THE PEOPLE, Plaintiff and Respondent, v. JACK GUS FARNAM, Defendant and Appellant, 28 Cal. 4th 107

Opinion BAXTER, J. Defendant Jack Gus Famam was convicted by a jury of one count of first degree murder (Pen. Code, § 187, subd. (a)), one count of rape (§ 261), and one count of sodomy (§ 286). The jury found true the special circumstances that defendant committed the murder while engaged in burglary, robbery, rape, and sodomy (§ 190.2, subd. (a)(17)), and that defendant previously had been convicted of first degree murder (§ 190.2, subd. (a)(2)). After a penalty trial, the jury returned a verdict of death and the trial court imposed that sentence.

Appeal to this court is automatic. (§ 1239, subd. (b).) We find no prejudicial error at the guilt or penalty phase of defendant’s trial, and affirm the judgment in its entirety. I. Facts A. The Guilt Phase On November 19, 1982, Lillian Mar, a 55-year-old Asian widow, was brutally murdered in her home. The prosecution theorized that defendant, then 18 years old, used a knife to cut an opening in a locked screen door and thereby gained access to the downstairs living room through an open, adjacent, sliding glass door. He attacked Mrs.

Mar in her upstairs bedroom, bludgeoning her head before raping and sodomizing her. Mrs. Mar then moved or was moved to the hallway, where defendant struck her and then strangled her with a scarf he had brought. Defendant ransacked the bedrooms, taking various items, and escaped through a side door in the living room. The prosecution sought to establish the special circumstances that defendant murdered Mrs. Mar while engaged in burglary, robbery, rape, and sodomy, and that defendant was previously convicted of murder.

Pursuant to a stipulation between the parties, the court informed the jury of defendant’s admission that he previously had been convicted of the first degree murder of Barbara Griswold on or about September 10, 1985. 1. The Prosecution Case At the time of the crimes, Mrs. Mar owned a seven-unit apartment building in Los Angeles, where she lived with an adult son, Harry Mar. The ethnic composition of the neighborhood was predominantly Asian, mainly Chinese, with a few Latinos. Mrs. Mar socialized with very few people—her close-knit family and a small group of older Chinese women from the neighborhood.

No Caucasians visited her. On November 19, 1982, sometime between 7:00 and 7:15 p.m., Harry and his fiancée, Patricia, left the apartment together for an evening outing. Mrs. Mar remained at home alone. Around midnight, Harry found his mother’s bloodied body in the upstairs hallway. Police investigators made the following observations at the apartment. The downstairs of the Mar apartment was relatively undisturbed, with the exception of an L-shaped slit in a locked screen door outside a sliding glass door and a severed cord to the telephone on the floor next to the couch in the living room.

There were no pry marks on the front door or the sliding glass door. None of the entertainment equipment in the living room had been tampered with, and envelopes containing large sums of money were in plain view in the adjoining den. The deadbolt on a side exit door in the living room, which was always kept locked, was unlocked. At the top of the stairs, Mrs. Mar was lying facedown in a pool of blood in the hallway. She was naked from the waist down, and several buttons were missing from her blouse. A bloody scarf was knotted around her neck, and it appeared she had been bludgeoned, strangled, and possibly raped.

A loose, light brown-blondish hair was found on the right side of Mrs. Mar’s neck. A woman’s panty and pants, with what appeared to be bloodstains, were rolled together in a ball on the floor at the foot of the bed in Mrs. Mar’s bedroom. Nearby were buttons similar to those missing from Mrs. Mar’s blouse, broken hair curlers, blood drops, and milky or clear fluid stains resembling semen on the carpet. Blood drops were on the bedspread, and impressions apparently left by buttocks, the lower portion of a body, and elbows were at the foot of the bed. Blood drops trailed from Mrs.

Mar’s bedroom to where her body was found in the hallway. The other bedrooms bore evidence of ransacking. In Harry’s bedroom, the drawers of his nightstand and desk had been pulled out and personal belongings were strewn about. The bedroom formerly belonging to his brother, Jerry, also had been disturbed. And like the downstairs telephone cord, the cord to the telephone outside Harry’s bedroom had been cut.

Harry later discovered that various items were missing from the residence, including a gold necklace, envelopes of money from the dresser in his mother’s bedroom, some money from his coin bank, a handgun, a tie clip, a Timex watch, and two silver coins (balboas). Dr. Joan Shipley conducted the autopsy and determined the cause of Mrs. Mar’s death was asphyxia due to ligature strangulation. The victim exhibited blunt force injuries on the back of the head and a fairly large and severe wound on the right shoulder.

The victim had additional wounds on the eyelids, the inside and outside of the lips, underneath the jaw, and the back of the ears. All of the wounds, including the head wounds, occurred prior to death. Dr. Shipley observed no abnormalities during an external visual inspection of the victim’s vagina. Although Dr. Shipley did not detect any visible signs of rape, she opined her examination was not inconsistent with a rape having taken place. A sexual assault kit was used to gather evidence from Mrs. Mar’s body.

Swabs were taken from areas including the external genital area, the vagina, and three inches inside the anal cavity; slides and smears were then made from those swabs. The contents of this kit were examined twice—first in February of 1983 and then again in 1988. In her 1983 examination, police criminalist Alison Ochiae observed blood on the external genital swabs and the vaginal swabs, intact sperm on the vaginal slides, fragments of sperm (i.e., the heads) on the anal slides, and a small amount of sperm on the external genital slides.

In his 1988 examination of these same items, Keith Inman, a private criminalist, observed an unusual abundance of columnar cells on the anal slides, which was indicative of trauma consistent with either sodomy or postmortem decompositional changes. Evidence taken from Mrs. Mar’s bedroom was also examined twice. In 1983, criminalist Ochiae detected intact sperm on carpet fibers at the foot of the victim’s bed, but found no semen on the bedspread and no semen on the victim’s panty or pants.

Subsequently, in 1988, criminalist Inman discovered semen on the bedspread by utilizing a procedure not used by the Los Angeles Police Department in 1983. The police lifted latent prints from ransacked objects in Harry’s bedroom, but could not match them with any suspect for a couple of years. Ultimately it was discovered that defendant’s right middle and right ring fingerprints matched the latent prints from Harry’s coin bank with as many as 20 points of comparison. A print of defendant’s right thumb matched the latent print taken from Harry’s stethoscope box, with over 10 points of comparison.

Serological analysis disclosed that Mrs. Mar’s blood was type AB and her PGM subtype was 2 minus 1 plus. Defendant’s blood type was type A and his PGM subtype was 1 plus. Defendant was a secretor, which means his ABO blood type is found in body fluids other than blood, such as semen. Upon examining the carpet fibers from the foot of Mrs.

Mar’s bed and the items in the sexual assault kit, criminalist Warren Loomis reached the following conclusions: (1) since only a 1 plus PGM subtype was found on the carpet sample, it had to have come from a source other than the victim and from a group comprising 40-43 percent of the population, of which defendant was a member; and (2) since the vaginal, anal, and external genital swabs all exhibited AB and H activity, and since the victim’s blood type AB would mask defendant’s blood type A in the swabs, defendant could not be excluded as a possible donor of the semen on those items.

Hair analysis indicated that the loose, light brown-blondish hair found on Mrs. Mar’s neck was a forcibly removed head hair with Caucasian characteristics that could not have originated from the victim, Harry, or Margaret Lee (the victim’s adult daughter, who had curled the victim’s hair the evening of the crimes).

Comparing the appearance and microscopic characteristics of the loose hair with a sample of defendant’s hair, prosecution experts concluded that the two could have a common origin given their similar pigmentation, similar pattern, the abundance and size of their pigment granules, and other characteristics including the cuticle and medulla, the straightness of the hair, and color. One expert opined that violent bumping of the head against something or somebody could be sufficient to dislodge hair from the head.

A tool mark expert compared the cut ends of the two telephone cords at the crime scene with a wood-handled knife that had been found in defendant’s possession in January of 1983, some two months after Mrs. Mar’s murder. The expert testified that although the severed cords had no individual striations or marks associated with defendant’s knife, the cords could have been cut by defendant’s knife. Defendant’s knife also could have been used to cut the screen door, since the knife’s widest part was consistent in width with an offset slit that marked the initial thrust into the screen.

Defendant also demonstrated consciousness of guilt. On February 28, 1986, Detective Kirk Mellecker went to Folsom State Prison to meet with defendant. Upon seeing and recognizing Mellecker in the prison medical office, defendant became stiff and apprehensive. Mellecker indicated he was there to execute a court order for hair and blood samples from defendant. Defendant refused to cooperate, even after Mellecker explained that he had a valid search warrant and that defendant had no choice in the matter.

Defendant responded that he did not care, that it was a violation of his rights, and that he was not going to do it. When a correctional sergeant in charge of hospital security entered the medical office, defendant exhibited a fighting stance. Defendant ultimately agreed to provide the samples “under duress.” 2. The Defense Case The defense challenged the testing used to establish that defendant was the donor of the semen found at the crime scene.

Defense experts opined that, had other available tests been conducted, the population of possible semen donors would have been narrowed considerably and could have excluded defendant as a donor. The defense also attempted to demonstrate that the autopsy and other forensic evidence did not establish rape or sodomy. B. The Penalty Phase 1. The Prosecution Case The prosecution relied on the circumstances of the crimes committed against Mrs. Mar.

It also presented aggravating evidence of defendant’s prior violent criminal activity on four other occasions: (1) in 1981, defendant sodomized and savagely beat Barbara Griswold in her hotel room before finally killing her; (2) in 1983, he robbed and assaulted Mr. and Mrs. N. in their hotel room; (3) in 1983, he attempted to burglarize Beverly McCarthy’s hotel room while she and her son were there; and (4) in 1983, he committed an assault with a deadly weapon on Pasadena Police Officer Thomas Bradley.

The Griswold, N., and McCarthy incidents all occurred at nighttime at the Holiday Inn in Pasadena, where the victims were registered as guests. The assault on Officer Bradley occurred within a mile of the same hotel just minutes after the McCarthy incident. 2. The Defense Case A number of family members and friends testified on defendant’s behalf. Their testimony included the following mitigating evidence. Defendant’s mother spent several years in mental institutions and was incapable of caring for children. Defendant’s father, who also was mentally disabled, had not worked since 1965 and was frequently drunk.

Defendant and his older brother, David, were always hungry. The family led a nomadic existence. Defendant and his brother were unsupervised, and they wandered the streets at a very young age. Defendant’s parents never showed any concern over their sons’ absences from school. Defendant’s brother bullied and beat him. The two began to burglarize houses, where defendant ate food from the kitchens. As a result of his burglaries, defendant was sent to juvenile camps and homes, but his parents did not visit him there. Defendant’s parents never disciplined him or his brother.

When defendant was about 13 years old, he met Arlene Reynolds, her son Jace Tompkins, and her daughter, Dorian Jackson. Defendant lived with this family off and on for five years and was always respectful. Defendant once saved Reynolds’s life on a rafting trip. Tompkins recalled that defendant once tried to commit suicide by hanging himself. Defendant became romantically involved with Reynolds’s granddaughter, Shawn. Their son was bom on March 4, 1983. Dr. Alvin Davis, a psychiatrist, evaluated defendant three times in 1986 and once in 1988. From his 1986 interviews, Dr.

Davis observed that defendant appeared depressed and had an IQ in the very low normal range of 75 to 80. Defendant met diagnostic criteria for conduct disorder, socialized aggressive type, manifested by a history of violence toward persons and property. He did not, however, have an antisocial personality disorder because he was capable of forming relatively permanent attachments to others and of feeling remorse and concern. Nor did he have a borderline personality disorder. Although defendant had expressed a desire for treatment and therapy, he never received any. In 1988, Dr.

Davis noticed that defendant exhibited a marked improvement. Defendant had been reading and taking education courses, and his IQ had increased to the low normal range, somewhere between 92 and 100. He expressed more clearly and verbally his remorse for his offenses. Although Dr. Davis noted that defendant continued to be depressed and possibly suicidal, defendant was no longer a danger to others or to property. Defendant took the stand and testified on his own behalf.

He testified at length about his undisciplined upbringing, the family’s frequent moves and their stays in shelters and missions, and the crimes he and his brother used to commit. Defendant admitted that he robbed, raped, and killed Mrs. Mar. He denied, however, that he sodomized her or that he killed her intentionally or with premeditation. He testified he was really sorry that Mrs. Mar was dead. Defendant refused to discuss any matter relating to the Griswold murder because he was appealing his conviction for that crime. II. Discussion A. Jury Selection and Juror Bias Issues 1.

The Defense’s Challenges for Cause Defendant contends the trial court improperly denied his challenges for cause to Jurors Lucas D., Thomas V., Joseph O., and John S., who he claims were prejudicially disposed in favor of the death penalty. He asserts that his federal constitutional right and his state constitutional and statutory rights to an impartial jury were violated by the court’s failure to adhere to Wainwright v.

Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841], “A prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would 6 “prevent or substantially impair” ’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.” (People v. Cunningham (2001) 25 Cal.4th 926, 975 [108 Cal.Rptr.2d 291, 25 P.3d 519], quoting Wainwright v. Witt, supra, 469 U.S. at p. 424 [105 S.Ct. at p. 852]; People v.

Weaver (2001) 26 Cal.4th 876, 910 [111 Cal.Rptr.2d 2, 29 P.3d 103].) “Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court. [Citation.]” (People v. Weaver, supra, 26 Cal.4th at p. 910.) On appeal, we will uphold the trial court’s decision if it is fairly supported by the record, and accept as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has given conflicting or ambiguous statements. (People v. Weaver, supra, 26 Cal.4th at p. 910; People v.

Cunningham, supra, 25 Cal.4th at p. 975.) “To preserve a claim of trial court error in failing to remove a juror for bias in favor of the death penalty, a defendant must either exhaust all peremptory challenges and express dissatisfaction with the jury ultimately selected or justify the failure to do so.” (People v. Williams (1997) 16 Cal.4th 635, 667 [66 Cal.Rptr.2d 573, 941 P.2d 752]; see People v.

Cunningham, supra, 25 Cal.4th at p. 976.) Here, the defense did not exercise a peremptory challenge to Juror Lucas D., who served as an alternate juror throughout the guilt phase and as an actual juror in the penalty phase, even though defendant had several peremptory challenges remaining when the alternate jurors were sworn in. Moreover, it is arguable whether the defense even challenged Juror Thomas V. for cause. Nonetheless, even assuming defendant preserved the issue for appellate review, the trial court’s retention of the four jurors in question is amply supported by the record.

Although some of Lucas D.’s remarks during the voir dire process could be construed as suggesting he would automatically vote for death at the penalty phase, many other of his comments indicated an ability and a willingness to be fair and open-minded.

On his jury questionnaire, Joseph O. wrote that “if proven guilty, yes, the death penalty should be invoked.” In addition, he wrote that he thought “it would cut down on crime if more people were executed.” Although these written statements, in isolation, seemingly indicated a pro-death-penalty bias, Joseph O.’s responses during voir dire questioning negated that inference. In any event, Joseph O. was excused long before deliberations ever began in the guilt phase, thereby defeating defendant’s claim that he was prejudiced by the trial court’s refusal to excuse the juror. (People v.

Hill-house (2002) 27 Cal.4th 469, 487-488 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Although Thomas V. wrote on his jury questionnaire that his general feeling of the death penalty was that “if a defendant is guilty, so be it,” he explained that his statement was made without an understanding that there might be options as to penalty. During further questioning, Thomas V. conveyed a willingness to be fair and impartial at the penalty phase. John S. initially indicated his general philosophy was that all first degree murderers should get the death penalty and nothing else.

In responding to questions, however, he stated he could set aside that philosophy and be open to both possible penalties. He further indicated he would be guided by the evidence and would vote for life without the possibility of parole if the evidence persuaded him it was proper. Given the conflicting statements made by the four jurors, we cannot say that the trial court exceeded its discretion in finding that none of them held an unalterable preference in favor of the death penalty.

The trial court’s ruling is fairly supported by the record, and we will not second-guess the court’s credibility determinations on the matter. No error appears. 2. The Prosecution’s Peremptory Challenges After the prosecutor exercised peremptory challenges against five prospective jurors, the defense made a motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).

Defense counsel noted that four of those potential jurors had been Black (Sheila C., Norman T., John G., and Helena B.) and stated, “I think that speaks for itself.” The court denied the motion, evidently agreeing with the prosecutor that a prima facie showing of discrimination had not been demonstrated. Nonetheless, it allowed both sides to make a record for appellate purposes.

Thereafter, the court reiterated its rejection of the motion, stating that the excusáis “appear to be well justified based upon the subjective observations of the prosecution and having nothing to do with racial bias.” The jury that ultimately was sworn in consisted of four Blacks and eight Whites, and the alternate panel consisted of two Blacks and four Whites. Defendant contends the denial of his Wheeler motion violated the federal equal protection clause and his federal and state constitutional rights to a trial by a jury drawn from a representative cross-section of the community. (Powers v.

Ohio (1991) 499 U.S. 400, 404, 411 [111 S.Ct. 1364, 1367, 1370-1371, 113 L.Ed.2d 411]; People v. Fuentes (1991) 54 Cal.3d 707, 713-714 [286 Cal.Rptr. 792, 818 P.2d 75].) He seeks reversal of the judgment and a remand for a new trial. (Ford v. Georgia (1991) 498 U.S. 411, 425 [111 S.Ct. 850, 858, 112 L.Ed.2d 935]; Batson v.

Kentucky (1986) 476 U.S. 79, 100 [106 S.Ct. 1712, 1725, 90 L.Ed.2d 69]; Wheeler, supra, 22 Cal.3d at p. 283.) Although a presumption exists that peremptory challenges are exercised in a constitutional manner, those used to remove prospective jurors solely on the basis of membership in a cognizable racial group violate both the federal and state Constitutions. (People v. Crittenden (1994) 9 Cal.4th 83, 114-115 [36 Cal.Rptr.2d 474, 885 P.2d 887], relying on Batson v. Kentucky, supra, 476 U.S. 79; Wheeler, supra, 22 Cal.3d 258; People v.

Arias (1996) 13 Cal.4th 92, 134 [51 Cal.Rptr.2d 770, 913 P.2d 980].) The rules governing a Wheeler challenge are settled. If a defendant believes the prosecution is improperly using peremptory challenges for a discriminatory purpose, he or she must raise a timely objection and make a prima facie showing that jurors are being excluded on the basis of racial or group identity. (People v. Jenkins (2000) 22 Cal.4th 900, 993 [95 Cal.Rptr.2d 377, 997 P.2d 1044]; People v.

Arias, supra, 13 Cal.4th at pp. 134-135.) To establish a prima facie case, the defendant should first make as complete a record as possible. (People v. Box (2000) 23 Cal.4th 1153, 1187 [99 Cal.Rptr.2d 69, 5 P.3d 130]; People v. Crittenden, supra, 9 Cal.4th at p. 115.) Second, the defendant must establish that the persons excluded are members of a cognizable group. (People v. Box, supra, 23 Cal.4th at p. 1187; People v.

Crittenden, supra, 9 Cal.4th at p. 115.) Third, the defendant must show a strong likelihood or reasonable inference that such persons are being challenged because of their group association. (People v. Box, supra, 23 Cal.4th at p. 1188 & fn. 7; People v. Crittenden, supra, 9 Cal.4th at p. 115.) When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. (People v. Jenkins, supra, 22 Cal.4th at p. 993; People v.

Crittenden, supra, 9 Cal.4th at pp. 116-117.) We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. (People v. Crittenden, supra, 9 Cal.4th at p. 117.) Moreover, if we find that the trial court properly determined that no prima facie case was made, we need not review the adequacy of the prosecution’s justifications, if any, for the peremptory challenges. (People v.

Turner (1994) 8 Cal.4th 137, 167 [32 Cal.Rptr.2d 762, 878 P.2d 521].) Defendant first contends that the trial court’s denial of his Wheeler motion was based in part on an erroneous belief that defendant had no standing to make the motion because he was White. (See Wheeler, supra, 22 Cal.3d at p. 281 [defendant need not be a member of the excluded group to complain of a violation of the representative cross-section rule].) In support of this claim, defendant observes that the court interrupted the prosecution’s initial response to the Wheeler motion by remarking: “Well, let me indicate for the record, No. 1, the defendant is [W]hite, and, No. 2, a quick check of the jury as presently composed would indicate that six of the remaining 11 are also [B]lack. [1|] I don’t know that there is anything else you want to put on the record, Miss Clark [the prosecutor].” We are not persuaded.

As the People point out, the corut never stated it was denying the Wheeler motion because defendant was not the same race as the challenged jurors; at most, it merely observed “for the record” that defendant was White and that six of the jurors remaining in the box were Black. Even though a defendant’s race clearly is not dispositive of a Wheeler motion, it is equally clear that the matter remains a subject of proper consideration by the court. (See People v.

Crittenden, supra, 9 Cal.4th at p. 115 [defendant may support a prima facie showing of group bias by showing that he himself is a member of the excluded group]; Wheeler, supra, 22 Cal.3d at p. 281.) Accordingly, it is neither troubling nor problematic that the court noted defendant’s race for the record. In the absence of a more persuasive showing, defendant’s contention must be rejected. Defendant next argues that the trial court’s “invitation” to the prosecution to provide justifications for its peremptory challenges “could be deemed” an implicit finding of a prima facie case of racial bias. (See People v.

Sims (1993) 5 Cal.4th 405, 428 [20 Cal.Rptr.2d 537, 853 P.2d 992] [“in general, when the trial court inquires as to the prosecutor’s justifications, the court has made ‘ “at least an implied finding” ’ of a prima facie showing”].) We disagree. The record makes reasonably clear that the trial court did not invite the prosecution to justify its challenges or otherwise inquire as to justifications, but simply acquiesced in the parties’ wishes to make a record. Significantly, after the prosecution asked permission to make a record for appellate purposes, the court stated: “All right.

In any event, I’m going to deny the motion. You can make your record also, if you wish.

I don’t know, at least at this point in time, that it’s required. [U] But I think out of an abundance of caution you may, at the conclusion of the proceedings today, or the beginning of the proceedings on Monday, you might at least put on the record whatever it is that you wish to put on the record as to those individuals that have been excluded that were [B]lack.” Thereafter, when defense counsel requested that the record be made at the end of the day when memories were still fresh, the court reiterated its earlier ruling, stating, “I have no objection, if it’s something that you [defense counsel] and apparently [the prosecutor] wish to put on the record.

At least at this point in time I think it’s at least apparent to me that it’s not an issue.” On this record, there is no basis for concluding that a prima facie case of racial bias had been found, implicitly or otherwise. Moreover, substantial evidence supports the trial court’s determination that no prima facie showing of racial bias had been shown. Notably, defendant’s only stated bases for establishing a prima facie case were that (1) four of the first five peremptory challenges exercised by the prosecution were for Black prospective jurors, and (2) a very small minority of jurors on the panel were Black.

Not only does the record appear to disprove the second factual assertion, but even assuming both assertions were factually accurate, they fall short of a prima facie showing. (People v. Rousseau (1982) 129 Cal.App.3d 526, 536 [179 Cal.Rptr. 892] [concluding a prima facie case was not established by defense counsel’s statement that “ ‘there were only two [B]lacks on the whole panel, and they were both challenged by the district attorney’ ”], cited with approval by People v. Turner, supra, 8 Cal.4th at pp. 167-168; see also People v. Arias, supra, 13 Cal.4th at p. 136, fn. 15; People v.

Howard (1992) 1 Cal.4th 1132, 1154-1155 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Defendant could not and did not point to anything otherwise supporting a Wheeler motion. For example, defendant was unable to show that the prosecutor had struck most or all of the Black members from the venire. (See People v.

Crittenden, supra, 9 Cal.4th at p. 115.) Defendant did not demonstrate that the challenged jurors “ ‘share only this one characteristic—their membership in the group—and that in all other respects they are as heterogeneous as the community as a whole.’ ” (Ibid.) Nor did he establish that the prosecutor failed “ ‘to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all.’ ” (Ibid.) Finally, defendant was not a member of the excluded group, and the victim was not a member of the group to which the majority of the remaining jurors belonged. (Ibid.) As set forth below, the record discloses ample grounds upon which the prosecution might reasonably have challenged Sheila C., Norman T., John G., and Helena B.—the four jurors in question. (People v.

Crittenden, supra, 9 Cal.4th at p. 117.) During the voir dire process, Sheila C. indicated her belief that the death penalty is used too often and that life imprisonment is sufficient punishment. She also indicated that she did not like the death penalty and that, if given the opportunity, she would vote in an election to make the death penalty unavailable in California.

Although Sheila C. had not been removed for cause, presumably in light of her claimed willingness to be fair and to impose the death penalty if appropriate, the prosecutor might reasonably have challenged her based upon her negative views toward the death penalty. (See People v.

Turner, supra, 8 Cal.4th at p. 171.) Norman T. indicated in response to prosecution questioning that he was “generally against” the death penalty, but that “it’s not etched in stone.” Thereafter, when questioned whether he would “lean heavily in favor of’ a life sentence without possibility of parole rather than a death sentence if given a choice in the instant case, Norman T. accused the prosecutor of “trying to put words in my mouth.” Where, as here, a prospective juror evinces reservations against the death penalty (People v.

Turner, supra, 8 Cal.4th at p. 171) and demonstrates a degree of hostility toward the prosecutor (see People v. Cummings (1993) 4 Cal.4th 1233, 1282 [18 Cal.Rptr.2d 796, 850 P.2d 1]), the prosecutor might reasonably challenge the juror. Norman T. additionally indicated a belief that “lack of justice goes with lack of money” and mentioned his work at a juvenile hall. Since defendant was a young offender from a poor background who was being represented at trial by appointed counsel, the prosecutor might reasonably have challenged Norman T. in the belief that he might feel a special sympathy for defendant.

During the voir dire process, Helena B. disclosed that she previously served as a juror in a case that resulted in a hung jury. Since one who has had such an experience “constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict” (People v. Turner, supra, 8 Cal.4th at p. 170), the prosecutor might reasonably have chosen to challenge Helena B. John G. disclosed that “on a couple of occasions” in the previous year he visited a nephew incarcerated in Chino.

Although John G. claimed that the experience would have no impact on him as a juror, a prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution. (People v. Arias, supra, 13 Cal.4th at p. 138; see People v. Williams, supra, 16 Cal.4th at pp. 664-665, 666; People v. Cummings, supra, 4 Cal.4th at p. 1282.) In sum, substantial evidence supports the trial court’s determination that no prima facie showing of racial bias had been made. No Wheeler error appears.

In light of our conclusion that the trial court properly found no prima facie case of racial bias, we need not review the prosecutor’s justifications for her peremptory challenges or the trial court’s weighing of those justifications. Nonetheless, we have reviewed all of defendant’s claims on these matters, and, even were we to assume that a prima facie case had been or should have been found, we would find such claims lacking in merit based on the record before us.

Suffice it to say, the prosecutor articulated her belief that each of the four challenged jurors harbored a pro-defense bias, based upon many of the specific matters identified above and upon other matters covered during the voir dire; such concerns furnished ample bases for the trial court’s subsequent conclusion that the peremptory challenges appeared “well justified based upon the subjective observations of the prosecution and having nothing to do with racial bias.” Moreover, defendant does not establish that the trial judge failed to fulfill his legal obligations faithfully.

Although the judge had commented that he did not “really think too much of Wheeler motions,” he subsequently clarified that he simply thought the motion frequently was misused. Given the judge’s explanation of his comments and his actions in allowing both sides to make their cases, we cannot conclude that he harbored a preexisting bias that prevented him from fully and fairly considering defendant’s particular Wheeler motion. 3.

The Defense’s Motion to Discharge Four Jurors for Good Cause During the guilt phase of trial, Jurors Violet J., Virginia W., Lillian C., and Mary H. were returning to the court from lunch when four men stopped Virginia W. to ask for the time. One of the men then jumped toward Violet J. and knocked her to the ground. He took her purse and ran up the hill before police officers apprehended him. Although Violet J. saw no weapon, she was told by police that the man had a knife. The trial court questioned these four women outside the presence of the other jurors.

Although Violet J. said she felt “shook up” and “not coherent enough to drive home,” she believed she could listen to the testimony and pay attention to the case. The other three jurors also indicated they would have no problem staying and listening to the testimony. The trial court admonished all four jurors to not discuss the incident with the other jurors, and emphasized that the incident had no relationship to defendant’s case and that nothing that happened should “spill over as it relates to” defendant.

The trial resumed, and counsel took turns questioning one witness for approximately five minutes before the evening recess was called. The next day, the defense moved for a mistrial on the grounds that

(1) Violet J., Virginia W., Lillian C., and Mary H. were all of similar age to the victim in defendant’s case, and (2) the incident involved a situation similar in nature to the charges against defendant. The defense also moved to discharge the four jurors and to replace them with alternates. At the defense’s request, the trial court allowed counsel to question Juror Violet J. with no other jurors present. Violet J. admitted that the experience was very terrifying, but indicated she did not think it would affect her ability to be impartial in a case involving an allegation of robbery.

She also stated she would have no difficulty separating the purse-snatching incident from her duties as a juror and said she could be fair to defendant and evaluate his case and the evidence fairly. The trial court next questioned the other three jurors who witnessed the robbery. Virginia W. admitted she was considerably upset over the incident, but denied her thought process would be affected in making findings in defendant’s case. When the trial court emphasized that the incident and defendant’s case had “no relation whatsoever” to each other, Virginia W. agreed.

Jurors Lillian C. and Mary H. also affirmed that witnessing the incident would not create a problem for them in deciding defendant’s case. At the conclusion of the hearing, the trial court declined to discharge the four jurors and denied the mistrial motion. The court found that the jurors appeared to be “calm, cool and collected” and able to separate the purse-snatching incident from defendant’s case. Violet J. served throughout the guilt and penalty phases of trial. Virginia W. was excused just prior to guilt phase deliberations.

Mary H., an alternate at the time of the robbery, later deliberated on both guilt and penalty. Lillian C. remained an alternate throughout the trial. At the close of the trial, defense counsel again argued that all four jurors should have been excused for bias. Defendant contends on appeal that the trial court’s failure to discharge the four jurors resulted in a trial before a biased jury in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and his rights under corresponding state constitutional provisions.

In particular, he complains that the trial court did not conduct an adequate and individual inquiry of the four jurors to discover bias, and that it erred in determining that the four jurors could be objective.

Section 1089 authorizes a trial court to discharge a juror if, among other reasons, “good cause” is shown that the juror is “unable to perform [her] duty.” When a trial court is put on notice that good cause to discharge a juror may exist, “it is the court’s duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error.” (People v. Burgener (1986) 41 Cal.3d 505, 520 [224 Cal.Rptr. 112, 714 P.2d 1251], overruled on another point in People v. Reyes (1998) 19 Cal.4th 743 [80 Cal.Rptr.2d 734, 968 P.2d 445]; see People v.

Williams (1997) 16 Cal.4th 153, 231 [66 Cal.Rptr.2d 123, 940 P.2d 710].) “Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a ‘demonstrable reality.’ The court will not presume bias, and will uphold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause under

section 1089 if supported by substantial evidence. [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 659 [63 Cal.Rptr.2d 782, 937 P.2d 213]; see also People v. Williams, supra, 16 Cal.4th at p. 232.) Contrary to defendant’s assertions, the trial court’s inquiry was more than adequate. The court held two separate hearings on the matter, and ascertained the details of the purse-snatching incident. In both hearings, the trial court queried whether the four jurors understood the absence of any relation between the incident and the crimes allegedly involving defendant.

The court was obviously aware that the purse snatching might interfere with the jurors’ ability to sit in judgment of defendant, and the questions put to the jurors reflected that awareness. And although the court was not obligated to do so, it allowed each side to question Violet J. directly. Upon hearing the four jurors’ responses regarding their state of mind and observing their demeanor, the court had ample basis for determining whether they could fulfill their obligations as jurors. No more was required.

In reaching this conclusion, we reject defendant’s assertion that Jurors Virginia W., Lillian C., and Mary H. should not have been questioned together. Defendant cites no legal authority compelling individual, sequestered questioning, and the trial court’s decision not to do so was well within its discretion under the circumstances. Moreover, while defendant complains on appeal that the court asked leading questions concerning the three jurors’ states of mind, the court had previously covered the topic with open-ended questions. The jurors were consistent in their responses.

In addition, the trial court made whatever inquiries were requested by the defense, and terminated questioning only after the prosecution and the defense each affirmatively indicated that no further inquiry was desired. Defendant next argues that the trial court prejudicially erred in refusing to excuse the four jurors in question. We disagree. The record contains substantial evidence to support the trial court’s conclusion that good cause did not exist to excuse the jurors.

As indicated, each of the four jurors expressed an understanding that the purse snatching had no relation to the crimes allegedly involving defendant, and each indicated that she could be fair.

Although the record amply supports the trial court’s ruling, defendant points to Violet J.’s frank statement that “still things come into your mind of what happened to you and you can only try to visualize what happened to the other person.” Violet J.’s comment, however, appeared to reveal her honesty in conveying what someone in her position might feel, rather than a bias against defendant or an inability to fulfill her duties as a juror.

Given the balance of Violet J.’s responses, the trial court’s observation of her demeanor, and the minimal similarity between the purse-snatching incident and the crimes involving Mrs. Mar, the trial court was not bound to find that Violet J. had formed emotional and psychological bonds with the victim such that she would be unable to remain objective during defendant’s trial. (Cf. People v.

Diaz (1984) 152 Cal.App.3d 926, 939 [200 Cal.Rptr. 77] [addressing likelihood of subconscious bias where juror previously experienced the same type of violent physical assault that the defendant was accused of committing].) On this record, we see no basis for upsetting the judgment. B. Guilt Phase Issues 1.

Sufficiency of Sodomy Evidence Although defendant does not argue the evidence is insufficient to support the rape conviction and the rape-murder special-circumstance finding, he challenges the sufficiency of the evidence pertaining to the sodomy conviction and the sodomy-murder special-circumstance finding. “In considering a claim of insufficiency of evidence, a reviewing court must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.]” (People v.

Earp (1999) 20 Cal.4th 826, 887 [85 Cal.Rptr.2d 857, 978 P.2d 15].) “The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable

interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1053-1054.) Simply put, if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. (Id. at p. 1054; People v. Earp, supra, 20 Cal.4th at pp. 887-888.)

Section 286, subdivision (

a) defines sodomy as the “contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” “[T]he offense of sodomy requires that the victim be alive at the time of penetration.” (People v. Ramirez (1990) 50 Cal.3d 1158, 1176 [270 Cal.Rptr. 286, 791 P.2d 965], fn. omitted.) Here, the prosecution presented the following evidence. The body of the victim had been found naked from the waist down.

When Detective Randy Adair arrived at the Mar residence on the night of the murder, he observed indentations on the victim’s bed that were consistent with sexual activity having occurred at the foot of the bed. Semen found on the bedspread and on carpet fibers at the foot of the bed provided further evidence that sexual activity had occurred. Criminalists found fragments of sperm on slides smeared with a swab taken from three inches inside the victim’s anal cavity.

Criminalists also observed an abundance of columnar cells on one of the anal slides, which was unusual and indicative of trauma consistent with either sodomy or postmortem decomposition. Viewed favorably to the prosecution, such evidence was sufficient to establish that a sodomy had been committed.

Defendant argues no reasonable trier of fact could have concluded that a sodomy occurred because: (1) there was no evidence of trauma to the rectal opening; (2) there was evidence that the victim’s body was moved around and turned over before the anal swabs were taken; and (3) there was “universal medical doctor agreement” that “semen possibly migrated from the vaginal area to the anus.” Additionally, defendant points to the possibility that the anal swabs may have come into contact with the sperm cells on the outside of the victim’s body, not from inside the anus. We are not convinced.

The existence of alternative theories, other than sodomy, that might possibly have explained the presence of the sperm in the victim’s anal cavity, in no way renders the evidence insufficient to support the sodomy conviction. “The finding of sperm in the victim’s anus is in itself sufficient evidence of sodomy.” (People v. Thompson (1990) 50 Cal.3d 134, 171 [266 Cal.Rptr. 309, 785 P.2d 857].) Lack of trauma to a victim’s rectum does not preclude a finding that the victim was sodomized. (E.g., People v.

Kraft, supra, 23 Cal.4th at pp. 1059-1060.) Because the circumstances reasonably justify the jury’s findings, we may not reverse the judgment simply because the circumstances might also reasonably be reconciled with defendant’s alternative theories. (See id. at p. 1054; People v. Earp, supra, 20 Cal.4th at pp. 887-888.) Defendant next argues that, even assuming the evidence sufficiently establishes an anal penetration, there was no substantial evidence that the victim was alive at the time of the act. (See People v.

Ramirez, supra, 50 Cal.3d at p. 1176.) Specifically, he contends that the lack of trauma or blood in the anal area indicated that no penetration occurred while the victim was alive. This contention is without merit. As discussed, sodomy upon a live victim may occur without trauma to the victim’s rectum. Moreover, the contention disregards the evidence showing that the victim was killed in the upstairs hallway, where her body was found, after she had been sexually attacked in her bedroom.

Blood drops were found all over the carpet at the foot of the bed, and semen stains were found on the bedspread and on the carpet. Blood on the victim’s rolled-up panty and pants, found on the floor near the bed, as well as the pattern of bloodstains on the bedspread, indicated that the victim had been bludgeoned in the head in her bedroom after her clothes had been forcibly removed. More blood drops led into the hallway, indicating the victim moved or was moved there after the sexual attack.

Evidence that the victim died in the hallway included postmortem lividity, the position of the victim’s left hand, and the blood discharged from her head. On this record, there was ample evidence that the victim was sodomized while alive. 2. Prior Murder Conviction

Section 190.1 provides that, when a death penalty case involves a prior murder conviction special-circumstance allegation, the truth of that allegation shall be determined in a separate proceeding following a finding of first degree murder by the trier of fact. {Id., subd. (b).) In this case, one of the allegations charged that defendant previously had been convicted of the murder of Barbara Griswold. Prior to jury selection, defendant filed a written motion to waive a separate proceeding for determination of that allegation.

Defendant and one of his attorneys, Albert Garber, submitted declarations in support of the motion, and counsel argued that a waiver was in defendant’s best interests. With the prosecutor’s agreement, the trial court accepted the waiver and presented defendant’s stipulation to the truth of the prior murder conviction special-circumstance allegation to the jury before its guilt deliberations. The jurors ultimately returned a guilty verdict and a true finding on all of the special circumstance allegations.

On appeal, defendant contends the trial court violated his federal constitutional right to a fair trial by erroneously allowing evidence of the prior murder conviction to be presented to the jury in advance of guilt deliberations. The trial court, he argues, should not have accepted his waiver of a separate or bifurcated special circumstance proceeding on his prior murder conviction. Subdivision (

b) of

section 190.1 (section 190.1(b)) makes clear that a trial court may not force a capital defendant to undergo a unitary trial of the separate issues of the defendant’s guilt of first degree murder and the truth of a prior murder conviction special-circumstance allegation. It does not, however, explicitly forbid a defendant from validly waiving a bifurcated trial of such issues in an affirmative, knowing, and voluntary manner. This case presents a question of first impression, that is, does a trial court have the discretion to accept a defendant’s express waiver of his statutory right to a separate proceeding? It is undisputed that

section 190.1(b)’s provision for a separate proceeding is intended for the benefit of capital defendants charged with a prior murder conviction special-circumstance allegation. In essence, the statute recognizes that evidence of such a conviction may potentially have an inflammatory effect on jurors who are asked to determine a defendant’s guilt or innocence on a current charge of murder. It is settled, however, that defendants accused of capital crimes may waive important rights conferred to them by constitutional and statutory law. (E.g., People v.

Mayfield (1997) 14 Cal.4th 668, 738 [60 Cal.Rptr.2d 1, 928 P.2d 485] [defendant may waive federal and state constitutional right of presence at critical stages of a capital trial]; Cowan v. Superior Court (1996) 14 Cal.4th 367, 370 [58 Cal.Rptr.2d 458, 926 P.2d 438] [statute of limitations for a lesser offense than that charged]; People v. Clark (1990) 50 Cal.3d 583, 617 [268 Cal.Rptr. 399, 789 P.2d 127] [right to counsel in both guilt and penalty phases]; People v.

Memro (1985) 38 Cal.3d 658, 704 [214 Cal.Rptr. 832, 700 P.2d 446] [statutory right to jury in special circumstance phase of trial]; see also People v. Trejo (1990) 217 Cal.App.3d 1026, 1032 [266 Cal.Rptr. 266] [state constitutional right to a jury of 12 persons].) The reason for this is clear. Generally, permitting waiver “ ‘is consistent with the solicitude shown by modem jurisprudence to the defendant’s prerogative to waive the most crucial of rights.’ [Citation.]” (Cowan v.

Superior Court, supra, 14 Cal.4th at p. 371.) A defendant may waive a right that exists for his or her own benefit, where such waiver is not against public policy. (Ibid.) . Defendant offers no convincing reason why

section 190.1(

b) should be construed to preclude him and other capital defendants from waiving its benefits if they believe it is in their best interests to do so. This is not a situation where the statute itself prohibits or limits waivers. (Cf. People v.

Jackson (1996) 13 Cal.4th 1164, 1209-1211 [56 Cal.Rptr.2d 49, 920 P.2d 1254] [defendant charged with a felony may not voluntarily waive statutory right under sections 977 and 1043 to be present at trial during the taking of evidence].) Nor is public policy violated by an affirmative, knowing, and voluntary waiver of the statutory right where, as here, a capital defendant and his counsel determine that the circumstances before them make such a waiver desirable. Defendant next argues his waiver and stipulation were invalid because he was not fully advised of the penal consequences.

Specifically, he complains he was not admonished “that should he be found guilty of first degree murder in the Mar incident, a prior murder special circumstance, without more, would be sufficient to make him eligible for the death penalty.” He contends such lack of information was all the more egregious in light of his “very low normal” or “low normal” intelligence and his very low literacy skills. We disagree. Defendant represented to the court, both in a signed declaration and at hearings on the matter, that his attorneys fully explained the protections of

section 190.1(

b) to him, and that he was “knowingly” giving up his right to a separate proceeding “with full awareness of the implications.” The attorneys themselves likewise assured the court that they explained in considerable detail to defendant “the entire sequence of events that [defendant] would otherwise be entitled to but for this proceeding, including the proceeding by virtue—should this waiver be accepted, and what the procedure would be thereafter.” Moreover, the trial court allowed the prosecutor to question defendant thoroughly in order to ascertain defendant’s understanding of his rights and the consequences of stipulating to the prior murder conviction.

In response to the prosecutor’s questions, defendant affirmed his understanding that, by so stipulating, he would give up his right to have the special circumstance allegation tried by a jury, his right to confront and cross-examine any witnesses regarding the prior conviction, his right against self-incrimination, and his right to call and subpoena witnesses on his behalf in that matter. With the court’s permission, the prosecutor then explained to defendant: “The effect of this admission, Mr.

Famam, if the jury finds you guilty of murder in the first degree, this admission alone would cause you to proceed to the penalty phase.

Understand, that is even if all the other special circumstances were found not to be true, your admission of this special circumstance of having been convicted previously of murder in the first degree would make you eligible for the penalty phase of this trial.” After defendant stated that he understood, the prosecutor emphasized, “That means at the very least, once you’re found guilty of murder in the first degree, with this admission, the very least penalty you would get would be life without the possibility of parole.” Defendant again stated that he understood.

We find defendant was adequately advised of the consequences of his waiver and stipulation. Even though defendant was not advised in open court in the precise words identified on appeal, the on-the-record admonishments conveyed substantially the same information to him. Both defendant and his attorneys attested to the fact that counsel thoroughly explained the consequences of the proposed waiver and stipulation to defendant. Nothing in the record raises any doubts about defendant’s knowledge or understanding of these matters.

Under these circumstances, we are satisfied that defendant acted knowingly, intelligently, and voluntarily in waiving the protections of

section 190.1(

b) and in stipulating to the prior murder conviction. Defendant next argues there was no valid tactical justification for the waiver and that defense counsel provided ineffective assistance by allowing the prior murder conviction to be introduced at the guilt phase. Defendant first claims that defense counsel mistakenly believed that

section 190.1(b) “only applied if the prior murder conviction was the sole special circumstance.” (Italics added.) The claim is without merit. By expressing their awareness that

section 190.1(

b) was enacted primarily for that type of situation, and by offering defendant’s waiver to the court knowing that other special circumstance allegations were at issue, counsel demonstrated their clear understanding to the contrary. To otherwise demonstrate ineffectiveness of counsel, defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms (Strickland v.

Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674]), and that a reasonable probability exists that, but for counsel’s unprofessional errors, the result would have been different. (People v. Weaver, supra, 26 Cal.4th at p. 925; People v. Freeman (1994) 8 Cal.4th 450, 484 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) The standard of review for ineffective assistance claims is well settled. In examining such claims, we accord great deference to counsel’s reasonable tactical decisions. (People v. Weaver, supra, 26 Cal.4th at p. 925; see People v.

Freeman, supra, 8 Cal.4th at p. 484.) “ ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’ [Citation.]” (People v. Weaver, supra, 26 Cal.4th at p. 926.) Here, trial counsel explained their strategy for the waiver and stipulation in an in camera hearing.

Counsel set forth their concern that, if the jurors were to find defendant guilty of first degree murder and to find true the other alleged special circumstances, the jurors might react negatively toward defendant if they were to then learn for the first time about the prior murder conviction special circumstance.

Counsel understood that the factual circumstances of the prior murder—as opposed to the fact of defendant’s conviction for the murder—could be devastating and could obfuscate the jurors’ ability to judge the case before them, so counsel expressly sought to keep the details of the murder itself out of the guilt phase. However, counsel decided it was in defendant’s best interest to make the jurors aware that the topic of a prior murder conviction would be coming up in the future if they were to find defendant guilty.

In explaining their tactics, counsel informed the trial court that they consulted other criminal defense attorneys, and that those attorneys agreed that a waiver was in defendant’s best interests. The record in this case amply supports counsel’s decision. Defendant was charged with three crimes (first degree murder, rape, sodomy) and five special circumstances (the prior murder conviction special circumstance, plus the four felony-murder special circumstances of burglary murder, robbery murder, rape murder, sodomy murder), and all but the prior murder conviction had to be addressed at the guilt phase.

Evidence of the charged crimes and the four felony-murder special circumstances was overwhelming. The severed telephone cords both upstairs and downstairs indicated that the intruder, whoever it was, knew there was someone in the residence and acted to prevent that person from calling for help. That evidence, as well as evidence that envelopes of cash and entertainment equipment were left untouched on the first floor where the intruder slit the screen door to gain entry, tended to negate the inference that the intruder intended merely to burglarize the home.

The victim’s clothes had been forcibly removed, and sperm was found on vaginal and anal samples taken from her body, as well as on the carpet of her bedroom. Blood evidence and the position of the victim’s body indicated she was killed immediately after the sexual attack. The method of killing—strangulation with a scarf brought into the home— reflected premeditation and deliberation. Finally, the bedrooms upstairs had been ransacked, and a number of items were missing after the night of the crimes, including money, jewelry, a gun, and a watch.

Disregarding the prior murder conviction, the evidence of defendant’s identity in the Mar crimes was strong—prints of defendant’s right middle finger, right ring finger, and right thumb matched latent prints taken from two items in Harry Mar’s ransacked bedroom. Additionally, serological analysis, hair analysis, and comparisons of defendant’s knife with items found cut at the scene of the crimes all tended to connect defendant with the crimes and failed to exclude him as the perpetrator.

Given the strength of the evidence, counsel could reasonably have believed that a separate proceeding on the prior murder conviction and an eventual penalty phase were likely. Counsel had to weigh the possible prejudice of presenting the prior murder conviction at the guilt phase against the possible prejudice of the jury’s hearing of it for the first time thereafter.

In deciding that presentation during the guilt phase would avoid antagonizing the jury without prejudicing determinations on the Mar murder and the four felony-murder special circumstances, counsel knew that none of the circumstances of the prior murder—which, like the Mar crimes, involved sodomy, blows to the victim’s head, and a ligature around the neck—would be introduced during the guilt phase. Moreover, counsel conferred with other criminal defense attorneys and found that none of them disagreed with their tactical decision.

Under the circumstances, we cannot fault counsel’s decision to recommend the stipulation and waiver to defendant. Our conclusion here is consistent with prior decisions recognizing the validity and reasonableness of analogous tactical decisions. People v.

Freeman, supra, 8 Cal.4th 450, for example, rejected a claim of ineffective assistance where defense counsel had decided to refer to the defendant’s prior armed robbery convictions during jury voir dire in order to blunt their effect on the jury at the penalty phase. “ ‘[Cjounsel may reasonably treat the entire trial as a whole, and consider what effect a tactical decision at one phase will have on a later phase.’ ” (People v. Freeman, supra, 8 Cal.4th at p. 484, quoting People v.

Kelly (1992) 1 Cal.4th 495, 522 [3 Cal.Rptr.2d 677, 822 P.2d 385]; id. at pp. 520-521 [counsel could reasonably believe that guilt phase admission of a confession might aid the defense at the penalty phase].) Finally, defendant contends the trial court’s failure to give, sua sponte, a proper limiting instruction concerning the prior murder conviction violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. He additionally argues that counsel was prejudicially ineffective in not requesting a limiting instruction. These contentions are without merit.

The trial court gave two jury instructions relevant to defendant’s contentions. First, the court instructed the jurors that if they were to find the defendant guilty of murder in the first degree, only then would they need to determine the truth of the five special circumstance allegations, including the prior murder conviction allegation. The court followed up with a modified version of CALJIC No. 8.82, as follows: “In this case, it is alleged that the defendant has been previously convicted of murder in the first degree.

The defendant in this case has admitted the truth of this special circumstance in the stipulation which I previously read to you earlier in this trial.

In that stipulation, the defendant admitted that he was convicted of murder in the first degree of Barbara Griswold in the Pasadena branch of the Superior Court of the State of California in and for the County of Los Angeles on or about September 10th, 1985. [f] Therefore, if and only if you have found the defendant guilty of murder in the first degree, you may consider that stipulation as conclusive proof of the allegation that defendant was previously convicted of murder in the first degree as charged in the Information.” (Italics added.) Defendant does not argue that the foregoing instructions were erroneous.

He asserts, however, that the trial court was further obligated to instruct the jurors that they could not consider the stipulation for any purpose until they first found defendant guilty of the first degree murder of Mrs. Mar and that they could not rely on the prior murder conviction as evidence of guilt. We are not persuaded. Taken together, the instructions correctly and adequately informed the jurors that they could not consider the stipulation or the prior murder conviction unless and until they first found defendant guilty of the first degree murder of Mrs. Mar.

The instructions were reasonably clear, and no more was required. Even assuming that the court’s instructions presented a potential ambiguity, their correct import was reinforced to the jury by the prosecutor’s exhortation during closing argument that the prior murder conviction “[sjhould have no

part in your considerations with respect to his guilt of anything else until it’s all resolved, and unless and until you find him guilty of murder in the first degree, [f] And you will, I trust, when you look at the evidence clearly and rationally. Then and only then do you get to the point where you discuss the prior murder conviction special circumstance.” Hence, the absence of a further limiting instruction could not have undermined defendant’s trial, and any perceived incompetence by counsel on the point was harmless.

In sum, defendant does not demonstrate that the trial court committed prejudicial error, that the waiver and the stipulation rendered his trial fundamentally unfair, that the jury instructions violated his federal constitutional rights, or that his trial counsel was prejudicially ineffective on these points. 3. Evidentiary Matters Defendant contends the trial court erroneously allowed the prosecution to present much irrelevant evidence during the guilt phase. He argues that the jury’s exposure to such inadmissible and unreliable negative evidence was prejudicial, rendered his trial fundamentally unfair (Cooper v.

Sowders (6th Cir. 1988) 837 F.2d 284, 288), and denied him his federal constitutional right to heightened due process in a capital case (Beck v. Alabama (1980) 447 U.S. 625, 637-638 [100 S.Ct. 2382, 2389-2390, 65 L.Ed.2d 392]). We address each claim of error below. a. Consciousness of Guilt Correctional Sergeant Hess testified for the prosecution that defendant, while in prison in February of 1986, threatened to forcibly resist a court order for production of hair and blood samples.

When Hess told defendant he could “make it easy on yourself’ or could “make it rough,” defendant said he would comply with the order under duress. The samples were taken from defendant without further incident. After Hess and another witness completed their testimony, the prosecutor called Detective Mellecker to the stand. Mellecker testified he had gone to the prison to execute a search warrant for defendant’s hair and blood samples, and had been waiting in the prison medical office when defendant entered the office.

When the prosecutor asked Mellecker what happened next, defense counsel objected on relevancy grounds. The court overruled the objection, and Mellecker’s testimony on the subject was consistent with Hess’s. During a break in the defense’s cross-examination of Mellecker, counsel moved to strike Hess’s testimony on the matter. That motion was overruled.

On appeal, defendant contends that admission of the challenged testimony was error under state law because; (1) it was irrelevant for the stated purpose; (2) it included unreliable opinion testimony of a lay witness; (3) it consisted of uncharged “bad act” testimony with no basis for admission under Evidence Code

section 1101, subdivision (b); and (4) its admission violated Evidence Code

section 352. The People argue that defendant’s failure to raise timely and specific objections to the admission of Hess’s testimony in the trial court bars appellate review of his four claims. We agree. Defense counsel’s relevancy objection during Mellecker’s testimony was inadequate to preserve for appellate review the admissibility issues concerning Hess’s preceding testimony on the same subject. (See People v.

Barnett (1998) 17 Cal.4th 1044, 1122 [74 Cal.Rptr.2d 121, 954 P.2d 384] [a subsequent objection to admission of photographs is inadequate to preserve for review the issues of admissibility concerning a witness’s preceding testimony and explanation of the photographs]; id. at p. 1130 [objection on relevancy grounds does not preserve a challenge under Evid. Code, § 352]; People v. Dennis (1998) 17 Cal.4th 468, 530 [71 Cal.Rptr.2d 680, 950 P.2d 1035] [objection that questions were leading does not preserve a challenge on hearsay grounds]; People v.

Zapien (1993) 4 Cal.4th 929, 979-980 [17 Cal.Rptr.2d 122, 846 P.2d 704].) In any event, even if all claims had been preserved, we would conclude there was no error. “[T]he refusal of a defendant to provide an exemplar in violation of a court order is admissible evidence of the defendant’s consciousness of guilt.” (People v. Clark, supra, 5 Cal.4th at p. 1003 [handwriting exemplar]; see also People v. Manson (1976) 61 Cal.App.3d 102, 149 [132 Cal.Rptr. 265] [same]; People v.

Johnson (1992) 3 Cal.4th 1183, 1223, fn. 9 [14 Cal.Rptr.2d 702, 842 P.2d 1] [refusal to stand in a lineup].) Here, defendant concedes that evidence of his initial refusal to provide blood and hair samples despite a court order “could conceivably have been material” to show consciousness of guilt, but that would only be so, he argues, if the defense had put the matter at issue. That reasoning fails to persuade, for defendant did not concede guilt at the first phase of trial. The relevancy objection lacked merit, and the evidence was properly admitted.

Second, Correctional Sergeant Hess’s testimony that defendant stood “in a posture like he was going to start fighting” did not constitute inadmissible opinion testimony of a lay witness. A lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony. (Evid. Code, § 800.) Here, Hess’s opinion was based on his personal observations that defendant was being “very defiant” about the court order and physically stood with his hands at his side and left foot forward.

On this record, we cannot say that Hess’s testimony lacked a rational basis, or that it failed to clarify his testimony. Moreover, perceptions such as those formed by Hess are sufficiently within common experience, and certainly within the experience of a correctional sergeant like Hess who had 15 years of security experience at a prison hospital. The trial court acted well within its discretion in permitting the lay opinion testimony. (See People v.

Medina (1990) 51 Cal.3d 870, 887 [274 Cal.Rptr. 849, 799 P.2d 1282].) Third, the prosecution did not offer the evidence regarding defendant’s defiant conduct to establish his criminal propensity in violation of Evidence Code

section 1101. Rather, the evidence was offered to show defendant’s consciousness of guilt, and was properly admitted for that purpose. (See People v. Clark, supra, 5 Cal.4th at p. 1003.) To the extent defendant argues that impermissible inferences could also have been drawn from such evidence, he could have requested a proper limiting instruction to eliminate any perceived problem. (People v. Macias (1997) 16 Cal.4th 739, 746, fn. 3 [66 Cal.Rptr.2d 659, 941 P.2d 838] [absent a request, the trial court has no sua sponte duty to give a limiting instruction].) Again, no error appears. Finally, we see no error with respect to Evidence Code

section 352. As discussed, the evidence was relevant to establish defendant’s consciousness of guilt. In the absence of a request, the trial court was not required to weigh the prejudicial value against the probative value of the evidence. In any event, the testimony describing defendant’s initial defiance with respect to the court-ordered blood and hair samples did not suggest his actions were criminal or violent; indeed, Hess testified that defendant was never cited for any security or disciplinary violation as a result of the incident. Because the testimony was neither inflammatory nor misleading, its admission was proper under Evidence Code

section 352. (See People v. Barnett, supra, 17 Cal.4th at pp. 1130-1131.) b. Testimony Regarding a Series of Murders Detective Mellecker testified that, at the time of Mrs. Mar’s murder in 1982, he was working on a series of murders involving lone elderly females in the area. Mellecker initially went to the crime scene to investigate the possibility of a connection between the Mar murder and the other murders he was investigating. Because “there was no similarity” to the other murders, Mellecker did not become involved in the Mar case at that time.

Subsequently, for reasons unrelated to the other series of murders, Mellecker’s division was formally assigned to the Mar case in 1983, and Mellecker himself started actively investigating Mrs. Mar’s murder in 1985. On appeal, defendant complains the detective’s testimony was irrelevant and left the jury with the erroneous and inflammatory impression that defendant may have been involved in serial murders of older women. He contends the trial court prejudicially erred by refusing to strike the testimony, refusing to instruct the jury to disregard the testimony, and refusing to grant his motion for a mistrial.

We first address whether defendant is procedurally barred from asserting these claims on appeal. As the People point out, Detective Mellecker initially referred to a series of murders involving lone, elderly females dining his direct examination. The first two times he mentioned the subject, defendant did not object. The third time, when the prosecution asked Mellecker whether he decided to take the Mar case as part of his investigation of the other series of murders, defendant made only a relevancy objection. Thereafter, it was defense counsel who raised the topic during Mellecker’s cross-examination.

It was not until the prosecutor’s redirect examination of Mellecker that defendant objected to the subject matter as being highly prejudicial and moved for a mistrial. The tardiness of defendant’s objections, coupled with the defense’s questioning on the same topic, arguably resulted in a forfeiture of the right to raise the admissibility contentions on appeal. (See People v. Barnett, supra, 17 Cal.4th at pp. 1122, 1130; see also People v.

Simon (2001) 25 Cal.4th 1082, 1097, fn. 9 [108 Cal.Rptr.2d 385, 25 P.3d 598] [forfeiture is the failure to make the timely assertion of a right].) In any event, none of the contentions is meritorious. Although the circumstances of Mellecker’s early involvement in the Mar case were not relevant to the issue of guilt, the trial court did not abuse its discretion in permitting Mellecker to clarify his official role for the jury’s benefit. Moreover, any prejudicial effect from the detective’s reference to a series of other murders was minuscule. Not only did Mellecker clearly and repeatedly state that Mrs.

Mar’s murder was “entirely different than” and “not anywhere similar to” the other murders, but he explained he did not take responsibility of the Mar crime scene and investigation because “there was nothing at [the] scene to indicate that it was part of our other series.” In denying defendant’s mistrial motion, the trial court limited further testimony on the subject to evidence that was “unique” about the Mar murder, thus ensuring that no details of the unrelated murders would be solicited. On this record, admonishment of the jury was unnecessary and a mistrial unwarranted.

Defendant’s claims of error are rejected. c. Knife Evidence In January of 1983, about two months after Mrs. Mar’s homicide, police arrested defendant for reasons unrelated to the Mar case and found a knife in his possession. The prosecution sought permission to introduce that knife as evidence and to show it could have been the tool used to cut the telephone cords and the screen door at the Mar residence in November of 1982. Objecting on relevance, due process, and Evidence Code

section 352 grounds, the defense argued that no connection between the knife and the crimes could be established and that its introduction would be highly prejudicial. The trial court overruled the objection. Criminalist William Lewellen then testified that, although his analyses of the items did not conclusively identify the knife with the cuts, they did indicate that the blade’s length and shape were similar to the slit in the screen door and that the knife could have been used to cut the telephone cords.

Defendant contends the trial court abused its discretion and denied him due process by admitting the knife and associated testimony into evidence. He claims the knife evidence was irrelevant to any disputed material issue because there was no showing as to when he acquired the knife. Improper introduction of the weapon, he argues, led jurors to infer that he murdered Mrs. Mar simply because he had a similar knife two months after the killing. “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid.

Code, § 351.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Id., § 210.) Evidence that defendant possessed a knife two months after the Mar crimes, coupled with the evidence that the perpetrator of the Mar crimes used a sharp instrument, consistent with defendant’s knife, to slit a screen door and sever two telephone cords at the Mar residence, tended to establish that defendant was the perpetrator. “Standing alone the inference may have been weak, but that does not make the evidence irrelevant.” (People v.

Freeman, supra, 8 Cal.4th at p. 491 [rejecting argument that evidence of a garbage bag found in the defendant’s car shortly after the subject robbery was irrelevant because no one identified it as the bag used to hold the robbery victims’ property, and an “ ‘infinite’ ” number of people “ ‘must possess such common, unremarkable articles as plastic bags’ ” in their cars].) The fact that many persons may similarly have possessed such a knife “may diminish the strength of the evidence, but it does not make it irrelevant.” (Ibid.) It does not matter that the prosecution could not conclusively connect defendant’s knife to the Mar crime scene.

In People v. De La Plane (1979) 88 Cal.App.3d 223 [151 Cal.Rptr. 843], for instance, the trial court admitted evidence of a sawed-off axe handle found in the house in which the defendant was arrested. There, the only evidence that connected the axe handle to the murder victim was expert testimony concluding that the handle “could have caused” the victim’s wounds. (Id. at p. 239.) As the appellate court aptly reasoned in that case, “If a victim’s wound could have been caused by a specific type of weapon or instrument, such a weapon or instrument found in defendant’s possession is admissible in evidence.

Such a weapon or instrument is considered relevant on the theory that a trier of fact may reasonably draw an inference from defendant’s possession of the weapon or instrument to the fact that he used the weapon or instrument to commit the offense—a disputed fact of consequence in the action.” (Ibid.; see also People v. Alcala (1992) 4 Cal.4th 742, 796-797 [15 Cal.Rptr.2d 432, 842 P.2d 1192] [evidence of Kane Kut knives seized from defendant’s residence properly admitted to show that defendant had access to, or familiarity with, the same brand of carving knife found near the murder victim’s remains]; People v.

Clark (1992) 3 Cal.4th 41, 129 [10 Cal.Rptr.2d 554, 833 P.2d 561] [evidence of two knives belonging to the defendant properly admitted at trial, even though neither knife was directly or conclusively connected to the offenses].) Not only was the knife evidence relevant, but its admission was not error under Evidence Code

section 352. In light of Lewellen’s anticipated testimony, which proved consistent with his actual testimony, the court could reasonably conclude that the jury would not be confused or misled on the subject matter of the knife. Thus, although the probative v

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