THE PEOPLE, Plaintiff and Respondent, v. DEAN PHILLIP CARTER, Defendant and Appellant, 36 Cal. 4th 1114

Opinion GEORGE, C. J. Following the guilt phase of the trial, a Los Angeles County jury found defendant Dean Phillip Carter guilty of the forcible rape (Pen.

Code, § 261) and first degree murder of Jillette Mills (§§ 187, subd. (a), 189), and found true the special circumstances that the murder was committed in the course of a forcible rape and in the course of a first or second degree burglary (§§ 460, 190.2, subd. (a)(17)(C), (G).) The jury also found defendant guilty of the first degree murder of Susan Knoll (§§ 187, subd. (a), 189) and of residential burglary (§ 459), and found true the special circumstance that the murder was committed during the commission of a burglary. (§ 190.2, subd. (a)(17)(G).) The jury further found defendant guilty of the forcible rape (§ 261) and first degree murder of Bonnie Guthrie (§§ 187, subd. (a), 189) and of residential burglary (§ 459), and found true the special circumstances that the murder was committed in the course of a forcible rape and in the course of a burglary. (§ 190.2, subd. (a)(17)(C), (G).) In addition, the jury found true the special circumstance that defendant was convicted in the present proceeding of more than one offense of murder. (§ 190.2, subd. (a)(3).) At the conclusion of the penalty phase, the jury returned a verdict of death.

This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the judgment in its entirety. FACTS I. Guilt Phase Evidence A. The Prosecution’s Case 1. The Death of Tok Kim The prosecution commenced its case by introducing, over defendant’s objection, evidence that pertained to the death of Tok Kim, who was 42 years of age, in Alameda County in early April 1984. The evidence, summarized below, was introduced under Evidence Code

section 1101, subdivision (b), for the purpose of demonstrating defendant’s identity and criminal intent in the charged offenses relating to the murders of Jillette Mills, Susan Knoll, and Bonnie Guthrie on April 10 and 11, 1984. In the early evening of Sunday, April 1, 1984, defendant entered the Rocking Horse Bar and Grill, located in Lafayette, California.

The bartender, Nicole Didion, testified that business was slow that evening when defendant sat down at the bar, ordered a drink, and introduced himself to her as “Phil.” He wore casual pants, which she believed were jeans, and a sweatshirt inscribed with the words “Tenakee Tavern—Southeast Alaska’s Classiest Joint.” He told Didion that he worked as a cameraman. Cocktail waitress Margo Fulton observed defendant sitting at the bar, and joined his conversation with Didion. Approximately one-half hour later, Tok Kim entered the bar, sat down a few barstools apart from defendant, and ordered a glass of white wine.

She departed from the bar soon thereafter, only to return a few minutes later, declaring that she had been unable to start her Honda automobile. Defendant offered to assist her and left with her. After a few minutes, defendant returned to the bar and asked whether anyone had “jumper cables.” A restaurant employee obtained cables; the car thereafter was started, and defendant returned to the bar to gather his belongings. Defendant remarked to a cocktail waitress that he was getting a ride to the local BART station.

Approximately 9:00 p.m. the same evening, defendant and Kim walked into Jim Sutton’s Lafayette Shell gasoline station and reported car trouble. David Hogan, an employee at the station, assisted the couple in bringing the disabled vehicle to the station. Because the alternator apparently was malfunctioning, the vehicle was left at the station overnight for repairs. The next day, April 2, Kim and defendant returned to the Shell station. Hogan noticed that defendant wore a black “Members Only” jacket that “was in style back then,” as well as mirrored sunglasses on top of his head.

Hogan, observing that defendant’s neck bore a “big—like a hickey on his neck,” told defendant, “Well[, i]t looked like you had fun last night.” Defendant replied: “I don’t even know what I’m doing here, I don’t even know her.” At approximately 11:00 p.m. on Tuesday, April 10, or Wednesday, April 11, Kim’s neighbor, Connie Santos, heard Kim arguing with someone.

Santos knew the voice of Kim’s boyfriend, Ray Blevins, and testified that the person with whom Kim was arguing “was not [Blevins] definitely, but instead belonged to someone ‘younger.’ ” Santos could not discern the precise words spoken, but recalled that the persons arguing sounded “really angry.” Santos thought that perhaps she should call the police, but instead she went to bed, pulling the bedcovers over her head in an effort to block the noise. On Thursday, April 12, Kim failed to arrive at her job at the Concord Macy’s department store.

Her manager at Macy’s, Ingrid Maleska-King, telephoned Kim’s apartment manager, William Elson, to request that he ascertain whether she was at her apartment. Elson, who had observed defendant standing near Kim’s apartment mailbox earlier that same week, did not find Kim at her apartment. Elson also observed that Kim’s vehicle was not in its designated parking space or anywhere in the vicinity. When Kim did not appear for work on Friday, April 13, Maleska-King again contacted Elson and asked him to recheck whether Kim was at her apartment.

As Elson approached the apartment on this second occasion, he “felt extinctively [¿ic] that she was in there because of the odor that I smelled.” Elson found Kim’s lifeless body sprawled upon the floor of her bedroom. Oakland Police Detective Raymond Conner investigated Kim’s death, arriving at her apartment on the morning of April 13. Beneath Kim’s neck, he discovered a curtain tie approximately 18 to 24 inches in length. Kim’s body had decomposed to an extent that it precluded a determination of a cause of death.

The pathologist who performed the autopsy, Thomas Rogers, testified over defendant’s objection that the tie found beneath Kim’s neck could have been used to fatally strangle her. On cross-examination, Rogers acknowledged that in view of the body’s advanced state of decomposition, he could not eliminate the possibility that Kim might have died from natural causes. 2. The Deaths of Susan Knoll and Jillette Mills Susan Knoll and her sister, Sandra Pender, grew up in Wisconsin. Knoll’s best Mend was Bonnie Guthrie. In 1972, Pender relocated to San Diego, and in 1979 Knoll journeyed west to live with her.

Guthrie also relocated to the Los Angeles area at some point and resumed her close Mendship with Knoll. In March 1984, Knoll moved into a Culver City apartment with Jillette Mills. Knoll and Mills each were 25 years of age. On April 10, 1984, Knoll appeared at work at Mitsubishi Bank, according to Annette Cheng, Knoll’s colleague. On April 11, Knoll was absent from work, and Cheng received a telephone call from a male who declined to identify himself.

The caller informed Cheng that Knoll was “just involved in a traffic accident and she have some minor injury [sic] and would like to go to hospital for the checkup, but she asked me to call the bank to let the bank know that she won’t be in today.” Cheng asked the caller if he was a friend of Knoll’s, and the caller replied: “No, I just happened to be in the accident scene and she asked me to call for her.” When Cheng asked for the caller’s name, he hung up the telephone. Cheng never saw Knoll alive again.

On cross-examination, Cheng acknowledged that when she spoke to the caller, she believed he was a Black man with a southern accent. For a few days prior to April 10, 1984, Jillette Mills’s brother, Jeff, Med without success to contact Jillette. On April 11, 1984, Jeff and his friend, Christopher Thurman, began searching for her.

Jeff and Christopher traveled to Jillette’s Culver City apartment, to her place of employment (Laird Studios), and to a local community college where she had attended classes, but were unable to locate Jillette or her automobile, a distinctive white Datsun 280 ZX that bore the license plate “PHANTM Z.” Jeff and Christopher thereafter returned to the apartment building, scaled a security fence, and approached the apartment. Jillette’s apartment door was unlocked.

Upon searching much of the apartment without success, Jeff and Christopher encountered a framed piece of artwork leaning against the doors of a bedroom closet. Opening the closet doors, Christopher noticed “feet on the floor” and advised Jeff that “we have a problem.” The fully clothed bodies of Susan and Jillette were lying on the floor of the closet, one stacked upon the other. Jeff called the police, and Christopher went outside to await their amval. While Christopher waited by the curb, he leaned on the left front fender of a blue Honda that investigators subsequently determined belonged to Tok Kim.

Inside the vehicle, investigators recovered a pair of sunglasses identified at trial by David Hogan, the Lafayette gasoline station attendant, as matching the pair he observed resting atop defendant’s head. Police investigators examined Jillette’s apartment for fingerprints and other physical evidence. Two wine glasses found in the kitchen appeared to have been wiped clean to eliminate any traces of fingerprints. A latent palm print was retrieved from the bathroom sink.

Martin Collins, a latent print investigator employed by the California Department of Justice, testified that the latent print matched defendant’s right palm print with “100 percent” certainty. Dr. Lakshmanan Sathyavagiswaran, Chief of Forensic Medicine at the Los Angeles County Medical Examiner’s Office, testified that Jillette Mills died of asphyxia due to ligature strangulation. He added that “considerable force” had to have been “continuously applied” for approximately two minutes or more in order to cause death.

Jillette also suffered “blunt force type trauma” to her head, and injury to her genital area consistent with “traumatic sexual assault” including “penile penetration . . . and ejaculation.” Sam Le, a Los Angeles County criminalist, testified that a white nightgown found in the apartment contained seminal fluid consistent with defendant’s PGM type and that of 15.8 percent of the population. Seminal fluid recovered from Mills’s vaginal area “was [of an] insufficient quantity for typing.” Dr.

Sathyavagiswaran further testified that Susan Knoll died of asphyxia due to manual strangulation, the result of “considerable compression force.” Susan also suffered blunt force injuries and hemorrhages consistent with having struggled against her assailant. Dr.

Sathyavagiswaran stated: “[W]hen Miss Knoll was strangulated and was asphyxiated, this was probably a terminal event [—] that she vomited and aspirated, [f] The very fact that the vomitas did not go to the distal parts of the lung, that is, [the] distal bronchi, she did not live very long after this vomitas—after this vomiting episode.” Seminal fluid recovered from Knoll’s vaginal area was of an insufficient quantity for typing. Each victim had been dead for a minimum of 15 hours prior to the time the autopsies were performed upon their bodies. 3.

The Death of Bonnie Guthrie In the early afternoon of April 11, 1984, Bonnie Guthrie, then 34 years of age, and a friend, Geula Vehab, purchased fruit together in Santa Monica. The two parted company at approximately 1:20 p.m. Between 3:00 p.m. and 4:00 p.m., Matty Spiro, the manager of the apartment building in which Guthrie resided, entered her West Los Angeles apartment, accompanied by Manny Gleberman, to repair a leaky bathroom faucet. As Gleberman worked on the faucet, Spiro observed Guthrie lying on her stomach on the bedroom floor: “So I says to Manny, the plumber—I said, ‘Look at that, Manny.

She’s sleeping on the floor.’ I said, T better close the door and let her sleep.’ ” The next morning, April 12, Spiro noticed that Guthrie’s automobile was still in the garage. Wondering why Guthrie apparently had not gone to work, he returned to Guthrie’s apartment and knocked on the door. Upon entering the apartment, Spiro noticed Guthrie lying in the same position as he previously had observed. He then notified the police. Dr. Sathyavagiswaran testified that Guthrie died of ligature strangulation.

He added that Guthrie’s body bore the signs of having suffered blunt force injury as well as genital abrasions consistent with traumatic sexual assault. Vaginal area samples revealed the presence of spermatozoa. Two days later, on April 14, Adolph Romero III, a commercial fisherman, noticed a white Datsun 280 ZX parked in front of a San Diego shipyard. Approximately 50 feet from the vehicle, Romero retrieved Guthrie’s wallet from beneath some bushes. When Guthrie could not be reached, the wallet ultimately was turned in to the local police. 4.

The Death of Janette Cullins The prosecution, pursuant to Evidence Code

section 1101, subdivision (b), presented evidence over defendant’s objection that on or about April 12, 1984, Janette Cullins, who was 24 years of age, died by strangulation. Janette originally had encountered defendant in a San Diego bar in February 1984, and saw him socially the following month. Lee Ann Johnson, who resided across the street from Janette’s apartment, reported that during April 1984 she observed a distinctive-looking vehicle arrive and depart from the area on several occasions. At trial, Johnson testified that the vehicle, a white Datsun 280 ZX, resembled the one owned by Jillette Mills.

One night that April, Johnson observed the vehicle parked across the street, its engine running for 10 or 15 minutes, “[a]nd then all of a sudden I heard the car start—take off, and it sort of screeched and made a u-tum and came up past my house to the comer and didn’t stop for the stop sign and went through the stop sign.” Johnson never saw the vehicle again. Approximately midday on April 13, Cullins’s previous roommate, Nancy McEachem, drove to Cullins’s apartment because they had planned to conduct a yard sale on the following day, a Saturday, and McEachem wanted to drop off some items to sell.

As she was parking her vehicle in front of the apartment, defendant drove up in a white Datsun 280 ZX. He asked McEachem whether Cullins was home. McEachem replied, “Her car is not here. She hasn’t answered a phone call” placed by McEachem earlier that morning. Defendant left, and McEachem entered the apartment.

Inside, the drapes were drawn and the Venetian blinds were closed, causing the apartment to appear dark, which McEachem testified was “unusual” for that time of day because “We had the habit of opening everything up and making it real bright first thing in the morning.” McEachem left a note for Cullins on the dining table and departed from the apartment. McEachem returned the next day to discover Janette’s body lying in the bedroom closet. The cause of her death was asphyxiation due to strangulation.

Records of Great American Bank revealed that on April 13, 1984, a withdrawal from Janette Cullins’s account in the amount of $60.00 (leaving an account balance of $4.06) was made from an automatic teller machine located at the bank’s Point Loma Branch. A four-minute videotape of the transaction, introduced into evidence and shown to the jury, depicted a man wearing a black jacket. 5.

Defendant’s Arrest Approximately 10:50 p.m. on April 17, 1984, Arizona Highway Patrolman Robert Dapser was completing a traffic stop on Interstate 40 in northern Arizona, when he received a call from a track driver on the citizen’s band radio located in his patrol vehicle. The caller advised that “an erratic vehicle had been driving in his location, passed by him twice and nearly cut him off both times,” and identified the California license plate on the car as “PHANTOM 2.” The subject vehicle, a Datsun 280 ZX, drove by as Officer Dapser was receiving this information.

Officer Dapser pursued the vehicle, which he observed “swerving across the center line of the highway.” He activated the emergency lights on his patrol vehicle and initiated a traffic stop. After illuminating the Datsun with a spotlight, Dapser approached the car and requested that the driver produce identification. Defendant, the lone occupant of the vehicle, produced an expired driver’s license issued by the State of Alaska. Dapser asked for the vehicle registration documents.

Defendant searched the center console and glove box and then stated, “I can’t find it, she must not have it in here.” Dapser thought he observed a burnt marijuana cigarette in the center console of the Datsun and, having witnessed the vehicle’s erratic movement, decided to take defendant into custody. He advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda) and placed him in the patrol vehicle. Officer Dapser returned to the Datsun to search for the burnt marijuana cigarette.

He noticed beer bottles, one of which was empty, located on the passenger side floorboard. While searching for the marijuana cigarette, Dapser observed a bank identification card located in the crevice between the driver’s seat and the center console. The name on the card was that of Janette Cullins.

Believing that the truck driver who originally noticed the Datsun had misidentified the license plate, Dapser transmitted a message over his police radio, advising that the license plate was not “PHANTOM 2,” but “PHANTM Z.” Within several minutes, a dispatcher instructed Dapser to detain the vehicle and all occupants at the request of California law enforcement officials. Dapser discontinued his search of the Datsun and arranged for it to be towed to a locked police storage area.

Officer Dapser administered a Breathalyzer test to defendant, which revealed that his blood-alcohol content was .078 percent approximately 80 to 90 minutes after the traffic stop. Defendant was transported to the Yavapai County jail in Prescott, Arizona. 6. The Contents of the Datsun 280 ZX On April 18, 1984, Officer Dapser released the contents of Jillette Mills’s Datsun 280 ZX, as well as certain personal property confiscated from defendant’s person, to West Los Angeles and Culver City police detectives.

The detectives inventoried the personal property and other objects recovered from the vehicle, which included the following items introduced into evidence at defendant’s trial: an American Tourister suitcase containing a plastic jar filled with pennies and labeled “black bean soy sauce,” a Korean-made wood-handled kitchen knife, yellow rubber gloves, and a gold chain—all identified as having belonged to Kim; a sweatshirt depicting a location in Alaska; an Alpha Beta supermarket CASHEX card identified as having belonged to Susan Knoll; towels, athletic wear, and photographic equipment identified as having belonged to Jillette Mills; three hand-woven sweaters identified as having belonged to Bonnie Guthrie; a “Members Only” jacket, which contained a butcher knife, a knee-high nylon sock, and a business card from Jim Sutton’s Lafayette Shell gasoline station; a key ring identified as having belonged to Janette Cullins; and a piece of paper with the word “SHYLAS”—the access code to Cullins’s Great American Bank (originally San Diego Federal Savings and Loan) account; and a number of items emblazoned with the names of Las Vegas casinos.

A pair of jeans recovered from the Datsun contained a yellow half-sock and a blue bandana. B. The Defense Case The defense did not present any evidence. II. Penalty Phase Evidence A. The Prosecution’s Case The prosecution presented evidence in aggravation establishing that in the early morning hours of March 29, 1984, defendant, uninvited, entered the Ventura County residence of Jennifer S., 22 years of age, with whom he had been acquainted for approximately two weeks. During a period of four and one-half hours, defendant twice strangled Jennifer until she lost consciousness.

After she regained consciousness, defendant tied her hands behind her back. Sometimes wielding a bone-handled knife, defendant forced her to orally copulate him on multiple occasions. Unable to attain an erection, defendant complained that Jennifer “could do it better.” Shaking violently and uncontrollably, Jennifer asked for a drink of water. Instead, defendant located a bottle of wine and two wine glasses and “took the wine and . . . forced it against” her, causing it to spill onto Jennifer’s face. Thereafter, defendant demanded and obtained cash kept at the residence.

Subsequently, he pulled off Jennifer’s clothes and raped her. At some point, defendant informed Jennifer he “liked cocaine,” and Jennifer told him he could find a small amount in a cupboard. Defendant retrieved the drug, which she assumed he snorted, and he subsequently “calmed down quite a lot.” Shortly after reassuring defendant that she would not call the police and feigning concern for defendant’s well-being, Jennifer “ran out the front door and ran as fast as [she] could” to a neighbor’s apartment, where she “pounded” and “kicked” the door. The neighbor answered and shortly thereafter notified the police.

The police took Jennifer to the Ventura County Medical Center, where she was treated for facial cuts, hip abrasions, and several broken fingernails, bits of which were recovered by police investigators from the floor of her residence. Jennifer testified that she was “fairly certain” that the facial cut she suffered was from the knife defendant had wielded. The prosecution also introduced into evidence abstracts of judgments reflecting defendant’s prior felony convictions, a 1974 burglary conviction in Oregon and a 1977 burglary conviction in Alaska. B.

The Defense Case The defense evidence in mitigation was extensive, involving the testimony of 21 witnesses, as well as multifaceted, presenting various aspects of defendant’s background and character, as summarized below. First, defendant’s older brother, Jerry Lee Carter, and their younger sister, Polly Anne Reasner, testified regarding the difficulties of growing up as the children of an alcoholic mother and alcoholic stepfather in the small, remote Alaskan town of Nome.

Esther Carter, defendant’s mother, was half Eskimo; Jim Carter, defendant’s stepfather, served for several years as Nome’s chief of police.* **** Defendant’s parents argued and fought frequently, hurling profanities as well as furniture at each other. As a result, the children “wanted to get as far away from them as you could.” As a young child, defendant (who was bom in 1955), repeatedly ran away from home for days at a time, once reaching Anchorage several hundred miles away, and another time hiding in the wheel well of an aircraft.

When defendant was eight or nine years of age, defendant’s stepfather affixed a chain to defendant’s ankle, attaching the other end of the chain to a bed, to prevent further similar incidents.

A family friend, Bertha Adsuna, recalled that defendant was treated differently from his older brother, and that defendant—unlike Jerry—was dressed by their mother “like an orphan.” When defendant was nine years of age, his parents sent him several hundred miles away to a boarding school for “problem children.” Second, several witnesses testified that in the late 1970’s, defendant became an accomplished television cameraman, thereafter marrying and becoming the proud father of twin boys.

He also engaged in activities not considered unusual for residents of Nome, such as climbing upon icebergs during the springtime ice break. In the early 1980’s, however, defendant’s enthusiasm for his career began to wane as marital problems and his addiction to cocaine increasingly dominated his life. By 1983, defendant and his wife were divorced, and defendant was not permitted to visit his children.

According to his brother, defendant became “disgruntled,” “heartbroken,” and “angry.” Defendant missed his sons, and according to a former colleague, Mary Alexander, following defendant’s separation from his family “it was as if the light had gone out.” Defendant told Beth Farley, whose friendship with defendant dated to their childhood, that because he could not see his children, he planned to move away from Alaska and begin a new life.

Third, a number of defendant’s friends and former colleagues testified regarding defendant’s dependability and trustworthiness, but also to his accelerating addiction to cocaine, a substance that defendant termed “marching powder.” According to one witness, during several months prior to March 1984 defendant was using cocaine regularly, drinking heavily, and was “clearly out of control.” Fourth, two witnesses employed by Ventura County provided further details regarding the rape of Jennifer S.

Detective William Ragsdale recalled that Jennifer had remembered that defendant’s eyes were “glazed over” during the incidents on the morning of March 29, and that, at various intervals, defendant acted remorseful and acknowledged he “needed psychiatric help.” Lynda Zych, a toxicologist, testified that Jennifer tested “positive for cocaine,” but that a confirming test never was administered. Finally, two witnesses testified regarding events following the attack upon Jennifer S.

Andrew Holtz, a former colleague of defendant’s, testified that on March 29, 1984, defendant telephoned him, sounding “very depressed,” and expressed a desire to visit the Alaska Psychiatric Institute, located in Anchorage. Holtz encouraged defendant “to get in touch with the authorities in Ventura to straighten things out.” Daniel Shields, an employee at the Los Angeles County jail, testified that during defendant’s period of incarceration prior to trial, defendant had not presented any discipline problems. DISCUSSION I. Pretrial Issues A.

Ineffective Assistance of Counsel at the Preliminary Hearing Defendant contends he was denied the effective assistance of counsel at his preliminary hearing because his attorney, Ezekiel Perlo, (1) performed only a perfunctory cross-examination of the prosecution’s witnesses who testified pertaining to the death of Tok Kim and the murder of Jillette Mills, and (2) failed to cross-examine any of the prosecution’s witnesses called to testify regarding the murders of Bonnie Guthrie and Janette Cullins.

Defendant asserts: “The record demonstrates that defense counsel was not responsible for any meaningful challenge to evidence presented over a five-day preliminary hearing that produced thirty-seven witnesses and twenty-seven exhibits.” As a result of these alleged deficiencies at the preliminary hearing, defendant alleges that he suffered prejudice at trial. The contention lacks merit. “In general, irregularities in pretrial commitment proceedings require reversal on appeal only where the defendant shows he was ‘deprived of a fair trial or otherwise suffered prejudice’ as a result. (People v.

Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) Where the case involves an ineffective assistance claim of the sort at issue here [that is, the alleged failure to adequately cross-examine witnesses], no prejudice typically appears unless counsel’s pretrial performance resulted in the loss of material evidence and caused tangible harm to the defense at trial. (See People v.

Coleman (1988) 46 Cal.3d 749, 771-773 [251 Cal.Rptr. 83, 759 P.2d 1260] [preliminary hearing counsel’s failure to contest prosecution’s scientific evidence and conduct independent forensic investigation did not impair defense of rape-murder charge at trial, including introduction of expert medical testimony]; People v. Aston (1985) 39 Cal.3d 481, 494-495 [216 Cal.Rptr. 771, 703 P.2d 111] [unavailability of witness at preliminary hearing was ‘cured’ when witness later testified for defendant at suppression hearing and was available at trial].)” (People v.

Millwee (1998) 18 Cal.4th 96, 121-122 [74 Cal.Rptr.2d 418, 954 P.2d 990].) In the present case, defendant has failed to make the requisite showing. Perlo’s performance at the preliminary hearing was not deficient.

Defendant’s assertions to the contrary ignore Perlo’s appropriate questioning of various witnesses and instead merely speculate that more vigorous cross-examination of certain witnesses, such as Ray Blevins, Tok Kim’s former boyfriend (who died prior to trial), might have led the trial court to preclude the prosecution from introducing evidence relating to the death of Kim and the murder of Janette Cullins. Defendant’s assertions in this regard do not establish that counsel performed deficiently. Moreover, at trial the prosecution presented overwhelming evidence linking defendant to the charged offenses.

Thus, even if we were to assume for the sake of argument that the trial court erred in permitting the prosecution to introduce evidence pertaining to Kim and Cullins, defendant does not demonstrate that in the absence of such evidence, the result at trial would have been different. (See People v.

Coleman (1988) 46 Cal.3d 749, 773 [251 Cal.Rptr. 83, 759 P.2d 1260] [in postconviction proceedings, the burden is on the defendant to establish prejudice as a result of counsel’s pretrial performance].) Although at trial the defense presented no case-in-chief, defense counsel vigorously cross-examined numerous witnesses for the prosecution.

We further observe that the prosecution’s evidence at trial relating to Kim was inconclusive as to cause of death, and that although the Cullins evidence linked defendant to that homicide, defendant had not yet been tried or convicted in that case—circumstances that considerably lessened the impact of such evidence. On this record, which is similar to that in People v.

Millwee, supra, 18 Cal.4th 96, 122, “[defendant identifies no exculpatory or mitigating evidence overlooked at any phase of the proceedings, nor does he demonstrate that counsel’s performance at the preliminary hearing ‘affected the ability of trial counsel to advocate defendant’s case at trial.’ [Citation.]” We therefore reject defendant’s claim that counsel rendered ineffective assistance based upon counsel’s performance at the preliminary hearing. B. Motion to Suppress Evidence Defendant contends the trial court erred in denying his

section 1538.5 motion to suppress evidence seized from his person and from Jillette Mills’s vehicle following his arrest. Defendant asserts that his detention and arrest were unlawful because they were not supported by probable cause and that the search of his person and the vehicle violated state and federal constitutional guarantees against unreasonable search and seizure. We reject defendant’s position as to each of these points.

At the pretrial hearing on defendant’s motion, Robert Dapser, the Arizona law enforcement officer who stopped and detained defendant on April 17, 1984, testified that he initiated the traffic stop only after receiving a call that a “white Datsun 280 Z with California personalized [license] plates” had been seen driving in a dangerous manner and after the officer personally observed a vehicle that matched that description driving erratically.

Upon directing the driver to pull over and stop, Officer Dapser approached the vehicle, observed beer bottles and a burnt portion of a marijuana cigarette inside, and detected the scent of alcohol as well as the faint smell of burnt marijuana.

Defendant’s eyes appeared to Dapser to have been “rather glossed over,” indicating to Dapser that defendant “was under the influence of something.” Dapser took defendant into custody for possession of the marijuana cigarette and advised him of his rights under Miranda, supra, 384 U.S. 436, “for driving under the influence of alcohol and/or drugs.” Less than 10 minutes later, Dapser was notified to detain the vehicle and all occupants at the request of law enforcement officials located in Culver City, California.

At the conclusion of the hearing on defendant’s motion to suppress, the trial court denied the motion, finding: “I think the officer did have sufficient cause to stop, detain, and then arrest Mr. Carter under the facts and observations.” On appeal, defendant’s arguments are substantially similar to his assertions in the trial court.

For the following reasons, we find them unpersuasive. “ ‘An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [f] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] “The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.” [Citations.] [f] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.’ (People v.

Williams (1988) 45 Cal.3d 1268, 1301 [248 Cal.Rptr. 834, 756 P.2d 221].)” (People v. Alvarez (1996) 14 Cal.4th 155, 182 [58 Cal.Rptr.2d 385, 926 P.2d 365] (Alvarez), see also People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585] [the trial court’s findings must be upheld if supported by substantial evidence].) “The Fourth Amendment, made applicable to the states through the Fourteenth Amendment’s due process clause (Mapp v. Ohio (1961) 367 U.S. 643, 643-660 [6 L.Ed.2d 1081, 1081-1093, 81 S.Ct. 1684]; Wolf v.

Colorado (1949) 338 U.S. 25, 27-28 [93 L.Ed. 1782, 1785-1786, 69 S.Ct. 1359], overruled on another point, Mapp v. Ohio, supra, 367 U.S. at pp. 654-655 [6 L.Ed.2d at pp. 1089-1090]), guarantees ‘the people’ ‘[t]he right... to be secure . . . against unreasonable searches and seizures . . . .’ ‘[A] Fourth Amendment “seizure” occurs when a vehicle is stopped at a checkpoint’ by a law enforcement officer. (Michigan Dept. of State Police v.

Sitz (1990) 496 U.S. 444, 450 [110 L.Ed.2d 412, 420, 110 S.Ct. 2481].) ‘The question thus becomes whether such [a] seizure[] [is] “reasonable” under the Fourth Amendment.’ (Ibid)” (Alvarez, supra, 14 Cal.4th at pp. 182-183; see also Terry v. Ohio (1968) 392 U.S. 1, 19 [20 L.Ed.2d 889, 88 S.Ct. 1868] [for any type of detention, the overall standard to which the government must adhere is that of reasonableness]; People v.

McGaughran (1979) 25 Cal.3d 577, 584 [159 Cal.Rptr. 191, 601 P.2d 207] [“the officer may temporarily detain the offender at the scene for the period of time necessary to discharge the duties that he incurs by virtue of the traffic stop”].) Further, any challenge to the admissibility of a search or seizure must be evaluated solely under the Fourth Amendment. (People v. McPeters (1992) 2 Cal.4th 1148, 1171 [9 Cal.Rptr.2d 834, 832 P.2d 146]; In re Lance W. (1985) 37 Cal.3d 873, 879 [210 Cal.Rptr. 631, 694 P.2d 744]; see also California v.

Greenwood (1987) 486 U.S. 35, 38 [100 L.Ed.2d 30, 108 S.Ct. 1625].) “ ‘An illegal search or seizure violates the federal constitutional rights only of those who have a legitimate expectation of privacy in the invaded [space] or the seized thing. (United States v. Salvucci (1980) 448 U.S. 83, 91-92 [65 L.Ed.2d 619, 628, 100 S.Ct. 2547].) The legitimate expectation of privacy must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge.’ (People v. Hernandez (1988) 199 Cal.App.3d 1182, 1189 [245 Cal.Rptr. 513], italics in original.)” (People v.

McPeters, supra, 2 Cal.4th 1148, 1171.) The burden is on the defendant to establish that a legitimate expectation of privacy (Rawlings v. Kentucky (1980) 448 U.S. 98, 104 [65 L.Ed.2d 633, 100 S.Ct. 2556]) was violated by government conduct. Our independent review has not disclosed any error in the superior court’s application of these principles. In the present case, defendant, as the driver of a stolen vehicle, lacked a legitimate expectation of privacy to contest the search of that vehicle. (See Rakas v.

Illinois (1978) 439 U.S. 128, 141, fn. 9 [58 L.Ed.2d 387, 99 S.Ct. 421] [“ ‘No . . . interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.’ ” (Italics omitted.)]; accord People v.

Melnyk (1992) 4 Cal.App.4th 1532, 1533 [6 Cal.Rptr.2d 570].) To accept defendant’s assertion that he had a legitimate expectation of privacy while driving a stolen vehicle would be to overlook the word “unreasonable” in the Fourth Amendment’s proscription against “unreasonable searches and seizures.” As noted, Officer Dapser received information that a specific vehicle was being driven recklessly—information that soon was corroborated when he saw it drive by. Therefore, he had a reasonable basis to stop the vehicle and detain the driver.

Upon encountering defendant, Dapser had further indicia of unlawful conduct: defendant’s eyes appeared glazed, the odor of alcohol and marijuana wafted from the car’s interior, the passenger-side floorboard was littered with beer bottles, and a burnt marijuana cigarette was visible. Because possession of marijuana was a felony in Arizona at that time, the officer’s observations provided him with a reasonable basis to arrest defendant and take him into custody.

Thus, even if we were to assume defendant’s expectation of privacy was reasonable, his challenge to the seizure of incriminating evidence fails because his detention and arrest were lawful, thereby eliminating any reasonable expectation of privacy that would have existed had the vehicle not been stolen. (New York v.

Belton (1981) 453 U.S. 454 [69 L.Ed.2d 768, 101 S.Ct. 2860].) Nor are we persuaded that the length of the detention prior to arrest—less than 10 minutes—was, as defendant asserts, “for an excessive time waiting for the dispatcher’s report,” or that Officer Dapser’s ultimately unsuccessful search for the marijuana cigarette during that period required “an inordinate amount of time.” In sum, the trial court properly denied defendant’s motion to suppress the evidence recovered from Jillette Mills’s vehicle. C.

Motion to Strike Prior Burglary Convictions Defendant contends the trial court erred in (1) refusing to strike his prior burglary convictions from Oregon and Alaska, alleged as prior serious felonies within the meaning of

section 667, subdivision (a), and

section 1192.7, subdivision (c)(18); (2) declining to dismiss these alleged prior convictions pursuant to

section 1385; and (3) admitting evidence of the prior convictions at the penalty phase pursuant to

section 190.3, subdivision (c). Defendant argues each of these alleged errors denied his constitutional rights to due process of law, a fair trial, and a reliable sentence. We are unpersuaded. Prior to the commencement of trial, defendant moved to strike the prior conviction allegations on the grounds that the Oregon and Alaska priors did not constitute “serious felony convictions” within the meaning of

section 667, subdivision (a). In defendant’s view, certain distinctions between the language of the Oregon and Alaska burglary statutes on the one hand, and the California statute on the other, precluded the introduction of the out-of-state priors.* ** Specifically, defendant alleged that neither the Oregon nor the Alaska burglary statute included all of the elements of the California crime of residential burglary. At a pretrial hearing conducted on March 20, 1987, the superior court rejected defendant’s motion to strike his prior burglary convictions.

The court observed: “It seems like the purpose of this rule is to look to see if and to avoid the holding of an individual responsible for a serious felony prior for conduct that in this state would not substitute for a serious felony.

And based on my review of the documents and the points and authorities in this case, that isn’t what we’re facing here, [f] . . . [f] What we have here is that it appears that what the defendant was charged with and convicted of is conduct, precisely that which is required to come within [section] 459 as a first degree burglary.” The court concluded, “The motion to strike is denied at this time.” On appeal, defendant contends the trial court should have stricken the prior serious felony enhancements that were based on his residential burglary convictions in Oregon and Alaska, because the foreign convictions did not include all the elements of the “serious felony” of “residential burglary” (§§ 667, subd. (a)(1), (4), 1192.7, subd. (c)(18)) as defined in California (§ 459).

Defendant further urges that the court violated then applicable law when it went behind the facial elements of the foreign convictions, and considered the entire records of the foreign convictions to determine whether the minimum elements of a California residential burglary were actually present. As set forth in the margin (fh. 9, ante), the Oregon and Alaska statutes required only entry with intent to commit a “crime.” (Or. Rev. Stat., §§ 164.215, 164.225(1); Alaska Stat., §§ 11.20.080, 11.20.090.) By contrast, Penal Code

section 459, then and now, requires entry with intent to commit “grand or petit larceny or any felony.” (Italics added.) Thus, defendant’s Oregon and Alaska convictions conceivably could have been for conduct which, if committed in California, would not support a conviction under

section 459. As defendant observes, the law as it existed in 1984 allowed courts to look only at the face of a foreign conviction to determine whether its minimum elements established a “serious felony” under California law. (People v. Crowson (1983) 33 Cal.3d 623 [190 Cal.Rptr. 165, 660 P.2d 389].) But, as defendant acknowledges, we overruled Crowson in People v. Myers (1993) 5 Cal.4th 1193 [22 Cal.Rptr.2d 911, 858 P.2d 301].

Myers held that, in determining whether a foreign conviction satisfies the minimum elements of a “serious felony” in California, the court may examine “the entire record of the prior conviction.” (Id., at p. 1201; see also People v. Guerrero (1988) 44 Cal.3d 343, 355-356 [243 Cal.Rptr. 688, 748 P.2d 1150] [in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction, overruling People v.

Alfaro (1986) 42 Cal.3d 627 [230 Cal.Rptr. 129, 724 P.2d 1154].) Defendant fails to explain his view that Myers is not fully retroactive, and no reason appears to depart from the general rule that judicial decisions, even those overruling prior authority, have full retroactive effect. (See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023 [22 Cal.Rptr.3d 876, 103 P.3d 276]; Woosley v.

State of California (1992) 3 Cal.4th 758, 793-794 [13 Cal.Rptr.2d 30, 838 P.2d 758].) Retroactive application is particularly appropriate here, because Myers would apply to the consideration of the prior conviction at any new trial. Although defendant additionally questions the “competence” of the foreign records on which the trial court relied, he fails to persuade us that the records are invalid or otherwise deficient.

Our own review of those records reveals that as to the Alaska conviction, defendant pleaded guilty to “unlawfully breaking] and entering] a . . . residence, . .. the breaking and entering being with the intent to commit the crime of larceny therein,” and that as to the Oregon conviction, defendant was found guilty of “knowingly and unlawfully entering] a dwelling [a residence] . . . with the intent to commit the crime of theft therein.” (Cf. former § 459, “Every person who enters any house, . . . apartment, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary” [Stats. 1984, ch. 854, § 2, p. 2896]; see also former § 460, subd. (1), “Every burglary of an inhabited dwelling house ... is burglary of the first degree” [added by Stats. 1923, ch. 362, § 1, p. 747]; § 490a, “Whenever any law or statute of this state refers to or mentions larceny, . . . said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor”; § 1192.7, subd. (c)(18), any burglary of the first degree is a “serious felony.”) Because each one of defendant’s prior convictions thus would satisfy the necessary elements to convict defendant of first degree burglary in California, we reject defendant’s challenge.

After the jury reached its guilt phase verdicts, defendant, outside the jury’s presence, renewed his request that evidence of his prior burglary convictions be excluded from the jury’s consideration, this time requesting that the trial court exercise its discretion under

section 1385 to strike the allegations. The trial court appears to have denied the request, although the reporter’s transcript does not explicitly so indicate.* On appeal, defendant contends “it was in the interests of justice to dismiss the [prior conviction allegations] under

section 1385, because the crimes charged were committed before the 1986 amendment to that section.” We disagree. The circumstance that defendant’s prior convictions were committed before the 1986 amendment that added subdivision (

b) to

section 1385 (“This

section does not authorize a judge to strike any prior conviction of a serious felony . . .”) did not preclude the trial court in 1989 from denying defendant’s motion to strike the prior conviction allegations. No error or abuse of discretion appears. Defendant next contends the trial court erred in admitting the evidence of defendant’s prior burglary convictions under

section 190.3, subdivision (

c) at the penalty phase. He is incorrect. (See People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal.Rptr. 184, 711 P.2d 480] [“The plain meaning of subdivisions (

b) and (

c) of

section 190.3 is that the jury must consider any violent criminal activity by the defendant, whether or not it led to prosecution and conviction, and any ‘prior felony conviction’ (italics added), whether the underlying offense was violent or nonviolent.” (Fn. omitted.)].) Defendant’s prior burglary convictions in Oregon and Alaska clearly qualify as prior felony convictions. Defendant offers no persuasive argument to the contrary.

Finally, even if we were to assume for the sake of argument that defendant is correct in asserting that the trial court erred in admitting defendant’s prior burglary convictions at the penalty phase, we perceive no prejudice. The jury did not learn of defendant’s prior convictions until after it already had considered the evidence that defendant had committed the charged murders and had found him guilty of those crimes as well as other offenses. Under these circumstances, there existed no reasonable possibility of a different outcome at the penalty phase had the prior burglary convictions not been admitted. D.

Denial of Pretrial Motion to Exclude Other-crimes Evidence Pertaining to the Deaths of Tok Kim and Janette Cullins Defendant contends the superior court abused its discretion in denying his motion to exclude evidence pertaining to the death of Tok Kim in Alameda County and the murder of Janette Cullins in San Diego County. He argues that the judgment must be reversed in its entirety due to the lower court’s admission of this “other-crimes evidence” in purported violation of defendant’s constitutional rights. We conclude defendant’s position is without merit.

In March 1987, approximately two years prior to the commencement of defendant’s trial, the prosecution informed the defense of its intention to introduce, at the guilt phase of defendant’s trial, evidence of the then pending, unadjudicated crimes charged against defendant in Alameda and San Diego Counties. In July 1987, defendant responded to the prosecution’s notice by filing a “motion to exclude evidence of pending prosecutions in Alameda and San Diego Counties.” In July 1988, the superior court considered and summarily denied defendant’s motion.

Approximately one year later (on the eve of trial), defendant renewed the motion to exclude this evidence, limiting the motion to the Kim matter only and asserting that the prosecution had failed to disclose laboratory and related police reports revealing that defendant had not been the donor of semen detected on a bedspread in Kim’s apartment. The court summarily denied this motion as well. As we have summarized in the foregoing statement of facts, at the guilt phase of trial the prosecution, over defense objection, introduced evidence pertaining to the death of Tok Kim and the murder of Janette Cullins.

Defendant had yet to be tried in those cases and, in the wake of the death judgments rendered in the present case and in the subsequently tried case involving Janette Cullins, the Alameda County District Attorney dismissed the charges against him based on the death of Tok Kim. As noted, defendant contends the trial court below erred in permitting the prosecution to introduce evidence of these crimes. Character evidence is not admissible to show conduct on a specific occasion. (Evid.

Code, § 1101, subd. (a).) This type of evidence sometimes is referred to as evidence of criminal disposition or propensity. (E.g., People v. Sam (1969) 71 Cal.2d 194, 203 [77 Cal.Rptr. 804, 454 P.2d 700].) The rule excluding such evidence, however, is qualified by Evidence Code

section 1101, subdivision (b), which provides: “Nothing in this

section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . opportunity, intent, preparation, plan, knowledge, identity . . .) other than his or her disposition to commit such

an act.” “Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid.

Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757].) On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Scheid (1997) 16 Cal.4th 1, 14 [65 Cal.Rptr.2d 348, 939 P.2d 748]; People v.

Alvarez (1996) 14 Cal.4th 155, 201 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Gordon (1990) 50 Cal.3d 1223, 1239 [270 Cal.Rptr. 451, 792 P.2d 251]; see also People v. Hayes (1990) 52 Cal.3d 577, 617 [276 Cal.Rptr. 874, 802 P.2d 376]; U. S. v. Khan (9th Cir. 1993) 993 F.2d 1368, 1376.) “To be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses. (People v.

Ewoldt, supra, 7 Cal.4th 380, 403.) Evidence of an uncharged crime is relevant to prove identity only if the charged and uncharged offenses display a ‘ “pattern and characteristics ... so unusual and distinctive as to be like a signature.” ’ (Ibid., quoting 1 McCormick on Evidence (4th ed. 1992) § 190, pp. 801-803.) ‘The strength of the inference in any case depends upon two factors: (1) the degree of distinctiveness of individual shared marks, and (2) the number of minimally distinctive shared marks.’ (People v.

Thornton (1974) 11 Cal.3d 738, 756 [114 Cal.Rptr. 467, 523 P.2d 267], italics in original, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1].)” (People v. Kipp (1998) 18 Cal.4th 349, 369-370 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) Viewing the evidence in the light most favorable to the trial court’s ruling, certain of the charged and uncharged offenses displayed common features that revealed a highly distinctive pattern. As noted in our

summary of the evidence, Jillette Mills and Susan Knoll each was fatally strangled and their bodies found in a closed bedroom closet; in the uncharged offense involving Janette Cullins, the victim’s body also was found strangled in her closed bedroom closet. Although defendant notes certain differences in the circumstances surrounding the victims’ deaths, the combination of fatal strangulation and placement of a young woman’s body in a closed bedroom closet is both highly distinctive and suggestive that the same person perpetrated the crimes involving Knoll, Mills, and Cullins.

To be highly distinctive, the charged and uncharged crimes need not be mirror images of each other. Thus, although there were certain differences in the crimes committed against Knoll and Mills, and those against Cullins, such distinctions went to the weight of the evidence and did not preclude the prosecution from introducing the evidence regarding Cullins’s murder. Although the evidence of Kim’s death did not share the distinctive features of the murders charged in the present case, it clearly was relevant on the issues of intent and a common plan.

The vehicle owned by Tok Kim was missing at the time her body was found but later was discovered near the residence of Knoll and Mills. Subsequently, a white Datsun 280 ZX matching the description of Mills’s vehicle, missing since the time Mills’s body was found, was observed in the vicinity of Cullins’s apartment near the time of Cullins’s murder. When arrested, defendant had on his person or in the Datsun an eclectic array of objects identified as having belonged to (1) each of the three victims in the murders charged in the present case,

(2) Janette Cullins, and

(3) Tok Kim. The shared characteristics of the killings, as well as the presence of evidence associated with a particular victim or victims at events related to the next murder, indicate that when defendant committed the crimes charged in the present case as well as the uncharged crimes, he acted pursuant to a common plan to kill and steal from his victims. “A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (People v.

Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, ‘the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.’ (Id., at p. 403.) . . . “The least degree of similarity is required to establish relevance on the issue of intent. (People v.

Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, the uncharged crimes need only be ‘sufficiently similar [to the charged offenses] to support the inference that the defendant “ ‘probably harbor[ed] the same intent in each instance.’ [Citations.]” ’ (Ibid.)” (People v.

Kipp, supra, 18 Cal.4th 349, 371.) Considering the shared characteristics noted above, we conclude that the trial court did not abuse its discretion in implicitly determining that the charged and uncharged offenses were sufficiently similar to support an inference that defendant harbored the same intent—to kill and to steal—in each instance. (See People v.

Kipp, supra, 18 Cal.4th 349, 371.) As we stated in Kipp, “There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v.

Ewoldt, supra, 7 Cal.4th 380, 404-405.) On appeal, a trial court’s resolution of these issues is reviewed for abuse of discretion. (Id. at p. 405.) A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ (People v. De Santis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d 1210].)” (People v. Kipp, supra, 18 Cal.4th 349, 371.) We find no abuse of discretion.

Evidence of the circumstances surrounding the death of Tok Kim was highly probative, as it helped to establish a link between her recent acquaintance with defendant and her sudden death, and the murders of Susan Knoll, Jillette Mills, Bonnie Guthrie, and Janette Cullins that shortly followed. Because the five women each died within a period of approximately four days, the proximity of these incidents to each other “further enhanced” the probative value of the other crimes evidence. (See People v.

Kipp, supra, 18 Cal.4th 349, 371.) Kim’s Honda was discovered shortly after her death, hundreds of miles from her residence, parked in front of the apartment in which the bodies of Knoll and Mills were discovered, and at approximately the same time that Mills’s car disappeared. Evidence of the circumstances of Cullins’s death was probative for the same reason. Mills’s missing white Datsun 280 ZX matched the description of the vehicle that a neighbor observed rapidly driving away from the apartment building in which Cullins (who also had been acquainted with defendant) had resided.

The cause of Cullins’s death, and the location of her body in a bedroom closet, closely resembled both the manner of killing and the concealment utilized by the perpetrator at the Knoll/Mills crime scene. As noted, at the time of defendant’s arrest items linking him to all five deceased women were discovered on his person or in Mills’s vehicle. These evidentiary links were highly probative as to the identity of the perpetrator of the crimes, as well that person’s murderous and larcenous common plan and intent.

The prosecution was required to prove in its case-in-chief that defendant intended to kill Knoll, Mills, and Guthrie, each of whom was fatally strangled. When the trial court ruled admissible the evidence in question, defendant had not conceded either the issue of identity or intent, nor did the prosecution possess other evidence proving these material disputed facts so conclusively that evidence of the Kim and Cullins deaths should have been excluded as merely cumulative. (See People v.

Kipp, supra, 18 Cal.4th 349, 372.) “Against this substantial probative value on material and contested issues, we must weigh the danger of undue prejudice to defendant, of confusing the issues, or of misleading the jury.” (People v.

Kipp, supra, 18 Cal.4th 349, 372.) Evidence of the Kim and Cullins crimes “posed a substantial danger of prejudice to defendant because a jury would be inclined to view [such] evidence ... as evidence of his criminal propensities, and because a jury might well view defendant as deserving of punishment” for the Kim and Cullins crimes regardless of his guilt of the Knoll, Mills, and Guthrie murders. (Ibid.) “But prejudice of this sort is inherent whenever other crimes evidence is admitted (People v. Ewoldt, supra, 7 Cal.4th 380, 404), and the risk of such prejudice was not unusually grave here.” (People v.

Kipp, supra, 18 Cal.4th 349, 372.) The Efim death and the Cullins murder were not significantly more inflammatory than the charged offenses; the prosecution was unable definitively to establish that Kim had died at the hands of another, and there was no evidence that Cullins suffered sexual assault as had Mills and Guthrie. Moreover, the jury was instructed correctly pursuant to CALJIC Nos. 2.09 and 2.50 as to the limited purposes for which it might consider the evidence of the Kim and Cullins matters.

The instructions conveyed that evidence relating to those events could not be considered to prove defendant’s bad character or criminal disposition. Defendant also contends that in view of the

summary nature of the trial court’s ruling denying defendant’s motion, the court “failed to engage in the balancing process required under Evidence Code

section 352 or [Penal Code]

section 954,” and on that basis reversal is required. We disagree. The parties agreed to present the issue to the court based on the strength of their written submissions (that is, without oral argument), prompting the court to observe that the parties’ arguments “certainly were completely handled in the papers.” Although “the better practice” would have been for the trial court, prior to issuing its ruling, to have set forth on the record its balancing of the probative value of the evidence against its prejudicial effect (Brown v.

Smith (1997) 55 Cal.App.4th 767, 793 [64 Cal.Rptr.2d 301]), its ruling did not have to be that explicit. (See People v. Garceau (1993) 6 Cal.4th 140, 177-179 [24 Cal.Rptr.2d 664, 862 P.2d 664] [trial court’s failure to state on the record that it had weighed prejudice against probative value held not erroneous when parties had argued at length as to the admissibility of certain testimony that allegedly was unduly prejudicial to the defendant]; People v. Raley (1992) 2 Cal.4th 870, 894-895 [8 Cal.Rptr.2d 678, 830 P.2d 712] [trial court’s explicit rejection of the Evidence Code

section 352 claim deemed to be sufficient, the court “having heard lengthy argument”]; People v. Mickey (1991) 54 Cal.3d 612, 655-656 [286 Cal.Rptr. 801, 818 P.2d 84] [in upholding admissibility of the defendant’s letters that assertedly were privileged under Evidence Code

section 980, observing that although the trial court could have been more explicit in explaining its reasoning, “we review the ruling, not the reasoning”]; see also People v. Triplett (1993) 16 Cal.App.4th 624, 626-629 [20 Cal.Rptr.2d 225] [reviewing the evolution of the case law in this area].) In the present case, the parties submitted the issue to the court on the strength of their thoroughly prepared written arguments. In view of the court’s indication it had reviewed such submissions, the weighing process contemplated by Evidence Code

section 352 may be inferred. In view of the foregoing, we conclude the trial court did not exceed the bounds of reason in determining that the probative value of the evidence of the Kim and Cullins matters “was not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (People v.

Kipp, supra, 18 Cal.4th 349, 372.) Finally, even if we were to assume that the trial court erred in denying defendant’s motion to exclude the evidence relating to the deaths of Kim and Cullins, reversal would not be required unless it is reasonably probable the outcome would have been more favorable to defendant had such evidence been excluded. (People v.

Kipp, supra, 18 Cal.4th 349, 374.) In view of the strong evidence implicating defendant in the charged murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie, it is not reasonably probable that an outcome more favorable to defendant would have been reached in the absence of the evidence related to Kim and Cullins. E.

Denial of Motion for Severance of the Culver City Crimes (Knoll and Mills) from the West Los Angeles Crimes (Guthrie) Defendant contends the trial court improperly denied his motion to sever defendant’s trial on the “Culver City crimes” involving the murders of Susan Knoll and Jillette Mills, the rape of Mills, and the burglary of the apartment shared by Knoll and Mills (offenses that were alleged to have occurred on April 10, 1984) from the “West Los Angeles crimes” involving the murder and rape of Bonnie Guthrie and the burglary committed at her apartment (offenses that were alleged to have occurred on April 11, 1984).

Defendant argues that in denying the motion to sever and thereby compelling him to face “a joint trial of offenses arising from separate incidents on different dates,” the trial court denied defendant a panoply of state and federal constitutional rights, requiring reversal of the entire judgment.

In particular, defendant maintains that “while the offenses are of the same class, the crimes were not inextricably connected in their commission, and the so-called common markers between the Mills/Knoll and Guthrie homicides can only be termed ‘minimally distinctive’ under close scrutiny.” Defendant further contends that the trial court erred in denying his motion to sever in the same

summary fashion as the court had denied defendant’s motion to exclude the other crimes evidence, and in failing explicitly to weigh the relevant factors on the record and exercise its discretion.

None of these claims has merit. “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 or divided into two or more groups and each of said groups tried separately.’ Because both offenses involved murder and thus belonged to the same class of crimes, the statutory requirements for joinder were satisfied.

Therefore, defendant can predicate error in denying the motion to sever only upon a clear showing of potential prejudice. (People v. Osband (1996) 13 Cal.4th 622, 666 [55 Cal.Rptr.2d 26, 919 P.2d 640]; People v. Sandoval (1992) 4 Cal.4th 155, 172-173 [14 Cal.Rptr.2d 342, 841 P.2d 862], affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1 [127 L.Ed.2d 583, 114 S.Ct. 1239].)[] “In reviewing this claim, we apply the familiar standard of review providing that the trial court’s ruling may be reversed only if the court has abused its discretion. (People v.

Mayfield (1997) 14 Cal.4th 668, 720 [60 Cal.Rptr.2d 1, 928 P.2d 485]; People v. Davis (1995) 10 Cal.4th 463, 508 [41 Cal.Rptr.2d 826, 896 P.2d 119]; see People v. Osband, supra, 13 Cal.4th 622, 666; People v. Cummings (1993) 4 Cal.4th 1233, 1284 [18 Cal.Rptr.2d 796, 850 P.2d 1].) An abuse of discretion may be found when the trial court’s ruling ‘ “falls outside the bounds of reason.” ’ (People v.

Osband, supra, 13 Cal.4th 622, 666.) “ ‘ “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.] [f] “The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.” [Citation.] 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. [Citations.]’ (People v.

Sandoval, supra, 4 Cal.4th 155, 172-173; People v. Mayfield, supra, 14 Cal.4th 668, 721; People v. Memro (1995) 11 Cal.4th 786, 849-850 [47 Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Davis, supra, 10 Cal.4th 463, 507-508; People v. Mason (1991) 52 Cal.3d 909, 933-934 [277 Cal.Rptr. 166, 802 P.2d 950]; Williams v.

Superior Court (1984) 36 Cal.3d 441, 452-454 [204 Cal.Rptr. 700, 683 P.2d 699].) “Furthermore, we have observed that the criteria enumerated in Sandoval are not equally significant. ‘[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code

section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.’ (People v. Balderas (1985) 41 Cal.3d 144, 171-172 [222 Cal.Rptr. 184, 711 P.2d 480]; see People v. Mayfield, supra, 14 Cal.4th 668, 721.) Cross-admissibility suffices to negate prejudice, but it is not essential for that purpose. Although 1 “we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.” ’ (People v. Sandoval, supra, 4 Cal.4th 155, 173.)” (People v.

Bradford, supra, 15 Cal.4th 1229, 1314-1316.) In the present case, the trial court’s denial of defendant’s motion to sever clearly was based on certain obvious similarities among the crimes. “Pursuant to Evidence Code

section 1101, subdivision (b), evidence that a defendant has committed an offense, although inadmissible to demonstrate a defendant’s disposition to commit crimes, may be received to establish, among other things, identity, intent, motive, or plan. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed both crimes. (People v. Miller (1990) 50 Cal.3d 954, 988-989 [269 Cal.Rptr. 492, 790 P.2d 1289]; People v.

Bean (1988) 46 Cal.3d 919, 937 [251 Cal.Rptr. 467, 760 P.2d 996]; see People v. Memro, supra, 11 Cal.4th 786, 851; People v. Ewoldt[, supra], 7 Cal.4th 380, 403 [27 Cal.Rptr.2d 646, 867 P.2d 757].)” (People v. Bradford, supra, 15 Cal.4th 1229, 1316.) The Susan Knoll/Jillette Mills and Bonnie Guthrie offenses, having been committed approximately one day apart, each involved the murder by strangulation of young women whose belongings were found approximately one week later in defendant’s possession.

On this basis alone, the evidence connecting defendant to the Knoll/Mills and Guthrie crimes would be cross-admissible if the court had ordered separate trials, thereby dispelling any inference of prejudice. (People v. Bradford, supra, 15 Cal.4th at pp. 1315-1316.) Moreover, because both crime scenes involved murder and sexual assault, the evidence from each disclosed a commonality with regard to intent and plan (Evid. Code, § 1101, subd. (b)), while presenting little if any possibility that one of the charges or set of charges would have unduly inflamed the jury against defendant.

Although all three women were not strangled in an identical manner—Mills and Guthrie were strangled by ligature, whereas Knoll was strangled manually—both crime scenes had in common a ligature strangulation, as well as the traumatic sexual assault of Mills and Guthrie. Nor did the prosecution join a “weak case” with a “strong” one—the evidence linking defendant to each crime was especially compelling.

Further, Knoll and Guthrie were best friends, a circumstance that suggested one person committed the crimes against both victims in the two-day period, and that therefore supported the cross-admissibility of the evidence. The murders of each of the three women presented one or more special circumstances; because each one of the murders by itself formed the basis for capital charges to be brought against the perpetrator, joinder did not lead to one set of crimes being “elevated” to capital status.

Although the better practice would have been for the trial court to make clear on the record the basis for its denial of defendant’s motion to sever, the court’s failure to articulate its reasoning does not invalidate its ruling or undermine the correctness of that denial. Further, we observe that even had defendant demonstrated that the evidence would not have been cross-admissible, he has failed to establish prejudice. He has not demonstrated that one offense or set of offenses was “significantly more likely to inflame the jury against defendant, since the murders were similar in nature and equally gruesome.

Defendant has not shown that evidence of guilt was significantly stronger in one case, creating the danger that that case would be used to bolster the weaker case, because the prosecutor’s evidence was nearly equal in strength” in establishing defendant’s involvement in the Knoll/Mills and Guthrie murders. (People v. Bradford, supra, 15 Cal.4th at pp. 1317-1318.) Under these circumstances, no abuse of discretion appears. We therefore reject defendant’s claims of error. F.

Pretrial and Midtrial Motions Contesting the Sufficiency of the Evidence of Felony Murder in the Deaths of Susan Knoll, Jillette Mills, and Bonnie Guthrie, and of the Special Circumstances of Burglary and Rape Prior to trial, defendant moved pursuant to

section 995 to strike and set aside the substantive charges and special circumstances pertaining to the murders and to other offenses involving victims Susan Knoll, Jillette Mills, and Bonnie Guthrie. The motion was denied. Defendant thereafter petitioned the Court of Appeal for writ relief, which also was denied. At the close of the prosecution’s case-in-chief, defendant filed a motion for judgment of acquittal, pursuant to

section 1118.1. This motion, too, was denied. Defendant generally contends there was insufficient evidence (1) to support his conviction, based on the theory of felony murder, for the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie, and (2) to find true the special circumstance allegations of burglary and rape. Defendant specifically asserts the evidence was inadequate to establish that he harbored a felonious intent upon entering the victims’ residences; he notes the premises bore no sign of forced entry. Defendant’s position is without merit.

The law applicable to a claim of insufficiency of the evidence is well settled: “ ‘In reviewing [a claim regarding] the sufficiency of the evidence, we 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.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” ’ [Citation.] If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation], as is the due process clause of

article I,

section 15, of the California Constitution [citation].” (People v. Osband, supra, 13 Cal.4th 622, 690; see also People v. Ochoa (1998) 19 Cal.4th 353, 413—414 [79 Cal.Rptr.2d 408, 966 P.2d 442]; People v. Morris (1988) 46 Cal.3d 1, 19 [249 Cal.Rptr. 119, 756 P.2d 843].)

Section 187, subdivision (a), defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” At the time the crimes were committed, first degree murder could be accomplished by a “murder . . . committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under

Section 288 . . . .” (Former § 189, as amended by Stats. 1982, ch. 950, § 1, p. 3440.) Rape was defined in pertinent part as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator [that was] [][] ...[][].. . accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person or another.” (Former § 261, subd. (2), as amended by Stats. 1984, ch. 1635, § 79.5, p. 5865.) Burglary was defined, in pertinent part, as an entry into any “room, apartment ... or other building . . . with intent to commit grand or petit larceny or any felony . . . .” (Former § 459, as amended by Stats. 1984, ch. 854, § 2, p. 2896.) With regard to the murder charges, we observe that Susan Knoll, Jillette Mills, and Bonnie Guthrie each was fatally strangled; Knoll manually, Mills and Guthrie by ligature.

There is no question that each of these killings was unlawful and was committed with malice aforethought. Defendant’s palm print was discovered in the apartment shared by Susan Knoll and Jillette Mills where their bodies were found. Similarly, the evidence was sufficient to establish rape; Mills’s and Guthrie’s bodies bore signs of having suffered traumatic sexual assault, and seminal fluid discovered on a white nightgown in the apartment was consistent with defendant’s PGM type and that of 15.8% of the population.

With regard to the offense of burglary, evidence of a forced entry is not required to establish felonious intent; defendant’s intent instead may be inferred from all of the facts and circumstances disclosed by the evidence. (People v.

Matson (1974) 13 Cal.3d 35, 41 [117 Cal.Rptr. 664, 528 P.2d 752].) Defendant’s commission of crimes in close temporal proximity, combined with a very similar modus operand! in each incident, strongly indicates that he entered the residences with the requisite felonious intent, (ibid.) Defendant was arrested driving Mills’s stolen Datsun 280 ZX, containing an Alpha Beta supermarket CASHEX card identified as having belonged to Knoll; towels, athletic wear, and photographic equipment identified as having belonged to Mills; and three hand-woven sweaters identified as having belonged to Bonnie Guthrie.

In view of the evidence summarized above, the jury reasonably could have inferred that the murders of Knoll, Mills, and Guthrie occurred in the course of defendant’s having committed the felonies of burglary and rape. The evidence adduced at trial clearly was sufficient, for purposes of the felony-murder rule and the special circumstances alleged, to establish that defendant committed rape and burglary. G.

Motion to Reconsolidate the Los Angeles, Alameda, and San Diego County Cases As originally filed, the complaint against defendant charged all of the crimes allegedly committed in Alameda, Los Angeles, and San Diego Counties in a single pleading. Defendant subsequently moved to dismiss the charges arising from the Alameda and San Diego crimes committed against Tok Kim and Janette Cullins, respectively.

The prosecution did not oppose the motion, instead informing defendant that if the motion were granted, the crimes committed in Alameda and San Diego Counties would form the basis for a refiling of the charges against defendant in those counties. On January 28, 1986, the court granted defendant’s motion to dismiss the charges involving the crimes committed in Alameda and San Diego Counties. Defendant thereafter separately was charged in San Diego County for the murder of Janette Cullins, and was transferred to that county for arraignment, preliminary hearing, and other pretrial motions.

Defendant also was charged in Alameda County with murder and related offenses involving Tok Kim. On August 8, 1988, more than two and one-half years after the court granted defendant’s motion to dismiss the Alameda and San Diego County charges, defendant—now represented by new counsel—moved to reconsolidate the Alameda, Los Angeles, and San Diego cases. At the hearing conducted 10 days later, defense counsel informed the court that the motion was made over defendant’s objection. After hearing the parties argue the issue and observing that the disagreement between

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