THE PEOPLE, Plaintiff and Respondent, v. ISAAC GUTIERREZ, JR., Defendant and Appellant, 28 Cal. 4th 1083

Opinion BAXTER, J. A jury convicted defendant Isaac Gutierrez, Jr., of the first degree murders of Billie Faye Jones and John Stopher (Pen. Code, § 187), first degree residential burglary (§§ 459, 460, subd. (a)), kidnapping of Rose V. (§ 207, subd. (a)), aiding and abetting the forcible rape of Rose V. (§261, subd. (a)(2)), and the attempted murder of Police Officer David Dunavent (§§ 664, 187). Multiple-murder and lying-in-wait special circumstances (§ 190.2, subd. (a)(3) and (15)) were found true; the latter in connection with the murder of Stopher.

The jury further found that defendant personally used a deadly weapon in the murders of Jones (garrote) and Stopher (shotgun), the kidnapping and forcible rape of Rose V. (shotgun), and the attempted murder of Officer Dunavent (handgun). (§ 12022, subd. (b).) After a penalty trial the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)) and imposed the death sentence. This appeal is automatic. (§ 1239.) Finding no prejudicial error, we affirm the convictions and judgment of death in their entirety. I. Facts A. Guilt Phase 1.

Prosecution evidence In August 1984, defendant was convicted in Kern County of assault with a deadly weapon (vehicle) on a peace officer and sentenced to state prison for four years. At that time he was married to Rose V., his second wife, and they had a five-year-old daughter. They owned a house located on Montrose Street in Hesperia. In June 1985, while defendant was in prison, Rose V. met John Stopher, who soon moved in with her at the Montrose Street house. Stopher, age 25, was a female who had been receiving large amounts of testosterone since age 18.

Stopher had a full-face dark beard, no breast development, and female genitalia. In November or December 1985, Rose V. advised defendant that she was living with her boyfriend, i.e., Stopher, and that she was going to divorce him. Defendant was angry, told Rose V. he was going to kill Stopher, and wrote her a letter memorializing his threats. Rose V. filed for dissolution of marriage in April 1986. In August 1986, defendant was released from prison on parole. In October 1986, he moved into the Bakersfield home of his sister and his brother-in-law, Henry Lostaunau, a former police officer.

While in prison, defendant had communicated with Billie Faye Jones, a 41-year-old single mother who worked as a medical clerk at Kern County General Hospital and lived with her mother and two sons. On October 30, 1986, Jones told her mother she was having dinner with defendant that evening and would also be seeing him again the following day, which was Halloween. On the morning of October 31, Jones drove her six-year-old son to school, returned home, left again in her van around 1:00 p.m. to run some errands, and never returned.

At approximately 3:00 p.m. on the afternoon of October 31, defendant told Lostaunau he was going to Montgomery Ward and would need a ride home. Lostaunau went to pick up defendant at the arranged location, waited for over an hour, then returned home alone. Defendant testified the plan was a ruse to get Lostaunau out of the house so that he could take firearms, which were kept in the home, without Lostaunau’s knowledge. Defendant has a son, Joseph, from his first marriage, who was 15 years old at the time in question.

On the afternoon of October 31, defendant picked up Joseph at the Greyhound bus station in Billie Faye Jones’s van. Defendant testified he forced Joseph to accompany him. They stopped briefly at the Lostaunau home to pick up guns and then drove to Hesperia, defendant telling Joseph he had “a little something to take care of’ concerning his wife, Rose V. They arrived at the house on Montrose Street, drove past it more than once, then parked on a street atop a nearby hill and waited for Rose V. and Stopher to return home.

Around 9:00 to 9:30 p.m., a member of the Hesperia Fire Department approached defendant and Joseph, who were seated in the parked van, questioned them briefly regarding a report of children setting off firecrackers in the area, then departed. Shortly thereafter Rose V. and Stopher returned home. Stopher went to take a shower in the master bathroom. Defendant and Joseph put on Halloween costumes consisting of rubber masks and capes that defendant had brought along.

Defendant put a .380 automatic pistol and a derringer in his jacket pockets, both of which he had taken from Lostaunau’s residence, and also concealed a shotgun under his cape. According to defendant’s testimony, before he parked Jones’s van outside Rose V.’s house he had not told Joseph what his intentions were regarding his planned contact with V. and Stopher. Defendant testified he threatened Joseph with a gun and ordered him to enter the home and assist him with whatever he was going to do inside. Joseph told defendant, “Dad, I don’t want to do this.

I don’t want to be involved in it.” Defendant struck Joseph in the head when he at first refused to enter the house. Rose V. testified that when she answered the doorbell defendant and Joseph shoved open the door and pushed her to the floor. Defendant’s mask flew off. Rose V. thought defendant had a “rifle,” although she testified she did not know the difference between a rifle and a shotgun. Joseph, wearing a Halloween mask, placed a handgun to Rose V.’s head. When Rose V. screamed to warn Stopher, she was ordered to shut up.

Joseph stayed in the living room watching Rose V. with the handgun while defendant forced his way through the locked door of the bathroom and fatally shot Stopher with the 12-gauge shotgun. Expert medical testimony established that Stopher was killed by a shotgun blast to the face and head that left brain tissue spattered about the shower stall. Defendant fired four or five additional shotgun blasts into Stopher’s chest, abdomen and left arm. Defendant and Joseph dragged Rose V. out of the house and forced her into Jones’s van, hitting her in the head with a gun.

Defendant told Rose V., “your boyfriend back there, he’s gone; we blew him away.” Defendant drove south toward the freeway while Joseph held a gun to Rose V.’s head. Defendant told her to shut up and threatened that Joseph would cut her if she did not cooperate. At defendant’s direction Joseph took some ropes, tied Rose V.’s hands behind her back, tied her ankles, blindfolded, and gagged her. Defendant drove south on Interstate 15 toward San Bernardino.

Although Rose V. knew Joseph, she did not realize he was the assailant accompanying defendant; at first he was wearing a Halloween mask, and thereafter she was blindfolded. Using a knife, Joseph cut off her bra. When he was unable to remove her pants, he cut the rope that was tying her, slicing a half-inch cut in her ankle. Joseph proceeded to rape Rose V. When Joseph was finished, defendant told him to make sure Rose V. could breathe and to keep her covered with a sheet. Nearing Coachella, defendant got off the freeway and stopped for gas.

Joseph took a gas can from the rear of the van and passed it out to defendant; as it was being placed back in the van some of the gas dripped on Rose V.’s face. During the stop Rose V. also felt a finger being inserted into her vagina. She was unable to tell who did this to her. Defendant drove away from the gas station and was stopped by police a short time thereafter. Coachella Police Officer David Dunavent testified that shortly after midnight on November 1, 1986, he stopped defendant for driving with a headlight out. Defendant got out of the van and spoke with the officer at the rear of the vehicle.

He could not produce his driver’s license or registration. Officer Dunavent looked into a bubble window on the side of the van and saw someone looking out at him. At that moment defendant placed a handgun to the back of Officer Dunavent’s neck. Officer Dunavent heard a click, which he recognized as the sound of a gun dry firing on an empty chamber. The officer turned and ordered defendant to halt or freeze and to drop the weapon. Defendant fired a round at Officer Dunavent and a gun battle ensued. The officer managed to radio for a backup while taking cover behind the patrol unit.

At one point Joseph exited from the van wielding a rifle or shotgun. Ultimately, defendant was wounded by two bullets; neither Officer Dunavent nor Joseph was hit during the exchange of gunfire. Other police officers arrived and arrested defendant and his son. Inside the van, Rose V. managed to free her hands, remove the gag and call out to the police for help. Police recovered three weapons from the ground in the area of Jones’s van. The 12-gauge shotgun and Lostaunau’s .380 automatic pistol were near the front of the van; Lostaunau’s derringer was found at the rear of the vehicle.

During the early morning hours of November 1, 1986, defendant was contacted by Coachella Police Detective Pete Yanez in the X-ray room of John F. Kennedy Memorial Hospital. Defendant greeted Detective Yanez, whom he knew when he (defendant) had worked as a fireman at the Mecca fire station and Yanez was a Riverside deputy sheriff. Yanez, who was in civilian clothes, told defendant he was a police officer and was there to administer a gun residue kit. Defendant stated to Yanez, “Oh, God. Oh, God. I didn’t mean to kill both of them. Oh, what did I do? Did I kill them? Tell the officer I’m sorry.

Tell him I’m sorry.” Detective Yanez, who was investigating the officer-related shooting, was not aware of defendant’s involvement in any murders. Following the arrest of defendant and his son, and the rescue of Rose V., Coachella police officers made a cursory search of the interior of Jones’s van. Possession of the vehicle was transferred to the San Bernardino County Sheriffs Department, and it was towed to their storage facility in San Bernardino.

Two days later, on November 3, 1986, Detective Gary Stroup went to the storage facility after receiving information that Jones was the owner of the van and that she was missing. As he approached the door to the storage unit, Detective Stroup smelled a strong odor of decomposing flesh. Reddish brown body fluids were seeping from the van, forming a puddle underneath the vehicle. Detective Stroup entered the van, and after removing a footlocker and a duffel bag, found Jones’s body wrapped in a rug on the rear bench seat. Jones had been strangled with a ligature garrote that was still wrapped around her neck.

Her body was in an advanced state of decomposition. The wooden handles of the garrote were behind Jones’s neck, indicating she was strangled from behind. She had been killed sometime in the afternoon or early evening of October 31, 1986. The ends of the garrote were made of wooden doweling. A criminalist compared the garrote handles to pieces of doweling found in Lostaunau’s Bakersfield residence where defendant had been staying, and it was determined they had come from the same piece of wood. A full search of the van pursuant to warrant was conducted on the night of November 3, 1986.

A Remington 308 rifle was recovered from under the seat where Jones’s body was found. Also recovered from the van were a package of .380 ammunition, a package of 308 Winchester ammunition, and a package of Winchester 12-gauge shotgun shells. A manila envelope containing notes was found in a suitcase inside the van. On the back of the envelope were numerous notations, one of which included the words “make garrote.” V. identified the handwriting as that of defendant.

The notes also included the following entries: “Mon. call Rose, Wed. gather all necessities, lie. plates off comm van, wig spook/Halloween store, wig shop, call/Billy dinner, make garrote. Friday rendezvous w/J 1300 Greyhound.” Defendant also wrote the following: “Deadlines: Call Billy 3:00, J- 5:00, ETA 5 PM Get to W, *Call Don Oakes for closing time, carpet . . . gas cans . . . shovels.” 2. Defense Defendant denied killing Billie Faye Jones. He claimed he found her in her van on the afternoon of October 31, 1986, already dead with the garrote tied around her neck.

He admitted killing Stopher with a shotgun; his defense to the murder was that he became enraged when he confirmed his suspicions that John Stopher was a female. Defendant further claimed he was intoxicated, had brain damage, and acted in accordance with a Hispanic code of conduct that required him to protect females in his family. He repudiated his earlier incriminating testimony at Joseph’s juvenile court hearing, claiming he lied in that proceeding to protect his son. Defendant testified in his own behalf.

In 1983, he was fired for a second time from his long-standing job as a fireman with the State Department of Forestry as a result of his drinking problems. In 1984, during a stop for drunk driving, defendant sought to evade arrest and led officers on a high-speed chase. He was convicted by guilty plea of assault with a deadly weapon (vehicle) on a peace officer and sentenced to four years in prison. While in prison, defendant received a letter from Rose V. telling him she was considering a divorce.

He testified he felt it was “like the end of my life.” Thereafter, defendant was served with a summons for dissolution of marriage and a restraining order. He was ordered to stay away from the Montrose Street residence and was prohibited from visiting his wife or daughter. While in prison he telephoned home once and a male voice answered; it was then that defendant learned someone else was living with his wife and daughter. Defendant became very hostile during the call, both he and Stopher threatening one another with harm. Defendant was released from prison nine months later, in August 1986.

He claimed Stopher threatened him and warned, “You come around my house, I’ll blow your fucking head off.” Defendant believed he was talking to a man. Stopher refused him permission to visit his daughter and told him they did not want him calling anymore. Stopher also said he had a shotgun and if defendant came to the house, he would use the weapon on defendant. Defendant testified that as of October 1986, he felt tormented, confused, angry, and admittedly began harboring feelings of violence toward Stopher. He decided to go to Hesperia to find out about Stopher and to talk to his daughter.

One week before he made the trip, he became outraged after speaking with his daughter, who indicated Stopher wanted her to call him “Dad.” He came up with a plan to confront Stopher, fully aware that his planned actions would violate the terms of his parole and the restraining order. Defendant testified that he had had a relationship with Billy Faye Jones before he went to prison, and had corresponded with her from prison on a regular basis.

Shortly before the trip to Hesperia he told Jones he was leaving Bakersfield and she agreed to take him and his belongings to Victorville, where he claimed he had a truck at his sister’s house. He testified Jones owed a large amount of money for drugs and was afraid for her life. He claimed she asked him to protect her when she met with one of her drug dealers on October 30 at the Rancho Bakersfield Motel to try to purchase a large amount of cocaine. She was afraid because they had threatened her before.

Defendant claimed he took a .380 automatic handgun and a 12-gauge shotgun from his brother-in-law Lostaunau’s home, where he was staying, in order to protect Jones. He testified Jones purchased the ammunition for the weapons. On the night of October 30, he and Jones went to a motel in Bakersfield to meet her drug dealer. He gave Jones $500 for use in the transaction and was to receive some of the drugs in return.

The rendezvous was ultimately called off, although defendant briefly met one of the intermediaries, “Pablo.” Defendant claimed Jones and Pablo drove him to see his son Joseph at the home of his first wife, Joseph’s mother. Jones then dropped defendant off at the motel and asked him to spend the night there, saying she would contact him the next day. Defendant spent the night alone in the motel room, drinking and taking methamphetamine that Jones had given him. Defendant denied any complicity in Jones’s murder. He spoke with Jones over the telephone the next morning, October 31, and she was all right.

Later in the afternoon, however, he saw Jones’s van parked in the motel parking lot. He approached the vehicle and saw the driver’s door open and the keys in the ignition. He sat down in the van, looked into the back and saw Jones’s body with a garrote tied around her neck. Defendant admitted he had made the garrote, but he claimed he had done so at Jones’s request because “she thought she might need it later on down the line.” Defendant moved Jones’s body to the bench-type seat in the rear of the van and covered her up.

Some of his personal belongings that were in the van—a footlocker, a chest and some papers—appeared to have been searched. Defendant “freaked out” and felt he had to get away from there. He did not call the police out of fear he would immediately be blamed for Jones’s death, and also because he was obsessed with going to Hesperia to confront Stopher and find out what was going on in Rose V.’s home. Defendant drove Jones’s van to the Greyhound bus terminal to pick up his son Joseph, then picked up his belongings and other weapons at his brother-in-law’s house.

He admitted using a ruse to get Lostaunau out of the house so that he could take weapons, including a .22-caliber rifle and a .22-caliber derringer, from the residence. Defendant was concerned about Lostaunau since he was an ex-police officer and was aware of defendant’s parole status.' Defendant drove to Hesperia in the company of his son with Jones’s body secreted in the rear of her van. He brought Halloween masks to use as a ruse to gain entry into Rose V.’s house. He claimed he was drinking beer and scotch while en route.

He recounted the brief encounter with a member of the Hesperia Fire Department while parked in the van in the vicinity of Rose V.’s house. He claimed he was in an angry rage when he barged through the front door wielding a shotgun, broke down the locked master bathroom door, and observed Stopher in the shower.

Defendant testified, “I saw a person that appeared to be a man with no penis or testicles screaming at me, telling me to get the fuck out of his house, threatening me; and I had a shotgun in my hand.” Defendant admitted he killed Stopher with the shotgun, stating he did so because Stopher “took [his] life.” He then “grabbed” Rose V. and ran out of the house to the van. When asked why he grabbed Rose V. and forced her to accompany him, defendant testified, “I don’t know. I—I have thought about that. I wanted to talk to her. I don’t know.” Defendant recounted the events of the return trip.

He testified he never forced his son to rape Rose V. He admitted he had so testified at Joseph’s trial in juvenile court, but claimed he had lied in that proceeding to protect his son. He recollected how he was stopped by Coachella Police Officer Dunavent approximately 10 miles outside the city of Mecca. He testified he did not intend to kill Officer Dunavent, and did not have a gun in his hand when he got out of the van to confront the officer. When asked if he put a gun to the officer’s head, defendant replied, “I don’t remember that.

No.” Defendant admitted having the .380 pistol in hand by the time he attempted to run. He claimed he only fired his weapon at Officer Dunavent after the officer drew his service revolver first and shot him in the leg. Anthropologist Michael Winkelman, who specializes in cross-cultural relations between Hispanic- and Anglo-Americans, testified that the Mexican-American subculture in the United States is characterized by an extreme emphasis on the importance of the extended family and protecting the family’s honor.

According to Winkelman, defense of the family’s honor might require a man to take aggressive or even violent action, and such acts would be viewed as honorable regardless of how they are viewed under the law. Winkelman testified that the Mexican-American subculture views homosexuality in the lowest of terms, lesbianism as particularly abhorrent, and divorce as unacceptable. He would expect a response of outrage from an imprisoned Mexican-American male who learns his wife is involved in a lesbian relationship and is divorcing him. Dr.

Arnold Purisch, a clinical psychologist, testified that brain scans performed on defendant two to three years after the murders revealed he suffered from lesions in the frontal lobes of the brain. The effects of stress, alcohol, and drugs on such lesions could lead to a condition known as “conditional neurological lesion.” A person with damage to his frontal lobes would have somewhat intact intelligence but difficulty with his behavior in unstructured or unfamiliar situations, or when required to think on his feet. 3.

Rebuttal Detective Gary Stroup, who first discovered Jones’s body in the van, testified he contacted defendant in the hospital to ask him about the vehicle. Defendant told Detective Stroup he had rented the van from someone named “Edwin,” and that he did not know the whereabouts of the owner of the van. B. Penalty Phase 1. Prosecution evidence It was stipulated that all the evidence introduced in the guilt phase could be considered by the jury in deliberation of penalty.

The prosecution additionally presented evidence of the circumstances underlying defendant’s prior conviction of assault with a deadly weapon (vehicle) on a peace officer, and his possession of razor blades while in jail. (§ 190.3, factor (b).) During the drunk-driving incident that led to the assault conviction, defendant sought to evade arrest by leading six to 10 Bakersfield police units on a high-speed chase; he attempted to run over two officers on foot and rammed his vehicle into one of the patrol cars.

At the time of the jail search that led to the discovery of the razor blades, defendant threatened jail deputies with the statement, “I’m going to get the gas chamber and before I leave here, I’m going to take out a deputy.” 2. Defense evidence Officer Rodney Johnson was involved in the pursuit and arrest of defendant during the prior drunk-driving and assault incident. Officer Johnson testified defendant was extremely intoxicated at the time of his arrest. Defendant’s mother testified that defendant spoke only Spanish during his early years of school and was teased by the White students.

Defendant quit school to join the Marines at age 16. Defendant’s brother testified that defendant was deployed to Cuba during the Cuban Missile Crisis and received various military awards. Both defendant’s brother and sister asked for his life to be spared. Lawrence Biedebach testified that defendant offered to serve as a witness on his behalf, when no one else would come forward, in a matter involving an assault by five police officers on Biedebach.

Rodney Zenk participated in an alcohol rehabilitation program together with defendant and believed defendant could serve society by working with prison inmates on alcoholism issues. Annabelle Hood recalled an incident when defendant’s ex-wife rescued Hood’s baby daughter from a near drowning and defendant performed CPR on the child.

Jerry Enomoto, a former Director of the California Department of Corrections, testified for the defense as an “independent consultant on correctional matters.” Enomoto testified defendant told him he kept the razor blades in jail to cut a fungus condition he had on his hands, and “to sharpen pencils or cut things,” but not for use as weapons. Enomoto reviewed various documents from defendant’s central file and testified there was nothing to indicate any history of violence during his institutional confinement.

Enomoto believed defendant would get along well in a “level IV” institutional placement, albeit the highest level of security in the prison system. Enomoto also testified about two letters in evidence that defendant wrote to other inmates in which he related that a prison deputy had allegedly been disciplined for violating his and other inmates’ civil rights. Defendant wrote, “he [the deputy] might go to jail, so I might kill again.” Enomoto discussed the statements in the letters with defendant, who explained there was “no meaning behind it except anger.” II. Discussion A. Pretrial/Jury Selection Issues 1.

Territorial jurisdiction/vicinage Defendant argues the San Bernardino County Superior Court lacked territorial jurisdiction to try him for the murder of Billie Faye Jones (count I), and for the attempted murder of Officer Dunavent (count VII). He urges that because Jones’s murder took place in Kern County, only that county had territorial jurisdiction over the crime, and even if Jones’s murder could instead be tried in the county where her body was found, the proper jurisdiction would be Riverside County, where Jones’s van was first seized upon defendant’s arrest.

Defendant argues that only Riverside County had territorial jurisdiction over the crime of attempted murder of Officer Dunavent because that is the county in which the shootout with Officer Dunavent took place.

Section 790, subdivision (

a) provides, in pertinent part, “The jurisdiction of a criminal action for murder or manslaughter is in the county where the fatal injury was inflicted or in the county in which the injured party died or in the county in which his . . . body was found . . . .” (Italics added.) The amended information alleged that San Bernardino County had territorial jurisdiction over Jones’s murder because her body was found in that county within the meaning of

section 790. The magistrate at the preliminary hearing made an express finding that San Bernardino County had jurisdiction over Jones’s murder pursuant to

section 790. In opposing defendant’s first motion to dismiss count I of the information in the trial court, the prosecutor argued that since Jones’s body was first discovered in San Bernardino County concealed in the back of the van at the sheriffs storage facility, that county had jurisdiction over her murder pursuant to

section 790. He argued further that while defendant claimed Jones’s murder occurred in Kern County— where he allegedly discovered her strangled in the van on the afternoon of October 31, 1986, and in which county she was last seen alive—there was no direct evidence at the preliminary hearing to establish with certainty where Jones had been killed. The trial court denied the motion to dismiss count I, finding there was sufficient evidence to support the magistrate’s ruling that San Bernardino County had jurisdiction over the Jones murder.

The court specifically found the evidence did not conclusively establish where Jones was killed, and that Jones’s body had been found in San Bernardino County, two to three days after the van had been impounded in that county’s sheriffs storage facility. A second motion to dismiss was brought on the same grounds after a substitution of counsel per People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]; the trial court again denied the motion. These rulings were correct.

Whether jurisdiction was proper was a question of fact, which the prosecution had the burden of proving by a preponderance of the evidence. (People v. Cavanaugh (1955) 44 Cal.2d 252, 262 [282 P.2d 53].) On review, a trial court’s determination of territorial jurisdiction will be upheld as long as there is “some evidence” to support its holding. (People v. Kellett (1982) 134 Cal.App.3d 949, 956 [185 Cal.Rptr. 1]; People v.

Tabucchi (1976) 64 Cal.App.3d 133, 141 [134 Cal.Rptr. 245].) Here, the evidence established that Jones’s body was found in San Bernardino County, in a decomposed state and concealed inside her van, which had been impounded by police in Riverside County and towed to the San Bernardino storage facility several days earlier. Under a plain reading of the word found as used in

section 790, both the magistrate and the trial court properly rejected defendant’s claim that because police first seized the van in Riverside County, they had “found” Jones’s body in that county. The trial court also properly found that San Bernardino County had territorial jurisdiction over the attempted murder of Officer Dunavent (count VII) pursuant to

section

Section 781 provides, “When a public offense is committed in

part in one jurisdictional territory and in

part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory.” (Italics added.) The amended information alleged that the attempted murder of Officer Dunavent occurred in Riverside County, but that San Bernardino County had territorial jurisdiction over the offense because (1) the acts or effects of the attempted murder were requisite to the consummation of the other crimes charged, within the meaning of

section 781, and (2) acts preliminary to and connected to the crime occurred in San Bernardino County, within the meaning of

section 781. The magistrate at the preliminary hearing made an express finding that San Bernardino County had jurisdiction over the attempted murder of Officer Dunavent pursuant to

section 781. In opposing defendant’s first motion to dismiss the information, the prosecutor argued defendant attempted to murder Officer Dunavent in Riverside County in order to avoid detection and apprehension for the kidnapping of Rose V., which crime commenced in San Bernardino County and was ongoing, with Rose V. bound and gagged in the van, as she was transported through Riverside County.

In denying the first motion to dismiss count VII, the trial court found there was sufficient evidence to support the magistrate’s ruling that San Bernardino County had jurisdiction over the attempted murder of Officer Dunavent. The court specifically found that the attempted murder was “requisite to the consummation of’ Rose V.’s kidnapping. The trial court reiterated its ruling in denying the second motion to dismiss count VII. These rulings were correct. The holding in People v.

Bismillah (1989) 208 Cal.App.3d 80, 85 [256 Cal.Rptr. 25], is instructive: “Section 781 constitutes an exception to the rule when acts or effects of an offense occur in multiple counties.

Section 781 is remedial and, thus, we construe the statute liberally to achieve its purpose of expanding criminal jurisdiction beyond rigid common law limits. [Citations.] We therefore interpret

section 781 in a commonsense manner with proper regard for the facts and circumstances of the case rather than technical niceties. [Citation.] [|] Courts have construed the phrase ‘requisite to the consummation of the offense’ to mean requisite to achieving the offender’s unlawful purpose. [Citation.] Pursuant to this

interpretation, venue is proper in a county where only preliminary arrangements or acts leading to commission of the crime occur, even though such acts are not essential elements of the charged offense.” (Fn. omitted; see also People v. Kellett, supra, 134 Cal.App.3d at p. 956; People v. Tabucchi, supra, 64 Cal.App.3d at p. 140.) Here, defendant attempted to kill Officer Dunavent to avoid detection and arrest for the ongoing kidnapping of Rose V. that was initiated in her home in San Bernardino County, where Stopher was killed.

Contrary to defendant’s claim, the fact that his attempted murder of Officer Dunavent took place in Riverside County is not dispositive, nor is it relevant that Officer Dunavent was not investigating the rape and kidnapping of Rose V., or that he had stopped defendant for an unrelated traffic infraction moments before the shootout. Defendant’s attempted murder of Officer Dunavent to thwart detection and arrest was “requisite to the consummation of the [ongoing kidnapping].” (§781.) Since the kidnapping commenced in San Bernardino County, that county had jurisdiction to try the attempted murder charge.

Defendant further contends that his right to a jury drawn from the vicinage of the crimes was violated because, in his view, that right requires that each crime be tried before a jury drawn from the county (more particularly, the judicial district) in which that crime occurred. The Sixth Amendment right to vicinage was not incorporated by the Fourteenth Amendment against the states—hence, the trial of all consolidated counts in this capital murder prosecution in San Bernardino County Superior Court offended no federal constitutional right of defendant’s. (See People v.

Ochoa (2001) 26 Cal.4th 398, 426 [110 Cal.Rptr.2d 324, 28 P.3d 78]; Price v. Superior Court (2001) 25 Cal.4th 1046, 1065 [108 Cal.Rptr.2d 409, 25 P.3d 618].) We find further that in the present case the same facts making venue proper in San Bernardino County also established that the charged crimes were committed in that county for vicinage purposes. Defendant transported the body of murder victim Jones, concealed in her van, through Kern, Riverside, and San Bernardino Counties; Jones’s decomposed body was ultimately found in the van while it was impounded in a San Bernardino County Sheriffs storage facility.

After killing Stopher, defendant kidnapped Rose V. from her home in San Bernardino County, bound and gagged her in the van, and transported her into Riverside County where, in an effort to avoid detection and arrest for his ongoing crime, defendant attempted to murder Officer Dunavent during the traffic stop.

By these acts, defendant extended his commission of the murder of Jones into San Bernardino County, and his commission of the attempted murder of Officer Dunavent was a direct consequence of his ongoing crime of kidnapping commenced in San Bernardino County—“at least under the broad concept of commission courts have applied for purposes of determining proper vicinage. (See People v.

Martin (1995) 38 Cal.App.4th 883, 888-889 [45 Cal.Rptr.2d 502] [where killing was performed in Ventura County, but defendant disposed of body in Santa Barbara County, vicinage as well as venue over murder charge was proper in latter county]; People v.

Tamble (1992) 5 Cal.App.4th 815, 820 [7 Cal.Rptr.2d 446] [burglary of motor home located in San Luis Obispo County may be tried in Santa Barbara County, without obtaining waiver of vicinage rights, because burglars brought loot into that county; provision of § 786 allowing prosecution in jurisdictional district into which stolen property is carried ‘provides, in the broad sense, for prosecution where the crime was committed’]; People v.

Campbell (1991) 230 Cal.App.3d 1432, 1447 [281 Cal.Rptr. 870] [trial under § 786 accords with vicinage requirements because the statute ‘require [s] at least some act within a county . . . requisite to the offense charged before jurisdiction will attach’]; State v. Howell (1985) 40 Wash.App. 49 [696 P.2d 1253, 1255] [theft of livestock may be prosecuted in county into which defendant allegedly took the cattle and tried to sell them: ‘ “[W]here the cause occurs in one county and the result in another,” ’ vicinage is proper in either].)” (People v.

Sakarias (2000) 22 Cal.4th 596, 631-632 [94 Cal.Rptr.2d 17, 995 P.2d 152].) Trial of counts I and VII in San Bernardino County did not violate defendant’s vicinage rights. 2. Severance Defendant contends the trial court abused its discretion in denying his motions to sever trial of the murder of Jones from trial of the murder of Stopher and the remaining charges. He argues the error constituted a denial of his constitutional right to due process of law and a fair trial.

Section 954 provides that “[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .” Since the murders of Jones and Stopher were offenses of the same class, joinder was permissible in the first instance, (People v. Catlin (2001) 26 Cal.4th 81, 110 [109 Cal.Rptr.2d 31, 26 P.3d 357]; People v.

Bradford (1997) 15 Cal.4th 1229, 1315 [65 Cal.Rptr.2d 145, 939 P.2d 259] (Bradford).) “6 “The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] [If] . . .

Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.’” (Bradford, supra, 15 Cal.4th at p. 1315.) “Significantly, if evidence on each of the joined crimes would have been admissible in a separate trial of the other crimes, such cross-admissibility ‘ “ ‘ordinarily dispels any inference of prejudice . . . ([Bradford, supra, 15 Cal.4th] at p. 1316.) We examine the record before the trial court at the time of its ruling to determine whether the court abused its discretion in denying the severance motion. (People v.

Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610].)” (People v. Catlin, supra, 26 Cal.4th at pp. 110-111, fn. omitted.) One of the main factors considered by the trial court in denying severance was the cross-admissibility of the evidence with respect to all the charges. We agree. Defendant’s crimes were all connected.

He used Jones’s van, while her body lay concealed in the rear of the vehicle with the murder weapon, a garrote, still tied around her neck, to drive to Hesperia to murder Stopher, and then to kidnap Rose V., aid and abet her rape, and transport her across county lines until his apprehension after the shootout and attempted murder of Officer Dunavent. Notes in defendant’s handwriting were recovered from the van supporting the inference that he had planned Jones’s murder (e.g., “make garrote”) so he could use her van to travel to Hesperia and do harm to Stopher and Rose V. (e.g., “gather all necessities . . .

Halloween store, wig shop . . . carpet . . . gas cans . . . shovels”). There was also the evidence of statements made by defendant to Detective Yanez, shortly after his arrest, in which he admitted having committed the two murders. (E.g., “Oh God. I didn’t mean to kill both of them.”) The underlying evidence of each offense would have been admissible in a separate trial of the others to prove identity, motive, premeditation, planning and deliberation.

Nor was this a situation where a weak case was joined with a strong one in order to produce a spillover effect that unfairly strengthened or bootstrapped the weak case. (See Frank v. Superior Court (1989) 48 Cal.3d 632, 639-641 [257 Cal.Rptr. 550, 770 P.2d 1119].) Although defendant admitted fatally shooting Stopher while denying complicity in the murder of Jones, in light of the evidence summarized above connecting defendant to Jones’s murder, the prosecution’s case against him for that murder, independent of his murder of Stopher, can hardly be characterized as a “weak” one.

Moreover, this is not a situation in which convictions of both murders had to be secured in order to qualify defendant for the death penalty. Multiple murder was not the only special circumstance that rendered defendant death eligible; the lying-in-wait special circumstance alleged and found true in connection with Stopher’s murder itself qualified defendant for the ultimate penalty. We conclude the trial court was within its sound discretion in denying defendant’s motion to sever the Jones murder charge from the remaining charges. (People v. Price, supra, 1 Cal.4th at p. 388.) 3.

Wheeler error Twice during voir dire defendant claimed the prosecution was exercising its peremptory challenges to improperly excuse prospective Hispanic jurors on the basis of race, in violation of the federal and state Constitutions. (See Batson v. Kentucky (1986) 476 U.S. 79, 84-89 [106 S.Ct. 1712, 1716-1719, 90 L.Ed.2d 69]; People v. Wheeler (1978) 22 Cal.3d 258, 276-277 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) The motions were denied, and the Wheeler claim is here renewed on appeal.

Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (People v. Johnson (1989) 47 Cal.3d 1194, 1215 [255 Cal.Rptr. 569, 767 P.2d 1047] (Johnson); Wheeler, supra, 22 Cal.3d at p. 276.) A defendant bears the burden of establishing a prima facie case of Wheeler error. (People v.

Turner (1994) 8 Cal.4th 137, 164 [32 Cal.Rptr.2d 762, 878 P.2d 521] (Turner).) If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. (Ibid.) The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. (Purkett v. Elem (1995) 514 U.S. 765, 767 [115 S.Ct. 1769, 1770-1771, 131 L.Ed.2d 834]; People v.

Silva (2001) 25 Cal.4th 345, 384 [106 Cal.Rptr.2d 93, 21 P.3d 769].) The explanations need not justify a challenge for cause. (Turner, supra, 8 Cal.4th at p. 165.) “Jurors may be excused based on ‘hunches’ and even ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias. (People v.

Hall (1983) 35 Cal.3d 161, 170 [197 Cal.Rptr. 71, 672 P.2d 854].)” (Turner, supra, 8 Cal.4th at p. 165.) “While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.” (Turner, supra, 8 Cal.4th at p. 168.) Initially, we note that the petit jury and four alternates chosen to hear defendant’s case included four Hispanics: Raul M., Daniel M., Richard P. and Cynthia M.

At one point during jury selection the prosecutor accepted the jury with six Hispanics included (Rudolph J., Raul M., Ray V., Arthur A., Richard P. and Cynthia M.); at another point he accepted the jury with five Hispanics (Ray V., Raul M., Arthur A., Richard P. and Cynthia M.). When defendant first raised a Wheeler objection, the court expressly found no prima facie case but nonetheless allowed the prosecutor to state his reasons for the peremptory challenges on the record. Allowing the prosecutor to do so did not in itself constitute an implied finding of a prima facie case. (People v.

Davenport (1995) 11 Cal.4th 1171, 1200 [47 Cal.Rptr .2d 800, 906 P.2d 1068].) In contrast, when defendant renewed the motion, the court made no express finding that a prima facie case had not been demonstrated but instead immediately asked the prosecutor to justify the questioned challenges. This does suggest an implied finding of a prima facie case. (People v. Hayes (1990) 52 Cal.3d 577, 605 [276 Cal.Rptr. 874, 802 P.2d 376].) The court proceeded to consider the challenges to each prospective juror individually.

Defendant claimed four prospective jurors were challenged for purely racial reasons: April P., Eva J., Arthur A. and Sergio L. He also summarizes the prosecutor’s reasons for peremptorily excusing three other prospective jurors: Ernestine C., Daniel A. and Rudolph J. Defendant concedes there were race-neutral grounds for the challenge to Rudolph 1; his position on the excusal of Ernestine C. and Daniel A. is less than clear. April P. is not of Hispanic origin; she apparently acquired her Hispanic surname through marriage. Defendant argued below that this “counts,” and he reasserts that position here. He is wrong.

True, in People v. Trevino (1985) 39 Cal.3d 667, 684 [217 Cal.Rptr. 652, 704 P.2d 719], (disapproved on other grounds in Johnson, supra, 47 Cal.3d at pp. 1219-1221) we held that “Spanish sumamed” sufficiently describes the cognizable class Hispanic under Wheeler—but only where no one knows at the time of the challenge whether the Spanish-sumamed prospective juror is Hispanic. (People v.

Trevino, supra, 39 Cal.3d at p. 686.) Here, April P. twice indicated on her juror questionnaire that she was White, and when the trial court asked her for the record whether she was Hispanic, she replied “No.” Although the record reflects ample race-neutral reasons for the challenge to April P., we need not discuss them here, as her excusal was not based on race within the meaning of defendant’s Wheeler challenge. As noted, at one point the prosecutor accepted the jury while Rudolph J. was seated in the jury box. Defendant concedes on appeal that there were race-neutral grounds for Rudolph J.’s excusal.

The record also reflects that Rudolph J. opposed the death penalty. Although he indicated he would not automatically vote against it, there were further indications he had serious reservations about voting for it. Rudolph J. stated he could not face defendant after voting to put him to death. He indicated the death penalty frightened him, that if he voted for death he would have to “pay for it in the end,” and that he would rather have someone else make the decision.

These statements alone would have served as valid race-neutral grounds for Rudolph J.’s excusal. (Johnson, supra, 47 Cal.3d at pp. 1218-1219.) On two occasions during voir dire the prosecutor accepted the jury while Arthur A. was seated in the jury box. However, it also surfaced that Arthur A.’s father had been imprisoned for drug-related crimes. This alone could serve as a valid race-neutral reason to excuse him. (See People v.

Cummings (1993) 4 Cal.4th 1233, 1282 [18 Cal.Rptr.2d 796, 850 P.2d 1] [fact that prospective juror’s relative had been convicted of a crime was a proper consideration justifying peremptory challenge]; People v. Sims (1993) 5 Cal.4th 405, 430 [20 Cal.Rptr.2d 537, 853 P.2d 992] [same].) Arthur A. also related he had had a run-in with a California Highway Patrol officer who stopped him for a traffic offense and allegedly tried to “rough [him] up” and harass him. Although Arthur A. claimed he harbored no bad feelings about the episode, the prosecutor could still retain some doubts.

This circumstance too could alone serve as a race-neutral reason to excuse Arthur A. (See Johnson, supra, 47 Cal.3d at p. 1215 [peremptory challenge justified where prospective juror complained of police harassment].) Finally, during questioning Arthur A. indicated he might rely too heavily on the expert opinion testimony of psychologists; he stated he could not vote for the death penalty if a psychologist concluded defendant had a mental problem that affected his conduct.

Since the prosecutor anticipated defendant would claim his state of mind at the time of the crimes would not support a conviction for Stopher’s murder, Arthur A.’s potential reaction to expert opinion testimony on mental defect defenses was an important concern. Each of these reasons, individually or in the aggregate, could serve to justify the peremptory challenge of Arthur A. The prosecutor peremptorily challenged Eva J. because she appeared extremely emotional and overwhelmed by outside stresses, conditions that might compromise her ability to concentrate or fairly deliberate on the evidence.

She cried twice during voir dire, and the trial court’s notes confirmed the prosecutor’s belief that she was unduly “emotional.” Numerous times during voir dire Eva J. referred to her “nerves” and to being under considerable stress. Although she thereafter opined that her emotional state and the stressful circumstances would not interfere with her ability to consider the evidence, the prosecutor’s lingering concerns appear justified. Factors indicating a difficulty or inability to focus on the evidence may serve to justify a peremptory challenge. (See Mitchell v.

Superior Court (1984) 155 Cal.App.3d 624, 628 [202 Cal.Rptr. 284].) The prosecutor indicated he challenged Sergio L. primarily out of concern that he would place too much weight on the opinion testimony of psychologists. As a teacher, Sergio L. had never disagreed with a psychologist’s evaluation of a student. When asked if he could disregard a psychologist’s opinion that he considered unreasonable, Sergio L. responded, “Well, if he’s an expert I don’t know how I really could disregard it. I’d listen to it.

Because I’m not expert in that field.” At one point during voir dire the trial court deemed it necessary to instruct Sergio L., in response to one of his answers, that it was the ultimate responsibility of the jurors to assess the credibility of witnesses, whether expert or otherwise.

Sergio L.’s attitude could reasonably be found to reflect a bias in favor of a class of potential witnesses, i.e., expert witnesses, which could serve to justify exclusion. (Johnson, supra, 47 Cal.3d at p. 1215.) The prosecutor also explained his concern that Sergio L. was “in the defense camp” when he seemed to keep agreeing with the defense, and when he related a previous jury experience where he believed some jurors had made up their minds before the defense had presented its case.

If the prosecutor sincerely believed Sergio L. would be skeptical of the People’s evidence, this too alone could justify the peremptory challenge. (Johnson, supra, 47 Cal.3d at p. 1217.) The prosecutor also indicated Sergio L. had given him looks that made him uncomfortable.

Hostile looks from a prospective juror can themselves support a peremptory challenge. (Turner, supra, 8 Cal.4th at p. 171; Wheeler, supra, 22 Cal.3d at p. 275.) During voir dire Sergio L. also stated he felt transsexuals were “sick human beings.” Given murder victim Stopher’s sexual orientation, the prosecutor could rightfully harbor concern that Sergio L. might be biased against one of the victims in the case. At one point Sergio L. commented that he would not be influenced by anyone’s opinion but his own.

The prosecutor could rightfully feel concerned that he would not be able to consider the opinions of his fellow jurors, itself another valid ground for a peremptory challenge. (People v. Davenport, supra, 11 Cal.4th at p. 1203.) Finally, the prosecutor was aware that Sergio L. had initially requested to be relieved from jury service for work-related reasons. On this record, we find ample grounds to support the trial court’s determination that Sergio L. was excused for valid race-neutral reasons.

Ernestine C.’s negative experiences with law enforcement prompted the prosecutor to conclude she had a “jaundiced view” of the trial process that might hamper her from focusing on the evidence. She gave a lengthy and detailed account of her son’s arrest for drunk driving, claiming he was harassed by authorities and falsely accused of using drugs while at a weekend facility in connection with the charge. Her claim that she could remain impartial could be discounted in light of her fixation on the incident, which she related in great detail.

She also related she had received an unfair parking ticket, which she successfully fought. A prospective juror’s negative experiences with law enforcement can serve as a valid basis for peremptory challenge. (Turner, supra, 8 Cal.4th at p. 171.) The prosecutor challenged Daniel A. based on his strongly biased views against the death penalty. All of Daniel A.’s answers on the jury questionnaire reflected his strong opposition to the death penalty: he felt it was unfair, he had moral objections to it, he would vote to abolish it if given the opportunity, and he would automatically vote for life imprisonment.

Although Daniel A. suggested his views were otherwise upon questioning during voir dire, the prosecutor justifiedly remained skeptical, and the circumstances supported the peremptory challenge. (Johnson, supra, 47 Cal.3d at pp. 1218-1219.) Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion. (People v. Fuentes (1991) 54 Cal.3d 707, 720 [286 Cal.Rptr. 792, 818 P.2d 75]; People v.

Jackson (1996) 13 Cal.4th 1164, 1197-1198 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) On this record we conclude the Wheeler motions were properly denied. B. Guilt Phase Issues 1.

Corpus delicti of rape (count V); admission of defendant’s juvenile court testimony regarding the rape; sufficiency of evidence of rape Defendant was charged in count V with aiding and abetting his son in the forcible rape of Rose V. (§261, subd. (a)(2).) Defendant contends the only evidence of his aiding and abetting the rape came from his testimony on behalf of his son at the latter’s juvenile hearing, and that the corpus delicti of the crime of rape was not independently established as the necessary predicate for introduction of such extrajudicial statements.

Respondent in turn argues that since defendant’s admissions were made during a judicial proceeding (his son’s juvenile hearing), they were not “extrajudicial” admissions within the meaning of the corpus delicti rule such as would require corroboration under that rule.

Respondent also urges that although defendant, in his first pretrial motion to dismiss (§ 995), asserted there was insufficient evidence to establish the corpus delicti of rape, he did not thereafter specifically object at trial to admission of his juvenile court testimony on corpus delicti grounds, and has therefore waived the claim on appeal. (See People v.

Alvarez (1996) 14 Cal.4th 155, 186 [58 Cal.Rptr.2d 385, 926 P.2d 365].) “In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. (E.g., People v. Ochoa (1998) 19 Cal.4th 353, 404 [79 Cal.Rptr.2d 408, 966 P.2d 442] . . . ; People v.

Jones [(1998)] 17 Cal.4th 279, 301 [70 Cal.Rptr.2d 793, 949 P.2d 890]; People v. Jennings (1991) 53 Cal.3d 334, 364 [279 Cal.Rptr. 780, 807 P.2d 1009] . . . ; People v. Wright (1990) 52 Cal.3d 367, 403 [276 Cal.Rptr. 731, 802 P.2d 221] . . . ; People v. Beagle (1972) 6 Cal.3d 441, 455 [99 Cal.Rptr. 313, 492 P.2d 1] . . . ; People v. Cobb (1955) 45 Cal.2d 158, 161 [287 P.2d 752]; People v. Amaya (1952) 40 Cal.2d 70, 75-76 [251 P.2d 324]; People v. Simonsen (1895) 107 Cal. 345, 347 [40 P. 440]; 1 Witkin & Epstein, Cal.

Criminal Law (3d ed. 2000) Elements, § 45, p. 250.) Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. (Crisera, Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8 (1990) 78 Cal. L.Rev. 1571, 1572-1573 . . . .)” (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 [119 Cal.Rptr.2d 903, 46 P.3d 372] (Alvarez).) Recently, in Alvarez, supra, 27 Cal.4th 1161, we held that

article I,

section 28, subdivision (

d) of the California Constitution, the “Truth in Evidence” provision adopted by Proposition 8 in 1982, abrogated any corpus delicti basis for excluding a defendant’s extrajudicial statements from evidence. (Alvarez, at p. 1165.) Accordingly, we need not decide whether defendant adequately preserved a corpus delicti objection to the admissibility of his juvenile court testimony, nor whether any admissions made during that testimony, themselves having been made in another judicial proceeding, were nonetheless “extrajudicial” admissions for purposes of the corpus delicti rule. We further held in Alvarez that California Constitution

article I,

section 28, subdivision (d) “did not abrogate the corpus delicti rule insofar as it provides that every conviction must be supported by some proof of the corpus delicti aside from or in addition to such statements, and that the jury must be so instructed.” (Alvarez, supra, 27 Cal.4th at p. 1165.) To the extent defendant is renewing his claim that the corpus delicti of the crime of rape was not established below, his contention must fail. In People v.

Wright, supra, 52 Cal.3d 367, we explained: “The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393 [157 Cal.Rptr. 809].) ‘The independent proof may be by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citations.]’ (People v.

Alcala (1984) 36 Cal.3d 604, 624-625 [205 Cal.Rptr. 775, 685 P.2d 1126].) It is not necessary for the independent evidence to establish that the defendant was the perpetrator. (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]; Jones, supra, at p. 393.)” (People v. Wright, supra, 52 Cal.3d at p. 404; see also People v.

Jennings, supra, 53 Cal.3d 334, 368 [“We reemphasize that the quantum of evidence the People must produce in order to satisfy the corpus delicti rule is quite modest; case law describes it as a ‘slight or prima facie’ showing. [Citations.]”].) At trial, Rose V. testified that after defendant killed Stopher, defendant and Joseph dragged her out of the house and forced her into Jones’s van. Defendant twice hit her on the back of the head with the rifle or shotgun. She was also hit behind her right ear with a hard object she could not identify.

As they drove off and entered the freeway, defendant and Joseph kept telling Rose V. to shut up. Defendant told Joseph to gag her and tie her up. Defendant warned Rose ' V. that if she did not cooperate, Joseph would cut her. Joseph tied her hands behind her back with rope, tied her ankles, blindfolded and gagged her. Rose V. testified that the man wearing the mask (later identified as Joseph) then raped her. He cut off her bra with a knife and sliced a half-inch cut in her ankle when he could not remove her pants and had to cut the rope that bound her feet.

When Joseph finished raping Rose V., defendant told him to make sure she could breathe and to cover her with a sheet. Rose V.’s testimony regarding her rape, together with the corroborating circumstantial evidence, plainly established the corpus delicti of the crime independent of defendant’s admissions made at Joseph’s juvenile court hearing.

But defendant argues further that even if the corpus delicti of forcible rape was established generally, since he was charged only as an aider and abettor of Joseph, who was the direct perpetrator of the rape, no evidence independent of defendant’s admissions at the juvenile hearing established his role as an aider and abettor of the crime. Defendant misconstrues the corpus delicti rule. It is not necessary for independent evidence to establish defendant as the perpetrator in order to satisfy the rule. (People v. Cullen, supra, 37 Cal.2d at p. 624; Jones v.

Superior Court, supra, 96 Cal.App.3d at p. 393.) More specifically, it has been held that in a case tried on an aiding and abetting theory, the requisite knowledge and intent required for aider-abettor liability are not elements of the corpus delicti that must be proved independently of any extrajudicial admissions for purposes of establishing the corpus delicti. (People v.

Ott (1978) 84 Cal.App.3d 118, 131 [148 Cal.Rptr. 479] [“the corpus delicti must be established with respect to the underlying criminal offense, rather than the theory of aiding and abetting which, in the absence of the commission of the main crime, would not be punishable at all”], disapproved on other grounds in People v. Beeman (1984) 35 Cal.3d 547, 556-559 [199 Cal.Rptr. 60, 674 P.2d 1318].) Last, defendant argues the evidence was insufficient to support his conviction of aiding and abetting his son’s forcible rape of Rose V. The claim was raised and rejected in a Penal Code

section 1118.1 motion for judgment of acquittal at the close of the People’s case-in-chief. It is without merit. We have explained that defendant cannot assert a violation of the corpus delicti rule as a ground for excluding any incriminating admissions made during his testimony at the juvenile hearing, and that in any event, the corpus delicti of the crime of forcible rape was independently established exclusive of such admissions. In denying defendant’s second pretrial motion to dismiss the forcible rape charge, the trial court found that any incriminating statements made at the juvenile hearing were admissions within the meaning of Evidence Code

section 1220. At trial, when defendant again objected to the reading of redacted portions of his testimony from Joseph’s juvenile court hearing, the trial court held a hearing pursuant to Evidence Code

section 402, subdivision (b), and made findings that defendant was represented by counsel at the juvenile proceeding, had waived his right against self-incrimination, and that his testimony was not coerced and was freely and voluntarily given. The credibility of defendant’s testimony at the juvenile proceeding was an issue for the jury’s determination. The trial court’s rulings were correct and supported by the evidence. At the juvenile hearing, defendant had testified that at some point he stopped the van, got into the back, told Joseph to go to the front of the van, and then had intercourse with Rose V.

He testified he then ordered Joseph to “fuck her,” and forced his son to rape Rose V. Defendant specifically testified at the juvenile hearing that he loved his son but was not lying to protect him. In contrast, at his own trial defendant testified he was driving the van and was unaware of the rape when it occurred, that he did not tell Joseph to rape Rose V., and that he lied at Joseph’s juvenile court hearing in order to protect his son. It fell to the jury to sort out the credibility of defendant’s testimony.

To the extent defendant claimed at the juvenile hearing that he had also raped Rose V., such testimony conflicted with Rose V.’s account of the crime in both her preliminary hearing and trial testimony—she testified defendant did not rape her. Contrary to defendant’s criticism that the prosecution presented conflicting theories of the rape in the two proceedings and sought to have it both ways, the prosecution did not charge defendant as a direct perpetrator of the forcible rape of Rose V., but instead specifically charged him as an aider and abettor of Joseph’s crime.

The jury remained free to credit defendant’s juvenile hearing testimony that he aided and abetted Joseph’s act of forcible rape. We need determine only “ ‘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.’ (Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 2789, 61 L.Ed.2d 560], italics omitted; see also People v. Kraft (2000) 23 Cal.4th 978, 1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].)” (People v.

Catlin, supra, 26 Cal.4th at p. 139.) Applying that standard, we find the evidence presented at trial, including Rose V.’s testimony of the circumstances surrounding her rape and defendant’s admissible testimony from his son’s juvenile court hearing on his own role in the crime, was sufficient to support his conviction of aiding and abetting the forcible rape of Rose V. 2.

Miranda/Harris: admission of defendant’s extrajudicial statement regarding his acquisition of Jones’s van for impeachment purposes During defendant’s cross-examination, the prosecutor stated that he desired to question defendant about a statement he made at the hospital after invoking 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]) while being questioned about Stopher’s killing.

The prosecutor identified defendant’s statement as, “I rented the van from a guy by the name of Edwin.” The prosecutor acknowledged the statement was inadmissible in his case-in-chief, but argued it should be admissible for the limited purpose of impeaching defendant pursuant to this court’s decision in People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307] (May), implementing the holding of Harris v. New York (1911) 401 U.S. 222 [91 S.Ct. 643, 28 L.Ed.2d 1] (Harris), since defendant had testified on direct examination that he had found the van with Jones’s body in it in the motel parking lot.

Upon defendant’s objection, the court conducted a hearing on the admissibility of the statement pursuant to Evidence Code

section 402, subdivision (b). Richard Spady, the physician who treated defendant at Riverside General Hospital on November 3, 1986, the date defendant made the statement, testified defendant had undergone an operation two days earlier, was in stable condition, and was having a normal postoperative recovery with normal mental functioning. Nurses’ reports for the date in question reflected defendant was awake, alert, and fully oriented. He was on antibiotics and pain medication, but they would not be expected to appreciably affect his mental functioning. Dr.

Spady testified there was nothing he observed that would suggest defendant was not able to make a free and voluntary statement on the afternoon of the date in question. Detective Stroup testified he attempted to interview defendant at the hospital at 5:30 p.m. on November 3, 1986. Defendant was coherent, although obviously in pain. When advised of his Miranda rights, defendant indicated he understood them. Detective Stroup asked defendant if he was willing to talk about the Stopher murder. At the time, the detective was unaware of Jones’s murder or who owned the van defendant was driving upon his arrest.

Defendant indicated he would talk a little bit, as much as he could without a lawyer being present. When asked about the murder of Stopher, defendant would not answer and indicated he should probably have a lawyer before answering such questions. Detective Stroup terminated the questioning. He then began a second interview of defendant to determine where the van had come from and from whom defendant had acquired it.

Detective Stroup was not aware at that time that the owner of the van was, in fact, dead—his report just indicated police needed to know who the owner of the van was and how defendant had obtained the vehicle. The report further reflected that he told defendant during the second interview that anything he would say would not be used in court against him, and that this was “over and above his Miranda waiver.” When asked by the court what he meant by that advisement, Detective Stroup explained, “That I was there to talk to him about the death of Mr. Stopher. And he—he’d advised me he didn’t want to discuss that.

And this was not dealing with Mr. Stopher.” Detective Stroud testified that at that time he had no intention of using any information defendant gave him about how he obtained the van against him in court. Defendant told the detective he had rented the van from an individual by the name of “Edwin,” that he did not know where the owner of the van was, and that he did not want to say anything else. Detective Stroup terminated the questioning.

The trial court ruled that the statement was obtained in violation of Miranda because it had been made during continued questioning after defendant had invoked his Miranda rights. The court nevertheless found the statement admissible for the limited purpose of impeachment under May, supra, 44 Cal.3d 409, and concluded that its probative value for that purpose outweighed any possible prejudice to defendant.

On rebuttal, Detective Stroup testified he contacted defendant at the hospital at approximately 5:30 p.m. on November 3, 1986, asked him about the van, and that defendant stated he had rented it from a person named “Edwin” and did not know the whereabouts of the van’s owner. Defendant challenges the admission of the statement on a number of grounds.

He emphasizes that his statement that he rented the van from a person named Edwin “obviously was untrue,” although he concedes the extrajudicial statement conflicted with his direct testimony at trial that he found the van in the motel parking lot with Jones already strangled inside.

Defendant argues the statement “was not relevant for admissibility under the May and Harris test because the statement was not incriminating in the required sense.” By this he means the statement “was not impeaching because it was untrue, was not inculpatory, and was contrary to both the prosecution’s and the defense theories of the case as presented to the jury.” First, there is no requirement that extrajudicial statements ruled inadmissible under Miranda must be truthful in order for them to be available for the limited purpose of impeachment under Harris. “The Harris court held that statements made to police under circumstances rendering them inadmissible under Miranda in the prosecution’s case in chief could be admitted for purposes of impeachment of a testifying defendant whose trial testimony was inconsistent with the earlier statements.” (May, supra, 44 Cal.3d at p. 315; see Harris, supra, 401 U.S. at p. 226 [91 S.Ct. at p. 646].) Here, the impeachment value of defendant’s extrajudicial statement, whether true or not, was that it contradicted his testimony at trial and thereby bore upon the credibility of that testimony.

In his closing argument, the prosecutor urged the jury to find that because defendant lied when he told police he rented the van from a man named Edwin, his conflicting story at trial—that he was involved in an attempted drug buy with Jones at a motel, and that he found the van in the motel parking lot with Jones’s already strangled body inside— should likewise be disbelieved. Defendant’s remaining claims respecting the admissibility of the statement for impeachment purposes are likewise unavailing.

He argues that his statement was involuntary and thus excludable for all purposes, including impeachment. (See Michigan v. Harvey (1990) 494 U.S. 344, 350-351 [110 S.Ct. 1176, 1180-1181, 108 L.Ed.2d 293].) We have independently reviewed the record and find that the prosecution proved that the statement was voluntary by a preponderance of the evidence. (People v. Badgett (1995) 10 Cal.4th 330, 348 [41 Cal.Rptr.2d 635, 895 P.2d 877]; People v.

Thompson (1990) 50 Cal.3d 134, 166 [266 Cal.Rptr. 309, 785 P.2d 857].) Detective Stroup’s representation to defendant that the statement would not be used against him in court for any purpose complicates the matter somewhat, because the statement was ultimately used for impeachment. Regarding the question of whether the detective’s representation rendered defendant’s statement involuntary, the trial court found that Detective Stroup was simply being truthful, in that he was unaware at the time that Jones was the van’s owner, much less that she had been killed and her body secreted in the van.

The court found it significant that since Detective Stroup was investigating the Stopher murder, and since defendant had halted the questioning about that crime in the first interview, the detective was simply conveying to defendant that any information defendant furnished about the van would not be used against him in the Stopher case, in which questioning had just been terminated at defendant’s request.

Although Detective Stroup may not have harbored a subjective belief that any statement defendant made would be used against him in a prosecution for the murder of Jones—since the detective had no knowledge of Jones’s murder at the time—the voluntariness inquiry is, of course, concerned with defendant’s subjective state of mind at the time of the questioning, not that of Detective Stroup. In that regard, defendant was plainly told that his statement would not be used against him in court for any purpose.

The legal circumstance that the statement ultimately was used against him in court for the limited purpose of impeachment under Harris and May does not bear directly on the inquiry of whether the statement was voluntary at the time it was made. It is the fact that defendant was told any information he furnished about the identity or whereabouts of the van’s owner would not be used against him in court, and his possible reliance on that representation in making the statement that he rented the van from a person named Edwin, that does, of course, bear on the voluntariness inquiry.

The matter is further complicated because we know in hindsight that the information defendant furnished about the van’s owner, in actuality, was not true, a matter conceded by defendant. In short, from the standpoint of voluntariness, Detective Stroup’s representation to defendant, that any information he furnished about his acquisition of the van would not be used against him in court, did not motivate defendant to reveal truthful and incriminating information, thereby possibly rendering such disclosures involuntary.

In sum, although we disagree with the trial court’s specific conclusion that Detective Stroup’s state of mind in making the representation to defendant precludes a finding of involuntariness, the circumstance that the statement was ultimately and lawfully admitted against defendant in court for the limited purpose of impeachment does not alter our conclusion that the prosecution proved the voluntariness of the statement by a preponderance of the evidence. (People v. Badgett, supra, 10 Cal.4th at p. 348; People v.

Thompson, supra, 50 Cal.3d at p. 166.) In any event, even assuming arguendo it was error to admit the statement for impeachment purposes given Detective Stroup’s representation at the time it was made that it would not be used in court, the error was clearly harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 487, 509-510 [20 Cal.Rptr.2d 582, 853 P.2d 1037]; see Arizona v.

Fulminante (1991) 499 U.S. 279, 306-312 [111 S.Ct. 1246, 1262-1266, 113 L.Ed.2d 302].) Defendant concedes that the statement that he rented the van from a person named Edwin was not true; neither was it a confession, an incriminating admission, or other substantive evidence of guilt. The only possible prejudice would flow from the impeachment value of the statement, but defendant’s credibility was already in serious question at trial.

Defendant testified, “I was lying throughout the trial proceedings of my son”; he testified he lied to his brother-in-law Lostanau; he testified he initially lied to Joseph about his intentions in going to Hesperia; he testified he lied to Officer Dunavent when stating upon being stopped that he was on his way home; and he testified he had lied to his second wife, Rose V., about his relationship or affair with Jones.

There was strong physical evidence pointing to defendant as Jones’s murderer, including that a garrote he admittedly made was found wrapped around her neck; that he secreted her body in the van and drove the vehicle across county lines; that he had a motive for the killing (use of Jones’s van to accomplish the Stopher murder and Rose V. kidnapping); and that after his arrest he made an admission of awareness that he had killed two persons (i.e., Stopher and Jones).

On this record it is clear beyond a reasonable doubt that impeachment with defendant’s extrajudicial statement that he rented the van from a person named Edwin did not prejudice his conviction of Jones’s murder. Defendant also complains that the giving of CALJIC No. 2.13, which instructs the jury, inter alia, that it can consider a prior inconsistent statement, not only for impeachment, “but also as evidence of the truth of the facts as stated by the witness on such former occasion,” permitted the jury to consider the statement for other than mere impeachment, in contravention of the Miranda ruling below.

The short answer is that a limiting admonition was never requested, nor was the trial court under a sua sponte obligation to give one. (See Evid. Code, § 355; People v. Torrez (1995) 31 Cal.App.4th 1084, 1088 [37 Cal.Rptr.2d 712].) In any event, since the statement was neither a confession nor an admission and defendant concedes the statement was not true, there was no substantive, much less prejudicial, use to which the jury could have put the statement, even had the jury improperly applied CALJIC No. 2.13.

Since use of the statement for impeachment or any other purpose could not in logic have prejudiced defendant’s conviction of Jones’s murder, his related claims of prosecutorial misconduct and ineffective assistance of counsel in connection with the admission of the statement and the giving of CALJIC No. 2.13 without a limiting instruction must be likewise be rejected. 3. Exclusion of third party culpability evidence Defendant contends the trial court erred when it made a ruling excluding any third party culpability evidence regarding the murder of Jones.

Defendant also urges that the trial court precluded submission of this defense to the jury when it rejected the following requested instruction: “As an established principle, a defendant may show another person committed the crime and that he himself is innocent.” We find no error. The issue of third party culpability evidence first surfaced when the prosecution sought a ruling prior to jury voir dire excluding any such evidence. The motion was denied without prejudice at that time.

The matter resurfaced in anticipation of references to such evidence in defendant’s opening statement, which was never forthcoming, and became the subject of a full hearing pursuant to People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99] (Hall) at the close of the People’s case-in-chief. At the hearing, the defense presented the testimony of three witnesses. Defendant testified he had personal knowledge that Jones dealt in marijuana and other narcotics from the time he first met her in 1984.

He testified Jones owed a large sum of money to a drug dealer from a prior transaction, that she was putting together a drug transaction for late in the evening of October 30, 1986, and that she enlisted his services to protect her during the meeting. Defendant was to be armed and await any indication she might be in trouble. Defendant testified he obtained weapons from his brother-in-law’s house, that Jones purchased ammunition for the weapons, and that they met a Mexican man named Pablo at the arranged time on the evening of October 30. The drugs never arrived.

Instead, the transaction was postponed and Jones and Pablo drove defendant to his first wife’s house to speak with his son Joseph, then dropped defendant off at the Bakersfield motel where he stayed alone in a room that night. Defendant never ‘saw Pablo again. He did, however, call and speak with Jones on the telephone the following morning, October 31, and she was all right at that time. He thereafter came upon her van parked in the motel parking lot later that same afternoon, and found Jones dead inside, with the garrote, which he admittedly had made, tied around her neck.

A second witness, Vickie Boen, testified she was an employee at Longs Drugs in Bakersfield on October 30, 1986, and

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