THE PEOPLE, Plaintiff and Respondent, v. LESTER HARLAND WILSON, Defendant and Appellant, 44 Cal. 4th 758

Opinion WERDEGAR, J. A jury in Riverside County Superior Court convicted Lester Harland Wilson in 2000 of the first degree murder of Uwe Durbin (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and of having personally used a firearm in the commission of the murder (§ 12022.5). It also convicted him of two counts of forcible rape (§261, subd. (a)(2)) and sustained two allegations that he used a firearm while committing these latter crimes (§ 12022.5).

The jury also sustained special circumstance allegations that Wilson committed the murder while engaged in the commission of a kidnapping (§ 190.2, subd. (a)(17)(B)) and that the murder involved the intentional infliction of torture (id., subd. (a)(18)).

On March 14, 2000, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment of guilt but, as explained below, the erroneous excusal during the penalty phase deliberations of the sole juror holding out for a life sentence requires that we reverse the penalty judgment. I. Guilt Phase Facts A. Prelude Defendant Lester Wilson lived in Riverside with his wife, codefendant Barbara Phillips.

On June 8, 1997, a realtor arrived at defendant’s home for a prearranged visit and, noticing the back door was open, suspected a burglary had been committed. He called defendant and Phillips to alert them. The pair arrived home and found two televisions and a videocassette recorder (VCR) were missing. A few weeks earlier, defendant had allowed Uwe Durbin, a recovering drug addict, to stay with them. Defendant believed Durbin was responsible for the theft because he had stolen from defendant before. Enraged by the thefts, defendant grabbed a gun and left the house with Phillips and his two pit bulls.

The realtor was sufficiently disturbed by these events that he noted defendant’s license plate number and called 911, informing the dispatcher that defendant had a gun and was “a little irate.” B. Kidnapping In an attempt to find Uwe Durbin, defendant and Phillips went to the home of Uwe’s brother, Michael Durbin. Michael lived with his girlfriend, L.R., and their three young children. When Michael answered the front door around 10:00 a.m., he was met by defendant pointing a gun at his head.

Defendant was screaming about some missing property; he then pulled the telephone cord from the wall and demanded to know where he could find Uwe. Although L.R. and her children initially hid in the bedroom, Phillips found them. Defendant entered the bedroom and told L.R. that she must follow his instructions or he would kill her and her children. After 10 to 15 minutes, defendant told them they were all leaving with him and Phillips to go look for Uwe. Michael drove his car with defendant; Phillips drove her car with L.R. and the children.

As they left Michael’s apartment, they saw Uwe walking on the street toward his brother’s house. Defendant forced him into one of the cars at gunpoint. Defendant demanded his property, but Uwe professed ignorance about the theft. The group drove to several houses looking for the missing property but were unsuccessful. Phillips suggested to defendant that they take all six victims to their home, and he agreed. C. Wounding and Beating Once they arrived at defendant and Phillips’s house, defendant continued to wield the gun and demand his property.

When he received no satisfactory answers, he turned the radio to a very high volume and shot Uwe in the kneecap. Uwe moaned, and Michael stood up to protest but sat down again when defendant pointed the gun at him. Michael asked that L.R. and the children be released, but defendant refused. Defendant dragged Uwe downstairs and bound him to a chair with duct tape and rope. Defendant placed two D-cell batteries inside a gardener’s glove and beat Uwe with it, hitting him in the head about 10 times.

During this beating, defendant was yelling: “Where’s my TV and VCR?” In the meantime, Phillips was in the living room demanding the return of their property from Michael, who repeated his plea that L.R. and the children be freed. Phillips told him no one would be leaving and that they were all going to die. After this beating, Uwe asked for some paper to write down directions to a location where defendant could find his property. Defendant and Michael left the house with the directions, while Phillips guarded the others.

Uwe’s directions turned out to be bogus, and defendant and Michael returned to the house, although defendant left again thereafter. At this time, Uwe was still bound to a chair, and Phillips was guarding Michael, L.R. and the children. D. Torture Defendant went to Nicole Thompson’s house. Present at the house were Thompson, Nathan McCullah, and codefendants Norman “Baby-G” Culpepper, Charone “Ron-Ron” Parker and Michael “K-Mack” Woods. Defendant told them he had shot someone, planned to kill him, and needed some gauze. They had none, so defendant returned to his house, accompanied by Culpepper, Parker and Woods.

Michael was in the living room, holding a Bible. Parker said he had better read the Bible because they were all going to die. The men laid some plastic sheeting on the floor of the downstairs bedroom to prevent Uwe’s blood from staining the carpet, rolled Uwe onto it, and began hitting and kicking him. They also used the batteries in the glove to beat him. Uwe screamed each time he was struck. This went on for about an hour; Michael and his family heard the victim crying, screaming and moaning. Eventually, defendant forced Michael into the bedroom where they had been beating Uwe.

There was blood all over the room. The men used duct tape to bind Michael to a chair and forced him to view his brother’s body. Uwe’s eyes were swollen shut. Defendant tried to have one of his pit bulls attack Uwe, but the dog refused. Defendant struck the dog and then choked Uwe with a dog chain until he gasped for air. When Uwe told defendant where his property could be found, defendant, Culpepper and Parker left to find it. They returned about an hour later having recovered a television and a VCR, which they put in the living room. E.

The First Rape During the time the men were beating Uwe, Phillips moved L.R. and her children in and out of the house several times. Nicole Thompson, who by that time had joined the others at defendant’s house, took L.R. and the children first to a public park and then to her own house, where she intended to release them. Shortly after she returned home, however, defendant arrived with some of the others. Defendant told L.R. they were going to take a ride around the block.

Parker told him he did not “need to do that,” but defendant said he needed to make L.R. “understand.” Defendant drove L.R. to a park; her six-month-old baby was in the backseat. He asked her how she could prove to him she would not speak to the police if they let her go. She did not understand what he meant. He then told her to take off her pants. She complied out of fear. He then had intercourse with her against her will, believing the act would ensure she would not talk to the police. They returned to Thompson’s house, picked up the others, and they all returned to defendant’s house. F.

Resumption of Torture Upon returning to his house, either defendant or one of the others untied Michael and allowed him out of the bedroom. Michael asked defendant and Phillips to release them, but they refused. Phillips said they were going to kill Uwe. Michael heard the men beating Uwe again; defendant participated in this beating. At one point Michael heard breaking glass. Uwe asked for something to drink; Woods suggested they urinate into a cup and force Uwe to drink it.

Defendant and Woods emerged from the bathroom with a cup of urine; Uwe did not drink it all so the men beat him for several minutes before forcing him to drink a second cup of urine. Phillips was yelling: “He did this” and “We’re going to kill him.” Michael saw bottles of alcoholic beverages and believed the men were drinking and enjoying themselves. At one point, Michael saw Culpepper emerge from the bedroom with a weight from a barbell set. The weight, which was about as wide as a dinner plate, had blood on it. Culpepper’s clothes were bloody and soaked in sweat.

L.R. heard the sound of a blowtorch coming out of the bedroom. At one point, Michael believed someone poured bleach on Uwe’s wounds. G. The Second Rape and Escape Phillips took Michael out of the house on an errand. After they left, defendant isolated L.R. in the dining room and told her he wanted to have sex again. He bent her over the table and raped her. Defendant told her he was not concerned about Phillips returning and surprising them because she did not have a key to the house. L.R.’s fingerprints were found on the table in a location tending to corroborate her account.

L.R. testified she complied out of fear. After this second rape, defendant forced L.R. to help him move Uwe out of the bedroom. At this point, Uwe was wrapped in some plastic sheeting. L.R. opted to carry Uwe by the feet because she did not want to look at his face, which was “messed up,” but he was too heavy for her. When Phillips returned with Michael, he took over for his girlfriend because she was crying. Michael helped move Uwe to defendant’s car. Uwe was still alive at this time. Defendant and Michael placed Uwe on a plastic sheet in the car; defendant threw an additional sheet on top of him.

Meanwhile, Phillips forced L.R. to rub ice on the carpet in an attempt to remove the bloodstains. Blood was evident on both the carpet and the walls. Some of Uwe’s hair was also on the walls. Defendant gathered the various implements used to beat Uwe and loaded them into the car as well. Michael saw defendant carrying a case of chemical drain cleaner, which defendant said he planned to pour on Uwe’s body in order to dissolve it. Defendant announced he intended to release Michael, L.R. and their children. Phillips strongly disagreed with his decision.

Eventually, defendant released the family after warning them that if they contacted the police, he would have them killed. Defendant then left with Phillips in the car containing Uwe, heading towards the Highway 91 freeway. Michael, L.R. and the children left the house, eventually going to Michael’s mother’s home, where they called the police. H. Murder Defendant’s car broke down on the Highway 91 freeway, between the Tyler Street and Van Burén Boulevard exits. Phillips called for a tow truck, which arrived at 12:35 a.m. The truck operator testified that Phillips and an African-American male were at the scene.

The operator towed the car back to defendant’s Riverside house. Around 9:00 a.m. the next morning, Uwe’s body was discovered in a drainage ditch adjacent to the Highway 91 freeway, between the Tyler Street and Van Burén Boulevard exits. He had been shot several times in the head. I. Forensic Evidence Police searched the area where Uwe Durbin’s body was found and discovered a length of rope, several projectiles and some spent shell casings. The rope was stained with Uwe’s blood. The projectiles could not be linked positively to a weapon but were consistent with the cartridges found at the scene.

Police proceeded to defendant’s home, and he consented to a police search. In the downstairs bedroom, which looked as if a fight had occurred there, police observed what appeared to be bloodstains on the floor and walls. A hole in the wall appeared to contain human blood and was embedded with human hair. Police also found a pair of gardener’s gloves, some surgical latex gloves, some rope and some plastic sheeting, all with Uwe’s blood on them. Police also found a roll of duct tape, some .380-caliber cartridges, two D-cell batteries (one with a dent in it), some broken glass and six cans of Red Devil lye.

In defendant’s car, police found additional .380-caliber cartridges and some broken glass. The cartridges were stamped by the same manufacturing tool as the spent cartridges found near Uwe’s body. In addition, police found some bags, clothing, plastic sheeting and newspapers, all stained with blood. The defense stipulated that the blood on the plastic sheeting found in the car was Uwe’s. The pants defendant was wearing on June 9 (the day after the beating and torture of Uwe began) were confiscated and tested positive for human blood.

A forensic pathologist found Uwe had died from gunshot wounds and blunt force trauma. His body bore five gunshot wounds to the head, all delivered when the gun was only inches away. There was one gunshot wound to his hand, which appeared to be a defensive wound, and one to his knee. In addition, Uwe’s body exhibited evidence that blupt force trauma had been applied to his head, torso, arms and legs. Footprints on his body suggested he had been stomped on. He had a broken nose, jaw, ribs and tooth, and two black eyes. One laceration to his head cut through to the cranial bone.

His wrists bore evidence that he had been bound, and his neck bore evidence that he had been strangled. J. Other Evidence Ennise Marie Anthony, Phillips’s sister, told police that defendant had called her from jail and told her he had shot someone six times in the head and once in the knee and had left the body on the freeway. At trial, Anthony professed not to remember making that statement, even when confronted with a tape recording of her conversation with the police.

Jessica Lira testified that she and her boyfriend, Louie Sistos, bought a television from someone for $40, but a few days later, a woman and a man, both African-American, came to her house and explained that the television had been stolen from them. Lira told them to return when Sistos was home. They returned about an hour later with a large, stocky man Lira identified as Culpepper. He leaned and whispered in her ear that “we know you have the television. We already talked to the guy. He said your husband has it. This guy, you know, he’s beat up pretty bad.

He’s about to die.” The knuckles of one of the men were cut and bloody, but by the time of trial Lira was unsure whether that man was Culpepper. Sistos arrived home and gave the group the television, and they returned the $40 he had paid for it. K.K. testified that in 1992, she had been defendant’s fiancee. They quarreled, and the incident escalated until he began to beat her up, throwing her around the room and punching her in the head. He then forced her to orally copulate him before he forcibly sodomized her. The next day, he committed additional forcible sex crimes against her.

Although she reported the crimes to the police, she later decided not to press charges and left the country. K. Defendant’s Statement Defendant spoke with police the day after the crimes, and a recording of his statement was played for the jury. Defendant confirmed he had been called by the realtor, that he arrived home to find two televisions and a VCR were missing, and that he believed that Uwe Durbin was the culprit because Uwe had previously stolen from him. Defendant admitted driving to Michael Durbin’s house looking for Uwe but denied kidnapping or raping anyone.

He admitted grabbing Michael by the shirt but denied pointing a gun at him. Defendant said he ended up buying his television back with no problems. He denied he or his wife had killed anyone, although he admitted there was an altercation in his house by two people whom he knew only as “4-Trey” and “Forties.” He denied personally participating in the fight and, in fact, claimed he never saw Uwe that day. L. Defense at Trial Prior to trial, the trial court granted a motion to sever the cases of Woods, Parker and Culpepper from that of defendant and Phillips.

The court later denied Phillips’s motion for severance, but granted a motion to try her and defendant jointly but with separate juries. Defendant did not testify, and the defense rested without calling any witnesses. Defense counsel argued there was little evidence that defendant had personally committed the acts of torture and murder, emphasizing that Michael Durbin was in the living room during most of the time his brother was beaten. Instead, counsel argued, the other men present (Woods, Parker, Culpepper) were the real culprits.

Counsel argued that Ennise Marie Anthony, who recounted some damaging admissions defendant had made from jail, should be disbelieved because her credibility was suspect. In addition, counsel highlighted the discrepancies in the evidence. For example, although L.R. recalled hearing a blowtorch being used to torture Uwe, and Michael testified defendant poured bleach on Uwe’s wounds, forensic scientists found no support for these claims. There was also evidence that more than one weapon had been used to murder the victim. II. Pretrial Issues A.

Excused of Prospective Juror M.M. for Cause Defendant contends the trial court violated his constitutional rights to a fair trial, an impartial jury, and a reliable penalty verdict (U.S. Const., 5th, 6th, 8th & 14th Amends.), as well as corresponding rights under the state Constitution, by sustaining the prosecutor’s challenge for cause to Prospective Juror M.M. As we explain, the trial court did not err. 1. Facts All prospective jurors were asked to fill out a written questionnaire. In a

section entitled “Opinions About the Death Penalty,” the jurors were asked about their general feelings about capital punishment.

Prospective Juror M.M. answered this question by writing: “It hard to say to I hear the case. [Sic.]” Although the questionnaire asked her to rate her support for the death penalty on a scale from one to 10, and to state whether her opinions about the death penalty would make it difficult for her to vote for either life or death, whether her views on the death penalty had changed over time, and whether she had any religious affiliations that would affect her ability to “take a stance on the death penalty,” she failed to provide any answers to these questions.

Asked what she would do if defendant were convicted of a special circumstance murder, she declined to check the options that she would always vote for (

a) death or (

b) life imprisonment, and instead checked option (c), which stated that she “would consider all the evidence and the jury instructions . . . and impose the penalty I personally feel is appropriate.” She also affirmed that she would assume the penalty reached would be carried out. Asked whether death or life imprisonment was the more severe punishment, she wrote: “It [is] hard to say.” Following completion of the questionnaires, the trial court conducted voir dire of some of the prospective jurors.

When the court questioned Prospective Juror M.M., she asserted there was nothing she wished to add to or subtract from her questionnaire. In response to pointed questioning, she agreed that death was a more severe penalty than life in prison, that she was neutral on the propriety of the death penalty, that she would not treat defendant any differently because he was African-American, that she could apply the law as instructed by the court, and that she did not have any religious objection to the death penalty.

The discussion then took a surprising turn: “The Court: I’m going to ask you the same questions I’ve been asking the other jurors. Let’s assume for argument’s sake that you’ve heard all the evidence in the guilt phase—phase one where you’re deciding did he or didn’t he do the things he’s charged with.

The district attorney has put on sufficient evidence, and you believe that the defendant is guilty of murder in the first degree. “Do you think you could convict him? “Prospective Juror [M.M.]: Yes. “The Court: Do you think you’d be tempted or would you refuse to find the defendant guilty of first degree murder just to stop yourself from having to go any further? “Prospective Juror [M.M.]: No. “The Court: Assume that there was sufficient evidence put on to show that the special circumstance[s] were true in the guilt phase.

Do you think you’d be able to find that those were true? “Prospective Juror [M.M.]: Yes. “The Court: Or would you be tempted to vote that they were not true just to avoid the responsibility of jumping off the bungee jump and going into the penalty phase? “Prospective Juror [M.M.]: No. “The Court: All right.

Do you think you’d automatically vote for life without possibility of parole in a penalty phase, if we got there, regardless of the evidence? “Prospective Juror [M.M.]: Yes. “The Court: You dol “Prospective Juror [M.M.]: Uh-huh. “The Court: Automatically? “Prospective Juror [M.M.]: Uh-huh. “The Court: So you are sufficiently against the death penalty that if you found him guilty of first degree murder with a special circumstance, we get to the penalty phase, it’s basically over for youl You’ve already decided the penalty? “Prospective Juror [M.M.]: Uh-huh. “The Court: Uh-huh, yes? “Prospective Juror [M.M.]: Yes.” (Italics added.) The prosecutor later moved to exclude Prospective Juror M.M. for cause and the court agreed, noting that she “said she’d automatically give life.

As soon as she reached the penalty phase, it would be over for her. I’m prepared to excuse her.” Defense counsel said he would not stipulate to her exclusion, arguing that he had not had a chance to question the juror and that he would like an opportunity to himself conduct a “follow-up” voir dire. When pressed by the trial court to explain what he would ask the juror, counsel replied: “I’m not convinced that she understood exactly what the Court had asked her.

I’d like to follow up and make sure that she completely understood that she has the option of making the decision, life or death, [f] She was somewhat inconsistent in her responses. Initially she said she didn’t have an opinion, but she . . . did indicate . . . that she could participate. “The Court: No, she didn’t. I did ask her several times, and I said, in other words, if we got to the penalty phase, and you had found him guilty of murder with a special circumstance, murder in the first degree, it would be over for you?

She said it would be over, she’d always give life, she couldn’t give death.” The court then excused Prospective Juror M.M. for cause. 2. Discussion The United States Constitution guarantees a criminal defendant a trial by an impartial jury.

As we have explained in numerous recent decisions in capital cases, “[t]o achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment ‘would “prevent or substantially impair the performance of his [or her] duties as a juror” ’ in accordance with the court’s instructions and the juror’s oath.” (People v. Blair (2005) 36 Cal.4th 686, 741 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; see Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) “ ‘In many cases, a prospective juror’s responses to questions on voir dire will be halting, equivocal, or even conflicting. Given the juror’s probable unfamiliarity with the complexity of the law, coupled with the stress and anxiety of being a prospective juror in a capital case, such equivocation should be expected. Under such circumstances, we defer to the trial court’s evaluation of a prospective juror’s state of mind, and such evaluation is binding on appellate courts.’ ” (People v.

Roldan (2005) 35 Cal.4th 646, 696 [27 Cal.Rptr.3d 360, 110 P.3d 289].) “ ‘ “There is no requirement that a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.” [Citation.] “Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court.” ’ ” (People v.

Abilez (2007) 41 Cal.4th 472, 497-498 [61 Cal.Rptr.3d 526, 161 P.3d 58].) The United States Supreme Court has recently expounded on the propriety of deferring to a trial court’s ruling on a challenge for cause, explaining that “the finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because ‘many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.’ [Citation.] Thus, when there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the State.’ ” (Uttecht v.

Brown (2007) 551 U.S. 1, 7 [167 L.Ed.2d 1014, 127 S.Ct. 2218, 2223].) Accordingly, trial courts must, before trial, engage in a conscientious attempt to determine a prospective juror’s views regarding capital punishment to ensure that any juror excused from jury service meets the constitutional standard, thus protecting an accused’s right to a fair trial and an impartial jury. (People v.

Heard (2003) 31 Cal.4th 946, 963-968 [4 Cal.Rptr.3d 131, 75 P.3d 53].) In arguing the trial court abused its discretion by excusing Prospective Juror M.M., defendant focuses on the juror’s written questionnaire answers and oral responses on voir dire, specifically that she rated her support for the death penalty as only a five on a scale of one to 10, that she was capable of voting to impose the death penalty if appropriate for the case, that she would not vote against a guilt or special circumstance verdict warranted by the evidence merely to avoid the penalty phase, and that she had no religious opposition to capital punishment.

When asked whether it would be difficult for her to vote for the death penalty in a case such as the present one, she replied in the negative. We do not know how the juror appeared to the court when she made these affirmations, whether her demeanor suggested sincerity, dissimulation or merely confusion. We do know she appeared to change her mind during the course of the court’s questioning, suddenly contradicting herself and informing the court that if defendant was convicted of first degree murder, she would “automatically” vote for a life sentence instead of the death penalty.

The trial court, clearly surprised at her change of direction, followed up to make sure she had not merely misspoken. She had not. The court then asked her directly whether she was “sufficiently against the death penalty” that if she found defendant guilty of murder with special circumstances at the guilt phase, she would go no further, that the penalty determination was “basically over” for her, and that she had “already decided the penalty.” She agreed unequivocally.

The trial court was in the best position to assess the juror’s state of mind, based on her conflicting responses, her demeanor, her vocal inflection and other nonverbal cues. “Even when ‘[t]he precise wording of the question asked of [the juror], and the answer [she] gave, do not by themselves compel the conclusion that [she] could not under any circumstance recommend the death penalty,’ the need to defer to the trial court remains because so much may turn on a potential juror’s demeanor.” (Uttecht v.

Brown, supra, 551 U.S. at p. 8 [127 S.Ct. at p. 2223].) Faced with a conflict in the juror’s responses, the trial court pursued the matter and the juror finally admitted she would not vote to impose the death penalty. Although defendant argues the juror’s conflicting responses reflected simple confusion rather than a fluid and evolving position that coalesced to produce an anti-death-penalty epiphany, we are unable to resolve that point from the cold record and leave it to the trial court in the first instance to ascertain the juror’s true state of mind.

Defendant argues the trial court erred by failing to permit defense counsel to ask the juror additional clarifying questions, but we reject the point. One can always argue further questioning might yield different and more favorable results, but that is a matter committed to the discretion of the trial court. “A trial court has the discretion to deny all questioning by counsel when a prospective juror gives ‘unequivocally disqualifying answer[s]’ [citation], and may subject to reasonable limitation further voir dire of a juror who has expressed disqualifying answers [citations].” (People v.

Samayoa (1997) 15 Cal.4th 795, 823 [64 Cal.Rptr.2d 400, 938 P.2d 2].) Sufficient evidence here supports the trial court’s decision to terminate questioning, as the court had already considered the juror’s questionnaire answers and her responses during voir dire. Moreover, the court asked her pointed questions when she equivocated, and it was within the court’s discretion to conclude that further questioning would have been of little value. Certainly defense counsel did not identify any area of inquiry not already covered by the trial court.

We conclude the court did not abuse its discretion, nor violate defendant’s constitutional rights, by excusing Prospective Juror M.M. for cause. B. Excusal of Prospective Jurors M.F. and C.T. for Cause Defendant next contends the trial court violated his constitutional right to an impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, by sustaining the prosecutor’s challenges for cause to Prospective Jurors M.F. and C.T.

Unlike the challenge to the excusal of Prospective Juror M.M., the trial court excused M.F. and C.T. based solely on their written responses in their juror questionnaires, with no oral, in-person examination. Although defendant contends excusing these jurors without personally examining them was improper, as we explain, the trial court did not err. 1. Facts As noted above, all prospective jurors were asked to complete a written questionnaire in which several questions addressed the death penalty.

Preceding these questions was a long prefatory statement setting forth the basic procedure applicable to capital cases. The questions then began: “40. Briefly describe your general feelings about the death penalty. “a. On a scale of 1-10, with 10 being strongly in favor of the death penalty, 5 having no opinion, and 1 being strongly against the death penalty, how would you rate yourself? “strongly against no opinion strongly in favor “ 123456789 10 “b. Is there a particular reason why you feel as you do/about the death penalty? “_Yes_No “If yes, please explain:_ “c.

If you are against the death penalty, would your opinion make it difficult for you to vote for the death penalty in this case, regardless of what the evidence was? “_Yes_No “Please explain:_ “d. If you are in favor of the death penalty, would your opinion make it difficult for you to vote for life without the possibility of parole regardless of what the evidence was? “_Yes_No “Please explain:_ “e. In what ways, if any, have your views about the death penalty changed over time?_ “41.

Do you have any religious affiliations that take a stance on the death penalty? “_Yes_No “If yes, please explain:_” (Original underscoring.) Question 42 is critical to our holding in this case because the trial court used it as the basis for excusing both Prospective Jurors M.F. and C.T.

That question provided: “It is important that you have the ability to approach this case with an open mind and a willingness to fairly consider whatever evidence is presented as opposed to having such strongly held opinions that you would be unable to fairly consider all the evidence presented during the possible penalty phase. [][] There are no circumstances under which a jury is instructed by the court that they must return a verdict of death. No matter what the evidence shows, the jury is always given the option in a penalty phase of choosing life without the possibility of parole.

Assuming a defendant was convicted of a special circumstances murder, would you: “_a. No matter what the evidence was, ALWAYS vote for the death penalty. “_b. No matter what the evidence was, ALWAYS vote for life without possibility of parole. “_ c. I would consider all the evidence and the jury instructions as provided by the court and impose the penalty I personally feel is appropriate.” (Italics added, original underscoring and capitalization.) The trial court explained its methodology, which was focused on question 42.

After culling the jury pool for hardship excusáis, the remaining jurors would be asked to complete the questionnaire. If a juror reported that he or she would “automatically vote for death or automatically vote for life at that point,” the parties would be asked to stipulate to the juror’s excusal.

According to the trial court: “My view, if they checked question 42-a or 42-b, they’re gone . . . [f] [wjithout any need for follow-up.” “There’s not much distinction between [42]-a and [42]-b, and that’s why we’re excusing people at both ends of the spectrum.” Following receipt of the completed questionnaires, the trial court discussed them with the attorneys for defendant and codefendant Phillips as well as with the prosecution. The attorneys for all sides stipulated to the excusal for cause of certain prospective jurors based solely on their written answers to these questions, with no oral voir dire.

For example, Prospective Jurors A.C. and D.S., who both rated themselves a 10 in question 40-a (i.e., strongly in favor of the death penalty) and stated they would “always” vote for the death penalty in question 42-a, were excused with the consent of both sides. Similarly, Prospective Jurors D.K. and F.M., who both rated themselves a one (i.e., strongly against the death penalty) and stated they would “always” vote for life imprisonment, were excused by stipulation. Prospective Juror M.F. answered question 40 by saying: “I am a religious person and do not feel that two wrongs make a right.

However, I am unsure about the death penalty in itself. I really don’t know.” She rated herself a four on the scale of one to 10, meaning she was slightly against the death penalty.

In explanatory comments, she wrote: “I could not see myself punishing or participating in the punishment dealing w/the death penalty,” and “It [the death penalty] is not the answer to our problems.” In answering question 42, however, she checked “b,” that is, that “[n]o matter what the evidence was, [she would] ALWAYS vote for life without possibility of parole.” Discussing this juror, the trial court noted: “She rated herself a four, but she says no matter what the evidence was she’d always vote for life without possibility of parole.

She couldn’t see herself punishing or participating in the punishment dealing with the death penalty. The media have made her very unsure, however, once she puts herself in the shoes of the victim’s family. She has a religious stance. It’s not the answer to our problem, the death penalty is not. She’s a religious person. She doesn’t feel two wrongs make a right. She’s unsure about the death penalty. She really doesn’t know. I think she’s substantially impaired [within the meaning of Wainwright v.

Witt, supra, 469 U.S. 412].” Defense counsel requested that the trial court conduct a followup oral examination of M.F., explaining that he was “not willing to stipulate [to her excusal].” The court declined to examine the juror, explaining that “I’m going to make a finding if you’re not willing to stipulate right now.” Prospective Juror C.T. answered question 40 by saying: “I believe that if the defendant gets to the penalty phase I would probably look at the life without possibility of parole [option], more than the death penalty.

That is because of my religious background.” She rated herself a four on the scale of one to 10, meaning she was slightly against the death penalty. Like Prospective Juror M.F., C.T. answered question 42 by checking option “b,” proclaiming she would “always” vote for life. The trial court noted that “I think her views meet the substantial impairment test.” “She said she’d never impose the death penalty, because she’s a Christian, although she’s a four on the scale.

I think she meets the substantial impairment test.” Defense counsel requested that the court conduct a followup examination of the juror, whereupon the prosecutor reminded the court that at that point, every prospective juror who had checked option 42-b and indicated they would always choose life imprisonment had been excluded. The court agreed and excused C.T. based solely on her written answers in the questionnaire. 2. Discussion We addressed the propriety of excusing prospective jurors during a capital case voir dire, based solely on their written responses in a juror questionnaire, in People v.

Stewart (2004) 33 Cal.4th 425 [15 Cal.Rptr.3d 656, 93 P.3d 271] (Stewart).

In that case, the trial court excused for cause five prospective jurors, finding their views as expressed in the questionnaire were clearly and unambiguously against the death penalty. (Id. at pp. 444-445.) Setting forth the applicable procedures, we explained that “[b]efore granting a challenge for cause concerning a prospective juror, over the objection of another party, a trial court must have sufficient information regarding the prospective juror’s state of mind to permit a reliable determination as to whether the juror’s views would ‘ “prevent or substantially impair” ’ the performance of his or her duties (as defined by the court’s instructions and the juror’s oath) . . . .” (Id. at p. 445.) “The prosecution, as the moving party, [bears] the burden of demonstrating to the trial court that this standard was satisfied as to each of the challenged jurors.” (Ibid.; see Wainwright v.

Witt, supra, 469 U.S. at p. 423.) We explained in Stewart that the mere fact a prospective juror, in a written questionnaire, checked a box or otherwise expressed a personal opposition to the death penalty does not permit the court to automatically disqualify him or her from the jury. “Decisions of the United States Supreme Court and of this court make it clear that a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case under [Wainwright v.] Witt, supra, 469 U.S. 412. In Lockhart v.

McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758] . . . , the high court observed that ‘not all those who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.’ Similarly, in People v. Kaurish (1990) 52 Cal.3d 648, 699 [276 Cal.Rptr. 788, 802 P.2d 278] . . . , we observed: ‘Neither Witherspoon [v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770]] nor [Wainwright v.] Witt, . . . nor any of our cases, requires that jurors be automatically excused if they merely express personal opposition to the death penalty. The real question is whether the juror’s attitude will “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt, supra, 469 U.S. at p. 424, fn. omitted.) A prospective juror personally opposed to the death penalty may nonetheless be capable of following his oath and the law.

A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.’’ (Italics added.)” (Stewart, supra, 33 Cal.4th at p. 446.) The critical flaw in Stewart was the trial court’s reliance on that part of the questionnaire that asked jurors whether they held views that would “ ‘prevent or make it very difficult’ ” for the prospective juror “ ‘[t]o ever vote to impose the death penalty.’ ” (Stewart, supra, 33 Cal.4th at pp. 442-443.) We explained: “In light of the gravity of [the death penalty], for many members of society their personal and conscientious views concerning the death penalty would make it ‘very difficult’ ever to vote to impose the death penalty.

As explained below, however, a prospective juror who simply would find it ‘very difficult’ ever to impose the death penalty, is entitled— indeed, duty bound—to sit on a capital jury, unless his or her personal views actually would prevent or substantially impair the performance of his or her duties as a juror.” (Id. at p. 446.) Although we concluded in Stewart that the trial court erred by excusing five prospective jurors for cause based solely on the combination of their checked answers and written comments in the questionnaire, we stopped short of recognizing a bright-line rule, though we hinted that one might be justifiable. “[W]e need not and do not hold that a trial court never may properly grant a motion for excusal for cause over defense objection based solely upon a prospective juror’s checked answers and written responses contained in a juror questionnaire.

We are, however, unaware of any authority upholding such a practice.” (Stewart, supra, 33 Cal.4th at pp. 449-450, fn. omitted.) More recently, however, we modulated any such suggestion. Addressing the issue in People v.

Avila (2006) 38 Cal.4th 491 [43 Cal.Rptr.3d 1, 133 P.3d 1076] (Avila), we opined: “The question left undecided in Stewart is squarely presented here, and we now hold that a prospective juror in a capital case may be discharged for cause based solely on his or her answers to the written questionnaire if it is clear from the answers that he or she is unwilling to temporarily set aside his or her own beliefs and follow the law.” (Id. at p. 531, italics added.) In Avila, the trial court excused four jurors without orally questioning them, based solely on their written answers to the jury questionnaire.

We found no error and distinguished Stewart on the ground that the jury questionnaire in Stewart included a “material flaw” not present in the questionnaire used in Avila. (Avila, at p. 530.) Thus, we explained that whereas the questionnaire in Stewart asked whether a juror’s “conscientious opinion or belief about the death penalty . . . ‘ “would prevent or make it very difficult” ’ ” (Avila, at p. 530) for a juror to vote to convict of first degree murder, sustain a special circumstance or impose the death penalty, the questionnaire in Avila instead asked whether a juror would “automatically” so vote (id. at p. 528, fn. 23, underscoring omitted). “[B]ecause mere difficulty in imposing the death penalty does not, per se, prevent or substantially impair the performance of a juror’s duties” (id. at p. 530), the decision in Stewart— that the trial court erred by excusing prospective jurors based solely on their written questionnaire answers—was correct.

But “nothing in Stewart indicates that an excusal without oral voir dire is improper where the prospective juror’s answers to a jury questionnaire leave no doubt that his or her views on capital punishment would prevent or substantially impair the performance of his or her duties in accordance with the court’s instructions and the juror’s oath.” (Avila, at p. 531, italics added.) From this discussion, the rule emerges that reliance on written responses alone to excuse prospective jurors for cause is permissible if, from those responses, it is clear (and “leave[s] no doubt”) that a prospective juror’s views about the death penalty would satisfy the Witt standard (Wainwright v.

Witt, supra, 469 U.S. 412) and that the juror is not willing or able to set aside his or her personal views and follow the law. Applying this rule here, we conclude the trial court did not err when it excused Prospective Jurors M.F. and C.T. for cause.

Although the questionnaire used in this case did not, as in Avila, ask whether a prospective juror would “automatically” vote for either life or death irrespective of the evidence (Avila, supra, 38 Cal.4th at p. 528, fn. 23), questions 42-a and 42-b in this case asked jurors whether, “[n]o matter what the evidence was,” would they “ALWAYS vote for the death penalty” or “for life without possibility of parole.” This phraseology is the equivalent of that which we approved in Avila', the capitalization and underscoring of the word “always” must have made clear to all prospective jurors that the question sought to determine if the juror would automatically vote one way or the other irrespective of the evidence.

This reading of questions 42-a and 42-b is consistent with the import of the questionnaire as a whole. The prefatory statement at the beginning of the

section of the questionnaire concerning the death penalty (see ante, pp. 781-782, fn. 3) gave prospective jurors the basic outline of the penalty phase procedures involved, including the need for a fair assessment and weighing of aggravating and mitigating circumstances. This written outline reinforced the trial court’s oral statement, delivered before the jurors were given the questionnaires, which provided similar background information.

For example, the court informed the prospective jurors that “[f]actors in mitigation include good things about the defendant for the purpose of showing that the appropriate sentence in the case is life without possibility of parole. And within those guidelines, after a consideration and weighing of all the factors, you have the discretion as to what penalty to impose.” (Italics added.) Then, at the beginning of question 42, the prospective jurors were informed that “[t]here are no circumstances under which a jury is instructed by the court that they must return a verdict of death.

No matter what the evidence shows, the jury is always given the option in a penalty phase of choosing life without the possibility of parole.” This passage further reinforced the admonition that a juror at the penalty phase need not automatically vote one way or the other.

Absent some evidence that Prospective Jurors M.F. or C.T. did not read these statements or misunderstood them, they must have been aware when they checked 42-b (i.e., that “[n]o matter what the evidence was, [they would] ALWAYS vote for life without possibility of parole”) that they would have the option to vote for either life or death in their discretion.

This is especially true because—by checking 42-b—M.F. and C.T. necessarily chose not to check 42-c: “I would consider all the evidence and the jury instructions as provided by the court and impose the penalty I personally feel is appropriate.” In short, a fair reading of the questionnaire demonstrates that M.F. and C.T. must have known the scope and nature of the discretion they would wield in the penalty phase, but nonetheless checked 42-b, indicating that they would always vote for life over death irrespective of the facts and circumstances Although the jury questionnaire used in this case, as in Stewart, admittedly asked jurors whether their opinion about the death penalty “would . . . make it difficult for you to vote for the death penalty in this case” (italics added), the similarity with Stewart ends there, for the trial court did not excuse Prospective Jurors M.F. and C.T. on that basis.

Instead, the court was clear that if any prospective juror checked 42-a or 42-b, the court would ask the parties to stipulate to the juror’s excusal because, in the trial court’s opinion, such a response indicated the juror would “automatically vote for death or automatically vote for life at that point.” As the trial court explained: “My view, if they checked question 42-a or 42-b, they’re gone ... [1] [wjithout any need for follow-up.” “There’s not much distinction between [42]-a and [42]-b, and that’s why we’re excusing people at both ends of the spectrum.” Thus, unlike in Stewart, supra, 33 Cal.4th 425, use of the “make it difficult” language here does not require reversal.

Of course, a face-to-face assessment of the sincerity and understanding of a prospective juror may, under particular circumstances, be preferable, and trial courts retain discretion to examine jurors in person. (People v.

Heard, supra, 31 Cal.4th at p. 965 [“If the trial court remained uncertain as to whether [a prospective juror’s] views concerning the death penalty would impair his ability to follow the law or to otherwise perform his duties as a juror, the court was free ... to follow up with additional questions.”].) Even a person with a strongly held view in favor of, or against, the death penalty could possibly set aside those views and decide a case according to the law. (Lockhart v.

McCree, supra, 476 U.S. at p. 176; Avila, supra, 38 Cal.4th at p. 531.) Moreover, a trial court may have reason to suspect a prospective juror is a poor reader or may simply have misunderstood the questionnaire.

Although reading the questionnaire in this case as a whole convinces us the trial court did not err in concluding that prospective jurors who checked option 42-b would not set aside their personal feelings about the death penalty regardless of the evidence that might be presented at the penalty phase, this important point could be clarified in future cases simply by including a question asking this point directly in the context of questions concerning attitudes towards the death penalty.

For example, question 91 in the questionnaire used in Avila asked: “ ‘Do you honestly think that you could set aside your personal feelings and follow the law as the Court explains it to you, even if you had strong feelings to the contrary?’ ” (Avila, at p. 528, fn. 23.) We appreciate that trial courts may desire to streamline the death qualification voir dire process in capital cases, for such jury selection procedures can be a long and tedious business. Prudent use of written jury questionnaires can be a valuable addition to the process, serving as a screening tool during death qualifications of jurors.

We need not emphasize, however, that those accused of capital crimes have an important interest at stake, and because their right to a fair and impartial jury is a vital constitutional concern, trial courts should err on the side of caution when questionable or marginal cases arise. But because the jury questionnaire used here, and especially questions 42-a, 42-b and 42-c, made it sufficiently clear that Prospective Jurors M.F. and C.T., by checking 42-b, met the standard set forth by the United States Supreme Court in Wainwright v.

Witt, supra, 469 U.S. 412, we conclude the trial court did not err by excluding them for cause without personally examining them. III. Trial Issues A.

Precluding Cross-examination on Witness’s Drug Use Defendant contends the trial court’s exclusion of evidence of Michael Durbin’s alleged long-term methamphetamine abuse, and its resultant effect on his ability to “process and recall” details of the crimes, violated defendant’s right to confront and cross-examine the witnesses against him, and to a fair trial and a reliable penalty determination in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

We reject the claim for two reasons: first, defendant failed to preserve this claim for appeal; and second, the trial court’s ruling did not violate defendant’s constitutional rights. 1. Facts The trial court considered at an in limine hearing whether any of Michael Durbin’s several prior convictions could be introduced against him as impeachment. The court ruled Durbin’s 1992 burglary conviction was admissible, as was his 1997 conviction for spousal abuse, but excluded two other spousal abuse incidents as both too trivial and cumulative to the felony conviction.

The court then considered the admissibility of Durbin’s 1996 convictions for possession of drug paraphernalia and being under the influence of a controlled substance, offenses for which he was diverted from the criminal justice system. The court expressed its view that these crimes did not involve moral turpitude (see People v. Castro (1985) 38 Cal.3d 301 [211 Cal.Rptr. 719, 696 P.2d 111]) and that it intended to exclude them for that reason.

When counsel for codefendant Phillips asserted that he intended to impeach Durbin with his drug use, the court repeated that the crimes did not involve moral turpitude but opined that it might change its mind if there was evidence Durbin was actually under the influence at the time of the crimes. The court then asked the parties whether Durbin was in fact under the influence of drugs when the crimes were committed. Mr. Wyatt, counsel for Phillips, said he did not know, but the prosecutor, Ms.

Danville, spoke up, revealing that she had spoken to Durbin and L.R. the previous week and had learned, apparently for the first time, that they had each smoked some methamphetamine the day before the crimes. The prosecutor opined that she intended to question both witnesses on the topic before the jury. The following colloquy then occurred: “The Court: All right. I think prior drug use is not relevant unless there’s a denial that they had taken methamphetamine on or near the date of the events at issue. “Mr. Wyatt: Well— “The Court: If they deny it, then, of course, we have direct impeachment potential there.

But for the moment, simply credibility on other testimony, I’m excluding it, all right? “Mr. Wyatt: My—the reason I would want to go into [it] is, for instance, I didn’t know about the methamphetamine until you just solicited it from the district attorney just a few seconds ago. “But we know that people that are using drugs, particularly like methamphetamine or crack or PCP, the effect and the consequences are not just for the moment, that they may have delayed reactions, and that would affect their perceptions. “The Court: That’s a whole different issue than straight credibility. “Mr.

Wyatt: Oh, correct. “The Court: Do you intend to call an expert? “Mr. Wyatt: No, I—I think I can get it from either of them. I think they’re probably users and probably are experts on drugs, and I think we can elicit that from their testimony. “The Court: Miss Danville. “Ms.

Danville: I would highly object. “The fact that they had used some [drugs] the day before [the murder] and may have still been somewhat a little bit under the influence is relevant to their ability to perceive the events about which they’re testifying, but beyond that it’s extremely inflammatory, and it has no relevance to this case. “The Court: All right. Mr. Wyatt, you can ask them what they took on or around the date in question. “Mr. Wyatt: Thank you. “The Court: You can ask them the effects it had on them. “Mr.

Wyatt: Thank you. “The Court: Beyond that I don’t want you to go without a further [Evidence Code section] 402 [hearing] on the issue. “Mr. Wyatt: Thank you. No, that’s fine. I understand.” Mr. Belter, defense counsel for defendant, uttered no comment and made no objection throughout this entire exchange. On direct examination, Michael Durbin testified he had smoked some methamphetamine the day before the crimes, that as a result he felt a bit tired the next day, but that the drug use did not otherwise affect him.

When asked on cross-examination how much he had ingested, he testified he had smoked a quarter of a gram with his girlfriend, L.R. When Mr. Wyatt asked him when he next used drugs, the trial court sustained the prosecutor’s objection. During Mr. Belter’s cross-examination, Durbin affirmed his earlier testimony that his use of methamphetamine the day before the crimes had left him tired. He also stated that a quarter of a gram of methamphetamine was not a lot to smoke in one sitting for him.

In her testimony, L.R. corroborated Durbin’s testimony in every respect; that is, she testified she smoked a quarter of a gram of methamphetamine with Durbin the day before the crimes and felt tired the next day as a result. Neither defendant called an expert witness to describe the impact of long-term drug use on one’s perception or memory. 2. Discussion Before we determine whether defendant’s rights were violated, we must decide whether he preserved this claim for appellate review. Although Mr.

Wyatt, counsel for codefendant Phillips, objected to the exclusion of evidence of Michael Durbin’s drug use, defendant did not join in the objection or interpose his own. “Generally, failure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal.” (People v. Santos (1994) 30 Cal.App.4th 169, 180, fn. 8 [35 Cal.Rptr.2d 719]; see People v. Mitcham (1992) 1 Cal.4th 1027, 1048 [5 Cal.Rptr.2d 230, 824 P.2d 1277].) A litigant need not object, however, if doing so would be futile. (People v.

Brown (2003) 31 Cal.4th 518, 553 [3 Cal.Rptr.3d 145, 73 P.3d 1137].) Defendant contends that having seen how the trial court treated his codefendant’s motion, he reasonably believed making his own motion would have been futile. We disagree. The trial court permitted Phillips’s counsel to ask Durbin what drugs he took around the time of the crime and their effect on him, but left the door open to eliciting additional information if counsel would call an expert witness and undergo an Evidence Code

section 402 hearing, presumably to determine the effect such drug use would have on a person’s perception and recall ability. Defendant was thus on notice that an objection would not have been futile provided he satisfied the court’s reasonable prerequisites. The court also stated it would reconsider its ruling if a party could present evidence that Durbin was under the influence at the time of the crimes. Because an objection would not necessarily have been futile, defendant’s failure to object or affirmatively join codefendant Phillips’s motion forfeited the issue for appeal.

Even had the issue been preserved, we would find no error. “The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ This federal constitutional right to confront adverse witnesses in a criminal prosecution applies to the states (Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923, 85 S.Ct. 1065]) and is also guaranteed independently by the California Constitution (Cal. Const., art. I, § 15) and by statute (§ 686).

The primary reason an accused is entitled to confront adverse witnesses is to permit cross-examination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [89 L.Ed.2d 674, 106 S.Ct. 1431]; Alvarado v. Superior Court (2000) 23 Cal.4th 1121 [99 Cal.Rptr.2d 149, 5 P.3d 203].) ‘[T]he right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, ... to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.’ (Pointer v.

Texas, supra, at p. 405.)” (People v. Brown, supra, 31 Cal.4th at pp. 537-538.) “ ‘It does not follow, [however], that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness.’ ” (People v. Williams (1997) 16 Cal.4th 153, 207 [66 Cal.Rptr.2d 123, 940 P.2d 710].) “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” (Delaware v.

Fensterer (1985) 474 U.S. 15, 20 [88 L.Ed.2d 15, 106 S.Ct. 292] (per curiam).) The trial court’s treatment of this issue was correct and did not violate defendant’s constitutional rights. There was no evidence Michael Durbin had ingested any drugs on the day of the crimes, and neither counsel suggested they had evidence he was an habitual user.

Moreover, even if he was, neither defense counsel accepted the trial court’s suggestion to call an expert to lay a foundation regarding the effect of habitual methamphetamine use on one’s ability to perceive and recall events. “Evidence of habitual narcotics . . . use is not admissible to impeach perception or memory unless there is expert testimony on the probable effect of such use on those faculties.” (People v. Balderas (1985) 41 Cal.3d 144, 191 [222 Cal.Rptr. 184, 711 P.2d 480]; see also People v. Pargo (1966) 241 Cal.App.2d 594, 600 [50 Cal.Rptr. 719]; 3 Witkin, Cal.

Evidence (4th ed. 2000) Presentation at Trial, § 266, pp. 337-338.) Defendant does not persuasively explain how this long-standing evidentiary rule undermined his ability to effectively cross-examine Michael Durbin or L.R. Even if the court had erred, we would find any error was harmless. Defendant was able to impeach Durbin with his two prior felony convictions and was also able to place before the jury evidence that both Durbin and L.R. had smoked methamphetamine the day before the crimes.

There is no suggestion in the record, however, that either Durbin or L.R., as a result of their drug use, misperceived or misrecollected the details of the crimes. They were well acquainted with defendant, and their account, including details about seeing defendant choke the victim with a dog chain and beat him with D-cell batteries placed inside a gardener’s glove, was amply corroborated by independent evidence. Moreover, the testimony of both witnesses was clear and direct and betrayed no suggestion their recall of the night in question was at all impaired by their previous drug use.

In sum, defendant failed to preserve this issue for appeal, and the trial court did not commit constitutional error, prejudicial or otherwise, in excluding the evidence of Michael Durbin’s habitual drug use. B. Admission of Evidence of Uncharged Rape Defendant raises a number of arguments related to the trial court’s admission of evidence that five years before the crimes against Uwe Durbin and L.R., defendant had committed a number of forcible sex crimes against his then girlfriend, K.K. As we explain, we reject all of these claims. 1.

Facts Prior to trial, the prosecution moved to admit evidence of defendant’s uncharged sex crimes against K.K. pursuant to Evidence Code

section 1108. Defendant opposed the motion, relying largely on Evidence Code

section 1101. The matter was discussed at a hearing, and the trial court made a tentative ruling admitting the evidence.

The court noted the crimes against K.K. were not remote; the degree of similarity between the past and present crimes, while not “great,” was sufficient to permit admission of the evidence; and it was “highly relevant on the issue of disposition to commit sexual offenses.” Although the court was concerned that proof of the prior uncharged crimes would consume an undue amount of time and distract the jury, it noted the burden was on the defense to show that, and it reserved the right to change its ruling if defendant could make an offer of proof that he intended to call several witnesses to refute the victim.

The court specifically referenced Evidence Code

section 352 in its ruling. Defendant’s request that he be allowed to testify and refute K.K.’s expected testimony without subjecting himself to cross-examination on other topics was denied because, according to the trial court, a waiver of one’s Fifth Amendment right was a waiver for all purposes. K.K., a Finnish national, testified she was 22 years old when she met defendant in February 1992. She began an intimate relationship with him, and they planned to marry.

They had been living with defendant’s mother but were asked to leave, so they went to defendant’s mother’s place of business, a bail bond office, to sleep in the back room. Once there, defendant left and did not answer his telephone or pager for several hours, enraging K.K. When he finally returned, he and K.K. quarreled, and she broke first his pager and then a telephone. Defendant began beating her with his fists, throwing her around the office. According to K.K., defendant then forced her to orally copulate him, before forcibly sodomizing her. She tried to fight him off but was unsuccessful.

Afterwards, defendant removed a gun from a box in the office and handled it in her presence, although he did not overtly threaten her with it. She fell asleep, but the next morning defendant again forcibly raped her and forced her to orally copulate him. He covered her mouth during the rape to keep her quiet. A friend came and picked K.K. up and took her to a hospital where she spoke to a police officer.

She did not tell the officer about the gun because she knew defendant was on parole and “would have gone to jail for a long time.” She still loved him and even visited him both in jail and in prison. (The jury was not told why defendant was in jail and prison during that time.) K.K. returned to Finland in January 1993, explaining that although they still planned to marry, she was having doubts and was afraid defendant would kill her when he was released from prison. Defendant did not object to any of K.K.’s references to jail or prison, or her expressed belief that he might attempt to kill her.

In fact, on cross-examination, defense counsel referred to defendant’s time in Corcoran State Prison and how far the prison was from Los Angeles, apparently attempting to underscore the depth of K.K.’s affection for defendant. In response to defense counsel’s question that defendant “seemed to wander around a lot; is that right?,” K.K. replied: “Yes. He was pimping women.” Counsel did not ask that the answer be stricken or the jury admonished. Defendant did not call any witnesses to refute K.K.’s account.

Following K.K.’s testimony, the trial court, the jury not being present, noted: “I was not aware when I made the [Evidence Code section] 352 ruling, I don’t believe, of the fact that you intended to bring out the visits to Corcoran, the fact that the defendant was on parole or that there was any gun issue in this. [f] I assume from your cross-examination that you were aware of this, Mr. Belter.” Defense counsel explained he had learned of the gun use the day before. The prosecutor then explained: “I found out yesterday, and I told Mr. Belter yesterday about the gun.

I didn’t intend to bring out the Corcoran visits, but Mr. Belter indicated he was going to bring them out. So they just kind of came out.” Defendant’s counsel explained that he intended to characterize the crimes against K.K. as “more of a date-rape” situation in an attempt to minimize their seriousness. The trial court responded: “Well, I had no idea that either of you were going to bring out his parole status or imprisonment in Corcoran, which I think is problematic. But, I mean, there are ways to impeach without bringing that out, saying you went a long way to see him.

I take it it was a tactical decision.” Following the close of the guilt phase evidence, the trial court reiterated its concern that the jury had learned of defendant’s parole status and prior incarceration. The court stated its intention to instruct the jury to consider that evidence solely for assessing K.K.’s credibility and not to show defendant’s bad character. The court later so instructed the jury. 2.

Discussion Defendant raises a number of related arguments challenging the admission of evidence of his uncharged crimes against K.K., but we find none availing because the evidence was admissible under Evidence Code

section 1108. At the time of defendant’s trial, that

section provided in pertinent part: “(

a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by

Section 1101, if the evidence is not inadmissible pursuant to

Section 352.” (Added by Stats. 1995, ch. 439, § 2, p. 3429.) Defendant first argues that Evidence Code

section 1108 is unconstitutional because it violates his constitutional right to due process of law. We rejected that precise argument in People v. Falsetta (1999) 21 Cal.4th 903 [89 Cal.Rptr.2d 847, 986 P.2d 182] (Falsetta), certiorari denied sub nomine Falsetta v.

California (2000) 529 U.S. 1089 [146 L.Ed.2d 645, 120 S.Ct. 1723], where we explained that although evidence of criminal propensity had long been excluded in this state, such “long-standing practice does not necessarily reflect a fundamental, unalterable principle embodied in the Constitution” (Falsetta, at p. 914), that a rule permitting admission of such evidence does not offend those fundamental due process principles (id. at p. 915), and that “the trial court’s discretion to exclude propensity evidence under

section 352 saves

section 1108 from [the] defendant’s due process challenge” (id. at p. 917). We have recently endorsed and applied Falsetta (People v. Abilez, supra, 41 Cal.4th at pp. 501-502; see also People v. Reliford (2003) 29 Cal.4th 1007 [130 Cal.Rptr.2d 254, 62 P.3d 601] [assuming Falsetto’s correctness]), as have the Courts of Appeal (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704 [61 Cal.Rptr.3d 373], and cases cited). In addition, the federal courts follow an analogous rule. (See U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1022 [upholding constitutionality of Fed.

Rules Evid., rule 414, 28 U.S.C.].) Although defendant invites this court to reconsider the correctness of Falsetta, he proffers no persuasive reason to do so. We thus reject his claim that Evidence Code

section 1108 violates due process. Defendant next argues that even if Evidence Code

section 1108 is constitutional, the trial court abused its discretion in admitting evidence of his 1992 crimes against K.K. But as respondent argues, Evidence Code

section 1108 expressly reserves the trial court’s power to exclude evidence as more prejudicial than probative under Evidence Code

section 352, a matter over which the trial court exercises broad discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1197 [17 Cal.Rptr.3d 532, 95 P.3d 811]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [36 Cal.Rptr.2d 235, 885 P.2d 1].) On balance, we cannot say the trial court abused its discretion, as the crimes against K.K. occurred only five years before the L.R. rapes and were relevant to proving the charge that defendant twice raped L.R. Significantly, the crimes against K.K. were quickly proven, thus supporting the trial court’s decision that, under Evidence Code

section 352, presentation of the evidence would not consume an undue amount of time or distract the jury from the present charges. Defendant argues the trial court’s decision to admit the evidence was made before the court knew the evidence would include a showing defendant was on parole, had been incarcerated, and had handled a gun right after the first set of sex crimes against K.K.

He notes the court itself found this additional evidence “problematic” and argues the court “failed to ‘exclude irrelevant though inflammatory details surrounding the offense.’ ” But defendant never moved to exclude those details and in fact elicited some of them himself. When the trial court opined that it assumed defense counsel’s decision to elicit such evidence was a tactical one, counsel did not disagree.

We conclude the revelation of defendant’s prior incarceration and parole, and his handling of a firearm, was not so significant that we may conclude the trial court abused its discretion in admitting it, especially considering that the defense did not object and the court later instructed the jury the evidence was admitted for a limited purpose. We assume the jury followed this instruction. (People v. Romo (1975) 14 Cal.3d 189, 194-195 [121 Cal.Rptr. 111, 534 P.2d 1015].) Defendant’s remaining four subclaims are less substantial.

(1) That K.K. declined to press charges and defendant was never convicted of the crimes against her is irrelevant to the question of admissibility, for Evidence Code

section 1108 authorizes the admission of evidence not just of convictions but of a defendant’s “commission” of prior sex crimes.

(2) Although K.K.’s assertion that she moved back to Finland because she was afraid defendant might kill her was undoubtedly detrimental to his defense, he did not object or request that the answer be stricken or the jury admonished. Accordingly, the matter was forfeited. Moreover, any prejudice was minimized when counsel elicited from K.K. that she had to leave the country in any event because both her airplane ticket and her visa were expiring.

(3) Although defendant contends the trial court erred by refusing to permit him to testify and refute K.K.’s testimony without subjecting himself to cross-examination on other topics, it does not appear the court ever made a final ruling in this regard, emphasizing that its ruling was tentative. Because defendant never sought a final ruling, we conclude the present claim was abandoned. (See People v.

Bolin (1998) 18 Cal.4th 297, 312-313 [75 Cal.Rptr.2d 412, 956 P.2d 374] [change of venue motion].) In any event, the court did not violate defendant’s constitutional rights because he remained free to testify and defend himself against K.K.’s charges. “A defendant who elects to testify does not give up his Fifth Amendment rights nor his corresponding California privilege against self-incrimination (Cal. Const., art. I, § 15) except as to matters within the scope of relevant cross-examination [citations].” (People v. Tealer (1975) 48 Cal.App.3d 598, 604 [122 Cal.Rptr. 144]; see also People v.

Thornton (1974) 11 Cal.3d 738, 760 [114 Cal.Rptr. 467, 523 P.2d 267], overruled on another ground in People v. Martinez (1999) 20 Cal.4th 225 [83 Cal.Rptr.2d 533, 973 P.2d 512]; People v. Ing (1967) 65 Cal.2d 603, 611 [55 Cal.Rptr. 902, 422 P.2d 590]; 3 Witkin, Cal. Evidence, supra, Presentation at Trial, § 233, p. 302.) Though tactically dangerous, because he would still have been subject to cross-examination for bias, interest or motive (People v. Munoz (1984) 157 Cal.App.3d 999, 1026 [204 Cal.Rptr. 271]; Simons, Cal.

Evidence Manual (2007) § 3.18, p. 215), defendant could have taken the stand and refuted K.K.’s testimony, carefully limiting the scope of his testimony, and then objected to any cross-examination that sought information beyond the scope of his direct testimony.

(4) Defendant contends that even if the introduction of K.K.’s testimony was permissible under Evidence Code

section 1108, the evidence of his propensity was sufficiently unreliable that it contravened the need for heightened reliability in capital cases and thus violated his right to due process. (See, e.g., In re Sakarías (2005) 35 Cal.4th 140, 160 [25 Cal.Rptr.3d 265, 106 P.3d 931] [noting the need for heightened reliability in capital cases].) But the evidence was relevant to the noncapital part of the case (his rapes of L.R.), not the capital part (his torture and murder of Uwe Durbin).

Although K.K.’s evidence was also admitted against him at the penalty phase, the jury was instructed that it must find the crimes against K.K. true beyond a reasonable doubt before considering them as aggravating evidence, thus satisfying any concerns about reliability. In sum, we find the trial court correctly admitted the evidence of defendant’s prior sex crimes against K.K. C. Alleged Prosecutorial Misconduct During trial, Michael Durbin testified that defendant had applied bleach to Uwe’s wounds, and L.R. testified that she “believed” defendant had applied a blowtorch to Uwe’s skin.

Defendant contends both points were false and the prosecutor committed misconduct by eliciting the allegedly false testimony, failing to correct it, and emphasizing both points in closing argument. We conclude defendant’s failure to object forfeited these claims and that, in any case, the prosecutor did not commit misconduct. Michael Durbin identified a picture showing a bottle of bleach at the crime scene and stated: “I believe they poured it over my brother, over his cuts.” The medical examiner, however, could not confirm whether bleach had been applied to the victim’s body, explaining: “I can’t tell for sure.

There was nothing—bleach is somewhat caustic, but I didn’t see anything specific for chemical bums necessarily. But bleach is not necessarily that caustic, so bleach could have been applied and I may not have seen it.” In her closing statement, the prosecutor argued that defendant had poured bleach on the victim’s wounds to increase the pain. In response, defense counsel reminded the jury that this fact could not be confirmed by the medical examiner, whereupon the prosecutor, in rebuttal, emphasized Michael Durbin’s testimony and the fact that an uncapped bottle of bleach had been found at the crime scene.

L.R. testified that when she was in the room next to the victim, “I swear I heard something that sounded like a torch, and I remember thinking to myself, it sounds like he [defendant] was melting the plastic on [the victim’s] skin. And I remember hearing Uwe say ‘Stop, I’ll stop, I’ll be quiet, I’ll stop.’ ” On cross-examination, she confirmed she heard a blowtorch but admitted she never saw one. Nor did she actually observe any bum marks on the victim. The medical examiner testified he found no marks on the victim’s body that were consistent with injuries from a blowtorch.

In closing argument, the prosecutor mentioned L.R.’s testimony about the blowtorch and defense counsel reminded the jury her testimony could not be confirmed by the medical evidence. To preserve a claim of prosecutorial misconduct, a defendant must make a timely and specific objection. Failure to do so forfeits the issue for appeal. (People v.

Gray (2005) 37 Cal.4th 168, 215 [33 Cal.Rptr.3d 451, 118 P.3d 496].) “Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.” (People v. Visciotti (1992) 2 Cal.4th 1, 79 [5 Cal.Rptr.2d 495, 825 P.2d 388].) Because defendant failed to object both to the introduction of the now challenged evidence and also to the prosecutor’s closing argument, he forfeited these claims.

Defendant contends he was relieved from objecting because any objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673]), but we disagree. If the evidence was impermissible, defendant should have raised the issue with the trial court, and he presents no reason why an objection would have been futile. His further argument—that objecting would simply have “reinforc[ed] the highly inflammatory details”—would constitute an exception that would swallow the rule, for that could be true in nearly every case in which a defendant fails to object.

We conclude the issue was not properly preserved for appeal. Nor would we find reversible error even were we to assume the issue was properly before us. Although “a prosecutor’s knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process . . .” (People v. Sakarias (2000) 22 Cal.4th 596, 633 [94 Cal.Rptr.2d 17, 995 P.2d 152]), defendant identifies nothing more than a difference of opinion regarding whether the victim’s assailants used bleach or a blowtorch. Perhaps Michael Durbin, L.R., or both were mistaken, but that is not

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