THE PEOPLE, Plaintiff and Respondent, v. BILLY RAY RIGGS, Defendant and Appellant, 44 Cal. 4th 248

Opinion BAXTER, J. A jury convicted defendant Billy Ray Riggs of the first degree murder of Jamie Bowie and of robbing her and unlawfully taking her vehicle. (Pen. Code, §§ 187, 211; Veh. Code, § 10851.) It found true sentencing enhancements as to each count that defendant personally used a firearm (§ 12022.5) and that a principal was armed (§ 12022, subd. (d)) and, as to the murder, the special circumstance that defendant committed the murder in the course of robbing the victim (§ 190.2, subd. (a)(17)(A)). After a penalty trial, the jury returned a verdict of death.

The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death and to a determinate term, stayed, on the noncapital offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Introduction On Monday, April 16, 1990, 24-year-old Jamie Bowie left Phoenix, Arizona, in her Volkswagen Beetle to return to Los Angeles, where she was to begin a new job the next day. She never arrived in Los Angeles or spoke with her family or friends again.

Several motorists who were driving on Interstate Highway 10 that day later reported seeing Bowie traveling west on the highway, and some said it appeared she was having car trouble and was being assisted by an African-American couple, who were also driving a Volkswagen Beetle. On May 12, 1990, a worker in an orchard in Indio found Jamie Bowie’s decomposed body in a ditch. She had been shot twice with a shotgun. Over one year later, on August 28, 1991, police in Fresno recovered Bowie’s Volkswagen, which had recently been abandoned.

They were able to determine that defendant had sold the car to a local car mechanic on April 18, 1990, two days after Bowie was last seen alive. On January 10, 1992, the television show America’s Most Wanted broadcast a segment devoted to the Bowie case, which included descriptions and photographs of defendant and his common law wife, Hilda Riggs, who were wanted for questioning in the murder. Following tips from viewers of the show, the police arrived at the Riggses’ apartment in the Los Angeles area shortly after they had fled.

One week later, police followed up on further tips that led to the Riggses’ new apartment in Los Angeles and arrested them. The Riggses were charged with Bowie’s murder and robbery. Hilda Riggs pleaded guilty to first degree murder without special circumstances and agreed to testify against defendant. Defendant, who chose to represent himself, went to trial. The jury deliberated for less than one full court day before convicting defendant of all charges, and again for less than one full court day before returning a verdict of death. B. Guilt Phase 1.

Prosecution Evidence Jamie Bowie was bom and raised in Oklahoma and received a bachelor’s degree in journalism and public relations from the University of Oklahoma in 1989. In October 1989, she purchased a blue 1978 Volkswagen Beetle convertible. Two months later, she moved to Los Angeles to pursue a career in the film industry. Although she had moved away from home, she remained close to her mother, Diana, in Oklahoma, and a college friend, Victoria Boucher, who lived in Houston, Texas. She talked with each of them on the telephone several times each week.

Bowie eventually accepted a job offer that was to begin on Tuesday, April 17, 1990. For the weekend preceding the start of her new job, which was Easter weekend, she arranged to visit with Boucher in Phoenix, Arizona. On Saturday, April 14, during the drive to Phoenix from Los Angeles, Bowie’s car had engine trouble. She was able to make it to Phoenix and took the car to a repair shop to be fixed while she visited with Boucher and Boucher’s grandparents, at whose house Bowie was staying.

Because of the Easter holiday, the car would not be ready until Monday, delaying Bowie’s planned return to Los Angeles by one day. On Monday morning, April 16, 1990, Boucher’s grandfather drove Bowie to the repair shop where Bowie picked up her car and then left. Bowie’s brother, Bryan, who also lived in Los Angeles, spent Monday night at Bowie’s apartment to await her return. He remembered hearing someone come into the apartment that night using keys. He assumed it was his sister and fell back to sleep.

The next morning, he left the apartment and noticed that no one was there and that the front door was unlocked, despite the fact that he had locked it the night before. Later that morning, Bryan learned from his mother that Bowie had not called to say that she had arrived back in Los Angeles. Bryan returned to the apartment around noon and found that the apartment had been burglarized. There was no sign of forced entry. Clothes were strewn about the apartment, and the two televisions were sitting on the staircase with the cords wrapped around them.

Several electronic items, including a radio, two video cassette recorders (VCR’s), and a telephone answering machine, were missing. The next day, concerned that Bowie still had not arrived in Los Angeles or contacted anyone, Bowie’s family began searching for her along Interstate 10, the main highway between Phoenix and Los Angeles. Bryan and Bowie’s father traveled east from Los Angeles and Bowie’s mother traveled west from Phoenix. They stopped at gas stations, truck stops and restaurants along the highway.

Several people they talked with remembered seeing—and testified at trial concerning—a young blonde woman fitting Bowie’s description traveling west on Interstate 10 on April 16 in a blue Volkswagen Beetle convertible. Some of these witnesses noticed that the woman appeared to be having car trouble and was being assisted or followed by an African-American couple in a red-colored, hardtop Volkswagen Beetle. At trial, James Edwards testified he recognized Hilda Riggs as the female member of the couple helping Bowie, and he was “at least 80 percent” sure the man was defendant.

After some initial uncertainty, Gail Horton also identified defendant at trial as the man who was helping the blonde woman. Despite the Bowie family’s continued efforts to find her, there were no further developments in the case until, on May 12, 1990, a worker in a citrus grove near Indio found a body. The body was lying facedown in a ditch next to a dirt road mnning through the orchard and was severely decomposed and desiccated. A green, 12-gauge, double-ought buck shotgun shell was found three to four feet from the body. An examination of dental records confirmed the body was that of Jamie Bowie.

An autopsy revealed that Bowie had been shot twice with a shotgun, once in the middle of the back and once in the right arm. Bowie’s right hand, in fact, was severed from her arm. Either of these wounds could have been fatal. Bowie’s lower jaw also was fractured in three places, likely due to blunt force trauma, such as a blow or several blows from a fist or the butt of a shotgun. It was not likely that a fall caused the broken jaw.

The lead investigator assigned to the case, Riverside County Sheriff’s Investigator Salvador Pina, testified that in his opinion, Bowie was shot first with buckshot ammunition, which consisted of several large pellets, while the second round was birdshot, which consisted of more numerous and smaller pellets. Pina found birdshot pellets embedded approximately two inches in the ground underneath where Bowie’s body was lying, indicating that Bowie was shot with birdshot while lying on the ground. The birdshot pellets found in the ground were inadvertently discarded before trial, however.

There were no further leads in the case until over one year later, when police in Fresno examined an abandoned Volkswagen Beetle and discovered that the confidential vehicle identification number (VIN) on the car matched the VIN of Bowie’s missing car. Investigator Pina traveled to Fresno and learned that a local Volkswagen mechanic, Ronald Johnson, and his father, James Johnson, had purchased the car from defendant on April 18, 1990, two days after Bowie went missing, at an Economy Inn in Fresno. Both men identified defendant at trial as the person who sold them the car.

A registration card for that date at the motel had defendant’s name and driver’s license number, written in defendant’s handwriting. Ronald Johnson testified that when defendant sold him Bowie’s car, it had Texas license plates, and the Texas registration and title were in defendant’s name. Johnson compared defendant’s driver’s license and the VIN on the dashboard of the car to the information contained in the title and registration documents and found that they matched. Defendant told Johnson not to sell the car, but he nonetheless sold it to Veronica Galvan about three months later.

When Galvan registered the car in California, the smog certificate and the California title and registration for the car had the VIN of a Volkswagen registered to defendant in Texas. This VIN was for a 1973 Volkswagen, not a 1978. The car was later stolen from Galvan and then abandoned before the Fresno police discovered it. At some point the car was repainted a dark color, although the witnesses identified some areas of the car that still had the blue paint visible. The recovered car also had the same tear in the convertible top that was present when the Johnsons purchased the car from defendant.

It was not entirely clear whether, when the police recovered the car, both the public VIN and the confidential VIN matched the original VIN of Bowie’s Volkswagen, or only the confidential VIN matched. Testimony at trial established that Bowie’s automated teller machine (ATM) card was used three times between 9:46 and 9:49 a.m. on April 17, 1990, in Granada Hills, near Los Angeles. The attempted ATM withdrawals of, successively, $200, $100, and $20 were rejected because there was only $7.67 in the account.

Bowie’s father testified that he called his daughter’s apartment at approximately 9:00 a.m. on April 17 and left a message on the answering machine. When he called back between 11:00 a.m. and noon that day, the phone rang and the answering machine did not answer. Reynaldo Quintana testified that he purchased a VCR and some jewelry from defendant in Denver, Colorado, in August or September of 1990.

Robin Bell, from whom Bowie was subletting her apartment, testified that the VCR Quintana bought from defendant was the same brand and had the same distinctive modification as a VCR belonging to Bell that had been stolen from the apartment. Bryan Bowie also identified the VCR as looking like one stolen from the apartment. A distinctive suitcase that Bowie’s mother and brother testified looked like one belonging to Bowie was found at the house of Claudia Grant, Hilda Riggs’s mother.

The suitcase had a small lock on it that was the same brand as the one Bowie’s mother had given to Bowie, and unlocked with a key Bowie’s mother had with her in court. Grant testified that Hilda Riggs and defendant gave Grant the suitcase when they dropped off defendant’s grandson one or two weeks before they were arrested in this case. Hilda Riggs (hereinafter Hilda) testified for the prosecution. Hilda and defendant were traveling from Arizona to Los Angeles when they saw Bowie and her Volkswagen at a gas station in Arizona.

Defendant, who was a Volkswagen mechanic, helped Bowie fix her car, and defendant and Hilda subsequently followed Bowie westbound on Interstate 10 through the remainder of Arizona and into California. Along the way, defendant repaired Bowie’s car approximately 10 more times. Defendant told Hilda that he was helping Bowie so he could “get a new customer,” in that he planned to help her buy and install a new motor for the car.

At some point after it got dark, however, defendant said he was tired of helping Bowie and had instead decided to rob her because he thought Bowie “had dope.” He also told Hilda that he would have to kill Bowie because she had seen his face; defendant was on the run from police in Texas. Bowie, defendant, and Hilda stopped for dinner at a restaurant in Banning, California. After dinner, defendant told Bowie and Hilda to get into Bowie’s car while he checked the engine.

Defendant then approached Bowie with a handgun, a weapon that Hilda testified was not functional, and ordered Bowie to get in the backseat of the car and told Hilda to retrieve a shotgun from defendant’s car. When Hilda returned with the shotgun, defendant and Bowie were in the backseat. Defendant took the shotgun and told Hilda to drive the car back to the freeway and go back east toward Indio. On the way, defendant asked Bowie for the code for her ATM card, which Bowie gave, but she also said there was no money in the account.

Before they got to Indio, they exited the freeway and attempted to withdraw money from an ATM, but were unsuccessful. Defendant then told Hilda to drive past the freeway and follow a dirt road. Defendant eventually ordered Hilda to stop the car, at which point he and Bowie got out, and then he told her to turn the car around. While defendant was gone, Hilda heard a shotgun blast. A few minutes after leaving the car, defendant returned by himself. He got in and told Hilda to drive away but, after a few feet, told her to stop again. He then got back out of the car, and Hilda heard a second shotgun blast.

Defendant returned to the car and told her to drive back to the restaurant in Banning. Hilda and defendant then picked up defendant’s car at the restaurant and drove both cars to Los Angeles. Hilda testified that she and defendant drove directly to Bowie’s apartment in Van Nuys, stopping only for gas, and arrived there the same night. Defendant took Bowie’s keys and went to the apartment but returned soon thereafter and told Hilda he could not enter because there was a chain on the door. The next morning, they unsuccessfully attempted to use Bowie’s ATM card and then returned to the apartment.

This time, defendant came back to the car with two suitcases, a radio, two VCR’s, a telephone and answering machine, and a jewelry box and jewelry. Hilda identified the suitcase found at her mother’s house as one defendant had taken from the apartment. Defendant and Hilda then drove the two cars to a motel in Fresno. Hilda identified at trial a photograph of a motel room as being of the room in which they had stayed. In Fresno, at defendant’s request, Hilda called a Volkswagen repair shop to inquire about selling Bowie’s car.

She identified a photograph of Ronald Johnson’s shop as the one she contacted where someone was interested in buying the car. Defendant replaced the license plates from Bowie’s car and the VIN on her dashboard with the license plates and VIN from his own car and then sold Bowie’s car at the motel to the “young guy” from the shop. Hilda testified that she and defendant then traveled to Denver, Colorado, where they stayed for three to five months. While there, defendant sold a VCR and some of Bowie’s belongings to the owner of a pawnshop.

They went next to Phoenix, Arizona, and stayed there approximately six months. Hilda returned to Los Angeles when defendant was incarcerated in Phoenix on a matter unrelated to the Bowie murder. After three months, defendant rejoined Hilda in Los Angeles. Based on a listing in TV Guide, defendant told Hilda to record an America’s Most Wanted television program about the Bowie murder. When defendant watched the program and saw his and Hilda’s photographs, defendant said, “We caught.” Defendant and Hilda fled the apartment and went to her mother’s house, leaving their uneaten dinner on the table.

Defendant told Hilda that if they were caught, she should tell the police they helped Bowie during the day but never saw her again after it became dark. When they were arrested a week later, Hilda initially told the police this exculpatory version of events, but she testified that she told the truth to the investigating officer later the same day. Hilda pleaded guilty to first degree murder and received a sentence of 25 years to life in prison, and had already been sentenced when she testified at defendant’s trial.

In response to the prosecutor’s question why Hilda did nothing to stop Bowie’s murder, Hilda testified that she was afraid defendant would kill her as well. Defendant had threatened to kill Hilda on the Friday before the murder when Hilda said she was leaving him. Hilda testified that during the year after the murder, she once called the police to report the crime but was told she had to come into the station to make the report. Defendant offered to drive her to the station but instead took her around the comer and beat her with a bat, then made her take off her clothes and drove her to the desert.

Hilda testified that she chose to testify against defendant because he should “pay for what he did.” On cross-examination, in response to defendant’s question concerning how defendant treated Hilda when they were living in Los Angeles, Hilda answered that defendant beat her, as he had done the previous eight years. Hilda then testified, in response to further questions by defendant, that she told people her injuries from the beatings were the results of accidents, except for a cousin to whom she told the truth.

Hilda testified she had no choice but to stay with defendant because he threatened to kill her father if she left. Defendant made this threat “every time” he beat her. The threats of harm to Hilda and her father were also the reasons why Hilda did not attempt to leave the scene of the crime while defendant was outside of the car. Hilda was pregnant with defendant’s child when they were arrested. The prosecution called Dr. Geraldine Stahly, a social psychologist who specialized in the study of domestic violence. Dr.

Stahly testified concerning the psychological characteristics of “battered woman syndrome” (BWS) that might lead a woman in a physically and mentally abusive relationship to follow the demands of her abuser and not try to end the relationship. Based on a hypothetical question paralleling the facts of this case regarding Hilda’s assistance in the murder and failure to report the crime while a fugitive, Dr.

Stahly testified that such circumstances “describe[d] almost precisely . . . battered woman accommodation syndrome ... in which a woman who has been a chronic victim of abuse does things which are both inconsistent with her own history of behavior and which are criminal acts under the direction and under the fear and threat of the person who’s been her batterer. [][] Typically, in these situations, the woman believes that if she doesn’t do exactly what she’s told, that she will be killed.

In some cases the woman reports that—that even though she’d be willing, she doesn’t care if she dies, she’s tired of living, she’s sure that even killing her wouldn’t be enough, he would kill other people that she loved. . . .” Dr. Stahly also testified that people subjected to severe stress and trauma may develop a “flat affect,” appearing unemotional, even when recounting traumatic events. Further, once a battered woman is removed from the abusive relationship, she may want to cooperate with the authorities to ensure that her abuser is punished and unable to abuse others.

Los Angeles Police Officer Eugene Edwards testified that when defendant was being transported to jail after his arrest, he told the officers he had been trying to arrange for travel to a country that would not extradite him. Later, defendant said he heard Hilda giving her statement to the officers, and he told them he would take the blame for the murder because Hilda was carrying his baby. On January 27, 1992, defendant sent a note to a sergeant at the jail stating that he wanted to discuss the case with Investigator Pina.

Defendant waived his Miranda rights and made a tape-recorded statement, which was played for the jury. Defendant said that he had watched an episode of America’s Most Wanted, which reported that defendant and Hilda had been captured and in which Hilda gave an account of the murder consistent with her later trial testimony. Defendant told Pina that he wanted to give a statement to correct two inaccuracies in the program: (1) that Hilda was not 14 years old when defendant met her, and (2) that Hilda—not defendant—shot Bowie.

Defendant said a friend named Claybom Roberts had, prior to the murder, told him that Bowie was a drug courier and was transporting drugs from Phoenix to Los Angeles. Defendant planned to rob Bowie of the drugs and in fact had driven from Los Angeles to Phoenix, had waited at the Volkswagen repair shop for Bowie to arrive, and then followed her as she headed back to Los Angeles. According to defendant, after kidnapping Bowie at the restaurant in Banning and driving her to the orchard in Indio, defendant gave Hilda the shotgun to guard Bowie while defendant searched the car for drugs.

Hilda, however, was jealous of how Bowie and defendant had behaved during the day and ended up shooting Bowie. Defendant admitted stealing items from Bowie’s apartment and selling her car in Fresno. On February 18, 1992, defendant again asked to meet with Investigator Pina to discuss the case and gave a second tape-recorded statement, which also was played for the jury. Defendant again stated that he and Hilda “did this crime together,” intending to rob Bowie of drugs, but that Hilda shot Bowie out of jealousy. Defendant described how Bowie’s body spun around when she was shot and ended up in a gully.

When defendant took the shotgun from Hilda and looked down into the ditch, he heard Bowie say, “I’m already dead.” Defendant denied that Bowie had been beaten before she was shot. Defendant acknowledged that he was partly responsible but said he did not “want to take punishment for somethin[g] that somebody else did.” He also mentioned he was writing a book and was including “everything that [he could] think of.” Jail personnel later seized a handwritten manuscript of a book defendant was attempting to send to a publisher.

The manuscript was an autobiography and gave an account of the murder along the lines of what defendant had said to the police, although it recounted that when defendant was contemplating abandoning the plan to rob Bowie, Hilda encouraged him to stick to the plan, and also that Hilda mentioned to defendant her jealousy and thoughts about shooting Bowie before they ate dinner in Banning. 2. Defense Evidence Defendant presented an alibi defense.

Ina Ross, defendant’s sister, and Minnie Hill, Ms niece, testified that defendant, Hilda Riggs, and Hilda’s son (defendant’s grandson) Dejawhn Riggs, Jr., were in Stockton during the day of April 16, 1990, and did not leave Stockton until around 7:00 or 8:00 p.m. Hill’s diary for the month of April of 1990 included an undated notation about visiting with defendant. Aaron Crain and Chester Eddy were working at a gas station in Blythe, California, on April 16, 1990. Crain testified that he saw a blue Volkswagen Beetle convertible driven by a wMte female come into the gas station.

A faded orange-colored Volkswagen also pulled into the station, and an African-American man who was driving the orange car met with the woman from the blue car and then told Crain that her car’s engine was leaking oil and needed to be repaired. There was a second man and a woman who stayed in the orange car. On cross-examination, Crain identified defendant as the second male who remained in the orange Beetle. After oil was added to the convertible, the two cars left, heading westbound towards the interstate.

Chester Eddy testified he was inside the garage at the station and saw a young blonde woman and an African-American man at the station. Both of them were driving Volkswagens. Eddy had seen defendant on possibly two or three occasions a number of years prior to April 16, 1990; he did not see defendant at the gas station on that date, but did not look at the second Beetle except for less than one second as it drove by the door of the garage. Bessie Hodges testified that she saw someone who may have been Jamie Bowie alive in Blythe after April 16, 1990.

Several witnesses testified about the VIN’s for Volkswagen cars, what the numbers meant, and where and how the VIN’s were placed on the vehicle. Nancy Ortner, a defense investigator, testified and demonstrated in court that two locks manufactured by the Lark company opened with the same keys. A key Ortner brought to court opened the lock on Jamie Bowie’s suitcase, and the key provided by Diana Bowie opened a lock Ortner brought to court. 3.

Prosecution Rebuttal Evidence Martin Gonzalez, an employee of the California Department of Motor Vehicles (DMV), testified that on July 10, 1990, he inspected a blue Volkswagen Beetle convertible that a young Hispanic woman had purchased and was attempting to register. Gonzalez discovered that the public and confidential VIN’s for the car did not match, and completed a form referring the car to the California Highway Patrol theft unit for inspection.

Debra Gonzalez, who was also a DMV employee, testified that she mistakenly issued a registration for the blue convertible without its first having been inspected by the highway patrol. Dejawhn Riggs, Jr., Hilda Riggs’s son and defendant’s grandson, testified that he had been to Stockton only once and had never been there at Easter. C. Penalty Phase 1. Prosecution Evidence The penalty phase case in aggravation consisted primarily of the circumstances of the murder of Jamie Bowie and defendant’s extensive history of violence, as recounted by defendant’s ex-wives, girlfriends, and family members.

The prosecution also presented evidence of defendant’s two burglary convictions and of the effect Bowie’s murder had on her family and friends. a. Cecelia G. In the spring of 1965, when Cecelia G. was 15 years old, she met and began dating defendant, who at the time was 21 or 22 years old. During an argument between the two, Cecelia said she was leaving, and defendant pointed a handgun at Cecelia’s head and pulled the trigger, though the gun did not fire because there was no round in the chamber. Cecelia thought she was going to be killed when defendant pulled the trigger.

Cecelia did not see defendant again until several months later when he met her after school and kidnapped her at gunpoint. Defendant, who was accompanied by two other males, took Cecelia to his apartment, where she was raped and beaten by defendant and the other two men. This lasted through the night and part of the next day. Cecelia’s parents reported the incident to the police, and defendant was charged with forcible rape and, after fleeing the jurisdiction for a number of years, was ultimately convicted in 1980 of unlawful sexual intercourse with a minor. b. Abuse of Wives, Girlfriends, and Dejawhn Riggs, Jr.

In January 1964, when Gene R. was 16 years old and attending high school, defendant forcibly raped her in a car. As a result, Gene became pregnant and because of the pregnancy, married defendant rather than have an abortion. After they were married, defendant continued to force Gene to have sexual intercourse against her will. If she refused, defendant hit her. On one occasion, defendant hit Gene in the mouth with a telephone receiver because he did not like the conversation she was having.

When Gene went to the bathroom to wash off the blood from her injury, defendant followed her and eventually pushed her head down into the sink. During an argument, defendant placed a pillow over Gene’s face and held it there, which disrupted her breathing. Defendant prevented Gene from seeing her sister for three months. Gene separated from defendant in the spring of 1965. Lena Swindle met defendant in 1966 when she was a senior in high school, and was married to him from 1970 through 1978. Defendant often hit her with his fists in her chest, sometimes striking her hard enough to make her fall.

He hit her in her chest, rather than her face, so that no one could see her injuries. On one occasion defendant attempted to hit Swindle while he was driving a car, and she jumped out of the moving vehicle to avoid being struck. Defendant dragged her back to the car while she was screaming for help and then continued driving. Defendant caused problems with Swindle’s family, and she therefore had little contact with them while she was married to defendant, despite their otherwise being very close.

Sandra Riggs testified that she and defendant were together for approximately one to two years, were married in 1982, and later separated but never divorced. Defendant hit Sandra three or four times with his hands, once giving her a black eye, and also once kicked her in the stomach. Defendant once forced Sandra to make a recorded statement that she was a lesbian by twisting an electrical cord around his hands in a way that made her think he might strangle her to death. She did not leave defendant, despite the physical abuse, because she was afraid he would find her and hurt or kill her.

Vicci L. testified that she lived with defendant for a period of time in 1982 or 1983. Defendant hit her fewer than 10 times while they were together, once giving her a black eye. He once hit her in the face and broke the eyeglasses she was wearing. On another occasion he hit Vicci in the head with a gun. When defendant put down the gun, Vicci took it and shot at defendant, who then jumped on her and knocked her to the floor, dislocating her shoulder. He then put the gun in her mouth and threatened to kill her.

Yicci testified that defendant, against Yicci’s will, once tried to push a bottle into her vagina and “maybe once” forced her to have sexual intercourse when she did not want to. Defendant prevented Yicci from talking with her friends and family while they were together. Hilda Riggs testified that during their relationship, defendant hit her numerous times with a baseball bat, a barbell, a pipe, a rifle, and the shotgun used in the Bowie murder. She had bruises all over her body, including bruised ribs and at least 50 black eyes, during the seven years they were together.

Defendant also once dislocated her jaw by hitting her with a bat. He physically abused Hilda’s son Dejawhn, Jr., when he was between four and seven years old. Hilda did not leave because she was afraid defendant would kill her father. c. Killing of Defendant’s Brother Lena Swindle testified that in 1972, she was with defendant and their two children at defendant’s mother’s home in Los Angeles. Also present were defendant’s mother and his three brothers, Rickie, Larry and Dejawhn. Defendant and his mother were arguing in the kitchen, and she asked Rickie to intervene.

Defendant and Rickie exchanged heated words, and defendant then left the kitchen momentarily, returning with a handgun. Defendant pointed the gun at Rickie and told him he should not say anything more or else defendant would kill him. Rickie, who was unarmed, told defendant “he better do it or [Rickie] would kill him.” Defendant then shot Rickie in the chest. After the shooting, defendant did not rush to aid his fallen brother but instead told Swindle to collect their children and get in their car. They left his mother’s home and drove first to San Francisco and then to Florida.

Defendant told Vicci L. that the killing was an accident. Defendant said he was cleaning a gun and it accidentally went off. d. Burglary Convictions In 1983, defendant was convicted of burglary of a commercial building and burglary of a residence in Texas, for which he received concurrent sentences of 10 years’ imprisonment.

Sheriff Paul Ross, who investigated the commercial burglary, notified the Texas parole board that defendant was a “good prisoner and that [Ross] had no problem with him being released” early on parole because, after talking with defendant, Ross believed defendant’s claim that he had found religion and had been rehabilitated. e. Victim. Impact Testimony Jamie Bowie’s mother testified concerning Jamie’s life and the impact Jamie’s disappearance and death had on her and on Jamie’s family. 2. Defense Evidence a.

Family Members’ Testimony The defense presented evidence that when defendant was a child, his parents separated and his mother moved with the children to California. Defendant’s father, Edward Riggs (whom Lillian Tucker, defendant’s aunt, testified was a “lovely” father), died of an illness shortly thereafter. Defendant had difficulty getting over his father’s death. According to Tucker, defendant’s mother once whipped defendant with an electrical cord. She also made him work in her building-maintenance business at night after defendant attended school during the day.

When defendant’s mother remarried, her new husband was mean to defendant and his brothers. Lanny Henry, defendant’s cousin, testified that although defendant’s mother did not physically abuse him, she may have mentally abused him. Henry was aware of defendant’s criminal activities and believed they were a result of his family background in that defendant’s mother did not discipline him when he behaved badly, but instead made excuses for his behavior.

Having to work in his mother’s maintenance business until the early morning hours meant that defendant did not attend school and got “off track.” In Henry’s experience, defendant was not physically abusive to women or children but in fact discouraged such actions. Henry would be devastated if defendant were executed and believed defendant could be of benefit to society in prison as a positive influence on other inmates. Defendant’s sister, Pearlie Thomas, testified that she had never seen defendant act violently, use drugs, drink alcohol, smoke, or curse.

It was her impression that defendant and Hilda Riggs were happily married; she saw no signs of physical abuse or unhappiness between them. She stated she would be devastated and defendant’s family would be hurt if defendant were to be executed. Several other family members and acquaintances testified that they observed no signs of defendant’s having abused Hilda, Lena, or Dejawhn, Jr., or other women, or otherwise having engaged in criminal activities. Most of the witnesses testified that defendant’s relationships with women appeared to be loving.

Some witnesses testified that defendant had been a positive influence in their lives in terms of offering guidance and advice and that in their opinion defendant should not be executed. b. Psychologists’ Testimony Dr. William Jones, a licensed psychologist, testified that he met with defendant on two occasions: once in 1992 to perform a competency evaluation, and once in 1994 to perform a complete psychological evaluation. Dr. Jones opined that defendant was competent, of normal intelligence, and had good communication skills.

Defendant was not psychotic, but appeared to be impulsive and immature to some degree, and had poor judgment, especially when under stress. Dr. Jones testified that in his opinion defendant was very self-centered, in the sense that he paid attention only to his own thoughts and opinions, and “present-centered,” in the sense that he concentrated on his present actions or statements without regard to their consistency with his past actions or statements or their consequences on his future. Defendant also had a grandiose view of his own intelligence and abilities. Dr.

Jones observed that defendant appeared to have an unusually low level of anxiety, given his situation. Dr. Jones believed the psychological tests showed defendant had some resentment and sense of inferiority toward women, though the tests did not necessarily indicate defendant was abusive to women. Defendant also displayed “weaknesses in sequential abilities,” meaning he had some difficulty placing thoughts and ideas in their proper, logical order. Another licensed psychologist, Dr. Michael Leitman, also performed psychological testing on defendant and reported conclusions similar to those of Dr. Jones. Dr.

Leitman found that defendant had a very complicated personality. Defendant contradicted himself and “miss[ed] relevant cues,” which caused him to act in ways he thought were correct, but which other people would view as wrong. In Dr. Leitman’s opinion, defendant had difficulty handling stress and would keep people at a distance in order to prevent them from learning of defendant’s self-perceived weaknesses and insecurities. Defendant did not exhibit violent tendencies, though he might become angry if other people viewed his actions as wrong when defendant thought he was “being the good guy.” Dr.

Halford Fairchild, a social psychologist and professor of psychology specializing in African-American psychology, testified concerning his theory of “probabilistic environmentalism,” which he described as the view that a person’s social and physical environments affect the probability that the person will follow a particular course in his or her life. According to Dr.

Fairchild, some African-Americans have a feeling of alienation, in the sense of being detached from society and the dominant culture, and self-hatred and a devalued sense of self-worth, which may manifest itself in the form of violence against others. c. Jail Witnesses’ Testimony Ten inmates who knew defendant in the Indio Jail testified as to defendant’s good character, his efforts to assist other inmates with legal matters, and his participation in religious studies and activities.

One inmate, Anthony Peoples, also testified that Hilda Riggs told him she had committed the murder, although a note Peoples sent to defendant (in which he offered to testify) stated that Hilda said she “didn’t it [ric].” Another inmate, Donovan Dumas, testified that Hilda made disparaging comments about defendant while in the jail. Several law enforcement and correctional officers who worked at the jail testified that defendant was generally courteous to the staff and friendly with the inmates, although he had been in some fights with other inmates.

Defendant assisted in keeping the jail’s law library organized and functioning. d. Defendant’s Testimony Under examination by advisory counsel, defendant testified that his father was loving and caring but his mother was abusive to defendant and his brothers. When defendant’s father was seriously injured at work, defendant’s mother left him and took the children to Los Angeles. She engaged in prostitution there and neglected and physically abused the children.

After defendant’s father died, his mother remarried three times; her first husband hated children and called defendant a “halfbreed dog.” Defendant’s mother and stepfather ran a janitorial business and forced defendant and his brothers to work at night after school. Despite this, defendant testified he did well in school academically and athletically. Nonetheless, defendant did drop out of high school and did not receive a general equivalency degree until seven years later. When he turned 20 years old, defendant began searching for employment, but was unable to find a job.

A friend suggested that defendant help him steal a car, and defendant agreed to assist. Defendant then became involved in a car theft ring and other crimes, such as drug dealing. For a time defendant was successful running a Volkswagen repair business in Dallas, but Hilda sabotaged the business. Defendant said he sold the business because he did not want to “do something real drastic” to her.

Defendant felt that the neglect and abuse inflicted on him by his mother and stepfathers caused him to become greedy and desire material possessions, which led him to engage in criminal activities when he did not have legal employment. Defendant denied that he had ever physically abused any of his wives or girlfriends. He stated he, in fact, treated the women “like queens.” He admitted that he had struck his grandson with a belt on three occasions to discipline him, but denied he had engaged in any other physical abuse.

Defendant also testified concerning his religious convictions and ability to provide guidance and advice to other inmates. He also claimed he had been productive and obedient while he was incarcerated. Defendant testified that he shot his brother Rickie in self-defense. According to defendant, Rickie was armed with a pistol and blocking the front door of the house to prevent defendant and his family from leaving. Sometime during the argument, Rickie raised his gun and pointed it at defendant, at which point defendant shot him.

Defendant told others his brother had been shot accidentally while the gun was being cleaned because that was what defendant’s mother had told him to say. On direct examination, defendant denied any involvement in Jamie Bowie’s murder. On cross-examination, defendant testified that he did not know how Bowie was killed. According to defendant, Hilda was with a man named Robert Beverly, who matched the description of the African-American man whom Aaron Crain and Chester Eddy testified they saw at the gas station in Blythe on April 16, 1990.

Defendant testified that Beverly, who was serving in the Navy, was involved in defendant’s drug distribution activities as a guard for the drug shipments. Defendant first met Beverly in 1986 in Dallas, Texas, and contacted him again in California in 1989 to ask him to assist in the drug conspiracy. According to defendant, he last saw Beverly in Fresno on April 15, 1990, when they met to discuss the drug business while defendant and Hilda were on their way to see his sister in Stockton.

Defendant testified that on April 15, 1990, he visited with his sister and later drove to the Sizzler’s restaurant in Banning and met Hilda. Hilda took defendant to the orchard and showed him the body of a young lady. When confronted with the fact that Jamie Bowie did not leave Phoenix until April 16, defendant professed not to be positive of the dates. Defendant admitted to burglarizing Bowie’s apartment, and testified that he gave the Johnsons Bowie’s Volkswagen and sold them defendant’s own Volkswagen with the understanding that the Johnsons would “cut up” Bowie’s car.

Defendant testified that he and Hilda had planned to accuse each other of shooting Bowie, although he acknowledged that he was aware of aider and abettor law, and that they would, in essence, be “pointing the fingers at [them]selves.” He could not explain the intended purpose of accusing each other, other than it might in some way help Hilda. Defendant explained that he did not accuse Beverly of being involved when he spoke to police, nor did he call Beverly as a witness at trial, because Beverly could not be found. Finally, defendant testified that he and Jamie Bowie were romantically involved before her murder.

According to defendant, Bowie met him at the weightlifting area of Venice Beach in Los Angeles in January 1990. After meeting at the beach two more times, defendant and Bowie went to a hotel near the airport, where defendant registered under a false name. Defendant and Bowie met several more times in motels. On one occasion defendant and Bowie went to a motel and spent the entire night and next day there. In February, Bowie went to Texas for two weeks, and when she returned defendant met her once at her apartment. In all, defendant and Bowie met 10 or 11 times.

No one knew about their relationship because they kept it secret. 3. Prosecution Rebuttal Evidence In rebuttal to defendant’s assertion that Robert Beverly was involved in Bowie’s murder, the prosecution called Beverly as a witness. Beverly was a top-secret communications specialist with the Navy in 1990, stationed at Point Mugu Naval Air Station in Camarillo, California. Beverly testified that he had never met defendant, Hilda Riggs, or Jamie Bowie, and had never been to Dallas, Texas, where defendant claimed to have met him.

The only time Beverly had driven to and from Phoenix, Arizona, on Interstate 10 was in mid-March 1990, and he received a speeding ticket in Banning on March 15th on the way to Phoenix. Beverly was not involved in a drug conspiracy with defendant or the murder of Jamie Bowie. According to Beverly, his actions—even when not on duty—were constantly and surreptitiously monitored by the Navy in 1990 because of his top-secret security clearance, and he would have been “taken in” had he been involved in criminal activities.

Claybom Roberts, who—according to defendant’s statements to the police—had provided the information that Bowie was delivering drugs from Phoenix to Los Angeles, testified that he did not know Jamie Bowie and never talked to defendant about her or anyone else transporting drugs from Phoenix to Los Angeles.

A few days before Thanksgiving in 1991, Roberts visited defendant at defendant’s home in Phoenix, and defendant showed him a pistol-grip, 12-gauge, pump-action shotgun and told Roberts something along the lines of “this is the one I shot the broad with.” Aaron Crain was recalled to rebut defendant’s testimony that defendant was not at the gas station in Blythe on April 16, 1990, at the same time as the young blonde woman with the blue Volkswagen convertible. Crain confirmed that he was sure that he saw defendant there.

The prosecution also called several witnesses to rebut defendant’s testimony that he had a romantic relationship with Bowie. Bowie’s friend Victoria Boucher testified that Bowie had “strong morals,” rarely dated, and had “longer term” relationships when she did date. Bowie did not have a reputation for “fooling around or messing around with different guys,” and was dating someone named Jonathan Ward from January 1990 to April 1990. Bryan Bowie, Jamie’s brother, testified that when he and Jamie shared an apartment in January and the first two weeks of February of 1990, Jamie never spent a night away from home.

Bryan and Jamie often rented movies to watch at the apartment or went to the theater together to watch movies on the weekends and continued to do so when Jamie moved to her own apartment. Jamie did not go to Texas after she moved to Los Angeles. Bryan had never seen or heard of defendant before this case. In addition, an investigator for the district attorney’s office testified that the records of the Hyatt hotel defendant had identified in his trial testimony had no registration record for the name defendant testified he used when he went there with Bowie in January 1990.

Dejawhn Riggs, Jr., defendant’s grandson, testified that besides hitting him with a belt, defendant once punched him in the stomach, which caused Dejawhn to lose his breath, and once kicked him in the stomach, which caused him pain. On another occasion, defendant fastened Dejawhn’s hands above his head to a post with duct tape and hit him with a belt, which left lines on his body, onto which defendant rubbed salt. Dejawhn also saw defendant hit Hilda with his hands. A deputy sheriff assigned to the Indio Jail testified that he saw defendant fighting with another inmate in the jail.

Defendant later told the deputy the fight started because the other inmate was disturbing defendant while he was watching television. Defendant punched the other inmate in the upper body and face three times and bit him on the back. 4. Defense Surrebuttal Evidence An inmate from the jail testified that defendant did not punch or kick the other inmate during the fight in the jail. Robert Beverly testified, consistent with his rebuttal testimony, that he drove to and from Phoenix in March 1990, not in April.

Surila Collins, defendant’s aunt, testified that defendant’s mother treated defendant unfairly as a child because she left his father and told the children he was not a good husband. Collins never saw evidence that defendant physically abused Dejawhn or Hilda. One of Dejawhn’s childhood friends testified that he never saw evidence that defendant abused Dejawhn, either. Elizabeth Beck, another of defendant’s aunts, testified that defendant lived with her when he was a child. Defendant was a good runner in track, got along well in the neighborhood, and did not get in trouble with the law or at school.

Defendant treated Dejawhn like a son and did not abuse him. Defendant’s mother was not a good influence on her children because her behavior taught the children that there was “only one way and that was her way whether it was right or wrong.” Defendant’s mother also had relationships with other men while she was married to defendant’s father. Beck would feel very disappointed if defendant were sentenced to death and believed defendant could repent and become a better person if sentenced to life in prison. II. Discussion A.

Assertedly Inadequate Faretta Advisement Defendant represented himself at the preliminary hearing and throughout the trial. He now claims on appeal that his conviction and sentence should be reversed because he never knowingly and intelligently waived his Sixth Amendment right to the assistance of counsel. Defendant contends that the two colloquies conducted by the municipal and superior court judges concerning the dangers and disadvantages of self-representation were inadequate under the United States Supreme Court’s decision in Faretta v.

California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta) because the trial court did not mention to him “the factors that are unique to a death penalty case.” We are not persuaded. 1. Background On January 22, 1992, defendant was arraigned on the charges, and the Riverside County Public Defender’s Office was appointed to represent him. Just under seven weeks later, during a pretrial hearing on March 10, 1992, defendant made his first request to represent himself.

Resolution of defendant’s request was deferred at that time because the trial court—at the request of defendant’s attorney—ordered a competency evaluation pursuant to

section 1368. After defendant was found to be competent, a preliminary hearing was scheduled for April 21, 1992. At the start of the scheduled preliminary hearing, defendant’s attorney stated that defendant was not ready to proceed because defendant wished to make a motion to relieve counsel and represent himself. Defendant confirmed this, stating, “I feel that no one can conduct a better trial than I would for myself.

I have just one life to give and I would like to exercise my right to counsel of my choice and I choose myself.” The trial court then conducted a lengthy colloquy with defendant concerning his familiarity with the charges, his experiences with the legal system, his educational background, and the disadvantages of self-representation. At one point in the discussion, the prosecutor listed each area of inquiry suggested in People v. Lopez (1977) 71 Cal.App.3d 568, 572-574 [138 Cal.Rptr. 36] (Lopez), and the trial court further discussed those areas it had not already covered.

Throughout the entire colloquy defendant reiterated that he understood the implications of his decision to represent himself and wanted to do so. Indeed, he at one point stated, “I’ve had three months to think about this, your honor, and it’s not a snap decision. I feel it is a rational decision.” The trial court ultimately found that there was “no reason at this point to deny [defendant] his right to represent himself.

He is clearly intelligent, articulate, appears to understand the difficulty that he’s facing representing himself and is willing to shoulder that responsibility at his peril.” The trial court granted defendant’s motion to represent himself and relieved the public defender. After the preliminary hearing, at which defendant represented himself, defendant was held to answer in the superior court. At the arraignment on the information on May 21, 1992, the trial court inquired concerning defendant’s desire for appointed counsel. Defendant again stated that he did not want counsel appointed to represent him.

In response to the trial court’s inquiry concerning whether defendant’s decision to represent himself merely reflected his desire to choose his own attorney, defendant made clear that he wanted to represent himself: “[Defendant]: Your honor, I’m very serious about representing myself. I have no doubts about that whatsoever, but I am serious about myself. I know it’s my life. I only have one. [][]... [][] “The Court: But what I meant to say was . . . you would like to have a lawyer but you don’t want the ones you think are available; is that right? “[Defendant]: No, your honor.

That’s not right. [][] I said if I had a second choice besides myself, it would be a lawyer that I would pick, [f] Other than that, I do want to represent myself, period, [f] And I’m standing on that. I haven’t changed one bit, your honor.” At this hearing the trial court again discussed at length with defendant the dangers and disadvantages of self-representation, and the prosecutor again mentioned the areas of inquiry set forth in Lopez, supra, 71 Cal.App.3d 568. When ultimately asked whether he understood the “pitfalls and dangers of self-representation,” defendant responded affirmatively.

The trial court found that defendant had waived his right to the assistance of counsel and allowed him to continue to represent himself. 2.

Analysis On appeal, defendant acknowledges that the record here establishes a knowing, intelligent, and voluntary waiver of the right to counsel “at any other sort of trial.” He contends, however, that the advisements in this case were insufficient because in neither colloquy, at the preliminary hearing or at the superior court arraignment, did the trial court explain to defendant the particular “factors that are unique to a death penalty case.” Defendant argues the trial court should have advised him (1) that defenses offered in the guilt phase must be carefully considered because they may conflict with potential penalty phase defenses; (2) that there are different burdens of proof in the guilt and penalty phases; (3) that evidence that would not be admissible at the guilt phase might be admissible at a penalty phase; and (4) that if defendant were convicted at the guilt phase, there would be a separate penalty phase of the trial.

Defendant contends the failure to do so renders his conviction and sentence unconstitutional. Defendant is mistaken. The United States Supreme Court recognized a criminal defendant’s right to self-representation in Faretta, but the court stressed that any waiver of the right to counsel must be knowing, intelligent and voluntary: “A defendant seeking self-representation ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” ’ ” (People v.

Bloom (1989) 48 Cal.3d 1194, 1224-1225 [259 Cal.Rptr. 669, 774 P.2d 698], quoting Faretta, supra, 422 U.S. at p. 835.) As we stated in Bloom, supra, 48 Cal.3d at page 1225, however, “[t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” The asserted shortcomings in the colloquies in the present case do not undermine the trial court’s finding that defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.

First, defendant is incorrect in claiming that the record does not establish that he was aware of the fact that if convicted in the guilt phase, he would then face a penalty phase of the trial.

To the contrary, when taking defendant’s pleas to the charges in the information—before the trial court made its ultimate finding that defendant had waived his right to counsel—the trial court told defendant, “It is also alleged by the District Attorney that a special circumstance [applies] which if found true would trigger a penalty phase in the trial in that the homicide in this case was committed during the perpetration of a robbery . . . .” When asked whether he understood that allegation, defendant stated he did.

The trial court then again asked defendant whether he understood “if at the jury trial, the jury finds that beyond a reasonable doubt that the homicide occurred during the commission of the robbery, that that would trigger the penalty phase in which the possible punishment is life without the possibility of parole or the gas chamber.” Defendant again answered—without any hesitation or uncertainty noted in the record—that he understood. Accordingly, even assuming that such an advisement was required (but see People v.

Blair (2005) 36 Cal.4th 686, 710 [31 Cal.Rptr.3d 485, 115 P.3d 1145] (Blair)), the record shows that defendant was in fact aware of the possibility of a penalty phase of the trial at the time he waived his right to counsel. As to the other advisements defendant claims should have been given, we find that they were not necessary here.

The fact that guilt and penalty phase defenses might in some cases be in conflict, that the burden of proof differs between the two phases of a capital trial, and that some evidence might be admissible at the penalty phase that would not be admissible at the guilt phase are each aspects of the substantive law of a capital case, not dangers and disadvantages arising from a decision to represent oneself in a capital trial. Those and a multitude of other legal aspects of trying a capital case are at issue regardless of whether the defendant opts for self-representation or is represented by counsel.

The trial court is not required to ensure that the defendant is aware of legal concepts such as the various burdens of proof, the rules of evidence, or the fact that the pursuit of one avenue of defense might foreclose another before the trial court can determine that a defendant has been made aware of the pitfalls of self-representation, such that he or she can make a knowing and intelligent decision whether to waive the right to counsel.

The lengthy advisements given twice in this case warned defendant that defending against capital charges is a complex process involving extremely high stakes and technical rules defendant would be expected to follow despite his likely unfamiliarity with them, and that defendant’s ability to defend himself might be hampered by his incarceration and lack of training. Moreover, the record shows defendant understood the possibility of a penalty phase of the trial that might result in a sentence of death.

Accordingly, we conclude defendant adequately was made aware of the “ ‘disadvantages of self-representation, including the risks and complexities of the particular case,’ ” and that he made his choice to waive counsel with “ ‘ “eyes open.” ’ ” (See Blair, supra, 36 Cal.4th at p. 708; see also People v. Lawley (2002) 27 Cal.4th 102, 140-142 [115 Cal.Rptr.2d 614, 38 P.3d 461].) His right to the assistance of counsel, therefore, was not violated. B. Denial of Motion for Change of Venue On May 20, 1994, the day after the jurors and alternates were sworn, defendant filed a motion for change of venue under

section 1033, contending that pretrial publicity created a reasonable likelihood that defendant would not receive a fair and impartial trial. Although the trial court observed that defendant’s motion appeared to be untimely, the court, out of an abundance of caution, nonetheless entertained the motion on the merits and denied it. On appeal, defendant contends the denial of the motion was error. We disagree.

As an initial matter, it must be emphasized that defendant’s change of venue motion was not only filed less than 10 days before trial without any apparent good cause for doing so, it was filed after the jury had been sworn. Thus, defendant’s motion was fundamentally different from a motion for a change of venue that complies with the rules, even one in which the trial court denies the motion without prejudice to its renewal during or at the completion of voir dire.

In those circumstances, the trial court must determine whether “there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (§ 1033, subd. (a).) But once the jury has been sworn, the trial court’s decision as to venue necessarily must be focused first on whether the jury already sworn could properly discharge its duty to decide the case in a fair and impartial manner. (See Code Civ. Proc., § 233; Pen. Code, § 1089; cf. People v.

Miller (1969) 71 Cal.2d 459, 472-474 [78 Cal.Rptr. 449, 455 P.2d 377] [a renewed change of venue motion made after trial began was properly denied because the court had already excused the prospective jurors who had been tainted by pretrial publicity].) Only if such a showing were made would the trial court then consider whether there was a reasonable likelihood that no fair and impartial jury could be had in that venue. (See, e.g., People v.

Vieira (2005) 35 Cal.4th 264, 278 [25 Cal.Rptr.3d 337, 106 P.3d 990] (Vieira) [evaluating the nature and gravity of the offense, the size of the community, the status of the defendant, the popularity and prominence of the victim, and the nature and extent of the publicity in terms of the likely impact of publicity on potential jurors].) Accordingly, we first evaluate the motion as a challenge to the sworn jurors under

section 1089 of the Penal Code and

section 233 of the Code of Civil Procedure, i.e., whether there was good cause to dismiss the jury due to bias caused by exposure to pretrial publicity. Defendant has not demonstrated that the trial court abused its discretion in failing to find good cause to dismiss the jury. (People v. Smith (2005) 35 Cal.4th 334, 348-349 [25 Cal.Rptr.3d 554, 107 P.3d 229].) As defendant acknowledges, only five seated jurors and one alternate reported that they had heard anything about defendant’s case before they were called as jurors.

The media coverage detailed in the record, which consisted of copies of 12 articles from two local newspapers, and listed one local television broadcast, one local radio broadcast, and three nationally broadcast episodes of America’s Most Wanted, was not so extensive that we could conclude that anyone claiming not to have heard of defendant’s case must have been untruthful, nor is there any other evidence in the record that would tend to contradict these jurors’ statements. The five seated jurors revealed at most a very rudimentary knowledge of some facts of the case. Juror R.W. stated she had read a newspaper

article about a woman who had been driving a Volkswagen who was killed and her car was later found, but R.W. had reached no conclusions about the case. Juror R.B. stated he recalled seeing news reports of the case and may have seen the America’s Most Wanted broadcasts. He specifically recalled learning that a young woman’s body had been found in a citrus grove and that a man and woman had been arrested in conjunction with that killing. He had formed no opinions about the case and could remain objective.

Juror B.C. stated he had some recollection of seeing newspaper articles about the case, but remembered no particulars and had not formed an opinion about the case. He thought he could disregard any further details from the newspapers that he might remember during the trial. Juror C.P. stated she remembered viewing newspaper articles and television broadcasts, including America’s Most Wanted, concerning the case. She recalled that the victim was a young woman who had trusted the people who killed her. She had formed no opinions about the case.

During voir dire, she mentioned that the case had made her worried about her own daughter who traveled frequently, and, though she felt that during trial she might “drift off and, you know, start thinking about things that happened or things that I saw on television,” she also reiterated that she had not formed any opinions about the case. Juror J.P. recalled reading articles and seeing television broadcasts about the case, including perhaps an episode of America’s Most Wanted. She remembered that a woman’s body had been found in a citrus grove and that defendant had been charged in the killing.

She had not formed any opinion about the case. It is notable that defendant did not challenge any of these jurors for cause during voir dire. Indeed, defendant questioned only Alternate Juror E.H. about pretrial publicity, based on his having reported forming a negative impression about the case, and did not question Jurors R.W. and C.P. at all. Although defendant used his full allotment of 20 peremptory challenges, he did not express any dissatisfaction with the final composition of the jury before it was sworn.

Moreover, none of the jurors reported remembering the specific details of any of the articles or broadcasts that defendant alleges presented “prejudicial information that should not have been available to the jurors, previewed evidence that would only be produced at a penalty phase, or unduly emphasized information that the jury would be required to assess at the guilt phase.” Finally, we observe that much of the media coverage, and in particular the America’s Most Wanted broadcasts that defendant finds especially prejudicial, occurred several years before the trial. (See Odle v.

Superior Court (1982) 32 Cal.3d 932, 943 [187 Cal.Rptr. 455, 654 P.2d 225] [“Time dims all memory and its passage serves to attenuate the likelihood that early extensive publicity will have any significant impact at the time of trial”].) The trial court found that none of the jurors was affected by pretrial publicity to any degree that would negatively affect his or her ability to serve as an impartial juror in the trial and that Alternate Juror E.H., the lone juror who had formed any kind of impression, had “clearly indicated that he could set aside any impression he had formed.” That finding is supported by substantial evidence.

We have long held that juror exposure to pretrial publicity regarding a case does not presumptively disqualify the juror; credible assurances that the juror can set aside any preexisting knowledge and opinions about the case and judge it fairly based upon the evidence presented at trial are sufficient to protect defendant’s right to an impartial jury. (People v. Harris (1981) 28 Cal.3d 935, 949-950 [171 Cal.Rptr. 679, 623 P.2d 240].) The trial court did not abuse its discretion in crediting the jurors’ assurances here.

Moreover, even in the absence of these credible assurances, defendant was entitled to the discharge of the sworn jury only on a showing of “ ‘facts that appear “ ‘ “in the record as a demonstrable reality” ’ ” showing the jury’s “ ‘ “inability to perform” ’ ” its function’ ” (People v. Prince (2007) 40 Cal.4th 1179, 1281 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince)), and the record here did not contain such facts. We therefore conclude the trial court properly denied defendant’s motion.

To the extent defendant on appeal contends the trial court erred by not conducting more thorough inquiries of these jurors concerning their exposure to pretrial publicity, he forfeited such a claim of error by failing to raise it below during voir dire, when the trial court could have remedied any alleged inadequacies. Moreover, defendant had the opportunity to question the jurors himself and declined to do so except with respect to Alternate Juror E.H.

In addition, defendant has not pointed to any evidence in the record indicating that further questioning would have uncovered any support for a finding that any juror was, in fact, biased against him. He therefore has made no showing that the absence of further questioning by the trial court, even if deemed error, was prejudicial. C.

Asserted Error in Death-qualifying Voir Dire Defendant contends the trial court violated his constitutional rights by excusing for cause two jurors and failing to excuse for cause another juror based on the jurors’ statements concerning their ability to fairly and impartially impose the death penalty. We recently stated the law applicable to such claims: “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.” ’ ([Wainwright v. Witt (1985)] 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844], 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’ . . . vote for life or death].) The Witt standard applies to both prosecution and defense challenges. [Citations.] 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. [Citations.] “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. [Citations.] 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. [Citation.] 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, 9 [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. ([Wainwright v.] Witt, supra, 469 U.S. [at pp.] 425-426.)” (People v. DePriest (2007) 42 Cal.4th 1, 20-21 [63 Cal.Rptr.3d 896, 163 P.3d 896] (DePriest).) We decline defendant’s invitation to revisit our past decisions establishing this standard. (People v.

Schmeck (2005) 37 Ca.4Ath 240, 262-263 [33 Cal.Rptr.3d 397, 118 P.3d 451].) Affording the trial court’s decisions the deference which they are owed, we conclude the trial court did not err. 1.

Assertedly Improper Exclusion of Jurors Who Were Biased Against Imposition of the Death Penalty Defendant contends the trial court improperly excused for cause two prospective jurors, F.G. and J.F., who expressed some reservations about their ability to impose the death penalty, because, he argues, these prospective jurors indicated they could follow the trial court’s instructions and impose the death penalty in an appropriate case. We are not persuaded.

F.G. stated in her juror questionnaire that she was strongly against the death penalty because “GOD would do the punishing and I’m in agreement.” Although she believed her church opposed the death penalty due to the commandment “Thou shalt not kill,” she did not feel obligated to accept the church’s view.

She stated, however, that she preferred not to serve as a juror in this case because she did not “want anyone’s blood on my hands when I die and have to answer to GOD,” and would not be a fair and impartial juror because “I’d not be good if it came to the penalty phase and death was the appropriate penalty.” F.G. did not answer the question “if you believe under the evidence presented and the legal standard you will be advised of that death is the appropriate penalty, you could return such a verdict,” and wrote “not sure” when asked whether she could vote to impose the death penalty in a case involving a robbery special circumstance.

She had earlier given conflicting answers to similar questions. Two of her answers indicated she would not always vote for or against the death penalty regardless of the evidence, and two others indicated she “disagree[d] somewhat” with the statements that someone who intentionally kills another person always or never should receive the death penalty. She answered “yes” when asked if in an appropriate case she could reject the death penalty and choose a life without parole sentence.

Seemingly contradicting these answers, however, F.G. answered “no” when asked in the next question if she could reject a life without parole sentence and choose the death penalty in an appropriate case. During voir dire, F.G. told the trial court that her views about the death penalty had changed somewhat due to a discussion at her church Sunday school class in which the minister stated that one must “follow the law of the land” in situations where a person might be called upon to kill another person.

She at first stated that she now was more confident that she could vote to impose the death penalty in an appropriate case and was only “moderately opposed” to the death penalty in general. F.G. said she now believed that by consulting with God through her prayers during the trial, she would not be “going against Him” if she voted for the death penalty. F.G. also said that she would pray for guidance because “this is something that I don’t want to be the only one making the decision.

I want some kind of answer from Him.” F.G., however, also stated she did not feel she should be the one to decide whether the death penalty should be imposed, and “wouldn’t want to be in the position to have to do it.” After the trial court explained that the questions F.G. was being asked pertained to whether she could vote for the death penalty in a general sense—not whether she would actually vote for or against the death penalty in this case—the trial court finally asked her, “if you go in and you say, well, considering all of the evidence in mitigation, all of the evidence in aggravation, we [the jury] believe that the appropriate penalty is death, then could you . . . vote for that alternative.” F.G. responded, “I’ll say, no.

I’m—I just really don’t know.

I’d rather say no than now say yes and get to that point and not be able to follow the law.” The trial court granted the prosecution’s motion to excuse F.G. for cause, noting that it found that she had tried to answer the questions truthfully, and the challenge was a “real close call ... or at least was until her absolute last answer.” The court found that this last answer, i.e., that F.G. did not think she could vote to impose the death penalty, in combination with F.G.’s stated desire not to be placed in the position of having to make that choice, indicated that her ability to be impartial would be substantially impaired.

We cannot conclude the trial court erred by excusing F.G. for cause. Her voir dire answers indicated a continued strong aversion to being placed in the position of having to choose to impose the death penalty if that was the appropriate sentence, and her belief that, at best, she might be able to do so because she was required to “follow the law of the land” and would have guidance from God to help make her decision. As we have said before in similar circumstances, “[t]he prospective juror’s answers were equivocal and conflicting.

Those answers, in combination with the trial court’s firsthand observations, could give rise to a definite impression that [F.G.j’s views on the death penalty would substantially impair the performance of [her] duties. We therefore defer to the court’s ruling.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1007 [47 Cal.Rptr.3d 467, 140 P.3d 775]; see also DePriest, supra, 42 Cal.4th at p. 22.) We reach a similar conclusion regarding the trial court’s decision to excuse Prospective Juror J.F.

His answers in the juror questionnaire also were conflicting: he answered that he was moderately in favor of the death penalty, that he would not automatically vote for or against the death penalty, and could return such a verdict in an appropriate case. He answered “no,” however, when asked whether he could vote to impose the death penalty in a case involving a robbery special circumstance, and “no” again when asked whether in an appropriate case he could reject a life without parole sentence and vote to impose the death penalty.

J.F. also stated that he believed a life sentence was a worse punishment than death because death was “the fast way out.” He explained that his view of the death penalty was based on his belief that “God will do the punishing.” When questioned during voir dire about his conflicting answers, J.F. stated that he did not “believe in” the death penalty because of his religious views, but he “guess[ed]” he might be able to “bend” to vote for the death penalty in a “really terrible” case or “very extreme circumstances” such as a serial murderer or the murder of a child.

He also stated, however, that he would be uncomfortable having to make the penalty decision, and guessed he could not be a fair juror for the prosecution. The trial court ultimately asked J.F. whether, based upon the charges in this case of murder and a robbery-murder special circumstance, and realizing there might be aggravating and mitigating evidence presented at trial, he saw “any possibility of your voting for the death penalty in this case.” J.F. responded, “No.” The trial court noted for the record that J.F.’s answer was immediate and unequivocal, and J.F. concurred in that characterization.

The court, citing our decision in People v. Cummings (1993) 4 Cal.4th 1233, 1279-1281 [18 Cal.Rptr.2d 796, 850 P.2d 1], granted the prosecution’s challenge for cause, finding that J.F.’s answers suggested that he would automatically vote against the death penalty regardless of the evidence in this case.

To the extent that J.F.’s answers left any doubt about his inability to impartially determine the appropriate penalty in this case, as with the decision to excuse F.G., we will defer to the trial court’s resolution of that uncertainty, given that his answers were at the least conflicting and equivocal, and could be viewed as indicating he would be substantially impaired in discharging his duty as a juror. Accordingly, we find no violation of defendant’s constitutional rights in the trial court’s excusal of Prospective Jurors F.G. and J.F. for cause. 2.

Assertedly Improper Denial of Challenge for Cause of a Juror Who Was Biased in Favor of Imposition of the Death Penalty Defendant contends the trial court erred by refusing to excuse for cause Juror A.M., who served on the jury throughout the guilt and penalty phases of the trial. We are not persuaded. As an initial matter, although defendant exercised all of his peremptory challenges, he failed to express dissatisfaction with the final jury before it was sworn. Because defendant’s trial occurred before our decision in People v.

Crittenden (1994) 9 Cal.4th 83 [36 Cal.Rptr.2d 474, 885 P.2d 887] (Crittenden), though, we will not apply the holding in that case that the failure to do so forfeits an appellate claim that the trial court erred by denying a challenge for cause. (Id. at p. 121, fn. 4; see Blair, supra, 36 Cal.4th at p. 742.) As to the merits of his claim, in determining whether Juror A.M. was biased and should have been excused for cause, we apply the same standard discussed above, i.e., whether the record establishes that the juror’s views concerning the death penalty would prevent or substantially impair the performance of the juror’s duties.

We defer to the trial court’s findings of the true state of mind of the juror when the juror’s answers were conflicting or ambiguous. (Blair, supra, atpp. 741, 743.) Juror A.M.’s circumstances were essentially the same as those of the jurors we discussed in Blair, with one notable exception, which we will discuss below: initially Juror A.M. “expressed some variation of the view that. . . she would vote for the death penalty in all cases of intentional, deliberate, or premed

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