THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN McWHORTER, Defendant and Appellant, 47 Cal. 4th 318

Opinion BAXTER, J. A jury convicted defendant Richard Allen McWhorter of the first degree murders of Shirley and Joey Jordan (Pen. Code, § 187), and first degree residential robbery (§ 212.5, subd. (a)). Special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and robbery murder (§ 190.2, subd. (a)(17)(A)) were found true in connection with each count of murder. After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)) and imposed the death sentence.

This appeal is automatic. (§ 1239, subd. (b).) We shall order one of the two multiple-murder special-circumstance findings and an erroneously imposed parole revocation fine stricken from the judgment, and affirm the judgment as modified. I. Facts A. Guilt Phase The victims in this case, Shirley Jordan and her 10-year old son, Joey, were murdered in their Bakersfield apartment on September 11, 1995. Their badly decomposed bodies were discovered approximately one week later by friends and neighbors suspecting foul play.

The prosecution’s evidence, including admissible portions of defendant’s taped confession, established that defendant and his wife Billie were friends and neighbors of the Jordans and had moved away from Bakersfield one week before the murders, hoping to find work in Las Vegas. Defendant, who was broke, returned alone to Bakersfield on September 11, went to the Jordans’ apartment, killed mother and son, stole $3,000 from Shirley’s bedroom dresser drawer, then fled the area, returning to Las Vegas that same evening. 1. Prosecution Evidence a.

Defendant and his wife Billie leave Bakersfield In early September 1995, defendant and his wife, Billie McWhorter, lived in a small duplex at 1016 Wilson Avenue, unit B, in Oildale, a town near Bakersfield. Billie testified that Shirley Jordan and her 10-year-old son, Joey, whom they had known for several years, lived in the adjoining unit A. While neighbors they had become good friends and would often socialize together. Billie testified neither she nor defendant was employed at that time. Their sole sources of income were unemployment and Social Security benefits, totaling $650 per month, which had run out.

At the beginning of September 1995, Billie had a checking account with approximately $1 on deposit. She had been out of work since April 1994; defendant had been unemployed since early 1995. While neighbors, Shirley told the McWhorters she had saved $7,000, and could even buy a new car if she wanted to. On July 4, 1995, Shirley lent defendant $1,500 so that he could start a landscaping business. The loan was memorialized in a written agreement signed by Shirley, defendant, and Billie, with the money to be repaid in 90 days.

Defendant bought a truck and some landscaping equipment with the money but could not find any work. In early September 1995, defendant and Billie decided to move to Las Vegas to try to find work there. As the McWhorters were broke, Shirley lent them another $350. On Monday, September 4, 1995, defendant and Billie drove to Tehachapi and spent the night with Billie’s daughter and son-in-law, Brenda and James Doty. The following day, Billie stayed behind while defendant drove alone toward Las Vegas in his truck with all his landscaping equipment to look for work. Defendant’s truck broke down outside of Mojave.

He called James Doty and arranged to have Doty pick up his belongings and equipment from the disabled truck. Defendant hitchhiked to Las Vegas, arriving at the home of Billie’s son, Eric Roesler, in the late afternoon. Defendant had no change of clothes when he arrived, so Roesler lent him a T-shirt with distinctive markings. Several days later, defendant told Roesler he was going back to Bakersfield to meet his mother so he could borrow money to get his truck fixed. Prior to defendant’s leaving Las Vegas, Roesler gave defendant a large, white-handled knife, saying he wanted it returned.

On Sunday, September 10, 1995, defendant hitchhiked from Las Vegas to Mojave. James Doty drove to Mojave from Tehachapi and picked him up. Defendant told Doty he came back to get a loan from his mother so he could buy another vehicle. That evening, Billie called her ex-mother-in-law, Rosalie Self, and asked Self to pick them up from the Doty residence the next morning and drive them back to Bakersfield so defendant could meet with his mother.

On Monday morning, September 11, 1995, Rosalie Self and her partner, Bob Amos, picked up defendant and Billie from Tehachapi and drove them back to their home in Oildale, which was not far from the Wilson Avenue apartment complex where the Jordans lived. Defendant left the Self/Amos residence, alone and on foot, at approximately 10:00 a.m. that same morning. He told Self and Amos his mother was going to lend him money to purchase a vehicle, and that he was going to meet her at the Yum-Yum Donut shop a short distance from their home. Billie asked to go with him, but did not.

Defendant returned at approximately 4:00 p.m. that afternoon. Billie, Self, and Amos were sitting on the porch eating hamburgers. Defendant walked over to Billie and handed her $3,000 in cash in large denomination bills ($100 and $50). Billie asked defendant why he had been gone so long; defendant claimed his mother had to go to the bank for the money. Defendant’s mother, Mary Headrick, testified that she never met with defendant on Monday, September 11, 1995; she lived in Tulare and had not traveled to Bakersfield on that date; and defendant never discussed borrowing money from her.

As the group sat on the porch, Self suggested that defendant and Billie buy a van to live in. Defendant commented that it would be cheaper to buy a van in Las Vegas and announced he and Billie were leaving for Las Vegas on a bus that same evening. Prior to leaving, Billie washed the clothes defendant was wearing while defendant took a shower and changed into clean clothes. Defendant also produced Roesler’s white-handled knife, which he gave to Amos. Self and Amos then drove defendant and Billie to the bus station, where they left for Las Vegas on the 7:00 p.m. bus.

Billie testified they arrived sometime after midnight and checked into a hotel. Billie’s son, Eric Roesler, testified that upon their return to Las Vegas, defendant told him he had borrowed money from his mother. b. Discovery of the victims’ bodies Early on the morning of Monday, September 11, 1995, 13-year-old Chris Barton called Joey to see if he wanted a ride to school. Joey and Chris were friends and schoolmates; Chris’s grandmother usually drove them to school every day. Joey told Chris he was not going to school that day because he was feeling sick.

That was the last time Chris ever spoke to Joey, and she never saw Joey or his mother, Shirley, again. Upon returning from school that afternoon, Chris called Joey and left a message on the Jordans’ answering machine. A few days later, Chris went to Joey’s house and knocked on the door but no one answered. Both she and her grandmother called and left additional messages on the Jordans’ answering machine, but never received a return call. Joey was absent from school on Monday, September 11, 1995, and never returned. The last day he attended school was Friday, September 8, 1995.

He had been present at school every day for the two weeks prior to that date. The school attendance officer called the Jordan home each day Joey was absent, leaving messages inquiring about his absences. The calls were never returned. On Monday, September 18, 1995, Brian LaPeer, a neighbor of the Jordans, went to their apartment after his sister-in-law noticed a bad smell emanating from the unit. He found a window open two to three inches, pried off the screen, pulled the blinds apart and saw a body lying on a bed in the bedroom. LaPeer and his sister-in-law called the police.

He also noticed the Jordans’ lawn was dying, which was unusual because Shirley was known to frequently water it to keep it green. LaPeer testified his young son and Joey often played together, with the last time having been three days to a week before the bodies were discovered. Fire Captain Tom Pulcher and other fire personnel arrived at the Jordans’ residence in response to the 911 call. They found the front door locked, with a window on the northwest side of the residence open several inches.

The inside of the window screen was covered with flies, and a strong odor was emanating from within which Captain Pulcher associated with death. The front door was forced open and Captain Pulcher entered the apartment alone. Upon entering the apartment, he found it noticeably warmer inside than outside. He looked into the bedroom, saw the decomposing bodies of Shirley and Joey, secured the crime scene, and waited for law enforcement officers to arrive.

Kern County Sheriff’s Deputy Steven Comstock was the first officer to arrive at the scene, followed by Kern County Homicide Detectives Rosemary Wahl, John Soliz, and Sergeant Glenn Johnson. Detective Wahl noticed several advertising-type newspapers had collected on the steps at the front door. She and Detective Soliz entered the apartment and observed a backpack on the living room floor with what appeared to be its contents — a purse, a pile of coupons, a notebook, two coin purses, and Shirley Jordan’s checkbook register — strewn about the floor.

A prescription bottle and a yellow pillbox that had separately marked compartments for each day of the week were found on an end table. There were pills in every compartment of the pillbox except for Sunday’s. Shirley Jordan’s body was found on the bedroom floor next to one of two single beds. Joey’s body was spanning the two beds. Both were in an advanced state of decay. The drawers of a dresser in the bedroom were found open. The fronts of the drawers were spattered with blood; the sides of the drawers had no blood spatter on them.

Hanging out of one of the open drawers was a bedsheet or nightgown with no blood spatter on it. On the north wall next to Shirley’s body was a second dresser, also with its drawers open. The wall surfaces above and next to the dresser were covered with blood spatter. Blood spatter was also found on the open door that led from the living room into the bedroom, on the doorframe, and on a vacuum cleaner in the living room near that doorway. Three strands of bloody hair were found on a bedpost. A bloody shoe print or impression was found on the floor close to where Shirley’s body lay.

The back door to the residence, which was in the kitchen, was locked at the knob but not deadbolted. Two to three drops of blood spatter were found on the kitchen’s linoleum floor. On one wall of the kitchen, four feet above the floor, was a large indentation in the drywall with two strands of hair stuck to the wall a short distance below it. There were no signs of forced entry into the house. Detective Wahl found a disposable camera on a bookcase in the living room.

The exposed film was later developed, revealing the last photograph taken was of defendant in the Jordans’ living room, wearing the T-shirt with distinctive markings that Roesler had lent him when he first arrived on foot in Las Vegas without belongings on September 5. The Jordans’ answering machine, with the various unanswered messages left on the tape starting on Monday, September 11, was also recovered as evidence. The Jordans’ apartment, unit A, was attached to unit B. Detective Wahl checked unit B, found it unoccupied, and found mail inside addressed to “McWhorter.” c.

Crime scene blood spatter evidence Kern County crime lab Criminalist Jeanne Spencer collected samples of blood spatter from the dresser, the door to the bedroom, a bedroom wall, the vacuum cleaner, and the kitchen floor. Using enzyme testing, she was able to identify all the spatter as human blood that had come from the same source. However, because no control samples were available from the victims, she could not tell whose blood it was. She also collected a wadded-up paper towel from the floor of the living room and a roll of paper towels from the kitchen, both of which contained bloodstains.

She likewise determined both items had human blood on them, and that the blood could have come from the same source as all the blood spatter samples. Spencer also compared the hair strands recovered from just below the indentation in the kitchen wall, and from one of the bedposts, to both the victims’ and defendant’s hair samples. She found the hairs could have come from Shirley, but did not come from defendant or Joey. She noted one of the hairs had no root, suggesting it might have been tom off.

Spencer also examined the white-handled knife defendant had given Amos that was recovered by police, and found no blood on it. Supervising Criminalist Gregory Laskowski, an expert in blood spatters, stains, patterns and events, examined the scene a few days after the bodies were discovered. He identified the blood on the fronts of the dresser drawers as “medium-velocity” blood spatter events, which would be associated with kicking, bludgeoning, stabbing, or punching.

He concluded the spatter patterns were probably caused by more than two or three discrete events, and that the source of the blood was “impact-generated,” meaning the force that caused the spatter was moving towards the dresser. The absence of blood on the sides of the drawers evidenced that they were closed at the time of the events causing the spattering. Blood and hairs were found adhered to a bedpost.

Laskowski determined the blood on the bedpost and surrounding area had come from a source six to 10 inches away, and that the spatters were caused by mechanical force such as that associated with a punch, kick, or blow, with the blow driving the part of the body with the open wound against the bedpost. Laskowski also observed a shoe print or impression on the carpet in the bedroom, the source or nature of which was uncertain. His initial impression was that the print may have been made by a cowboy boot.

At trial, he testified the impression could also have been made by a smooth-soled shoe or boot, or possibly could have been made by a large limb like a thigh or by a knee.

Based on his overall examination of the crime scene, Laskowski determined there were probably three to four spatter events in the area of the dresser, one to two in the area of the bedpost at the foot of one bed that contributed to the spatter stain across the bottom of the bedroom door, two to three on the north wall between the second bed and the dresser, one at the foot of the bed where Shirley’s head rested, and at least one event that resulted in blood being spattered on the living room carpet outside the bedroom entryway. d. Autopsy results Dr.

Fred Walker, a forensic pathologist, performed autopsies on the bodies the day after they were discovered. Dr. Walker was employed as a medical examiner in Monterey County, had come to Kern County to fill in temporarily for another pathologist, and had previously worked as a medical examiner in Phoenix, Arizona, where he gained extensive experience working with bodies in advanced states of decomposition. Dr. Walker acknowledged this case was particularly challenging because the advanced state of decomposition of both bodies made determining the causes of death difficult.

For that reason, he visited the crime scene to gather as much relevant information as possible. He also conferred with Laskowski, reviewed the victims’ medical records, and spoke with the toxicologist, who prepared no written report but who orally informed Dr. Walker he had not detected any substance that would be of further significance in helping establish the causes of death. Dr. Walker testified both bodies were in an advanced state of decomposition, with a large number of maggots on the bodies and clothing. The internal organs of both victims had “liquefied” to the point where, in Joey’s case, Dr.

Walker had difficulty identifying some of the vital organs. He observed a lot of tissue loss from Shirley’s face, and found multiple bruises on her body. One bruise between her shoulder blades measured seven inches by three inches; one in the center of her back measured eight inches by three inches; one on her right buttock measured eight inches by four inches; one on the back of her right thigh measured two inches by two inches; one behind her right knee measured three inches by three inches; and one on her left calf measured six inches by two inches.

Because of their approximate size and shape, the three “upper” bruises could have been inflicted by the same object. Shirley’s body was X-rayed. There was no evidence of broken bones or teeth. There were no obvious signs of defensive wounds to her hands or fingernails. Her clothes also appeared free of tears or holes that might have resulted from stabbing or shooting. Dr. Walker believed it more likely than not that Shirley had suffered trauma to her face, although the loss of facial tissue was likely exacerbated by subsequent maggot activity and decomposition, which would have obscured the original injury.

He noted Shirley had been taking nitroglycerine, reviewed her medical records, and concluded she suffered from coronary artery disease, which itself could have made her succumb more readily to blunt force trauma injuries associated with a physically violent attack. Joey’s body was in a more advanced state of decomposition due to its smaller size. Joey had several obvious injuries to the front upper part of his body. An abraded contusion was found on his chin; this injury could have been caused by a glancing blow or a fall onto a blunt surface.

He also had a large patch of skin, measuring five inches by three inches, missing at the juncture of the base of his neck and his chest, exposing his breastbone, the ends of the adjoining collar bones, and his carotid arteries and trachea. This wound area, too, evidenced considerable maggot infestation, with the advanced state of decomposition obscuring the nature or source of the injury inflicted before death. Dr. Walker found two bruises under Joey’s scalp at the back of his skull, and another bruise in the deep tissue on the left side of his neck.

The pressure from a thumb, fingers, or a blow could have caused these bruises, consistent with someone’s restraining or holding the victim down against the bed, possibly to smother him. As with Shirley, there was no evidence of defensive injuries observed on Joey’s hands or fingernails, nor any conclusive evidence of fatal stab wounds. Dr. Walker concluded both deaths were homicides, but because he could not determine the exact cause of either death, he certified them as “homicidal violence of [an] undetermined nature.” Given the state of decomposition, Dr.

Walker estimated the deaths could have occurred from two to 10 days prior to discovery of the bodies. e. Defendant’s arrest and interrogation Sometime after the bodies were discovered, Billie spoke with James Doty and learned Shirley and Joey were dead. After hearing the news, she, defendant, her son Eric Roesler, and his girlfriend Sylvia sat down and tried to figure out where defendant and Billie had been when the deaths could have occurred. Roesler testified that during this conversation, defendant expressed concern that the murder investigation might focus on him given his status as an ex-felon.

A few days later, defendant and Billie used $1,800 of their $3,000 to purchase a van in Las Vegas, and also purchased a small trailer. Shortly thereafter, Roesler and his girlfriend split up, and Roesler began living with Billie and defendant in the van. Roesler testified he did not contribute any money toward the purchase of the van or trailer.

By this time Detective Wahl had learned from the ongoing investigation that the McWhorters and Jordans had been close friends and adjacent neighbors; that defendant and Billie had vacated unit B shortly before the murders; that defendant owed Jordan $1,500, as evidenced by the signed loan note found at the crime scene; and that defendant gave Billie $3,000 on the afternoon of September 11, 1995. Detective Wahl arranged to speak with defendant and Billie on September 25. The McWhorters returned to Bakersfield and the conversation took place at the Dotys’ residence in nearby Tehachapi.

Defendant told Detective Wahl he and Billie moved out of unit B, which was adjacent to the Jordans’ apartment, on September 4, 1995. He claimed the last time he saw Shirley and Joey was on the day before he and Billie moved out. Detective Wahl asked defendant whether he was aware Shirley kept a large amount of cash in her apartment. Defendant acknowledged being aware of that fact, adding that Joey had remarked that his mother had a lot of money. Billie told Detective Wahl they had borrowed $1,500 from Shirley. Defendant acknowledged the signed note for the loan would be in Shirley’s possession.

On October 3, 1995, Detective Wahl and Sergeant Johnson traveled to Las Vegas to again speak with defendant. Defendant, Billie, and Roesler were contacted in the parking lot of Sam’s Casino, where they were living in the newly purchased van. During the conversation, defendant told Detective Wahl, in Billie’s and Roesler’s presence, that the three of them had pooled their money to buy the van. Defendant said they paid $1,800 for the van and did not borrow any money to purchase it.

At no time during the conversation in Tehachapi or Las Vegas did defendant state he had been in the Oildale/Bakersfield area on September 11, or that he had borrowed additional money from Shirley Jordan on that date. f. The first taped statement/confession The following day, October 4, 1995, defendant was arrested for murder and taken to a Las Vegas police station, where he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]) and agreed to give a tape-recorded statement to Detective Wahl and Sergeant Johnson.

Defendant again stated he and Billie moved from Wilson Avenue on September 4, 1995. Billie stayed behind in Tehachapi at her daughter Brenda Doty’s home, while defendant drove to Las Vegas to look for landscaping work. His truck broke down en route and he hitchhiked the rest of the way to Las Vegas, where he stayed with Billie’s son Eric for four or five nights. He hitchhiked back to Tehachapi the following Sunday. Self and Amos picked up Billie and defendant the next morning, Monday, September 11, and they returned to the Self/Amos residence in Oildale.

Defendant stated he left the residence alone around noon, walked around the neighborhood looking for a truck to purchase, and returned at 2:00 p.m., after which he and Billie left on the 7:00 p.m. bus for Las Vegas. Defendant stated they bought the van on Wednesday, September 13, for $1,800 in cash, and began living in it. The money used to purchase the van came from his hitting several casino jackpots and finding $200 in the casino bathroom, plus $900 that Eric put in as a “50/50” partner in defendant’s new landscaping business.

Defendant again stated the last time he saw the Jordans was the morning before he and Billie moved out of Unit B. He denied returning to the Jordans’ apartment on Monday, September 11. He denied he and Billie were in need of money, claiming they had $1,600 to $1,800 in cash when they moved out. The detectives had learned defendant and Billie had not paid their September rent upon moving.

Defendant was confronted with the fact he had lied by failing to relate that he returned to the Self/Amos residence on Monday, September 11, with $3,000 which he gave to Billie, falsely telling her and the others that he had borrowed it from his mother. Detective Wahl and Sergeant Johnson told defendant they believed he killed Shirley and Joey Jordan because he was broke and needed money. At first defendant denied it. Upon further questioning, he admitted he lied about borrowing the $3,000 from his mother, but*did not explain from where he obtained the money.

He acknowledged knowing Shirley kept a lot of cash in her residence, and volunteered his opinion that she was extremely frugal. As the questioning continued, defendant ultimately admitted to killing Shirley and Joey. He stated he went to see Shirley on September 11, that they sat and talked for a while, and that at some point he pulled out the knife Roesler had given him and demanded money from her. He stated they struggled and he first stabbed her, and then stabbed Joey. He washed the blood off the knife, returned to the Self/Amos residence, and gave the knife to Bob Amos.

As the interview continued, defendant provided additional details. He explained that Shirley had invited him in through the back door and he was surprised to see Joey home from school. He told Shirley he and Billie were “having it pretty rough” and needed to borrow some more money. Shirley responded by stating, “You guys are draining me.” She went into the kitchen and when she returned, defendant stood up, pulled out the knife Eric had lent him, told her he was desperate, and demanded all the money in the house. He grabbed her, stating, “Shirley, I don’t want to hurt you.

Now just tell me where the money is.” She did not comply; they started wrestling on the floor, at which point he “whacked” her a couple of times. He then “lost it” as Joey came running out. He grabbed Joey, they all fell to the floor, and he stabbed Shirley in the chest. He then decided he had to kill Joey to prevent him from being a witness to the crime. Defendant claimed he stabbed both victims in the living room and left their bodies in that room. Defendant then entered the bedroom and found the money in a dresser drawer.

He washed the blood off his hands and knife in the kitchen sink, left through the back door, and returned to the Self/Amos residence, where he gave Billie the money and Amos the knife. He showered and changed his clothes, then he and Billie took a bus to Las Vegas that same evening. When confronted with the fact that the bodies were found in the bedroom and not the living room, defendant insisted he killed both victims in the living room, then sat watching them for a long time after they were dead.

Finally, defendant admitted he lied when he said he and Billie had $1,800 at the time they moved out, and lied about Eric going in “50/50” with him on the van. He also admitted he was broke when he killed Shirley and Joey. g. The second taped statement/recantation On October 12, 1995, eight days after defendant confessed to the murders, Kern County Sheriff’s Detective John Soliz went to Las Vegas to reinterview defendant at the request of the district attorney who charged the case. Detective Soliz had had no prior contacts with defendant.

During this second interview, defendant recanted much of his earlier statement, now claiming he did not know how the Jordans were killed, and asserting he made up the version of events he told the detectives one week earlier “to keep my wife from going to jail.” Defendant now claimed, “I was scared to death to even talk to them other officers [s] and then when they got me up here that night badgering me, I just made up that story.” Defendant now claimed that after leaving the Self/Amos residence on Monday morning, September 11, after telling Billie he was going to meet his mother to borrow money, he realized she would not lend him any money so he decided to ask Shirley for a loan.

He arrived at Shirley’s apartment between 11:00 and 11:30 a.m. They had coffee, he told her his truck had broken down, and he asked her for a $3,000 loan. She entered her bedroom, closed the door, and returned with $3,000, which she gave to him, stating she had an additional $4,300 in reserve at that time. No such sum of money was found in the apartment after the murders. Defendant explained he did not tell Detective Wahl and Sergeant Johnson about this loan because he was scared: “I mean just, I don’t know why. I’m an ex-con, scared to death.

I mean a murder was committed.” After Shirley lent him the money they talked some more and Joey took defendant’s picture with a disposable camera. He left the Jordans’ apartment at 1:30 or 2:00 p.m. The reason he lied to Billie about where he had obtained the $3,000 was because she was a jealous woman and he did not want her to think he and Shirley were having an affair. At the conclusion of the interview defendant again insisted he did not kill Shirley or Joey and did not know who did. 2. Defense Evidence Angelica Herrera was a close friend of both Shirley and the McWhorters.

Herrera testified Shirley had in the past mentioned what a good friend defendant was, how she liked having him around to fix things, and how well defendant got along with Joey. Herrera also testified Billie was jealous toward defendant, recounting that once Billie had gotten mad at Herrera for hugging defendant in what Billie felt was an inappropriate manner. Cynthia Durham had known Shirley for seven or eight years, from the time the two were neighbors in another Wilson Avenue apartment complex — 1319 Wilson Avenue.

Although claiming they had been best friends and had seen each other every day, Durham was unaware Shirley had moved to 1016 Wilson Avenue until months after she moved. Durham testified Shirley came to her house on the morning of September 11, which was Durham’s son’s birthday, and asked if Durham and the boys wanted to meet for pizza that evening. She testified Shirley then called her between 4:00 and 4:30 p.m. that same afternoon, sounded nervous and scared, cancelled the plans because something had come up, and hung up quickly before Durham could learn what was going on.

Durham claimed she tried to call Shirley back, got the answering machine, and left a message. Durham acknowledged talking to Detective Soliz shortly after she learned of the Jordans’ deaths, but denied telling him that the pizza date she and Shirley had planned was in August. Dr. Michael Baden, a forensic pathologist and private defense consultant in this case, testified the most common cause of multiple deaths, where there is no other obvious cause, is carbon monoxide poisoning. Based on his review of the photographs of the crime scene and Dr.

Walker’s autopsy report, he believed both deaths were the result of asphyxia caused by carbon monoxide poisoning. He also believed the bodies were only in the “beginning” stages of decomposition, estimating the deaths had occurred three to five days prior to their discovery. Dr. Baden also concluded the many bruises Dr.

Walker identified on Shirley’s body were not sustained while she was alive, but rather were “postmortem artifacts.” Defendant’s wife Billie (who had cooperated with and testified for the prosecution) was called by the defense to testify that when they moved out of unit B, defendant moved a washing machine into the storage shed adjacent to the Jordans’ Unit A.

She recalled defendant “bumped” a gas valve connected to the adjoining water heater, which caused a momentary gas leak until he could shut the valve and tighten it, “and then it was okay.” David Faulkner, a forensic entomologist with the San Diego Natural History Museum, testified about the use of insects to determine time of death in homicide cases. Approximately two years after the murders, Faulkner viewed photographs of the crime scene and examined Shirley’s clothes, on which he found crushed insect remains.

Using these insect remains, which he assumed had been crushed at the time Shirley’s body was removed from the scene, and ambient temperature data gleaned from weather reports for the relevant time period, Faulkner estimated the victims’ deaths occurred four to five days before the bodies were discovered on September 18. Rod Englert, a retired law enforcement officer and private forensic consultant, testified for the defense regarding the blood spatter evidence at the crime scene.

After reviewing the police and autopsy reports and photographs of the scene, Englert concluded the evidence of each of the distinct blood spatter events in the bedroom, except for one, was inconsistent with “cast off’ spatter caused by blunt trauma, and consistent with spatter caused by “expectorated” (i.e., coughed-up) blood. Englert could not, however, explain the several drops of blood found on a wall near a fan that had been knocked over in the bedroom, which clearly was “cast off” spatter.

Englert believed the bloodstained, wadded-up paper towel found in the living room had a “nasal blowing pattern” indicating it had been used by someone with blood coming from his or her nose. Ultimately, it was Englert’s opinion that Shirley “was coming out of the bathroom on her hands and knees when she turned and coughed that blood against the dresser, and proceeded forward and either coughed it to the right or to the left, moving about.” 3. Prosecution Rebuttal Evidence Dr.

Robert Hall, a professor of entomology from the University of Missouri and an expert in the field of forensic entomology, reviewed the materials in the case and defense witness Faulkner’s conclusions about estimating the time of death through examination of the dead insect remains. Dr. Hall testified that the fact the crushed insect specimens were not properly collected or preserved injected uncertainty into any estimation of how long the insects had lived, and that any conclusion as to when the insects died was pure speculation.

He also testified there was no way to discern how long it took the insects to find and reach the bodies inside the residence, and that Faulkner’s assumption that they had accessed the body within an hour was sheer speculation. Dr. Hall concluded that “the entomological evidence in this case cannot rule out a seven-day time frame.” Criminalist Laskowski was also recalled and testified the bloodstains on the paper towels found in the living room were clearly transfer stains and did not come from someone blowing his or her nose and expectorating blood into the towels. B. Penalty Phase 1.

Prosecution Evidence Evidence was introduced that defendant had previously suffered felony convictions of grand theft person in 1977, forgery and felon in possession of a weapon in 1984, and robbery in 1985. Additionally, defendant was committed to the California Youth Authority for a term of 11 months for burglary when he was 15 years old. One of the victims of the 1985 robbery, Terry Wendt, testified about defendant’s conduct in perpetrating that crime. On January 18, 1985, Wendt was working as a bartender in Redding, California. His girlfriend was also present in the bar that evening.

Defendant entered the bar, produced a gun, ordered them into the bathroom, at one point cocked the gun while pointing it at Wendt, kicked Wendt in the groin, and then stole money and other items from the bar before fleeing. Walter Newport, a former police officer for the City of Bakersfield, testified about events underlying defendant’s conviction of grand theft person from Alvin Tepel in January 1977.

Newport testified that Tepel suffered lacerations on his head, two black eyes, a bloody mouth, and a missing front tooth; the interior of Tepel’s residence was found covered with bloodstains; and Tepel had to be transported to the hospital as a result of the incident. 2. Defense Evidence Defendant’s mother, Mary Headrick, testified defendant was 50 years old at the time of trial and he was one of two sons bom during her marriage to Aulvis McWhorter. Shortly after the children were bom, the McWhorters split up and Headrick married Frank Heath, with whom she had two more children.

Heath was an alcoholic and both physically and mentally abusive to Headrick and her two sons from her first marriage. He would beat defendant and his brother Troy and he beat her in front of them as well. She recounted one incident in which Heath cut the heads off the family’s pet chickens. Headrick testified she called the police “[t]oo many times to remember” in connection with the beatings.

When defendant was in fifth grade, Headrick moved numerous times to get away from Heath, but he would find out where they lived, “sweet talk” his way back into their lives, and the cycle of drinking and violence would begin anew. Headrick testified Heath would single out defendant for beatings, that defendant would never cry, and that over time defendant seemed to become “a loner.” Headrick and Heath separated when defendant was 12 or 13 years old. Headrick testified defendant was a good-hearted child, was never disrespectful, helped her with her other children, cleaned the kitchen, cooked, and ironed clothes.

Defendant’s brother, Troy McWhorter, testified about his and defendant’s upbringing in the home of their stepfather, Frank Heath. Troy ultimately dropped out of high school, joined the military and served in Vietnam, married, had two children, and became an engineering supervisor for a railroad, where he worked for the next 30 years. At the time of trial he had been married for 31 years and had been a reserve deputy for the Kern County Sheriff’s Department for 21 years.

Troy testified Heath was an alcoholic who was intoxicated most of the time, and described him as a mean man who was physically and mentally abusive. Life with Heath was “horrendous.” Heath would single out defendant for beatings because he looked like his father. When Heath beat the boys, he would pull them by their hair and kick them like a football. Once, when defendant was three years old, Heath forced him to eat chili peppers until he cried. Troy recalled calling the police on Heath when he beat their mother.

He recalled the occasion when Heath killed the family’s chickens and made him and defendant pluck them, and another occasion when Heath killed their pet rabbit in front of them, nailed it to a wall, then ate it for dinner. Troy testified defendant got married when he was 18 and had subsequently been divorced and remarried several more times. Defendant had . three children from his prior marriages, with whom he was not close. Troy was not aware that defendant had been convicted of robbery in Shasta County or grand theft in Kern County. Dr.

William Pierce, a clinical psychologist, was hired by the defense to develop a psychological and social profile of defendant. He interviewed defendant, his mother, his brother, an ex-wife, and his friend Angelica Herrera, reviewed materials relating to defendant’s prior incarcerations, and conducted a series of psychological tests. Dr. Pierce concluded defendant showed no signs of organic brain damage or injury, was of average intelligence, was emotionally constricted, and had difficulty when tasks became too complex or ambiguous. He further believed defendant would adjust well to structured prison life.

William Reinhart, a former warden of Eagle Mountain Community Correctional Facility, a private prison in Desert Center, California, reviewed defendant’s Department of Corrections and Rehabilitation files. Reinhart felt defendant could adapt well to prison life and, if he were sentenced to life without the possibility of parole, would likely be assigned to a “level 4” facility with numerous restrictions placed on him. II. Discussion A. Jury Selection Issues 1.

Death Qualification of Jurors Defendant contends he was denied his constitutional right to an impartial jury when the trial court excused for cause two prospective jurors, Robert C. and Margaret R, who expressed strong reservations about their ability to vote for the death penalty. We find no error. A trial court may discharge a juror whose views on the death penalty would “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844]; see People v.

Rodrigues (1994) 8 Cal.4th 1060, 1146 [36 Cal.Rptr.2d 235, 885 P.2d 1] (Rodrigues).) A prospective juror can properly be excused for cause if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. (People v. Barnett (1998) 17 Cal.4th 1044, 1114 [74 Cal.Rptr.2d 121, 954 P.2d 384]; Rodrigues, supra, 8 Cal.4th at p. 1146.) There is no requirement that the prospective juror’s bias against the death penalty be proved with unmistakable clarity. (Wainwright v.

Witt, supra, 469 U.S. at p. 424.) Rather, the trial judge need only determine that the prospective juror would be unable to faithfully and impartially apply the law in the case before him or her. (Rodrigues, supra, 8 Cal.4th at p. 1147.) 2. Prospective Juror Robert C.

In responding to the jury questionnaire about his views on the death penalty, Prospective Juror Robert C. indicated, “I’m not sure what my feelings [about the death penalty] are.” He checked a box indicating he “might be able to vote to impose the death penalty in an appropriate case depending on the facts and circumstances.” During sequestered Hovey voir dire (Hovey v. Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301]), the trial court explained the process of weighing aggravating and mitigating factors toward reaching a penalty determination.

When asked if he was a person who could go through such a process before making a decision about imposing the death penalty, Robert C.. opined that he was not. When asked if he could vote to impose the death penalty if the aggravating circumstances outweighed the mitigating circumstances, he responded, “I’m not sure I could.” When pressed further as to whether he could ever vote for death where “appropriate,” he responded, “I don’t know if I could come to that conclusion.

I don’t know.” He further indicated his church was opposed to the death penalty and that he would feel “uncomfortable” trying to set aside his faith in voting to impose death. When asked by the court, “[C]an you write down on a piece of paper, for example, death penalty is appropriate and say that in open court?” he responded, “I don’t know if I can.” When asked, “You can’t make a commitment as to whether or not you could do or you could say death is appropriate. Is that just kind of the bottom line?” he responded affirmatively. 3. Prospective Juror Margaret P.

In responding to the jury questionnaire about her views on the death penalty, Prospective Juror Margaret P. indicated she had “mixed feelings” about it and that “jurors should not have the burden of deciding if another person lives or dies.” She further indicated she had told her husband that she “never wanted to be on a trial where a death penalty was determined by a jury.” She concluded by writing, “Even if I agreed to a guilty verdict, I would find it very difficult to impose the death penalty — it is a decision I would rather not make.” During sequestered voir dire, Margaret P. reaffirmed her responses to the death penalty questions in the jury questionnaire.

She told the trial court she felt “very strongly” that jurors should not have to make a decision involving the death penalty; that she did not know if she could do it; and that she would rather have the judge determine the appropriate sentence.

When asked by the court if she would follow the law regardless of her feelings, she responded, “I honestly don’t know.” When asked by the prosecutor if she could “as a personal decision that you need to make” ever vote for the death penalty in an appropriate case, she replied, “The way I feel about it, I could not make that decision.” The high court has explained that even where a juror gives ambiguous or conflicting answers to inquiries about his or her views on the death penalty, the trial court is in the best position to evaluate those responses, and its determination as to the juror’s actual state of mind is binding on appeal. (Wainwright v.

Witt, supra, 469 U.S. at pp. 428-429; see People v. Phillips (2000) 22 Cal.4th 226, 234 [92 Cal.Rptr.2d 58, 991 P.2d 145]; Rodrigues, supra, 8 Cal.4th at p. 1147.) Any ambiguities in the record are to be resolved in favor of the trial court’s determinations, and the reviewing court determines only whether the trial court’s findings are fairly supported by the record. (People v. Crittenden (1994) 9 Cal.4th 83, 122 [36 Cal.Rptr.2d 474, 885 P.2d 887]; People v.

Howard (1988) 44 Cal.3d 375, 417-418 [243 Cal.Rptr. 842, 749 P.2d 279].) Manifestly, neither of these two prospective jurors was improperly excused for cause. B. Guilt Phase Issues 1. Voluntariness of First Statement (Confession) Defendant claims his confession was coerced and that the trial court erred by finding only the latter portion of the taped statement involuntary and inadmissible.

Specifically, he claims Detective Wahl and Sergeant Johnson threatened to hold his wife Billie in custody and charge her as an accessory to his crimes if he did not confess; threatened to involve his mother by calling her as a witness in the case; and lied to him when indicating they had a witness who had seen him near the Jordans’ apartment on the day in question. Defendant argues further that the trial court did not properly consider the totality of circumstances in determining voluntariness when it ruled only the second portion of his taped statement involuntary and inadmissible. a. Background 1.

Motion to exclude confession and recantation Defendant filed a pretrial motion to exclude his confession (first statement, Oct. 4, 1995) and subsequent recantation (second statement, Oct. 12, 1995) on grounds they were coerced, involuntary, unreliable, and untrue. At the hearing on the motion the parties stipulated he had validly waived his Miranda rights before each interview. Sergeant Johnson testified for the prosecution at the hearing on the motion. He recalled advising defendant he had a warrant for his arrest for murder and transporting him to a Las Vegas police station.

He also advised Billie McWhorter and Eric Roesler of defendant’s arrest, telling them he wanted to talk with them about any additional knowledge they might have regarding the murders. Sergeant Johnson testified Billie voluntarily agreed to be interviewed and was transported to a Las Vegas police station for that purpose. Sergeant Johnson testified that, at the time, he believed Billie was very possibly a coconspirator in defendant’s crimes.

The detective had learned from other relatives that defendant told them he received $3,000 from his mother when he was in Bakersfield, had given the money to Billie, and had then used the money to buy a van and a trailer. Johnson testified that in speaking with defendant the evening before his arrest, defendant, in Billie’s presence, had stated that he, Billie, and Roesler had pooled their money to buy the van upon arriving in Las Vegas. Defendant said nothing about borrowing money from his mother.

The fact that Billie at times may have had possession of the stolen money, and the fact that she did not correct defendant when he made the false statement to the detectives about the alleged source of the money used to buy the van, led Sergeant Johnson to suspect Billie herself may have been implicated in some way in the criminal episode. In support of the motion, the defense called Dr. Stephen Estner, a forensic psychiatrist. In preparation for his testimony at the hearing, Dr.

Estner had reviewed the transcript and audiotape of defendant’s statement and met with him for several hours to discuss the circumstances of his confession. Dr. Estner found defendant did not suffer from any mental abnormalities but “has a very big soft spot regarding Billie.” Dr. Estner reviewed portions of defendant’s first taped statement, identifying the areas where he believed Detective Wahl and Sergeant Johnson had made comments intended to play into defendant’s sensitivities concerning his family members.

He identified one instance where Sergeant Johnson told defendant he had read in a newspaper that his brother, Troy McWhorter, whom Johnson knew, had recently undergone triple bypass surgery. Dr. Estner found this significant because defendant had sensitivities about his brother, given the extent to which their lives had diverged — with defendant’s having a history of run-ins with the law while Troy had become a law enforcement officer. Dr. Estner also identified instances in which he believed Sergeant Johnson was playing on defendant’s sensitivity to the possibility his mother would become involved in the case.

In one instance Sergeant Johnson told defendant he was dragging his family into the investigation. In another he suggested defendant himself had involved his mother as a potential witness by lying about meeting and borrowing money from her on September 11. In another instance, Johnson suggested to defendant that unless he confessed his mother would become a witness and would have to “ride this roller coaster with you.” In another he told defendant he had “sucked” his mother and Billie into the situation and was pulling everyone down around him. Dr.

Estner also noted an instance where defendant told the officers he did not want his mother involved and Detective Wahl pointed out that she was going to have to become involved unless he told them the truth. Dr. Estner also pointed to exchanges concerning Billie’s possible complicity in the crimes.

In one instance, Detective Wahl told defendant she was not convinced Billie was not somehow involved in the crimes, and had not yet decided if Billie was “going to go with you too.” In another, Sergeant Johnson suggested Billie might be an accessory after the fact, which Estner believed was the point at which defendant became consciously aware of the officers attempting to use Billie to pressure him to confess. In another, Sergeant Johnson put further pressure on defendant when he told him, “the ball’s in your court.” Finally, Dr.

Estner identified Sergeant Johnson’s comment to defendant at page 86 of the transcript, “You have my word as a man to man that she [Billie] goes if you give me enough details about the homicides that I can show . . . ,” as the point at which defendant “gets the message” that he could save Billie by making a detailed confession. Dr. Estner concluded defendant’s will was psychologically and emotionally overborne to the point where he believed he could protect Billie and his other family members only by confessing. 2.

Trial court’s ruling The trial court found the first portion of the first taped statement, up to Sergeant Johnson’s comment about letting Billie go, which included defendant’s

summary confession to having killed Shirley and Joey Jordan, to be neither coerced nor involuntary. Specifically, the trial court disagreed with defendant’s claim that Detective Wahl or Sergeant Johnson had improperly used Billie as leverage to coerce him into confessing to the murders during that first portion of the interview.

The court gave the following reasons for its conclusion: “[T]he Court [is] of the opinion that the officer is accurately, Officer Johnson is accurately telling the defendant that he will consider what information he has which might relate to [Billie’s] involvement in any of the events, particularly those events after the killing, and it is quite clear that the scenario as, as presented to the defendant and the theory outlined by Officer Johnson was . . . that Billie was in possession of [a] large sum of money [a] short period of time after the killing and was continuously with the defendant for [a] period of several days thereafter, during which time, of course, that money was spent to buy a vehicle and a trailer.

And that, of course, that scenario as painted was [a] scenario [of] Billie being a person who was benefitting from the large amount of money that had been possessed by the defendant in a manner in which was apparently unexplained to the investigators and unaccounted for to the investigators relative to Billie’s possession thereof or involvement in the spending thereof or her knowledge of that money being used and spent for the van and trailer. Obviously, she was with Mr.

McWhorter throughout all of that process and was benefitting from the purchase of the van, driving in it, residing in it, and so, of course, quite clearly the question is whether she was a person who knowingly was in possession of stolen property or property that had been purchased and is now possessed resulting from [a] large amount of cash that, obviously, inferentially she should [have] known or could [have] known or actually did know was the result of illegal activities of Mr. McWhorter.

And if to what extent she knew that or had knowledge of that, what was that knowledge as to the means or the way in which he came in possession of that large sum of money, in excess of some $3,000.” In contrast, the court found the second portion of the statement, everything following Sergeant Johnson’s comment to defendant about letting Billie go, to have been induced by a clearly expressed promise of benefit to Billie and therefore inadmissible. The court gave the following reasons for that conclusion; “Now at the top of page 86, however, the nature of the colloquy changes, and the defendant, Mr.

McWhorter, specifically asks a very direct question, ‘I’ve got your word she’s gone, she gets to go?’ And both of the officers specifically and directly answer, yes.

Now up and until that time the Court’s of the considered opinion, although certainly the evidence is . . . very, spread over, of course, approximately 40 pages, the Court is of the opinion up and until that time there was no promise of benefit that induced the statement or any statements theretofore made or implied promise of benefit, the officers appropriately interchanged with the defendant and discussed with the defendant what . . . information that he might provide might be probative of or helpful of. [f] Nevertheless, at this point they specifically give him the promise that she would be released if he continued to give additional statements thereafter, [f] And the Court’s of the opinion that there was a promise of benefit made at that point and that the promise of benefit was so clear and specific that statements made by the defendant thereafter are involuntarily obtained, and therefore, statements made after, after that exchange as reflected at page 86 of the transcript lines one and two are inadmissible because of . . . their being involuntarily obtained.” Defendant’s trial counsel thereafter informed the court that in light of its ruling the defense was electing to introduce the entirety of the first taped statement to the jury, including the second portion that the court had ruled involuntary and inadmissible, to give the jury “a full flavor of what transpired” during the interview.

Counsel explained this decision as a tactical one, intended to show the jury that defendant’s confession was not reliable because the details he gave about the crime scene and manner of death were at odds with the facts of the case. The court determined the decision was a matter of trial tactics and confirmed for the record that defendant understood and consented to it. Accordingly, defendant’s claim is that the first portion of the statement, up to Sergeant Johnson’s comment about letting Billie go and including his initial

summary confession, should have also been found coerced and involuntary, and therefore inadmissible. b.

Applicable law The law governing voluntariness of confessions is settled. “In reviewing the voluntary character of incriminating statements, ‘ “[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ ” ([People v.

Hogan (1982) 31 Cal.3d 815,] 835 [183 Cal.Rptr. 817, 647 P.2d 93].)’ (People v. Thompson (1990) 50 Cal.3d 134, 166 [266 Cal.Rptr. 309, 785 P.2d 857].) ‘In order to introduce a defendant’s statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] . . . When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.’ (People v. Vasila (1995) 38 Cal.App.4th 865, 873 [45 Cal.Rptr.2d 355].)” (People v.

Maury (2003) 30 Cal.4th 342, 404 [133 Cal.Rptr.2d 561, 68 P.3d 1] (Maury).) “A statement is involuntary if it is not the product of ‘ “a rational intellect and free will.” ’ (Mincey v. Arizona (1978) 437 U.S. 385, 398 [57 L.Ed.2d 290, 98 S.Ct. 2408].) The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ (Lynumn v.

Illinois (1963) 372 U.S. 528, 534 [9 L.Ed.2d 922, 83 S.Ct. 917].) ‘ “The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ (People v.

Thompson, supra, 50 Cal.3d at p. 166.)” (Maury, supra, 30 Cal.4th at p. 404.) “A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. (People v. Benson (1990) 52 Cal.3d 754, 778 [276 Cal.Rptr. 827, 802 P.2d 330], citing Colorado v.

Connelly [(1986)] 479 U.S. [157,] 167 [93 L.Ed.2d 473, 107 S.Ct. 515].) A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. (Benson, supra, at p. 778.) Although coercive police activity is a necessary predicate to establish an involuntary confession, it ‘does not itself compel a finding that a resulting confession is involuntary.’ (People v.

Bradford (1997) 14 Cal.4th 1005, 1041 [60 Cal.Rptr.2d 225, 929 P.2d 544].) The statement and the inducement must be causally linked. (Benson, supra, at pp. 778-779.)” (Maury, supra, 30 Cal.4th at pp. 404-405.) c. Discussion Defendant first argues the trial court’s ruling itself reflects the court did not properly consider the totality of circumstances because it found only the second portion of the first statement to be coerced, involuntary and inadmissible.

He contends that instead of examining the totality of circumstances surrounding the confession, the trial court “scoured the record” to find a promise of benefit, which it believed was a prerequisite for finding the statement coerced. Defendant concludes that the court, in so doing, “narrowed the test for voluntariness and committed reversible error.” The record belies the claim. In ruling on the motion, the trial court indicated it had carefully reviewed the transcript of the first statement as well as listened to the audiotape.

The court’s detailed explanation of its ruling on the motion alone spans nearly 20 pages of the reporter’s transcript.

In the course of that ruling, the court stated for the record its understanding that “the statement and the colloquy between an officer and a defendant and the interactions and what is said respectively and the way the statement develops is, of course, to be taken in its entirety and not to be taken in isolated segments, but is to be viewed contextually and to be viewed as a whole and not in snippets or parts, but should be viewed in its entirety, and that, of course, is what the Court has done.” Our own independent review of the record confirms that the court exhaustively considered every aspect of defendant’s claim that the officers, through their questioning and references to defendant’s family members, unduly coerced him into confessing to the murders.

The fact that the trial court ultimately focused on Sergeant Johnson’s unequivocal “promise of benefit” to let Billie go if defendant furnished enough details about the homicides, and the court’s determination to exclude as involuntary only that portion of the statement following Sergeant Johnson’s remark, do not establish that the court failed to consider the totality of circumstances in reaching its ruling.

Defendant would seemingly have us conclude that faithful adherence to the totality of circumstances test requires that the entirety of any taped interrogation giving rise to an incriminating statement later challenged on voluntariness grounds must be found either wholly admissible or wholly excludable, but he cites no precedent in support of that inflexible proposition.

As will be shown, our own independent review of the totality of circumstances surrounding the first interview convinces us that, up to the point where Sergeant Johnson made the comment about letting Billie go, all of defendant’s statement, including his initial

summary confession to having killed the victims, was established to have been freely and voluntarily given. Defendant claims the detectives “threatened” to call his mother as a witness in the case unless he confessed. The matter arose when Sergeant Johnson told defendant the police knew he was lying when he claimed he met his mother and borrowed $3,000 from her in Bakersfield on September 11. Defendant responded that he did not want his mother involved. Sergeant Johnson at one point commented to defendant, “Like I say, you know. Yes, we’re gonna talk to your mom. Because, because you, you pulled her in this.

I didn’t pull her in this. You said that when you left [Rosalie’s] house — you said that you went down to meet your mom. Your mom gave you some money, lent you some money. . . . And you wanted me a while ago not to involve your mom. Now if you stick with that story and you don’t tell me why you did it, yeah, your mom’s gonna be on the stand. Because you pulled her in it. I didn’t. I didn’t make up your mom’s, uh, name. I didn’t make up your mom’s story.

So if you want her to ride this roller coaster with you because all of a sudden you’re afraid of, of — ” With regard to the comments about defendant’s mother, we do not read Sergeant Johnson’s remarks as “threatening” to involve her as a witness in the case unless defendant confessed. Rather, the officers, in essence, were telling defendant that by lying about having borrowed the money from his mother, he himself was involving her in the case as a potential witness, which was an accurate observation.

As the trial court observed in its lengthy ruling, “by virtue of [defendant’s] representations ... the mother was quite anticipatorily a witness who could be a witness who would be available, necessary to impeach that particular information or contradict that information.

And of course, there’s nothing that the Court can determine from that statement that is anything other than representation that that’s not true and the mother is in a position to provide testimony that plans to meet the fact that — or any assertion that he received money from her was untrue, [f] So the officers from time to time quite appropriately state as fact that because of comments he’s made, representations of fact that Mr. McWhorter has made, as a result thereof he is bringing others into the picture, including his mother.

And certainly they challenge him to .. . change that information or admit that it’s inaccurate information.

And there’s nothing that the Court can determine that by virtue of those challenges and those statements that someone such as his mom could very well be a witness if that were the continuing presentation of fact by the defendant, certainly is not a threat or an aspect of coercion that the Court finds or feels or determines is of such a nature that it reaches the legal standard of a threat such that it would make the statement obtained at any point involuntary.” Defendant next claims the officers’ comments about his brother, Troy McWhorter, were also improperly coercive. Again we must disagree.

In directing the course of the casual conversation about defendant’s brother, Sergeant Johnson was able to probe and learn more facts about whether defendant was being truthful in claiming his mother had lent him the money on September 11. For example, the officer asked defendant how Troy and his mother were doing, and then asked, “When’s the last time you talked to her or seen her?

Or Troy too?” Detective Wahl then asked defendant if Troy lived in Bakersfield, and when defendant answered yes, the detective followed up by asking, “And your mom lives in Bakersfield?” The officers thereby learned from defendant’s next response that his mother lived in Tulare, not Bakersfield. Defendant next suggests the officers lied to him by telling him someone had seen him near the Jordans’ apartment on September 11 in order to coerce his confession. The record does not establish this was a lie.

It is true that by the time of trial, two years after defendant furnished his statements, no such percipient witness was called to testify, but the reasons for that could be many. Defendant himself stated in his subsequent recantation to Detective Soliz eight days later that a pregnant young woman who lived across the way from the Jordans saw him leave their residence on September 11. Moreover, the defense had an opportunity to ask Sergeant Johnson who this witness was when he testified at the hearing on the motion to suppress the confession, but he failed to do so.

In any event, it is settled that deception alone does not necessarily invalidate a confession. (People v. Thompson, supra, 50 Cal.3d at p. 167.) Finally, defendant points to those instances he deems “threats to involve [his] wife criminally,” citing to portions of the first part of the statement where the detectives refer to Billie’s possible involvement as an accessory after the fact.

As the trial court observed, defendant himself was the first one to bring up Billie when he stated, “You know, my wife’s in another room [at the police station] scared to death I imagine.” In response, Detective Wahl told defendant, “No, she’s, she’s fine. I, I talked to her. And she’s fine. I mean, she’s not happy about it but she’s, she’s fine.” Thereafter, defendant was confronted with the numerous lies he had been telling, including his lie to Billie that the $3,000 he gave her on September 11 had come from his mother.

Sergeant Johnson told defendant they had given him the opportunity to tell the truth and he had not. The officers told him they believed he had killed Shirley and Joey because he was broke and needed money. Sergeant Johnson commented, “You said you wanted your family out of it. You wanted to save the — a few people a little heartache. Well, you’re not, . . . you’re dragging everybody within your family into this thing.” Defendant continued to deny killing the Jordans, and Sergeant Johnson replied that he could prove it.

At this point, Detective Wahl stated, “Well, I’ve — you know, another thing that bothers me, too, is, uh, I’m not convinced that Billie wasn’t involved.” Defendant replied, “Billie wasn’t involved in anything ’cause nothing happened,” to which Detective Wahl responded, “And, uh, you know, I — I haven’t really decided yet if Billie’s going to go with you too.” The questioning continued. Defendant stated to the officers, “Okay ... let me tell you this.

If, if you’ve got all this so-called evidence and witnesses, and you know I was gone for a couple of hours from [the Self/Amos residence], and you know for a fact Billie was there, then you know . . . good and well I’m not saying I did anything, and I didn’t, but you know damned good and well she didn’t, and couldn’t have, and wasn’t with me anywhere. So how can you sit there and say you’re not sure.” When defendant next stated, “[S]he doesn’t have any knowledge,” Sergeant Johnson replied, “Who took the money? Who took the blood money? Who’s living in the van?” Detective Wahl added, “Mm-hmm.

And who, who was lying about where they got the money yesterday and didn’t say anything?” Defendant responded, “What’s she supposed to do, jump up and call me a liar?” Defendant again repeated that Billie was “scared to death” and asked the officers to “please let her go.” At this point, defendant admitted he had lied when he said he borrowed money from his mother, and attempted to convince the officers Billie was not an accessory after the fact.

Sergeant Johnson and Detective Wahl responded that they did not think Billie was involved in the actual murders, but again explained why she could be found an accessory after the fact given that she received the money, was living in the van purchased with the money, and had remained silent in the face of defendant’s lies to the officers the previous evening about the source of the money used to buy the van. Sergeant Johnson next told defendant, “The ball’s in your court.

You call the shots on, on what’s gonna happen tonight . . . with Billie.” Defendant responded, “I don’t see why you can even think about arrestin’ my wife for anything.” Sergeant Johnson replied, “Because you’re not bein’ truthful.” Defendant asked, “Because you want me to admit to murder?” Sergeant Johnson replied, “Cause I’m, I’m, no, I want you to tell me the truth. I’m gonna to [szc] charge you with murder.

And I’m gonna convict you of murder.” Defendant next commented to Sergeant Johnson, “[F]or a nice guy to try to bulldog me into telling you something to, to get that little girl in trouble, that’s pretty goddamn cold,” to which Johnson replied, “You know, I’m not doing that. You’re the one doing that.” When defendant disagreed, the officer added, “because you’re not being truthful.” The exchange on the matter of whether Billie could be deemed an accessory after the fact continued, with Sergeant Johnson finally commenting, “[Y]ou may think I’m trying to pressure you by holding Billie over your head.

I’m just being realistic. That’s all, I’m being realistic.” Defendant responded, “Well it sounds to me like you want me to admit to, admit to it so you’ll let her go.” Johnson replied, “No, you know what, you know what I want you to do? I want you to tell me the truth. And so far you haven’t been telling me the truth. You’ve lied to me all this time here then all of a sudden at the end you say, you know what, she didn’t know anything about that.

Why should I believe that?” Defendant replied, “Because it’s the truth.” Detective Wahl told defendant to consider that they already had enough evidence to get a warrant for his arrest for the murders. When Sergeant Johnson then asked, “And where’d you get the money when you left the house?,” defendant responded, “Well I think that’s gonna be between me and my lawyer but I damn sure, I damn sure didn’t murder for it.” The exchange continued. Defendant again stated, “[I]t’s not fair that you’re holding my wife over my head.” Sergeant Johnson replied, “You know what, oh, I didn’t put her up there.

You did.” Defendant disagreed, telling the officer, “You stood there and told me if I don’t tell you that I did this, that you’re gonna hold her as an accessory.” Sergeant Johnson responded, “And I told you, I told you that I wouldn’t accept that unless you told me details. Did not, did I not? I’m not looking for you just to say okay I did it, let her go. I won’t accept that. I will not accept that. And again, do not shift the blame on other people for something that you’ve done. I’m not over here because I’m a bad guy. I’m not over here because of me. I’m over here because of you.

Billie’s down here because of you. Eric’s down here because of you. So don’t try to reverse it.” At this point in the interrogation defendant admitted he had gone to the Jordan residence on September 11, claiming he and Shirley sat and talked for a while. He then stated that at some point he pulled out the knife Roesler had lent him and demanded money from Shirley. They struggled and he stabbed her, and then stabbed Joey. He admitted he “cleaned the knife up,” returned to the Self/Amos residence, and gave the knife to Bob Amos.

After telling the officers he had killed the victims, defendant stated, “Now will you let my wife go please.” Sergeant Jordan explained he would still have to talk to Billie, but then said “if what you’re telling me is true” he would let Billie (and Roesler) go. The Sergeant then indicated he wanted defendant to “go back over this in a little bit more detail,” to which defendant replied, “What do you want from me. I just want my wife out of here.” Sergeant Johnson stated, “You haven’t been able to share this with anybody and now is the time you can share it with me.

And yes it’s going to, it’s going to benefit your wife. Because if you tell me (unintelligible).” Defendant asked, “I got your word she’s gone, she gets to go?” Both Sergeant Johnson and Detective Wahl answered, “Yes.” Defendant asked again, “[D]o I have your word?” Sergeant Johnson then made the comment on which the trial court based its determination to exclude the remainder of the statement as involuntary.

He responded, “You have my word as a man to man that she goes if you give me enough details about the homicides that I can show .. . .” Defendant commented, “[The] details of what, I just told you what I did,” to which Sergeant Johnson replied, “I know, I know. But I said I need specifics . . . .” The questioning continued, with defendant going over the events surrounding the murders and providing additional details. Defendant argues these facts are analogous to those in People v. Trout (1960) 54 Cal.2d 576 [6 Cal.Rptr. 759, 354 P.2d 231] (Trout), overruled on another ground in People v.

Cahill (1993) 5 Cal.4th 478, 510, footnote 17 [20 Cal.Rptr.2d 582, 853 P.2d 1037], in which the defendant’s confession was found coerced and inadmissible. We disagree. In Trout, the defendant was suspected of complicity in the kidnapping and armed robbery of an Oakland grocer and his wife. No woman was thought to be involved when the incident came to the attention of the police. Eight armed officers entered the Trouts’ residence late at night through an unlocked door with guns drawn. The Trouts’ three young children were asleep in the bedrooms. The defendant and Mrs. Trout were separated and questioned, with Mrs.

Trout saying she had been at church on the evening of the robbery. Sometime after midnight, the Trouts were taken in different automobiles to the Oakland police station. Mrs. Trout gave a written statement to the police at 3:00 a.m. The defendant was taken to a cell that had no sleeping facilities. Beginning at 10:00 a.m. the next morning he was interrogated four times, with Mrs. Trout present on two or three of the occasions as he was being questioned. Twice between interrogation periods Mrs. Trout was sent in to talk to the defendant.

At 3:30 that afternoon, the defendant, in the presence of his wife, made an oral confession. Immediately following the confession, Mrs. Trout was released from custody. (Trout, supra, 54 Cal.2d at pp. 579-580.) The defendant in Trout testified his confession was not true and that his knowledge of the details of the crimes had been obtained from newspaper accounts and from the police during the interrogation. The police led him to believe his wife would be retained in custody until he confessed, and the only reason he made the confession was to secure her release.

While he was at home the police told him that his wife could remain there if he would give them a statement, and, when he answered that he could not confess because he did not know anything about the crimes, one of the officers, whose name he did not know, asked him what “manner of man” he was to allow her to go to jail when all he had to do was confess. (Trout, supra, 54 Cal.2d at p. 580.) Shortly after he arrived at the police station his wife was crying and tried to sit near him but was forbidden to do so. The interrogating officer told him Mrs.

Trout should be at home with the children, that she could go home immediately if he confessed, and that all he had to do was “ ‘come clean and confess, clear this thing up, and she could go home with the children.’ ” (Ibid.) The first time the interrogating officer sent Mrs. Trout to talk to the defendant, she was crying and told him she had been informed she could go home if he confessed. At the second visit she said she had been taken home for a short while, that the baby cried for her when she left, and that she wanted to go home and “ ‘just couldn’t bear it.’ ” (Ibid.) According to the testimony of Mrs.

Trout, the police told her when they first arrived at her home that she would not be arrested if her husband would tell them “what they wanted to know.” (Trout, supra, 54 Cal.2d at p. 581.) At the police station, two officers told her they did not want her there, that she belonged at home with the children, and that she could go home if her husband told them all he knew about what happened. The interrogating officer also told her she would be released if her husband confessed to the crime, and that “when she would be released” depended entirely upon him.

After she had been taken home for a brief visit and had held her baby, she conveyed “ ‘that message’ ” to the defendant. (Ibid.) This court found the Trouts’ version of events truthful and compelling, and found the defendant’s confession involuntary. (Trout, supra, 54 Cal.2d at pp. 583-585.) The facts of Trout, however, are plainly distinguishable from those now before us. Here, the investigating officers were not using the specter of hardship that would be wrought upon defendant’s innocent wife or children to encourage him to confess, as was the case in Trout.

Defendant knew Billie had not been taken into custody against her will, as was the defendant’s wife in Trout. He was with Billie when she voluntarily agreed to go to the police station along with him to furnish her own statement after she was told she would then be free to leave, whereas defendant was being formally placed under arrest for the homicides regardless of the outcome of his own interrogation. Mrs.

Trout was not herself suspected of any criminal activity in connection with the robbery kidnapping under investigation, whereas here, the officers had cause to suspect Billie’s complicity in defendant’s crimes as an accessory after the fact. Billie was living in a van that the officers suspected was purchased with stolen funds, and was likely aware defendant had lied, to her as well as other family members, about where he had obtained the $3,000.

In short, Billie was not brought in to visit with defendant for the purpose of encouraging him to confess to the homicides, as was patently the case with Trout’s wife, who was uninvolved in the crimes for which Trout was under investigation but who was nonetheless transported to the station house to talk with her husband while their young children remained at home. In contrast to Trout, we find two Court of Appeal decisions — People v. Jackson (1971) 19 Cal.App.3d 95 [96 Cal.Rptr. 414] (Jackson) and People v.

Abbott (1958) 156 Cal.App.2d 601 [319 P.2d 664] (Abbott) — much closer on point with the facts of this case. In Jackson, supra, 19 Cal.App.3d 95, the victim was killed during an attempted burglary or robbery of his home where, according to information given the defendant, he kept a valuable coin collection. The defendant admitted firing the fatal shots when the victim resisted

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