THE PEOPLE, Plaintiff and Respondent, v. MARIA DEL ROSIO ALFARO, Defendant and Appellant, 41 Cal. 4th 1277

Opinion GEORGE, C. J. A jury convicted defendant Maria Del Rosio Alfaro of the first degree murder of Autumn Wallace (Pen. Code, § 187) (count I), first degree residential burglary (§§ 459, 460.1) (count II), and first degree residential robbery (§§ 211, 212.5, subd. (a)) (count III). The jury also found true the special circumstance allegations of robbery murder and burglary murder (§ 190.2, former subd. (a)(17)(i), (vii)) and the allegation that defendant personally used a deadly weapon (a knife) in the commission of the murder. The first penalty phase trial ended in a mistrial.

After a retrial as to penalty, a jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty (§ 190.4, subd. (e)), stayed imposition of sentence on counts II and III, and imposed a sentence of death. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Statement of Facts A. Introduction A jury found that defendant murdered nine-year-old Autumn Wallace on June 15, 1990, in the course of committing a burglary and a robbery at the Wallace home. Autumn’s body was discovered in the bathroom of the home, stabbed more than 50 times.

Defendant was a high school friend of the victim’s sister, April Wallace, and resided approximately three blocks from the Wallace residence. DNA testing revealed that blood found on the bottom of defendant’s shoe was consistent with Autumn Wallace’s blood and not consistent with defendant’s blood. Additionally, shoe prints and fingerprints found at the murder scene connected defendant to the murders. Upon her arrest, and after waiving her rights to an attorney and to remain silent, defendant confessed to the murder.

Defendant did not testify at the guilt phase of the trial, but argued that the man who had driven her and a coconspirator to the Wallace residence had pressured her to murder Autumn under threat to the lives of defendant and her family. Defendant’s first penalty phase trial, at which she testified, ended in a mistrial. At the penalty retrial, defendant did not testify but presented evidence of her impoverished and violent childhood, her history of drug abuse, and her impaired mental state. Defendant’s testimony from her first penalty phase trial was read to the jury. B.

Procedural History Following a preliminary hearing held in mid-November 1990, at which no affirmative defense was offered, defendant was held to answer in the Orange County Superior Court. In an information filed in late November 1990, the Orange County District Attorney charged defendant in count I with the June 15, 1990 murder of Autumn Wallace in violation of

section 187, subdivision (a). Defendant was charged in count II with first degree residential burglary, in violation of sections 459 and 460.1, and in count III with first degree residential robbery in violation of sections 211 and 212.5, subdivision (a). The information further alleged that defendant personally used a deadly and dangerous weapon (a knife) during the commission of all three charged offenses within the meaning of

section 12022, subdivision (b). The information further alleged two special circumstances—that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, former subd. (a)(17)(i)), and that the murder was committed while defendant was engaged in the commission of a first degree burglary (§ 190.2, former subd. (a)(17)(vii)). Defendant entered a plea of not guilty to each count and denied the special circumstances and weapon allegations. Prospective jurors were sworn, and opening statements commenced in mid-March 1992.

Nearly two weeks later, the jury found defendant guilty as charged and found true the knife-use and special circumstance allegations. The first penalty phase trial began in late March 1992. The court declared a mistrial as to the penalty phase in early April 1992 after it determined there was no reasonable probability that the jury would be able to reach a verdict. (§ 1140.) Prospective jurors were sworn, and a second penalty phase trial commenced in mid-May 1992. The jury determined early in June 1992 that defendant should be sentenced to death.

The trial court denied defendant’s motions for modification of sentence and for new trial, sentencing defendant to death and ordering that imposition of sentence on counts II and III for the burglary and robbery convictions be stayed pursuant to

section 654. Defendant’s appeal is automatic. (§ 1239, subd. (b).) She requests a stay of execution. C. Guilt Phase Evidence Autumn Wallace, the murder victim, was nine years of age. She resided with her mother, Linda Wallace, a clerk employed by the Orange County Superior Court, her older sister April Wallace, and April’s infant son on Hedlund Street in Anaheim, California. Autumn’s friend, Christina S., testified that their school had an “early day” on Friday, June 15, 1990; school recessed at 2:35 p.m., and about that time she and Autumn left school and went to Autumn’s home.

Three of the Wallaces’ neighbors testified that on the afternoon of Autumn’s murder, they each separately observed a “reddish” or “goldishbronze” Monte Carlo parked in the driveway of the Wallace residence and two Hispanic men standing nearby facing the street. One of the men was holding a child, approximately 18 months of age. The man with the infant subsequently was identified as Antonio “Shorty” Reynoso. April Wallace testified that she attempted to telephone Autumn at approximately 4:30 p.m. to inform Autumn that she would arrive home late from work, but Autumn did not answer the phone.

April returned to the residence at approximately 5:15 p.m. and found the front door locked. She entered and observed the residence was in a state of disarray. The hall closet was open and things were “scattered around.” April called out for Autumn but received no answer. When April entered her bedroom, she noticed that her television and mirror were missing and some clothing had been thrown around. April immediately left the residence and went across the street to a neighbor’s home.

At approximately 5:40 p.m., Linda Wallace arrived at the residence and was informed by April that the house had been burglarized and that Autumn was missing. Linda entered in search of Autumn and noticed that many items were missing. Unable to locate a telephone in the house, Linda instructed April to telephone the police from another location. While April ran to a neighbor’s residence to make the call, Linda searched her home and discovered Autumn’s body in the back bathroom. Defendant was a high school friend of April Wallace’s and resided approximately three blocks from the Wallace residence.

In the course of her friendship with April, defendant visited the Wallace home on many occasions and resided there for a short time while pregnant with her second child. April testified that after 1989, she and defendant ceased to be friends because April doubted defendant’s veracity. Defendant nonetheless continued to contact April to request that she drive defendant to various destinations. Orange County Sheriffs Department Investigator Tom Giffin testified that he arrived at the Wallace residence approximately 7:20 p.m. on the night of the homicide.

Approximately 11:15 p.m., defendant, her boyfriend Manuel Cueva, and their son Manny walked past the Wallace home. Defendant asked Giffin for permission to speak with April, but Giffin declined. Giffin testified that while speaking to defendant, he recalled witness accounts that a small child had been seen in front of the house with two Hispanic men. The following day, after learning that a fingerprint lifted from the Wallace bathroom matched defendant’s fingerprint, Giffin conducted an interview with defendant at the sheriffs department substation in Stanton.

Defendant denied any involvement in the crimes during this interview. Sometime after the murder, defendant left a bag of clothing at Maria Ruelas’s home, where defendant and Cueva periodically stayed overnight. Ruelas testified that the clothes belonged to defendant. Defendant had telephoned Ruelas and asked her to leave the bag of clothing outside, because defendant was leaving for Mexico early the next morning, but defendant never returned for the clothes. Investigator Giffin obtained the bag from Ruelas on June 24, 1990.

When the bag was searched pursuant to a warrant, it was found to contain April Wallace’s boots and defendant’s LA Gear tennis shoes. Immediately thereafter, the police obtained a warrant for defendant’s arrest, and she was arrested the following day. Shortly thereafter, defendant was interviewed during a Videotaped session that lasted more than four hours. In the course of the interview, defendant confessed to murdering Autumn and burglarizing the Wallace residence. Defendant’s videotaped confession was presented to the jury.

Defendant told the police that on the day Autumn was murdered, defendant was staying at Manuel Cueva’s father’s home in Anaheim. Defendant was 18 years of age, the mother of two children, and pregnant with twins. Cueva was the father of defendant’s younger children. Defendant was addicted to heroin and cocaine, and on the day of the murder she left Cueva’s residence approximately 11:00 a.m. to purchase drugs, taking Manny with her.

Defendant was driven by an unidentified acquaintance to an area of Anaheim known as “Little Tijuana,” where defendant sought out a man named Juan, who was employed with her mother at Disneyland. Juan directed defendant to a nearby apartment, where “some guy downstairs named Huero” was rumored to be selling drugs. Defendant left Manny with Juan at his apartment while she and another woman named Sabrina left to buy drags, purchasing two “dime bags” each of cocaine and heroin. Thereafter, defendant and Sabrina returned to Juan’s apartment, proceeding to cook and inject the drags until approximately 2:00 p.m.

Defendant’s acquaintance, Antonio Reynoso, who had been released from prison the previous day, also visited Juan’s apartment that afternoon. When defendant and Sabrina exhausted their supply of drugs, Reynoso offered to share his own drags if defendant would share her “rig” (a term referring to the needle, syringe, and other paraphernalia used to inject drags). After defendant agreed, she and Reynoso injected additional quantities of drags while Sabrina looked after Manny. After consuming Reynoso’s entire supply of drugs, defendant desired to continue taking drags, but had ran out of money.

Thereafter, defendant, Reynoso, and a second man drove to the Wallace home. Defendant told Reynoso that she formerly resided with the Wallaces and was willing to sell Reynoso a videocassette recorder (VCR) that she had left at the residence. Defendant admitted to the police that she knew Autumn would be home alone that afternoon because both Linda and April Wallace were at work. Upon arriving at the Wallace home, defendant told Reynoso to hold her baby son while she entered the residence.

Defendant admitted stabbing Autumn, initially telling the police that shortly after entering the house, she saw a knife on the ground and stabbed Autumn. Later in the interview, defendant told the police that she noticed and picked up the knife, which was on top of the washer or dryer near the rear bathroom, and then called Autumn into the bathroom and stabbed her. Defendant subsequently described taking the knife from a kitchen drawer after Autumn admitted her to the residence.

Defendant repeatedly stated that she acted alone in killing Autumn and repeatedly denied that either of the men who came with her to the Wallace residence knew of defendant’s plans to burglarize the house. Defendant told the police she decided to kill Autumn because the child could identify her as the perpetrator of the burglary. She explained that she took the knife into the bathroom with her and for several minutes considered killing Autumn. After calling Autumn into the bathroom, defendant removed some eyelash curlers from her makeup bag and asked Autumn to clean them for her.

Autumn agreed to do so, and after she turned around at defendant’s request, defendant began to stab her. Defendant told the police she repeatedly stabbed Autumn in the back, chest, and head. Defendant told the police that she next removed the television set from April’s room and a VCR from the living room and carried these items outside to the vehicle where Reynoso and the driver waited with Manny. Defendant went back inside the house and took a typewriter, mirror, telephone, clock radio, clothing, and pair of boots from April’s bedroom.

She removed a telephone, iron, lamp, radio, and Nintendo game from Linda Wallace’s bedroom, and a clock and a calculator from the living room. Defendant attempted to take a microwave oven but later determined it was too large to fit inside the automobile. Defendant took the knife she had used to stab Autumn with her when she departed from the Wallace residence.

Although defendant consistently maintained that Reynoso remained outside in the driveway with Manny throughout defendant’s commission of the homicide and the burglary, defendant was inconsistent during the course of the police interview in describing the whereabouts of the second man. Defendant initially said he exited from the vehicle to help her place the items she had removed from the Wallace residence inside the vehicle but did not enter the house. Later, defendant suggested that the man may have entered the residence.

When defendant explained her decision not to take the microwave, however, she implied that the man had gone inside the residence as far back as the rear bedroom. Defendant told the police that the vehicle driven to the Wallace residence was an older model, dark blue Camaro and that neither she nor Reynoso knew the identity of the driver. The police repeatedly challenged her description of the vehicle, telling her that numerous witnesses had described the car as a goldish-bronze or brown Monte Carlo. Defendant nonetheless repeated that the vehicle was blue and that she did not know the identity of the driver.

Despite being afforded numerous opportunities by the police to implicate another person in Autumn’s murder, defendant repeatedly insisted that she had acted alone. At trial, Reynoso testified that he and the driver, whom he did not know and could not identify, remained outside the Wallace residence, in or around the driveway, for approximately 10 minutes until defendant exited from the house carrying some household items. Reynoso testified that neither he nor the driver ever entered the Wallace home.

Reynoso confirmed at trial that defendant told him she formerly resided at the house and that he initially believed defendant when she told him she owned the property she had removed from the house. After loading the car, defendant, defendant’s son, and Reynoso were driven back to “Little Tijuana” by the second man. Reynoso variously testified that he decided not to buy the VCR, because he knew it was stolen, and conversely that he had grown angry because defendant had sold the VCR to someone else.

Reynoso testified he did not notice any blood on defendant and did not learn about Autumn’s murder until he read about it in the newspaper, at which time he turned himself in to the authorities. Reynoso was asked to identify the driver of the vehicle from a photograph (marked exhibit No. 89), but Reynoso testified that he did not recognize the man in the photograph as the driver. In attempting to identify the second Hispanic male (other than Reynoso) who had been observed by witnesses outside the Wallace home, police investigators considered more than 100 individuals.

The police identified but subsequently eliminated as a possible suspect a man named Robert Frias Gonzales. Investigator Giffin testified that the police pursued this part of the investigation because Giffin had difficulty believing that defendant could have committed the murder alone. Giffin concluded that defendant knew who the driver was but would not reveal his identity. As noted above, an autopsy revealed that Autumn Wallace suffered more than 50 stab wounds on her head, neck, upper portion of her torso, chest, front, and back. Wounds to Autumn’s heart and larynx caused her death.

The coroner testified that the angle of most of the wounds suggested they were inflicted contemporaneously, and that a paring knife, discovered on the floor near the murder scene and admitted as People’s exhibit No. 61, had a “configuration and appearance” that could easily have caused “most if not all of the injuries.” With regard to at least one of the wounds, the coroner could not state positively that it was caused by the paring knife. During the police investigation, Linda Wallace informed the police that a boning knife with a 12-inch blade was missing from her residence.

DNA testing conducted by the Orange County Sheriff’s Department crime laboratory revealed that blood found on the bottom of defendant’s LA Gear shoe was consistent with Autumn Wallace’s blood and was not consistent with defendant’s. Several shoe prints found on the linoleum floor outside the bathroom revealed the same general class characteristics as hash marks made by defendant’s LA Gear shoes. Additionally, defendant’s fingerprints and palm prints matched some of the 26 fingerprints and a palm print discovered at various locations in the house.

The paring knife and an eyelash curler were found on the bathroom floor next to Autumn’s body. Defendant waived her right to testify in her own defense, and the defense rested without calling any witnesses. The jury found defendant guilty of the charges and found true the allegation that she used a knife in the commission of the offense, as well as the special circumstance allegations that she committed the murder in the course of a first degree burglary and a robbery. D.

Evidence Received at the First Penalty Phase Trial At the first penalty phase trial, the prosecution rested after introducing a photograph of the murder victim taken when she was alive. The defense witnesses testified as follows: Manuel Cueva, defendant’s boyfriend and the father of three of defendant’s four children, testified that defendant was the loving and caring mother of four children, two of them twin boys bom after her arrest in the present case. Following her arrest, defendant continued to express concern for her children and to write and speak to them.

Janell Laird, a friend of defendant’s who had known her since preschool, testified that defendant’s father was an alcoholic who often vomited in front of them and struck defendant and her mother. Laird explained that she was afraid of defendant’s father, who eventually abandoned the family. Laird testified that defendant was in the sixth grade when she started using drags. Laird recounted that defendant had written her from jail, telling her of the importance of staying away from drags and living a law-abiding life.

Laird also testified that defendant had telephoned her from jail, telling her that Autumn Wallace did not deserve to die and that defendant never planned to harm her. Tamara Benedict, a neighbor of defendant’s during defendant’s childhood, remembered defendant’s father as a violent alcoholic. She testified that defendant dropped out of school in seventh grade, at which time she began to ran away from home and started injecting “speed balls,” a mixture of heroin and cocaine, as often as 50 times each day.

Defendant often told Benedict that defendant wanted to quit taking drags but was unable to do so because of her addiction. Benedict testified that defendant sometimes had sex with her drag dealers in order to obtain drags, had attempted to “clean up” on multiple occasions, and was able to obtain temporary employment. Defendant wrote Benedict several letters from jail, expressing sorrow for what she had done. Defendant’s mother, Sylvia Alfaro, testified that she worked 10 to 14 hours each day, sometimes seven days a week.

She testified that defendant’s father was an alcoholic, often struck both Sylvia and defendant in the presence of the other children in the family, and threw the family out of the home during drunken rages. Defendant began to be truant from school at the age of 11 years. Sylvia became aware of defendant’s drag problem when defendant was 12 years of age, and thereafter attended counseling with her three to four times a week. Defendant became a prostitute when she was 13 years of age in order to support her drag habit.

Thereafter, defendant was sent to reside with her grandmother in Mexico but was returned home within five months, after which defendant’s mother often found her on the streets, dirty, hungry, and shoeless. Defendant’s father refused to intervene and abandoned the family when defendant was 14 years of age, the same year defendant became pregnant with her first son, Danny. Sylvia Alfaro further testified that at one point, she placed defendant into a drug rehabilitation program, but defendant was discharged after 10 days because her insurance coverage expired.

Although defendant was able to avoid using drugs during her pregnancy, she resumed her drug use three months after Danny’s birth. Sylvia testified that she took defendant’s children to visit her in jail, and that she would continue to do so in the event defendant were to receive a sentence of life imprisonment without the possibility of parole. Sylvia did not want to see her daughter die. Dolores Onofre, who had known defendant since she was a child, testified that defendant’s father was an alcoholic who had acted violently in the presence of his children and had threatened to kill his wife.

Betty Clearly, a manager at a McDonald’s restaurant where defendant had worked briefly, testified that defendant was a good employee, dependable and congenial. Sylvia Archuleta, an employee of a Christian program called Teen Challenge, testified that she met defendant at the Orange County jail. She testified that defendant often cried and expressed sorrow for the grief she had caused the victim’s family.

Norman Morein, a sentencing consultant, testified that defendant had adjusted satisfactorily at the county jail and that her confrontation with an inmate, which Morein explained stemmed from the other inmate’s discussing defendant’s case with prison staff, was natural and expected behavior. Morein testified that defendant expressed genuine remorse and sorrow for the underlying crime, and that she had become religious since being incarcerated. Morein opined that defendant could have a positive influence on other persons if allowed to live. Dr.

Armando Morales, a psychosociologist, testified that defendant had a relatively stable childhood until the age of five years. Thereafter, she was abused by her violent and alcoholic father, was raped at the age of nine years by her father’s friend, experienced racism at school, and suffered from drug abuse. Dr. Morales opined that defendant developed emotional problems, including depression associated with trauma, which contributed to her substance abuse.

He further believed that in light of defendant’s stable early childhood, she was capable of developing close attachments and of being a positive influence on others. Morales testified that defendant felt remorse and empathy for the victim and her family. Defendant testified at the first penalty phase trial. She told the jury of her unhappy home life, her violent and abusive alcoholic father, the racial prejudice she suffered at school, and her problems with drug abuse. She testified that she began to use “hard” drugs in the sixth grade.

She was forced by economic circumstances to engage in prostitution shortly after becoming addicted to drugs. Defendant testified that she had stolen property to sell in order to pay for drugs. She described the extent of her drug problem and her mother’s efforts to address it by placing her into rehabilitation facilities.

Defendant also read a letter she had written to Autumn Wallace, expressing her sorrow and remorse for Autumn’s death and stating that “we took your innocent life.” The court ruled that defendant’s reference to “we” had “opened the door” to cross-examination regarding the circumstances of the crime. During cross-examination, defendant admitted she had murdered Autumn Wallace, but testified she had done so under pressure from the second Hispanic male, whom she referred to as “Beto.” She refused to reveal anything more regarding the identity of the second man.

She testified she had used cocaine and heroin shortly before going to the Wallace home, and was “out of [my] head.” She testified she did not know Autumn would be home and did not plan to harm her.

She also testified that Autumn recognized her before letting her into the house, that she gave Autumn her eyelash curlers and asked her to clean them, and that she had brought the curlers into the house because she “wanted to play the part.” Defendant testified that “Beto” also was “wired” on drugs, and that upon discovering Autumn in the house, he had become angry, put a knife to defendant’s back, and threatened to kill her baby if she did not stab Autumn.

Defendant testified she stabbed Autumn “a couple of times” initially, but claimed “Beto” must have inflicted the remainder of the stab wounds found on the victim’s body. She testified that when she came down from her “high,” she learned—but could not believe—that Autumn was dead. The prosecutor questioned defendant extensively regarding the identification of “Beto” that she had provided to Dr. Consuelo Edwards, a mental health expert who had examined defendant on behalf of the defense but had not testified.

Defendant testified that initially she told Edwards that the third man’s name was “Miguel” and that he was a friend of defendant’s father, and subsequently that she had told Edwards that the man’s name was, in fact, “Beto” and that on his neck a woman’s name was tattooed in cursive writing. Defendant identified as “Beto” the man depicted in the photograph marked exhibit No. 89.

In questioning defendant and Reynoso, defense counsel suggested that Robert Frias Gonzales was “Beto.” In rebuttal, the prosecution presented witnesses Robert Frias Gonzales and his sister Rosalinda Gonzales, both of whom testified that the police had contacted them and investigated Robert’s involvement in Autumn Wallace’s murder. Robert Gonzales testified that he is known as “Beto,” but explained he was home with his sister all day and night on the date of the homicide.

He was not the man depicted in the photograph labeled exhibit No. 89 whom defendant had identified as “Beto.” Ultimately, the jury at the first penalty phase trial was unable to reach a verdict, and the trial court declared a mistrial. E. Evidence Received at the Second Penalty Phase Trial At the penalty retrial, held in April 1992 before a newly sworn jury, Christina S., April Wallace, and Linda Wallace each testified for the prosecution regarding the grief and suffering they had endured as a result of Autumn Wallace’s death.

The prosecution also introduced testimony from most of the witnesses who had testified at the guilt phase of the trial. Defendant did not testify. Defense witnesses Manuel Cueva, Janell Laird, Tamara Benedict, Dolores Onofre, Sylvia Archuleta, Sylvia Alfaro, and Dr. Armando Morales testified again, in a manner substantially similar to their testimony at the first penalty phase trial. The defense additionally called the following witnesses.

Marc Taylor, a criminalist retained as an expert by the defense, testified that he examined various items of evidence, including pieces of clothing, bloodstained flooring, shoe prints, blood-spattered furniture, a bloodstained towel, plastic casts of shoe prints found outside the Wallace home, men’s and women’s LA Gear tennis shoes, boots, and sandals. Taylor testified that some of the shoe prints found inside and outside the house did not match defendant’s LA Gear shoes.

He testified his tests established that the bloodstains on the towel were caused by the wiping of a knife other than the weapon designated as exhibit No. 61. On cross-examination, Taylor acknowledged that examining blood wipes was not an exact science and that the patterns could have been caused by wiping a belt or a shoe on the towel.

Toby Silver, a registered nurse and mental health professional at the Orange County jail during defendant’s incarceration, testified that during clinical sessions, defendant exhibited signs of depression and low self-esteem, stated that she missed her children, and expressed remorse for her crimes. Kenneth Harer, a deputy sheriff at the Orange County jail, testified that he identified a man named “Beto” as a person who resembled the suspect depicted in a flier posted after the murder.

After he saw the flier, Harer remembered that he had seen the same man entering a blue Camaro parked across the street from the main jail. Gerardo Rangel, a bilingual school counselor who knew defendant while she was a junior high school student, testified that he met with defendant’s mother regarding her absenteeism and performance problems at school. Rangel attempted to help Sylvia Alfaro enroll defendant in drug rehabilitation programs but was unsuccessful because Sylvia could not afford the required fees.

Albert Lopez, a minister with Gleaners, an inmate ministry, testified that he visited with defendant on approximately 20 to 25 occasions at the Orange County jail and believed she exhibited remorse for having committed the crime. On one occasion, Lopez recalled, defendant cried in Lopez’s presence, and he believed her sorrow to be genuine. Finally, defense counsel presented Dr. Consuelo Edwards as a mental health expert witness. Dr.

Edwards, a medical doctor trained in Spain, testified extensively regarding defendant’s childhood, referring to her abusive father, her drug use, her multiple pregnancies, her limited work as an employee at McDonald’s, and her relationship with Manuel Cueva. Edwards described defendant’s intellectual functioning as “borderline,” opining that she had an IQ of 78 and learning disabilities that were exacerbated by her traumatic experiences as a child. In Dr.

Edwards’s opinion, defendant was a passive and dependent person with low impulse control, a condition that was further compromised when she was under the influence of drugs. Edwards described defendant as a follower. Dr.

Edwards also testified that although defendant admitted to her that she had killed Autumn Wallace, and defendant described in detail the events preceding the homicide, she refused to answer any questions regarding the second Hispanic male, other than to say he was a friend of her father’s named “Miguel.” Edwards testified that defendant told her “Miguel” had threatened to kill defendant and her baby unless she killed Autumn Wallace, and that after stabbing the victim four or five times, defendant ran from the room, not having planned to kill her.

In a subsequent interview with defendant, Edwards told defendant that her defense attorney had shown Edwards a photograph of “Beto,” whom the defense identified as the man seen outside the Wallace residence. At that time, defendant agreed that the man with her on the day of the murder was named “Beto.” Edwards testified that defendant had expressed great sorrow for her involvement in the crime.

Edwards was of the opinion that defendant was legally sane at the time of the crime, but was suffering from an ongoing organic mental disorder and was under the influence of drugs, either because of intoxication or withdrawal. Edwards also diagnosed defendant as having attention deficit disorder, learning disabilities, a conduct disorder characterized by childhood antisocial behavior, an adjustment disorder characterized by anxiety and depression, and a dependent personality disorder. Edwards was of the opinion that defendant was not malingering, and that she possessed the potential for change and improvement.

In rebuttal, the prosecutor presented the testimony of several Orange County jail employees. One employee testified he had seen defendant strike another inmate. Other jail employees testified to having heard her comment during a conversation with another inmate: “I’m a frustrated person who takes things out on people, and have to learn to live with that,” and “I’m not going to be able to do this again. I’m no actor. I’m going to be cold this time.

I just want to get this over with.” The prosecution presented in rebuttal the testimony of Orange County Sheriff’s Department Investigator Robert Harper, who contradicted the defense claim that Robert Frias Gonzales was the person outside the Wallace home identified as Beto. Harper testified that Gonzales had a butterfly tattoo on his neck, but not a tattoo of a woman’s name. Investigator Thomas Giffin testified that defense witness Lopez stated he was going to marry defendant when her trial was concluded.

The prosecution also called a consulting psychologist, Martha Rogers, who had conducted psychological testing of defendant on behalf of the defense and whose notes and raw data were provided to Drs. Morales and Edwards by defense counsel. Rogers was questioned regarding the meaning of the phrase “probable fake bad,” which she had entered in her written notes. As discussed below in detail, Rogers testified that this phrase was susceptible of multiple meanings, among them malingering. After argument and instructions, the matter was submitted to the second penalty phase jury, which returned a verdict of death. II.

Discussion A. Guilt Phase Issues 1. The Trial Court’s Asserted Failure to Address an Alleged Conflict Between Defendant and Defense Counsel Concerning Defendant’s Desire to Enter a Plea of Guilty Defendant contends the trial court erred by failing to address adequately a conflict that arose between defense counsel and defendant concerning her desire to enter a plea of guilty shortly before the commencement of the guilt phase of the trial.

Defendant maintains that she repeatedly informed her counsel that she wished to plead guilty but that counsel “unreasonably withheld” consent to a guilty plea and thereafter insisted on presenting a defense that ultimately proved to be unsuccessful and prejudiced defendant’s ability to demonstrate at the penalty phase her remorse and acceptance of responsibility.

Defendant asserts that the trial court failed to conduct an adequate inquiry into the alleged conflict between defendant and her counsel regarding her desire to enter a plea of guilty, and that, had such an inquiry been conducted, the trial court would have determined that counsel’s refusal to consent was unreasonable. Defendant further asserts that as a result of the trial court’s inaction, she was deprived of her right to plead guilty and that such a plea would have enhanced her defense at the penalty phase. Although defendant concedes that the plain language of

section 1018 conditions a guilty plea in a capital case upon the consent of counsel, she urges that a trial court nonetheless has a duty to ensure that defense counsel does not unreasonably withhold such consent. Defendant asserts that the trial court’s alleged error deprived her of her constitutional right to the assistance of counsel, of control over her own defense, and of her right to a fair trial. For the reasons that follow, we find no error in the trial court’s inquiry into, and resolution of, the purported conflict between defendant and her counsel regarding her plea. a.

Factual Background On the day of defendant’s arrest in late June 1991, police officers gave defendant Miranda advisements (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), and thereafter she agreed to be interviewed by law enforcement officers without counsel being present. In a four-hour videotaped confession, she assumed complete responsibility for the murder of Autumn Wallace.

Defendant described in detail the circumstances of the crimes, including her intention to steal property when she entered the Wallace home, as well as taking a knife from the drawer in the kitchen shortly after entering the residence. Defendant admitted that she inflicted all of Autumn’s wounds, specifically acknowledging that no one else participated in the murder and that she knew the wounds she inflicted could cause death.

In mid-February 1992, 11 days prior to the commencement of jury selection, defendant’s counsel filed an in camera “request for special instruction” wherein he informed the court: “My client . . . refuses to follow my instructions and take the stand and implicate ‘Beto’... If my client insists on pleading guilty to the special circumstances, it is against my most vigorous advice.

I am requesting instructions from the court as to whether or not the court believes it is necessary for me to withdraw from the case at this late stage or whether or not I should remain on the case.” The following day, the court met with defense counsel, William Monroe, and defendant ex parte.

During the lengthy ensuing discussion, Monroe described an “out and out conflict” between himself and defendant regarding her desire to plead guilty and his “wish to proceed to trial on the guilt phase.” Monroe told the court that because of fears for the safety of defendant and her family should she implicate “Beto” in the crime, defendant “adamantly refused” to allow counsel to call “Beto” as a witness, to cross-examine Antonio “Shorty” Reynoso pregarding his relationship with “Beto,” or to question any other witnesses regarding a possible identification of “Beto.” Monroe also informed the court that defendant would not testify and implicate “Beto” in Autumn’s murder, because of fears for her safety, and that she sought to plead guilty “against my vigorous, vigorous advice.” The trial court explained that pursuant to Penal Code

section 1018, it did not have authority to accept a guilty plea from a defendant in a capital trial without the consent of counsel, and accordingly, even if she desired to do so, defendant could not enter a guilty plea without counsel’s consent. Ultimately, the court refused to remove counsel from the case, concluding that the asserted conflict between defendant and her counsel was one involving trial tactics and, as such, did not require the removal of counsel or the appointment of new counsel.

Nearly a week after this hearing, defense counsel filed a motion to suppress evidence of defendant’s videotaped confession, arguing that drugs affected her judgment and rationality at the time of the confession, and asserting that introduction of the confession would violate defendant’s right to counsel, privilege against self-incrimination, and right to due process of law. The court denied the motion, concluding that defendant’s statements were voluntary and that the amount of drugs in her system did not affect her ability to waive her rights knowingly and voluntarily.

The trial proceeded, and during cross-examination of the prosecution’s witnesses, Shorty Reynoso and Tom Giffin, as well as in his closing argument, defense counsel suggested that “Beto” was a “second killer” who goaded defendant into murdering Autumn Wallace by threatening to harm defendant’s family unless she committed the murder (purportedly to eliminate the victim as an eyewitness to the robbery). As expected, the defense rested its case without defendant testifying on her own behalf.

A few days later, the jury found defendant guilty on all charges, finding that the murder was of the first degree and that the alleged special circumstances were true. During both the first and second penalty phase trials, the district attorney told the jury that defendant had not accepted responsibility for the murder and that she lacked remorse. The jury did not hear evidence reflecting that prior to the guilt phase trial, defendant had attempted to accept the prosecutor’s offer to enter an unconditional plea of guilty. b.

Analysis As a threshold matter, the parties vigorously disagree with respect to whether the guilty plea proffered by defendant was conditional or unconditional. Defendant contends that the discussion between the trial court and defense counsel clearly establishes that defendant sought to enter an unconditional plea.

The Attorney General maintains, on the other hand, that defendant sought to enter a conditional plea of guilty, that is, she desired to plead guilty in exchange for receiving a sentence of life imprisonment without the possibility of parole—and that this offer was communicated by defense counsel to the prosecutor, who rejected the offer.

The Attorney General reasons that because evidence of a desire to plead guilty conditionally (that is, in exchange for an agreement to avoid the death penalty) would not have provided evidence that defendant was remorseful, defense counsel did not render ineffective assistance by refusing to accede to defendant’s wish, and the trial court did not err in failing to further investigate the purported conflict. The record supports the inference that defendant had communicated to her counsel a desire to enter an unconditional guilty plea.

The transcript of the in camera proceedings conducted to discuss defense counsel’s “request for special instruction” reflects that defense counsel and the trial court discussed defendant’s desire to plead guilty to a capital offense and that doing so could subject her to the death penalty. When the trial court asked defendant what she wanted to do, she answered, without any expressed condition, “plead guilty.” Defense counsel stated several times that his objection to entry of a guilty plea was based upon his refusal to allow defendant to plead guilty to a capital offense.

Counsel stated, “I can’t turn around and say I consent to allow my client to plead guilty when I know she’s pleading guilty for all intents and purposes to a death sentence,” and “A twenty year old child is going to plead guilty to a death penalty?” The trial court, in turn, expressed doubt that any attorney in Orange County “would consent to somebody pleading guilty to a capital offense.” The clear inference is that defense counsel withheld his consent to what he perceived as an unconditional guilty plea.

Moreover, approximately one week after the foregoing hearing, the prosecution moved to exclude evidence of defense counsel’s offer to “allow his client to plead guilty to life without possibility of parole in lieu of the death penalty. In lieu of us seeking the death penalty.” Thus, it appears that defense counsel specifically offered that defendant would plead guilty in exchange for a sentence of life imprisonment without possibility of parole.

Accordingly, it is apparent that the conflict between defendant and counsel that was the subject of the in camera discussion concerned defendant’s desire to enter an unconditional guilty plea and her attorney’s refusal to consent to her doing so. Turning to the substance of defendant’s argument, we note at the outset that defendant did not make an unequivocal request to discharge her counsel, William Monroe, and to represent herself. Rather, Monroe himself sought guidance from the court regarding what he feared was an “irreconcilable” conflict.

Nonetheless, although defendant acknowledges that she did not herself invoke her right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta), she contends that a defendant’s right to self-representation under Faretta encompasses a duty on the part of the trial court to ensure that defense counsel does not unreasonably withhold consent to the entry of a guilty plea in a capital case.

Reasoning that a defendant has the ultimate, fundamental right to control his or her own defense, and contending that defendant desired to plead guilty in order to establish her acceptance of responsibility that in turn would enhance her penalty phase defense, defendant argues that she had the right to enter an unconditional plea of guilty against the advice of counsel and that the trial court erred in not allowing her to do so.

Section 1018, limiting a defendant’s right to plead guilty in a capital case, is one of several exceptions to the general rule recognizing “ ‘the need to respect the defendant’s personal choice on the most “fundamental” decisions in a criminal case.’ ” (People v. Bloom (1989) 48 Cal.3d 1194, 1221-1222 & fn. 6 [259 Cal.Rptr. 669, 774 P.2d 698].) Indeed, “it is difficult to conceive of a plainer statement of law than the rule of

section 1018 that no guilty plea to a capital offense shall be received ‘without the consent of the defendant’s counsel.’ ” (People v. Chadd (1981) 28 Cal.3d 739, 746 [170 Cal.Rptr. 798, 621 P.2d 837] (Chadd).) We considered

section 1018’s consent requirement in Chadd, supra, 28 Cal.3d 739, in which we held that the trial court committed prejudicial error in accepting the defendant’s plea of guilty without obtaining the consent of his counsel. (Id. at p. 746.) The capital defendant in Chadd initially pleaded not guilty, but after attempting suicide, he waived his right to a preliminary hearing and through his appointed counsel informed the court that he sought to plead guilty against the advice of counsel.

As characterized by the defendant’s counsel, his “ ‘basic desire [was] to commit suicide,’ ” and the defendant was “ ‘asking for the cooperation of the State in that endeavor.’ ” (Id. at p. 744.) Indeed, when the trial court directly inquired, the defendant in Chadd expressly confirmed that he was seeking the court’s assistance in committing suicide. The trial court found the defendant competent within the meaning of Faretta, reasoning that a finding of competence under that decision justified a departure from the consent requirement of

section 1018. Although the court did not officially relieve counsel, it accepted the defendant’s guilty plea to first degree murder and his admission of all charged enhancements and special circumstances, despite counsel’s continuing objections. Thereafter, a penalty phase jury imposed a judgment of death. (Chadd, at p. 748.) Emphasizing the plain language of

section 1018, and concluding the trial court committed prejudicial error in accepting the defendant’s plea, we reversed the judgment of death. (Chadd, supra, 28 Cal.3d at pp. 754—755.) Although acknowledging that in California’s system of criminal justice, the decision how to plead to a criminal charge is personal to the defendant, we also emphasized that “it is no less true that the Legislature has the power to regulate, in the public interest, the manner in which that choice is exercised.” (Id. at pp. 747-748.) We specifically considered the interplay between the

section 1018 consent requirement and the Sixth Amendment right of self-representation discussed in Faretta, and observed that, as Faretta recognized, the Sixth Amendment grants the right to defend directly to the accused, because he or she suffers the consequences in the event the defense fails. (Chadd, at p. 751.) In rejecting the Attorney General’s contention that therefore the so-called veto power vested in defense counsel renders

section 1018 unconstitutional, we explained that “in capital cases ... the state has a strong interest in reducing the risk of mistaken judgments.

Nothing in Faretta, either expressly or impliedly, deprives the state of the right to conclude that the danger of erroneously imposing a death sentence outweighs the minor infringement of the right of self-representation resulting when defendant’s right to plead guilty in capital cases is subjected to the requirement of his counsel’s consent.” (Chadd, supra, 28 Cal.3d at p. 751.) Defendant urges us to revisit and limit our holding in Chadd because unlike the defendant in that case—who sought to waive any defense entirely and confirmed unambiguously that his desire to plead guilty amounted to an attempt to commit suicide with state assistance—defendant in the present case sought to plead guilty in order to help establish a foundation for a “remorse” defense at the penalty phase.

But we need not decide in this case whether Chadd would apply to a defendant’s desire to enter a guilty plea as part of a strategy to obtain a life sentence at the penalty phase, because the record here does not indicate that defendant sought to plead guilty in furtherance of such a strategy. Instead, the record supports an inference that defendant desired to plead guilty in order to avoid testifying against “Beto,” whom her counsel sought to implicate as an accomplice in the murder of Autumn Wallace.

During the ex parte colloquy prior to jury selection, defense counsel informed the court that defendant refused to testify because she was in “absolute fear of her safety and she’s in absolute fear of the safety of her family should it become known to Beto that we in some way, shape, or form, for lack of a better term, have given him up.” Although defense counsel did not state explicitly that defendant’s desire to plead guilty and her refusal to testify were interconnected, the tenor of the lengthy discussion clearly supports that inference.

Defendant, who was present at the colloquy, did not dispute counsel’s characterization of her position and said nothing more than that she desired to “plead guilty.” In particular, she made no overt or implicit reference to remorse or a desire to take responsibility for the crime. Thus, as defense counsel informed the trial court, although defendant told him that “Beto” had pressured her to murder Autumn by threatening defendant’s child, she refused to testify to that effect, because she allegedly continued to fear for the safety of herself and her family.

In other words, it appears that defense counsel reasonably believed that defendant sought to plead guilty to a capital offense not in order to help establish a foundation for a defense of “remorse” at the penalty phase, but instead to avoid naming an alleged coconspirator and thus protect herself and her family from harm. Defense counsel’s refusal to consent to a guilty plea under these circumstances was not unreasonable. As we recognized in Chadd, the 1973 statutory revision adding to

section 1018 the requirement of counsel’s consent was part of a more extensive revision of California’s death penalty legislation and thus was intended to serve as a “further independent safeguard against erroneous imposition of a death sentence.” (Chadd, supra, 28 Cal.3d at p. 750.) In Chadd, we explained that “ ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.’ ” (Chadd, supra, 28 Cal.3d at p. 748, quoting Boykin v. Alabama (1969) 395 U.S. 238, 242 [23 L.Ed.2d 274, 89 S.Ct. 1709].) The consent requirement of

section 1018 has its roots in the state’s strong interest in reducing the risk of mistaken judgments in capital cases and thereby maintaining the accuracy and fairness of its criminal proceedings. (Chadd, at pp. 750, 753.) The statute constitutes legislative recognition of the severe consequences of a guilty plea in a capital case, and provides protection against an ill-advised guilty plea and the erroneous imposition of a death sentence. Defense counsel’s refusal to consent to defendant’s guilty plea under the present circumstances was well within the purview of our holding in Chadd.

Although defendant did not seek to enter a guilty plea in order to effectuate a state-assisted suicide, the record demonstrates that she nonetheless sought to waive her right to present a defense in order to prevent the presentation of evidence regarding an accomplice—evidence that her counsel believed would mitigate her culpability for the murder. Had defense counsel capitulated to defendant’s desire to plead guilty unconditionally despite the information she had conveyed to him implicating another person in the murder, defendant’s plea would have cast doubt on potentially critical mitigating evidence.

A guilty plea entered under such circumstances might very well lead to the erroneous imposition of the death penalty—precisely the outcome

section 1018 is intended to prevent. We likewise reject the claim that counsel’s refusal to consent to the guilty plea became unreasonable because defendant’s refusal to testify at the guilt phase of her trial hindered counsel’s presentation of her defense. Defendant contends that because counsel was well aware she would not testify, and because the defense strategy would be substantially undercut by defendant’s silence, counsel should have consented to defendant’s entering an unconditional guilty plea.

However, in view of the circumstance that the trial court admitted into evidence the videotape of defendant repeatedly confessing to the murder of Autumn Wallace, defense counsel was not unreasonable in attempting to present a defense that would mitigate defendant’s culpability in the crime. Defendant faults the trial court for failing to inquire into defendant’s reasons for desiring to plead guilty.

She claims that had the trial court done so, it would have discovered that defendant sought to take responsibility for the crime in order to demonstrate her remorse, and that defense counsel’s refusal to consent was patently unreasonable in light of the weak defense case. Although defendant vigorously argues that the trial court had a duty to intervene after it was apprised of the conflict between defendant and her counsel, there is no express duty on the part of the trial court to ensure that counsel’s consent to a guilty plea is not unreasonably withheld.

Even assuming the existence of such a duty, the trial court conducted a complete and adequate inquiry into the purported conflict between defendant and her counsel in the present case. The court reasonably relied upon counsel’s representation, unrebutted by defendant, that the conflict concerned defendant’s desire to plead guilty in order to avoid testifying against “Beto,” who might retaliate against her and her family.

Although defendant had ample opportunity during the lengthy ex parte discussion between defense counsel and the court to elaborate on her motivation to enter a guilty plea, she told the court only that she wished to “plead guilty.” Moreover, as we have held in the context of Marsden hearings (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden)), any conflict over the wisdom of presenting evidence that “Beto” had pressured defendant into participating in the murder was merely a dispute over tactics and would not by itself constitute an “ ‘irreconcilable conflict.’ ” (People v.

Cole (2004) 33 Cal.4th 1158, 1190 [17 Cal.Rptr.3d 532, 95 P.3d 811] (Cole); People v.

Welch (1999) 20 Cal.4th 701, 728-729 [85 Cal.Rptr.2d 203, 976 P.2d 754] (Welch)) Indeed, as we noted in Cole, a “ ‘defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.’ ” (Cole, supra, 33 Cal.4th at p. 1192, quoting Welch, at p. 728.) Defendant contends the decision how to plead is “fundamental,” and therefore her disagreement with counsel concerned a fundamental aspect of her defense that the trial court should have recognized must remain within defendant’s control.

As set forth above, however, nothing in the record supports defendant’s contention that her desire to plead guilty was motivated by a desire to establish a defense of remorse or to demonstrate her acceptance of responsibility for the murder so that a lesser punishment might be imposed at the penalty phase. Accordingly, the trial court reasonably concluded that the dispute between defendant and her counsel did not implicate a constitutionally protected fundamental interest that might override the plain terms of

section 1018. Defendant also contends that if the trial court believed defendant’s desire to plead guilty was unreasonable, it had a duty to order a competency hearing. There is no indication in the record, however, that the trial court believed defendant’s desire to plead guilty was unreasonable. The trial court recognized that defendant sought to plead guilty, that defense counsel would not consent, and that the dispute was one involving tactics, requiring no action on the court’s part.

Defense counsel did not mention any issue concerning defendant’s competency, and explained that defendant’s desire to plead guilty was the product of her alleged fear of testifying against “Beto.” In addition, defendant did not provide any indication that she was incompetent. The trial court had no duty to inquire further into defendant’s competence. Defendant further faults the trial court for failing to appoint second counsel after defense counsel conveyed the circumstances of the conflict between himself and defendant and suggested that another counsel be appointed to advise defendant.

Section 987, subdivision (

d) provides in relevant part: “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. . . . 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.” (See also People v.

Keenan (1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d 108].) Defendant concedes that defense counsel did not file a written request for cocounsel as required by

section 987, subdivision (d), but asks that we interpret defense counsel’s oral suggestion as a formal request for Keenan counsel. We decline to do so. The sole allusion to such a request was defense counsel’s suggestion that second counsel might be appointed to advise defendant regarding the consequences of her decision not to testify. The trial court was not requested to, and did not, rule on a formal motion to appoint second counsel. Thus, the issue was not preserved for appeal. (Evid. Code, § 353, subd. (a); People v.

Alvarez (1996) 14 Cal.4th 155, 186 [58 Cal.Rptr.2d 385, 926 P.2d 365].) In the alternative, defendant asserts that defense counsel rendered ineffective assistance by failing to invoke the trial court’s discretion to appoint a second attorney to assist counsel at the guilt and penalty phases of this capital case. (People v.

Keenan, supra, 31 Cal.3d at p. 430; § 987, subd. (d).) Defendant asserts that (1) her case was unusually daunting, (2) counsel was overwhelmed and improperly relied on his investigator to perform tasks that should have been performed by an attorney, (3) the lack of cocounsel led to presentation of a deficient and ill-advised defense that relied solely upon a “duress” theory that ultimately was not available to absolve defendant of responsibility for the murder of Autumn Wallace, and (4) counsel was not prepared to offer evidence in mitigation at the penalty phase, which required the development of issues and evidence different from what was presented at the guilt phase.

The record on appeal does not establish that counsel provided constitutionally inadequate assistance in failing to request cocounsel. Nothing in the record demonstrates that Monroe performed below constitutional standards, especially in light of the lack of cooperation he received from defendant. (People v.

Michaels (2002) 28 Cal.4th 486, 523 [122 Cal.Rptr.2d 285, 49 P.3d 1032] (Michaels).) To the contrary, the record reveals that defense counsel sought to present a defense that would minimize defendant’s culpability based upon her own description of the events, and that possibly would avoid imposition of the death penalty.

The circumstance that defendant refused to assist counsel in presenting that version of the events to the jury, allegedly because she was afraid of the consequences of further identifying the second man, thereby hindering presentation of her defense, does not render unreasonable the refusal of counsel to accede to defendant’s desire to plead guilty or counsel’s continuing representation inadequate.

Moreover, the cooperation between Monroe and his investigator in performing “quasi-legal” tasks such as examining appropriate areas of defense and/or mitigation was not improper and does not demonstrate that Monroe was overwhelmed in conducting the defense. In any event, “because the claim is presented as one of ineffective assistance of counsel, relief depends solely on whether counsel’s error, if any, may have affected the outcome.” (People v. Webster (1991) 54 Cal.3d 411, 437 [285 Cal.Rptr. 31, 814 P.2d 1273], citing Strickland v.

Washington (1984) 466 U.S. 668, 692-693 [80 L.Ed.2d 674, 104 S.Ct. 2052] (Strickland)) The record does not reflect that, but for counsel’s refusal to permit defendant to enter an unconditional guilty plea, or his failure to request appointment of second counsel, a more favorable verdict was reasonably probable. (Michaels, supra, 28 Cal.4th at p. 525.) 2.

Failure to Admit Evidence of Offer to Plead Guilty Defendant urges that the trial court erred in ruling inadmissible defendant’s offer to plead guilty, thereby depriving her of crucial mitigating evidence and violating her constitutional right to due process of law. As discussed in detail above, after extensive in camera consultation between defense counsel and the trial court regarding defendant’s desire to enter a guilty plea, the trial court concluded no irreconcilable conflict between defendant and her counsel existed, and the case proceeded to trial.

The transcript of those in camera proceedings discloses that defense counsel believed that defendant sought to enter an unconditional plea of guilty, and counsel’s refusal to grant consent was based upon his concern that defendant would be “pleading guilty for all intents and purposes to a death sentence.” Thereafter, the prosecutor, who was not present at the in camera proceedings, made a pretrial motion to exclude evidence of defense counsel’s offer to enter a conditional plea of guilty.

The prosecutor contended that although an offer of an unconditional guilty plea would be relevant mitigating evidence, defendant’s offer to plead guilty on condition that she receive a sentence of life imprisonment without possibility of parole did not constitute mitigating evidence and should be excluded from consideration by the jury. It is evident from the colloquy between the prosecutor and the trial court that the prosecutor’s in limine motion sought solely to exclude evidence of defendant’s conditional offer to plead guilty.

In opposing the motion, defense counsel reiterated the offer to enter a conditional guilty plea in order to demonstrate that defendant indeed felt remorse for her commission of the crime. In response, the prosecutor stated that pursuit of the death penalty in this case was nonnegotiable and that only an unconditional plea of guilty would constitute evidence of remorse. The trial court granted the prosecutor’s motion and prohibited defense counsel from introducing evidence—at either the guilt phase or the penalty phase—of defendant’s conditional offer to plead guilty.

The court reasoned that a mere offer to plead guilty, on condition that the prosecutor not seek the death penalty, would not be relevant evidence at the guilt phase and would not be the proper subject of mitigating testimony at the penalty phase. Ultimately, no evidence of defendant’s unaccepted conditional offer to plead guilty was presented at either the guilt or the penalty phase of trial.

The Attorney General urges that defendant forfeited her claim because after the court made its ruling, defense counsel did not raise the issue with the court again or attempt at either of the two penalty phase trials to introduce evidence of defendant’s conditional offer to plead guilty. “While it may not be necessary to renew an objection already overruled in the same trial [citation], absent a ruling or stipulation that objections and rulings will be deemed renewed and made in a later trial [citation], the failure to object bars consideration of the issue on appeal.” (People v.

Clark (1990) 50 Cal.3d 583, 623-624 [268 Cal.Rptr. 399, 789 P.2d 127].) Defendant’s claim of error relates to the exclusion, from her penalty retrial, of evidence of her unaccepted conditional offer to plead guilty.

Defendant’s claim is forfeited, because the prosecutor did not renew his motion to exclude evidence of defendant’s unaccepted conditional offer to plead guilty at the penalty retrial, no stipulation was entered into regarding the renewal of objections and rulings at defendant’s penalty retrial, and defendant did not herself seek to present evidence of her earlier conditional plea offer in mitigation at her penalty retrial. Defendant’s claim also fails on the merits.

The jury at the second penalty phase trial was presented with extensive evidence of defendant’s remorse, including her full taped confession, during which she repeatedly expressed remorse for her commission of the crime. The jury also heard the testimony given by defendant at her first penalty trial, in which she read a letter she had written to the victim and her family expressing remorse for committing the murder. Finally, numerous defense witnesses described defendant’s sorrow and remorse concerning the murder, and provided multiple accounts of defendant breaking down and crying because of her remorse.

The admission of defendant’s offer to enter a conditional plea of guilty to demonstrate her remorse and her acceptance of responsibility for the crime would have been cumulative to these accounts. There is no reasonable possibility the outcome would have been different had the trial court admitted evidence of defendant’s conditional offer to plead guilty. (People v. Robinson (2005) 37 Cal.4th 592, 641-642 [36 Cal.Rptr.3d 760, 124 P.3d 363]; People v.

Brown (1988) 46 Cal.3d 432, 448 [250 Cal.Rptr. 604, 758 P.2d 1135].) Although the prosecutor’s motion to exclude the offer to enter the guilty plea, and the ensuing discussion between the parties and the trial court at the hearing, focused solely upon defendant’s conditional offer to plead guilty, defendant now contends that the trial court erred in granting the motion because, as the court was well aware, defendant sought (but was not permitted) to enter an unconditional plea of guilty at the February 21, 1992 in camera hearing.

Defendant apparently contends the trial court had a duty, on its own motion, specifically to acknowledge and admit evidence of defendant’s desire to plead guilty unconditionally, having become aware at the in camera proceedings of that desire. As noted above, defendant’s claim of error relates to exclusion of this evidence at the penalty retrial, but because defendant did not seek admission of such evidence at that trial, defendant’s claim is forfeited.

To the extent defendant argues the trial court had an independent duty to raise the issue on its own and thereafter offer and admit such evidence at her penalty retrial, defendant does not offer any authority recognizing such a duty, and we decline to impose such an obligation on the trial court. Defendant contends defense counsel rendered ineffective assistance of counsel in failing to seek admission of evidence of defendant’s willingness to plead guilty unconditionally and failing to cite People v.

Williams (1988) 45 Cal.3d 1268 [248 Cal.Rptr. 834, 756 P.2d 221], to the trial court for the proposition that an offer to plead guilty might be admissible as mitigating evidence in a capital case if tending to demonstrate remorse. As we discussed above, trial counsel presented extensive evidence to the second penalty phase jury relating to defendant’s remorse.

Accordingly, trial counsel’s failure to seek admission of evidence of defendant’s desire to plead guilty unconditionally, or to cite authority supporting the admission of such evidence, was harmless because no reasonable probability exists that, but for counsel’s failure to seek the admission of such evidence, the result of the proceedings would have been more favorable to defendant. (People v. Stanley (2006) 39 Cal.4th 913, 965 [47 Cal.Rptr.3d 420, 140 P.3d 736] (Stanley); Strickland, supra, 466 U.S. at pp. 688, 694 [104 S.Ct. 2052].) 3.

Failure to Close the Trial Proceedings During Defendant’s Testimony Defendant contends the trial court erroneously denied her request to close the guilt phase proceedings to the public so that she might testify regarding the actions of the second man, “Beto,” without fearing for her safety.

After the prosecution had rested its case-in-chief, defendant moved to exclude the press and the public from the courtroom while defendant testified, asserting that their presence “during her testimony will be so prejudicial to the defendant that she will be deprived of a fair trial.” Defendant’s declaration in support of the motion summarized her intended testimony and stated she feared retaliation from the “other male Hispanic” if she testified in open court.

The declaration concluded: “If I testify in public so the newspapers get the information and I identify this male Hispanic, I believe my family will be harmed because the man is still out in the community, [f] I cannot and will not testify unless my testimony is taken in a closed courtroom with my testimony sealed.” Defendant further declared that the second Hispanic man induced her to murder Autumn Wallace by threatening to harm her and her family if she did not “do something about Autumn.” During the colloquy with defense counsel at the hearing, the trial court observed there was no evidence that defendant’s mother or children ever had been threatened with harm, or that the unidentified man was “even in the area or counsel would have been able to locate the person.” The court further advised that the defense of duress was not available in a capital murder case, that the facts did not support an aider and abettor theory of culpability, and that therefore it was unclear that defendant could present a defense based upon the proposed testimony.

The court observed that the clear inference from the declaration was that defendant did, in fact, know the identity of the second man and that therefore her testimony in open court might facilitate his identification and apprehension. The court also explained that closing the courtroom to the public during defendant’s testimony might lead the jury to infer that the court attached some credibility tó defendant’s testimony or “in fact, believed that there was a valid threat to exclude the public during her testimony. And I don’t believe any instruction to the contrary would alleviate the possible danger of that

interpretation.” Although many of defendant’s claims on appeal are founded upon the premise that defense counsel rendered ineffective assistance by presenting a third party culpability defense, she implicitly embraces that same defense in advancing her present claim of error. She contends the trial court’s failure to close the trial prevented her from testifying because of her fear for the safety of her family, and was prejudicial because her testimony would have provided evidence in mitigation at the penalty phase.

As we have recognized, the trial court in unusual circumstances may exercise its discretion to close portions of a criminal trial to the public without the consent of the defendant for good cause in order to promote the interests of justice or for the protection of witnesses or parties. (People v. Cummings (1993) 4 Cal.4th 1233, 1298-1299 [18 Cal.Rptr.2d 796, 850 P.2d 1] (Cummings); People v. Cash (1959) 52 Cal.2d 841, 846 [345 P.2d 462], citing discussion in Kirstowsky v.

Superior Court (1956) 143 Cal.App.2d 745 [300 P.2d 163].) The trial court in Kirstowsky ordered the courtroom closed during the testimony of the defendant at a murder trial because she intended to testify regarding embarrassing “abnormal sexual practices” that had been “enforced upon her,” and because she was experiencing extreme emotional disturbance and would be unable to testify on her own behalf unless she could do so in a courtroom closed to the public and the press. (Kirstowsky, supra, 143 Cal.App.2d at p. 748.) The trial court below distinguished Kirstowsky, because the present case did not involve any abnormal practices, sexual or otherwise, and there was “no evidence that our accused is in the condition of extreme emotional disturbance and bewilderment at the prospect of testifying.” A court may restrict attendance by members of the public only if restriction is necessary to preserve a defendant’s right to a fair trial. (Cummings, supra, 4 Cal.4th at p. 1299.) In the present case, we find no error, because defendant has not established she was denied the right to a fair trial by the court’s ruling. (Id. at pp. 1298-1299.) Defendant was aware of her right to testify and willingly chose not to exercise that right.

She admitted that she had not been threatened to refrain from testifying, and that the only actual “threats” were those allegedly made by the unidentified man on the day of the murder and several days thereafter, a time (as the trial court noted) one and a half years earlier. In any event, defendant did not suffer any prejudice from the denial of her motion. She testified during her first penalty phase trial. When the subject of the second man’s identity was raised during defendant’s cross-examination, defendant refused to answer, stating she was “scared” to identify him.

As the Attorney General points out, defendant could have taken a similar course of action during the presentation of testimony at the guilt phase portion of her trial. Finally, in view of the admission in evidence of defendant’s lengthy and detailed videotaped confession, it is not reasonably probable that her testimony regarding the involvement of the second man in the murder would have changed the outcome of the guilt phase. Defendant contends her testimony would have provided mitigating evidence at the second penalty phase trial.

But her testimony at the first penalty phase trial was read to the jury at the penalty phase retrial, and therefore any error in denying the motion to exclude the public from the trial during the guilt phase would have been harmless. B. Voir Dire Relating to the Guilt and Penalty Phases of Trial 1. Restriction Regarding the Age of the Victim Defendant contends the trial court committed numerous errors in conducting voir dire during the guilt phase of the trial and the penalty phase retrial. For the reasons that follow, we find no error.

Defendant asserts the trial court erred in denying defense counsel’s request for additional voir dire, at both the guilt phase and second penalty phase, regarding the victim’s age.

With respect to the guilt phase, defense counsel proposed a juror questionnaire that included the questions: (1) “It is expected that you will hear testimony regarding the multiple stabbing death of a eight-year-old girl.[] Do you expect that such testimony would so upset you that you could not honestly be fair and impartial?” and (2) “If such evidence is introduced and proved to your individual satisfaction beyond a reasonable doubt, do you believe that would prompt you to automatically urge the death penalty regardless of any potential mitigating factors?” In a second proposed juror questionnaire, defense counsel proffered the following question: “Please explain if the fact that the victim in this case is an eight-year-old little girl would prohibit you from being a fair and impartial juror in this case?” The court denied each party’s request for a written juror questionnaire and declined to permit the defense’s proposed questions during the voir dire on the ground they improperly would ask that the prospective jurors prejudge the evidence in the case.

Thereafter, the court denied defense counsel’s request to conduct direct voir dire of the jurors as well as followup voir dire. Ultimately, the trial court conducted the entire voir dire and did not permit defendant or the prosecutor to question the jurors directly. At the penalty retrial, defense counsel repeated his request for additional voir dire to ascertain whether prospective jurors would harbor a bias against defendant because the victim was a child.

At that trial, both the prosecutor and defense counsel were allowed to conduct direct voir dire, and defense counsel questioned certain jurors regarding any bias they would have because the victim was a child. Defendant contends the trial court committed prejudicial error both at the initial trial and the penalty retrial by denying defendant’s request for additional voir dire focusing upon the victim’s age and inquiring concerning the effect, if any, of the victim’s age upon the prospective jurors’ ability to remain fair and impartial.

As a threshold matter, because error occurring in the death qualification of the jury at most may be prejudicial only as to the penalty phase, any error in the death qualification of the first jury is irrelevant because that jury decided only defendant’s guilt. Accordingly, even if the trial court erred in conducting voir dire of the first jury, such error did not affect the penalty verdict and was harmless.

Defendant contends the circumstance that at the penalty retrial certain prospective jurors were excused for cause on the basis of bias triggered by the victim’s age establishes that the first jury, which was not questioned so extensively, was prejudicially biased. She speculates that had the trial court permitted more extensive questioning of the initial jury regarding the circumstance that the victim was a child, that jury would not have acted out of bias and would have returned a verdict of life without possibility of parole, thereby eliminating the need for a penalty retrial.

This theory is pure speculation and finds no support in the record. Accordingly, even if the trial court erred in conducting voir dire of the first jury, any such error did not affect the penalty verdict and was harmless. With regard to the second penalty phase jury, defendant concedes the trial court allowed defense counsel to question prospective jurors at the penalty retrial regarding the victim’s age, and that such questioning revealed a bias in favor of the death penalty on the part of some prospective jurors who then were excused for cause.

Although the trial court rejected defendant’s specific questions concerning whether the victim’s age would impair the prospective jurors’ ability to remain fair and impartial, it nonetheless permitted extensive questioning on this subject. Notably, the court agreed with defense counsel that the victim’s age might affect the prospective jurors’ views.

Indeed, the prosecution posed no objection to asking prospective jurors whether “they would be biased to the point they could not be fair and impartial if the victim is a nine-year-old child.” Accordingly, the court agreed to inform the prospective jurors at the outset that defendant had been found guilty of killing a nine-year-old child, and that the victim died of multiple stab wounds. When appropriate, the court also reiterated the circumstances of the crime during questioning of individual prospective jurors.

Thereafter, during the course of extensive questioning of each prospective juror conducted in open court in the presence of all the prospective jurors, numerous prospective jurors conceded that the circumstance the victim was a child might affect his or her ability to be fair and impartial

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