shook his head when asked if he wished to remain during jury selection and he was removed again.

The bailiff reported that defendant declined to return to court on August 1, 2, and 3. When brought to court on August 8, defendant again shook his head when asked if he wished to remain in court. Before removing him, the court informed defendant that trial would commence on the following Monday, and that it was important that defendant be present to assist his counsel in questioning witnesses. 2. Guilt Phase On August 11, 1989, the bailiff reported that defendant still declined to attend trial. On August 14, the first day of evidentiary presentation, defendant was brought to the courtroom.

He complained about the courtroom cameras and his assertedly tight restraints. The court asked the camera crew to leave and requested the transport officer to loosen defendant’s hand restraints. Defendant seemed calm during discussions regarding exhibits, but once the jury entered the courtroom, defendant began to curse and rage. Defendant remained quiet during the trial court’s introductory remarks to the jury, and the beginning of the prosecutor’s opening statement. But he soon exploded with more cursing and invective while the prosecutor attempted to complete his statement.

The court directed the jurors to leave the courtroom and asked defendant if he wanted to return to his jail cell. He nodded his head affirmatively. The court allowed the prosecutor’s first witness, Orlijan, to view defendant before removing him, so that the witness could identify defendant for purposes of his testimony. The court then ordered defendant removed, stating that “we will not see him again.” Thereafter, defendant was absent from the remainder of his trial.

Jail personnel, however, continued regularly to contact defendant and ask him whether he wished to appear or to watch the trial on closed-circuit television. On each such occasion, defendant gave negative responses. 3. Penalty Phase Defendant was absent during the entire penalty phase. Again, jail personnel reported to the court’s bailiff that they continued on a daily basis to determine that defendant neither wished to attend his trial nor to watch the proceedings on television.

Defendant was present, and nondisruptive, when the penalty verdict was read, and later when the court heard and denied the automatic motion to modify the verdict. 4. Discussion As defendant indicates, he was removed from the courtroom five times during jury selection (July 10, 18, 24, 31 and August 8), and once at the beginning of the guilt phase (August 14). He was not present in court between the dates of these removals, and he was not returned to the courtroom until the reading of the penalty verdict (September 27).

According to defendant, the court erred, and denied him due process of law, by allowing him to waive his right to be present at trial, and by failing to continually warn him that his conduct would result in removal from the courtroom. Defendant concedes that he was properly removed for disruptive behavior on July 10. But defendant contends that on August 14 he was removed without proper warning, that on July 31 and August 8 he was removed after merely failing to respond to the court’s inquiry, and that on July 18 and 24 he was removed after merely indicating a desire to leave.

Defendant contends that his exclusions from the courtroom were not authorized by the statutory provisions governing a defendant’s presence at trial. (See §§ 977, subd. (b), 1043.) As we have recently stated, “[a] disruptive defendant waives his right to be present at trial. (Illinois v. Allen (1970) 397 U.S. 337 . . . .)” (People v. Sully (1991) 53 Cal.3d 1195, 1239 [283 Cal.Rptr. 144, 812 P.2d 163]; see also People v. Price, supra, 1 Cal.4th at pp. 404-406; People v.

Robertson (1989) 48 Cal.3d 18, 59-62 [255 Cal.Rptr. 631, 767 P.2d 1109].) Although defendant asks us to reconsider our holding as to waiver, we see no compelling reason for doing so. None of the federal authorities cited by defendant would preclude a waiver resulting from continued disruptive conduct. Our review of the record discloses a continuous pattern of hostile and disruptive conduct fully justifying the court’s decision to remove defendant from the courtroom, and to exclude him therefrom until he evinced a willingness to participate in a nondisruptive manner.

Defendant focuses on statutory language assertedly requiring a capital defendant’s presence at his trial despite his voluntary absence. (See § 977 [requiring defendant’s presence during evidence presentation]; § 1043, subd. (b)(2) [limited exception to trial presence requirement for noncapital case defendants who are “voluntarily absent”].)

Section 1043, however, alternatively provides that an unduly disruptive defendant, after being warned, may be removed from the courtroom until he “reclaims” his right to be present by expressing his willingness to conduct himself properly. (See id., subds. (b)(1) & (c).) This provision fully justified the court’s exclusion orders in this case. (See People v. Price, supra, 1 Cal.4th at pp. 405-406; People v. Sully, supra, 53 Cal.3d at pp. 1239-1241.) Being tried on capital charges does not confer the right to disrupt court proceedings.

Defendant argues, however, that the court erred in failing to give new warnings to him prior to each subsequent removal, and in failing adequately to advise him of his right to return to the courtroom. Under the circumstances of this case, outlined above, the failure to give renewed warnings or advice was unnecessary. The court repeatedly made it clear to defendant that he would continue to be removed if his disruptive conduct persisted, and that he could return to the courtroom once he agreed to behave properly.

Defendant complains that the court “relied on third hand information to conclude that appellant was waiving his presence voluntarily or that he would be disruptive. This was clearly not a constitutionally adequate waiver . . . and was not an adequate offer to [allow defendant to] return to the trial.” In defendant’s view, the court should have repeatedly brought defendant to court despite his assertions to jail.personnel or to the court bailiff that he would not agree to behave. We disagree. The court properly relied on jail personnel to relay the pertinent information to the court bailiff.

No objection was made to this procedure and, in any event, we find it unobjectionable. Busy trial courts need not engage in idle acts. (See People v. Sully, supra, 53 Cal.3d at p. 1240 [“Defendant was given the opportunity mandated by the statute to correct his errant behavior; he declined it. No more was required to justify his voluntary absence.

Section 1043, like other provisions of law, does not require idle acts.”].) Defendant contends that he should have been returned to court after the jury rendered its guilty verdict, and before the penalty phase commenced. He relies on language in

section 1043 to the effect that a disruptive defendant may be tried in absentia “to and including the return of the verdict.” We doubt the Legislature had in mind the bifurcated phases of a unitary capital trial (see People v. Superior Court (Mitchell) 5 Cal.4th 1229, 1233 [23 Cal.Rptr.2d 403, 859 P.2d 102]) when it adopted the foregoing language. It is more likely that this language was intended to assure the defendant in a criminal case would be present in the courtroom at the time of sentencing, following trial.

Defendant suggests that the court “at least” could have temporarily continued the trial until defendant “calmed down” enough to participate. First, no such request was made. Second, it is apparent from the record that, even after defendant had ample opportunity to “calm down,” he continued to misbehave, and gave no sign of changing his behavior. The court did not err in failing to continue the trial sua sponte. Defendant contends the court erred in failing to instruct the jury, sua sponte, that it should ignore his outburst and his subsequent absence from trial.

Defendant acknowledges that, during voir dire, the court admonished each juror individually not to draw adverse inferences from his absence. But, according to defendant, these pretrial admonishments were an insufficient substitute for a formal jury instruction following trial. We disagree. In the absence of a request therefor, the court has no obligation to instruct the jury regarding a defendant’s absence from trial. (People v. Sully, supra, 53 Cal.3d at p. 1241.) Nor did defense counsel’s failure to request such an instruction necessarily constitute inadequate representation.

Counsel, aware that the jurors already had been given an admonishment on the subject during voir dire, reasonably could have concluded that an additional admonishment, coming at the close of trial, could do more harm than good by calling the jury’s attention to defendant’s absence, and to the disruptive conduct that necessitated it. As we recently stated in a similar situation, “[w]e also reject defendant’s related contention that counsel’s failure to request a limiting instruction on the prior offenses reflected his incompetence.

As previously indicated, counsel may have deemed it tactically unwise to call further attention to defendant’s prior offenses by requesting special instructions. [Citations].” (People v. Johnson (1993) 6 Cal.4th 1, 50 [23 Cal.Rptr.2d 593, 859 P.2d 673]; see People v. Lewis (1983) 144 Cal.App.3d 267, 281 [192 Cal.Rptr. 257].) B. Prosecutorial Misconduct Defendant contends the prosecutor committed misconduct during voir dire questioning of some of the prospective jurors who actually sat on his jury (hereafter called ultimate jurors).

Defendant states that although he made “some” objections to the prosecutor’s comments, “some" of these remarks went unchallenged. It is well established that a defendant cannot complain on appeal of misconduct by the prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Fierro (1991) 1 Cal.4th 173, 207 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) This rule applies to asserted prosecutorial misconduct committed during voir dire. (Ibid:, see also People v.

Ghent, supra, 43 Cal.3d at p. 770.) In general, defendant complains that the prosecutor “improperly used voir dire to misinform the jurors and predispose them in favor of a death sentence.” The prosecutor assertedly mischaracterized the nature of the penalty phase process and the purpose for which the mitigating and aggravating evidence would be admitted.

Additionally, the prosecutor assertedly urged during voir dire that a death sentence was needed to control defendant’s violence and deter others from committing such crimes, and told some ultimate jurors not to consider any “lingering doubt” as to defendant’s guilt. Finally, according to defendant, the prosecutor diminished the jury’s sense of responsibility by telling some ultimate jurors that the death penalty law was unique because it permitted a death sentence only for certain murders, and no executions had occurred in California for 24 years.

As will appear, defendant waived his right to complain of these matters by failing to object to them below. Further, in our view, none of these instances involved prejudicial misconduct. 1. Statements Regarding Nature of Mitigating and Aggravating Evidence and Weighing Process The prosecutor indicated to several ultimate jurors that mitigating evidence was the kind of evidence showing the “positive factors” in defendant’s life, such as being a war hero or Boy Scout leader, whereas aggravating evidence would involve “negative evidence” such as a prior criminal conviction.

The prosecutor further indicated that the jury’s task in deciding the appropriate penalty was to weigh these positive and negative aspects. Defendant’s only objection to such statements during voir dire was that the prosecutor’s examples of mitigating evidence involved situations that were not present in the case. Defendant now contends the prosecutor’s voir dire statements were incomplete and inaccurate, but as he did not object to the statements on this ground, the present objection was waived. (See People v.

Cooper (1991) 53 Cal.3d 771, 843 [281 Cal.Rptr. 90, 809 P.2d 865].) In any event, we find no prejudicial misconduct here. The prosecutor’s statements, though somewhat simplistic, were not legally erroneous, and defendant had ample opportunity to correct, clarify, or amplify the prosecutor’s remarks through his own voir dire questions and comments. Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s verdict in the case.

Any such errors or misconduct “prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings, before its attention has even begun to focus upon the penalty issue confronting it.” (People v. Ghent, supra, 43 Cal.3d at p. 770.) This analysis is likewise applicable to each of the other instances of asserted misconduct, discussed below. 2.

Statements Regarding Reason for Executing Defendant During voir dire, the prosecutor indicated or implied to some ultimate jurors through his questioning that one purpose served by the death penalty might be to protect prison guards, doctors, and other personnel who might otherwise have to deal with dangerous convicts in prison. Defendant failed to object, and the point was thereby waived for this appeal. f In any event, the prosecutor committed no misconduct. A similar situation arose in People v. Danielson, supra, 3 Cal.4th 691.

There, during his penalty phase arguments, and over the defendant’s objection, the prosecutor rhetorically asked the jury, “ ‘How many of you would like your son or husband being a guard wherever this man may be? How many of you would like your husband or son being a transportation officer handling him and you think you would feel safe?’ ” (Id. at pp. 720-721.) We rejected the contention that such argument was improper, observing that several prior cases had upheld the prosecutor’s right to raise in jury arguments the subject of the defendant’s future dangerousness.

We concluded in Danielson that the prosecutor’s penalty phase argument “fell within the range of argument permitted” by the applicable cases. (People v. Danielson, supra, 3 Cal.4th at p. 721.) A fortiori, we reach the same conclusion here with respect to the prosecutor’s preliminary voir dire statements. 3. Statements Regarding the Value of the Death Penalty as a Deterrent The prosecutor asked some ultimate jurors whether they believed the death penalty was a deterrent to others. Defendant did not object to the inquiries and, accordingly, the point was waived for appeal. (See People v.

Wrest (1992) 3 Cal.4th 1088, 1105 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) In any event, no prejudicial misconduct occurred. The prosecutor did not affirmatively argue the deterrent effect of the death penalty (see People v. Love (1961) 56 Cal.2d 720, 731 [16 Cal.Rptr. 777, 366 P.2d 33]) but simply inquired about the matter during voir dire. We have found no cases suggesting that such voir dire inquiries, conducted for the purpose of determining a prospective juror’s views regarding the death penalty, are improper. 4.

Statements Regarding Lingering Doubt Defendant points to inquiries made by the prosecutor on voir dire to some ultimate jurors regarding their willingness not to “worry about lingering doubt” of defendant’s guilt once they concluded he was guilty beyond a reasonable doubt. Defendant did not object to the inquiries and, accordingly, the point was waived for appeal. In any event, no prejudicial misconduct occurred. We have held that, in determining penalty, the jurors may consider any lingering doubts they may have concerning the defendant’s guilt. (People v.

Zapien (1993) 4 Cal.4th 929, 989 [17 Cal.Rptr.2d 122, 846 P.2d 704]; People v. Kaurish (1990) 52 Cal.3d 648, 706 [276 Cal.Rptr. 788, 802 P.2d 278].) On the other hand, the prosecutor is entitled to remind the penalty phase jury that it is not to redetermine guilt, which is to be presumed as a matter of law because the trier of fact had so found in the guilt phase. (People v. DeSantis (1992) 2 Cal.4th 1198, 1239 [9 Cal.Rptr.2d 628, 831 P.2d 1210]. A defendant has no federal or state constitutional right to have the penalty phase jury instructed to consider any residual doubt about defendant’s guilt. (Franklin v.

Lynaugh (1988) 487 U.S. 164, 173-174 [101 L.Ed.2d 155, 165-166, 108 S.Ct. 2320]; People v. Johnson (1992) 3 Cal.4th 1183, 1252 [14 Cal.Rptr.2d 702, 842 P.2d 1]; People v. Cox, supra, 53 Cal.3d at pp. 677-678.) Although the prosecutor’s inquiries may have improperly suggested to some ultimate jurors that any lingering doubt should be ignored, in the context of voir dire questioning it is unlikely these inquiries could have influenced the penalty verdict. Defendant does not claim, and the record does' not indicate, that the prosecutor raised the subject of lingering doubt in his jury arguments at trial. 5.

Statement Regarding California’s Death Penalty Law The prosecutor suggested to one ultimate juror that California was “a little different” from some other states in that special circumstances must be shown to justify a death sentence. Although defendant had earlier successfully objected to a similar statement (California was “a little unique”), defendant did not object to the present statement and, accordingly, the point was waived for appeal. In any event, no prejudicial misconduct occurred.

The prosecutor’s brief voir dire reference to California’s supposedly “different” death penalty law could not possibly have affected the jury’s ultimate verdict in this case. 6.

Statement Regarding Absence of Executions in California The prosecutor told one ultimate juror, without objection, that no one had been put to death in this state since 1965, and asked the juror whether imposition of the death penalty might “have any purpose whatsoever . . . .” Defendant suggests the statement was both inaccurate (the last execution had occurred in 1967) and improper (implying that death sentences are not carried out in this state). Defendant’s failure to object waived the point for appeal. In any event, no prejudicial misconduct occurred.

The prosecutor’s brief voir dire reference to the fact that no one had been executed in California for some time, a matter of common knowledge among most persons, could not possibly have affected the ultimate verdict. Defendant contends that, despite his counsel’s failure to object to most of the foregoing asserted instances of misconduct, the court had a sua sponte obligation to “intervene” to protect defendant’s due process rights. As we previously explained, no misconduct occurred here.

In any event, a court has no obligation “to recognize and correct all possible or arguable misconduct on its own motion.” (See People v. Visciotti, supra, 2 Cal.4th at p. 79.) Defendant also argues that the foregoing asserted misconduct was so serious that an admonition to the jury would not have cured the harm. (See, e.g., People v. Clair (1992) 2 Cal.4th 629, 662 [7 Cal.Rptr.2d 564, 828 P.2d 705].) We disagree.

The isolated instances of supposed misconduct occurred during voir dire “at a much less critical phase of the proceedings, before [the jury’s] attention ha[d] even begun to focus upon the penalty issue confronting it.” (People v. Ghent, supra, 43 Cal.3d at p. 770.) An admonition to the prospective jurors clearly could have substantially lessened any improper effect of such asserted misconduct. Defendant suggests that his counsel’s failure to object to the prosecutor’s voir dire “misconduct” reflected his incompetence.

As indicated, however, no serious misconduct occurred during any of these incidents and, accordingly, counsel’s failures to object could not be deemed inadequate representation. Moreover, given the relatively minor nature of the supposed misconduct and its occurrence during voir dire rather than during or following trial, it is not reasonably probable that counsel’s omissions affected the verdict. (See Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697-698, 104 S.Ct. 2052].) C.

Prosecutor’s Voir Dire Diagram During voir dire examination of some ultimate jurors, the prosecutor used a diagram to help illustrate the quantum of proof he needed to prove defendant’s guilt beyond a reasonable doubt. According to defendant, and the People do not claim otherwise, the diagram simply showed two horizontal lines, one labeled “100 percent certainty” and a second line beneath it labeled “beyond a reasonable doubt.” The prosecutor then asked some ultimate jurors not to “hold” him to the 100 percent standard, but only to the “lower” standard.

At one point, the prosecutor indicated that a conviction could be sustained if the juror can simply “cross this black line ... in your head, of course . . . .” Defendant complained that the chart implied the prosecutor’s burden was only 50 percent certainty, but he made no formal objection to its use, thereby waiving any objection on appeal. The chart was discarded following jury selection. Defendant maintains that the use of the chart, containing an erroneous description of the prosecutor’s proof burden, constituted a denial of due process.

Defendant argues the chart may have created the false impression that the jurors could use an “arbitrary” line in deciding whether the prosecutor had carried his burden of proof. The courts, recognizing the difficulty and peril inherent in such a task, have discouraged “experiments” by trial courts in defining the “beyond a reasonable doubt” standard. (See People v. Freeman, supra, 8 Cal.4th 450, 503, 504.) By a parity of reasoning, similar perils undoubtedly would attend a prosecutor’s attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph or chart.

But as we have previously observed, errors or misconduct occurring during jury voir dire, prior to the introduction of evidence or the giving of formal instructions, are far less likely to have prejudiced the defendant.

The jury in this case was given the standard instruction on the presumption of innocence, reasonable doubt, and the prosecutor’s burden of proof. (CALJIC No. 2.90.) The language of the foregoing instruction was sufficient both to explain to the jury the prosecution’s burden of proof and to dilute any confusion or uncertainty that may have been created by the prosecutor’s voir dire chart. (See Victor v. Nebraska (1994) 511 U.S._[127 L.Ed.2d 583, 114 S.Ct. 1239]; People v. Freeman, supra, 8 Cal.4th 450, 502-504; cf. People v. DeSantis, supra, 2 Cal.4th at p. 1243.) We find no prejudicial misconduct occurred here.

D. Restrictions on Voir Dire Questioning Defendant next contends the trial court improperly restricted his voir dire examination of prospective jurors regarding their views on the death penalty. 1. Questions Regarding Multiple Murder Although the court later changed its ruling and allowed such questioning, the court initially indicated it would disallow questions asking prospective jurors whether they could vote for life imprisonment if defendant committed multiple murders. According to defendant, this initial voir dire restriction inhibited his questioning of three ultimate jurors.

First, despite the court’s eventual change of position, we doubt the court erred in initially restricting voir dire questioning.

As we recently observed in a similar case, involving a defense effort to determine whether the evidence of serious bum injuries suffered by the victims would cause a jury to automatically vote for the death penalty, “[i]t is tme that counsel must be permitted to ask questions of prospective jurors that might lead to challenges for cause. [Citation.] The inquiry that defendant sought to make was not relevant to the death qualification process, however. . . . [Vjoir dire 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.’ [Citations.] Such a juror may be excused because he or she would be unable to faithfully and impartially apply the law.

The inquiry is directed to whether, without knowing the specifics of the case, the juror has an ‘open mind’ on the penalty determination. There was no error in ruling that questions related to the jurors’ attitudes toward evidence that was to be introduced in this trial could not be asked during the sequestered . . . voir dire. [Fn. omitted.] “The power of the judge to control the proceedings includes the exercise of discretion over the manner in which the voir dire will be conducted. [Citation.] No abuse of that discretion occurred here.

Defendant was not precluded from attempting to show in the subsequent general voir dire that a juror harbored any specific bias that would cause him to vote for the death penalty without regard to mitigating evidence, and thus should be excused for cause. Since defendant did not do so, and did not exhaust his peremptory challenges, he is precluded from arguing on appeal that the jury was not properly constituted. [Citation.]” (People v. Clark (1990) 50 Cal.3d 583, 596-597 [268 Cal.Rptr. 399, 789 P.2d 127]; 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 automatically vote for death]; People v. Rich (1988) 45 Cal.3d 1036, 1105 [248 Cal.Rptr. 510, 755 P.2d 960] [voir dire not properly used to compel jurors to commit to vote particular way].) Additionally, we find it unlikely the voir dire restriction at issue prejudiced defendant.

Our review of the voir dire proceedings as to these three jurors indicates that each of them affirmatively agreed he or she would not automatically vote for death regardless of the evidence, and that they considered themselves “neutral” on the death penalty issue. Defense counsel had ample opportunity to question each of them regarding their ability to keep an open mind and base their penalty decision on the evidence in the case and on applicable sentencing factors.

We note that after the trial court clarified its position with respect to the multiple murder question, defendant failed to ask to reexamine any juror on this topic. 2. Other Voir Dire Restrictions Defendant also argues that the trial court erred in preventing him from asking prospective jurors to test their own impartiality by placing themselves in his position. The prosecutor successfully objected on the ground that such an inquiry or suggestion to the jurors would improperly tend to heighten sympathy for defendant.

Defendant contends that his inquiry was needed “to ascertain the prospective jurors’ ability to render verdicts fairly and impartially in the case, according to law.” Although defendant’s tactic was arguably innocuous, the asserted restriction on voir dire questioning was likewise clearly harmless. There were ample alternative methods of ascertaining the jurors’ ability to act fairly and impartially. No claim is made that the voir dire restriction actually impaired defendant’s right to a fair and impartial jury. (See People v. Edwards (1991) 54 Cal.3d 787, 830 [1 Cal.Rptr.2d 696, 819 P.2d 436].) E.

Prosecutor’s Use of Peremptory Challenges Defendant contends the prosecutor improperly used peremptory challenges to remove jurors holding views opposed to the death penalty. Defendant waived the point by failing to object to these challenges. (See People v. Gallego (1990) 52 Cal.3d 115, 166 [276 Cal.Rptr. 679, 802 P.2d 169].) In any event, we have repeatedly rejected the argument. (E.g., People v. Danielson, supra, 3 Cal.4th at p. 714; People v. Pinholster (1992) 1 Cal.4th 865, 912 [4 Cal.Rptr.2d 765, 824 P.2d 571]; People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal.Rptr. 196, 690 P.2d 669].) F.

Trial Court’s Jury Excusal Practices Defendant contends the trial court’s policy of freely excusing prospective jurors who claimed financial hardship culled from the jury several classes of persons, including “wage earners, unemployed people, and self-employed people; in other words, anyone who could not afford to serve.” According to defendant, the court’s policy thereby denied him a fair and impartial jury. Again, the argument has been repeatedly and recently rejected. (E.g., People v. Nicolaus (1991) 54 Cal.3d 551, 571 [286 Cal.Rptr. 628, 817 P.2d 893]; People v.

Harris (1989) 47 Cal.3d 1047, 1077-1078 [255 Cal.Rptr. 352, 767 P.2d 619].) G. Evidence of Uncharged Crimes As previously indicated, the evidence of defendant’s identity as the perpetrator of the charged offenses was in part based on evidence of a robbery murder crime spree that included the uncharged Orange County murders of Ariza and Metal. The Ariza murder occurred within only a few hours of the charged offenses, and the Metal murder occurred a few weeks later. Defendant contends the trial court erred in admitting evidence of these uncharged offenses. We disagree.

The rules controlling our analysis are well settled: “Evidence of the defendant’s commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]” (People v.

Edelbacher (1989) 47 Cal.3d 983, 1007 [254 Cal.Rptr. 586, 766 P.2d 1].) In cases in which the prosecution seeks to prove the defendant’s identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility “depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity. [Citation.]” (People v. Bigelow (1984) 37 Cal.3d 731, 749 [209 Cal.Rptr. 328, 691 P.2d 994, 64 A.L.R.4th 723]; see also People v.

Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757] [admissibility to show common plan or scheme]; People v. Rivera (1985) 41 Cal.3d 388, 392 [221 Cal.Rptr. 562, 710 P.2d 362].) Although defendant disputes the sufficiency of the People’s showing of distinctive common marks, we think there were enough common features or similarities to justify admission of the “other crimes” evidence. The charged and uncharged crimes each involved robbery murder of an employee working alone in a convenience store. The victims were each shot in the head, probably at close range, suggesting an execution murder.

Ballistic reports indicate the same .22-caliber handgun, later traced to defendant, was used in all three murders. In both uncharged offenses, witnesses saw a battered green Maverick resembling defendant’s car at the crime scenes shortly before or after the offenses took place. Each offense occurred within a two-and-one-half-week period; indeed, the charged offense occurred less than a day after the uncharged Ariza offense. Each offense was located along the route between defendant’s sisters’ homes, where he stayed during the time the various offenses were committed.

Defendant argues that, with the exception of the ballistics evidence, none of the foregoing “common marks,” standing alone, is particularly distinctive. But we think that, in the aggregate, the similarities become more meaningful, leading to the reasonable inference that defendant was the person who committed all three crimes. Indeed, the ballistic evidence alone probably would have been sufficient to justify admission of the “other crimes” evidence.

Defendant contends the trial court abused its discretion in failing to exclude the other crimes evidence as too prejudicial when weighed against its probative value. (Evid. Code, § 352.) Defendant suggests such evidence was “cumulative” to the prosecution’s case. Our review of the record convinces us, however, that the trial court did not abuse its discretion in admitting the evidence as highly probative to the issue of defendant’s guilt.

As defendant acknowledges (in arguing against a finding of harmless error), the remaining evidence of defendant’s guilt was limited to expert ballistics testimony, evidence that was “weak, if not completely insufficient, to prove that appellant robbed and murdered Craig Martin.” H. Bad Character Evidence The prosecutor established defendant’s possession of the handgun and the green Maverick automobile through the testimony of several witnesses.

According to defendant, much of this evidence was “not only cumulative, but implied that appellant had criminal or otherwise morally reprehensible tendencies.” Defendant points to guilt phase testimony indicating that he had tattoos of a “Nazi swastika and the grim reaper,” that he committed an uncharged rape and an armed robbery, and that he had stolen a gun from a pawnshop. 1. Defendant’s Tattoos One of the witnesses who linked defendant to the gun and the Maverick was Karen B., who identified him from two photographs and also testified, over objection, regarding his tattoos.

This testimony was corroborated by a detective who had also observed the tattoos. The trial court admitted the testimony, reasoning that it strengthened Karen B.’s credibility regarding her identification of defendant as the man she saw with the gun and the Maverick. According to defendant, Karen’s testimony was cumulative to other similar testimony linking defendant to the car and gun, and thus it was unnecessary to admit the tattoo evidence.

But the weighing of probative, though possibly cumulative, evidence against its potentially prejudicial nature is a matter entrusted to the sound discretion of the trial court. (E.g., People v. Cudjo (1993) 6 Cal.4th 585, 609 [25 Cal.Rptr.2d 390, 863 P.2d 635].) We find no abuse of that discretion here. Moreover, even if error occurred in admitting evidence of defendant’s tattoos, the error was surely harmless in light of the substantial “other crimes” evidence, properly admitted, confirming that defendant indeed had a criminal background.

In light of such evidence, admission of evidence regarding defendant’s tattoos could not possibly have prejudiced him. 2. Rape of Karen B. at Gunpoint Defendant contends the court erred in permitting the prosecutor to question Karen B. regarding her encounter with defendant, during which he raped her at gunpoint. Our examination of the record discloses that, in accordance with the court’s earlier ruling, the prosecutor and Karen carefully avoided mentioning the rape and limited her testimony to describing the gun and the Maverick she saw in defendant’s possession, and the tattoos she saw on his back and stomach.

Defendant argues that the jury could “speculate” from Karen’s “cryptic and very suggestive" testimony that defendant raped her. For example, she testified that she saw defendant with his shirt removed, and that at one point he was holding a gun which he placed on the night stand. But nothing in Karen’s testimony suggested the commission of any sexual conduct, consensual or otherwise.

Defendant points to Karen’s additional testimony that the light in the room was turned off during most of the incident, but this testimony was elicited by defense counsel on cross-examination and, accordingly, any objection to it was waived. 3. Evidence of Armed Robbery of Peter Yoon Defendant asserts the court erred in allowing the prosecutor to question Peter Yoon regarding his encounter with defendant, during which Yoon was robbed at gunpoint. The prosecutor and Yoon did not mention the robbery.

Yoon simply testified on direct examination that he saw defendant carrying a gun, that he only noticed the tip of the barrel, that defendant entered a green Ford Maverick, and that Yoon wrote down the license number and gave it to police. Although defendant argues the testimony was cumulative and prejudicial, as we have explained such matters are entrusted to the sound discretion of the trial court. We find no abuse of that discretion here.

Moreover, in light of the substantial “other crimes” evidence, properly admitted, including two other robbery/murders, evidence suggesting the defendant robbed Yoon at gunpoint could not possibly have prejudiced him. 4. Gun Stolen From Pawnshop The prosecutor introduced evidence that defendant stole a .22-caliber handgun (probably the murder weapon) from a pawnshop. Defendant contends the court erred in failing to exclude references to the irrelevant fact that the gun was stolen. Defendant failed, however, to object to such evidence at trial, and the point was accordingly waived for appeal.

But, even if no waiver had occurred, evidence indicating that defendant stole a gun could hardly have prejudiced him in light of the “other crimes” evidence properly admitted, referred to above. In sum, we conclude that no prejudicial error occurred in the admission of the foregoing “bad character” evidence. I. Evidence of Defendant’s Prior 1961 Arrest The prosecution linked defendant to the uncharged murder of Douglas Metal by matching a fingerprint found at the crime scene with one of defendant’s prints on a 1961 fingerprint card taken at the Orange County jail.

Defendant contends that this evidence of his 1961 arrest was unduly prejudicial because it suggested to the jury that he had long-standing “problems with the law.” He observes that it was unnecessary to introduce the 1961 card because his.current fingerprint card was available to match the crime scene fingerprint. Defendant acknowledges that his trial counsel failed to object to the foregoing evidence, but he argues that his counsel’s omission demonstrated his inadequacy.

We have no reasonable basis for concluding, however, that counsel’s failure to object to a 1961 jail fingerprint card, apparently taken when defendant was arrested on an unspecified criminal charge, was prejudicial to his case. (See Strickland v. Washington, supra, 466 U.S. 668, 688 [80 L.Ed.2d 693-694].) In light of the properly admitted evidence of defendant’s crime spree, including two uncharged robbery murders, it is not reasonably probable the jury’s verdict was influenced by the evidence at issue. J.

Defendant's Postarrest Statement Prior to trial, and without objection on Miranda grounds, the court ruled admissible defendant’s postarrest statement to police after being read his Miranda rights. (See Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) After one of the officers indicated that he wanted to talk about the Riverside County murder, defendant asked, “What do you want me to say?” The officer replied that he only “wanted to talk about the truth.” Whereupon defendant stated, “If I could only cry, but I can’t cry.

I couldn’t even cry when my mother died.” No further conversation took place. At the pretrial hearing, the court ruled that the statement would be admissible because it “could be interpreted as an admission,” and was “inconsistent with a statement of innocence.” At trial, the statement was admitted without objection.

The court instructed the jury that an admission is a statement of the defendant tending to prove guilt when considered with the rest of the evidence, and that the jurors are the “exclusive judges” as to whether an admission was made. (See CALJIC No. 2.71.) Defendant now argues the statement was irrelevant and unduly prejudicial, suggesting to the jury that he was a person incapable of human feelings or emotions.

In defendant’s words, the statement “did not prove or disprove any disputed fact in the case,” but instead amounted to improper character evidence tending to show that he was “the kind of person who could commit murder.” Initially, defendant acknowledges that his counsel’s failure to object to the admission of his statement at trial waived the point on appeal. (See People v. Morris (1991) 53 Cal.3d 152, 190 [279 Cal.Rptr. 720, 807 P.2d 949] [prior in limine motion, failing to specify legal

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