THE PEOPLE, Plaintiff and Respondent, v. HAROLD RAY MEMRO, Defendant and Appellant, 11 Cal. 4th 786

Opinion MOSK, J. In People v. Memro (1985) 38 Cal.3d 658 [214 Cal.Rptr. 832, 700 P.2d 446] (Memro I), we reversed a judgment imposing a death sentence under the 1977 death penalty statute. The district attorney filed a new information in Los Angeles County Superior Court on May 13, 1986, charging defendant with the murders of Scott Fowler and Ralph Chavez, Jr., in July 1976, and of Carl Carter, Jr., in October 1978. The information also contained a multiple-murder special-circumstance allegation.

A jury heard the evidence and found defendant guilty of the first degree murders of Carter and Chavez and of the second degree murder of Fowler. It found the special circumstance true. After a penalty trial, it returned a verdict of death and judgment was entered accordingly. This appeal proceeds automatically. For reasons that will appear, we affirm the judgment. Facts A jogger found the bodies of Scott Fowler and Ralph Chavez, Jr., sprawled 178 feet apart near a pond in John Anson Ford Park in Bell Gardens early on the morning of July 26, 1976. Fowler was 12 years old, Chavez 10.

Each victim’s throat had been cut with a sharp instrument. Witnesses testified that the boys had been fishing for hours the day before, staying well into the evening. They were placing their catch in a plastic gallon-size milk jug with the top excised so as to keep the handle intact. The police found the jug nearby, along with bologna wrappers, which were evidence of the boys’ picnic. A trail of blood suggested that Chavez had tried to run after the attack. The medical examiner fixed the time of death at about midnight. Carl Carter, Jr., was reported missing in South Gate on October 22, 1978.

He was seven years old. His body was found some five days later amidst dense scrub alongside a road. He had been strangled to death—a cord was still bound around his neck. An enzyme found in his anal area suggested an attempt at sodomy. I. Guilt Phase A. The Prosecution’s Case The prosecution’s case was based almost entirely on defendant’s confession, which he gave during the last of three interrogations at the South Gate city jail. The police became aware of defendant when they were interviewing individuals who might have information regarding Carter’s whereabouts.

They went to his apartment, and he introduced himself by saying, in the words of Officer William Sims, “ T knew you were coming .... I[’v]e been in Atascadero [State Prison] . . . At the time, there was wide awareness in South Gate that Carter was missing. At the apartment, defendant and the police discussed Carter’s disappearance. Defendant either said nothing about Carter at all or provided no useful information. The police returned to the Carter residence, and while they were there, defendant came over to drop off a part for his Volkswagen with Carl Carter, Sr., an occasional automobile repairer.

Officer Sims testified that he asked him where he had been and what he might have seen on the night he dropped off his car. Officer Sims testified that he told him, “ T remember now . . . . I took—I came to the Sizzler for dinner.’ . . . He said it was just before dark, and he had come up to the Carter residence ... to talk to Carl Carter, Sr., about working on his Volkswagen, [f] Stated that when he got to the rear of the house that Carl Carter, Jr., was at the rear and they had a short conversation, and he . . . had taken him for a Coke.” Officer Sims then arrested defendant for kidnapping.

There followed the three interrogations that evening at the jail. At the third, four officers were present: Sims, Lloyd Carter, Louie Gluhak, and Dennis Greene. Officer Sims treated defendant severely and Officer Carter more kindly. If this was a psychological tactic, it evidently worked, for Officer Carter, an experienced police investigator, won defendant’s confidence. Officer Carter took notes of his confession, but it was not transcribed or taped—in fact defendant requested that all policemen except Officer Carter leave the room so that he could check it for bugs before making a statement.

After they returned, defendant told his story. Officer Carter testified that he “stated that he had known Carl Carter, Jr.’s, father for quite some time, that he was a personal friend of his, [and] that he was a mechanic .... “He decided it would be a good time to stop and talk to him about repairing his Volkswagen.

That he pulled in the back of Carl [Carter], Sr.’s, house and was preparing to exit his car when little Carl, Jr., rode up on his bicycle. . . .” Carter said he wanted a soft drink and defendant invited him into his car and drove him to his apartment. “He said the reason he wanted to take him over to his apartment was—that he liked to take pictures of little boys in the nude and he was hoping to take some pictures of Carl, Jr., in the nude. He said he went into his apartment and took him into his bedroom, and he turned on these real fancy strobe lights.

And these lights began flashing on and on and he said that Carl, Jr., seemed to be fascinated with these lights.” Shortly thereafter Carl, Jr., said he wanted to leave. This made defendant angry. He “grabbed the clothesline that he had on the nightstand there and put it around Carl, Jr.’s, neck and choked him.

He says he then threw him on the bed and that he took off his clothes and that Carl—then he took off Carl, Jr.’s, clothes, all except his T-shirt, and he said that sometime he taped his hands behind his back with masking tape that he had on the nightstand.” He then tried to engage in anal intercourse with Carter’s dead body.

After this, he knew that he needed an alibi, and he decided to use the victim’s father for the purpose. “[H]e knew that he had to get his Volkswagen fixed so he tried to call Carl, Sr., to see if he could get his Volkswagen fixed and Carl said that he could.” Defendant arranged to have a friend drive with him to the Carter home. Before the friend arrived, a neighbor boy stopped by and with “Carl, Jr., . . . still laying in on the bed, [defendant] conversed with [the neighbor boy] for quite sometime, and started showing [him] slide pictures of naked girls.” The boy left after helping him jump-start his Volkswagen.

He drove the car over to the Carter residence and dropped it off. He returned to his apartment, “wrapped Carl, Jr.’s, body in a[n] army-type green blanket and rolled him up in it with his clothes. He said at this point he forgot to put the boy’s shoes and socks in the blanket, but the rest of the clothing was in the blanket.” He “dumped the body and the blanket over the side of’ a rural road. The next morning, after a troubled sleep, he went to work.

He “had heard about Carl missing because it had been in the newspapers. . . .” Officer Carter testified that defendant told him he had tied a square knot in the clothesline wrapped around Carl, Jr.’s neck, and that he had enclosed his shoes in a red suitcase in his garage and put it under a workbench. Officer Carter further testified that he invited defendant to confess to any other crimes he might have committed. Defendant then told Officer Carter that about two years before he had visited John Anson Ford Park in Bell Gardens on a red Yamaha motorcycle to take pictures of young boys.

About dusk he saw two young boys walking toward a pond with fishing poles and what he believed to be a sack lunch. “He started conversing with them and taking pictures .... He says one of the boys was named Scott, and he was a male, white about 13 and blond-headed and good-looking. The other boy was a Mexican boy named Ralph that was a little younger, about 12[;] he said he was fat and ugly.” Defendant explained that they had a lunch of bologna sandwiches and that Fowler offered him one.

As he lingered with them “he was thinking about sucking Scott’s dick because he liked blonds and just had a thing for young blonds. He says that it finally got real late and Ralph fell asleep on the bank while they were fishing.” Defendant persuaded Fowler to walk to the other side of the pond. When they got there, he “just got real smart and said something about fucking faggots.

He said this pissed him off, and he grabbed his 2-inch Barlow knife out of his pocket and bent Scott backwards and slit his throat and put his knee in his back. “He says this caused quite a commotion and apparently it woke up Ralph who was asleep over on the other side of the pond.

He says Ralph started [waking] up and screaming, that he ran around to where Ralph was and chased him and grabbed him from behind and he says he slit his throat and ran on—and was running across the grassy area to get on his motorcycle. “And he says as he was getting on his motorcycle he looked back and Ralph . . . had gotten up from where he had slit his throat and left him and was trying to walk. He said this scared him quite a bit and really made him sick, and he rode his motorcycle on home. . . .” He discarded his knife at work the next day.

Officer Carter testified that defendant then “started crying and sobbing, and he said, ‘Let’s go find Carl, Jr.’s, body.’ ” The police escorted him to the area he had described and found the decomposing body, clad in underwear. A cord was still bound around the neck. Although defendant agreed to take the police to the site, he begged them not to make him look at the scene. Officer Carter, accompanied by other members of the South Gate Police Department, then went to defendant’s apartment. There was testimony that he had given them permission to search it.

They recovered a pair of boy’s shoes and socks in a red suitcase stored partly underneath a workbench. They also found boy’s clothing in the suitcase and a length of clothesline that resembled the cord tied around Carter’s neck. In addition, they found sexually explicit magazines featuring young men and boys, and a wealth of photographs of young boys, “literally hundreds” of which showed them unclothed. Some of the photographs were of neighborhood children. The next day defendant confessed to Officer Donald Barclift of the Bell Gardens police.

In essence he repeated his confession to Fowler’s and Chavez’s murders. He told Officer Barclift how he had cut the milk jug (see ante, p. 811), and chided the police for failing to recover any evidence from it given that “he had his fingerprints all over it.” Officer Barclift testified that only the killer could have known precisely how the milk jug was cut so as to leave the handle intact. The prosecution’s case essentially rested on the foregoing testimony and evidence consistent with it. The coroner’s representative, Dr.

Joseph Choi, testified that the cause of death of both Fowler and Chavez was a cutting wound to the neck, and that Carter was strangled by a rope. Dr. Choi testified that an examination on Carter with an anal swab was “negative for . . . spermatozoa and two plus for acid phosphatase.” The positive result for that enzyme revealed the presence of seminal fluid that came from the prostate gland of someone other than Carter.

The prosecution’s theory of the case departed from the confessions as described by Officers Carter and Barclift only in that the prosecutor asserted that defendant either tried to or did have sex with Carter before killing him, rather than making an attempt on his dead body as he described. B. The Defense’s Case Defendant did not take the stand. He did, however, present a defense. With regard to the Fowler and Chavez murders, the defense was alibi. Defendant maintained that his confession was a fabrication based on secondhand knowledge of the killings, which were widely publicized.

He theorized that one or both of two men seen near or talking to the children killed thepi. Certain witnesses recalled seeing two men. Alfie Feliciano remembered a man on a motorcycle and another with a long knife strapped to his belt or his leg. The latter was wearing a green Army jacket. He had no camera, and he talked to Alfie for about an hour. José Feliciano, Alfie’s brother, told a police officer immediately after the killings that he saw two men near Fowler and Chavez. One of them wore a green Army jacket and had a long hunting knife strapped to his leg.

That individual spoke to a man on a yellow offroad motorcycle with a green gasoline tank. In his confession, it will be recalled, defendant said that his motorcycle was red. Scott Bushea, a witness for the prosecution, accompanied José Feliciano to the park that evening. He testified that two men were with Fowler and Chavez. Shown in court a picture of defendant taken immediately after his arrest, he testified that the photograph did not depict either of the people he saw at the park. The police prepared a composite sketch of one of the men.

Defendant argued that he could have learned all the details of the killings from media accounts notwithstanding the testimony that only the killer would know how the milk jug was cut. And he asserted that in significant respects his confession failed to match the evidence found at the crime scene or the most plausible inferences to be drawn from that evidence. For example, the person in the composite drawing did not resemble him, and the motorcycle that the witnesses described did not match his. Defendant conceded that he killed Carter.

However, he argued that the killing did not amount to first degree murder: the prosecution’s account of his confession showed that he killed Carter in a rage and without reflection. II. Penalty Phase A. The Prosecution’s Case The prosecution introduced evidence of prior violent conduct. In May 1972, David Schroeder, the child of neighbors, was nine years old. Defendant beat him and left him bleeding from the face, ears, nose, and the back of the head. The attack was severe enough that the police officer who arrested defendant said he asked whether he had killed him.

Schroeder spent the night in the hospital and was left with a nine-inch scar on his scalp. On cross-examination, the jury learned that the police perceived defendant to be distraught and that he told them he did not know why he assaulted Schroeder. B. The Defense’s Case Over defendant’s objection, the defense summoned one witness: Kathy Klabunde, his sister. She testified that their father, an alcoholic, verbally abused the children. Defendant, the eldest, would care for the others. He had migraine headaches “on and off for years.” His headaches would cause him to “get very angry easily.

I remember a period where he stayed downstairs for a couple of days where it was dark and cool to stay out of the light because his head hurt.” As stated, defendant sought to bar his sister’s testimony—he objected to a specific question at one point and called her a liar from his chair at another. After the jury retired, he asked to reopen the case so that he could testify, and the court acceded to his request.

He stated to the jury, “I just have a short statement I’d like to read to the jury. [*][] While I do not concede the truth, accuracy or correctness of the jury’s verdicts, I do feel that since the jury has returned the verdicts of guilt in the maximum degree possible on all counts and the special circumstance, that they should also now return with a verdict of death as the appropriate penalty.

Thank you.” At closing argument, counsel emphasized defendant’s mental problems, his cooperation with the police, lingering doubt regarding the special circumstance in light of his alibi defense to the killings of Fowler and Chavez, the grimness of life imprisonment, his lack of a prior felony conviction, the likelihood that he would not be dangerous in prison, and positive aspects of his background and character, including his remorse when he was discovered. Contentions on Appeal I. Jury Selection Claims A.

Court’s Failure to Conduct Further Voir Dire At voir dire the court asked Elva Cazares, a member of the venire, whether she would refuse to vote to return a verdict of first degree murder “so that you wouldn’t even have to get to the death penalty?” She replied, “Yes, I think I would.” It then asked her if she would vote to find the special circumstance allegation false in order to stop a capital penalty phase. She replied, “Well, it’s kind of confusing in that term.

But just to sum it all up, I don’t believe in the death penalty.” The court asked Julietta Lopez, also a member of the venire, “If the prosecution proves that the defendant’s guilty of first degree murder, . . . would you refuse to vote for that because you know by voting for something other than first degree murder there wouldn’t be a death penalty?” She replied, “I would.” Defendant contends that the court erred in failing to inquire more fully about the basis for the two potential jurors’ opposition to the death penalty.

The result, in his view, was a violation of a right he asserts to an impartial jury under the Sixth and Fourteenth Amendments. Potential jurors “must be excused if their views on capital punishment would prevent or substantially impair the performance of their duties in accordance with the instructions and their oath.” (People v. Mayfield (1993) 5 Cal.4th 142, 169 [19 Cal.Rptr.2d 836, 852 P.2d 331].) The court’s determination resolves “what is essentially a question of fact or, perhaps more accurately, a mixed question that is essentially factual.” (People v.

Gordon (1990) 50 Cal.3d 1223, 1262 [270 Cal.Rptr. 451, 792 P.2d 251].) Accordingly, our review is deferential: we determine whether substantial evidence supported the rulings. (Ibid.) The court implicitly ruled that the ability of the two potential jurors in question to follow their oaths was substantially impaired. These determinations were supported by substantial evidence. First, we note that the court excluded the potential jurors on its own motion after eliciting their views on the death penalty, and that counsel failed to object.

It continues to be the rule that “the failure to object does not waive the right to raise the issue on appeal [citation] . . . .” (People v.

Cox (1991) 53 Cal.3d 618, 648, fn. 4 [280 Cal.Rptr. 692, 809 P.2d 351].) But the failure to object to the rulings “does suggest defense counsel’s concurrence in the court’s assessment of each venireperson’s firm and sincere expression of his or her inability to impose the death penalty.” (Ibid.) Substantial evidence supported the court’s implicit determination that the ability of the potential jurors to follow the law at the guilt phase was, at a minimum, substantially impaired. Defendant does not persuade us that any constitutional right was violated. B.

Counsel’s Failure to Conduct Further Voir Dire Defendant contends that counsel were ineffective for failing to question sufficiently or at all nine potential jurors, including Cazares and Lopez, who were excused for cause—specifically, for what he terms “a general opposition to the death penalty.” It is fundamental that “a defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome.” (People v.

Davis (1995) 10 Cal.4th 463, 529 [41 Cal.Rptr.2d 826, 896 P.2d 119], citing Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80 L.Ed.2d 674, 693-694, 697-698,104 S.Ct. 2052]; People v. Ledesma (1987) 43 Cal.3d 171, 215-218 [233 Cal.Rptr. 404, 729 P.2d 839].) Counsel were not ineffective. To be sure, “part of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors. [Citations.]” (Morgan v.

Illinois (1992) 504 U.S. 719, 729 [119 L.Ed.2d 492, 503, 112 S.Ct. 2222].) But each venireperson to whom defendant refers us either made clear that he or she would never vote for death, or gave slightly more ambiguous answers from which the court and counsel could reasonably conclude that his or her ability to follow the law was, at a minimum, substantially impaired.

We have already described the testimony of Cazares and Lopez. (See ante, p. 817.) To provide other examples, Josefina Docuyanan flatly testified, “I will never vote for a verdict of death,” and in answer to the question, “Would you automatically vote for a verdict other than first degree [murder] in order to avoid having to worry about the death penalty?” Pamela Elofson testified, “Yes.

Yes, I would.” Hence, “[n]othing in the record indicates that counsel lacked a plausible, tactical reason for asking these individuals few or no follow-up questions. [Citation.] Indeed, counsel might have determined from the demeanor of these prospective jurors that additional questioning would be futile. Counsel might also have reasonably concluded that any ambiguity in the answers they had already given would be beneficial and would promote retention of pro-life jurors. No constitutional deficiency in counsel’s performance on voir dire has been shown.” (People v.

Tuilaepa (1992) 4 Cal.4th 569, 587 [15 Cal.Rptr.2d 382, 842 P.2d 1142], fns. omitted, affd. sub nom. Tuilaepa v. California (1994) 512 U.S. _ [129 L.Ed.2d 750, 114 S.Ct. 2630].) In the case of many of the venirepersons to whose examination defendant alludes, questioning by counsel for either party would have been superfluous, for the court effectively elicited the venireperson’s opinion. At other times, it was defense counsel who confirmed what was already apparent: the potential juror was opposed to the death penalty and could not vote for it.

Thus, even if counsel were deficient for not questioning each potential juror—an unlikely prospect—we cannot conclude that defendant was prejudiced. There is no reasonable probability that the court’s rulings would have differed, and hence that the result might have differed, if counsel had questioned the potential jurors at length. Defendant also asserts that the potential jurors were excused solely because they opposed the death penalty.

He contends that “the exclusion from the guilt phase of jurors categorically opposed to the death penalty deprived him of a jury composed of a representative cross-section of the community, in violation of his Sixth and Fourteenth Amendment rights. We have rejected such claims [citation], as has the United States Supreme Court . . . .” (People v. Kaurish (1990) 52 Cal.3d 648, 674 [276 Cal.Rptr. 788, 802 P.2d 278].) II. Guilt Phase Issues Defendant asserts that errors in deciding his guilt or the truthfulness of the special circumstance allegation occurred. As will appear, his claims lack merit. A.

Double Jeopardy and Collateral Estoppel Issues At the prior trial, the court found defendant guilty of first degree murder for Carter’s killing, and found true a special circumstance of multiple murder under the 1977 death penalty statute, but found not true a special circumstance of felony murder under the same law.

To find true the felony-murder special circumstance under the 1977 death penalty law, the court had to determine that Carter’s murder was “willful, deliberate, and premeditated and was committed during the commission or attempted commission of’ “a lewd or lascivious act upon the person of a child under the age of 14 years in violation of

Section 288.” (Stats. 1977, ch. 316, § 9, subd: (c)(3), p. 1258.) By finding the special circumstance not true, the court may have decided that there was no premeditation, or that there was no attempted or completed lewd act—we do not know. It could not have decided that both theories failed, however, because at the same time, by finding defendant guilty of first degree murder, it determined either that defendant killed Carter with premeditation and deliberation, or while committing or attempting to commit a violation of

section 288. (Pen. Code, § 189; unlabeled statutory references are to this code.) The prosecution did not reallege the felony-murder special circumstance, but did try the case under a theory that defendant was guilty of first degree murder by reason of felony murder or premeditation and deliberation, or both. The jury was instructed on both theories. The jury found defendant guilty of first degree murder for killing Carter. He asked that the jury be polled to discover the legal basis for each vote. The court denied the motion.

Defendant first contends that the double jeopardy clause of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment, and that of

article I,

section 15, of the California Constitution, barred his retrial on charges that he murdered Carter under theories of felony murder or premeditated and deliberate murder. He premises this contention on an argument that the court must have rejected one of those theories when it found the felony-murder special circumstance not true, and therefore he should not have been retried on either theory. We disagree.

Preliminarily, we note that among the pleas that defendant might have entered are “[a] former judgment of conviction or acquittal of the offense charged” (§ 1016, subd. 4) and “[ojnce in jeopardy” (id., subd. 5; see also § 1023). Not only may former jeopardy be affirmatively pleaded, but it must be, or any claim on that ground is not preserved for review. (People v. Belcher (1974) 11 Cal.3d 91, 96 [113 Cal.Rptr. 1, 520 P.2d 385].) Defendant did not enter a plea of former jeopardy.

Rather, when he was arraigned on the amended information, he refused to enter a plea at all, demanding instead to be returned to San Quentin prison. The court entered a plea of not guilty on his behalf. At oral argument defendant contended that if we decide the double jeopardy question adversely to him on the ground that he did not enter the proper plea on retrial, he did not receive the effective assistance of counsel. Without agreeing that any such claim would persuade us, we do agree that we should decide the issue on the merits.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” Defendant was convicted of Carter’s murder at his first trial.

Retrying him on a charge of murder did not place him twice in jeopardy for that offense. “ ‘It has long been settled . . . that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.’ [Citations.] ‘[T]o require a criminal defendant to stand trial again after he has successfully invoked a statutory right of appeal to upset his first conviction is not

an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.’ [Citation.]” (People v. Santamaría (1994) 8 Cal.4th 903, 910-911 [35 Cal.Rptr.2d 624, 884 P.2d 81].) Defendant next contends that collateral estoppel bars relitigation of the killing of Carter on a first degree murder theory.

In his view, when the court at the prior trial found not true the felony-murder special circumstance, it necessarily determined either that there was no felony murder or that there was no premeditated and deliberate murder, and therefore retrial of the murder on either theory was barred by collateral estoppel. It is questionable whether the doctrine of collateral estoppel even applies to further proceedings in the same litigation. (People v.

Santamaría, supra, 8 Cal.4th at pp. 913-916.) Even if it does, at most it would bar retrial of the felony-murder special circumstance, which was not realleged. (See id. at p. 914 [collateral estoppel would, at most, bar retrial of an enhancement allegation, not an offense of which the defendant was found guilty].) We are not persuaded by defendant’s contention, advanced at oral argument, that Santamaría is distinguishable because the prior trial therein was by jury, whereas the prior trial herein was by the court. Therefore defendant’s collateral estoppel contention must be rejected.

So must his ancillary contention that this court’s remand of his case without “delimiting the proper scope of charges for which appellant could be retried” violated rights he discerns in the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. This assertion rests on a view that a combination of errors requires the reversal of his conviction for the murder of Carter.

The asserted errors are that we declined, in Memro I, supra, 38 Cal.3d 658, to decide the adequacy of the evidence to prove a premeditated and deliberate murder, leaving open the theories on which he could be retried, and that the court failed to preclude the prosecution from proceeding on at least one theory of first degree murder or to require that the jury identify the theory on which it found him guilty of that crime. Defendant did not seek rehearing or modification of our decision in Memro I, supra, 38 Cal.3d 658, on the ground complained of. We find his assertion unavailing.

The court’s ruling on the felony-murder special-circumstance allegation required at most that the special circumstance not be realleged at the second trial. It was not. Nothing more could have been required. There was no violation of any constitutional right in retrying defendant on a charge that he murdered Carter on a theory of first degree murder. B. Claims of Error Regarding the Voluntariness of Defendant’s Confession and Discovery of Interrogators’ Personnel Records 1. Denying Motion to Suppress Confession a.

Statement of Facts Defendant’s pretrial litigation strategy focused mainly on an in limine motion, brought under Evidence Code

section 402, to suppress his confession because coerced by threats and inducements following invocation of his rights to counsel and to silence. Defendant testified on his own behalf for purposes of the motion to suppress.

He testified that during the interrogations at the South Gate jail, Officer Carter made clear that he would get answers to his questions, pointed to the muscular Officer Greene, asked him whether he thought he could beat Officer Greene in a fight, and told him if a fight began Officer Greene “literally would kill me if somebody didn’t stop him.” He also testified that the police showed him a depression in a wall of the interrogation room that could have been made by the impact of a human head and suggested that his head might be used to enlarge it if he failed to reveal what he knew about Carter’s disappearance.

In sum, he was “terrified of Greene and the situation . . . .” Moreover, he testified, the police told him that if he should be imprisoned for the murders he would be unlikely to survive. Defendant introduced (in the context of his Pitchess motion, discussed infra, at pp. 829-832) the testimony of his own counsel, Michael C. Carney, that when he was a prosecutor he learned the police had received a letter complaint that Officer Greene had used excessive force during a drunk-driving arrest.

At the time, Officer Greene also told Carney that he had broken a citizen’s jaw and received a restrictive-duty assignment as a result. There was also evidence that a letter complaint might be treated by the police as minor and never be placed in a personnel record for the officer later to discover. Indeed, after Carney’s testimony, Officer Greene testified that his file contained no complaint. Defendant also called his counsel from the prior trial, Peter L.

Williams, who testified that another client, Angelina Nasca, told him that Officer Greene forced her to confess to a trumped-up charge of burglary because he “took her in the interview room in the South Gate jail and hit her, driving her tooth through her cheek, and threatened to put her head through a hole in the wall of the interview room of the South Gate jail.” Williams also testified that defendant told the public defender’s office about the wall on “the morning after his arrest.” The court considered Nasca’s testimony from the prior trial, as well as that of Michael Bridges.

Both claimed to have been bullied and beaten by Officer Greene while under arrest. Nasca said that Officer Greene threatened to “push my head through that hole” in the interrogation room wall “the same way he did someone else’s.” Bridges also testified that Officer Greene threatened him with a shotgun. When Bridges was in the South Gate jail’s interrogation room, he filled out a card indicating that he wanted a lawyer and did not want to talk. Another member of the police department tore it up and Officer Greene beat him again. Bridges denied knowing defendant.

Louis Moreno testified that he was roughed up by the South Gate police in October or November of 1978 when they arrested him on a fugitive warrant for armed robbery. The court found that his description of the assertedly offending police officers did not match those who had testified in the hearing. There was testimony that for three or four years the local public defender had not received a single request to appear at the South Gate jail in response to an invocation of the right to counsel. As stated, defendant also testified that the police offered him an inducement to confess.

It “was my understanding that [Officer Carter] was promising that if I cooperated with him and told him whatever it was he wanted to hear that he would send me back to Atascadero . . . , that there wouldn’t be any charges filed .... That was in the form of a promise.” Defendant further testified that he was never read his Miranda rights (Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and that when he demanded to see a lawyer Officer Carter refused, responding “did I want to talk to him or did I want to fight, something to that effect.” “[N]obody told me why I wasn’t read my rights. I was told . . . something to the effect that they had already done a number of things improperly and that he [Officer Carter] probably couldn’t make a case hold up in court anyway.” The prosecution produced numerous witnesses to support its assertion that his confessions were made voluntarily.

Officer Sims testified that defendant was neither threatened nor offered an inducement for his statements: he responded freely and voluntarily and his demeanor was “somewhat nervous, but was also relaxed . . . .” Officer Carter, who conducted the key interrogation, also testified that defendant’s demeanor was “normal, maybe a little emotionally upset”; neither Officer Carter nor any other member of the South Gate Police Department threatened him or offered any inducement or benefit other than coffee and cigarettes.

Officer Greene was not flexing his muscles or making threatening gestures; rather, he “was very quiet that evening and seemed to be real remorseful if anything.” Indeed, when “Mr. Memro started telling us about picking up the boy and what he had done to the boy, . . . Greene became quite emotional and appeared as though he couldn’t take it and he went over and sat in the comer.” After an hour of general conversation to make defendant feel comfortable, Officer Carter testified, he confessed to the Carter murder. “At that time he became extremely emotionally upset and . . . seemed to be very remorseful.

He started crying very heavily . . . Officer Carter gave him a few minutes to calm down and then invited him to unburden himself of any other criminal activity. Defendant told him that the murders of Fowler and Chavez had weighed on his mind for a long time, and he confessed to them. Officer Carter agreed that there was a slight, six- to eight-inch-wide impression in one plaster wall of the interrogation room. Anthony Cornejo, a fellow jail inmate, testified that defendant told him that he had lied about his confession being coerced. “He admitted making the statements freely to the police.

And he said—the quote was, ‘That was the only thing I had going for me on my appeal was to say that I was beat up and coerced and had the statements beat out of me.’ ” On cross-examination, Cornejo was impeached as a notorious jailhouse informant who had repeatedly testified about fellow inmates’ statements in jail for the prosecution in state and federal court. Cornejo was a convicted murderer, robber and burglar who, the cross-examination suggested, would hope for lenity from the parole board. And another informer had written Cornejo about defendant’s case.

Defendant also called Theodore Frank— presumably the defendant in People v. Frank (1985) 38 Cal.3d 711 [214 Cal.Rptr. 801, 700 P.2d 415], following retrial People v. Frank (1990) 51 Cal.3d 718 [274 Cal.Rptr. 372, 798 P.2d 1215]—who testified that defendant was very reticent about his case: he would never answer questions or volunteer any information about it. South Gate Police Officer Walter R. Carter drove defendant back to the police station from the site where Carter’s body was recovered.

He testified that Lloyd Carter told him not to bother to handcuff him, but that he (Walter Carter) insisted that he should be restrained. On the way to the station, defendant told him that “he didn’t understand how anyone could treat him so fairly and so nice when he had done such a terrible thing.” Defendant conceded that he was never physically harmed, that he had studied karate in 1972, that he was attending judo classes before his arrest, that he was in good physical condition, and that he had wrestled in school— evidently high school—and also played football there.

The court also heard evidence that while in jail defendant was fed and was allowed to make two phone calls. He called Linda Brundige, a reserve deputy sheriff who knew him because, as she testified at trial after the court had ruled the confession voluntary, he “was one of my assistant instructors in a judo class I taught for the city of Huntington Park.” Brundige also explained that defendant “had been trained by somebody that was good with martial arts” and that “he was good within his skill level” in a form of karate.

The court denied the motion to suppress the confession. “Based upon the totality of the evidence,” it declared, “the court finds beyond a reasonable doubt the confession was free and voluntary.” It further declared that “the totality of the circumstances clearly point to the credibility of the prosecution witnesses and against the credibility of the defense witnesses, and I find the statement to be free and voluntary.” b. Discussion Defendant contends that the court erred in finding beyond a reasonable doubt that his confession was given voluntarily and that his witnesses were not credible.

He asserts that this ruling was inherently implausible and is unsupported by substantial evidence given his testimony regarding his interrogation and that of witnesses who testified that the South Gate police department behaved brutally toward arrestees, particularly while interrogating them. He is wrong: substantial evidence supported the ruling. The parties agree on the applicable burden of proof regarding the claim of involuntary confession. Because the crimes charged occurred before the adoption of

article I,

section 28, subdivision (

d) of the California Constitution in 1982, state law required the prosecution to show beyond a reasonable doubt that defendant’s statements were made voluntarily. (People v. Anderson (1990) 52 Cal.3d 453, 470 [276 Cal.Rptr. 356, 801 P.2d 1107].) Federal law requires the prosecution to make the same showing by a preponderance of the evidence. (People v.

Morris (1991) 53 Cal.3d 152, 200 [279 Cal.Rptr. 720, 807 P.2d 949].) “On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation’ [citations] . ...

HO The trial court’s determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well.” (People v. Benson (1990) 52 Cal.3d 754, 779 [276 Cal.Rptr. 827, 802 P.2d 330].) However, “the trial court’s findings as to the circumstances surrounding the confession—including ‘the characteristics of the accused and the details of the interrogation’ [citation]—are clearly subject to review for substantial evidence.

The underlying questions are factual; such questions are examined under the deferential substantial-evidence standard [citation] . . . .” (Ibid.) Applying the foregoing law to the record before us, we conclude that the confession was voluntary. What the Constitution permits to be admitted in evidence is “the product of an essentially free and unconstrained choice . . to confess. (Schneckloth v.

Bustamonte (1973) 412 U.S. 218, 225 [36 L.Ed.2d 854, 862, 93 S.Ct. 2041] (lead opn.); accord, id. at p. 249 [36 L.Ed.2d at pp. 875-876] (conc. opn. of Blackmun, J.) and p. 250 [36 L.Ed.2d at p. 876] (conc. opn. of Powell, J.).) The question is whether defendant’s choice to confess was not “essentially free” because his will was overborne. (Id. at pp. 225-226 [36 L.Ed.2d at pp. 861-862].) The inquiry is essentially factual. “In determining whether a defendant’s will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” (Id. at p. 226 [36 L.Ed.2d at p. 862].) The police testified that defendant was not threatened, was offered no inducement, and waived his rights to counsel and to remain silent.

There was thus substantial evidence before the court that the interrogation was free of any taint that might make it involuntary. The court believed the testimony of the police and rejected that of defendant’s witnesses. We must accept its evaluation of the facts when substantial evidence supports it, as the testimony does. (People v. Benson, supra, 52 Cal.3d at p. 779.) Doing so, independently resolving the legal question whether the confession was voluntary is a simple task: it was. 2. Refusing to Exclude Cornejo’s Testimony Before trial defendant moved to exclude the testimony of Anthony Cornejo.

He argued that it would be substantially more prejudicial than probative (Evid. Code, § 352) and that introducing it would violate constitutional rights he asserted to a reliable guilt and penalty determination, to due process, and to the right to counsel. Just before Cornejo testified in limine, defendant also added the ground of objection that if the court had granted him as speedy a trial as he desired he would never have encountered Cornejo and his testimony would not now be heard. To recapitulate, Cornejo testified that defendant told him his statements to the police were voluntary.

On cross-examination, he was thoroughly impeached as a notorious jailhouse informant. Defendant argues that the government used Cornejo as an agent to elicit his purported statement about the circumstances surrounding his confession. This, he asserts, violated his Sixth Amendment rights, because, as we stated in People v. Pensinger (1991) 52 Cal.3d 1210, 1249 [278 Cal.Rptr. 640, 805 P.2d 899], “[i]t is a denial of the Sixth Amendment right to counsel to admit evidence of an indicted defendant’s incriminating statements deliberately elicited from the defendant by a government agent. (Massiah v.

United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]; see also United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183].)” A government agent includes a jailhouse informant whom the state has hired to obtain incriminating statements, even if they are made voluntarily and without solicitation. (Maine v. Moulton (1985) 474 U.S. 159, 173 [88 L.Ed.2d 481, 494, 106 S.Ct. 477].) The court’s ruling allowing a jailhouse informant’s testimony to be introduced presents an essentially factual question, and we review it on a deferential standard, There was no abuse of discretion (Evid.

Code, § 352; People v. Clair (1992) 2 Cal.4th 629, 660 [7 Cal.Rptr.2d 564, 828 P.2d 705]) in admitting Cornejo’s testimony. We disagree with defendant’s perception of Cornejo’s role. The record does not at all compel the conclusion that Cornejo was acting at the government’s behest.

Pointing to Cornejo’s history of testifying for the government, defendant naturally disagrees, but such a history does not automatically make an informant a state agent. (See In re Williams (1994) 7 Cal.4th 572, 597-598 [29 Cal.Rptr.2d 64, 870 P.2d 1072].) In our view, no constitutional question arises unless the informant is an agent of the state at the time he or she elicited the statements that would be the subject of later testimony. (See U.S. v.

Sanchez (11th Cir. 1993) 992 F.2d 1143, 1159-1160, mod. 3 F.3d 366.) It is clear that Cornejo testified to further selfish goals, and it appears that he instigated his conversation with defendant, if that is what happened, for the same ends, even though he declared that he was testifying “out of a moral consciousness of the things that I believe that are involved in this.” His goal may have been lenience from the parole board—he was awaiting or was on trial for murder when he first testified in this case in December 1986—but he testified that he was promised nothing except safe housing when incarcerated and there is nothing in the record to the contrary.

The record supports our conclusion that this promise was made after he obtained defendant’s statements against interest. In sum, the record supports the conclusion of the trial court that Cornejo was gathering information on his own initiative, not that of the state. As such, he was not a government agent. (In re Williams, supra, 7 Cal.4th at p. 598; People v. Williams (1988) 44 Cal.3d 1127, 1141 [245 Cal.Rptr. 635, 751 P.2d 901].) We find no abuse of discretion in admitting the testimony and no constitutional violation. 3. Denying Motion to Dismiss for Loss of Police Personnel Records a.

Statement of Facts To aid his assertion of coercion, defendant also moved, as he did before his prior trial, to discover the personnel records of various South Gate police officers under authority of Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 [113 Cal.Rptr. 897, 522 P.2d 305]. We discern from the record that he renewed the motion made at his prior trial. That motion sought “information regarding complaints against South Gate Police Department officers —including the four officers who had participated in [defendant’s] postarrest interrogation.

His motion requested the identity of individuals who had filed complaints ‘relating to unnecessary acts of aggressive behavior, . . . violence, and/or attempted violence, and . . . excessive force and/or attempted excessive force’ against 16 officers in the department. [Defendant] also sought discovery of investigative reports based on these complaints, including statements of witnesses interviewed, information concerning the officers’ use of excessive force or violence contained in personnel files, statements of psychiatrists, psychologists, or other officers contained in such files, and findings of disciplinary actions taken against any officers as a result of their use of force and violence.

The purpose of such information, it was alleged, was to enable appellant to bolster his claim that his confession had been coerced.” (Memro I, supra, 38 Cal.3d 658, 674.) In Memro I, we reversed the judgment because the court denied this motion. The court granted the motion to discover the personnel records of Officers Carter, Gluhak, Greene, and Sims—defendant’s four interrogators. (Defendant later moved to discover the personnel records of four other members of the South Gate Police Department—the partners of defendant’s interrogators.

That motion was denied because the court found there was “no showing of need” and no “nexus or connection between conduct complained of . . . and those officers.”) The prosecution informed the court and defendant that the officers’ personnel files had been purged according to the terms of the department’s document-destruction policy, governed by Government Code

section 34090, which permits, and has permitted since 1975, that records two years old or older may be purged if “no longer required . . . .” The policy was to purge material from personnel files that was more than five years old. Defendant then asserted that the records were destroyed to conceal information relevant to his claim of coercion. He moved to dismiss the information, in essence as a proper sanction for their loss.

He argued that the police knew a major issue on the appeal from the original judgment was denial of the motion to discover police personnel records and that the department destroyed the records notwithstanding the possibility of a reversal on that ground. In response, the prosecution introduced evidence of the procedure whereby the records were purged, and, to aid the court in ruling on the motion to suppress, secondary evidence of their contents. The South Gate Police Department’s records custodian testified that police officers would be alerted to any citizen complaints placed in their personnel record.

Each officer testified that his personnel file contained no such complaints at the times for which the information was sought, except for Officer Sims, who described one “unfounded” complaint in 1978 involving asserted use of excessive force during an arrest. The custodian also testified that the records were destroyed in accordance with the requirements of Government Code

section 34090: he believed the police chief asked of and received from the city attorney permission to purge “the ones that were at least five years old.” However, records relevant to unresolved civil lawsuits were kept longer, and the department did not ask the district attorney or Attorney General to ascertain whether records might be needed for pending criminal cases. The court denied the motion for a sanction for destroying the records. It rejected the argument that the records were destroyed to conceal information relevant to defendant’s assertion of coercion.

It first ruled that defendant bore the burden of showing that the records were destroyed for an improper purpose. It then found that the only evidence of such a purpose was that oral argument in Memro I, supra, 38 Cal.3d 658, took place on May 7, 1984, and that permission to destroy the records was granted on July 3, 1984. It found this evidence insufficient to show that the records were destroyed in bad faith. Rather, it found that they were destroyed in good faith according to established procedure. b.

Discussion Preliminarily, we note that we review the court’s decision to consider secondary evidence of the records’ contents on a deferential standard. (Mayo v. Mayo (1935) 3 Cal.2d 51, 57 [43 P.2d 535], overruled on other grounds in Stitt v. Stitt (1937) 8 Cal.2d 450, 453 [65 P.2d 1297].) There was no abuse of discretion: the court did not exceed the bounds of reason when it decided to hear testimonial evidence of the contents of the police officers’ files. Defendant contends that due process was violated because evidence material to his defense was withheld.

We agree with the People, however, that the question instead regards the failure to preserve evidence. Defendant also contends that the court erred in failing to impose a sanction for the records’ destruction. i. Failure to Preserve Evidence In Arizona v.

Youngblood (1988) 488 U.S. 51, 58 [102 L.Ed.2d 281, 289-290, 109 S.Ct. 333], the federal high court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Moreover, a trial court’s inquiry whether evidence was destroyed in good faith or bad faith is essentially factual: therefore, the proper standard of review is substantial evidence. (See U.S. v.

Stevens (3d Cir. 1991) 935 F.2d 1380, 1387-1388 [applying clearly erroneous standard].) Under the holdings of Youngblood and Stevens, we conclude that substantial evidence supported the court’s ruling. The burden was on defendant to show bad faith, and he did not meet his burden. Even if the records were potentially useful, the failure to preserve them did not violate due process. ii.

Denying Motion to Impose Sanction for Failure to Preserve Evidence “It is settled that trial courts ‘enjoy a large measure of discretion in determining the appropriate sanction that should be imposed’ because of the failure to preserve or destruction of material evidence. [Citations.]” (People v. Sixto (1993) 17 Cal.App.4th 374, 399 [21 Cal.Rptr.2d 264]; see also People v. Zapien (1993) 4 Cal.4th 929, 964 [17 Cal.Rptr.2d 122, 846 P.2d 704].) We find no abuse of discretion.

Although defendant calls the circumstances surrounding the records’ destruction suspicious because the court’s denial of the motion to discover them was a major focus of his appeal from the original judgment and the records were destroyed two months after oral argument in that appeal, the court could reasonably conclude that (1) the evidence showed the records were destroyed according to the provisions of the Government Code—indeed, they were kept for three years beyond the two-year period after which Government Code

section 34090, subdivision (d), permitted their destruction—and (2) the department, unschooled in the nuances of appellate procedure, did not realize that the records might be needed after the court in defendant’s prior trial denied the motion to discover them. Nor, the court could reasonably conclude, was there an improper purpose behind the policy to keep personnel records relevant to civil cases while not attempting to determine whether criminal cases might still be unresolved: criminal cases rarely remain active after five years.

We find no abuse of discretion and no violation of due process in the refusal to impose a sanction. 4. Denying Motion to Discover Other Officers’ Personnel Records As described, the court denied defendant’s motion to discover the records of four other police officers not present at his interrogation. It found no “nexus or connection” between those officers and his claim of involuntary confession that would justify discovering their personnel records. Defendant contends that the court erred in so finding.

He asserts that he showed the officers trained with his interrogators, and that in Memro I, supra, 38 Cal.3d 658, 686, we held that the records of those who “trained or otherwise had substantial contacts with any of the four interrogating officers” would be discoverable. Trial courts are granted wide discretion when ruling on a motion to discover such records. (People v. Breaux (1991) 1 Cal.4th 281, 311 [3 Cal.Rptr.2d 81, 821 P.2d 585], quoting Pitchess v.

Superior Court, supra, 11 Cal.3d 531, 535.) Here the court found that there was no sufficient connection between training sessions or other activities in which the officers had mutually participated and the circumstances surrounding the interrogation. There is nothing in the record to contradict that finding. Plainly the court did not abuse its discretion. C.

Asserted Failure to Obtain Knowing and Intelligent Waiver of Miranda Rights It will be recalled that the court found beyond a reasonable doubt that defendant confessed freely and voluntarily. (Ante, p. 826.) Officer Carter testified, however, that just before defendant confessed, he asked to sweep the room for concealed electronic recording devices with his help and with the other police out of the room, and that Officer Carter obliged him. He also testified that defendant said he wanted to talk to him alone because he trusted him and did not trust the other interrogators.

He explained to defendant that the other officers were just doing their job, and they came back into the room, evidently without his objecting to their renewed presence. Then, some time later and with all interrogators present, he confessed. Defendant contends the fact he wanted to speak “off the record,” so to speak, as shown by his asking to sweep the room for recording devices, showed that he did not realize his confession could be used against him. Thus, he reasons, he did not knowingly and intelligently waive his right to remain silent and to counsel. He cites People v.

Braeseke (1979) 25 Cal.3d 691 [159 Cal.Rptr. 684, 602 P.2d 384], vacated and remanded sub nom. California v. Braeseke (1980) 446 U.S. 932 [64 L.Ed.2d 784, 100 S.Ct. 2147], reiterated People v. Braeseke (1980) 28 Cal.3d 86 [168 Cal.Rptr. 603, 618 P.2d 149]. “Under the familiar requirements of Miranda [v.

Arizona, supra, 384 U.S. 436], designed to assure protection of the federal Constitution’s Fifth Amendment privilege against self-incrimination under ‘inherently coercive’ circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. (384 U.S. at pp. 444-445, 473-474 [16 L.Ed.2d at pp. 706-707, 722-724]; People v.

Boyer (1989) 48 Cal.3d 247, 271 [256 Cal.Rptr. 96, 768 P.2d 610].) Once having invoked these rights, the accused ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 385-386, 101 S.Ct. 1880].) The initiation of further dialogue by the accused, however, does not in itself justify reinterrogation. (Oregon v.

Bradshaw (1983) 462 U.S. 1039, 1044 [77 L.Ed.2d 405, 411-412, 103 S.Ct. 2830].) ‘[E]ven if a conversation taking place after the accused has “expressed his desire to deal with the police only through counsel,” is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.’ (Ibid.)” (People v.

Sims (1993) 5 Cal.4th 405, 440 [20 Cal.Rptr.2d 537, 853 P.2d 992].) We have already explained that the court accepted the police version of the circumstances surrounding the confession. (Ante, p. 827.) Implicitly it accepted Officer Carter’s description of the search of the room for recording devices, and we are bound by that acceptance. Defendant did not raise before the court the issue he presents to us. Hence he has failed to preserve it for review. (People v.

Wader (1993) 5 Cal.4th 610, 635-636 [20 Cal.Rptr.2d 788, 854 P.2d 80].) Defendant contends that if we draw that conclusion, counsel were ineffective because there could be no tactical reason not to raise the issue with the court, and therefore we must address the point on the merits. (Id. at p. 636.) As stated, it is fundamental that “a defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome.” (People v.

Davis, supra, 10 Cal.4th 463, 529.) Even if defendant’s request to sweep the room for bugs can be construed as evidence of his preparing to act on a mistaken belief that he could talk privately to Officer Carter without his statements being used against him—a state of affairs the record does not support (see People v. Johnson (1993) 6 Cal.4th 1, 26 [23 Cal.Rptr.2d 593, 859 P.2d 673])—he abandoned any such hypothetical course of action when he acceded to Officer Carter’s indication that the other police officers would have to return so that the interrogation could resume.

He could have halted his statements then by asking for counsel, and did not. Previously the police had read him his rights under Miranda v. Arizona, supra, 384 U.S. 436, from a card they used for that purpose. The police warned him twice that he had the rights to remain silent and to counsel, and that “anything you say can and will be used against you in a court of law.” Defendant said on both occasions that he understood the consequences of speaking, and elected to proceed. We cannot conclude that his waiver was made unknowingly or unintelligently.

Thus, counsel could not have been ineffective for failing to raise this issue before the trial court. The Sixth Amendment does not require counsel “ ‘to waste the court’s time with futile or frivolous motions’ ” (U.S. v. Hart (1st Cir. 1991) 933 F.2d 80, 83). Although we hesitate to characterize the motion that might have been made as frivolous, it would probably have been futile, given the testimony adduced on the circumstances surrounding defendant’s waiver of his rights to silence and to counsel. We turn to defendant’s second confession.

Officer Barclift testified that the day after defendant confessed to South Gate police, he repeated his confession to the 1976 murders to the Bell Gardens police. Without explaining the legal basis for his contention, defendant contends rather summarily that his confession must be suppressed because it was tainted by the first confession, which was improperly obtained. This claim also was not preserved for appeal—defendant did not raise it below. Nor, for the reasons given above, were counsel ineffective for not asserting it.

In any event, were the premise of an ignorant waiver of rights true, the result defendant urges might be valid. (People v. Williams (1988) 45 Cal.3d 1268, 1299 [248 Cal.Rptr. 834, 756 P.2d 221] [discussing Fourth Amendment requirements].) However, we have found no violation of state or federal law in the eliciting of his initial confession to the South Gate police. “Because the tree was not poisonous, its fruit was not tainted.” (People v. Mickey (1991) 54 Cal.3d 612, 652 [286 Cal.Rptr. 801, 818 P.2d 84].) D.

Denying Motion to Dismiss for Seizure of Papers Defendant contends that the court erred in failing to grant his motion to dismiss the information for the seizure and scrutiny of certain papers and the seizure and loss of others. (Apparently he made his motion under authority of

section 1385, but the record is unclear on the point.) The ruling, in defendant’s view, caused a violation of a Sixth Amendment right to counsel. He seeks reversal of his conviction or a remand for a hearing to determine whether any Sixth Amendment rights were violated.

On the day that it imposed the sentence of death on defendant, the court at the prior trial directed the sheriff to “confiscate from the defendant all copies of the Reporter’s Transcripts of the proceedings [forthwith] . . . and return them to Department SE L . . . .” Rather than let the parties call witnesses, the court herein accepted various offers of proof and found that 14 pages of defendant’s trial notes, as well as the annotated transcripts of the prior trial, were taken from him by the court order and then lost, and also that his legal papers were briefly seized in prison in 1982, scrutinized, and returned to him.

Defendant objected to the hearing procedure—he preferred to present witnesses. At argument on the motion, counsel asserted that defendant could not recall from the prior trial conversations with counsel about his arrest and questioning, matters of strategy, the demeanor of witnesses, or the names or location of witnesses and locations where evidence favorable to him might be found. In reply, the prosecutor said that he could not “imagine what witnesses Mr. Memro might be talking about.” The court found that under the standard set forth in United States v.

Morrison (1981) 449 U.S. 361 [66 L.Ed.2d 564,101 S.Ct. 665], there was no “demonstrable prejudice, or substantial threat thereof’ (id. at p. 365 [66 L.Ed.2d at pp. 568-569]) that would justify “imposing a remedy in this particular instance” even if the state intentionally interfered with defendant’s right to counsel. It denied the motion to dismiss the information. Assuming, as appears likely, that the court denied a motion to dismiss the information brought under

section 1385, we review it for an abuse of discretion. (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 502 [72 Cal.Rptr. 330, 446 P.2d 138].) And we review the underlying basis for the ruling—a decision that the facts do or do not support a claim of state interference with the right to counsel—for substantial evidence. (Cf. U.S. v. Leisure (8th Cir. 1988) 844 F.2d 1347, 1359-1360 [applying clearly erroneous standard].) Here, the court decided that even if there was intentional interference with that right, defendant had been able to show no prejudice. The ruling was sound.

The case against defendant centered on his detailed confessions to the crimes. The court could reasonably refuse to believe that he would forget about a witness who could cast doubt on their authenticity. And it could also reasonably conclude that the other reasons he advanced in pressing his motion to dismiss the information were unpersuasive. Moreover, nothing in the record suggests that attorney-client communications were revealed, and the prosecutor stated in his offer of proof that no information from the materials was known to, received by, or used to benefit the prosecution or the police.

Defendant also contends that certain Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated when the court accepted offers of proof in ruling on his motion rather than hearing witnesses’ testimony. But, asked by the court what specific constitutional ground or grounds would justify not considering offers of proof favorable to the defense rather than live testimony, he was unable to offer any. It appears that there were no disputed material issues of fact.

Unless the court is alerted to the presence of such issues, it is difficult to perceive what would be gained by a hearing with live witnesses. (See People v. Hedgecock (1990) 51 Cal.3d 395, 415 [272 Cal.Rptr. 803, 795 P.2d 1260].) Moreover, it is difficult to imagine what they could have added that would have favored defendant more than the state of the record the court adopted: it ruled that the record would reflect an offer of proof that when defendant’s papers were seized in prison in 1982, as related by his counsel, “two deputies went through Mr.

Memro’s legal folder and read portions of every document that they picked up . . .” and when it was returned “the documents had been gone through, that they were not in the same order they had been in before they were confiscated.” It also ruled that the papers seized in jail immediately following the prior trial were mislaid and were never recovered. E. Denying Motion to Dismiss for Failure to Produce Police Records On December 27, 1978, at his prior trial, defendant broadly sought discovery of any information that might bear on the case.

In January 1979 the motion was granted with regard to the crime report, reports written by police investigating the crime, and the names and addresses of all other persons arrested as suspects. But some hundreds of pages of investigative material in the hands of the Bell Gardens police, who had investigated the killings of Fowler and Chavez, were not turned over until October 1986. The prosecutor represented that he learned of the material only then and gave it to defendant forthwith. He also averred that counsel for both parties at the prior trial told him that they did not know about the documents.

Officer Barclift of the Bell Gardens police testified that for the prior trial he gave the prosecution reports he thought relevant to the case, but did not turn over all those that the police possessed. This procedure had the prosecutor’s approval. Peter L. Williams, defendant’s counsel at the prior trial, reviewed the complete file and testified that he did not recall having been given arrest reports on other suspects in the 1976 Bell Gardens murders. He also testified, however, that he could not be sure that knowing about the withheld information would have affected his trial strategy.

Defendant moved to dismiss the information, strike the special circumstance allegation, or preclude the possibility of a death sentence as sanctions for the failure to disclose the complete file before 1986. On appeal he asserts that the denial of this motion deprived him of due process of law. The People assert that the record bespeaks only an inadvertent failure to timely comply with the court’s 1979 discovery order. We need not decide that question, however. Assuming, as defendant asserts, citing U.S. v.

Bryan (9th Cir. 1989) 868 F.2d 1032, 1036, that the prosecution’s duty to disclose evidence requested in discovery motions encompasses evidence held by the police who investigated the crimes charged, and also accepting solely for purposes of argument defendant’s assertion that the police intentionally withheld the material, “such hypotheses do not rise to the level of constitutional cognizability [under the due process clause]. United States v.

Bagley [(1985)] 473 U.S. 667 [87 L.Ed.2d 481, 105 S.Ct. 3375], sets forth the standard of review applicable to defendant’s claims of constitutional violations for failure to disclose favorable . . . information. ‘The holding in Brady v.

Maryland [(1963) 373 U.S. 83, 87 (10 L.Ed.2d 215, 218-219, 83 S.Ct. 1194)] requires disclosure only of evidence that is both favorable to the accused and “material either to guilt or to punishment.” ’ (Id. at p. 674 [87 L.Ed.2d at p. 489].) ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ (Id. at p. 682 [87 L.Ed.2d at p. 494] (lead opn. of Blackmun, J.); accord, id. at p. 685 [87 L.Ed.2d at p. 496] (conc. opn. of White, J.).)” (People v. Roberts (1992) 2 Cal.4th 271, 330-331 [6 Cal.Rptr.2d 276, 826 P.2d 274].) Under this standard, no violation of the due process clause appears. As stated, the case was centered on defendant’s detailed, elaborate confessions.

Even if the undisclosed materials had pointed to others who might once have been suspected of the Fowler and Chavez murders, we do not discern any reasonable probability that the outcome would have differed. Defendant also asserts perfunctorily that the failure to provide discovery violated rights he discerns in the Eighth Amendment to a reliable fact determination in a capital case and to avoid an arbitrary death sentence. We are unpersuaded. F. Denying Motion to Exclude Evidence Stemming from Arrest Pursuant to

section 1538.5, defendant moved at his prior trial to exclude all evidence of his guilt stemming from his arrest as the product of an arrest made without probable cause and hence unlawful. The court denied the motion, stating in a minute order, “The court finds there was probable cause for the arrest of the Defendant.” Defendant sought to renew his motion at the trial before us, also under

section 1538.5. In response, the prosecution filed papers citing authority for the proposition that such a motion ordinarily may not be relitigated. The court denied the motion and it was not reheard. Defendant contends that (1) there was no probable cause to arrest him, (2) certain witnesses should have been excluded during the motion hearing, and (3) the court erred by denying his application to renew his motion. Because the court herein left intact the ruling from the prior trial, we address all of these contentions on the merits, including the first and second.

To do otherwise would be to unfairly deny defendant a determination of the matter on the merits. 1. Probable Cause to Make Arrest Defendant urges that because his crimes predate Proposition 8 (Cal. Const., art. I, § 28), we must inquire whether the police actually suspected that he committed a crime, and if we conclude that they did, we must then ask whether the facts known to them gave them adequate cause to arrest on an objective standard. (People v.

Miller (1972) 7 Cal.3d 219, 226 [101 Cal.Rptr. 860, 496 P.2d 1228].) For purposes of this opinion only we will accept this contention, without deciding whether it is correct. In the first step of our inquiry we apply the deferential standard of substantial evidence; in the second, we exercise our own judgment. (See People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].) a. Facts. In this case, the police and defendant told the court almost entirely conflicting stories of the events leading to defendant’s arrest. Preliminarily, we note two facts that were essentially undisputed.

There was undisputed if implicit evidence that Carter’s mysterious disappearance had generated substantial news coverage in local media, and explicit evidence that defendant was aware of the news stories although he had not read them. And there was no necessary indication of foul play: Carter had simply vanished. The police version of the events preceding defendant’s arrest provided overwhelming evidence of probable cause for his arrest. They related the facts as follows: According to Officer Sims, by Friday, October 27, 1978, five days after Carter’s disappearance, he and Officer Gluhak had exhausted all leads.

There was implicit evidence that the police were desperate, because they had resorted to the paranormal in their investigation: they obtained an artist’s sketch based on a psychic’s vision of a person Carter might have been with. Armed with that sketch, they went back to the Carter residence. Carter’s parents each said the sketch looked like defendant. Officers Sims and Gluhak decided to interview him. They knocked on defendant’s door and, Officer Sims testified, he virtually blurted out, “ T knew you were coming sooner or later.

I[’ve] been in Atascadero for molestation of a nine-year-old boy in the city of Huntington Park.’ ” Soon thereafter—this first prearrest interview lasted 15 minutes—as the police were copying down information from defendant’s driver’s license, he also volunteered, in Officer Sims’s words, “ ‘You are going to find out,’ or he stated to me, ‘You are going to find out anyway.’ He said, ‘When I was arrested in Huntington Park in ’72 it was because I went into a fit of rage and beat the shit out of a nine-year-old boy.’ He said he was sent to Atascadero for that reason.” In the interim, defendant had invited Officers Sims and Gluhak into the living room of his apartment.

The police did not go into any other part of the house. The living room, said Officer Sims, was littered with “literally hundreds of pictures of young boys, both clothed and partially clothed. I also observed lying on the floor and living room furniture of the apartment numerous books, pornographic material.” The police explained to defendant that they were investigating Carter’s disappearance, an event that, as stated, had generated major news coverage. He replied that he had seen nothing unusual at the Carters’ house the night of Carter’s disappearance.

The police left defendant’s residence to return to the Carters’ house. Defendant left his residence separately to bring a car part to the Carters’ house—it will be recalled that Carter’s father was repairing defendant’s Volkswagen and that defendant had dropped it off the day of Carter’s disappearance. When he saw defendant at the Carters’ house, Officer Sims asked him again whether he might have seen anything when he dropped off his car on the Sunday that Carter disappeared. In Officer Sims’s words, defendant “stated to me, ‘Oh, yeah. I remember now.

I was going to the Sizzler to get some dinner, but the line was too long.’ [<]]] He said it was about 6:00 . . .in the evening. He said he decided to go over to Carl Carter, Sr.’s, house to talk to him about working on his car. He stated that when he got to the rear door, Carl Carter [Jr.] was there and he asked him if he wanted to go and have a Coke.” This occurred around the time that Carter was last seen. Officer Sims then arrested defendant on suspicion of kidnapping.

He arrested him because of “the seriousness of the crime, the fact that a seven-year-old boy had been missing for a week, that Defendant Memro did not give me any of those statements at his apartment, the fact that he had told me he had taken the boy but he didn’t do anything to him[,] led me to believe that he was possibly involved in the missing boy’s disappearance.” He added that he believed defendant was also the last person to see Carter before he was reported missing. On cross-examination, the testimony was impeached in several important respects.

Although Officer Sims testified that the police had not ventured beyond defendant’s living room, he also testified that he arrested him because of the urgency of the case, including “an urgency about the boy’s safety at that point.” When defendant asked him to reconcile this perceived urgency with his own testimony that the police did not search his entire apartment until after he had confessed later that night, he could not do so—he offered no explanation except that he did not know why he had not searched the dwelling.

Officer Sims also had testified that the police turned to defendant because they had no other leads, but conceded that they had not interviewed registered sex offenders in South Gate, nor had they learned the name of the individual who helped Carter’s father repair cars. As stated, defendant’s version almost entirely contradicted that of the police. Defendant testified in great detail about the events surrounding his arrest. The police asked to talk to him as he was preparing to drive away. He agreed.

They asked whether he had ever been arrested, and he stated that he had served time at Atascadero for a violation of

section 273d (child abuse; see Stats. 1965, ch. 1271, § 4, p. 3146). They asked when he had last seen Carter, and he replied that it was the Saturday before he vanished. They asked to search his apartment, and when he asked if it would do any good to refuse, they said no, so on that basis he consented. The police looked at the bedroom, kitchen, bathroom, and closets as well as the living room. Defendant, an amateur photographer, had a stack of photographic proof sheets on the living room coffee table, which the police examined.

A good many of them were of males under 20 years old, as were those on the living room walls. None of them, it can be inferred, were sexually explicit. The police then asked to view the trunk of his car and asked him about a sleeping bag in it. Again being told he could not refuse, he consented. Defendant also described the second encounter, at the Carter residence, in different terms. The police, seeing him there, said they had more questions. “He wanted to know again when the last time I seen Carl was.

And I told him—Carl, Jr., that is—I told him that was on the previous Saturday; that he had been playing up and down the block with the neighbor kids when I stopped over to see Mrs. Carter.” He said nothing about seeing Carl the day he vanished. The police then asked defendant to take a polygraph test. He refused initially, but eventually agreed to it. The police told him he could choose to take the test or be arrested for kidnapping. He went to the station with them. On cross-examination, defendant adhered to his story.

Carter’s father, Carl Carter, Sr., testified that he could not recall the police mentioning that they had seen any unusual photographs in defendant’s apartment when they interviewed Carter just after their initial contact with defendan

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