THE PEOPLE, Plaintiff and Respondent, v. RICHARD WADE FARLEY, Defendant and Appellant, 46 Cal. 4th 1053

Opinion GEORGE, C. J. A jury convicted defendant Richard Wade Farley of the first degree murders of Joseph Silva, Wayne Williams, Glenda Moritz, Ronald Reed, Helen Lamparter, Ronald Doney, and Lawrence Kane (Pen. Code, §§ 187, 189), the attempted murders of Greg Scott, Richard Townsley, Randell Hemingway, William Drake, and Karen Mackey (§§ 187, 664), assault with a firearm upon Laura Black (§ 245, subd. (a)(2)), second degree burglary (§ 459; former § 460, subd. (2), now § 460, subd. (b)), and felony vandalism (former § 594, subd. (b)(1)).

The jury found true the special circumstance allegations that six of the murders were committed while defendant was engaged in the commission or attempted commission of a burglary (§ 190.2, subd. (a)(17)(vii), now § 190.2, subd. (a)(17)(G)), and that defendant was convicted of at least one crime of first degree murder and one or more crimes of first or second degree murder. (§ 190.2, subd. (a)(3)).

The jury also found true the allegations that all five counts of attempted murder were willful, deliberate, and premeditated (§ 664, subd. (f)), the allegations pertaining to all counts of murder and attempted murder that defendant personally used a firearm (§§ 1203.06, 12022.5, subd. (a)), and the allegations regarding defendant’s personal infliction of great bodily injury on Scott, Townsley (§§ 12022.7, 1203.075), and Black (§ 12022.7). Following the penalty phase of the trial, the jury returned a verdict of death.

The trial court denied defendant’s motion for a new trial (§ 1181), and the automatic application for modification of the verdict (§ 190.4, subd. (e)). The court entered a judgment of death and also imposed sentence on the noncapital offenses. This appeal is automatic. (Cal. Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. Factual Background A. Guilt phase evidence 1. Prosecution evidence a.

Summary In 1984, while employed at Electromagnetic Systems Laboratory (ESL) in Sunnyvale as a computer technician, defendant became obsessed with coemployee Laura Black. His unwelcome pursuit of Black, and his belligerent and threatening responses to ESL’s attempts to stop his harassment of her, led to his termination from ESL in 1986. He continued stalking and harassing Black, and threatened violence against others. In 1988, Black obtained a temporary restraining order (TRO) against defendant.

During the approximately two-week period between the issuance of the TRO and the date scheduled for a hearing regarding a permanent injunction, defendant purchased a semiautomatic shotgun and large amounts of ammunition, visited shooting ranges to practice, and put his affairs in order. On February 16, 1988, the day before the scheduled court hearing, he went to the ESL facility where he had worked, shot and killed seven people, and wounded four others, including Black.

At trial, defendant conceded responsibility for the seven deaths, but claimed the shootings were not premeditated, and that defendant “did not go to ESL to injure people or to destroy anything.” b. Events prior to February 16, 1988 Laura Black testified concerning defendant’s efforts to establish a personal relationship with her. She recalled that they met in the spring of 1984. Soon thereafter, defendant invited her to socialize with him, but she declined.

Defendant continued to extend social invitations to her without success, to call her on the telephone, to leave her gifts, and to attend her aerobics classes and company softball games. Black testified that she changed her residence three times between July 1985 and February 1988, but defendant obtained her new address each time, and surreptitiously obtained a key to one of these residences. Between the fall of 1984 and February 1988, she received approximately 150 to 200 letters from defendant, including two letters he sent to her parents’ home in Virginia where she was visiting in December 1984.

She had not provided him with her parents’ address. Various employees of ESL attempted to stop defendant’s harassment of Black, and defendant reacted either defiantly or by threatening to commit violent acts. Jean Tuffley, who was employed in ESL’s human resources department, testified that she met with defendant in October 1985 regarding Black’s complaints of harassment. Defendant agreed at the meeting to cease sending letters and gifts to Black, following Black home, and using her computer terminal, but in December 1985 he again wrote to Black, threatening to visit her and her roommate.

Tuffley testified that she and defendant’s supervisor, Charles Lindauer, met with defendant in December 1985 and January 1986, and ESL issued defendant a written warning after each meeting. After the January 1986 meeting with Tuffley and Lindauer, defendant confronted Black at her residence’s parking lot. Black testified that defendant mentioned guns, told her he no longer was going to ask Black what to do and said he was going to tell her what to do.

Black further testified that the weekend after this encounter, she received a letter from defendant stating he would not kill her, but referencing “a whole range of options, each getting worse and worse.” The letter warned, “I do own guns and I’m good with them,” and asked her not to “push” him.

It indicated that if neither of them yielded, “pretty soon I crack under the pressure and run amok destroying everything in my path until the police catch me and kill me.” It also stated, “You know I’m serious when I show you a letter like this.” In mid-February 1986, Tuffley testified, defendant stopped by her office and told her that ESL had no right to control his relationships with other individuals. Tuffley responded that sexual harassment is illegal, and that if defendant did not leave Black alone, his conduct would lead to his termination.

Tuffley testified that defendant calmly said, “if we terminated him . . . he’d have nothing to live for, and that he had guns and he wasn’t afraid to use them, and ... it would be over for him and he’d take people with him.” Tuffley asked, “Rich, are you saying that you would kill me?” Defendant said, “Yes, but I would take others too.” Tuffley spoke to her supervisor, John Allen about her meeting with defendant and her fear of what he might do. Thereafter, Tuffley explained, she did not interact with defendant; instead, Allen communicated directly with defendant.

In late February or March 1986, Evor Vattuone, an ESL laboratory manager, met with defendant at defendant’s request. Vattuone testified that defendant was concerned about the possibility that Black would obtain a restraining order. Vattuone told defendant he understood defendant had been bothering Black, and it would be good if defendant stopped. Defendant told Vattuone he had every right to see Black anywhere, and described following Black home, driving by her home, and attending her softball games.

Vattuone told defendant this conduct was jeopardizing his job, and that Black was on “the verge of getting a restraining order.” Defendant said he would be very upset if he received a restraining order, and did not know how he would respond.

Vattuone testified that he asked defendant what he meant, and defendant said, “he had guns and he wasn’t afraid to use them.” Vattuone understood that defendant was telling him he was ready to use guns, and he was going to get his own way “no matter what.” In March or April of 1986, Lloyd Bass, defendant’s supervisor at ESL, told Dennis Elliott, defendant’s former supervisor at ESL, that Bass had a problem with defendant leaving his work area and “chasing some girl.” Elliott testified that Bass asked him to speak to defendant.

A few days later, Elliott told defendant he had learned that the human relations department was involved in a situation in which defendant was “ ‘hassling’ a girl over at [ESL building] M-5 during working hours.” Elliott told defendant that “it could cost him his job, it could cost him his clearances .... He needed to be at his duty station and he should just do his job.” Elliott testified that defendant was “really angry” and claimed, “I don’t care. They can’t hurt me. I’m not afraid of them.” On May 2, 1986, ESL terminated defendant’s employment, effective immediately.

Following his termination, defendant continued to write and place telephone calls to Black and to attend Black’s softball games and aerobic classes, and he frequently was seen in or near the ESL parking lot. At the end of the summer or early fall of 1986, defendant began dating Mei Chang, but he continued to harass Black. On July 10, 1987, he wrote to Black, warning her not to obtain a restraining order.

His letter stated, “It might not really occur to you how far I’m willing to go to upset you if I decide that’s what I’m forced to do.” In early October 1987, he wrote to Black, “I’ve nothing else to lose now but my life, so don’t try pushing me any further.” In November 1987, Thomas Burch, a longtime friend who had worked with defendant at ESL, spoke with him. Burch testified that defendant was upset and worried, but not depressed. Defendant told Burch that he owed the Internal Revenue Service (IRS) between $25,000 and $30,000 and that the IRS was about to attach his wages.

He also said that if the IRS was not willing to “give him some slack, that he didn’t have anything or he didn’t have much to live for.” Defendant brought up the shooting massacre at a McDonald’s restaurant in San Ysidro, and said, “I wonder what they would do or what they would think if I did something like that.” Burch interpreted “they” to mean ESL, and did not take defendant seriously.

That same month, defendant wrote to Black, warning, “This is going to escalate,” because, he believed, she thought he was “a joke.” He advised her not to show his letters to anyone, because they might “do something stupid which would make me do something stupid and it would spiral beyond any hope of recovery.” In December 1987, he asked in a letter to Black, “[D]o you believe I can make you pay attention to me?” That same month, the topic of “shoot[ing] up” ESL was discussed during a conversation defendant had at a delicatessen with Gerald Hirst and homicide victim Lawrence Kane.

Hirst believed he was being forced to resign from ESL, and the three men discussed ESL’s management practices. Hirst testified that defendant inquired whether “his girlfriend” Black was still at ESL and where her office was located, and Kane provided him with directions.

The conversation returned to ESL’s management, and Hirst said, “What’s it going to take to wake them up, some madman to come in there to shoot the computers, shoot the place up?” Hirst testified that as he left the table to get more coffee, he heard defendant say, “I might do it.” When Hirst returned, Kane asked him whether the glass in the ESL Mardex security doors was bulletproof. Hirst said he did not think so. Defendant said, “Then double-aught buck would take care of that glass, wouldn’t it?” Hirst agreed.

According to Hirst, the three of them “fantasized and laughed and joked, about how funny it might be to go in [to] the company and shoot up the equipment.” Hirst was interested in investigating job opportunities at defendant’s current employer, and gave defendant directions to his office at ESL. In January 1988, ESL employee Robert Peterson confronted defendant, who was parked outside of ESL, and asked him to stop harassing Black.

Peterson testified that he told defendant something to the effect, “If you continue doing this, you may have to go to jail.” Defendant responded that Peterson was “only making things worse.” On January 23, 1988, approximately three weeks before the attacks, Black received a letter from defendant describing his encounter with Peterson and instructing her, “You’d better tell him to mind his own business. ...[][] He doesn’t have any idea what he’s getting into. You’d better tell him, I’d better never see any police around me.” On February 2 or 3, 1988, Black obtained a TRO against defendant.

The hearing regarding a permanent injunction was scheduled for February 17, 1988, the day after the crimes were committed. Black also sought $1,000 in attorney fees. Black’s attorney, Mary Bird, and Bird’s receptionist and office manager, Ruth Day, testified that on or about February 9, defendant delivered a letter to Bird, claiming that, contrary to the declaration supporting the TRO, he had a relationship with Black. He claimed to possess proof of this relationship, such as photographs of Black and defendant on dates, a garage door opener to Black’s house, and hotel and credit card receipts.

On February 10, 1988, Bird prepared a notice in lieu of subpoena, requiring defendant to bring these items to court on February 17. In the meantime, defendant visited Bighorn Sporting Goods and asked Frank Janik, the store manager, to see something with “high-capacity fire power.” Janik further testified that approximately one week later, on February 11, defendant returned to the store and purchased a Benelli riot configuration semiautomatic shotgun and ammunition. He paid by check, which later was returned for insufficient funds. According to Janik, defendant was “very calm” when he purchased the weapon.

The same day, according to David Walker of Target Masters West, defendant rented a shooting lane at the shooting range, requested six silhouette or “man-shaped” targets, and purchased 13 boxes of shotgun and pistol ammunition. Walker further testified that the next day, defendant purchased 1,000 rounds of .357 magnum handgun ammunition, one box of nine-millimeter hollow-point handgun ammunition, and three boxes of .380 hollow-point handgun ammunition.

Approximately one week before the commission of the crimes, defendant spoke to Carolyn Gagnon, a secretary for Father Rewak, the president of Santa Clara University, where Black was enrolled. Gagnon testified that defendant provided his name, and insisted upon seeing Father Rewak. Gagnon told defendant that Father Rewak was not in, and asked him whether he wished to leave a message. Defendant declined, stating it did not matter anyway, because Father Rewak was always going to remember his name. Gagnon testified that defendant was cocky when he said this, and displayed a sarcastic smile.

Anthony Thurman of Homes Away From Home testified that on February 12, four days before the commission of the crimes, defendant visited the business and discussed renting a motor home. Defendant returned that afternoon to fill out rental forms. Catherine Mary Evangelista, the personnel supervisor for defendant’s employer, Covalent, testified that, also on February 12, defendant eliminated Black as a beneficiary of two life insurance policies, and made Mei Chang the sole beneficiary. Defendant was adamant the change had to be completed that day.

Chang testified that very shortly before defendant was arrested, she and defendant rented a storage locker in Chang’s name. Defendant and a friend, Jerome Kaercher, moved some of defendant’s belongings to a storage locker on either February 14 or 15. Kaercher testified that defendant “seemed extremely happy.” That same weekend, defendant moved belongings from the home of Lora Glaser, a former rental property that he had vacated in October 1987.

Glaser testified that defendant seemed “upbeat, busy, productive, like he was getting something done.” On February 15, defendant was seen by off-duty Santa Clara County Deputy Sheriff Larry Imas at the Santa Clara County public shooting range, where Imas was employed on a part-time basis. Imas testified that defendant asked to purchase .22-250 ammunition, but there was none in stock. The same day, defendant completed the paperwork for the motor home he had rented, and took possession of it. Thurman testified that defendant did not behave out of the ordinary on this last visit to Homes Away From Home.

He also testified that defendant’s check for the rental subsequently was returned for insufficient funds. San Jose State University Professor John Avila, Jr., testified that on the evening of February 15, defendant told him that he was going to Southern California and would not be in class on Wednesday, February 17. c. Events on February 16, 1988 On Tuesday February 16, 1988, at approximately 8:00 a.m., defendant entered the accounting department of Covalent and asked for his paycheck. Linda Emerson, the accounting manager, testified she told defendant the checks would be available at 10:00 a.m.

When defendant was asked why he needed his check at 8:00 in the morning, he replied that “he had to go buy a gun.” Early in the afternoon, defendant visited the Santa Clara County public shooting range. Imas testified that he mentioned to the range owner and the supplier that defendant had been looking for .22-250 ammunition, and defendant showed them he had since acquired several boxes of the ammunition. About 2:50 p.m., defendant arrived in the Coachman motor home at ESL’s offices in Sunnyvale.

He walked to ESL’s two-story M-5 building with a shotgun in his hands, rifles strapped over his body, and approximately four bandoliers of ammunition strapped to his body. He shot and killed ESL employee Lawrence Kane in the parking lot. He then fired at Randell Hemingway, who safely ducked behind his car door. Defendant shattered glass in the Mardex security doors to M-5 by firing one of his weapons. Inside the building, he shot and killed six persons and wounded four others, including Black.

The precise sequence of events is unclear, but the evidence established that defendant generally walked slowly and deliberately through the building, shooting his victims at various locations in the facility. In addition to committing these assaults, defendant fired at computer equipment and parts of the building. The first report of the incident to a 911 operator was received at 2:53 p.m. At approximately 3:15 p.m., a man identifying himself as Richard Farley placed a call on an inside emergency telephone line.

He told Robert Mancebo, an ESL security hardware repairperson, “Pm the one who has been wasting all these people.” Mancebo testified that defendant also said he was calling “to let us know why he was doing it, and that he wanted a recorder” so there would be a permanent record. Defendant said he was “doing it . . . because of Laura Black and because of her lawyer and what they were doing.” Mancebo asked if defendant was going to kill anyone else, and he said no, he was “just shooting up equipment.” Defendant terminated the call, but placed a second call on ESL’s emergency telephone line a few minutes later.

He wanted to talk to the police, but no officers were in the security room at that time. Mancebo and defendant had one or two more separate telephone conversations. During the last call, Mancebo could think of nothing else to say, so he handed the telephone to ESL security officer Devin Matlock. Defendant told Matlock that he had told Black he would do something like this if her attorney obtained a restraining order. Defendant also said he had a high-powered rifle, and that Matlock should keep people 300 yards from the building.

Matlock testified defendant did not sound depressed or agitated, but seemed as if he was anticipating that something interesting would be happening. At approximately 3:20 p.m., facilities engineering manager John Kitching received a call on an ESL emergency telephone line from a man who identified himself as “Rich.” The caller said, “Tell Mei Chang I’m sorry. I just got Laura.” He also said, “Eve got plenty of ammunition. It will all be over at 5 o’clock.” At approximately 3:30 p.m., Captain Albert Scott of the Sunnyvale Department of Public Safety spoke to defendant.

Defendant seemed to him to be a “little bit excited.” When Scott asked defendant whether he had killed anyone, defendant said he had shot three or four individuals on the top floor but did not know how many were dead. Defendant also said that Black had gone too far and that he had “done this” to make a point. He said she had belittled him, and he was getting even. At one point, Scott asked whether defendant would surrender his guns and come down, and defendant said, “No, Em not ready yet.

I want to gloat a little bit.” At approximately 3:35 p.m., a caller who identified himself as “Rich” told ESL telephone installer Robert Costanzo, who was assisting in answering the telephones, that he had an assault rifle, a shotgun, and some handguns, and enough ammunition—if he fired continuously—to last for two hours. According to Costanzo, the caller was very clear and calm. During one of defendant’s telephone conversations on the afternoon of February 16, Linda Walden, defendant’s longtime friend and former landlady, who also worked at ESL, was hiding under the desk at which defendant was standing.

Defendant pulled out the chair, and said, “Oh, there’s someone here. You can come out now. Oh, it’s Linda.” When she emerged, he calmly told her she could leave. Christine Hansen, who was hiding nearby, assumed it was the police evacuating the building. She left her hiding place and encountered defendant. She asked, “Can I go, too?” Defendant said, “Yes, you can go.” Hansen testified that defendant’s tone was “regular,” and he was not angry or crying.

Lieutenant Ruben Grijalva of the Sunnyvale Department of Public Safety, an expert in hostage negotiations, negotiated by telephone with defendant from approximately 3:30 p.m. until he agreed to surrender at approximately 8:30 p.m. Defendant terminated the telephone communication with Grijalva several times to prevent the police from tracing the call. The initial portion of the negotiations was not recorded, but Grijalva took notes. According to Grijalva, in the initial conversations defendant was “quite excited,” but his voice was not incoherent or slurred.

After approximately 30 to 45 minutes, “his demeanor was much more calm, much more deliberate . . . .” Defendant asked Grijalva to tell Black that her attorney and Bob Peterson had given her bad advice, and that “he was sorry that they weren’t there, too.” Defendant told Grijalva that he was due to appear in court the next day, that Black had filed a lawsuit against him, and that all he wanted to do was date her.

According to defendant, “Had she gone out with him one time, none of this would have happened.” He said he had gone to the second floor and shot Black, and he wanted her to live and to remember what had occurred.

He said “he knew what he had done was wrong and that he had to die because of it.” He constantly spoke of killing himself, or having the police kill him, but expressed fear the police only would wound him, and “he didn’t want to suffer.” Grijalva testified defendant “indicated that he was real good with guns” and “had several pistols and a high powered rifle and a shotgun with him.” When defendant mentioned target shooting, Grijalva inquired whether he was interested in hunting. Defendant replied, “I’d rather kill people than animals.

It’s not sporting to shoot animals.” When Grijalva asked how many individuals had been shot, defendant said there were “three or four lying around the first floor and that everybody on the second floor was dead.” Defendant said he was “not crazy and that he knew what he had done but he had to do it, he had to make a point.” He told Grijalva that he almost changed his mind when he arrived at the parking lot, but that “it had to be done and he didn’t want Laura Black to think that he was a wimp.” He told Grijalva he had thought about doing this when he first received a notice to appear in court.

Defendant asked Grijalva to tell his mother and father he was sorry. He stated he was not sorry he had shot these victims; the only thing he was sorry about was shooting Black, because he wanted her to live and remember what had happened. He also was sorry that “Chuck” (Lindauer), who had terminated defendant’s employment, was not there. Defendant told Grijalva that he did not plan to leave ESL alive, and had changed the beneficiary on his life insurance from Black to Mei Chang.

Defendant said he had rented the motor home with a bad check and “thought that was kind of funny.” He also told Grijalva that he had brought approximately 1,000 rounds of ammunition and gasoline in the motor home “to blow up ESL,” but that when he arrived, he could not carry everything. At approximately 4:30 p.m., defendant agreed to allow officers to enter the first floor of building M-5 to rescue injured individuals. At some point thereafter, Grijalva’s negotiating team obtained a tape recorder and recorded the remainder of the negotiations until defendant surrendered. This recording was played for the jury.

Defendant declared, “[Tjhere’s no more reason to harm anybody. Eve run out of enthusiasm for things really.” Defendant stated that he “shot up a lot of terminals; I guess it’s better than shooting people, . . . ’cause it punishes ESL at the same time. ... I need to get back at somebody, basically.” Defendant said that he told Peterson “he would just cause a lot of trouble . . . and cause Laura to do things . . . she would regret; and this kind of stuff ’cause I tried telling her that, you know, I wouldn’t take this. She got me fired and, ...

I wasn’t going to let her do anything more to me, really.” Defendant told Grijalva, “I never really wanted to hurt her.

I just wanted her to know that I was serious and, as I say, if we just could’ve talked, and we hadn’t got this court thing and she didn’t try to sue me for $1,000—and then this last letter, you know, that says bring all this stuff: it was just the final straw; I just had it.” Grijalva inquired, “So when you got up today, did you decide today that you wanted to hurt her?” Defendant responded, “I didn’t decide that I wanted to hurt her until I got that letter in the mail that said, you know, now you’re going to bring this evidence and now we’re really going to, you know—I took it as a real threat, where I was [in] real serious trouble now.

So until 10 o’clock this . . . morning time, I really hadn’t given any thought to hurting her.” Grijalva asked, “When you came down here this afternoon, . . . did you have anybody in mind that you wanted to shoot or just because they were a threat to you?” Defendant said, “They were a threat to me; I wanted to destroy a lot of equipment at ESL. ...

I came down to destroy, do as much damage to ESL equipment as I could.” Grijalva asked, “And you didn’t intend or plan on shooting any persons?” Defendant said, “Yeah, some people popped out from around comers and stuff like that, um, and I just shot.” Grijalva continued, “Was there anything in particular that you wanted to destroy here at ESL?” Defendant responded, “No, I just want Laura to know I was serious. ... I wanted to do as much damage to their computer equipment and just cause them a lot of money loss.” He later noted, “I’m tired of shooting equipment and I’m tired of shooting terminals.

They just explode, spread glass on me. It’s not any fun anymore.” Grijalva asked defendant about the victims, inquiring, “Other than Laura, do you know any of the people you shot today?” Defendant responded, “No.” Grijalva asked, “So you don’t even know them personally?” Defendant confirmed, “I don’t know them personally, no. In fact, I have no idea who half of them were. ... [f] ... [I] I have to tell you, though, that if I’d recognized Peterson, I think I would have shot him, realistically. Because I was pissed at him.

I mean, him and [Black’s attorney], ... if they had come into my sights, I would have got them.” Defendant described how he “went up to Laura’s office, yeah, and then she tried to shove the door thing, so I fired around . . . through the door. And then . . . she fell against it.” Defendant asked whether Black had survived. When Grijalva said he did not know, defendant responded, “I hope she’s doing good. . . . [I]f the slug did catch her, or the whatever it was that I hit her with, she can’t regret it if she doesn’t live.

And that was . . . my feelings at the time.” During his conversations with Grijalva, defendant never expressed any remorse for the seven individuals killed. At approximately 8:30 p.m., defendant surrendered to the police after requesting and receiving the promise of a sandwich and a soft drink. Toxicology analysis of his blood did not show the presence of either alcohol or drugs.

Inside M-5, the police discovered a Benelli riot configuration semiautomatic shotgun, a rifle with a scope, a pump-action shotgun, a Sentinel revolver, a Smith & Wesson .357 magnum revolver, a Browning semiautomatic pistol, a Smith & Wesson pistol, a smoke bomb, a leather glove, a belt with pouches filled with ammunition, other bags containing more than 200 rounds of ammunition, and a vest containing more than 800 rounds of ammunition, wooden matches, a foot-long buck knife and sheath, and ear protectors.

A search of the motor home found in the ESL parking lot disclosed four gallons of gasoline, a loaded semiautomatic pistol, and more than 2,000 rounds of ammunition. A search of defendant’s residence revealed a Mossberg 12-gauge shotgun barrel, a Ruger .22-caliber carbine, a gun clip, a gas mask, ammunition and empty boxes of ammunition, a reloading press, three cans of gunpowder, and gun-cleaning equipment. Various documents— including the TRO, the notice in lieu of subpoena, and the motor home rental agreement, were on the dining room table. Defendant’s will was in plain view on top of a computer terminal.

On February 23, 1988, defendant said to another prisoner, “I think they should be lenient since it’s my first offense.” After the other prisoner made a comment, defendant replied, “If I did it again, then they should throw the book at me.” The tone was conversational, and not joking or agitated. In March 1988, defendant wrote to Black, “When I go to the gas chamber, I’ll smile for the cameras and you’ll know that you’ll have won in the end.” In April 1988, he wrote to Chrysler Credit Corporation, “I’m in jail and will no longer be able to make payments.

FU] I would like the previous bank to know, its harassing letters and failure to allow me to purchase the car were contributing factors to the death of seven innocent people.” It was signed, “Rich Farley [f] mass murderer.” On March 11, 1989, defendant wrote to his friend Tom Burch, “I’m glad Laura’s ok. ... I hope she understands if I’d really wanted to hurt her—she wouldn’t be here today.” 2. Defense evidence a. Defendant’s testimony Defendant was bom on July 25, 1948, at Lackland Air Force Base in Texas. His father was an aircraft mechanic in the Air Force, and his mother was a homemaker.

The family moved frequently before settling in Petaluma when he was seven or eight years of age. He graduated from high school and attended one year of junior college. He then enlisted in the Navy in 1967, and served for 10 years. He worked in cryptologic technician maintenance, which involved working with classified electronic systems, and traveled extensively. In October 1977, upon his discharge from the Navy, he began working for ESL. Initially he was employed at the Sunnyvale facility, and then worked as a field service engineer for five years in Australia. He returned to the Sunnyvale facility in 1984.

In the middle of July 1984, defendant met Laura Black and “fell instantly in love with her.” Approximately one month later, Black agreed to go to lunch with defendant and his friend Burch. That lunch was defendant’s and Black’s sole social outing. Defendant described the steps he took to surreptitiously learn Black’s birthday, home address, academic background, residence address, the addresses of her relatives, and her schedule, and how he obtained copies of her office, desk, and residence keys. At the time defendant was obtaining information about Black, he did not believe his actions were wrong.

He explained that the environments in which he had worked fostered an attitude that gathering information was not wrong. In the Navy and at ESL, he was granted security clearances, and his access to information gave him a feeling of power. His work in the Navy and in Australia involved spying, and he saw no difference between the government’s authority to spy and his ability to spy, so “long as ... I didn’t harm anybody.” He developed a sense that, with secret information, “I can, in essence, get away with things that normal people wouldn’t be able to get away with. ...

In other words, we go into like a[n] elite society.” Defendant testified concerning his attempts to socialize with Black, and her rejection of him. He testified he made his letters more threatening so that Black would speak to him, but “[a]s I read the letters now, they seem much more intimidating and much more threatening than what I really intended them to be at the time that I wrote them.” Defendant contradicted the testimony of many other witnesses.

He denied telling human resources employee Jean Tuffley that if he was terminated he would have nothing to live for, that he had guns and knew how to use them, or that he would take people with him. He claimed he did not threaten Tuffley and others. He asserted he did not tell laboratory manager Evor Vattuone that he had guns and was not afraid to use them. According to defendant, he and Vattuone had spoken about defendant’s losing his job, not about restraining orders. He denied that he and Dennis Elliott discussed Laura Black, and denied that Elliott told him that he could lose his job and his clearances.

He asserted he was not angry when ESL terminated him, did not know Gerald Hirst, and did not make a reference to the San Ysidro McDonald’s massacre when speaking with Tom Burch. He also claimed he was not angry when he received the TRO, although he was annoyed by the request for $1,000 and by the term in the restraining order prohibiting him from going to the fitness center to which Black and defendant belonged. He denied speaking to Carolyn Gagnon or attempting to see the president of Santa Clara University.

He also asserted he did not attempt to get his paycheck early on February 16 and did not tell Linda Emerson, the accounting manager, that he needed his check so he could buy a gun. Defendant also testified concerning some of his activities in the days preceding the commission of the crimes. He sold his Suburban truck on Thursday February 11, placing a sale advertisement the Monday or Tuesday prior to that date. He claimed he did not visit the Bighorn Sporting Goods store until February 11 and went there to look at paintball shooters.

He purchased the Benelli shotgun because “it happened to be there” and because he liked and wanted it. He explained that he moved two guns from a former residence the weekend before committing the crimes, because he wanted to display his gun collection to Black. He stated he bought the ammunition vest a day or so before committing the crimes. Defendant testified he went to ESL on February 16 to convince Black not to proceed with her legal action against him.

He stated he also planned to intimidate Black into entering the motor home and to take photographs of her to demonstrate at the court hearing that he and Black had a personal relationship. He also wanted to show his sizeable gun collection to Black in order to convince her not to appear in court the next day. Defendant agreed with the prosecutor that he wanted Black to believe he would kill persons at ESL if she went through with obtaining the restraining order.

Defendant added, however, that his planned demonstration was “just all bluff.” He claimed that if none of his plans worked, he planned to kill himself in front of Black. Defendant testified that after he arrived at ESL, he loaded ammunition in an ammunition vest “to keep myself busy.” He stated that he put bolstered guns, clip boxes, ammunition pouches, and a knife on his belt because he was bored.

Consequently, he testified, he was wearing his “.380 in front, the ammo pouch in front, .357 magnum to my right side, the .22 magnum behind it, a large buck knife behind that, numerous clips around the other side, and my vest, my nine millimeter, my two shotguns, and I tied a cord around the .22-250 and just draped it over me.” He recalled that he then put on his left leather glove and earplugs.

At this point he did not believe he could go through with talking to Black or taking photographs of her, because that was “not the kind of behavior that I had ever done before,” and he agreed with the prosecutor that “it was tougher to take the pictures than to kill myself.” He testified that he decided instead to go to Black’s office and commit suicide in front of her. He claimed that, other than shooting the front door to gain entrance to ESL’s facility, he did not intend to do any damage to ESL or to shoot anyone but himself. Defendant had a vague recollection of the ensuing events.

He recalled that in the parking lot, he saw “somebody behind me with his arm raised, and I remember the gun going off once or twice.” He remembered shooting through the Mardex doors. He testified that someone rushed by him and then turned around to come back at him, and he recalled firing repeatedly and the person disappearing. He next remembered being on the landing and becoming aware of someone at the bottom of the stairs. Defendant recalled shooting, adding: “The only thing I’m thinking is to get to Laura’s office. These people pop up and I just shoot.” Defendant next remembered being at Black’s office.

He recalled that her back was to him, and she turned around smiling, but the smile disappeared “as soon as she saw me.” Defendant testified he was stunned by the smile, and as he looked at the smile, the gun went off. He “distinctly remember[ed] not having any idea how the thing went off.” He testified that the door closed in his face. Defendant’s recall of the ensuing events was fragmented and lacked chronological order. He testified that at some point he watched an armed person walking down the hallway, who apparently was himself.

He remembered shooting a door lock, but was not aware of anyone being behind the door. He remembered seeing Linda Walden, his former landlady. He testified that he told her to come out from under the desk, and that she asked whether there was something she could do for him. He told her “no, to get out,” which she did. He recalled that another woman asked whether she also could go, and “I told her she could.” He testified that he felt he had to move from telephone to telephone because he did not want his calls traced to his location. Defendant testified he did not know any of the victims except Black.

He did not remember shooting any equipment, but did remember seeing that the equipment was damaged. There was, however, no doubt in his mind at trial that he shot the individuals killed on February 16, 1988, and damaged the equipment. Defendant did not recall many of the unrecorded statements he made while he was inside the M-5 building. With respect to his recorded statement, defendant testified that he repeatedly lied to Grijalva regarding why he went to ESL, in order to avoid being placed in a mental institution.

He expressed confusion concerning why he made some incriminating remarks during the recorded statement and gave benign explanations for others. He testified he was not angry at ESL and never wanted to hurt Black. b. Expert testimony Dr. Charles Raymond Marmar, a psychiatrist and associate professor at the University of California at San Francisco Medical Center, testified for the defense as an expert on the role of stress in dissociative disorders. He did not examine or test defendant, and expressed no opinion regarding defendant’s mental state.

Marmar testified that “peritraumatic trans disassociation” refers to disassociation occurring at the time a stressful or traumatic event is taking place.

He explained that such dissociative experiences have some or all of the following features: (1) blanking out, or feeling unconnected with the experience, (2) going on “auto-pilot,” rather than performing “consciously decided willful acts”; (3) experiencing an altered sense of the passage of time; (4) depersonalizing the experience so that it appears to be happening to someone else; (5) feeling outside one’s own body and watching oneself from the outside; (6) perceiving a visual change in one’s own body or the physical world; (7) experiencing confusion about what is happening to other individuals and to oneself, for example thinking when a family member is injured that oneself is the person injured; (8) experiencing psychological amnesia, or not remembering all or parts of the experience; and (9) not feeling physical pain from an injury at the time of the trauma.

According to Marmar, “[T]he single most important factor that leads people to disassociation is a highly stressful or traumatic life experience.” He explained that “the person is faced with catastrophic consequences to themselves and others at the time of the event and . . . [the person’s] mind cannot comprehend and fully accept what’s happening to them.” He testified that a decision to kill oneself can result in such disassociation.

He further testified that although struggling with a combination of chronic financial, emotional, and legal stresses generally would not result in disassociation, such struggles might “weaken the person and leave them vulnerable to disassociation.” According to Marmar, a person in a dissociative state may not appear bizarre or psychotic, but may seem merely spaced out, a little confused, or highly preoccupied. Marmar explained that the veracity of a person’s reported experience of disassociation may be evaluated through interviews with family and friends, as well as through various tests. 3.

Rebuttal evidence Mark McGinnis testified that on February 11, 1988, he purchased a 1984 Suburban diesel truck from defendant. According to McGinnis, the asking price of $5,000 was “about twenty-five percent of its value.” McGinnis looked at the truck, which needed the transmission repaired, and purchased it for $4,500. McGinnis testified that defendant was nervous and fidgety. McGinnis drove the truck for more than two years in conjunction with his business, and then sold it for $9,000. Richard Newbold testified that he worked with Jean Tuffiey for at least five or six years.

At some point in the one to three months before Newbold left ESL in mid-April 1986, Tuffiey told Newbold that defendant had threatened to kill her. Newbold described Tuffiey as “very distraught.” According to Newbold, Tuffiey was “a pretty level-headed person,” and he had not seen her like that previously. Peri Vattuone was married to Evor Vattuone. She testified that at some point in early 1986, Evor came home from work upset. He said he had just had a long conversation with defendant, who had said things that scared him.

Peri testified that one such statement was that defendant possessed guns and knew how to use them, or something to that effect. B. Penalty phase 1. Prosecution evidence The prosecution did not present any additional evidence. 2. Defense evidence a. From relatives and friends Mina Belle Farley, defendant’s mother, testified that she married defendant’s father in 1947, and they remained married at the time of trial. Defendant’s father was an airplane mechanic in the Air Force. They had six children, of whom defendant was the eldest.

The family moved frequently, but when defendant was about seven years of age, they settled in Petaluma. His mother described him as a very quiet boy who required little attention from his parents. In high school he was quiet, and did not smoke, drink, or use drugs. His mother testified that he spent much of his time studying, and also played table tennis and chess, enjoyed photography, and baked. His high school grades were “very good,” and he graduated 61st out of 520 high school students.

Mina Farley testified that defendant’s father spent long periods of time away from the family while he was in the Air Force, but when he was home, he would spend time with the children. She stated that he retired from the Air Force in 1960, and then worked as a school custodian, spending little time with defendant because of his work schedule. According to her, there was much love in the house, but the family displayed little outward affection. Mina Farley testified that she did not see defendant often after he joined the Navy. In 1973, she and her husband moved to Texas, where they resided at the time of trial.

She recalled that defendant visited them in Texas twice between 1973 and 1988, and that the most recent occasion on which she had seen defendant prior to February 16, 1988, was in 1986 or 1987, while she was visiting her daughter. Defendant’s mother also recalled that when defendant was 10 years of age, he helped care for his younger siblings while she was in the hospital and his father was stationed in Japan. She testified that defendant did not have a bad temper, nor did she ever see him act violently toward his siblings.

She stated she was shocked when she heard about the ESL shootings, “[bjecause that wasn’t Rick.” She testified she loved him and was proud of the fact that he tried to obtain an education, did not “run around,” and did not smoke, consume alcohol, or use illegal drugs. Gregory Farley, defendant’s brother, testified that defendant was nonviolent while growing up. He recalled that when defendant was about 10 years of age, and Gregory was six years of age, Gregory, who could not swim, fell into a swimming pool and defendant rescued him.

He also recalled that defendant helped him learn to drive, and sold him a vehicle at a very low price. Defendant’s brother described defendant as someone from whom he could seek advice, although he could not recall any specific occasion on which he had done so. Defendant’s brother had resided in Germany since 1972, and at the time defendant was arrested he had not seen defendant in 16 years. The brother also stated they never wrote to each other or spoke by telephone.

He agreed that he “probably” did not know defendant at all as an adult, and that the person he knew as a child was “totally different” from a person who would commit these crimes. Lois Eaquinto resided on the same street in Petaluma as defendant when he was growing up, and was close to his mother. She testified that defendant’s home was well kept. She stated that defendant’s brothers, but not defendant, joined her boys in attending church services. She also stated that defendant’s father was absent in the military much of the time, and she could not recall ever having had a conversation with him.

According to Eaquinto, when defendant’s father was home “everything revolved around him,” and defendant and his brothers did not play with Eaquinto’s boys during those periods. Eaquinto witnessed little interaction between defendant and his parents, and little reaction by the parents to their children’s accomplishments. She also testified that defendant sometimes was “real rough” with his brothers, sitting on them and twisting their arms and stepping on their fingers. Lois’s son, Francis Eaquinto, was the same age as defendant, and they played and attended school together.

Francis testified that defendant was the smarter of the two, was more interested in math and science, and was conscientious about his schoolwork. He recalled that defendant’s father was strict, but Francis felt welcome at defendant’s house when the father was home. Francis had not seen defendant since graduating from high school. George Duisman grew up on the same street as defendant, and was defendant’s best friend when they were teenagers. He testified they played table tennis, chess, and bridge, and enjoyed chemistry and math. According to Duisman, defendant did well in school and was not violent.

Thomas Vail met defendant when defendant was a teenager. Vail testified that defendant was well mannered and had a curious mind. He stated that defendant and Duisman studied bridge, and that defendant was not violent. Dianne Mahan had at least one class with defendant in high school. She testified that they were not friends socially, and that defendant was quiet and studious. In defendant’s senior year of high school, Paula Stonitsch taught his class in American institutions. Stonitsch testified that although he received a “C” in her class, he was a very good student. b.

Defendant’s service in the Navy Joseph Armas, an expert in the

interpretation of military service records and performance evaluations, testified regarding defendant’s military record. According to Armas, several tests were administered to defendant during his first three weeks in the Navy. He performed well on the General Classification Test and on tests for mechanical abilities, “electric selection,” clerical abilities, arithmetic, sonar, and programming aptitude, but did not do well on the foreign language aptitude test. Defendant volunteered for submarine duty, and after taking extensive psychological and agility tests, was recommended for that duty.

He graduated first in his class of six at Naval Submarine School, but did not remain in the submarine program, apparently withdrawing voluntarily. Defendant received high evaluations during his two enlistment periods (1968 to 1971 and 1971 to 1977) and was honorably discharged at the conclusion of each enlistment period. Kent Wells, a Navy personnel security specialist, testified concerning defendant’s work in the military and at ESL. After finishing basic training, defendant was trained to be a “cryptologic technician”—a person who maintains electronic equipment.

Wells testified that there were three levels of security clearance, the lowest being “confidential,” the middle being “secret,” and the highest being “top-secret.” Because the Navy’s cryptologic function was a highly classified mission, the Office of Naval Intelligence investigated all cryptologic technicians to determine whether they could be granted not only top-secret clearance, but also access to very sensitive “compartmented” information that others with top-secret clearance could access on only a “need to know” basis.

The security clearances received by defendant could be granted only to individuals who were found to be trustworthy, reliable, of unquestioned character, and loyal to the government of the United States. The investigation was repeated every five years to check for intervening disqualifying information. Defendant was granted top-secret clearance and access to sensitive compartmented information in November 1968, and throughout his naval career he performed work that required top-security clearances.

Wells further testified that at the time defendant served in the Naval Security Group, the Group’s national defense mission was to collect certain intelligence information about adversaries and to disseminate that information to the military and to various intelligence agencies. Defendant contributed to the security of the United States by maintaining the Naval Security Group’s equipment, thereby enabling the gathering of information.

Wells agreed with defense counsel that, in this context, defendant was “vital to the national defense,” testifying that much of defendant’s work still was classified at the time of trial. Defendant also maintained equipment that assisted in search and rescue missions for aircraft or ships in distress, and thereby helped to save lives as well as ships and aircraft. c. Defendant’s Work at ESL Defendant began working at ESL in approximately November 1977, and received a top-secret security clearance from the Department of Defense in March 1978.

No background investigation was performed, because defendant had left the Navy so recently, and no subsequent investigation occurred because of funding shortages. Richard Rose, a Department of Defense contracting officer, testified regarding defendant’s work at ESL. ESL specialized in building direction-finding equipment and signal-processing systems for the United States government. Defendant worked in three areas—testing, repair, and preventative and corrective maintenance.

From November 1977 through June 1979, defendant was involved in a project concerning the research and development of direction-finding equipment and its installation on ground vehicles and aircraft. The equipment enabled a military commander to determine the location of enemy communication or radar transmitters, and thereby learn the location and strength of enemy forces. From June 1979 through June 1984, defendant was assigned to the Joint Defense Space Research Facility in Australia.

Rose testified that this facility, which was shared by the United States and Australian governments, provided “valuable contributions to the verification of arms control and disarmament agreements.” Defendant and others provided round-the-clock maintenance of the electronic equipment, including diagnostic and repair functions.

According to Rose, defendant’s contribution “could be considered essential in that he was maintaining equipment that was of a significant value to the defense of the United States.” Rose also testified that according to the Secretary of Defense, all of the projects on which defendant worked were “vital to the national defense,” and disclosure of any of this classified information could, according to the Secretary, result in “ ‘exceptionally grave harm to the national defense and public relations of the United States.’ ” Defendant’s four ESL performance evaluations for this work were 99 percent, 96 percent, 96.5 percent, and 98 percent.

From June 1984 until his termination by ESL in May 1986, defendant’s work involved feasibility studies for the United States National Security Agency. This project analyzed equipment that might be developed, and how it would function. d. Other mitigating evidence Brian Messing, a systems engineer for ESL, worked with defendant in Australia. Messing testified that he considered defendant the best technician at the facility, because he was conscientious about his tasks.

According to Messing, defendant took an active interest in his assignments, and “would go out of his way to learn something else about the system.” Messing testified that defendant assisted Messing on an occasion when Messing’s vehicle ran out of gasoline at night on an isolated stretch of road. Other drivers had passed him by without stopping. Defendant gave him a ride back to the ESL site to obtain gasoline, and then drove him back to his vehicle. Messing also stated that during a conversation on another occasion in Australia, defendant mentioned he owned several guns and a crossbow.

Alcina Sousa knew defendant at San Jose State University. She testified that he always would offer to look at and comment upon computer programs she had written. She also would see him in the hallways helping other students or just being friendly. He did not seem violent to Sousa, but instead very calm. He told Sousa about an incident in which he pulled someone’s vehicle out of the snow with his truck. After defendant’s arrest, Sousa visited him in jail. She testified that much of their conversation was about her life. Stanley Hilberg shared a home with defendant from September 1986 to the end of January 1987.

He testified that defendant was congenial and very responsible. He also testified that defendant had a shotgun in his room. Joseph Nielsen, who was 71 years of age, resided on the same street as defendant in late 1987 and early 1988. Nielsen had spoken to defendant on several occasions, and testified he seemed like a very nice young man. Lynn Clay and Gregory Debord testified that defendant performed well when he was employed at Covalent. Defendant’s responsibilities were undertaken in a timely manner, and he provided needed expertise.

Clay testified that defendant was patient and responsive when dealing with customers. Debord noted that defendant seemed able to control himself. Department of Corrections Assistant Director Robert Conroy and Santa Clara County Deputy Sheriff James Teichner testified that while in jail, defendant was courteous and respectful to officers. Conroy further testified that defendant was allowed to use a calculator and a typewriter, which were special privileges. Defendant wrote Conroy a thank you note for providing these materials—unusual action for an inmate to take.

Teichner, Deputy Sheriff Jeffrey Hunter, Correctional Officer James Darnell, and Correctional Officer Libby Reynolds testified that defendant did not cause any problems for officers when he was transported from jail to court. Darnell further testified that while in jail, defendant was selected to be a trustee. This role required an ability to work independently. During the three months Darnell was assigned to defendant’s housing unit, defendant did a “great job” working as a trustee. Reynolds and Judith Pelite, a teacher who provided jail educational services, testified that defendant studied mathematics.

Pelite, Reynolds, Hunter, and inmate Wayne Nichols testified that defendant tutored other inmates in mathematics. Nichols further testified that defendant was patient and encouraging. 3. Rebuttal evidence The prosecution presented evidence of defendant’s misconduct while in jail. During a May 1990 search of defendant’s jail cell, scrubbing pads, used to polish the floors, were found hidden in a paper bag. An infraction report was written. In June 1988, during a search of defendant’s cell, a razor blade, two towels, a bag of sugar, 13 books, and 10 magazines were found.

It was determined that defendant had committed a minor infraction, and as a penalty he lost use of the sun deck. In March 1989, while defendant was serving as a trustee, he turned off the juice machine to save juice for the trustees, despite having been instructed by an officer to leave it on. He turned the machine on again when ordered to do so, but became agitated. He raised his voice and confronted the officer in front of the other inmates. II. Discussion A. Pretrial issues 1.

Change of venue motions Defendant contends the trial court erroneously denied his two motions for change of venue in violation of his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We disagree. a. Factual background On July 17, 1989, two years before trial, defendant filed a motion for a change of venue. At the hearing on the motion, held before Judge John Flaherty, defendant produced expert testimony, newspaper articles, and television news reports. On August 21, 1989, the trial court denied the motion without prejudice to its renewal after voir dire.

The trial court expressed the view that “this is an extremely close case,” and stated that its decision to deny the motion was based in part “on the applicability of the Hovey voir dire. . . . I’m satisfied that by the use of that . . . extensive voir dire procedure, that the defendant here can receive a fair trial in this county.” (See Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].) Almost two years later, on June 13, 1991, after jury voir dire, defendant filed a second motion for a change of venue.

The hearing on the second motion was held before Judge Joseph Biafore, the trial judge, on June 26, 1991, the day before the parties were scheduled to exercise peremptory challenges. The court considered the moving papers, the hearing transcript, and the exhibits from the first motion for a change of venue, as well as written and oral arguments and additional exhibits, including newspaper articles, television news reports, and summaries of voir dire responses, received prior to and at the hearing on the second motion for a change of venue.

At the conclusion of the hearing, the court announced it would defer ruling on the motion until 12 jurors were chosen, to allow the court to “take a good hard look at those particular people seated in terms of analyzing whether or not the Defendant would, in fact, receive a fair trial from those persons.” Following the selection of 12 jurors, but before they were sworn and before alternates were selected, the court heard further argument, and then denied the motion.

The court found that the gravity of the offense, and the nature and extent of the publicity, weighed in favor of granting the motion, but also noted that during voir dire, prospective jurors indicated there was “a spate of media exposure,” followed by a decline in news reports. “[Mjany of them indicated there was actually nothing they heard about this case until the time for jury selection. . . . [I]n the intervening time, there was not a great mass of media exposure.

This case did not generate the type of hysteria that counsel for the defense was talking about.” The court also found that the status of the victims and defendant, who were not well known in the community, weighed against granting the motion. The “most salient factor,” the court found, was the size of the community. The population of Santa Clara County was large, approaching 1.5 million persons.

With respect to the jurors selected, the court had “no doubt that these people will follow the law as instructed by the court.” The jurors “exhibited to the court that they can set aside whatever opinions, impressions that they may have derived from the media and judge . . . this case fairly and squarely on the evidence presented in this courtroom.” The court found no reasonable likelihood defendant could not receive a fair trial “in this community.” b.

Analysis “A trial court must order a change of venue for trial of a criminal case to another county on motion of the defendant ‘when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be held in the county.’ (§ 1033, subd. (a).)” (People v. Hayes (1999) 21 Cal.4th 1211, 1250 [91 Cal.Rptr.2d 211, 989 P.2d 645].) We consider the correctness of the trial court’s ruling at the time it was made. (People v. Zambrano (2007) 41 Cal.4th 1082, 1127 [63 Cal.Rptr.3d 297, 163 P.3d 4] (Zambrano), disapproved on different grounds in People v.

Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11] (Doolin).) “ ‘We will sustain the court’s determination of the relevant facts where supported by substantial evidence. We independently review the court’s ultimate determination of the reasonable likelihood of an unfair trial.’ ” (People v.

Hart (1999) 20 Cal.4th 546, 598 [85 Cal.Rptr.2d 132, 976 P.2d 683] (Hart).) “Both the trial court’s initial venue determination and our independent evaluation are based on a consideration of five factors: ‘(1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.’ ” (People v.

Leonard (2007) 40 Cal.4th 1370, 1394 [58 Cal.Rptr.3d 368, 157 P.3d 973] (Leonard).) “On appeal, a defendant challenging a trial court’s denial of a motion for change of venue must show both error and prejudice: that is, that at the time of the motion it was reasonably likely that a fair trial could not be had in the county, and that it was reasonably likely that a fair trial was not had. [Citations.]” (People v. Davis (2009) 46 Cal.4th 539, 578 [94 Cal.Rptr.3d 322, 208 P.3d 78].) We begin with defendant’s initial motion, which was made before jury voir dire took place.

The first factor of the analysis—the nature and gravity of the offense—weighed in favor of a change of venue for the trial of these seven senseless murders. The same could be said, however, of most capital crimes, and we have concluded that this factor is not dispositive. (People v. Sanders (1995) 11 Cal.4th 475, 506 [46 Cal.Rptr.2d 751, 905 P.2d 420]; People v.

Pride (1992) 3 Cal.4th 195, 224 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Indeed, on numerous occasions we have upheld the denial of change of venue motions in cases involving multiple murders. (See, e.g., Leonard, supra, 40 Cal.4th at pp. 1395, 1397 [six counts of murder]; People v. Ramirez (2006) 39 Cal.4th 398, 407, 434-435 [46 Cal.Rptr.3d 677, 139 P.3d 64] (Ramirez) [13 counts of murder]; People v. Welch (1999) 20 Cal.4th 701, 721, 744-745 [85 Cal.Rptr.2d 203, 976 P.2d 754] [six counts of murder].) We next consider the nature and extent of the media coverage, the factor upon which defendant primarily relies.

Defendant presented evidence of numerous newspaper articles and television news stories that discussed or mentioned the events, including film of persons being rescued from the ESL building during the siege, pictures of an injured Laura Black, and segments of defendant’s recorded statements to Lieutenant Grijalva. He complains that some reports portrayed him as having committed various criminal acts rather than referring to him as a “suspect” or as an “alleged” criminal.

He also complains that the media “consistently portrayed [him] as an obsessed, dangerous man.” The media coverage, which decreased over time, was largely factual. (See Murphy v. Florida (1975) 421 U.S. 794, 800, fn. 4 [44 L.Ed.2d 589, 95 S.Ct. 2031] [the court has “distinguished largely factual publicity from that which is invidious or inflammatory”]; id. at p. 802; Beck v.

Washington (1962) 369 U.S. 541, 556 [8 L.Ed.2d 98, 82 S.Ct. 955] [the court noted that “[e]ven the occasional front-page items were straight news stories rather than invidious articles which would tend to arouse ill will and vindictiveness”]; Hart, supra, 20 Cal.4th at p. 599 [noting that the trial court found the reporting to be neutral, not inflammatory, and insufficient to sway public opinion].) Even in a case in which the trial court described the media coverage as “ ‘saturation,’ ” we found no error in the denial of a motion for a change of venue, noting, among other factors, that the “defendant did not show that the media coverage was unfair or slanted against him or revealed incriminating facts that were not introduced at trial.” (Ramirez, supra, 39 Cal.4th at pp. 434-435.) Defendant asserts, however, that even noninflammatory journalism may warrant a change of venue if the facts are sensational.

We have acknowledged that press coverage need not be inflammatory to justify a change of venue (People v. Tidwell (1970) 3 Cal.3d 62, 69-70 [89 Cal.Rptr. 44, 473 P.2d 748]), but the cases upon which defendant relies involved additional factors that weighed in favor of a change of venue. In Tidwell, two of the victims were prominent members of a small community, the defendants were strangers to that community, and some of the jurors selected to serve knew one or more of the victims or witnesses. (Id. at pp. 64-65, 67, 69-75.) Similarly, the change of venue ordered in Corona v.

Superior Court (1972) 24 Cal.App.3d 872 [101 Cal.Rptr. 411], was motivated by a concern that jurors in a small community, in which the defendant was charged with the murder of 25 migratory farm workers, would be “vulnerable to claims of insensitivity toward migratory farm workers,” and conscious “of the community’s reputation for peace and security” (id. at pp. 875-876, 883). As explained below, such circumstances were absent in the present case. The remaining three factors—the size of the community, and the status of defendant and of his victims in the community—weighed against a change of venue.

Santa Clara County, with a population of almost 1.5 million persons, was a large community. (People v. Dennis (1998) 17 Cal.4th 468, 523 [71 Cal.Rptr.2d 680, 950 P.2d 1035] [noting that Santa Clara County in 1988 was the fourth most populous county in the state].) Neither defendant nor his victims were prominent members of this community.

Contrary to defendant’s contention, the circumstance that defendant, his victims, and many qualified jurors worked in the “high tech” industry did not affect the status of the participants for purposes of the change of venue motion; the terror engendered by defendant’s attack stemmed not from its occurrence in a technology company, but from the circumstance that it happened in the middle of the workday in an office setting. Some degree of juror identification with the victims would occur in any venue. (See People v.

Webb (1993) 6 Cal.4th 494, 515 [24 Cal.Rptr.2d 779, 862 P.2d 779] [“Any sympathetic features of the case would be apparent wherever it was tried.”].) For the same reason, defendant’s contention that jurors would perceive him as “a ‘changeling,’ who had turned on and murdered his own kind,” does not establish that a change of venue was warranted. For these reasons, we conclude the trial court did not err in denying defendant’s first motion for a change of venue. As noted above, the court deferred its ruling on defendant’s second motion for a change of venue until after jury selection. (See Maine v.

Superior Court (1968) 68 Cal.2d 375, 380 [66 Cal.Rptr. 724, 438 P.2d 372] [it has long been the practice “to permit the trial court to defer its final ruling on a motion for a change of venue until the jury is empaneled”].) By this point in the proceedings, the trial court had heard on voir dire from the jurors selected that they would decide the case based solely upon the evidence and argument presented in court, and the trial court expressly credited those assertions. (See Leonard, supra, 40 Cal.4th at p. 1396 [“jurors selected to try this case bear out the trial court’s conclusion that an unbiased jury could be found”].) In addition, none of the sitting jurors or alternates had been challenged for cause. (Beck v.

Washington, supra, 369 U.S. at pp. 557-558 [the circumstance that the defendant did not challenge for cause any of the jurors selected “is strong evidence that he was convinced the jurors were not biased”].) Nor did defendant exhaust his peremptory challenges, “thus indicating that ‘the jurors were fair, and that the defense itself so concluded.’ ” (People v.

Panah (2005) 35 Cal.4th 395, 448 [25 Cal.Rptr.3d 672, 107 P.3d 790]; see also Zambrano, supra, 41 Cal.4th at pp. 1127-1128 [the court cited the circumstance that the defendant did not challenge any of the sitting jurors for cause or exhaust available peremptory challenges, in support of its conclusion that hindsight demonstrated that retention of the case did not “produce an unfair trial”].) Defendant relies upon the circumstance that numerous jurors were excused for bias against the defense.

The number of excusáis may have been more than would occur in an ordinary criminal trial, “but it by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own.” (Murphy v.

Florida, supra, 421 U.S. at p. 803.) Defendant also relies upon the circumstance that three years after his commission of the crimes, many prospective jurors still had a recollection of the murders. “The relevant question is not whether the community remembered the case, but whether the jurors at [the defendant’s] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.” (Patton v.

Yount (1984) 467 U.S. 1025, 1035 [81 L.Ed.2d 847, 104 S.Ct. 2885]; see Ramirez, supra, 39 Cal.4th at pp. 434-435 [“Although only one member of the jury indicated ... he never had heard of the case, they all stated they had not ‘formed any opinion as to the guilt or innocence of [the defendant] . . .’ and could be fair.”].) “We must distinguish between mere familiarity with [the defendant] or his past and an actual predisposition against him.” (Murphy v.

Florida, supra, 421 U.S. at p. 800, fn. 4.) Defendant asserts without citation to the record that four jurors believed he was “guilty,” but our review of the voir dire indicates all jurors demonstrated a willingness to set aside any preconceived notions and make their decision solely upon the evidence presented. (See Beck v.

Washington, supra, 369 U.S. at p. 557 [“ ‘It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ”].) Defendant further contends, however, that jurors’ assertions that they could be impartial should not be credited. “In exceptional cases, ‘ “adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors’ claims that they can be impartial should not be believed,” [citation] . . . .’ [Citation.] ‘The category of cases where prejudice has been presumed in the face of juror attestation to the contrary is extremely narrow.

Indeed, the few cases in which the [high] Court has presumed prejudice can only be termed extraordinary, [citation], and it is well-settled that pretrial publicity itself—“even pervasive, adverse publicity—does not inevitably lead to an unfair trial” [citation].’ [Citation.] This prejudice is presumed only in extraordinary cases—not in every case in which pervasive publicity has reached most members of the venire.” (People v.

Prince (2007) 40 Cal.4th 1179, 1216 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince).) In Prince, supra, 40 Cal.4th 1179, we reviewed some of the extraordinary cases in which the high court has presumed prejudice from pretrial publicity. “In one case ... the critical feature was that a local television station in a relatively small community on several occasions broadcast the entire spectacle of the defendant’s jailhouse confession. [Citation.]” (Id. at p. 1217.) In a second case, “ ‘[t]he trial. . . had been conducted in a circus atmosphere, due in large part to the intrusions of the press, which was allowed to sit within the bar of the court and to overrun it with television equipment.

Similarly, [in a third case, prejudice] arose from a trial infected not only by a background of extremely inflammatory publicity but also by a courthouse given over to accommodate the public appetite for carnival. The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.

They cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.’ [Citation.] The reviewing court instead must look for ‘indications in the totality of the circumstances that [the defendant’s] trial was not fundamentally fair.’ [Citation.]” (Id. at pp. 1217-1218.) The present case does not fall “within the limited class of cases in which prejudice would be presumed under the United States Constitution.” (Prince, supra, 40 Cal.4th at p. 1217.) The publicity adduced at the second change of venue motion, as at the first, was largely factual and noninflammatory.

Nor is there evidence in the record that the jury selection process lacked solemnity. (Murphy v. Florida, supra, 421 U.S. at p. 799.) Moreover, the seated jurors, who were questioned on voir dire individually, either recalled nothing of the case or remembered few details. The trial court, which observed the jurors’ demeanor, expressly found they had demonstrated an ability to set aside any preconceived impressions derived from the media. Thus, no extraordinary circumstances are presented. We conclude the trial court did not err in denying the second motion for change of venue. 2.

Excusing prospective jurors for cause due to their views concerning the death penalty Defendant contends the trial court erroneously excused two prospective jurors for cause based upon their views concerning the death penalty. We disagree. a. Factual background

(1) Excusal of Prospective Juror A.S. In Prospective Juror A.S.’s questionnaire, she stated she “Will Consider” the death penalty, and drew an arrow pointing toward the “Oppose” and “Strongly Oppose” responses. She believed that the “penalty should be exercised with great caution. One must be absolutely convinced of the guilt of the accused.

He or she must have committed a crime for which they could never be forgiven and which demonstrates a disregard for human life.” During voir dire by the court, she stated that “choos[ing] the death penalty would be very difficult for me. . . . [T]he circumstances would have to be very aggravating.” She also stated she would be capable of performing the weighing process required to determine the appropriate penalty; she would listen to all of the evidence and arguments before choosing a penalty; she could make a choice between the penalties, and she would not automatically choose one penalty over another.

When the defense asked whether she could vote for death if she concluded the death penalty was the appropriate punishment, A.S. responded, “I think so.” When the prosecutor inquired concerning the hesitancy reflected in her response, she agreed that although she could impose the death penalty on an intellectual level, “emotionally and spiritually” it was more difficult. She explained the basis of her inclination against the death penalty; “I don’t think it’s right to kill other people. And that doesn’t mean that’s not justified in very, very unusual cases, but I would not . . . take that lightly.

Seems like a very grave issue.” She stated she could vote to send a man to his death, but when pressed by the prosecutor to confirm that she could vote for the death penalty, she responded, “Pm not sure I could.” The prosecutor asked, “In other words, you don’t know whether, if you got to that stage emotionally, then you could actually do it even though intellectually you believed it to be the appropriate decision?” A.S. agreed, “That’s true.” The prosecutor challenged A.S. for cause under Witt, supra, 469 U.S. 412.

Over defense objection, the trial court sustained the challenge, stating, “I believe that the juror was setting the signals early in the voir dire, and she exhibited some difficulty even going through the weighing process, when she had volunteered the concerns about the death penalty as it would affect her ability to go though the weighing process, but we got through that.

But I think under these circumstances, that [the prosecutor’s] challenge should be granted because I believe that this juror’s views would prevent or substantially impair the performance of her duties as a juror in accordance with [the] instructions.”

(2) Excusal of Prospective Juror R.R. In Prospective Juror RJR.’s questionnaire, he circled the “Strongly Oppose” response when asked his view concerning the death penalty. In response to a question regarding the circumstances under which the death penalty was inappropriate, he wrote, “all.” During voir dire, he confirmed he was morally, philosophically, and intellectually opposed to the death penalty, but also indicated he understood that if the aggravating circumstances substantially outweighed the mitigating circumstances, he would be required to vote for death.

The prosecutor then clarified that the law never would require a juror to vote for death. Following this clarification, R.R. stated he “[absolutely” always would vote for life imprisonment without the possibility of parole, and if the aggravating evidence substantially outweighed the mitigating evidence, he “would vote for life” in “[e]very instance.” The prosecutor challenged Prospective Juror R.R. for cause under Witt, supra, 469 U.S. 412.

Over defense objection, the trial court sustained the challenge, stating, “I think it’s abundantly clear after listening to this juror that when he finally realizes he has a freedom of choice after hearing the evidence, and that there is not going to be any directive as to which way he should vote, and the onus is on him and the choice is clearly his, he has indicated in every instance he would vote for life no matter w

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