THE PEOPLE, Plaintiff and Respondent, v. RONALD HAROLD SEATON, Defendant and Appellant, 26 Cal. 4th 598

Opinion KENNARD, J. A jury convicted defendant Ronald Harold Seaton of one count of murder (Pen. Code, § 187), and it found true special circumstance allegations of robbery murder and burglary murder (§ 190.2, subd. (a)(17)(A) & (G)). The jury also found that defendant had personally used a dangerous or deadly weapon in the commission of the offenses. (§ 12022, subd. (b).) The trial court found that defendant had a prior conviction for a serious felony. (§ 667.) At the penalty phase, the jury returned a verdict of death.

Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the convictions and the judgment of death. I. Facts A. Guilt Phase—Prosecution’s Case Willis Jones was a retired auto mechanic living in Riverside, California. He walked with crutches, and at home he moved around in a wheeled chair, but he was otherwise in good physical condition. Jones’s grandson, Mitchell Hayes, lived next door to Jones. On the night of April 25, 1986, Hayes worked at his mother’s restaurant until about 10:35 p.m.

After leaving work, Hayes saw defendant arguing with his girlfriend, Thelma Garrett, on a street near Hayes’s home. Hayes recognized them because he was a friend of Garrett’s son and had been to the house where defendant and Garrett lived. After visiting a friend, Hayes headed home around 12:30 a.m. As he passed Jones’s house, he heard loud scuffling noises inside. Through the open door, he entered the living room and saw someone run to the bathroom. Hayes went to the kitchen to get a knife to use as a weapon. Finding none, he entered the bedroom and saw Jones’s body.

Unsure whether Jones was alive, Hayes telephoned the police by calling 911, the emergency number. The 911 operator asked Hayes for Jones’s address. Hayes could not remember it, so he went outside to look at the number. As he reentered the house, defendant came out of a bedroom, his face masked by a scarf or bandana. Defendant said, “It’s not me, man,” and hit Hayes across the face. A fight began, during which defendant’s mask fell off. Hayes broke- free from defendant and ran into the street. Defendant then ran off in the direction of his own house.

Hayes went home and told his brother-in-law, Robert Pead, what had happened. Pead went to Jones’s house next door and found him lying on his bedroom floor with a hammer on his chest. He was not breathing. When police officers arrived, Hayes told them defendant had attacked him and directed them to defendant’s house. The officers rang the doorbell. After five to 10 minutes 12-year-old Latisha Garrett, the daughter of defendant’s girlfriend, came to the door, followed shortly thereafter by defendant, who was then arrested. The police searched the house.

They found a pair of bloodstained pants in the attic and a bloody pillowcase in defendant’s bedroom. There were bloodstains on a bathroom towel and a spot of blood on the bathroom sink. A wet pair of men’s undershorts, stained with blood, was hanging on a balcony railing, and a wet pair of men’s tennis shoes was inside a bedroom cupboard. Jones’s bedroom had been ransacked. Bloody shoe prints were on the bedroom floor, on a drawer that had been pulled out of the dresser, and on items of clothing strewn on the floor. A suitcase on Jones’s bed contained a bloody hammer.

Edith Hayes, Jones’s daughter, did not recognize the hammer as belonging to her father. Also on the bed were a radio, a bloody pillow, a cardboard box, a tire iron, Jones’s wallet, and papers that appeared to have been removed from the wallet. Some of Jones’s property (a small television set, a fan, an electric drill, a package of ribs from the freezer, and two butcher knives) was stacked next to the front door, along with a pocketknife that did not belong to Jones. Dr. DeWitt Hunter performed an autopsy on Jones’s body. Jones had 44 crush-type lacerations to his face and head.

Most of the wounds were consistent with having been made by a blunt object such as a hammer, but several cuts behind his ear and on his hands appeared to have been caused by a knife. Based on Dr. Hunter’s examination of blood patterns depicted in photographs of the scene, he concluded that Jones had suffered two separate attacks: one at the head of the bed, where he probably lay bleeding for between five and 15 minutes, and the other at the foot of the bed where his body was found. Dr. Hunter also concluded that Jones was alive during the second attack.

This conclusion was based in large part on his observation of what appeared to be clotted blood at the foot of the bed, and his belief that blood that flows from a wound while the victim is alive tends to clot, while postmortem blood does not. Faye Springer, a criminalist with the California Department of Justice, agreed with Dr. Hunter that Jones had been attacked twice, based on her examination of photographs of the scene that depicted the blood splatter patterns on the walls, ceiling, and furniture in the room. She expressed no view on whether Jones was alive during the second attack.

Based on photographs of Jones’s body, criminalist Springer concluded that two incisions on Jones’s left forehead were consistent with having been made with the claw end of the hammer found at the scene, and that another mark on his head appeared to be a stab wound. She also conducted tests on the bloodstained pants found in defendant’s attic. She testified that the blood in the stains was not defendant’s, that it contained characteristics present in only .03 percent (3 in 10,000) of the Black population, and that Jones’s blood had those characteristics.

Springer also testified that the bloody shoe prints on Jones’s floor were of the same size and tread design as the wet tennis shoes found in defendant’s bedroom cupboard. B. Guilt Phase—Defense Case Defendant admitted killing Jones, but he claimed he did so in a sudden quarrel or heat of passion, not in the commission of a burglary or robbery. He testified that on the evening of the killing he went with his girlfriend Thelma Garrett to buy groceries and gin. On their way home, Garrett stopped at Jones’s house and said she was going to borrow money from Jones.

She asked defendant to take the groceries home and feed her children, then to return to Jones’s house to escort her home. Defendant did so. Back at Jones’s house, he saw Garrett, naked, standing between Jones’s legs. Defendant was angry and wanted to hurt Garrett and Jones. After he and Garrett left Jones’s house they argued, and defendant “body-slammed” Garrett, throwing her to the ground. At Garrett’s suggestion, she and defendant then used the $24 Jones had loaned her to buy cocaine. They went home, smoked the cocaine, and shared a pint of gin.

Defendant drank most of the gin, and he also drank a quart of beer. Defendant continued to argue with Garrett. Finally, he told her he was going to play chess. Instead, he went to Jones’s house to ask what had happened between Jones and Garrett. There, he drank some of Jones’s homemade wine. As they talked, Jones called Garrett a “bitch,” and defendant, angry, hit Jones with his fist. Jones fell on the bed, then sat up with a hammer in his hand. Defendant grabbed the hammer and hit Jones with it until Jones stopped moving.

When he realized Jones was dead, defendant panicked, and decided to make it appear as if Jones had been robbed. He ransacked the house and stacked items belonging to Jones next to the door. He threw Jones’s body on the floor, took his wallet, and dumped the contents on the bed. When he was about to leave, he saw Mitchell Hayes in front of the house. When defendant went out the front door, Hayes attacked him. Defendant denied wearing a mask during the fight. Defendant admitted prior felony convictions for robbery and assault with a deadly weapon. Thelma Garrett testified on defendant’s behalf.

Her testimony mirrored defendant’s in most respects. In explaining why she had taken her clothes off at Jones’s house, she said she had occasionally worked as a prostitute, but maintained that defendant had not known she did, thus explaining his anger when he saw her with Jones. On rebuttal, Riverside Police Officer Ronald Mackey testified that Garrett had made a tape-recorded statement to him admitting that defendant had known she was a prostitute. Dr. Irving Root, a pathologist who had performed more than 18,000 autopsies, challenged the testimony of Dr.

DeWitt Hunter, the pathologist who had testified for the prosecution. Dr. Root disagreed that certain cuts on Jones’s head were knife wounds, concluding that they most likely were inflicted by the claw end of a hammer. He also disagreed with Dr. Hunter’s testimony that Jones was attacked at two separate locations in the bedroom and was probably alive at the time of the second attack. In Dr. Root’s view, the lack of bleeding under the skull was evidence that many of the head wounds occurred when Jones was dying or dead. He explained that Dr.

Hunter was wrong in stating that blood flowing from the body after death does not clot. In Dr. Root’s opinion, Jones became unconscious within a minute after defendant began hitting him and he died within five minutes, before he was moved to the second location. The large pool of blood at the location of the alleged second assault, he testified, had simply drained from the body, and it was not “medically reasonable” that an attack occurred there. C.

Penalty Phase—Prosecution’s Case The prosecution presented evidence that on September 5, 1980, defendant and another man entered the Lucky Greek restaurant in Riverside and demanded money. Defendant wore a stocking over his head and carried a knife that he held next to the neck of dishwasher Alberto Gil. The other robber was armed with a sawed-off shotgun. Co-owner George Zois took money from the cash register and handed it to the robbers, who fled. Riverside police officers quickly arrested them, and retrieved the gun and an unspent shotgun shell from the bushes where defendant had thrown them.

Defendant entered a plea of no contest to felony charges of robbery and assault with a deadly weapon. The prosecution introduced evidence that defendant had three other prior felony convictions: two counts of second degree burglary, in Riverside County in 1964, and one count of larceny from the person in Michigan in 1967. D. Penalty Phase—Defense Case Warren Seaton, one of defendant’s younger brothers, testified he and defendant grew up in a large family that included 18 children, some of whom were half brothers and sisters. Defendant treated Warren well.

When their parents separated in 1963, some of the children, including Warren and defendant, were left to fend for themselves. Warren, who was 12 years old at the time, lived on the streets, eating from trash cans and sleeping in empty houses, until his mother found him several months later. The brother, sister and 13-year-old son of Thelma Garrett, defendant’s girlfriend, each testified that defendant treated Garrett well and was a loving father to Garrett’s children, and that the children were happy and well fed even when defendant and Garrett were using drugs.

This testimony was corroborated by Warren Seaton and his wife. Dr. Edward Conolley, a clinical psychologist, performed a psychological assessment of defendant. He concluded that defendant suffered from an anxiety disorder, which he described as an “atypical combination of avoidant, paranoid, and borderline” personalities. Defendant experienced chronic anxiety about his relationships with women and had been affected by many years of substance abuse. Defendant had an IQ of 80, which Dr. Conolley described as “substantially lower than average.” According to Dr.

Conolley, defendant’s chronic anxiety about his relationships with women was increased when he saw Thelma Garrett, his girlfriend, in a sexually suggestive position with the victim, Willis Jones. These fears were exacerbated by Jones’s comments about Garrett and by the cocaine and alcohol defendant had ingested shortly before he killed Jones. As a result, defendant suffered from “impaired judgment and poor quality of psychological thought processes” on the night of the murder. In Dr. Conolley’s view, defendant would do well in a structured prison setting. II. Guilt Phase Issues A. Pretrial Issues 1.

Motion to suppress evidence Shortly after the murder of Willis Jones, police officers went to defendant’s house and arrested him when he came to the front door. The officers then briefly walked through the house, finding a bloody fingerprint in plain sight on a dresser or bookcase in an upstairs hallway. They then obtained a search warrant, relying on the bloody fingerprint as part of their showing of probable cause to search. On searching the house further, they found additional incriminating evidence.

Defendant moved to suppress this evidence, contending the initial search of the house was illegal, rendering the later search illegal as the “fruit” of that earlier search. The trial court denied the motion, citing three grounds:

(1) The search was justified by an exigent circumstance—the need to prevent the destruction of evidence on the premises; (2) even if the warrant application had not mentioned the bloody fingerprint, there would have been probable cause to issue a search warrant, and therefore the evidence obtained in the warrant search derived from an independent source; (3) even if the initial warrantless search violated the Fourth Amendment, the police officers had acted in good faith in conducting that search. Defendant challenges each of these reasons.

Because we agree with the trial court that exigent circumstances justified the search, we need not discuss the second and third grounds. “One established exception to the warrant requirement ... is when ‘exigent circumstances’ exist to justify a warrantless entry.” (People v. Wharton (1991) 53 Cal.3d 522, 577 [280 Cal.Rptr. 631, 809 P.2d 290].) For instance, a police officer who has probable cause to believe a dwelling contains evidence of a crime and has reason to fear imminent destruction of the evidence may enter the dwelling to “secure” it without first getting a warrant. (People v.

Bennett (1998) 17 Cal.4th 373, 384-385 [70 Cal.Rptr.2d 850, 949 P.2d 947].) Here, police had probable cause to believe defendant’s house contained evidence linking defendant to the just-committed murder of Willis Jones. Arriving at the scene of a homicide, they learned that a man had just been beaten to death, that defendant had attacked the man’s grandson when he entered the man’s house after hearing a disturbance, and that defendant had thereafter fled the scene. Thirty minutes thereafter, after the grandson had brought them to defendant’s home, they knocked on defendant’s door.

No one answered for five to 10 minutes, during which time they heard noises that sounded like objects being moved. Based on these circumstances, the officers could reasonably fear that unless they entered, persons in the house would destroy evidence. As one commentator has explained: “[I]f the exigent circumstance being responded to is the possibility that there may be other persons within the premises who might destroy evidence, then the logical first step is a ‘sweep’ of those premises to see if in fact anyone else is present.

If no one is found, then the exigency has ended and the police should then merely maintain control of the premises while a search warrant is obtained . . . .” (3 LaFave, Search and Seizure (3d ed. 1996) § 6.5(b), p. 353, fn. omitted.) That is precisely what occurred here: The officers made a cursory sweep through defendant’s house, which took no more than three minutes, after which they obtained a warrant before conducting a more thorough search. We therefore agree with the trial court that the initial search was proper.

As a result, the officers’ observation of the bloody fingerprint did not violate the Fourth Amendment and use of that observation in the warrant application was permissible. Defendant also challenges the validity of the search warrant because it was signed by a magistrate who, defendant says, had a conflict of interest. In 1980, as a deputy in the Riverside County District Attorney’s Office, the magistrate had prosecuted defendant for a felony.

The magistrate was later elevated to the superior court and assigned to preside over defendant’s capital trial, but he recused himself when the 1980 matter was brought to his attention. Defendant did not move to quash the search warrant, however, when he learned of the magistrate’s alleged conflict of interest. His failure to do so precludes him from raising the issue for the first time on appeal. 2. Speedy trial Defendant was arrested on April 26, 1986. Jury selection in his trial began on September 26, 1988.

He contends the 29-month delay between arrest and trial violated his federal constitutional right to a speedy trial. Defendant’s case was continued many times, sometimes at defendant’s request, sometimes at the request of the prosecution. On each occasion defendant waived his right to a speedy trial during the period for which the continuance was granted. At no time did he object to any continuance or move to dismiss on the ground that the state had violated his speedy trial right. As a result, defendant failed to preserve his right to a speedy trial under California law. (People v.

Wright (1990) 52 Cal.3d 367, 389 [276 Cal.Rptr. 731, 802 P.2d 221].) But defendant maintains, relying on Barker v. Wingo (1972) 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed.2d 101] (Barker), that he did not give up his right to assert that the delay in bringing him to trial violated his federal constitutional right to speedy trial. As we shall explain, he is wrong. In Barker, the United States Supreme Court considered the “demand” rule, then prevalent in most states, which required defendants to affirmatively object to a continuance to preserve the right to claim the continuance violated the right to speedy trial.

The high court rejected the demand rule, explaining that a defendant’s mere silence in the face of a continuance does not waive the constitutional right to speedy trial because a waiver occurs only when there is a conscious relinquishment of a known right. (Barker, supra, 407 U.S. 514, 525-528 [92 S.Ct. 2182, 2189-2191].) It held that in determining whether the prosecution’s failure to promptly bring a defendant to trial violated the defendant’s speedy trial right, courts must evaluate four factors: the length of delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant. (Id. at p. 530 [92 S.Ct. at pp. 2191-2192].) Under Barker, supra, 407 U.S. 514, 528 [92 S.Ct. 2182, 2191], if defendant had remained silent when the trial court granted the prosecution’s motions to continue his case, he could still have maintained on appeal that the continuances violated his federal constitutional right to speedy trial.

But defendant did not simply remain silent. Each time the trial court continued the case, he either sought the continuance or personally “waived time”: that is, he formally and knowingly relinquished his right to a speedy trial for the period covered by each continuance. As a result, he may not assert on appeal that the state violated that right. B. Jury Selection Issues 1.

Underrepresentation of racial and ethnic minorities in the jury pool and jury panels Defendant contends Riverside County’s jury selection method resulted in a unconstitutional underrepresentation of Black and Hispanic persons in the jury pool and the panels from which his jury was drawn. He did not raise this issue in the trial court, although his counsel was aware of ongoing proceedings in other cases challenging Riverside County’s juror selection practices on this ground. (See generally People v.

Jackson (1996) 13 Cal.4th 1164, 1192-1195 [56 Cal.Rptr.2d 49, 920 P.2d 1254] [discussing challenges to Riverside County juror selection practices at the time of defendant’s trial].) He therefore relies on evidence outside the record to support this claim, asserting he is entitled to do so because the information was unavailable to him at the time of trial. Because defendant relies on evidence outside the record, his claim is not properly before us in this appeal. The same of true of his related argument that trial counsel was ineffective for failing to preserve the jury cross-section claim. 2.

Juror comments during jury selection During jury selection, one prospective juror said the justices of this court were “wasting their time” in deciding capital appeals, and- he “did not believe in the judicial system” because “[i]f a person is found guilty by his peers, he should get the death penalty.” Another prospective juror said that if a defendant was brought to trial, “you may as well be done with them right away.” Neither was selected to sit on the jury.

Nevertheless, defendant contends the other prospective jurors who heard these comments could not be fair, and that he was therefore denied a trial by an impartial jury. Defendant has not preserved this issue for appeal, because he did not challenge for cause the prospective jurors who heard these comments. Had he done so, however, the challenge would not have been meritorious. Occasional criticism of the judicial system by prospective jurors is an inevitable by-product of voir dire.

When, as here, the critical comments are isolated and do not pertain to the facts of the offense charged, the prospective jurors who hear them are rarely if ever “contaminated” to such a degree that they cannot be fair. Moreover, defendant acknowledges that none of the jurors who participated in deliberations heard the prospective jurors’ views.

Defendant points out that a juror who sat through most of the trial (but was excused before deliberations) heard one comment and an alternate juror heard the other, but the record provides no support for his speculation that either of them mentioned the statements to the jurors who decided the case. 3. Improper questions to jurors about their attitudes regarding the death penalty Defendant asserts the trial court erred and the prosecutor committed misconduct during the individualized questioning of prospective jurors about their attitudes regarding the death penalty.

Because defendant did not object at trial, he has not preserved these issues for appeal. (People v. Medina (1995) 11 Cal.4th 694, 741 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Moreover, as we shall explain, even if he had preserved the claims, they lack merit. Defendant argues that during the questioning, the trial court made com-. ments implying it believed defendant was guilty of murder, that he used a hammer in committing the murder, and that the special circumstance findings were a foregone conclusion. These comments, he contends, directed the jury to convict him of capital murder. We disagree.

The court described the role of a jury in a capital trial, explaining that a penalty phase would result z/the jury convicted defendant of first degree murder and found at least one special circumstance allegation true. It never implied a belief in defendant’s guilt. Defendant’s argument to the contrary is based on quotations from isolated fragments of the court’s comments, misleadingly taken out of context. Defendant also contends the prosecutor’s comments during this phase of voir dire predisposed the jury to return a death verdict if the trial resulted in a penalty phase.

In describing the penalty phase of trial, the prosecutor gave illustrations of aggravating and mitigating evidence. As an example of aggravating evidence, he often mentioned a hypothetical defendant with a history of many prior felony convictions. To illustrate mitigating evidence, he often mentioned a hypothetical defendant who had received the Congressional Medal of Honor, was a war hero, had saved someone’s life, or had no prior criminal history. The trial court used similar illustrations.

Defendant points out that the illustrations of aggravating evidence used by the prosecutor and the trial court resembled the aggravating evidence actually presented by the prosecution in this case, whereas the illustrations of mitigating evidence were wholly unlike defendant’s mitigating evidence. He argues the illustrations were faulty in three respects:

(1) The examples of aggravating evidence improperly drew on the facts of this case (see People v. Pinholster (1992) 1 Cal.4th 865, 915-918 [4 Cal.Rptr.2d 765, 824 P.2d 571]); (2) the illustrations indoctrinated the jury to disregard defendant’s mitigating evidence (which was not comparable to the mitigating evidence described in the illustrations) and to give greater weight to the prosecution’s aggravating evidence (which was comparable); (3) the illustrations restricted the jury’s consideration of defendant’s mitigating evidence, and diverted its attention to irrelevant factors. Our observations in People v.

Medina, supra, 11 Cal.4th 694, 741, where the prosecutor gave illustrations similar to those used by the trial court and the prosecutor in this case, are pertinent: “The prosecutor’s statements, though somewhat simplistic, were not legally erroneous, and defendant had ample opportunity to correct, clarify, or amplify the prosecutor’s remarks through his own voir dire questions and comments, [ft Moreover, as a general matter, it is unlikely that errors or misconduct occurring during voir dire questioning will unduly influence the jury’s verdict in the case.

Any such errors or misconduct ‘prior to the presentation of argument or evidence, obviously reach the jury panel at a much less critical phase of the proceedings, before its attention has even begun to focus upon the penalty issue confronting it.’ ” (Ibid.) Equally meritless are defendant’s claims that the prosecutor suggested the result here was a foregone conclusion by saying that even Jack Ruby (whose killing of Lee Harvey Oswald was broadcast on national television) had the right to a jury trial, or that the prosecutor improperly bolstered the credibility of police officers and denigrated the credibility of mental health professionals.

The cited remarks were within the scope of permissible voir dire. The trial court told some prospective jurors that if the aggravating circumstances were so substantial compared to those in mitigation that the death penalty was appropriate, the jury “will” return a verdict of death. Defendant argues these comments inaccurately described the jury’s task at the penalty phase of trial, citing footnote 16 of People v. Brown (1985) 40 Cal.3d 512, 544 [230 Cal.Rptr. 834, 726 P.2d 516].

In Brown we said that an instruction using similar language was potentially misleading and should be clarified, but we did not say it was inaccurate. In any event, here the court was conducting voir dire, not instructing the jury; its comments “were not intended to be, and were not, a substitute for full instructions at the end of trial.” (People v. Edwards (1991) 54 Cal.3d 787, 840 [1 Cal.Rptr.2d 696, 819 P.2d 436].) In this context, the court’s comments were proper. 4.

Rulings on challenges for cause Defendant argues the trial court erroneously denied seven of his challenges for cause that were based on prospective jurors’ views on the death penalty. As the United States Supreme Court has explained, a prospective juror whose views on the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath’ ” should be excluded for cause. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841]; see also People v.

Earp (1999) 20 Cal.4th 826, 853 [85 Cal.Rptr.2d 857, 978 P.2d 15].) If a prospective juror’s answers to questions are conflicting or equivocal, we defer to the trial court’s evaluation of the prospective juror’s state of mind. (People v. Mendoza (2000) 24 Cal.4th 130, 169 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v.

Mincey (1992) 2 Cal.4th 408, 456 [6 Cal.Rptr.2d 822, 827 P.2d 388].) To preserve the right to assert on appeal that the trial court wrongly denied a challenge for cause, a defendant must (1) exercise a peremptory challenge to remove the juror in question, (2) use all of his or her peremptory challenges, and (3) communicate to the court dissatisfaction with the jury selected. (People v. Crittenden (1994) 9 Cal.4th 83, 121 [36 Cal.Rptr.2d 474, 885 P.2d 887].) Here, defendant satisfied the first two of these requirements, but not the third.

Counsel explained that he believed he had the right to ask the court to grant him additional peremptory challenges, but that he had chosen not to do so, partly for “tactical reasons” and partly “because Mr. Seaton feels that he would like to have these 12 people hear his case.” As a result, defendant may not assert on appeal that the trial court should have granted his challenges for cause. 5.

Nonrandom selection process After the voir dire process had identified a pool of 88 prospective jurors who were not subject to exclusion for hardship or challenge for cause, the parties met on October 27, 1988, to select a jury. The clerk read the first 12 names from the list of 88 prospective jurors. When the prosecution or defense exercised a peremptory challenge, the clerk read the next name on the list. In this manner a jury was selected, but because the prospective jurors were not present, the jury was not sworn, nor were the alternates selected.

The next day, defendant told the court he had discovered that the list of names read by the clerk had not been scrambled, but had been based on the order in which the jurors had been questioned during voir dire. He objected that the jury list had not been randomly selected. The court and the parties discussed the matter at length, after which the court recessed without ruling on the objection.

When proceedings resumed the following week, defendant said he had decided not to move for a mistrial based on the problems in the selection process and was willing to have the case heard by the 12 jurors who had been selected. Defendant argues this method of jury selection violated Code of Civil Procedure sections 191, 198, and 222, which require jury selection to be random. But defendant waived his objections to the selection process, so he may not challenge it on these grounds on appeal. (People v.

Visciotti (1992) 2 Cal.4th 1, 37-38 [5 Cal.Rptr.2d 495, 825 P.2d 388].) Defendant claims his waiver was coerced by a beating inflicted by guards at the jail where he was housed pending trial, but as proof of these beatings he relies on exhibits in an action he filed in federal court against the Riverside County Sheriff’s Department. These exhibits are not part of the record in this case, so any claim pertaining to them must be raised on habeas corpus. (People v.

Bean (1988) 46 Cal.3d 919, 944 [251 Cal.Rptr. 467, 760 P.2d 996].) Defendant points out that, of the four Black and 11 Spanish-sumamed persons in the pool of 88 prospective jurors, only one Black person and six Spanish-sumamed persons were among the names called by the clerk; the others were not called because they were among the last jurors questioned in voir dire. He contends that as a result, the selection process described above denied him the right to a jury from a fair cross-section of the community, in violation of the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution.

Defendant’s failure to object on these grounds at trial bars him from asserting them on appeal. (People v. Davenport (1995) 11 Cal.4th 1171, 1195 [47 Cal.Rptr.2d 800, 906 P.2d 1068].) Moreover, an objection would have been futile, because there is no evidence that the jury selection process systematically excluded any racial or ethnic group. (See Duren v. Missouri (1979) 439 U.S. 357, 364 [99 S.Ct. 664, 668-669, 58 L.Ed.2d 579].) 6. Removal of juror Defense counsel’s closing argument in the guilt phase of trial began on December 7, 1988.

During a recess in the middle of the argument, the bailiff reported that Juror M. had a runny nose and Juror C. felt drowsy and believed she was coming down with the flu. The trial court adjourned for the day and questioned the two jurors. Juror M. said her illness was not serious, but Juror C. said she had been “throwing up everything” and needed rest. Defense counsel noted that Juror C. had caused “a lot of inconveniences,” and said if she was unable to continue the following day, he would stipulate that she could be excused.

The following day, the bailiff reported that Juror C. felt “not too good,” but better than the day before. Defense counsel again offered to stipulate to her removal. The court questioned C., who said she was “half and half,” but was not drowsy, was not taking any medication, and was able to continue.

After C. left the room, the trial court commented: “Well, you can still stipulate [to C.’s dismissal], but she sounds a lot—looks a lot better, acts a lot better.” Defense counsel, however, said he was still willing to stipulate that the court should excuse C., noting that “[s]he’s caused problems before.” The prosecutor joined in the stipulation, and the court excused her. Defendant now argues the trial court lacked good cause to dismiss Juror C., and the dismissal violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, their counterparts in the California Constitution, and

section 1089, which provides that the court may discharge a juror who “dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty . . . .” Any error, however, was invited by defense counsel, who stipulated that the court could excuse C. Defendant speculates that his counsel stipulated to the dismissal of C., the only Black juror on the panel, because counsel’s wife was expecting a child in two weeks, and he therefore wanted to end the trial as soon as possible.

Defendant argues counsel’s desire to be with his wife and child was not good cause to excuse C. and, by asking the court to remove her, counsel violated his duty to avoid conflicts of interest. But counsel never gave this explanation for his willingness to stipulate. Indeed, the previous day counsel had unsuccessfully sought a one-day continuance to work on his closing argument (see pt. II.C.12., post), showing that he was not trying to rush through the trial.

Counsel may have believed that C. would not participate actively in the deliberations because of her illness, or that it was otherwise in defendant’s best interests to stipulate to her dismissal. 7. Cumulative jury selection error Defendant argues that; considered cumulatively, the errors in jury selection violated his right to a fair trial. Because we have found no errors, his claim of cumulative error fails. C. Trial Issues 1.

Claims pertaining to the prosecutor’s two-beating theory Willis Jones’s grandson, Mitchell Hayes, testified that he heard “a bunch of scuffling,” in Jones’s house just before he entered, which, the prosecutor contended, could have been the sound of a second beating of Jones that occurred after defendant had stacked Jones’s property next to the front door. Two prosecution experts, Dr. Hunter and criminalist Springer, testified that Willis Jones was probably beaten at two different locations in his bedroom, and Dr. Hunter also testified that Jones was still alive at the time of the second beating.

In his closing argument, the prosecutor argued the jury could convict defendant of first degree felony murder and could find the felony-murder special-circumstance allegations true if it believed that either of two alternate scenarios occurred: Defendant came to Jones’s house without intending to steal, but after administering the first beating, defendant decided to loot Jones’s home and began stacking Jones’s property next to the door, after which he administered the final, fatal beating; defendant had decided to steal from Jones before he arrived at the house, and he killed Jones to accomplish the theft.

Defendant raises several claims of error arising from the prosecutor’s reliance on the first scenario, which he calls the “two-beating theory.” a. Prosecution’s asserted failure to give notice or provide discovery of evidence supporting its theory of felony murder Defendant maintains the prosecutor gave him constitutionally inadequate notice of the two-beating theory.

He points out that there was no testimony at the preliminary hearing that he inflicted two separate beatings on Jones, and that the first reference to this theory in the record occurred when jury selection was almost complete, when the prosecutor mentioned it during a hearing on the admissibility of certain photographs taken at the murder scene. Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. (U.S.

Const., 6th Amend, [“the accused shall enjoy the right. . . to be informed of the nature and cause of the accusation”]; id., 14th Amend.; Cal. Const., art. I, § 15.) “Notice of issues to be resolved by the adversary process is a fundamental characteristic of fair procedure.” (Lankford v.

Idaho (1991) 500 U.S. 110, 126 [111 S.Ct. 1723, 1732, 114 L.Ed.2d 173].) “The ‘preeminent’ due process principle is that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v.

Jones (1990) 51 Cal.3d 294, 317 [270 Cal.Rptr. 611, 792 P.2d 643].) Here, assuming for the sake of argument that defendant’s right to receive notice of the charges included the right to pretrial notice of the prosecution’s two-beating theory, defendant never objected to the lack of notice at trial, nor did he seek a continuance to prepare sufficiently to respond to the theory. As a result, he has not preserved the right to assert the lack of notice on appeal.

Moreover, even if the prosecutor was required to disclose the two-beating theory before trial, defendant was not prejudiced by learning of it during jury selection. Defendant vigorously cross-examined the prosecutor’s expert witnesses who presented the two-beating theory, and called his own expert, Dr. Root, who rebutted their testimony. The record contains no evidence that Dr. Root’s testimony was affected by the lack of earlier notice or that the defense could have developed any other more persuasive rebuttal had it received earlier notice.

Defendant contends the prosecution was required to give the defense notice of its two-beating theory before the preliminary hearing, and by failing to do so the prosecution “ambushed” the defense, thereby violating defendant’s right to due process of law under the Fourteenth Amendment to the federal Constitution. Not so. There is no evidence here that at the time of the preliminary hearing the prosecution planned to rely on the two-beating theory at trial, knew that the evidence it had gathered might support the theory, or had learned that its experts were prepared to testify in support of the theory.

Thus, even assuming that the prosecutor would have been obligated to disclose this theory had he been aware of it, he certainly was not required to disclose facts or theories of which he was unaware. Defendant asserts the prosecution failed to provide him discovery regarding the two-beating theory. His failure to raise this claim at trial bars him from asserting it on appeal. At any rate, he fails to show that the prosecution failed to provide him with any discoverable materials in its possession pertaining to the two-beating theory. b.

Trial court’s failure to ensure that defense counsel was prepared to defend against the two-beating theory Defendant asserts that when the prosecutor mentioned during voir dire that he intended to argue the two-beating theory, the trial court should have ascertained that defense counsel was prepared to defend against that theory, and that by failing to do so, the trial court violated defendant’s Fourteenth Amendment right to due process and his Sixth Amendment right to notice, counsel, and confrontation. To support this claim, defendant relies on Powell v.

Alabama (1932) 287 U.S. 45 [53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527], There, the high court held that a trial court violated the defendants’ due process rights by permitting a capital trial to go forward six days after the defendants were indicted and on the same day that attorneys were appointed to represent them at trial, even though the attorneys did not seek a continuance. Here, by contrast, defense counsel was appointed more than two years before trial, and the trial court had no reason to believe he was not prepared to proceed. Thus, no inquiry was called for.

Defendant also contends the trial court inquired whether defense counsel had a conflict of interest arising from his wife’s pregnancy, a circumstance that might cause counsel to rush through the trial so he could be with his wife and the new baby. As defendant points out, when a trial court knows, or reasonably should know, that defense counsel and the client may have a conflict of interest, it must inquire into the matter. (People v.

Jones (1991) 53 Cal.3d 1115, 1136 [282 Cal.Rptr. 465, 811 P.2d 757].) Here, defense counsel told the trial court that he and the prosecutor had agreed if the trial was still in progress when the baby was bom, it would be postponed to give counsel a little time off. The baby was due on December 21, 1988, so the planned postponement coincided with the Christmas holiday. The jury returned its verdict on December 9, 1988, and the court postponed the start of the penalty phase until January 3, 1989.

Under these circumstances, the trial court could reasonably conclude that defense counsel’s personal needs had been accommodated, and it had no duty to inquire further. c. Admissibility of expert testimony As previously mentioned, Dr. Hunter and criminalist Springer testified that Willis Jones was probably beaten at two different locations in his bedroom, and Dr. Hunter also testified that Jones was still alive at the time of the second beating. The prosecutor relied on that testimony as evidence of his two-beating theory.

Defendant asserts this testimony was inadmissible because it lacked adequate scientific foundation for the admissibility of expert scientific evidence. (See People v. Leahy (1994) 8 Cal.4th 587 [34 Cal.Rptr.2d 663, 882 P.2d 321]; People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; but see People v.

Stoll (1989) 49 Cal.3d 1136, 1156-1157 [265 Cal.Rptr. 111, 783 P.2d 698] [Kelly rule applies only to a “technique, process, or theory which is new to science,” that “effectively blindsides the jury”].) Because defendant did not object on this ground at trial, he cannot now raise this issue on appeal. (People v. Diaz (1992) 3 Cal.4th 495, 527-528 [11 Cal.Rptr.2d 353, 834 P.2d 1171].) Defendant contends his failure to object should be excused because he lacked advance notice of the content of the testimony by Dr.

Hunter and criminalist Springer, and he could not know their testimony would be based on unreliable scientific techniques until after they had testified. Assuming for the sake of argument that he lacked adequate notice, defendant could have asked for an offer of proof before Dr. Hunter and criminalist Springer testified; alternatively, as soon as they had finished testifying he could have objected and asked the trial court to strike their testimony. He did neither. Relying on People v.

Coleman (1988) 46 Cal.3d 749, 778 [251 Cal.Rptr. 83, 759 P.2d 1260], defendant contends that this court will overlook a party’s failure to object to the admission of evidence when necessary to prevent a miscarriage of justice, and he asks us to do so here. But Coleman does not so hold. Rather, it addresses whether, in unusual circumstances where the interests of justice require, this court can overlook a “technical flaw” in the form of an objection. (Id. at p. 777; but see People v.

Diaz, supra, 3 Cal.4th 495, 527 [noting that the authority for overlooking technical flaws in the form of an objection originated in a plurality opinion, which later cases have cited only for the purpose of finding it distinguishable].) The problem here is not that defendant made a technically insufficient objection, but that he made no objection at all. Defendant asserts his trial counsel’s failure to object to the testimony of Dr. Hunter and criminalist Springer was ineffective assistance of counsel.

Because the record does not reveal why counsel did not object, this claim rests on facts outside of the record, and may only be raised on habeas corpus. (People v. Lucero (2000) 23 Cal.4th 692, 728-729 [97 Cal.Rptr.2d 871, 3 P.3d 248].) d.

Legally and factually insufficient theory The prosecutor urged the jury to convict defendant of first degree felony murder and to find both the robbery-murder and the burglary-murder special-circumstance allegations to be true if it believed the two-beating theory (defendant came to Jones’s house without intending to steal, but after administering the first beating, he decided to loot Jones’s home and began stacking Jones’s property next to the door, after which he administered the final, fatal beating), or if it believed that defendant had decided to steal from Jones before he arrived at the house, and he killed Jones to accomplish the theft.

Defendant argues the two-beating theory was both legally and factually insufficient, thus requiring reversal of his murder conviction and the special circumstance findings. Defendant first contends the two-beating theory was legally insufficient to establish that the killing occurred in the course of a robbery. He relies on People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] (Green).

There, we explained: “[A] conviction of robbery cannot be sustained in the absence of evidence that the accused conceived his intent to steal either before committing the act of force ... or during the commission of that act; if the intent arose only after he used force against the victim ... the taking will at most constitute a theft.” (Id. at pp. 52-53, italics omitted.) According to defendant, Green holds that whenever a killer has rendered a victim unconscious and dying for a reason other than theft, and the killer then takes advantage of the situation to steal from the victim, the killer is not guilty of robbery.

Thus, he maintains, if he knocked Jones unconscious in the first beating, he did not commit a robbery if he thereafter formed the intent to steal. Defendant, however, misconstrues our decision in Green, supra, 27 Cal.3d 1. Under Green, when a killer’s only assaultive conduct occurs before forming the intent to steal, a robbery has not occurred, because there is no union of act and larcenous intent.

But if a killer wounds the victim, then decides to steal, and thereafter finishes off the victim to accomplish this purpose, the perpetrator has committed robbery, because at the time of the second attack the killer’s larcenous intent coincides with acts of force against the victim. Thus if, as the prosecutor theorized here, defendant first attacked Jones without the intent to steal, and he then decided to steal and finished Jones off to achieve this goal, he was guilty of robbery.

Therefore, the prosecutor’s two-beating theory was legally sufficient to support defendant’s conviction of first degree murder under the felony-murder rule (because the killing occurred in the commission of a robbery) and was legally sufficient to support the jury’s finding that the killing occurred in the course of a robbery. Defendant also asserts the two-beating theory was factually insufficient to support a finding that the killing occurred in the course of a robbery; that is, he argues there was no credible evidence that the second beating occurred or that the victim was alive when it took place.

Two expert witnesses for the prosecution (Dr. Hunter and criminalist Springer) testified that Willis Jones was probably beaten at two different locations in his bedroom, and defendant’s expert, Dr. Root, testified that in most respects he agreed with Springer’s testimony. But there was less evidence that Jones was alive at the time of the second beating. Springer did not express a view on this question, and Dr. Hunter based his conclusion that Jones was alive on the presence of clotted blood at the scene of the second beating, a theory that, the prosecutor acknowledged out of court, was “dubious.” (See pt.

II.C.2., post.) We need not, however, determine whether the evidence was sufficient to support the prosecutor’s two-beating theory. Both this court and the United States Supreme Court have held that when a prosecutor argues two theories to the jury, one of which is factually sufficient and one of which is not, the conviction need not be reversed, because the reviewing court must assume that the jury based its conviction on the theory supported by the evidence. (Griffin v. United States (1991) 502 U.S. 46 [112 S.Ct. 466, 116 L.Ed.2d 371]; People v.

Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].) Here, there was ample evidence to support the prosecutor’s second theory—mentioned at the outset of this discussion—that defendant entered the house with the intent to steal from Jones, and that he killed Jones to accomplish this purpose. Defendant wore a mask, rifled'through Jones’s wallet, ransacked his house, and stacked his property next to the front door. This evidence was sufficient to support the jury’s findings that defendant killed Jones in the course of a burglary and a robbery.

Defendant asserts the prosecutor “withdrew” this theory from the jury in closing argument by conceding that the jury could reasonably conclude defendant did not intend to steal when he entered the house. Not so. The prosecutor said the possibility that defendant initially lacked the intent to steal was “not the most persuasive

interpretation of [what happened] but nevertheless an

interpretation that may be reasonable.” (Italics added.) In context the prosecutor, fearing the jury might reject his theory that defendant intended to steal when he arrived at Jones’s house, argued that even if the jury found it “reasonable” that defendant lacked the intent to steal at that time, it should nevertheless convict him of capital murder. Contrary to defendant’s argument, the prosecutor never conceded that defendant did not intend to steal when he entered Jones’s house.

Defendant also contends the Griffin-Guiton rule, described above, is inapplicable here because the prosecutor withheld evidence that the two-beating theory was “dubious.” As we shall explain (see pt. II.C.2., post), the prosecution withheld no such evidence. Next, defendant asserts the two-beating theory was legally insufficient to establish that the killing occurred in the course of a burglary.

He is correct: Although the intent to commit any felony or theft, including the intent to unlawfully kill or to commit felonious assault, would support a burglary conviction, the felony-murder rule and the burglary-murder special circumstance do not apply to a burglary committed for the sole purpose of assaulting or killing the homicide victim. (People v. Garrison (1989) 47 Cal.3d 746, 788-789 [254 Cal.Rptr. 257, 765 P.2d 419]; People v.

Wilson (1969) 1 Cal.3d 431, 442 [82 Cal.Rptr. 494, 462 P.2d 22].) But the trial court correctly instructed the jury: “[I]f you enter a building to murder someone, that’s burglary, but it doesn’t count in this case.

It’s only a felony murder based on burglary if the entry was with the intent to steal, [ft If at the time of entry into Willis Jones’ residence the defendant had either the intent to assault or even the intent to kill but not the intent to steal, then the defendant may not be convicted of first-degree felony murder based on burglary as the underlying felony.” (Italics added.) As a result, the jury could not have been misled by the prosecutor’s assertion—which he mentioned only on one occasion in closing argument—that the jury could use the two-beating theory as a basis for finding that the killing occurred in the course of a burglary. (See People v.

Sanchez (1995) 12 Cal.4th 1, 70 [47 Cal.Rptr.2d 843, 906 P.2d 1129] [“[W]e presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.”].) Defendant argues that the evidence at the preliminary hearing was insufficient to support the order holding him to answer for murder with burglary and robbery special circumstances. Even if this were true, he would not be entitled to reversal of the judgment because he has not shown prejudice. (People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) Moreover, the evidence that defendant killed Jones, ransacked his house, and stacked his property next to the door amply supported the order holding defendant to answer for murder with special circumstances. 2. Prosecutor’s alleged reliance on false evidence and failure to disclose evidence impeaching Dr. Hunter As previously mentioned, Dr. Hunter, a pathologist, testified for the prosecution at the guilt phase of trial.

During the jury’s penalty phase deliberations, two newspaper articles were published that stated the Riverside County District Attorney’s office had lodged a complaint with the Riverside County Coroner’s Office about the quality of Dr. Hunter’s work and testimony. After the jury had returned its penalty phase verdict, the district attorney’s office gave defendant three internal memoranda critical of Dr. Hunter.

The memoranda, which were written after the jury returned its guilt phase verdict but before the penalty phase began, were authored by three deputy district attorneys and were addressed to Chief Deputy District Attorney Donald Inskeep. One of the memoranda was by the prosecutor in defendant’s case. It assessed Dr. Hunter’s testimony regarding blood clotting in this case as follows: “Dr. Hunter testified that ‘generally’ blood flowing from a dead person does not clot. This was subject to a few exceptions, none of which applied to our facts. I consider this opinion dubious.

My questions on blood clotting may have been answered by the defense when they called Dr. Irving Root. Dr. Root testified that blood flowing from a dead person definitely will clot.” The prosecutor also complained that Dr.

Hunter had not obtained or read his autopsy notes before testifying; that he had testified that certain wounds were “incisions” (that is, made by a sharp object like a knife), whereas his notes said they were “lacerations” (made by a dull object, such as the claw end of a hammer); and that he was “sloppy in procedure and careless in the preparation of reports.” The other two memoranda, written by different prosecutors, criticized Dr. Hunter’s performance on the witness stand in three other homicide cases. First, defendant contends the prosecutor committed misconduct by relying on Dr.

Hunter’s testimony when the prosecutor knew or should have known the testimony was false and misleading. He points out that not only did the prosecutor present testimony which his memorandum later described as “dubious,” but he relied on it in his closing argument to the jury. Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted. (Giles v. Maryland (1967) 386 U.S. 66 [87 S.Ct. 793, 17 L.Ed.2d 737]; Napue v.

Illinois (1959) 360 U.S. 264 [79 S.Ct. 1173, 3 L.Ed.2d 1217]; People v. Sakarias (2000) 22 Cal.4th 596, 633 [94 Cal.Rptr.2d 17, 995 P.2d 152].) Here, there is no evidence that the prosecutor had any doubts about the accuracy of Dr. Hunter’s testimony when Dr. Hunter testified. Rather, Dr. Root’s rebuttal testimony apparently led the prosecutor to question whether Dr. Hunter was correct when he testified that blood flowing out of a body after death does not clot.

Although prosecutors may have some experience with an expert’s subject area, they are ordinarily ill equipped to determine the validity of a scientific theory or the correctness of its application to a particular case. Scientific theories on which technical experts base their opinions must be generally accepted within the relevant scientific community to be admissible as evidence at trial, but general scientific acceptance of a theory is no guarantee of its accuracy. Moreover, even scientists who agree on a theory can disagree strongly on the correct application of that theory to the facts of a particular case.

To sift truth from error in expert testimony, we must rely on the ordinary tools of cross-examination and rebuttal, the jury’s power of analysis and evidence-weighing, and the court’s power to exclude scientific theories not accepted by the relevant scientific community. When, as here, the testimony of an expert witness for the defense causes the prosecutor to question the validity of testimony by the prosecutor’s own expert, the prosecutor is not obligated to reveal those doubts to the jury.

So long as the prosecutor’s doubts are based solely on the evidence presented at trial, the jury is capable of deciding which of the competing experts is the more convincing, and the prosecutor’s views have no bearing on that decision. Here, there is no evidence that the prosecutor’s doubts as to the validity of Dr. Hunter’s testimony were based on anything other than the testimony of Dr. Root, the expert witness for the defense. Thus, the prosecutor was entitled to rely on Dr. Hunter, notwithstanding his internal doubts as to which of the two experts was correct.

Defendant contends the three memoranda criticizing Dr. Hunter’s testimony in this and his other cases were “exculpatory evidence” the prosecution was required to disclose. Due process requires the prosecution to disclose exculpatory evidence that is material to the defendant’s guilt or innocence, or to punishment. (Kyles v. Whitley (1995) 514 U.S. 419, 438 [115 S.Ct. 1555, 1567-1568, 131 L.Ed.2d 490]; In re Sassounian (1995) 9 Cal.4th 535, 543-544 [37 Cal.Rptr.2d 446, 887 P.2d 527].) This duty includes disclosure of material evidence impeaching prosecution witnesses. (Kyles v.

Whitley, supra, 514 U.S. 419, 433 [115 S.Ct. 1555, 1565]; In re Sassounian, supra, 9 Cal.4th 535, 544.) Exculpatory evidence is material if it creates a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed. (In re Sassounian, supra, 9 Cal.4th 535, 544.) We first consider the two memoranda written by prosecutors describing Dr. Hunter’s testimony in cases other than this one. In these memoranda the prosecutors complained about discrepancies between what Dr. Hunter observed and recorded during autopsies and what he later testified to in court.

These complaints are not pertinent here. Defendant does not dispute that Dr. Hunter accurately described his observation of clotted blood around the murder victim. Instead, defendant contends Dr. Hunter gave an erroneous theoretical explanation (blood does not clot after death and therefore the victim was alive when bleeding) for a fact (the blood was clotted) whose existence was undisputed. The information in the prosecutors’ memoranda would have shown Dr. Hunter to the jury as a careless and ill-prepared witness when testifying to his recollection of factual observations he had made earlier.

Here, defendant does not object to Dr. Hunter’s factual testimony, but to the conclusions Dr. Hunter drew from those facts. Even assuming that the prosecutors’ opinions of Dr. Hunter as a witness would have been admissible (see Evid. Code, §§ 780, 786, 787), their portrayal, although unflattering, would have done little to impeach his scientific explanation of the causes of the clotted blood. Accordingly, the information in the prosecutors’ memoranda was not material evidence because there is no reasonable probability that it would have led the jury to reject Dr.

Hunter’s expert opinion and, on that basis, to acquit defendant of first degree murder or to reject the robbery-murder and burglary-murder special circumstances. The prosecutor’s memorandum expressing his doubts as to Dr. Hunter’s testimony on blood clotting in this case presents a different issue. This memorandum was significant only in that it described the prosecutor’s personal doubts about the theory expounded by his expert witness. But such doubts are not a form of impeaching evidence that must be disclosed.

As a general matter, a layperson’s assessment of the persuasiveness of an expert’s opinion is not relevant or admissible. More specifically, every lawyer presenting a case at trial makes an internal assessment of the strengths and weaknesses of the witnesses as the trial proceeds. Such assessments need not be revealed to the opposing party. If the prosecution becomes aware of information that casts doubt on the accuracy of the testimony of one of its expert witnesses, it must disclose that evidence if it is material.

Here, however, there is nothing to suggest that, before trial, the prosecutor was aware of any such information. Rather, the prosecutor’s doubts about the accuracy of Dr. Hunter’s testimony were apparently based on the trial testimony of a defense witness, Dr. Root. Both defendant and the jury, of course, learned of this evidence at the same time as the prosecutor, when Dr. Root testified.

Notwithstanding the lack of any duty to disclose their internal doubts regarding the accuracy of expert testimony when those doubts arise during trial, prosecutors remain under the solemn obligation to present evidence only if it advances rather than impedes the search for truth and justice. Ordinarily, attorneys “may ethically present evidence that they suspect, but do not personally know, is false.” (People v.

Riel (2000) 22 Cal.4th 1153, 1217 [96 Cal.Rptr.2d 1, 998 P.2d 969].) But the prosecutor is “ ‘the representative ... of a sovereignty . . . whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done’ ” (Kyles v. Whitley, supra, 514 U.S. 419, 439 [115 S.Ct. 1555, 1568]), and the prosecutor may not become the “architect of a proceeding that does not comport with [the] standards of justice.” (Brady v. Maryland (1963) 373 U.S. 83, 88 [83 S.Ct. 1194, 1197, 10 L.Ed.2d 215]).

A prosecutor who, before trial, seriously doubts the accuracy of an expert witness’s testimony should not present that evidence to a jury, especially in a capital case. But here we have no reason to believe that the prosecutor had any such doubts at the outset of trial. Accordingly, we conclude the prosecution was not required to disclose the information in the prosecutors’ memoranda criticizing Dr. Hunter, and the prosecutor could present Dr. Hunter’s testimony on blood clotting and advocate the truth of that testimony to the jury notwithstanding his doubts. 3.

Placing nonrecord facts before the jury As previously mentioned, defendant called pathologist Irving Root, who disagreed with the testimony of Dr. Hunter, the prosecution’s pathologist, that murder victim Willis Jones had been beaten in two locations and was alive during both beatings. Dr. Root’s conclusions were based in part on his evaluation of photographs of blood splatters in the room where Jones was killed. In his cross-examination of Dr. Root, the prosecutor asked a series of questions about Dr. Root’s testimony in another case earlier that year. The prosecutor said the case was “People v.

Hallinski” and “Eric Nakata” had been the prosecutor. The prosecutor asked whether, in that case, Dr. Root had declined to interpret blood splatter evidence and had testified he did not consider himself an expert in that field. Dr. Root could not recall his testimony, but he testified that before the trial in that earlier case he had spent several hours discussing blood patterns with the defense and the prosecution.

Defendant contends the prosecutor’s cross-examination was misconduct, because the prosecutor asked questions that implied “facts” harmful to the defense, without a good faith belief that those facts were true. In support of this claim, he attempts to rely on a transcript of Dr. Root’s testimony in a case entitled People v. Halminski, in which the prosecutor was Erik Nakata. But the transcript on which he relies is not part of the record in this case. Moreover, the record does not disclose the basis for the prosecutor’s belief that Dr.

Root had declined to interpret blood splatter evidence and had testified that he was not an expert on such matters. Finally, defendant did not object to the prosecutor’s questions. As a result, this claim may be raised only on habeas corpus, not on appeal. (See People v. Carrera (1989) 49 Cal.3d 291, 317, fn. 18 [261 Cal.Rptr. 348, 777 P.2d 121].) Defendant further contends the prosecutor misstated Dr. Root’s testimony in closing argument by twice stating that Dr. Root testified he had read no books on the subject of blood splatters, although Dr.

Root actually testified that he had read some textbooks on the subject. Defendant’s failure to object to the prosecutor’s argument bars him from raising the issue on appeal. (People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610].) 4. Shackling Over defendant’s objection, the trial court ordered defendant to wear leg restraints during trial. The court gave him a choice of a leg brace that would be worn inside his pants or an ankle cuff with a small chain, which was less cumbersome and more comfortable but was more likely to be visible to the jury. Defendant chose the ankle cuff.

He now contends there was no showing of manifest necessity to justify the use of any restraints, and the court’s order therefore violated not only the federal Constitution and state decisional law, but also

section 688, which reads: “No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge.” In People v. Duran (1976) 16 Cal.3d 282, 291 [127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1], we held that a defendant may be physically restrained at trial only if there is a “manifest need for such restraints.” (See also Holbrook v.

Flynn (1986) 475 U.S. 560, 568-569 [106 S.Ct. 1340, 1346, 89 L.Ed.2d 525] [“shacklingG should be permitted only where justified by an essential state interest specific to each trial”].) “Such a ‘ “[m]anifest need” arises only upon a showing of unruliness, an announced intention to escape, or “[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained ....’” [Citation.] ‘Moreover, “[t]he showing of nonconforming behavior . . . must appear as a matter of record ....

The imposition of physical restraints in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion.” ’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 841 [72 Cal.Rptr.2d 656, 952 P.2d 673].) The trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant. (Ibid.) Here, the record fails to establish any “ ‘ “violence or a threat of violence or other nonconforming conduct” ’ ” (People v. Hill, supra, 17 Cal.4th 800, 841).

The impetus for restraining defendant apparently originated with the sheriff’s department. In the words of the trial court: “They [i.e., the sheriff’s department] don’t want him wholly unrestrained.

They want something, even while we are in trial.” The court added: “[T]he idea of a case like this, with no restraint at all and the door just a few feet away was a little too much for them, and it may be too much for me.” After trial, the court, elaborating on its reasons for restraining defendant, relied on the nature of defendant’s crime (a violent murder) and the architecture of the courthouse (the courtroom door was apparently less than 40 feet from the public entrance to the courthouse).

The circumstance that defendant was charged with a violent crime, however, does not establish a sufficient threat of violence or disruption to justify physical restraints during trial. (People v. Hawkins (1995) 10 Cal.4th 920, 944 [42 Cal.Rptr.2d 636, 897 P.2d 574]; People v. Duran, supra, 16 Cal.3d 282, 290-291.) Nor does the courthouse layout establish any individualized suspicion that defendant would engage in nonconforming conduct. Accordingly, the trial court abused its discretion in ordering defendant physically restrained during trial.

At a posttrial hearing on this issue, the trial court noted that “no record was made of what the jurors could actually see” of defendant’s shackles, although in voir dire one prospective juror said she found it difficult to presume defendant innocent because “I believe he has some type of restraint on him.” The trial court stated its belief that the jurors had not seen the shackles.

By that time, however, the placement of the counsel tables in the courtroom had been changed significantly, and no attempt was made to recreate the trial layout to determine whether defendant’s shackles would have been visible to the jurors. Even assuming that the jury knew defendant was shackled, however, defendant cannot rely on that knowledge to show prejudice. As mentioned earlier, when given a choice, defendant opted for the ankle cuff instead of a leg brace that was to be worn inside his pants and thus was more easily concealed.

In choosing the ankle cuff, defendant ran the risk of its visibility to the jurors, and he may therefore not now complain of prejudice arising from the jury’s observation of the cuff. Moreover, defendant admitted to the brutal killing of Willis Jones, claiming he had acted in the heat of passion. Given this admission, an occasional glimpse of defendant in shackles would not have affected the jury’s verdict. (See People v. Cunningham (2001) 25 Cal.4th 926, 988-989 [108 Cal.Rptr.2d 291, 25 P.3d 519]; People v.

Tuilaepa (1992) 4 Cal.4th 569, 584-585 [15 Cal.Rptr.2d 382, 842 P.2d 1142].) Defendant contends that even if his shackling was not prejudicial at the guilt phase, his shackling at the penalty phase necessitates reversal of the jury’s verdict of death. He argues that a trial court’s unjustified decision to shackle a defendant at the penalty phase of a capital trial requires reversal without an evaluation of prejudice, because it conveys a message of future dangerousness that renders the penalty phase unconstitutionally arbitrary and capricious under the Eighth Amendment to the federal Constitution.

He relies on Elledge v. Dugger (11th Cir. 1987) 823 F.2d 1439, 1450-1452. There, by a narrow two-to-one majority, a federal appellate court rejected a case-by-case evaluation of prejudice and apparently adopted a reversal per se rule when a defendant’s shackles, unjustifiably ordered by the trial court, are visible to the jury at the penalty phase of a capital trial. Decisions of the federal courts of appeal are not binding on this court. In any event, as discussed earlier, here any observations by the jury of defendant’s shackles were attributable to his decision to wear an ankle cuff rather than a leg brace.

Thus, reversal is not required. 5. Exclusion of evidence bearing on intent to kill The parties stipulated that a sample of defendant’s blood, obtained at 7:20 on the morning after the killing, contained a blood-alcohol level of .03 percent. When cross-examined by the defense, criminalist Faye Springer estimated, based on this sample, that defendant’s blood-alcohol level at the time of the killing would have been .13 to .14 percent.

When defense counsel asked whether a person with that quantity of alcohol in the blood would have “impaired judgment,” the prosecutor objected, and the parties discussed the matter with the judge in chambers. The prosecutor argued the question was irrelevant and beyond the scope of direct examination. Defense counsel said he would submit the matter and suggested as an alternative that he merely ask Springer how much beer a 185-pound man (defendant’s approximate weight) would have to drink to reach a blood-alcohol level of .13 or .14.

After hearing testimony from Springer in chambers, the trial court sustained the prosecutor’s objection to the latter question. Thereafter, the trial court told the jury it had sustained the prosecutor’s initial objection on the ground that defense counsel’s question fell outside the scope of direct examination. Later, during the testimony of defense witness Dr.

Irving Root, the prosecutor moved to exclude testimony relating to defendant’s level of intoxication at the time of the killing to the level of intoxication necessary to constitute driving under the influence of alcohol, which at that time was statutorily set at .10 percent. At a hearing outside the jury’s presence, the trial court expanded the issue to cover whether Dr. Root could offer any relevant testimony about defendant’s level of intoxication at the time of the killing. At the hearing, Dr.

Root testified that an individual with a blood-alcohol level of .13 would have impaired judgment and reduced inhibitions, but he could not say how great the impairment would be or predict how the individual would act in a given situation. When the trial court asked whether persons with that blood-alcohol level might be so affected that they would not form an intent to kill, Dr. Root replied: “I don’t think one can go that far.

I don’t think one can make the statement at any level of alcohol that the given individual would or would not form the intent to kill.” Asked to elaborate, he explained that the ability of such a person to form the intent to kill would be impaired, but not destroyed. The trial court then excluded Dr. Root’s testimony under Evidence Code

section 352, ruling the testimony would consume too much time and its probative value was “very slight compared to the possibility of confusing the jury.” Defense counsel then asked whether Dr. Root could testify about the effects of defendant’s cocaine ingestion on his behavior. Still in chambers, Dr. Root stated that use of large quantities of cocaine tends to result in aggressive behavior, an effect more pronounced in persons who are also under the influence of alcohol. The court concluded that its ruling excluding Dr.

Root’s proposed testimony regarding the effects of alcohol intoxication should also apply to his proposed testimony pertaining to the effects of cocaine and the joint effects of alcohol and cocaine. Defendant contends the trial court erred in sustaining the prosecutor’s objection when defendant asked criminalist Springer if the judgment of a person with a blood-alcohol level of .13 or .14 percent would be impaired.

Defendant asserts that although the court ostensibly sustained the objection on the ground that the testimony was beyond the scope of the prosecutor’s direct examination, its “real reason” for sustaining the objection was its belief that the evidence was irrelevant. We accept the trial court’s explanation for its ruling: The question was beyond the scope of direct examination. Defendant does not argue that this basis for sustaining the prosecutor’s objection was unsound. Defendant also faults the trial court for excluding Dr.

Root’s proposed testimony pertaining to the effects of alcohol, cocaine, and a combination of the two. He argues the evidence was relevant on the issue of intent to kill. Intent to kill was an element of the charge of first degree murder under the theory that the killing was premeditated, but not under the theory that the killing occurred in the course of a burglary or robbery; it was also an element of the special circumstance allegations. We find no error. Defendant testified that he was not drunk when he went to Jones’s house. Moreover, Dr.

Root’s proposes testimony that ingestion of the amount of alcohol allegedly consumed by defendant would impair but not destroy the ability to form an intent to kill contained little if any information a layperson would not know, and Dr. Root’s proposed testimony that the combined use of cocaine and alcohol may cause aggressive behavior shed little light on whether defendant intended to kill Jones. Under these circumstances, the trial court did not abuse its discretion when it excluded the testimony under Evidence Code

section 352. 6. Admission of photographs At the beginning of trial, the prosecution showed witness Edith Hayes a photograph that showed victim Willis Jones while alive. At the close of the prosecution’s case, the prosecutor did not offer the photograph into evidence, but he moved it into evidence after defense counsel showed the photograph to witness Thelma Garrett. Defendant did not object, and the trial court admitted the photograph. Defendant argues the photograph was irrelevant and therefore should not have been admitted.

He has not preserved the right to raise this contention on appeal, because he did not object to admission of the photograph at trial. (Evid. Code, § 353, subd. (a).) Defendant also contends the trial court erred in admitting certain autopsy photographs of the victim, Willis Jones. These photographs were admitted because they were relevant to the prosecutor’s two-beating theory (see pt. II.C.I., ante). Defendant argues that because that theory was “subsequently discredited,” the photographs should not have been admitted.

Whether or not the theory was discredited, the photographs were “relevant in establishing the fact that a murder had occurred.” (People v. Scheid (1997) 16 Cal.4th 1, 15 [65 Cal.Rptr.2d 348, 939 P.2d 748].) The trial court did not abuse its “ ‘broad discretion’ ” (id. at p. 18) when it concluded that the probative value of the photographs outweighed their prejudicial effect. 7. Admission of defendant’s statement to police After his arrest but before receiving the warnings against self-incrimination required by Miranda v.

Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974], defendant made a brief statement in which he said he had been asleep for the previous hour and one-half, he had just gotten out of jail, and he had not had sexual relations since his release. The prosecution sought to introduce this statement during its cross-examination of defendant. Defendant objected, claiming the statement was irrelevant, but the trial court ruled the statement was relevant to defendant’s credibility.

On appeal, defendant contends the trial court should have excluded the statement because it was obtained in violation of Miranda. Because defendant did not object on this ground in the trial court, he may not now raise this issue. (People v. Mattson (1990) 50 Cal.3d 826, 853-854 [268 Cal.Rptr. 802, 789 P.2d 983].) Defendant’s contention that the court should have instructed the jury that statements obtained in violation of Miranda may be considered only for impeachment also fails, because the court made no finding that the statement was obtained in violation of Miranda.

Defendant contends the trial court should have sustained his objection on the ground of relevance. Not so. His false account of his actions at the time of the killing was relevant to whether his

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