THE PEOPLE, Plaintiff and Respondent, v. BOB RUSSELL WILLIAMS, JR., Defendant and Appellant, 40 Cal. 4th 287

Opinion MORENO, J. Defendant Bob Russell Williams, Jr., pleaded guilty to one count of murder. (Pen. Code, § 187.) He admitted the special circumstances of committing the murder in the course of a rape (§ 190.2, subd. (a)(17)(C)) and of a burglary (id., subd. (a)(17)(G)), but did not admit to the charged sodomy special circumstance. He also pleaded guilty to five counts of burglary and one count of attempted escape. At the penalty phase, the jury fixed the penalty for the murder at death. The trial court denied defendant’s motion to modify the death verdict (§ 190.4, subd. (e)) and sentenced defendant to death.

Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm this judgment in its entirety. I. Statement of Facts A. Prosecution Evidence After defendant entered the above mentioned plea on June 4, 1996, the penalty phase trial commenced. The circumstances of defendant’s rape and murder of Mary Breck were the centerpiece of the prosecution’s case. That evidence, based largely on statements made by defendant after his arrest, discloses the following circumstances. On October 27, 1994, defendant noticed the Breck residence during a morning walk along a canal bank that ran behind the residence.

He entered through the unlocked front door, heard a hairdryer blowing in another room, and stole a wallet from a purse lying on the kitchen counter. He emptied the wallet and threw it in the trash in a park, keeping the credit cards. He then committed a burglary of the Elliott household nearby. Brandie Bamden, the daughter of the owners of the house, who was staying there with her husband, returned to the house around 10:30 a.m., while defendant was still in the house, noticed various books of matches on the floor, and heard someone else pick up the telephone when she was about to call her mother.

She promptly left the house and called the police. The police arrived on the scene and Joe Elliott, the homeowner, eventually confirmed that a handgun was missing from the bedroom. Other guns and a black duffel bag containing fishing tackle and a knife were also missing but were found a short distance from the Elliott house. Defendant lived at the time with his girlfriend, Tina Meagher, with her mother, Deanna Meagher, and with Tina’s brother. Deanna Meagher received a phone call at work about some burglaries in the area and returned home to talk to defendant.

She made clear to him that she “would call the authorities because she wasn’t going to put up with anything.” She pretended to call a police detective whose card she had and to leave a message for him. This upset defendant. According to defendant’s testimony and his statements to Detective Legg, who interviewed him shortly after his arrest, he took her to mean that she suspected him of being involved in the burglaries and believed the police were “going to get him.” After this brief discussion, defendant left, stating that he was going to check on a job.

According to his statement to Detective Legg, defendant left the Meagher house around 9:30 a.m. and returned to the Breck house with the credit cards he had stolen from the house the previous day. He noted the absence of a white pickup truck that the cards he had stolen informed him was owned by the residents of that address. Defendant knocked, and Mary Breck came to the door wearing a green nightgown. She returned wearing a sweater. He gave her the missing credit cards and she gave him $5. Breck said that her driver’s license was missing and she would like to see that returned as well.

Defendant walked back to the park and retrieved the license from the trash can where he had disposed of it the day before. When defendant returned, Breck again answered the door. He pushed her down as hard as he could, made her crawl into the living room, and tied her hands with a telephone cord. She pleaded with him not to be hurt and said she would do anything, whereupon defendant tied a bandana around her mouth to keep her quiet. He pulled her into the bedroom, and cut her clothes off with a knife he had been carrying, in order to embarrass her.

Defendant testified that he did not cut Breck with a knife and had no explanation for photographs showing that Breck’s hands were cut. According to his statement to Detective Legg, once Breck lay naked on the floor he “noticed her pussy,” which excited him, and he proceeded to pull down his pants and forcibly rape her. When asked why he did so, he said that he “just wanted to hurt her.” Defendant related to Detective Legg that he did not think the rape had hurt Breck, so he sodomized her “two or three times.” Defendant fondled and licked her breasts, and rubbed his penis on them.

When he ejaculated, his penis was not inserted. Defendant then blindfolded Breck by tying strips of pillowcase around her eyes. He took a belt that was lying on a chair in the bedroom and put it around her neck, pulling on it for five minutes until his muscles could not pull anymore. He believed he had killed her but then heard gurgling sounds in the bedroom. He returned to the bedroom, and strangled her with the belt as hard as he could for “what seemed like another 15 minutes” until he was certain she was dead.

He then dragged her body outside because he wanted “to look around the residence for things to steal [and] did not want to hear the gurgling noise again.” Defendant took a portable television, a camcorder, and the keys to a Lexus parked in the garage. Breck’s body was discovered around 2:00 p.m. by Susan Reese, Breck’s sister-in-law. Blood samples taken on the scene were consistent with the victim and not with defendant. Tests of Breck’s body for semen were inconclusive.

Detective Legg arranged to have a “sex kit” done on defendant, and a penile swab test tested negative for glycogenetic epithelial cells, an indicator of vaginal contact, as well as negative for fecal material. Defendant testified that he took fishing poles from the victim’s garage, as well as the car.

According to his testimony, he took these items because he “realized something wrong [had] happened, and [he] just needed to get away from people . . . and figure out what to do.” Defendant testified that he drove back to the Meagher house, where he picked up his clothes, a gear bag and the .38-caliber special handgun he had stolen from the Elliott house. Defendant left Bakersfield for the Kern River canyon, where he fished for several hours. After defendant resumed the drive, the stolen Lexus was spotted by the California Highway Patrol, and, after a high-speed chase, defendant was apprehended.

Also part of the prosecution’s case was the victim impact evidence concerning the effects of Mary Breck’s murder on her husband and two children. The entire family went through bouts of depression. Breck’s son, a high school senior and an exceptional student, stopped attending classes and failed to graduate from high school. Her daughter was sleeping 15 to 18 hours a day and was having nightmares.

Steven Breck testified to his difficulty coping with the death of his wife, with whom he had had a 26-year relationship, whom he described as his “one and only love.” Breck’s brother and niece also testified about the pain of losing her. B. Defense Evidence The defense case in mitigation consisted principally of evidence of the abuse defendant suffered as a child, primarily from his stepmother, and of his own mother’s neglect. Six months after defendant was bom, his parents separated.

According to the testimony of his mother, Jennifer McNees, defendant’s father Bob Williams, Sr., was abusive to her in the presence of the children. He retained custody of defendant in Louisiana, and defendant was cared for by his paternal grandparents and great-grandmother. When defendant was five years old, he went to live with his father and stepmother after his father remarried. His stepmother had a son one and one-half years older than defendant. Soon thereafter, they moved to Virginia.

Joan Nelson, who was a social worker in Roanoke County, Virginia, helped to document the abuse of defendant, which led to his placement in foster care in 1983 when he was seven. The investigation uncovered a pattern of abuse at the hands of defendant’s stepmother. This included locking defendant out of the house, denying him water, forcing him to eat hot peppers if he lied, cutting his clothes off of him, and rubbing his face in urine when he urinated on the floor.

Defendant had reported to school authorities in Louisiana that his stepmother had hit him with her fist, a report confirmed by an interview with the stepmother. Nelson observed semicircular braises on defendant’s buttocks consistent with beatings with a folded belt.

Defendant testified and had stated in a 1983 interview that he had been confined to the basement, was often fed only peanut butter sandwiches or not given food, and that he had to sometimes eat food placed on the floor “like a dog.” According to the defendant’s testimony at trial, if he told his parents a lie, he would have to eat a teaspoon of Tabasco sauce, and his stepmother changed the rule to eating the whole bottle. He was made to take cold baths. Defendant also testified that his stepmother had sexually abused him, that she touched his penis and had him touch her private parts. Dr.

Eugene Couture, a clinical psychologist who examined defendant, testified defendant had told him that his stepmother made him suckle at her breast as punishment and was made to conduct oral sex on her. Defendant’s mother also testified that he had admitted to her sometime prior to the murder that his stepmother had sexually abused him, although he did not go into details. Defendant’s stepmother was charged with felony child abuse and pled guilty to a misdemeanor offense of child neglect in 1983.

Defendant was placed in a foster home, and his foster parents reported that during visits his stepmother was “hateful” to him, and that his father kept him waiting all day for a visit. Dr. Carol Logan, testified that she conducted psychological testing on defendant while he was in foster care, which showed that he had an above-average IQ of 119. But she concluded that defendant had suffered from serious emotional abuse to which he responded with “aggressive acting out.” When his foster parents moved out of state later in 1983, defendant returned to his father and stepmother’s house.

According to defendant, the abuse began again. On one occasion defendant’s stepmother ordered him to strip naked and tied him to the bed because he could not spell the word “trespass,” then went to a ballgame with her son. Social worker Ellen Groff, who had worked for the Roanoke Department of Social Services, testified that defendant was found around this time at a shopping center five miles from his home with a black eye that had been inflicted a week earlier.

He had reported to her that after discovering blood on his shirt, the result of having been nipped in the ear by a puppy, his stepmother ordered him to take his clothes off, tied him in bed by his feet with a rope, and threatened to kill him if he left. He had nonetheless escaped. Defendant was again removed from his home and, after briefly being placed again in foster care, was sent to California to live with his mother. Chali Houghteling, defendant’s half sister, testified that her mother did not try to help defendant with his problems and had tried to give defendant to a neighbor.

Defendant got into fights and did not pay attention in school. Defendant’s mother called the police when it was found defendant had “jammed” his half sister Stacey Lorraine with a pair of scissors, leaving a slight mark on her hand. His mother expected to pick him up at juvenile hall later that night, but instead he spent over a year in the Children’s Home of Stockton. When he returned to his mother’s home, she had remarried. In November of 1988 when defendant was 12, he took a bicycle, a fishing pole, some military medals and a camera belonging to his mother’s husband and ran away from home.

He eventually returned home and ran away again. This time his mother refused to allow him to return to the house and told the police to take him into custody. He spent the next five years in group homes and juvenile hall. His mother seldom visited him. In 1993-1994, while attending his senior year in high school, he lived with his younger half brother Timmy in the house his mother had formerly occupied in Bakersfield. Timmy testified that defendant and he were best friends and that defendant looked after him. They lived there without adult supervision except for visits by defendant’s older sister.

Various mental health professionals testified on defendant’s behalf. Dr. Eugene Couture testified that defendant was competent to stand trial and legally sane, and that there was no evidence of brain damage. He opined that the most appropriate diagnosis for defendant was antisocial personality disorder, a disorder characterized by a “pervasive pattern of disregard and violation of the rights of others.” People diagnosed with this disorder typically were abused as children. Defendant also presented various character evidence. Defendant met Tina Meagher at a dance and shortly thereafter Tina became pregnant by him.

Their son was bom March 15, 1995, after defendant was jailed for the Breck murder. Tina testified that defendant before the murder had expressed the desire that they raise the baby together and would attend obstetrician’s appointments with her. Defendant did not physically or sexually abuse Tina. She described him as “very polite, kind, nice.” Defendant also got involved in country western dancing and bull riding, and witnesses who participated with him in those activities testified to having a good opinion of him.

Michael Chambers, a cellmate of defendant in early 1995, while defendant was awaiting trial, testified that defendant showed remorse for his crimes. Defendant himself testified that when committing the murder, he had thoughts of what his stepmother had done to him, and was reacting to those thoughts. Defendant testified that he was “real angry” with himself and “sorry.” II. Discussion Because defendant pleaded guilty and does not contest the validity of that plea, all of his claims pertain to the penalty phase of the trial. A.

Failure to Appoint Keenan Counsel Defendant claims that the trial court’s revocation of the appointment of cocounsel, also known as Keenan counsel, constituted error. (Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108] (Keenan).) 1. Factual Background Defendant’s previous counsel, Kyle Humphrey, moved on December 15, 1994, to have Larry Fields appointed as Keenan counsel. Humphrey, in his declaration, emphasized that this was a capital case and there would be an “enormous amount of legal services involved” in the preparation of motions for the guilt and penalty phases.

The motion was granted and Fields was appointed cocounsel. On July 12, 1995, Humphrey and Fields filed a motion to be relieved as counsel on the grounds of conflict of interest due to prior representation of a potential witness. The motion was granted on July 14, 1995, by Judge Jerold Turner. At the same time Judge Turner appointed in their places Dominic Eyherabide as lead counsel and Michael Dellastritto as cocounsel. During a hearing on a motion to continue the trial date, Judge Oberholzer noted the lack of any request for cocounsel on Eyherabide’s part or any affidavit in support of such request pursuant to

section 987, subdivision (d), and asked for such documentation. Judge Oberholzer ultimately denied the request for Keenan counsel. He stated that he did not “find anything sufficiently complex" that would warrant appointment of cocounsel.

The court noted that the guilt phase would “not be particularly involved” because of defendant’s confession, and that counsel’s efforts “have to be directed to the penalty phase.” Counsel responded that the guilt phase might become more involved due to potential mental state defenses, and that in any case the penalty phase would be extensive, in part due to the prosecution’s litigation of defendant’s past criminal activity. The trial court expressed the view that much of the required preparation could be done by an investigator rather than by second counsel and denied the motion. 2.

Applicable Law In Keenan, supra, 31 Cal.3d 424, 432, we explicitly recognized that a trial court may under some circumstances abuse its discretion by failing to appoint second counsel in a capital case. Keenan was in

part codified in

section 987, subdivision (d), which states: “In a capital case, the court may appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed. Any affidavit filed with the court shall be confidential and privileged. The court shall appoint a second attorney when it is convinced by the reasons stated in the affidavit that the appointment is necessary to provide the defendant with effective representation.

If the request is denied, the court shall state on the record its reasons for denial of the request.” Defendant contends the trial court erred in revisiting and overturning the decision of a previous judge to authorize Keenan counsel. (See People v.

Riva (2003) 112 Cal.App.4th 981, 991 [5 Cal.Rptr.3d 649] [generally one trial judge may not overrule another one].) But even if Judge Oberholzer exceeded his jurisdiction in revoking the appointment of Keenan counsel, such error is not a basis for reversing the judgment. “The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution. (People v.

Jackson (1980) 28 Cal.3d 264, 286-288 [168 Cal.Rptr. 603, 618 P.2d 149]; Keenan[, supra,] 31 Cal.3d [at pp.] 428-430 [180 Cal.Rptr.3d 439, 640 P.3d 108].) Thus, the error, if any, . . . must be judged under the standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243], i.e., whether it is ‘reasonably probable’ a result more favorable to the defendant would have been reached had the error not occurred.” (People v.

Clark (1993) 5 Cal.4th 950, 997, fn. 22 [22 Cal.Rptr.2d 689, 857 P.2d 1099].) Defendant claims that the trial court’s action in revoking appointment of Keenan counsel was in excess of its jurisdiction and was structural error, whereas if the trial court had merely abused its discretion—for example, if the first judge to consider the request had incorrectly determined that Keenan counsel was not warranted—harmless error analysis would apply.

But the fact that the trial court allegedly exceeded its jurisdiction, rather than abused its discretion does not change the fact that it is subject to harmless error analysis under the Watson standard. Arizona v. Fulminante (1991) 499 U.S. 279, 310 [113 L.Ed.2d 302, 111 S.Ct. 1246], cited by defendant, does not support his position.

That case recognizes certain structural errors not subject to harmless error analysis, such as the total deprivation of the right to counsel, the exclusion of members of a race from the grand jury, denial of the right to self-representation at trial, or denial of a public trial. “Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. ‘Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’ ” (Ibid.) But defendant fails to explain why the erroneous deprivation of Keenan counsel that results from excess of jurisdiction as opposed to abuse of discretion should be considered structural error requiring reversal.

We will therefore review the revocation of Keenan counsel for prejudice under Watson’s “reasonably probable” standard. Defendant claims two different types of prejudice. First, he contends that defense counsel pressured him to plead guilty because the lack of resources would have made it virtually impossible for counsel to conduct both the guilt and penalty phases. Although the evidence that defendant committed the murder is overwhelming, defendant contends that there were meritorious mental state defenses that might have lessened his culpability at the guilt phase. The record does not support defendant’s claim.

Prior to accepting defendant’s guilty plea, the prosecutor, District Attorney Edward Jagels, had a colloquy with Defense Counsel Eyherabide. The prosecutor asked whether “you believe that in entering this plea you may be gaining a tactical advantage with regard to the penalty phase of the trial?” Counsel responded: “Yes, ... it’s for tactical reasons, yes. . . .

We’re doing it because we think it’s the best interest [from a] tactical standpoint and because he’s guilty.” The prosecutor then asked if counsel was of the opinion ”as an experienced attorney that based on the strength of the trial . . . your client will be convicted of the offense of [sz'c] which he’s pleading guilty?” Counsel responded, “Yes I do.” Moreover, counsel’s confidence that his client would have been convicted at the guilt and special circumstance phases is well supported by the evidentiary record.

Counsel apparently believed that defendant had little to gain from making the prosecutor prove his guilt, and that there was some tactical advantage in gaining sympathy for his client and taking the focus to some extent away from defendant’s crime by proceeding directly to the penalty phase. Although the strategy ultimately was unsuccessful, we cannot say that it was an unreasonable decision. More importantly, nothing in the present record suggests that this strategic decision would have been altered had defendant been permitted a second attorney.

Defendant also claims that the lack of Keenan counsel hampered his ability to mount a penalty phase defense. Again, the record does not support his contention. Rather it shows that counsel presented an impressive defense at the penalty phase, one that included extensive evidence of defendant’s physical and emotional abuse at the hands of his stepmother, testimony of a number of mental health professionals who had treated defendant, as well as the testimony of friends and family regarding defendant’s redeeming qualities and remorse for the crime. Defendant does not allege otherwise except in conclusory terms.

We therefore conclude that even if denial of Keenan counsel was error, it was not prejudicial. B. Inadequate Investigative Funds Defendant contends there was inadequate provision of investigative funds. The facts are these. On January 17, 1996, counsel requested funds to hire Pat McGregor, an investigator specializing in penalty phase preparation. He represented that she was willing to work for $35 per hour, which was higher than the $20 per hour standard rate for investigators in Kern County at the time.

The trial court, again Judge Oberholzer, reluctantly agreed to compensation at the higher rate because the case was coming to trial shortly and because there would be only one attorney on the case. The trial court ordered a total of $7,000 in investigative funds, some of which had already been allocated to an investigator hired by the previous counsel, leaving a balance of approximately $4,375.

On April 3, 1996, when counsel submitted a bill for McGregor of $507, Judge Oberholzer apparently changed his mind, determining that there was no evidence of special expertise that would justify the higher $35-per-hour rate, and that McGregor would henceforth be compensated at $20 an hour. Counsel offered to speak with McGregor about her willingness to work at the lower rate but apparently she stopped work on the case. The next day the trial court authorized expenses for Counsel Eyherabide himself to travel to Oregon to interview witnesses.

Later, Joe Serrano did some investigative work, primarily the service of subpoenas and interviews with jurors for the new trial motion discussed below, for $20 per hour for a total of approximately $1,610. The balance of the authorized investigative funds went unspent. Defendant contends that the trial court’s payment rate of $20 an hour made it impossible to hire a competent death penalty specialist.

He claims that this low rate, combined with the lack of Keenan counsel, prejudicially hampered his counsel’s ability to uncover and present mitigating evidence at the penalty phase, and that this violated his right to counsel, due process, equal protection and a reliable penalty determination. The right to competent counsel under the federal and state Constitutions includes the right to “reasonably necessary ancillary defense services.” (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319 [204 Cal.Rptr. 165, 682 P.2d 360].)

Section 987.9, subdivision (

a) provides among other things that upon the proper showing, funds will be provided to indigent capital defendants for “payment of investigators, experts, and others for the preparation or presentation of the defense.” The trial court is to rule on the reasonableness of the request and “shall be guided by the need to provide a complete and full defense for the defendant.” (Ibid.) We have held that failure to seek pretrial investigative funds pursuant to

section 987.9 was one indication that counsel had failed to adequately investigate possible defenses, requiring reversal in its entirety of a capital judgment. (In re Jones (1996) 13 Cal.4th 552, 565 [54 Cal.Rptr.2d 52, 917 P.2d 1175].) Even if it were true that the unreasonable denial of

section 987.9 funds leading to an inadequate investigation and preparation could constitute reversible error under some circumstances, a question we do not decide, no such error is evident from the present record. There is no showing that $7,000 for conducting the investigation, paid at a $20 per hour rate, was inadequate, or that it was impossible to hire a competent specialist at that rate. In other words, defendant fails to show that the trial court acted unreasonably pursuant to

section 987.9.

Moreover, inasmuch as defendant’s claim can be understood as one for ineffective assistance of counsel, based on counsel’s failure to adequately investigate available defenses because he was unable to do so, it is without merit. “To find ineffective assistance of counsel a court must determine that counsel’s performance was deficient, falling ' “below an objective standard of reasonableness . . . under prevailing professional norms” ’ [citations], and that there is a reasonable probability that ‘ “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (People v.

Kaurish (1990) 52 Cal.3d 648, 677 [276 Cal.Rptr. 788, 802 P.2d 278].) Here, counsel himself conducted extensive witness interviews and, as discussed above, mounted a substantial penalty phase defense. Defendant contends that additional witnesses could have been produced to testify to the abuse defendant suffered as a child.

But given the quality and quantity of witnesses testifying for the defense, there is no showing on this record that the penalty phase defense mounted on defendant’s behalf fell below professional norms, or that, had more witnesses been produced, it is reasonably probable a more favorable verdict would have resulted. We therefore deny this claim. C. Prosecutorial Failure to Give Notice of Aggravating Evidence Pursuant to

Section 190.3 Defendant contends the prosecution failed to provide notice pursuant to the fourth paragraph of

section 190.3, which provides: “Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.

Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.” Defendant contends that the prosecution in fact affirmatively misled defendant regarding the evidence to be presented, contrary not only to statute but to due process under the United States Constitution, and that therefore reversal is required. (See Sheppard v.

Rees (9th Cir. 1989) 909 F.2d 1234.) Specifically, defendant contends that the prosecution argued that defendant committed the murder with premeditation and deliberation, notwithstanding the fact that defense counsel made clear that defendant was pleading guilty to the murder on a felony-murder theory, and that the prosecution had acknowledged this felony-murder theory in the plea colloquy.

Defendant was asked to plead, in count one, that he murdered Breck “willfully, unlawfully, deliberately, with premeditation and malice aforethought.” During the plea colloquy, defendant’s counsel stated: “I want to make one other proviso here .... As to count one, it does allege the language of a premeditated murder. My client is pleading guilty based on the fact that we feel a jury would convict him on the theory that he committed a felony murder. In other words, there was killing during the commission of a felony.

In fact, all the special circumstances allege that it was that.” The prosecutor explained that the language of the plea was the “standard language traditionally used. It does not preclude us from utilizing a felony murder theory at trial.” Defense counsel then made clear that he was not requesting that the plea language be changed. The People contend that defendant did not raise the inadequate notice argument below and that it is forfeited. Assuming without deciding that defendant’s claim is properly preserved, we reject it on the merits.

Contrary to defendant’s argument, the prosecution’s premeditation argument was properly introduced. Evidence about the manner in which Breck’s murder occurred, which tended to show premeditation, was “evidence in proof of the offense . . . which subjects] a defendant to the death penalty” and therefore is not subject to the notice requirements of

section 190.3. Nothing in the above plea colloquy suggested that the prosecutor was consenting to refrain during the penalty phase from presenting evidence regarding the circumstances of the crime that would support a theory of premeditation or from arguing to the jury that the murder was committed with premeditation. In fact

section 190.3 specifically authorizes the prosecutor to present evidence of the circumstances of the crime in aggravation. There is therefore no violation of

section 190.3’s notice requirement, nor is there any due process or other constitutional violation that would arise from unfair surprise to defendant or his counsel. Defendant also claims a violation of the

section 190.3 notice requirement and of his rights under the Fifth, Eighth or Fourteenth Amendments, when the prosecutor asked defendant’s mother, Jennifer McNees, whether defendant became “interested in Satanism” at some point in his life. The trial court sustained counsel’s objection to that question on Evidence Code

section 352 grounds, i.e., that the probative value of such evidence would be outweighed by its prejudicial effect. The prosecutor did ask whether defendant at one point listened to a lot of heavy metal music, and whether defendant ever had a cross hanging upside down in his room. McNees answered affirmatively to the first question and “I don’t recall” to the second. Defendant contends that the prosecution should have given notice that he intended to present evidence that defendant was involved with Satanism.

Even assuming that the prosecutor’s questions could be viewed as a violation of the notice requirement, and that the issue is preserved for appeal notwithstanding defendant’s failure to request a continuance to prepare a response (see People v. Williams (1997) 16 Cal.4th 153, 241-242 [66 Cal.Rptr.2d 123, 940 P.2d 710]), no conceivable prejudice could have resulted from the above interchange.

Counsel’s successful, timely objection and McNees’s nonresponse to the question regarding the upside-down cross meant the prosecutor was unable to present evidence of defendant’s alleged interest in Satanism other than a penchant for heavy metal music. D. Judicial Error for Indicating During Voir Dire That the Murder Was Premeditated The court during voir dire indicated to some prospective jurors that defendant had committed premeditated murder. One of those prospective jurors, K.Y., served on the jury.

The court told her to bear in mind “that the only time we talk about a jury making a choice between [the] death penalty and life in prison without the possibility of parole is where we have a first degree premeditated murder and one or more special circumstances have either been found true or admitted as in this case.” Defendant claims judicial error, because, as discussed above, defense counsel made clear in the plea colloquy that he was pleading guilty to first degree felony murder and not murder with premeditation and deliberation.

He contends this error violated his right to due process, to counsel, to an impartial jury and to a reliable verdict. Defendant’s point is well taken. The above quoted statement is incorrect as a matter of law, because those committing felony murder, without premeditation, may be eligible for the death penalty. Because defendant did not plead guilty to premeditated murder, premeditation and deliberation could not be assumed by the jury, and if used by the prosecution as an aggravating circumstance, would have to be proved to the jury.

Therefore, the trial court’s characterization of the murder as “premeditated” had the potential of relieving the prosecutor of the obligation to prove what may have been one of the key pieces of its case in aggravation, thereby potentially violating defendant’s right to due process. (See Sandstrom v. Montana (1979) 442 U.S. 510, 520-521 [61 L.Ed.2d 39, 99 S.Ct. 2450]; see also People v.

Sturm (2006) 37 Cal.4th 1218, 1230-1232 [39 Cal.Rptr.3d 799, 129 P.3d 10] [trial court erred during capital case in stating that premeditation was a “gimme,” when special verdict form indicated the defendant had been convicted of felony murder].) We conclude the error was not prejudicial. The trial court’s remark was followed by the prosecution’s presentation of evidence of the circumstances of the crime.

That evidence supported a premeditation and deliberation theory, which the prosecution argued to the jury, particularly based on the fact that defendant returned to strangle Breck a second time to make sure that she was dead. Defense counsel argued to the contrary that the evidence showed that “we weren’t dealing with a real sophisticated, planned-out murder.” The task of K.Y and the other jurors was ultimately not to decide whether or not defendant acted with premeditation, but rather whether the aggravating circumstances outweighed the mitigating ones such that death was the appropriate penalty.

It is highly unlikely that the trial court’s brief voir dire remark labeling the murder as “premeditated,” would have skewed a juror’s ability to weigh the evidence presented and make an unbiased penalty determination. We therefore conclude the trial court’s error was harmless under any applicable standard. E.

Trial Court’s Refusal to Allow Voir Dire on Question of Religious Affiliation The jury questionnaire contained a question about whether the prospective juror attended religious services regularly and about whether religious affiliation or beliefs would cause “any problem sitting in judgment in a criminal case.” Defense counsel requested a question about the prospective juror’s “denominational preference,” which the trial court refused, remarking that “I would be the first to say ... it is helpful to know that, but also think there are a couple of cases out there that seem to indicate that’s not appropriate inquiry.” Defendant contends the trial court abused its discretion in not allowing inquiry into such preference, thereby violating his rights to due process and a jury trial.

We disagree. The trial court has considerable discretion in determining the scope of voir dire. (Code Civ. Proc., § 223; see People v. Carter (2005) 36 Cal.4th 1215, 1250-1251 [32 Cal.Rptr.3d 838, 117 P.3d 544].) In the present case, the trial court cannot be said to have exercised its discretion, given its belief, as quoted above, that it had no discretion to permit inquiry into denominational preference.

Although exclusion of a prospective juror on grounds of religious affiliation is improper (see In re Freeman (2006) 38 Cal.4th 630, 643 [42 Cal.Rptr.3d 850, 133 P.3d 1013]), it is not necessarily true that inquiry into such affiliation is forbidden during voir dire. Membership in a particular religious denomination or sect indicated on a jury questionnaire may alert the trial court and counsel to a potential bias in favor of or against the death penalty that requires further exploration at voir dire. (See People v.

Catlin (2001) 26 Cal.4th 81, 118 [109 Cal.Rptr.2d 31, 26 P.3d 357] [prospective juror identified himself with a particular denomination that believes that God is the only one with the right to take someone’s life].) It does not follow, however, that a trial court’s refusal to allow a denominational preference or affiliation question was either erroneous or prejudicial. In the present case, voir dire included extensive inquiry by the trial court, the prosecution, and defense counsel into prospective jurors’ attitudes toward the death penalty.

For example, in the case of K.Y., who was eventually seated on the jury, the trial court asked her, as it did all prospective jurors, whether she had any “conscientious opinions about the death penalty” that would cause her to vote either automatically for or against the death penalty. When she stated that she was “spiritually against the death penalty,” the trial court, the prosecutor and defense counsel asked a number of followup questions to clarify her position.

Given this extensive inquiry into prospective jurors’ views on the death penalty, the trial court was not required to place a question on denominational preference on the jury questionnaire to be used as a preliminary indication of pro- or anti-death-penalty bias. Defendant contends that the refusal to ask such a question was particularly damaging in the present case because, as explained more extensively below, one of the jurors, T.F., committed misconduct by reading biblical verses aloud during deliberations.

Of course, the reasonableness of the trial court’s decision must be considered at the time the decision was made and not with the benefit of hindsight. Moreover, defendant points to no concrete evidence indicating that such an inquiry would have led to T.F.’s exclusion from the jury. Nor does he contend that voir dire regarding TJF.’s death penalty views was inadequate. We therefore conclude that the trial court did not err in refusing a question on denominational preference. F.

Wheeler/Batson Challenges Defense counsel objected to the peremptory challenges of three jurors, two Hispanic and one Black, on the grounds that they were based on race or ethnicity, and that the jury was the product of invidious discrimination and was not representative of the community. (Batson v. Kentucky (1986) 476 U.S. 79, 86 [90 L.Ed.2d 69, 106 S.Ct. 1712]; People v. Wheeler (1978) 22 Cal.3d 258, 271-272 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) The trial court denied these objections. Defendant now claims error. 1.

Factual Background After exercising two uncontested peremptory challenges, the prosecutor challenged R.R., a Hispanic male. Counsel made a Wheeler motion, citing R.R.’s questionnaire, in which he stated he thought the death penalty was imposed too seldom. The questionnaire also revealed that R.R. was employed as a machine operator for a beer distributor, had a wife employed as a substitute teacher and two young children and was “basically ... a real mainstream down the middle fair juror.” Counsel also noted that R.R. had “a couple of DUI’s” but indicated that he learned his lesson.

The trial court noted that R.R. on his questionnaire stated “he sometimes feels cops have attitudes because he feels they have too much power.” The court then ruled that the defense had not made a prima facie showing of discrimination. The court noted that this was the “first Hispanic excused” and that the court had “observed at least one item that might be of significance to an attorney.” While finding no prima facie case, the trial court invited the prosecutor to “make an observation or observations” as to why he excused R.R.

The prosecution declined to do so, stating that it would be “counterproductive” in light of his understanding of the law. After the defense exercised its sole peremptory challenge and the prosecution exercised another unanswered challenge, the defense made a Wheeler motion to the challenge against C.K., who was a Black male. Counsel stated that C.K. was a man who appeared to be in his 60’s, was an Air Force veteran who did not have any problem with the death penalty, and had been on a prior jury which had rendered a guilty verdict.

He appeared to be “an extremely neutral fair citizen.” The trial court again did not find a prima facie showing. The court first observed that K.Y., a Black woman, had been seated as a juror. He further noted that the large number of C.K.’s stepchildren and relatives who had been in trouble with the law and had been in prison, was “a factor that was unique” to C.K. After exercising another uncontested peremptory challenge, the prosecution challenged F.D., a Hispanic male.

Defense counsel moved for a mistrial based on the prosecution’s discriminatory challenges and the “systematic exclusion of Hispanics from the jury.” He stated that F.D. appeared to be in his late 50’s and was a postal carrier with children and grandchildren and a great respect for law enforcement, who expressed the belief that the death penalty was imposed too seldom. The trial court this time ruled that a prima facie case had been made and directed the prosecutor to explain the reasons for the challenge.

The prosecutor explained that the prospective juror’s “demeanor and the manner in which he answers questions struck me as an individual who was indecisive, perhaps did not understand what he was being asked.” He further stressed that on his questionnaire it stated that he did not “know if he could impose the death penalty much.” The trial court denied the motion, noting that his own observations were in accord with the prosecutor’s, that F.D. appeared to have trouble focusing on what was being said and coming to grips with the issues, and that there were “long pauses as he attempted to determine whether or not he could impose the death penalty.” 2.

Legal Contentions Defendant contends the trial court erred in finding no prima facie case had been made with respect to R.R. and C.K. under the principles articulated in Wheeler and Batson. A prima facie case of discrimination in jury selection under federal law “can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives ‘rise to an inference of discriminatory purpose.’ ” (Johnson v.

California (2005) 545 U.S. 162, 169 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted.) As we have explained: “[O]ur Wheeler decision . . . alluded to a ‘reasonable inference’ of group bias as a basis for a prima facie showing and also called for the defendant to establish a ‘strong likelihood’ that a juror has been peremptorily challenged on the basis of group bias. (Wheeler, supra, 22 Cal.3d at pp. 280, 281.) Our subsequent decision holding that both of the quoted terms were essentially the same as the Batson standard, and that a prima facie showing called for a demonstration that it was ‘more likely than not’ that group bias accounted for the challenge, was disapproved in Johnson, supra, [545 U.S. at pp. 165-167, 173] (reversing People v.

Johnson (2003) 30 Cal.4th 1302 [1 Cal.Rptr.3d 1, 71 P.3d 270]).” (People v. Cornwell (2005) 37 Cal.4th 50, 73 [33 Cal.Rptr.3d 1, 117 P.3d 622].) In cases in which the trial court found no prima facie showing of discrimination in jury selection, and it is unclear what standard the trial court employed in making its determination, we have reviewed the record independently to discern whether a prima facie showing has been made under the proper “inference of discriminatory purpose” standard. (See id. at pp. 71-74; People v.

Avila (2006) 38 Cal.4th 491, 553-554 [43 Cal.Rptr.3d 1, 133 P.3d 1076].) As to Prospective Juror R.R., we conclude the trial court did not err in determining a prima facie case had not been made. Although R.R was presumably a member of a cognizable racial or ethnic group, there was nothing else to indicate group bias. At the time his removal was challenged, he was the only Hispanic prospective juror to have been considered.

His expressed sentiment of skepticism toward the police and his two driving under the influence misdemeanor convictions prosecuted by the same office that was trying this case, one of which was approximately five years before the trial, serve as neutral bases for the peremptory challenge. It is true that defendant’s challenge may be somewhat stronger when the challenge is viewed in light of the subsequent challenge to another Hispanic juror, F.D.

However, as we have recently held, a trial court has no sua sponte duty to reexamine rulings on previous Wheeler/Batson motions once it determines that a prima facie case has been made as to one juror. (People v. Avila, supra, 38 Cal.4th at p. 549.) Defendant did not request that the trial court revisit R.R.’s challenge after the court had found a prima facie case of discrimination in the F.D. challenge, and we review whether the trial court’s decision was correct at the time it was made and not in light of subsequent events.

Moreover, even if the trial court had been asked to revisit the R.R. challenge, we find no basis for concluding that its determination would have been different. The prosecution’s reasons for excusing F.D. based on his demeanor and his hesitation regarding his ability to impose the death penalty were strongly confirmed by the trial court’s own independent observations, as discussed above. Therefore the challenge to F.D. would have added little to defendant’s Wheeler motion with respect to the R.R. challenge.

We also conclude that the trial court did not err in finding no prima facie case with respect to the challenge of Prospective Juror C.K. As discussed, a significant number of his stepchildren and blood relatives had been in trouble with the law and had been to prison, and he stated that “I have so many relatives that have been in and out of court... I would have to have four or five pages to write down ... the different trials that they went through.” At least some of them had been involved in the Kern County criminal justice system.

One of his stepchildren had been prosecuted for rape by the Kern County District Attorney’s Office approximately three or four years before the present trial took place, a prosecution that resulted in an acquittal. C.K. had personally been involved in helping some of his relatives through the criminal justice system. The above taken together constitutes a substantial race-neutral basis for a peremptory challenge. Moreover, he was the only prospective Black juror peremptorily challenged, and at the time of the challenge a Black woman had been seated on the jury.

The subsequent seating of another Black juror reinforces our confidence that the trial court did not err in ruling that defendant had not carried his burden of making a prima facie case of discrimination. Defendant also contends that comparative analysis of prospective minority jurors subject to peremptory challenge and seated White jurors demonstrates the prosecution’s discriminatory intent. Assuming without deciding that appellate courts are obliged to undertake comparative analysis in the present case (see Miller-El v. Dretke (2005) 545 U.S. 231, 241 [162 L.Ed.2d 196, 125 S.Ct. 2317]; People v.

Avila, supra, 38 Cal.4th at p. 546), we disagree that the comparative analysis that defendant presents in this court assists his case. Defendant points to three jurors who had some supposedly comparable experience with law enforcement or involvement in the criminal justice system. Prospective Juror LJ. had a son who had been convicted of a marijuana-related misdemeanor. LJ. did not have nearly as extensive a family involvement in the criminal justice system as did C.K., and did not express a negative attitude toward law enforcement officers as did R.R.

Another juror, E.G., had had a daughter-in-law whose brother was convicted of murder but, unlike C.K., the juror did not appear to have any connection to the case or attend court proceedings. A closer question is presented by Juror S.M. S.M.’s husband was a witness in the highly publicized murder trial of Patrick Dunn, which was the subject of a book, Mean Justice (1999), by Edward Humes that was highly critical of the prosecutor in this case, District Attorney Ed Jagels, and the criminal justice system in Kern County.

S.M. stated she felt that “there were some things that weren’t properly brought out” by the prosecution, which would have led to more a favorable result for Dunn. Therefore S.M., unlike C.K., came away from her experience with the Kern County criminal justice system with a belief that the prosecution, and in all likelihood the prosecutor in the present case, had been unfair to a defendant, and in particular a murder defendant. S.M. did profess that this experience would not affect her ability to be a fair juror on a murder trial, but so did C.K.

Unlike R.R., she had not been recently prosecuted by the Kern County District Attorney, but neither had C.K. On the other hand, S.M.’s husband was a witness in a Kern County trial, whereas some members of C.K.’s family had been defendants. Although it is difficult to explain on the cold record and without the benefit of having heard the prosecutor’s reasons for the peremptory challenge of C.K., why S.M. was seated and C.K. was not, we do not believe this difficulty should be a basis for concluding there was prima facie case that a Wheeler/Batson violation had been committed.

Our confidence in the results of appellate comparative analysis is somewhat diminished when there is a “lone questionable peremptory challenge” and the record reveals “a sound, objectively plausible basis” for the challenge. (People v. Jackson (1996) 13 Cal.4th 1164, 1254 [56 Cal.Rptr.2d 49, 920 P.2d 1254] (conc. opn. of Mosk, J.).) Moreover, C.K. was the only Black juror to be peremptorily challenged. (Cf. Miller-El v.

Dretke, supra, 545 U.S. at p. 241 [125 S.Ct. at p. 2325] [10 Black prospective jurors struck and one on panel].) Although, to be sure, a Wheeler/Batson violation may occur with a single discriminatory challenge, when as here there is a legitimate basis for dismissing the prospective juror and no pattern of discrimination appears as to Black jurors, a court should be hesitant to infer a Wheeler/Batson violation when comparative analysis raises questions as to a single prospective juror, particularly “given the legitimate role that subjective factors may have in a prosecutor’s decision” to challenge or not challenge jurors peremptorily. (Jackson, supra, at p. 1254 (conc. opn. of Mosk, J.).) We therefore conclude that there was no prima facie case that a Wheeler/Batson violation was committed in excluding C.K.

G. Erroneous Admission of Aggravating Evidence Defendant claims that several pieces of aggravating evidence were erroneously introduced at the penalty phase, in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. We will consider each of these in turn. 1. Admission of the Anonymous Phone Calls First, defendant claims there was insufficient foundation to hold him responsible for several late-night phone calls made the night before the murder to the Breck residence, in which the caller hung up immediately after the phone was answered.

He claims that these phone calls tended to buttress the prosecutor’s contention that defendant planned and premeditated the murders. Evidence Code

section 403 states in pertinent part: “(

a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [][]... [1]

(4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself.” Here, the trial court did not err in admitting the evidence. The day before the phone calls, defendant had stolen Breck’s wallet, and although not clear from the record, the wallet may have contained a card or document with Breck’s unlisted number. Defendant burglarized Breck’s home and raped and murdered her the following day. The jury may reasonably have inferred that defendant made those calls.

Moreover, evidence of the calls touched only tangentially on the question of defendant’s mental state at the time of the crimes, and therefore their admission, if error, would have been harmless by any applicable standard. 2. Admission of Location of Johnson and Glass Burglaries The prosecution sought to admit under

section 190.3, factor (

b) evidence of three burglaries that had occurred shortly before the murders, as showing “[t]he presence ... of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” The trial court initially excluded evidence of the circumstances of two of these crimes, the burglaries at the Johnson and Glass residences, although it allowed the fact of his conviction for these burglaries to be admitted under

section 190.3, factor (c). At the close of the trial, just prior to instructing the jury, however, the trial court ruled that evidence of defendant’s convictions for these burglaries was not admissible under factor (c), because convictions are only admissible under this

section if they predate the murder or murders with which a defendant is charged. (People v. Scott (1997) 15 Cal.4th 1188, 1223 [65 Cal.Rptr.2d 240, 939 P.2d 354].) Because the convictions for these burglaries were contemporaneous with defendant’s murder conviction, they were therefore not admissible as prior felony convictions. The trial court also ruled, however, that evidence of the Johnson and Glass burglaries was still properly admitted under

section 190.3, factor (a), the circumstances of the crime, because they tended to show defendant’s state of mind as someone in trouble with the law seeking to find the means to get away, at the time the murder was committed. Notwithstanding the initial limitations on the presentation of the evidence regarding the Johnson and Glass burglaries, the prosecutor, during the opening statement, showed the jury a map of where the various burglaries occurred and divulged the locations of the Johnson and Glass burglaries.

Counsel eventually objected and the trial court sustained the objection, not allowing the prosecutor to complete this part of his presentation. Defendant contends disclosure of the location of these burglaries was prejudicial error, resulting in violations of his right to due process, to counsel, and to an impartial jury. The trial court’s exclusion of the circumstances of the Johnson and Glass burglaries was based on the erroneous belief that such burglaries were only admissible to the extent allowed under

section 190.3, factor (c), rather than factor (a). It is unclear what limitations if any would have been placed on the admission of such evidence if it had been admitted under factor (a). But even assuming error, no prejudice resulted. Defendant contends that the fact these burglaries, together with the Elliott burglary, which was admitted into evidence, and the Breck burglary and murder, were in the same location supported the prosecution’s premeditation theory. In fact the evidence of the location of the burglaries was at best only incidentally connected to the prosecution’s theory of defendant’s mental state.

We conclude that divulging the location of these burglaries was harmless under any applicable standard. 3. Admission of Circumstances of the Elliott Burglary Defendant contends that evidence of the Elliott burglary was erroneously admitted under

section 190.3, factor (b). After defense counsel objected before trial to the admission of evidence of that burglary, the prosecution made an offer of proof, indicating that defendant used a knife to gain access to the house, that he stole a number of guns from the Elliott residence, and that the Elliotts’ adult daughter returned to the house apparently while defendant was inside, although there was no direct contact between them.

The trial court concluded that the evidence should be admitted, stating that there was “a fair inference that there is an implied threat to use force or violence.” At trial, the Elliotts’ daughter, Brandie Bamden, testified that she returned to the Elliott house around 10:45 a.m. after having been at school, and noticed that there were several matchbooks on the floor, that the garage door was not locked, and that the door from the garage to the backyard was open.

When she entered her parents’ bedroom to listen to messages on the answering machine, something caught her eye like the movement of a shoe, but she believed her mind was playing tricks on her. When she telephoned her mother shortly thereafter, she thought someone else was on the line, which caused her to leave the house and call the police. Bamden’s father, Joe Elliott, subsequently reported several missing guns and his fishing tackle. Most of the guns were recovered in a duffel bag approximately 150 yards from the Elliott house, but a .38-caliber-special handgun was found on defendant.

Defense counsel move to strike evidence concerning the Elliott burglary, contending that it did not meet the criteria of

section 190.3 for violent criminal activity and that this case was distinguishable from one in which we had admitted burglary evidence, People v. Clair (1992) 2 Cal.4th 629, 672-678 [7 Cal.Rptr.2d 564, 828 P.2d 705] (Clair). The trial court denied the motion, stating that the fact that there was a “potential confrontation with a[n] armed burglar” made the situation “fraught with the potential for violence.” Defendant claims the trial court erred.

In Clair, the evidence showed that the defendant broke into a woman’s then unoccupied apartment, that he was captured lying in the woman’s bed in his underwear, and had brought a butcher knife with him, which was found in the bathroom. (Clair, supra, 2 Cal.4th at pp. 673-674.) We affirmed the trial court’s holding that the evidence was appropriately admitted under

section 190.3 as criminal activity employing force or violence. “There was an implied threat. The reasonable inferences are these. Aware of the presence of those who came to the apartment in response to his arrival, defendant took up the knife in the kitchen against their imminent entry. He did so in order to avoid apprehension and make good his escape. Certainly, his purpose was not to employ the weapon simply to facilitate the taking of property: he evidently came equipped with a screwdriver to that end.

Not only did he take up the knife, but he also carried it around the apartment as he seemingly readied himself for action. Apparently deciding at the last moment not to risk a physical confrontation but to try to lie himself out of trouble, he cast the weapon away before he actually put it to use. Thus, he chose not to follow through. But he did not, and could not, undo what he had already done.

He made an implied threat to use the knife against anyone who might interfere.” (Clair, supra, 2 Cal.4th at pp. 676-677.) Defendant argues that in this case, unlike in Clair, there was no evidence defendant was readying himself to commit violence and then abandoned the plan. Whether or not the trial court erred in admitting evidence of the Elliott burglary, we conclude that the error was not prejudicial. The facts of the burglary were not particularly gruesome.

Indeed, the very characteristics of the burglary that make the question of its admissibility close, i.e., that defendant did not enter the house with intent to commit violence, and that no violence resulted, undermine the notion that the jury would have been swayed toward a death sentence by knowledge of the facts of the burglary.

In light of the other aggravating evidence against defendant—the circumstances of the crime emphasized by the prosecutor, as well as the properly admitted evidence about the burglary convictions—we conclude that the admission of the facts about this arguably nonviolent burglary was harmless by any applicable standard. 4. Admission of Evidence of Premeditation and Sodomy Defendant claims evidence that the murder was premeditated and that he sodomized Breck should not have been admitted, because he did not plead to either premeditated murder or to sodomy. As discussed above,

section 190.3 explicitly permits evidence regarding the circumstances of the crime, including the circumstance that the murder may have been premeditated, during the penalty phase, and nothing in the plea agreement precluded such admission. So, too, nothing in the plea agreement prevented admission of evidence that defendant sodomized Breck, as Detective Legg testified defendant had admitted shortly after his arrest. H. Exclusion of Tape Recording and Video Recording Showing Remorse Defendant made a statement to Detective Legg about five hours after he was arrested.

He confessed to the murder, and claimed he did not know what had happened and “went crazy all of a sudden.” He also apparently cried during the confession. The confession was tape-recorded. Defendant made a second confession shortly thereafter at the police station, which was not tape-recorded or transcribed, in which he claimed to have “blacked out,” regaining consciousness only after the murder.

Defendant gave a third interview approximately 24 hours later, in which he confessed to the crime in detail, abandoning any suggestion that he “blacked out.” The prosecutor sought to admit the tape and transcripts of this third interview into evidence, but sought to exclude the tape and transcript of the first interview, which he opposed because it was exculpatory hearsay. The trial court agreed, over defense counsel’s objection. Counsel sought to admit the tape to make clear to the jury that defendant experienced remorse shortly after he had committed the crime.

Defendant now claims the trial court erred in excluding the recording of the first interview and that this error violated his rights to due process, a fair sentencing hearing, and a reliable penalty phase determination as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. “A trial court’s decision to admit or exclude evidence is reviewable for abuse of discretion.” (People v.

Vieira (2005) 35 Cal.4th 264, 292 [25 Cal.Rptr.3d 337, 106 P.3d 990].) “[A] defendant’s due process rights are violated when hearsay testimony at the penalty phase of a capital trial is excluded, if both of the following conditions are present: (1) the excluded testimony is ‘highly relevant to a critical issue in the punishment phase of the trial,’ and (2) there are substantial reasons to assume the reliability of the evidence.” (People v. Kaurish, supra, 52 Cal.3d at p. 704, quoting Green v.

Georgia (1979) 442 U.S. 95, 97 [60 L.Ed.2d 738, 99 S.Ct. 2150].) Defendant argues that his crying during the first interview was not hearsay and should therefore have been admitted. We considered a similar situation recently in People v. Jurado (2006) 38 Cal.4th 72 [41 Cal.Rptr.3d 319, 131 P.3d 400], in which the defendant claimed that his sobbing and other emotional conduct depicted on a videotaped interrogation with the police was admissible nonhearsay.

As we stated: “Defendant is correct that, by themselves, defendant’s emotional displays were nonassertive conduct, and thus not within the hearsay rule. ... [1] But the defense sought to introduce more than just evidence of the emotional displays themselves. To explain the significance of the emotional displays, and particularly defendant’s statement that as a result of the murder he had received an ‘injury from [his] conscience,’ the defense sought to introduce the statements defendant made during the videotaped interview.

As defendant must concede, those statements, including assertions and descriptions of his own feelings and other mental states, were hearsay. ... As the trial court correctly determined, the circumstance that defendant made his statements during a postarrest police interrogation, when he had a compelling motive to minimize his culpability for the murder and to play on the sympathies of his interrogators, indicated a lack of trustworthiness. In past decisions, we have upheld the exclusion of self-serving postcrime statements made under similar circumstances.” (People v.

Jurado, supra, 38 Cal.4th at pp. 129-130.) In the present case, as in Jurado, defendant’s nonassertive conduct was intertwined with statements he made designed to minimize his culpability, e.g., that he went “crazy all of a sudden,” thereby tending to disavow that he committed the murder with premeditation. We conclude that the trial court did not abuse its discretion in excluding the taped interview containing such self-serving statements. Defendant contends that the tape recording should have been admitted as a spontaneous utterance.

Although defendant did not explicitly seek to admit the evidence on those grounds at trial, he argued when pressing his Green v. Georgia claim that in effect the statement was particularly reliable because it was spontaneous. The trial court did not abuse its discretion in implicitly rejecting that contention. “Evidence Code

section 1240 provides, in pertinent part, that evidence is ‘not made inadmissible by the hearsay rule’ if it ‘[pjurports to narrate, describe, or explain

an act, condition, or event perceived by the declarant’ (id., subd. (a)), and it was ‘made spontaneously while the declarant was under the stress of excitement caused by such perception.’ (Id., subd. (b).) ‘The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker.

The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.’ ” (People v.

Roybal (1998) 19 Cal.4th 481, 516 [79 Cal.Rptr.2d 487, 966 P.2d 521].) Here, the trial court did not abuse its discretion in concluding that defendant’s somewhat self-serving statements made several hours after the murder did not qualify as a spontaneous utterance. Defendant also claims the tape recording should have been admitted under Evidence Code

section 356, contending that because the court admitted the third interview, it was obliged to also admit the first interview, a contention the trial court rejected.

Section 356 provides: “Where part of

an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.” “The purpose of this

section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission ... in evidence.’ ” (People v.

Arias (1996) 13 Cal.4th 92, 156 [51 Cal.Rptr.2d 770, 913 P.2d 980].) In the present case, the trial court did not abuse its discretion in concluding that admission of the third interview did not require admission of a different interview, and that no misleading impression was created by admitting one without the other. Finally, defendant claimed the trial court erred in failing to admit a videotape of his interview with a television reporter some 72 hours after his arrest, in which he expressed remorse for the crime and extended condolences to the victim’s family.

The trial court did not abuse its discretion in concluding that the videotape did not pass muster under Green v. Georgia, inasmuch as there is no substantial reason for believing that defendant’s postarrest statement to the media was particularly reliable. I. Improper Exclusion of Mitigating Evidence Defendant argues that various pieces of mitigating evidence were wrongly excluded in violation of his United States Constitution Fifth, Sixth, Eighth, and Fourteenth Amendments rights. Each of these claims will be considered in mm. 1.

Evidence of Mistreatment by Defendant’s Father On direct examination Jennifer McNees, defendant’s mother, when asked why she and her then husband Bob Williams, Sr., had moved out of his parents’ house soon after their marriage, replied that it was “not a good situation.” When asked to elaborate, the prosecution objected. In chambers, counsel responded that he intended to ask about fights between McNees and Bob Williams, Sr., when defendant was very young, and in particular about an incident in which Williams, Sr., punched McNees in the stomach while she was pregnant with defendant.

The prosecutor objected that incidents that did not occur in defendant’s presence or occurred when he was so young that he would not have a memory of them should be excluded. The court ruled that testimony regarding the punching incident would be excluded unless the defense was prepared to offer some foundational medical testimony that defendant was injured as a result. The trial court also ruled, however, that testimony of violence that occurred in defendant’s presence even at a young age would be admissible.

Defendant contends the trial court erred in not allowing evidence that defendant’s father punched his mother when she was pregnant with defendant. The Eighth Amendment to the United States Constitution requires that a capital jury not be precluded from “considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Lockett v.

Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 98 S.Ct. 2954], fn. & italics omitted.) Nonetheless, the trial court still “ ‘determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.’ ” (People v.

Cain (1995) 10 Cal.4th 1, 64 [40 Cal.Rptr.2d 481, 892 P.2d 1224].) Defendant argues on appeal that the punching incident would have shown that defendant was an unwanted child, and the father, as well as the stepmother, neglected and abused defendant. Defense counsel did not advance that theory of admissibility at trial, nor is the act of violence toward the pregnant mother particularly probative of the father’s subsequent conduct toward the child after he was bom. Moreover, there was considerable evidence that defendant’s father did not have a good relationship with defendant.

We conclude that the trial court did not abuse its discretion in excluding this testimony, and, even if it had, the error would have been harmless under any applicable standard. 2. Evidence of Accommodation of Sexual Abuse Evidence was presented that defendant may have been sexually abused, as well as physically and emotionally abused, by his stepmother. Some of the testimony came from Vahid Sadeghi, a marriage, family and child therapist who had worked with and examined defendant at age 16 when the latter was in a group home for adolescents on probation for minor crimes.

He testified that defendant had told him that his stepmother asked him to take off his clothes and lay in bed before she hit him, which raised a “red flag” for Sadeghi that sexual abuse may have occurred. Defendant denied to Sadeghi that such abuse had occurred. Sadeghi testified that some children do not reveal to him that they have been molested, but when asked if he believed defendant’s denial, the prosecution objected to the question as calling for speculation, which the trial court sustained.

Later, forensic psychologist Eugene Couture testified that according to various studies, only 2 percent of sexual abuse within families is reported. Defendant claims the trial court committed error in sustaining the objection to the defense counsel’s question. We disagree. Contrary to defendant’s assertion, the exclusion of Sadeghi’s answer to the above question did not undermine defendant’s ability to make the case that he had been the victim of sexual abuse notwithstanding his earlier denials.

The trial court acted within its discretion in disallowing a question that required the witness to speculate about the truth of defendant’s denial of sexual abuse, while allowing evidence that such denial is common, permitting defendant to adequately make his case that the denial was untrue. 3. Other Evidence Defendant contends the trial court erred in excluding testimony by defendant’s girlfriend, Tina Meagher, that defendant had told her to move on with her life and to marry someone who would adopt their child. The trial court ruled such testimony was inadmissible hearsay.

Defendant argues on appeal that the evidence should have been admitted following Green v. Georgia, supra, 442 U.S. 95. As discussed above, under Green hearsay may be admitted at the penalty phase of a capital trial if it is “highly relevant to a critical issue in the punishment phase of the trial,” and “substantial reasons existed to assume its reliability.” (Id. at p. 97.) Defendant does not explain why either Green factor applies. Moreover, nothing prevented defendant from retaking the stand to testify about this statement. The claim therefore fails.

Defendant also claims error at the exclusion of a letter he had written his mother as a child, which purported to show that defendant’s mother did not want to visit her son. There was abundant evidence in the record that defendant’s mother neglected and did not visit him. The exclusion of the letter, even if error, was not prejudicial under any applicable standard. The trial court also excluded a letter written by Irma Williams, defendant’s grandmother, when defendant was around 16 years old, which stated that he could come live with her.

Defendant argues the letter was relevant for showing that his placement with his mother was inadequate and his grandmother was offering him a better alternative that he was never able to take advantage of. The trial court concluded that the letter was not relevant to any issue in the case, that it was written long after that placement, and that Irma Williams had already testified to the substance of what was in the letter and had even read portions of the letter into the record. We conclude the trial court did not abuse its discretion in excluding the letter. J.

Prosecutorial Conduct During Defendant’s Testimony Regarding Sexual Abuse On direct examination, defendant was asked if his stepmother had sexually molested him and he replied that she had. At that point, apparently, the prosecutor reacted in some visible and audible way to defendant’s answer. Defense counsel asked for a hearing outside the presence of the jury. The trial court did not grant the request, but directed the prosecutor “not to make any other noises at his table.” At the next opportunity outside the presence of the jury, defense counsel moved for a mistrial based on the prosecutor’s previous conduct.

He stated: “I couldn’t actually see what counsel did but it had the sound as if he had just dropped a binder or kind of flipped a notepad. But kind of like in disgust he threw something and it was very audible to me .... I think he was trying to send a message to the jury that he personally thinks that [defendant’s testimony was] untrue.

And that’s the only message I think that you could get from that reaction.” Counsel also argued that the prosecutor, Edward Jagels, the Kern County District Attorney had “a lot of stature in this community” and “when he does something like that, I think it has a lot of influence over jurors.” The prosecutor stated that he had dropped a yellow pad he was holding on a binder, that the sound made was quite soft, and that he did so out of surprise because he had had no previous information about defendant’s claims of molestation.

The court denied the motion for the mistrial, stating: “What I observed was essentially what [defense counsel] has described, that counsel slammed down something, [it] wasn’t super loud, and rolled his eyes. And Mr. Jagels, you know that’s inappropriate in front of the jury. I don’t want it to happen again.” Defendant contends that the denial of this motion was in error, and violated his Eighth and Fourteenth Amendment rights to a fair penalty trial and reliable penalty determination. As the trial court’s comments indicate, the prosecutor’s behavior was inappropriate. (See People v.

Hill (1998) 17 Cal.4th 800, 834 [72 Cal.Rptr.2d. 656, 952 P.2d 673] [prosecutor audibly laughing in the middle of defense counsel’s examination of various witnesses is misconduct].) But such conduct does not necessarily require a declaration of a mistrial. “Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v.

Haskett (1982) 30 Cal.3d 841, 854 [180 Cal.Rptr. 640, 640 P.2d 776].) “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” (People v. Bolden (2002) 29 Cal.4th 515, 555 [127 Cal.Rptr.2d 802, 58 P.3d 931].) We conclude the trial court did not abuse its discretion in denying the motion for a mistrial. The trial court was in the best position to gauge the exact nature of the prosecutor’s conduct and its likely effect on the jury.

Nothing in the record undermines the trial court’s implicit conclusion that the prosecutor’s brief episode of inappropriate conduct did not irreparably damage defendant’s chance of receiving a fair trial. K. Prosecutorial

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