THE PEOPLE, Plaintiff and Respondent, v. MITCHELL CARLTON SIMS, Defendant and Appellant, 5 Cal. 4th 405

Opinion GEORGE, J. Following the guilt phase of a jury trial, defendant Mitchell Carlton Sims was found guilty of one count of first degree murder (Pen. Code, §§ 187, 189)» two counts of attempted murder (§§ 187, 664), and three counts of robbery (§211). The jury found that defendant used a firearm during the commission of each offense (§ 12022.5, subd. (a)) and found true two special-circumstance allegations that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)) and during the commission of a robbery (§ 190.2, subd. (a)(17)(i)).

Following the penalty phase of the trial, the jury imposed the death penalty. We affirm the judgment in its entirety. Facts I. Guilt Phase Evidence. A. The prosecution’s case. 1. The crimes. On December 8,1985, in Glendale, California, defendant and codefendant Ruby Padgett entered a Domino’s Pizza parlor and asked Kory Spiroff, the assistant manager, for directions to a drugstore. On the afternoon of the following day, a man and a woman entered a Sears store in Glendale and purchased a package of socks, underwear, a clothesline, and a knife.

At the sales counter, the clerk overheard the woman admonish the man, who appeared anxious, to relax, because they would be leaving the store shortly. On the evening of December 9, Kory Spiroff was working at the Domino’s Pizza parlor with delivery drivers Edward Sicam and John Harrigan. The three men wore Domino’s Pizza uniforms, consisting of short-sleeved shirts bearing a Domino’s badge and a name tag above the badge. At 11:03 p.m., they received a telephone order for pizza from a male who spoke with a southern accent.

The order was to be delivered to room 205 of the Regalodge Motel, located a three-minute drive from the parlor. At 11:26 p.m., Harrigan, who was 21 years of age, left the parlor in his Toyota truck to deliver the pizza. He had sufficient money to make change for a $20 bill. Approximately 11:45 p.m., defendant and Padgett entered the Domino’s Pizza parlor. Defendant approached the front counter, pointed a gun at Sicam, and ordered Sicam and Spiroff into a back office. Spiroff warned defendant that a delivery driver was expected to return shortly.

Defendant removed his sweater to reveal a Domino’s Pizza shirt bearing Harrigan’s name tag and chuckled, “No, I don’t think so.” Defendant found a bank deposit bag, which he gave to Padgett, who began to remove the cash (approximately $2,000) from the cash drawers. Defendant told Padgett to watch for fingerprints and began wiping the tables and cash drawers. At this point, Richard Wagner, an off-duty coworker and friend of Spiroff, arrived at the store in a truck, accompanied by his wife. After Wagner parked in front of the store and entered the premises, defendant ordered Spiroff to approach the front counter.

Spiroff acknowledged the Wagners as customers, rather than acquaintances, and asked them to stand on the other side of the front counter. Mr. Wagner was puzzled and suspected a robbery was in progress. Defendant, wearing a Domino’s shirt bearing Harrigan’s name tag, walked to the front counter. Mr. Wagner, impersonating a customer, ordered a pizza. Defendant told him to wait outside the store in his truck and that defendant would bring the pizza to him as soon as it was prepared. He then returned to the back office with Spiroff, where Padgett was holding Sicam at gunpoint.

Padgett, commenting to defendant that he had “always wanted a watch,” took Spiroff s watch from a windowsill and handed it to defendant. When the pizza was prepared, defendant brought it to the Wagners, who were waiting outside. The Wagners then left and, proceeding to a pay telephone, called the manager of the Domino’s Pizza parlor, who told them he was unaware of any employees at the establishment other than Sicam and Spiroff. The Wagners then contacted the police. Defendant reentered the store premises, began to pace the floor, and asked Spiroff where defendant could lock up the two men.

Defendant then announced he had decided to take both men one at a time into the walk-in cooler. The cooler was 8 feet by 12 feet, with a 3-tier rack against the left wall, and was maintained at a temperature between 32 and 40 degrees Fahrenheit. Defendant first forced Spiroff into the cooler, proceeding to tie his hands tightly behind his back with one end of a rope. He then looped the other end of the rope over the rack and pulled it downward, raising Spiroff s arms to a painful position behind his back, which in turn forced Spiroff to stand on his tiptoes to lessen the tension of the rope.

When Spiroff complained, defendant told him, “Shut up. At least you live.” Defendant then tied the end of the rope around Spiroff s neck with a knot in back of the neck, pulling the rope so tautly that—if Spiroff lowered himself from his tiptoes—the tension of the rope would cause him to strangle. When defendant asked him at what time the cooler would be opened the following day, Spiroff said that ordinarily the door would be opened at 11 a.m. Defendant stated that by that time, he and Padgett would be in San Francisco.

When Spiroff asked defendant about the whereabouts of Harrigan, defendant told him that Harrigan had been tied up at the motel and would be found after Spiroff was found. At that point, Spiroff felt extreme pain in his legs, neck, wrists, arms, and shoulders, and his hands and wrists were numb. Because of the low temperature and his stance on his tiptoes, Spiroff’s calves began to tighten. But when he failed to maintain that stance, the rope tightened around his neck, beginning to strangle him. Defendant next brought Sicam into the cooler and bound him in a similar manner.

When Sicam moaned that defendant was choking him, defendant responded, “You are alive.” Defendant then closed the cooler door, leaving the establishment at 12:15 a.m. with Padgett. While standing on the toes of one foot, Spiroff attempted to knock over cartons stacked on the ground next to him so that he could stand on them and thereby alleviate the pressure of the rope around his neck. As he moved from side to side, however, the rope tightened around his neck. Eventually he was able to knock over a box so that he and Sicam could stand on it. In response to Mr.

Wagner’s telephone call, Glendale police officers arrived at the Domino’s Pizza parlor at 12:30 a.m. They were met by Mr. Wagner and the manager. The officers entered the establishment and, upon opening the door to the walk-in cooler, found Spiroff and Sicam. After the officers untied the ligatures, either Spiroff or Sicam told them that the person responsible for their plight was wearing Harrigan’s uniform shirt and that Harrigan was last seen leaving to deliver a pizza to the Regalodge Motel.

After proceeding to the Regalodge, the officers obtained from the motel manager the key and the registration card to room 205. The room was registered under defendant’s name. Upon entering the room, the officers heard the sound of running water from inside the bathroom. Opening the bathroom door, an officer found the dead body of Harrigan in the bathtub. The bathtub was full of water, and Harrigan’s body was submerged under the water with his back parallel to the side of the tub.

His head was located immediately under the water spout, submerged approximately one inch under the water line, with cold water running onto the back of his neck. His wrists were bound behind his back; his ankles were bound, and his feet and hands were “hogtied” together behind his back. Harrigan’s head was covered with a pillowcase bound tightly around his neck with a rope. A folded washcloth had been placed inside his mouth, secured by a sock tied around his head. No money, wallet, or car keys of the decedent were found on the premises. The telephone cord inside the room had been severed. Dr.

Joseph Cogan, the forensic pathologist who performed the autopsy on Harrigan’s body, determined that the cause of death was ligature strangulation. His opinion was based upon (1) the depth of the ligature furrow around the decedent’s neck, indicating the extreme pressure of the ligature around the neck; and (2) the numerous hemorrhages on the inner eyelids, indicating that Harrigan was alive when the neck ligature was applied, because it obstructed the flow of blood to the head and the brain. Dr.

Cogan opined that the decedent lived for no more than 10 minutes after the neck ligature was applied and that the use of this ligature was sufficient in and of itself to kill Harrigan. Dr. Cogan further testified he could not rule out drowning as a possible concurrent cause of death, based upon Harrigan’s having been found fully submerged in a bathtub of water with a gag in his mouth, and the presence of frothy pulmonary edema in his trachea and bronchi.

Investigative technicians testing for fingerprints in the motel room were for the most part unsuccessful, because all surfaces appeared to have been wiped with a wet towel. One fingerprint which positively matched defendant’s left thumb print was found on the inside of the cardboard toilet tissue roll. Defendant’s latent fingerprint also was found inside one of the telephone books in the motel room, on the page listing pizza establishments.

The rope used as ligatures to bind Harrigan, Spiroff, and Sicam was similar to the clothesline sold to the unidentified couple at the Sears store shortly before the commission of the crimes. The knots used to tie the ligatures of Spiroff and Sicam were of the same type as was found on the ligatures on Harrigan’s neck. The prosecution introduced evidence of defendant’s motive to commit the crimes. In March 1984, defendant was hired by Domino’s Pizza in South Carolina.

In June 1984, he enrolled in its management training program and, in January 1985, became a manager of a Domino’s Pizza parlor located in West Columbia, South Carolina. Defendant resigned from Domino’s on May 12, 1985. He believed that his boss, Mr. David Littman, was responsible for defendant’s losing a portion of a bonus to which defendant thought he was entitled. Defendant was furious with Littman and sent his letter of resignation, complaining about Littman, to the Domino’s Pizza headquarters in Michigan.

Upon receiving no response to his resignation letter, defendant sought revenge, relating to his then-current girlfriend his desire to use explosives to kill Littman. Defendant also purchased a gun. On November 15, 1985, defendant was hired as a delivery driver by another Domino’s Pizza establishment, located in Hanahan, South Carolina. 2. Defendant’s arrest.

On December 25, 1985, after verifying an anonymous tip that defendant and Padgett were residing in a motel room in Las Vegas, and having been informed that defendant was believed to be armed with a handgun and a machine gun, Detective August Knudsen, accompanied by other officers of the Las Vegas Police Department, proceeded to the motel room. Defendant allowed them to enter. After defendant identified himself, he and Padgett were placed under arrest, handcuffed, and searched. Knudsen recited to defendant the Miranda warnings (Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and, without waiting for a reply, asked defendant “where the gun or guns were.” Defendant replied there was a gun under the mattress of the bed. The detective lifted the mattress and found a fully loaded .25-caliber pistol. Other items subsequently found in the motel room included ammunition, a bank deposit bag, a knife, a pair of socks, a

section of a December 11, 1985, Los Angeles Times opened to an

article entitled, “Delivery Man Slain While Making Run,” and a page torn from the yellow pages of a Las Vegas telephone book listing pizza establishments (including the local Domino’s Pizza parlors). Harrigan’s Toyota truck also was recovered in Las Vegas, approximately 20 miles from the motel. Found inside the truck was the Domino’s Pizza shirt bearing Harrigan’s name tag. Defendant was taken to the Clark County jail in Las Vegas.

The Las Vegas authorities did not seek to question him, but on that same day (Dec. 25) Officers Jonathan Perkins and Gary Montecuollo of the Glendale Police Department met with defendant in a jailhouse interview room. Officer Perkins informed defendant of his constitutional rights pursuant to Miranda. Defendant acknowledged his understanding and signed a written admonition form indicating that he did not waive his rights. As the officers stood up and prepared to leave, defendant asked the officers what was going to happen to him.

In the ensuing conversation, described in detail below (pp. 437-438), defendant twice uttered “I had to kill that boy” and, thereafter, “The boy would have identified me.” Officer Perkins advised defendant that because he had invoked his rights, the officers could not discuss the facts of the case with him. The officers then left the interview room. On the following day, December 26, defendant notified the jailhouse authorities that he again wished to speak with the Glendale police officers.

The officers returned to the interview room and, while waiting for defendant, Officer Perkins activated a small tape recorder that was concealed from view. When defendant arrived, he initially complained about the conditions of his confinement and then made further statements tending to incriminate himself with regard to the Glendale murder. When Officer Perkins readvised defendant of his Miranda rights, defendant expressly waived those rights.

He then related that he had worked for Domino’s Pizza in South Carolina and that he and Padgett had travelled by bus from that state to Glendale, then renting room 205 at the Regalodge Motel. Defendant further stated that they thereafter went to the Glendale Domino’s Pizza and asked for directions to a drugstore, subsequently proceeding to a Sears store, where they purchased a knife, among other items. The following day they returned to the Domino’s Pizza and ordered a pizza.

At that point in the interview, defendant indicated he did not wish to speak further without having an attorney present, and the interview was terminated. An edited version of the tape-recorded statement was admitted into evidence and was played for the jury at the guilt phase of the proceedings. B. The defense case. Defendant did not testify. Dr. Robert Bucklin, a forensic pathologist, testified that he disagreed with the prosecution’s expert testimony that indicated ligature strangulation was a cause of death. He opined that the cause of death was drowning.

According to his theory, Harrigan still was alive when placed in the bathtub and, while attempting to maneuver himself, struck his head, lost consciousness, and drowned. Dr. Bucklin listed the factors supporting his conclusion, including the heavy accumulation of watery material in the lungs and a quantity of frothy pulmonary edema in the trachea and the larnyx, which indicated the decedent had inhaled a substantial amount of water into his lungs after being placed in the bathtub.

Although he did not conclude the neck ligature was the cause of death, he was of the opinion the ligature might have been a contributing cause of death by cutting off the decedent’s circulation and airways. Dr. Cogan (the forensic pathologist who had testified during the prosecution’s case-in-chief) also was called by the defense and testified that the defense expert’s theory as to the cause of death was a possibility.

A criminalist testified that a piece of rope tied around a person’s neck, under conditions approximating those involving the ligature tied around the decedent’s neck, would not cause loss of consciousness. The defense presented was that the evidence supported the inference Harrigan was alive when placed in the bathtub and left by defendant and Padgett, and that the prosecution had failed to prove beyond a reasonable doubt that defendant had possessed the intent to kill Harrigan, Spiroff, or Sicam.

As previously noted, at the conclusion of the guilt phase of the proceedings, the jury found defendant guilty of one count of first degree murder, with two special-circumstance findings (that defendant committed the murder while lying in wait and during the commission of a robbery), two counts of attempted murder, and three counts of robbery. The jury also found that defendant used a firearm during the commission of each offense. II. Penalty Phase Evidence. A. The prosecution’s case.

The prosecution introduced evidence that defendant robbed and murdered two Domino’s Pizza employees in South Carolina less than one week prior to the commission of the crimes charged in the present case. On the evening of December 3,1985, approximately two weeks after defendant was hired as a delivery driver at the Domino’s Pizza parlor in Hanahan, South Carolina, Gary Melkie, the assistant manager, and Chris Zerr, a delivery driver, were working at the establishment.

On December 4, shortly after 2 a.m., Melkie appeared in the lobby of the Hanahan Police Department, located approximately three blocks from the Domino’s Pizza. Melkie, dressed in his Domino’s Pizza uniform, apparently had driven a truck from the restaurant to the police station. A telephone cord was dangling from one of his wrists. He was bleeding profusely from gunshot wounds to his head and neck and was uttering cries for help. After a paramedic was called to render aid, Melkie was placed in an ambulance and transported to the hospital.

En route, the ambulance made a detour to the Domino’s Pizza parlor, where another shooting had been reported. There, the police found Zerr lying on the floor covered with blood, Ms hands tied beMnd Ms back with a telephone cord. He died shortly thereafter from a gunshot wound to the head. The establishment’s cash drawers had been emptied of approximately $1,164. Melkie was transported to the hospital and was conscious upon arrival. While physicians attended to Mm in the emergency room, the paramedic asked Melkie who had shot Mm. Melkie responded, “Sims.

Mitch Sims.” Melkie related how defendant had tied up Melkie and then shot Zerr. As a police officer entered the emergency room, Melkie screamed that he was in pain. The officer asked Melkie several times whether he knew who had shot Mm. Melkie responded, “Mitch Sims,” and described various features of defendant, including the color of Ms hair. The officer further inquired whether Mitch Sims had been a friend. Melkie responded that defendant worked for Domino’s Pizza. Melkie later died, following surgery. Melkie’s autopsy established that he suffered four gunshot wounds to the head and neck.

Three bullets were removed from Ms head, a bullet casing was removed from Ms tongue, and a fifth bullet, wMch had exited from Ms head, was recovered from a wall at the Domino’s Pizza parlor. The unedited version of the tape recording of the statement made by defendant on December 26,1985, was admitted into evidence and played for the jury. In Ms statement, defendant related that he had robbed a Domino’s Pizza parlor in South Carolina before travelling with Padgett to California. B. The defense case.

The defense presented as mitigating evidence numerous witnesses who related defendant’s family background of brutal physical, sexual, and emotional abuse. Defendant’s mother, Mildred, testified that she married defendant’s father in 1951 when she was 15 years of age and that defendant, the youngest of their 3 cMldren, was born when she was 24 years of age. Defendant’s parents divorced when defendant was six months of age, after Ms father impregnated a young girl. Mildred married Arnold Cranford in 1961 and remained married to him until his death in 1980. They had two children.

Defendant saw his natural father on only two or three occasions during his childhood. Defendant’s stepfather Arnold had a drinking problem and became violent and sexually abusive when intoxicated. Mildred testified that when defendant was seven years of age, Arnold “raped” him. Thereafter, on numerous occasions, Arnold forced defendant to engage in oral sex with him. When defendant was 16 years of age, Arnold forced him to have sexual intercourse with his mother and, on another occasion, with his older sister Merlon. Arnold repeatedly told defendant that he (defendant) was “no good” and a bad person.

Defendant began drinking heavily at the age of 14 years and attempted suicide by drowning when he was an adolescent. Merlon testified to repeated incidents of physical and sexual abuse she and the other children had suffered at the hands of Arnold. Frequently Arnold would drag Merlon out of bed, force her to strip, and then beat her, tie her to a bed, fondle her, and occasionally have sexual intercourse with her. Following one such incident, Merlon suffered a broken nose and black eyes. After other incidents she was hospitalized. Merlon ultimately left the household but returned at 16 years of age, pregnant.

One evening Arnold threatened Merlon at knifepoint that he was going “to cut that baby out of her stomach,” and then sliced her breast, necessitating that she be hospitalized. Merlon attempted suicide on numerous occasions, once by a drug overdose and on another occasion by shooting herself in the chest. When defendant was 16 years of age, Arnold came home drunk and forced defendant’s younger stepsister, Margaret, to undress and lie beside him on the bed. He began to fondle her and told her he was going to have sex with her.

After defendant called the police, Arnold was arrested and ultimately was convicted and placed on probation. Defendant’s wife testified concerning defendant’s employment history, indicating that defendant would become withdrawn and depressed whenever he was promoted or otherwise received an advancement, and that he suffered a sense of worthlessness and guilt resulting from the incestuous act he committed with his mother. His mother, sister, and stepbrother each testified that defendant was sensitive and a good father to his three children.

A psychiatrist testified that defendant suffered chronic depression in addition to mental impairment, which resulted from alcohol and substance abuse. A prosecutor from South Carolina testified that murder charges were pending against defendant in South Carolina and that in the event defendant was convicted of those offenses, the prosecution would seek the death penalty. C. Rebuttal.

A South Carolina law enforcement officer testified that defendant’s wife had told him that defendant, while incarcerated, had watched the video movie “The Executioner’s Song” and had told her that “he was going to go out just like Gary Gilmore in a blaze of glory and not tied to a chair.” At the conclusion of the penalty phase of the proceedings, the jury fixed the punishment at death. Discussion I. Guilt Phase Issues. A. Claim of Wheeler error.

Following voir dire on the qualifications of the prospective jurors to serve on a capital case, the prosecutor exercised eight of his first twelve peremptory challenges to remove four Black prospective jurors—Ms. Weaver, Ms. Henry, Ms. Gaines, and Mr. Chambers—and four Hispanic-surnamed prospective jurors, leaving no Blacks and only one Hispanic-surnamed person among the prospective jurors then seated in the jury box. Defense counsel objected pursuant to People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] that the prosecutor improperly was exercising his peremptory challenges to exclude all Blacks from the jury. The prosecutor was permitted by the trial court to state his reasons for the challenges and did so, making reference to the responses of the prospective jurors during the death-qualifying voir dire. The trial court recessed the proceedings to review the questionnaires and the transcript of the death-qualifying voir dire of the four persons in question.

Upon resumption of the proceedings, the trial court permitted the prosecutor again to explain his peremptory challenges and defense counsel to respond. Defense counsel then, for the first time, raised an objection to the prosecutor’s exercise of peremptory challenges to four Hispanic-surnamed persons—Mr. Mandujano, Ms. Cerda, Ms. Vasconcellos, and Mr. Estevez. The prosecutor, without prompting from the trial court, immediately offered an explanation for having removed these persons.

The trial court determined that the prosecution’s reasons for peremptorily challenging the four Black prospective jurors as well as the four Hispanicsurnamed prospective jurors were not predicated on group bias and that the prosecutor had sustained his burden of justification for removing these prospective jurors. After the trial court denied defendant’s motion to dismiss the jury panel pursuant to the Wheeler decision, the defense raised no further Wheeler objection during the remainder of the voir dire proceedings. On appeal, defendant contends the trial court erred in denying his Wheeler motion.

As we shall explain, defendant’s contention lacks merit. Under the principles articulated in Wheeler, supra, 22 Cal.3d 258, 276-277, a party may not employ peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. (Wheeler, supra, 22 Cal.3d at p. 276; People v. Fuentes (1991) 54 Cal.3d 707, 713 [286 Cal.Rptr. 792, 818 P.2d 75]; see Powers v.

Ohio (1991) 499 U.S. 400 [113 L.Ed.2d 411, 111 S.Ct. 1364].) “If a party believes an opponent is improperly using peremptory challenges for a discriminatory purpose, that party must make a timely objection and a prima facie showing that the jurors are being excluded on the basis of group bias. [Citation.] To establish a prima facie case, the moving party should first make as complete a record as possible; second, the moving party must establish that the persons excluded are members of a cognizable group; and third, the moving party must show a strong likelihood that the persons are being excluded because of group dissociation.” (Fuentes, supra, 54 Cal.3d at p. 714.) Once the moving party has established a prima facie case, the burden shifts to the other party to come forward with a group-neutral explanation for the exercise of the challenges related to the particular case being tried. (Wheeler, supra, 22 Cal.3d at pp. 281-282; Fuentes, supra, 54 Cal.3d at p. 714.) 1.

Prima facie case. With respect to the prosecutor’s exercise of peremptory challenges to the four Black prospective jurors, the trial court, having made no specific finding that defendant had established a prima facie showing, allowed the prosecutor to explain his exercise of peremptory challenges. We consistently have held, however, that, in general, when the trial court inquires as to the prosecutor’s justifications, the court has made “ ‘at least an implied finding’ ” of a prima facie showing. (Fuentes, supra, 54 Cal.3d at p. 716; People v.

Johnson (1989) 47 Cal.3d 1194, 1217 [255 Cal.Rptr. 569, 767 P.2d 1047].) The trial court’s recess of the proceedings, following the Wheeler objection, for the purpose of reviewing the questionnaires and transcript of the voir dire of the four Black prospective jurors, and its subsequent statement it “would be glad” to hear again from the prosecutor regarding his explanation for the challenges, provide a further indication of the trial court’s implicit finding of a prima facie showing as to the removal of these prospective jurors.

With respect to defense counsel’s Wheeler objection to the prosecutor’s peremptory challenges of the four Hispanic-surnamed persons, the question of a prima facie showing became moot. Before the trial court made any finding as to whether a prima facie showing of group bias had been made as to the removal of these four prospective jurors, the prosecutor immediately offered justifications for his peremptory challenges, and the trial court considered those justifications before denying the Wheeler motion.

Because the trial court had no occasion to make a finding on the threshold question, the issue on review is the adequacy of those justifications, and “ ‘the preliminary issue of whether the defendant had made a prima facie showing becomes moot.’ ” (Fuentes, supra, 54 Cal.3d at p. 717, citing Hernandez v. New York (1991) 500 U.S. _ _ [114 L.Ed.2d 395, 405, 111 S.Ct, 1859].) Accordingly, we proceed to review the prosecutor’s justifications for his peremptory challenges of the four Black and four Hispanic-surnamed prospective jurors, and the trial court’s evaluation of those justifications. 2.

The prosecutor’s justifications. The prosecutor offered the following justifications for his exercise M peremptory challenges to remove the eight prospective jurors in question. As to the four Black prospective jurors, the prosecutor explained that during the death-qualifying voir dire, Ms. Weaver had expressed hostility toward the death penalty, Mr. Chambers had expressed ambivalent feelings concerning the death penalty, Ms. Henry had indicated an inability to distinguish between proof beyond a reasonable doubt and proof beyond any possible doubt, and Ms.

Gaines, 27 years of age, appeared too young and to lack sufficient experience in exercising responsibility. The prosecutor also maintained there was no tactical or other reason that would cause him to seek exclusion of all Blacks from the jury, stating: “We have a southern white defendant and we have white victims. Why would I not want blacks on the jury?” As to the four Hispanic-surnamed prospective jurors, the prosecutor offered that Ms. Vasconcellos, born in Equador, had obvious difficulty communicating with counsel in English; Mr.

Estevez demonstrated a cynical attitude toward the adoption of the death penalty law (the prosecutor paraphrased the juror’s attitude as “the reason [Chief Justice] Rose Bird was defeated was because the people didn’t have a head on a platter”); Mr. Mandujano was a youthful college student with insufficient maturity to accept the responsibility involved in serving on a death-penalty case; and Ms. Cerda was very young and appeared immature. As the above

summary indicates, the prosecutor’s stated justifications were facially race-neutral, based upon a perception of a “specific” or individual bias of each juror rather than a group bias, and thus afforded a constitutionally permissible basis for the exercise of the peremptory challenges in question. (Wheeler, supra, 22 Cal.3d at p. 275; see e.g., People v. Sanders (1990) 51 Cal.3d 471, 498 [273 Cal.Rptr. 537, 797 P.2d 561] [juror’s predisposition against death penalty justified peremptory challenge]; People v. Johnson, supra, 47 Cal.3d 1194, 1217-1218; People v.

Bittaker (1989) 48 Cal.3d 1046, 1092 [259 Cal.Rptr. 630, 774 P.2d 659] [juror’s insistence upon absolute proof in capital case justified peremptory challenge]; People v.

Henderson (1990) 225 Cal.App.3d 1129, 1153 [275 Cal.Rptr. 837] [young people do not constitute a cognizable class for Wheeler purposes].) The record demonstrates the trial court properly performed its duty under Wheeler by making “ ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known,’ ” before determining that the justifications were bona fide. (Fuentes, supra, 54 Cal.3d at p. 718; People v.

Hall (1983) 35 Cal.3d 161, 167-168 [197 Cal.Rptr. 71, 672 P.2d 854].) The record reflects the trial court reviewed the questionnaires and the transcript of the death-qualifying voir dire of the four Black prospective jurors before making its ruling. The responses of these four prospective jurors, tending to support the justifications proffered by the prosecutor, reveal that Ms. Weaver professed a religious belief that “I just don’t think nobody should be able just to give anybody death”; that Mr.

Chambers, when questioned whether he thought the death penalty was a good idea or a bad idea, responded, “I don’t really know” and characterized it as “[p]robably a necessary evil”; that Ms. Henry indicated an inability, to understand the concept of proof beyond a reasonable doubt, stating she saw “very little” difference between proof beyond a reasonable doubt and proof beyond all possible doubt, and that Ms. Gaines was 27 years of age and, as expressly noted by the trial court, her brother-in-law had robbed a store.

Although Gaines’s immaturity cannot be verified from the cold record, absent a showing by defendant to the contrary we must “rely on the good judgment of the trial court[]” to evaluate whether the prosecutor’s reason was bona fide. (Wheeler, supra, 22 Cal.3d at p. 282.) As to the Hispanic-surnamed prospective jurors, the trial court expressly found that Mr. Mandujano “appeared quite young to the court.” Moreover, the transcript of the death-qualifying voir dire of Ms. Vasconcellos, Mr. Estevez, and Ms. Cerda supports the prosecutor’s justifications for removal of these jurors. Ms.

Vasconcellos appeared to have some difficulty with the English language; Mr. Estevez made a cynical remark about the death penalty law, and Ms. Cerda gave tentative, uncertain, and equivocal responses to nearly every question that was asked relating to the death penalty. Focusing on the trial court’s sole reference, in denying the Wheeler motion, to the prosecution’s justifications relating to the four Black prospective jurors and “prospective jurors Vasconcellos, and Mandujano . . . ,” omitting any reference to the justifications relating to Mr. Estevez and Ms.

Cerda, defendant argues the trial court failed properly to evaluate whether these latter justifications were bona fide. Preferably, in ruling on a Wheeler motion, the trial court should state expressly its determination as to the adequacy of the justification proffered with respect to each peremptory challenge. In the present case, however, where the trial court permitted argument by both the prosecution and the defense relating to the stated justifications for the challenges of Mr. Estevez and Ms.

Cerda, and the record of the voir dire of these jurors amply supports those justifications, the trial court’s apparent oversight reasonably cannot be construed as demonstrating a failure to exercise its responsibilities in ruling upon the Wheeler motion. Defendant also maintains the age of Ms. Gaines, Mr. Mandujano, and Ms. Cerda did not justify their excusal, because the record reflects the prosecution did not challenge two young Caucasian jurors less than 30 years of age (Karlberg and Blakely).

Defendant overlooks, however, the full explanation given by the prosecutor for his challenges of the three jurors—not their numerical age but rather their apparent immaturity and inexperience with assuming weighty decisions and responsibilities. Additionally, the prosecutor did challenge one prospective Caucasian juror because of her youth. Finally, as stated, the record of the voir dire of Ms. Cerda fully supports the justification proffered for her excusal, and the trial court expressly found that Mr.

Mandujano, a college student, appeared quite young, and further found a justification unrelated to age for the challenge of Ms. Gaines. Thus, the circumstance that two youthful Caucasian jurors remained on the panel does not render discriminatory the prosecution’s challenge of the three youthful, minority prospective jurors. We conclude the record reflects a conscientious determination by the trial court that the prosecutor predicated his peremptory challenges of each of the foregoing eight prospective jurors upon his perception of an individual bias on the part of each juror, and not on the basis of group bias.

The record therefore fails to support defendant’s claim of Wheeler error. B. Lying-in-wait special-circumstance finding. The jury found true the special circumstance allegation that defendant committed the murder while lying in wait (§ 190.2, subd. (a)(15)). Defendant challenges this finding on three grounds, contending that this assertedly erroneous finding was prejudicial to his defense at the penalty phase of the proceedings. 1. Sufficiency of the evidence. Defendant contends the evidence was insufficient to sustain the special circumstance finding. We disagree.

Our prior cases establish that the factual matrix that justifies treatment of lying in wait as a special circumstance is “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage[.]” (People v. Morales (1989) 48 Cal.3d 527, 557 [257 Cal.Rptr. 64, 770 P.2d 244]; see People v.

Edwards (1991) 54 Cal.3d 787, 825 [1 Cal.Rptr.2d 696, 819 P.2d 436].) The element of concealment is satisfied by a showing “ ‘that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’ ” (People v. Webster (1991) 54 Cal.3d 411, 448 [285 Cal.Rptr. 31, 814 P.2d 1273], citing Morales, supra, 48 Cal.3d at p. 555; see People v.

Edwards, supra, 54 Cal.3d at p. 825.) We agree with the Court of Appeal that the present case presents a “textbook example” of lying in wait under the foregoing definition. (See, ante, p. 432, fn. 4.) There was substantial evidence that defendant and Padgett purchased a clothesline and knife, then rented a motel room, telephoned tiie Domino’s Pizza parlor, and lured Harrigan to the motel room on the pretext of ordering a pizza, concealing their true intent to rob and murder him.

They waited for Harrigan in the motel room, overpowered him upon his arrival, carefully bound him with the clothesline, gagged him, and left him either dead or to drown in a bathtub full of water. Contrary to defendant’s assertion, the circumstance that defendant did not conceal his presence in the motel room from Harrigan does not negate the element of concealment. (People v. Edwards, supra, 54 Cal.3d at p. 825; People v. Webster, supra, 54 Cal.3d at p. 448; People v.

Morales, supra, 48 Cal.3d at p. 555 [the concealment element may manifest itself either by an ambush or by the creation of a situation in which the victim is taken unaware even though he or she knows of the murderer’s presence].) Defendant contends that although the evidence supported a finding that he and Padgett waited for Harrigan in the motel room, there was no evidence they were “watching” him during the period of waiting.

Defendant maintains that mere concealment of purpose, followed by a period of waiting, is a characteristic of numerous categories of murders that are not classified as special circumstance offenses. Again, we disagree.

Although the evidence does not suggest that defendant, hidden from view, was watching Harrigan as he left the Domino’s Pizza parlor and drove to the motel, there was substantial evidence that defendant, after placing the pizza order by telephone, was waiting in his motel room and was “watchfhl,” i.e., alert and vigilant in anticipation of Hanigan’s arrival so that defendant could take him by surprise. The special circumstance element of “watchful” waiting therefore was satisfied. 2. Jury instruction.

The jury was instructed in part, in accordance with former CALJIC No. 8.81.15 (1983 rev.), that the term “while lying in wait” signifies “a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. . .

Defendant contends a reasonable juror would have understood the instruction to mean that the lying-in-wait requirement could be satisfied by a brief period of premeditation and deliberation, and that because concealment of purpose satisfied the concealment element, the instruction failed meaningfully to distinguish the special circumstance from a first degree murder perpetrated by means of lying in wait or based upon premeditation and deliberation. We disagree.

The reference to premeditation and deliberation related solely to the duration of the period of lying in wait and did not dispense with the other elements peculiar to the special circumstance—namely, watchful waiting and a surprise attack upon an unsuspecting victim, either by ambush or by taking the person unaware. (People v.

Morales, supra, 48 Cal.3d at p. 555.) Further, the remaining portion of the jury instruction included the requirement that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. (People v.

Edelbacher (1989) 47 Cal.3d 983, 1022 [254 Cal.Rptr. 586, 766 P.2d 1].) The instruction accurately sets forth the necessary elements that justify the trial court’s submission of this case to the jury on a lying-in-wait special-circumstance theory rather than as simply a first degree murder case premised upon lying in wait or premeditation and deliberation. 3. Constitutional challenge.

In order to avoid the United States Constitution’s Eighth Amendment proscription against cruel and unusual punishment, a death penalty law must provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” (Furman v.

Georgia (1972) 408 U.S. 238, 313 [33 L.Ed.2d 346, 392, 92 S.Ct. 2726] (conc. opn. of White, J.).) Defendant contends that the lying-in-wait special circumstance, if interpreted to apply to the facts of this case, does not provide a meaningful basis for narrowing the class of murders for which the penalty of death may be imposed. We previously have rejected the same contention, however, with respect to analogous facts and circumstances (see People v. Edwards, supra, 54 Cal.3d 787, 824; People v. Edelbacher, supra, 47 Cal.3d at p. 1023; People v.

Morales, supra, 48 Cal.3d at pp. 557-558) and again conclude that the lying-in-wait special circumstance, as interpreted in this and previous decisions, has clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty. C. Claim of trial court error and prosecutorial misconduct in advancing a theory as to the circumstances of Harrigan’s death.

Defendant contends the trial court erred in allowing the prosecutor to pose to the prosecution’s expert witness, Dr. Cogan, a hypothetical question relating to the circumstances of Harrigan’s death, specifically whether the autopsy evidence was consistent with a finding that defendant had placed the victim in the bathtub while still alive and had held the victim’s head underwater until he drowned.

Defendant maintains this hypothesis improperly was based upon a pretrial hearsay statement made by Padgett to the police which was neither offered nor admitted into evidence at trial, and which the trial court ruled could not form the basis of any portion of Dr. Cogan’s expert testimony admitted at trial. Defendant further maintains that the admission of Dr. Cogan’s opinion testimony, given in response to this assertedly improper hypothetical question, constituted error, and that the prosecutor’s argument based upon inferences drawn from Dr. Cogan’s opinion constituted misconduct. We review the testimony of Dr.

Cogan and the prosecutorial argument that form the basis of defendant’s contentions. As stated previously, Dr. Cogan testified on direct examination that following the autopsy, he formed the opinion that the victim had died of strangulation, but that he could not exclude drowning as a possible cause of death. During cross-examination of Dr. Cogan, defense counsel elicited testimony supporting the theory that the immediate cause of death was drowning, and that the victim had been placed in the bathtub while alive and then had lost consciousness and drowned.

On redirect examination, the prosecutor, seeking to use to his advantage the evidence that drowning was the cause of death, asked Dr. Cogan whether his autopsy findings were consistent with the hypothesis that the victim was bound and placed in the bathtub while still alive, and that “some water was run into that bathtub and that his head was forcibly held under that water.” Over the unsuccessful objection of defense counsel, Dr. Cogan testified that such a hypothesis was consistent with his autopsy findings.

In closing argument at both the guilt and penalty phases, the prosecutor argued the following theme, over the unsuccessful objection of defense counsel: “No matter what position he was in, John Harrigan could raise his head out of that water and put his nose above the water line. And it took Mitchell Sims to hold John Harrigan’s face back under the water until he died, until he stopped moving. And at all times, when John Harrigan would want to raise his head above the water, then his head would be pushed down . . . .” Defendant contends the hypothetical question posed by the prosecutor to Dr.

Cogan, as well as the prosecutor’s closing arguments based upon that witness’s response, were unsupported by any evidence. He maintains that Dr. Cogan admitted on direct examination that his autopsy findings established that the cause of death was strangulation, and that the only evidence supporting Dr. Cogan’s belated conclusion that drowning was a possible cause of death, and supporting the prosecutor’s hypothesized scenario as to the manner in which Harrigan was killed, was the pretrial statement of Padgett, which was neither offered nor received in evidence. Defendant’s claim is devoid of merit.

Our examination of the record of the in limine hearing preceding Dr. Cogan’s testimony establishes that the trial court properly determined that Dr. Cogan’s expert opinion—that drowning was a possible concurrent cause of death—was supported by adequate foundational material, independent of Padgett’s hearsay statement. Defendant’s claim there was insufficient evidence to support such a theory is directly contradicted by the testimony elicited by his own attorney on cross-examination of Dr.

Cogan (that the autopsy results were consistent with the conclusion that the cause of death was drowning), and also is inconsistent with the defense theory, presented through the testimony of Dr. Bucklin, that the cause of death was drowning. Thus, contrary to defendant’s assertion, the prosecutor’s hypothetical scenario as to the specific manner in which the victim was killed was supported by evidence, properly received at trial, indicating that the cause of death was drowning and that the victim was incapacitated before being placed in the bathtub with water running over his head. Accordingly, Dr.

Cogan’s opinion that the results of the autopsy were consistent with the prosecutor’s hypothetical scenario fell within the scope of proper expert testimony. (See Mosesian v. Pennwalt Corp. (1987) 191 Cal.App.3d 851, 860 [236 Cal.Rptr. 778] [an expert’s opinion should be based upon facts personally observed by the expert or upon a hypothesis supported by the evidence].) For this same reason, the prosecutor’s guilt phase and penalty phase arguments to the jury based upon this opinion testimony did not constitute misconduct.

Finally, the prosecutor’s specific argument that defendant, rather than Padgett, held the victim’s head underwater was supported by evidence establishing defendant’s motive to commit the crimes and his lead role in incapacitating the two other victims at the Domino’s Pizza parlor. The prosecutor’s argument to the jury therefore was proper. D. Claim of Miranda violation.

Defendant contends the trial court erred in denying his motion to suppress the three incriminating statements (amounting to a confession) that he made on December 25,1985, to Glendale Police Officers Perkins and Montecuollo at the Las Vegas jail following his arrest, and the statements (some amounting to a confession, and others to admissions) that he made on December 26, both prior to and following readvisement of his Miranda rights. Defendant asserts these statements improperly were elicited from him during police-initiated interrogation after he had invoked his rights pursuant to Miranda v.

Arizona, supra, 384 U.S. 436. The trial court’s ruling admitting these statements was based upon the following evidence adduced at the hearing held on defendant’s motion to suppress. Officer Perkins testified that he and Officer Montecuollo met with defendant on December 25 in a jailhouse interview room. Officer Perkins introduced himself and told defendant the officers were investigating a murder committed in Glendale, California. Officer Perkins advised defendant of his Miranda rights by reading them from a standard admonition form.

Defendant stated he would not waive his rights and signed the admonition form so indicating. As the officers stood up, gathered their papers, and prepared to leave, defendant asked Officer Perkins “what was going to happen from this point on” and referred to the matter of extradition. Officer Perkins explained to him that proceedings would commence for his extradition from Nevada. Defendant asked whether he would be extradited to California or to South Carolina and said he wished to be with his family in South Carolina.

Officer Perkins explained that there was a warrant for defendant’s arrest in South Carolina for the murder of two Domino’s Pizza employees. He further related that a warrant for defendant’s arrest for the murder of a Domino’s Pizza employee had been issued in California and that he intended to commence proceedings for defendant’s extradition to California. Officer Perkins testified he thereafter “explained to Mr. Sims that I was from Glendale.

I told him that I was present at the Regalodge in the City of Glendale on December the 10th, in which a body of a male was discovered in a room of the Regalodge, room 205, and at this point I had reason to believe that he and a female companion occupied that room prior to the demise of Mr. John Harrigan. . . .” (Italics added.) The officer further testified on cross-examination that he told defendant that the murder victim had delivered a pizza to that motel room.

Defendant, seated and looking toward the comer of the interview room, interrupted the officer, stating, “I had to kill that boy.” Surprised at the remark, Officer Perkins asked defendant a question to the effect, “What did you say?” Defendant repeated, “I had to kill that boy.” Officer Perkins continued describing the crime scene, including the condition of the victim, bound, gagged, and submerged in the bathtub, and said to defendant that the victim “did not have to die in this manner and could have been left there tied and gagged in the manner in which he was found.” Defendant replied, “The boy would have identified me.” Defendant also made several comments about how he and Padgett had watched the television news coverage of the crimes prior to their arrest.

Officer Perkins told defendant that because he had refused to waive his Miranda rights, the officers could not discuss the facts of the case with him further, and that in the event defendant wished to discuss the investigation, defendant would have to initiate further contact with them. Before the officers left, defendant asked whether he could speak with Padgett and said he wanted to have some cigarettes. The next day, December 26, defendant advised the jailhouse authorities that he wished to speak again with the Glendale police officers.

Officer Perkins, carrying a concealed tape recorder which he had activated to record the conversation, and Officer Montecuollo met with defendant in an interview room. Defendant spoke to the officers about his attempt to obtain cigarettes and his desire to communicate with Padgett. He then complained that the Nevada police perceived him as suicidal, and the following conversation ensued: “[Defendant]: . . . I’m going crazy. . . . See everyone down there . . . they think I’m going to kill myself.

I’ve done nothing since I’ve been here to make them think that but they said I’m going to anyway. [1] [Officer Perkins]: Are you gonna, are you gonna, [f] [Defendant]: No. H] [Officer Perkins]: Why. [f] [Defendant]: Why not. I mean why should I? [f] [Officer Perkins]: O.K., that’s all I want to hear. [<][]...

You don’t seem like that kind of guy. [f] [Defendant]: “I’m not, I’m not a murderer either but ,...[f] [Officer Perkins]: What does that mean? [(¡[] [Defendant]: That means that I just got drunk, and I didn't know what the fuck I was, I knew I was doing it, but I shouldn’t of done it.” (Italics added.) Following this remark, Officer Perkins immediately changed the subject and returned to a discussion about obtaining cigarettes. Defendant mentioned having signed some papers relating to extradition, and a discussion ensued regarding extradition proceedings.

At one point, defendant said he did not understand why he could not return to South Carolina, because there were “2 murders in South Carolina.” Officer Perkins reminded defendant that the officers could not discuss the facts of the case with him because defendant had not waived his rights.

The transcript of the tape recorded statement reflects that at another point defendant remarked, “You know they won’t even let me see a lawyer, they have charges against me in Nevada, huh . . . lawyer.” (Ellipsis in original.) Eventually, defendant indicated he desired to exonerate Padgett of any liability for the crimes committed in South Carolina. At that point, Officer Perkins displayed the previously concealed tape recorder and made a pretense of activating it for the first time.

He then readvised defendant of his Miranda rights, including the right to have an attorney present during questioning, and to have one appointed free of charge if defendant could not afford one. Defendant expressly waived his rights. He then proceeded to admit having robbed a Domino’s Pizza parlor in South Carolina and described the events preceding the commission of the crimes in the present case.

Defendant related that after he and Padgett arrived in Glendale, they checked into room 205 of the Regalodge motel, purchased a knife and other items at a Sears store, and then went to the Domino’s Pizza parlor to ask for directions to a drugstore. At this point in the interview, defendant indicated he would not speak further without having an attorney present. The interview thereupon terminated.

With regard to the December 25 interview, the trial court found that defendant’s initial statement, “I had to kill that boy,” was a spontaneous utterance and not the product of police interrogation, that the officer’s request that defendant repeat the statement simply was a permissible attempt by the officer to clarify what defendant unexpectedly had uttered, and that defendant’s third statement, “The boy would have identified me,” also was spontaneous, voluntary, and not the product of interrogation.

The trial court concluded with regard to the December 26 interview that defendant’s incriminating remarks had not been elicited in violation of Miranda because defendant had initiated that meeting.

Under the familiar requirements of Miranda, designed to assure protection of the federal Constitution’s Fifth Amendment privilege against self-incrimination under “inherently coercive” circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. (384 U.S. at pp. 444-445, 473-474 [16 L.Ed.2d at pp. 706-707, 722-724]; People v.

Boyer (1989) 48 Cal.3d 247, 271 [256 Cal.Rptr. 96, 768 P.2d 610].) Once having invoked these rights, the accused “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 385-386, 101 S.Ct. 1880].) The initiation of further dialogue by the accused, however, does not in itself justify reinterrogation, (Oregon v.

Bradshaw (1983) 462 U.S. 1039, 1044 [77 L.Ed.2d 405, 411-412, 103 S.Ct. 2830].) “[E]ven if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Ibid.) Finally, interrogation (as well as reinterrogation following an invocation of rights) that requires a preceding admonition and waiver of Miranda rights encompasses both express questioning and its “functional equivalent.” (Rhode Island v.

Innis (1980) 446 U.S. 291, 300-301 [64 L.Ed.2d 297, 307-308, 100 S.Ct. 1682].) “That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . .” (446 U.S. at p. 301 [64 L.Ed.2d at p. 308], fns. omitted.) Statements obtained in violation of Miranda are inadmissible to establish guilt. (People v.

Boyer, supra, 48 Cal.3d at p. 271.) We apply federal standards in reviewing defendant’s claim that his December 25 and December 26 statements were elicited from him in violation of Miranda. (See People v. Markham (1989) 49 Cal.3d 63 [260 Cal.Rptr. 273, 775 P.2d 1042]; People v. May (1988) 44 Cal.3d 309 [243 Cal.Rptr. 369, 748 P.2d 307].) 1. Admissibility of December 25 confession. On the basis of our independent review of the uncontradicted evidence (People v.

Mattson (1990) 50 Cal.3d 826, 857 [268 Cal.Rptr. 802, 789 P.2d 983]), we conclude the record establishes that defendant’s statements, “I had to kill that boy,” and “The boy would have identified me,” were the product of police-initiated interrogation following defendant’s invocation of his Miranda rights. By his offhand question as to “what was going to happen from this point on” (coupled with a reference to extradition), which he posed to the police officers as they prepared to leave, defendant did not open the door to interrogation after previously having invoked his Miranda rights. (See Oregon v.

Bradshaw, supra, 462 U.S. at p. 1044 [77 L.Ed.2d at pp. 411-412]; United States v. Montgomery (1st Cir. 1983) 714 F.2d 201.) The United States Supreme Court’s decision in Oregon v. Bradshaw, supra, 462 U.S. 1039, is instructive in this regard. In that case, following his arrest at a police station, the defendant was read the Miranda warnings and invoked his right to have counsel present before engaging in any further conversation with the police.

En route from the police station to the jailhouse approximately 10 miles away, defendant inquired of a police officer, “ ‘Well, what is going to happen to me now?’ ” (462 U.S. at p. 1042 [77 L.Ed.2d at p. 410].) In reviewing whether defendant’s subsequent confession was elicited in violation of his Miranda rights, the high court held that, although, under the circumstances of that case, the defendant’s question had “initiated” further conversation with regard to the investigation, defendant’s limited inquiry in itself did not “suffice[ ] to show a waiver of the previously asserted right to counsel.” (Id., at p. 1045 [77 L.Ed.2d at p. 412], partial italics added.) The court explained that “even if a conversation talcing place after the accused has ‘expressed a desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Id., at p. 1044 [77 L.Ed.2d at pp. 411-412], italics added.) The court in Bradshaw went on to conclude, however, that because in that case the police officer had warned the defendant immediately following the defendant’s inquiry, “ ‘You do not have to talk to me . . . ,’ ” had reiterated the Miranda admonition, and had procured a waiver from the defendant before addressing him further, the prosecution had met its burden of establishing that defendant’s subsequent confession was not the product of a Miranda violation. (Id., at p. 1046 [77 L.Ed.2d at pp. 412-413].) As with the suspect’s initial question in Bradshaw, defendant’s remark in the present case—asking the police officers what was going to happen to him with reference to extradition—cannot, in itself, properly be construed as constituting a waiver of previously invoked rights.

And here, unlike the case in Bradshaw, the Glendale officers did not reiterate the Miranda admonition or procure from defendant a waiver of his rights. Furthermore, in contrast to the defendant’s remark in Bradshaw, in the present case, where defendant was incarcerated in Nevada after committing crimes in South Carolina and California, his initial inquiry and subsequent questions concerning extradition proceedings and whether he would be returning to South Carolina or to California did not “initiate” further conversation.

Rather, defendant’s remarks related simply to “routine incidents of the custodial relationship” which, as Bradshaw recognizes, “will not generally ‘initiate’ a conversation” (462 U.S. at p. 1045 [77 L.Ed.2d at p. 412]), much less justify interrogation (or its “functional equivalent”). Defendant did not refer to the crimes or indicate a desire or willingness to engage in a general discussion relating to the investigation. On cross-examination, Officer Perkins acknowledged that defendant did not ask the officers any questions concerning the investigation.

Contrary to the finding of the trial court, the record establishes defendant’s subsequent confessional statement (“I had to kill that boy”) was not spontaneous or volunteered, but rather the product of the “functional equivalent” of interrogation. In reply to defendant’s inquiry, Officer Perkins pursued a line of conversation far exceeding the scope of any answer legitimately responsive to a question concerning extradition.

The record reflects that at the time he met with defendant, Officer Perkins was aware defendant already had been advised by the Nevada authorities that they were arresting him for a murder committed in Glendale.

Under such circumstances, and viewed from an objective perspective, Officer Perkins’s conduct in describing the motel-room crime scene, and asserting that defendant had occupied that motel room and that the victim had delivered a pizza to the room before his death, would not reasonably have been understood as simply informing defendant of the charges pending against him or of the next step in the extradition proceedings. (See Rhode Island v.

Innis, supra, 446 U.S. at p. 301 [64 L.Ed.2d at p. 308] [the issue of the “functional equivalent” of interrogation focuses primarily upon the reasonable perceptions of the suspect, not the subjective intent of the government agent]; United States v. Montgomery, supra, 714 F.2d 201, 203-205.) In United States v. Montgomery, supra, 714 F.2d 201, the defendant was found in possession of several firearms in violation of federal law. Following his arrest several months later, the defendant was given the Miranda warnings and invoked his rights.

After being fingerprinted, he initiated the following conversation with a federal agent: “[1] [Defendant]: Am I being charged with each gun? H] [Agent]: You will probably be charged with two counts, [f] [Defendant]: Did all of the guns fire? [][] [Agent]: Yes. Why do you want to know?” (714 F.2d at p. 202.) The defendant then proceeded to make further statements tending to incriminate himself which were admitted against him at trial.

On appeal following the defendant’s conviction, the court reversed, holding that the admission of defendant’s incriminating statements violated Miranda. (714 F.2d at pp. 205-206.) The court explained that although the defendant had initiated the conversation, the federal agent had extended it improperly by providing the defendant with an answer that was unresponsive to his initial inquiry: “The question asked by [defendant], ‘Am I being charged with each gun?’, was a natural, if not inevitable, query which would occur to one in his situation, who had been present seven months earlier when several guns had been seized.

The answer (‘You will probably be charged with two counts’) was unresponsive', it obviously referred to the two qualitatively different offenses described in the indictment and conveyed no information as to the number of guns with which [defendant] was being charged.

Either because of this nonresponsiveness or because [defendant] knew enough about the law to know that violation of the firearms law involved the possession of a firearm that was operable, he asked his second question (‘Did all of the guns fire?’).” (Id., at pp. 203-204, italics added.) The court then summarized the entirety of the colloquy as establishing a violation of Miranda: “Here, the ‘totality of circumstances’ reveals: (1) a suspect who, after checking the Advice of Rights form, refused to take the last step and waive those rights until he had seen his lawyer; (2) within a short time of his asking the agent a question in an effort to understand the extent of the charges against him; (3) a nonresponsive answer by the agent; (4) a second question by the suspect apparently addressed to the same end; (5) the initiation of questioning by the agent serving no legitimate purpose, and without being preceded by any renewed warning.

We have found no appellate case that, under a similar combination of circumstances, has found or upheld a finding of waiver.” (Id., at pp. 205-206.) Here, defendant’s questions relating to extradition were “natural, if not inevitable” in light of his having been arrested in Nevada after committing murders in two other states. The reply of Officer Perkins, focusing upon the investigation, and confronting defendant with the evidence linking him to the crimes, was nonresponsive to this inquiry and served no legitimate purpose incident to defendant’s arrest or custody.

Instead, the officer’s conduct amounted to the application of a “technique of persuasion” viewed by United States Supreme Court decisions as likely to induce defendant to attempt to defend—and thus incriminate—himself. (See Rhode Island v. Innis, supra, 446 U.S. at p. 299 [64 L.Ed.2d at pp. 306-307].) The use of such a technique under these circumstances thus constituted custodial interrogation. (See In re Albert R. (1980) 112 Cal.App.3d 783, 792 [169 Cal.Rptr. 553]; United States v. Poole (9th Cir. 1986) 794 F.2d 462, 466-467; Combs v.

Wingo (6th Cir. 1972) 465 F.2d 96.) If, after a suspect has refused to waive his or her right to have counsel present during questioning, a limited inquiry such as that made by defendant regarding extradition were deemed to open the door to interrogation, the opportunities for officers to avoid the constraint of the Miranda rules would be great. The present case illustrates the ease with which the bar imposed by the suspect’s invocation of rights could be dissipated if that invocation is not scrupulously honored.

Following defendant’s confession that he “had to kill that boy,” Officer Perkins challenged the merit of that statement, thereby eliciting a further incriminating response from defendant—that the victim would have identified him. We conclude defendant’s statement that he “had to kill that boy,” his repetition of that statement, and his third statement that the victim would have identified him, were elicited in contravention of Miranda. All three statements should have been excluded from evidence. The trial court’s denial of defendant’s motion to suppress these statements therefore constituted error.

The three statements constituted a confession, i.e., a declaration of defendant’s intentional participation in the murder. (See People v. McClary (1977) 20 Cal.3d 218, 230 [142 Cal.Rptr. 163, 571 P.2d 620].) We shall determine the effect of the erroneous admission of these confessional statements after reviewing defendant’s claims relating to the admission of his December 26 statements. 2. Admissibility of December 26 confession and admissions.

On the basis of the uncontradicted evidence, we conclude the record establishes that defendant’s confessional statements made during his December 26 meeting with the police officers (“I’m not a murderer either . . . I just got drunk, and I didn’t know what the fuck I was, I knew I was doing it, but I shouldn’t of done it . . .”), and the admissions he made following readvisement of his Miranda rights, were not the tainted product of the December 25 confession.

Previous decisions have acknowledged that where—as a result of improper police conduct—an accused confesses, and subsequently makes another confession, it may be presumed the subsequent confession is the product of the first because of the psychological or practical disadvantages of having “ ‘let the cat out of the bag by confessing.’ ” (See People v. Johnson (1969) 70 Cal.2d 541, 547 [75 Cal.Rptr. 401, 450 P.2d 865, 43 A.L.R.3d 366]; People v.

Spencer (1967) 66 Cal.2d 158, 167 [57 Cal.Rptr. 163, 424 P.2d 715].) Notwithstanding this presumption, “no court has ever ‘gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.’ ” (Spencer, supra, 66 Cal.2d at p. 167, citing United States v. Bayer (1947) 331 U.S. 532, 540-541 [91 L.Ed. 1654, 1660-1661, 67 S.Ct. 1394]; see United States v. Toral (9th Cir. 1976) 536 F.2d 893, 896; United States v.

Knight (2d Cir. 1968) 395 F.2d 971.) Thus, the foregoing presumption is rebuttable, with the prosecution bearing the burden of establishing a break in the causative chain between the first confession and the subsequent confession. (Johnson, supra, 70 Cal.2d at pp. 547-548; In re Pablo C. (1982) 129 Cal.App.3d 984, 990 [181 Cal.Rptr. 468].) A subsequent confession is not the tainted product of the first merely because, “but for” the improper police conduct, the subsequent confession would not have been obtained. (Johnson, supra, 70 Cal.2d. at p. 549.) As the United States Supreme Court has explained: “[N]ot... all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police.

Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” (Wong Sun v.

United States (1963) 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455-456, 83 S.Ct. 407]; Johnson, supra, 70 Cal.2d at p. 548.) The degree of attenuation that suffices to dissipate the taint “requires at least an intervening independent act by the defendant or a third party” to break the causal chain in such a way that the second confession is not in fact obtained by exploitation of the illegality. (People v. Sesslin (1968) 68 Cal.2d 418, 428 [67 Cal.Rptr. 409, 439 P.2d 321]; see People v.

Rich (1988) 45 Cal.3d 1036, 1081 [248 Cal.Rptr. 510, 755 P.2d 960].) In the present case, we conclude defendant’s December 26 confessional statements, as well as his admissions made subsequent to readvisement of his Miranda rights, were obtained by means sufficiently attenuated from Officer Perkins’s conduct of the previous day so as to be free of the taint of that impropriety. The December 25 confession was elicited by the relatively brief comments of Officer Perkins regarding the investigation and the evidence connecting defendant to the crimes, and not by a prolonged, formal interrogation.

Officer Perkins readvised defendant upon leaving him on December 25 that the officers could not and would not speak to him again unless defendant himself sought further contact. Defendant thereafter unilaterally initiated further communication the following day, specifically requesting to speak with the officers. To defendant’s knowledge, the December 25 statements had not been tape-recorded or in any other way formally memorialized, and the officers did not refer or allude to defendant’s December 25 confession at any time during the December 26 meeting.

Furthermore, prior to the commencement of any interrogation on December 26, defendant volunteered that he wished to exculpate Padgett with regard to the South Carolina crimes; Officer Perkins readvised defendant of his Miranda rights, and defendant expressly waived those rights, thereby further dissipating any taint of the improper police conduct that had occurred the preceding day. (See Oregon v.

Elstad (1985) 470 U.S. 298 [84 L.Ed.2d 222, 105 S.Ct. 1285].) Defendant asserts that even if the Pecember 26 confessional statements were not the tainted fruit of the December 25 confession, these confessional statements—made prior to the readvisement of defendant’s Miranda rights— were elicited by the Glendale officers in violation of Miranda, apart from the earlier Miranda violation.

Assuming, without deciding, however, that defendant’s December 26 confessional statements—made prior to the readvisement of his Miranda rights—were elicited in violation of Miranda, we conclude that any error in the admission of these statements was not prejudicial. (See pt.

I.D.3, post.) With respect to the admissions made by defendant following the readvisement of his Miranda rights, the transcript of the tape recording establishes that a careful and thorough explanation of the Miranda warnings was given, and that defendant’s waiver of his rights was not the tainted product of any earlier Miranda violation. (See Oregon v. Elstad, supra, 470 U.S. at pp. 310-311 [84 L.Ed.2d at pp. 233-234].) As explained previously, interrogation recommenced only after defendant volunteered that he wished to exculpate Padgett with regard to the South Carolina crimes.

Defendant contends his remark that the Nevada authorities had not permitted him to see an attorney required the officers to bring the interview to a halt, and that his subsequent waiver of Miranda rights therefore was ineffective. We disagree. The transcript of the tape recording reflects that defendant made an offhand remark that the Nevada authorities (who never had sought to interview or interrogate defendant) had not provided him with an attorney.

The transcript clearly establishes, however, that at no point prior to engaging in further conversation with the Glendale officers did defendant indicate a desire to obtain counsel. No interrogation took place until defendant had been advised of his right to have counsel present during questioning and appointed free of charge, and until defendant expressly had waived those rights. 3. Effect of erroneous admission of December 25 and December 26 confessional statements. Prior to the decision in Arizona v.

Fulminante (1991) 499 U.S. 279 [113 L.Ed.2d 302, 111 S.Ct. 1246], both the United States Supreme Court and this court held that the erroneous admission of an involuntary confession required the automatic reversal of the defendant’s conviction. (See, e.g., Payne v. Arkansas (1958) 356 U.S. 560, 568 [2 L.Ed.2d 975, 981, 78 S.Ct. 844]; People v.

McClary, supra, 20 Cal.3d at p. 230.) In Fulminante, however, the United States Supreme Court held that a federal constitutional “trial error” such as the admission of an involuntary confession does not automatically require reversal of the conviction, but is subject to the harmless-error analysis set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]. (499 U.S. at pp. 306-309 [113 L.Ed.2d 302 at pp. 329-331].) In People v.

Cahill, post, at page 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037], we reconsidered the California reversible-per-se rule (which had corresponded to the previous federal rule), concluding the erroneous admission of an involuntary confession does not require automatic reversal under the state Constitution, independently of federal law. (Id., at pp. 531-541.) We recognized that when a confession has been obtained by means that render it inadmissible under the federal Constitution, the prejudicial effect of its admission in evidence must be determined under the federal Chapman standard of whether the error was harmless beyond a reasonable doubt. (Id., at pp. 540-541.) Because, for the reasons set forth in Cahill, post, 478, the erroneous admission of an involuntary confession is not per se reversible error, a fortiori a confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements also must be subject to a harmless-error standard of review.

Under the Chapman standard, we conclude the admission of defendant’s December 25 and December 26 confessions was not prejudicial. The defense did not challenge the prosecution’s evidence that defendant, acting in concert with Padgett, lured the victim to the motel room, then bound and gagged him, and placed him in the bathtub with the water running over his head. The sole defense offered was that defendant lacked the intent to kill the victim. The evidence of such intent, however, independent of the December 25 and December 26 confessions, was overwhelming.

The victim had been hog-tied and gagged, with a pillowcase pulled over his head and secured by a ligature bound so tightly that the victim inevitably would die of strangulation if death did not occur first by drowning—the victim having been left in the bathtub with the water running over his head. On this record, we conclude beyond a reasonable doubt that the admission of the December 25 and December 26 confessional statements was harmless error. E. Submission of transcript to jury. An edited version of the December 26 tape-recorded interview was played to the jury at the guilt phase of the trial.

Defendant contends the trial court erred in permitting the prosecution to provide the jury with a written transcript of the tape recording, because the transcript was not properly authenticated (Evid. Code, § 1400) as an accurate rendition of the tape recording. Following the testimony of Officer Perkins during the prosecution’s casein-chief, the prosecutor proposed to play the tape recording to the jury. Defense counsel suggested the jury should be informed that portions of the tape recording were unintelligible.

When the trial court observed that a transcript of the tape recording would be submitted to the jury, defense counsel voiced concern that the jury would follow the transcript rather than independently consider the tape recording. The trial court indicated it would listen to the tape recording and, in the event the court determined that the transcript would assist the jury in its understanding of the interview, a copy of the transcript would be provided to the jury at the time of its deliberations. Defense counsel did not object at this time that the transcript had not been authenticated and did not o

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