THE PEOPLE, Plaintiff and Respondent, v. MICHAEL BERNARD LEWIS, Defendant and Appellant, 46 Cal. 4th 1255

Opinion GEORGE, C. J. A jury convicted Michael Bernard Lewis of the first degree murder of Patricia Miller (Pen. Code, §§ 187, subd. (a), 189), and found true the special circumstance that the murder was committed while defendant was engaged in the commission of a rape (Pen. Code, §§ 190.2, former subd. (a)(17)(iii) [now subd. (a)(17)(C)], 261). The jury also found true the allegations that defendant personally used a deadly and dangerous weapon (§§ 1192.7, subd. (c)(23), 12002, subd. (b)) and that defendant previously had been convicted of a serious felony (§ 667).

Following the penalty phase of the trial, the jury returned a verdict of death. Defendant moved for a new trial (§ 1181), and for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced defendant to death.

The court also sentenced defendant to an additional year in prison, consecutive to the death sentence, for the deadly weapon enhancement (§ 12022, subd. (b)(1)), added a five-year sentence, to be served concurrently, for the prior felony conviction (§ 667, subd. (a)), and ordered restitution in the amount of $10,000 (§ 1202.4, subd. (b)). This appeal is automatic. (§ 1239, subd. (b).) I. FACTS A. Guilt phase evidence 1. The prosecution case a.

Summary In the morning of August 2, 1991, Patricia Miller was found dead on her living room floor, with her pants pulled off, her shirt pushed up, and her throat slashed. Defendant had flirted with Miller early the previous evening, had visited her apartment later that evening, and was the last person seen with her. He gave numerous conflicting accounts of his activities on the evening of August 1, initially denying that he had been in Miller’s apartment, and eventually admitting that he had sex with Miller in her apartment that evening.

He was unable to provide police detectives with a credible account of his activities and whereabouts during the four-hour period following his last admitted contact with Miller, and his description of the events conflicted with the accounts provided by other individuals. Four years earlier, defendant had assaulted and raped an acquaintance when he visited her at her apartment late in the evening. Details of the prior assault and rape were similar to the murder and rape of Miller. b.

Defendant’s activities on August 1 and 2, 1991 Patricia Miller resided in a two-story apartment building on Republic Street in Moreno Valley with her daughter Danyelle, 13 years of age, and her son Demetreus, five years of age. Directly to the east was a similar apartment building where Brian Jones resided. Directly east of Jones’s building was a third apartment building, where Dwayne Mitchell resided. Along the rear of the apartment buildings was an alley running parallel to Republic Street to the north and Alessandro Boulevard to the south.

Between the apartment buildings were walkways from Republic Street to the alley. Across the alley from Jones’s and Mitchell’s buildings, between the alley and Alessandro Boulevard, was a liquor store. Jones testified that in August 1991, it was his custom to socialize with friends in the carport area behind his apartment building. He testified that frequently persons walked through the walkways and the alley, especially on the first and 15th of any month, because residents of the neighborhood went to the liquor store to cash their checks.

In addition, according to Jones, some individuals took these routes to purchase illegal drugs from dealers who frequented the area around the liquor store. Jones related that sometime after 4:00 p.m. on Thursday, August 1, 1991, his friend, David Hargrove, accompanied by defendant, arrived to visit with Jones in the carport area. Defendant was wearing a white T-shirt, white shorts, white socks, and white sneakers. Jones testified that defendant told him he was leaving California that night or the next morning.

According to Jones, defendant was “putting the moves on everything that moved.” He testified that as women walked through the alleyway, defendant made comments such as, “I am going to fuck me something tonight, before I go,” “I kind of like to fuck that bitch,” and “I like to get with that hoe.” Defendant sometimes yelled comments or whistled at women as they passed. According to Jones, at approximately 8:00 that evening, the victim, Patricia Miller, walked through the alley, from the liquor store to her apartment.

Miller was acquainted with Jones, and she stopped to socialize briefly with the group in the carport. Jones testified that defendant called Miller aside, whispered in her ear, and conversed with her for approximately 10 minutes.

Jones also testified that he and Hargrove “laughed off” defendant’s advances toward Miller, because defendant was “wasting his time.” According to Jones, defendant commented after his conversation with Miller that he “wouldn’t mind getting some of that.” Hargrove testified that at approximately 8:30 or 9:00 p.m., before it became dark, he gave defendant a ride to visit a friend of defendant’s who resided in a nearby neighborhood. Jones testified that 30 or 40 minutes after Hargrove and defendant left the carport, Jones saw defendant walking down the alley.

Jones testified that he noticed defendant was exhibiting symptoms consistent with a person who had used rock cocaine, and he described defendant as “all jacked up.” The testimony of Miller’s daughter, Danyelle, established that, after returning to the alley, defendant visited Miller at her apartment. Danyelle testified that her mother called her inside between 9:00 and 9:30 p.m., by which time Danyelle’s brother already was asleep in their mother’s bed. Danyelle testified that she came inside and went to sleep, but was awakened approximately 30 minutes later by a knock at the door of the apartment.

She explained that her bedroom window was above the door to their apartment and overlooked the walkway between their building and the apartment building directly to the west. She testified that, through her window, she inquired who was there, and the person at the door responded, “Mike.” Danyelle testified that she told her mother, who was in the upstairs bathroom, that “Mike” was at the front door, and her mother responded, “Tell him to hold on.” Danyelle relayed the message to the visitor through her window.

She testified that before she fell asleep again, she heard her mother and the visitor talking, and saw her mother through her bedroom window, walking outside with the visitor toward the laundry room in the back of the apartment building. Danyelle also testified that some time later, she was awakened again when her mother heard gunshots and called upstairs to Danyelle to close her bedroom window. Dwayne Mitchell also heard the gunshots in the alley that evening, estimating the time at between 10:00 and 10:30 p.m.

Mitchell testified he was walking to a telephone booth at the east end of the alley when he heard the shots and encountered defendant in the alley, walking back from the telephone booth in the direction of Mitchell’s apartment building. Defendant was alone at that time. Mitchell testified he next saw defendant at approximately 11:00 that evening, when defendant and Miller walked past Mitchell’s bedroom window, along the walkway between Mitchell’s and Jones’s buildings, in the direction of Republic Street, where cocaine sometimes was sold.

Mitchell did not see defendant again until approximately 3:00 a.m. on August 2, when defendant returned to Mitchell’s apartment to spend the night. Virginia Turner testified she was employed at a taxicab dispatch office in a commercial building situated on the east side of the liquor store. She was at the dispatch office from 8:00 p.m. on August 1 until 8:00 a.m. the next morning, and from her window, which she faced while she worked, she had a clear view of the alley and the rear of the apartment buildings.

According to Turner, sometime between 11:00 p.m. and midnight, she received a telephone call from defendant, who asked whether she knew where he could obtain some cocaine. She responded that she could not obtain any for him at that time. Approximately five minutes later, Turner testified, she saw defendant come out of the walkway by Miller’s building and walk down the alley, in the opposite direction from Turner’s office. After another five minutes elapsed, she saw defendant return up the alley and into the walkway by Miller’s building.

She explained it was easy to see defendant because he was dressed in white clothing. Turner testified that the next time she saw defendant was when he emerged from the walkway by Miller’s apartment at approximately 2:00 a.m. and turned into the alley. She related that he walked quickly to Turner’s office and told her he needed a taxicab immediately. Turner responded that her sole driver was “out on a run,” and that defendant would have to wait 10 or 15 minutes. According to Turner, defendant said that he could not wait, and that he would go to Mitchell’s house to see whether Mitchell was awake.

Turner testified that during the time defendant was at the taxicab office, she observed that he exhibited symptoms of having smoked cocaine; he was jittery, nervous, and sweating. She stated that he was wearing white clothing, and that she did not notice any blood or other marks on him. Mitchell testified that defendant knocked on his door between 2:00 and 2:30 a.m.

Mitchell was certain defendant did not appear at his apartment earlier, because the family of Mitchell’s girlfriend had visited the apartment from 11:00 or 11:30 p.m. until approximately 2:30 a.m., and defendant was not present at any time while the relatives were at the apartment. Mitchell testified that when he admitted defendant to the apartment, defendant was wearing the same clothes as earlier, and he “crawled over on the floor and went to sleep.” Mitchell stated that he and defendant awoke on August 2 between 8:00 and 9:00 a.m., and left Mitchell’s apartment approximately 30 minutes later.

The two men walked together toward the neighborhood where Mitchell previously had resided. According to Mitchell, defendant seemed concerned only about meeting his brother and departing from California on their trip. Defendant’s brother, Kenya McAllister, testified that he met defendant between 9:00 and 10:00 a.m. near their parents’ prior residence, and they departed on their trip. According to McAllister, defendant’s attitude was normal and he did not appear to be upset. McAllister also testified that defendant did not mention being with a woman or having sex the previous evening. c.

Discovery and investigation of the crime scene Danyelle awakened at 6:00 a.m. on August 2, when she heard her mother’s alarm clock. She walked to her mother’s bedroom, but only her brother, Demetreus, was in her mother’s bed. She proceeded downstairs to look for her mother, and found her lying on the living room floor with her pants down, her shirt up, and blood surrounding her. Danyelle shook her mother to awaken her, but her mother did not move. Danyelle ran to a neighbor’s home and reported that there was something wrong with her mother.

When Danyelle exited from the front door, she observed that the lock within the doorknob, which could be engaged by a person exiting from the apartment before the door was closed, was locked, but the deadbolt lock, which could not be locked unless the door was closed (and therefore required a key to be locked from the outside), was not locked. The neighbor returned with Danyelle and, after attempting to feel a pulse in her mother’s body, informed Danyelle that her mother was dead. Law enforcement officers arrived at Miller’s apartment at approximately 7:00 a.m. on August 2.

After the officers searched the apartment for suspects and cordoned off the crime scene, Deputy John Monarrez of the Riverside County Sheriff’s Department interviewed Danyelle concerning the events of the prior evening. Monarrez testified that Danyelle informed him that she knew the visitor only as “Mike,” and she disclosed that she had seen Mike speak to her mother and visit their apartment on other occasions. She also told Monarrez that Mike was wearing a white T-shirt and tan pants.

Monarrez asked Danyelle to compare the color of Mike’s pants to pants worn by people milling in the crowd, and she identified a color that Monarrez described in his report as “beige,” which he believed to be lighter than “tan.” Monarrez also asked Danyelle to compare Mike to other persons in the area and, based upon those comparisons, Monarrez determined that Mike was an African-American man, approximately 30 years of age, six feet in height, and weighing 175 pounds. Marc Bender, an investigator with the Riverside County Sheriff’s Department, inspected the crime scene.

He testified that he found no blood trail leading away from Miller’s body, and no blood on the doors, walls, or floor, other than underneath the body and within a few inches of it. He also testified that there was a large wound that cut into some of the major arteries in the victim’s neck, but the blood was confined to a small area around the victim.

Bender explained that the absence of splatter or spray of blood indicated to him that the “automatic thrashing reaction” that, according to Bender, almost always results from such an injury, had not occurred, nor had the victim aspirated blood and exhaled a spray of blood. Photographs of the crime scene reflected that the victim’s arms extended upward on the floor, her forearms were bent inward, and her hands lay in close proximity to each other at the top of her head, with the fingers of her right hand touching her left wrist.

Bender noted that there was little blood on the victim’s hands, indicating to him that she had not reacted by grabbing at the wound as, he explained, victims of such wounds often do in response to pain or to stop the flow of blood. He also noted that the edge of the bloodstain on the floor was almost straight and ended where the victim’s back came in contact with the carpet, indicating to him that any movements on her part after her throat was cut were minimal.

Bender noted, and photographs of the crime scene reflected, that the victim’s pants had been pulled off, except for the bottoms of the pants legs, which apparently caught around the victim’s ankles. The pants extended away from her feet, and were inside out. Her left leg was straight, but her right knee was bent sharply, causing her right foot to rest at a point even with her left thigh and knee. Her right foot was some distance from her left leg, and her right knee leaned inward toward her left thigh.

Bender noted, and photographs from the crime scene reflected, a smear of blood on her right hip, and Bender surmised that someone had wiped blood from his or her hands onto the victim’s hip, leaving a pattern that looked like fingers. He testified that on her arms were similar smears of blood that appeared to have been made by a hand. Finally, he testified that there were smears of blood on the carpet, and that one of the smears was pointed and appeared possibly to have come from the tip of a knife. Bender testified there was no sign of a struggle having occurred in the apartment.

The downstairs window had bars, and a sliding door to a patio area behind the building had a deadbolt lock in place, indicating to Bender that the perpetrator left through the front door. He testified that no murder weapon was found. Bender testified that he suspected the perpetrator had washed his hands before leaving, but no evidence of blood was found in any of the apartment’s sinks.

He also testified that fingerprints found on objects in the apartment’s living room and kitchen, and in the laundry room, either matched the victim’s or lacked a sufficient number of points of reference to compare to other known prints.

Bender testified that he asked persons in the area about “Mike,” and was directed to Brian Jones, who described defendant the same way he described him later at trial—“all jacked up,” “very excited,” “hitting on everything that moved,” and “bound and determined to get between somebody’s legs that night.” Bender learned defendant’s last name from a former neighbor of defendant’s, who also disclosed that defendant had moved out of the house one day earlier. Bender conducted a search for defendant’s name in a law enforcement computer system, and determined that defendant was on parole.

Bender contacted defendant’s parole officer and learned that defendant recently had requested permission to leave California and move to North Carolina. Paul Sham, a criminalist, also examined the crime scene on August 2. He testified that he detected no bloodstains on the front door, the tile floors, the interior walls, the ceiling, or on any objects; blood was found only on the body and immediately surrounding the upper portion of the body. He explained that blood “smears” result from contact with a bloody object, in contrast to blood “splatter,” which is caused by the deposit of airborne blood droplets.

Sham testified that he observed blood smears on the victim’s right calf, right buttocks, right hip, abdomen, upper arms, both hands, forehead, both cheeks, and around the eyebrows. He also testified that he observed blood splatter on the front of the victim’s blouse, which appeared to have originated from the area of her throat. Sham also noted blood splatters on her abdomen, extending down to her pubic area. Sham stated that he examined the downstairs bathroom sink and the kitchen sink, and found no evidence of blood.

He also stated the windows facing the front of the apartment were barred, the sliding glass door was locked, and the front door was locked from the inside. Sham testified that he found no obvious signs of a forced entry or a struggle. d. Defendant’s conduct and statements after leaving California David Hargrove testified that approximately two days after the commission of the crimes, defendant contacted him by telephone at Hargrove’s home.

According to Hargrove, defendant told him that he was in El Paso, Texas, and Hargrove told defendant that “he needed to come back to California because word had it that he was involved in a murder.” Hargrove testified that defendant responded that he did not know “what was going on,” but that he would return to California. Hargrove also testified that defendant contacted him a second time to let him know he had reached Chicago, but the two did not discuss the homicide.

Defendant’s brother, Kenya McAllister, testified that during the trip to Chicago, defendant did not mention to McAllister that he had spoken to anyone in Moreno Valley, that he was a witness to or a suspect in a murder, or that it would be necessary for him to return to Moreno Valley. Bender, the investigator, testified that he attempted to locate defendant through the parole system and subsequently was contacted by defendant’s father, who informed Bender that defendant would return to California. Bender arranged to interview defendant on September 3, 1991, at a detention center in Riverside.

Bender and a second detective, Dan Wilson, were present during this interview, which was recorded, except for several minutes when the first side of the tape ended and the cassette was not turned over promptly. Bender testified that in March 1992, he noticed that Wilson’s report concerning the interview did not include all portions of it. At that time, Bender prepared a supplemental report describing the omitted portions of the interview, but he did not learn until January 1998 that a portion of the interview had not been recorded.

Transcripts of the recorded portion were provided to the jury, and the recording was played at trial. Bender testified concerning the unrecorded portion of the interview. The transcript of the Riverside interview reflects that Detective Wilson began by informing defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda). Defendant confirmed he understood these rights, and that he was willing to speak with the detectives and provide a sample of his blood. The recording was paused while a nurse took a blood sample.

When the recording resumed, Detective Wilson asked, “you were saying something about you talked to somebody?” Defendant responded that he had spoken to a friend, who said defendant was “a witness,” and that the friend stated he had “tried to catch me the day I left. You know, going to Charlotte, North Carolina.” Defendant told the detectives that his parole officer had directed him to return to California, and that when he returned, the parole officer informed him that the detectives wished to speak with him.

Wilson asked defendant whether he knew “what this is in reference to,” and defendant responded, “I understand a 187,” presumably referring to

section 187 of the Penal Code, which defines murder. When asked whether he knew who the victim was, defendant responded, “I know a, Patricia.

They called Pat. . . .” Defendant told the detectives that he had spoken to Miller at approximately 8:00 p.m. or 8:30 p.m., asking her, “ ‘how you doin’?’ She told me she . . . was just gettin’ off a motorcycle with some guy which I do not know, who was sittin’ there drinking a beer. [A]bout five minutes later he told me, ‘Man let her go, get home.’ I let her go.” When asked whether he had been at Miller’s house that evening, defendant stated he “passed by” her house and asked her whether her son had told her that “I asked about you that Saturday.” Defendant said Miller told him that her son had not delivered this information, and defendant then “went on.” He added that he saw Miller later in the evening and spoke to her again.

When asked when he last had seen Miller that evening, defendant stated he saw her as she was going to the laundry room, at approximately 10:30 p.m. When Detective Wilson began to ask him about “when [he] was over at Pat’s house about 10:00, 10:30,” defendant interrupted to say that he “wasn’t at her house.” Defendant added, “I stopped there, goin’ through that way.” He stated he helped her carry her clothes, and they conversed at the laundry room.

As he was preparing to leave that room, he and Miller heard gunfire, and they both “ducked down.” Defendant claimed he then went to Mitchell’s home, staying until approximately 2:00 a.m., at which time he went to the taxicab office. When he was unable to arrange for a cab ride, he returned to Mitchell’s home, where he stayed until 8:00 a.m. on August 2, when he left to meet his brother to drive to North Carolina. The transcript reflects that defendant then changed his narrative.

He stated that after he left Miller, he went to a service station and purchased some cigarettes, and then spent some time in the alley with a man named Reese. When he left Reese, he went to the taxicab office and then to Mitchell’s apartment. When Wilson asked defendant whether Reese could vouch for defendant’s time that evening, defendant stated he was with Reese “maybe ten or fifteen minutes.

Maybe less than that.” Wilson then observed “there’s about a four hour period of time . . . from the time you last saw [Miller] to the time you was with—” Defendant interjected, “I went back to [Mitchell’s] house, when I left [Miller’s], I left [Miller] right after the shootin’ and shit, I left [Miller]. I went back to [Mitchell’s] house. Then I left again. I left again. Then, I messed around, like I said, I went to the gas station. Four hour period?

Where does the four hour period come in?” Wilson explained that defendant last saw Miller at approximately 10:00 or 10:30 p.m., and appeared at the taxicab office at approximately 2:00 or 2:30 a.m.

Defendant responded, “I was probably getting’ high or somethin’.” When Wilson asked whether defendant had seen anyone else at or around Miller’s apartment that night, he responded that there were “some guys standin’ out front that I don’t know.” Wilson inquired whether defendant had gone to Miller’s apartment immediately before helping her on her way to the laundry room, and had walked back to her apartment from the laundry room. Defendant responded, “When I was cornin’ through, she was cornin’ out.” Wilson asked whether defendant knocked on Miller’s door and asked to see her.

Defendant responded that he had knocked “earlier that evening,” and Miller’s son had answered the door. Defendant also stated he did not know where Miller went after he left her at the laundry room. Wilson asked defendant whether he ever had been inside Miller’s apartment. Defendant responded he had been there approximately one month before her murder, when he went there to see whether she cared to come outside to drink beer. According to defendant, she had declined, but he had visited inside her apartment for 10 or 15 minutes.

When Wilson returned to the subject of the time defendant had spent with Reese, defendant stated that Reese had been looking for drugs, but that defendant had not, adding, “I don’t mess with cocaine.” When Wilson inquired whether defendant had “ask[ed] anyone about anything,” defendant stated, “I asked one guy for my Mend Mike.” (It is not clear who “Mike” was.) Defendant also stated he did not know how his name came up in this matter, because he did not like Black women. When defendant asked the detectives how Miller was killed, they declined to respond.

Returning to the subject of the four-hour period, defendant stated he had smoked some marijuana, spent some time with Reese, and gone to Mitchell’s apartment at 11:00 p.m. Then, “I left, went to the cab company. I then went and got me some cigarettes. I went to the cab company.” He urged the detectives to “[a]sk Jenny [Turner]. ‘Jenny, I ain’t got no money. I need a ride out JFK and Kitching.’ I said ‘I’m gonna see can I spend the night at my partner’s house first.’ ” Defendant then stated that Mitchell agreed to allow defendant to stay at his apartment, and defendant stayed there until 8:00 a.m. the next day.

Defendant told the detectives that when he called David Hargrove while traveling to Chicago, he asked Hargrove what crime defendant was suspected of committing, and Hargrove informed him that Miller had been killed.

Defendant stated he was cooperating to clear his name, and “[b]ecause I’m tryin’ to get off this parole.” When Bender commented that defendant had “been through the drill a couple of times,” defendant disagreed, stating: “Last time when I caught this rape case, I took a deal for somethin’ I didn’t do because my lousy friend wouldn’t come to court to testify for me.” Bender stated that “one problem is that when I talked to [Mitchell]—” and defendant interjected, “I already found out. I heard.

That he said I didn’t spend the night at his house.” Defendant claimed Mitchell was lying, because Mitchell had been “jumped on” the day that Miller’s body was discovered, “just ’cause I knew him.” Returning to his telephone conversation with Hargrove, defendant told the detectives that he asked Hargrove what time Miller had been killed, and Hargrove stated, “Sometime that night.” According to defendant, he responded to Hargrove, “That night? I’m at [Mitchell’s] house.” Defendant then told the detectives, “11:00, I’m at [Mitchell’s] house, for a while.

And after while I get some cigarettes ’cause uh, he was in there basing cocaine.” Defendant asserted that “a person on cocaine will say anything to save his ass, keep his name out of it.” At this point in the interview, the first side of the recording tape ended. After the jury heard the first side of the recording, Bender testified concerning the unrecorded portion of the interview. He testified that he falsely told defendant his fingerprints had been found inside Miller’s apartment, and defendant attributed the fingerprints to his visit to the apartment one month prior to the crimes.

Bender testified that he then falsely asserted that fingerprints would not survive for that period of time. According to Bender, defendant then told him that when he had knocked on Miller’s door earlier on August 1 and had spoken to her son, he had gone into the kitchen to get a glass of water, but that was the only time he had been in the apartment. Bender further testified that later in the unrecorded portion of the interview, defendant stated he also had been inside the apartment at approximately 8:30 that evening and he drank a beer with Miller.

Although genetic testing had not yet been performed, Bender told defendant, during the unrecorded portion of the interview, that defendant’s sperm had been found in Miller’s vagina. Bender testified that defendant “looked down at the floor for what seemed like a long gap at the time, probably, 10 or 15 seconds, and then he looked up at me, and then he started to tell me another story.” Bender testified that defendant stated he had not disclosed some facts to Bender earlier, because he did not want to be found in violation of his parole.

Bender testified that defendant “then admitted he had gone into the apartment, that he had smoked rock cocaine with the victim, and that he and the victim had had sex.” According to defendant, Miller became aroused, took her clothes off, pulled defendant’s pants down, got on top of him, violently copulated with him, got off him as soon as he ejaculated, put her clothes back on, and left to do laundry. Defendant told Bender that he remained slouched on the couch and passive throughout their encounter, which occurred at approximately 8:30 p.m., soon after Miller had returned from the liquor store.

At this point in the interview, it was discovered that the cassette tape had reached the end and no longer was recording. The transcript reflects that when the recording resumed, Wilson stated that “you were sayin’ a while ago that. . . somebody in the area told you that. . . her throat had been cut?” Defendant responded, “Yeah.” Wilson inquired, in light of defendant’s statement, why defendant had asked how Miller was killed. Defendant responded, “That’s what I’m tryin’ to find out, was it really true.

Like you say, you didn’t wanna give me no answers, I didn’t wanna know, I didn’t wanna know if it was true or not. ’Cause like I say, at first when the first thing jumped up, I’m a witness.” Bender responded, “Yeah.” Defendant added, “Me and [Hargrove]. So I figure the mother-fucker was lying.” Bender responded, “Yeah.” Defendant continued, “You said her throat was cut. See what I’m sayin’? [J]ust like, [Hargrove] didn’t know what was really goin’ on.” Bender responded, “Uh-huh.” Defendant completed his explanation, stating, “You know what I’m sayin’?

He was tellin’ me man, yeah, uh, then [Mitchell] come in and kept sayin’ about how your name got twisted all up into this here. It’s [Jones].” Bender responded, “Yeah.” The interview returned to the subject of defendant’s sexual encounter with Miller, and defendant reiterated that the sex occurred prior to the conversation in the laundry room. Bender expressed the view that the sexual encounter occurred after they met in the laundry room, and defendant asked, “what did I tell you?” Bender responded, “You told me that it was . . . definitely before—” Defendant interjected, “Was it before?

It was before then.” Bender stated, “No, it’s after,” and defendant responded, “It was after.” Bender then explained that it did not make sense that the sexual encounter occurred earlier, when Miller’s children were awake. Defendant then stated that “I made love right, what, around 9:00, 10:00,” and that the gunshots occurred later, “[a] little after 10:00.” Defendant estimated that approximately 20 minutes elapsed between the time he left after having sex with Miller, and when he returned and went to the laundry room with her.

He stated that when the shooting began, he left her; he met Reese and spent 10 to 15 minutes with Reese; he arrived at Mitchell’s home “way before 10:30 [p.m.]” and stayed at Mitchell’s home “for a few hours,” and then left. When Bender inquired whether Mitchell or anyone else knew that defendant and Miller had sex, defendant responded that his sex life was nobody’s business. Defendant added, “I understand what you’re sayin’, but what was you tryin’ to get at? No.

I did not rape [Miller].” Defendant then volunteered that Miller’s daughter had not seen him, but her son had come downstairs complaining that his stomach hurt, and defendant had gone to an automobile service station to buy the boy a soda. Bender asked defendant when it was that he had gone to the service station, and defendant stated, “right after we had sex. That’s when I left, matter of fact, that’s when I left.” Bender asked defendant again to estimate when he went to Mitchell’s home, and defendant stated he had arrived at Mitchell’s “about ten somethin’. Something, 11:00.

I ain’t quite sure.” Bender then asked defendant why, when Bender asked whether defendant had made love to Miller, defendant “came up with this rape thing.” Defendant stated that Hargrove had told him that Miller’s throat had been cut and she had been raped. Bender responded that “I spent all day in that apartment and I didn’t know she was raped.” At the conclusion of the interview, Detective Wilson explained to defendant that he would not be held, and that defendant’s parole officer would determine whether he would be allowed to return to Charlotte, North Carolina.

Eight months later, on May 1, 1992, Bender interviewed defendant a second time, at the office of his parole officer in North Carolina. Bender explained in court that the interview was recorded, but the recorder was in a drawer while the first side of the tape recorded, and that part of the recording was unintelligible. Therefore, Bender testified concerning the contents of the unintelligible portion of the interview. He testified that defendant was not under arrest at the time of the interview.

He also testified that he informed defendant of his rights under Miranda, supra, 384 U.S. 436, and that defendant said he understood those rights and would speak to Bender. Bender testified he informed defendant that Mitchell and Mitchell’s girlfriend were certain defendant had not arrived at their home until approximately 3:00 a.m. on August 2.

Bender related that defendant initially was adamant that he had been at their home at 11:00 p.m. on August 1, but after Bender explained that Mitchell and his girlfriend had had company that evening and were certain defendant had not been present when the company visited, defendant stated he may have been out wandering in the neighborhood between 11:00 p.m. and 3:00 a.m.

Bender also testified that during this second interview, defendant said it was “closer to about 11 o’clock in the evening,” after the laundry was completed and gunshots were heard in the alley, that he and Miller had returned to her apartment, smoked cocaine, and had sex.

Bender testified that when he confronted defendant with inconsistencies in his statements, defendant “got kind of agitated and said that I was trying to screw him up, that I was trying to trip him up . . . .” Bender testified that “[a]bout that time, [defendant] remembered or brought up something that he hadn’t talked to me about before.” Defendant told Bender that just as he was leaving Miller’s apartment at approximately 11:00 p.m., another man entered the apartment. Bender testified that defendant said the other man resembled Bender but was taller, thinner, and African-American.

The intelligible portion of the recording began when defendant was describing the other man. The recording was played for the jury. The transcript reflects that defendant told Bender that Miller seemed to know the man, but that she did not state his name. Defendant also said that the man stumbled into Miller’s apartment, was “all drunk,” and sat on the bottom step of the interior staircase. Part of defendant’s description was unintelligible, but Bender testified that defendant stated the intoxicated individual could not stand without leaning against the banister or the wall, and had difficulty sitting up.

The transcript reflects that defendant also told Bender he previously had seen the man in the neighborhood, but the man always was by himself, and defendant did not know anyone with whom the man associated. The transcript reflects that defendant agreed with Bender that it would have been logical to mention this other person when defendant first was questioned about Miller’s death, and defendant stated that he thought he had mentioned the other person to Bender during the first interview. At trial, Bender was certain defendant had not mentioned the other person earlier.

Bender also noted at trial that in the earlier interview, defendant had denied that anyone else was at the apartment, and when Detective Wilson had commented in the earlier interview, “apparently somebody else after you saw her alive,” defendant had responded, “I guess.” Defendant also stated in the earlier interview, “I don’t know whoever, whatever, whoever was there when I left, I don’t know what happened.” Bender testified that he did not investigate the existence of the intoxicated individual, because he was certain defendant was not being truthful.

At the conclusion of the interview, Bender arrested defendant for the rape and murder of Miller. e. The autopsy Robert DiTraglia, a medical doctor and forensic pathologist, performed the autopsy. He testified that Miller was five feet, two and one-half inches in height and weighed 111 pounds.

He described the cut to her throat as “a very large wound that covered pretty much the entire front portion of her neck.” He testified that when he first viewed the wound, it had “this huge gaping appearance that measured, approximately, 10 centimeters from one end to the other.” He stated that the wound appeared to have been inflicted by two cuts, one on each side of the neck, with one overlapping the other. One cut was 7.4 centimeters in length, and the other was 6 centimeters in length.

He added that, alternatively, the wound may have been caused by a single cutting motion across the throat, in which the knife was raised and pivoted midway through the cut. DiTraglia explained that the cut severed the right external jugular vein, and injured muscle, cartilage, bone, and the airway in the victim’s neck. He testified that Miller’s heart was beating when the wound was inflicted, which caused hemorrhaging into the tissues, and that this wound was fatal.

He explained that because the major blood vessel that was severed was a vein rather than an artery, the blood would not spray out of the cut, but blood might spray from the airway if the victim was breathing strongly. Dr. DiTraglia testified that he also found evidence of strangulation, including hemorrhaging on the superior portion of the thyroid gland and fractures of the laryngeal cartilages. He noted that petechial hemorrhages on Miller’s eyes and eyelids were further evidence of strangulation.

He testified that “severe compressive force” is required to cause such fractures, and agreed that such injuries could be caused by strangling a victim with fingers behind the neck and thumbs in the front on the center of the neck. He stated that a victim of strangulation will lose consciousness within six to 15 seconds if the vascular structures are occluded. He opined that a victim will suffer irreversible brain damage after 60 seconds of vascular occlusion, but noted that the heart may continue beating and the lungs may continue functioning.

DiTraglia viewed Miller’s injuries from strangulation as fatal and believed the strangulation rendered her unconscious, but he could not determine whether her breathing continued after the strangulation. He testified the circumstances—namely, the absence of large quantities of blood in her lungs and stomach, the absence of defensive wounds, and the absence of blood on her hands—tended to establish that Miller was not breathing vigorously when her throat was cut. The only wound that may have been defensive was a superficial cut on Miller’s right index finger.

During the autopsy, DiTraglia collected vaginal, rectal, and oral swabs, as well as blood from the victim’s heart. He testified that the blood-alcohol level was 0.04 percent, and that the blood also contained 3,440 nanograms per million (or 3.4 micrograms per million) of cocaine and 1,320 nanograms per million (or 1.3 micrograms per million) of benzoylecgonine, a byproduct of cocaine. These results were consistent with the use of cocaine near the time of death, but were not related to the cause of death.

DiTraglia testified that he examined the victim’s genitalia by direct observation with a bright light, and found no signs of trauma, such as bruises, abrasions, lacerations, and tears. He explained that he did not have available a colposcope—a microscope used by clinical gynecologists to examine living rape victims—and therefore would not have been able to observe more subtle injuries that could be detected with such an instrument. He also testified that a study of 451 rape victims revealed that only 18 percent exhibited signs of physical trauma.

DiTraglia further testified that a person could inflict the wounds found on the victim’s body without blood transferring to the attacker: “If Patricia Miller is unconscious, she’s already been strangled, she’s unconscious, she’s lying supine on the ground, her neck is exposed, she’s not moving, she’s breathing shallowly, and someone would come up to her and stand over the body, or kneel over the body, and take a knife, your hand is now however long the blade is away from that. One slash, two slashes.

You may or may not get blood on the knife; but in that scenario, you stand up, you walk away, you don’t have any blood on you.” f. Blood and DNA evidence Criminalist Marianne Siam testified that she detected a small amount of sperm on both the vaginal and rectal swabs collected during the autopsy, but found no evidence of the presence of an ABO blood type or PGM subtype that was different from the victim’s blood type and subtype. Therefore, she explained, she could not determine the source of the semen, and could not exclude defendant as the semen donor.

Stam also testified that a tissue found in the victim’s kitchen trash can was spotted with blood consistent with the victim’s blood type. She stated that the spots of blood appeared to have been caused by the tissue coming in contact with a wound or a bloody nose, and were not similar to marks that would be left if someone had wiped his or her hands or a knife on the tissue. She also testified that four cigarette butts found in the apartment tested positive for the presence of an enzyme found in saliva, but only two exhibited an ABO blood type, and that type was consistent with the victim’s type.

DNA testing was performed by criminalists Daniel Gregonis and Martin Buoncristiani. Gregonis testified that he extracted sperm cells from the vaginal swab and performed restriction fragment-length polymorphism (RFLP) testing, but was unable to determine DNA fragment lengths. He attributed the failure to the small amount of DNA and to degradation that may take place due to the unchecked growth of bacteria in a body after death.

Buoncristiani testified that he conducted polymerase chain reaction (PCR) testing on samples of sperm from the vaginal and rectal swabs, by which he examined the HLADQL locus, or region, of the DNA, which varies among individuals. He testified that the testing yielded results consistent with defendant’s DNA. He also testified that the particular genotype identified through the PCR testing appears in approximately 7.9 percent of African-Americans, and in approximately 1 to 8 percent of the population comprised of African-Americans, Caucasians, and Hispanics.

He confirmed that if a second individual had engaged in sexual relations with the victim, and had left an equal amount of sperm or not much less sperm, the PCR testing also would have reflected a different genotype, unless the two donors had the same genotype for the particular locus. g. Defendant’s previous rape of Christa B. Christa B. testified that defendant raped her four years prior to the charged crimes. She testified that she was introduced to defendant by her boyfriend in 1987, and defendant had visited her at her apartment once before the night that he raped her.

She related that shortly after midnight on September 2, 1987, approximately two weeks after his first visit, defendant rang the bell to her apartment and spoke to her through her building’s security system. He identified himself, asked whether he could come in, and said he “just want[ed] to chitchat.” She let him in and they spoke for approximately one hour in the living room, while they watched television, drank beer, and smoked marijuana. Christa testified that defendant asked her, “What would you do if I came on to you?” She told him she would not like it, because she was in love with her boyfriend.

Christa testified that after conversing with her for an hour or longer, defendant walked into her bedroom, looked out a large window, and asked Christa to come into the bedroom because he wanted to show her something. When she entered the bedroom, he pushed her onto her back on the bed, got on top of her, and held her hands tightly above her head. Christa testified that her knees were up to her chest. She stated that defendant told her he had a knife, and that if she did not cooperate, he would slice her throat.

She stated that she initially refused to disrobe, but complied after he again threatened to slice her throat. He freed one of her hands to allow her to disrobe, and he removed his pants. Christa testified that defendant was able to hold both of her hands with one of his hands. She noted that she was five feet four inches in height and weighed 105 pounds at the time of the rape.

She testified that “he’s very strong,” and “I feel I was over-powered, and I was very scared and intimidated that he was going to kill me.” She stated that while defendant continued to hold her hands above her head, he removed his pants, forced her legs apart with his knee, and raped her, but he did not ejaculate. Christa testified that defendant then allowed her to get up and walk to the living room, where she put on some clothing.

He asked her where she was going, and she responded, “nowhere.” He asked her what she would tell her boyfriend, and she said “nothing.” She testified that she was shocked by what he had done, because she thought he was her friend. She was scared and crying, and asked defendant to leave. He told her that if she reported the incident to law enforcement or to her boyfriend, he would kill her, and claimed he previously had been paid $10,000 to kill someone. She continued to carry on a conversation with him as she walked to the door of the apartment, but as she turned the door handle, he blocked her exit.

She testified that he then placed her in a chokehold, dragged her to the bedroom, got on top of her, and strangled her by placing his thumbs against the front of her throat and his hands around the back. She testified that he squeezed very hard and said, “You didn’t think I was going to hurt you. You didn’t think I was going to kill you. Well, you’re wrong.” Christa stated that she struggled against him, but was overpowered and lost consciousness. Christa testified that when she regained consciousness, she saw a different man in her living room, holding her television.

When the man saw her as she attempted to rise, he dropped the television, came into the bedroom, and began to strangle her. Christa stated that as she fought back, the man lost his grip on her throat. She testified that he punched her repeatedly in the face. She then kicked the large window by the bed, breaking it and causing “a lot of noise,” causing the man to flee from the apartment. Christa testified that she called her boyfriend, who brought her to his apartment, and that later that morning she contacted the police, who interviewed her at the hospital.

She stated that after leaving the hospital, she and her boyfriend located defendant and identified him to police officers. Christa stated that when she identified defendant, he said, “I’m going to get you, bitch.” Christa stated that she testified at the preliminary hearing, but told the prosecutor that she did not want to go through a trial. She further related that the prosecutor informed her that the state would agree to a plea agreement, with defendant pleading guilty to rape and receiving a prison term of six years, and the state dropping the attempted murder charge.

Christa agreed with that resolution of the matter. Yvonne Vigil, a detective with the Los Angeles Police Department, testified concerning her interview of Christa at Santa Monica Hospital on September 2, 1987. She stated that Christa was distraught and in pain, and had injuries to her head and neck. According to Vigil, Christa had difficulty speaking, but was responsive and did not appear to be evasive.

Vigil’s testimony concerning her interview of Christa demonstrated that the description of the events given by Christa at defendant’s trial was substantially similar to the description Christa provided to Vigil on the day after the event.

Vigil testified that Christa told her that the assailant came to her apartment at 12:30 a.m.; that she had known the assailant for four or five months; that his name was Michael and his last name could be “Thomas”; that she voluntarily had admitted him to her apartment when he came by to visit; that they sat in the living room on the couch and consumed two beers; that at approximately 3:00 a.m., he beckoned her into her bedroom, assertedly to show her something; that he pushed her onto the bed, and she landed on her back with her knees up to her chest; that when she refused to put her legs down or take off her top, he told her he had a knife in his back pocket and was going to slice her throat; that he held both of her wrists with one of his hands, and removed his pants and underwear; that he placed his knee between her knees and forced her legs open; that he engaged in intercourse for approximately three minutes, but did not ejaculate; that she walked into the living room to get dressed; that he came out of the bedroom and told her that “he better not see the police question him about this, . . . [and] he better not see her boyfriend . . . question him about it,” or he would hurt her; that he claimed he had been paid $10,000 to kill someone; that she told him to “[g]et out of here or you’ll be in trouble,” but then claimed she was “just kidding”; that he shut the apartment door when she attempted to leave, and pushed her back into the bedroom; that she landed on her bed, where he got on top of her, placed his hands over her neck and strangled her; that she lost consciousness, and when she regained consciousness, another person was in her living room, and that person punched her repeatedly on the right side of her head and attempted to strangle her; and when she broke a large window in her apartment, the person fled.

According to the report Vigil prepared after the interview, Christa stated that she told defendant, “I thought you were my friend and now you’ve just raped me.” According to the report, Christa stated that defendant responded, “I did not rape you. It’s your word against mine. I could tell them that you were drunk, that you took your clothes off and wanted me to seduce you.” 2. The defense case Defendant presented three witnesses. Dr. Mona Matheus was a resident physician in the emergency room of Santa Monica Hospital who examined Christa B. after defendant raped her.

Matheus testified that the record of the examination she prepared reflected that Christa had injuries to her face, temples, neck, and legs, but the record did not reflect injuries to her vaginal area. Deborah Hill, a certified nurse examiner in cases of sexual assault, testified that the genitals are the primary site of injury from a sexual assault. She described the phases of normal human sexual response that allow the vaginal area to accommodate penile penetration without suffering trauma.

She testified that when sex is nonconsensual, these phases do not occur, and the victim suffers injuries such as redness, swelling, lacerations, tearing, abrasions, and bruising. She agreed on cross-examination that inspecting a victim with the naked eye and a bright light would reveal genital trauma in only 10 to 30 percent of cases of nonconsensual sex. Dr. Terrence McGee testified concerning the levels of cocaine and its byproduct, benzoylecgonine, in Miller’s body, and the symptoms that may be caused by the ingestion of cocaine.

He characterized the level of cocaine in Miller’s heart as “a real high dose,” even taking into account the circumstance that the concentration of cocaine in the heart increases after death. He testified that he could not estimate the amount of cocaine consumed by the victim because, he explained, the rate at which cocaine degrades is not predictable. He also stated that he could not say how a person with that level of cocaine would behave, but that the drug is a central nervous system stimulant that may increase aggression, libido, and a tendency toward violence, and compromise the user’s judgment.

According to McGee, some individuals are affected significantly by small amounts of cocaine, and others develop a tolerance to cocaine through use and require more cocaine to achieve the same effects. He testified that, when consuming cocaine, a person generally will not be attentive to the time of day. He also stated that the drug may affect an individual’s perception of an event, but he or she will be capable “of giving ... a rudimentary account of what transpired.” McGee concluded that “cocaine numbers don’t mean much in and of themselves no matter where [in the body] you draw [the blood] from.” B.

Penalty phase evidence 1. The prosecution case in aggravation The victim’s daughter, Danyelle, described the several foster care homes in which she and her brother, Demetreus, resided after their mother died. She explained that the children had resided with only their mother until she died, and that it was difficult to live with strangers. She also testified that she felt sad and angry that none of her relatives could take them in. According to Danyelle, after their mother’s death Demetreus became quiet, frequently cried, and felt anger and rage.

Danyelle described her mother as a hardworking, loving, caring person who would do anything for her children. She testified that her mother had done well in school, and regularly helped and encouraged her children with their school work. Danyelle identified her mother, Demetreus, and herself in various photographs, and noted some of the enjoyable activities they had shared. She described a nightmare in which she was in a classroom, and her mother’s body was sitting behind her, and her mother’s head was on the desk in front of her, calling Danyelle’s name.

Danyelle stated that her mental picture of her mother as she found her in the living room will haunt her the rest of her life. Demetreus was 12 years of age and in the seventh grade at the time of the trial. He testified that he missed his mother very much. He remembered having to reside in strangers’ homes, and being fearful and sad. He testified that he loved his mother and missed how much fun she was. He particularly missed her on Christmas and on his birthday. He stated he was happy residing with Claudia Glover, who had adopted him. Claudia Glover became the children’s third foster parent in July 1993.

Glover testified that when she assumed this role, the children were very upset and required therapy. According to Glover, Demetreus frequently cried and Danyelle was withdrawn. By the time Glover adopted Demetreus, Danyelle was an adult. Glover stated that at the time of trial, Danyelle was a single mother, with a child 16 months of age, and was attending college. Debra G. testified that she met defendant when she visited relatives in Arkansas in 1985. She testified that she became pregnant with his child, who was bom in June 1986.

She revealed that once during the four months she spent in Arkansas, defendant lifted her up and slammed her against a wall during an argument. Debra stated she moved back to Venice, California, and defendant moved there to be near her. According to Debra, they resumed dating, but defendant again became violent toward her. She testified that he threw her on the ground and took their baby away for three days, and that he drove a vehicle at her, causing her to mn to avoid being struck. She stated that on several occasions, he forced her to have sexual relations with him, once in a vehicle.

She testified that he was able to hold both of her hands with one hand and that, when he raped her in a bed or on the ground, he held her hands above her head. She stated that she resisted him, but he would not accept “no” as an answer and forced himself on her. She stated that when he smoked rock cocaine and there was nothing left to smoke, he sometimes would become angry. She recalled that each time he sexually assaulted her, he had been smoking rock cocaine. She testified she was afraid of defendant and feared for her life.

On cross-examination, defense counsel impeached Debra’s claims of physical violence with contrary statements she made to a defense investigator. Counsel suggested that defendant’s anger at Debra was the result of her neglect of their child, and that Debra turned against defendant when defendant’s father obtained custody of their child due to Debra’s cocaine addiction, homelessness, and mental health problems. 2. The defense case in mitigation Defendant’s mother, Betty Jo DeFrance, testified that defendant was born in 1963, in Texarkana, Arkansas, when DeFrance was 17 years of age.

She stated that defendant’s father was absent during much of defendant’s early childhood because he served in the military, and he and DeFrance separated in 1968. She described defendant as a loving, happy child who liked to hug his mother and make her laugh. She stated that, other than a habit of rocking back and forth, defendant had no behavioral problems as a child. He was involved in 4-H, Cub Scouts, Boy Scouts, basketball, boxing, and baseball, and had a newspaper route.

She testified that his school attendance became poor during his sophomore year of high school, and he left home to reside with an uncle in another town in Arkansas, because DeFrance would not tolerate his truancy. She stated that defendant’s younger brother, Sheldon, was bom after defendant left home, but defendant returned in 1980, when Sheldon, then two years of age, was close to death from cancer. According to DeFrance, defendant became quiet and withdrawn after Sheldon’s death.

She testified that in 1982, DeFrance’s brother, Don, who was three years older than defendant and had been close to defendant, drowned. She stated that defendant was devastated by Don’s death. Jean Walker, whose husband was defendant’s paternal uncle, testified that she met defendant in approximately 1970, when she visited her husband’s relatives in Texarkana. Walker testified that defendant’s mother never was present when Walker visited, and that defendant spent a significant amount of time at his grandmother’s house while Walker was in Texarkana.

When defendant was 18 years of age, he moved to San Diego and resided with Walker and her husband. According to Walker, defendant was employed by a cabinetmaker, and also worked at a toy store. She stated that when he injured his back at work, he received a workers’ compensation award of several thousand dollars, which he and his older cousin spent on drugs. She testified that during one conversation with defendant concerning his use of cocaine, he stated he was troubled by the deaths of his brother and his uncle.

She stated that at some point, her husband ordered defendant to leave their home, due to defendant’s use of cocaine. She also testified that defendant wanted custody of his daughter, and that he bought his daughter clothes. Walker described defendant as loving and helpful, and testified he never was a bitter or violent person. The Michael Lewis she knew was a “[vjery loving, honest child.” II. DISCUSSION A. Guilt phase 1.

Admission of postmortem photographs of the victim Defendant contends the trial court abused its discretion by admitting into evidence multiple photographs of the victim taken at the crime scene and at the autopsy. He claims the photographs were cumulative, irrelevant, and highly prejudicial, and their admission violated his right to a reliable guilt phase verdict, a fair trial, and due process of law under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and

article I,

section 7 of the California Constitution. Defendant moved in limine to exclude the People’s photographic evidence on the ground that the probative value of the photographs was outweighed by their prejudicial effect. (Evid.

Code, § 352.) After reviewing this evidence, the trial court concluded it was relevant and was neither unduly prejudicial nor cumulative. “This court is often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] ' “[MQurder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant” ’ [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative (Evid.

Code, § 352). A trial court’s decision to admit photographs under Evidence Code

section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecution’s theory of the case. [Citations.]” (People v.

Gurule (2002) 28 Cal.4th 557, 624 [123 Cal.Rptr.2d 345, 51 P.3d 224].) “To determine whether there was an abuse of discretion, we address two factors: (1) whether the photographs were relevant, and (2) whether the trial court abused its discretion in finding that the probative value of each photograph outweighed its prejudicial effect.” (People v.

Whisenhunt (2008) 44 Cal.4th 174, 211-212 [79 Cal.Rptr.3d 125, 186 P.3d 496].) Having examined all of the photographs, we find that each is relevant, and that “they are not of such a nature as to overcome the jury’s rationality.” (Id. at p. 212.) Exhibit 1, a photograph depicting the victim as she was found in her apartment, provides evidence demonstrating that the victim was sexually assaulted, and that the manner of the assault was similar to defendant’s assault upon Christa B.

This photograph also corroborates the testimony of Detective Bender and criminalist Paul Sham concerning the location of blood on and around the victim’s body. Exhibit 2 includes nine photographs depicting the interior of the victim’s apartment. These photographs corroborate Bender’s testimony that there was no sign of a struggle and no blood splatter, and constitute evidence tending to establish that the attacker may have suffered no visible injuries and left the scene with no blood on his clothing. Each photograph depicts a different aspect of the apartment, and therefore none is cumulative.

The circumstance that the victim’s body, covered by a blue blanket, appears in three of the photographs (2B, 2D, and 2H) does not render these photographs cumulative or unduly prejudicial. Exhibit 5 includes seven photographs of the victim’s body on the medical examiner’s table. Exhibits 5A and 5B are full-length photographs of the victim, taken from either side. They reflect the victim’s thin build and the absence of injuries, and are relevant to establish that defendant could have overpowered the victim, and did overpower her, with little struggle.

Exhibit 5C is a photograph of the victim, from the chest up, taken before her bloody top was removed and her body was cleaned. It reflects where blood flowed and also shows the abrasion identified by Dr. DiTraglia on the upper left side of her forehead. Exhibits 5D and 5E are closeup photographs of the victim’s neck, taken after the wound was cleaned. The view in 5D is the front of the victim’s neck, and in 5E the right side of the victim’s neck. Together, these photographs document the breadth and depth of the wound.

They reflect the viciousness and strength of the assault, which is relevant to prove that defendant acted with malice and sought to ensure the victim was dead. They also raise doubt with respect to defendant’s claim that an alleged intoxicated third party who barely could stand or sit up in the victim’s apartment could have inflicted such a wound. (See People v.

Wright (1990) 52 Cal.3d 367, 434 [276 Cal.Rptr. 731, 802 P.2d 221] [photographs “were relevant to show the extent of the victim’s injuries and the amount of force used in the commission of the murder”].) Finally, exhibits 5F and 5G are photographs of the victim’s right lower eyelid and right upper eyelid, which have been pulled down and up, respectively, to expose petechial hemorrhages. These photographs demonstrate that the victim was strangled. Each of these photographs was probative with respect to significant issues, and none was cumulative. In addition, in light of Dr.

DiTraglia’s detailed description of the damage inflicted upon the victim’s neck, “the photographs were not so gruesome as to have impermissibly swayed the jury.” (People v. Smithey (1999) 20 Cal.4th 936, 974 [86 Cal.Rptr.2d 243, 978 P.2d 1171] [“In light of the testimony . . . detailing all the circumstances of the crime scene and the condition of the victim, the photographs were not so gruesome as to have impermissibly swayed the jury.”].) We find no abuse of discretion in the trial court’s ruling.

With respect to defendant’s claims of constitutional error, we note that “[t]he ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1010 [81 Cal.Rptr.3d 299, 189 P.3d 300] (Hovarter).) 2. Admission of evidence of defendant’s prior rape Defendant claims the admission of evidence concerning his rape of Christa B. was unduly prejudicial under the standards set forth in People v.

Falsetta (1999) 21 Cal.4th 903 [89 Cal.Rptr.2d 847, 986 P.2d 182] (Falsetta), and violated his rights to due process of law and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The People moved in limine to admit Christa B.’s testimony concerning defendant’s rape of Christa, and documentary evidence concerning his conviction of that offense. This evidence was offered to prove motive, intent, a common design, and lack of consent by the victim (Evid. Code, § 1101, subd. (b)) and to demonstrate defendant’s propensity to commit sexual assaults (Evid.

Code, § 1108), thereby establishing that he raped and murdered the victim. Defendant moved in limine to exclude evidence of the prior offense, arguing that the earlier incident and the charged conduct lacked sufficient similarity to establish identity or a common plan or scheme (Evid. Code, § 1101), and that the probative value of this evidence was substantially outweighed by its prejudicial effect (Evid. Code, § 352). Defendant also moved for a new trial, based in part upon the assertedly erroneous admission of evidence concerning his rape of Christa B.

The trial court ruled the evidence was admissible under both sections 1101 and 1108 of the Evidence Code, and subsequently denied the motion for a new trial. Defendant contends the trial court erred in two respects. First, he asserts the court failed to exercise its discretion, because it assertedly did not consider the factors relevant to an evaluation of whether the prejudicial effect of evidence of a prior sexual offense outweighs the probative value of such evidence.

Second, he claims the trial court abused its discretion by concluding that the probative value of the evidence outweighed its prejudicial effect. With respect to his first contention, defendant faults the trial court for focusing upon the similarity of the prior and the charged offenses—a “relatively irrelevant factor,” in his view—and for failing to discuss other factors identified in Falsetta, supra, 21 Cal.4th at page 917.

The similarity of the offenses, however, was central to the court’s evaluation of whether the evidence tended to prove motive, intent, a common design, defendant’s identity as the perpetrator, or the victim’s lack of consent, under Evidence Code

section 1101. (People v. Kelly (2008) 42 Cal.4th 763, 782-784 [68 Cal.Rptr.3d 531, 171 P.3d 548] (Kelly II); People v. Balcom (1994) 7 Cal.4th 414, 423-424 [27 Cal.Rptr.2d 666, 867 P.2d 777] (Balcom); People v. Ewoldt (1994) 7 Cal.4th 380, 393-406 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt).) In addition, the degree of similarity is relevant to the evaluation of whether the probative value of the evidence outweighs its prejudicial effect under Evidence Code

section 1108. (Falsetta, supra, 21 Cal.4th at p. 917.) Finally, defendant’s memorandum of points and authorities in opposition to the admission of the evidence focused principally upon the asserted absence of sufficient similarity. Thus, it is no surprise that the trial court’s comments were directed to that issue. With respect to relevant factors not mentioned by the trial court, we note that “a court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code

section 352.” (People v. Taylor (2001) 26 Cal.4th 1155, 1169 [113 Cal.Rptr.2d 827, 34 P.3d 937].) The record reflects that the court performed its duty to balance the probative value of this evidence against its prejudicial effect.

Defendant’s second contention—that the trial court abused its discretion in concluding the probative value outweighed the prejudicial effect—also fails. “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (Hovarter, supra, 44 Cal.4th at p. 1004; see also People v.

Rogers (2006) 39 Cal.4th 826, 862 [48 Cal.Rptr.3d 1, 141 P.3d 135] (Rogers) [abuse of discretion standard applies to admission of evidence under Evid. Code, § 1101]; People v. Wesson (2006) 138 Cal.App.4th 959, 969 [41 Cal.Rptr.3d 883] [abuse of discretion standard applies to admission of evidence under Evid. Code, § 1108].) Defendant’s challenge is narrow. He urges that the trial court abused its discretion in admitting the evidence under Evidence Code

section 1108, because its probative value assertedly was outweighed by its prejudicial effect. In a case in which a defendant is accused of a sexual offense, Evidence Code

section 1108 authorizes the admission of evidence of a prior sexual offense to establish the defendant’s propensity to commit a sexual offense, subject to exclusion under Evidence Code

section 352. (Evid. Code, § 1108, subd. (a); Falsetta, supra, 21 Cal.4th at p. 911.) We find nothing arbitrary, capricious, or patently absurd in the trial court’s ruling that evidence of defendant’s prior offense was admissible to prove his propensity to commit the charged sexual offense. The probative value of the evidence was strong. First, the two sexual assaults shared many similarities. Defendant was acquainted with both victims before the assaults, and therefore may have chosen them because they would be more inclined to grant him access to their homes, where the assaults occurred.

Both attacks occurred late in the evening after defendant socialized and ingested drugs with the victims, suggesting they were induced to let down their guard. Both victims were small in stature and therefore less able to resist a physical assault. The hands of both victims were pinned above their heads. Both victims were strangled. Defendant threatened to slice Christa B.’s throat, and Miller’s throat was cut. Second, the prior offense occurred only four years earlier, and defendant had been incarcerated for much of the intervening time.

Finally, the independent sources of the evidence, particularly the police detective’s testimony that Christa contemporaneously reported the same details of the prior offense that were set forth in her testimony at defendant’s trial, increased the probative value of the evidence. (See Falsetta, supra, 21 Cal.4th at p. 917.) The risk of undue prejudice was minimal.

Because defendant was convicted of the prior rape and sentenced to prison, “the jury would not be tempted to convict [him] simply to punish him for the other offenses, and . . . the jury’s attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (Falsetta, supra, 21 Cal.4th at p. 917.) There also was little likelihood the jury would be distracted from its principal inquiry—whether defendant raped and murdered Miller.

Nor do we find it likely the jury would be confused by the different standards of proof pertaining to the issue of whether defendant committed the prior acts (preponderance of the evidence) and whether he committed the current offenses (beyond a reasonable doubt); all juries in criminal proceedings in which evidence of uncharged conduct is admitted under Evidence Code

section 1108 are called upon to apply these two different standards. Contrary to defendant’s contention, we perceive no reason why the required analysis would have been particularly confusing in this case because of the circumstance that the victim of the prior rape testified, whereas the charged rape was proved through circumstantial evidence. Although evidence of the prior offense would elicit a negative emotional response from the jurors in this case, it was less inflammatory than the charge that defendant raped, strangled, and cut the throat of Patricia Miller while her children slept upstairs. (See People v.

Demetrulias (2006) 39 Cal.4th 1, 19 [45 Cal.Rptr.3d 407, 137 P.3d 229] [the court noted, in evaluating any undue prejudice from evidence admitted under Evid. Code, § 1101, that the prior offense involved a serious assault, but the charged offense was murder].) Finally, in any case in which evidence of other acts committed by a defendant is admitted, the defendant will face the decision whether to testify concerning the prior acts or to remain silent. Contrary to defendant’s contention, this circumstance does not render such evidence unduly prejudicial.

A defendant is faced with this choice whenever evidence is admitted that he or she personally could rebut. In the course of addressing the asserted undue prejudice, defendant contends it was improper to admit evidence establishing that he choked Christa B., because choking is not a “sexual offense” within the meaning of Evidence Code

section 1108. It is irrelevant whether all of the evidence concerning defendant’s assault upon Christa B. was admissible under Evidence Code

section 1108, because defendant fails to establish that the trial court abused its discretion by admitting the evidence under Evidence Code

section 1101. Similarly, he asserts it was improper to admit evidence of a prior sexual offense to prove that he committed the nonsexual offense of murder. Again, defendant fails to establish that the evidence of the sexual assault was not admissible under Evidence Code

section 1101 to prove the commission of a murder. Moreover, this evidence was relevant to the offense of felony murder, with rape as the underlying offense. (People v. Story (2009) 45 Cal.4th 1282, 1285 [91 Cal.Rptr.3d 709, 204 P.3d 306] [a murder committed during the course of a rape is a “sexual offense” within the meaning of Evid. Code, § 1108].) Finally, contrary to defendant’s contention, it is irrelevant that the elements of the offense of rape are distinct from the elements of murder. The issue under Evidence Code

section 1101 was whether the evidence tended to prove that defendant committed the crimes with which he was charged; it was not necessary that the evidence establish identical criminal offenses. In sum, we find no abuse of discretion in the trial court’s conclusion that the probative value of this evidence outweighed its prejudicial effect in establishing defendant’s propensity to commit the charged sexual offense. (Evid. Code, § 1108.) Because defendant has declined to engage in an analysis focused on whether the evidence of his prior crimes was admissible under Evidence Code

section 1101 to prove a common scheme, a motive, or that defendant did not believe the sexual act was consensual, we have no occasion to address whether the evidence of his prior crimes established that they were sufficiently similar to the charged offenses to authorize its admission for these purposes, or whether the prejudicial effect of this evidence outweighed each purpose for which it was offered. (See Ewoldt, supra, 7 Cal.4th at pp. 402-407.) We decline defendant’s invitation to reconsider our decision in Falsetto, supra, 21 Cal.4th 903, and to hold that the admission of evidence under Evidence Code

section 1108 to establish a defendant’s propensity to commit a sexual offense violates his or her due process rights. Not only has defendant failed to convince us that

section 352 is not an adequate safeguard against the admission of unduly prejudicial evidence, but he also has not established that the evidence admitted in the present case was not independently admissible under

section 1101. (Balcom, supra, 7 Cal.4th at pp. 423-424; Ewoldt, supra, 7 Cal.4th at pp. 393-406.) Finally, with respect to defendant’s claims of constitutional error, we note that “[tjhe ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.]” (Hovarter, supra, 44 Cal.4th 983, 1010.) 3. Sufficiency of the evidence to prove rape and murder Defendant contends the trial court erred in denying his motion for a new trial or to modify the verdict.

He claims the evidence presented at trial was insufficient to support his conviction, in violation of his right to due process of law under the Fourteenth Amendment to the United States Constitution and

article I,

section 15 of the California Constitution. (See In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068] [“the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”].) “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v.

Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) “[T]he relevant question is whether, after viewing the evidence in

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