THE PEOPLE, Plaintiff and Respondent, v. JERRY GRANT FRYE, Defendant and Appellant, 18 Cal. 4th 894

Opinion BROWN, J. A jury convicted defendant Jerry Grant Frye of two counts of first degree murder (Pen. Code, §187; all further statutory references are to this code unless noted otherwise), first degree robbery (§ 211), residential burglary (§ 459), and the unlawful driving and taking of a vehicle (Veh. Code, § 10851). The jury also found true the allegations that defendant was armed with a firearm and personally used a firearm during the commission of these offenses (§§ 12022, subd. (a), 12022.5).

Having found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)), and that the murders were committed while defendant was engaged in robbery and burglary (§ 190.2, subd. (a)(17)), the jury set the penalty at death. The trial court denied defendant’s motion to modify the sentence (§ 190.4, subd. (e)). This appeal is automatic (Cal. Const., art. VI, § 11; § 1239). For the reasons stated below, the judgment is affirmed in its entirety. I. Facts A.

Prosecution’s Case at the Guilt Phase The prosecution’s chief witness, Jennifer Warsing, testified under a grant of immunity. Warsing first met defendant in a Sacramento bar in April 1984 while she was separated from her husband of many years. A romantic relationship between Warsing and defendant quickly developed, and, in early May 1984, the couple moved in together in an apartment outside of Sacramento. On several occasions during the time they lived together, defendant assaulted Warsing.

Defendant and Warsing returned to Sacramento in December 1984 or January 1985, and .resided together at the River City Motel. Defendant worked at a constmction job next door to the motel. Rick Evans worked with defendant at the construction site and socialized with him outside of work. Evans testified he and defendant discussed the prospect of quitting their jobs and growing marijuana for profit instead. Evans had access to a gold mining claim in Amador County that members of his family had worked for many years. In April 1985, defendant and Evans quit their jobs to pursue the marijuana venture.

With approximately $500 between them, they purchased camping equipment and other supplies. The next day, a group comprised of defendant, Warsing, Evans and his girlfriend, and Warsing’s adult son drove to the mining claim property in Amador County. In addition to the camping gear and supplies they had purchased, defendant and Evans brought along marijuana seeds, a 12-gauge shotgun, a .22-caliber semiautomatic rifle, and ammunition. A quarter-mile down the hill from the group’s campsite was a cabin occupied by an older couple, Robert and Lucille (Jane) Brandt, who worked a gold mining claim with their son, Bobby.

Evans testified that before setting up camp and sowing the marijuana seeds, he sought and obtained the Brandts’ permission for the group to camp on the property. The campsite had no running water or electricity, and meals were prepared over an open campfire. Although defendant and War sing had a car when they moved to the campsite, they sold it to Warsing’s son who left the group after a couple of days. Evans and his girlfriend returned to Sacramento a week or two later, leaving only defendant and Warsing at the campsite.

Before Evans departed, it was decided Evans would return to the property once or twice a week with food and supplies, and defendant would tend the marijuana plants. About a week after moving to the campsite, Warsing met the Brandts, and became friendly with them. Warsing would occasionally accompany Jane Brandt in the Brandts’ 1982 Lincoln Towncar to run errands in town. On these excursions, Warsing became aware that Mrs. Brandt'carried an unusually large amount of cash with her to pay for goods and services.

Rick Evans testified defendant and Warsing mentioned the Brandts’ money during one of his weekly visits to the campsite. Defendant also showed Evans a small glass container filled with about a quarter-inch of gold he had scraped from the bucket of the front-end loader used by the Brandts in their mining operation. On the morning of May 14, defendant and Warsing walked from their campsite down the hill to the Brandts’ cabin. War sing had agreed to accompany Mrs. Brandt to the dentist’s office in case she did not feel well following her dental procedure.

Sometime during the late morning of May 14, an acquaintance of the Brandts, Ron Wilson, drove to the cabin. Wilson occasionally worked the Brandts’ mining claim with them, receiving a percentage of the gold that was extracted. Seeing the Lincoln gone, Wilson drove by the cabin without stopping, and proceeded up another road. After investigating a potential mining area, Wilson hiked to the upper part of the claim, in the vicinity of defendant’s campsite. As Wilson headed back down towards the cabin to see if anyone had returned, he met defendant walking up the road.

Defendant showed Wilson the marijuana-growing operation. A short time later, Wilson drove with defendant into town where Wilson bought them lunch and a couple of beers. After lunch, Wilson and defendant made several more stops. Wilson bought a carton of cigarettes for defendant, and two 12-packs of beer. Wilson also retrieved several flats of marijuana seedlings from his girlfriend’s residence for defendant to tend for him, and picked up some watering equipment from a friend. During this time, defendant and Wilson each consumed several more beers.

Defendant and Wilson arrived back at the mining claim about 3:00 in the afternoon, and went up the hill to the campsite. Mrs. Brandt and Warsing arrived back at the cabin some time later. When Warsing got out of the car, Mrs. Brandt asked her to come down for coffee later in the evening. Warsing said they probably would, and set off for the campsite up the hill. When Warsing arrived at the campsite, defendant and Wilson were talking and drinking beer. Around dusk, Wilson left the campsite and drove back home.

Warsing testified'that shortly after Wilson’s departure, defendant said he saw the Devil moving around the campsite. He also told her he thought he was being set up, and that he would “just take what he could.” Defendant then stood by the fire where Warsing was heating water for coffee, and asked her if she had ever seen people dead before. According to Warsing’s testimony, defendant was going to go down and kill the Brandts, and told her if she didn’t go with him, he would have to kill her too. Hoping to run away, Warsing told defendant she needed to use the campsite’s makeshift bathroom.

Defendant accompanied her, shotgun in hand. When Warsing was finished, defendant took her by the arm and walked down the hill toward the cabin, still clutching the shotgun in the other hand. When defendant and Warsing arrived at the Brandts’ cabin, Mrs. Brandt greeted them, asking them to come inside. Defendant placed the shotgun against the kitchen doorway, and sat down in a chair nearby. Warsing sat at the table where Mrs. Brandt was working on an afghan and began helping her. Defendant complained to Mr. Brandt that he had drunk too much and his head was hurting. Mr. Brandt started laughing. When Mrs.

Brandt got up and offered coffee, defendant said he would like a cup. Hearing defendant joking with Mr. Brandt and asking for coffee, Warsing believed things had returned to normal, and she began to relax. Moments later, however, she heard a noise, and looked up to see defendant pointing the shotgun at Mr. Brandt who was now standing up in front of his recliner. Defendant shot Mr. Brandt, and he fell back in the chair. Mrs. Brandt turned and moved towards defendant, with Warsing behind her. She yelled at defendant to stop, and lunged at him. Defendant shot Mrs.

Brandt in the chin and face, and she fell onto the sofa. Defendant turned and shot Mr. Brandt a second time. Warsing testified she heard gurgly breathing from Mr. Brandt. Defendant told Warsing, “I am going to have to put him out of it.” Warsing heard three blows, and then no more breathing. According to Warsing’s testimony, she started moving towards the door to leave, but defendant yelled at her to get the money out of Mrs. Brandt’s purse, which she did. Defendant then directed War sing to go in the bedroom and look for a suitcase containing Mrs. Brandt’s gambling change. Defend- x ant returned to where Mr.

Brandt’s body lay, and went through his pockets. Defendant took vials of gold from the kitchen counter, returned to the bedroom, and put the gold in Mrs. Brandt’s suitcase. He ripped the gold nugget necklace from Mrs. Brandt’s neck. When Warsing started walking out the door, defendant called her back inside the kitchen, and directed her to pour water over his bloody hands to clean them. Defendant took the shotgun and went out the door, ordering Warsing to get into the Brandts’ Lincoln. Defendant drove up the road leading to the campsite. He ordered Warsing to get his suitcase.

Meanwhile, defendant kicked down the tents and knocked things over. The two left the campsite, with defendant driving fast and recklessly in the direction of Placerville. They stopped for the night at Winnemucca, Nevada, and checked into a motel using the name Dixon, defendant’s mother’s maiden name. Leaving the Brandts’ Lincoln in a casino parking lot, defendant and Warsing purchased a car for $600 cash and drove to Elko, Nevada, for the night. From there they traveled to Pocatello, Idaho, again registering in a motel under the name of Dixon. They went from Pocatello to Wyoming.

In Rapid City, Wyoming, they traded in their car for a green pickup truck and $150 in cash. While in Rapid City, defendant and Warsing also sold some gold to Jack Meyer, owner of Silver Mountain Coins. Defendant and Warsing continued driving until they reached Belle Fourche, South Dakota. Defendant had Warsing drive through town and back again, and told her this is where they would stay.

Warsing testified that en route from California to Belle Fourche, defendant would sit in the car and cry while she drove, and said he was sorry he had killed the Brandts because “he really liked those old people.” According to Warsing, defendant said he was sorry for what he had done to her life, too, because the authorities would never believe she had nothing to do with it since her fingerprints were all over everything. Meanwhile, on the morning of May 16, Bobby Brandt returned to his parents’ cabin in Amador County. He noticed the Lincoln was gone and the doors to the cabin wide open.

A dog apparently belonging to defendant and Warsing was hanging around in front of the cabin. When Bobby walked inside, he saw his father lying on his back on the floor with his pants pockets turned inside out. He then went over to where his mother was sitting on the couch, touched her, and realized she was dead. Bobby ran out of the cabin and down the lane to call police from a home nearby. Inside the cabin, the responding officers found Mrs. Brandt on the couch slumped over to her left side, and Mr. Brandt lying face up on the floor near the recliner, blood down the front of him and on the furniture.

An expended 12-gauge shotgun shell was on the floor next to Mr. Brandt’s head. Two or three suitcases were also on the floor, their contents strewn about the room. Because the Amador County Sheriff’s Department did not have its own forensics lab, officers called a crime scene team from the California Department of Justice to process the cabin. The next day, Bobby Brandt returned to the cabin to identify what, if anything, was missing from his parents’ home.

He determined that several items had been taken, including vials of gold, $100 bills given to his mother by his father, his mother’s suitcase containing silver dollars, and her necklace with the gold nuggets. He also recognized defendant’s denim jacket hanging on the back of a kitchen chair. Sometime around the end of May 1985, defendant and Warsing settled in Belle Fourche, South Dakota. Under the name Dixon, they rented an apartment and got jobs, defendant skidding logs and Warsing waiting tables in a cafe. Shortly after arriving, defendant cut his hair, and grew a goatee.

He had Warsing buy him long-sleeved shirts to cover his tattoos. Around 2:30 a.m. on July 6, 1985, Belle Fourche police received a call regarding a disturbance at defendant’s apartment. Warsing left with one of the officers to go to the police station. Following her departure, defendant was arrested for assault and taken to the police station four blocks away. Because the station had only one interview room, Officer Jepsen remained in the patrol car with defendant while Warsing was inside giving a statement.

While sitting in the car, defendant asked the officer, “Do you want a big one?” When Jepsen didn’t reply, defendant said, “Have you heard of Jerry Frye?” He told the officer he was wanted in California for a double murder. Officers received verification of California arrest warrants for defendant and Warsing. Defendant, who appeared to be intoxicated and depressed, was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]), and agreed to give a videotaped statement.

Defendant indicated he did not know if he killed the Brandts or not, but War sing had told him he did, and that he had had alcoholic blackouts in the past. Warsing was also arrested and taken into custody. At the police station, she told the Belle Fourche officers what she remembered about the night the Brandts were killed. Belle Fourche police contacted officers in Amador County, advising them that defendant and Warsing were in custody in South Dakota. On July 7, Amador County officers arrived in Deadwood to interview them. Defendant was extradited to California.

On his return, he was permitted to talk with Warsing by telephone through a glass partition in the jail’s visiting room. Warsing continued to cooperate with police. Accompanied by Amador County investigators, she retraced the route she and defendant took on their cross-country flight from the Brandts’ cabin, pointing out certain items that had been discarded or left behind along the way. With Warsing’s assistance, investigators recovered the murder weapon thrown out of the car window along Highway 49 in Amador County on the day of the murders.

Warsing later entered into a written immunity agreement with the Amador County District Attorney. B. Defense Case at the Guilt Phase The defense sought to cast doubt on Warsing’s account of the Brandts’ deaths. Dr. John Thorton, a professor of forensic science at the University of California, conducted an examination of the physical evidence aspects of the prosecution’s case, making a number of visits to the Brandts’ cabin following the murders. He testified that, in his opinion, the Department of Justice inadequately processed the crime scene.

He also offered his expert opinion as to the sequence of events at the time the shootings took place in the Brandts’ cabin, a scenario differing from the one presented by Jennifer Warsing’s testimony. Dr. Peal, a psychiatrist who both evaluated and treated defendant, testified he did not believe Warsing’s account of the Brandt murders. His conclusion was based on what defendant told him of Warsing’s personal history, corroborated by investigative reports. Defense counsel also presented testimony regarding defendant’s neurological impairments and their effect on his ability to recapture or articulate memory.

Counsel originally intended to call defendant to testify on his own behalf. As the trial progressed, however, counsel began to.question that strategy, and ultimately advised defendant to refrain from taking the stand. Defendant followed the advice of counsel and did not testify. C. Penalty Phase 1. Prosecution evidence The primary focus of the prosecution’s case-in-aggravation was the circumstances of the crimes. (§ 190.3, factor (a).) The prosecution also offered documentary evidence of a prior felony conviction for sexual assault. (§ 190.3, factor (c).) 2.

Defense evidence In mitigation, defendant was permitted to give an allocution to the jury, expressing to them his difficulty in accepting the guilty verdicts and his belief that they had not fully considered the evidence in the case. Defendant’s friend, Frank Sturgell, and several members of his family also testified, asking for leniency. Through their testimony, the jury learned about defendant’s background growing up in Indiana, including the changes he went through at age 15 following his mother’s departure from Indiana with his 3 younger siblings and the serious car accident he suffered shortly thereafter.

Ron Stacey, a lay chaplain for the Lawrence County jail in South Dakota, testified that defendant had accepted Christ and become a changed man while incarcerated. It was stipulated that officers from the Florida Department of Corrections and the Amador County jail, respectively, would testify that defendant posed no disciplinary problems. II. Pretrial and Guilt Phase Issues A. Tension Between Statutory Right to Speedy Trial and Constitutional Right to Effective Assistance of Counsel Shortly after defendant’s arrest and extradition to California, the trial court appointed Larry Dixon to represent him.

Defendant waived his right to a speedy preliminary hearing until his counsel’s first appearance. Dixon represented defendant at the preliminary hearing that commenced on October 17, 1985. Soon thereafter, Dixon moved to withdraw from his appointment, citing his lack of experience in capital cases. Following a court hearing held on June 19 and June 20, 1986, the court granted the motion to withdraw.

At the hearing, and in response to the court’s request for assistance in securing substitute counsel for defendant, Dixon urged the court to appoint Richard Hawk to represent defendant, and indicated that defendant desired to go to trial as soon as possible. The court declined to appoint Hawk at that time. At the conclusion of the hearing, defendant agreed to waive time for two weeks for the purpose of appointing new counsel. Over the course of the next four months, defendant repeatedly waived his right to a speedy trial.

On August 27, 1986, he agreed to vacate the previously scheduled trial date of September 2 until October 6, 1986, with the understanding that the court was making every effort to appoint counsel. On September 2, when Judd Iversen was appointed to represent defendant, Iversen informed the court that although anxious to proceed with the case, defendant was willing to waive time to allow counsel to prepare for trial.

At a hearing held on October 24 to consider the appointment of cocounsel, defendant indicated to the court that if Richard Hawk were also appointed to represent him, defendant would be willing to waive time in the event Hawk was not yet available because of prior commitments. The trial court appointed Hawk to serve as cocounsel in the case. With the appointments of Iversen and Hawk in place, defendant continued to waive time. On December 10, 1986, following a successful motion to set aside the information pursuant to

section 995, defendant consented to continue the date of his rearraignment until December 16. On December 18, with the concurrence of defense counsel, defendant waived his right to have his preliminary hearing held within the statutory period in order that his attorneys would have sufficient time to prepare. Following several discovery motions and other.preliminary matters, defendant’s second preliminary hearing commenced on February 18, 1987.

Defendant does not contest what is disclosed by the record, that he repeatedly and voluntarily waived his statutory rights to a speedy trial and prompt preliminary examination as set forth in sections 1381 and 686, respectively. (Cf. People v. Wilson (1963) 60 Cal.2d 139, 146 [32 Cal.Rptr. 44, 383 P.2d 452] [constitutional right to speedy trial and its statutory requirements may be waived].) Defendant does complain, however, that he did so solely in order to obtain the effective assistance of counsel which he had been denied due to the trial court’s appointment of Larry Dixon to represent him.

Defendant claims that being forced to choose between his right to effective assistance of counsel and his right to a speedy preliminary hearing and trial violated his right to due process.

Decisions of this court and the Courts of Appeal have expressly recognized the tension between two rights guaranteed to every criminal defendant, the right to a speedy trial conferred by both the federal and state Constitutions and implemented through the time requirements in statutory provisions such as sections 686, 1381, and 1382, on the one hand, and the right to the effective assistance of counsel guaranteed by the Sixth Amendment, on the other hand. (People v. Johnson (1980) 26 Cal.3d 557, 566-569 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255] (Johnson); Townsend v.

Superior Court (1975) 15 Cal.3d 774, 782 [126 Cal.Rptr. 251, 543 P.2d 619] {Townsend)-, People v. Noriega (1997) 59 Cal.App.4th 311, 320, fn. 4 [69 Cal.Rptr.2d 127]; see also People v. Abdel-Malak (1986) 186 Cal.App.3d 359, 370 [233 Cal.Rptr. 115] (dis. opn. of Poché, J.).) In these cases, the tension arose when the defendant’s desire to invoke the right to speedy trial by refusing to waive time came into conflict with defense counsel’s request for a continuance. In resolving claims based on this conflict, the decisions have reached different conclusions depending on the circumstances of the case. (Cf.

Johnson, supra, 26 Cal.3d at p. 568 [counsel who sought continuance due to calendar conflict may not waive unconsenting client’s right to speedy trial under

section 1382] with Townsend, supra, 15 Cal.3d at pp. 783-784 [counsel may give consent to waive time under

section 1382 notwithstanding client’s personal refusal to waive time].) Implicit in these decisions, however, is the notion that the inherent tension between the right to a speedy trial and the right to competent, adequately prepared counsel is not, in itself, an impermissible infringement on the rights of the accused, including the right to a fair trial. Here, the record is devoid of evidence that defendant affirmatively objected to the delay in his proceedings. In fact, it shows the opposite, that he expressly consented to every continuance.

Under these circumstances, we cannot conclude there was any conflict at all between defendant’s right to speedy trial and his right to competent counsel. Nor are we persuaded by the reasoning of the two federal circuit court decisions cited by defendant in support of his argument that having to forego the right to speedy trial in order to secure effective assistance of counsel offends principles of due process. In the first case, United States ex rel. Wilcox v. Johnson (3d Cir. 1977) 555 F.2d 115 {Wilcox), the defendant sought to testify on his own behalf.

Defense counsel indicated to the trial court, however, that if the defendant were permitted to testify, she would make a motion to withdraw. The trial court informed the defendant that if he testified counsel would be permitted to withdraw and he would have to represent himself for the remainder of trial.

The defendant decided not to testify. {Id. at p. 117.) Later, the federal district court granted the defendant’s petition for writ of habeas corpus on the ground the defendant had a constitutional right to testify which only he could waive, and the trial court’s rulings deprived the defendant of his right to a fair trial. {Ibid.) The Third Circuit Court of Appeals affirmed the district court’s grant of habeas corpus relief.

Recognizing the defendant possessed both a statutory right to testify on his own behalf and a constitutional right to be represented by counsel, the court held the threatened loss of counsel not only violated the defendant’s Sixth Amendment right to counsel but impermissibly forced the defendant to forego his statutory right to testify, thus depriving the defendant of a fair trial.

Significantly, the appellate court faulted the trial court for failing to accommodate both rights by permitting the defendant to take the stand and giving the defendant the option of substituting counsel if his present counsel then sought to withdraw. (Wilcox, supra, 555 F.2d at pp. 120-121.) Unlike in Wilcox, where the trial court could have, but failed to reconcile the conflicting rights in the manner suggested by the reviewing court, the trial court here had no need to accommodate defendant’s speedy trial right with his desire to be represented by competent, adequately prepared counsel.

Having obtained defendant’s waiver of the time requirements of sections 686 and 1381 in order to secure counsel and to prepare for trial, the trial court was under no obligation to further consider the theoretical tension between these two rights. In United States v. Garcia (3d Cir. 1976) 544 F.2d 681 (Garcia), the defendants were promised a lenient sentence for their guilty pleas in exchange for information about their cocaine source.

The defendants were not guaranteed immunity from any prosecutions which might result from the information they provided. (Id. at pp. 684-685.) The Third Circuit vacated the sentences, reasoning that the choice put to the defendants—to remain silent and lose the possibility of leniency, or divulge information and risk prosecution-—was too coercive, and violated the defendants’ constitutional protection against self-incrimination. (Id. at p. 685.) Although the Garcia court found this particular “Hobson’s choice” impermissibly abridged the Fifth Amendment right against self-incrimination, the Garcia decision does not forbid all constitutional trade-offs. (Garcia, supra, 544 F.2d at p. 685.) Some rights are mutually exclusive.

For example, a criminal defendant has a right to remain silent and a right to testify on his own behalf. He cannot do both, and hard choices are not unconstitutional. Missing transcript In a related claim, defendant asserts the omission of a September 12, 1985, hearing transcript was prejudicial. He contends the missing information is important to the claim raised (see ante, at pp. 937-940) that foregoing his right to speedy trial was the quid pro quo for securing effective assistance of counsel. The People do not dispute that a transcription of the hearing held on September 12, 1985, is missing from the record.

Indeed, the record suggests the September 12 proceeding was never reported. Although the clerk’s minutes of the hearing indicate the presence of a court reporter, Guy Davenport, a review of Mr. Davenport’s notes from September 12 that was conducted for purposes of record certification showed no record of a hearing on that day. An incomplete record is a violation of

section 190.9, which requires that all proceedings in a capital case be conducted on the record with a reporter present and transcriptions prepared. (See also Cal. Rules of Court, rule 39.51(a)(2).) Although

section 190.9 is mandatory, a violation of its provisions does not require reversal of a conviction unless the defendant can show that “the appellate record is not adequate to permit meaningful appellate review.” {People v. Cummings (1993) 4 Cal.4th 1233, 1334, fn. 70 [18 Cal.Rptr.2d 796, 850 P.2d 1].) Conversely, if the record does permit the reviewing court to pass on the questions raised on appeal, the defendant has not been prejudiced by an incomplete record. (Cf. People v. Roberts (1992) 2 Cal.4th 271, 326 [6 Cal.Rptr.2d 276, 826 P.2d 274]; People v.

Chessman (1950) 35 Cal.2d 455, 462 [218 P.2d 769, 19 A.L.R.2d 1084].) Where the trial record can be reconstructed by other methods, the defendant must proceed with those alternatives. {People v. Hawthorne (1992) 4 Cal.4th 43, 66 [14 Cal.Rptr.2d 133, 841 P.2d 118] (Hawthorne):) Applying these principles, we conclude defendant was not prejudiced by the omission from the record of a verbatim transcript of the September 12, 1985, hearing. First, we find the record does not support defendant’s contention that at the unreported hearing he requested a speedy preliminary hearing and trial.

The reporter’s transcript from an August 20, 1985, proceeding indicates defendant personally waived time until October 1985 to hold the preliminary hearing. The record also shows the preliminary hearing commenced on October 17, 1985. Moreover, the docket entry of the clerk’s notes summarizing what occurred on September 12 indicates only the resolution of pretrial discovery matters. Even if defendant’s recollection of the substance of the unreported hearing is correct, our resolution of defendant’s due process claim is not dependent on a verbatim recitation of the September 12 proceeding.

In considering defendant’s claim, ante, we took into account a number of other instances in the record in which defendant indicated his desire to go to trial as soon as possible. Because the appellate record was adequate for this court to address defendant’s claim, defendant was not prejudiced by the omitted transcription. For the same reason, he was not denied the federal due process right to meaningful appellate review. {Hawthorne, supra, 4 Cal.4th at p. 67.) B.

Hitch Motion On July 31, 1987, prior to the commencement of trial, defense counsel filed a motion to dismiss the special circumstance allegations on the ground the state failed to preserve exculpatory evidence in violation of People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361] (Hitch). The court conducted a lengthy hearing on the motion. The defense called numerous witnesses, including several members of the Department of Justice investigative team who processed the crime scene. The defense also presented the testimony of its expert criminalist, Dr.

John Thorton, professor of forensic science at the University , of California. Dr. Thorton testified that, in his opinion, the crime scene processing was defective. He faulted the Department of Justice criminologists’ performance in several respects, including their failure to collect what was, in his view, relevant physical evidence. He particularly criticized them for having overlooked shotgun casings, for declining to collect a slipper with bloodstains on the sole, and for failing to process a number of different bloodstains, dog hair, and paw prints found at the scene.

Haying heard and considered the testimony presented at the hearing and the argument of counsel, the trial court denied the Hitch motion. Citing to California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528, 81 L.Ed.2d 413] (Trombetta), the trial court found that the defense had failed to show that the complained-of evidence was material or that it would have constituted favorable evidence on the question of guilt or innocence.' Defendant claims the trial court erred in denying his motion to dismiss the special circumstance allegations.

He asserts more specifically that the failure by Department of Justice investigators to collect certain pieces of physical evidence violated the federal due process standards enunciated in Trombetta, supra, 467 U.S. 479, and Arizona v. Youngblood (1988) 488 U.S. 51 [109 S.Ct. 333, 102 L.Ed.2d 281] (Youngblood). At the time of defendant’s trial, the state law governing claims based on an asserted failure by authorities to preserve evidence was found in Hitch, supra, 12 Cal.3d 641.

Hitch established that the prosecution’s due process duty to disclose material evidence creates a corresponding obligation to preserve such evidence. (Id. at pp. 650, 652-653.) The rule in Hitch has been superseded in California by the principles enunciated in Trombetta and Youngblood. (People v. Cooper (1991) 53 Cal.3d 771, 810-811 [281 Cal.Rptr. 90, 809 P.2d 865] (Cooper)', People v. Johnson (1989) 47 Cal.3d 1194, 1233-1234 [255 Cal.Rptr. 569, 767 P.2d 1047]).

Under these federal decisions, a defendant claiming a due process violation based on the failure to preserve evidence must show the exculpatory value of the evidence at issue was apparent before it was destroyed, and that the defendant could not obtain comparable evidence by other reasonable means. (Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534].) The defendant must also show bad faith on the part of the police in failing to preserve potentially useful evidence. (Youngblood, supra, 488 U.S. at p. 58 [109 S.Ct. at pp. 337-338].) “The presence or absence of bad faith by the police . . . must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” (Id. at p. 57, fn. * [109 S.Ct. at p. 337].) It is not entirely clear that the failure to obtain evidence falls within “ ‘what might loosely be called the area of constitutionally guaranteed access ' to evidence.’ ” (Youngblood, supra, 488 U.S. at p. 55 [109 S.Ct. at p. 336]; see id. at pp. 56-57 [109 S.Ct. at pp. 336-337] [emphasizing high court’s unwillingness to read due process clause as imposing on police absolute duty to retain and preserve all material that might be of conceivable evidentiary value].) Although this court has suggested that there might be cases in which the failure to collect or obtain evidence would justify sanctions against the prosecution at trial, we have continued to recognize that, as a general matter, due process does not require the police to collect particular items of evidence. (See People v.

Daniels (1991) 52 Cal.3d 815, 855 [277 Cal.Rptr. 122, 802 P.2d 906]; People v. Farmer (1989) 47 Cal.3d 888, 911 [254 Cal.Rptr. 508, 765 P.2d 940]; People v. Hogan (1982) 31 Cal.3d 815, 851 [183 Cal.Rptr. 817, 647 P.2d 93] [duty to preserve material evidence already obtained does not include duty to obtain evidence or to conduct certain, tests on it].) Even if the failure to collect evidence comes within the scope of Trombetta and Youngblood, however, defendant fails to make the requisite showing. First, the record does not support defendant’s assertion that the uncollected evidence would have been exculpatory.

For example, defendant asserts that a bloody slipper found outside the Brandts’ cabin should have been collected and blood typed. Citing to Dr. Thorton’s testimony that blood smeared only on the sole of the slipper looked very much like someone had walked in blood, defendant claims that blood typing might have revealed the perpetrator of the murders. However, Dr. Thorton’s testimony was entirely speculative. His suppositions as to the value of this piece of evidence do not establish materiality in the constitutional sense. (People v.

Stansbury (1993) 4 Cal.4th 1017, 1055 [17 Cal.Rptr.2d 174, 846 P.2d 756] (Stansbury), revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293]; People v.

Fauber (1992) 2 Cal.4th 792, 829 [9 Cal.Rptr.2d 24, 831 P.2d 249] (Fauber).) Moreover, in light of the state criminologist’s equally reasonable belief that the bloody slipper had been dragged outside the cabin by a dog, the exculpatory value of this piece of evidence, assuming there would have been some, is not likely to have been apparent to members of the investigative team at the time they processed the crime scene. (See Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534],) The same holds true for the two other items of bloodstain evidence defendant asserts should have been collected. Dr.

Thorton testified that with proper processing, bloodstains in the vicinity of Robert Brandt and in the southeast corner of the cabin would have enabled further reconstruction of the murders. This testimony, even if believed, does not suggest the results of " this reconstruction would have been exculpatory. Moreover, there were extensive bloodstains at the scene, many of which were photographed for purposes of crime reconstruction.

Like the failure to collect and process the bloody slipper, it is unlikely the state criminologists saw anything of particular value in the bloodstain evidence defendant now complains should have been collected. (Cf. People v. Bradley (1984) 159 Cal.App.3d 399, 408 [205 Cal.Rptr. 485] [police had no duty to collect bloodstained articles found at scene of crime to preserve them for defendant’s use].) Nor does defendant show bad faith on the part of the state’s criminologists who processed the crime scene.

Defendant points to nothing in the record indicating investigators perceived any exculpatory value to the uncollected evidence. (Youngblood, supra, 488 U.S. at p. 57 [109 S.Ct. at p. 337].) The trial court did not err in denying defendant’s Hitch motion. Asserted curtailment of Dr. Thorton’s testimony at trial In a related claim, defendant contends the trial court’s repeated curtailment of Dr. Thorton’s testimony at the guilt phase denied him the right to a defense in violation of the federal Constitution. Pointing to a number of instances in which the trial court curtailed the testimony of Dr.

Thorton by sustaining the People’s objection to a line of questioning, defendant asserts more specifically that the trial court’s rulings made it impossible for him to present evidence regarding deficiencies in the investigation to try to discredit the People’s case against him. In one such ruling, defense counsel showed Dr. Thorton a crime scene photograph featuring what appeared to be Mexican pesos and sought to elicit his opinion as to whether a criminologist processing a crime scene in California would have collected such evidence.

The prosecutor objected to the evidence as immaterial and the trial court sustained the objection, noting that the decision whether or not to collect certain pieces of evidence is dependent on the particular circumstances of each case. Defendant argues that this testimony was necessary to show that the crime scene was not properly catalogued. As a general proposition, the ordinary rules of evidence do not infringe on a defendant’s right to present a defense. (People v.

Babbitt (1988) 45 Cal.3d 660, 682-683 [248 Cal.Rptr. 69, 755 P.2d 253] {Babbitt).) Trial courts possess the “traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” {People v.

Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].) The trial court’s rulings in this regard will not be overturned on appeal unless it can be shown that the trial court abused its discretion. {Cooper, supra, 53 Cal.3d at p. 816.) Nonetheless, the trial court’s discretion is not without limits, particularly if it operates to hamper defense counsel’s ability to present evidence. {Ibid.) Because the proffered opinion testimony was of limited probative value to the investigation of the Brandts’ murders, the trial court could reasonably find it potentially confusing. (Evid.

Code, § 352.) It was thus a proper exercise of the trial court’s discretion to exclude it. As for the other rulings sustaining the prosecutor’s objections to Dr. Thorton’s testimony, in each instance, the trial court could reasonably have found the proffered testimony irrelevant or cumulative. Moreover, the record indicates the defense did present a substantial amount of evidence relating to the adequacy of the investigation, including Dr. Thorton’s expert opinion that the crime scene had been poorly processed.

In addition, the defense elicited on cross-examination a concession from one member of the Department of Justice’s investigation unit that his team did no blood typing and took no measurements of the cabin. Given the scope of the testimony that was presented to the jury, we conclude the trial court’s rulings did not hamper defense efforts to probe the inadequacies of the investigation or otherwise unduly limit defendant’s ability to present a defense. No error occurred. C.

Curtailment of Defense Cross-examination Defendant claims the trial court erroneously sustained a number of objections during cross-examination of prosecution witnesses in violation of his right to confront the witnesses against him guaranteed by the Sixth Amendment to the United States Constitution and

article I,

section 15 of the California Constitution. “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [106 S.Ct. 1431, 1436, 89 L.Ed.2d 674] (Van Arsdall), quoting Davis v.

Alaska (1974) 415 U.S. 308, 318 [94 S.Ct. 1105, 1111, 39 L.Ed.2d 347].) However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679 [106 S.Ct. at p. 1435]; see Cooper, supra, 53 Cal.3d at p. 817.) California law is in accord. (See People v.

Belmontes (1988) 45 Cal.3d 744, 780 [248 Cal.Rptr. 126, 755 P.2d 310].) Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” (Van Arsdall, supra, 475 U.S. at p. 680 [106 S.Ct. at p. 1436]), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment. (Cooper, supra, 53 Cal.3d at p. 817.) According to defendant, a number of the trial court’s rulings prevented the defense from showing the jury that certain witnesses were biased or untruthful.

For example, defendant complains the trial court improperly curtailed the cross-examination of Ron Wilson. Wilson testified on direct examination that on the day of the murders he drove past the Brandts’ cabin to explore a mining interest of his own further up the property. As he headed back towards the cabin to see if the Brandts were home, Wilson met defendant walking up the road. Defendant showed Wilson his marijuana-growing operation. Later that afternoon, defendant accompanied Wilson into town, where they drank beer together and discussed drip irrigation systems for the marijuana.

On cross-examination, defense counsel questioned Wilson about various aspects of marijuana cultivation, and sought to elicit from him where he had “leam[ed] about weed.” Finding the question immaterial, the trial court sustained the prosecutor’s objection. We find no error. The trial court could reasonably find the proffered line of cross-examination was not relevant to any disputed fact of consequence to the question of defendant’s guilt of the charged crimes, or to Wilson’s veracity. (Evid.

Code, § 210.) To the extent Wilson’s involvement with marijuana had any bearing on his credibility as a witness, the source of his knowledge on marijuana would have added little to defense counsel’s efforts to discredit him on this basis. The jury was presented with evidence that Wilson was growing marijuana in flats kept at his girlfriend’s house and that he had asked defendant to care for the plants.

Because defendant cannot show that the introduction of the excluded line of cross-examination would have produced a significantly different impression of Wilson’s credibility (Van Arsdall, supra, 475 U.S. at p. 680 [106 S.Ct. at pp. 1435-1436]), we conclude the trial court’s ruling did not violate defendant’s rights under the Sixth Amendment. As to the remainder of the rulings cited by defendant, none show an abuse of discretion by the trial court. In each of the rulings, the trial court could reasonably find the evidence lacking in relevance and, in some instances, potentially prejudicial.

Moreover, defendant fails to show how any of the prohibited cross-examination might reasonably have produced a significantly different impression of the witnesses’ credibility. (Cooper, supra, 53 Cal.3d at p. 818.) Because the prosecutor’s opening statement made reference to the Brandts’ kindness, defendant contends it was error for the trial court to prohibit defense counsel from soliciting evidence on cross-examination regarding the Brandts’ possible involvement in drug smuggling.

During a break in cross-examination of the victims’ son, the prosecutor made a motion in limine to prevent defense counsel from attempting to elicit from the witness information regarding his brother’s conviction of a drug-related offense. The prosecutor argued that because there was no evidence of drug involvement in the present case, such testimony was irrelevant. Defense counsel responded that he had information the witness had a boat business in Florida while the elder Brandts were residing there, and the boats were used by the other brother in his drug-smuggling operation.

Counsel argued that certain property transfers by the victims indicated the father may have had some financial involvement in his son’s drug operation which would be relevant to the substantial amounts of cash the victim carried prior to and at the time of the murders. Finding the amount and source of the victim’s money irrelevant to the charges and the focus of the proposed inquiry prejudicial, the court granted the prosecutor’s motion to prohibit this line of questioning. As previously noted, the ordinary rules of evidence, including the application of Evidence Code

section 352, do not infringe on the accused’s due process right to present a defense. (Babbitt, supra, 45 Cal.3d at pp. 682-683; People v. Reeder (1978) 82 Cal.App.3d 543, 553 [147 Cal.Rptr. 275].) Moreover, this court will not disturb a trial court’s exercise of discretion under Evidence Code

section 352 unless it is shown the trial court exercised its discretion “ ‘in an arbitrary, capricious or patently absurd manner.’ ” (People v. Sanders (1995) 11 Cal.4th 475, 512 [46 Cal.Rptr.2d 751, 905 P.2d 420] {Sanders)', Cooper, supra, 53 Cal.3d at p. 816.) Here, the trial court could reasonably find the connection between the victims and their son’s illicit activities highly attenuated, thus posing a risk of diverting the jury’s attention to extraneous matters. (Evid.

Code, § 352.) We conclude the trial court acted within its discretion in prohibiting defense counsel from delving into the drug-smuggling operation and conviction of the victims’ son. D. Failure of the Trial Court to Suspend Proceedings and Order a Competency Hearing During the Guilt Phase The defense strategy at the outset of the guilt phase called for defendant to testify on his own behalf. During opening statements, counsel told the jury defendant wanted to take the witness stand to tell what he remembered.

Counsel also informed jurors they would hear expert witnesses testify that defendant suffers neurological and psychiatric impairments affecting his ability to recapture or articulate memory. One of the expert witnesses, Dr. McGuire, administered a series of neurological tests. At trial, he testified that, in his opinion, defendant suffers from “static encephalopathy.” According to Dr. McGuire, this type of impairment may result in personality problems, intolerance of stress, lack of initiative or self-drive, and difficulty with memory.

Thus, it would affect an individual’s ability to testify because the stress of doing so may result in patchy memory, much in the same way stage fright affects some individuals. Dr. McGuire characterized defendant’s memory deficits as relatively mild. Dr. Peal, a psychiatrist, was originally retained by Larry Dixon to determine whether defendant required treatment and whether there was any basis for a

section 1368 competency hearing or a psychiatric defense. Over a two-and-a-half-year period, he conducted more than twenty interviews with defendant. According to Dr. Peal, the interviews were challenging because although defendant could answer questions concerning facts or events, he could not relate them to each other in a time frame and had difficulty thinking abstractly. In addition to his many hours interviewing defendant, Dr. Peal examined defendant’s medical and jail records, and reviewed the videotaped statement defendant gave to Belle Fourche police. Dr.

Peal testified that, in his opinion, defendant was brain damaged due to an automobile accident occurring when he was 15 years old that resulted in a fracture at the base of defendant’s skull which led to 5 episodes of meningitis. The residual effects of the meningitis left defendant with certain psychological and neurological defects. According to Dr. Peal’s testimony, the impairment in defendant’s brain functions manifests itself in stressful situations, and results in a clouded consciousness. This condition does not mean defendant is insane, pathological or psychotic.

Rather, when under stress or the influence of drugs or alcohol, defendant’s ability to think and recall, as well as his emotional control and behavior, are impaired. Dr. Peal found the stress defendant felt while waiting in jail resulted in memory problems, depression, agitation, and suspicion. As the guilt phase of the trial progressed, the defense team began to question their original strategy to call defendant to testify on his own behalf.

While preparing defendant for testifying, counsel found that defendant was having difficulty “pulling information from memory.” They believed defendant could not retain information long enough for them to properly prepare him to testify. On April 21, 1988, towards the end of the defense case-in-chief, defense counsel and defendant met with the trial court in chambers, outside the prosecutor’s presence, to discuss their concerns. Lead counsel Iversen stated to the court as follows: “[A]s we were preparing for testimony, you would go through the various events.

You would then come back and generally, if you had a question, you would expect an answer. You would expect certain information in that answer. flO He has difficulty pulling that same information from memory. In other words, he is not trying to lie or change his story in any way; but rather, he somehow has difficulty bringing out from memory what is there that he should have in response to his—to that question. Basically, I think it’s, he can’t retain material long enough for us to properly prepare him to testify. ffl] When we spoke to Dr. Peal when he was here testifying, Dr.

Peal, on the witness stand, expressed reservations about a number of problems that [defendant] would have testifying. fl[] In private we spoke to [Dr. Peal], He indicated that one of the problems, in addition to the other ones he talked about, is that the meningitis decreased the strength of the blood vessels to the brain and that there is a problem sometimes with blood getting to the brain. fl[] Dr.

Peal was concerned not only with what he spoke about here, but also the potential that [defendant] could have a stroke because of the problem with getting blood to the brain, based on the pressure and stress he is under now, plus the stress that he would be under if he testified on the witness stand. HQ It is a matter of some concern to me, putting him on the witness stand, because of not only what has been testified to, but these additional problems.

But also, I think, because of his physical and mental problems he has been having, he really can’t assist me in terms of preparing him to testify, because he, one, can’t bring things up from his memory to tell me about them, and secondly, we can’t rely, if you ask the same question two days in a row, that you will get all the information. You may certainly get part of it.” Acknowledging the existence of a juvenile record, assaultive conduct, and other circumstances militating against having defendant testify, counsel continued: “[Mr. Iversen:] I believe and I have told Mr.

Frye that despite the many hours of preparation, I think that because of this impairment that he has, it’s virtually impossible for me to feel that he is prepared to testify or that he can properly testify. “And I have researched the [section] 1368 issue in terms of a client that [yz'c] is unable to assist you. It doesn’t seem to fit into that area. But basically, if it hadn’t been for the Peal testimony, I would consider asking for an appointment of an expert under [Evidence Code section] 730. But we have got the testimony of Dr. Peal. I think it’s clear we have' also got the testimony of Dr.

McGuire. “I bring this up to the Court. Mr. Frye has indicated he desires-to testify. It’s my view that, because of this impairment, that he really can’t. But we are at this particular place. And that’s why I am bringing it to the Court’s attention.” “[The Court:] In other words, if I understand it correctly, you recommend that he doesn’t testify and he wants to testify. “[Mr. Iversen:] Mr.

Frye wants to testify. “I think it’s—the concern I have is that there are sometimes questions of tactics and strategy that affect this opinion. “My opinion is based not on tactical considerations, because, clearly, there are—there is a lot of information that I would like him to convey to the jury. I believe, because of his physical and mental disability, that he is not able to do that. So I suppose I am forced into this position of saying, because of that, I think it’s—you know, he can’t do it.

That’s different, I suppose, than the usual decisions we make, in terms of why a person testifies or doesn’t testify. “I can’t find any guidance in the law in terms of this kind of situation. The ordinary situation where a defendant can’t assist his counsel—it’s for reasons other than this. And you don’t generally have this problem where a person can’t assist in this way. “I am bringing it to the Court’s attention and asking for the Court’s guidance on it.

It’s not something I know how to resolve.” The court replied that, notwithstanding counsel’s concerns, the decision whether or not to testify was one for defendant to make. The court stated moreover that if defendant wanted to testify, he could do so. Addressing defendant directly, the trial court asked if he understood it would have to be his decision whether he wanted to testify or not, to which defendant replied, “Yes.” The trial court encouraged him to give ample thought to the advice of counsel.

At a second in camera hearing the next day, defendant informed the trial court that he had taken his attorneys’ advice not to testify. Defendant contends the trial court erred by failing to order, sua sponte, a

section 1368 competency hearing following the exchange between court and counsel at the first in camera hearing. Defendant also asserts that trial counsel was ineffective for not adequately raising the issue of defendant’s competence at that time. Because the record fails to disclose substantial evidence of defendant’s mental incompetence, both claims fail.

A defendant is incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him “unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367; see also People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729] {Danielson).) As a matter of due process, the trial court is required to conduct a

section 1368 hearing to determine a defendant’s competency whenever substantial evidence of incompetence has been introduced. {People v. Hale (1988) 44 Cal.3d 531, 539 [244 Cal.Rptr. 114, 749 P.2d 769]; People v. Stankewitz (1982) 32 Cal.3d 80, 92 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476]; People v. Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942].) Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial. (People v. Davis (1995) 10 Cal.4th 463, 527 [41 Cal.Rptr.2d 826, 896 P.2d 119] (Davis); People v.

Howard (1992) 1 Cal.4th 1132, 1163 [5 Cal.Rptr.2d 268, 824 P.2d 1315] (Howard); People v. Jones (1991) 53 Cal.3d 1115, 1152 [282 Cal.Rptr. 465, 811 P.2d 757] (Jones)) Defendant points to the trial testimony of defense experts, Dr. McGuire and Dr. Peal, as well as statements by counsel regarding his inability to pull information from memory in preparation for testifying, as substantial evidence of incompetence. However, the record does not support his contention. Contrary to defendant’s view, nothing in the testimony of Dr. McGuire or Dr.

Peal raises a reasonable doubt as to defendant’s ability to understand the nature of the proceedings, or to assist counsel in the conduct of his defense. Both experts emphasized his inability to tolerate stressful situations, and their testimony indicated the stress of trial would make it difficult for him to testify on his own behalf. It does not follow from such testimony that he was incompetent to stand trial; only that he might be unable to recapture memory if called to the witness stand. (Cf. People v.

Rodrigues (1994) 8 Cal.4th 1060, 1110-1111 [36 Cal.Rptr.2d 235, 885 P.2d 1] (Rodrigues).) Similarly, counsel’s expressions of concern that defendant could not retain information long enough to properly prepare to testify do not constitute substantial evidence of incompetence. Counsel did not suggest at any time that defendant was incapable of assisting in his defense, or that counsel was having difficulty communicating with defendant generally. Indeed, the record indicates defendant had brought new matters to his attorneys’ attention during the guilt phase of trial.

In a related claim, defendant contends counsel’s failure to adequately raise the question of defendant’s competency at the in camera hearing deprived him of his right to counsel under the Sixth Amendment and analogous provisions of the California Constitution. Trial counsel’s representation of defendant is constitutionally deficient if it “fell below an objective standard of reasonableness” (Strickland v.

Washington (1984) 466 U.S. 668, 688 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674] (Strickland)), and, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. (Ibid.; People v. Kelly (1992) 1 Cal.4th 495, 519-520 [3 Cal.Rptr.2d 677, 822 P.2d 385].) Because, as we have concluded (see ante, at pp. 951-952), the record does not reflect substantial evidence of mental incompetence, counsel did not render ineffective assistance by failing to raise a

section 1368 motion. (Cf. Davis, supra, 10 Cal.4th at p. 527; Rodrigues, supra, 8 Cal.4th at p. 1112.) Moreover, even if counsel had expressly questioned defendant’s competence to stand trial, it is not reasonably probable that the result would have been different. (Strickland, supra, 466 U.S. at p. 688 [104 S.Ct. at pp. 2064-2065].) As our decisions in Howard, supra, 1 Cal.4th 1132, and Rodrigues, supra, 8 Cal.4th 1060, make clear, a trial court is not required to order a competency hearing based on counsel’s perception that his client may be incompetent.

Here, the record shows the trial court did not doubt defendant’s competence to stand trial following the in camera exchange between court and counsel. Indeed, later in the proceedings and in response to a defense motion to vacate the guilt phase verdict, the trial court expressly stated that nothing raised at the midtrial hearing caused the court to have any doubts as to defendant’s competency. Having no doubt regarding defendant’s competence to stand trial, the court was not required by

section 1368 to suspend the proceedings and conduct a hearing. (See Howard, supra, 1 Cal.4th at pp. 1163-1164; Davis, supra, 10 Cal.4th at pp. 526-527; Rodrigues, supra, 8 Cal.4th at pp. 1111-1112.) E. Sufficiency of the Evidence 1. Burglary Defendant claims the evidence is insufficient to support his convictions for burglary and first degree murder under the theory of felony-murder burglary, or the burglary-murder special-circumstance finding.

Defendant’s claim of insufficient evidence requires us to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Cf. People v. Alvarez (1996) 14 Cal.4th 155, 224-225 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Clair (1992) 2 Cal.4th 629, 670 [7 Cal.Rptr.2d 564, 828 P.2d 705] (Clair); People v. Jackson (1989) 49 Cal.3d 1170, 1199-1200 [264 Cal.Rptr. 852, 783 P.2d 211] (Jackson); Johnson, supra, 26 Cal.3d at p. 576; cf. People v.

Mickey (1991) 54 Cal.3d 612, 678 [286 Cal.Rptr. 801, 818 P.2d 84] [applying same standard for reviewing sufficiency of evidence for special circumstance].) In making this determination, we view the evidence presented at trial in the light most favorable to the prosecution. (Id. at p. 678.) Defendant asserts the evidence is insufficient because he entered the Brandts’ cabin at the personal invitation of Mrs. Brandt. Defendant’s argument is based on the erroneous premise that a burglary has not occurred if a person enters a building with the owner’s express consent.

Any person who enters a house or building with the intent to commit a felony or theft is guilty of burglary. (§ 459.) The entry need not be a trespass to support a burglary conviction. (People v. Talbot (1966) 64 Cal.2d 691, 700 [51 Cal.Rptr. 417, 414 P.2d 633], overruled on other grounds in People v. Ireland (1969) 70 Cal.2d 522, 540 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323].) Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner’s or occupant’s consent. {People v. Sears (1965) 62 Cal.2d 737, 746 [44 Cal.Rptr. 330, 401 P.2d 938]; People v.

Deptula (1962) 58 Cal.2d 225, 228 [23 Cal.Rptr. 366, 373 P.2d 430]; In re Andrew I. (1991) 230 Cal.App.3d 572, 578-579 [281 Cal.Rptr. 570].) Notwithstanding these settled principles, defendant asserts that People v. Gauze (1975) 15 Cal.3d 709 [125 Cal.Rptr. 773, 542 P.2d 1365] {Gauze), supports his view that Mrs. Brandt’s invitation to enter the cabin precludes a burglary conviction. In Gauze, the court stated that in order for burglary to occur, “ ‘[t]he entry must be without consent.

If the possessor actually invites the defendant, or actively assists in the entrance, e.g., by opening a door, there is no burglary.’ ” {Id. at pp. 713-714, quoting 1 Witkin, Cal. Crimes

(1963) Crimes Against Property, § 457, p. 419.) Defendant takes this statement out of context. Moreover, later decisions make clear that Gauze is inapposite. In Gauze, supra, 15 Cal.3d 709, the defendant was convicted of burglary after he entered his own apartment with the intent to assault his roommate. The court concluded the defendant could not be guilty of burglarizing his own home, even if he entered with a felonious intent, because burglary requires an entry that invades a possessory right in a building, and must be committed by someone who has no right to be in the building. {Id. at p. 714.) As People v.

Pendleton (1979) 25 Cal.3d 371 [158 Cal.Rptr. 343, 599 P.2d 649] {Pendleton) explained, Gauze did not overrule earlier decisions finding burglary convictions proper when there was a consensual entry. {Pendleton, supra, 25 Cal.3d at p. 382.) “The law after Gauze is that one may be convicted of burglary even if he enters with consent, provided he does not have an unconditional possessory right to enter.” {Ibid.\ see also People v.

Salemme (1992) 2 Cal.App.4th 775, 779-781 [3 Cal.Rptr.2d 398].) Although the evidence shows defendant was invited into the Brandts’ cabin on the early evening of May 14, 1985, there is no evidence from which to reasonably infer defendant had an unconditional possessory right to enter. Indeed, Rick Evans testified that before setting up the campsite and marijuana-growing operation, he sought and obtained the Brandts’ permission for the group to camp on the property.

Viewing this evidence in a light most favorable to the prosecution, the jury could reasonably have found such action to be inconsistent with the notion that any member of the group enjoyed an unconditional possessory right to any of the property, including the Brandts’ cabin. Moreover, there is substantial evidence supporting defendant’s burglary conviction. According to Warsing’s testimony, defendant told her on the night of the murders he was planning to “just take what he could” and was going to go down and kill the Brandts.

Defendant then armed himself with a shotgun, ushered Warsing down the hill to the planned visit with the Brandts, and promptly committed the crimes. Ron Wilson testified that earlier the same day defendant told him Mr. Brandt “should be more careful about displaying the bundle he has or somebody would hit him in the head and take it from him.” Garth Lavalee testified to the same effect.

The testimony of these witnesses, in conjunction with evidence defendant had no steady income and had come to Amador County to cultivate marijuana for profit, provides ample support for the conclusion that defendant entered the Brandts’ cabin with the intent to commit theft. The jury properly convicted defendant of burglary, and burglary felony murder, and found true the burglary-murder special-circumstance allegation. 2.

Robbery Defendant was convicted of first degree robbery and two counts of robbery felony murder, and the jury found true the special circumstance allegation that the murders occurred during commission of a robbery. Defendant contends the evidence is insufficient to support the convictions and special circumstance finding. More specifically, he argues that because Robert and Jane Brandt were dead at the time their property was taken, there was no evidence of a taking from the “person or immediate presence” of the victims.

Section 211 defines the crime of robbery as “the felonious taking of personal property-in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Property is in the “ ‘ “[immediate] presence” ’ ” of the victim when it “ ‘ “is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” ’ ” (People v. Hayes (1990) 52 Cal.3d 577, 626-627 [276 Cal.Rptr. 874, 802 P.2d 376] {Hayes), quoting Commonwealth v.

Homer (1920) 235 Mass. 526, 533 [127 N.E. 517].) As People v. Cooper (1991) 53 Cal.3d 1158, 1166 [282 Cal.Rptr. 450, 811 P.2d 742] explains, the requirement that the taking be from the “ ‘person’ ” or “ ‘immediate presence’ ” of the victim describes a spatial relationship between the victim and the victim’s property, and refers to the area from which the property is taken.

Thus, the decisions addressing the “immediate presence” element of robbery have focused on whether the taken property was located in an area in which the victim could have expected to take effective steps to retain control over his property. (See, e.g., People v. Harris (1994) 9 Cal.4th 407, 422-424 [37 Cal.Rptr.2d 200, 886 P.2d 1193] [victim forcibly restrained in car outside office and home while robbers looted each location]; People v.

Webster (1991) 54 Cal.3d 411, 439-442 [285 Cal.Rptr. 31, 814 P.2d 1273] [defendants induced victim to walk a quarter-mile away from his car, then killed him and took his car]; Hayes, supra, 52 Cal.3d at pp. 626-629 [victim assaulted and killed 107 feet from motel office where property was taken]; People v. Bauer (1966) 241 Cal.App.2d 632, 641-642 [50 Cal.Rptr. 687] [defendant killed victim inside her apartment, then stole victim’s keys and took her car parked outside].) Here, Warsing testified at trial that after defendant shot the Brandts, he ordered Warsing to take the money from Mrs. Brandt’s purse.

Defendant then directed her to go into the bedroom and find the suitcase containing Mrs. Brandt’s gambling change. While Warsing was in the bedroom looking for the suitcase, she heard defendant going through Mr. Brandt’s pockets. Defendant also took vials of gold from the kitchen counter, and ripped the gold necklace off of Mrs. Brandt’s neck. The prosecution also placed into evidence photographs of the Brandts’ cabin showing a small rustic structure, with one bedroom, a family room, and kitchen.

From this evidence the jury could have reasonably inferred that had the Brandts not been shot by defendant, they could have taken effective steps to retain control of their property. Defendant offers no authority for the proposition that a perpetrator who succeeds in killing his victim before taking the victim’s personal property cannot be guilty of robbery. Defendant’s claim of insufficient evidence is premised on a misunderstanding of the immediate presence element of robbery. So long as defendant formed the intent to take the Brandts’ possessions before killing them, he was properly convicted of robbery. (Cf.

People v. Kelly, supra, 1 Cal.4th at pp. 528-529; People v. Green (1980) 27 Cal.3d 1, 52-54 [164 Cal.Rptr. 1, 609 P.2d 468].) From the same evidence supporting the jury’s determination that defendant entered the Brandts’ cabin with the intent to steal, recounted ante, the jury could reasonably infer defendant intended to take the Brandts’ money and property before he shot them. We conclude substantial evidence supports the convictions of first degree robbery murder and robbery, as well as the robbery-murder special-circumstance finding. F.

Jury Instructions Defendant contends the trial court committed numerous errors in instructing the jury, violating his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution and analogous provisions of the California Constitution. In reviewing the purportedly erroneous instructions, “we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72 [112 S.Ct. 475, 482, 116 L.Ed.2d 385], quoting Boyde v.

California (1990) 494 U.S. 370, 380 [110 S.Ct. 1190, 1198, 108 L.Ed.2d 316] {Boyde).) In conducting this inquiry, we are mindful that “ ‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” {Boyde, supra, 494 U.S. at p. 378 [110 S.Ct. at p. 1196], quoting Cupp v. Naughten (1973) 414 U.S. 141, 146-147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368]; see also People v.

Burgener (1986) 41 Cal.3d 505, 538 [224 Cal.Rptr. 112, 714 P.2d 1251] {Burgener) [under California law, correctness of jury instructions determined from entire charge of the court].) 1. Preliminary instruction regarding the information During jury selection, the trial court read to one group of prospective jurors the charges against defendant set forth in the information. The court then stated, “Now, Ladies and Gentlemen, the information I’ve just read to you is a mere formal charge.

It’s not offered and not to be considered by you as such.” Defendant contends that the trial court’s omission of the word “evidence” from this instruction was confusing to the jury and prejudicial because a copy of the information was given to the jury for use during deliberations. Although the court misspoke by dropping the word “evidence” from its initial instruction to one group of prospective jurors, it correctly charged the members of the jury prior to their deliberations that “[t]he Information is a mere formal charge.

It’s not evidence and is not to be considered as such.” It is not reasonably likely the jury was confused by the trial court’s mistake during jury selection. 2.

Burden of proof Citing In re Winship (1970) 397 U.S. 358 [90 S.Ct. 1068, 25 L.Ed.2d 368] (Winship), and its progeny, defendant claims a number of the instructions shifted the burden of proof in violation of the due process clause, which “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Id. at p. 364 [90 S.Ct. at p. 1073].) Defendant first complains the trial court’s numerous references to “innocence” during the course of charging the jury placed on him the burden of establishing his innocence of the charged crimes.

The trial court instructed jurors not to be biased against defendant because he has been charged with a crime or brought to trial, nor to infer from these circumstances that defendant is more likely to be guilty than innocent.

The court also instructed, in connection with the principle that motive is not an element of the charged crimes, that “[a]bsence of motive may tend to establish innocence.” Regarding flight after commission of a crime, the court explained that evidence of flight is not sufficient to establish guilt, but if proved, “may be considered by you in light of all other proved facts in deciding the question of . . . guilt or innocence. . . .

You may consider evidence that there may be reasons which are consistent with innocence.” Defendant’s assertion to the contrary, the trial court’s reference to “innocence,” did not shift any burden of proof. Prior to its deliberations, the jury was instructed pursuant to CALJIC No. 2.90 on the presumption of innocence and its corresponding burden on the prosecution to prove defendant guilty beyond a reasonable doubt. The trial court emphasized the point when instructing on other principles of law applicable to the case.

For example, during the course of instructing on unconsciousness, the trial court informed jurors that if, after considering all the evidence they had a reasonable doubt that the defendant was conscious at the time the crime was committed, they must find him not guilty. Moreover, in the prosecutor’s closing remarks, she explained to the jury that the People had the burden of proof on each and every count.

Viewing the instructions as a whole, and in light of the record at trial, we conclude it is not reasonably likely the jury understood the challenged instructions to mean defendant had the burden of establishing his innocence. (People v. Osuna (1969) 70 Cal.2d 759, 767-768 [76 Cal.Rptr. 462, 452 P.2d 678].) Defendant next faults the trial court’s instruction on admissions. Jennifer Warsing testified at trial that defendant told her on the evening of the murders, “The devil is here.

I’m going to do something bad.” Because of this testimony, the trial court instructed the jury on the principles of law pertaining to admissions. Using the standard instruction, CALJIC No. 2.71, the court defined the term “admission” as a statement tending to prove guilt, and informed the jurors that if they found defendant did not make the statement, they must reject it, but if they found defendant made the statement and it is true in whole or in part, they may consider the part found to be true. The court concluded by warning the jury that it should view evidence of an oral admission by defendant with caution.

Defendant contends the trial court’s instruction constituted impermissible burden-shifting in that it left the jury wondering by what standard of proof the People had to establish the statement was made. This claim lacks merit for several reasons. First, we cannot discern from defendant’s argument how the complained-of instruction shifted the prosecutor’s burden of proving every element of the charged crimes beyond a reasonable doubt to defendant, or how the due process principles of Winship and its progeny are otherwise implicated here.

Even if, as defendant asserts, the jury was left at sea as to the quantum of proof necessary to find defendant made the statement attributed to him by Warsing, he was not prejudiced by it. CALJIC No. 2.71 is a cautionary instruction, admonishing the jury regarding its consideration of any incriminating statements ascribed to the defendant by a witness at trial. (People v. Livaditis (1992) 2 Cal.4th 759, 784 [9 Cal.Rptr.2d 72, 831 P.2d 297]; People v. Beagle (1972) 6 Cal.3d 441, 456 [99 Cal.Rptr. 313, 492 P.2d 1].) Under any standard of proof, the effect of the instruction is beneficial to defendant.

The courts have long recognized the dangers and abuses inherent in evidence of verbal admissions. (See, e.g., People v. Bemis (1949) 33 Cal.2d 395, 399 [202 P.2d 82].) “ ‘No other class of testimony affords such temptations or opportunities for unscrupulous witnesses to torture the facts or commit open perjury, as it is often impossible to contradict their testimony at all, or at least by any other witness than the party himself.’ (2 Jones, Commentaries on the Law of Evidence, 620.)” (33 Cal.2d at p. 399.) The trial court did not err in administering the cautionary language of CALJIC No. 2.71.

Defendant next complains the instruction that the “identity of the person who is alleged to have committed a crime is not an element of the crime” relieved the People of all burden in the case because the principal issue before the jury was identity.

The quoted passage is part of the standard instruction explaining the principles of the corpus delicti rule, which provides in full that “No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any confession or admission made by him outside of this trial, ffl] The identity of the person who is alleged to have committed a crime is not an element of the crime nor is the degree of the crime.

The identity or degree of the crime may be established by a confession or admission.” (CALJIC No. 2.72.) Under this instruction, the jury is informed that a defendant cannot be convicted of a crime unless there is proof as to each element of the offense independent of his extrajudicial confession or admission. Once the prosecution has proved the corpus delicti of murder, however, the prosecution may use evidence of a confession or admission to establish identity.

Although the jury was not specifically instructed pursuant to CALJIC No. 2.91, that “[t]he burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged,” nonetheless, the challenged instruction did not relieve the prosecution from proving that defendant committed the charged crimes. It provided only that the prosecution could rely on extrajudicial admissions to prove identity once the corpus delicti had been established. (Cf. People v.

Bacigalupo (1991) 1 Cal.4th 103, 129 [2 Cal.Rptr.2d 335, 820 P.2d 559] (Bacigalupo) [rejecting defendant’s argument that corpus delicti instruction relieves People of burden of proving premeditation and deliberation necessary to establish first degree murder].) In light of the parties’ steadfast focus on the issue of identity at trial, including the consistent position by the defense that defendant did not kill the Brandts and the extensive evidence presented by the People connecting him to the crimes, we conclude there is no reasonable likelihood the jury would have understood the prosecution had no obligation to prove defendant was the person who committed the offenses.

Defendant also finds an impermissible burden-shifting in the trial court’s instruction on the use of hypotheticals posed to expert witnesses. Consistent with CALJIC No. 2.82, the trial court informed jurors they had to determine from all of the evidence that the facts assumed in the hypothetical have been proved. If they found any assumption in the hypothetical not proved, they should determine what effect the failure of proof had on the weight of the expert’s opinion.

Defendant claims that because this instruction did not inform the jury who had the burden of proving or disproving hypotheticals, it allowed the jury to presume the prosecutor’s hypotheticals were proven and defendant had the burden of disp

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