THE PEOPLE, Plaintiff and Respondent, v. STEVEN DAVID CATLIN, Defendant and Appellant, 26 Cal. 4th 81

Opinion GEORGE, C. J. On December 23, 1985, in an information filed in Kern County, defendant was charged with the 1976 murder of Joyce Catlin, his fourth wife (Pen. Code, § 187) and the 1984 murder of Martha Catlin, his mother. (§ 187.) It was alleged that the murder of Martha Catlin was committed for financial gain (§ 190.2, subd. (a)(1)), that the murder was intentionally committed by the administration of poison (§ 190.2, subd. (a)(19)), and that defendant was convicted of more than one offense of murder in the present proceeding (§ 190.2, subd. (a)(3)).

The information originally included a torture-murder allegation, which later was dismissed. On September 7, 1988, the information was amended to include, an allegation that defendant previously had been convicted of the 1984 first degree murder óf Glenna Kaye Catlin, his fifth wife. (§ 190.2, subd. (a)(2).) On June 1, 1990, the jury returned a guilty verdict on both murder counts and found true the murder for financial gain, murder by poison, and multiple murder allegations. Thereafter defendant admitted the truth of the prior-murder-conviction special-circumstance allegation.

On June 6, 1990, the jury fixed the penalty at death. This appeal is automatic. (§§ 190.4, 1239, subd. (b).) I. Facts A. Guilt phase evidence 1. The murder of Joyce Catlin Joyce Catlin, defendant’s fourth wife, died in Bakersfield on May 6, 1976. She had developed what appeared to be flu-like symptoms about three weeks before her death and, upon consulting a physician, was admitted to a hospital. Before admission, she complained of back pain, vomiting, and a sore throat. She was transferred to the hospital’s intensive care unit the day after her admission. Her lungs appeared to be affected. Dr.

Einstein, a lung specialist, treated her without success for possible viral or bacterial infection. She did not respond to various antibiotic medications. Her lungs failed to oxygenate her body sufficiently, and she required mechanical ventilation. Nineteen days after admission to the hospital, her lungs failed entirely and she died. An autopsy disclosed gross pulmonary fibrosis. Pathologist Dr. Bruce Swinyer, who performed the autopsy, testified that Joyce’s lungs were extremely heavy and fibrotic and that there was no indication of viral or bacterial infection that could have caused death.

The death certificate listed the cause of death as acute respiratory failure due to unknown microorganisms, but attending physicians suspected poisoning by paraquat, a highly toxic poison used in agriculture to control weeds. (Although several witnesses referred generally during the course of the proceedings to paraquat as a pesticide, technically it is an herbicide.) Dr. Einstein testified that the cause of death was pulmonary fibrosis. In this condition, the lungs develop massive scarring and are unable to function to exchange oxygen and carbon dioxide. He could not identify any natural cause of this condition.

He testified that in 1976, toxicological tests that could disclose the presence of paraquat more than 72 hours after administration did not exist. Tissue collected during the autopsy was preserved in formalin, which precluded later testing for the presence of paraquat. At trial, Dr. Einstein stated his opinion that Joyce died of paraquat poisoning, based in part on the opinion of Dr. Kilbum, a lung pathologist, and in part on the absence of any natural agent that could have caused her death. He also relied upon the clinical course of Joyce’s symptoms and the appearance of her lungs after death. Dr.

Kilburn, a professor of medicine and expert in lung pathology, examined tissue samples sent to him in 1976 by Dr. Swinyer. He testified that Joyce’s lung tissue almost was destroyed by fibrosis, that the fibrosis was caused by a chemical, and that the only chemical that could produce such fibrosis was paraquat. He explained that it could take up to 30 days or as little as 12 hours for paraquat to cause death, depending upon the dose. When he showed the slides to a visiting professor who was an expert in paraquat poisoning, the latter said that they constituted a perfect example of paraquat poisoning. Dr.

Ford, a clinical toxicologist employed by the Chevron Environmental Health Center, explained that paraquat poisoning progressed in typical stages. Initially, the patient experiences a burning sensation in the mouth, and then after about 12 hours develops symptoms such as nausea, vomiting, and diarrhea. These symptoms may persist for a few days, but by the seventh day after ingestion the patient may feel somewhat better. Some kidney impairment may follow, but normally is resolved after 14 days.

The lungs become affected about a week after ingestion, and by the third week they typically are so fibrotic that they cannot function. He noted that consistent with these typical stages, Joyce experienced vomiting and other gastrological symptoms for about seven days, then developed some kidney dysfunction. As that resolved, she complained of shortness of breath, and X-rays disclosed some marking of the lungs and edema. Her lungs continued to deteriorate, and the autopsy disclosed a fibrotic condition typical of paraquat poisoning. Dr.

Stephens, then the Chief Medical Examiner of the City and County of San Francisco, reviewed Joyce’s medical records and slides of her tissues. He also found the course of Joyce’s symptoms consistent with paraquat poisoning, and testified that he believed she died of such poisoning. In sum, these medical and toxicological experts gave their opinions at trial that the cause of Joyce’s death was paraquat poisoning, relying in large part upon her distinctive clinical symptoms and upon tissue analysis. The prosecution did not introduce direct evidence regarding the manner in which paraquat was administered to Joyce.

There was evidence that shortly before she became ill, Joyce and defendant attended a party where she showed signs of intoxication, and that shortly thereafter she developed severe gastric symptoms, including violent vomiting. There also was evidence that shortly after her hospitalization, defendant supplied Joyce with a milkshake. The following evidence related to defendant’s potential motive for killing Joyce.

Joyce had credit life insurance, which was used to pay off a $6,741 debt on an automobile, as well as an insurance policy paying up to $2,000 and a $5,000 life insurance policy, the benefits of which were paid to defendant. When Joyce was in the hospital, defendant said to her sister that he thought the credit life insurance covered both the couple’s house and their automobile. There also was evidence that defendant had engaged in extramarital affairs while married to Joyce, and that the couple had argued over a girlfriend of his.

Edith Ballew, who had been defendant’s third wife, testified that she and others suspected shortly after Joyce’s death that defendant was responsible for it. There was evidence that access to paraquat was controlled under state law, but that defendant had access to it in 1976 and 1977 when he worked as a mechanic for a large agricultural enterprise.

Several witnesses recounted defendant’s statements—some statements from 20 years before trial—indicating his belief that paraquat was an effective herbicide that was extremely dangerous to human beings, that he was aware of the effect of paraquat on the lungs, that he possessed agricultural poisons he had acquired at work, and that he had shown the father of his second wife a container of a poison he said would kill anything or anybody, a poison that he believed to be ideal for use in a murder because it could not be detected and because there was no antidote.

In 1975, defendant cautioned Joyce’s son not to enter his garage, which contained dangerous agricultural poisons, and warned the boy regarding the danger of contact with paraquat. 2. The murder of Martha Catlin Martha Catlin, defendant’s 79-year-old mother, died in Bakersfield on December 8, 1984, after an illness lasting two or three days. In 1982, Martha had a mild stroke. At that time, Edith Ballew contacted Martha’s physician, Dr. Sproule, and suggested that Martha had been poisoned with paraquat. Dr. Sproule reported finding no sign of poisoning. In September 1984, Martha again visited Dr. Sproule.

She had not been taking her medication for hypertension, and her blood pressure was high. When she returned to the physician on October 31, 1984, she complained of poor memory and reported poor eating habits. Against medical advice, she had been drinking wine. Dr. Sproule prescribed a cough syrup with codeine at that time. Edith Ballew visited Martha on Thursday, November 29, 1984, when Martha appeared in her usual state of health. On Thursday, December 6, 1984, however, Martha telephoned her friend Anna Stonebraker to request assistance because of a serious illness. Mrs.

Stonebraker testified that Martha appeared very ill, exhibiting swollen purple lips and mouth as well as dark circles under her eyes. When Martha presented herself at Dr. Sproule’s office, she had a reddish purple tongue and throat and had a temperature of 102 degrees. Dr. Sproule treated her with penicillin and asked her to return the next day. Mrs. Stonebraker was unable to care for Martha and left a message for defendant, asking his assistance, but he called back later and stated he was unable to come from his home in Fresno to Bakersfield, where Martha lived. Defendant telephoned Dr.

Sproule the next day and stated that he would send someone to stay with his mother. Mrs. Stonebraker took Martha back to Dr. Sproule on Friday, December 7, 1984. At that time Martha’s throat was still sore and purplish, and she had difficulty eating. The next day at 5:30 a.m., Dr. Sproule received a call reporting that Martha appeared to be dead. He sent an ambulance, and Martha was pronounced dead on her arrival at the hospital. Edith Ballew learned of Martha’s death on Sunday, December 9, 1984, and called at Martha’s home.

She found defendant there, and he stated that he had been to visit that week, heard that his mother had the flu, and sent a woman to come stay with her. An autopsy was performed, and tissue samples from Martha’s lungs and kidneys were sent to a Chevron laboratory in Richmond. The toxicological report concluded that Martha had ingested a significant amount of paraquat. Dr. Ford, the clinical toxicologist whose testimony with regard to Joyce Catlin’s death is described above, explained that until two or three years before trial, Chevron had been the sole distributor of paraquat in the United States.

He stated it was probable that Martha had ingested diluted paraquat six or seven days before her death. Dr. Dollinger, the pathologist who performed the autopsy, concluded after receiving the toxicological report that the cause of death was paraquat poisoning. Dr. Kilbum testified that Martha had lung damage consistent with paraquat poisoning. Dr. Kilbum reported that Martha was killed by the ingestion of paraquat, probably three to six days before her death, but that due to her frail condition, she died before the paraquat rendered her lungs highly fibrotic. Dr.

Stephens testified that, although it was possible Martha died of a heart attack, he believed her death was caused by paraquat poisoning. She had early signs of paraquat poisoning and had sufficient paraquat in her system to cause death. In sum, toxicological evidence and clinical symptoms led prosecution medical and toxicological experts to state that their opinion beyond a reasonable doubt was that Martha had died of paraquat poisoning. Defendant had made statements indicating a concern that his mother planned to alter her will to make the African Violet Society rather than defendant her primary beneficiary.

Although defendant faithfully had visited and cared for his mother in her later years, and planned to have her move from Bakersfield to Fresno to be closer to him, he had made statements indicating that he was tired of caring for her and wished she “would hurry up and die.” In addition, there was evidence that Martha disapproved of his many divorces and remarriages. Cash withdrawn by defendant and Martha from Martha’s bank account in November 1984 and intended as a down payment on a new home for her had not been used for that purpose, and apparently remained in defendant’s possession.

Defendant was the sole beneficiary of Martha’s will. Defendant was a weekly or biweekly visitor to Martha at the time of her death. Initially, the prosecution presented testimony of defendant’s employee that defendant had been absent from work during most of the week preceding Martha’s death, but the witness later concluded that he had been mistaken. The witness then reported that defendant, who lived in Fresno, left for Bakersfield either Thursday December 6, or Friday, December 7, 1984. Defendant had visited his mother on Sunday, December 2, 1984.

After defendant’s arrest for the murder of his mother, a bottle of paraquat dated April 1977 was discovered in a garage or workshop used by defendant and his former father-in-law in their independent auto-related businesses. The cap of this bottle bore defendant’s fingerprint. A jailhouse informant testified that defendant solicited his assistance in intimidating Edith Ballew, defendant’s third wife, who persistently had urged the authorities to investigate the charged crimes and to prosecute defendant for murder. The informant also recounted that defendant had stated: “I killed the bitches." 3.

Uncharged crime In addition to the evidence recounted above, a large volume of uncharged crime evidence was introduced indicating that defendant had murdered his fifth wife, Glenna Kaye Catlin, by administering paraquat. She died on March 14, 1984, after 22 days of hospitalization. Overwhelming evidence from clinical records and toxicological reports from tissue samples demonstrated that she had died of paraquat poisoning.

There was evidence of a public argument between Glenna and defendant a few days before she began exhibiting symptoms, as well as evidence that defendant had considered their marriage to be one of convenience, that he had been unfaithful, and that Glenna had become jealous. He received $56,785 in life insurance proceeds following her death, and there was evidence that he had displayed grief at her funeral but immediately thereafter had exhibited high spirits.

There was also evidence establishing that in 1977, defendant had warned Glenna’s half brother regarding the dangers of paraquat, noting in particular that it would damage the lungs. Evidence that defendant previously had been convicted at a separate trial of the murder of Glenna was not introduced until after the jury in the present case returned its verdict on the murder charges and the special circumstance allegations other than the one alleging the prior conviction for the murder of Glenna. At that point, defendant stipulated to the prior-murder-conviction special-circumstance allegation. 4.

Defense case Defendant testified at length in his own behalf, denying that he had poisoned any of the victims. He denied making statements indicating his belief that paraquat would be an ideal poison for a murder. He denied knowingly possessing paraquat and, through his own testimony and the testimony of others, demonstrated that the area in the garage or workshop in which the paraquat was found was an area devoted to his father-in-law’s automotive business. It was established that persons other than defendant and his father-in-law also had access to this garage.

Defendant’s roommate testified that defendant had returned to his Fresno home around 8:00 or 9:00 p.m. on December 6, 1984, the night Mrs. Stonebraker telephoned to report Martha’s illness. There was evidence that defendant had been in Fresno conducting business on December 3, 4, 6, and 7, 1984. In addition, defense evidence demonstrated that defendant’s home and place of business had been subjected to a thorough police search at the time of defendant’s arrest and that no paraquat bottle had been discovered.

The defense also presented evidence indicating that defendant’s father-in-law (Glenna’s father) had searched their joint workplace without finding the bottle of paraquat, but that when the police asked him to search again, he invited two boys to help him and found the bottle within a few minutes. Defendant also attempted to establish through the testimony of an expert witness that a fingerprint could have been planted on the bottle of paraquat, and pointed out the lax procedures under which the bottle had been transported to the police station and stored pending testing.

A person employed at the agricultural enterprise where defendant had been employed testified that defendant had worked there only as a mechanic, and the circumstances of his employment would have made it unlikely he could have obtained paraquat on the job. Defendant also pointed to evidence suggesting that his third wife, Edith Ballew, had been engaged in a vendetta against him, having urged the authorities to investigate each death involved in the present case as a murder. He presented witnesses who testified that he appeared to have a flourishing business and did not appear to be in need of funds.

Friends of defendant’s recalled that shortly before Joyce’s hospitalization, defendant had learned, upon his return from a trip to Mexico, that Joyce had fallen ill. Dr. Bayer, a toxicologist who had some experience with paraquat poisoning, testified that he could not determine beyond a reasonable doubt that Joyce had died from paraquat poisoning. He was of the opinion that her death might be attributable to an unknown virus. Dr.

Buteau, a Chevron toxicologist, testified that Martha’s medical records reflected she may have ingested as little as a tablespoon of paraquat (still a fatal dose in his opinion) and that she may have ingested it between two and seven days before her death. Dr. Russell, a pathologist at the University of California, Davis Medical School, testified that although Joyce’s lung damage was consistent with paraquat poisoning, it was also possible that it was caused by agents other than paraquat. Dr. Buteau had a reasonable doubt as to the cause of Joyce’s death.

Carol Johnson, a woman who had been dating defendant at the time of Martha’s death (and later married and divorced him), testified that she and defendant had visited Martha on Sunday, December 2, when she and defendant brought Martha a new television set. Martha complained that she had a sore throat, her ears were bothering her, and she was taking medication for flu-like symptoms. Johnson testified that defendant was not alone with his mother that day.

After considering the evidence, the jury found defendant guilty of the first degree murders of Joyce and Martha, and found true the murder for financial gain, murder by poison, and multiple-murder special-circumstance allegations submitted to it as to the murder of Martha. As previously noted, after the jury returned its verdict, defendant stipulated to the truth of the special circumstance allegation that he previously had been convicted of the first degree murder of Glenna. B.

Penalty phase evidence At the penalty phase of the trial, the prosecution introduced evidence establishing that in 1966, defendant assaulted his first wife in a fit of jealousy, choiring her and throwing her out of the automobile in which they were travelling. Later defendant picked her up, went to obtain aspirin, and returned home. Defendant presented the testimony of a number of members of a family he befriended who described his loyalty and helpfulness as a friend. A witness testified that defendant had saved her son’s life. Defendant also presented evidence of his exceptionally positive adjustment in prison.

Dr. Haney, a professor of psychology at the University of California, Santa Cruz, testified regarding the security precautions and the circumstances of confinement facing prisoners serving life sentences, and stated that such prisoners usually are compliant inmates. His review of defendant’s prison record caused him to predict a smooth adjustment to such confinement. Kenneth Howard, a sergeant at the state prison where defendant was incarcerated after his conviction for the murder of Glenna, testified regarding the circumstances of confinement and reported that defendant was a model prisoner.

Two supervisors at the prison testified regarding defendant’s excellent work habits and positive effect on other inmates. At the conclusion of the penalty phase, the jury returned a verdict of death. II. Discussion A. Guilt phase issues 1. Motion to dismiss for delay in prosecution Defendant contends that the trial court erred in denying his motion to dismiss count one, charging him with the murder of Joyce.

He claims that the court should have granted his motion because of the nine-year delay between the murder of Joyce and the date he was charged with the crime, and he contends the failure to dismiss constituted a denial of due process of law. Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay.

The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-507 [149 Cal.Rptr. 597, 585 P.2d 219]; see also People v. Morris (1988) 46 Cal.3d 1, 37 [249 Cal.Rptr. 119, 756 P.2d 843], disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5 [37 Cal.Rptr.2d 446, 887 P.2d 527]; People v.

Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910-912 [55 Cal.Rptr.2d 404].) A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. (See United States v. Lovasco (1977) 431 U.S. 783, 795 [97 S.Ct. 2044, 2051, 52 L.Ed.2d 752]; see also People v. Frazer (1999) 21 Cal.4th 737, 774 [88 Cal.Rptr.2d 312, 982 P.2d 180].) We have observed that “[prejudice may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.” (People v.

Morris, supra, 46 Cal.3d at p. 37.) In support of his motion, defendant offered the testimony of several witnesses. Joyce’s treating physician, Dr. Einstein, testified that at the time of her illness he suspected paraquat poisoning and requested an autopsy. He believed he had conveyed his suspicion to the district attorney’s office, but he did not form an educated conclusion that she died of paraquat poisoning until the mid-1980’s.

Joseph Johnson, who in 1976 was chief investigator for the Kern County District Attorney’s Office, confirmed that in 1976 defendant’s third wife, Edith Ballew, had contacted the office and accused defendant of murdering Joyce. Johnson assigned investigator Skinner to look into the accusation, although he did not have any admissible evidence of paraquat poisoning. In 1978 or 1979, a sergeant in the Kern County Sheriff’s Department received a similar communication from another of defendant’s ex-wives, but found that his office had no record of an investigation against defendant.

He contacted the district attorney’s office regarding the matter. An investigator at the Kern County Sheriff’s Department also received a communication from Edith Ballew accusing defendant of murdering Joyce by the administration of paraquat, but the office took no further action beyond conveying the information to the Bakersfield Police Department. Defendant also called as a witness John Armendariz, who had been an investigator for the Kern County Coroner’s Office until 1978. While he was so employed, Edith Ballew related her suspicions to him and he examined the coroner’s records regarding Joyce’s death. Dr.

Ambrosecchia, also of the coroner’s office, instructed him regarding the symptoms of paraquat poisoning, and Armendariz decided to send slides prepared at the time of the autopsy to the Bethesda Naval Hospital in Maryland for forensic examination. Dr. Ambrosecchia did not suggest he had any information about the case and, in fact, the autopsy had not been performed by the coroner’s office but by staff at Mercy Hospital.

At the end of 1977, Armendariz received a letter from the Bethesda laboratory stating that the slides were consistent with paraquat poisoning, but that because they had been prepared incorrectly in an inappropriate preservative, the laboratory could not test for paraquat. In opposition to the motion, the prosecutor offered the testimony of Dr. Bruschi, who admitted Joyce Catlin to the hospital in 1976.

The witness declared that at the time of her death he suspected paraquat poisoning but had no proof, particularly because he was informed at the time that no existing laboratory tests on autopsy tissue could disclose paraquat poisoning. Ronald Smith, a forensic toxicologist for the Kern County Coroner’s Office, testified that in 1977 a coroner’s investigator presented him with a tissue specimen jar containing Joyce’s tissue (brain, liver, lung, kidney, and spleen) and asked whether he could analyze the contents for paraquat.

After investigation, he determined that there was no toxicological test that could disclose paraquat in the tissue, because the tissue had been preserved improperly. Joyce’s tissue was kept in the office for a longer period than normally would be the case, and ultimately was destroyed when a new coroner took office. When Martha died, however, the coroner’s office requested an autopsy, and tissue from Martha’s body was properly preserved and was tested for paraquat.

Defendant contends the delay in charging him with the murder of Joyce caused him prejudice, in that two persons who had attended the autopsy performed on Joyce’s body had died before the 1990 trial, namely Dr. Ambrosecchia and Primus Jones, who also was employed by the Kern County Coroner’s Office. Defendant also complains of the loss of the letter from the Bethesda Naval Hospital stating that the slides of Joyce’s tissue had some characteristics of paraquat poisoning but that no paraquat could be found because of the preservative used.

He further complains that the jar of tissue samples referred to by Ronald Smith had been destroyed before he was arrested, that the Bakersfield Police Department records relating to Joyce’s murder had been destroyed, and that some of the labels on the tissue blocks that were prepared after Joyce’s autopsy had been lost. Finally, defendant contends he was prejudiced by his own loss of memory of the events of 1976 and by his inability to produce alibi witnesses to testify concerning his whereabouts when Joyce ingested paraquat or to testify regarding his lack of access to paraquat at the time.

Defendant’s claims of prejudice are weak. The evidence indicates that Dr. Ambrosecchia did not perform the autopsy, and there is no evidence suggesting that Ambrosecchia or Primus Jones would have testified favorably for the defense. Various witnesses testified that Joyce’s tissue could not be subjected to a chemical analysis for paraquat because it was preserved in formalin rather than frozen, and it appears that the missing letter from the Bethesda Naval Hospital was consistent with this view.

The loss of the jar containing tissue samples was insignificant, because preservation in formalin made it impossible to test for paraquat. Defendant does not suggest how records of the police investigation of the crime would have been relevant to his defense. As for defendant’s loss of memory and alibi witnesses, the details of defendant’s whereabouts at the time Joyce ingested paraquat were not highly significant, given his unlimited access to the victim and the circumstance that the paraquat could have been administered at any point over a lengthy period. Moreover, the delay in prosecution was justified.

Because of limitations in forensic science and because of the manner in which Joyce’s tissue had been preserved, it would have been extremely difficult or impossible to make out a case against defendant at or near the time of the murder. Even when foul play is suspected, when available medical evidence does not support the suspicion further investigation certainly is justified. (See People v.

Archerd (1970) 3 Cal.3d 615, 641-642 [91 Cal.Rptr. 397, 477 P.2d 421].) “Prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. . . . Investigative delay is fundamentally unlike delay undertaken by the government solely to gain tactical advantage over an accused ....

A prosecutor abides by elementary stan-. dards of fair play and decency by refusing to seek indictments until he or she is completely satisfied the defendant should be prosecuted and the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt.” (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 914-915; see also People v. Webb (1993) 6 Cal.4th 494, 528 [24 Cal.Rptr.2d 779, 862 P.2d 779].) By the time defendant was charged, of course, additional evidence of his guilt had emerged—particularly his involvement in the paraquat poisoning of two more persons. (See People v.

Archerd, supra, 3 Cal.3d at pp. 641-643 [developing medical and forensic techniques and defendant’s additional murders justified the filing of charges 11 years after the commission of a murder].) Contrary to defendant’s claim, the justification for the delay far outweighed the weak showing of prejudice presented by defendant.

We also observe that there was no evidence that the delay was undertaken in order to gain an advantage over defendant, but instead the evidence suggested the delay was caused by the limits of existing laboratory tests, by a mistake in preserving Joyce’s tissue in formalin, and by the early caution of medical experts as to whether to state an opinion on the cause of Joyce’s death. The trial court did not err in denying the motion to dismiss for delay in prosecution. 2.

Severance of counts Defendant contends that the court abused its discretion in denying his motions to sever count one, charging him with the murder of Joyce, from count two, charging him with the murder of Martha. He contends the error constituted a denial of his constitutional right to due process of law and a fair trial.

Section 954 provides that “[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .” The offenses in the present case were of the same class, and accordingly joinder was permissible. (People v.

Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259].) As we have explained: “ ‘ “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] ft[] . . .

Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’” (People v.

Bradford, supra, 15 Cal.4th at p. 1315.) Significantly, if evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, such cross-admissibility “ ‘ “ordinarily dispels any inference of prejudice . . . (Id. at p. 1316.) We examine the record before the trial court at the time of its ruling to determine whether the court abused its discretion in denying the severance motion. (People v.

Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610].) In a separate trial for the murder of Joyce, evidence that defendant had murdered Martha by paraquat poisoning would have been cross-admissible pursuant to Evidence Code

section 1101. “Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent.” (People v.

Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) In addition, “[t]o be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.” (Ibid.) The similarity, considering the degree of similarity and the number of common marks, should amount to a signature. (Id. at p. 370.) In order to be relevant as a common design or plan, “evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ ” (People v.

Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) We have explained that “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts,” and that “evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.” (Id. at p. 403, italics added.) In the present case, each count bore a number of distinctive common marks.

In each instance, the victim was a close female relative of the defendant—wife or mother. In each instance, the defendant stood to gain financially from the victim’s death. In Martha’s case, it was overwhelmingly established that the victim had ingested paraquat before death. Strong expert opinion evidence based on observations regarding the clinical course of the illness and the appearance of tissue removed at the autopsy established that the cause of death for Joyce also was paraquat poisoning.

Paraquat poisoning is rare, and its occurrence with respect to two close relatives of one person is unlikely to be a matter of chance or to be the result of a spontaneous impulse. When evidence of a third instance of the same type of poisoning is introduced, as it properly was in the present case, the inference regarding a common design or plan becomes very strong. (See People v.

Diaz (1992) 3 Cal.4th 495, 561-562 [11 Cal.Rptr.2d 353, 834 P.2d 1171] [when defendant claimed that hospital patient victims died of natural causes or due to negligence of hospital personnel, evidence that in an uncharged crime another victim attended by defendant died of lidocaine poisoning was relevant and admissible under Evid. Code, § 1101, subd. (b), to refute defendant’s claim as to the cause of death and to establish identity and modus operand!]; People v.

Ruiz (1988) 44 Cal.3d 589, 605-606 [244 Cal.Rptr. 200, 749 P.2d 854] [the abrupt disappearance of one wife under suspicious circumstances indicating foul play would be admissible to show identity of the perpetrator of the murder of defendant’s fifth wife, who disappeared under similar circumstances]; People v.

Archerd, supra, 3 Cal.3d at pp. 621, 628 [evidence that defendant had killed relatives by insulin poisoning was admissible evidence of modus operandi and knowledge of the means used to prove that he murdered other relatives by insulin poisoning].) We believe that these circumstances “dispel any inference of prejudice” arising from the joinder of the two counts. Even if we consider defendant’s other claims of prejudice, we observe that neither crime was more inflammatory than the other.

Further, contrary to defendant’s claim, it cannot be said that the evidence of defendant’s guilt of the murder of Joyce was particularly weak, especially in light of the proper admission of the evidence of the murder of Glenna by the same common plan. Defendant also claims prejudice on the ground that his right to an impartial jury was impaired because the joinder subjected the jury to voir dire on prospective jurors’ attitudes concerning the death penalty.

Defendant contends that at a separate trial on the noncapital count charging defendant with the murder of Joyce, the jury would not have been death qualified and persons opposed to the death penalty would not have been excluded. The exclusion from a jury of persons opposed to the death penalty, however, does not violate the state or federal constitutional right to an impartial jury. (People v. Jackson (1996) 13 Cal.4th 1164, 1198 [56 Cal.Rptr.2d 49, 920 P.2d 1254]; People v.

Ashmus (1991) 54 Cal.3d 932, 956-957 [2 Cal.Rptr.2d 112, 820 P.2d 214].) In a case in which defendants are tried jointly, a defendant charged with a noncapital crime does not have a right to severance on the ground that his or her jury no longer will be impartial if exposed to the death qualification voir dire required by a codefendant’s capital charges. (People v. Wimberly (1992) 5 Cal.App.4th 773, 794 [7 Cal.Rptr.2d 152].) Under defendant’s theory, a capital and a noncapital offense never could be joined—a proposition that certainly is not supported by our case law.

Defendant finally contends that joinder was prejudicial because having heard evidence of both crimes, the jury would believe “the only way to properly punish appellant for committing two murders (Joyce and Martha) was to find him guilty of Martha’s murder and thereby assure the death penalty.” We agree with respondent that the claim is speculative and is particularly unpersuasive because the matter of penalty was not under consideration at the time the guilty verdict was rendered.

In addition, because the evidence would have been cross-admissible even in separate trials, severance would not have avoided the result surmised by defendant. We conclude that the trial court did not abuse its discretion in denying defendant’s motion to sever the trial of counts one and two. 3. Separate guilt and penalty phase juries Defendant contends that the trial court erred in denying his motion for separate guilt and penalty phase juries. He claims a violation of his federal constitutional rights to an impartial jury, to a fair trial, and to a reliable sentencing determination.

Referring to the special circumstance allegation that he committed the murder of Martha after having previously been convicted of another murder (§ 190.2, subd. (a)(2)), defendant contends it is inherently unfair to have the same jury try the guilt and penalty phases of a capital case when one of the special circumstances is a prior murder allegation.

He contends that although the jury did not learn of the prior-murder-conviction special-circumstance allegation until after it had rendered its verdict in the guilt phase, he was forced to voir dire the potential jurors on their attitude toward a prior murder conviction in order to secure an unbiased penalty phase jury. He claims that this circumstance prejudiced the guilt phase deliberations, because voir dire questions hinted that defendant had suffered a prior murder conviction.

He also contends that trial of both phases by the same jury produced a penalty phase jury that, knowing now of the prior conviction, would be prejudiced by defendant’s earlier denials regarding the murder of Glenna. Defense counsel’s motion for separate juries was denied without prejudice to renewal at the conclusion of the guilt phase. It does not appear from our examination of the record that the motion was renewed.

Defendant claims, however, that the trial court totally failed to exercise its discretion with respect to his motion, because it denied the motion for separate juries solely under the mistaken belief that the motion could be entertained only at the conclusion of the guilt phase. It is true that the trial court erred in directing that the motion could be entertained only after the guilt phase verdict. (See People v. Rowland (1992) 4 Cal.4th 238, 268 [14 Cal.Rptr.2d 377, 841 P.2d 897].) The court apparently did not consider the merits of defendant’s motion. We believe, however, that the error was harmless. As

section 190.4, subdivision (c), provides: “If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider ... the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record . . . .” As we have explained, there is a “ ‘long-standing legislative preference for a single jury to determine both guilt and penalty.’ ” (People v.

Lucas (1995) 12 Cal.4th 415, 483 [48 Cal.Rptr.2d 525, 907 P.2d 373].) “[T]he ‘mere desire’ of defense counsel ‘to voir dire in one way for the guilt phase and a different way for the penalty phase,’ ” we have said, “ ‘does not constitute “good cause” for deviating from the clear legislative mandate . . . (People v.

Rowland, supra, 4 Cal.4th at p. 268 [counsel’s desire to voir dire guilt and penalty phase jurors differently depending on whether or not they would be exposed to other evidence of defendant’s other crimes did not require the empanelling of separate juries].) We do not believe that defendant’s concern regarding the asserted necessity for hypothetical voir dire questions regarding juror attitudes toward a prior murder conviction would establish as a “ ‘ “demonstrable reality” ’ ” that members of the jury panel would be “ ‘ “[unable] to perform the functions of a juror.” ’ ” (People v.

Bradford, supra, 15 Cal.4th at p. 1354.) Rather, defense counsel’s concern was one that commonly may occur when defense strategy changes between the guilt and penalty phases of a capital trial. We have observed, however, that “[i]n almost every capital trial, regardless of the special circumstances alleged, there will be evidence introduced at the penalty phase . . . which would otherwise be irrelevant or inadmissible in the determination of guilt.

Defense counsel are routinely faced with difficult tactical decisions in having to fashion voir dire inquiries that probe for possible penalty phase biases regarding such evidence, while stopping short of revealing information otherwise prejudicial and excludable in the guilt phase.

Certainly such will almost always be the case where the special circumstance alleged is a prior murder or murders. [Citation.] The mere desire to lessen or eliminate such tactical decisions in the voir dire of a capital jury, without more, . . . does not constitute ‘good cause’ for deviating from the clear legislative mandate . . . that both the guilt and penalty phases of a capital trial be tried by the same jury.” (People v. Nicolaus (1991) 54 Cal.3d 551, 573-574 [286 Cal.Rptr. 628, 817 P.2d 893].) As respondent points out, if defendant’s claim constituted good cause for separate juries, the policy of

section 190.4, subdivision (c), would be circumvented in every case in which a prior-murder special circumstance was alleged. In any event, it seems clear that because of the other-crimes evidence deemed admissible in the present case, prudent counsel would voir dire prospective guilt phase jurors—even for a separate guilt phase jury— extensively on their attitudes toward the other-crimes evidence, so that an additional question about actual convictions would add little if any prejudice.

Defendant, in fact, does not point to any specific voir dire question that might have informed jurors who served on defendant’s jury that defendant previously had been convicted of the murder of Glenna. Finally, the jury was instructed prior to the penalty phase that statutory provisions required they not be informed of the prior murder conviction until after the guilt verdict, out of concern for the defendant’s right to a fair trial, that neither defendant nor the prosecution had been permitted to disclose the evidence previously, and that this procedure was not to influence the verdict at the penalty phase.

Similarly, defendant’s claim that at the penalty phase the jury might have blamed defendant, because at the guilt phase he denied having committed the murder of Glenna, is speculative and would not constitute good cause requiring separate guilt and penalty phase juries. (See People v.

Pride (1992) 3 Cal.4th 195, 252 [10 Cal.Rptr.2d 636, 833 P.2d 643] [danger that the jury might blame the defense for failing to disclose prior violent crimes at the guilt phase does not require separate juries].) This danger constitutes a common problem arising out of inconsistent defense strategies at the guilt and penalty phases of trial, yet such inconsistencies do not, without more, constitute good cause for empanelling separate guilt and penalty phase juries. (See People v. Bradford, supra, 15 Cal.4th at pp. 1354-1355, and cases cited; People v. Lucas, supra, 12 Cal.4th at pp. 482-483; People v.

Pride, supra, 3 Cal.4th at pp. 252-253; see also People v. Ray (1996) 13 Cal.4th 313, 357 [52 Cal.Rptr.2d 296, 914 P.2d 846].) We conclude that defendant was not prejudiced by the trial court’s error in directing that the motion for separate juries could be entertained only after the guilt phase verdict, and that this error did not implicate his constitutional rights. (See People v. Rowland, supra, 4 Cal.4th at p. 269, fn. 7.) 4. Wheeler claim Defendant contended at trial that the prosecutor exercised peremptory challenges against two prospective jurors based upon their race.

He moved for a mistrial, citing People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], The trial court determined that defendant had made a prima facie showing that the prosecutor had excused the prospective jurors on the basis of their race. The prosecutor explained: “[T]he People’s reason for excluding Mr. [W.] is because of his statements regarding the death penalty. He says that he believes everyone should live. He says that God is the only one who has the right to take a life. His answer is that if everyone agreed to the death penalty, that he would abide by that, but my

interpretation is that he is not a strong believer in the death penalty and that he would be very reluctant to impose that penalty in any type of case [f ] I didn’t make a challenge for cause at that time because he did say in some cases he could do it.” The prosecutor explained that his reasoning was the same with respect to the other prospective juror in question, R. He stated that she had doubts about imposing the death penalty, and that she stated she would be reluctant to impose it.

He referred to her religious affiliation, stating that his experience was that members of the church “would lean away from imposing the death penalty.” He urged that he was not excusing the two prospective jurors because they were African-American, and suggested that apart from their views on the death penalty, he did not view the prospective jurors as pro-defense. The trial court stated that it was persuaded that the prosecutor had excused the jurors because of their attitude toward the death penalty, and not on the basis of racial bias.

The court recalled that the prosecution nearly had succeeded in excusing one of the two jurors for cause because of her attitudes, and concluded that statements made by both jurors supported the exercise of peremptory challenges on the basis of their attitude toward the death penalty. “In [Wheeler] ... we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [90 L.Ed.2d 69, 79-83, 106 S.Ct. 1712] ... the United States Supreme Court held that such a practice violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. African-Americans are a cognizable group for purposes of both Wheeler [citation] and Batson [citation].” (People v. Alvarez (1996) 14 Cal.4th 155, 192-193 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Whether a Wheeler or a Batson claim (Batson v.

Kentucky, supra, 476 U.S. 79) is raised, “the defendant need not be a member of the group in question in order to complain.” (People v. Alvarez, supra, 14 Cal.4th at p. 193.) “This court established in Wheeler, supra, 22 Cal.3d 258, ‘that peremptory challenges may not be used to remove prospective jurors solely on the basis of presumed group bias. We defined group bias as a presumption that certain jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic or similar grounds. [Citations.]’ . . .

HQ A party who suspects improper use of peremptory challenges must raise a timely objection and make a prima facie showing that one or more jurors has been excluded on the basis of group or racial identity. The high court has explained that the defendant is required to ‘raise an inference’ that the exclusion was based on group or race bias. [Citation.] Once a prima facie showing has been made, the prosecutor then must carry the burden of showing that he or she had genuine nondiscriminatory reasons for the challenges at issue.” (People v.

Jenkins (2000) 22 Cal.4th 900, 993 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) A prosecutor legitimately may exercise a peremptory challenge against a juror who is skeptical about imposing the death penalty. (People v. Jones (1997) 15 Cal.4th 119, 163, fn. 13 [61 Cal.Rptr.2d 386, 931 P.2d 960], disapproved on other grounds in People v.

Hill (1998) 17 Cal.4th 800, 823, fn. 1 [72 Cal.Rptr.2d 656, 952 P.2d 673].) Defendant contends that the prosecutor did not provide legitimate, nondiscriminatory reasons for excusing the jurors, and claims that the prosecutor believed improperly that because defendant is White, defendant had no basis upon which to object to the exclusion of African-American jurors. Defendant also claims that the prosecutor proffered other discriminatory reasons for excusing the jurors, namely that he excused them on the basis of their religion.

He also contends that the trial court rejected his motion without adequate inquiry or reflection. We have explained that “we review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges ‘with great restraint.’ ” (People v.

Ervin (2000) 22 Cal.4th 48, 74 [91 Cal.Rptr.2d 623, 990 P.2d 506].) The trial court’s determination is a factual one, and as long as “ ‘ “the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal” ’ ” when they are supported by substantial evidence. (Id at pp. 75, 76.) Prospective Juror R. stated that she was uncertain whether she could decide upon the penalty, observing that: “To tell you the truth, I’m so tenderhearted, I just feel sorry for people[] and it would be kind of hard for me to do.” When asked how she felt about the death penalty, she stated: “If you want to know the truth by me, I hate to see anybody kill anybody. . . . [B]ut when it come[s] down to, you know, convicting somebody, I just really hate to do it.” When asked whether, as a juror, she could impose either the death penalty or life imprisonment, she said “I don’t think I could.

I don’t feel like I could.” Regarding imposing the death penalty, she said: “I guess if I was on [a] jury and I had to I could go ahead and do it, but I would hate to do it.” She repeated this reservation under questioning by defense counsel. She elaborated that she was tenderhearted and that the death penalty “is killing somebody,” and that she would have compassion for defendant because she would imagine one of her own relatives in his position.

Responding to questions by the prosecutor, she later stated that she would not join 11 other jurors in imposing the death penalty and that she truly did not believe she could vote for the death penalty in any case.

She stated that she was religious and that she thought that imposing the death penalty violated the commandment “Thou shalt not kill.” “My feeling and my religion don’t agree for me to do things like that.” The court overruled the prosecutor’s challenge for cause, stating: “She said that she would, if the evidence was sufficiently strong, she could impose the death penalty, very obviously reluctant to do so, but I think this is more a factor to be considered in peremptory challenges.

I think she could not be excused for cause . . . .” The juror’s statements very clearly reflect serious reservations about the death penalty, a race-neutral ground upon which the prosecutor legitimately could exercise a peremptory challenge. Prospective Juror W. stated that “I belong to what’s called the Church of Christ. God, I believe, is the only person that has the right to take someone’s life.” He also stated that he believed in the commandment “Thou shalt not kill” and seemed to feel that the state should abide by that rule.

The record supports the conclusion that the trial court made a “sincere and reasoned effort” to evaluate the prosecutor’s justifications, and substantial evidence supports its conclusion that the prosecutor had race-neutral reasons for excusing the two jurors. That the jurors were equivocal about their ability to impose the death penalty was relevant to a challenge for cause, but did not undercut the race-neutral basis for the prosecutor’s decision to excuse the prospective jurors peremptorily.

References to religion did not reflect bias against a particular religion or against religion in general, but rather a concern that the prospective jurors’ religious beliefs would make them reluctant to impose the death penalty. This concern was a permissible ground for the exercise of a peremptory challenge. (People v. Ervin, supra, 22 Cal.4th at p. 76.) The prosecutor’s statements concerning defendant’s ethnic group did not suggest that the prosecutor excused the jurors because of their race, but were offered as further proof that the prosecutor had not acted out of racial bias.

Even assuming the prosecutor was confused on this point, the trial court’s statements did not reflect that it doubted that a White defendant has standing to raise a Sixth Amendment challenge to the exercise of peremptory challenges against African-American jurors. Finally, the court’s statements indicate that it carefully reviewed defendant’s motion, and further inquiry or statements on the record were not required. (See People v.

Cummings (1993) 4 Cal.4th 1233, 1282 [18 Cal.Rptr.2d 796, 850 P.2d l].) Defendant contends that although the trial court determined that the prosecutor had proffered race-neutral reasons for excusing the two prospective jurors, the court failed to determine whether the prosecutor actually was motivated by these neutral reasons. (See People v. Alvarez, supra, 14 Cal.4th at pp. 197-198.) We believe that the statement of the trial court belies this claim.

The court observed in denying defendant’s motion: “However, the explanations offered by [the prosecutor] convince the Court that excusing Mr. [W.] and Mrs. [R.] was not because of their race but was based on permitted reasons for exercising peremptories, and that is their attitude toward the death penalty.” 5. Uncharged crime evidence Defendant contends the court erred in permitting the prosecution to introduce evidence regarding the murder of Glenna.

As noted, defendant’s prior conviction for this crime was not admitted until after the jury reached its guilty verdict (see § 190.1, subds. (a) & (b) [trial of a special circumstance allegation that the defendant has suffered a prior murder conviction shall be held only after the jury has reached a guilty verdict and made findings on any other special circumstance allegation]), but evidence regarding the murder of Glenna was admitted as evidence of an uncharged crime made admissible by Evidence Code

section 1101. Defendant, however, contends that the murder of Glenna did not bear common marks with the charged murders of Joyce and Martha. He contends the evidence relating to Glenna was not material to the issue of identity and did not tend to establish a common scheme or plan. Before trial, the prosecutor moved to admit evidence that defendant had murdered Glenna by administering paraquat. The prosecutor contended this evidence tended to demonstrate that Martha and Joyce were poisoned by a criminal agency, that this criminal agency was paraquat, and that defendant was the person responsible for the murders. Defendant objected on the basis of Evidence Code

section 1101, subdivision (b). The trial court announced that it would review the preliminary hearing transcript and the transcript of the hearing held on a motion pursuant to

section 995. The following day, defense counsel urged that the evidence concerning Glenna was weak, did not establish beyond a reasonable doubt defendant’s responsibility for her murder, had little probative value in the present trial, but would have considerable prejudicial impact. The court ruled that the evidence was probative and could be admitted. We review the trial court’s determination for an abuse of discretion, examining the evidence in the light most favorable to the court’s ruling. (People v.

Kipp, supra, 18 Cal.4th at pp. 369, 370.) We have observed above that, despite the prohibition against admitting evidence of an uncharged crime to demonstrate a defendant’s criminal propensity, such evidence is admissible to show identity or the existence of a common scheme or plan. (People v.

Kipp, supra, 18 Cal.4th at p. 369.) This type of evidence, when offered on the issue of identity, “must be highly similar to the charged offenses.” (Ibid.) Evidence tending to establish a common plan or design should demonstrate “ ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 402.) In the present case, the charged and uncharged crimes bore a number of highly distinctive common marks.

As we already have discussed in connection with defendant’s severance claim, each victim was a close female relative of the defendant—wife or mother. In each instance, the defendant stood to gain financially from the victim’s death. In the case of Glenna and Martha, it was overwhelmingly established that the victims had ingested paraquat before death. Expert opinion evidence based on observations regarding the clinical course of each woman’s illness established that the cause of death for all three victims was paraquat poisoning.

Such poisoning is rare and is unlikely to be the cause of death for three persons closely related to one individual. Rather, the occurrence of three similar poisonings of related persons supports inferences regarding identity and a common plan. (See People v. Diaz, supra, 3 Cal.4th at pp. 561-562 [multiple lidocaine poisonings]; People v. Ruiz, supra, 44 Cal.3d at pp. 605-606 [repeated disappearances of the wives of the defendant]; People v.

Archerd, supra, 3 Cal.3d at pp. 621, 638 [multiple insulin poisonings of relatives of defendant].) The murders of Glenna and Joyce bore other common marks—in each case the victim was the defendant’s wife, each woman was healthy, then initially suffered flu-like symptoms, followed by respiratory collapse over a period of days. Evidence that defendant had poisoned one wife was relevant to establish that another apparently healthy wife had died through a criminal agency, namely poison. (See People v.

Ruiz, supra, 44 Cal.3d at p. 606.) The trial court did not abuse its discretion in determining that the evidence of the uncharged crime was relevant to identity and to show a common scheme or plan. Defendant complains that evidence establishing that Glenna died by paraquat poisoning should not have been introduced to show that Joyce died of the same cause.

He contends that toxicological evidence existed to demonstrate that paraquat was the cause of Glenna’s death, but that there was no toxicological evidence supporting the opinions of the prosecution’s expert witnesses who had concluded that Joyce died of paraquat poisoning. In fact, he complains, the expert opinion evidence pertaining to Joyce was based not solely upon clinical observations regarding the course of her illness but also in part upon the evidence demonstrating that Glenna and Martha had died by paraquat poisoning.

He accuses the prosecution of creating the common marks between the killing of Glenna and Joyce, rather than relying upon existing features in common between the two killings. As we have observed, the common marks between the murders of Glenna, Martha, and Joyce certainly were relevant to establish that all three died pursuant to a common design. It was not necessary that the prosecution be able to prove that Joyce died of paraquat poisoning by evidence entirely independent of the evidence relating to the murder of Glenna.

And, of course, the evidence relating to the uncharged murder of Glenna was not the only evidence tending to show the cause of Joyce’s death. Evidence relating to the charge that defendant killed his mother Martha by paraquat poisoning had the same effect vis-a-vis the murder of Joyce. Strong expert opinion testimony based on clinical evidence and postmortem examination of tissue also supported the conclusion that Joyce died of paraquat poisoning. Defendant makes a related claim that the evidence of the uncharged crime was more prejudicial than probative.

He contends the evidence that was related to Glenna was unduly prejudicial, because the jury necessarily would realize that defendant had suffered a prior c'onviction for murder. Evidence of an uncharged crime may be admitted only if its substantial probative value is not outweighed by a danger of undue prejudice, of confusion of the issues, or of misleading the jury. “On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. [Citation.] A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ” (People v.

Kipp, supra, 18 Cal.4th at p. 371.) The jury was not informed that defendant had suffered a conviction for the murder of Glenna until after it had returned its guilty verdict. Clearly, evidence regarding the circumstances of the murder of Glenna was of substantial probative value. In ruling upon the motion to admit evidence of Glenna’s murder, the trial court reasonably could conclude that the probative value of the evidence outweighed the risk that the jury might suspect that defendant had been convicted of the murder of Glenna, despite the procedural protection provided by

section 190.1. As respondent claims, the prospect of undue prejudice arising from a suspicion regarding a prior conviction was speculative, because the prosecutor did not plan to offer evidence of the conviction until after the guilty verdict. When at trial, as defendant now complains, an expert witness undergoing defense cross-examination referred to his testimony in a “prior trial,” defendant did not object or seek an admonition to the jury, and that prior testimony, of course, was not before the trial court when it ruled on the motion pursuant to Evidence Code

section 1101. Defendant claims that the trial court erred prejudicially in failing to place on the record the process by which it concluded that the probative value of the evidence outweighed its prejudicial impact, but such explanations are not required. (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [94 Cal.Rptr.2d 396, 996 P.2d 46].) In any event, it is clear that the court carefully considered lengthy transcripts, written motions, and the arguments of counsel in reaching its conclusion, taking the matter under submission for a day in order to complete its review.

Defendant’s contention that the admission of the other-crimes evidence violated his state and federal constitutional right to a fair trial is waived because it was not raised below. (People v. Carpenter (1997) 15 Cal.4th 312, 385 [63 Cal.Rptr.2d 1, 935 P.2d 708].) In addition, he does not provide authority establishing that a state law permitting the admission- of evidence of uncharged crimes violates a defendant’s right to a fair trial.

Reference to two federal cases discussing due process limitations on the admission of irrelevant character or criminal propensity evidence is unpersuasive; in both instances, the federal court determined that the disputed evidence was not material to any legitimate issue. (See Henry v. Estelle (9th Cir. 1994) 33 F.3d 1037, 1042, revd. on another point in Duncan v. Henry (1995) 513 U.S. 364 [115 S.Ct. 887, 130 L.Ed.2d 865]; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1382-1385; see also People v.

Falsetta (1999) 21 Cal.4th 903, 913-914 [89 Cal.Rptr.2d 847, 986 P.2d 182].) By contrast, we have determined that the disputed evidence in the present case was material to issues of identity and common scheme or plan and was admissible under Evidence Code

section 1101. 6. Evidence relating to the motive for the uncharged murder of Glenna Defendant contends that evidence that he received life insurance proceeds after Glenna died should have been excluded under the collateral estoppel doctrine. He claims violations of the federal constitutional protection against being placed twice in jeopardy and of his federal constitutional right to a fair trial and a reliable verdict. At trial, defendant made an in limine motion to exclude evidence regarding the payment defendant had received as the beneficiary of Glenna’s life insurance policy.

He contended the evidence should be excluded under the doctrine of collateral estoppel because, on motion of the defense pursuant to

section 1118.1, the court entered a not true finding as to the special circumstance alleging murder for financial gain. In support, he offered one page from the clerk’s transcript of that trial—a minute order indicating the granting of the

section 1118.1 motion as to that special circumstance allegation. The trial court in the present case determined that although the trial court in the Monterey County trial had found the evidence presented in that trial insufficient to support a true finding that the murder of Glenna had been undertaken for financial gain, that ruling did not preclude the introduction of evidence relating to defendant’s motive for killing Glenna in the separate trial for the murders of Joyce and Martha. Under the collateral estoppel doctrine, which is a component of the Fifth Amendment’s double jeopardy clause (People v.

Santamaria (1994) 8 Cal.4th 903, 912, fn. 3 [35 Cal.Rptr.2d 624, 884 P.2d 81]), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Ashe v. Swenson (1970) 397 U.S. 436, 443 [90 S.Ct. 1189, 1194, 25 L.Ed.2d 469].) In the present case, however, defendant was not on trial for the murder of Glenna, and the question whether defendant murdered her for financial gain within the meaning of

section 190.2, subdivision (a)(1), was not an issue of ultimate fact to be determined in the present proceeding. We observe that the collateral estoppel doctrine does not prohibit the admission of evidence that has been introduced in a trial resulting in an acquittal from being admitted for all purposes at a subsequent proceeding. As the United States Supreme Court declared in Dowling v.

United States (1990) 493 U.S. 342, 348 [110 S.Ct. 668, 672, 107 L.Ed.2d 708], the doctrine does not “exclude in all circumstances . . . relevant and probative evidence that is otherwise admissible . . . simply because it relates to alleged criminal conduct for which a defendant has been acquitted.” The Dowling case is instructive because, like the present case, it involved evidence of uncharged crimes. The defendant in Dowling had been acquitted of burglary and attempted robbery, but evidence relating to those charges nonetheless was introduced against him in a subsequent prosecution for a different robbery.

The evidence of the uncharged crime was relevant to establish the defendant’s modus operandi. Introduction of such evidence did not violate the collateral estoppel doctrine, because “the prior acquittal did not determine an ultimate issue in the present case.” (Id. at p. 348 [110 S.Ct. at p. 672].) Because in the subsequent trial the prosecution was not required to establish beyond a reasonable doubt the defendant’s identity as the robber in the uncharged crime involved in the prior trial, collateral estoppel principles did not bar introduction of that evidence in the subsequent unrelated trial.

Also instructive is this court’s decision in People v. Santamaria, supra, 8 Cal.4th 903. In that case we determined that (assuming the doctrine of collateral estoppel applied to retrial of the same case) a prior not true finding on an allegation that a defendant had used a knife in connection with a murder did not, at a subsequent retrial for the murder, bar evidence establishing the defendant’s use of the knife. We explained: “[T]he jury’s not true finding on the enhancement allegation does not mean defendant did not use the knife, only that there was a reasonable doubt that he did. In Ashe [v.

Swenson, supra, 397 U.S. 436], the verdict, viewed realistically, showed the jury had a reasonable doubt as to the defendant’s identity as the robber. That doubt necessarily precluded conviction of the robbery charge. But the same doubt as to the knife use did not preclude a murder conviction here, although it did mandate a not true enhancement finding. ftD Evidence that defendant personally used a knife was highly relevant to show that he was guilty of murder as that offense is defined by statute.

That evidence, together with the evidence that if he did not use a knife, he was guilty as the aider and abettor, combined to permit the murder conviction. But the specific fact of personal use does not have to be proved beyond a reasonable doubt to find defendant guilty of murder. Hence, personal use is not an ‘ultimate fact’ of murder.” (People v.

Santamaria, supra, 8 Cal.4th at p. 922, italics omitted.) Examining the same case, the Ninth Circuit Court of Appeals agreed: “In this case, the State failed to prove beyond a reasonable doubt the ultimate fact that Santamaría used a knife for the weapon enhancement in the first trial.

However, to convict him of murder under California law, the State is not required to prove beyond a reasonable doubt that Santamaría used a knife. [Citation.] Therefore, the use of a knife is not an ultimate fact for the retrial, and the State cannot be precluded from presenting evidence that Santamaría stabbed the victim.” (Santamaria v. Horsely (9th Cir. 1998) 133 F.3d 1242, 1247; see also People v.

Memro (1995) 11 Cal.4th 786, 821-822 [12 Cal.4th 783d, 47 Cal.Rptr.2d 219, 905 P.2d 1305] [the trier of fact’s finding at a prior trial that a felony-murder special circumstance was not true did not collaterally estop the retrial of the murder charge on a felony-murder theory].) As with the not true finding on the knife-use allegation in Santamaría, and the felony-murder allegation in Memro, the not true finding on the murder for financial gain special-circumstance allegation in the trial for Glenna’s murder merely established that the state in the prior proceeding had been unable to prove beyond a reasonable doubt that defendant had murdered Glenna for financial gain as charged in the murder for financial gain special circumstance.

In the present case, however, the prosecution was not required to establish that fact beyond a reasonable doubt or, indeed, to prove it at all. Defendant claims that special circumstance allegations necessarily are part of the prosecutor’s burden of proof in a capital case, unlike the personal use of a knife in a prosecution for murder. He contends that “determination of a special circumstance is an ultimate fact” and that the financial-gain special-circumstance allegation relating to the murder of Glenna could not be relitigated.

His contention is unpersuasive, because although the financial-gain special-circumstance allegation formed part of the prosecutor’s burden of proof in the trial for the murder of Glenna, there was no special circumstance allegation in the present case that defendant had murdered Glenna for financial gain. Such an allegation relating to the murder of Glenna was not charged and was not part of the prosecutor’s burden of proof at the guilt phase in the present case and, indeed, it was not being relitigated at all in this proceeding. ■ Defendant relies upon Bullington v.

Missouri (1981) 451 U.S. 430 [101 S.Ct. 1852, 68 L.Ed.2d 270] in support of his claim that once a special circumstance allegation is found not true, it may not be retried. The court in Bullington determined on double jeopardy grounds that the prosecution could not seek the death penalty on retrial of a case in which the jury originally had imposed a life sentence. Under Missouri law, the prosecution was required to prove certain facts beyond a reasonable doubt at the penalty hearing, and the jury’s penalty determination had “the hallmarks of the trial on guilt or innocence.” (Bullington v.

Missouri, supra, 451 U.S. at p. 439 [101 S.Ct. at p. 1858].) Accordingly, the defendant could not be subject to retrial as to penalty after the trial court granted his motion for new trial on the basis of guilt phase error. The Bullington case does not assist defendant’s present claim, because the court in that case did not determine that in a trial for different capital crimes, evidence regarding a crime of which the defendant was convicted but for which the death penalty was not imposed could not be admitted.

The case merely established that factual findings favorable to the defendant made at the penalty phase of a capital trial barred retrying the penalty determination in that case. The Bullington case does not stand for the proposition that evidence relevant to a special circumstance allegation that was found not true—and also relevant to the underlying murder, of which a defendant was convicted—cannot be admitted for the purpose of establishing guilt of different crimes in a separate trial.

Defendant maintains, however, that it was “inherently unfair” to admit evidence of financial gain related to the murder of Glenna after the not true finding on the financial-gain special-circumstance allegation in the trial for Glenna’s murder. He continues: “Although, technically appellant was not being tried a second time for Glenna’s murder, the introduction of the Glenna financial gain evidence had that effect.

The prosecution’s sole purpose for introducing financial gain evidence from appellant’s Monterey County trial [involving Glenna’s murder] into appellant’s Kern County case was to support the prosecution’s theory that Joyce was murdered, rather than died of natural causes, and that the financial gain special circumstance charged in Count II, Martha’s homicide, was true.” Defendant’s own argument rebuts the claim that the introduction of evidence of financial gain constituted a retrial of the charge involving the murder of Glenna.

The evidence was admitted to establish facts regarding the murders of Joyce and Martha, not to relitigate defendant’s responsibility for murdering Glenna for the purpose of financial gain. Defendant claims that when, in the present case, the jury learned that defendant had received a sentence of life without possibility of parole for Glenna’s murder, they decided to punish him more severely. This claim is speculative and is unrelated to defendant’s claim that the evidence at the trial for Glenna’s murder should have been excluded at the guilt phase.

We observe additionally that this argument was not raised below as a basis for excluding the evidence at the guilt phase, and is waived on appeal. (See People v. Ashmus, supra, 54 Cal.3d at p. 973, fn. 10.) Defendant objects to the manner in which the prosecutor employed evidence of defendant’s financial motivation to kill Glenna. Defendant refers to the prosecutor’s use of this evidence to support the claim that defendant also murdered Joyce and Martha in part for financial reasons.

Defendant contends that the evidence was irrelevant to the charge that defendant murdered Joyce, because no financial gain special circumstance was alleged as to her. This claim is not persuasive, because evidence of defendant’s motive for killing Joyce was relevant to the charge that defendant had murdered her, even without a financial gain special circumstance. He makes the additional claim that the evidence regarding defendant’s receipt of life insurance proceeds on Glenna’s death “lent undue weight” to the “weak” evidence that defendant killed Martha for financial gain.

Defendant’s claim goes to the weight, and not to the admissibility, of the evidence. As long as the evidence properly was admitted, as we have determined it was, the weight to be accorded the evidence was for the jury to decide. Defendant also notes that the jury was not instructed at the guilt phase of the present case that the financial-gain special-circumstance allegation in the trial for Glenna’s murder had been found not true. Defendant did not request such an instruction and, indeed, made every effort not to disclose to the jury that he had been tried for Glenna’s murder.

An instruction that the special circumstance allegation that he had murdered Glenna for financial gain had been found not true could give rise to an inference that, despite the not true finding on the special circumstance allegation, he previously had been tried and convicted of the murder of Glenna.

Because of the potential for prejudice arising from the instruction which defendant now claims should have been given, no sua sponte duty to give such an instruction should be imposed. (See § 190.1, subd. (b) [providing for trial of a prior murder conviction special-circumstance allegation only after a guilty verdict has been reached on the charged crimes].) Defendant claims that as part of the guaranty against cruel an

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