THE PEOPLE, Plaintiff and Respondent, v. LESTER ROBERT OCHOA, Defendant and Appellant, 19 Cal. 4th 353

Opinion MOSK, J. Defendant was convicted of murdering Lacy Corrin Chandler and awaits execution of a resulting death sentence. Following the consolidation of two cases against him, an information filed by the Los Angeles County District Attorney on April 25, 1988, charged defendant with murdering Chandler. And it alleged two felony-murder special circumstances in connection with her murder: that she was murdered during the commission of a forcible rape and a kidnapping. It also alleged that he personally used a knife to kill her. It alleged that these events took place on or about June 18, 1987.

In separate counts, the information charged defendant with forcibly raping and kidnapping Chandler. And in further counts, it charged him with the kidnapping for robbery, simple kidnapping, robbery, forcible rape, forcible rape in concert, forcible oral copulation, forcible oral copulation in concert, rape by means of a foreign object (namely, fingers), attempted forcible sodomy, and attempted forcible sodomy in concert, of Charlotte J. It alleged that these events occurred on or about January 28, 1987.

The information also charged defendant with attempting to murder Yolanda A., and alleged that he personally used a knife and personally inflicted great bodily injury during that crime. It also charged him with assault with a deadly weapon and causing great bodily injury, assault with intent to rape, and residential burglary in the attack on Yolanda A. It alleged that these events took place on or about May 23, 1987. The jury found defendant not guilty of attempting to murder Yolanda A. It also found not true the allegations that he personally inflicted great bodily injury on her.

Instead it found him guilty of assaulting Yolanda A. with a deadly weapon or by means of force likely to cause great bodily injury. It found him guilty of all other offenses charged, and found true all other allegations. The foreperson wrote on the verdict form “[bjurglary of the first degree” regarding the residence of Yolanda A. After a penalty trial the jury returned a verdict of death, and the trial court refused to modify it. We affirm the resulting judgment. The Guilt Phase Facts Defendant was charged with involvement in three criminal incidents, culminating in Chandler’s murder.

We describe them in chronological order. The Victimization of Charlotte J. Charlotte J. testified that she was returning to her apartment shortly before midnight on January 28, 1987, when defendant grabbed her from behind, knocking her glasses off. He told her to hand him her purse, which she did. Rather than release her, he forcibly took her behind a garbage dumpster, handed her purse back to her and told her to give him money. Again she complied. At that point Edward Ramage joined them.

Defendant tried to keep Charlotte J. from seeing him, and she is nearsighted, but at one point during her abduction the headlights of a passing car enabled her, or helped enable her in conjunction with other lighting, to observe his left profile from less than a foot away. At the time they were kneeling to avoid being seen. She never saw his face. Throughout the incident he would push her head down when she looked in his direction. Defendant and Ramage took her over a wall, past the rear of a liquor store and down a street.

Finally they climbed one perimeter fence and passed through another, entering the grounds of the Florence Planner School a few blocks away. On the school ground he forced her to remove her clothes and to get down on hands and knees, and she was blindfolded. Defendant hád her orally copulate him while Ramage engaged in vaginal intercourse. Then the two assailants switched positions. At some point defendant took her wedding ring. Defendant also attempted to engage in anal intercourse but was unable to penetrate the victim, despite inserting his fingers in her rectum and trying again.

Ramage also tried but could not engage in anal intercourse (although he would later testify that he did do so). Charlotte J. testified that defendant appeared to be in charge, and she noticed that Ramage was shaking when he would touch her. She heard Ramage ask defendant not to hurt her, and they allowed her to re-dress. She asked defendant for her wedding ring back, but he did not respond. The incident ended after about three hours, when they released her. Defendant cross-examined Charlotte J. about the accuracy of her identification of him.

He elicited from her that she is five feet five and one-half inches tall and had previously believed that she, defendant and Ramage were all the same height. She told a responding police officer that she could envision defendant’s appearance but not describe him verbally. He elicited other failures of memory regarding details of the crimes against her. The responding police officer testified that she told him she did not see her attackers. On redirect examination, Charlotte J. explained that she never saw defendant standing so as to be able to give an accurate description of his height.

An emergency room doctor testified that Charlotte J. showed physical evidence of oral copulation in the form of bruising of the hard palate, and of attempted sodomy in the form of trauma above the rectum. Ramage testified that he and defendant raped Charlotte J. on the date in question. Ramage had seen but did not know defendant before the day of the rape, when they met on the street. Defendant asked Ramage to obtain cocaine for him; he obtained a quarter of a gram and the two consumed it. They parted ways, but a few minutes later Ramage encountered defendant detaining Charlotte J. between two trash bins.

He was rummaging through her purse and telling her that he would harm her if she screamed. He also took her wedding ring. Ramage wanted to leave but defendant told him not to and lifted up his shirt, revealing a small gun. After they raped Charlotte J., defendant called Ramage to one side and said, “ T can’t take no chances[;] I’m going to have to kill her.’ ” Ramage insisted that he not. Instead Ramage gave her his sweater to shield her from the cold and told defendant that he did not want any

part in a murder and that defendant would have to kill him too. Defendant took out “a knife from his sock and he starts switching it back and forth and I just said, ‘Come on,’ you know, kept pleading with her [sz'c], just let her go.” (In her own testimony, Charlotte J. described hearing a clicking sound a few times as she heard Ramage asking defendant not to harm her.) Defendant relented and Ramage told Charlotte J. to run as soon as she got over the fence. Ramage admitted that he would converse and smoke marijuana with defendant on occasions after the incident.

And on cross-examination, defendant tried to undermine Ramage’s account of events. He asked why Ramage had not fled when he had opportunities to do so during the rape, and why he did not search for the gun while defendant was committing sexual crimes against the victim. Ramage replied that because he felt panicked, he was already implicated in a rape, and it benefitted Charlotte J. for him to stay (he had testified that he feared defendant would kill both of them if he made a false step), he felt he could not leave.

Defendant also elicited prior inconsistent statements by Ramage, a discrepancy in statements regarding his whereabouts on the night of the murder of Lacy Chandler, and other discrepancies in the accounts given by him and others at trial. On redirect examination, Ramage explained that he was assuming that the murder occurred on a particular night when questioned by the police and he gave them his whereabouts on the basis of his assumption.

Detective John Aquino, then an officer of the Baldwin Park Police Department, testified that when he arrested Ramage for the crimes against Charlotte J. he blurted out, “Lester [defendant] made me do it. I didn’t want to do anything.” Ramage gave a confession that conformed to his in-court testimony. The confession was not coerced; rather, Ramage was eager to tell the story from the time of his arrest. Aquino also testified to the lineup procedure (described further post, at pp. 411-412): he showed Charlotte J. two 6-photograph lineups, one containing defendant and the other Ramage.

She identified Ramage with 80 percent certainty. She identified defendant from the other six-photograph lineup, but apparently was not positive until Aquino produced, at her request, a photograph of defendant’s profile. Defendant called an experimental psychologist, Dr. Kathy Pezdek, to testify about the possible effects of the traumatic events on Charlotte J.’s memory as an eyewitness.

She opined that Charlotte J.’s ability to identify defendant may have been diminished by the fact that she was missing her glasses, that she saw only his profile and only for a short time, that she and defendant belong to different ethnic groups, that the situation was stressful, that she did not see a photograph of him until months after the assault, and that in-court identifications contain a risk of suggestiveness. She cited research that concluded time of exposure to a face and delay in identifying it were the most important factors affecting the accuracy of memory.

She testified that the six-month delay in Charlotte J.’s identifying defendant alone would cause a low probability of an accurate identification, and that repeated viewings of him in lineups and hearings would influence her to believe that the man she identified in court, i.e., defendant, was her assailant. She explained that Charlotte J.’s statement that she was positive in her identification could not be trusted under the circumstances. The Attack on Yolanda A. Defendant is Yolanda A.’s brother-in-law. On May 23, 1987, Yolanda A. entered her house and found defendant lying in wait for her behind the front door.

He grabbed her and held a knife to her throat. He told her that he wanted to discuss problems he was having with his wife, Yolanda A.’s sister, Elva Ochoa. They argued for a few minutes. He then escorted her at knife point to the bedroom and told her to lie down. She resisted and the two struggled. He choked her into unconsciousness, but his assault was interrupted: Yolanda A. awoke to find her cousin Paviola Ambriz, who lived in the house, standing in the bedroom doorway. She told her in Spanish to call the police.

When defendant saw Ambriz he stopped the attack, then resumed struggling with Yolanda A., finally apologized, and told her not to tell anyone about it. She went to the hospital and had difficulty swallowing for a week afterward. Her neck and eyes remained sore for a longer time and the comer of her right eye exhibited what she thought was blood. A doctor testified that an eye injury of that type could arise from strangulation. On direct examination Yolanda A. testified that defendant did not have permission to be in the house.

On cross-examination defendant elicited testimony that he had once lived in the house with his family and still had possessions in the bedroom in which he assaulted her. He also elicited that she did not require treatment at the hospital and suffered no permanent physical harm. Ambriz testified through an interpreter that she opened the bedroom door to find defendant with his hands around Yolanda A.’s neck.

The Rape and Murder of Lacy Chandler The amateur detective work of Saundra Jean Baxter, the conscience of Edward Ramage, and the chance encounter of the two all combined to help solve the case of the rape and murder of sixteen-year-old Lacy Chandler. A forensic pathologist testified that Chandler died of stab wounds. There were 23 of them, averaging approximately 4 inches deep. She exhibited no genital or rectal trauma. Baxter, Chandler’s housemate, testified that about two and one-half weeks before Chandler’s murder, she moved into a room with her boyfriend Juan Carlos Alvarado.

Baxter and her boyfriend shared another room in the same house. Baxter described Chandler and Alvarado as having a very close relationship; Chandler was not interested in other men. Chandler planned to take Alvarado to work at 3:00 a.m. on June 18, 1987, and then return with his car so she and Baxter could visit Chandler’s mother later that day. About 7:00 a.m. Alvarado phoned the house looking for Chandler, but Baxter could not locate her in the house or the grounds, though she saw Alvarado’s car parked and locked outside. She called Alvarado back to report that Chandler was missing.

He returned from work at 3:00 p.m., and the man who drove him home noticed an unopened five-pound bag of sugar next to Alvarado’s car. This alarmed her—she had not noticed the sugar at 7:00 a.m.—and she saw a startled look on Alvarado’s face as well when the sugar was discovered. He called the police and she walked to a neighborhood liquor store to buy some cigarettes. Unknown to them at the time, a school district police officer had discovered Chandler’s body on the grounds of Florence Planner School about 7:30 that morning. It was bloody, was pierced with knife wounds, and was supine.

Drag marks suggested that it had been dragged back and forth about 10 feet before being deposited near an incinerator. An investigator took casts of shoe prints located about 20 feet from the body. He could only find one kind of fairly clear shoe print in the area, though on cross-examination he acknowledged that there was other evidence of foot traffic that could not be identified. He also found false fingernails that lay scattered about in the nearby grass. On her way back from the liquor store, Baxter took a circuitous route in search of Chandler.

Instead she encountered Edward Ramage, and although she did not know him and had seen him only once before, she told him that Chandler was missing. Ramage said he had not seen her. Baxter saw that the police had arrived at her house and told him she had to go. About two days later Baxter again saw Ramage, this time at a neighborhood fast-food restaurant. She asked him to join them, saying “ T want to talk to you,’ ” and he obliged.

They discussed Chandler’s murder. “[H]e seemed pretty streetwise, really, and I asked him, I says, ‘Do you know anybody in the neighborhood or in the near vicinity who would know or who you might have heard or anything that might have done something like that to somebody.’ He says, ‘Well, yeah,’ you know.” Ramage proceeded to tell Baxter a self-serving version of the still-unsolved assault on Charlotte J., in which he interrupted another person’s rape of her. He told her the rape had occurred a few weeks before. Evidently Ramage said he knew the rapist’s identity.

Giving him a pen and paper, she asked for the individual’s name and address and the license number of any automobile belonging to him. Five minutes later and out of breath, Ramage ran back into the restaurant and gave her a piece of paper with the name “Mike” (the record is unclear whether Ramage in fact wrote down an incorrect name; he only knew defendant as “Lester”) and an address. Baxter called Los Angeles County Sheriff’s Detective Douglas Oberholtzer with Ramage’s information.

The police testified before the jury in conformity with their testimony at the in limine hearing on the admissibility of defendant’s confession (set forth in detail post, at pp. 392-396). Aquino described an interview with Ramage, the subsequent questioning of defendant, his initial confession, and the retrieval of a knife where he said he had hidden it. Stanley White, then a Los Angeles County Sheriff’s Department homicide detective, testified that a tape contained defendant’s later, recorded confession, and the prosecution played it for the jury.

Defendant gave his 12-minute-long taped confession at 11:40 p.m. on June 25, 1987, in the presence of White, Aguino, and Downey Police Officer Edgar Compton. In answer to White’s questions, he said that he was walking down a street at 3:00 a.m. on June 18 by himself and spotted a blonde girl wearing white pants and a sweatshirt and standing by a car. He approached her and told her to be quiet. She saw that he had a knife. He took her to Florence Planner School, where they climbed a fence simultaneously. He took her over to an incinerator by the auditorium.

He asked her—but did not tell her—to take off her pants, and she complied. She lay down atop her pants on the grass and they engaged in intercourse. She asked if she could put her pants back on, and he gave permission. He then described stabbing her to death because he was scared that she might lead to his apprehension: “Q. After she put her pants on, then what happened? “A. Uh, I stood there a little while, and—and then uh, I got scared—I mean I was there for a little while, quite a long time so, I thought I’d get caught or something, I don’t know what was going through my mind, I was so high. “Q.

But you were frightened? “A. Yes, I was frightened and I’d done probably about a hundred dollars worth of ‘coke.’ “Q. Uh-huh. “A. More than ever I had done before, and uh, I stabbed her. “Q. You stabbed her. “A. And then she told me to leave and I felt sorry for her and then I got scared because you always think, you know you see it in the movies—girls would scream and yell and— “Q. Yeah. “A. She seemed like she was concerned about me—to get away and leave. “Q. This was after you stabbed her? “A. Yes.

And I felt [unintelligible] her—seemed like she was worried about me—at the same time scared for herself, and I was scared for me and her—I guess I killed her. “Q. You stabbed her some more times? “A. Think so. I don’t know how many.” Defendant stated that he thought he had stabbed Chandler three times in the chest and also in the neck. White asked if he had dragged her body. He replied that he thought he had. “Q. And why did you do that? “A. Just like—I don’t think I hid her—uh, way behind the incinerator. “Q.

What—you were trying to hide her, is that it? “A. “Yeah, and I don’t think I really did a good job of it, uh, but I did drag her. “Q. Okay. “A. Scared.” Defendant gave equivocal statements on whether he and Chandler had struggled at any point, at first saying she did not fight him at all and then that “when we were walking to the school she didn’t.” Defendant returned home and washed his tennis shoes, which were greasy, in the kitchen sink. When the police came to visit him later, the murder knife was in his house, hidden above a false ceiling. He decided to rehide it where the police later recovered it.

He denied any involvement in the assault on Charlotte J. Asked whether he had “raped other girls before,” he said no. Ramage testified that on the morning of June 18, 1987, he heard about a murder at the Florence Planner School grounds, quickly concluded that defendant was capable of having committed it because he had been willing to kill Charlotte J., and relayed his suspicion to several others. When Baxter brought up the subject at the fast-food restaurant, he felt that he had to do something and immediately obtained defendant’s address for her. He denied any involvement in Chandler’s murder.

Ramage described the circumstances of his plea bargain arising from the assault on Charlotte J. He was sentenced to eight years in prison and agreed to testify against defendant. He stated that the agreement called for him to tell only the truth in testifying. During the cross-examination described ante, at page 383, defendant tried to raise a question in the jurors’ minds whether Ramage might have killed Chandler. He asked Ramage whether he told Danny Foster two or three days after Chandler’s murder that he had seen a girl stabbed to death on the school grounds. Ramage denied having told him so.

He also denied having told Rosie Cema that he had been present at the murder, or having described Chandler’s stab wounds to her. And he denied that a statement he made to the police about the precise location of Chandler’s body came from personal knowledge—rather, it came from information the police supplied during their interview of him. Alvarado testified that Chandler drove him to work about 2:45 a.m. on the day she was killed. They had engaged in sexual intercourse earlier that night. When he last saw her she was clean and free of bruises, scratches, or scrapes.

She was wearing a sweatshirt in normal fashion—i.e., with an emblem facing out. As she dropped him off he asked her to buy sugar. He called the police after returning home and seeing the unopened sugar near his parked car. A criminalist from the coroner’s office testified that at the crime scene she found dirt underneath Chandler’s waistband. She believed that the dirt and debris on her body came from the crime scene, suggesting that she was killed where the school district police officer discovered her. Her pants were on backward and her sweatshirt was inside out.

White testified that holes in the inside-out sweatshirt correlated with the stab wounds. The loose and leaf-strewn soil in the area made it easy to see that, as mentioned, Chandler’s body had been dragged in two directions about ten feet. Her socks were thick with burrs and leaves; no shoes were found at the scene.

Adding to the criminalist’s testimony, White explained to the jury that he found only “[o]ne type of shoe print but many prints in the area.” Another criminalist compared plaster shoe print casts and photographs taken from the crime scene with the soles of shoes defendant gave the police after their initial visit to his house. He testified that one of the shoes had sole patterns and a size consistent with a cast and a photograph taken at the crime scene, although neither contained enough detail to yield an exact match to the actual shoe. Blood evidence was inconclusive.

A serologist testified that defendant is a nonsecretor and therefore blood-type tests done on semen found on Chandler’s pants and on rectal and vaginal samples taken from her body could not identify it as his, although the semen found on the pants could have come from her boyfriend Alvarado, assuming that only his semen was present there. Moreover, there was too little semen on the vaginal and rectal samples to be able to be able to classify it according to blood type, and therefore it could have come from Alvarado as well.

She also testified that a minute amount of blood from a larger primate—a taxonomic order that includes human beings—was found on the knife defendant produced for the police. And she testified that three false fingernails collected at the crime scene tested positive on a presumptive test for blood, but because of a laboratory problem she could not determine whether the substance was human blood. Toxicological tests revealed no trace in Chandler’s blood of cocaine or other commonly abused drugs. Defendant did not testify in his own behalf, nor did he make an opening statement.

His strategy was to suggest that Ramage was Chandler’s killer. Accordingly, he called Ramage as his first witness, and Ramage acknowledged that when Baxter approached him he was feeling that others suspected him of involvement in the murder. But he denied telling Rosie Cema that he was present at the murder, or telling Adrian Cervantes that he and defendant met Chandler on the street and she went with them willingly. And neither Cerna nor Cervantes could recall Ramage having made such statements.

Cema’s testimony was impeached by that of Aquino, called as defendant’s witness, who testified that Cema told him that Ramage told her, in counsel’s words, “that [defendant] started stabbing [Chandler] and he Ramage freaked out,” and that Cervantes told him that Ramage said that he and defendant had met Chandler on the street and she went with them willingly. On cross-examination, however, Aquino explained that each interviewee was uncertain about what Ramage may have said.

Defendant also adduced damaging character evidence about Ramage: twelve-year-old Monica O. testified that when she was eight or nine years old Ramage sexually assaulted her. A month earlier he had exposed himself to her. And a neighbor testified that Ramage customarily wore a buck knife. Defendant also introduced evidence regarding his history of drag use and its effects. Dr. David Gorelick, a psychiatrist with a doctorate in pharmacology, testified that cocaine use can make an individual violent and that such violence might be an aberration.

His testimony did not pertain to defendant’s own psychology or his mental state at the time of the crimes, but rather on the possible effects of drag use generally. Allan Figueroa, a friend who had known defendant for 14 years, since elementary school, testified that defendant started using drags at age 11 or 12 (marijuana and alcohol), graduated to phencyclidine in ninth grade, and during high school was a heavy consumer of phencyclidine and marijuana. About age 20 he also began to use heroin and cocaine.

In recent years “[h]e was loaded most of the time.” When intoxicated “[h]e became belligerent, arrogant, violent, incoherent.” When sober, he would be “[p]assive, comical, witty, somewhat intelligent.” “He didn’t lose his temper when he wasn’t on drugs.” At closing argument, defendant argued that even though he confessed to killing Chandler, he did not commit first degree murder, but second degree murder. He acknowledged that he killed her intentionally, but argued that the prosecution had not proved beyond a reasonable doubt that he acted with premeditation and deliberation.

In his view, the evidence of multiple stab wounds showed that he killed in a frenzy, not with calculation. He also asserted that his consumption of an unprecedented quantity of cocaine on the night of the murder caused him to lose his faculties. In sum, he was not able to deliberate, and because of voluntary intoxication he lacked the “ability to form the specific intent and mental framework” to commit a premeditated and deliberated murder.

Defendant also argued that the prosecution did not establish the corpus delicti of kidnapping Charlotte J. for robbery—i.e., “the evidence was . . . inadequate to prove . . . that anybbdy committed” that crime. He maintained that her purse was rifled before she was moved. With regard to the other charges involving Charlotte J., he asserted that the prosecution had not proved he was the individual who committed those crimes alongside Ram-age. Charlotte J.’s own testimony was flawed because of failures of perception and memory and because the lineup procedures were suggestive.

Ram-age’s testimony was not to be believed, first because he originally provided information about defendant’s possible culpability to avoid being suspected of murdering Chandler, and, second, because he wanted to avoid a long prison sentence for the offenses he committed against Charlotte J. Finally, defendant queried why he would admit to murdering Chandler but deny the attack on Charlotte J. With regard to the attack on Yolanda A., defendant conceded that he was guilty of assault with a deadly weapon or with force likely to produce great bodily injury, but that was all.

In sum, defendant sought to persuade the jury “not that [he] is not guilty of any crimes,” but that he was not guilty of many of the crimes charged. Guilt Phase Issues Motions Regarding Defendant’s Inculpatory Extrajudicial Statements The trial court held an in limine hearing (Evid. Code, § 402) on defendant’s motion to suppress, as improperly obtained, his extrajudicial inculpatory statements—i.e., his confession that he killed Chandler and hid the knife—and to exclude evidence of the knife as deriving from the involuntary statements.

It held another hearing to rule on his contention that the prosecution had not established the corpus delicti of rape or kidnapping. Confession-related Issues Defendant challenged the admissibility of his statements under various legal theories. In the trial below, he identified four bases for his challenge. First, police harassment of him and his family coerced him into taking a polygraph examination. Second, he should have been advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974], before being given the examination.

Third, when they did try to advise him of his Miranda right to counsel after giving the examination, he failed to understand the admonition and therefore did not knowingly and intelligently waive the right. Fourth, he confessed in exchange for false promises of lenity. He renews these contentions on appeal. Facts The prosecution presented witnesses at the in limine hearing who testified about the circumstances surrounding defendant’s confession. As stated, John Aquino was a detective for the Baldwin Park Police Department.

He testified that he received a call on June 18, 1987, that Chandler’s body had been found at Florence Planner School in that community. White and Oberholtzer were assigned to investigate. There was no homicide suspect in the following days. On receiving Saundra Baxter’s information, White interviewed Edward Ramage, who told him that “Mike” “lived down the street from him and was very strange . . . and possibly could be the suspect in our murder case.” Aquino and the other detectives went to the address and found defendant outside. He identified himself as Lester, not Mike, and invited them inside.

As they walked in all three detectives tried to see the bottom of his shoes to compare them to shoe prints at the crime scene. His soles were “very similar” to the shoe prints. The officers asked defendant if he would take a polygraph examination “so we could exclude him as a possible suspect.” At this point Aquino “didn’t really feel he was involved”; he thought the chances of his being the perpetrator were 25 to 30 percent.

Defendant told the officers that he was with a man named Tony Liaiono until 12:00 or 12:30 a.m. on the night of the murder. (White later testified before the jury that defendant also said he came home afterward and stayed home all night.) But Liaiono said he last saw defendant at 7:00 to 7:30 p.m. Aquino and Baldwin Park Police Detective Barry Bazzell went to get defendant for his polygraph examination on June 25, 1987. Bazzell is six feet two inches tall and weighs two hundred twenty to two hundred thirty pounds. Defendant said he was not going with them and that his father wanted to speak with them.

His father told them that he had spoken to a lawyer and had decided that defendant should not take the examination. Bazzell immediately got into a shouting match with the father. It was “very heated.” Seeing that “[t]he situation was going downhill quickly,” Aquino intervened and said there was no need for an argument. He never heard Bazzell threaten to arrest defendant’s father or to tear the house apart if the father did not leave the room. Once Aquino intervened, the situation calmed down quickly.

He was on his way to leave, along with the other officers, but went back to the living room to apologize to defendant’s father. He explained that “ ‘[w]e had reason to believe that Lester [defendant] might possibly be involved. One way to clear him is with a polygraph. It’s strictly voluntary, and sorry for the disturbance ....’” Defendant then asked, in Aquino’s words, “if he passed the test would we leave him alone,” and Aquino responded, “Lester, if you’re not our suspect, I’m not going to waste the investigation time with you.” Defendant changed his mind and agreed to take the test.

He was searched for safety reasons before being put in the patrol car, but was not handcuffed or told he was under arrest. Downey Police Department Detective Dwight Hooker testified that he administered a polygraph examination to defendant. He put him in a public waiting room from which he was free to leave until he could get information on the case and prepare the questions. He came back 30 to 45 minutes later to take him to the examination room. Initially the two were in the room alone. He explained that taking a polygraph test is voluntary and handed defendant a waiver to sign.

He appeared to read it. (The record shows that he signed it in two places. For the waiver’s text, see post, at p. 402.) Hooker read him the questions in advance and had him answer before hooking him up to the machine. Explaining the polygraph procedure required some 15 minutes. Hooker performs this explanation so that the waiver will be “a little bit more intelligent. . . ; they know what they’re signing.” At no time did defendant ask for a lawyer or say that he did not wish to be present or to take the test. The test consisted of 10 or 11 questions on 3 different charts, for a total of 30 to 33 questions.

Administering it required about one and one-quarter to one and one-half hours, and it began at 6:15 p.m. Afterward Hooker reviewed the results and told defendant he thought he had failed the questions regarding Chandler’s death. He then read him his Miranda rights from a card. Asked if he wanted to give up his right to counsel, defendant said he did not understand the question. “So I better explained it to him by saying, ‘This means do you want to have a lawyer right here, right now while I talk to you about this case?’ [¶] At that time he says, ‘No, I want to talk to my mother.

I need to talk to my mom.’ ” (Defendant was 26 years old at the time.) Hooker denied that request and began to question him about the murder. He told defendant he thought he was involved in it. Initially defendant denied it. The interrogation’s tone was “a low-key interrogation, more or less a discussion .... It was more or less almost a conversation.” Hooker said several times that “I truly believe now that you killed the girl.” At 8:30 p.m. Officer Compton, who was also a polygraph examiner, joined the two. He came in to read the charts. Compton told defendant the polygraph showed he was involved in the murder.

The police continued to talk to defendant about another hour. They told him, “ ‘Now’s the time for the truth to come out. It’s something that’s going to eat at you and eat you away.’ ” At approximately 9:30 p.m. defendant “blurted out,” in Hooker’s words, “ T didn’t mean to kill her,’ [and] started to cry.” “We comforted him a bit. Then he said, T didn’t mean to kill her, I got scared, I was loaded on cocaine.’ ” Hooker testified that there was no discussion of the consequences of failing to confess or about a murder conviction. Nor was there any discussion about the penalty for murder.

Nor did defendant ask for any favor in exchange for a confession. Hooker did not threaten him or make any promises to him. Compton testified that he came into the polygraph room at 8:30 p.m. at Hooker’s request to examine the polygraph results. He told Hooker he thought defendant’s answers were deceptive. Defendant could hear this. Compton told him he thought he was involved in the homicide. Hooker and Compton continued to talk to him for some time. He began to cry and said, “I didn’t mean to kill her.” Neither Compton nor Hooker threatened defendant in any manner while Compton was present.

White came in and readmonished defendant as to his Miranda rights from memory and took a statement from him. He said “that he’d been out walking that evening; that he’d come across a girl down the street from his house. He’d taken her at knife point over to Florence Planner School, had gone over by the incinerat[o]r, had intercourse with her, stabbed her to death, and then later told me that he had hid the knife at some apartments not far from his house.” Defendant offered to produce the knife and said that he wanted to explain events to his parents. White agreed. They went to an address on Puente Avenue.

Defendant pointed to a hole in a wall and White retrieved a knife from it.

Then they went to defendant’s house. “I didn’t take notes,” Aquino testified, “but I remember Lester saying to his family that, ‘They’re booking me for murder,’ that he killed the girl at the school, and his wife and his mother bec[a]me upset and were crying.” Defendant accused his family of culpability for the homicide because they hadn’t gotten him help, evidently for emotional problems. “There was another conversation . . . . ffl] I remember his father was standing like in a hallway facing the living room leaning against the doorjamb, and he said to him, all I want—I only want to ask you one thing, did you do it, and he said he did, . . . and we left.” They went back to the Baldwin Park police station, where defendant gave the taped statement described ante, pages 386-388.

White did not threaten him or offer him any promises of leniency. Defendant had stated at the Downey police station that he needed help for his emotional problems. White probably said briefly “We’ll get you help.” The only benefit defendant affirmatively asked for was that the story not appear in the newspapers. They did not discuss the penálty for homicide or a lesser prison sentence. Defendant presented his own and his parents’ testimony. His version of events differed dramatically from that of the police.

In his own testimony on direct examination, defendant confirmed that on June 22, 1987, White drove up in a black van and asked if he was “Mike.” White also asked him for a physical form of identification. Defendant said it was inside, and he went in, followed by White. Defendant turned around and saw “a silver nickel-plated .45 automatic and I got shook up.” The two were alone at the time. “I asked him, ‘Why are you doing this?’ He says, ‘Walk right.’ ” White and Oberholtzer questioned defendant about his activities on the evening of the homicide.

They asked to see the bottom of his shoes and Aquino said, “That’s them.” The police officers confiscated the shoes without permission. They told him they were investigating a schoolyard murder and asked if he knew anything about it. He said he had read about it in a newspaper. White asked defendant if he would take a polygraph examination. “His exact words to me were, ‘If you don’t take the polygraph, we’re not going to stop harassing you.’ ” But he either refused to take the test or told him he wanted to talk to a lawyer or someone else first.

He also said he would let White or someone else know whether he would take the test. He denied having a knife. After talking to an attorney his mother had contacted, defendant decided not to take the examination. He left two messages with Aquino at the Baldwin Park police station that he would not undergo it. On June 25, Aquino and a large-framed detective (presumably Bazzell) came to the house. Aquino asked defendant if he was ready, and he said he was not going to take the test. Bazzell and defendant’s father started arguing. Bazzell said, “He’s a grown boy.

He can make his own decisions.” Bazzell also said, “We can tear this whole house apart.” His father replied, “Go on right ahead and you’ll see what will happen.” Bazzell said that if defendant didn’t go, “we’ll have to do it the hard way.” Aquino, by contrast, “was calm through the whole thing.” Defendant was concerned for his father’s well-being. When defendant went to his bedroom because he did not wish to participate in the argument further, Bazzell led him by the forearm. He was debating whether to take the examination “just to satisfy them.” He felt at that point that he was a suspect.

But he “went to take it [the examination] to get them off my father’s back, off my back and leave us alone.” At the Downey police station defendant was put in a room with an open door and waited one and one-quarter to one and one-half hours for Hooker to return. It had a phone. A woman wearing “rookie” clothing told him not to leave. She was working about 30 to 35 feet from him. As he was moving around, she told him to “ ‘stay put,’ and I asked where the detectives were at. She didn’t tell me where.

Because they took a long time to get to me.” “No one ever told me I could leave [the Downey police station] any time I felt like it.” Asked why he signed the consent form for the test under such adverse circumstances, defendant replied that there was no point in explaining it to Hooker, who already knew that he was there involuntarily. But he conceded that in the polygraph room, Hooker told him that he didn’t have to take the examination. He took it anyway because “they wouldn’t let me go home” and he didn’t feel free to leave the police station.

After telling defendant that he had failed the test, Hooker recited his Miranda rights to him. Defendant did not understand the part about having an attorney present prior to any questioning. Hooker pulled out a Miranda card and read his rights to him more slowly, but he still did not understand the right to counsel aspect. Again he asked to see his mother so she could get in touch with his attorney. Hooker said it was too late for that. Compton told him, “It’s up to us if you go home.” And then he stated, “It’s up to us if you get 15 years.” Then from 15 years he dropped down to 9.

From nine years he dropped down to seven, and then from seven years he dropped down to three. Compton also said, “It’s up to us if you get 15 years because whatever we say in court goes. We’re policemen.” Eventually he promised him a three-year sentence, or seven years at most. Defendant confessed that “I did it” about 9:30 that night. He confessed in hopes of getting a three-year sentence. Compton told him he had to confess if he wanted to receive that term. White was then brought into the examination room. He read defendant his Miranda rights. Defendant confirmed to White that he had committed the homicide.

On cross-examination, defendant conceded that he did not tell White that he didn’t understand part of his Miranda rights. He felt it would be a waste of time to do so. Defendant testified that the transcript of his taped confession accurately recites that he told White he stabbed the victim. The police did not force him to make that statement, but they induced it: they told him that if he gave it he would get what he wanted—a reduced sentence. Defendant testified that he did not know whether he killed Chandler. Neither did he know what the police were going to use the taped confession for or why they wanted it.

Asked why he failed to call the attorney to whom his mother had spoken before leaving the house where he had been threatened, defendant replied: “Just because a cop threatens me or my family, I’m supposed to run to a lawyer[?] He’d probably laugh at me.” On redirect examination, defendant explained that when he testified that he did not know whether he killed Chandler, he was flustered; what he meant was that he did not kill her. He related his version of events on the night of Chandler’s killing. He saw her walk toward the school with another person, a male. He followed about 12 to 13 houses behind.

He did this because the male had something that defendant had to get back because it belonged to somebody else. Defendant followed them onto the school grounds. Defendant was intoxicated by beer and some $200 worth of cocaine. Accordingly, his recollection of events at the school as he testified was “vague.” It was also vague when he spoke to the police on June 25. When defendant entered the school grounds, he stood in a lighted area for two to three minutes and injected cocaine into his arm. He was under the influence of the drug. Afterward he followed the two individuals toward the incinerator.

From 25 feet away he saw the male individual “swinging in an upward motion,” meaning a thrusting motion. He could not see the target of the thrusts. Then defendant startled the male, who “came up to me, handed me that knife and said, ‘Help me.’ ” That was the knife defendant hid in the wall. Defendant also interpreted the male’s request as a request to help him hide the body. Under the influence of drugs, he helped him drag and hide it. The male went one way and defendant the other. He knew the other man had killed a girl.

He didn’t notify the police because “where I come from . . . you don’t snitch on people.” He was uncertain whether he would reveal the man’s identity even now, because the jailhouse penalty for informing would be death. Defendant’s memory was as vague on the day of the confession as it was as he testified. He agreed that he stated on tape that he had stabbed a girl at Florence Planner School, but testified that when he talked to White, he had no memory of actually doing so. Although he had also said on tape that the victim took her clothes off, he testified that he did not remember that event either.

With his own memory uncertain, defendant began to believe Hooker’s accusations, even if he did not know the truth of them. The police tricked him into exaggerating his involvement with their spurious offer of a three-year sentence. On recross-examination, defendant denied killing Chandler. He did not take her to the school grounds. He did not engage in sexual intercourse with her or see anybody else do so. His only involvement was helping hide the body and not turning in the actual culprit. He did not know if the victim was dead or alive at that time.

The actual killer tried to help defendant drag the body, but was in a hurry to leave. Defendant conceded that the actual killer was never a good friend of his. And he knew that the other man had killed the victim. Why, the prosecutor asked, did he agree to take the knife? “When he handed me the knife, I didn’t know anybody was murdered.” Defendant’s parents buttressed certain aspects of his contradictory and convoluted story, while calling other details into question. His father, Jim Ochoa, testified that the police came to their house on June 25, 1987, to take defendant to be polygraphed.

Although Aquino “conducted himself like a professional” that day, his partner “just blew up.” They “made body contact several times. No blows were thrown. ... He said was going to rip my house apart if my son didn’t go, and I told the man— [¶] . . . [¶] . . . ‘you’re going to find out something different.’ ” The father talked about getting his son a lawyer, and the partner replied, “What do you need a lawyer for[?] It won’t do you no good. All they want is your money.” Jim Ochoa did not see either detective brandish a gun.

He weighs two hundred and five to two hundred and ten pounds and is five feet nine inches to five feet nine and one-half inches tall. When defendant returned with several officers after the polygraph examination his father saw him talking to Velia Ochoa, defendant’s mother, and Elva Ochoa, defendant’s wife. He could not remember him saying anything about a murder. As they were leaving again, he told his father “ ‘he tricked me.’ ” Defendant’s mother testified that after the police came to the house the first time, she hired the attorney, who said he would advise defendant not to take the polygraph test.

Defendant told her that the lawyer told him the same thing. When the police arrived, she heard shouting and arguing. The “big one” (presumably Bazzell) told her that “ ‘if Lester doesn’t go, We’ll do it the hard way. We’ll rip this house apart.’ ” Aquino, by contrast, “never argued with us.” Defendant’s mother testified that defendant was also shouting during the argument. Later that night defendant and the police returned to the house.

The prosecutor asked Velia Ochoa whether defendant had told her he had murdered someone, and she replied, “He said he did it.” On rebuttal for the prosecution, Compton testified that he did not discuss any kind of deal with defendant in the polygraph room on June 25. He did not offer him a fifteen-, nine-, seven-, or three-year sentence in exchange for confessing. White testified that he did not own a nickel-plated .45-caliber automatic handgun. He did not draw a weapon on defendant.

Bazzell testified that he and defendant’s father had an argument about whether defendant was adult enough to make his own decision about the polygraph test. But he did not threaten to rip the house apart or threaten anyone. The incident lasted only 10 seconds, when Aquino interceded. He stopped yelling because he could tell that Aquino was upset with him for interfering with the case’s investigation. The Trial Court’s Ruling The trial court denied defendant’s motion to suppress his confession and exclude evidence of the knife.

In its ruling, given orally from the bench, the court found “beyond a reasonable doubt that the defendant’s statement to the police officers was voluntary. ft[] I’m finding that his taking of the polygraph was voluntary. I’m finding that he was advised of his constitutional rights, that he understood the constitutional rights and that he waived them.” The court mentioned that defendant’s own testimony established that Hooker told him he did not have to take the polygraph examination.

With regard to the purported offers of lenity in exchange for a confession, the trial court ruled that “that did not occur.” It based this ruling on Compton’s testimony. The trial court explicated its conclusion that defendant took the polygraph examination voluntarily.

Knowing “of his involvement and . . . that he was a suspect, and . . . that the detectives had a shoe that is rather important evidence, it appears to the court that the defendant was going to make an effort to extricate himself from involvement and that’s why he agreed to take the test.” The trial court also ruled that Miranda warnings require custody or significant limitations on freedom of action and that defendant was not in custody because he “voluntarily accompanied the police officers to take the polygraph test and [therefore] it wasn’t necessary to Mirandize him until [the examination results apparently showed] deceit by the defendant to certain key questions and at that time he was admonished by Detective Hooker.” With regard to the claim that defendant did not understand his right to counsel, the court, quoting Hooker’s testimony that defendant said he did not want to speak to a lawyer, but rather to his mother, accepted that testimony as true, rejected the claim and ruled in sum that he knowingly and intelligently waived his rights to counsel and to silence.

As described ante, at page 392, defendant’s cognizable contentions are that evidence of his guilt was inadmissible because the police harried him into taking a polygraph examination, failed to read him his Miranda rights before giving it, failed to obtain a proper waiver when they did read them to him, and improperly offered him lenity as an inducement to confess. On appeal, defendant renews these contentions, arguing that his confession must be suppressed and the knife excluded from evidence.

The prosecution bore the burden of establishing “the voluntariness of defendant’s waiver and confession ... by a preponderance of the evidence.” (People v. Whitson (1998) 17 Cal.4th 229, 248 [70 Cal.Rptr.2d 321, 949 P.2d 18] [discussing Miranda claims]; accord, People v. Cahill (1994) 22 Cal.App.4th 296, 310 [28 Cal.Rptr.2d 1] [discussing improper coercion or inducements].) Discussion of Custody Claim Defendant agrees that resolving his claim under Miranda v. Arizona, supra, 384 U.S. 436, in his favor requires a conclusion that he was subject to custodial interrogation.

He is correct. “In applying Miranda . . . one normally begins by asking whether custodial interrogation has taken place. ‘The phrase “custodial interrogation” is crucial. The adjective [custodial] encompasses any situation in which “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” ’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 732 [60 Cal.Rptr.2d 1, 928 P.2d 485].) “Absent ‘custodial interrogation,’ Miranda simply does not come into play.” (People v.

Mickey (1991) 54 Cal.3d 612, 648 [286 Cal.Rptr. 801, 818 P.2d 84].) The test for whether an individual is in custody is “objective . . . : ‘[was] there a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ ” (Thompson v. Keohane (1995) 516 U.S. 99, 112 [116 S.Ct. 457, 465, 133 L.Ed.2d 383]; see also People v. Stansbury (1995) 9 Cal.4th 824, 830 [38 Cal.Rptr.2d 394, 889 P.2d 588].) We conclude that defendant was not in custody, and therefore need not and do not consider whether he was under interrogation.

The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. (Thompson v. Keohane, supra, 516 U.S. at pp. 112-113 [116 S.Ct. at pp. 465-466].) “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.

Once the scene is . . . reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’: ‘[was] there a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest.’ [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a ‘mixed question of law and fact’ . . . .” (Ibid., fn. omitted.) Accordingly, we apply a deferential substantial evidence standard (People v.

Memro (1995) 11 Cal.4th 786, 826 [47 Cal.Rptr.2d 219, 905 P.2d 1305]) to the trial court’s conclusions regarding “ ‘basic, primary, or historical facts: facts “in the sense of recital of external events and the credibility of their narrators . . . ” (Thompson v.

Keohane, supra, 516 U.S. at p. 110 [116 S.Ct. at p. 464].) Having determined the propriety of the court’s findings under that standard, we independently decide whether “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” (Id. at p. 112 [116 S.Ct. at p. 465].) It is clear from the foregoing recitation of the testimony of the sheriff’s and police detectives that substantial evidence sustains each of the trial court’s factual findings.

We turn to the question, which we must decide on independent review, whether a reasonable person in defendant’s position would have felt free to end the questioning and leave. In our view, a reasonable person in defendant’s position would have realized that he could end the questioning and leave. Most important, defendant signed a statement that told him that the interview was voluntary. It stated: “I, Lester R. Ochoa, do hereby agree to submit myself to an instrumental detection of deception examination. The polygraph examiner in this case is D.R.

Hooker. [¶] I am taking this examination freely and voluntarily, and without any promise of reward or immunity, and without any force (mental or physical), or threat of any force. [¶] I clearly understand that I am not required to make any statements relative to this case.” A reasonable person in defendant’s position, knowing that he or she need say nothing at all, would understand that he or she would do the examiner a favor by offering to leave rather than wasting the examiner’s time by sitting mute.

Moreover, the trial court’s implicit conclusion that defendant sat unguarded in a public waiting room is incompatible with custody. At oral argument, defendant emphasized that once he was in the examination room he was connected to the polygraph machine and not free to wander about without disconnecting its apparatus from him. But the waiver told him clearly that the interview was voluntary, and the trial court found that he knew he did not have to take the examination. A reasonable individual knows that he or she can end a voluntary association with other individuals at will.

This is so despite the location of defendant’s questioning; the fact that he was questioned in the police station’s polygraph examination room does not necessarily require a finding of custody, even if the room was in a secure area. (People v. Stansbury, supra, 9 Cal.4th at pp. 833-834.) At oral argument, defendant also asserted that the similar facts of People v. Aguilera (1996) 51 Cal.App.4th 1151 [59 Cal.Rptr.2d 587], in which the court reversed a conviction on grounds of a Miranda violation, require the same result here. We do not agree. There are factual similarities.

But in Aguilera, the court found that a reasonable individual would experience a degree of restraint “normally associated with a formal arrest” (id. at p. 1161) in part because the police, as the court emphasized with italics, told the defendant that “ ‘[w\e’re not gonna let you leave here until we go talk to the girl, and she’s not gonna be able to confirm the story ....’” (Id. at p. 1160; see id. at p. 1163).

Nor does Aguilera say that the defendant in that case was given and signed a formal advisement that the questioning was voluntary—rather, an officer merely informed him that he was not in custody (id. at pp. 1159, 1163). Without either approving or disapproving Aguilera's compilation of circumstances that in its view tend to prove or disprove custody (id. at p. 1162), we find certain facts in that case notably unlike the facts of this one.

Discussion of Other Confession-related Claims We turn to defendant’s claims that he did not confess voluntarily and that he did not understand his right to counsel. “What the Constitution permits to be admitted in evidence is ‘the product of an essentially free and unconstrained choice . . .’ to confess. [Citations.] The question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne. . . . [¶] The police testified that defendant was not threatened, was offered no inducement, and [understood] his rights to counsel.... The court believed the testimony of the police ....

We must accept its evaluation of the facts when substantial evidence supports it, as the testimony does. [Citation.] Doing so, independently resolving the legal question whether the confession was voluntary is a simple task: it was.” (People v. Memro, supra, 11 Cal.4th at p. 827.) That is also true of the waiver claim: defendant understood his right to counsel and waived it. In sum, each of defendant’s remaining contentions is without merit.

Corpus Delicti Defendant contends that the prosecution did not establish the corpus delicti of the special circumstances of rape and kidnapping Chandler, and hence the jury was not entitled to hear his confession to the crimes. We disagree: the corpus delicti was established. In the middle of trial, but before the jury heard defendant’s taped confession, the court heard argument in the jury’s absence on whether the corpus delicti of Chandler’s rape and kidnapping had been established by testimony given so far.

The court found “that there is a corpus [delicti] as to rape and kidnapping. “As to the rape, . . . that the sweat shirt is inside out, that the pants are on backward is an indication that at sometime the body was disrobed and that it was covered on again.” The court also referred to the presence of semen and the “ample evidence of force and violence.” With regard to kidnapping, the court took note of the testimony that Chandler loved her boyfriend and was not likely to go willingly with someone else for a sexual purpose.

It also mentioned the bag of sugar found beside the car and the evidence of violence at the crime scene. “All of this indicates . . . that the victim was taken against her will . . . .” As we will explain, the court’s rulings were sound. Because Chandler was killed before the enactment of Penal Code

section 190.41—all unlabeled statutory references are to this code—the law required the prosecution to prove the corpus delicti of the special circumstances of rape and kidnapping. (People v. Zapien (1993) 4 Cal.4th 929, 985, fn. 7 [17 Cal.Rptr.2d 122, 846 P.2d 704].) The law of corpus delicti contains “two distinct, though related, concepts .... First, the corpus delicti is a necessary element of the prosecution’s case in a criminal trial ....

Thus, a precondition to conviction is that the state prove that a ‘crime’ has been committed—otherwise there could not possibly be guilt, either in the accused or in anyone else. fl[] The second concept is closely related to the first. The ‘corpus delicti rule’ prohibits the prosecutor from establishing the corpus delicti. . . through the use of the extrajudicial statements of the defendant. [Citations.] Thus the state must prove the corpus delicti independently of the accused’s out-of-court declarations.

The rule further provides that once the corpus delicti has been proved by such evidence aliunde, the extrajudicial statements then become admissible to determine the defendant’s connection with the crime.” (Comment, California’s Corpus Delicti Rule: The Case for Review and Clarification (1973) 20 UCLA L.Rev. 1055, fn. 1.) A defendant cannot be held to answer a criminal complaint following a preliminary examination unless the magistrate is satisfied that the corpus delicti has been established. (§§ 859b, 871, 872.) “The purpose of the corpus delicti rule is to assure that ‘the accused is not admitting to a crime that never occurred.’ ” (People v.

Jones (1998) 17 Cal.4th 279, 301 [70 Cal.Rptr.2d 793, 949 P.2d 890].) Hence, before a confession may be introduced “ ‘slight corroborating facts’ ” (People v. Jones (1867) 31 Cal. 565, 569) must show independently “that a crime has been committed by someone” (People v. Cobb (1955) 45 Cal.2d 158, 161 [287 P.2d 752]). Significant here, “the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm].

Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event.” {People v.

Jacobson (1965) 63 Cal.2d 319, 327 [46 Cal.Rptr. 515, 405 P.2d 555].) Corpus Delicti of Chandler’s Rape Defendant argues that the prosecution failed to establish the corpus delicti of Chandler’s rape because (1) the semen found on her body was entirely explainable by sexual relations with her boyfriend Alvarado on the night of the killing, and (2) the fact that her sweatshirt was on inside out and her pants backwards could have resulted from dressing in haste to take Alvarado to work just before she was killed.

We do not agree. “No universal and unvariable rule can be laid down in regard to the proof of the corpus delicti. Each case depends upon its own peculiar circumstances.” (State v. Williams (1905) 46 Or. 287, 297 [80 P. 655, 660]; accord, Keyes v. State (1964) 236 Md. 74, 78 [202 A.2d 582, 583-584]; Desilvey v. State (1943) 245 Ala. 163, 165 [16 So.2d 183, 184]; People v. Schneider (1935) 360 Ill. 43, 51 [195 N.E. 430, 433].) But People v. Jennings (1991) 53 Cal.3d 334 [279 Cal.Rptr. 780, 807 P.2d 1009] is a model that, with allowance made for somewhat different facts, applies here.

In Jennings, the victim’s body “was found in an irrigation canal in a rural area. She was unclothed, and although forensic examination detected she had suffered a broken jaw, the advanced decomposition of her body made determining whether she had been sexually assaulted impossible.” (People v. Jones, supra, 17 Cal.4th at pp. 302-303.) Still we found that the trial court properly admitted evidence of the defendant’s extrajudicial statement that he had raped the victim before killing her. “Although we characterized the independent evidence of rape as ' “thin” ’ (People v.

Jennings, supra, 53 Cal.3d at p. 369), we nevertheless concluded that the unclothed condition of the victim’s body, its location when found, and the evidence of a broken jaw,, considered together, were sufficient to establish the corpus delicti of rape.” (Id. at p. 303.) In this case, Alvarado testified that when he last saw Chandler—i.e., as she drove him to work—she was wearing her sweatshirt in an orthodox fashion. He also testified that she was clean and unmarked by evidence of trauma. {Ante, at p. 389.) When found, the state of her clothing and hygiene suggested that she had been brutalized.

By analogy to Jennings, that evidence suffices to satisfy the corpus delicti—i.e., to establish the trustworthiness of defendant’s confession that he raped her. We need not rely on the evidence of semen to reach the foregoing conclusion. It could be argued that because identity forms no part of the corpus delicti, the fact that the semen could not be established as defendant’s is immaterial.

On the other hand, the serologist testified that all of the semen found with Chandler’s body could have come from consensual sexual relations with her boyfriend Alvarado (ante, at p. 389), and it could be argued that it would be unfair under the state of the evidence to rely on the presence of semen to establish the corpus delicti. There is no need to do so, however; the nonserological evidence of rape sufficed to meet the corpus delicti requirement. Corpus Delicti of Chandler’s Kidnapping Likewise, the evidence sufficed to satisfy the corpus delicti of kidnapping.

Chandler was found, some distance away from her home, in a schoolyard with evidence of trauma. She was shoeless; her socks were thick with leaves and burrs. This was at least slight evidence (People v. Jones, supra, 17 Cal.4th at p. 301) to show that she did not accompany defendant willingly—it would be unusual for someone to agree to accompany another to a location in the dark without shoes that she could easily obtain inside her house. Second, Chandler’s housemates found an unopened bag of sugar beside the locked car. Alvarado had asked her to buy sugar when she dropped him off at work.

Of course, it is conceivable that she could have simply left the bag of the sugar by the car, rather than taking it in the house or replacing it in the car, and gone with defendant willingly to the place she was killed—-just as it is conceivable that she did not mind walking through burrs and leaves in her socks. But as stated, “the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm].” (People v.

Jacobson, supra, 63 Cal.2d at p. 327.) The corpus delicti may be established “even in the presence of an equally plausible noncriminal explanation of the event.” (Ibid.) It is at least equally plausible that Chandler dropped the sugar and unwillingly went with defendant when he accosted her and forcibly took her, shoeless, to the schoolyard. Failing to Appoint Arthur Lindars as Second Defense Counsel Defendant contends that the court erred in denying his motion to appoint or not to remove Arthur Lindars as a second attorney to represent him (see Keenan v.

Superior Court (1982) 31 Cal.3d 424, 434 [180 Cal.Rptr. 489, 640 P.2d 108]). He argues that Lindars, the husband of his counsel, Mary Lynn Huston, had established an attorney-client relationship with him and that the court violated his right to the effective assistance of counsel when it did not permit Lindars to represent him at trial. The court (for this hearing Judge Robert Martinez; the case was tried before Judge Alfonso M. Bazan) held a hearing on the matter before trial. Huston testified that Judge Thomas F.

Nuss ordered Keenan counsel appointed and mentioned in chambers that he would appoint Lindars to that role, but that she could find nothing in the court’s records or her own ordering Lindars’s appointment. Judge Nuss testified that he did not recall the motion for Keenan counsel, which defendant contended resulted in Lindars’s appointment on October 16, 1987. Counsel argued that Lindars had done “a great deal of work in this case.

He has reviewed everything in the file, on top of which we have discussed our trial strategy at length and made plans for it.” The court ruled that no Keenan counsel had been designated and that such designation remained to be done. It rejected Lindars’s appointment for two reasons: its fear that a husband-and-wife team might create a perception of impropriety among members of the public, who might wonder if they were billing conversations over meals to them; and its concern that “this case is presently set on a date that can potentially conflict with the Snoke case”— i.e., People v.

Snoke, apparently a criminal case also involving special circumstance allegations. It ordered Huston to submit the names of seven attorneys that would be acceptable cocounsel to her. Counsel called the court’s first stated reason for rejecting Lindars’s appointment an “affront.” On January 21, 1988, the court appointed David J. Daugherty as defendant’s second counsel. The decision to appoint Keenan counsel is reviewed for abuse of discretion. (People v. Wright (1990) 52 Cal.3d 367, 411 [276 Cal.Rptr. 731, 802 P.2d 221].) The decision whom to appoint to that role must also be reviewed for abuse of discretion.

Moreover, we review the court’s ruling that no Keenan counsel was ever appointed on a deferential substantial evidence standard: the inquiry is of a factual nature. (See Alexander v. Superior Court (1994) 22 Cal.App.4th 901, 918 [27 Cal.Rptr.2d 732]-919.) Substantial evidence supported the ruling that no appointment was ever made. Hence the question before us is not whether the court erred in relieving Lindars, but whether it abused its discretion in refusing to appoint him in the first place. It did not.

We will defer to the trial court’s second stated reason for refusing to appoint Lindars—the possibility of a conflict with the Snoke case. We note, too, that there is no evidence in this record that an attorney-client relationship was ever established. At most, Lindars made himself familiar with the case and discussed strategy with Huston. Defendant may not even have been aware of these efforts at the time they were made, much less of an attorney-client relationship with Lindars. Denying Motion to Sever Counts In case No. A885934, defendant was charged with crimes against Chandler. In case No.

A886206, he was charged with crimes against Charlotte J. and Yolanda A. The prosecution moved to consolidate the two cases. Defendant moved in turn to sever the counts charging crimes against Yolanda A. from those charging crimes against Charlotte J. in case No. A886206. The court granted the prosecution’s motion and thereby implicitly denied defendant’s. Defendant now contends that the court committed error under state law. We review the court’s rulings, explicit and implicit, for abuse of discretion. (See People v.

Cummings (1993) 4 Cal.4th 1233, 1284 [18 Cal.Rptr.2d 796, 850 P.2d 1].) A court abuses its discretion when its rulings fall “outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) These did not do so. The governing statute is

section 954, which provides in relevant part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. . . .” “Consolidation usually promotes efficiency, and this case was no exception. Consolidation obviated the need to select an additional jury . . . .” (People v.

Mason (1991) 52 Cal.3d 909, 935 [277 Cal.Rptr. 166, 802 P.2d 950].) Because consolidation ordinarily promotes efficiency, the law prefers it. “Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.” (People v.

Brock (1967) 66 Cal.2d 645, 655 [58 Cal.Rptr. 321, 426 P.2d 889].) Thus “[a] defendant can prevent consolidation of properly joined charges only with a ‘clear showing of prejudice’ . . . .” (People v. Mason, supra, 52 Cal.3d at p. 935.) “[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard.” {People v. Cummings, supra, 4 Cal.4th at p. 1284.) The same is true of a motion to consolidate. (See People v.

McClain (1942) 55 Cal.App.2d 399, 402 [130 P.2d 978].) The requirements for joinder were met here because the information available at the time was that each individual was a victim of the same class of crimes—sexually assaultive conduct (see People v. Rhoden (1972) 6 Cal.3d 519, 524 [99 Cal.Rptr. 751, 492 P.2d 1143]-525)—facili-tated by means of a knife (see People v. Hawkins (1995) 10 Cal.4th 920, 941 [42 Cal.Rptr.2d 636, 897 P.2d 574]), and with the intent to kill (People v.

Miller (1990) 50 Cal.3d 954, 988 [269 Cal.Rptr. 492, 790 P.2d 1289]). “ ‘Since the requirements for joinder were satisfied, defendant can predicate error only on a clear showing of potential prejudice.’ ” (People v. Osband (1996) 13 Cal.4th 622, 666 [55 Cal.Rptr.2d 26, 919 P.2d 640].) There is no question that evidence of each set of crimes would have been admissible in trying each other set to show both intent and plan. (Evid. Code, § 1101, subd. (b).) Hence any inference of prejudice was dispelled.

The court did not abuse its discretion in granting the prosecution’s motion to consolidate and implicitly denying defendant’s motion to sever. Finally, “[e]ven if the ruling was correct when made, we must reverse if defendant shows that joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.” (People v. Arias (1996) 13 Cal.4th 92, 127 [51 Cal.Rptr.2d 770, 913 P.2d 980].) No gross unfairness occurred. All of the charges were quite inflammatory in nature.

Though the murder case was buttressed by defendant’s confession, the crimes against Charlotte J. and Yolanda A. were proved by strong evidence. And as explained, the evidence of each set of crimes was cross-admissible to show intent and plan. No due process violation occurred. Because the evidence was cross-admissible to show intent, we also reject defendant’s contention that the court erred by failing to instruct the jury, on its own motion, that it should not consider evidence of the assault on Yolanda A. for any other purpose, including propensity for violence (see Evid. Code, § 1101, subds. (a), (b)).

Defendant correctly notes that the trial court ordered the prosecution not to urge the jury to consider evidence of the attack on Yolanda A. for any other purpose: “Mr. Hearnsberger [the prosecutor]: Well, I think you’re telling me that I cannot argue from the [Yolanda A.] attack that the jury can use that in any way with regard to the defendant’s intent or any other type of— “The Court: That’s correct. “Mr. Hearnsberger: —[Evidence Code section] 1101(

b) type argument— “The Court: That’s correct. “Mr. Hearnsberger: —toward the Chandler or— “The Court: That’s correct. “Mr. Hearnsberger: I disagree with the court’s ruling and I’d like to be heard in that regard, but I don’t need to be right now. “The Court: That’s fine.” Though the record shows that the court supervised the trial of this case with extraordinary competence and diligence, we agree with the People that this ruling was erroneous. As we have explained, evidence of each assault could be used under Evidence Code

section 1101, subdivision (b), to show defendant’s mental state for each other assault, namely his intent. The prosecution introduced evidence that he intended to kill Charlotte J. and would have done so had Ramage not interceded; that he intended to kill Yolanda A. and would have done so had Paviola Ambriz not interceded; and that he intended to and did kill Chandler. The jury rejected the prosecution’s contention that he intended to kill Yolanda A., but it was a tenable theory for which evidence was cross-admissible under subdivision (

b) of Evidence Code

section 1101. The court’s tentative ruling was erroneous. Because defendant’s contention that the court should have instructed the jury not to consider the Yolanda A. evidence for any other purpose is predicated on a ruling to which he was not entitled, his contention does not withstand scrutiny. And if he is arguing that the court had a sua sponte duty at least to instruct the jury not to consider evidence of each attack as improper character evidence, we disagree: “in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” (People v.

Collie (1981) 30 Cal.3d 43, 64 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], fn. omitted.) Propriety of Eyewitness’s Pretrial Identification of Defendant Defendant contends that the state denied him due process of law under the Fourteenth Amendment to the United States Constitution and

article I,

section 15, of the California Constitution (hereafter the due process clauses) when the police showed Charlotte J., the victim of the rape that defendant was suspected of committing about six months before the murder, a single photograph of him in profile following a pretrial photographic lineup containing six pictures. We cannot agree. Defendant filed a motion seeking to exclude Charlotte J.’s identification of him in court. He contended in effect that allowing her to do so would violate the due process clauses. The court held an in limine hearing on the matter.

At the hearing, Charlotte J. testified that she is nearsighted. She was walking to her apartment when someone grabbed her from behind, knocking her glasses off as he covered her eyes. Nonetheless, as he was taking her to another location she “got a good look at . . . his side profile” before he shoved her head down. Later she would have nightmares containing an image of that profile. She could not describe her assailant in words to a police officer after the attack; she was “blocking everything out” and would have to see him to describe him. “I knew I could pick them out.

I knew if I saw them again on the street I could picture that. But to describe somebody” was difficult; she was reluctant to do it. She told a police officer that the assailant was five feet six inches tall, thin, and weighed one hundred thirty pounds, whereas defendant is five feet eleven inches tall and weighs one hundred fifty-five pounds. Later a second assailant, Ramage, joined them and the first man had him blindfold her. Ramage is five feet five inches tall and weighs one hundred forty-five pounds.

Aquino contacted her shortly after the murder, explaining that a similar crime had occurred at the same location. After having her read and sign a caution that the photographs he was about to show her might not contain any suspect in her case, he showed her two cards containing photographs. She “recognized instantly” Ramage’s likeness in one set of photographs.

Viewing defendant in another set of six photographs, she identified him less than positively, telling Aquino that he “looked familiar, but I needed a side profile.” She “didn’t want any doubt to be there in my mind at all . . . .” Aquino, who happened to have a photographic profile of defendant from the investigation but none of any other lineup participant, showed it to her (with some reluctance, as he was concerned about the legal implications), and asked her if the subject looked familiar. He told her it was the only profile he had, but that this fact should not influence her.

Seeing it, Charlotte J. recognized defendant, “broke down” and felt physically ill and scared. At the hearing she insisted that the profile “was [of] him. It is him. I don’t know what to say [¶] . . . [¶] to convince you [the trial court] that it is him. [¶] . . . [¶] Not only did I recognize him, but... it brought something out, too, you know. I

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