THE PEOPLE, Plaintiff and Respondent, v. DEAN PHILLIP CARTER, Defendant and Appellant, 36 Cal. 4th 1215

Opinion GEORGE, C. J. Following the guilt phase of the trial, a San Diego County jury found defendant Dean Phillip Carter guilty of the murder of Janette Cullins. (Pen. Code, § 187, subd. (a).) The jury also found defendant guilty of the burglary of Cullins’s inhabited residence (§§ 459, 460) and the robbery of Cullins (§§ 211, 213.5), finding that during the course of the burglary and the robbery, defendant personally inflicted great bodily injury (§ 12022.7).

The jury found true the special circumstances that the murder was committed while lying in wait, in the course of a robbery, and in the course of a burglary, and that defendant previously had been convicted of the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie. (§ 190.2, former subd. (a)(2), (15), (17)(i), (vii), as amended by Prop. 115, § 10, as approved by voters, Primary Elec. (June 5, 1990).) The jury further found defendant guilty of forcible rape (§ 261) and forcible oral copulation (§ 288, subd. (c)) arising out of his attack on Barbara S. on March 25, 1984 (approximately 18 days prior to the murder of Janette Cullins).

The jury found defendant guilty of burglary of an inhabited residence (§§ 459, 460) and robbery (§§ 211, 213.5) in connection with the attack on Barbara S. As to each of the crimes committed against Barbara S., the jury found that defendant had used a deadly weapon, a knife. (§§ 12022, subd. (b), 12022.3, subd. (a).) At the conclusion of the penalty phase, the jury returned a verdict of death. The court sentenced defendant to death for the murder of Janette Cullins, in addition to imposing a consecutive sentence of 21 years 8 months for the crimes committed against Barbara S. This appeal is automatic. (Cal.

Const., art. VI, § 11; § 1239, subd. (b).) We set aside the special circumstance of lying in wait, but otherwise affirm the judgment in its entirety as to both guilt and penalty. FACTS I. GUILT PHASE EVIDENCE A. The Prosecution’s Case 1. Overview The prosecution’s theory of the case was that defendant, spumed by a number of women who had rejected his clumsy, unwanted advances, embarked upon a crime spree that spanned approximately three weeks in the early spring of 1984, and consisted of sexually assaulting, robbing, and fatally strangling various women whom he previously had befriended.

On March 24, 1984, defendant, who was then 28 years of age, telephoned an acquaintance of approximately one month, Cathleen Tiner, who declined his invitation to “run off to Mexico and get married.” That evening, he telephoned another acquaintance, Polly Haisha, then 18 years of age, informing her that he would be arriving in San Diego the next day. Haisha, who had declined defendant’s invitation to “quit school and come sail to France,” and had cancelled several dates with defendant, asked him never to call her again.

Like Tiner and Haisha, Janette Cullins in the weeks leading up to her death also had spumed defendant’s advances. On March 25, 1984, Susan Loyland, with whom defendant had maintained a sexual relationship, traveled to Mexico without defendant, notwithstanding the circumstance that she previously had made plans to travel with him that day. In the evening, defendant broke into Loyland’s San Diego residence, raped at knifepoint Barbara S., Loyland’s housemate, and also stole money from Loyland’s tip cache. Loyland never heard from defendant again.

On March 27, 1984, defendant, having befriended Jennifer S. in the preceding few days, raped her at knifepoint in her Ventura County apartment. He strangled her to the point at which she lost consciousness, and stole her tip money. Defendant thereafter traveled north to the San Francisco Bay Area, and on April 1, 1984, encountered Tok Kim at a bar located in Lafayette. They commenced a relationship over the next several days, during which period several witnesses observed them together. Kim’s decomposed body was discovered on April 13, 1984.

Although the cause of her death could not be determined, strangulation could not be excluded as the cause. Kim’s vehicle and various personal items were missing. Kim’s vehicle was discovered several hundred miles away in Los Angeles County, parked in front of the Culver City apartment in which the bodies of Susan Knoll and Jillette Mills were found stacked in a closed bedroom closet on April 12, 1984. Mills had been sexually assaulted, and each victim had died from asphyxia caused by strangulation. Knoll’s vehicle was discovered one block from the apartment.

Mills’s distinctive Datsun 280 ZX automobile, as well as personal items belonging to both victims, were missing. On April 12, 1984, the body of Bonnie Guthrie was discovered on the bedroom floor of her Culver City apartment. She had been sexually assaulted and died from asphyxia caused by strangulation. Personal items were missing from her apartment. Later that same day, defendant made an unexpected visit to Cathleen Tiner at her residence in San Diego; Tiner and Janette Cullins had met defendant at a San Diego bar in February 1984.

Tiner told defendant she was expecting her date for the evening momentarily and could not see him. Defendant departed. On April 14, 1984, the body of Janette Cullins was found lying in the closed bedroom closet of her San Diego apartment. The cause of her death was asphyxia caused by strangulation. Near the front door, the presence of wood chips on the floor indicated that someone had broken into her apartment. Cullins had died approximately one to two days earlier.

A neighbor had observed that the preceding evening, Jillette Mills’s vehicle had been parked in front of Cullins’s residence and had departed suddenly and loudly. Cullins’s vehicle subsequently was discovered several blocks away. A video-camera at a bank automated teller machine on April 13 recorded a man resembling defendant retrieving money from Cullins’s bank account. On April 17, 1984, an Arizona highway patrol officer observed Mills’s vehicle traveling erratically near Ashfork, Arizona. The officer effected a traffic stop and arrested defendant.

Inside the vehicle, investigators recovered numerous personal items Unking defendant to each one of the deceased women. In order to explain certain factual differences in the crime scenes at the various residences where the deceased women were found, the prosecution theorized that the reason defendant did not conceal the bodies of Tok Kim or Bonnie Guthrie was that neither victim had a roommate who might discover the body.

With respect to the killings of Susan Knoll and Jillette Mills, the prosecution theorized that defendant first murdered Knoll, placing her body in the closet, moved her vehicle to make it appear she was not at home, and then waited until Jillette Mills arrived and murdered her. The prosecution further theorized when defendant broke into Janette Cullins’s apartment, murdered her, concealed her body in the closet, and then moved her vehicle, defendant similarly may have intended to kill two women.

Cullins’s new roommate, Cheri Phinney, whom defendant had met earlier that day, was not yet in possession of an apartment key, however, and did not return to the apartment that evening. 2. The Rape of Barbara S. The prosecution presented the testimony of a number of witnesses to establish that on March 25, 1984, defendant raped Barbara S. at the residence she shared with Susan Loyland in the marina area of Bay Park, located in San Diego.

Barbara S. testified that on that date, she performed yard work at her residence for most of the day, ate dinner, then fell asleep while watching 60 Minutes on television in her bedroom. She awakened to find a man grabbing her and dragging her from her bed. The man held at her throat a “sturdy knife” with a blade about six inches in length. The man repeatedly demanded money and held her while he rummaged through her purse. When he sought more money, Barbara S. directed him to the dresser, where she had $200. That money was missing after the attack.

The man then pushed Barbara S. to her knees and repeatedly told her not to look at him. While he still held the knife, the man forced her to orally copulate him. Barbara S. complied because she was frightened.

She recalled that notwithstanding her compliance, the man’s penis was “semi-flaccid” and “nothing to write home about.” Shortly thereafter, the man bent Barbara S. over the bed facedown and raped her; the man never attained a full erection, and the incident lasted “maybe a very short time.” The man then “hog-tied” Barbara S.’s hands and feet behind her with her pantyhose, and she heard her car keys being removed from her purse.

The man departed, telling Barbara S. that “you shouldn’t sleep with the TV on.” Thereafter, she heard “[a] motor sound, and he screeched off.” She partially freed herself by hobbling to the dishwasher, extracting a knife with her teeth, and using the knife to cut the ligature that bound her feet and hands. Helen McGirr, a neighbor who was a retired registered nurse, testified that she heard Barbara S.’s cries for help and directed her husband to contact the police, who arrived at the scene approximately 10 minutes later.

McGirr found Barbara S. “laying in kind of a curled-up position unclothed at the front door right in the doorway” and noticed that Barbara S.’s hands were “dark blue, almost black” from having been tied up. McGirr was certain Barbara S. was not under the influence of alcohol. San Diego Police Department Detective Ken Creese testified that in his interview with Barbara S. shortly after the attack, the victim appeared “to be upset, shaken, somewhat traumatized,” and was unable to identify her assailant.

Susan Loyland testified that she rented a room in Barbara S.’s residence at the time of the attack, and had maintained a sexual relationship with defendant in the weeks immediately prior to the attack. Loyland had discussed traveling with defendant to Rosarito Beach, Mexico, on March 25, 1984, but left without him that morning when she was unable to locate him. Loyland suspected defendant might have been Barbara S.’s assailant, and so informed the police on the night of the attack. Based upon information supplied by Loyland, police investigators placed defendant’s photograph in a photo lineup.

Barbara S. was unable to identify the perpetrator from the lineup, but told one detective that the voice of her attacker sounded similar to that of defendant’s. She testified that during the attack, she thought she recognized her assailant’s voice but could not identify it, and after seeing news reports of defendant’s arrest several weeks later, “it came together like a ton of bricks” that the man’s voice was defendant’s. At trial, Barbara S. identified defendant as the man who had attacked her.

Following the attack, Barbara S. noticed her kitchen and bedroom telephone lines had been cut, and that a window screen in Loyland’s room was “bent out at a 45-degree angle.” Loyland determined that some tip money was missing from a concealed location near the window. She testified: “nobody would look in the place that I had it. . . you’d have to know that the coins were in there.” Defendant occasionally had accompanied her home after work, and had seen her conceal her tip money, usually “between 10 and 20 bucks a night in coins.” Loyland never saw or heard from defendant after March 25, 1984.

Barbara S.’s next-door neighbor, Janell Barksdale, testified that approximately 6:00 p.m. on March 25, she observed a man whom she did not recognize walk toward Barbara S.’s residence. The man had dark hair, a moustache, and an olive complexion, and “was attractive . . . nice to look at.” Upon learning of the attack upon Barbara S., Barksdale told investigators of having seen a man in the area that evening.

Three years later, upon seeing a photograph of defendant in the newspaper, Barksdale contacted investigators to inform them that she recognized the person in the newspaper photograph as the man she had observed. At trial, she identified defendant as the man she saw that night. 3. The Rape of Jennifer S. Over defendant’s objection, the prosecution commenced its case by presenting, under Evidence Code

section 1101, subdivision (b), substantially the same evidence pertaining to the March 29, 1984 attack on Jennifer S. in Ventura, as is summarized in People v. Carter, supra, 36 Cal.4th at page 1135. 4. The Death of Tok Kim The prosecution introduced evidence pertaining to the Alameda County death of Tok Kim in early April 1984. With two exceptions, the evidence was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1128-1129. The first exception involved the testimony of Eddis Jeffrey, who did not testify in defendant’s Los Angles County murder trial.

Jeffrey, an apartment maintenance worker at the building in which Kim resided, testified that he saw defendant and Kim arrive at her apartment building on the afternoon of April 9 and leave shortly thereafter in the same vehicle. That was the last time Jeffrey saw Kim. Jeffrey acknowledged that prior to trial, he had identified in a police photo lineup prior to trial an individual other than defendant as the person he had seen with Kim. The second exception involved the testimony of Dr. Byron Blackboume, a forensic pathologist employed by the San Diego County Medical Examiner. Over defendant’s objection, Dr.

Blackboume stated that after reviewing the Kim autopsy and crime scene photographs, he believed that her death possibly could have been caused by asphyxiation due to ligature strangulation. 5. The Fatal Strangulations of Susan Knoll and Jillette Mills The prosecution introduced evidence pertaining to the fatal strangulations on or about April 10-11, 1984, of roommates Susan Knoll and Jillette Mills in Los Angeles County. The evidence was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1130-1131. 6.

The Fatal Strangulation of Bonnie Guthrie The prosecution introduced evidence pertaining to the fatal strangulation on or about April 11, 1984, of Bonnie Guthrie in Los Angeles County. The evidence was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1131-1132. 7. The Fatal Strangulation of Janette Cullins The prosecution presented evidence, summarized below, establishing that defendant and Janette Cullins had been casually acquainted during the several weeks preceding Cullins’s death on April 12 or 13, 1984, and that defendant fatally strangled her. a.

Cullins’s acquaintance with defendant in early 1984 On Saturday evening, February 25, 1984, Janette Cullins and a friend, Cathleen Tiner, went to Jose Murphy’s, a Pacific Beach nightclub that was featuring Cullins’s and Tiner’s favorite band. The band stopped playing at 1:30 a.m. (February 26), and the women walked across the street to the Old Pacific Beach Café. They were hungry and knew the café served breakfast until 3:00 a.m.

Cathleen Tiner testified: “When we got into the restaurant there was still a real good crowd, so we decided, let’s have a drink, let’s go over to the bar and see if we can get a drink before we go over to breakfast. . . . fi[] [However, t]here was a very large crowd there. We were getting bumped around a lot. We could not get to the bar at all. We were far away from it. . . . fi[] Mr.

Carter came up to us and, at that time, we didn’t know his name, and . . . said my friend’s at the bar, would you like me to order some drinks for you? fit] We said yes, and he said what would you like? fi[] We said two Harvey Wallbangers. [f] And so he yelled at this friend who was standing over to the bar, [‘]hey Antoine [whose last name was Masure], two Harvey Wallbangers.[’] ” Tiner added: “Very shortly thereafter, [defendant’s] friend came through the crowd with our drinks and with their drinks. I offered to pay for the drinks. I kept trying to pay for them. fi[] [Masure] kept saying no, no, no. [fl ...

I kept insisting on paying for the drinks. He wouldn’t take the money. . . . fi[] [Masure] just took our drinks and walked over to a table and sat them down on a table, and we ended up sitting down with them. . . . [f] We talked briefly. Dean asked Janette—I heard Dean ask Janette for her phone number.” Tiner testified that Cullins eventually gave defendant her telephone number, and that defendant asked the two women whether they had roommates or lived alone. Tiner gave Masure a card with her own telephone number on it.

Tiner further testified that defendant and Masure wanted the women to accompany them “someplace else,” but the men did not provide a further description. The women declined: “Well, we said the right way for you to do it would be to call us and ask us out rather than try for us to go out with you now. [f] Antoine said we’ll go into the twin phone booths and you stand in the other and we’ll call you. Then everything will be okay. [][] We didn’t agree with that idea, so Dean Carter said how about dinner. . . . [f] I said when. He said Antoine’s a great cook, how about dinner.

I said when, and they said we’ll call you. . . . [][] We left shortly thereafter. I would say we were there less than an hour. ... [1] Mr. Carter said we’ll walk you to your car because we don’t want anyone to get you, or attack you in the parking lot. So they walked us to my car and we drove off.” A few days later, defendant and Masure invited the women to have dinner with them on March 2, 1984, on their “yacht” named the Sea Quest, which was docked near Harbor Drive.

The four had dinner on the vessel without incident, with the exception that Cullins’s vehicle did not start immediately when the women departed that evening. Defendant and Masure, together with a third party who arrived with cables, assisted the women in “jump-starting” the vehicle. On the way home, Tiner and Cullins discussed the evening. Tiner related Masure’s observation that he thought Cullins had not been ready to leave and wanted to stay with defendant. Cullins replied: “No way.

I had no intentions of spending the night with him, and if he ever calls me again, I will tell him that.” Two days later, on March 4, defendant telephoned Tiner, informing her that he had spent the day sightseeing with Cullins, and wanted to know whether Tiner “wanted to go out and do something with him that night.” Tiner declined.

Defendant telephoned Tiner again on March 24, 1984, indicating that he wanted to see Cullins “one time before he went back to Alaska.” Tiner falsely informed defendant that she was unaware of Cullins’s whereabouts. “He said to me, why don’t I come down there and we can run off to Mexico and get married.” Tiner declined that offer, as well as defendant’s invitation to go out with him on the following evening. Tiner then telephoned Cullins to inform her that defendant was looking for her. Cullins replied: “I thought I’d gotten rid of him.

Now I won’t be able to answer the phone.” Tiner further testified: “[Cullins] was angry. She was upset about it that he was calling again.” Nancy McEachem, Cullins’s former roommate, testified that when she had shared an apartment with Cullins and the telephone rang, Cullins on multiple occasions had informed her: “If that’s Dean, I don’t want to talk to him.” b. The events leading to the discovery of Janette Cullins’s body Janette Cullins resided in apartment B, located at 3972 Kendall Street in the Pacific Beach neighborhood of San Diego.

In search of a new roommate, Cullins placed an advertisement in The Reader, a local free newspaper. Cheri Phinney responded to the ad and began moving into the apartment during the second week of April 1984. On Thursday, April 12, 1984, Phinney and Cullins spent the day at the apartment. Phinney painted her new bedroom and bathroom, while Cullins kept her company, vacuumed the carpet, and performed other housekeeping chores. Approximately midaftemoon, Cullins responded to a knock at her door.

The visitor was defendant, and Cullins returned to Phinney, asking her “to come through the living room so that he [defendant] would be aware that there was someone else in the house.” Defendant stayed for approximately one hour, asking questions such as how long she planned to continue painting. Shortly thereafter Cullins informed Phinney that defendant had departed. At approximately 6:30 p.m., Cullins left the apartment, informing Phinney that Cullins was planning to attend the symphony with her friend, Cathleen Tiner.

Shortly thereafter, Phinney answered a telephone call and wrote down a message on a piece of paper. The paper was whole when Phinney wrote the message, and she left blank the top portion of the paper. When Phinney left the apartment at approximately 7:15 p.m., the drapes and blinds were open. As she locked the door upon leaving, Phinney did not notice any damage to the front door frame. Cathleen Tiner testified that after she and Cullins attended the symphony, the two women went to a restaurant and then returned to Tiner’s apartment, where they watched television until 11:00 p.m.

Cullins informed Tiner that defendant was back in town. After watching television with Tiner, Cullins left to return to her own apartment. Tiner never saw Cullins alive again. Leanne Johnson, who resided across the street from Cullins’s apartment, testified that at approximately 11:15 p.m. on April 12, she heard the engine of a vehicle running for about 10 minutes. Johnson peered through her drapes and observed a white vehicle that she identified as matching the white Datsun 280 ZX that defendant was driving when later arrested.

Johnson testified: “It was probably 11:30 just before the news went off that I heard the car move out of the parking space and make a U-turn and it almost hit a pickup truck at the house next to mine. [][] It just went up the street. It didn’t stop at the stop sign .... H]... I mean whoever was in the car sort of pulled out fast, and it was a big loud noise and I did look out and I did see him make a U-tum and almost hit the pickup truck.” Throughout the next day, Cheri Phinney attempted to contact Cullins without success.

Nancy McEachem testified that on April 13, she was unsuccessful several times in attempting to contact Cullins by telephone. Cullins’s telephone answering machine, which usually was switched on, was not activated. Concerned, McEachem drove to Cullins’s apartment around midday. When she arrived, “another car pulled up on the opposite side of the street from me, and a man got out of the car and asked me if Jan was home. ...[][] I said no, it doesn’t look like she’s home, her car is not here, I assume she’s not.

This person had identified himself as Dean. . . . [f] He was driving a white [Datsun] Z with a black bra on the front of the car.” McEachem identified the individual who spoke with her as defendant. McEachem had moved out of the apartment on April 6, but had retained a key in order to return on the morning of April 14 for the purpose of conducting a yard sale. McEachem entered the apartment (alone), stayed less than 15 minutes, left a message for Cullins, and departed. McEachem testified: “The apartment was closed up. Everything was pretty dark.

The blinds were drawn, were closed very tightly, and all the windows, especially the window in the kitchen, which is a place we never close them in [sz'c].” McEachem explained that the living room drapes also were drawn, an unusual circumstance, adding that when she and Cullins shared the apartment, they never adjusted the window coverings to their completely closed position. Although McEachem entered Cullins’s bedroom, the closet doors were shut, and she did not look inside the closet.

Shortly after 6:00 p.m. on the evening of April 13, as Cathleen Tiner was preparing to attend a San Diego Padres baseball game with a friend, defendant arrived unexpectedly at Tiner’s front door, “better groomed than I had ever seen him before.” He wore a beige sweater with a brown windowpane check. Tiner testified: “I was very surprised. . . . [][] I said Dean, I’m sorry I can’t invite you in. I have company coming over.

You should have called. . . . [H And he said [‘][W]ell, I was here in the neighborhood, I just thought I’d stop by.[’] [. . .] He said, [‘]Did Jan [Cullins] tell you I was in town?[’] [(0 And I said yes, she did. [][] And he said, [‘]I told her not to tell you that.[’] [f] I said, well, she did. I’m sorry I can’t invite you in. You have to leave. I have . . . company coming over.

I have to go. [][] And then [defendant] put his chin up like this, and said, [‘]Do you know she stood me up today?[’] [f] I said, no, I didn’t.” Tiner shut the door, unsuccessfully attempted to reach Cullins by telephone, and then attended the baseball game. On the morning of April 14, Cheri Phinney again attempted to contact Cullins, and Nancy McEachem answered the telephone. McEachem informed Phinney that Cullins was not at home. Phinney drove to the apartment, arriving about 8:30 a.m. McEachem was there with her fiancé. The drapes and curtains were closed.

Phinney noticed wood chips on the floor by the front door.* Because Phinney and McEachem had expected Cullins to be at the apartment, they began to search for a note from her, or a document with her license plate number in the event they needed that information to ascertain from local authorities whether Cullins had been involved in a traffic accident. In the course of searching for this information, McEachem opened a bedroom closet door and discovered the partially clothed body of Janette Cullins, lying on some boxes. McEachem’s fiancé contacted the police. c.

The police investigation Richard Thwing, a San Diego police officer assigned to the police department’s homicide division, testified that the front door of Janette Cullins’s apartment displayed signs that a forced entry had been made. Cullins’s body was lying in the bedroom closet. Her neck bore what appeared to be a ligature mark. Adolph Romero III testified that on the morning of April 14, 1984, as he was walking to work near the Point Loma piers by North Harbor Drive in San Diego, he retrieved a wallet he noticed in some bushes near the sidewalk.

The wallet contained a driver’s license and other identification items and credit cards in the name of Janette Cullins. Cullins’s father later identified the wallet as having belonged to her. Because Romero had an important appointment that morning, he gave the wallet to a friend, Robert Pack, who gave the wallet to the police. During the same week that Romero found the wallet, he also had seen parked within one block of that location a white Datsun 280 ZX.

Dannis Nuckolls, who worked as a San Diego Police Department evidence technician in April 1984, testified that in conducting an inventory of the contents of Cullins’s wallet, he found a driver’s license and various identification cards, all in the name of Bonnie Guthrie. On April 14, 1984, San Diego police officers recovered Guthrie’s purse from the same North Harbor Drive area. Hormez Guard, a forensic pathologist, performed an autopsy on Janette Cullins at 9:00 a.m. on April 15, 1984. Dr.

Guard testified that the cause of Cullins’s death was asphyxia due to ligature strangulation, adding that he found evidence the victim had suffered “a sharply cutting incised wound” inflicted “after death, or . . . when the person was dying,” consistent with the use of a sharp knife. There was no evidence of sexual assault. On cross-examination, Dr. Guard stated that the time of Cullins’s death was between 24 and 48 hours prior to the time that he performed the autopsy. George Cullins, Janette’s father, testified that he had purchased a Triumph TR 7 for Janette in 1980 or 1981.

At the time of purchase, the vehicle bore a personalized license plate that read “SHYLAS,” which she ultimately replaced. Susan Seminoff, a friend of Cullins’s, testified that in December 1980 she and Janette went together to open checking accounts at San Diego Federal Bank, which subsequently changed its name to Great American Bank (and later, after Cullins’s murder, to Wells Fargo Bank).

Seminoff recalled that in selecting an automatic teller machine (ATM) card password, Cullins picked the word from her license plate, “SHYLAS.” The word “SHYLAS” was written on the back of a tom Alpha Beta Supermarket receipt recovered by investigators from the “Members Only” brand jacket found in the Datsun 280 ZX that defendant was driving when he was arrested.

Sandra Homewood, an examiner of questioned documents employed by the San Diego County District Attorney’s Office, testified that in comparing exemplars of defendant’s handwriting with entries found in his address book, Homewood discerned several “unique and conspicuous characteristics” and made a “positive identification” that defendant had written in his address book the names Susan Loyland (rape victim Barbara S.’s tenant, see, ante, at pp. 1223-1226), Janette Cullins, Cathleen Tiner, and Susan Knoll.

With regard to the slip of paper that read “SHYLAS,” Homewood was unable to eliminate defendant or identify him as the writer. In comparing the note to an exemplar of Janette Cullins’s handwriting, Homewood indicated there existed “very strong indications” that Cullins had written it. Great American Bank records 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 ATM located at the bank’s Point Loma branch. A four-minute videotape of the transaction was introduced into evidence and shown to the jury.

The tape depicted a man wearing a sweater (identified as having been knitted by Bonnie Guthrie) and a black jacket. 8. Defendant’s Arrest The prosecution introduced evidence pertaining to defendant’s April 17, 1984 arrest in Arizona that was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1133-1134, with one noteworthy addition, as follows.

In the trial conducted in the present case, the prosecution introduced the testimony of Jerald McKeand, a deputy sheriff employed by Yavapai County, Arizona, who recalled that at the time of defendant’s arrest, defendant wore cutoff jeans, a gray sweatshirt, tennis shoes, and green socks. Defendant also wore a gold necklace that had belonged to Tok Kim and a workout shirt that had belonged to Jillette Mills. 9. The Contents of the Datsun 280 ZX The prosecution introduced evidence pertaining to the contents of the Datsun 280 ZX that defendant was driving when he was stopped and arrested in Arizona.

The evidence was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1134-1135. B. The Defense Case Outside the presence of the jury, the trial court informed defendant that he had the right either to testify or not to testify. Defendant replied that he was not going to testify. Unlike defendant’s trial in Los Angeles County, in which the defense did not present any evidence at the guilt phase (see People v.

Carter, supra, 36 Cal.4th at p. 1135), the defense at this trial introduced the testimony of witnesses pertaining to the Los Angles County murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie, the San Diego County murder of Janette Cullins, and the San Diego rape of Barbara S. 1. The Los Angeles County Murders The defense introduced the testimony of Ronald C. Tulio, an employee of the United States Postal Service, who had been Susan Knoll’s boyfriend and also was acquainted with Knoll’s roommate, Jillette Mills, and their friend, Bonnie Guthrie.

Tulio testified that he and Knoll had lived together from July 1983 to February 1984, after which Knoll moved in with Mills. In the immediate aftermath of the Los Angeles County murders, members of the Culver City Police Department interviewed Tulio. On cross-examination, Tulio acknowledged that his breakup with Knoll had been an emotional one, and that on the afternoon of April 12, 1984, Culver City Police Department officers investigating the Los Angeles County murders arrested him and detained him at the Culver City jail for four days.

On the night of April 12, 1984, when Janette Cullins was murdered in San Diego County, Tulio was in police custody.

When asked on cross-examination what defense counsel had told Tulio he (Tulio) might testify about, Tulio recalled counsel stating: “He [defense counsel] said all he wanted to do was have me say that obviously the Culver City Police Department made a mistake in arresting me, saying that San Diego [Police Department] could make the same mistake arresting the wrong guy.” Culver City Police Officer Craig Bloor testified that at the time of the Los Angeles County murders, he resided in an apartment building adjacent to the building in which the bodies of Susan Knoll and Jillette Mills were discovered.

April 10, 1984, at approximately 8:30 p.m., Officer Bloor noticed someone he did not recognize walking from the next-door apartments to the street. Upon learning several days later of the double homicide that had occurred in the adjacent building, Officer Bloor identified a photograph of Ronald Tulio as depicting the man he saw on April 10. On cross-examination, however, Officer Bloor testified that when he observed Tulio at the police station, he recognized some similarities to the person he saw on April 10 but also noticed several differences, and concluded Tulio was not the man he had seen on that date.

Instead, Officer Bloor identified defendant in court as the man he noticed on April 10, adding that the man was wearing a “ ‘Members Only’ style cut jacket that was popular then.” On cross-examination, Officer Bloor acknowledged having spoken with defendant on April 10: “I asked him what he was doing in the area, and he said he was looking for a friend’s house . ... HD ... HD Then he says[,] ‘[Wjhy, do I look suspicious[?]’ [f] I said yeah, you could.

Then he said[, ‘jit’s good that you check.fj Then he left.” Defendant held “some kind of blue folder or something like that” that Officer Bloor recalled was “very similar” to a blue folder the prosecution previously had introduced into evidence. The folder, which contained a photograph of defendant, was among the items that investigators recovered from Jillette Mills’s Datsun 280 ZX. 2. The Murder of Janette Cullins The defense presented the testimony of Michael T. Palermo, who in 1984 was employed as a San Diego Police Department latent print examiner.

Palermo testified that as part of the Cullins murder investigation, he examined latent fingerprint impressions recovered from Cullins’s apartment, but none matched defendant’s. The defense also presented the testimony of William W. Loznycky, Jr., who in 1984 worked as a San Diego Police Department criminalist. Loznycky testified that neither fibers found on the hand of Janette Cullins, nor head or pubic hairs recovered from a blanket and sheets found in her residence, could be matched to defendant or his clothing.

On cross-examination, Loznycky testified that he also examined an “O-type” bloodstain taken from the crime scene that did not match the victim’s blood, but could have been left by defendant, whom Loznycky characterized as having an “O” blood type. Finally, the defense presented the testimony of Lauren Carville, who resided in the apartment one floor below the one occupied by Cullins. Carville testified that she and Cullins had sunbathed in their shared backyard during the afternoon of April 12, during which time an acquaintance of Cullins visited with Cullins for about 15 minutes.

Carville saw Cullins depart in her vehicle that evening at approximately 7:00 p.m., after which Carville went out. Returning at approximately midnight, Carville noticed that Cullins’s vehicle was not parked in front of their apartment building, where Cullins normally parked her car. 3. The Rape of Barbara S. The defense presented the testimony of San Diego Police Department Officer Gene Loucks, who interviewed Barbara S. shortly after she was attacked. Officer Loucks testified that Barbara S. was unable to recall several physical attributes of her assailant. II. PENALTY PHASE EVIDENCE A.

The Prosecution’s Case The prosecution introduced into evidence the abstracts of judgment from defendant’s prior burglary convictions in Oregon and Alaska and, over defendant’s objection, his prior rape conviction in Ventura County. (See People v. Carter, supra, 36 Cal.4th at pp. 1135-1136.) The prosecution also introduced evidence that a deputy sheriff discovered in defendant’s San Diego County jail cell a homemade knife or “shank” wrapped in masking tape, as well as a 22-inch pipe.

San Diego Police Department Sergeant Carlos Chacon testified over defendant’s objection that weapons such as those seized from defendant’s cell could have been smuggled into the jail in parts and assembled, and that the shank found in defendant’s cell was designed as an offensive weapon to inflict serious bodily injury. B. The Defense Case The defense introduced extensive evidence pertaining to defendant’s difficult childhood and upbringing in Alaska (defendant is part Eskimo), as well as evidence that he was an accomplished and cooperative television cameraman and a good father and friend.

The evidence was substantially similar to that summarized in People v. Carter, supra, 36 Cal.4th at pages 1136—1137. DISCUSSION I. PRETRIAL ISSUES A. Double Jeopardy and Multiple Punishment Several weeks prior to the commencement of jury selection, defendant filed motions to dismiss the proceedings against him on the grounds of double jeopardy, collateral estoppel, and the statutory prohibition against multiple punishments.

In the alternative, defendant moved “to sever the trial of the issues raised by his pleas of once in jeopardy and former conviction . . . from the trial of his guilt or innocence of the crimes charged in the information.” Defendant asserted that he previously had been placed in jeopardy in the Los Angeles County proceedings, and that during those proceedings the jury heard and considered both evidence and argument suggesting defendant was responsible for the murder of Janette Cullins.

Having been sentenced to death in those proceedings, defendant sought, on state and federal constitutional grounds, the dismissal of the San Diego County charge that he murdered Cullins.

The trial court denied defendant’s motions, stating, among its reasons: “A legal analysis based on the statutes, case law and facts of this case as presented to the court for purposes of these motions shows there is no legal basis for a finding by the court of once in jeopardy. ...[][] The double jeopardy argument is meritless under the law and this fact situation, and therefore, the motion to dismiss would be denied, [f] . . . [f] This motion is so meritless that in all honesty I don’t see how anyone could call it incompetence of counsel not to enter the double jeopardy plea at the arraignment. [][] .

I’m not going to allow the plea. I can’t do that because in my discretion there’s no legal basis for it.” On appeal, defendant reiterates the contentions he made in the trial court. As we shall explain, defendant’s position is procedurally barred by his own successful motion in the Los Angeles County proceedings to dismiss the Cullins murder charge. (See People v. Carter, supra, 36 Cal.4th at pp. 1158-1159.) Even were we to ignore that procedural flaw, the trial court correctly determined that neither double jeopardy, nor collateral estoppel, nor

section 654 considerations barred the San Diego proceedings, and therefore properly rejected defendant’s motions. 1. The Procedural Bar Based upon Defendant’s Successful Motion in the Los Angeles Proceedings to Sever the San Diego Charges As we have explained in the companion appeal, People v. Carter, supra, 36 Cal.4th at page 1158, “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.” The trial court in Los Angeles County thereafter granted defendant’s motion to dismiss the charges involving the crimes committed in Alameda and San Diego Counties.

Because defendant previously sought and obtained in Los Angeles County the dismissal of the San Diego charges, knowing that the dismissal would compel the San Diego County prosecutor to file separate charges in that county for the crimes defendant was alleged to have committed in that jurisdiction, defendant’s contention that proceeding with the San Diego County prosecution was fundamentally unfair or violative of his rights under the state and federal Constitutions is not well taken or worthy of extensive discussion.

In view of the evidence linking defendant to the murder of Janette Cullins, San Diego County was entitled to prosecute defendant for that crime (as well as other crimes alleged to have been committed by defendant within that jurisdiction). (§§ 777, 790; People v. Carpenter, supra, 21 Cal.4th at pp. 1038-1039; People v.

Bradford (1976) 17 Cal.3d 8, 15 [130 Cal.Rptr. 129, 549 P.2d 1225].) Having moved in Los Angeles County for dismissal of the charges involving crimes committed in San Diego, notwithstanding the prosecutor’s representation that the motion, if granted, would effect a severance of the charges against defendant and a refiling in the respective counties in which the crimes occurred, defendant cannot now complain that severance led to a second murder prosecution. 2. Defendant’s Jeopardy,

Section 654, and Collateral Estoppel Claims Even if we were to assume that these claims are not barred, we would conclude that defendant’s contentions based upon double jeopardy principles,

section 654, and collateral estoppel, lack merit. a. Double jeopardy The state and federal Constitutions declare that no person shall twice be placed in jeopardy for the same offense. (U.S. Const., 5th Amend.; Cal. Const., art. I, § 15.) In Los Angeles County, defendant was placed in jeopardy for the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie. In those proceedings, he was neither charged with, nor convicted of, any crimes pertaining to the murder of Janette Cullins or the rape of Barbara S.

Accordingly, jeopardy never attached to defendant in the Los Angeles County proceedings for the crimes committed in San Diego County. (See People v. Carpenter, supra, 21 Cal.4th at p. 1039, fn. 4. [“ ‘ “[Tjhe murder of two persons, even by the same act, constitutes two offenses, for each of which a separate prosecution will lie, and ... a conviction or acquittal in one case does not bar a prosecution in the other.” ’ [Citations.]”]; People v.

Medina (1995) 11 Cal.4th 694, 765 [47 Cal.Rptr.2d 165, 906 P.2d 2] [rejecting the defendant’s contention that double jeopardy principles should apply where the defendant already once had defended against the charges at the penalty phase of the earlier trial]; see also United States v. Watts (1997) 519 U.S. 148, 154-155 [136 L.Ed.2d 554, 117 S.Ct. 633].) Accordingly, defendant’s double jeopardy argument must fail. b.

Section 654 Defendant’s assertion that

section 654 barred the San Diego County prosecutor from proceeding against him is deficient for reasons analogous to those noted immediately above. At the time of defendant’s trial,

section 654 prescribed: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.” (Stats. 1977, ch. 165, § 11, p. 644, italics added.) Because defendant was neither acquitted nor convicted of the murder of Janette Cullins or the rape of Barbara S. in Los Angeles County,

section 654 did not bar the San Diego County proceedings instituted against him for those crimes. (People v. Carpenter, supra, 21 Cal.4th at pp. 1038-1039 [rejecting the defendant’s contention that

section 654 barred separate prosecutions in Marin County and Santa Cruz County for the crimes committed in each county]; see also People v. Bradford, supra, 17 Cal.3d at pp. 13-17 [where criminal behavior began in one county and, following a police chase, terminated in another, the crimes committed in each county properly were tried separately in the respective counties].) c. Collateral estoppel Defendant contends the prosecutor was barred by collateral estoppel principles from trying defendant in San Diego County for the murder of Janette Cullins and the rape of Barbara S.

We observe: “Traditionally, collateral estoppel has been found to bar relitigation of an issue decided at a previous proceeding ‘if (1) the issue necessarily decided at the previous [proceeding] is identical to the one which is sought to be relitigated; (2) the previous [proceeding] resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior [proceeding].’ [f] It is implicit in this three-prong test that only issues actually litigated in the initial action may be precluded from the second proceeding under the collateral estoppel doctrine. [Citation.] An issue is actually litigated ‘[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .’ ” (People v.

Sims (1982) 32 Cal.3d 468, 484 [186 Cal.Rptr. 77, 651 P.2d 321], fn. omitted; see also People v.

Taylor (1974) 12 Cal.3d 686, 695 [117 Cal.Rptr. 70, 527 P.2d 622] [the doctrine’s purposes are: “(1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation.”].) Here, the circumstance that the jury in the Los Angeles County proceedings never was asked to determine, and did not determine, defendant’s guilt or innocence of the murder of Janette Cullins and the rape of Barbara S. defeats defendant’s claim of collateral estoppel.

Nor would any of the purposes of the doctrine noted above be served by its application here. B. Motion to Disqualify the Trial Court Judge On November 5, 1990, several months prior to the commencement of trial, defendant filed a motion pursuant to Code of Civil procedure

section 170.1, subdivision (a)(6), to disqualify San Diego County Superior Court Judge Melinda J. Lasater from presiding at his trial. The basis for defendant’s motion was that Judge Lasater had maintained a “working relationship and a friendship with the prosecutor in this case [San Diego County Deputy District Attorney James Pippin] such that a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Judge Lasater thereafter conducted a hearing in which she reviewed her contacts with Mr.

Pippin that spanned a period of approximately 16 years, noting the dates when they had worked together and general information pertaining to their social contacts. During the hearing, Judge Lasater recalled, among other things, that she and Mr. Pippin had worked together in the San Diego County District Attorney’s Office until she left that office in 1987, that her family and his had gone camping with other families, that her husband had purchased Mr.

Pippin’s son’s dirt bike approximately 10 years prior to the hearing, that there had been sporadic social contacts at parties, that she had performed the wedding of Mr. Pippin’s daughter at his daughter’s request in August 1990, that his daughter gave her a necklace similar to necklaces given to the bridesmaids, and that Mr. Pippin’s daughter had “house sat” for her approximately one year earlier, for which his daughter had been paid a “minimal amount.” Judge Lasater attached a copy of the hearing transcript to her answer. On November 30, 1990, Judge Allen J.

Freckle, selected by agreement of the parties, conducted a hearing on defendant’s motion. Relying on United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104 [216 Cal.Rptr. 4], and Leland Stanford Junior University v. Superior Court (1985) 173 Cal.App.3d 403, 408 [219 Cal.Rptr. 40], the court observed that “[t]he standard [for disqualification set forth in Code of Civil Procedure,

section 170.1, subdivision (a)(6)] is fundamentally an objective one.” Reviewing the nature of the professional and social contacts between Judge Lasater and Mr. Pippin, the court viewed “as weightless, particularly given the substantial passage of time, the assertion that a reasonable person would doubt Judge Lasater’s impartiality because of her past association with Mr.

Pippin .... [f] ... [f] This court is further satisfied that any, albeit unreasonable doubt, concerning Judge Lasater’s impartiality in this case would be erased by a reasonable person’s being apprised of Judge Lasater’s excellent reputation for integrity and fierce independence. [][] This court, therefore, finds that a reasonable person, aware of all the facts, would not reasonably entertain a doubt that Judge Lasater will be able to be impartial in this case.” The court thereafter denied defendant’s motion.

Defendant did not seek review in the Court of Appeal by way of a petition for writ of mandate, the procedure required by Code of Civil Procedure

section 170.3, subdivision (d). In his appeal to this court, defendant contends that the superior court below erred in denying his motion to disqualify Judge Lasater. Acknowledging his failure to comply with the writ review requirement set forth in Code of Civil Procedure

section 170.3, subdivision (d), defendant nevertheless asserts as a “structural defect” reviewable on appeal the “deni[al of] due process of law in violation of [the] state and federal Constitutions because the judge who presided over his case and who rendered the sentence of death was not impartial.” We find no merit in defendant’s position. His failure to comply with the requirements of Code of Civil Procedure,

section 170.3, subdivision (d), precludes him from challenging the denial of his statutory disqualification motion on appeal from the judgment rendered in the trial court. (People v. Brown (1993) 6 Cal.4th 322, 333 [24 Cal.Rptr.2d 710, 862 P.2d 710] (Brown).) Even if we were to overlook the procedural deficiency inherent in defendant’s challenge to the denial of his disqualification motion, we would find no merit in the assertion, implicit in defendant’s argument, that Judge Lasater had a responsibility to recuse herself in view of her prior professional and casual social relationship with Mr. Pippin.

Defendant provides no statutory or case law authority in support of that position, and we are aware of none. Because virtually all judges are drawn from the ranks of the legal profession, such prior relationships are neither unusual nor dispositive. (See United Farm Workers of America v. Superior Court, supra, 170 Cal.App.3d 97, 100 [“[T]he proper performance of judicial duties does not require a judge to withdraw from society and live an ascetic, antiseptic and socially sterile life.

Judicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified.”].) In our view, Judge Freckle correctly determined that on the facts presented in the pleadings below, a reasonable person would not entertain a doubt as to Judge Lasater’s impartiality. (See United Farm Workers of America v. Superior Court, supra, 170 Cal.App.3d at pp. 105-106; cf. Sincavage v.

Superior Court (1996) 42 Cal.App.4th 224, 230-231 [49 Cal.Rptr.2d 615] [disqualification proper where, 13 years earlier, judge had been a prosecutor representing the People in other proceedings against the defendant].) Accordingly, disqualification was not mandated in the present case. Defendant asserts a nonstatutory due process claim based upon evidence of bias adduced at trial. We need not decide whether defendant has forfeited this claim by failing to file a writ petition on this ground (see generally Brown, supra, 6 Cal.4th at p. 336), because his claim lacks merit.

Specifically, defendant cites Judge Lasater’s contempt order, issued on the eve of the penalty phase (June 3, 1991), against defense counsel and defendant for failure to provide penalty phase discovery to the prosecution, as well as Judge Lasater’s observation, made in considering defendant’s application to modify the death sentence rendered by the jury, that defendant “frankly had no intention of testifying in Los Angeles.” Neither of the actions cited by defendant, extracted from a trial court record in excess of 9,000 pages, remotely approaches the threshold required to establish the existence of judicial bias. (See People v.

Clark (1992) 3 Cal.4th 41, 143 [10 Cal.Rptr.2d 554, 833 P.2d 561] [“The question for us to decide is whether the judge ‘officiously and unnecessarily usurp[ed] the duties of the prosecutor . . . and in so doing createfd] the impression that he [was] allying himself with the prosecution . . . .’”].) Moreover, our independent review of the entire record reveals a trial court judge who was scrupulously fair and courteous to each side, and whose rulings exhibited neither bias nor prejudice. We therefore reject defendant’s claim. C.

Motion to Exclude Evidence of Wood Chips At the preliminary hearing, Cheri Phinney testified that in April 1984, she decided to move into the apartment occupied by Janette Cullins. On April 12, Phinney was at the apartment, painting her new bedroom and bathroom. Phinney recalled that the carpet area in the living room near the front door had been vacuumed. At the time Phinney departed from the apartment, between 7:00 and 7:15 p.m., she did not notice any damage to the doorjamb surrounding the front door or any wood chips on the carpet beneath the door latch.

When Phinney returned to the apartment on the morning of April 14, shortly before the discovery of Janette Cullins’s body, she noticed wood chips on the floor, as depicted in a photograph introduced by the prosecution. On cross-examination, Phinney acknowledged that on April 14, she did not mention the wood chips to the investigating detective and she also failed to mention the wood chips during her testimony at defendant’s trial in Los Angeles County.

San Diego Police Department Homicide Detective James Shively testified that as part of his investigation of the crime scene on April 14, he directed that the wood chips be photographed. On cross-examination, Detective Shively acknowledged he did not mention the wood chips in the crime scene report that he prepared. He further acknowledged that under his direction, evidence technician Dannis Nuckolls removed a portion of the doorjamb. Detective Shively did not recall whether he directed anyone to collect the wood chips.

San Diego Police Department Sergeant Douglas Naliboff testified that when he responded to the crime scene on the morning of April 14, the doorjamb “appeared that it had been pried open. There were wood chips separated from the doorjamb itself and laying on the floor.” He identified the prosecution’s photographs as depicting the doorjamb and wood chips that he observed. Defendant moved to exclude all evidence related to the condition of the front door of Janette Cullins’s apartment, including testimony regarding the doorjamb and the wood chips, and photographs of the wood chips.

The basis for his motion was that the prosecution assertedly had “failed to preserve the wood debris, and carelessly removed the door and doorjamb removed and photographed [szc].” Defendant asserted that the prosecution’s failure to preserve the “potentially exculpatory wood chips” violated defendant’s constitutional rights to a fair trial and due process of law, and that pursuant to Evidence Code

section 352 the testimonial or photographic evidence was not admissible in the absence of the wood chips themselves. The trial court denied defendant’s motion, finding: “Defendant’s . . . motion to exclude ... the wood chips evidence and doorjam[b] is denied. There is an insufficient showing of bad faith by law enforcement as shown in [Arizona v.] Youngblood [(1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333]].

In addition, the probative value of the evidence more than substantially outweighs any prejudice of the failure to preserve the wood chips. [][] The record should reflect that law enforcement took pictures of the evidence from several angles and preserved the door jam[b], itself. They apparently did not actually preserve the wood chips which are reflected in the pictures.” On appeal, defendant contends the trial court erred in denying his motion to exclude this evidence.

He argues that because the charge of burglary, as well as the burglary and lying-in-wait special circumstances, each depended upon the prosecution establishing that defendant unlawfully entered Cullins’s apartment, “the government's] fail[ure] to preserve evidence which was material and potential [ly] exculpatory” deprived him of a myriad of state and federal constitutional rights.

Defendant further asserts that the photographs of the wood chips could have been taken after the doorjamb was removed, and thus the failure to preserve the wood chips deprived defendant of the opportunity to demonstrate that the presence of the chips “may have been the result of Nuckolls’s post-crime removal of wood.” Defendant maintains that the trial court’s denial of his motion to exclude evidence was not harmless beyond a reasonable doubt and requires reversal, and further that the trial court’s ruling constituted an abuse of discretion under Evidence Code

section 352. For the reasons that follow, defendant’s position lacks merit. “Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence ‘that might be expected to play a significant role in the suspect’s defense.’ (California v. Trombetta (1984) 467 U.S. 479, 488 [81 L.Ed.2d 413, 104 S.Ct. 2528, 2534]; accord, People v.

Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) To fall within the scope of this duty, the evidence ‘must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ (California v. Trombetta, supra, 467 U.S. at p. 489 [104 S.Ct. at p. 2534]; People v. Beeler, supra, 9 Cal.4th at p. 976).

The state’s responsibility is further limited when the defendant’s challenge is to ‘the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ (Arizona v. Youngblood[, supra,] 488 U.S. 51, 57 [102 L.Ed.2d 281, 109 S.Ct. 333, 337].) In such case, ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ (Id. at p. 58 [109 S.Ct. at p. 337]; accord, People v.

Beeler, supra, 9 Cal.4th at p. 976.) “On review, we must determine whether, viewing the evidence in the light most favorable to the superior court’s finding, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022 [251 Cal.Rptr. 643, 761 P.2d 103].)” (People v. Roybal (1998) 19 Cal.4th 481, 509-510 [79 Cal.Rptr.2d 487, 966 P.2d 521]; see also People v.

Cooper (1991) 53 Cal.3d 771, 810 [281 Cal.Rptr. 90, 809 P.2d 865].) Under this standard, the court below did not err in concluding there was no showing of bad faith by law enforcement in failing to preserve the evidence; none of the testimony at the preliminary hearing (or trial) suggested otherwise.

Similarly, nothing in the record suggests that the court below erred in determining that the wood chips did not have an exculpatory value that was apparent prior to their disappearance, or that the wood chip evidence was of such a nature that defendant was unable to obtain comparable evidence by other reasonably available means. (See People v.

Cooper, supra, 53 Cal.3d 771, 810.) Nor do we find any abuse of discretion in the court’s determination that the probative value of the evidence substantially outweighed any prejudice that could be attributed to the failure to preserve the wood chips that had been observed by Cheri Phinney and Sergeant Naliboff. Investigators photographed the wood chip evidence. The photographic evidence indicated that someone had forced an entry into Janette Cullins’s apartment, and therefore was probative as to the burglary charge and the burglary special circumstance.

Defendant does not demonstrate how, in the absence of the wood chips themselves, the trial court abused its discretion in denying defendant’s motion to exclude the testimony and photographs of the wood chips. Defendant’s assertion that removal of a portion of the doorjamb during the investigation might have created the wood chips is speculative and has no bearing on whether the trial court abused its discretion in denying defendant’s motion to exclude the evidence. II.

JURY SELECTION ISSUES Defendant contends the trial court erroneously prohibited sequestered voir dire examination of prospective jurors, unfairly restricted the examination of the prospective jurors by counsel, conducted voir dire in an oppressive atmosphere, improperly instructed prospective jurors, and applied an incorrect standard to exclude persons from the jury. In view of these asserted errors, defendant contends he was denied a myriad of rights guaranteed to him under the state and federal Constitutions and therefore his conviction and sentence must be reversed.

As we shall explain, none of defendant’s contentions has merit. A. Defendant’s Motion for Sequestered Voir Dire At the commencement of jury selection, defendant moved for sequestered voir dire of prospective jurors pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301]. The prosecution joined in the request.

The trial court denied the motion, stating that “Proposition 115 is the law and is applicable. ...[][] And I intend to follow Proposition 115, and that includes, at this particular point in time, I’m not going to be using a sequestered inquiry of the jurors. [][] In making that decision, I’m exercising my discretion as well as requested by the People.” When defendant renewed his request, the trial court repeated its denial. On appeal, defendant contends he was “denied meaningful voir dire by the court’s improper procedures,” including the trial court’s denial of sequestered voir dire. He is mistaken.

Proposition 115, which took effect on June 6, 1990 (approximately eight months prior to jury selection here), enacted Code of Civil Procedure

section 223, which in relevant part provided (prior to its amendment in 2000): “In a criminal case, the court shall conduct the examination of prospective jurors[, and such examination] . . . shall, where practicable, occur in the presence of other jurors in all criminal cases, including death penalty cases.” (Stats. 1990, p. A-245, italics omitted.) Moreover, we repeatedly have rejected contentions similar to those advanced by defendant. (See, e.g. People v. San Nicolas (2004) 34 Cal.4th 614, 633-634 [21 Cal.Rptr.3d 612, 101 P.3d 509]; People v.

Ramos (2004) 34 Cal.4th 494, 513-515 [21 Cal.Rptr.3d 575, 101 P.3d 478]; People v. Slaughter (2002) 27 Cal.4th 1187, 1199 [120 Cal.Rptr.2d 477, 47 P.3d 262]; People v. Box (2000) 23 Cal.4th 1153, 1180-1181 [99 Cal.Rptr.2d 69, 5 P.3d 130]; see also People v. Waidla (2000) 22 Cal.4th 690, 713 [94 Cal.Rptr.2d 396, 996 P.2d 46] [Proposition 115 “abrogates” the requirement found in Hovey v. Superior Court, supra, 28 Cal.3d at p. 80, of individual sequestered voir dire examination of prospective jurors during the death qualification portion of jury selection in a capital case]; Tapia v.

Superior Court (1991) 53 Cal.3d 282, 288 [279 Cal.Rptr. 592, 807 P.2d 434] [applying Proposition 115 to crimes committed prior to enactment of the new statute, where (as here), the trial is conducted after its enactment].) Defendant has not provided us with any persuasive basis for revisiting the holdings in those decisions, and we decline to do so. The trial court made clear that its ruling was guided by the provisions set forth in Code of Civil Procedure

section 223. The court also explained at length the basis for its exercise of discretion in denying the requests for sequestered voir dire. No error or abuse of discretion appears. B. The Trial Court’s Imposition of Time Limits on Voir Dire The trial court permitted counsel for each party to have 60 minutes to conduct voir dire of the first 20 prospective jurors, and gave 30 minutes to each side for each additional group of nine jurors. The defense and prosecution each protested vociferously that the court’s limits were unduly restrictive.

The parties repeatedly moved the court to reconsider its ruling, each side citing the difficulty of ascertaining a prospective juror’s views during group voir dire within the time allotted by the trial court. The court denied these requests, expressing confidence that the process would afford counsel an adequate amount of time in which to conduct the voir dire examination On appeal, defendant contends the trial court’s restriction of the amount of time permitted each side in obtaining answers to questions was improper and resulted in a denial of meaningful voir dire.

We have observed that the adequacy of voir dire is a matter “ 1 “not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and responses to questions.” ’ ” (People v. Holt (1997) 15 Cal.4th 619, 661 [63 Cal.Rptr.2d 782, 937 P.2d 213], quoting Mu'Min v. Virginia (1991) 500 U.S. 415, 424 [114 L.Ed.2d 493, 111 S.Ct. 1899]; see also People v.

Cardenas (1997) 53 Cal.App.4th 240, 247 [61 Cal.Rptr.2d 583] [“ ‘The exercise of discretion by trial judges under the new system of court-conducted voir dire is accorded considerable deference by appellate courts.’ ”]; People v.

Taylor (1992) 5 Cal.App.4th 1299, 1313 [7 Cal.Rptr.2d 676] [same].) The applicable standard is a demanding one: “Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal. [Citation.] A fortiori, the same standard of reversible error applies when both the court and counsel participate in the voir dire.” (People v. Holt, supra, 15 Cal.4th at p. 661; see also People v.

Bolden (2002) 29 Cal.4th 515, 538 [127 Cal.Rptr.2d 802, 58 P.3d 931] [same].) Our review of the record reveals the voir dire examination conducted here was more than adequate.

The trial court informed the parties that if, in addition to the initial questions posed by the court and by each side, counsel desired that further inquiries be made of a prospective juror, counsel would be given the opportunity to request that the court ask followup questions directed to those particular jurors. “The right to voir dire, like the right to peremptorily challenge [citation], is not a constitutional right but a means to achieve the end of an impartial jury. [Citation.] . . . [I]t is the duty of the trial judge to restrict the examination of the prospective jurors within reasonable bounds so as to expedite the trial. [Citations.]” (People v.

Wright (1990) 52 Cal.3d 367, 419 [276 Cal.Rptr. 731, 802 P.2d 221]; see also People v. Bittaker (1989) 48 Cal.3d 1046, 1086 [259 Cal.Rptr. 630, 774 P.2d 659].) In view of the circumstance that the parties clearly were given the opportunity to elicit information on voir dire, we conclude, consistent with our foregoing pronouncements, that the time limits of which defendant complains did not prevent defense counsel from making reasonable inquiries into the fitness of prospective jurors to serve on the jury. No error or abuse of discretion appears. (See e.g., People v.

Carpenter (1997) 15 Cal.4th 312, 353-354 [63 Cal.Rptr.2d 1, 935 P.2d 708]; People v. Lucas (1995) 12 Cal.4th 415, 480 [48 Cal.Rptr.2d 525, 907 P.2d 373].) Moreover, even were we to assume that the trial court abused its discretion in restricting voir dire, defendant has failed to establish prejudice. (See People v. Carpenter, supra, 15 Cal.4th at p. 354; see also People v.

Bittaker, supra, 48 Cal.3d at p. 1082 [no abuse of discretion where the court formulated four specific questions to ask prospective jurors during the death-qualifying process, and refused to permit further questions from counsel].) The trial court’s rulings were minimally restrictive, and the circumstance that both parties passionately argued against them suggests that the court’s restrictions did not disproportionately impact one side to the advantage of the other. Jury selection required eight court days, a period of time hardly indicative of an unduly rapid proceeding. C.

The Atmosphere in the Courtroom At certain points during the voir dire examination, defense counsel complained about the overcrowded conditions occasioned by the large number of prospective jurors who had been directed into the courtroom. At one point, counsel declared: “There is a carnival atmosphere in here not fitting for this kind of case. We’ve got a hundred and I don’t know how many people jammed into this one courtroom. Jurors are complaining. It is extremely uncomfortable, not only for the jurors, but for counsel.

And the whole . . . atmosphere militates against the calm deliberation which we ought to be applying to this case.” On another occasion, the court informed the jury venire: “I don’t want you to think that since all these chairs are so close up here that I’m just doing that to harass you, because given the way the last few days have gone for most of us, I wouldn’t be surprised if you thought that.” On yet another occasion, the court indicated that it had received a note from a prospective juror that read, “Can you lower the room temperature, it’s too stuffy, etc.,” to which the court responded, “We didn’t need to have him tell us.” Defendant characterizes the atmosphere in the courtroom during the voir dire examination as having been “oppressive,” a circumstance that he contends—when viewed either singly or together with the trial court’s other asserted errors—warrants reversal.

We disagree. The panel was comprised of 140 prospective jurors. Although the warm, crowded conditions in the courtroom undoubtedly were neither optimum nor particularly comfortable, they did not deprive defendant of any rights to which he was entitled. To the extent defendant’s claim is directed at the difficult “working conditions” under which the defense was forced to operate during voir dire, the prosecution was compelled to perform under the identical challenging conditions.

To the extent defendant’s claim is directed at the potentially adverse impact the conditions may have had upon prospective jurors, we observe that defendant was entitled to an impartial jury, not a contented one. Although defendant’s representations as to the nature of the courtroom atmosphere portray a challenging environment for all concerned, we observe that the eight-day duration of these conditions was not inordinately lengthy.

Significantly, the defense had six peremptory challenges remaining when it accepted the jury—a circumstance indicating that, notwithstanding defendant’s arguments regarding the “oppressive” nature of the courtroom atmosphere, the defense was not dissatisfied with the jury as sworn. Indeed, the defense requested that the jury be sworn. “ ‘When the jury was finally selected, defendant did not claim that any juror was incompetent, or was not impartial. We therefore find no prejudicial error.’ ” (People v. Carpenter, supra, 15 Cal.4th at p. 354.) D.

The Trial Court’s Voir Dire Examination of Prospective Jurors Defendant contends the trial court misled prospective jurors, some of whom eventually were sworn as jurors in the case, by conducting an “improper and misleading voir dire examination [that] left the defense guessing at bias or prejudice,” and by misstating the law related to the penalty phase of the proceedings.

Defendant refers to assertedly imprecise questions posed by the trial court, and its repeated use during voir dire of inquiries such as, “would you hesitate to vote for the death penalty, and would you have a tendency to vote for the death penalty?” (Italics added.) Further, in response to questions posed by prospective jurors as to whether the “weighing process” described by the court would involve a “moral decision,” the trial court answered in the negative.

Defendant contends that this response by the court conflicted with CALJIC No. 8.88 (1989 rev.), which specifically instructed jurors that “You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider.” (Italics added.) Defendant further asserts that “the record does not demonstrate adequate bases for trial court rulings on challenges for cause, in large part because it is not clear the views of prospective jurors would have prevented or substantially impaired performance of their duties as jurors.” Our review of the trial court’s voir dire examination reveals that although defendant is correct that certain statements made by the court lacked precision, may have been overly simplistic, and contained technical misstatements of law, the court made clear that its comments were “not instructions on the law which I’m giving you at this time.

You’ll receive, if you’re selected as a juror, the actual instructions on the law in their full detail later.” We believe the court’s admonition made clear that its comments were directed toward generally familiarizing the prospective jurors with the tasks ahead in order to elicit responses from them that would assist the parties in determining whether or not to exercise their available challenges. Significantly, counsel were given the opportunity to ask followup questions of prospective jurors. E.

Trial Court’s Rulings on Challenges for Cause In considering defendant’s contention that the trial court erred in ruling on challenges for cause, we are guided by well established principles. If, as occurred in the present case, a defendant has unused peremptory challenges available when the trial court impanels the jury, and the defendant does not express dissatisfaction with the jury ultimately selected, his or her claim is not preserved on appeal. (People v.

Ochoa (1998) 19 Cal.4th 353, 444 [79 Cal.Rptr.2d 408, 966 P.2d 442].) Even were defendant’s claim properly preserved, we would reject it on the merits because he has failed to identify any prospective juror who he contends was improperly retained on the jury despite a valid challenge for cause, or one who erroneously was removed for cause. In view of defendant’s failure to establish specific reversible error, his contention must fail. HI. GUILT PHASE ISSUES A.

Testimony of Polly Haisha Over defendant’s objection on the ground of lack of relevancy, the prosecution introduced the testimony of Polly Haisha, an acquaintance of defendant’s, who, as a senior in high school, met defendant at a party in February 1984. Haisha testified that she accepted defendant’s invitation at the party to go sailing with him and gave him her telephone number, but subsequently cancelled the date because she “just felt really uncomfortable about the whole thing. I had a weird feeling about it. I ca[lled] him up and canceled.

I made up an excuse why I couldn’t go . . . .” Haisha and defendant spoke several times in the ensuing weeks; the two repeatedly rescheduled their date but, in Haisha’s words, “I would always cancel out shortly before we were supposed to meet.” Haisha identified defendant in court and in photographic exhibits. She also verified that an entry in defendant’s address book was her telephone number at the time (observing, however, that her name had been misspelled).

Haisha further testified that upon informing defendant during one of their initial conversations of her plans to attend college, he responded: “You know, that’s just a waste. He said why don’t you quiet [jzc] school and come sail to France with me. You’ll get a better experience of life there than you could in school, [f] I said, well, you know, that might be so, but I plan on going to college. I barely know you.

I’m not going to give up my life so I can sail to France with you.” In response to the prosecutor’s inquiry regarding defendant’s demeanor on the telephone, Haisha testified: “Well, the very first time I talked to him the next day after I met him at the party, he was really nice and very open to what we could do, and anything that I wanted—to whenever we wanted to meet after that. [|] It got— he got more and more aggressive.

Like the time I said I wouldn’t go to France with him, he acted like I was making fun of him; somehow that was a stupid idea or something, [f] He would get kind of mean and when I would cancel on dates, he would get kind of irritated, like he had to change his whole

schedule for me. Yet, again, he wasn’t happy. [1] It kind of scared me, but he would always tone it down towards the end so I wouldn’t be afraid to talk with him the next time. [|] . . . [][] Later on, towards the end of our phone conversations, he mentioned his ex-wife . . . and at that time he was really bitter about it and, you know, would call her names and said he was happy that part of his life was over.

He was happy to get away from her. [f] He called her a bitch.” Haisha also testified that in the evening of March 24, 1984, defendant contacted her by telephone and informed her he would be in San Diego on the following day. In response, Haisha “asked him at the end of our phone call never to call me again, and that I didn’t want to talk to him anymore, [f] I certainly didn’t want to see him, and he became very irritated and said why all of a sudden this change, we haven’t even gone out yet. [f] I said well, I don’t feel comfortable about talking to you or seeing you.

I would rather this ended right now, and would you please just never call this number again. . . . [][] He was very irritated and he started getting mad and almost hostile. That’s when I knew for sure I made the right choice, because at previous times in phone conversations he had gotten that way.” She added that she did not remember defendant ever contacting her again after that.

On cross-examination, Haisha testified that during the time period in which defendant was on trial (April 1991), she was a law student who, in the previous year, had worked as an intern in the San Diego County District Attorney’s Office, and that she planned to return to that office again to work as an intern after taking the bar examination that upcoming summer. On appeal, defendant reiterates his contentio

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