THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE DePRIEST, Defendant and Appellant, 42 Cal. 4th 1

Opinion BAXTER, J. A jury convicted Timothy Lee DePriest (defendant) of the first degree murder of a young woman named Hong Thi Nguyen. (Pen. Code, § 187, subd. (a).) Defendant also was found guilty of robbery (§ 211) and attempted rape (§§ 261, former subd. 2, now subd. (a)(2), 664), and of being a felon in the possession of a concealable firearm (§ 12021, former subd. (a), as amended by Stats. 1983, ch. 1092, § 326.5, p. 4062; see now § 12021, subd. (a)(1)).

The jury sustained special circumstance allegations that defendant committed the murder while engaged in the commission of robbery and attempted rape. (§ 190.2, former subd. (a)(17)(i), (ill), now subd. (a)(17)(A), (C).) Additional findings were that defendant personally used a firearm (pistol) in committing the murder, the robbery, and the attempted rape. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) The evidence supporting the guilt verdict showed that the victim, Nguyen, was left half-naked and mortally wounded in the trash area behind the shopping center at which she worked in Garden Grove, Orange County.

She was shot in the head around 6:00 p.m. on December 17, 1989, and died a few hours later. She appeared to have been sexually assaulted, and her car and purse were missing. Circumstantial evidence implicated defendant, a parolee. He was visiting family nearby at the time of the murder, he left California afterwards, and he was arrested after committing new crimes in Missouri, including the attempted murder of a police officer. Defendant possessed the murder weapon, as well as Nguyen’s car and credit card, in Missouri. After a penalty trial, the jury sentenced defendant to death.

The trial court denied the automatic motion to modify the death verdict. (§ 190.4, subd. (e) (section 190.4(e)).) The court imposed and stayed a determinate sentence on the noncapital felony counts. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety. I. Guilt Evidence A. Prosecution Case 1. The Murder and Related Crimes In December 1989, defendant was on parole in San Bernardino County. He could not travel far from home or relocate without the permission of his parole officer.

Several times before December 17, defendant was denied permission to move and transfer parole to Missouri. The reason was that he had not arranged for proper transportation in the form of a plane, bus, or car ride. Defendant’s girlfriend, Rhonda Lyon, last saw him in the second week of December 1989, apparently in San Bernardino County. He said he wanted to visit his uncle in Garden Grove, and then go to Missouri. Defendant confirmed these plans several times over the phone between December 12 and 17.

The last time Lyon spoke to defendant in California was at 3:58 p.m. on December 17, 1989, about two hours before the murder. He telephoned her from Garden Grove, where he was staying with his uncle, Charles Brown, and Brown’s roommate, Tony Goodwin. In his phone call with Lyon, defendant announced his imminent departure to Missouri, and said he would either hitchhike or get money from relatives. Defendant mentioned his family in Missouri, and said he knew the trip would violate parole. Lyon knew of no source of income that defendant had at the time.

The murder victim, Nguyen, worked at the Perfect Bride, a bridal shop next door to the Thrifty Drug Store in Garden Grove. According to her employer, Nguyen arrived at work at 5:00 p.m. on December 17, 1989. The parking lot along the front and side of the store was full. She apparently parked her car—a white Toyota MR2—in the back. Nguyen called her family around 5:30 p.m. She indicated that she was headed home, but planned to stop at the grocery store first. She left work at some point before 6:00 p.m. She carried her purse and a white-sequined cloth appliqué at the time.

At 7:05 p.m. on December 17, two employees discarded trash behind the Thrifty Drug Store. One of them was Michael Elrod, the manager. Elrod testified that near the dumpster, in an alcove littered with debris, he saw a young woman—Nguyen—on the ground. She was naked from the waist down, and her sweater was pulled up onto her stomach. Her legs were slightly spread apart. Foam bubbled from her mouth, and she was barely breathing. When paramedics arrived and moved Nguyen’s head, Elrod saw a wound in her temple and blood on the ground. Police officers, including James Holder, arrived at the scene.

Holder accompanied Nguyen in the ambulance to the hospital. Hospital personnel gave Holder a watch and jewelry retrieved from Nguyen. Meanwhile, at the crime scene, $31 was found in Nguyen’s jeans. Her purse and car were gone. That same evening, possibly around 6:00 o’clock, Brown and Goodwin returned to their Garden Grove home after Christmas shopping. The home was located a few blocks from the Thrifty Drug Store. Defendant, Brown’s nephew, had been a houseguest for three days. When defendant arrived the first day, he came by taxi and had no car.

However, Goodwin testified that on the evening of December 17, a white Toyota MR2 he had never seen before was parked outside. Inside the house, Goodwin noticed that defendant was sweating as he spoke to Brown. Defendant then headed toward the Toyota outside. That was the last time Goodwin saw either defendant or the car. 2. Events in Missouri After the Murder Lyon, defendant’s girlfriend, heard from him two days after his last call from California. He said he was in Missouri. He also told Lyon that, if the police contacted her, she should not disclose his location or real name.

At 8:00 a.m. on December 19, 1989, two days after the murder, defendant was seen in Springfield, Missouri with Nguyen’s white Toyota MR2—a stipulated fact. Defendant was parked outside his friend Johnny Forrester’s house, cleaning the interior of the car. Defendant spent time with Forrester and with his mother, Mary, and his uncle, Larry, who lived nearby. While driving Forrester in the Toyota, defendant said it belonged to his girlfriend. He had the keys to the car. Defendant gave Forrester a baby’s teething ring from the console that had belonged to Nguyen and her child.

Over the next few days, defendant made statements suggesting he had good reasons for moving east. On December 20, 1989, he told Forrester at a bar that he would not go “back to California” or “to jail.” Defendant patted a handgun in his waistband and showed it to Forrester. On December 23, after an encounter with Missouri police described below, defendant and Forrester drove to the home of a friend, Frank Moots. Defendant said he was “not going back” and would “shoot a cop first.” He asked Moots to help paint the Toyota MR2 black.

Defendant removed the California license plates and stored the car in Moots’s garage. Defendant used Nguyen’s credit card at Sears in Springfield. Multiple charges were made on December 23, 1989, and appeared on a bill later sent to Nguyen’s home. Defendant was asked for identification when he tried charging items in the electronics department. He then left the store. The jury saw a videotape of this transaction. Defendant attracted police attention three times in Missouri.

On December 20, 1989, the day after he arrived in Springfield, defendant triggered a police chase, and eluded capture, after he refused to make a traffic stop while driving a white Toyota. On December 23, 1989, another officer stopped defendant, his friend Forrester, and a female companion in a Camaro following a suspicious check-cashing incident outside of Springfield. After giving a false name and exiting the car, defendant fled and eluded the officer who had made the stop, as well as others who arrived at the scene.

Defendant’s most serious confrontation with Missouri police occurred on December 28, 1989, and prompted his arrest. Officer Larry Robinson recognized defendant on the street as a “suspect at large.” Defendant ran when he saw Robinson. While repeatedly yelling “halt,” Robinson chased defendant over a wall and fence, and into a parking lot and an alley. Robinson lost sight of defendant, reported the chase on his radio, and approached a dumpster alcove. Suddenly, defendant rose from behind the dumpster and shot Robinson, wounding him.

After defendant fired more rounds and ran down the street, other officers arrived and captured him. They seized his firearm. It was the same weapon that killed Nguyen, as discussed below. 3. The Murder Investigation Criminalists with the police and sheriff’s departments examined the crime scene in Garden Grove on December 17, 1989. Marsha Mac Willie photographed and collected physical evidence, and Kenny Wong collected biological evidence. They found the white cloth appliqué that Nguyen had carried from work in a parking space along the back wall of the shopping center.

Inside the dumpster alcove nearby, where Nguyen was found, there was one women’s shoe, a pair of underpants, and a pair of women’s jeans that was turned inside out. Other items included a .25-caliber bullet casing, shoe prints on paper debris, and hair and blood specimens. Another criminalist, Elizabeth Thompson, analyzed the hair specimens to determine whether they came from Nguyen or defendant. Thompson testified that one of the recovered hairs was consistent with defendant’s pubic hair and inconsistent with Nguyen’s pubic hair.

The other crime scene hairs, some with bloody roots, were consistent with strands taken from Nguyen’s head. Criminalist Mary Hong tested blood at the crime scene to determine whether it came from Nguyen or defendant. At trial, Hong identified Nguyen as a possible donor of the blood and excluded defendant. Criminalist Sharon Krenz examined shoe prints found on paper debris in the dumpster alcove and the Nike shoes that defendant wore when arrested in Missouri.

As described below, Krenz used an “overlay” method whereby she compared plastic transparencies of the sole pattern on defendant’s shoes with photographs of the crime scene specimens. Krenz testified that defendant’s shoes were consistent with partial shoe prints found on a label sheet and a small square sheet. MacWillie, who had processed the crime scene, examined Nguyen’s Toyota MR2 for fingerprints after defendant’s arrest. The car was in police custody in Missouri at the time.

MacWillie lifted 27 sets of prints from the car, three of which came from the exterior or trunk and were too faint, smudged, or “unworkable” to analyze. As to the 24 workable prints, MacWillie testified that 13 of them were defendant’s, many of which were found in and around the driver’s compartment. The 11 remaining prints were never identified. Eight of them came from the hood of the car, and did not belong to defendant or Nguyen. MacWillie found three unidentified prints inside the car, but could not exclude defendant or Nguyen as the donor.

Criminalist Nathan Cross test fired the gun that defendant used to shoot Officer Robinson shortly before being arrested in Missouri. Defendant’s firearm was a .25-caliber semiautomatic pistol. At trial, Cross identified it as the same gun that had fired the bullet removed from Nguyen’s brain during the autopsy, as discussed below. 4. Autopsy Results Dr. David Katsuyama, a forensic pathologist, performed an autopsy and described the results at trial. Nguyen sustained several premortem injuries.

A punch or other blunt force trauma caused bruising and swelling around the eyes, discoloration on the forehead, and cuts inside the mouth from the victim’s own teeth. Bruises and abrasions on the right knee and ankle, and on the left elbow, probably were caused when those extremities struck the ground. The external examination also disclosed dark residue on the soles of Nguyen’s feet, indicating she had walked without shoes. Dirt on the victim’s back, especially along one side of the torso, buttocks, and hip, suggested that she had been dragged or pushed on the ground. Internally, Dr.

Katsuyama found hemorrhaging, or blood seepage, and bruising in the walls of the vagina. The vaginal tissue also contained a small tear, about one-quarter of an inch long. Such injuries occurred before death and were consistent with sexual trauma or assault. Discoloration on Nguyen’s neck indicated manual strangulation or that external pressure had been applied. However, Dr. Katsuyama determined that the cause of death was a gunshot wound to the head. The bullet entered the left temple and was removed during the autopsy.

The blast apparently caused the back of the head to strike a hard surface and to bruise on contact. B. Defense Case Defendant denied committing the capital crime. In an effort to place the blame elsewhere, the defense introduced the following evidence: 1. Assault on Loc N. Around 5:30 p.m. on December 17, 1989, a young Vietnamese woman named Loc N. carried groceries from her car into her house on Erin Street in Garden Grove, near Thrifty Drug Store. Loc testified that a strange man followed her inside. He demanded sex, grabbed her neck, and pushed her against the wall.

He fled when she indicated her husband was nearby. Loc did not identify defendant’s photograph in police lineups. Though both men were fair-haired and Caucasian, defendant was not Log’s assailant. 2. Lake Arrowhead Incident On December 17, 1989, Oscar Mink lived in a gated community in Lake Arrowhead, about a 90-minute drive from Orange County. Late that night, Mink was awakened by two or more loud male voices coming from a nearby house, where an “unseemly element” sometimes congregated. He could not see anybody from his porch. An argument seemed to be underway, and a name like “Danny” might have been used.

After hearing one or more car doors slam, Mink saw a white Toyota MR2 speed away. He could not tell whether there was more than one person inside or what they looked like. However, Mink thought the driver was a White male. Mink called the police in response to news stories about the capital crime. 3. Fingerprint Evidence Carl Hensgen, a defense fingerprint expert, previously worked for law enforcement agencies, and was once a colleague of MacWillie’s at the Garden Grove Police Department.

Hensgen testified that he visited MacWillie at work before trial, and examined the fingerprints she had lifted from Nguyen’s Toyota MR2. Hensgen agreed with MacWillie’s identification of defendant’s prints, including those found inside the driver’s compartment. However, Hensgen identified defendant as the donor of at least two prints that MacWillie viewed as inconclusive. Hensgen also questioned MacWillie’s conclusions as to the workability of certain other prints. On cross-examination, Hensgen acknowledged that all fingerprints that he and MacWillie could not identify came from the car’s exterior.

Like MacWillie, Hensgen could not eliminate defendant or Nguyen as the donor of the three unidentified prints found inside the car. II. Penalty Evidence A. Prosecution Case 1. Prior Felony Convictions The prosecution introduced documents establishing that defendant was convicted in 1981 of burglary in Riverside County, and of rape and robbery in San Bernardino County. The latter two convictions involved separate incidents that the victims described at the penalty trial. 2. Violent Criminal Activity a. Rape of Pamela B.

Pamela B. testified that, at night on May 2, 1981, she awoke to find defendant entering her home in Twentynine Palms, California. Her husband was gone. Defendant removed the bed covers and told Pamela to undress. He undressed and masturbated, and then raped her. When Pamela warned that her husband would return, defendant dressed, ripped the phone from the wall, and ran away. Defendant’s 1981 rape conviction arose from this incident. b. Rape of Patricia W. Patricia W. testified that, at night on June 2, 1981, she was asleep with her baby girl in Twentynine Palms, California. Her husband was gone.

Patricia awoke, saw defendant, and screamed. Defendant threatened to kill her if she did not keep quiet, and started to undress. Defendant asked Patricia to make room in the bed by moving her daughter aside. Patricia placed the baby in the crib instead. When Patricia refused to return to the bed, defendant raped her on the floor, and forced her to engage in mutual oral copulation. Defendant urged Patricia to have an orgasm and ejaculated outside of her when she expressed concern over pregnancy. Patricia objected when defendant said he wanted to spend the night.

To get him to leave, Patricia suggested that he slip unseen through the back door. He took $30 from her. Defendant’s 1981 robbery conviction arose from this incident. c. Attempted Rape of Lorinda J. On December 23, 1989, the same day defendant used Nguyen’s Sears credit card, he attacked Lorinda J. in Marion-ville, Missouri. Lorinda testified that she awoke at night and found defendant on top of her in bed. Lorinda shoved defendant with her feet, and told him to stop. He called her vile names and threatened to kill her if she resisted. Defendant pointed a gun-shaped object at her.

They struggled, and defendant removed Lorinda’s pants. Defendant removed his pants and masturbated. Lorinda refused defendant’s demands to have sex, and to orally copulate and masturbate him. He touched her breast, and ejaculated on her. Defendant dressed and demanded money. Lorinda said that she did not have much cash, and that her purse was in another room. He left through the back door. Several days later, when he was arrested for shooting Officer Robinson, defendant had some of Lorinda’s jewelry in his possession.

Before he was convicted of attacking her, defendant sent Lorinda a letter incorrectly stating that she had cried when a defense investigator mentioned the death penalty in conjunction with defendant. d. Attempted Murder of Officer Robinson. As reflected in the penalty instructions, the jury could consider, in aggravation, Officer Robinson’s testimony at the guilt phase that defendant shot and tried to kill him in Springfield, Missouri, on December 28, 1989. 3. Victim Impact Evidence Nguyen’s sister and husband testified about their grief over the murder.

Nguyen had given birth to a daughter shortly before her death. Nguyen’s sister, who came to America from Vietnam several years after Nguyen, and before the crime, regretted losing someone who could help her assimilate. No one told Nguyen’s parents, who lived in Vietnam, the truth about how she died. B. Defense Case Numerous witnesses—relatives, friends, and mental health professionals— testified on defendant’s behalf. He did not take the stand. 1. Life History Defendant was Mary DePriest’s only child.

According to her testimony, Mary realized at age 13, growing up in Missouri, that she preferred women over men as romantic partners. Mary had sex for money with Jim Tate, and chose another man, Jack Callison, to father her child. Defendant was born in 1960, when Mary was 17. He grew up believing that his father was Jim (who died shortly after defendant’s birth). Defendant did not leam until age 13 or 14 that he was Jack’s son. Mary had lost contact with Jack over the years. He died in prison. At first, Mary cared for defendant in her parents’ home in Missouri.

When defendant was six months old, Mary started staying away from home, and then moved out. She ignored her mother’s pleas to be a better parent. Mary explained at trial that she loved her son, but could not raise him properly. She drank and caroused at bars. Between 1960 and 1965, Mary had a series of female lovers. Mary visited defendant during this time. Her visits were sporadic and disruptive. She once arrived at the house bloodied and bruised. Her departures upset defendant. By all accounts, defendant’s grandparents gave him a stable and loving home.

Defendant called both Mary and his grandmother “Mom.” Defendant became close to other members of Mary’s family. They included his uncles Larry and Jimmy DePriest. Jimmy testified that he shared almost a father-son bond with defendant. Defendant also spent time with cousins Mitchell and David. They were the sons of another uncle, Ronnie DePriest, and his wife Patricia. Defendant participated in family picnics and other outings. As for family tragedies, defendant’s uncle, Ronnie, was stabbed to death by his second wife. Ronnie’s son David shot himself to death.

Meanwhile, in 1965, Mary started serving a 15-month prison term. Her parents, her brother Larry, and defendant visited every few weeks. After her release, Mary lived sporadically with her parents and defendant. She also lived with different female lovers. In 1970, Mary began a serious relationship with Chris (also known as Hazel) Young. Chris had two children, John and Theresa. Because Chris was a stripper who often changed jobs, the couple lived in different places (e.g., Kansas, Oklahoma, South Carolina, Mississippi, and New Mexico).

Typically, the adults would move to the new city first, bring defendant and/or Chris’s children to join them later, and then move again in a few months and repeat the process. Between moves, defendant stayed with his grandparents. Mary’s mother testified that the nomadic lifestyle disrupted defendant’s schooling. She also accused Chris of disciplining defendant too harshly. Chris testified, in turn, that Mary’s mother dominated everyone in the family, including her husband and male children. She reportedly waged a “tug-of-war” with Mary and Chris over defendant.

Chris also described gatherings with Mary’s extended family as alcohol-fueled and volatile. Mary and Chris sometimes fought verbally and physically, especially while drinking alcohol. Chris and other witnesses portrayed defendant as a quiet, respectful boy. He called Chris “Mom,” and was close to her children. In New Mexico, Mary and Chris ran an escort and prostitution service. Defendant saw Mary and Chris being arrested outside the business. Subsequently, in 1975, Mary sent defendant to Missouri to live with her parents.

Mary, Chris, and Chris’s children returned to Missouri in 1976, and lived near defendant and his grandparents. Mary and her brother Larry admitted smoking marijuana with defendant at parties around this time. Two former high school friends of defendant’s testified that other drugs were consumed by teenagers and adults on such occasions. Defendant joined the Marines at age 17. According to his sergeant, defendant performed adequately while stationed on a remote Alaskan air base. One of defendant’s former high school friends testified that defendant became more aggressive after joining the Marines.

During visits home, he smoked marijuana and took LSD. At trial, Mary expressed regret for being a terrible mother, and spending more time with her lovers than with her son. She described herself as manic-depressive. Mary and other witnesses did not want defendant to die. The penalty jury heard testimony that defendant was serving a sentence of “life plus 57 years” for crimes committed in Missouri. 2. Mental Condition Dr. Raymond Anderson, a psychologist, interviewed and tested defendant. Dr.

Anderson opined that defendant suffered from an unspecified and borderline personality disorder involving sexual fixation on rape fantasies, and drug dependence. His personality is unformed and anxious, making it difficult for him to interact on an intimate or long-term basis. Dr. Anderson attributed these conditions to defendant’s emotional abandonment by his mother, his confusion over her lesbianism and his own sexual identity, his deep anger toward women, and his disorientation over his father’s identity. Defendant took drugs to suppress these feelings. Dr.

Anderson theorized that defendant might confuse rape with romance. Cross-examination disclosed that defendant’s test results were consistent with an antisocial personality disorder. Dr. Anderson did not ask defendant questions to explore such a diagnosis, or learn about his criminal history. Dr. Rashami Skadegaard, a psychologist, interviewed defendant and his relatives, and studied his social history. Dr. Skadegaard emphasized defendant’s psychosexual disturbance.

Contributing factors were a pattern of emotional abandonment by defendant’s mother, her promiscuous gay lifestyle and aggressive personality, defendant’s resulting sexual confusion, feelings of worthlessness and rage towards women, frequent moves that prevented lasting social attachments, exposure and desensitization to violence and drugs in the family, a family history of mental illness, lack of a father figure or strong male role model, and conflicted homosexual and homophobic feelings trigged by service in the Marines. Dr.

Skadegaard alluded to two possible incidents of child sexual abuse by older males, including a relative. Defendant raped in a “sick” attempt to assert his masculinity and gain intimacy. III. Jury Selection A. Challenges for Cause Defendant argues here, as below, that the trial court’s rulings on five challenges for cause violated Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt).

As a result, he allegedly was deprived of federal and state constitutional guarantees regarding an impartial jury, due process, equal protection, a reliable death verdict, and cruel and unusual punishment. We disagree. 1. Background The trial court granted the prosecution’s challenges for cause to three prospective jurors—M.B., G.G., and B.T.—made on grounds they were biased against the death penalty and prosecution efforts to impose it here.

The trial court also denied defense challenges for cause to two prospective jurors—J.C. and K.E.—whose past or present association with law enforcement allegedly biased them in favor of both the prosecution and a death sentence. The trial court extensively questioned each juror about capital punishment and related factors affecting the juror’s willingness and ability to follow the law and be fair. The court allowed substantial followup questioning by counsel, and heard extensive arguments on both sides about each challenge. All of the contested rulings ran contrary to defense objections and arguments.

As to both J.C. and K.E., whom defendant unsuccessfully sought to excuse for cause, the defense exercised a peremptory challenge. Indeed, defendant used all of his peremptory challenges, expressed dissatisfaction with the jury, and unsuccessfully sought one more peremptory challenge. 2. Applicable Law Qualification to serve on a capital jury is not limited to determining whether the person zealously opposes or supports the death penalty in every case.

Under federal and state law, a prospective juror may be excluded for cause where his views on capital punishment would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. 412, 424, clarifying Witherspoon v. Illinois (1968) 391 U.S. 510, 522, fn. 21 [20 L.Ed.2d 776, 88 S.Ct. 1770] [framing issue as whether it is “unmistakably clear” the prospective juror would “automatically” (italics omitted) vote for life or death].) The Witt standard applies to both prosecution and defense challenges. (Morgan v.

Illinois (1992) 504 U.S. 719, 728-729 [119 L.Ed.2d 492, 112 S.Ct. 2222]; People v. Heard (2003) 31 Cal.4th 946, 959 [4 Cal.Rptr.3d 131, 75 P.3d 53].) At bottom, capital jurors must be willing and able to follow the law, weigh the sentencing factors, and choose the appropriate penalty in the particular case. (People v.

Stewart (2004) 33 Cal.4th 425, 446-447 [15 Cal.Rptr.3d 656, 93 P.3d 271]; Heard, supra, 31 Cal.4th at p. 958.) The trial court’s findings as to the nature and effect of a prospective juror’s views on capital punishment and related topics (e.g., law enforcement) receive substantial deference on appeal. (People v. Ledesma (2006) 39 Cal.4th 641, 675 [47 Cal.Rptr.3d 326, 140 P.3d 657] (Ledesma); People v.

Griffin (2004) 33 Cal.4th 536, 558-559 [15 Cal.Rptr.3d 743, 93 P.3d 344].) Indeed, where answers given on voir dire are equivocal or conflicting, the trial court’s assessment of the person’s state of mind is generally binding on appeal. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 [47 Cal.Rptr.3d 467, 140 P.3d 775] (Lewis and Oliver).) The trial court is in the unique position of assessing demeanor, tone, and credibility firsthand—factors of “critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v.

Brown (2007) 551 U.S. 1,_[167 L.Ed.2d 1014, 127 S.Ct. 2218, 2224].) Hence, the trial judge may be left with the “definite impression” that the person cannot impartially apply the law even though, as is often true, he has not expressed his views with absolute clarity. (Witt, supra, 469 U.S. 412, 425-426.) For reasons we now describe, the record prevents us from second-guessing the trial court’s decisions excusing and retaining the prospective jurors challenged for cause here. 3.

Analysis of Decision Granting Three Prosecution Challenges Prospective Juror M.B. initially stated on voir dire that he could keep an open mind on sentencing, and did not oppose the death penalty. He admitted, however, that he did not want the responsibility of making such a difficult decision himself. He was reluctant to pass judgment on any capital defendant, and doubted he could impose death even if the evidence indicated it was appropriate in the particular case. M.B. emphasized that he might vote for life “regardless of the evidence” in order to avoid making a decision on death.

When defense counsel asked whether he could conceive of a case in which death would be a viable option, M.B. said, “no.” Prospective Juror G.G. stated at the start of voir dire that he did not oppose the death penalty and would not automatically vote against it. However, most of his answers seemed to contradict this view. G.G. said he would be bothered by having to make such a difficult decision, and wanted somebody else to do it. G.G. gave several reasons for not wanting to sit on a capital jury, including the fact that he was HIV-positive and had once spent several nights in jail.

G.G. would not say “yes” when asked point-blank whether he could, and would, consider imposing death based on the evidence. Instead, he continued to equivocate, and said, “I would not want to put somebody to death right now.” G.G. declined to tell either the prosecutor or defense counsel that death was a “possibility” in any case. Prospective Juror B.T. strongly disfavored the death penalty. On the one hand, he said he would try to suppress such feelings, and would not automatically reject death or ignore the evidence.

On the other hand, he thought it was wrong for anybody, including him as a juror, to take a life. Later, after a break in questioning, B.T. said his feelings had crystallized and that he could not say the death penalty was morally appropriate in any case. In other words, he would “almost always” vote against it.

Though their responses were not uniform or absolute, all three of the foregoing jurors indicated they would have extreme difficulty imposing capital punishment, even in an appropriate case. “Those answers, in combination with the trial court’s firsthand observations, could give rise to a definite impression that [their] views on the death penalty would substantially impair the performance of [their] duties.” (Lewis and Oliver, supra, 39 Cal.4th 970, 1007.) We thus defer to the court’s ruling sustaining the prosecution’s challenges for cause. 4.

Analysis of Decision Denying Two Defense Challenges Prospective Juror J.C. was a former peace officer and district attorney investigator who had retired 10 years before trial. Voir dire began with his assurances that he could consider and impose either life imprisonment or a death sentence depending upon the evidence, including defendant’s character and background.

Speaking candidly, J.C. acknowledged that he might “lean” toward the prosecution on guilt because he knew, from past experience, that “the district attorney’s office is not going to file a case unless they feel [there] is sufficient evidence to get a conviction.” J.C. was familiar with pretrial motions to dismiss complaints and suppress evidence. He assumed the defense might try to disqualify him. Nevertheless, J.C. insisted that his law enforcement background would not impair his ability to be a fair and impartial juror.

He said that he would make his own decision on guilt and penalty based on the evidence and instructions, that he would not automatically vote in favor of the prosecution, that law enforcement officers sometimes make mistakes, that defendant was presumed innocent until proven guilty, and that the prosecution must prove guilt beyond a reasonable doubt. J.C. made clear that he “would want [defendant] to have a fair trial.” Prospective Juror K.E. worked as a customs agent for the federal government in the internal affairs division. Previously, she had worked with both the sheriff’s office and university police.

She stated on voir dire that her job enhanced, rather than detracted from, her fairness as a juror. K.E. noted that she had encountered “bad” police officers, some of whom had lied to her. She also was trained to assess the credibility of all witnesses. Though K.E. favored the death penalty, she knew it was not appropriate in every case depending on the facts. She also believed that life imprisonment was “horrible,” even though it was less serious than death.

Later, in response to defense questioning, K.E. reiterated that she would not feel an affinity toward police witnesses, or a suspicion towards the defense team, if she served on the jury. Based on these exchanges, and the deference we accord to credibility determinations on voir dire, the trial court could reasonably conclude that neither prospective juror was biased in favor of the prosecution or a death sentence despite their employment backgrounds.

Hence, the court did not err in denying defendant’s challenges for cause. (See, e.g., Ledesma, supra, 39 Cal.4th 641, 675-676 [upholding retention of reserve deputy sheriff who said he could be fair on death penalty, even though friends in law enforcement had been murdered]; People v. Staten (2000) 24 Cal.4th 434, 453-454 [101 Cal.Rptr.2d 213, 11 P.3d 968] [same, as to female prospective juror whose close relatives were police officers].) B.

Denial of Additional Peremptory Challenge After the voir dire of Prospective Juror D.N., whom neither side challenged for cause, the prosecutor accepted the jury panel as constituted. At a sidebar conference, defense counsel expressed dissatisfaction “with the 12 that are here.” Defense counsel acknowledged that he had exhausted all 20 peremptory challenges allotted by statute. (See Code Civ. Proc., § 231, subd. (a).) However, citing the Sixth and Eighth Amendments, counsel sought an additional peremptory challenge to compensate for the one used against K.E., whom he had unsuccessfully challenged for cause.

However, the trial court saw no reason to exercise its discretion in favor of granting the request. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1087-1088 [259 Cal.Rptr. 630, 774 P.2d 659].) The court suggested that the defense had used several peremptory challenges against persons who presented “no problem at all in terms of being fair and impartial.” According to the court, the defense appeared to have exhausted its peremptories in order to preserve arguments for appeal on the challenges for cause.

Defendant contends the trial court arbitrarily denied his request for an additional peremptory challenge under state law, and thereby violated his federal constitutional rights to due process and an impartial jury under the Sixth, Eighth, and Fourteenth Amendments. (See Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 100 S.Ct. 2227].) We reject the claim. To establish a constitutional entitlement to additional peremptory challenges, the defendant must at least show that he is likely to receive an unfair trial before a biased jury if the request is denied. (People v.

Pride (1992) 3 Cal.4th 195, 231 [10 Cal.Rptr.2d 636, 833 P.2d 643] (Pride); accord, Ledesma, supra, 39 Cal.4th 641, 665.) Defendant has made no such showing at trial or on appeal. As explained above, the trial court did not erroneously deny defense challenges for cause against either J.C. or K.E. Nor does defendant identify any allegedly biased jurors who sat on his jury. (Pride, supra, 3 Cal.4th at p. 231.) No basis for reversal on this ground appears. C.

Cumulative Error and Prejudice Defendant claims the errors the trial court allegedly committed in selecting a jury (see discussion, ante) combined to deprive him of a fair trial, an impartial jury, and a reliable death judgment under the federal Constitution. For reasons we have explained, no error occurred at this phase of trial. We therefore discern no cumulative prejudicial effect requiring reversal of the judgment. IV. Pretrial Issues A.

Speedy Trial Motion Defendant contends the 22-month period between “his arrest in Missouri” (Dec. 28, 1989) for crimes committed in that state, and “his being brought to Orange County” (Oct. 18, 1991) to stand trial in the capital case, violated his speedy trial rights under the federal and state Constitutions. The trial court rejected similar claims. We find no error. After the murder on December 17, 1989, defendant drove the victim’s car from Garden Grove to Missouri. There, he committed crimes in two different counties.

On December 23, defendant assaulted Lorinda J. in her home in Marionville, which is in Lawrence County, Missouri. On December 28, he used the murder weapon to shoot Officer Robinson in Springfield, which is located in Greene County, Missouri. As we have seen, defendant was arrested and detained in the Greene County jail for the latter crime the same day it occurred. It appears that sometime in January 1990, the Orange County Public Defender’s Office was appointed to represent defendant in anticipation of capital charges being filed for the murder of Nguyen.

On February 1, 1990, the Orange County District Attorney’s Office filed a complaint charging defendant with that murder, and alleging special circumstances. Within a few months, in June 1990, appointed counsel moved in the capital case to discover, among other things, all physical evidence, including the results of any scientific testing conducted thereon. Meanwhilé, defendant remained in custody in Missouri. In a trial ending May 2, 1990, defendant was convicted of crimes involving the shooting of Officer Robinson in Greene County.

Defendant was subsequently charged with crimes committed against Lorinda J. in Lawrence County. Due to a venue change, the latter case was moved to Berry County, Missouri. Defendant entered a guilty plea on March 6, 1991. That same month, the Orange County District Attorney’s Office sought to return defendant to California to stand trial in the capital case. Interstate transfer documents were sent to Missouri, where defendant was incarcerated, on March 29, 1991. (See § 1389.) For the next several months, defendant fought extradition.

Following formal proceedings on the matter, a Missouri court issued an order transferring defendant to the custody of California authorities on September 13, 1991. On October 18, 1991, the transfer occurred and defendant arrived in California. Arraignment on the pending complaint was originally scheduled for October 21, 1991. However, on two occasions, defendant appeared with counsel in municipal court, and requested continuances. Both times, defendant personally waived his rights to a speedy trial.

At the second continuance hearing, however, counsel explained that defendant was not waiving such rights insofar as they attached to time spent in custody in Missouri before arriving in California. On December 6, 1991, defendant was arraigned and pled not guilty to the capital crime as alleged in the complaint. On February 3, 1992, the preliminary hearing occurred, and defendant was held to answer on capital charges in superior court. The information was filed on February 18, 1992. Defendant was arraigned in superior court the same day.

Before jury selection began, defendant moved to dismiss the charges under the federal and state constitutional speedy trial guarantees, citing the “delay” in bringing him from Missouri to California. Defendant claimed he was available to California authorities the entire time, and that evidence presumably had been lost as a result. The prosecution formally opposed the motion. At various times over the next month, the court and counsel discussed the motion.

The court first heard testimony from Detectives Shave and Overley, from the Garden Grove Police Department, and Sam Phillips, the chief assistant prosecutor from Greene County, Missouri. Their testimony established that California authorities never asked Missouri authorities to release defendant for trial on capital charges, and that Missouri never refused to do so.

However, the same witnesses said they had discussed and understood that defendant should be tried first in Missouri because he was already in custody there, and because a noncapital trial in Missouri would proceed much faster than the capital trial in California. At the next hearing on the speedy trial motion, the court announced that it would defer its ruling at least until the end of the guilt phase.

The court explained that, assuming the federal and state constitutional rights to a speedy trial applied, it basically must balance any justification for the challenged delay against any prejudicial effect. (See Barker v. Wingo (1972) 407 U.S. 514, 530 [33 L.Ed.2d 101, 92 S.Ct. 2182]; Jones v. Superior Court (1970) 3 Cal.3d 734, 740 [91 Cal.Rptr. 578, 478 P.2d 10].) As a threshold matter, time spent bringing defendant to California was justified in the court’s view.

The court emphasized that defendant faced multiple prosecutions for crimes committed in Missouri, that he was represented by counsel in California while being prosecuted in Missouri, and that neither party “could do much about getting [him] out here” before such proceedings were complete. However, in order to properly assess prejudice, the trial court decided to first hear the evidence at trial. (See People v. Martinez (2000) 22 Cal.4th 750, 768-770 [94 Cal.Rptr.2d 381, 996 P.2d 32] (Martinez) [approving such practice].) The speedy trial motion was ultimately denied near the end of the penalty phase.

The court found no indication that defendant lost evidence or suffered prejudice between the time of his Missouri arrest and his arrival in California. Any disadvantage was deemed insignificant in light of the overwhelming evidence of guilt. On appeal, defendant first complains about the manner in which the court weighed the relevant factors and determined that no federal constitutional violation occurred.

However, contrary to what defendant apparently would have us assume or conclude, the Sixth Amendment’s speedy trial provision never applied in the first place. “[B]efore [a] defendant may allege [such] a violation . . ., he must establish the right attaches.” (People v.

Roybal (1998) 19 Cal.4th 481, 513 [79 Cal.Rptr.2d 487, 966 P.2d 521] (Roybal); see id. at p. 512.) It is settled that, for federal constitutional purposes, attachment of the right to speedy trial occurs only upon “ ‘either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.’ ” (Martinez, supra, 22 Cal.4th 750, 755, 760, quoting United States v.

Marion (1971) 404 U.S. 307, 320 [30 L.Ed.2d 468, 92 S.Ct. 455] (Marion).) The filing of a felony complaint does not trigger federal speedy trial protection on the charged crimes. (Martinez, supra, 22 Cal.4th at pp. 754—755, 763, 764, 765.) The reason is that the Sixth Amendment requires “formal accusation in the court with jurisdiction over the prosecution of the charge” (Martinez, at p. 763), or “arrest with continuing restraint” on such charge. (Id. at p. 765; accord, People v.

Horning (2004) 34 Cal.4th 871, 891 [22 Cal.Rptr.3d 305, 102 P.3d 228] (Horning).) Here, defendant did not stand formally accused or subject to the requisite restraint for Sixth Amendment purposes until February 1992, when he was held to answer on capital charges and the information was filed in Orange County Superior Court. Such events happened after Missouri authorities released defendant to the custody of California authorities, and after he arrived in Orange County in October 1991.

Hence, the federal speedy trial right did not operate during the preceding 22-month period that began in December 1989, when defendant was arrested, detained, and tried for crimes committed in Missouri—a state that had no jurisdiction to prosecute the capital crime. Nor, for reasons we have explained, was the Sixth Amendment right triggered on February 1, 1990, by the mere filing of the complaint in Orange County Municipal Court. Hence, defendant’s federal speedy trial rights were not implicated or violated here.

We also reject defendant’s state constitutional claim, which involves a somewhat different analysis. (See Cal. Const., art. I, § 15.) Unlike its federal counterpart, the speedy trial guarantee under the state Constitution is triggered by the filing of a felony complaint.

Hence, such a violation may be premised “on delay occurring after the filing of the complaint and before the defendant was held to answer the charge in superior court.” (Martinez, supra, 22 Cal.4th 750, 766; accord, Horning, supra, 34 Cal.4th 871, 895.) Under this theory, defendant’s state constitutional speedy trial rights operated during the 24 months between the time the complaint was filed in February 1990, and the time he was bound over and charged in superior court in February 1992.

However, “when a defendant seeks dismissal based on delay after the filing of the complaint and before indictment or holding to answer on felony charges, a court must weigh ‘the prejudicial effect of the delay on defendant against any justification for the delay.’ [Citations.] No presumption of prejudice arises from delay after the filing of the complaint and before arrest or formal accusation by indictment or information [citation]; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice [citation].” (Martinez, supra, 22 Cal.4th at pp. 766-767.) Defendant has not made such a showing or established trial court error here.

First, there was ample justification for not trying defendant on capital charges during the 20-month period between the filing of the complaint (Feb. 1, 1990) and his return to California (Oct. 18, 1991). California authorities showed comity toward Missouri authorities, who had custody of defendant. Defendant faced serious charges in two Missouri counties for the shooting of a police officer and an attempted rape during a home burglary.

Within a brief and reasonable time after Missouri finished serially prosecuting defendant for such crimes (Mar. 6, 1991), California decided to seek defendant’s return for trial on the capital crime, and sent documents to Missouri for that purpose (Mar. 29, 1991). For the next five months (i.e., until Sept. 13, 1991) defendant unsuccessfully fought such transfer. He came to California in October 1991. Second, defendant’s actions contributed to much of the foregoing delay.

He fled California after the capital crime, committed new crimes in Missouri, caused Missouri authorities to prosecute him, and compelled California authorities to extradite him.

Many of these actions seem “far more blameworthy than [the] government-caused delay” about which defendant now complains. (Horning, supra, 34 Cal.4th 871, 894; see id. at p. 895 [finding no federal or state constitutional speedy trial violation under similar circumstances].) Third, defendant suffered no prejudice during the four-month period not attributable to crimes and proceedings in Missouri, i.e., between arriving in California (Oct. 1991) and being held to answer and charged in superior court (Feb. 1992).

For this reason, perhaps, defendant has not included this period in the speedy trial claims raised at trial or on appeal. Indeed, he expressly waived his speedy trial rights when seeking to postpone arraignment on the complaint for almost two months after first appearing in Orange County Municipal Court (i.e., from Oct. 21, 1991 to Dec. 6, 1991). Moreover, contrary to what defendant suggests, no evidence was lost after defendant returned to California that limited his ability to defend against the shoe print/crime scene testimony or the fingerprint/stolen car evidence.

Counsel began formal discovery proceedings long before defendant returned to California from Missouri. Such efforts continued through trial, especially with respect to the partial Nike shoe prints that Criminalist Krenz found at the crime scene. As discussed further below, no part of the prosecutorial delay allowed the Nike company to dispose of sales records showing that his shoes were widely available in Garden Grove in 1989, or prevented him from minimizing the weight of Krenz’s testimony. Rather, Nike did not start keeping such records until 1990, after the capital crime.

Likewise, the relevant delay postdated the loss of Nguyen’s car following its inadvertent release from police custody on January 12, 1990, shortly after defendant was arrested in Missouri. As we discuss below, the Toyota MR2 was tested by the police, the results were made available to the defense, and no evidence seems to have been lost as a result. Accordingly, as with his federal claim, we find no violation of defendant’s state constitutional speedy trial rights. B.

Statements to Police Defendant argues the trial court erred in ruling that, if he testified, he could be impeached with statements he made to California detectives about the capital crime while jailed in Missouri for crimes committed there. He claims here, as in his suppression motion below, that such statements were not admissible for any purpose because they violated the Fifth Amendment privilege against self-incrimination (see Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda)), the Sixth Amendment right to counsel, the due process ban on coerced confessions under the Fourteenth Amendment, and parallel provisions of the state Constitution. Defendant did not testify, and the Missouri statements were not introduced for any purpose. Nonetheless, he claims the court’s erroneous “impeachment” ruling prevented him from taking the stand. (See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 813 [38 Cal.Rptr.3d 98, 126 P.3d 938] (Jablonski).) We will reject the claim. 1.

Background Detective Shave, who led the murder investigation for the Garden Grove Police Department, was a key witness at the suppression hearing. He testified as follows: On January 8, 1990, Shave and his partner, Detective Glenn Overley, arrived at the Greene County jail in Springfield, Missouri to interview defendant. They were unarmed. A jailer told the detectives that defendant was not represented by counsel, and that a female lawyer might visit him the next day. Detectives also learned that the jail did not allow tape recorders inside.

This circumstance led Shave to describe the interview as “off record” in his handwritten notes. The notation did not reflect anything said to defendant during the interview. Shave further testified that he and Overley waited for defendant in an interview room with a table and three chairs. The air temperature was comfortable. The door, which locked from the hallway outside, had a window in it. Defendant wore no restraints when escorted into the room and while seated in his chair. There was nothing unusual about his appearance, and he did not complain about his physical condition.

The trio was left alone knowing that jail personnel would check on them periodically and unlock the door when the interview ended. According to Detective Shave, defendant learned that Shave and Overley were California police officers, that they wanted to ask some questions, and that they needed to advise defendant of his Miranda rights. However, before Shave could take a breath and read out loud from the Miranda card in his hand, defendant blurted out that counsel from California—“Mr. Alexander”— had told him not to talk. Defendant also said that his mother, who had spoken to Mr.

Alexander, called defendant and told him not to talk. Shave acknowledged that defendant was not waiving his Miranda rights. Shave then put the card away, closed his notebook, and waited for the door to open. After a period of silence, Shave said, “Well, you understand that this can’t be used in the case-in-chief against you.” Defendant replied, “Yeah, it’s been in the paper all over, rape and murder in California in Garden Grove”—a topic and place that Shave had never mentioned. Shave testified that they then chatted about defendant’s family and military service.

When defendant volunteered that he wanted to be a mercenary, Shave asked whether a mercenary carried a .25-caliber firearm. Defendant said that such a small caliber gun “could kill just as well as any other gun.” In response to Shave’s questions about “the gun,” defendant talked about buying it cheaply in San Bernardino “before the girl in Garden Grove was murdered.” Defendant denied receiving any money from his uncle or visiting Lake Arrowhead. When asked about “having the car that night,” defendant mentioned his trip to Missouri and good gas mileage.

Upon further questioning, defendant said he was “bother[ed]” by having shot the girl in Garden Grove, and that he could not explain his “violent” acts toward women. Shave testified that both he and defendant spoke in soft tones, especially about the shooting. Defendant admitted being alone while walking in the shopping center and shooting the victim. He denied removing her pants and said he left her clothed in the dumpster area. He admitted using her credit card. Detective Shave described other topics that he and defendant discussed.

Defendant expressed concern about reentering prison with a “rape jacket” because it would restrict his work privileges and movements. He denied sexually assaulting anybody on Erin Street in Garden Grove or in Lawrence County, Missouri. However, he admitted shooting a Springfield police officer in order to avoid being returned to prison. Defendant preferred being incarcerated in Missouri near his family. Defendant did not answer certain questions.

Such topics concerned what he meant by “violent” behavior toward women, how he knew that the girl he shot owned the car he drove to Missouri, whether the shooting victim was raped, how she first came to his attention in the shopping center, and what prompted the shooting. Shave testified that the interview reached a “natural conclusion” after 45 minutes.

In response to defense questioning at the suppression hearing, Detective Shave acknowledged that he knew at the time of the interview that statements obtained in violation of Miranda and inadmissible in the prosecution’s case-in-chief might be admissible “on rebuttal.” Detective Shave testified that he raised the “case-in-chief’ concept hoping defendant would talk with the officers. However, this tactic apparently was not discussed beforehand in a meeting Shave and Overley had with someone in the prosecutor’s office about defendant’s case. Detective Overley also testified at the suppression hearing.

He recalled being caught “off guard” by defendant’s initial refusal to answer any questions based on Attorney Alexander’s advice. According to Overley, no charges were pending against defendant in Orange County at the time, and detectives did not know how or why California counsel had become involved.

Overley recalled that neither he nor Detective Shave elaborated on the comment that defendant’s statements could not be used in the “case-in-chief.” Consistent with Shave’s account, Overley testified that defendant was never told that his statements were “off the record.” Overley confirmed that tape recorders were banned from the Springfield jail. The final witness at the suppression hearing was Roger Alexander, a deputy public defender in Orange County.

Alexander testified that on December 29, 1989, after speaking by phone with defendant’s mother and reading news accounts of the Garden Grove murder, Alexander initiated a phone conversation with defendant at the Springfield jail. During that call, defendant said he was indigent and wanted to be represented by Alexander’s office in the present case. However, it was only at a later point that such an appointment was made and charges were filed. Alexander advised defendant of his Miranda rights, and told him to request counsel and remain silent.

Alexander warned defendant that “the officers would continue to question him,” and that he should continue invoking his rights even if they said his statements “could not be used against him.” After hearing argument on both sides, the trial court granted, in part, and denied, in part, defendant’s motion to exclude his statements at trial. The court first ruled that defendant invoked his Miranda rights, that subsequent questioning violated such rights, and that defendant’s statements could not be used to prove guilt in the prosecution’s case-in-chief. However, following Harris v.

New York (1971) 401 U.S. 222, 224 [28 L.Ed.2d 1, 91 S.Ct. 643] (Harris), the trial court concluded that defendant’s statements, which it found were not coerced or involuntary for due process purposes, could be used to impeach his credibility if he testified. In rejecting defendant’s involuntariness claim, the trial court relied on numerous factors.

They related primarily to Detective Shave’s conduct of the interview (e.g., his brevity and subdued manner), and defendant’s response (e.g., his understanding of the right to silence and counsel, his apparent lack of confusion about statements being omitted from the “case-in-chief,” and his decision to answer only certain questions). Finally, no violation of the Sixth Amendment right to counsel was found. The trial court reasoned that defendant did not acquire such right in the capital case until several weeks after the police interview, on February 1, 1990, when the complaint was filed.

Four days after the ruling on the suppression motion, defendant personally waived his right to testify. He did not take the stand at either the guilt or penalty phase. 2. Analysis Defendant first contends the trial court erred in allowing use of his statements for impeachment because detectives conducted a custodial interrogation in knowing violation of Miranda, supra, 384 U.S. 436, and ignored the right to silence and counsel he invoked thereunder. Defendant recognizes that his Miranda claim fails under People v.

Peevy (1998) 17 Cal.4th 1184, 1191-1202 [73 Cal.Rptr.2d 865, 953 P.2d 1212] (Peevy), which was decided after the instant suppression ruling. Peevy held that a statement deliberately obtained in violation of Miranda safeguards, but otherwise voluntary, is admissible for impeachment under Harris, supra, 401 U.S. 222, 224. Defendant insists, however, that Peevy is no longer viable and should be reconsidered in light of the subsequent decision in Dickerson v. United States (2000) 530 U.S. 428 [120 S.Ct. 2326, 147 L.Ed.2d 405] (Dickerson). We have previously rejected a similar claim (People v.

Demetrulias (2006) 39 Cal.4th 1, 29-30 [45 Cal.Rptr.3d 407, 137 P.3d 229]), and do so again here. The narrow question in Dickerson, supra, 530 U.S. 428, concerned congressional authority to effectively overrule Miranda, supra, 384 U.S. 436.

To this end, Dickerson held that the Miranda decision is “constitutionally based” and could not be abrogated by statute. (Dickerson, supra, 530 U.S. at p. 440.) The high court observed that certain exceptions, including the impeachment principles in Harris, supra, 401 U.S. 222, demonstrated “not that Miranda is not a constitutional rule—but that no constitutional rule is immutable.” (Dickerson, supra, 530 U.S. at p. 441.) Nothing in Dickerson indicated that the court’s careful balancing of the parameters of the Miranda rule had changed.

Thus, defendant has not shown that Dickerson is inconsistent with Harris, supra, 401 U.S. 222, or Peevy, supra, 17 Cal.4th 1184. Defendant next faults the trial court for allowing impeachment with statements obtained in violation of his Sixth Amendment right to counsel. Detectives allegedly interfered with a “preexisting” attorney-client relationship when they discussed the capital crime with defendant after learning that Attorney Alexander had told him not to do so. As we now explain, the asserted right never arose and could not have been violated in the present case.

A criminal defendant’s right to the assistance of counsel under the Sixth Amendment does not exist until the state initiates adversary judicial criminal proceedings, such as by formal charge or indictment. Hence, an uncharged suspect undergoing police questioning possesses no such Sixth Amendment right. (Davis v. United States (1994) 512 U.S. 452, 456-457 [129 L.Ed.2d 362, 114 S.Ct. 2350]; People v. Frye (1998) 18 Cal.4th 894, 987 [77 Cal.Rptr.2d 25, 959 P.2d 183]; see Patterson v.

Illinois (1988) 487 U.S. 285, 290-297 [101 L.Ed.2d 261, 108 S.Ct. 2389] [noting that defendant subject to postindictment interrogation must invoke 6th Amend, right, and describing circumstances under which it can be waived].) Moreover, the Sixth Amendment right to counsel is “offense specific”; it arises and may be asserted only as to those offenses for which criminal proceedings have formally begun. (McNeil v. Wisconsin (1991) 501 U.S. 171, 175 [115 L.Ed.2d 158, 111 S.Ct. 2204]; see People v.

Webb (1993) 6 Cal.4th 494, 527 [24 Cal.Rptr.2d 779, 862 P.2d 779] (Webb).) A defendant’s incriminating statements about offenses for which he has not been charged may be admitted consistently with his Sixth Amendment counsel guarantee notwithstanding its attachment on other charged offenses at the time. (McNeil v.

Wisconsin, supra, 501 U.S. at p. 176; Webb, supra, 6 Cal.4th at p. 527.) “[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities.” (Maine v. Moulton (1985) 474 U.S. 159, 180 [88 L.Ed.2d 481, 106 S.Ct. 477]; see Texas v. Cobb (2001) 532 U.S. 162, 167-173 [149 L.Ed.2d 321, 121 S.Ct. 1335] [reaffirming and defining offense-specific nature of right; People v.

Slayton (2001) 26 Cal.4th 1076, 1081-1085 [112 Cal.Rptr.2d 561, 32 P.3d 1073] [same].) The foregoing authorities defeat any Sixth Amendment bar to eliciting and admitting defendant’s statements about the capital crime. At the time of the interview, defendant had been arrested and jailed in Missouri following the shooting of Officer Robinson. Defendant learned over the phone from Attorney Alexander that he need not, and should not, discuss the California crimes in counsel’s absence no matter what assurances the police gave about their use.

Even assuming that criminal proceedings had begun on the Missouri crimes for which defendant was in custody, and that his Sixth Amendment right to counsel had attached to those counts, similar circumstances did not exist with respect to the California murder and related offenses. As noted by the trial court, formal charges were not pending in the present case at the time of the police interview.

Defendant cites no authority requiring or persuading us to ignore the bright-line precharging rule against attachment of a Sixth Amendment right in the present case simply because counsel may have fortuitously intervened beforehand. In his final attack on the trial court’s ruling, defendant contends his statements were coerced and involuntary, and were inadmissible for any purpose under due process guarantees.

The claim rests primarily on uncontradicted evidence that, after defendant spontaneously invoked his Miranda rights, Detective Shave mentioned the inadmissibility of defendant’s statements in the “case-in-chief,” but never explained the scope of that exclusionary rule or the impeachment exception. Allegedly, these circumstances so misled defendant about the legal risks of the interview that he could not resist the impulse to participate.

The due process clause of the Fourteenth Amendment precludes the admission of any involuntary statement obtained from a criminal suspect through state compulsion. (Dickerson, supra, 530 U.S. 428, 433-434; Colorado v. Connelly (1986) 479 U.S. 157, 167 [93 L.Ed.2d 473, 107 S.Ct. 515]; People v. Neal (2003) 31 Cal.4th 63, 79 [1 Cal.Rptr.3d 650, 72 P.3d 280].) Involuntariness means the defendant’s free will was overborne. (Dickerson, supra, at p. 434; People v.

Guerra (2006) 37 Cal.4th 1067, 1093 [40 Cal.Rptr.3d 118, 129 P.3d 321] (Guerra).) Whether the defendant lost his free will and made involuntary statements does not rest on any one fact, however significant it may seem. Instead, courts examine the totality of the circumstances. (Withrow v.

Williams (1993) 507 U.S. 680, 688-689 [123 L.Ed.2d 407, 113 S.Ct. 1745]; Jablonski, supra, 37 Cal.4th 774, 814.) While the reviewing court independently decides whether the statements were involuntary, it accepts the trial court’s factual findings if supported by substantial evidence. (Guerra, supra, 37 Cal.4th at p. 1093; Jablonski, supra, 37 Cal.4th at p. 814.) The factors supporting the trial court’s voluntariness decision are stronger here than in other cases in which similar findings have been made.

Though defendant sidesteps the point, he was not worn down by a lengthy interrogation or deprived of human comforts or necessities. The interview lasted only 45 minutes as opposed to several hours. (Cf. Jablonski, supra, 37 Cal.4th 774, 815.) It occurred while defendant sat unrestrained in a climate-controlled room. He did not complain about a lack of sleep or food, or suffer any physical ailments. (Cf. People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60-61 [17 Cal.Rptr.3d 710, 96 P.3d 30] (Coffman and Marlow); People v.

Storm (2002) 28 Cal.4th 1007, 1036 [124 Cal.Rptr.2d 110, 52 P.3d 52].) Nor does the record reveal anything harsh or overtly threatening about the tone or content of questioning. (Cf. Guerra, supra, 37 Cal.4th 1067, 1095; Coffman and Marlow, supra, 34 Cal.4th at p. 61.) Indeed, the trial court described Detective Shave as naturally soft-spoken in court. Defendant seemed so relaxed that he engaged in what Overley described as “small talk” about his life.

Contrary to what defendant implies, neither the failure to read defendant his Miranda rights, nor the continued interrogation after he asserted such rights, compels a finding of official coercion. (Jablonski, supra, 37 Cal.4th 774, 814, citing People v.

Bradford (1997) 14 Cal.4th 1005, 1039 [60 Cal.Rptr.2d 225, 929 P.2d 544].) We have reached a similar conclusion where the number of times the police ignored the defendant’s request for counsel far exceeded what happened here. (See Jablonski, supra, 37 Cal.4th at pp. 810, 814-815 [11 times]; Coffman and Marlow, supra, 34 Cal.4th 1, 57-58 [nine times].) Defendant’s prior experience as a felony suspect and the advice he received from both Ms mother and Attorney Alexander suggest he was not confused or intimidated by detectives, and that he willingly chose to unburden himself about the capital crime.

Of course, Detective Shave’s assurance that defendant’s statements could not be used in the “case-in-chief’ was only true as far as it went; he did not specifically mention the converse principle that such statements might be used for impeachment.

However, there is no evidence that defendant, a convicted felon, did not understand Shave’s point, or that detectives otherwise mischaracterized the interview as wholly “off the record.” In any event, prior cases have consistently rejected involuntariness claims even where police representations on admissibility were much less accurate than the one made here. (Jablonski, supra, 37 Cal.4th 774, 811, 815 [unqualified assurance that defendant’s statements could not be used in court]; Coffman and Marlow, supra, 34 Cal.4th 1, 54, 58 [same]; People v.

Gutierrez (2002) 28 Cal.4th 1083, 1132-1133 [124 Cal.Rptr.2d 373, 52 P.3d 572] (Gutierrez) [unqualified assurance that defendant’s statements would not be used in court].) As evidence that nothing detectives said rendered defendant’s statements involuntary, he fielded their questions in a careful matter, and declined to discuss certain sensitive topics that they raised. “His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information.” (Coffman and Marlow, supra, 34 Cal.4th at p. 58.) In sum, we find no error in the suppression and impeachment ruling below.

V. Guilt Issues A. Shoe Print Evidence According to defendant, the trial court mishandled shoe print evidence introduced through Criminalist Krenz—evidence that the prosecution acquired and disclosed to the defense shortly before trial. Defendant complains about the denial of various motions (i.e., continuance, mistrial, exclusion of evidence) on grounds the prosecutor violated rules regulating both pretrial discovery (§ 1054 et seq.) and the reliability of scientific evidence. (People v.

Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240] (Kelly).) Here, as below, constitutional violations are alleged (i.e., right to due process, to counsel, and to prepare and present a defense). We will reject the claims. 1. Background The basic facts came to light during discussions between the court and counsel about Krenz’s testimony. Several months before the jury was sworn, Krenz had examined paper debris recovered from the crime scene, found no shoe prints linked to defendant, and prepared a report of her findings that both parties received.

A defense expert, Steve Schliebe, examined the same physical items, and reached similar conclusions. The day after the jury was sworn, and before opening statements were made, defendant filed his written offer of proof on the admissibility of third party culpability evidence. Apparently, in an abundance of caution, the trial court had previously granted a defense request to delay presentation of this theory until the eve of trial to avoid giving the prosecution too much advance warning.

The offer of proof referred, among other things, to “numerous” shoe prints at the crime scene that could not be linked to defendant or any other known person. According to the prosecutor, this representation differed from his recollection that only a few unidentified shoe prints had been found. Hence, that same night, the prosecutor and Krenz spent six hours examining debris that had been taken from the floor of the dumpster alcove, looking for shoe prints they might have missed before. As a result, Krenz found two new partial shoe prints that appeared to be consistent with defendant’s Nike shoes.

Krenz reached this conclusion in each case by making an imprint of the bottom of defendant’s shoe on a transparent plastic sheet, attaching a photograph of the crime scene shoe print underneath the transparency, and laying the transparency over the photograph to see if the sole patterns lined up. Counsel complained that the foregoing evidence surprised the defense, and violated the prosecution’s duty to provide discovery in a timely fashion.

Counsel sought to investigate the matter to determine the likelihood that the disputed shoe prints were made by defendant, and to retain another expert to examine Krenz’s new conclusions in this regard. Counsel asked for a continuance, and for a mistrial if the continuance was denied. He moved, alternatively, to exclude Krenz’s testimony and related exhibits (i.e., shoe print transparencies and attached photographs). The prosecutor denied any wrongdoing, and insisted he had no choice but to reexamine the crime scene debris when counsel suggested that it contained numerous exculpatory shoe prints.

The prosecutor emphasized that all such evidence had been given to the defense and examined by their expert long before trial. To ease counsel’s concerns, the prosecutor offered to recess for one week before presenting any evidence, and/or to present Krenz’s testimony at the end of the case-in-chief. The prosecutor also offered to stipulate to any evidence concerning the number of Nike shoes like defendant’s in Garden Grove near the time of the crime.

The trial court agreed that defendant was entitled to fully investigate Krenz’s proffered testimony, and that the defense should suffer no prejudice from the timing of its disclosure. However, the court saw no discovery violation or unfairness requiring either a continuance or mistrial, or exclusion of the shoe print evidence. According to the court, nothing in its pretrial discovery order or applicable law constituted “an absolute bar to something new coming up during trial.” The court credited the prosecutor’s account about discovering the two partial shoe prints the night before.

In the court’s view, defendant could pursue his investigation while trial was underway, because he had two public defenders and access to investigators in their office. The final ruling was issued only after the court heard Krenz’s testimony outside the jury’s presence describing her shoe print comparison technique. 2. Analysis Contrary to what defendant first claims, the discovery statutes did not “mandat[e]” a continuance or other sanction in the present case.

The prosecutor must disclose to the defense relevant written, recorded, or reported statements “of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case,” as well as “the results of . . . scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.” (§ 1054.1, subd. (f).) Such disclosure generally must occur at least 30 days before trial. (§ 1054.7.) However, the latter provision contains the following exception: “If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately . . . .” (Ibid., italics added.) The trial court properly found that Krenz’s testimony and supporting exhibits constituted new evidence, and that disclosure timely occurred under the latter provision.

The prosecutor informed both the court and counsel of such evidence immediately after he acquired it. Nothing in the record suggests such acquisition was unreasonably delayed. Indeed, experts on both sides initially overlooked the two new shoe prints, which were found on scraps of paper salvaged from debris in the dumpster alcove. The court accepted the prosecutor’s explanation about reexamining the debris and discovering the new shoe prints overnight. We find no violation of the relevant statutes or the court’s pretrial order. (See, e.g., People v.

Panah (2005) 35 Cal.4th 395, 459-460 [25 Cal.Rptr.3d 672, 107 P.3d 790] (Panah) [reaching similar conclusion as to new report that pathologist prepared on eve of testimony after reexamining microscopic slides at prosecutor’s request].) We reject defendant’s related claim that the trial court abused its discretion in denying his request for a continuance, and in not first ascertaining the precise extent of the delay involved. (See Panah, supra, 35 Cal.4th 395, 460 [upholding outright denial of continuance of “unspecified length”].) Neither the prosecutor nor the court sought to deny defendant an opportunity to investigate the shoe print evidence or to defend against it.

The record supports the court’s determination that defendant had ample time and resources to do so after trial began. Under the circumstances, the court could properly find no good cause for delaying the start of trial. (People v. Wilson (2005) 36 Cal.4th 309, 352 [30 Cal.Rptr.3d 513, 114 P.3d 758].) Taking a different tack, defendant argues that the shoe print evidence offered through Krenz was inadmissible under Kelly, supra, 17 Cal.3d 24. (See People v.

Leahy (1994) 8 Cal.4th 587, 593-604 [34 Cal.Rptr.2d 663, 882 P.2d 321] [reaffirming Kelly rule despite subsequent changes in analogous federal law].) Kelly, supra, at page 30, and its progeny require a showing that new scientific techniques used to detect or analyze evidence have achieved general acceptance in the relevant scientific community. (Pride, supra, 3 Cal.4th 195, 238.) This approach prevents lay jurors from being influenced by procedures that carry a false aura of scientific infallibility. (Webb, supra, 6 Cal.4th 494, 524, citing People v.

Stoll (1989) 49 Cal.3d 1136, 1156 [265 Cal.Rptr. 111, 783 P.2d 698].) The Attorney General correctly argues that defendant has forfeited this specific claim by not raising it in the trial court. (See Evid. Code, § 353.) We apply this procedural bar despite defendant’s insistence that the Kelly rule is too “important” to avoid applying on the merits in a capital case. (See, e.g., People v. Diaz (1992) 3 Cal.4th 495, 527 [11 Cal.Rptr.2d 353, 834 P.2d 1171].) In any event, we disagree with defendant that trial counsel rendered deficient representation by failing to make a Kelly objection.

The jury heard Krenz describe her “overlay” technique, and saw the items she used to compare defendant’s shoe print (i.e., the transparency) with each crime scene specimen (i.e., photograph).

Jurors could judge for themselves whether the sole patterns on these items looked the same. “Where, as here, a procedure isolates physical evidence whose existence, appearance, nature, and meaning are obvious to the senses of a layperson, the reliability of the process in producing that result is equally apparent and need not be debated under the standards of Kelly, supra, 17 Cal.3d 24.” (Webb, supra, 6 Cal.4th 494, 524; accord, People v. Farnam (2002) 28 Cal.4th 107, 159-160 [121 Cal.Rptr.2d 106, 47 P.3d 988] (Farnam) [fingerprint comparison]; People v.

Ayala (2000) 24 Cal.4th 243, 280-281 [99 Cal.Rptr.2d 532, 6 P.3d 193] [bullet comparison].) Because the shoe print evidence did not implicate the concerns underlying the Kelly rule, counsel had no duty to object on that ground, and could properly decline to do so. For all these reasons, we find no judicial error or professional incompetence involving the shoe print testimony and exhibits admitted against defendant. B.

Loss of Victim’s Car Defendant claims here, much as he did below, that the prosecution’s failure to preserve and disclose evidence (i.e., Nguyen’s car), and the trial court’s refusal to specially instruct on the issue, violated due process under the federal and state Constitutions. No error occurred. In response to defense questions at trial, Detective Shave testified that Criminalist Mac Willie met Shave in Missouri to examine Nguyen’s Toyota MR2. The examination occurred on January 9, 1990, about two weeks after defendant’s arrest, and three weeks before the criminal complaint was filed.

The car was photographed inside and out. In addition, police searched for fingerprints and other forensic evidence by examining the car’s exterior, interior, engine, and trunk. The car was released from police custody on January 12, 1990, before being examined by anyone acting on defendant’s behalf. The circumstances surrounding this development are unclear. Shave testified that he did not authorize the car’s rel

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