THE PEOPLE, Plaintiff and Respondent, v. WARD FRANCIS WEAVER, JR., Defendant and Appellant, 26 Cal. 4th 876

Opinion WERDEGAR, J. Ward Francis Weaver, Jr., was convicted in 1984 in Kern County Superior Court of the first degree murders of Robert Radford and Barbara Levoy. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury also sustained a multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)) and two kidnapping-murder special-circumstance allegations (§ 190.2, former subd. (a)(17)(ii), now redesignated (17)(B)).

In addition, the jury convicted defendant of kidnapping Levoy (§ 207) and sustained an enhancement allegation that defendant had used a deadly weapon in murdering Radford (§ 12022, subd. (b)). Defendant subsequently admitted he had served a prior prison term (§ 667.5, subd. (b)). After finding defendant sane following a separate sanity hearing, the jury considered evidence presented at the penalty phase of the trial.

On March 7, 1985, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) After considering the claims raised on appeal, we affirm the guilt, sanity, and penalty judgments in their entirety. I. Guilt Phase A. Facts Robert Radford, 18 years old, was assigned to basic training for the United States Air Force in Colorado. While there, he met 23-year-old Barbara Levoy. When Radford completed his training, he traveled to his home in Edmonds, Washington, and Levoy accompanied him to meet his parents.

The couple then drove south to Pinedale, California (near Fresno) to meet Radford’s grandmother. The couple’s ultimate destination was Las Vegas, Nevada, where Radford would begin his first tour of duty at Nellis Air Force Base. Levoy planned to fly home to Colorado from Las Vegas. Radford and Levoy arrived in Pinedale on the afternoon of February 5, 1981, and visited with Radford’s grandmother. They left Pinedale around 7:00 p.m. the same day, anxious to get to Las Vegas. Unfortunately, their car broke down one mile east of Tehachapi.

James Powell was coming home from work around 11:00 p.m. and encountered Radford, his disabled car on the side of the road with its emergency lights flashing. Powell saw a young woman in the car. He offered the couple a ride back to Tehachapi, but Radford declined because it was in the opposite direction from which he was traveling. Powell left. Our knowledge of what happened next derives from defendant’s admissions to a cellmate, Ricky Gibson, defendant’s tape-recorded interviews with police, and defendant’s testimony at trial.

Around 10:00 p.m., defendant, who was working as a long-haul trucker, saw Radford’s car on the side of the road as he drove by in the opposite direction. Defendant exited the highway and circled back to offer his assistance. Radford and Levoy accepted his offer to drive them to Mojave. After driving about five miles, defendant pulled over and asked Radford to help him shift the load on the flatbed of his truck. Levoy stayed in the cab.

While Radford was bent over with his back turned, defendant struck him on the back of the head with a “cheater pipe,” a three- to four-foot length of metal pipe truckers use to gain leverage when tightening the bindings that restrain a load on the truck. A later autopsy revealed 11 separate lacerations to Radford’s head. Defendant rejoined Levoy in the truck cab, displayed a knife, and had her sit with her head between her legs and her hands behind her, a technique defendant had learned when transporting prisoners during his military service in Vietnam.

Defendant reversed direction and drove to Bakersfield; near Kettleman City, he stopped and raped Levoy. He then drove towards San Francisco, pulled off the highway once more and again raped Levoy. Meanwhile, a citizen reported having seen Radford on the side of the road where defendant had left him. Police responded to the scene and attempted to keep Radford alive, but he died on the way to the hospital. Police found a large amount of blood at the crime scene.

At the hospital, Radford’s wallet, with his Washington State driver’s license, was found, allowing police to link Radford to the disabled car a few miles away. The car contained a woman’s purse and several pieces of luggage. Correctly surmising that Radford had been traveling with a woman, police forced open the car and discovered identification belonging to Levoy. Police then issued a missing person report and organized a search effort to find her. Their efforts came too late to save Levoy. After he deposited his cargo in San Francisco, defendant drove towards his home in Oroville.

At a secluded spot outside that town, he stopped and asked Levoy to get out of the truck. He tied her hands and feet with electrician’s tape, but when he attempted to gag her, Levoy struggled and bit defendant severely on the thumb. He then strangled her. He dug a grave and buried Levoy’s body there before driving into town to meet his wife, who was working a late shift in a local restaurant. It was suggested defendant move the body, so defendant took his wife’s car and returned to the grave, exhumed the body, put it in the trunk of the car and drove home.

When he arrived, defendant’s three children were awake and asked him about his bloody thumb. He told them he had gotten in a fight and that they should stay in the house because his assailant might come looking for him. With the children in the house, defendant moved Levoy’s body from the car to a shallow grave dug in his backyard. Defendant previously had begun digging trenches in his yard for a sewer line and had instructed his 10-year-old son and another boy to keep working on the digging project while he was away driving his truck.

Some weeks later, defendant exhumed Levoy’s body again and moved it to a deeper grave elsewhere in his yard. He then built a wooden platform over the grave so his wife could stand on it and hang out the laundry without getting her feet wet in the grass. Police were stymied in their attempt to solve Radford’s murder and Levoy’s disappearance. Then, 17 months after the crimes, prison inmate Ricky Gibson contacted authorities and reported that defendant, who was serving time in prison for subsequent unrelated (but similar) crimes, had told him the story of how he killed Radford and raped and killed Levoy.

Police went to defendant’s home in Oroville, interviewed defendant’s wife and son, and obtained consent to search the yard. Defendant’s son directed police to the platform, which they removed and discovered Levoy’s badly decomposed body. She was identified through her dental records. In addition, the body bore the same clothes Levoy had been wearing when she disappeared, with the exception that her panties were missing. An autopsy of Levoy’s body yielded no clues about the cause of her death, due to the advanced state of decomposition. Some electrician’s tape, however, was found stuck to the collar of her shirt.

Police proceeded to interview defendant at San Quentin State Prison. He agreed to waive his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974]) if he could first speak to his mother. Police agreed. After speaking with his mother, he agreed to talk to police. In two tape-recorded interviews, defendant admitted he had killed Radford and Levoy, and that he had raped Levoy. He drew a map of the place in rural Oroville where he had first buried Levoy.

Following the map, police found an indentation in the ground where defendant said he had dug the first grave; police also found some black electrician’s tape on the ground nearby. Defendant testified at trial. He claimed he had heard the voice of a female named Ladell in his head since he was 17 years old. He first heard a competing unnamed male voice when he served in Vietnam in 1968 and 1969. He trusted the male voice because it had warned him of danger in Vietnam and saved his life.

Defendant explained that he often used amphetamines to stay awake while driving his truck, had taken amphetamines the day of the crimes and, at the time he killed Radford, had not slept in a week and a half. When he picked up Radford and Levoy, he noticed how attractive Levoy was and became sexually aroused. The male voice started saying he should have sex with Levoy. Ladell told him to leave Levoy alone. The male voice assured him he would not get in trouble if he raped Levoy. Defendant testified, “I just couldn’t go against him. I just couldn’t help it.

Had to go along with what sounded like the most logical thing to do.” The male voice said to knock Radford out so he could be alone with Levoy. Defendant decided to follow the male voice, but did not think Radford would die because defendant had assaulted someone with the “cheater pipe” in 1977 and the victim did not suffer serious injury. Defendant said that if he had wanted to kill Radford, he would have used the knife he kept in the truck or used some other, more silent means of killing that he had learned in the military.

Defendant testified that when he hit Radford, the young man fell off the truck screaming. Defendant told him to “shut up” and when he did not, defendant struck him “a couple” of times with the pipe, taking full swings with both hands on the pipe. He did not check to see if Radford was alive or dead; he just assumed Radford was “out.” He then rejoined Levoy in the truck, displayed his knife, and started driving. The voice named Ladell was chastising him while the male voice was telling him to ignore Ladell. When they approached Kettleman City, the male voice reminded defendant to have sex with Levoy.

He pulled over around 4:00 a.m., displayed his knife again, and then raped Levoy. He then drove north towards San Francisco. About an hour later, he pulled over and raped Levoy again. Defendant claimed he did not intend to kill Levoy and, after the second rape, was looking all along the route for a safe yet deserted place to drop her off. As it began to get light, he abandoned this plan and took her to the Bay Area with him. He instructed Levoy to sit on the floor of his truck while he delivered his load. She obeyed, sitting quietly in the truck for 45 minutes.

He then drove to Oakland to pick up another load for a local delivery. Defendant was stopped on the way to Oakland by a California Highway Patrol officer, but Levoy complied with defendant’s instructions and did not call out to the officer or try to escape. After stopping in Oakland, defendant drove home to Oroville, taking a long and winding route. Defendant stopped four miles outside of Oroville. By now it was about 11:00 p.m. on February 6, 1981. Defendant told Levoy he would tie her up and leave her under a bridge, coming back the next day when he was scheduled to drive to Southern California.

He would then release her in Los Angeles in a warehouse district. He bound her with electrician’s tape, but when he tried to gag her with some fabric diapers, she struggled and bit him on the thumb and would not let go. Defendant testified he twice hit her with his fist and then he blacked out and began jerking the diaper around Levoy’s neck. He stopped when he realized she was no longer biting him. She slumped over; defendant at first thought she was unconscious but then determined she was dead. He cried and asserted he had never intended to kill her, even when she bit him.

The male voice told him to get rid of the evidence. As indicated, he buried her where he killed her, then exhumed her body twice before finally burying her in his yard. The next morning, on February 7, 1981, Thomas Jenkins, an insurance adjuster, met with defendant and noticed facial abrasions and scratches, as well as a white bandage on his hand. Defendant said his thumb had been almost bitten off by another trucker. Defendant’s first wife, Patricia Budrow, testified that defendant hates to be bitten.

She testified she once bit his hand when they were wrestling in the car and he became very angry and began choking her. Another time, she bit his hand when they were wrestling on the floor. He grabbed her by the neck and looked dazed and glassy-eyed. He later told her he did not know why he choked her, but that he hated being bitten, and that when he was a child his mother would bite him until he bled as a means of disciplining him. Budrow also testified that defendant’s mother confirmed the story and suggested Budrow use the same method to train her children. B. Discussion: Pretrial Issues 1.

Submission of Competency Determination on the Psychiatric Reports On September 29, 1982, before defendant was arraigned, his defense counsel expressed a doubt as to defendant’s present competence. The trial court agreed and appointed two psychiatrists, Dr. Paul Cutting and Dr. Francis Criswell, to examine defendant. The proceedings were suspended until the two doctors could examine defendant and file their reports with the court. On October 27, 1982, the court was in possession of the reports of both doctors. Both found defendant was legally competent.

Defense counsel and the prosecutor submitted the question of defendant’s competence on these two psychiatric reports, and the trial court found defendant competent. The proceedings then resumed. Defendant contends the failure to hold a full-blown adversarial hearing on the question of his competence deprived him of due process and requires that we vacate his convictions. Essentially, defendant claims counsel could not waive a full jury trial with live witnesses. We rejected this precise claim in People v.

McPeters (1992) 2 Cal.4th 1148, 1169 [9 Cal.Rptr.2d 834, 832 P.2d 146]: “Section 1368 entitles defendant to a ‘hearing’ on the issue of competence and he received one.

Although defendant’s counsel, for understandable reasons, elected to waive certain available incidents of the hearing procedure, i.e., the right to jury trial and the rights to present oral testimony and to confront and cross-examine witnesses, defendant presented evidence and received an independent judicial determination of his competence to stand trial based on the stipulated record. [Citation.] [f] Defendant cites no authority holding that submission to the court of the issue of competence to stand trial based on psychiatric reports is per se unconstitutional or a violation of statute.” Of course, trial of an incompetent defendant violates an accused’s right to due process. (Medina v.

California (1992) 505 U.S. 437, 448 [112 S.Ct. 2572, 2578-2579, 120 L.Ed.2d 353]; Pate v. Robinson (1966) 383 U.S. 375, 378 [86 S.Ct. 836, 838, 15 L.Ed.2d 815]; People v. Hale (1988) 44 Cal.3d 531, 539 [244 Cal.Rptr. 114, 749 P.2d 769]; People v. Pennington (1967) 66 Cal.2d 508 [58 Cal.Rptr. 374, 426 P.2d 942].) But contrary to defendant’s arguments, neither Hale nor any of our other precedents precludes a defense attorney from waiving a jury, forgoing the right to present live witnesses, and submitting the competency determination on the psychiatric reports filed with the court.

The statutory references to a “hearing” (§ 1368, subd. (b)) or a “trial” (§ 1369) simply mean that a determination of competency must be made by the court (or a jury if one is not waived), not, as defendant contends, that there must be “a court or jury trial, at which the criminal defendant’s rights of confrontation, cross examination, compulsory process and to present evidence are honored by the court and counsel.” Unlike in People v.

Marks (1988) 45 Cal.3d 1335, 1343 [248 Cal.Rptr. 874, 756 P.2d 260], defense counsel did not attempt to waive the competency issue; he merely submitted the matter on the psychiatric reports. To the extent defendant attempts to impugn the validity of the appointed experts’ conclusions on grounds they failed to consider the effect of defendant’s medication on his competency, the time to raise such a challenge has long since passed. Having submitted the competency determination on the two psychiatric reports, defendant may not now relitigate that question with arguments he did not make below.

We also reject the further claim that defense counsel was constitutionally ineffective under the state and federal Constitutions for waiving a jury trial and submitting the matter on the reports. We have examined the reports and conclude counsel’s decision against challenging the conclusions therein was a reasonable one. Defendant cites two appellate opinions in support, but neither assists him. To the extent defendant contends Moore v.

United States (9th Cir. 1972) 464 F.2d 663, 666, indicates the Ninth Circuit Court of Appeals applies a per se reversal rule to a competency determination submitted on medical reports rather than pursuant to a full-blown jury trial, we agree with respondent that defendant misconstrues the federal appellate court’s position on this issue. (Greenfield v. Gunn (9th Cir. 1977) 556 F.2d 935, 939 [submission of competency question on doctor’s reports permissible].) Finally, People v.

Ramirez (1979) 25 Cal.3d 260 [158 Cal.Rptr. 316, 599 P.2d 622], also cited in support, is manifestly distinguishable; Ramirez concerned the procedural due process that must be afforded before an inmate can be excluded from the California Rehabilitation Center. Ramirez sheds no light on whether a defense attorney validly may waive the trial authorized by

section 1369 and submit the competency determination on the psychiatric reports. In sum, we have already decided a defense attorney may validly submit a competency determination on the available psychiatric reports (People v. McPeters, supra, 2 Cal.4th at p. 1169), and defendant fails to persuade us McPeters was decided incorrectly. We thus reject this claim, finding no error under

section 1368, no violation of either the state or federal Constitution, and no showing counsel was constitutionally ineffective for deciding to submit the competency determination on the psychiatric reports. 2. Change of Venue Citing prejudicial pretrial coverage of his trial in the local media, defendant moved for a change of venue from Kern County. In support, he submitted to the trial court a survey of public opinion about the case and 12 articles from the Bakersfield Californian, the area’s major newspaper. After a hearing, the trial court denied the motion. Defendant now claims the trial court erred.

The applicable principles are settled. A trial court should grant a change of venue when the defendant demonstrates a reasonable likelihood that in the absence of such relief, he cannot obtain a fair trial. (People v. Jennings (1991) 53 Cal.3d 334, 359 [279 Cal.Rptr. 780, 807 P.2d 1009]; People v. Williams (1989) 48 Cal.3d 1112, 1125 [259 Cal.Rptr. 473, 774 P.2d 146].) On appeal, “we make an independent determination of whether a fair trial was obtainable.” (Jennings, supra, at p. 360; People v.

Balderas (1985) 41 Cal.3d 144, 177 [222 Cal.Rptr. 184, 711 P.2d 480].) To make that decision, we examine five factors: the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. (People v. Douglas (1990) 50 Cal.3d 468, 495 [268 Cal.Rptr. 126, 788 P.2d 640].) Because this is a capital case and a double murder, the nature and gravity of the offense tilts strongly in favor of granting a change of venue, although this factor is not dispositive. (People v.

Jennings, supra, 53 Cal.3d at p. 360.) The size of the community is relatively neutral; as defendant asserts, Kern County is “neither large nor small.” At the time of trial, the county had a population exceeding 450,000 and Bakersfield, where the trial was held, had a population of 200,000. The key consideration is “whether it can be shown that the population is of such a size that it ‘neutralizes or dilutes the impact of adverse publicity.’ ” (Jennings, supra, at p. 363, quoting Lansdown v.

Superior Court (1970) 10 Cal.App.3d 604, 609 [89 Cal.Rptr. 154].) As explained, post, the adverse publicity in this case was neither relentless nor virulent. The moderate size of Kern County thus does not undermine the trial court’s decision to deny the change of venue motion. Both defendant and the victims were strangers to the community, and neither held any position of prominence or popularity.

Although defendant argues the fact that the victims were a young couple starting their life together and were “religious, church-going people” necessarily enhanced their status in the community, nothing in the record suggests these factors had any effect on the jury pool. The nature, extent, and penetration of the news coverage, especially from the Bakersfield Californian, was the most heavily litigated of the five factors.

Defendant contends the press coverage “flowed evenly for months, was vituperative in nature, pandered to base instincts, and referred to innuendoes that never proved true but which severely prejudiced [defendant].” By contrast, respondent argues “[t]he coverage of the murders in the newspaper in question was factual, not sensational.” The truth lies somewhere between these two characterizations. Defendant submitted 12 articles from the Bakersfield Californian. They ranged from a short mention on February 7, 1981, of Radford’s murder and Levoy’s disappearance (Man Found Beaten To Death On Desert Highway), to an

article on July 28, 1982, reporting that defendant had been linked to the crimes (San Quentin Inmate Linked To Kern Homicide Victim), to a June 7, 1983,

article describing defense attorney’s request for a pretrial gag order (Gag Order Asked In Murder Trial). The period of time in which the 12 articles were published was 29 months, hardly a flood of information. Jury selection began on October 9, 1984, 16 months after publication of the last

article submitted by defendant. This interval suggests that any possible prejudice flowing from the press coverage was blunted by the passage of time. With two significant exceptions, the 12 articles are largely factual and not sensational, although the reader is naturally swayed by reports of the anguish of the victims’ friends and relatives. Two articles went beyond mere factual reporting. On August 12, 1982, the Bakersfield Californian published an

article bearing the headline Suspect Expresses Regret At Raping Virgin. The

article noted Levoy was “good-looking,” a Mormon, and a virgin. Defendant was reported as regretting raping her because “he thought that meant she wouldn’t go to heaven.” The same

article noted that in addition to the two murders and kidnapping, defendant was charged with rape, sodomy, and oral copulation, charges that were later dropped. Then, on Sunday, May 29, 1983, the main headline on the front page of the Bakersfield Californian stated, Man Boasts About His Killings’, the subheading read, Trucker Suspected In Rapes, Murders Of Two Dozen Hitchhikers. The

article reported on revelations from “court documents” that defendant had told cellmate Ricky Gibson that “although it takes a long time to strangle someone, it’s exciting, very exciting, to watch a woman turn blue after she has taken her last breath.” (Defendant later testified at trial he generally exaggerated his crimes to Gibson to appear more dangerous and intimidating, and that he did not realize he was strangling Levoy, but blacked out when she bit him. He specifically denied telling Gibson that he liked to watch women turn blue when they were dying.) The

article continued, reporting that “law enforcement officers in seven states suspect [defendant] may be involved in as many as two dozen hitchhiker homicides,” including “numerous rapes.” Defendant has not, however, been charged with or convicted of any other hitchhiker-related crimes, with the exception of his crimes against David Galbraith and Michelle D., discussed post, which occurred after Radford’s and Levoy’s murders. The same

article reported that in one incident, when defendant drove off with Michelle D. and raped her, he “kept her for several days, raping and sodomizing her in the sleeper compartment of his truck-trailer rig as he drove to his home in Oroville. [H] He locked her in the closet in Oroville, taking her out only for sex.” This lurid tale proved largely untrue, as the victim’s own testimony at the penalty phase shows. In short, neither defendant’s nor respondent’s characterization of the publicity leading up to the trial is accurate.

Two newspaper articles that went well beyond mere factual reporting created a potential for prejudice. These articles emphasized the more sensational aspects of the case, aspects that the evidence presented at trial showed were either not true or not proved. Did publication of these two articles tip the balance, requiring the trial court to grant defendant’s motion for a change of venue? We conclude they did not. Although the potential for prejudice was certainly present, almost 17 months had elapsed from the time of the most inflammatory

article to the commencement of jury selection. More importantly, the evidence of public opinion presented by defendant’s own expert demonstrated that the effect of the two sensationalistic articles was minimal. Defendant employed Terry Newell, Ph.D., a licensed psychologist, to conduct a poll of public opinion. Of 377 persons contacted at random, only 187, or 53 percent, had even heard of the case.

Of those 187 persons, only 18 percent recalled defendant was suspected of crimes in other states, 14 percent thought their knowledge of the case would affect their verdict if they were to serve on defendant’s jury, and 17 percent already thought he was guilty. The survey, moreover, was conducted on July 22-24, 1983, more than a year before jury selection began. Because the record does not indicate additional articles were published, we assume the public’s recollection of the case diminished over time.

Examination of the voir dire proceedings also supports the conclusion that pretrial publicity failed to penetrate the public’s consciousness to such an extent as to compromise defendant’s ability to obtain a fair trial. Although many prospective jurors averred they recalled something about the case, the vast majority assured the court they could set aside their impressions and judge the case fairly. Although defendant emphasizes the number of prospective jurors who recalled something about the case, jurors need not be wholly ignorant of the facts of a case.

It is sufficient if the jurors can, as here, assure the court they can set aside their prior impressions and render a decision based solely on the evidence presented in court. (People v. Bean (1988) 46 Cal.3d 919, 941 [251 Cal.Rptr. 467, 760 P.2d 996].) In sum, although the gravity and nature of the crime support a change of venue, the size of the community is a neutral factor, and the status of both defendant and his victims in the community supports a denial of a change of venue.

The critical factor, the extent and nature of the pretrial publicity, was—considering the totality of the evidence—mildly supportive of a denial of a change of venue despite the publication of two potentially prejudicial articles. Weighing all these factors, we conclude the trial court correctly denied the motion. 3. Failure to Admonish the Prospective Jurors In preliminary proceedings, the court organized the jury pool into groups, telling certain prospective jurors to return for voir dire after lunch, while assigning others future times and days in which they were to return to court for voir dire.

Before the latter jurors left the courtroom, the trial court did not admonish them against discussing the case, reading or listening to media accounts, or visiting the scene of the crimes. Defendant acknowledges that the statutory requirement that jurors be admonished (§ 1122) applies only after a jury is sworn and thus does not expressly apply to this preliminary period in the jury selection process. (People v.

Horton (1995) 11 Cal.4th 1068, 1094 [47 Cal.Rptr.2d 516, 906 P.2d 478].) Nevertheless, he contends the trial court’s failure to admonish the jury violated his federal constitutional rights to a fair trial, an impartial jury, and a reliable guilt and penalty verdict, as well as his analogous rights under the state Constitution. We have explained that “the giving of the admonition to prospective jurors during the voir dire process constitutes a sound judicial practice” (People v. Horton, supra, 11 Cal.4th at p. 1094), but that failure to do so does not constitute error.

Because our Horton opinion makes no mention of whether we considered all the constitutional bases defendant now asserts, Horton does not fully dispose of defendant’s claim. We nevertheless find three reasons why the claim is meritless. First, defendant failed to object or call the trial court’s attention to the lack of an admonishment. The issue is thus forfeited on appeal. (Cf. People v.

Heishman (1988) 45 Cal.3d 147, 175 [246 Cal.Rptr. 673, 753 P.2d 629] [where § 1122 applies, a timely objection is necessary].) Second, even assuming the issue were preserved for appeal, we are unaware of any constitutional requirement that our trial courts admonish prospective jurors so far in advance of a trial. Certainly defendant does not cite any authority to that effect. Third, any prospective jurors who discuss the case, form opinions, view the crime scene, or do legal research can be discovered during the voir dire process and be either excused or rehabilitated at that time.

Although defendant directs our attention to a few jurors who may have acquainted themselves with the law after being notified they might be chosen for the jury, he fails to explain why his right to a fair trial and an impartial jury could not be protected by rehabilitating those jurors or excusing them for cause or peremptorily if they could not be rehabilitated. He thus fails to show prejudice. (People v. Heishman, supra, 45 Cal.3d at p. 175.) Defendant’s ability to strike such jurors also protects his rights under both the state and federal Constitutions to a reliable verdict.

Defendant also contends his trial attorney provided ineffective assistance of counsel by failing to ask the court to admonish the prospective jurors. He claims his counsel could have had no conceivable tactical reason for the omission. Even assuming that to be true, defendant fails to demonstrate how he was prejudiced. Accordingly, he does not show his trial attorney was constitutionally ineffective under either the state or federal Constitution. (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland v.

Washington (1984) 466 U.S. 668, 691-692 [104 S.Ct. 2052, 2066-2067, 80 L.Ed.2d 674].) 4. Failure to Excuse Jurors for Cause During voir dire, two venirepersons questioned by defense counsel expressed the general belief that the death penalty was the appropriate penalty for all murders. Defendant challenged the prospective jurors for cause. In each instance, the prosecutor questioned the prospective juror and rehabilitated him somewhat. The trial court denied defendant’s challenges for cause, leading defendant to excuse each venireperson by exercising a peremptory challenge.

Defendant now contends the trial court’s failure to excuse the two prospective jurors for cause violated his rights under the state and federal Constitutions. We disagree. The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence. (People v.

Crittenden (1994) 9 Cal.4th 83, 120-121 [36 Cal.Rptr.2d 474, 885 P.2d 887].) “[A] juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would ‘prevent or substantially impair’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (Id. at p. 121, quoting Wainwright v.

Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 852, 83 L.Ed.2d 841].) If the death penalty is imposed by a jury containing even one juror who would vote automatically for the death penalty without considering the mitigating evidence, “the State is disentitled to execute the sentence.” (Morgan v. Illinois (1992) 504 U.S. 719, 729 [112 S.Ct. 2222, 2230, 119 L.Ed.2d 492].) Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. (People v.

Rodrigues (1994) 8 Cal.4th 1060, 1146 [36 Cal.Rptr.2d 235, 885 P.2d 1].) The trial court must determine whether the prospective juror will be “unable to faithfully and impartially apply the law in the case.” (Id. at p. 1147.) A juror will often give conflicting or confusing answers regarding his or her impartiality or capacity to serve, and the trial court must weigh the juror’s responses in deciding whether to remove the juror for cause.

The trial court’s resolution of these factual matters is binding on the appellate court if supported by substantial evidence. (Ibid.) “[W]here equivocal or conflicting responses are elicited regarding a prospective juror’s ability to impose the death penalty, the trial court’s determination as to his true state of mind is binding on an appellate court. [Citations.]” (People v. Ghent (1987) 43 Cal.3d 739, 768 [239 Cal.Rptr. 82, 739 P.2d 1250].) Applying these rules to this case, we conclude the trial court did not abuse its discretion in denying defendant’s two challenges for cause.

At the threshold, we note that a defendant challenging on appeal the denial of a challenge for cause must fulfill a trio of procedural requirements: (1) the defense must exercise a peremptory challenge to remove the juror in question; (2) the defense must exhaust all available peremptory challenges; and (3) the defense must express dissatisfaction with the jury as finally constituted. (People v.

Crittenden, supra, 9 Cal.4th at p. 121.) In this case, defense counsel moved to excuse Prospective Jurors B.M. and F.M. for cause, each challenge was denied, and counsel exercised a peremptory challenge to remove each juror. Counsel subsequently exhausted the 26 peremptory challenges then granted by statute. (Pen. Code, former § 1070, subd. (a), repealed by Stats. 1988, ch. 1245, § 30, p. 4155; see now Code Civ.

Proc., § 231, subd. (a), added by Stats. 1988, ch. 1245, § 2, p. 4152 [granting each side 20 peremptory challenges in a capital case].) Defense counsel failed, however, to express on the record his dissatisfaction with the jury. Defendant concedes as much. Accordingly, the issue was not preserved for appeal, as it is possible that counsel, despite initial misgivings, was ultimately satisfied with the overall composition of the jury. Also possible is that, had counsel expressed dissatisfaction, the trial court would have allowed him to exercise additional peremptory challenges. (See People v.

Bittaker (1989) 48 Cal.3d 1046, 1087 [259 Cal.Rptr. 630, 774 P.2d 659].) Although a procedural obstacle thus exists to reaching this issue on appeal, we do not, for several reasons, rest our decision solely on this procedural lacuna. First, language in past cases suggested that counsel’s expression of dissatisfaction with the jury was not always a necessary prerequisite to challenging on appeal a trial court’s decision denying a challenge for cause. (E.g., People v.

Crittenden, supra, 9 Cal.4th at p. 121, fn. 4.) Second, defendant argues it is “inconceivable” that counsel was satisfied with the jury, as it contained one juror with strong ties to the law enforcement community who stated on voir dire that he believed the death penalty was warranted for any premeditated murder.

Third, because the presence of even a single juror compromising the impartiality of the jury requires reversal, counsel would be constitutionally ineffective if he had failed to voice dissatisfaction with the jury as constituted, all the while knowing a biased juror was sitting among the 12 seated jurors. We thus turn to the merits. a. Juror B.M. Juror B.M., a refinery worker, professed knowing almost nothing about the case. He informed the court that he could impose either the death penalty or a life sentence without the possibility of parole, depending on all the evidence he heard.

But when defense counsel Donnalee Huffman asked him his views concerning the death penalty, Mr. B.M. stated that, “as a taxpayer, I am personally in favor of it.” He admitted he was more apt to impose a sentence of death over life imprisonment and, when asked whether there was “any other way that you could vote,” he replied, “I don’t believe so.” The prosecutor, Ronald Shumaker, then explained to the juror the penalty phase process, with the People presenting aggravating evidence and the defense presenting mitigating evidence.

He further explained that the trial court would instruct the jury to weigh the two sides before coming to a decision on the appropriate penalty. The following then occurred: “Q [Mr.

Shumaker] Could you, if the Court instructs you in that regard, follow those instructions and make a decision on that kind of a standard? “A [Juror B.M.] Yes, on that standard, yes. “Q Even though you may feel that the life without parole is an expensive process, you could still render that decision if in fact you felt that the factors favoring [a life term] outweighed those favoring the death penalty? “A Yes, I could.” This record indicates that although Juror B.M. initially expressed the view he would automatically vote for the death penalty, when informed of the penalty phase process he retracted that rigid position and professed a willingness and ability to follow the trial court’s instructions to weigh all the evidence before coming to a penalty decision.

The trial court obviously credited this latter testimony in denying the challenge for cause. Substantial evidence supports the trial court’s factual determination. We thus find no abuse of discretion in the court’s denial of the challenge to Juror B.M. for cause. b. Juror F.M. When questioned by the trial court, Juror F.M. affirmed his ability to vote for life imprisonment without the possibility of parole if, based on all the facts, it was the appropriate penalty. He could also vote for the death penalty.

When questioned by cocounsel for the defense, Donnalee Huffman, however, Juror F.M. stated that “if a person’s life is taken and he is found guilty, then he should be sentenced to death.” When asked whether “every murder conviction should be given the death penalty,” Juror F.M. replied, “Well, I think so, yes, murder conviction, yes.” He admitted he was “death penalty prone” and that he believed the death penalty was the proper 925punishment “in almost every situation.” He also stated, however, that he could consider sympathy and mercy and that to vote for a life sentence, he would look for mitigating factors such as medical and psychiatric testimony.

He several times averred he would have to hear the evidence from the entire case before making up his mind. Mr.

Shumaker explained to the juror the penalty phase process, including the necessity of weighing the aggravating and mitigating evidence, and asked him whether, “[i]f the Court tells you that that’s the law and the instruction you are to follow in this case, do you feel that you could do that?” He replied, “Yes, life without parole, yes.” He also affirmed that he could judge both sides of the issue by “the same standard.” As with Juror B.M., the record indicates that although Juror F.M. initially asserted that he would automatically vote for the death penalty, he modified his view when informed by the prosecutor of the penalty phase process.

He then affirmed his willingness and ability to follow the trial court’s instructions to weigh all the evidence before coming to a penalty decision. We cannot say the trial court’s decision to credit these statements was made in the absence of substantial evidence, or that its decision to deny the challenge for cause was an abuse of discretion.

In the alternative, defendant argues the trial court’s erroneous denial of his two challenges for cause forced him to excuse Jurors B.M. and F.M. by exercising two of his peremptory challenges, thereby infringing on his federal constitutional right to a state-created liberty interest in his full statutory complement of peremptory challenges. He claims he should not be forced to surrender one constitutional right (his asserted state-created liberty interest in a full complement of peremptory challenges) to vindicate another constitutional right (his right to a jury free from biased jurors).

We rejected this argument in People v. Gordon (1990) 50 Cal.3d 1223, 1248, footnote 4, [270 Cal.Rptr. 451, 792 P.2d 251], and defendant does not convince us we should reconsider that decision. We conclude defendant failed to preserve this issue for appeal, and that even if the issue were properly before us, he does not demonstrate the trial court abused its wide discretion when it denied his challenge to Jurors B.M. and F.M. for cause. Moreover, because neither prospective juror actually sat on defendant’s jury, he was not deprived of his constitutional right to an impartial jury. (Ross v.

Oklahoma (1988) 487 U.S. 81, 86 [108 S.Ct. 2273, 2277, 101 L.Ed.2d 80].) C. Discussion: Trial Issues 1. Miranda The information Ricky Gibson provided police regarding defendant’s inculpatory statements about the murders of Radford and Levoy led to the discovery that Levoy’s body was buried in defendant’s backyard. This in turn led police to defendant, who was at that time serving a sentence for unrelated crimes in San Quentin State Prison. Police spoke to defendant on July 27 and 28, 1982, and on August 2, 1982. The interviews on the latter two dates were tape-recorded.

In those interviews, defendant essentially confessed to the crimes of which he now stands convicted. He claims on appeal that admission at trial of his statements to police on those dates violated his rights under the state and federal Constitutions. His primary claim is that police violated his rights as set forth in Miranda v. Arizona, supra, 384 U.S. 436 (Miranda). As we explain, he is mistaken. a. The facts Sergeants Gary Davis and Glen Johnson of the Kern County Sheriff’s Department testified they went to San Quentin State Prison on July 27, 1982, to speak to defendant about a double homicide.

Prison officials placed the two officers alone with defendant in the security squad office. Sergeant Davis testified that at the beginning of the 30-minute interview, he advised defendant of his Miranda rights, reading from a preprinted form from the sheriff’s office. Defendant replied verbally that he understood his rights and would speak with the officers. In this first interview, defendant stated he was not involved in the homicides.

Sergeant Davis advised defendant that this was his chance to talk to them, but that they would be filing a report with the district attorney’s office for a possible complaint against defendant charging him with the murders. Davis also told defendant he already had spoken with defendant’s wife, son, mother, and father about the crimes. Defendant then told Davis he wished to speak with his mother and that, after doing so, he would advise Davis whether he wished to continue their conversation. Defendant then requested that the interview cease, and the officers withdrew.

According to Sergeant Davis, defendant appeared alert and coherent, and his answers were responsive to Davis’s questions. At no time did he indicate a desire to have an attorney present. Following this first interview, Davis called defendant’s parents’ home and informed his father that defendant wished to speak to his mother. Sergeant Davis did not tape-record this first interview because he was not allowed to enter the prison with his recording equipment, as the prison was in full lockdown due to an in-prison disturbance.

At the end of the interview, he spoke with prison officials about his inability to record the interview with defendant. The prison offered Davis the use of its own recording equipment should he return for future meetings with defendant. The next day, July 28, 1982, Davis and Johnson returned to the prison in the morning but were unable to see defendant because he was meeting with his mother. The officers eventually met with defendant in the afternoon, again in a security squad office. This second interview was tape-recorded using the prison’s recording equipment.

Davis testified that he again read defendant his Miranda rights and defendant again stated he understood his rights and wished to speak to the officers. He told the officers that he wanted to make a statement and would do so whether an attorney was present or not, and that he later wanted to testify in court about how he had committed the homicides. Sergeant Davis denied threatening defendant or promising him any benefits should he decide to speak with them. The officers promised only to listen to defendant’s entire story.

During this second interview, defendant admitted his involvement in the Radford and Levoy murders. Defendant did not appear drowsy or sleepy, and his answers were responsive to the officers’ questions. On cross-examination, Sergeant Davis specifically denied threatening to arrest defendant’s son if defendant refused to talk to them, denied threatening to arrest someone close to defendant’s family, and denied saying that he would not have defendant’s mother come to see him if defendant would not, afterwards, agree to talk to police.

Davis stated he advised defendant of his rights on the second day while the tape recorder was running and did not advise him of his rights before the tape recorder began. He repeated that defendant did not appear drowsy and that defendant’s speech was not slurred or slow. Sergeant Glen Johnson essentially confirmed Sergeant Davis’s testimony.

Johnson specifically corroborated Davis’s testimony that Davis had read defendant his Miranda rights before the interviews on July 27 and 28, 1982, and that defendant did not appear sleepy or otherwise under the influence of drugs, although Johnson recalled defendant had said he was “sedated.” Sergeant Johnson further testified that he alone conducted a third interview with defendant on August 2, 1982. The interview occurred in the same place as the first two interviews. Johnson read defendant his Miranda rights from a card and obtained defendant’s agreement to talk.

During this third interview, defendant appeared fully aware of his surroundings and did not exhibit any excessive movements or unusual perspiration. He was alert and responsive. Sergeant Johnson testified he did not threaten to arrest defendant’s son or other family members. He did not recall hearing defendant say anything about wanting an attorney present. The defense called defendant’s mother, Dorothy Weaver, to the stand. She testified she had just visited her son in late July when police visited her and informed her of defendant’s possible involvement in the Radford and Levoy murders.

She decided to visit him again to hear the truth; she denied police contacted her by telephone. She drove to San Quentin the next day with defendant’s sister, Katie S. When Mrs. Weaver spoke to defendant, he told her police had informed him that if he did not cooperate, they would arrest his son as well as another close loved one. His sister told defendant he should consult an attorney before speaking with the police, but Mrs. Weaver simply urged defendant to tell the truth. The defense then called Katie S. to the stand. She confirmed her mother’s testimony regarding their visit with defendant, including Mrs.

Weaver’s testimony that defendant said police had threatened to arrest defendant’s son and a close loved one unless he cooperated. In addition, she testified that when her mother left to use the restroom, defendant told her the close loved one police had threatened to arrest was his mother. Defendant seemed very agitated, and his body was shaking. She told defendant not to talk to anyone until he conferred with a lawyer. He replied that he had “no choice” and repeated that police would arrest his son and mother. Defendant’s son was 12 years old at the time. Defendant then testified.

He asserted that when the police first came to talk to him at the prison, he was taking 600 milligrams of Mellaril a day to calm himself down. The officers did not inform him of his Miranda rights at any time during that first interview. When defendant denied having anything to do with the crimes, the officers told him they did not have “time to mess around” and that they would go to Oroville and arrest his son and another member of his family. Not wishing to have his son arrested, defendant told them he wanted to speak with his mother.

If the police would arrange it, he agreed to speak to the officers after speaking to his mother. He acknowledged the police officers did not tape-record that first interview. His mother and sister visited him the next day. While his mother was away from the table, defendant told his sister that he believed police intended to arrest his mother. After their visit, he met with the two officers. Before the tape recorder was turned on, they read him his Miranda rights and he indicated he would like to have an attorney present. He also said he wanted his invocation of his right to counsel on the tape.

Sergeant Johnson told him it was not necessary to put that information on the tape because “everybody knows that you want an attorney present.” Defendant then went ahead without an attorney and gave a statement because he did not want police to arrest his son or other family member. On cross-examination, defendant confirmed he never put his invocation of his right to counsel on the tape. He believed that had he done so, police would have terminated the interview and arrested his son. He did not know of any reason why police would arrest his son.

He believed the threat to arrest a close family member referred to his mother because “she is the only one that I am real close to.” He did not know of any reason why police would arrest his mother. Defendant testified that on the second day of interviews, police advised him of his rights twice, once before the tape recorder was running and once after. Before the tape was turned on, the police officers told him what to say in response to each Miranda advisement. After the tape was turned on, defendant testified, he repeated each response as instructed.

Defendant admitted he knew he had the right to an attorney and that one would be provided him should he so desire. Defendant admitted the third interview was “somewhat” his idea and that he did not invoke his right to counsel.

Defendant did not remember whether the officer had advised him of his rights, but he “knew better than to ask [for an attorney] on tape.” He stated: “I wanted to make sure that they had everything they wanted so they wouldn’t arrest my son and other members of my family.” On redirect, defendant stated that his son had helped him dig the hole in which Levoy was buried and that was the reason he believed police might arrest him. He averred the “main reason” he gave a statement to police was to protect his family.

The prosecutor then recalled Sergeant Davis, who reaffirmed that defendant had never asked for an attorney and that he had never threatened defendant by saying he would arrest his son. Sergeant Johnson, also recalled, similarly denied threatening defendant with the arrest of his son.

After listening to the tapes and considering the briefing, the trial court ruled that defendant had been properly advised of and waived his Miranda rights; that despite his ingestion of prescribed drugs, his mental state was such that he could, and did, give his statement intelligently, freely and voluntarily; and that such statement was not the product of any coercion stemming from a threat to arrest defendant’s family members. The court stated it was convinced of the voluntariness of defendant’s statement beyond a reasonable doubt. b. The applicable law The law is well settled.

When reviewing a trial court’s decision on a motion that a statement was collected in violation of the defendant’s rights under Miranda, supra, 384 U.S. 436, we defer to the trial court’s resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. (People v.

Bradford (1997) 14 Cal.4th 1005, 1032-1033 [60 Cal.Rptr.2d 225, 929 P.2d 544].) Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was obtained in violation of Miranda’ s rules (Bradford, supra, at p. 1033), that is, whether (assuming the defendant was in custody) the statement was preceded by the now-famous admonition of Miranda rights: the defendant has the right to remain silent, any statement he might make can be used against him, he has the right to the presence of an attorney, and an attorney will be provided at state expense if he cannot afford one. (Dickerson v.

United States (2000) 530 U.S. 428, 435 [120 S.Ct. 2326, 2331-2332, 147 L.Ed.2d 405].) If a custodial defendant requests counsel, all questioning must cease. (Edwards v. Arizona (1981) 451 U.S. 477, 482 [101 S.Ct. 1880, 1883-1884, 68 L.Ed.2d 378].) Statements made by a custodial defendant in the absence of Miranda warnings are inadmissible in the prosecution’s case-in-chief. (People v. Bradford, supra, 14 Cal.4th at p. 1033.) There is no dispute in this case that police were interrogating defendant (see, e.g., Rhode Island v.

Innis (1980) 446 U.S. 291 [100 S.Ct. 1682, 64 L.Ed.2d 297]) or that defendant was in custody. The only issues are whether defendant was given Miranda warnings before giving his statements on July 28 and August 2, 1982, whether he invoked his right to counsel, and whether he was coerced into waiving his rights by threats to arrest his son and another family member. We turn to those issues now. c. Analysis The difference in the testimony regarding whether Sergeants Davis and Johnson read defendant his Miranda warnings was striking.

The officers testified they read defendant the Miranda warnings from a preprinted card. Defendant testified they either did not read him his rights, or they suggested to him (while the tape recorder was off) that should he invoke his rights, they would arrest his son. Defendant’s story was supported by the testimony of his mother and his sister. The officers expressly denied such threats. We assume the trial court considered the demeanor of the witnesses, as well as the interest each party had to tell the truth.

We also assume the trial court considered such factors as the likelihood that police would threaten to arrest a 12-year-old boy for a double murder, the likelihood they would threaten to arrest defendant’s mother in the absence of any evidence she was at all involved in the crimes, the inability of defendant to explain why he believed the officers’ alleged threat to arrest a close family member was a threat to arrest his mother, the fact defendant waived his Miranda rights on the tape recording, the tone of his voice on the tape, the evidence of his medication, and the testimony describing his behavior, mood, and emotional state during the interviews.

All things considered, we conclude substantial evidence supports the trial court’s decision to credit the testimony of Sergeants Davis and Johnson that, before interrogating defendant, they properly “MirandizecT him and obtained a waiver of his rights. Substantial evidence also supports the trial court’s decision to disbelieve defendant, his sister and his mother that police coerced defendant into waiving his rights. This was a simple credibility determination for which we defer to the trial courts.

Defendant raises a number of counterarguments, but all are speculative and do not undermine the substantial nature of the evidentiary support for the trial court’s decision. He suggests the short duration of the first interview on July 27, 1982, was somehow suspicious. Not at all: police testified that, on that day, defendant denied involvement but agreed to speak with them again if he could first talk to his mother. Defendant also argues the fact the first interview was not tape-recorded is also suspicious.

But Davis and Johnson explained the problem they had bringing their own recording equipment into the prison, a problem that was solved by the next day when they were able to use the prison’s own recording equipment. Nor is it suspicious that Sergeant Davis states at the beginning of the tape of the July 28 interview that “one of the things we talked about was advising you of your rights and at this time I’m gonna advise you of your rights.” (Italics added.) By saying “at this time” Davis did not, as defendant argues, necessarily mean that he had failed to read defendant his Miranda rights on the previous day.

Defendant further argues that the interviews on July 28 and August 2 were “inextricably connected” with the interview on July 27 and, because police did not read him his Miranda warnings on July 27, the subsequent interviews were tainted by that illegality. The trial court found, however, that the officers had read defendant his Miranda warnings on July 27, and substantial evidence supports that decision, namely, the testimony of Sergeants Davis and Johnson. This argument thus fails.

Defendant also contends that because he invoked his right to counsel on July 27, subsequent interrogations without counsel were prohibited even if he was re-Mirandized. But implicit in the trial court’s ruling that defendant executed a sufficient waiver of his rights on July 27 is the conclusion that defendant did not invoke his right to counsel at that time. Subsequent interrogations, therefore, were permissible, provided defendant was reMirandized. That he was readmonished before each interview with police is supported by substantial evidence.

Accordingly, the rule against interrogations following an invocation of counsel is inapplicable. d. Voluntariness Miranda aside, defendant also contends admission at trial of the statements he made to police on July 28 and August 2, 1982, violated his constitutional rights because they were involuntarily made. An involuntary confession is inadmissible under the due process clauses of both the Fourteenth Amendment to the federal Constitution (Jackson v. Denno (1964) 378 U.S. 368, 385-386 [84 S.Ct. 1774, 1785-1786, 12 L.Ed.2d 908, 1 A.L.R.3d 1205]) as well as

article I, sections 7 and 15 of the California Constitution (People v. Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330]). Threats to arrest family members, as defendant claims occurred here, can render a subsequent confession involuntary. (Lynumn v. Illinois (1963) 372 U.S. 528, 534 [83 S.Ct. 917, 920-921, 9 L.Ed.2d 922]; People v. Matlock (1959) 51 Cal.2d 682, 697 [336 P.2d 505, 71 A.L.R.2d 605].) “Under both state and federal law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a confession. (Withrow v.

Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 1753-1755, 123 L.Ed.2d 407].)” (People v. Massie (1998) 19 Cal.4th 550, 576 [79 Cal.Rptr.2d 816, 967 P.2d 29].) Defendant raised the voluntariness issue below, and the trial court denied his motion to suppress on this ground. Although at present the state’s burden is to prove the voluntariness of a confession by a preponderance of the evidence, defendant’s crimes occurred before the enactment of

article I,

section 28, subdivision (

d) of the state Constitution, the so-called Truth in Evidence provision that was added to the state charter by passage of Proposition 8 in 1982. Accordingly, at defendant’s trial the state was required to show the confession was voluntary beyond a reasonable doubt. (People v. Benson, supra, 52 Cal.3d at p. 770 & fn. 1; People v.

Markham (1989) 49 Cal.3d 63, 65 [260 Cal.Rptr. 273, 775 P.2d 1042].) On appeal, our role when reviewing the trial court’s determination that a confession was voluntary is similar to the standard applied in the Miranda context: we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. (People v.

Howard (1988) 44 Cal.3d 375, 394 [243 Cal.Rptr. 842, 749 P.2d 279].) Defendant’s argument that his statements to police on July 28 and August 2, 1982, were involuntary is brief and no more persuasive than his Miranda-related claims. He contends the threats to arrest his son as well as a close family member (that he took to be a threat to arrest his mother) overcame his free will, causing him to confess his crimes.

In denying the motion to suppress, however, the trial court implicitly disbelieved the testimony of defendant, his mother and his sister and instead credited that of Sergeants Davis and Johnson that no such threats were made. There is substantial evidence supporting this implied finding: both officers directly and strongly denied issuing such threats, no such threats appear on the tape recording of the interrogations, and the implausibility that police would arrest a 12-year-old boy or Dorothy Weaver in the absence of any evidence of their complicity in the crimes all support the trial court’s decision.

Although defendant does not expressly make the argument here, to the extent he suggests his statements were involuntary because at the time of the interviews with police he was under the influence of medication, we reject that claim as well. The due process inquiry focuses on the alleged wrongful and coercive actions of the state, here Sergeants Davis and Johnson, and not the mental state of defendant. (Colorado v.

Connelly (1986) 479 U.S. 157, 165 [107 S.Ct. 515, 520-521, 93 L.Ed.2d 473].) Because the trial court determined that neither officer engaged in wrongful conduct, the mere fact defendant was taking medication prescribed by the prison medical staff is insufficient to establish a claim of involuntariness. (See Clabourne v. Lewis (9th Cir. 1995) 64 F.3d 1373, 1379 [defendant’s confession not involuntary despite being under the influence of prison-prescribed Thorazine]; see also People v.

Hendricks (1987) 43 Cal.3d 584, 591 [238 Cal.Rptr. 66, 737 P.2d 1350] [consumption of alcoholic beverages during interrogation did not render confession involuntary].) e. Boykin-Tahl Finally, defendant contends that because his statements to police on July 28 and August 2, 1982, constituted a full confession of guilt, those statements should be deemed inadmissible because police failed to obtain specific waivers as to each constitutional right he was forfeiting by confessing, analogizing to the legal requirements applicable to guilty pleas. (Boykin v.

Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449] .) No state or federal authority exists for extending the protections of Boykin and Tahl to extrajudicial confessions. Nor is such extension necessary. The warning required by Miranda adequately informs an accused of his right against compelled self-incrimination under the Fifth and Fourteenth Amendments to the federal Constitution, and police here obtained a waiver of that right from defendant.

The other rights an accused waives by pleading guilty—the right to a jury trial and to confront one’s accusers (Boykin v. Alabama, supra, 395 U.S. at p. 243 [89 S.Ct. at p. 1712])—are not lost by providing police with an out-of-court confession. The confession thus did not necessitate a prophylactic Boykin-type warning. 2.

The Search of Defendant’s Backyard Defendant moved to suppress the body of Barbara Levoy and other evidence flowing from the discovery of her body, such as clothing, autopsy reports and dental comparison evidence, claiming the search police conducted exceeded the scope of the consent given by defendant’s ex-wife, Barbara Weaver. A hearing on the suppression motion was held on September 1, 1983.

Sergeant Glen Johnson testified that he and Sergeant Gary Davis traveled to defendant’s Oroville home after learning from inmate Ricky Gibson that defendant had told Gibson he was guilty of a double murder and that one of the victims was buried in his yard. They contacted Barbara Weaver at her home, explained the purpose of their visit, and asked whether defendant had done any digging in the yard early in 1981. She replied in the affirmative. Davis told defendant’s ex-wife that police proposed to dig in her yard to attempt to find the victim’s body, and she consented orally.

She then signed the standard sheriff’s office consent form, which states: “I consent that Officer _ of the Kern County Sheriff’s Department and deputies under his control enter my residence and/or my motor vehicle(

s) to search for evidence pertinent to his investigation. [U] I am giving this written permission to these officers freely and voluntarily, without any threats or promises having been made, and after having been informed by said officer that I have a right to refuse this search and/or seizure.” The form is signed by Barbara Weaver; the names of Sergeants Davis and Johnson are inscribed in the blank space. On cross-examination, Sergeant Johnson testified he had, on a few previous occasions, added handwritten modifications to the standard consent form and had the consenting person initial the changes.

No particular reason existed why he failed to modify the form in this case to specify he intended to dig up the yard. Barbara Weaver, defendant’s ex-wife, also testified. She stated she signed the consent form and that some discussion took place about digging in the yard, but “[i]t was just talk.” She understood her consent to include searching her residence only. On cross-examination, she admitted the officers had told her they suspected a body was buried in her yard and that they wished to search her yard, but she did not remember telling the officers they could dig up her yard.

Once the officers began digging, she was afraid to ask them to stop. The trial court denied the suppression motion, saying: “I find the testimony of [Barbara] Weaver to be incredible in certain aspects about the officers asking to search the house for a body and she thought well, maybe there could possibly be a body in the house but not in the yard when there was evidence that the defendant had done some digging in the yard and she knew about the digging and even pointed it out to the officers and cooperated with the officers in showing them places where he had done some digging.

Then her answers to some of the specific questions as to what she said specifically, she would tense up each time and then take quite a bit of time to answer those questions. [H] I do not feel that she was being truthful in answers to many of those specific questions as to what she said. [H] . . . no i believe the officer’s testimony.

I don’t believe her testimony in certain particulars when she indicates that she does not remember telling the officer specific things and that she did not consent to the search of the yard, orally at least, and so the motion to suppress is denied.” Defendant contends the trial court erred, and that the search exceeded the scope of Barbara Weaver’s consent. He also contends her consent was involuntary. We disagree. “The standard of appellate review of a trial court’s ruling on a motion to suppress is well established.

We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362 [45 Cal.Rptr.2d 425, 902 P.2d 729].) As with the Miranda issue discussed above, this issue turns on a credibility determination made by the trial court. Sergeant Johnson testified Barbara Weaver gave her consent to search the yard; she testified she gave no such consent.

After hearing both witnesses testify, the trial court specifically credited Sergeant Johnson, noting Barbara Weaver tensed up and then took a long time to answer certain questions. Evaluating such nonverbal factors in determining the credibility of witnesses is a task uniquely for the trial court, as such factors are not apparent from the face of the record. We thus defer to the trial court’s decision in this matter and find substantial evidence supports the court’s decision that Barbara Weaver consented to a search of her yard.

Defendant further contends his suppression motion should have been granted because Barbara Weaver’s consent to the search was involuntary. We agree with respondent that defendant did not preserve this issue for appeal. A claim based on the voluntariness of Barbara Weaver’s consent appears nowhere in defendant’s moving papers, defense counsel’s oral argument at the suppression hearing, or in the trial court’s oral decision. The issue is thus not properly before us. (People v. Bradford, supra, 14 Cal.4th at p. 1038.) Assuming the issue was preserved, we reject it on the merits.

Six or seven officers presented themselves at Barbara Weaver’s home (Sergeants Davis and Johnson, as well as four or five other officers who were there to dig), and defendant suggests they were an intimidating force. Although the state has the burden of proving that Barbara Weaver’s “consent was . . . freely and voluntarily given,” and the “burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority” (Bumper v.

North Carolina (1968) 391 U.S. 543, 548-549 [88 S.Ct. 1788, 1792, 20 L.Ed.2d 797]), the prosecution satisfied this burden with evidence of Barbara Weaver’s signed consent form and her testimony that she freely consented to a search of her house. Nothing in this record suggests Barbara Weaver’s free will was overborne by the searching officers. We thus reject defendant’s claim that her consent to search the yard was involuntary. 3.

Alleged Ineffective Assistance of Counsel: Failure to Present a Diminished Capacity Defense At the guilt phase of the trial, defense counsel defended the charge that defendant was guilty of murdering Radford in the first degree by attempting to persuade the jury that defendant did not intend to kill Radford, but only to knock him unconscious.

As to Levoy, counsel argued both that the killing did not occur during the commission of the rapes because the sexual assaults had long since terminated by the time defendant killed her, and that defendant had strangled Levoy when she bit him on the thumb, enraging him and causing him to lose contact with reality. As to Levoy, then, counsel argued the criminal homicide was not elevated to first degree murder on either a felony-murder or a premeditation theory.

Despite possession of a large amount of expert evidence related to defendant’s mental condition, counsel chose not to present a defense of diminished capacity. Defendant claims this decision demonstrates he was not afforded the effective assistance of counsel. We disagree. “ ‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v.

Washington[, supra,] 466 U.S. 668, 687-688 . . . .) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692 . . . .) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto[, supra,] 48 Cal.3d 1247, 1257. . . ; Strickland, supra, at p. 694 ....)’ (People v.

Jennings[, supra] 53 Cal.3d 334, 357. . . .)” (In re Avena, supra, 12 Cal.4th at p. 721, first ellipsis in Avena.) “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412), and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436-437 [48 Cal.Rptr.2d 525, 907 P.2d 373], quoting Strickland v.

Washington, supra, 466 U.S. at p. 689 [104 S.Ct. at p. 2065].) “[W]e accord great deference to counsel’s tactical decisions” (People v. Frye (1998) 18 Cal.4th 894, 979 [77 Cal.Rptr.2d 25, 959 P.2d 183]), and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight” (People v. Scott (1997) 15 Cal.4th 1188, 1212 [65 Cal.Rptr.2d 240, 939 P.2d 354]). “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” (People v.

Bolin (1998) 18 Cal.4th 297, 333 [75 Cal.Rptr.2d 412, 956 P.2d 374].) In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. (People v. Earp (1999) 20 Cal.4th 826, 896 [85 Cal.Rptr.2d 857, 978 P.2d 15]; see also People v.

Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144] [on appeal, a conviction will be reversed on the ground of ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission”].) In this case, however, counsel set forth on the record specific reasons for deciding to forgo a diminished capacity defense. “[T]here are many tactical considerations that the defense has to review prior to commenting on evidence and taking a basic theory of defense when arguing the case at the conclusion of the evidence.

We made a determination that we didn’t want to attack diminished capacity or use diminished capacity as an argument, although we felt it was necessary as a jury instruction because of some of the evidence brought up; however, if we had argued the fact that there was diminished capacity, we would have not had proceeded [sz'c] on argument that we did, which is [defendant] looked at the possibility of personally attempting to kill someone, reflected [on] that [possibility] and ma[d]e the decision, a thinking decision of only attempting to knock the man out.

We couldn’t have faithfully argued that to the jury if we had the counter argument that he didn’t have the ability to deliberate and premeditate so we decided to go with the strongest evidence we had, which was no intent to kill. [H] . . . [1[] Further, we decided not to submit any evidence of diminished capacity by way of medical testimony, reserving that defense for the insanity [szc] phase rather than coming in and destroying whatever evidence we were presenting relative to his ability to decide and make a logical conclusion as to his actions.

We felt that there would be an inconsistent argument which would water down our credibility with the jury if we were to go both ways, so we decided to go and approach it one way.” “Those were tactical decisions and I am not saying that what we did was right, looking at the results, but it was a decision that we had to make and we believe that they were considered opinions predicated upon the evidence, [and the] state of the law as we knew it to be.” As is clear, counsel had a reasoned explanation for their decision to forgo a diminished capacity defense at trial and to rely on what they considered their stronger arguments, namely, that defendant did not premeditate the killings and that Levoy’s killing came after the rape had terminated.

Defendant makes a number of arguments why he believes counsel’s admittedly tactical decision was deficient, but none is availing. He claims counsel were mistaken in believing that a diminished capacity defense would have been inconsistent with the defense that defendant made a “thinking decision” to knock Radford out but not to kill him. Yet defendant admits that in his pretrial statement to police, he said he intended merely to knock Radford out. At trial, moreover, defendant testified he did not think Radford would suffer serious injury.

Defendant also contends trial counsel were mistaken in concluding a diminished capacity defense would have been inconsistent with their defense that Levoy’s killing did not occur during the commission of the rapes. But in making the temporal argument that the rapes had terminated, defense counsel David Huffman may well have believed that reliance as well on a diminished capacity defense would have undercut the thrust of the main defense theory of the case.

We take counsel’s statement that he could not have “faithfully argued” his chosen defense theory if he also used a diminished capacity argument to mean as much. We reach the same conclusion with respect to defendant’s claim that the unconsciousness defense, that is, that defendant became enraged and lost consciousness when Levoy bit his thumb, was not inconsistent with a diminished capacity defense. That may be true, but counsel’s decision to reserve the mental evidence for the sanity phase so as not to blunt its impact was not unreasonable. (See People v.

Miller (1972) 7 Cal.3d 562, 572 [102 Cal.Rptr. 841, 498 P.2d 1089] [evidence of mental incapacity would lose much of its impact at the sanity phase if presented earlier].) Although the case was governed by the pre-Pope legal standard for ineffective assistance of counsel, People v. Miller, supra, 7 Cal.3d 562, posed the exact issue we confront in this case: was counsel ineffective for deciding to forgo presentation of mental incapacity evidence at the guilt phase and to reserve it instead for the sanity phase?

We found counsel’s tactical decision there was not unreasonable, explaining: “We touch here on a difficult tactical problem facing every defense counsel who possesses psychiatric evidence bearing on his client’s condition at the time of the crime. Since the development of the Wells-Gorshen line of cases,[] this evidence is usually admissible at both the guilt phase and the sanity phase. Counsel’s dilemma is, therefore, at which phase should he introduce this evidence? In People v.

Coogler (1969)... 71 Cal.2d 153, 169 [77 Cal.Rptr. 790, 454 P.2d 686], we upheld the competency of counsel who chose to introduce such evidence at the guilt phase only: ‘His decision not to enter an insanity plea may have been based upon a fear that such a plea would prejudice his client’s claim of diminished capacity; if the jury knew that an insanity hearing would follow in the event of defendant’s conviction, it might treat summarily the psychiatric testimony as to whether defendant could form the requisite intent to commit the crimes charged.’ Even more certain than this conjecture, however, is that a trier of fact would tend to ‘treat summarily’ such evidence if it were introduced at the sanity phase after the same trier had already rejected it at the guilt phase.

It follows that when, as here, counsel concludes his client has a valid defense of not guilty by reason of insanity, it might be unwise for him to prematurely expose that evidence to the scrutiny of the trier of fact at the guilt phase. “It is no solution to this dilemma for us to engage in the perilous process of second-guessing whichever of th

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