THE PEOPLE, Plaintiff and Respondent, v. DAVID KEITH ROGERS, Defendant and Appellant, 39 Cal. 4th 826

Opinion GEORGE, C. J. A jury convicted defendant David Keith Rogers of the first degree murder of Tracie Clark and the second degree murder of Janine Benintende (Pen. Code, §§ 187, 189), and found true the special circumstance allegation of multiple murder (§ 190.2, subd. (a)(3)) and the allegation that defendant personally used a handgun in the commission of each murder (§ 12022.5). At the penalty phase of the trial, the jury returned a verdict of death for the Clark murder.

The trial court denied defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed the death sentence for the Clark murder and 15 years to life in prison for the Benintende murder. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTUAL BACKGROUND A. Introduction Defendant, a Kern County Sheriff’s deputy, murdered 20-year-old Janine Benintende in January 1986 and 15-year-old Tracie Clark on February 8, 1987. Both of the women had been working as prostitutes on Union Avenue in Bakersfield when they were killed.

Both bodies were found in the Arvin-Edison Canal. Both had been shot multiple times with bullets from a .38-caliber weapon. Bullets recovered from the women’s bodies, tire tracks and shoe prints at the scene of the Clark murder, and an eyewitness account connected defendant to the murders. Upon his arrest, and after waiving his rights to an attorney and to silence, defendant confessed to the Clark murder, but not the Benintende murder.

At trial, the defense claimed defendant suffered from a mental illness resulting from extensive physical and sexual abuse as a child and, as a result, did not form the mental state or states required for the charged crimes. At the penalty phase, the prosecution presented evidence of two additional incidents involving defendant and prostitutes. The defense presented further evidence of defendant’s background and mental state. B. Guilt phase 1. The prosecution’s case a. The killing of Janine Benintende In January 1986, 20-year-old Janine Benintende resided in Los Angeles.

Benintende had been using heroin and working as a prostitute. That month, Benintende began associating with Frank Bybee. Around January 22, 1986, Benintende appeared nervous and told her mother she needed to leave Los Angeles for a few days. She left with Bybee and went to Bakersfield. About 7:30 or 8:00 p.m. on the day of their arrival in Bakersfield, Benintende went to Union Avenue intending to work as a prostitute. She was wearing pants, boots, and a white rabbit fur jacket. Bybee never saw Benintende again. On February 21, 1986, a farmer noticed a body floating in the ArvinEdison Canal near Rock Pile Road.

Kern County Sheriff’s Homicide Detective Mike Lage was called to the scene. He searched the area for footprints or other evidence but found nothing significant. Three days later, Dr. John E. Holloway, a forensic pathologist for the Kern County Coroner’s Office, examined the body, which by that time had undergone extensive decomposition. Among the items worn by the deceased were a white rabbit fur jacket and jeans. Dr. Holloway concluded the person had been shot once near the sternum and twice in the back.

There was only one entry wound in the back, just below the left shoulder blade, where both bullets apparently had entered. The gunshot wounds were the cause of death. Two bullets were retrieved from the body. The body was identified as Benintende’s through fingerprint analysis. Detective Lage contacted Benintende’s relatives and friends as well as the Los Angeles Police Department, but was unable to come up with any suspects in her murder. b. The killing of Trade Clark Connie Zambrano worked as a prostitute on Union Avenue in Bakersfield.

In the early morning hours of February 8, 1987, Zambrano saw a girl, whom she had not seen before, enter a beige Ford pickup truck with a brown camper shell and dark bubble windows. The girl appeared to point to a motel, but the truck instead proceeded straight before stopping for a few minutes on a side street, then heading out of town. Zambrano recognized the truck and its driver, whom she had seen and spoken to many times on Union Avenue. Zambrano once had a “date” with him; he had paid her $20 for sex. At trial, Zambrano identified the driver as defendant.

On the afternoon of February 8, 1987, two farmers were shooting squirrels when they saw a “half-naked” woman’s body submerged in a few feet of water in the Arvin-Edison Canal a short distance from the Hermosa Road Bridge. Summoned to the scene, sheriff’s investigators saw the body face-down in the water about 50 feet south of the bridge. Searching the scene, the investigators found tire tracks and shoe prints in the dirt shoulder of the eastbound lane (on the south side) of Hermosa Road, east of the canal. A Lifestyles Contour condom and condom wrapper were on the ground in that area.

There was a pool of blood in the center of the eastbound lane of the road east of the bridge. A bloody shoe print was in the road near the pool. Spots of blood led from that pool across the road to an area near a telephone pole in the dirt shoulder of the westbound lane (on the north side) of Hermosa Road. There was a “disturbance impression” in the dirt embankment east of the telephone pole. A trail of smeared blood led from the pool of blood west to the center of the bridge over the canal. There were blood spots on the bridge, on the cement curb of the canal, and on the rail of the canal.

A pathologist for the Kern County Coroner’s Office examined the body and found a number of gunshot wounds. Two shots had entered the front of the chest near the right breast, penetrating the lungs. One bullet had passed through the body, while the second had lodged near the center of the back. A third shot had grazed the right side of the chest. A fourth shot, which had been fired at fairly close range, had entered the right side of the chest, passed through several organs, and lodged in the left side of the body.

A fifth shot had grazed the right side of the abdomen near the waistline without entering the body cavity. A sixth shot had entered the back near the midline and lodged near the right collarbone. There also were abrasions on the buttocks that were consistent with the body being dragged after death. The pathologist concluded the victim bled to death from the multiple gunshot wounds and probably died before her body was placed in the water. c. The investigation and defendant’s confession In an attempt to identify the body found in the canal, detectives showed photographs of it to sheriff’s deputies.

Sheriff’s Deputy Martin Williamson showed a photograph to defendant, who said he did not recognize the person. The following day, Deputy Williamson and Detective John Soliz, the lead investigator on the case, went to Union Avenue to learn whether any of the prostitutes there could identify the body depicted in the photos. Connie Zambrano told Detective Soliz she recognized the victim as the girl she had seen entering the truck the night before. Another prostitute identified the victim as Tracie Clark.

That same day, criminalists compared the three bullets recovered from Clark’s body with the two bullets recovered from Benintende’s body the year before. The bullets matched: all were .38-caliber semi-copper-clad hollow-point bullets, all were of the same type as sheriff’s-department-issue ammunition that was available to all deputies, and all had been fired from the same weapon. The ammunition also was sold commercially. Detective Lage and Detective William Nikkei went to defendant’s house that day and compared the tires on his truck with photos of the tire tracks found at the Clark murder scene.

Finding the tires and tracks matched, the detectives drove Zambrano past defendant’s house, where she identified defendant’s truck as the truck she had seen Clark enter. She also picked defendant’s photograph out of a photo lineup consisting of photos of six sheriff’s deputies. At that time, she did not know defendant was a deputy sheriff. Kern County District Attorney’s Office investigator Tam Hodgson obtained warrants for defendant’s arrest and the search of his house. Officers arrested defendant soon thereafter. Defendant’s shoes appeared to match photos of the shoe prints at the scene.

Once in custody, defendant agreed to be interviewed. Investigator Hodgson and Detectives Soliz and Lage questioned defendant on February 13 and 14, 1987. At the outset of the first interview, defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], then admitted shooting Clark and described the following events. According to defendant, he picked up Clark near the El Don Motel at the comer of South Union Avenue and Belle Terrace in the early morning hours.

Defendant was driving a Ford pickup truck with a brown-and-white camper shell, which he had purchased toward the end of the previous year. Clark appeared to him to be a “Mexican female,” about 20 to 30 years old and about 140 to 150 pounds. She asked whether he wanted a “date”; he said, “I don’t know.” Clark entered the track, and defendant drove about one block east on Belle Terrace, then stopped. They agreed on a price of $30 for oral sex. Defendant wanted to go out in the “country” rather than to Clark’s motel, and she agreed. Defendant said he drove for about 15 to 20 minutes.

On the way, Clark told defendant her name was Anna and that she was from Cuba or Puerto Rico. She also began complaining about how far out of town they were going. Defendant parked at a spot on the south side of Hermosa Road where there was “nobody around.” He then lay down on the seat of the truck’s cab, and Clark kneeled over him and began to perform fellatio on him. Defendant could hear coins or keys rattling in her pockets. Clark had brought a condom, which was lying in the truck. Defendant’s pants were around his ankles.

After awhile, according to defendant, Clark stopped and demanded to be paid $50 instead of $30 because they had gone so far out of town and the liaison was taking so much of her time. When defendant refused, Clark became angry and started swinging at him. He told her to “knock this shit off.” Instead of complying, she began yelling and kicking him. Defendant was afraid Clark might scratch his face with her long fingernails. With his left hand, defendant (who was right-handed) reached under the front seat and retrieved a .38-caliber revolver he had stored there.

He pulled back the hammer and pointed the gun at Clark, hoping it would “make her quit,” but it did not. Instead, she continued to swing at him and kick him. The gun went off, wounding Clark. According to defendant, Clark then fell back against the truck door, screaming. Defendant started the truck and began driving, telling her he would get her back to town. When she continued to scream, defendant stopped the truck, unlatched the passenger side door, and pushed her out with his feet. She ran around in front of the headlights, “screaming and hollering.” Defendant noticed blood on the right side of her rib cage.

He put on his pants, got out of the truck, and told her he would take her to town and get her a cab to go to the hospital. But she started “going crazy” again and said she was going to “report” him. Defendant “panicked” and shot her again, this time with the gun in his right hand. Defendant said Clark then ran up the road. Defendant realized if she turned him in, he would be arrested and go to jail.

As Clark leaned against an embankment facing him, defendant shot her four more times, “emptying] the gun.” Defendant shot her because she could not testify against him if she were dead, and “that was the bottom line.” Clark ran into the road, then fell down. Defendant said he then drove away but came back shortly. He determined Clark no longer was breathing, and then dragged her body by the ankles to a nearby bridge and pushed it over the cement railing into the canal. He then drove home, dropping the shell casings on the way.

Once home, he threw the gun into a black bag in the back of his truck, watched television, and went to bed. The following day, he drove back to the scene. “It didn’t look good.” There was blood in the road. Defendant said he had purchased the murder weapon, a short-barreled .38-caliber revolver, about six years earlier from a man at the Four Queens bar on Edison Highway. He had fired it only once before. During the interview, one of the investigators asked defendant about the Benintende killing. Defendant at first repeatedly denied having shot anyone other than Clark, but later said he could not remember.

A search of defendant’s home turned up ammunition of the same type issued by the sheriff’s department to its deputies and used in the killings, as well as several expended .38-caliber shell casings. Investigators thoroughly examined defendant’s beige pickup truck but found no bloodstains. In the camper they found a black canvas bag with several guns in it, including a .38-caliber Colt Detective Special. Criminalist Gregory Laskowski test fired that weapon and compared the resulting bullets to those retrieved from the bodies of Clark and Benintende.

The bullets had matching characteristics, leading him to conclude the bullets that killed both Clark and Benintende had been fired from that gun. After comparing crime scene photographs with the tires on defendant’s truck and defendant’s shoes, Laskowski concluded those tires and shoes made the tracks depicted in the photos. Laskowski searched defendant’s green Datsun truck for evidence of the Benintende killing but found nothing significant. Although Benintende had been wearing a rabbit fur jacket when she died and there was rabbit fur in the truck, that fur could have come from a pair of gloves in the truck.

Laskowski also examined Clark’s clothing. Inside the pockets of her blue skirt he found a key, some coins, a $20 bill, and a package of LifeStyles Contour condoms. Investigator Hodgson determined the murder weapon had been reported stolen several years earlier. Defendant had written the theft report. Hodgson then tracked down the Four Queens bartender from whom defendant said he had purchased the murder weapon. The bartender, Steven Howell, never had sold defendant a gun. The murder weapon had belonged to Ahmed Li Ubadi, the manager of a Stop and Shop Market.

He last saw the gun before his store was burglarized in 1982. A deputy sheriff had gone to the store to investigate the burglary. When Mr. Ubadi arrived at the store, the only thing missing was the gun. d. Other evidence Katherine Hardie, a prostitute known as “Redbone,” saw Benintende on Union Avenue shortly before she disappeared in late January 1986. Sometime after August 1986, a man driving a white pickup truck with a camper shell picked up Hardie on Union Avenue.

She asked him whether he wanted a “date.” The driver would not go where Hardie wanted, and instead tried to drive her “out to the orchard.” When he would not let her out of the truck, Hardie had to jump out. e. Motion for partial acquittal At the close of the prosecution’s case-in-chief, the trial court granted defendant’s motion for partial acquittal on the Benintende count and reduced that charge to second degree murder.

Thereafter the court instructed the jury it had “reached a determination that so far as the homicide of Janine Benintende [is] concerned that the jury could reach no greater verdict than murder in the second degree. In other words, so far as that second count is concerned, first degree is no longer a possibility with this jury.” 2. The defense case Defendant testified in his own defense and admitted killing Clark.

The defense centered around defendant’s claim he did not form the intent required for the charged crimes due to a mental disturbance stemming from the sexual and physical abuse he had suffered as a child. The defense evidence consisted primarily of defendant’s testimony and that of three mental health professionals. Dr. David Bird, a clinical psychologist, began treating defendant for depression in February 1987 after defendant’s arrest for the Clark murder. Over the course of a year, Dr. Bird met with defendant approximately 48 times. According to Dr.

Bird, defendant suffered from periods of amnesia regarding his childhood. Because memory loss is typical for children who have suffered sexual abuse, Dr. Bird believed there had been a great deal of trauma in defendant’s early life. Dr. Bird described defendant’s family history, which he developed by speaking with defendant and through input from his cotherapist, Dr. Joan Franz. According to Dr. Bird, defendant’s parents, Juanita and James, both were alcoholics. When defendant was approximately six months of age, his parents divorced. Juanita then married Dub Ellis, another alcoholic.

From that point forward, defendant resided in a “house of horrors” of physical and sexual trauma. Juanita would hit defendant and his brother Dale with a belt. Ellis was a “sexual sadist.” For example, Ellis would force defendant and Dale to play a game called “turn and bum” in which the boys, while naked, had to grasp each other either back-to-back or face-to-face. Ellis then hit them with a belt with a silver buckle whenever one boy could turn the other boy toward Ellis. This caused bmises and welts on the boys’ buttocks, legs and testicles.

Once, after discovering Juanita had dressed defendant in women’s panties and clothing, Ellis forced defendant to stay outside, where he was fearful of being seen. Ellis also once threatened to kill defendant by throwing him into a river. Dr. Bird testified that when defendant was approximately six or seven years of age, a new stepfather, William, appeared. William, a homosexual, sodomized defendant on a nightly basis. Defendant also was sexually abused and sodomized by other men in the house. Between the ages of 11 and 16 years, Dr.

Bird related, defendant was seduced by an older female cousin and by his father’s wife, Barbara, an African-American. Defendant began collecting women’s underwear. When defendant was 17 or 18 years of age, he attempted to reconcile with his father, but Barbara excluded him from the house when he refused to become sexually involved with her. According to Dr. Bird, defendant joined the Navy at the age of 19 years and began drinking heavily. He left the Navy two years later. Defendant had two unsuccessful marriages before meeting and marrying his current wife, Joyce. He had two sons by his first wife.

At some point, defendant began compulsively associating with prostitutes. In Dr. Bird’s view, defendant had extreme sexual problems due to his background and suffered from a possible multiple personality disorder, fragmentation, and dissociation. On standard psychological tests, defendant scored above average in intelligence but showed suicidal tendencies. Dr. Joan Franz, a psychotherapist, testified she shared a practice with Dr. Bird and began seeing defendant to treat him for his depression after his arrest for the Clark murder. Over the course of a year, Dr.

Franz saw defendant once a week for two to three hours each visit. Dr. Franz gained information concerning defendant’s background from defendant, his brother Dale, other family members, and defendant’s investigator. Based upon that information, Dr. Franz opined defendant’s family had no moral structure. Emotional abuse, neglect, and abandonment characterized his early family life. Dr. Franz testified that defendant suffered both overt and covert sexual abuse; he was cross-dressed by his mother, abused by older cousins, and sodomized by a man wearing a rubber glove with two of the fingers cut off. In Dr.

Franz’s opinion, defendant fit the profile of a survivor of child sexual abuse and an adult victim of trauma. The trauma and abuse defendant suffered as a child led to sexual problems as an adult, including impotence and “acting out” sexually. Dr. Franz also stated defendant had multiple personalities. She believed defendant began associating with prostitutes because he identified with them and also to prove to himself he was heterosexual. Dr. David Glaser, a psychiatrist, testified he first met defendant in December of 1987.

At that time, defendant could not remember what had happened from the time he first shot Clark until he saw her lying in a pool of blood. In order to get at the areas of memory loss, Dr. Glaser administered sodium amytal, a short-acting barbiturate that “disinhibits” the brain and allows a person to access repressed information. In interviews conducted both with and without sodium amytal, defendant recounted “a museum of childhood sexual and physical abusive traumas” beginning from the age of four or five years. Dr.

Glaser believed defendant’s psychological profile was most consistent with the phenomenon of “dissociative states” in which a person is not fully in control of his or her thoughts, feelings, or behavior. Individuals with dissociative disorders are aware of the occurrence of lost periods of time or memory lapses. Sexual abuse is a predisposing factor for dissociative disorders. Defendant testified concerning the Clark killing, stating he independently could recall only what occurred up until the time he pushed Clark out of the truck with his feet.

After that, his recollection was based upon his viewing of the videotape of the sodium amytal interview. Defendant related the following. He testified he was driving his pickup truck along Union Avenue about 2:00 a.m. and observed Clark at the comer of Belle Terrace and Union, a location frequented by prostitutes. Defendant had not seen Clark before. She appeared to be between 20 and 30 years of age. He stopped at the comer and opened the passenger door. Clark entered the vehicle and asked whether he wanted a “date,” which meant she was looking for a customer. Defendant drove around the comer and stopped.

Clark wanted to go to a motel but defendant did not, because he did not want to be “rolled” by a pimp. Clark agreed to go out to the “country” instead. The two decided on $30 for a “half-and-half,” which is half oral sex and half sexual intercourse. Defendant stated he drove for approximately 15 to 20 minutes. When they reached Hermosa Road, defendant stopped and lay down in the front seat of the track, and Clark began giving him oral sex.

Defendant did not have an erection; he “sometimes ha[d] problems with that.” When Clark asked what was wrong, defendant told her to “work at it a little more.” Clark became angry. Defendant was feeling “sort of embarrassed, sort of crushed.” Clark became abusive and waved her arms around. She asked whether he preferred little boys. Defendant said he liked girls and women, and maybe she was not doing her job right. Clark called him “queer” and “faggot.” Defendant opened the passenger door and pushed her out with his feet.

Clark was walking toward him pointing her finger at him, and he felt threatened, so he pointed a gun at her, pulled the trigger, and shot her. A second or two later, he shot her five more times. Defendant was thinking only of protecting himself. He feared her and her reporting him. There was no argument concerning money. Defendant testified that after he shot Clark, she said, “Oh God.” Then she walked into the middle of the road, lay down, and died. Defendant drove down the road and then came back to see whether she was alive. Finding her dead, he dragged her body to the canal and placed it in the water.

Defendant drove home and threw the gun into the back of his truck. At home, he wandered around the house and watched some television, feeling confused. Later that same day, he returned to the scene of the killing to try to figure out what had happened. He saw a pool of blood in the road, blood spots, tracks, and a body in the canal. At that point he knew he had killed Clark. Defendant said he went to work the next few days and did not tell anyone about the killing. He was arrested the following Friday afternoon. After waiving his Miranda rights, he gave a statement concerning the Clark killing.

He provided the authorities with “enough” information to ensure he would be convicted and executed. Some of the things he told them—for example, that he possibly discussed calling a taxicab after he first shot Clark—were not true. Defendant was depressed and suicidal at the time. In Dr.

Glaser’s opinion, at the time of the killing defendant “was overwhelmed with numerous affective states specifically stemming from his sexual dysfunction and specifically the volley of expletives that followed such dysfunction from Miss Clark,” and “the actual shooting and killing was an impulsive heat of passion event” that occurred without planning. In this emotional state, defendant was incapable of premeditating and deliberating or of coldly weighing the consequences of killing Clark.

Further, defendant’s confession was “part of his larger scheme to essentially either commit suicide at his own hand or commit legal suicide by insuring his demise by, as he puts it, coming up with the perfect first degree murder conviction story.” Dr. Bird agreed the killing of Clark was an impulsive, emotional act of passion and fear. It was a sexual incident and had nothing to do with money. There was no planning or deliberation, just a reaction to a “rush of happenings,” including being called names by a woman who looked like his stepmother Barbara.

There was no “thoughtful advance planning or anticipation of doing what he did,” no reasoning or thinking, and no weighing of consequences. In Dr. Franz’s opinion as well, defendant killed Clark in a very emotional, anxious state in which he did not have the “skills available” to premeditate and deliberate. Defendant simply reacted to the names Clark was calling him. The killing was “not a weighing or a balancing, but simply a defense mechanism to protect himself,” an emotional act. “It was basically, you would call it survival.” 3.

The prosecution’s rebuttal The only evidence presented by the prosecution in rebuttal was testimony that in February of 1983, defendant briefly had been terminated from his position at the sheriff’s department as the result of a complaint by a prostitute, but subsequently had been reinstated. C. Penalty phase 1. The prosecution’s case in aggravation Ellen Martinez, the prostitute whose complaint against defendant was the subject of the prosecution’s guilt phase rebuttal, testified regarding the events in early 1983 that led to the complaint.

Martinez testified that defendant at that time, while on duty, had stopped her while she was having sex with a customer in a cemetery outside Bakersfield. The customer was allowed to leave, but defendant placed Martinez in his patrol car and told her he was going to take her “downtown.” When Martinez could not locate her underwear, defendant went to look for it in the cemetery, but was unsuccessful. Defendant then told Martinez to undress, and took photographs of her breasts and vaginal area. Afterwards, defendant dropped Martinez off near her motel room.

Tambri Butler, also a Union Avenue prostitute, testified defendant assaulted her in February 1986. According to Butler, defendant picked her up in a white pickup truck, forced her to perform various sex acts by shocking her with a “stinger” gun and firing an automatic weapon across the bridge of her nose, and then pushed her out of the truck and tried to run her over. Investigator Hodgson testified a black, Excam brand, .25-caliber automatic pistol, admitted without objection as exhibit 1, was taken from the black bag found in defendant’s truck. 2. The defense case in mitigation Dr.

Bird testified concerning the videotape of defendant’s interview with Dr. Glaser conducted while defendant was under the influence of sodium amytal. The videotape was played for the jury. On the tape, defendant told the same story of the Clark murder he had told at trial. He also stated, “I hurt for the girl [Clark] I killed.” Dr. Bird reiterated his opinion that defendant was under “extreme emotional distress” when he shot Clark, and that the lifetime of abuse he had suffered made it difficult for him to conform his conduct to the law. In Dr. Bird’s opinion, defendant was an emotionally impaired person.

Defendant’s wife (Joyce Rogers), stepdaughter (Carol Truitt), and brother (Dale Rogers) testified regarding defendant’s qualities as a loving husband, father, grandfather, and brother. Seven law enforcement officers, including defendant’s former beat partner, testified defendant was a skilled and conscientious deputy sheriff who was able to defuse emotionally charged situations, and described him as a good friend. Several of the officers testified defendant always had appeared normal. II. DISCUSSION A.

The trial court’s failure to conduct a hearing into defendant’s competence to stand trial Defendant claims the trial court’s failure (both before and during the trial) to inquire into, and to conduct a hearing regarding, his competence to stand trial and to assist counsel in his defense, violated his right to due process of law under the Fourteenth Amendment to the United States Constitution, as well as his rights under sections 1367 and 1368.

Defendant claims this failure also violated his right to be mentally present at the proceedings, both under the confrontation clause of the Sixth Amendment to the federal Constitution and

article I,

section 15 of the California Constitution and state statutory law. (See § 1043; In re Dennis (1959) 51 Cal.2d 666, 672 [335 P.2d 657]; People v. Berling (1953) 115 Cal.App.2d 255, 267-268 [251 P.2d 1017].) We reject these contentions. Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. (§ 1367; Drope v. Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103, 95 S.Ct. 896]; Pate v. Robinson (1966) 383 U.S. 375, 384-386 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v.

Ramos (2004) 34 Cal.4th 494, 507 [21 Cal.Rptr.3d 575, 101 P.3d 478].) A defendant is incompetent to stand trial if he or she lacks a “ ‘sufficient present ability to consult with his lawyer with' a reasonable degree of rational understanding—and ... a rational as well as a factual understanding of the proceedings against him.’ ” (Dusky v. United States (1964) 362 U.S. 402, 402 [4 L.Ed.2d 824, 80 S.Ct. 788]; see also Godinez v. Moran (1993) 509 U.S. 389, 399^100 [125 L.Ed.2d 321, 113 S.Ct. 2680]; § 1367; People v.

Stewart (2004) 33 Cal.4th 425, 513 [15 Cal.Rptr.3d 656, 93 P.3d 271].) Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. (§ 1368; Drope v. Missouri, supra, 420 U.S. at p. 181; Pate v. Robinson, supra, 383 U.S. at pp. 384—386; People v. Blair (2005) 36 Cal.4th 686, 711 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; People v.

Pennington (1967) 66 Cal.2d 508, 516-517 [58 Cal.Rptr. 374, 426 P.2d 942].) The court’s duty to conduct a competency hearing may arise at any time prior to judgment. (People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].) Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. (Drope v. Missouri, supra, 420 U.S. at p. 180; People v.

Ramos, supra, 34 Cal.4th at pp. 507-508.) But to be entitled to a competency hearing, “a defendant must exhibit more than ... a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.” (People v. Ramos, supra, 34 Cal.4th at p. 508; see also People v. Danielson, supra, 3 Cal.4th at p. 727.) A trial court’s decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. (See People v. Danielson, supra, 3 Cal.4th at p. 727; see also Drope v.

Missouri, supra, 420 U.S. at p. 181.) The failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence, however, requires reversal of the judgment of conviction. (Drope v. Missouri, supra, 420 U.S. at p. 181; Pate v. Robinson, supra, 383 U.S. at pp. 384—386; People v. Blair, supra, 36 Cal.4th at p. 711.) Defendant contends there was substantial evidence of his incompetence before the trial court.

Defendant first points to testimony, received both during the preliminary hearing and later during the guilt phase, indicating that defendant was depressed and suicidal in jail and had been placed on a suicide watch. Dr. Bird testified defendant scored extremely high on psychological tests designed to assess suicide risk. Dr. Glaser and Dr. Franz agreed defendant was an extreme suicide risk. Although the risk was most elevated immediately following defendant’s arrest, the summer before trial defendant had hoarded razor blades and strips of cloth in his jail cell. Dr.

Franz testified the suicide risk continued up until the time of trial. Actual suicide attempts or suicidal ideation, in combination with other factors, may constitute substantial evidence raising a bona fide doubt regarding a defendant’s competence to stand trial. (See Drope v. Missouri, supra, 420 U.S. at pp. 166-167, 179-180; Moore v. United States (9th Cir. 1972) 464 F.2d 663, 665-666; see also Pate v.

Robinson, supra, 383 U.S. at p. 381.) Nonetheless, in contrast to the cases cited above, here defendant’s suicidal tendencies did not constitute substantial evidence of incompetence, for they were not accompanied by bizarre behavior, the testimony of a mental health professional regarding competence, or any other indications of an inability to understand the proceedings or to assist counsel. (Cf. People v.

Ramos, supra, 34 Cal.4th at p. 509 [defendant’s hoarding of medication in apparent preparation for a suicide attempt did not give rise to a doubt regarding his competence to stand trial].) Defendant points out that his counsel moved to suppress his tape-recorded confession on the ground defendant was not “psychologically fit” to waive his Miranda rights after his arrest and was “not in a position to give free and voluntary consent.” Defendant also notes his counsel’s argument during opening statements that defendant suffered from “extreme mental problems.” Counsel never suggested, however, that defendant’s alleged inability to consent to interrogation gave rise to a doubt concerning his competence to stand trial.

Although trial counsel’s failure to seek a competency hearing is not determinative (see Odie v. Woodford (9th Cir. 2000) 238 F.3d 1084, 1088-1089), it is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings (see id. at p. 1088). Defendant argues there was substantial evidence of incompetence in the guilt phase testimony demonstrating that he suffered from long-standing mental problems.

All three defense mental health experts agreed defendant suffered some type of dissociative disorder—a “a splitting off of [defendant’s] mind” into different directions—which possibly rose to the level of a multiple personality disorder. No medical expert, however, testified defendant was likely to dissociate during the trial. Rather, the testimony suggested defendant’s dissociative states were triggered by traumatic events such as childhood sexual abuse or Clark’s verbal abuse.

Likewise no medical expert ever related defendant’s alleged multiple personality disorder to any inability to understand the trial process or assist his attorneys. Defendant also points to evidence establishing that he twice was exposed accidentally to the drug phencyclidine (PCP) on the job, causing serious temporary brain impairment and dissociation. The testimony suggests, however, the effects of the PCP exposure were temporary. There was no testimony the brief exposure affected defendant’s competence to stand trial.

Finally, defendant argues that a doubt concerning his competence should have been raised by the evidence suggesting he could not recall various events in his childhood and those surrounding the killing of Clark and Benintende. We never have held that memory loss regarding the charged crime renders a defendant unable to assist in his or her defense. (Cf. People v.

Frye (1998) 18 Cal.4th 894, 948-952 [77 Cal.Rptr.2d 25, 959 P.2d 183] [testimony establishing defendant had a mild memory impairment that made it difficult for him to recapture memory and to retain information, and also that he might have brain damage, was not substantial evidence of incompetence].) Moreover, the question whether defendant genuinely could not remember the events surrounding the crimes was disputed at trial, and there was evidence demonstrating defendant had recovered some memories through the sodium amytal interview.

There was no testimony suggesting defendant’s memory loss affected his ability to understand the proceedings or assist his counsel. Accordingly, here the mental health testimony was similar to the kind of “ ‘ “psychiatric testimony . . . with little reference to defendant’s ability to assist in his own defense” ’ ” that we have found insufficient to raise a doubt regarding a defendant’s competence to stand trial. (People v. Danielson, supra, 3 Cal.4th at p. 727.) The trial court had the opportunity to observe defendant’s testimony and demeanor during the trial. Defendant’s intelligence was above average.

Defendant testified coherently and articulately, and there was nothing in his testimony that would have caused the trial court to question whether he was unable to understand the proceedings or cooperate with counsel. In sum, defendant’s “history, statements and conduct did not approach the overwhelming indications of incompetence” present in Drope and other cases. (Davis v. Woodford (9th Cir. 2004) 384 F.3d 628, 646; see also People v.

Ramos, supra, 34 Cal.4th at p. 509.) Considering all the evidence before the trial court, there was no substantial indication of incompetence requiring the trial court to declare a doubt and conduct a competence hearing. For the same reasons, defendant has not shown he was mentally absent from the trial in violation of his rights under the state or federal Constitutions or state statutory law. (See § 1043; In re Dennis, supra, 51 Cal.2d at p. 672; People v. Berling, supra, 115 Cal.App.2d at pp. 267-268.) B.

Joinder of the Clark and Benintende counts Defendant was charged in a single information with the killings of Clark and Benintende. Defendant did not move to sever the two counts. Defendant now claims the joinder of the Clark and Benintende charges resulted in gross unfairness, depriving him of his federal constitutional rights to due process, a fair trial, and equal protection of the law.

Section 954 governs joinder and severance, providing in pertinent part: “An 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 . . . .” Defendant concedes the statutory requirements of joinder were met—the two murder counts charged crimes of the same class (see People v.

Catlin (2001) 26 Cal.4th 81, 100 [109 Cal.Rptr.2d 31, 26 P.3d 357]) and were connected by a common murder weapon—and acknowledges his failure to move to sever the counts at trial forfeited any claim that the trial court abused its discretion in denying severance. (See People v. Maury (2003) 30 Cal.4th 342, 392 [133 Cal.Rptr.2d 561, 68 P.3d 1]; People v. Hawkins (1995) 10 Cal.4th 920, 939-940 [42 Cal.Rptr.2d 636, 897 P.2d 574].) He further acknowledges the trial court had no statutory duty to order severance on its own motion.

He asserts, however, the specific claim that he is entitled to reversal of both murder convictions because joinder of the Clark and Benintende counts resulted in gross unfairness violating his right to due process of law under the federal Constitution. (See Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1083-1086.) We have held that even if a trial court’s ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of counts or defendants for trial resulted in gross unfairness depriving the defendant of due process of law. (People v.

Mendoza (2000) 24 Cal.4th 130, 162 [99 Cal.Rptr.2d 485, 6 P.3d 150]; People v. Ochoa (1998) 19 Cal.4th 353, 409 [79 Cal.Rptr.2d 408, 966 P.2d 442]; see also People v. Grant (2003) 113 Cal.App.4th 579, 594 [6 Cal.Rptr.3d 560] [finding gross unfairness even though trial court did not err in ruling on motion for severance].) Defendant asserts such review for gross unfairness is available even when no motion to sever ever was made. (See People v.

Simms (1970) 10 Cal.App.3d 299, 308-309, 317 [89 Cal.Rptr. 1] [reviewing joint trial for gross unfairness, and finding none, even in the absence of a motion to sever defendant’s trial from that of codefendant]; People v. Chambers (1964) 231 Cal.App.2d 23, 28, 34 [41 Cal.Rptr. 551] [reversing judgment in the absence of an objection to joinder of defendant’s trial with that of codefendant, where joinder in combination with other errors resulted in gross unfairness and denial of due process]; cf. People v.

Bums (1969) 270 Cal.App.2d 238, 251-253 [75 Cal.Rptr. 688] [reviewing for gross unfairness following an untimely motion to sever].) This court never has adopted the position urged by defendant, however. We need not decide whether review for gross unfairness is available in the absence of a motion to sever or an objection to joinder, for even if such review is available, gross unfairness did not result in the present case. Ordinarily, “[w]hen the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice” to warrant severance. (People v.

Marshall (1997) 15 Cal.4th 1, 27 [61 Cal.Rptr.2d 84, 931 P.2d 262]; see also People v. Sandoval (1992) 4 Cal.4th 155, 172 [14 Cal.Rptr.2d 342, 841 P.2d 862].) “The initial step in any review of a motion to sever is to examine the issue of cross-admissibility of evidence.

Since cross-admissibility would ordinarily dispel any possibility of prejudice [citations], we must inquire, had the severance motion been granted, would the evidence pertinent to one case have been admissible in the other under rules of evidence which limit the use of character evidence or prior similar acts to prove conduct [citations].” (Williams v. Superior Court (1984) 36 Cal.3d 441, 448 [204 Cal.Rptr. 700, 683 P.2d 699], fn. omitted.) Under

section 1101 of the Evidence Code, “evidence of a person’s character or a trait of his or her character ... is inadmissible when offered to prove his or her conduct on a specified occasion,” but “evidence that a person committed a crime, civil wrong, or other act” is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident...) other than his or her disposition to commit such

an act.” (Evid. Code, § 1101, subds. (a) & (b).) To be admissible, other-crimes evidence must be relevant to a material fact, and its admission must not be precluded by any rule or policy requiring the exclusion of relevant evidence. (See People v. Catlin, supra, 26 Cal.4th at p. 146.) Here, the identity of Benintende’s killer was a disputed material fact. Defendant testified he had no memory of that killing, and defense counsel did not concede defendant killed Benintende. Further, evidence of the Clark killing was relevant to the issue of identity.

We have explained: “ ‘[T]o be relevant on the issue of identity, the uncharged crimes must be highly similar to the charged offenses.’ [Citation.] The similarity, considering the degree of similarity and the number of common marks, should amount to a signature.” (People v. Catlin, supra, 26 Cal.4th at p. 111; see also People v. Ewoldt (1994) 7 Cal.4th 380, 403 [27 Cal.Rptr.2d 646, 867 P.2d 757]; Williams v.

Superior Court, supra, 36 Cal.3d at p. 450.) Here, the Clark and Benintende murders shared a number of common and distinctive marks: both women were prostitutes who last were seen alive on Union Avenue in Bakersfield; both suffered multiple gunshot wounds to the torso; both bodies were dumped in the Arvin-Edison Canal, in rural areas about seven miles from each other; and both were killed with the same gun, which belonged to defendant. Accordingly, the evidence of the two attacks was “probative of a common method or approach sufficient to support cross-admissibility” on the issue of identity. (People v.

Marshall, supra, 15 Cal.4th at p. 28; see also People v. Bradford (1997) 15 Cal.4th 1229, 1316-1317 [65 Cal.Rptr.2d 145, 939 P.2d 259].) Furthermore, no rule or policy would have required exclusion of the evidence pertaining to the Clark homicide in a separate trial on the Benintende count. The evidence was highly probative, and its probative value was not outweighed by the danger of undue prejudice. (See Evid. Code, § 352.) The facts of the Clark killing, while sordid, were not unduly inflammatory.

Accordingly, any inference that a joint trial prejudiced defendant’s ability to defend against the Benintende charge is dispelled. (See People v. Catlin, supra, 26 Cal.4th at p. 112; People v. Marshall, supra, 15 Cal.4th at p. 28.) Likewise, at a separate trial of the Clark matter, evidence of the Benintende killing would have been admissible to establish intent to kill.

Evidence demonstrating that defendant had killed another prostitute and dumped her body in the same canal in which Clark’s body was found would have refuted defendant’s claim that he killed Clark while in a dissociative state, and supported an inference that defendant intended to kill Clark. (See People v.

Ewoldt, supra, 7 Cal.4th at p. 402 [“ ‘[T]he recurrence of a similar result. . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such

an act . . .’ ”, quoting 2 Wigmore, Evidence (Chadboume rev. ed. 1979) § 302, p. 241]; see also People v. Robbins (1988) 45 Cal.3d 867, 879-880 [248 Cal.Rptr. 172, 755 P.2d 355].) Further, the evidence was not more prejudicial than probative, because it did not encourage the jury to prejudge defendant’s case based upon extraneous or irrelevant considerations. (See People v. Zapien (1993) 4 Cal.4th 929, 958 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Defendant asserts the joinder prejudiced him because, absent joinder, there likely would have been no capital charges. (See People v.

Catlin, supra, 26 Cal.4th at p. 110 [prejudice may result from joinder where any one of the charges carries the death penalty or joinder of them turns the matter into a capital case].) If the cases had been severed,

section 190.2, subdivision (a)(3) would not have applied, and under

section 190.2, subdivision (a)(2), the possibility of a death sentence would have arisen only if the first case to be tried had been the Benintende case, and only if there had been a conviction in that case. (Cf. Williams v. Superior Court, supra, 36 Cal.3d at p. 454.) In view of the cross-admissibility of the evidence of the Clark homicide in the Benintende matter, however, conviction on the Benintende charges would have been likely even had the trials been severed. Accordingly, the joinder did not render the Clark offense a capital crime where otherwise it would not have been.

We thus find that gross unfairness did not result from the joinder. Defendant argues the trial court’s failure to instruct the jury it could not consider evidence of each murder as character evidence to show defendant’s propensity to commit the other murder contributed to the prejudice resulting from the joinder. He further asserts this instructional lapse constituted an independent violation of his rights to due process and a fair trial. (See Panzavecchia v. Wainwright (5th Cir. 1981) 658 F.2d 337, 341; see generally Spencer v.

Texas (1967) 385 U.S. 554, 561-563 [17 L.Ed.2d 606, 87 S.Ct. 648].) We have held a trial court has no “duty to furnish a limiting instruction on cross-admissible evidence in a trial of multiple crimes” on its own motion. (People v. Hawkins, supra, 10 Cal.4th at p. 942; see also People v. Sapp (2003) 31 Cal.4th 240, 281 [2 Cal.Rptr.3d 554, 73 P.3d 433]; People v.

Mendoza, supra, 24 Cal.4th at p. 163.) In the context of limiting instructions concerning evidence of other crimes, we have recognized a narrow exception to the general rule not requiring sua sponte instruction: an objection may not be required in the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie (1981) 30 Cal.3d 43, 64 [177 Cal.Rptr. 458, 634 P.2d 534]; see also People v.

Lang (1980) 49 Cal.3d 991, 1020 [264 Cal.Rptr. 386, 782 P.2d 627]; People v. Milner (1988) 45 Cal.3d 227, 251-252 [246 Cal.Rptr. 713, 753 P.2d 669].) Defendant contends this exception applies to the rule not requiring sua sponte instruction on the limited admissibility of cross-admissible evidence in joint trials. Assuming the exception applies, defendant would not benefit from it. The Benintende evidence was not a “dominant part” of the evidence concerning the Clark count.

Although the Clark evidence was a major part of the evidence related to the Benintende count, it was neither highly prejudicial nor minimally relevant. Defendant’s instructional claim thus fails. Defendant finally contends the joinder violated his Fifth Amendment right to testify on his own behalf in the Clark case while remaining silent in the Benintende case, his Sixth Amendment right to present a defense to the Benintende charges, and state and federal guarantees of equal protection of the laws (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7).

Because defendant forfeited each of these claims by failing to raise them at trial (see People v. Carpenter (1997) 15 Cal.4th 312, 362 [63 Cal.Rptr.2d 1, 935 P.2d 708]), we decline to address their merits. We note, however, that we previously have rejected an identical equal protection claim. (Ibid.) C.

Defendant’s absence from in-chambers hearings regarding juror excusáis Defendant claims his absence from several unreported in-chambers conferences regarding juror hardship excusáis violated his rights under the confrontation and due process clauses of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as his rights under see Penal Code sections 977 and 1043 and

article I,

section 15 of the California Constitution. At the commencement of the trial, the court agreed to provide the jurors with a hardship questionnaire prepared by defense counsel, who suggested some jurors could be eliminated by agreement of the parties based upon their answers to the questionnaire. In response to a question from the trial court regarding

section 190.9, defense counsel explained his view that the statute’s requirements would be satisfied if counsel and the court met informally off the record to discuss the questionnaires, but then put the results of their conference on the record. The prosecutor agreed. The court then asked defendant: “Mr. Rogers, is that procedure all right with you?” Defendant responded, “I don’t have an opinion, sir.” The court distributed the questionnaires to the first panel of jurors. After an in-chambers unreported conference which defendant did not attend, 10 prospective jurors were excused by stipulation of counsel.

The court repeated this process with each panel of jurors, eventually excusing 133 jurors based upon their responses to the hardship questionnaires and counsel’s stipulation. Defendant now contends his absence from the in-chambers unreported conferences at which his counsel stipulated to the hardship excusáis violated his state and federal rights to be present at all critical stages of his trial.

The federal law governing a defendant’s right to be present at trial is well established. “ ‘A criminal defendant’s right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution .... [Citations.] A defendant, however, “does not have a right to be present at every hearing held in the course of a trial.” [Citation.] A defendant’s presence is required if it “bears a reasonable and substantial relation to his full opportunity to defend against the charges.” [Citation.]’ ” (People v.

Lucero (2000) 23 Cal.4th 692, 716-717 [97 Cal.Rptr.2d 871, 3 P.3d 248]; see Kentucky v. Stincer (1987) 482 U.S. 730, 745 [96 L.Ed.2d 631, 107 S.Ct. 2658]; Snyder v. Massachusetts (1934) 291 U.S. 97, 105-106 [78 L.Ed. 674, 54 S.Ct. 330].) The standard under sections 977 and 1043 is similar. “ ‘[T]he accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him----[Citation.]’ [Citation.]” (People v. Ervin (2000) 22 Cal.4th 48, 74 [91 Cal.Rptr.2d 623, 990 P.2d 506]; see also People v.

Waidla (2000) 22 Cal.4th 690, 742 [94 Cal.Rptr.2d 396, 996 P.2d 46].) We previously have rejected claims of error based upon a defendant’s absence from discussions of juror hardship excusáis. (E.g., People v. Ervin, supra, 22 Cal.4th at pp. 72-74; People v. Hardy (1992) 2 Cal.4th 86, 178 [5 Cal.Rptr.2d 796, 825 P.2d 781].) We do so again here. As in Ervin, “[djefendant’s presence at counsels’ jury screening discussions . . . would have served little purpose” (People v.

Ervin, supra, 22 Cal.4th at p. 74), and he accordingly had no state statutory or federal constitutional right to attend those discussions. (Accord, Cohen v. Senkowski (2d Cir. 2002) 290 F.3d 485, 490 [no federal right to presence during discussion of hardship excuses].) Defendant contends the cases cited above do not govern here, because the juror questionnaires—and hence the in-chambers discussions—were not limited to the question of hardship. Although the discussions related to hardship were not reported, the questionnaires concerning this subject have been made part of the record.

Of the 133 prospective jurors of whom defendant complains, 20 gave answers that extended beyond hardship to areas of potential bias such as exposure to pretrial publicity, acquaintance with defendant or with Bakersfield law enforcement, or other matters. Defendant contends that, to the extent the prospective jurors’ answers on the questionnaires regarding hardship extended beyond that subject to other matters involving potential bias, we may infer the in-chambers discussions concerning those jurors also extended beyond the routine matter of hardship. We decline to engage in such speculation.

Rather, because the parties stated on the record that they would examine the questionnaires in chambers to determine whether there were any “obvious hardship cases that can simply be excused by agreement of all parties,” we presume that is what occurred. Defendant asserts his absence from the in-chambers discussions of hardship excuses prevented him from consulting with counsel, in violation of his Sixth Amendment right to the effective assistance of counsel. (See Geders v.

United States (1976) 425 U.S. 80, 88-91 [47 L.Ed.2d 592, 96 S.Ct. 1330] [trial court’s order prohibiting counsel from speaking with defendant during a 17-hour overnight recess during trial violated his Sixth Amendment rights].) Defendant forfeited this claim by failing to object in the trial court. Were we to reach the merits, we would find no Sixth Amendment violation, because the trial court did not prohibit defendant and his counsel from discussing hardship excuses or any other aspect of the trial. D. Asserted inadequacy of the record on appeal Defendant contends his rights under

section 190.9 and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution to a record adequate to permit meaningful appellate review were violated by the trial court’s failure to order that the in-chambers discussions regarding juror hardship be reported. Defendant contends an adequate record would demonstrate that the trial court abused its discretion and violated his constitutional rights by improperly granting hardship excuses. We are not persuaded.

It was defense counsel who initially suggested having off-the-record discussions of hardship questionnaires followed by on-the-record excusáis. The court and the prosecutor agreed. Accordingly, defendant waived any claim the trial court erred in failing to transcribe these proceedings (People v. Gaston (1978) 20 Cal.3d 476, 485 [143 Cal.Rptr. 205, 573 P.2d 423] [stipulation that no reporter’s transcript of portion of proceedings was needed waived complaint of inadequate record on appeal]; see also People v.

Cummings (1993) 4 Cal.4th 1233, 1333, fn. 70 [18 Cal.Rptr.2d 796, 850 P.2d 1]) and may not complain on appeal (People v. Mickey (1991) 54 Cal.3d 612, 667 [286 Cal.Rptr. 801, 818 P.2d 84] [failure to object in trial court forfeits claim of inadequate appellate record of juror excusáis]). In any event, state law entitles a defendant only to an appellate record “adequate to permit [him or her] to argue” the points raised in the appeal. (People v. Howard (1992) 1 Cal.4th 1132, 1165-1166 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Federal constitutional requirements are similar.

The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. (Griffin v. Illinois (1956) 351 U.S. 12, 16-20 [100 L.Ed. 891, 76 S.Ct. 585]; Draper v. Washington (1963) 372 U.S. 487, 495-496 [9 L.Ed.2d 899, 83 S.Ct. 774].) Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. (Stephens v.

Zant (5th Cir. 1980) 631 F.2d 397, 403, rehg. den. & opn. mod. (1981) 648 F.2d 446, cert. den. (1981) 454 U.S. 1035.) The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. (People v. Scott (1997) 15 Cal.4th 1188, 1203-1204 [65 Cal.Rptr.2d 240, 939 P.2d 354].) Defendant fails to do so here. Defendant contends a more complete record would permit him to show the trial court abused its discretion by improperly granting hardship excusáis, resulting in more than half the prospective jurors being excused for hardship.

Defendant asserts the unwarranted granting of hardship excusáis systematically excluded wage earners in violation of his Sixth and Fourteenth Amendment and state constitutional rights to an impartial jury drawn from a fair cross-section of the community. (Turner v. Murray (1986) 476 U.S. 28 [90 L.Ed.2d 27, 106 S.Ct. 1683] [impartial jury requirement of Sixth Amend.]; Duren v. Missouri (1979) 439 U.S. 357, 363-370 [58 L.Ed.2d 579, 99 S.Ct. 664] [fair cross-section requirement of Sixth Amend.]; People v. Wheeler (1978) 22 Cal.3d 258, 272 [148 Cal.Rptr. 890, 583 P.2d 748] [Sixth Amend. & art. I, § 16 of the Cal.

Const.]; see also People v. White (1954) 43 Cal.2d 740 [278 P.2d 9] [exclusion of wage earners].) He further contends allowing jurors too easily to opt out of serving on the present capital case resulted in a jury unconstitutionally skewed in favor of the death penalty, in violation of his Eighth Amendment right to a reliable penalty determination.

To establish a prima facie violation of the Sixth Amendment’s fair cross-section requirement, defendant would have to demonstrate: (1) the group allegedly excluded was a distinctive group in the community; (2) the representation of that group in the venire from which his jury was selected was not fair and reasonable in relation to the number of such persons in the community; and (3) the underrepresentation was due to systematic exclusion of that group in the jury selection process. (Duren v. Missouri, supra, 439 U.S. at p. 364; People v.

Stansbury (1993) 4 Cal.4th 1017, 1061 [17 Cal.Rptr.2d 174, 846 P.2d 756], revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318 [128 L.Ed.2d 293, 114 S.Ct. 1526].) He also would have to show he preserved the claim for appeal by objecting to the excusáis on fair cross-section grounds below. (See People v. Ervin, supra, 22 Cal.4th at p. 73; People v. Champion (1995) 9 Cal.4th 879, 906-907 [39 Cal.Rptr.2d 547, 891 P.2d 93]; People v. Mickey, supra, 54 Cal.3d at pp. 663-665.) Defendant is unable to make either showing.

The questionnaires, along with the clerk’s minutes of the proceedings and the on-the-record excusáis of 133 of the prospective jurors whose hardship questionnaires were discussed in chambers, have been made part of the record on appeal. This record is adequate to establish that defense counsel stipulated or agreed to all but one of these 133 excusáis. The record thus is adequate to show that defendant has waived any claim of error—including his federal constitutional claims—predicated on these 132 excusáis. (See People v. Ervin, supra, 22 Cal.4th at p. 73; People v.

Champion, supra, 9 Cal.4th at pp. 906-907; People v. Mickey, supra, 54 Cal.3d at pp. 663-665.) As for the one prospective juror whom he did not stipulate to excuse— Carol K.—defendant fails to demonstrate how a reporter’s transcript of the in-chambers discussions would aid him in establishing a fair cross-section violation. The exclusion of one prospective juror from the venire—even if erroneous—could not demonstrate a distinctive group was systematically or regularly excluded, resulting in a venire that did not fairly represent the community.

What we have said above holds true as well for defendant’s argument that the lack of an adequate record has impaired his ability to present his Sixth-Amendment-impartial-jury and Eighth-Amendment-reliability claims. The premise of these claims is that the improper granting of hardship excusáis resulted in a “volunteer” jury. Defendant, however, forfeited any claim of an inadequate record by agreeing to hold discussions of juror hardship off the record, and in any event the record is adequate to show defendant stipulated or agreed to every off-the-record excusal except that of Carol K.

Finally, the excusal of that prospective juror—even if improper— would not establish that the jury venire was composed of volunteers in violation of defendant’s federal constitutional rights. Defendant contends the voir dire of additional jurors that occurred on the record, after the in-chambers hardship discussions, lends support to the inference that systematic exclusion occurred during the off-the-record discussions of hardship excuses. The record, however, again shows defendant stipulated or consented to 131 of the 137 hardship excusáis that were granted during on-the-record voir dire.

As for the remaining six excusáis of which defendant complains, they do not establish a pattern of overly generously granting hardship excusáis. Rather, the trial court “used its practical experience and made pragmatic evaluations” (People v. Mickey, supra, 54 Cal.3d at p. 666) of the hardship the prospective jurors would experience should they be required to serve during a lengthy trial. The court did not excuse the six jurors simply because they did not wish to serve, but rather evaluated each potential juror’s particular situation before excusing him or her.

The on-the-record voir dire of these jurors lends no support to defendant’s claim that a more complete record would enable him to demonstrate lack of a fair cross-section or other error. Defendant further claims the trial court’s failure to transcribe the in-chambers discussions in violation of

section 190.9 is reversible per se, and urges us to reconsider our decision in People v. Cummings, supra, 4 Cal.4th at page 1333, footnote 70, rejecting such a claim. We decline to do so. Defendant next contends the trial court’s failure to adhere to the requirements of

section 190.9 arbitrarily denied him a state statutory entitlement in violation of his Fourteenth Amendment right to due process of law. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 100 S.Ct. 2227].) As we observed above, this claim was forfeited by defendant’s agreement to the procedure followed.

Defendant finally asserts that “if (as it appears) defense counsel improperly stipulated to systematically and intentionally exclude wage earners from jury service ... he may have been acting as ineffective counsel,” which prejudiced defendant by denying him the right to a representative jury under the Sixth Amendment, a fair trial under the Fifth and Fourteenth Amendments, and a reliable verdict under the Eighth Amendment. Defendant fails to show a reasonable probability that, but for counsel’s errors, the result of the proceedings would have been different. (See Strickland v.

Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052].) Here, nothing in the record suggests it is reasonably probable a jury that included more wage earners would have found defendant did not commit the crimes charged against him or would have voted to sentence him to life imprisonment without the possibility of parole rather than death. (See Thomas v.

Borg (9th Cir. 1998) 159 F.3d 1147, 1152 [counsel’s failure to raise and preserve a fair cross-section claim at trial did not prejudice defendant, because “the evidence, both testimonial and physical . . . was so overwhelming that it is hard to believe that any reasonable juror, black or white, would have voted to acquit him”]; see also People v.

Freeman (1994) 8 Cal.4th 450, 487 [34 Cal.Rptr.2d 558, 882 P.2d 249] [defendant failed to show prejudice from counsel’s failure to employ peremptory challenges to excuse prospective jurors, because “[nothing in the record suggests ... it is reasonably probable a different jury would have been more favorably disposed towards defendant”].) E. Asserted erroneous admission of evidence Over defendant’s objection that the evidence was irrelevant and collateral, and impermissibly demonstrated propensity under

section 1101 of the Evidence Code, the trial court admitted rebuttal evidence regarding defendant’s brief termination from the sheriff’s department in 1983 as a result of a complaint made by a prostitute. The prosecutor argued the evidence showed defendant had a motive to kill Clark—to keep her from reporting him,

an act that could result in his termination—and thus rebutted defense testimony suggesting defendant killed Clark in an emotional state brought on by her taunts. Lieutenant Paul Kent testified that in February 1983, while serving as a sergeant in the internal affairs division of the Kern County Sheriff’s Department, he investigated a complaint against defendant made by a prostitute named Ellen Martinez. As a result of the investigation, defendant was terminated from the department, but he appealed and was reinstated.

Investigator Hodgson read into the record a portion of the transcript of the police interview of defendant conducted after his arrest for the Clark homicide. In response to a question concerning the Martinez incident, defendant stated: “There for awhile I was real pissed at her, but you know, I got to a point where I—I just—I never believed a whore ...[][]... That hearing just—it just changed my outlook, I guess.” Defendant felt “done wrong by” Martinez.

Clark did not remind him of Martinez, except that “she’s a whore.” Defendant contends the evidence of his firing and reinstatement and of the comments he made about those events was inadmissible under subdivision (

a) of

section 1101 of the Evidence Code, because its sole purpose was to show his propensity to abuse prostitutes, and that in any event it should have been excluded as more prejudicial than probative under Evidence Code

section 352. He asserts the admission of the evidence violated both state law and his right to due process under the Fourteenth Amendment to the United States Constitution, warranting reversal of his convictions for the murders of Clark and Benintende. The trial court found the evidence admissible under

section 1101 of the Evidence Code. We find no error in the trial court’s ruling.

Section 1101 declares that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) But “[n]othing 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 motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. . .) other than his or her disposition to commit such

an act.” (Evid. Code, § 1101, subd. (b); see also People v. Catlin, supra, 26 Cal.4th at pp. 145-146.) We review for abuse of discretion a trial court’s ruling under

section 1101. (People v. Roldan (2005) 35 Cal.4th 646, 705 [27 Cal.Rptr.3d 360, 110 P.3d 289].) Here, the trial court admitted the evidence of defendant’s firing and reinstatement and his comments about those events on the theory that it was relevant to defendant’s motive in killing Clark. We agree. The evidence tended to show defendant had a reason to fear the consequences of any report Clark might make. It thus was relevant to motive, and therefore inferentially relevant to the disputed issues of intent, premeditation, and deliberation. (See People v.

Roldan, supra, 35 Cal.4th at p. 707 [“evidence of motive makes the crime understandable and renders the inferences regarding intent more reasonable”]; see also People v. Heishman (1988) 45 Cal.3d 147, 167-171 [246 Cal.Rptr. 673, 753 P.2d 629].) Nor did the trial court abuse its discretion in ruling that the evidence was admissible under Evidence Code

section 352 because it was not more prejudicial than probative. The evidence was probative of motive, and had no prejudicial effect. At the guilt phase, the jury heard only that defendant had been briefly terminated, and then rehired, as a result of Martinez’s complaint. The jury did not hear the details of the complaint until the penalty phase. Because defendant was reinstated, the jury heard no evidence suggesting that Martinez’s charges were true.

Defendant contends his own statements during police interrogation—for example, that after the Martinez ordeal he “never believed a whore” and that the incident “changed [his] outlook”—implied he was hostile to prostitutes and therefore the admission of these statements was highly prejudicial. We disagree. Evidence is prejudicial within the meaning of Evidence Code

section 352 if it encourages the jury to prejudge defendant’s case based upon extraneous or irrelevant considerations. (See People v. Zapien, supra, 4 Cal.4th at p. 958.) The evidence here did not do so. Rather, defendant’s comments suggesting he believed all prostitutes were liars and were not to be trusted raised a permissible inference that he feared a report by Clark would be overblown. Relying on People v.

Alcala (1984) 36 Cal.3d 604 [205 Cal.Rptr. 775, 685 P.2d 1126], defendant argues the evidence was inadmissible because his motive for killing Clark—to prevent her from turning him in—was obvious, and because the evidence was cumulative of much more direct evidence of motive: defendant’s statements to the authorities that he killed Clark because he feared she would report him. In Alcala, the defendant was convicted of kidnapping and killing a young girl. We held evidence of prior crimes against young girls inadmissible to prove the defendant’s motive.

We noted: “Common sense indicates that one who commits a felony upon another wishes to avoid its detection. That may lead him to the calculated murder of his victim.” (People v. Alcala, supra, 36 Cal.3d at p. 634.) We then rejected the prosecution’s proffered theory that the prior-crimes evidence was admissible to establish a motive to eliminate the victim as a witness because those crimes might result in more severe punishment for the current offense.

We concluded that if evidence of past offenses were admissible on that basis, “one’s criminal past could always be introduced against him when he was accused of premeditated murder in the course of a subsequent offense. The accused’s mere status as an ex-criminal would place him under an evidentiary disability not shared by first offenders.

The prejudicial effect of the prior-crimes revelations would vastly outweigh their slight and speculative probative value.” (Id. at p. 635.) We thus concluded that because “the issue of witness elimination was before the jury in any event[,] speculation that defendant was also worried about the implications of his past record is remote and cumulative.” (Ibid.) Alcala does not govern here. As the discussion above makes clear, in Alcala we were concerned with the implications of allowing admission of evidence of past crimes for the sole purpose of showing the defendant feared punishment as a repeat offender.

We reasoned such a policy would be unfair to repeat offenders because the highly prejudicial nature of prior-crimes evidence would make it difficult for such offenders to receive a fair trial, whereas the probative value of the evidence was slight. Here, the evidence of defendant’s firing and reinstatement did not suggest defendant was involved in any criminal activity; thus Alcala’s concerns about the highly prejudicial nature of prior-crimes evidence are not implicated.

Nor was the evidence offered here for the impermissible and speculative purpose of suggesting defendant “was worried about the implications of his past criminal record.” Rather, it was offered for the specific purpose of showing defendant feared what would happen to him if Clark were allowed to report him (even if, as he claimed in his statement to the authorities, he initially shot her accidentally). As such, the evidence was highly probative. Accordingly, the trial court did not abuse its discretion in admitting evidence of defendant’s firing and reinstatement, as well as his taped comments.

Defendant finally contends he was prejudiced because the trial court gave no instruction limiting, to proper purposes, the jury’s use of the evidence of his firing and reinstatement and his taped comments. A trial court generally is not obligated to provide such an instruction on its own motion. (People v. Collie, supra, 30 Cal.3d at p. 64; People v.

Ochoa, supra, 19 Cal.4th at p. 411.) As noted above, we have recognized a narrow exception to this rule in the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie, supra, 30 Cal.3d at p. 64; see also People v. Milner, supra, 45 Cal.3d at pp. 251-252.) This exception was inapplicable here. As explained, the evidence did not establish any past offense and was not prejudicial.

The trial court was not required to instruct sua sponte on the limited admissibility of the evidence. F. Asserted erroneous jury instructions—guilt phase Defendant contends the trial court failed sua sponte to instruct, or misinstracted, on several lesser included offenses and on other relevant principles, entitling him to reversal of his convictions for the Clark and Benintende murders.

As explained below, we agree that the trial court erred by giving incomplete instructions on second degree murder, giving an incorrect instruction on the principle of concurrence of act and intent, and failing to instruct on the sufficiency of circumstantial evidence, but conclude these errors were harmless. We find defendant’s additional claims of prejudicial instructional error at the guilt phase to be without merit. 1.

Adequacy of the record As a preliminary matter, defendant contends the trial court’s failure to transcribe the in-chambers discussions of guilt phase jury instructions has deprived him of meaningful appellate review of his jury instruction claims. We disagree. It appears that all discussions of guilt phase jury instructions took place at an unreported conference on March 14, 1988. We thus have no transcript of jury instruction discussions. A

summary of the conference, however, was placed on the record. As relevant here, the trial court stated: (1) defense counsel had requested CALJIC No. 8.75 (jury may return partial verdict— homicide), which the trial court had refused; (2) counsel agreed instructions on involuntary manslaughter need not be given; and (3) defense counsel “has no Geiger counts; that is to say, no lesser and includeds that fall within the purview of People versus Geiger at this time.” When the trial court asked defense counsel whether the

summary was correct, counsel stated: “True and accurate, your Honor. Well stated.” In addition, the clerk’s transcript contains copies of all the printed instructions requested but not given. The only instruction requested in writing by defendant and not given was CALJIC No. 8.75. Defense counsel did not object to the trial court conducting discussions of proposed jury instructions off the record. When the trial court later went back on the record to summarize the proceedings that had occurred in chambers, defense counsel agreed the court’s

summary was “true and accurate.” Counsel’s failure to object to the procedure forfeits any claim that the record is inadequate. (People v. Gaston, supra, 20 Cal.3d at p. 485; see also People v. Cummings, supra, 4 Cal.4th at p. 1333, fn. 70; People v. Mickey, supra, 54 Cal.3d at p. 667.) The case of People v. Young (2005) 34 Cal.4th 1149 [24 Cal.Rptr.3d 112, 105 P.3d 487], upon which defendant relies, is not controlling.

There, we presumed instructional errors were preserved for review because portions of the record of jury instruction discussions were missing, with no indication that the lapse was attributable to the defendant or his counsel. Here, by contrast, defendant’s counsel did not object to having jury instruction discussions off the record. Moreover, as shown above, the record allows us to determine which jury instructions were requested and which objections were made. It therefore is adequate to permit meaningful review of defendant’s jury instruction claims. 2.

Failure to instruct on the definition of second degree murder with express malice a. Error in omitting CALJIC No. 8.30 We agree with defendant’s contention that the trial court erred in failing to instruct the jury on the definition of second degree murder committed with express malice. Regarding the Clark charge, the court gave the jury the options of convicting defendant of first de

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