THE PEOPLE, Plaintiff and Respondent, v. MAURICE J. KEENAN, Defendant and Appellant, 46 Cal. 3d 478

Opinion EAGLESON, J. In San Francisco Superior Court, a jury convicted defendant Maurice J. Keenan of one count of first degree murder (Pen. Code, §§ 187, 189), one count of burglary (§ 459), one count of robbery (§ 211), and two counts of attempted robbery (§ 664), all with personal use of a firearm (§ 12022.5). Defendant also sustained convictions for possession of a sawed-off shotgun (§ 12020) and of a concealable firearm by an ex-felon (§ 12021).

Under the 1978 death penalty law, the jury found true special circumstances that the murder was committed in the course of a robbery (§ 190.2, subd. (a)(17)(i)) and of a burglary (id., subd. (a)(17)(vii)). After a penalty trial, the jury sentenced defendant to death. The automatic motion to modify the verdict (§ 190.4, subd. (e)) was denied, and a death judgment was entered. This appeal is automatic. We find no prejudicial error at either the guilt or penalty phases. We will therefore affirm the judgment in its entirety. I. Guilt Trial A. Prosecution case.

On the evening of July 8, 1979, Robert Opel was shot to death in his art gallery at 1287 Howard Street in San Francisco. Defendant and Robert Kelly were jointly charged and tried for offenses culminating in Opel’s murder. Compelling eyewitness and circumstantial evidence tied them to the crimes. The principal prosecution witnesses were Anthony Rogers and Camille O’Grady, friends of the murder victim. Rogers and O’Grady gave similar accounts of the incident. Both testified that Opel lived in an apartment at the rear of the storefront gallery space.

The gallery, which specialized in erotic art, was self-supporting, but Opel also supplemented his income by selling drugs, principally amphetamines and phencyclidine (PCP). Drugs were frequently present on the premises. On July 8, 1979, Rogers and O’Grady visited Opel at the gallery, then attended an early evening swim party at a neighborhood bar. They returned to the gallery around 8:30 or 9 p.m. to check on Opel, who was in bed with bronchitis. Presently the street doorbell rang, and Opel went to answer it. Rogers followed Opel into the gallery area. He saw two men enter, one carrying an attache case.

This man, identified at trial as defendant, set the case down on a raised “stage” area and opened the combination lock. Saying “this is for or from Dana,” he withdrew an automatic pistol. Simultaneously the other intruder, identified as codefendant Kelly, took a sawed-off shotgun from the case. Defendant pointed the handgun at Opel, while Kelly brandished the shotgun at Rogers. Both robbers demanded drugs or money. Opel replied he had nothing and insisted they leave. Meanwhile O’Grady walked into the gallery area.

Kelly placed the shotgun to her neck and threatened to blow her head off if he and defendant did not get what they wanted. Both men continued to demand money or drugs; Opel repeatedly insisted that he had nothing and they should leave his “space.” Defendant then ordered Kelly to escort Rogers and O’Grady to the back and “take them out.” Kelly forced them to the kitchen in the rear of the gallery, directed them to sit on the floor, and held the shotgun on them. O’Grady sat facing the kitchen door, which led through a short hallway into the gallery.

Kelly took $5 and a camera offered by Rogers and rifled through O’Grady’s bag. Meantime, O’Grady and Rogers overheard a continuing argument between defendant and Opel in the gallery area. Defendant said, “I’ll blow your head off.” O’Grady saw defendant, who for some period was standing in the kitchen doorway, fire a shot upward toward the ceiling. She then heard a second shot and a shattering sound, after which the raised voices of Opel and defendant were still audible. Finally there was a shot followed immediately by the sound of a falling body. Apparently Kelly was also in the gallery area at that moment.

Meanwhile, according to Rogers, other tenants in the building had heard the commotion and were coming down the stairs to investigate. Kelly, still carrying the shotgun, returned to the kitchen. Defendant yelled to Kelly, “Kill them both. Let’s get out of here. There’s a crowd gathering.” Kelly ripped a telephone cord from the wall and tied Rogers’s and O’Grady’s hands behind their backs. He told them they would die if they ever saw or identified the robbers. Once satisfied the intruders had left, Rogers and O’Grady freed themselves and entered the gallery. There they found Opel on the floor, breathing heavily.

Opel had received a small-caliber gunshot wound to the head. He later died of the injury. The physical evidence indicated the fatal shot had been fired from relatively close range, probably less than a foot. Though both Rogers and O’Grady saw defendant only for relatively brief periods, they testified that the light and distance were good, and that they observed him clearly. The night after the murder, O’Grady, who had worked as an artist, drew memory sketches of the robbers.

The sketch of the man later identified as defendant included distinctive items, such as a reddish-brown jacket and a diamond or crystal stickpin. O’Grady testified that defendant was wearing these items on the night of July 8, 1979. On the night O’Grady drew the sketches, she also received a call from a musician friend, Ruby Zebra. Anthony Rogers was with O’Grady when the call occurred. Zebra advised that “Dana” was at the TraveLodge Motel at Polk and Ellis Streets with the wife of one of the murderers; according to Zebra, Dana wanted to get in touch with O’Grady.

O’Grady knew a Dana Challman, who sometimes sold Opel Quaaludes. According to Rogers, Zebra advised O’Grady that the murderers’ names were “Bob” and “Maurice Keenan”; Rogers then placed those names on the sketches O’Grady had done. O’Grady relayed Zebra’s tip to the police. On the morning of July 10, 1979, they went to the motel room described by Zebra. The room was abandoned, with items such as a camera left behind. While in the room, the officers received word to telephone Zebra. As a result of the subsequent call, they went to Zebra’s home, where they met Challman.

Challman named defendant as a suspect in the Opel murder and gave defendant’s residence address. Zebra and Challman also said that defendant and his wife were planning to go to Miami. The officers proceeded to the address given by Challman. There the manager identified photographs of defendant and his wife. The manager said the couple had left with luggage in a taxi shortly before the police arrived. Defendant, Kelly, and defendant’s wife Linda Holt were apprehended at San Francisco International Airport the same day. Defendant was carrying false identification.

The suspects’ luggage was taken into custody and searched under warrant. It contained the sawed-off shotgun identified as that brandished by Kelly at the gallery and the automatic pistol which, according to ballistics evidence, fired the fatal shot. There was ammunition for both weapons. Also included was a reddish-brown leather jacket, later identified by O’Grady as that worn by the robber with the handgun. Defendant refused to participate in a physical lineup, even after a deputy public defender acting as his counsel informed him of the consequences.

Rogers was unable to identify defendant’s picture in a photo spread he viewed shortly after the gallery incident. However, both Rogers and O’Grady identified a different, more recent picture of defendant in photo spreads on July 11, 1979, three days after the murder. Rogers indicated that the second photo more closely depicted defendant’s appearance at the time of the gallery incident. Rogers positively identified defendant at trial. At first, O’Grady was unable to identify the robbers in the courtroom.

She later did so, however, noting that both by then looked “very different” and “more cleanout.” Rogers agreed, explaining that defendant previously had hair which came over his ears, but at trial he wore glasses, was “a lot neater,” and was clean-shaven. Asked about the intruders’ demeanor at the gallery, both Rogers and O’Grady indicated that Kelly was somewhat “hyper” and excited but that defendant for the most part seemed normal and in command.

Rogers declared that defendant “was calm, he was giving the orders, he was in charge of everything that was happening.” Both witnesses claimed they had no trouble understanding defendant’s speech. O’Grady admitted she had called defendant “crazy” in early police and media interviews, but she explained she meant only that robbers who carry out threats to kill are crazy. Neither Rogers nor O’Grady saw evidence, based on their own experience, that defendant was under the influence of amphetamines.

The prosecution also introduced evidence of three nonviolent escapes by defendant from jail custody after his arrest- for the Opel murder. Defendant stipulated that on July 12, 1979, he walked out of his San Francisco Municipal Court holding cell, which had been left unlocked by mistake. He was arrested a month later in Miami. On November 15, 1979, defendant, in handcuffs, bolted from a jail van which was transporting him and other detainees from the Hall of Justice to City Hall in San Francisco. He was caught when he tripped over a traffic island in the middle of Van Ness Avenue.

Finally, it was stipulated that, on April 27, 1980, defendant left the Hall of Justice jail facility when his cell was unlocked during an inmate uprising. Defendant was arrested in an elevator without emerging from the building. B. Defense case. Kelly testified in his own defense, and his recorded statement to the police was played for the jury. He admitted participation in the gallery incident and named defendant as his coparticipant and the actual killer of Opel. Kelly said the robbery attempt had been set up by Dana Challman, who told them the gallery was a drug den and that they should ask for drugs or money.

Kelly confirmed most of Rogers’s and O’Grady’s account of events at the gallery. He explained that defendant shot Opel after the latter insisted, “I am not giving you nothing. You are going to have to shoot me.” Kelly said he participated in order to obtain money for himself and because he was afraid of defendant. While defendant had never directly threatened Kelly, Kelly was present the day before the murder when defendant beat up and abducted their mutual acquaintance Carlos Stevenson. According to Kelly, he and defendant had regularly been taking amphetamines.

Stevenson, like Kelly and defendant, was a “lightweight” drug dealer. According to Kelly, the three “did up some drugs” on July 7, 1979, at defendant’s apartment. Kelly and defendant left the apartment for awhile; when they returned, defendant began hitting the sleeping Stevenson with a gun. Defendant then stripped Stevenson, accused him of working for “the man,” dressed him in pajama bottoms, tied his hands, and left with him. When defendant returned a short time later, he said he had taken Stevenson “out of the box.” Kelly inferred this meant defendant had killed Stevenson.

The incident convinced Kelly that defendant was a violent person and that Kelly might be “next” if he did not go along on the gallery robbery. Testifying for Kelly, Stevenson confirmed the beating and abduction. Stevenson said defendant drove him to a location where Stevenson was shot in the back and left for dead. By the time of trial, Stevenson had mostly recovered, but he was paralyzed from the neck down for six months after the shooting.

In a taped police interview in August 1979, after the Opel murder, Stevenson said that during the incident of July 7, defendant had been taking drugs, made paranoid accusations, and “was completely out of his mind.” Defendant presented no evidence at the guilt trial. II. Penalty Trial A. Prosecution case. At the penalty phase, the prosecution presented evidence of three unrelated violent crimes as aggravating circumstances. (§ 190.3, factor (b).) These included a 1977 armed robbery, a 1979 burglary and witness intimidation, and a 1980 assault on a fellow jail inmate.

Carlos Stevenson also supplemented his guilt phase testimony about the shooting incident of July 7, 1979. 1. The 1977 robbery. Late on the evening of January 18, 1977, a man accosted Darrell McElvane in a Tenderloin district phone booth in San Francisco. The man identified himself as a police ofiicer and forced McElvane to a dark area at the rear of an adjacent parking lot. He then told McElvane not to panic, flashed a knife, and demanded McElvane’s money. McElvane threw his wallet at the assailant.

When the man reached down to pick it up, McElvane kicked him in the face and leaped over the parking lot fence, shouting for someone to call the police. The assailant remained behind, “talking crazy” and threatening to kill McElvane with his “.357.” Responding officers found defendant in a nearby bar. He fit McElvane’s description of the assailant and was carrying two knives. Defendant gave a false name to the police. McElvane identified defendant at the scene, and defendant there admitted he was the man who confronted McElvane.

He claimed he sought to purchase pills from McElvane and drew a knife for protection after McElvane took his money, produced no pills, and retreated to the dark area of the parking lot. When reporting the incident, McElvane also gave a false name, “G.L. West,” because he “didn’t want to get involved.” 2. The 1979 burglary and witness intimidation. In the spring of 1979, John Blumenhein managed an apartment building on Van Ness Avenue in San Francisco. During the early morning hours of April 20, a tenant reported that someone was wandering through the manager’s apartment, which was vacant at the time.

Carrying a pistol, Blumenhein went to the apartment. There were two large holes in the entry door and the apartment had been ransacked. Defendant was on the premises. Blumenhein drew his pistol. He ordered defendant to “freeze,” then directed defendant to the lobby and ordered him to lie down spread-eagled. Defendant began to comply but then said, “Oh, fuck it, man, shoot me” and walked out the front door of the building. Blumenhein followed with the gun, ordering defendant to stop. Defendant refused; the two maneuvered around a parked car, and defendant began to approach Blumenhein.

Defendant then jumped over a car hood and tried to board a bus. When Blumenhein told the driver defendant had committed a burglary, defendant told him to shut up and jumped back off the bus. The police arrived and ordered Blumenhein to drop his gun. Defendant then placed one of Blumenhein’s carving knives on a car hood and was arrested. Defendant had been evicted from the building the previous day, April 19, “probably” for nonpayment of rent. His possessions were removed from his apartment on that day.

On the afternoon of April 21, the day after the burglary, defendant and Linda Holt returned to claim possessions. During an angry sidewalk confrontation, defendant said Blumenhein and his family would die if Blumenhein did not drop the burglary charges. Back inside his apartment, Blumenhein noticed his two children looking out the street window. Joining them, Blumenhein saw defendant looking directly up from the street; defendant made a throat-cutting gesture with his index finger. Defendant was subsequently convicted of burglary and intimidation of witnesses (§ 459, former § 136). 3. The 1980 jailhouse assault.

In November 1980, Richard Mayer and defendant were inmates at the San Francisco County jail. On November 20, during a visit by Mayer’s father, defendant approached Mayer from the side, grabbed him around the neck, and stabbed him twice. One wound was near the jugular vein, a few inches below the right ear. Mayer’s father described the weapon as a nine- or ten-inch piece of pointed steel, wrapped with cloth at the blunt end. The actual implement used to stab Mayer was not placed in evidence, having apparently been lost by the authorities.

However, the victim’s father identified People’s exhibit 45, a gray metal prison “shank” displayed for “illustrative” purposes, as a similar but slightly longer object. A deputy sheriff who investigated the incident also indicated that People’s exhibit. 45 was similar to the weapon he recovered, but that the actual weapon was “smaller by two or three inches.” Mayer testified he had scuffled with defendant some two weeks before; both parties were injured in the fight.

According to Mayer, the earlier fight had begun when defendant insulted and threatened Mayer, then reached for what defendant claimed was a “shank” in his pocket. At that point, said Mayer, “we both went off.” B. Defense case. Through lay and expert witnesses, defendant presented an extensive study of his background and character, and of his mental state at the time of the Opel murder.

Jean Sheppard, an acquaintance of defendant, testified that during the first half of 1979, defendant and Holt were using drugs “insanely.” According to Sheppard, defendant in early July 1979 was “erratic,” “paranoid,” “delusional,” and “manic.” The day before the Opel shooting, defendant ran into Sheppard’s room and discharged a gun. Defendant thought he had shot himself in the foot, but the bullet had actually gone into the ceiling. A defense clinical psychologist, Dr.

Pierce, concluded after examining defendant that he had an amphetamine dependency and a “rather severe paranoid personality disorder” which exaggerated threats of harm. Defendant gave Dr. Pierce several versions of his memory of the Opel shooting, sometimes claiming he recalled nothing. In one version, defendant professed belief that Opel had a gun and was going to shoot him. At another point, defendant said he went to “do business” with Opel, but “he guessed it didn’t work and somebody got killed.” Dr. Pierce saw no defense of diminished capacity, and tests indicated that defendant was not psychotic. Dr.

Pierce opined, however, that on the night of the Opel shooting, defendant was under an extreme amphetamine-induced mental and emotional disturbance. This condition enhanced his paranoid tendencies, impaired his capacity to appreciate the wrongfulness of homicidal conduct, and inhibited his ability to control homicidal impulses. Similar views were expressed by a defense psychiatrist, Dr. Benson. Dr.

Benson conceded that defendant’s order to kill Rogers and O’Grady as witnesses was not “impulsive.” Witnesses familiar with defendant’s childhood described a history of stuttering, clumsiness, low academic achievement, and family upsets. His sister said his personality changed, and his drug use increased, after he left home and went to the Haight-Ashbury for a year at the age of 14. Christopher Cunningham, a family marriage counselor, studied the Keenan family for the defense. He described it as isolated, rejecting, and noncommunicative, with a punitive mother and an overachieving, mostly absent father.

In Cunningham’s view, an overriding need for the appearance of normality kept problems hidden. Cunningham reported that when defendant ran away to the Haight-Ashbury, no effort was made to find him. Defendant’s father described defendant to Cunningham as “too dumb to come in out of the rain.” Dell Sokol, an educational psychologist, concluded that defendant had an average IQ but suffered learning disabilities, a condition found to some degree in 10 percent of school children. Defendant’s reading comprehension was at the fourth grade level.

His motor skills were below normal, and he had a sharply reduced ability to discriminate between similar sounds. Dr. Pierce agreed that defendant had normal intelligence, noting that he scored in the superior range on logical and abstract reasoning and long-term visual memory and alertness. According to Dr. Pierce, reports that defendant gloated over the Opel shooting indicated a person who was either very mean or very emotionally disturbed. Both Dr. Pierce and Dr. Benson found some evidence of “minimal brain dysfunction.” Dr.

Benson opined that defendant’s excessive amphetamine use might indicate an instinctive effort to self-medicate this condition. Dr. Benson took an extensive history of defendant. According to Dr. Benson, defendant’s maternal grandmother was psychotic, his maternal grandfather an alcoholic. His mother’s low frustration tolerance led to extreme difficulty in handling defendant. Defendant was a “breech” baby, which “may” have reduced oxygen flow to his brain at birth. At age five, defendant had speech and reading difficulties and may have been dyslexic. Behavior problems began at age eight.

At age 11 there was a seizure which may have been epileptic. Between ages 10 and 14, defendant ran away frequently and was suspected of vandalizing a community center where he had attended kindergarten. At age 12, defendant stole and wrecked the family car. Between ages 15 and 17, defendant continued to run away and commit petty thefts. He was sent to the California Youth Authority (CYA). A doctor at CYA treated defendant with tranquilizers for a thought disorder. Defendant was described during his stay at CYA as guarded, isolated, impulsive, and lacking in drive, judgment, and control.

Later at San Quentin, defendant was treated for a seizure disorder. On cross-examination of defense experts, the prosecutor elicited evidence concerning defendant’s ability to adjust to life imprisonment. The defense presented further affirmative evidence on this score. Dr. Benson conceded that defendant’s escapes from custody indicated a dislike for confinement. On the other hand, Susan Cherry, a counselor for the Department of Corrections, found defendant a good candidate for prison adjustment.

She worked with defendant for eight months in 1981 and 1982; he was intelligent, articulate, and anxious to involve himself in prison activities. He gave no trouble. Cherry said life inmates tend to be stable elements of the prison population, since they know they will-never leave. The defense also called Dr. Haney, an associate professor of psychology and an attorney. Dr. Haney also found defendant a good confinement risk. In Dr. Haney’s view, defendant had matured after past periods of turmoil, accepted his lifelong confinement, and appeared motivated to participate in constructive activities.

Neither the 1980 jail assault nor the several escapes altered Dr. Haney’s view. He acknowledged the stress created by crowded cell conditions at San Quentin. C. Rebuttal. Carlos Stevenson testified on rebuttal that during mid-1979, defendant was consuming substantially smaller quantities of amphetamines than reported by other witnesses.

When defendant shot Stevenson, he remarked that “they will never prosecute because we are out of our minds on drugs.” Stevenson reaffirmed that the shooting incident was “strange” in light of his past friendship with defendant, and that he did not feel defendant knew what he was doing. III. Guilt and Special Circumstance Issues Defendant raises only two claims of error at the guilt phase of his trial, and two other issues as to the special circumstance findings. We conclude, however, that no prejudicial error occurred. Accordingly, we will affirm the convictions and the special circumstance findings. A.

Joint trials. Defendant’s principal guilt phase contention is that his trial should have been severed from that of his codefendant, Kelly. Prior to trial, defendant twice moved for severance. He cited the codefendants’possible antagonistic defenses and also urged that he would be improperly prejudiced by introduction against Kelly of Kelly’s taped confession implicating defendant. (See People v. Aranda (1965) 63 Cal.2d 518, 530-531 [47 Cal.Rptr. 353, 407 P.2d 265].) To the second of his pretrial motions, defendant attached the entire text of the Kelly statement.

The prosecution ultimately stated it would not use the Kelly tape. However, Kelly’s counsel indicated he intended to introduce it as “state of mind” evidence to corroborate Kelly’s defense of duress and menace. In this posture, the pretrial motions were denied without prejudice. During jury selection, Kelly’s counsel advised that he wished to introduce evidence (1) of defendant’s shooting of Stevenson on July 7, 1979, and (2) that Kelly was aware of the Stevenson incident when he agreed to participate in the July 8 gallery robbery.

Defendant renewed his severance motion, noting that Kelly’s testimony about the Stevenson matter was “enormously prejudicial” to defendant and would hot be admissible against him if he were tried separately. Defendant’s counsel also pointed out that Kelly could presumably call Stevenson himself, as well as any other witness to the shooting. The trial court denied the renewed motion. As promised, the prosecution did not introduce the Kelly tape in its case in chief. Kelly testified in his own behalf, describing his involvement in the Stevenson episode, and he introduced the tape.

Stevenson was called by Kelly and testified, as noted, that defendant shot him and left him for dead on July 7, 1979. Defendant renews his contention that the Stevenson incident was manifestly harmful to his defense but could not have been admitted against him in a separate trial. He therefore contends the trial court prejudicially abused its discretion in denying severance. We disagree.

The Penal Code states a general preference for joint trial of jointly charged defendants. (§ 1098.) A “classic” case for joint trial is presented when defendants are charged with common crimes involving common events and victims. (People v.

Turner (1984) 37 Cal.3d 302, 312-313 [208 Cal.Rptr. 196, 690 P.2d 669].) Severance remains largely within the discretion of the trial court. (§ 1098; Turner, supra, at p. 312.) This court has said that severance should generally be granted “in the face of an incriminating confession [by a codefendant], prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (Turner, supra, at p. 312; People v.

Massie (1967) 66 Cal.2d 899, 917 [59 Cal.Rptr. 733, 428 P.2d 869] [fns. omitted].) However, we recently cautioned that a joint trial is not unfair simply because the codefendants “have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution. [Citations.]” (Turner, supra, 37 Cal.3d at p. 313.) If the likelihood of antagonistic testimony alone required separate trials, they “would appear to be mandatory in almost every case.” (Id., at pp. 312-313.) Defendant urges, however, that Kelly did not simply seek to exculpate himself by laying blame on defendant.

Rather, his “antagonistic defense” of duress or menace allowed him to present prejudicial evidence and argument of uncharged conduct by defendant, which would not have been admissible against defendant in a separate trial. Assuming this is a valid ground for distinguishing the reasoning of Turner, supra, we nonetheless conclude the trial court acted within its discretion in denying the severance motion. Recent decisions addressing the analogous problem of severance of counts (see § 954) are instructive.

When ruling on a motion to sever counts for which the statute allows joint trial, the court must decide whether the realistic benefits from a consolidated trial are outweighed by the likelihood of “substantial” prejudice to defendant. In determining the degree of potential prejudice, the court should evaluate whether (1) consolidation may cause introduction of damaging evidence not admissible in a separate trial, (2) any such otherwise-inadmissible evidence is unduly inflammatory, and (3) the otherwise-inadmissible evidence would have the effect of bolstering an otherwise weak case or cases.

Severance motions in capital cases should receive heightened scrutiny for potential prejudice. (People v. Smallwood (1986) 42 Cal.3d 415, 426-429 [228 Cal.Rptr. 913, 722 P.2d 197]; Williams v. Superior Court (1984) 36 Cal.3d 441, 448-454 [204 Cal.Rptr. 700, 683 P.2d 699].) The balancing process is a “highly individualized exercise” (Williams v. Superior Court, supra, at p. 452), and the propriety of a trial court ruling depends on the facts as they appeared when the motion was decided. (Turner; supra, 37 Cal.3d at p. 312.) Here, such a balance hardly required severance.

Defendant insists that the prosecutor never asserted any benefits from a joint trial. However, judicial economy was obviously paramount in this case, since separate trials would have required selection of two juries, one death-qualified, and presentation of much the same evidence and witnesses to each. Defendant demonstrated no potential prejudice sufficiently “substantial” to justify this duplication of resources even in the context of a capital case.

We assume arguendo, as defendant suggests, that the Stevenson shooting, and certain other evidence presented by Kelly which suggested defendant’s violent nature, would have been inadmissible in his separate guilt trial for the Opel murder. Defendant urges that, apart from its usefulness to Kelly, such evidence merely suggested defendant’s criminal propensity and did not go directly to such issues as identity or intent. (See Evid. Code, §§ 1101, 1102; see also, e.g., People v.

Thompson (1980) 27 Cal.3d 303, 314-321 [165 Cal.Rptr. 289, 611 P.2d 883].) “Other crimes” evidence which would not be admissible against an accused in his separate trial holds a well-understood potential for prejudice.

However, the likelihood of its admission in an otherwise proper joint trial does not alone justify severance. (Smallwood, supra, 42 Cal.3d at p. 429.) Further, we are persuaded, severance was not required in this case on grounds that such evidence was potentially “inflammatory.” Here, we conclude, any potential prejudice from the disputed evidence was minimal, since it was unlikely to alter the verdict by unfairly bolstering an otherwise weak case. At the time the motions to sever were decided, the clearly admissible evidence that defendant was guilty of all the charges against him was already very strong.

At the preliminary hearing, eyewitnesses Rogers and O’Grady positively identified defendant as a coparticipant in the gallery incident. While both witnesses conceded at the hearing that Kelly and defendant were obscured from their view at the moment Opel was shot, they made clear that defendant was the robber brandishing a handgun of the kind which killed Opel. They also suggested that defendant had been confronting Opel directly, while Kelly, at defendant’s direction, took responsibility for the two surviving victims.

As at trial, the witnesses said that shortly before Opel was shot, they saw defendant fire the handgun at the ceiling during an argument with Opel. After a subsequent shot which sounded like it came from the same gun, they heard Opel’s body fall. Rogers identified as similar to the robbers’ weapons a handgun and shotgun found in luggage carried by defendant, Holt, and Kelly at the time of their airport arrest two days after the killing.

Under these circumstances, the trial court could properly conclude that the benefits of joinder outweighed any potential prejudice to defendant arising from Kelly’s “duress” defense. The court did not abuse its discretion in denying the motion for severance. Even if we concluded the contrary, however, reversal would not be warranted. Hindsight reveals that defendant suffered no actual prejudice from admission of the Stevenson evidence. (See Turner, supra, 37 Cal.3d at p. 312.) In his opening argument at trial, defense counsel conceded that defendant had personally shot and killed Opel.

The prosecutor did not introduce Kelly’s taped statement. Rogers and O’Grady described the gallery incident essentially as they had at the preliminary hearing. Though they noted intervening changes in appearance, the witnesses again named defendant and Kelly as the participants and implicated defendant as Opel’s killer. They acknowledged they had easily picked defendant from a photo lineup in which he was depicted as he appeared at the gallery. Ballistics evidence not presented at the preliminary hearing linked the handgun found in the suspects’ luggage with the bullet removed from Opel’s head.

Rogers and O’Grady again identified weapons taken from the suspects at the airport, and O’Grady recognized defendant’s distinctive leather jacket. The trial included evidence of defendant’s multiple escapes from custody, implying his consciousness of guilt. Defendant presented no evidence whatever in his own behalf. Under the circumstances, there is no reasonable probability that the verdict as to defendant was affected by Kelly’s defense in their joint trial. Hence, there is no basis for reversal. (Massie, supra, 66 Cal.2d at pp. 922-923; People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243].) B.

Death qualification as leading to unrepresentative and guilt-prone jury. Defendant objects to the elimination from his guilt phase jury of persons who, though unable to vote for the death penalty, stated they could be fair on the issue of guilt. He urges that the resulting panel was guilt-prone and unrepresentative of the community. We have consistently rejected such contentions, and the United States Supreme Court has vindicated our view. (Lockhart v. McCree (1986) 476 U.S. 162, 173-184 [90 L.Ed.2d 137, 147-155, 106 S.Ct. 1758]; People v.

Miranda (1987) 44 Cal.3d 57, 79-80 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Fields (1983) 35 Cal.3d 329, 342-353 [197 Cal.Rptr. 803, 673 P.2d 680] [plur. opn.], 374-375 [conc. opn. of Kaus, J.]; Hovey v. Superior Court (1980) 28 Cal.3d 1, 61-69 [168 Cal.Rptr. 128, 616 P.2d 1301].) No reason appears to reconsider the issue here. C. Intent to kill as element of felony-murder special circumstances. The trial court failed to instruct the jury that in order to find the special circumstance allegations true, it must determine that defendant specifically intended to kill Opel.

Defendant asserts this was error under Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], However, we have overruled Carlos’s holding that the 1978 death penalty law imposes an intent-to-kill requirement on all felony-murder special circumstances. Under current law, intent to kill need be charged and proved only where the defendant was an aider and abetter, and not the actual killer. (People v.

Anderson (1987) 43 Cal.3d 1104, 1138-1148 [240 Cal.Rptr.-585, 742 P.2d 1306].) Here, as noted, defense counsel conceded that defendant personally inflicted the fatal wound on Opel, and there was no substantial evidence to the contrary. Hence, there was no duty to instruct on the intent-to-kill issue. {Id., at pp. 1147-1148, citing People v. Flannel (1979) 25 Cal.3d 668, 685 [160 Cal.Rptr. 84, 603 P.2d 1]; see also People v.

Poggi (1988) 45 Cal.3d 306, 326-327 [246 Cal.Rptr. 886, 753 P.2d 1082] [Anderson applies retroactively].) For similar reasons, no intent-to-kill finding was necessary to satisfy the Eighth Amendment. After proper consideration of the individual circumstances, the death penalty may constitutionally be imposed on one who “actually killed, attempted to kill, or intended to kill. . . .” (Tison v. Arizona (1987) 481 U.S. 137, 150 [95 L.Ed.2d 127, 139, 107 S.Ct. 1676], italics added, construing Enmund v.

Florida (1982) 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368].) Here, the first degree murder verdict against defendant was premised solely on felony-murder instructions, and the jury made no express or implied finding that defendant personally killed Opel. However, assuming an adequate record, such a finding may be made by either a trial or appellate court at any time prior to execution. (Cabana v. Bullock (1986) 474 U.S. 376, 383-388 [88 L.Ed.2d 704, 714-718, 106 S.Ct. 689].) Accordingly, on overwhelming evidence, we find that defendant was Opel’s actual killer, thus satisfying any Eighth Amendment concern. D.

Denial of discovery re arbitrary charging of special circumstances. Before trial, defendant sought extensive discovery about the capital-charging policies and practices of the San Francisco District Attorney’s office, as applied in all cases handled by that office which met certain potentially capital criteria.

Defendant’s purpose was to obtain information allowing a challenge to the constitutionality of the special circumstance allegations against him on two grounds: (1) that the district attorney had no standards for deciding whether to charge special circumstances in an eligible case, and (2) that the prosecution was arbitrarily alleging special circumstances in this case.

As grounds for the request, defendant’s counsel declared (1) that special circumstances were not alleged against defendant until the third complaint was filed against him, (2) that Kelly, the codefendant, was not capitally charged, (3) on information and belief, that in other cases involving murder, burglary, and robbery, the district attorney had not alleged special circumstances, and (4) that so far as counsel was aware, the district attorney had no formal or informal standards for the exercise of prosecutorial discretion in this regard.

The trial court denied the request for discovery, and defendant filed a petition for mandate in the Court of Appeal. There, his claim was rejected in a published opinion. (Keenan v. Superior Court (1981) 126 Cal.App.3d 576 [177 Cal.Rptr. 841] (Keenan I).) That holding became law of the case. (People v. Medina (1972) 6 Cal.3d 484, 491, fn. 7 [99 Cal.Rptr. 630, 492 P.2d 686].) Defendant nonetheless renews his objection to the denial of discovery. He urges that application of the law-of-the-case doctrine would create “unjust results” (see People v.

Shuey (1975) 13 Cal.3d 835, 845 [120 Cal.Rptr. 83, 533 P.2d 211]) since (1) this court has exclusive jurisdiction over capital issues,

(2) Keenan I manifestly misapplied existing principles and failed to address all the issues, and (3) our attention to the problem of standardless charging discretion is required. None of these assertions is persuasive. Keenan I was correctly decided by a court with subject matter jurisdiction. As the opinion noted, prosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of equal protection, due process, or cruel and/or unusual punishment. (Jurek v.

Texas (1976) 428 U.S. 262, 274 [plur. opn.], 279 [conc. opn. of White, J.] [49 L.Ed.2d 929, 939-940, 942, 96 S.Ct. 2950]; Proffitt v. Florida (1976) 428 U.S. 242, 254 [plur. opn.], 261 [conc. opn. of White, J.] [49 L.Ed.2d 913, 924, 927-928, 96 S.Ct. 2960]; Gregg v. Georgia (1976) 428 U.S. 153, 199-200 [plur. opn.], 225-226 [conc. opn. of White, J.] [49 L.Ed.2d 859, 889-890, 903-904, 96 S.Ct. 2909]; see McClesky v.

Kemp (1987) 481 U.S. 279, 292 [95 L.Ed.2d 262, 278, 291, 107 S.Ct. 1756]; see also cases cited in Keenan I, 126 Cal.App.3d at p. 584.) Many circumstances may affect the litigation of a case chargeable under the death penalty law. These include factual nuances, strength of evidence, and, in particular, the broad discretion to show leniency.

Hence, one sentenced to death under a properly channeled death penalty scheme cannot prove a constitutional violation by showing that other persons whose crimes were superficially similar did not receive the death penalty. (McClesky, supra, 481 U.S. at pp. 307-308, and fn. 28 [95 L.Ed.2d at p. 288]; Pulley v. Harris (1984) 465 U.S. 37, 50-51 [79 L.Ed.2d 29, 40-41, 104 S.Ct. 871].) The same reasoning applies to the prosecutor’s decisions to pursue or withhold capital charges at the outset. Defendant implies that prosecutors must develop fair “standards” for deciding when to seek the death penalty.

But this contention undermines the basic premise of Gregg, Proffitt, Jurek, and McClesky, all supra, that the requisite “standards” are those minimum standards set forth in a constitutional death penalty statute. By acceptably narrowing the circumstances under which capital punishment may be sought and imposed, such a law satisfies the constitutional prohibition against arbitrary and capricious exaction of the death penalty.

When he acts under such a law, and “[a]bsent a persuasive showing to the contrary, we must presume that the district attorney’s decisions were legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. [Citation.]” (People v.

Haskett (1982) 30 Cal.3d 841, 860 [180 Cal.Rptr. 640, 640 P.2d 776].) To require prosecutors to justify each capital-charging decision by reference to others would “plac[e] totally unrealistic conditions” on the use of capital punishment. (Gregg, supra, 428 U.S. at p. 199, fn. 50 [49 L.Ed.2d at p. 889]; see McClesky, supra, 481 U.S. at p. 296, and fn. 17 [95 L.Ed.2d at p. 281].) Of course, an accused may show by direct or circumstantial evidence that prosecutorial discretion was exercised with intentional and invidious discrimination in his case. (Oyler v.

Boles (1962) 368 U.S. 448, 456 [7 L.Ed.2d 446, 452-453, 82 S.Ct. 501]; Murgia v.

Municipal Court (1975) 15 Cal.3d 286, 293-301 [124 Cal.Rptr. 204, 540 P.2d 44]; see McClesky, supra, 481 U.S. at pp. 292-298 [95 L.Ed.2d at pp. 278-282].) In theory, he may also show a “constitutionally unacceptable” risk that an irrelevant and invidious consideration is systematically affecting the application of a facially valid capital-sentencing scheme. (McClesky, supra, 481 U.S. at pp. 299-319 [95 L.Ed.2d at pp. 283-296].) In light of the substantial discretion properly allowed decisionmakers in the capital-sentencing process, however, any statistical or comparative evidence presented for these purposes must demonstrate a “significant,” “stark,” and “exceptionally clear” pattern of invidious discrimination. (Id., at pp. 293-297 [95 L.Ed.2d at pp. 279-281, 283-296].) As Keenan I observed, however, defendant made no allegation of purposeful, invidious discrimination here.

He merely asserted that capital charging by the San Francisco District Attorney’s office appeared to be “standardless,” that capital charges against him were delayed, and that he sustained harsher charges than others whose crimes he deemed similar. These claims are patently insufficient to raise the issue of individual or systematic discrimination on invidious grounds. Hence, they constituted no “plausible justification” for granting defendant’s extensive discovery request, in whole or in part. (See Griffin v.

Municipal Court (1977) 20 Cal.3d 300, 306-307 [142 Cal.Rptr. 286, 571 P.2d 997].) Keenan I reached the proper result, and the trial court properly denied defendant’s application for discovery. Defendant makes no other assertions of error at the guilt and special circumstance phase of his trial. We therefore affirm all the convictions and special circumstance findings. IV. Penalty Issues Defendant asserts that several errors were committed at the penalty phase of his trial. We conclude that where technical error occurred, there was no prejudice warranting reversal of the penalty judgment.

We address defendant’s contentions in turn. A. Ramos error. Prison counselor Cherry, called by the defense, had testified that life inmates tend to be stable elements of the prison population because they know they will not be leaving the institution. On cross-examination, the following colloquy occurred: “By Mr. Murray [the prosecutor]: Q. On what do you base your opinions, Ms. Cherry, that lifers will never be going home, that they will never leave there? [fl] A. I didn’t say all. [fl] Q. You said most. [^[] A. Um-hum. [fl] Q. On what do you base that? [fi] A. On the law as it is now written, [fl] Q.

And what is that law? [fl] A. Well, it depends on how they are sentenced, Mr. Murray, [{¡] Q. Yes, it does. Does the law also include authority of the Governor of the State of California—.” At this point, defense counsel interrupted. His objection to the question was immediately sustained, and the court admonished the jury to “disregard the last question asked by the prosecutor.” Defendant urges, and the People concede, that the prosecutor’s reference to the Governor’s power to commute a life sentence was improper under our state Constitution. (See People v.

Ramos (1984) 37 Cal.3d 136, 150-159 [207 Cal.Rptr. 800, 689 P.2d 430]; but see California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446] [finding no federal constitutional error].) However, while People v. Ramos, supra, makes an instructional reference to the commutation power reversible per se, a similar result does not necessarily follow from isolated references by the prosecutor. As in People v. Ghent (1987) 43 Cal.3d 739 [239 Cal.Rptr. 82, 739 P.2d 1250], we conclude that no serious Ramos error occurred here.

The prosecutor’s remark was “brief and isolated” (Ghent, supra, at p. 770), and the jury was promptly admonished to ignore it. Under these circumstances, the misconduct was harmless by any standard. B. Remorse. During closing argument, the prosecutor remarked: “Are there any other factors that might assist you in evaluating, in terms of aggravation, the defendant? []j] I think there is a significant factor.

That is, members of the jury, that throughout the testimony that was presented by the defense, all of those interviews with the defendant that were, related to us in significant part, never once was there any suggestion of an expression of remorse— At this point, defense counsel objected, declaring that “[i]f Mr. Murray [the prosecutor] wanted to find out of [sic] Mr. Keenan ever expressed remorse, he should have asked the witness and he should have found out. ... [^f] ... I think that’s not an aggravating factor, according to the statute. It’s also improper argument.

Misconduct.” The trial court sustained the objection. Noting that “both counsel are given considerable latitude in interpreting the evidence for you,” the court declined to find misconduct on the prosecutor’s part. However, it admonished the jury “not [to] speculate as to evidence that has not been presented to you,” and that “[y]ou must decide the case only on the evidence that you’ve heard here.” The court did not warn that absence of remorse is not an aggravating factor.

Without objection, the prosecutor went on to argue that “the record does reflect some things [about lack of remorse], doesn’t it . . .?” In particular, he noted Kelly’s testimony and taped statement that defendant “kind of gloated” over the gallery incident and “kind of liked watching the blood gush from the head of Robert Opel. That’s in the record.” Defendant urges that these comments violated his privilege against self-incrimination, since they called the jury’s attention to his failure to testify and focused on his failure to confess. (See Griffin v.

California (1965) 380 U.S. 609, 613-615 [14 L.Ed.2d 106, 109-110, 85 S.Ct. 1229]; People v. Coleman (1969) 71 Cal.2d 1159, 1168-1169 [80 Cal.Rptr. 920, 459 P.2d 248].) However, the prosecutor did not refer to defendant’s failure in either respect. He carefully pointed only to affirmative evidence that remorse was lacking, and to omissions from “testimony” and psychiatric “interviews” which were “presented by the defense.” (See Ghent, supra, 43 Cal.3d at p. 771.) Moreover, the trial court immediately warned the jury not to draw inferences from absent evidence. There was no reversible Griffin-Coleman error.

Defendant next urges that the prosecutor acted in bad faith to mislead the jury, since he knew of facts which suggested defendant’s remorse. Through pretrial motions, defendant observes, the prosecutor was aware that defendant had written Opel’s sister a note expressing regret for the killing. Defendant had also moved to limit cross-examination, if he took the stand, to his testimony that he did shoot Opel, “is very sorry,” and “regrets it very much.” In general, however, the prosecutor may comment on the record as it actually stands.

The record contains no explanation why defendant did not present any “remorse” note as mitigating evidence. Further, defendant chose not to take the stand and express his remorse after a proper trial court ruling deferring his motion to limit cross-examination. (See discussion post.) The trial court expressly admonished the jury hot to speculate on absent evidence. Defendant never objected to the admissibility or relevance of Kelly’s testimony that defendant “gloated”; this was affirmative evidence of lack of remorse. Under the circumstances, we find no misconduct of the sort defendant suggests.

Finally, defendant urges it was improper for the prosecutor to argue that the evidence demonstrated lack of remorse and that absence of remorse is a factor in aggravation. Aggravating factors under the 1978 death penalty law are limited to those expressly set forth in the statute. (People v.

Boyd (1985) 38 Cal.3d 762, 773 [215 Cal.Rptr. 1, 700 P.2d 782].) Lack of remorse is not included in the statutory list. (See § 190.3, factors (a)-(k).) The prosecutor may suggest that evidence of remorselessness, or an absence of evidence of remorse, weighs against the finding of remorse as a mitigating factor. (Ghent, supra, 43 Cal.3d at p. 771; see also People v. Odle (1988) 45 Cal.3d 386, 422 [247 Cal.Rptr. 137, 754 P.2d 184]; People v. Ruiz (1988) 44 Cal.3d 589, 622 [244 Cal.Rptr. 200, 749 P.2d 854].) On the other hand, he should not argue that the absence of remorse is a factor in aggravation. (People v.

Rodriguez (1986) 42 Cal.3d 730, 788-790 [230 Cal.Rptr. 667, 726 P.2d 113]; People v. Davenport (1985) 41 Cal.3d 247, 288-290 [221 Cal.Rptr. 794, 710 P.2d 861] [plur. opn.].) However, we find no prejudice from the prosecutor’s remarks. As we have suggested, remorse is universally deemed a factor relevant to penalty. The jury, applying its common sense and life experience, is likely to consider that issue in the exercise of its broad constitutional sentencing discretion no matter what it is told. (People v.

Williams (1988) 44 Cal.3d 883, 966 [245 Cal.Rptr. 336, 751 P.2d 395] (Keith Daniel Williams); see Ghent, supra, 43 Cal. 3d at p. 771.) Moreover, as we conclude below, the jury was not misled about the pertinent evidence or the nature of its penalty responsibilities. The instructions and argument made clear that the jury was to decide which penalty it deemed appropriate under all the relevant evidence about the offense and offender. The jury was also instructed to be guided by specified sentencing factors as “applicable;” neither remorse nor the lack thereof was included in the list.

Under the circumstances, we see no reasonable possibility that the prosecutor’s “remorse” argument affected the jury’s sentencing discretion. (People v. Siripongs (1988) 45 Cal.3d 548, 583 [247 Cal.Rptr. 729, 754 P.2d 1306].) C. Allocution. Prior to commencement of the penalty phase, defendant moved for permission “briefly to address the jury in what has come to be known as the right of allocution.” He offered to reveal in camera what he would say in his statement. The trial court denied the motion without hearing the proffered declaration.

The court ruled that while defendant could testify, he would not be allowed before the jury to make a sworn or unsworn statement immune from cross-examination. Defendant would, however, be permitted to address the court at the postverdict sentence hearing. (§ 190.4, subd. (e).) Defendant urges that denial of his request violated a constitutional right to allocution or, in the alternative, constituted an abuse of discretion. We rejected a similar argument in People v. Robbins (1988) 45 Cal.3d 867, 888-890 [248 Cal.Rptr. 172, 755 P.2d 355].

We acknowledged federal authority suggesting such a constitutional right in noncapital cases. We observed, however, that California law grants a capital defendant the right to present evidence and testify in his own behalf on the issue of penalty. “. . . Given this, we fail to see the need, much less a constitutional requirement, for a corresponding ‘right to address the sentencer without being subject to cross-examination’ in capital cases.” (P. 889.) Nor, we concluded, had Robbins shown that such a right is guaranteed by the common law of this state. (Pp. 889-890, comparing Harris v.

State (1986) 306 Md. 344 [509 A.2d 120, 124-127] [capital case].) Similar considerations apply here. Robbins made no offer of proof of his intended statement to the jury, and we found that fact “significantly” prejudicial to his claim. (45 Cal.3d at p. 890, comparing Harris, supra, 509 A.2d at p. 127.) The instant defendant did make such an offer. The distinction is not dispositive. Robbins is persuasive that the right of allocution is unavailable in California capital penalty trials.

Its principal purpose in such cases would be to cloak defendant’s right to testify with a unique immunity from examination by the People. Recognition of a right to allocution is unnecessary to a fair trial and runs counter to the statute’s purpose of providing the sentencer with all relevant information bearing on the appropriate penalty. As in Robbins, we reject defendant’s claim. D. Motion to limit cross-examination. In a related contention, defendant urges the trial court improperly denied his motion to limit cross-examination should he decide to testify. Under the circumstances, we see no error.

During presentation of defendant’s penalty case, he moved for an order limiting his cross-examination. Counsel indicated that, if called, defendant would acknowledge he shot Carlos Stevenson and Robert Opel and went to the gallery intending to rob it. Though his memory of each incident was vague, he would indicate he regretted his actions “very much.” He would also testify that he wished to live. Counsel asked for an advance ruling that cross-examination be limited to the “specifics of the incident in which [defendant] shot Mr. Stevenson and his relationship with Mr.

Stevenson and the specifics of the incident during which he shot Mr. Opel, and questions perhaps as to why he wishes to live.” Counsel also conceded that defendant could be impeached with prior felonies. Defendant would not testify, said counsel, unless he obtained the limiting order he sought. The prosecutor objected to an advance ruling. He declared he proposed to subject defendant to “full, complete, and extensive cross-examination . . . with respect to all aspects of this case and the defendant’s background” within the limits of the Evidence Code.

In response, the trial court indicated its belief that, except for matters deemed too remote or prejudicial under Evidence Code

section 352, or those already excluded for other reasons, the prosecutor was entitled to wide-ranging cross-examination. First, the court noted, defendant could be examined on all matters pertinent to his direct testimony, including his claims of remorse and vague memory. Such examination, the court suggested, might include broad inquiry into his prior criminal history and other witnesses’ statements about his use of drugs near the time of the Opel and Stevenson incidents.

Moreover, in the court’s tentative opinion, “anything that is in the record right now as far as—either from the prosecution side of the case or from the defense side of the case, anything that the jury is going to be instructed they can consider in determining the penalty, I think the prosecutor is entitled to either have that information confirmed by Mr. Keenan while he is on the stand and say, yes, I did this, or yes, I agree with Mr. X’s testimony, or to deny it and say that isn’t true.” (Italics added.) However, the court declined to “rule in a vacuum, because I don’t know what Mr.

Murray [the prosecutor] wants to bring out and I don’t know enough about Mr. Keenan at this time other than what I have heard to really tell you whether it would be proper cross-examination or improper cross-examination. ...” The court indicated it would entertain objections to specific questions if defendant decided to testify. Defendant urges the trial court erred in implying that he could be cross-examined on all record matters pertinent to penalty, whether or not they arose in his direct testimony. Thus, he contends, the court improperly denied his request to limit his cross-examination.

The ruling prejudiced him, he asserts, by forcing him to avoid presenting his mitigating testimony to the jury. We need not decide whether the trial court was correct in its preliminary implication that the prosecutor could cross-examine defendant on matters beyond the scope of his direct examination. (But see Evid. Code, §§ 761, 772, subd. (d).) Though it expressed a tentative opinion, the court specifically refused to rule on matters of cross-examination before they arose.

Lacking complete information, the court was well within its discretion to defer its decision. (See Keith Daniel Williams, supra, 44 Cal.3d at pp. 912-913.) Defendant had no inherent right to a binding advance ruling which would spare him the necessity of raising specific objections before the jury. Even had the court’s remarks constituted an in limine ruling against him, they would not have been binding at trial. (See Code Civ. Proc., former § 128, subd. 8 [now § 128, subd. (a)(8)]; cf. People v. Campa (1984) 36 Cal.3d 870, 885-886 [206 Cal.Rptr. 114, 686 P.2d 634]; People v.

Beasley (1967) 250 Cal.App.2d 71, 76-77 [58 Cal.Rptr. 485].) No error occurred. E. Irrelevant aggravating evidence. Defendant complains the trial court instructed improperly at the penalty phase that the jury should consider “all of the evidence which has been received in any part of the trial of this case.” He also urges the court erred in refusing his proffered instruction limiting the aggravating factors the jury could consider.

He asserts the jury was thus improperly encouraged to consider in aggravation of penalty certain unflattering evidence presented at the guilt phase (such as his nonviolent escapes while awaiting trial on the capital charges, his drug use, and his “illicit” lifestyle), which evidence bore on no enumerated aggravating factor. Even if error occurred, however (see People v. Williams (1988) 45 Cal.3d 1268, 1324 [248 Cal.Rptr. 834, 756 P.2d 221] (Michael Allen Williams) Boyd, supra, 38 Cal.3d at pp. 772-779), it was harmless by any standard.

The jury was told that it “shall take into consideration and be guided by” the enumerated factors of aggravation and mitigation, “if applicable.” (Italics added.) Construing the instructions together, reasonable jurors would conclude they were to consider only the enumerated factors, but could draw upon all phases of the trial for evidence in that regard. Moreover, the penalty verdict cannot have been affected by improper consideration of any guilt phase evidence. Defendant’s escapes from custody were relevant at the penalty phase to rebut testimony by his expert witnesses that he was a good confinement risk.

Defendant’s concern that the instruction called attention to his drug-centered lifestyle is ironic in view of his effort to persuade the jury that his background, including his difficulty with drugs, was a mitigating factor. Under these circumstances, the asserted instructional error was plainly harmless. (Michael Allen Williams, supra, 45 Cal.3d at p. 1324.) F. Factor (k)/sympathy.

Defendant urges the trial court erred prejudicially when it declined his request at the penalty phase to (1) countermand “anti-sympathy” instructions given at the guilt phase, (2) give a “pro-sympathy” instruction, and (3) advise that the jury could consider any proffered mitigating evidence, whether or not it “extenuated” the capital crime. Even when given at the penalty phase, the California standard instruction on the irrelevance of “mere sympathy” for the defendant (CALJIC No. 1.00) is not unconstitutional per se. (California v.

Brown, supra, 419 U.S. at pp. 542-543 [93 L.Ed.2d at pp. 940-941] [plur. opn.], 545 [93 L.Ed.2d at p. 942] [conc. opn. of O’Connor, J.].) A fortiori, refusal to give a “pro-sympathy” instruction at the penalty phase is not error. The sentencer must, of course, be adequately apprised of its duty to consider all mitigating character and background evidence proffered by the defendant. The 1978 death penalty law allows such consideration under

section 190.3, factor (k) (any factor “extenuating the gravity of the crime”), and therefore meets the requirements of a valid death penalty law. (Ghent, supra, 43 Cal.3d at p. 777; People v. Brown (1985) 40 Cal.3d 512, 541 [220 Cal.Rptr. 637, 709 P.2d 440]; Boyd, supra, 38 Cal.3d at p.775.) However, instructions in the “unadorned” language of factor (

k) have a potential for misleading the jury to believe that mitigating evidence is irrelevant unless it relates directly to the capital charges. Hence, we must examine the instructions and arguments as a whole to determine whether the jury was adequately informed of the proper scope of mitigating evidence. (California v. Brown, supra, 479 U.S. at p. 546 [93 L.Ed.2d at p. 943 (conc. opn. of O’Connor, J.)]; see Eddings v. Oklahoma (1982) 455 U.S. 104, 113-115 [71 L.Ed.2d 1, 10-11, 102 S.Ct. 869]; Ghent, supra, 43 Cal.3d at p. 777; People v. Brown, supra, 40 Cal.3d at pp. 536-537, 544, fn. 17; People v.

Easley (1983) 34 Cal.3d 858, 878, & fn. 10 [196 Cal.Rptr. 309, 671 P.2d 813].) Here the trial court expressly instructed that the jury was to consider separately “the defendant’s personal history and family background.” Defendant introduced extensive evidence on these subjects, which formed the principal basis of his penalty defense. Defense counsel stressed that the court would instruct on the relevance of defendant’s history and background, which must be considered because “the law has a heart.” The prosecutor made no objection.

In his own argument, the prosecutor did briefly “question the purpose, the relevance” of some of defendant’s evidence to the extent “[i]t does not tell us too much about the 8th of July in 1979” (the date of the Opel murder). He implied his view that events from defendant’s early childhood were relevant, if at all, only to the reasons why defendant pulled the trigger at the gallery.

However, the instructions given in this case were contrary; they advised the jury that it must consider both “extenuating” factors and “personal history and family background.” Under these circumstances, we conclude the jury cannot have been misled to defendant’s prejudice about the relevant range of mitigating evidence. G. Brown/Caldwell. In its 1978 version,

section 190.3 provides among other things that the sentencer shall “consider, take into account, and be guided by” the enumerated aggravating and mitigating factors and “shall” impose a sentence of death “if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances. . . .” Defendant contends the trial court erred by rejecting his extensive proffered instructions explaining how the jury was to “weigh” the aggravating and mitigating factors and determine the appropriate penalty.

These proposed instructions would have advised in effect that (1) mitigating factors are not limited by the statute, (2) any mitigating circumstance standing alone can support a decision that death is inappropriate, (3) aggravating factors must be proved beyond a reasonable doubt while mitigating factors are established by “any credible evidence,” (4) jurors may assign whatever “weights” they deem appropriate to each aggravating and mitigating factor, (5) combined weight, not combined numbers, is dispositive, and (6) the sentencer must reject death if it has any reasonable doubt about the appropriate penalty.

In People v. Brown, supra, we concluded that the 1978 law’s “shall/outweigh” language, properly construed, does not impermissibly deprive the jury of its constitutional discretion and responsibility to decide the appropriate punishment for the individual offense and offender. (40 Cal.3d at p. 541; see Caldwell v. Mississippi (1985) 472 U.S. 320, 328 [86 L.Ed.2d 231, 238-239, 105 S.Ct. 2633].) We explained that the statutory “weighing” process is not mechanical or arbitrary and that each juror may assign “whatever moral or sympathetic value he deems appropriate” to each relevant factor.

A juror, we said, need not vote for the death penalty “unless, upon completion of the ‘weighing’ process, he decides that death is the appropriate penalty under all the circumstances. . . .” (40 Cal.3d at pp. 540-541.) However, we acknowledged that instructions in the literal statutory language are potentially confusing. For the future, we approved proposed CALJIC instructions explaining the weighing and sentencing process.

We also undertook to evaluate every pre-Brown case “on its own merits” to determine whether the jury might have been misled about its duties and powers. (40 Cal.3d at pp. 544, fn. 17, 545, fn. 19.) In each such case, we examine the instructions and arguments as a whole to determine whether they conveyed a mistaken impression about the nature of the “weighing” process or the jury’s duty to determine the appropriate penalty under all the circumstances. (People v. Myers (1987) 43 Cal.3d 250, 274-276 [233 Cal.Rptr. 264, 729 P.2d 698]; People v.

Allen (1986) 42 Cal.3d 1222, 1276-1280 [232 Cal.Rptr. 849, 729 P.2d 115].) Here the instructions actually given by the court adequately explained these matters. First, they advised (as defendant had urged) that any facts used in aggravation, specifically including “other crimes,” must be proved beyond a reasonable doubt.

Second, they directed the sentencer to give independent consideration to the defendant’s “personal history and family background.” Third, as noted, they explained that the jury must reject death if mitigating factors outweighed aggravating, and were free to do so even if aggravating factors outweighed mitigating. Thus, while the jury received no specific directions on “how to weigh,” the instructions made clear that its fundamental task was to determine the proper punishment from the full range of relevant aggravating and mitigating evidence.

They suggested that aggravating factors were more strictly construed than mitigating. Any inference that death was “mandatory” in any case was specifically refuted, and the instructions logically implied that the death penalty should not be imposed if the sentencer doubted it was the appropriate penalty under all the circumstances. Hence, the court’s refusal to give defendant’s additional proffered instructions is no basis for reversal. (See People v. Anderson (1966) 64 Cal.2d 633, 641 [51 Cal.Rptr. 238, 414 P.2d 366].) Assuming there was any potential confusion, the prosecutor did not exploit it.

The prosecutor told the jury it must “balance” and “weigh” the aggravating and mitigating factors, assigning each any weight the jury wished. He listed factors from his own perspective and argued their weights, but he never suggested the law required any result. He simply urged that the death penalty was warranted, under a concept of “Justinian justice,” in light of defendant’s conduct, attitude, and history. Defense counsel stressed that leniency was required if mitigating factors outweighed aggravating, but that “you don’t have to vote for death” even if aggravating factors were deemed to outweigh mitigating.

Under these circumstances, the jury was not misinformed. H. Instruction to reach penalty verdict “regardless of the consequences. ” Defendant also urges the trial court erred prejudicially when, as a final instruction at the penalty phase, it admonished the jurors to reach a “just verdict . . . regardless of . . . the consequences . . . .” He claims this instruction prevented the exercise of sympathy and diminished the jury’s sense of responsibility. In People v.

Brown, supra, we declared that an instruction to act “regardless of consequences” could contribute to confusion about the jury’s sentencing role and should therefore not be given at the penalty phase of a capital trial. (40 Cal.3d at p. 537, fn. 7.) We have since adhered to that statement. (E.g., People v. Hamilton (1988) 46 Cal.3d 123, 152 [249 Cal.Rptr. 320, 756 P.2d 1348]; People v.

Howard (1988) 44 Cal.3d 375, 442-443 [243 Cal.Rptr. 842, 749 P.2d 279].) Where the instruction was given in a pre-Brown penalty trial, we review the record to determine whether it may have misled the jury to defendant’s prejudice. (E.g., Hamilton, supra, at p. 152; Howard, supra, at p. 443.) In the instant case the court instructed the jury as follows: “Ladies and gentlemen of the jury, the final phase of this case is now in your hands.

I urge you to exercise your judgment in this case calmly and fairly without any passion or prejudice or without regard to public opinion or public feelings. []j] You have now the power of life and death and both sides in this case expect that you will conscientiously consider the evidence and the law and reach a just verdict regardless of what the consequences of your verdict may be.” Viewed in context, the instruction can only have been understood to relate to the jurors’ duty to render a just verdict without regard to public response.

Moreover, as we have explained, the instructions and arguments, viewed as a whole, adequately apprised the jury of its duty to consider all mitigating evidence, and to impose death only if that was deemed the appropriate penalty under all the circumstances. We thus conclude the “regardless of consequences” instruction could not have misled the jury about its sentencing responsibility. I. Background evidence as mitigating only.

Defendant complains that the trial court, when directing the jury to consider defendant’s “personal history and family background,” was obliged to explain that this was a mitigating factor, and could not be considered in aggravation. We find no prejudicial error. We have recognized that certain of the factors enumerated in

section 190.3 are intended to be mitigating, not aggravating; as we have already noted, the prosecutor may not argue that the absence of these mitigating factors is aggravating. (Davenport, supra, 41 Cal.3d at pp. 288-290.) Moreover, as defendant points out, though his character and background is a constitutionally relevant mitigating factor, it is not listed in the 1978 statute as a factor which may be given aggravating weight. (Eddings, supra, 455 U.S. at pp. 113-115 [71 L.Ed.2d at pp. 10-11]; People v.

Brown, supra, 40 Cal.3d at pp. 539-541; Boyd, supra, 38 Cal.3d at pp. 775-776; Easley, supra, 34 Cal.3d at p. 878.) Nonetheless, we have indicated that neither the statute nor corresponding instructions are constitutionally inadequate for failing to enumerate which factors are mitigating and which are aggravating. (Rodriguez, supra, 42 Cal.3d at pp. 777-779.) We did direct in Easley that future juries be instructed under

section 190.3, factor (k) (CALJIC No. 8.84.1, factor (k)) to consider both “extenuating” circumstances and “any other ‘aspect of [the] defendant’s character or record . . . that the defendant proffers as a basis for a sentence less than death.’ [Citation.]” (34 Cal.3d at p. 878, fin. 10, italics added.) Easley did not suggest, however, that earlier trials are reversible insofar as the instructions departed from this wording. Here we see no chance the jury was misled.

The defense introduced all the character and background evidence, and both counsel argued on the assumption that its only relevance was to mitigate the penalty. Defendant urges that the court created prejudicial ambiguity by linking the “personal history and family background” factor with that of “age.” Since he was 37 at the time of his capital crime, defendant asserts, the jury was unlikely to consider age mitigating, and might therefore assume the background and history factor was also aggravating. Under all the circumstances recited, we are not persuaded. We find no grounds for reversal.

J. “Inapplicable” factors; labeling of factors as aggravating or mitigating. Defendant offered instructions that only the “circumstances of the current crime” (§ 190.3, factor (a)) and other “violent” criminal activity (id., factor (b)) could be considered in aggravation. The proposed instructions cautioned that the current murder could not be deemed “aggravated” simply because it was in the first degree or was committed in the course of a robbery and burglary.

Finally, they advised that the mitigating factors were limited to (1) mental or emotional disturbance (id., factor (d)), (2) mental defect or intoxication (id., factor (h)), (3) any other “extenuating” circumstance (id., factor (k)), and (4) defendant’s “personal history, family background and any fact that shows [defendant’s] potential for rehabilitation.” The trial court rejected these instructions in the form presented. The jury was informed of all the factors set forth in

section 190.3 (with an added reference to “personal history and family background”). The instruction given did not label specific factors as “aggravating” or “mitigating.” Defendant urges the court erred in refusing to delete from the instructions those factors not presented by the evidence, and by failing to advise which remaining factors were aggravating and mitigating. As previously noted, however, the instructions need not distinguish the aggravating from the mitigating circumstances. (Ante, at p. 517.) Nor need they delete “inapplicable” factors.

The jury is told to consider only “applicable” factors, and it is entitled to know how the particular case fits into all the factors society deems relevant to the appropriate penalty. (Ghent, supra, 43 Cal.3d at pp. 776-777; see People v. Melton (1988) 44 Cal.3d 713, 770-771 [244 Cal.Rptr. 867, 750 P.2d 741].) Defendant’s claims lack merit. K. “Extreme” mental or emotional disturbance. Defendant urges the trial court erred by implying, contrary to his proposed instruction, that the jury could consider only “extreme” mental or emotional disturbance (§ 190.3, factor (d)).

We have concluded, however, that factor (k), by allowing consideration of all “extenuating” circumstances, permits the jury to decide that less pronounced forms of mental or emotional disturbance mitigate the seriousness of the capital offense. (Ghent, supra, 43 Cal.3d at p. 776.) The prosecutor implied as much in his closing argument. There is no basis to conclude the jury failed to give defendant’s drug and mental-state evidence its proper mitigating weight. (Ibid.) L. “Double-counting” of burglary-murder and robbery-murder special circumstances. The jury was instructed under

section 190.3, factor (a), that the jury could consider in aggravation of penalty “the existence of any special circumstances found true” in connection with the capital crime. (Italic added.) Defendant urges this instruction improperly allowed the jurors to consider the burglary-murder and robbery-murder special circumstances as separate aggravating factors even though they were “based on an indivisible course of conduct having one principal criminal purpose.” (Citing People v.

Harris (1984) 36 Cal.3d 36, 63-65 [201 Cal.Rptr. 782, 679 P.2d 433] [plur. opn.].) We have explained, however, that this scheme violates neither constitutional proscriptions nor California’s statutory prohibition of double punishment (§ 654). (Melton, supra, 44 Cal.3d at pp. 765-769.) M. Overlap of

section 190.3, factors (

a) and (b); conviction and special circumstances as aggravating factors. Defendant next urges that the refusal of his proffered instructions (ante, at p. 518) improperly allowed “inflation” or “double counting” of aggravating factors in two other respects. The standard instructions given, he notes, fail to explain that the “violent” criminal activity described in factor (

b) of

section 190.3 includes only conduct other than “the circumstances of the present offense” described in factor (a). Further, he urges, the final instructions erroneously allowed the jury to consider the fact of the underlying first degree murder conviction, and the fact that special circumstances were found true, as separate aggravating factors. We have suggested that future juries should be instructed on the distinction between factors (

a) and (b), but that omission of such instructions will rarely be prejudicial. The jury is unlikely to give undue weight to particular facts simply because they appear to fit into more than one statutory category. (E.g., Melton, supra, 44 Cal.3d at p. 763.) The prosecutor did not exploit any ambiguity by urging that the circumstances of the current offense should be counted twice in aggravation. Defendant’s remaining claims simply lack merit. The court’s instructions, phrased in the language of

section 190.3, did not encourage the jury to double-count the underlying conviction of murder. They simply, and properly, permitted it to consider the facts surrounding the particular offense to determine whether the nature of the capital crime was so aggravated as to weigh in favor of the death penalty.

Of course, the statute expressly permits the jury to consider “the existence of any special circumstances found to be true. . . .” (§ 190.3, factor (a).) For obvious reasons, the specific facts which validly rendered the underlying murder eligible for the death penalty are especially pertinent to the choice of punishment. “Re-use” of the special circumstance findings for this purpose is not unfair. Of course, factor (

a) exhibits some internal duplication if construed literally, since the “special circumstances found . . . true” are a subset of the “circumstances of the present offense.” However, as noted, juries are unlikely to “double-count” particular facts on this basis. The prosecutor made no such suggestion here. We see no ground for reversal. N. Death as appropriate beyond reasonable doubt.

Defendant contends the trial court erred in refusing his proffered instruction that the jury could not impose death unless convinced beyond a reasonable doubt that aggravating circumstances outweighed mitigating and that death was the appropriate penalty. We have previously rejected the contention. (Rodriguez, supra, 42 Cal.3d at pp. 777-779.) O. Prosecution’s failure to supply timely notice of aggravating evidence and discovery (§ 190.3). Defendant urges at length that the prosecution engaged in “literally contemptible” misconduct by refusing to comply with trial and appellate court orders made under

section 190.3 for notice and discovery of penalty phase evidence. We do not applaud the prosecution’s effort to make its notice and discovery efforts as unhelpful as possible, but we see no violation of the statute or relevant court orders. In any event, defendant fails to raise even the possibility of reversible prejudice.

Section 190.3 provides in pertinent part: “Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial.” In 1979, the prosecution supplied the defense with police reports on numerous violent criminal incidents, other than the capital crime, which allegedly involved defendant.

These reports included addresses of persons interviewed by the police. Among the reports was the January 1977 attempted robbery of “G.L. West.” The prosecution further notified the defense that all information furnished in pretrial discovery should be deemed potential evidence in aggravation at the penalty phase. In s

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