THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH WADER, Defendant and Appellant, 5 Cal. 4th 610

Opinion KENNARD, J. A jury convicted defendant Michael Joseph Wader of the first degree murder of Maxine Brown. (Pen.

Code, § 187; all further statutory references are to this code unless otherwise indicated.) The jury made a special circumstance finding of robbery-murder (§ 190.2, subd. (a)(17)(i)), and found to be true an allegation that defendant had used a firearm in committing the crime. (§ 12022.5.) The jury also found defendant guilty of kidnapping for purposes of robbery (§ 209, subd. (b)) and robbery (§ 211), and found firearm use allegations and great bodily injury allegations (§ 12022.7) as to both these crimes to be true. The jury fixed the penalty for the murder of Brown at death.

The trial court denied defendant’s automatic motion to modify the verdict of death (§ 190.4, subd. (e)), and imposed a two-year prison term for defendant’s use of a firearm. On the kidnapping count, the court sentenced defendant to imprisonment for life with the possibility of parole, plus consecutive terms of two years for use of a firearm and three years for infliction of great bodily injury. For the robbery, the trial court sentenced defendant to imprisonment for three years, plus consecutive terms of two years for the firearm use and three years for infliction of great bodily injury.

The court suspended the sentences on the noncapital counts. Defendant’s appeal from the judgment is automatic. (§ 1239, subd. (b).) We will affirm the judgment in its entirety. I. Guilt Phase Facts A.

Summary of Facts Relating to Guilt On the evening of November 15, 1984, defendant told his girlfriend, Mary Kimble, that he was going to commit a robbery. He went to a parking lot in Alhambra and, as the victim was getting into her car, ran up to her, pulled out his gun, and commandeered the car. Over the course of several hours, defendant drove around the Los Angeles area with the victim in the car, looking unsuccessfully for a restaurant to rob. Defendant then drove the victim’s car to a church parking lot, ordered her to get out, and shot and killed her.

The next day, defendant and Kimble used the victim’s credit card to purchase a pair of boots for defendant. When the police apprehended defendant on an unrelated charge, his voluntary statements to police and a pair of boots in his possession linked him to the victim’s murder. Defendant essentially admitted kidnapping, robbing and fatally shooting the victim, but denied any intent to kill. The jury made a special finding that defendant intended to kill when he fatally shot the victim. B. Prosecution Evidence 1.

The Murder of Maxine Brown On November 15, 1984, the victim, Maxine Brown, drove to the Chatterbox Beauty Salon in Alhambra, County of Los Angeles, where she had a 5:30 p.m. appointment. The victim left the beauty shop about 6:45 p.m.; later that evening she was found dead in a church parking lot. Defendant lived at 705 Los Robles in Alhambra with his girlfriend, Mary Kimble, and a roommate, Helena Ringey. About 5:30 p.m. on the day of the killing, defendant borrowed Ringey’s car.

Kimble testified that before defendant left, he injected himself with cocaine, put his gun into his waistband, and told Kimble that he was going to commit a robbery. That same evening, at approximately 9 p.m., Mark Velarde, who lived across the street from the First Baptist Church in Bassett, stepped out his front door when he heard sounds “like firecrackers” coming from the direction of the church parking lot. Velarde heard three shots that were “fairly close” together; there was a slightly longer delay, however, between the second and third shots than between the first and second shots.

Crouched near the rear of a car parked in the lot was a shadowy figure, who then entered into the car’s driver’s side. The car “screeched” out of the parking lot. Velarde identified the victim’s car that was depicted in court exhibit photographs as resembling the car that he saw leaving the church parking lot. Around 10 p.m., while on routine patrol, Deputy Donald Duffield of the Los Angeles County Sheriff’s Department discovered the victim’s body lying prone in the parking lot of the First Baptist Church.

Deputy Duffield described the dead victim as “an elderly lady who was well dressed and [who] had a pool of blood on her chest.” Later that night, defendant returned to the Los Robles address. Ringey testified that when defendant returned driving a different car, he had a fresh red stain on his shirt. Defendant said that a robbery he had committed that night “didn’t go” as planned. Kimble testified that defendant told her that he “had to kill” a woman, and that he was alone at the time of the killing.

Defendant later put a watch and a ring on the bed he shared with Kimble; Kimble pawned the ring and was wearing the watch when she was later arrested. The day after the shooting, defendant and Kimble used one of the murder victim’s credit cards at Kinney’s Shoe Store to buy a pair of boots for defendant. 2. Defendant’s Arrest and Inculpatory Statements On November 29, 1984, defendant was arrested on charges unrelated to this case and transported from the Alhambra police station to the San Bernardino County sheriffs station.

Following his arrest, defendant made certain statements to sheriff’s investigators relating to the November 15 killing of Brown. a. Defendant’s Statements of November 29 and 30, 1984 On November 29 and 30, 1984, defendant told Sergeant Rod Hoops of the San Bernardino County Sheriffs Department and Deputy Michael Griggs of the Los Angeles County Sheriff’s Department that he was present when Maxine Brown was killed, but that he did not kill her.

Defendant told the deputies that at 6 p.m. on November 15, 1984, the night of the killing, one Frank Hillhouse picked him up at his Los Robles residence in the victim’s car. Defendant thought that the victim, who was seated in the front passenger seat, was someone who owed Hillhouse money and that Hillhouse was trying to collect on his loan. Hillhouse picked up a third individual, whom defendant did not know but whom he described as a “bushy-haired biker.” Hillhouse then drove to the First Baptist Church parking lot, where the biker began striking the victim on the head with a knife.

Hillhouse dragged the victim out of the car and shot her. Hillhouse, the biker, and defendant left in the victim’s car. The next day Hillhouse used the victim’s credit cards. b. Defendant’s Statements of December 1, 1984 On December 1, 1984, Deputy Griggs returned to the San Bernardino County sheriffs station, accompanied by another deputy, and again interviewed defendant. The deputies tape-recorded the interview.

When Deputy Griggs confronted defendant with the inconsistencies between his prior statement and the evidence collected during the investigation, including the statements made by Ringey and Kimble, defendant said, “Well, I’m guilty. I did it to her.” He then related the following: He “went out to pull a robbery,” and drove to a parking lot in Alhambra, where he saw the victim, Maxine Brown, leaving her car.

Armed with a .357 magnum handgun, defendant ran up to her, ordered her back into the car, and drove away with her because he “couldn’t leave her there to call the police.” Defendant drove to a North Hollywood pizza restaurant, which he intended to rob. He abandoned his plan when he saw a police officer sitting in the restaurant. Defendant then tried to get money with Brown’s automated bank teller card. At the first bank, defendant used a set of access numbers that Brown had given him for the automated teller machine, but the numbers did not work. Defendant and Brown then drove to another bank.

This time defendant ordered Brown to get the money. While keeping Brown within easy shooting range, defendant watched her push the teller machine buttons. Brown returned and told defendant that she did not have enough money in her account. Defendant looked at Brown’s checkbook, saw there was “$1,000 or $2,000” in her account and accused her of “playing games” with him. Defendant drove off again with Brown, not knowing where he was going. He eventually stopped in the parking lot of the First Baptist Church in Bassett.

Defendant again asked Brown for her bank card access numbers, but she replied that she had already given them to him. Defendant ordered her out of the car. She did so, then said she needed her house keys. Defendant took the keys out of the car ignition and handed them to the victim; she handed back to him two keys and a gold diamond ring. Brown then got back into the car, saying she wanted her purse. Defendant replied that she could not have her purse because she would call the police. Brown said, “Well, I’m gonna call them anyway.” Defendant responded by hitting her on the head with his gun.

Brown started crying and defendant ordered her to get out of the car. As defendant told the deputies, “So she got out and she started walking and then she turned around and told me I’m gonna call the police and that’s when I shot her. I jumped out and I shot her.” According to defendant, he fired the first shot in Brown’s general direction “to scare her to try to get her to run.” When the victim would not run, defendant, who was then outside the car, fired three or four more shots at her. Defendant told the deputies he “wasn’t really aiming to hit her,” but just wanted her to start running.

Defendant did not think he killed Brown, because “she fell just like she’d fainted.” Defendant then saw a man on a porch across the street, and “took off’ in the victim’s car. Defendant later took two credit cards and a watch from the victim’s purse, and threw the purse in a dumpster. 3. Physical Evidence Relating to the Murder On November 18, 1984, Deputy Michael Griggs participated in the recovery of the victim’s car from an Alhambra market parking lot. In the back seat of the car, Deputy Griggs found a yellow credit card receipt and a cash register receipt from Kinney’s Shoe Store.

On the evening of November 30, 1984, Deputy Griggs seized a .357 magnum revolver from defendant’s residence. Deputy Robert Hawkins, a firearms and toolmark examiner for the Los Angeles County Sheriffs Department, testified that he had examined the weapon and determined that the gun was a “single-action” revolver; to fire the weapon, the user must manually retract the hammer each time before pulling the trigger. Deputy Hawkins also testified that on December 6, 1984, he retrieved two expended bullets and a piece of lead from the scene of the shooting at the church parking lot.

He concluded that the expended bullets were fired from defendant’s gun. After taking scrapings from ricochet marks on one of the church walls, he determined that the expended bullets, which also had wall plaster on them, had struck the church wall and did not cause the victim’s death. An autopsy was performed on the victim’s body. Dr. Eva Heuser, a deputy medical examiner for the Los Angeles County Coroner’s Office, reviewed the records and notes of the physician who had performed the autopsy. Dr.

Heuser testified that the victim’s cause of death was a gunshot wound to the chest, caused by a single bullet that entered the left side of her chest and exited through her back. The victim also had five or six lacerations on the back of her head that could have been caused by the butt end of a revolver. C. Defense Evidence Testifying on his own behalf, defendant stated that he had heard the tape recording and read the transcript of the statement he made to Sheriff’s deputies on December 1, 1984.

After acknowledging that the transcript was “basically correct,” defendant testified to a version of events that was essentially similar to his tape-recorded statements: When defendant first saw the victim, he intended to steal her car and use it in a robbery. Defendant took the victim with him because he did not want her to report the car as stolen to the police. Although they drove to several places, defendant did not see a place suitable for robbing. He asked the victim to get money from her bank account, but that did not work out.

Defendant got “pretty angry” because he felt the victim was lying to him about her bank card number. Also, he thought that the victim should have shown him more respect because he had a gun. When they arrived at the church parking lot, defendant told the victim to get out of the car and leave; she refused. Defendant reached over to the passenger door, opened it, and “told her to get out or else I’d shoot.” Once again she refused. Defendant responded by hitting the victim in the head twice. When the victim stepped out of the car, she asked defendant for her purse. Defendant refused and said, “Leave.

I don’t want to shoot you but I will." Defendant fired a shot through the open car door to scare the victim. The victim then asked defendant for her house key, and defendant gave it to her. Still she would not leave. Defendant jumped out of the car and told her, “Now, just leave. Just take off towards the park.” At this point, defendant became increasingly angry. The victim said, “Well, I’m going to call the police.” Again intending to scare the victim, defendant fired his gun two or three more times. According to defendant, he did not intend to kill the victim. When she fell, he thought she had fainted.

Defendant got back in the car and immediately left the parking lot without checking the victim’s condition. At trial, defendant demonstrated the manner in which he held his gun when he fired the shots at the victim. He held his arm parallel to the ground, pointing directly out in front of him. He testified he fired one shot with the gun pointing downward. When he was asked why he did not fire in the air or directly into the ground if his intent was to scare the victim, defendant responded that he did not know. Defendant said that he moved his hand each time he fired the gun.

Defendant used cocaine and “crystal meth” all night on the night of the murder. He injected the cocaine directly into his veins. When defendant returned home, Ringey and Kimble asked him why he was so late. He told them, “I pulled a robbery. And it went bad, and somebody got shot.” Although Ringey, Kimble, and defendant watched the news all night and bought three newspapers the next day to find out if there were any stories about the shooting, they learned nothing of the event. II. Guilt Phase Discussion A.

Validity of Defendant’s Arrest Defendant contends his arrest was invalid, and thus its fruits, including his statements to police, should have been suppressed, because the arresting officers who entered the Los Robles house to serve the arrest warrant did not have reasonable cause to believe he was inside, thus violating

section 844 and the Fourth Amendment of the United States Constitution. We disagree.

Section 844 requires police officers to have “reasonable grounds” to believe that a suspect is inside a dwelling before they may make a nonconsensual entry to effect an arrest. This requirement applies to arrests with and without warrants (People v. Jacobs (1987) 43 Cal.3d 472, 478 [233 Cal.Rptr. 323, 729 P.2d 757]; People v. Marshall (1968) 69 Cal.2d 51, 55-56 [69 Cal.Rptr. 585, 442 P.2d 665]), and to peaceable as well as forcible entrances (People v. Jacobs, supra, 43 Cal.3d at p. 480).

At the hearing on defendant’s motion to suppress evidence arising from his arrest, Officer Dennis Sullivan of the Alhambra Police Department testified that he first encountered defendant on September 30, 1984, two months before the arrest, when Sullivan investigated an apparent altercation between an unidentified man and Frank Hillhouse at the Los Robles street address where defendant was later arrested. In the course of determining whether he should arrest either party, Sullivan spoke to defendant inside the front room of the house.

Defendant identified himself as Michael Wader, said that his girlfriend lived at the house, and that he had been in prison for murder for 20 years. Although Officer Sullivan made no arrests resulting from the altercation, he filled out field interview cards on defendant and Hillhouse. On November 28, 1984, Officer Sullivan learned at roll call of two outstanding arrest warrants each for defendant and Hillhouse. He then drove past the Los Robles address, saw two cars in the driveway, and ran license plate checks. Neither car was registered to defendant.

Officer Sullivan returned to the house in the early morning hours. He drove past the house slowly on several occasions, and at least once, used binoculars. Through a three-foot opening in the drapes of the inside front room, he observed defendant and a woman sitting on a couch backed up against the front window. The interior lights were on. Although their backs were to the window, Officer Sullivan could identify defendant because the man and woman turned toward each other, presenting profiles.

Officer Sullivan was certain the man was defendant and not Hillhouse, because defendant was “thinner and lighter” than Hillhouse. Officer Sullivan left the Los Robles site at one point; when he returned, one of the two cars was gone. At 2:30 or 3:00 a.m., the lights in the house went out. After staying at the location for two more hours, Officer Sullivan returned to the police station. At approximately 6:15 a.m., Officer Sullivan, assisted by another officer, returned to the Los Robles address with an arrest warrant. Employing a ruse, the officers obtained entrance to the house and arrested defendant.

At most, defendant contends, the police had a hunch that he was inside the house. In essence, defendant argues that Officer Sullivan’s testimony was not worthy of belief because it varied in certain particulars from a written police report he prepared shortly after the arrest. First, defendant focuses on a statement in Officer Sullivan’s report that when he drove by the house, he saw a man “later identified as" defendant.

But Officer Sullivan testified that his reference to a subject “later identified as” defendant meant only that he later confirmed, by viewing defendant’s driver’s license, that the subject was indeed defendant. Second, defendant stresses that Officer Sullivan wrote in the arrest report that he saw the backs of people in the Los Robles residence, but did not write that he saw their profiles, as he later testified. Any confusion or lack of complete consistency in a witness’s testimony speaks to the weight of the evidence. (See 3 Witkin, Cal.

Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 1751, p. 1706.) This is a matter within the province of the trier of fact—here, the trial court. Third, defendant contends that People v. Jacobs, supra, 43 Cal.3d 472, cannot be meaningfully distinguished from this case. We disagree.

In Jacobs, the arresting officer testified he believed that the defendant was at a residence during daytime hours because the officer had obtained his address from an employment application, had seen the defendant at that address some three months earlier, and had learned the defendant was not employed during the day. (Id. at p. 478.) We held this evidence was insufficient to give rise to a reasonable belief that the defendant was inside the house. (Id. at p. 479.) Here, by contrast, the arresting officer personally observed defendant at the residence in the early morning hours before the arrest at dawn.

We conclude that substantial evidence supports the trial court’s determination that Officer Sullivan had reasonable cause to believe defendant was inside the Los Robles address when he served the arrest warrant; accordingly,

section 844 was not violated. (See People v. Jacobs, supra, 43 Cal.3d at pp. 479-480.) For the same reason, defendant has not demonstrated a violation of the Fourth Amendment. (See Payton v. New York (1980) 445 U.S. 573, 603 [63 L.Ed.2d 639, 661, 100 S.Ct. 1371].) The officers searched the residence and found defendant. Defendant also argues that this nonconsensual search was unlawful because the arresting officers did not have a search warrant, and there were no exigent circumstances justifying a warrantless search. But because the arrest was made under the authority of a valid arrest warrant and in conformity with

section 844, the absence of exigent circumstances or a search warrant is of no significance. B. Defendant’s Statements to Sheriff’s Deputies Defendant raises a number of guilt phase issues relating to statements he made to sheriff’s deputies following his arrest. The relevant facts are as follows: On November 29, 1984, defendant was arrested in Los Angeles County on a warrant issued in San Bernardino County for possession of narcotics on prison grounds. The arrest warrant was issued when defendant failed to attend a sentencing hearing in a then-pending matter.

About 4 p.m. on November 29, 1984, Sergeant Rod Hoops and two other deputies of the San Bernardino County Sheriff’s Department transported defendant from the Alhambra Police Department to the San Bernardino Sheriffs Department in Ontario. During the ride, Sergeant Hoops asked if defendant knew the whereabouts of Frank Hillhouse, defendant’s friend. Defendant replied he had heard that Hillhouse was in the Yucca Valley area of San Bernardino County and was involved in shooting a woman in the La Puente area. Sergeant Hoops testified he did not advise defendant of his constitutional rights (Miranda v.

Arizona (1966) 384 U.S. 436, 478-479 [16 L.Ed.2d 694, 725-726, 86 S.Ct. 1602]) because defendant was at that time not a suspect in the murder of Maxine Brown. The next day, November 30, Sergeant Hoops again questioned defendant without advising him under Miranda. This time, defendant said that Hill-house had a .357 magnum gun, had used it to shoot “an old white broad,” and had also taken the victim’s car. Sergeant Hoops then contacted Deputy Michael Griggs of the Los Angeles County Sheriffs Department, who informed him of some of the details of Maxine Brown’s killing.

Griggs mentioned that Brown’s credit card had been used to buy a pair of boots from Kinney’s Shoe Store. In a telephone conversation a few hours later, Griggs gave Hoops certain details regarding the boots. At that point, Hoops walked over to defendant and removed his boots to see if they matched Griggs’s description of the boots that had been bought with the victim’s credit card. After asking why Hoops was taking the boots, defendant volunteered that he had bought them and had a receipt. Defendant then said, “Well, I changed my mind.

They were a gift.” Sergeant Hoops did not at any time ask defendant any questions about the boots. Later that same day, November 30, Los Angeles County Sheriff’s Deputy Griggs and Sergeant Stoner went to the Ontario sheriff’s station to interview defendant. The deputies questioned defendant twice. Before the first interview, which was not tape-recorded, Stoner advised defendant of his Miranda rights by reading from a standard admonition card issued by the Los Angeles County Sheriffs Department.

Defendant indicated he understood his rights, did not want an attorney at that time, and wished to speak to the officers without an attorney present. The second interview on November 30 was tape-recorded. Before questioning defendant, Sergeant Stoner orally advised defendant of his constitutional rights by reading them from a form. Stoner misread one line on the form.

The form stated: “If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, free of charge.” Instead, Stoner told defendant: “If you hire a lawyer one will be appointed to represent you before any questions free of charge.” Before this oral advisement, Sergeant Stoner had given defendant a card that listed his constitutional rights; defendant signed the card immediately after the advisement. The next day, December 1, 1984, the deputies questioned defendant in a tape-recorded session. There was another tape-recorded interview in February 1985.

Each interview was preceded by an advisement, and waiver, of defendant’s constitutional rights. 1. Defendant’s Statements to Sergeant Hoops on November 29, 1984 Defendant argues that his uncounseled statements to Sergeant Hoops on November 29, 1984, were obtained in violation of his rights under the Fifth and Sixth Amendments to the federal Constitution and should have been suppressed. The Attorney General asserts that the issue was waived and, in any event, no constitutional violation occurred. We agree that the issue was waived.

At the beginning of the hearing on defendant’s nonstatutory motion to exclude certain testimony, the prosecutor described the motion as “directed towards the statements . . . that were taken by [Sergeant] Hoops . . . .” Defense counsel agreed with this statement, and Sergeant Hoops was called as a witness and examined by both sides. But defense counsel never made clear on what grounds he sought to exclude defendant’s responses to Sergeant Hoops’s questions on November 29, 1984, as Evidence Code

section 353 requires. (See People v. Morris (1991) 53 Cal.3d 152, 188 [279 Cal.Rptr. 720, 807 P.2d 949]; People v. Williams (1988) 44 Cal.3d 883, 906 [245 Cal.Rptr. 336, 751 P.2d 395].) The focus of argument at the conclusion of the court hearing shifted to the testimony of other witnesses, and the trial court did not rule on the admissibility of defendant’s statements to Sergeant Hoops. Defense counsel never argued to the trial court that those statements should be suppressed. When Hoops testified at trial, defense counsel failed to object to his testimony on constitutional grounds.

Accordingly, we conclude the issue was waived. (People v. Boyer (1989) 48 Cal.3d 247, 270, fn. 13 [256 Cal.Rptr. 96, 768 P.2d 610].) Defendant alternatively contends that if the issue was waived, the failure to preserve it demonstrates his counsel’s ineffective representation. The constitutional right to effective assistance of counsel is violated when an attorney fails to perform as a reasonably competent attorney, and it is reasonably probable that, absent counsel’s deficiencies, a more favorable result would have been obtained. (Strickland v.

Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674, 697, 104 S.Ct. 2052]; In re Wilson (1992) 3 Cal.4th 945, 950 [13 Cal.Rptr.2d 269, 838 P.2d 1222]; People v. Mincey (1992) 2 Cal.4th 408, 449 [6 Cal.Rptr.2d 822, 827 P.2d 388]; People v. Malone (1988) 47 Cal.3d 1, 33 [252 Cal.Rptr. 525, 762 P.2d 1249].) Here, it is not reasonably probable that if defense counsel had pursued the Fifth and Sixth Amendment objections defendant now urges on appeal, there would have been a more favorable result.

Defendant’s Sixth Amendment theory is that, because his arrest arose from a case pending in San Bernardino County in which he had requested and obtained a court-appointed attorney, Sergeant Hoops violated defendant’s Sixth Amendment right to counsel by questioning him outside the presence of his counsel. The purpose of the Sixth Amendment right to counsel is to “ ‘protect] the unaided layman at critical confrontations’ with his ‘expert adversary,’ the government, after ‘the adverse positions of government and defendant have solidified’ with respect to a particular alleged crime.’’ (McNeil v.

Wisconsin (1991) 501 U.S. _, _ [115 L.Ed.2d 158, 168, 111 S.Ct. 2204, 2209], original italics.) Thus, the Sixth Amendment right to counsel is offense-specific. (Id. at p. _ [115 L.Ed.2d at p. 166, 111 S.Ct. at p. 2207].) Here, that right had not attached when defendant was questioned by Sergeant Hoops, because at that time adversary criminal judicial proceedings had not yet commenced in this case. Although defendant had obtained counsel in a case that was unrelated to this case, because defendant’s Sixth Amendment right to counsel in this case had not attached it could not be violated.

Defendant also contends that his attorney was incompetent for not arguing that defendant’s Fifth Amendment rights were violated by Sergeant Hoops’s failure to advise him of his Miranda rights before asking him about the whereabouts of Frank Hillhouse. Generally, Miranda advisements must be given by law enforcement officers before any custodial interrogation. (Miranda v. Arizona, supra, 384 U.S. 436, 478-479 [16 L.Ed.2d 694, 725-726, 86 S.Ct. 1602].) Here, Sergeant Hoops’s inquiry regarding Hillhouse was not “interrogation” within the meaning of Miranda.

Not every question directed by an officer to a person in custody amounts to an “interrogation” requiring Miranda warnings. The standard is whether “under all the circumstances involved in a given case, the questions are ‘reasonably likely to elicit an incriminating response from the suspect.’ ” (United States v. Booth (9th Cir. 1981) 669 F.2d 1231, 1237.) This is an objective standard. “The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly relevant. [Citation.]” (United States v.

Gonzalez-Marez (9th Cir. 1985) 752 F.2d 1485, 1489; accord, e.g., United States v. Talbott (4th Cir. 1990) 902 F.2d 1129, 1134.) As Sergeant Hoops’s testimony indicates, his inquiry regarding the whereabouts of Hillhouse was designed to elicit information about Hill-house, not defendant. There is no indication in the record before us that the inquiry was at all relevant to any charge for which defendant was then in custody or any crime of which he was then suspected.

Accordingly, Sergeant Hoops was not required to advise defendant of his rights under Miranda, and defendant’s counsel did not render ineffective assistance in failing to raise this issue. 2. Allegedly Defective Miranda Warning As mentioned earlier, before questioning defendant on November 30, 1984, Sergeant Stoner advised defendant of his Miranda rights by reading them from a form.

The full text of one of the rights stated: “If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, free of charge.” (Italics added.) Stoner, however, misread this; he omitted the three italicized words, instead telling defendant: “If you hire a lawyer one will be appointed to represent you before any questions free of charge.” Defendant contends this misreading invalidated the Miranda warnings, thus requiring suppression of the statements obtained as a result. We reject defendant’s contention for several reasons.

First, 15 to 20 minutes before the tape-recorded interview in which Sergeant Stoner misread the advisement, defendant was advised of his rights under Miranda by Sergeant Stoner in a manner he does not assert was inaccurate. Second, defendant indicated in writing immediately after the misadvisement that he understood his rights as set forth on an admonition card, and he signed the admonition card.

With respect to the one right at issue here, the card correctly specified: “If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, free of charge.” Defendant does not argue misadvisement in this respect. Third, the United States Supreme Court has stressed that “ ‘the “rigidity” of Miranda [does not] exten[d] to the precise formulation of the warnings given a criminal defendant,’ ” and that “ ‘no talismanic incantation [is] required to satisfy its strictures.’ ” (Duckworth v.

Eagan (1989) 492 U.S. 195, 202-203 [106 L.Ed.2d 166, 176-177, 109 S.Ct. 2875], quoting California v. Prysock (1981) 453 U.S. 355, 359 [69 L.Ed.2d 696, 701, 101 S.Ct. 2806].) Under the circumstances, the proper warnings that immediately preceded Sergeant Stoner’s misreading of one of the rights adequately advised defendant of his constitutional rights as required by Miranda. 3. December 1, 1984, Interrogation We reject defendant’s contention that his December 1, 1984, interrogation violated his right to counsel under the Sixth Amendment of the federal Constitution.

That right, as we explained earlier, is offense-specific. In this case, that right had not attached when the police questioned defendant on December 1, because criminal proceedings against defendant in this case had not commenced; charges were not filed until December 5,1984. The fact that defendant had obtained counsel in a case that was unrelated to this case did not implicate the Sixth Amendment, because the Sixth Amendment right to counsel is offense-specific.

Accordingly, there was no violation of the right to counsel under the Sixth Amendment, and it was not ineffective for counsel not to argue there was such a violation. C. Mistrial Motion Based on People v. Anderson Defendant argues the trial court erred in denying his motion for a mistrial based on this court’s decision in People v. Anderson (1987) 43 Cal.3d 1104 [240 Cal.Rptr. 585, 742 P.2d 1306] (Anderson). This court held in Carlos v. Superior Court (1983) 35 Cal.3d 131, 140 [197 Cal.Rptr. 79, 672 P.2d 862] (Carlos) that the felony-murder special circumstance of

section 190.2, subdivision (a)(17) required the prosecution to prove that the defendant intended to kill the victim, irrespective of whether the defendant was the actual killer or an aider or abettor. In Anderson, supra, 43 Cal.3d 1104, 1147, we overruled Carlos and held that a felony-murder special circumstance may be found and the death penalty imposed without proof that the defendant intended to kill, unless the defendant was not the actual killer. We later clarified that the holding of Anderson did not apply to crimes committed while Carlos was in effect. (People v.

Duncan (1991) 53 Cal.3d 955, 973, fn. 4 [281 Cal.Rptr. 273, 810 P.2d 131]; accord, People v. Fauber (1992) 2 Cal.4th 792, 835 [9 Cal.Rptr.2d 24, 831 P.2d 249].) The crimes in this case occurred in November 1984, when this court’s decision in Carlos was in effect. When the trial began, Carlos was still the law. This court filed its opinion in Anderson on October 13, 1987. On October 14, 1987, the prosecution in this case rested its case-in-chief. The next day, defendant moved for a mistrial.

Defendant’s motion for a mistrial was based on the theory that his defense was structured around the central contention that, although he kidnapped, robbed and fatally shot the victim, he lacked the intent to kill her. On appeal, defendant contends that had he known that, under Anderson, the prosecution would not have to prove intent to kill, he would have structured his defense differently.

But in arguing the motion at trial, the only material choice that defense counsel indicated might have been different was the use of peremptory challenges; defense counsel suggested that, had the defense known intent to kill would not be an issue, it would have tried to select a jury with only the penalty phase in mind. The primary defect in defendant’s argument is that, as this court has subsequently made clear, for crimes committed when Carlos was in effect the jury was required to find that the defendant had the intent to kill before a felony-murder special circumstance could be found true. (People v.

Duncan, supra, 53 Cal.3d at p. 973, fn. 4; People v. Fauber, supra, 2 Cal.4th at p. 835.) In this case, the trial court’s charge to the jury anticipated our later ruling that Anderson was not to be applied retroactively to crimes committed while Carlos was in effect. The trial court required the jury to find whether or not defendant “intended to kill a human being at the time of the murder.” The jury expressly found that defendant had the intent to kill the victim.

Accordingly, defense counsel’s strategy of basing the defense on defendant’s asserted lack of intent to kill was in no way compromised by Anderson, because Anderson did not apply to defendant’s trial. We therefore conclude that the trial court did not err in denying defendant’s motion for a mistrial. Our conclusion is not affected by the trial court’s refusal to specifically instruct the jury that it must find intent to kill in order to find the robbery-murder special circumstance. As noted above, the trial court did require the jury to determine whether or not defendant had the intent to kill.

Thus, “the jury necessarily found the requisite intent to kill as a result of other properly given instructions . . . .” (People v. Leach (1985) 41 Cal.3d 92, 108 [221 Cal.Rptr. 826, 710 P.2d 893]; see also People v. Mincey, supra, 2 Cal.4th at p. 438.) We note that defense counsel in closing argument stressed to the jurors that they had to make a finding whether defendant had the intent to kill. Nor does consideration of Coleman v. McCormick (9th Cir. 1989) 874 F.2d 1280 alter our conclusion.

As we have elsewhere explained, “Coleman considered whether a trial held under one set of rules can later be used to reach a sentencing verdict under a quite different set of rules, and concluded it cannot.” (People v. Beardslee (1991) 53 Cal.3d 68, 110 [279 Cal.Rptr. 276, 806 P.2d 1311].) Here, the rules governing the critical issue—whether the jury had to conclude that defendant had the intent to kill as a prerequisite to the felony-murder special circumstance finding—did not change during trial in any way that affected this case.

Thus, Coleman, which this court is not bound to follow in any event, has no application here. D. Sufficiency of Evidence of Defendant’s Intent to Kill Defendant challenges the sufficiency of the evidence that he intended to kill Maxine Brown when he fired the fatal shot. We reject this argument.

In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Price (1991) 1 Cal.4th 324, 462 [3 Cal.Rptr.2d 106, 821 P.2d 610]; People v.

Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) We draw all reasonable inferences in support of the judgment. (Ibid.) Here, defendant’s tape-recorded statement to sheriff’s deputies on December 1, 1984, supplied ample evidence that he intended to kill Maxine Brown when he shot her. This is what defendant told the deputies: After driving with the victim in her car for several hours, looking unsuccessfully for a place to rob, he stopped at a church. Defendant eventually told Brown to get out of the car and start walking.

Brown got out, but then came back into the car and asked for her purse. Defendant said, “No, you can’t have your purse because you’ll call the police.” When Brown replied, “I’m going to call them anyway,” defendant “got scared,” and hit her on the head with his gun, and told her to get out again. She did so. She then turned around and told defendant, “I’m going to call the police.” At that point, defendant “jumped out and shot her.” Also, at trial defendant testified that when the victim was in her car in the church parking lot, he told her, “Leave.

I don’t want to shoot you but I will.” These statements by defendant strongly support the jury’s conclusion that he intended to kill Maxine Brown when he shot her. In the tape-recorded interview with defendant that was played at trial, defendant claimed he did not intend to kill the victim, but intended only to scare her. At trial, defendant made the same claim. He testified that as to the third (and fatal) shot, which hit the victim in the chest, he “just fired at random.” The jury, however, was not required to accept that testimony.

The jury was free to believe some of defendant’s statements and to disbelieve other statements. (3 Witkin, Cal. Evidence, supra, §§ 1770-1771, pp. 1723-1725.) Moreover, the testimony of defendant’s girlfriend, Mary Kimble, also supports the jury’s finding that defendant intended to kill Maxine Brown when he shot her. Kimble testified that when defendant came home on the night of the crimes, he told her that things “went sour” and that he “had to kill” a woman.

Defendant emphasizes the evidence tending to show that the first two shots were fired at a downward angle, which, he argues, is consistent with an intent to frighten rather than an intent to kill. But defendant need not have intended to kill the victim when he fired the first and second shots. The jury’s conclusion that defendant intended to kill when he fired the third and fatal shot, which hit the victim in the chest, is supported by evidence that the gun used by defendant required that he manually retract the hammer before pulling the trigger. The testimony of Mark Velarde also supports this conclusion.

This witness, who lived across the street from the site of the killing, testified that he heard three shots. The first two shots were fired in rapid succession, but there was a slightly longer delay between the second and third shots than between the first and the second. In the context of this case, this delay is further evidence that defendant intended to kill the victim when he shot her in the chest. E.

Jury Instructions on Intent to Kill Defendant argues that the trial court committed reversible error in failing to instruct the jury that it must find intent to kill before it could find the robbery-murder special circumstance to be true. As explained earlier, when the trial of this case began, Carlos, supra, 35 Cal.3d 131, which required proof of intent to kill as a prerequisite for a felony-murder special circumstance, was the law. While the trial was in progress, this court overruled Carlos in Anderson, supra, 43 Cal.3d 1104.

As we later made clear, the rule of Carlos applied to cases in which the crime occurred when Carlos was in effect. (People v. Duncan, supra, 53 Cal.3d at p. 973, fn. 4; People v. Fauber, supra, 2 Cal.4th at p. 835.) Under Carlos, the standard jury instruction specified, in pertinent part: “To find that the special circumstance, referred to in these instructions as murder in the commission of a robbery, is true, it must be proved: ... [1] 2. That the defendant intended to kill a human being.” (CALJIC No. 8.81.17 (1984 rev.) (4th ed.

Jan. 1987 pocket pt. pp. 130-131).) In this case, the trial court instructed the jury in terms of the special circumstance without reference to intent to kill. The court then added to the special circumstance instruction the following: “If you find the special circumstance true, you must make a separate finding as to whether the defendant intended to kill a human being at the time of the murder. A special form will be provided for that purpose.” The jury was given a special finding form that read: “We find the defendant Michael Joseph Wader intended to kill Maxine Brown. True.

Not True.” The jury circled “True.” Instructional error, “even with regard to an element of an offense,” is measured under the “harmless beyond a reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065]. (People v. Odle (1988) 45 Cal.3d 386, 414 [247 Cal.Rptr. 137, 754 P.2d 184]; People v. Garrison (1989) 47 Cal.3d 746, 789 [254 Cal.Rptr. 257, 765 P.2d 419]; see generally Carella v.

California (1989) 491 U.S. 263 [105 L.Ed.2d 218, 109 S.Ct. 2419].) But with respect to a failure to instruct on intent to kill under Carlos, supra, 35 Cal.3d 131, we have stated that no reversible error exists “where the jury necessarily found the requisite intent to kill as a result of other properly given instructions (the so-called Sedeño exception) . . . .” (People v. Leach, supra, 41 Cal.3d at p. 108, referring to People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913]; see generally People v. Mincey, supra, 2 Cal.4th at p. 438.) This case comes within the Sedeño exception.

Here, the jury explicitly found that defendant intended to kill the victim when he shot her. Because of that express finding, the trial court’s failure to adhere to the precise terms of former CALJIC No. 8.81.17 did not prejudice defendant. F. Voluntary Intoxication Defendant contends the trial court erred in not instructing the jury on its own motion on the relevance of voluntary intoxication to the questions whether defendant had the specific intent to kill the victim, to commit robbery, or to kidnap the victim for the purpose of robbery.

There is some evidence from which the jury could have inferred that defendant was intoxicated at the time of the crimes. Defendant’s girlfriend, Mary Kimble, testified that defendant injected cocaine before he left the Los Robles residence on the night of the crimes. And defendant testified that he had “a lot” of cocaine with him in the victim’s car, and injected it “all night long.” He also testified that he used “crystal meth” on the night of the crimes. Defendant, however, did not rely on voluntary intoxication as a defense to the specific intent crimes with which he was charged.

As we have recently held, a trial court has no duty to instruct on its own motion on voluntary intoxication. (People v. Saille (1991) 54 Cal.3d 1103, 1120 [2 Cal.Rptr.2d 364, 820 P.2d 588].) Defendant also argues that his trial counsel was ineffective in failing to request an instruction on voluntary intoxication. We disagree. Defendant’s version of events was that he specifically intended not to kill the victim when he shot her. According to defendant, he did harbor a specific intent when he fired the third and fatal shot—to scare the victim, and nothing more.

An instruction on voluntary intoxication as negating specific intent would have been inconsistent with defendant’s theory of the case. Accordingly, we cannot say that defense counsel had no rational tactical purpose in not requesting an instruction on intoxication. G.

Jury Instruction on Consciousness of Guilt The trial court instructed the jury in the terms of CALJIC No. 2.03 (1984 rev.) (4th ed. 1987 pocket pt, p. 8) that “if you find that before this trial the defendant made wilfully false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but it is not sufficient of itself to prove guilt. . . .” Defendant contends the trial court erred in so instructing the jury, because defendant’s statements that might be considered false and misleading had no probative value for any contested issue at trial.

As we shall explain, the instruction properly directed the jury’s attention to testimony tending to show that defendant attempted to divert suspicion from himself to Frank Hillhouse, and that his later inconsistent statements that he did not intend to kill the victim were false. Defendant testified at trial that when he fired his gun at the victim, he did not intend to kill her. He stated that when she fell to the ground, he thought she had fainted, and when, after the incident, he read the newspapers and watched television and found no account of a murder, he concluded that he had not killed the victim.

At trial, the prosecution introduced evidence of defendant’s statements to San Bernardino County sheriff’s deputies, who at that time were unaware of the victim’s murder, that Frank Hillhouse, defendant’s friend, had a .357 magnum gun, had used it to shoot “an old white broad” in the La Puente area, and had also taken the victim’s car.

The jury could reasonably conclude that these statements were false and misleading, that defendant attempted to divert suspicion from himself to Hillhouse, and that this attempt tended to show the falseness of defendant’s later testimony that he did not intend to kill the victim and did not believe he had killed the victim. Thus, defendant’s false statements to sheriffs deputies had a direct bearing on the credibility of his later testimony that he did not intend to kill. The trial court therefore did not err in instructing the jury in the terms of CALJIC No. 2.03, supra. H.

Jury Instruction on Discrepancies in Testimony The trial court gave the jury CALJIC No. 2.20 (1980 rev.) (4th ed. 1984 cum. pocket pt., p. 8), which told the jury it could properly consider the witnesses’ prior consistent and inconsistent statements, and “anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of a witness.” Defendant claims the trial court had a sua sponte duty to instruct the jury in the terms of the second paragraph of the then-current version of CALJIC No. 2.21 (4th ed. 1979 bound vol.) At the time of trial, the instruction read: “A witness willfully false in one material part of his testimony is to be distrusted in others.

You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you shall believe the probability of truth favors his testimony in other particulars. [j[] However, discrepancies in a witness’ testimony or between his testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience; and innocent misrecollection is not uncommon. It is a fact, also, that two persons witnessing an incident or a transaction often will see or hear it differently.

Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance.” Defendant contends the inconsistencies between his statements to the police that were admitted at trial and his trial testimony required the trial judge to instruct the jury on its own motion in the terms of the second paragraph of the instruction at issue. We disagree. The requirement that the trial court give sua sponte instructions applies only to those instructions that are “ ‘ “necessary for the jury’s understanding of the case.” ’ ” (People v.

Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal.Rptr. 436, 650 P.2d 311]; accord, People v. Price, supra, 1 Cal.4th at p. 442.) As noted above, the jury was given CALJIC No. 2.20, which told the jury it could properly consider the witnesses’ prior consistent and inconsistent statements, and “anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of a witness.” We conclude that, under the circumstances of this case, the trial court gave the jury the instructions that were necessary to evaluate the testimony of the witnesses, including defendant.

The jury was adequately instructed. I. Trial Court’s Response to Jury Question About Robbery Defendant argues that his robbery conviction should be reversed because the trial court improperly responded to a question from the jury about the robbery charge. During deliberations, the jury sent the trial court a note with this question: “Is the stealing of the [victim’s] silver car considered a robbery?” In the presence of the jury, the trial judge read this question aloud in court. The judge then told the jury: “[T]he issue is whether there was an intent to permanently deprive. If you conclude or find that Mr.

Wader took the car and intended to return it, then there would not be robbery. If you conclude or find that when he took the car, that he meant to permanently deprive, there could have been a robbery.” (Italics added.) Defendant’s counsel then asked for a sidebar conference, during which he suggested that the jury’s question could have been directed to the kidnapping-for-robbery count.

Thereafter, the trial judge informed the jury: “Ladies and gentlemen, if that question was directed to the 209 count, that is the kidnapping for the purpose of committing a robbery, then the intention to permanently deprive that’s the issue we have been talking about, has to be present at the time the movement of the car commenced. At the time he got in the car and the car began to move.” Defendant characterizes the trial court’s response to the jury’s question as “potentially misleading.” He focuses on the court’s statement, italicized above, “If you conclude or find that Mr.

Wader took the car and intended to return it, then there would not be robbery.” According to defendant, the most plausible

interpretation of the evidence is that when he took the victim’s car, he intended to use it to commit other crimes and then to abandon it. Under this scenario, he would not have intended to permanently deprive the victim of her car when he took it, but he would not have intended to return it to her either. Under these facts, defendant asserts, he would not be guilty of robbery. But, defendant argues, the trial court’s response to the jury misleadingly indicated that on these facts he would be guilty of robbery. We perceive no error in the trial court’s response to the jury.

The prosecution retained the burden of proving beyond a reasonable doubt that defendant intended to permanently deprive the victim of her car at the time the car was put in motion. Nothing in the court’s reply to the jury’s question altered the prosecution’s burden of proof. Nor did the court’s response tell the jury that if defendant intended to abandon the car and not return it to the victim, defendant would be guilty of robbery. Considered in context, the trial court’s comment of which defendant complains—“[i]f you conclude or find that Mr.

Wader took the car and intended to return it, then there would not be robbery”—was correct. J.

Trial Judge’s Pretrial Comments Defendant contends that, before the presentation of evidence, the trial court took three steps that “improperly tended to influence the jury in the direction of a verdict of guilt.” Specifically, defendant contends the trial court erred by (1) reading to the prospective jurors the information that mentioned four robbery counts that were later severed; (2) implying that a decision by defendant to call witnesses was a concession that the prosecution had met its burden of proof; and (3) using in voir dire only “death qualification” hypotheticals that assumed defendant was guilty. 1.

Reading Information to Jury Pool When first addressing the pool of prospective jurors, the trial court stated: “This case alleges a count of first degree murder and several counts of robbery.” Later, the court read the information, including all four robbery counts, to the jury pool. Two weeks later, the robbery counts were severed. The record shows that defense counsel failed to object either to the reference to the robbery counts or the reading of the information that included the robbery counts. Accordingly, the issue has not been preserved for review. (People v.

Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].) In any event, the reading of the information could not have influenced the jury, and was therefore harmless under any standard. 2. Defendant’s Decision to Call Witnesses Before the presentation of evidence began, the trial court explained to the jury the procedure of a criminal trial. In part, the trial court stated: “After the prosecution has presented their [sic] witnesses and the defense has cross-examined them, then the defense has the opportunity to present witnesses, if they wish to do so.

I don’t know in this case what decision the defense has made. They may decide not to present any evidence. There are a number of reasons why testimony may not want [src] to be presented by the defense or why they may not want to call the defendant.

One [of] those may be that they understand that the rule is that the prosecution has the responsibility of presenting sufficient evidence to convict the defendant, and that standard being beyond a reasonable doubt. “They may wish to take the position, or they may take the position that the People have not proven their case, that they have not proven that defendant is guilty beyond a reasonable doubt and may decide not to present evidence for that reason, or for any other reason. “Should they elect to present evidence and present testimony then the district attorney has the same opportunities to cross-examination [sic] as the defense did. . . .” Defendant argues that the trial court’s explanation indicated to the jury that a decision by a defendant to call witnesses is a concession that the prosecution has met its burden of proving guilt beyond a reasonable doubt.

We reject this argument. First, defendant failed to object to the trial court’s explanation; therefore, the issue has not been preserved for appeal. (People v. Green, supra, 27 Cal.3d at p. 27.) Moreover, the trial court’s explanation, taken in context, does not amount to error. Rather, the court’s explanation somewhat inartfully indicated that there are a variety of reasons why a defendant may choose not to present evidence.

Before the jury began its deliberations, the court instructed the jury that defendant was presumed innocent and that the prosecution had the burden of proving defendant guilty beyond a reasonable doubt. On this record, any confusion was dispelled by later, correct jury instructions. 3. Use of “Death Qualification” Hypotheticals In examining prospective jurors on their attitudes toward the death penalty (“death-qualifying” the jury) under Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] and Hovey v.

Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301], the trial court used only hypotheticals that assumed defendant was guilty. Defendant now contends that these hypotheticals improperly biased the jury toward conviction. Defendant overlooks that, in “death-qualifying” the jury, unless the jurors assume that a defendant is found guilty, they will have no reason to consider the question of an appropriate penalty. Accordingly, in determining the jurors’ willingness to vote for the death penalty in an appropriate case, the hypotheticals necessarily must assume that the accused is guilty.

Here, the court’s hypotheticals were not improper. K. Separate Guilt and Penalty Phase Juries During jury selection, the trial court excluded three jurors for cause because they said that in view of their religious beliefs they would not be able to vote for the imposition of capital punishment. Defense counsel suggested that the trial court allow jurors excluded for cause under Wainwright v. Witt, supra, 469 U.S. 412, to sit on the guilt phase jury and that alternate jurors be substituted for these “guilt-phase includable” jurors at the penalty phase, if there was one.

The trial court declined this invitation, and defendant asserts it was error to do so. We disagree. Defendant’s argument is inconsistent with

section 190.4, subdivision (c), which provides that the same jury that determines guilt shall also determine “the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn.” Moreover, this court rejected a virtually identical argument in People v. Fields (1983) 35 Cal.3d 329 [197 Cal.Rptr. 803, 673 P.2d 680].

We determined there that the state’s interest in assuring that “the decision-making process of a death penalty case is a coherent whole” outweighed “those interests asserted in favor of permitting the ‘guilt phase indudables’ to serve on the jury which tries guilt and special circumstance.” (Id. at p. 352; see People v. Taylor (1990) 52 Cal.3d 719, 738 [276 Cal.Rptr. 391, 801 P.2d 1142].) Defendant advances no compelling reason for us to reexamine this holding. III. Penalty Phase Facts A.

Prosecution’s Penalty Phase Evidence At the penalty phase, the prosecution presented evidence relating to four armed robberies committed by defendant, as well as evidence concerning two rapes and two nonviolent crimes of which defendant had been convicted. 1. The Sizzler Robbery On October 8, 1984, Thomas Reran was the manager of a Sizzler restaurant in Pico Rivera in Los Angeles County. At 7:30 p.m. that day, a man Beran identified as defendant walked up to the cash register and told Beran to hand over the money in the cash register. Defendant had a gun in his waistband.

Beran opened the register and handed defendant about $200 in bills. Defendant took the gun out of his waistband and left. Shortly after-wards, Beran heard a sound like a gunshot. 2. The Numero Uno Robbery On October 12, 1984, Anita Chan worked at a Numero Uno pizzeria in San Gabriel, County of Los Angeles. At 10:30 p.m., a person Chan identified as defendant came in and ordered a pizza. Chan wrote the order down and, when she looked up, defendant was pointing a gun at her. Defendant demanded all the money in the cash register. Chan handed defendant about $300. 3.

The Kentucky Fried Chicken-Alhambra Robbery On October 15,1984, Laurie Crasser worked at a Kentucky Fried Chicken restaurant in Alhambra in Los Angeles County. A man entered, and Crasser asked her coworker Robert Gonzales to wait on him. As Grasser was taking some dirty dishes to the back, she heard a gunshot. When she turned around, the man was gone. She called the police. Grasser described the robber to the police, but she could not identify him at trial.

Grasser’s coworker Robert Gonzales testified he was working at the front counter that evening when a man came in, placed an order, then pulled out a gun and pointed it at Gonzales. The man told Gonzales to give him the money in the cash register, and Gonzales did so. The man ran toward the front door, and Gonzales turned toward the rear. Gonzales then heard a shot. Gonzales later saw a bullet hole in the counter close to the floor. Gonzales was unable to identify the robber at trial. 4.

The Kentucky Fried Chicken-San Gabriel Robbery On November 13, 1984, Deanne Limón worked at a Kentucky Fried Chicken restaurant in San Gabriel in Los Angeles County. That evening, a man Limón identified as defendant came to the counter, displayed a gun in his waistband, and demanded money. Limón handed defendant about $80 from the cash register. Defendant then left. 5. Defendant’s Statements to Deputy Gerlach On December 11, 1984, Deputy Dieter Gerlach, a robbery investigator for the Los Angeles County Sheriff s Department, interviewed defendant at the San Bernardino County jail.

Defendant admitted committing the robbery of the Kentucky Fried Chicken restaurant in Alhambra on October 15, 1984, the robbery of the Sizzler restaurant in Pico Rivera on October 8, 1984, and the robbery of the Kentucky Fried Chicken restaurant in San Gabriel on November 13, 1984. Defendant said he thought he had committed the robbery of the Numero Uno pizzeria on October 12, 1984, but was not positive. On February 12, 1985, when Deputy Gerlach again interviewed him, defendant confirmed that he had robbed the Numero Uno pizzeria. 6. Rape and Assault of Antoinette R.

The parties stipulated that in July 1972, defendant had pleaded guilty to violations of

section 261, subdivision (a)(2) (rape by force) and

section 245 (assault with a deadly weapon or assault with force likely to produce great bodily injury) against Antoinette R., and that the victim was unavailable to testify at trial. The victim’s mother, Marilyn G., testified that her daughter was 14 years old at the time of these crimes, and she described her daughter’s appearance before the rape and after it. Marilyn G. identified a photograph of her daughter taken five to seven days after undergoing reconstructive facial surgery as a result of injuries inflicted in the course of the rape. 7.

Other Prior Felony Convictions In addition to the crimes against Antoinette R., the parties stipulated that defendant had pleaded guilty to one count of rape by threat of force in violation of

section 261, subdivision (2) against Kathryn Mary D. on November 10, 1971. The parties also stipulated that defendant had pleaded guilty to forgery in violation of

section 470 in 1980, and to possession of marijuana on state-controlled grounds in violation of

section 4573.6 in September 1984. B. Defendant’s Penalty Phase Evidence 1. Testimony by Defendant’s Relatives and Friends Defendant’s father, Dave Wader, testified that his wife, Rachel Wader, gave birth to defendant in 1946 in San Diego, and that when defendant was 18 months old, Rachel “just took off,” after which neighbors took defendant into their home. Defendant later lived with Dave’s brother in Detroit. In 1950, when defendant was four years old, Dave Wader remarried. He and his new wife, Helen, then had defendant live with them in San Diego. At age 13, defendant began running away from home.

As a teenager, defendant spent a lot of time hitchhiking across the country. One day, in the late 1970’s, Dave Wader was on a river fishing trip with defendant when a boat with three children in it capsized. Defendant swam across the river and saved the children. Also, when Dave Wader’s father and father-in-law were ill, defendant took care of them. Helen Wader, defendant’s stepmother, testified that defendant was four years old when he came to live with her in San Diego. When defendant was about 12 years old, Helen gave birth to a daughter, and defendant’s behavior then changed.

He began a pattern of running away and getting in trouble. During his teenage years, defendant received psychiatric help. When Helen’s father became ill, defendant took care of him, and her father “adored” defendant. Beatrice Mungie, the mother of defendant’s stepmother, described defendant as a normal and affectionate child. When her husband was ill with cancer, defendant took care of him and was “very gentle” with him. Robert Mungie, the brother of defendant’s stepmother, was a salesperson and a Baptist minister who had spent 30 years in the Navy and had substantial experience as a counselor.

He first met defendant when defendant was about five or six years old, and observed him as he grew up. Defendant was an unwanted and abandoned child, and had a rough life. Defendant’s father and stepmother were “very abusive” to him. When defendant as a child would talk back or do something wrong, his father and stepmother would hit him, often with their fists, or kick him. This was a regular occurrence. Robert Mungie characterized the hitting as abuse, noting, “You don’t hit a kid with your fist and call it discipline.” Defendant became fearful and submissive.

Robert Mungie tried to talk to defendant’s father and stepmother about their treatment of defendant, but they were “very stubborn” people. William Wader, defendant’s uncle, testified he had known defendant since defendant’s birth. As a child, defendant suffered a head injury that affected his eyesight. Defendant’s stepmother displayed no affection toward defendant. Instead, she would discipline him roughly, beating him on the head. Carrie Kleiboker was 15 or 16 years old when she met defendant in 1980 or 1981. At that time, her mother had injured herself and had to lie flat on her back.

Defendant helped out around the house, bringing them food and otherwise assisting the family for three or four months. Carrie Kleiboker’s testimony was corroborated by her mother, Norma Roach, and her sister, Lori Duffet. Mary Kimble, defendant’s girlfriend, testified that she introduced defendant to Nona Dingily, a woman in her 80’s who was blind and ill. Defendant brought Dingley groceries, took her out to dinner, and “did whatever he could for her.” Defendant also helped Kimble with her son, who had been molested by his father and would not talk about it.

Defendant was the only person who was able to get the boy to talk about the experience, and encouraged him to talk to a psychiatrist. According to Kimble, defendant was a positive influence in her son’s life. 2. Associate Warden James Park James Park, a correctional consultant who had 35 years of experience with prison management and operations, and had been an associate warden at two California prisons, described maximum security imprisonment in California.

He testified that maximum security prisoners can be managed with a high degree of safety for staff and other prisoners, and that prisoners with long-term sentences are generally a stabilizing influence in the prison community. IV. Penalty Phase Discussion A. Exclusion of Prospective Juror Kosmatka The prosecutor challenged prospective juror Gary Kosmatka for cause, and the trial court excluded him. Defendant contends Kosmatka’s exclusion compels reversal of the judgment of death. We reject the contention.

When the prosecution seeks to exclude a prospective juror for cause because of the juror’s views on capital punishment, under Wainwright v.

Witt, supra, 469 U.S. 412, the trial court must determine whether “the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424 [83 L.Ed.2d at p. 851].) “ ‘Under Witt, therefore, our duty is to “examine the context surrounding [the juror’s] exclusion to determine whether the trial court’s decision that [the juror’s] beliefs would ‘substantially impair the performance of his duties . . .’ was fairly supported by the record.’”” (People v.

Wharton (1991) 53 Cal.3d 522, 587 [280 Cal.Rptr. 631, 809 P.2d 290]; People v. Hardy (1992) 2 Cal.4th 86, 129 [5 Cal.Rptr.2d 796, 825 P.2d 781].) Here, the trial court’s determination that prospective juror Kosmatka’s beliefs would substantially impair his performance as a juror is fairly supported by the record; thus the juror was properly excused for cause. During voir dire, Kosmatka was extensively questioned hy the trial court, the prosecutor, and defense counsel.

The court asked Kosmatka whether, if he believed the special circumstance of robbery-kidnapping to be true, he would vote “not true” in order to avoid the death penalty issue. Kosmatka replied he was a Catholic, explaining, “I do not know if I can reconcile a death penalty along with my faith.” In response to a question by the court regarding a hypothetical premeditated murder of a nun to eliminate her as a witness, Kosmatka said he did not think he could vote for the death penalty in that case.

In later questioning, Kosmatka said he could possibly vote for the death penalty in a case that was “outrageous” and involved the murder of a member of his family or a close friend, but that would involve violating his beliefs. Finally, the trial court asked Kosmatka: “[Y]ou are saying ‘Judge, I am telling you I have charged my conscience and I know at this point that I would not vote for the death penalty in this case. Period, end of report.’ Are you telling me that?” Kosmatka answered, “Yes.” In this instance, we perceive no violation of the standards of Wainwright v. Witt, supra, 469 U.S. 412. B.

Interrogations By Deputy Gerlach The complaint charging defendant with capital murder was filed on December 5, 1984. On December 11, 1984, Deputy Dieter Gerlach of the Los Angeles County Sheriffs Department interrogated defendant about four robberies committed before the murder of Maxine Brown. Before Gerlach began his questioning, defendant orally and in writing indicated he wanted to talk about the robberies and did not want a lawyer. On February 13, 1985, defendant was arraigned on the capital charge, and counsel was appointed for him the next day.

The complaint in the capital case was later amended to charge defendant with the four robberies. At the penalty phase of defendant’s trial, Deputy Gerlach testified to the statements defendant had made to him admitting involvement in the four robberies. Defendant now contends that his Sixth Amendment right to counsel was violated by Gerlach’s interrogation of him after the capital charge was filed, and that the admission at the penalty phase of defendant’s statements to Gerlach was prejudicial error. This issue is not properly before us.

Because defendant failed to object to the admission of his statements to Gerlach either before trial or at the time of Gerlach’s penalty phase testimony, the issue was not preserved for our review. (Evid. Code, § 353; see, e.g., People v. Coleman (1988) 46 Cal.3d 749, 777 [251 Cal.Rptr. 83, 759 P.2d 1260].) Defendant alternatively contends that his trial counsel’s failure to raise this Sixth Amendment issue deprived him of effective assistance of counsel. We disagree. Even if defendant’s counsel had raised this issue, the trial court would not have been required to exclude Deputy Gerlach’s testimony.

The Sixth Amendment right to counsel attaches when adversary judicial criminal proceedings with respect to a particular offense have been initiated. (McNeil v. Wisconsin, supra, 501 U.S. at p._[115 L.Ed.2d at p. 166, 111 S.Ct. at p. 2207]; accord, People v. Clair (1992) 2 Cal.4th 629, 657 [7 Cal. Rptr.2d 564, 828 P.2d 705].) Here, such proceedings in the capital case had been initiated before Detective Gerlach’s interrogation. But the Sixth Amendment does not prohibit all police interrogations on related matters after adversary proceedings have been initiated.

Rather, the high court has made clear that “once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective.” (McNeil v. Wisconsin, supra, 501 U.S. at p.— [115 L.Ed.2d at p. 166, 111 S.Ct. at p. 2207], italics added.) Although in this case the Sixth Amendment right to counsel had attached in the capital case at the time of the interview, defendant fails to demonstrate that it had been invoked. The record does not show that defendant asked for a lawyer to represent him in the capital case at or before his interview with Gerlach.

Accordingly, no Sixth Amendment violation has been demonstrated. C. Admission of Prior-rape Evidence The parties stipulated that in July 1972 defendant had pleaded guilty to violations of

section 261, subdivision (a)(2) (rape by force) and

section 245 (assault with a deadly weapon or assault by means of force likely to produce great bodily injury) against Antoinette R., and that the victim was unavailable to testify at trial. As mentioned earlier, the victim’s mother, Marilyn G., testified regarding her daughter’s physical appearance before and after the rape. At trial, she identified a photograph of her daughter taken five to seven days after she had undergone reconstructive facial surgery as a result of injuries sustained in the course of the rape. This photograph was admitted into evidence over defendant’s objection.

Defendant contends the trial court’s admission of the photograph was in error, because the photograph was not relevant and was, in any event, more prejudicial than probative. We disagree. Generally, photographs that show the manner in which a victim was wounded are relevant to the determination of malice, aggravation and penalty. (People v. Milner (1988) 45 Cal.3d 227, 247 [246 Cal.Rptr. 713, 753 P.2d 669]; People v. Raley (1992) 2 Cal.4th 870, 914 [8 Cal.Rptr.2d 678, 830 P.2d 712].) Here, the photograph was relevant to the prosecution’s penalty phase case under factor (

b) of

section 190.3, as it tended to show criminal activity by the defendant that involved the use of force or violence. The evidence was particularly relevant to show the extreme violence defendant used on the 14-year-old rape victim. (People v. McDowell (1988) 46 Cal.3d 551, 568 [250 Cal.Rptr. 530, 758 P.2d 1060].) The trial court properly determined that the fact that the photograph was taken following the victim’s reconstructive surgery went to the weight, rather than the admissibility, of the photographic evidence. Moreover, we find no abuse of discretion in the trial court’s ruling that the photograph was not substantially more prejudicial than probative under Evidence Code

section 352. The photograph, which we have examined, is not “unduly gruesome.” (People v. Milner, supra, 45 Cal.3d at p. 247; People v. Cox (1991) 53 Cal.3d 618, 666 [280 Cal.Rptr. 692, 809 P.2d 351].) Although it is true that the photograph itself could not reveal to what extent the victim’s facial swelling and discoloration directly resulted from defendant’s attack and not from the victim’s later surgery necessitated by the attack, defendant’s counsel was free to cross-examine the victim’s mother on this point, and counsel did suggest to the jury that it should take this uncertainty into consideration.

In any event, the victim’s mother testified that, after the attack but apparently before the victim’s surgery, the victim’s mouth and cheekbones were severely swollen, and her right eye was swollen shut. This testimony enabled the jury to evaluate to what extent the photograph in question reflected the trauma of the assault rather than the effects of the surgery. Defendant had originally been charged with a violation of the 1970 version of

section 264 (rape with commission of great bodily injury) for his attack on Antoinette R., but this charge was dismissed as part of a plea bargain. Defendant contends that exhibit 31 and all of the testimony given by Marilyn G., the mother of rape victim Antoinette R., were inadmissible because use of the facts underlying the dismissed charge was a breach of the plea bargain and a violation of double jeopardy principles. We have repeatedly rejected virtually identical double jeopardy claims (see, e.g., People v. McDowell, supra, 46 Cal.3d at p. 568; People v.

Melton (1988) 44 Cal.3d 713, 756, fn. 17 [244 Cal.Rptr. 867, 750 P.2d 741]), and we decline to revisit this issue. We have also rejected the argument that the use at a penalty phase of facts underlying a charge dismissed as part of a plea bargain is precluded by the plea bargain agreement (People v. Frank (1990) 51 Cal.3d 718, 728-729 [274 Cal.Rptr. 372, 798 P.2d 1215]; see People v. Pride (1992) 3 Cal.4th 195, 257 [10 Cal.Rptr.2d 636, 833 P.2d 643]), and defendant offers no compelling reason to reconsider the question. Defendant additionally argues that this court’s holding in People v.

Melton, supra, 44 Cal.3d 713, 754, that the use of facts underlying a prior conviction as aggravating evidence at a capital case penalty trial is permissible conflicts with People v. Guerrero (1988) 44 Cal.3d 343, 355 [243 Cal.Rptr. 688, 748 P.2d 1150], in which this court held that the facts underlying a prior conviction could not be relitigated in the context of enhancements under

section 667. We have previously rejected a similar contention (People v. McDowell, supra, 46 Cal.3d at p. 568; People v. Johnson (1992) 3 Cal.4th 1183, 1242-1243 [14 Cal.Rptr.2d 702, 842 P.2d 1]), and decline to reconsider the issue. D. Use of Robbery Evidence at Penalty Phase As noted earlier, the four robbery counts with which defendant had originally been charged were severed before the guilt phase trial began. At the penalty phase, the prosecution introduced evidence regarding those robberies.

Defendant contends this unconstitutionally forced him to choose between testifying about four charged but severed robbery counts or remaining silent at the penalty phase. In People v. Caro (1988) 46 Cal.3d 1035, 1056 [251 Cal.Rptr. 757, 761 P.2d 680], we rejected a virtually identical contention, relying on McGautha v.

California (1971) 402 U.S. 183 [28 L.Ed.2d 711, 91 S.Ct. 1454], Defendant seeks to distinguish Caro on the basis that, unlike the defendant in Caro who faced no pending charges on the crimes as to which he contended he was forced to testify, here defendant was actually facing pending charges on the robbery counts. The defendant in Caro challenged the “introduction of evidence of killings for which he might at some future date be tried . . . .” (People v. Caro, supra, 46 Cal.3d at p. 1055.) The possible consequences of defendant’s choice to testify or not are identical here.

Moreover, if defendant had testified at the penalty phase, but not testified about the robberies on direct examination at the penalty phase, “any attempt to cross-examine him on that subject would not have survived a timely objection as to scope.” (Id. at pp. 1056-1057.) E. Instruction on Factors as Aggravating and Mitigating In conformance with Pen

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