THE PEOPLE, Plaintiff and Respondent, v. RICHARD DON FOSTER, Defendant and Appellant, 50 Cal. 4th 1301

Opinion GEORGE, C. J. A jury convicted Richard Don Foster of the first degree murder of Gail Johnson (Pen. Code, §§ 187, subd. (a), 189), second degree burglary (Pen. Code, § 459), and second degree robbery (Pen. Code, § 211).

The jury found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission or attempted commission of burglary and robbery. (§ 190.2, subd. (a)(17)(A), (G).) The jury also found true the allegation that defendant personally used a dangerous and deadly weapon, a knife, in connection with the murder and the robbery. (§ 12022, subd. (b).) The jury further found that defendant previously had been convicted of two serious or violent felonies. (§ 667, subd. (a).) Following the penalty phase of the trial, the jury returned a verdict of death.

Defendant moved for a new trial (§ 1181), to strike the special circumstances, and for modification of the penalty to life imprisonment without the possibility of parole (§ 190.4, subd. (e)). The trial court denied these motions, sentenced defendant to death, imposed sentence on the noncapital offenses, and ordered restitution in the amount of $200. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. FACTS A. Guilt Phase Evidence 1. The prosecution case a.

Summary In the afternoon of August 26, 1991, Gail Johnson’s body was found on the floor of the minister’s office in the High Desert Church of Religious Science in Apple Valley (the church). She had been stabbed at least eight times. Her purse was found on the floor near her body, and her wallet was missing. Blood found in the minister’s office matched defendant’s blood, and the combination of 10 particular sequences of DNA found in the blood would be expected to occur in approximately one in every 24 million individuals.

The victim’s vehicle was found in the parking lot of a business that defendant visited on the day of the crimes. Her wallet was retrieved from a mine shaft in which defendant previously had disposed of other items. A pair of jeans, stained with blood consistent with the victim’s blood, also was found in the mine shaft and was the same brand and size as the jeans worn by defendant on the day he was arrested. A bloodstain on a piece of tissue paper found in the mine shaft was consistent with defendant’s blood. Defendant had visited the church two days prior to the date of the crimes.

Evidence was received establishing defendant’s commission of two prior offenses in which he found women alone in an office and returned to rob and assault them. b. The day of the crimes Loren West testified that on Monday, August 26, 1991, he visited the church at approximately 11:20 a.m. to repair the air-conditioning, at which time the victim, Gail Johnson, was in the church office. West recalled opening a locked box of electrical fuses with a key that he obtained from a box provided by the victim.

After replacing a fuse, he returned the key to the victim in the church office and departed from the church at approximately 11:45 a.m. He stated that he saw only one vehicle, other than his own, in the church parking lot, and that the victim was the only person he saw at the church.

At trial, West was shown a photograph of the keys spread out in a wooden tray at the church office, and testified he “would not have left the key box open with keys laying everywhere.” William Rosenthal testified that when he arrived at the church at approximately 1:00 p.m. that day to deliver stationery, he did not observe any other vehicles in the parking lot or any other persons in the church office. When he looked into the minister’s personal office, he saw a person lying on the floor next to the desk. When he called into the minister’s office, the person did not respond.

He reported his discovery to his manager and called 911. Mike Malloy, who was working that day as an engineer employed by the Apple Valley Fire District, testified that at approximately 1:00 p.m., he was assigned to respond to a call regarding “a person down” at the church. He located the victim on the floor in the minister’s office, on her back, fully clothed, with blood on her shirt. Malloy determined she was not breathing and had no pulse. He testified that after an EKG (electrocardiogram) test revealed that “her heart was systole [sic] ... or flat-lined,” he did not attempt to revive her. c.

Crime-scene evidence Dr. Frank Sheridan, the chief medical examiner for the County of San Bernardino, conducted an autopsy. He testified the victim was 53 years of age, 64 inches tall, and weighed 140 pounds. He described numerous defensive wounds on the victim’s hands and arms, and confirmed that these wounds “could occur ... if someone is slashing at her . . . and she’s trying to ward off the blows.” He stated there were bruises on the right side of her nose and jawline that were consistent with being punched, and a bruise on the back of her head that probably occurred when the victim fell backward.

All of these wounds were inflicted while the victim was alive. Sheridan testified that the victim was stabbed once in the neck and at least seven times in the chest. He did not find anything, such as indentations on the victim’s skin, indicating that the knife used in the attack had a handguard that would have prevented the perpetrator’s hand from slipping past the handle. He testified that the neck wound was not as deep as the others, and might have been inflicted while the victim was standing and the perpetrator held the knife at her neck. One of the chest wounds was caused by two stabs through the sternum.

Sheridan agreed that if the perpetrator’s hand had blood on it when the knife hit the sternum, the perpetrator could have lost his grip and been cut. Sheridan concluded the victim was lying on her back when the chest wounds were inflicted, because she had a bruise on the back of her head, the chest wounds occurred in quick succession, and two of the wounds extended to the back of the ribcage, indicating that the force of the thrust did not push her body back. Sheridan examined a photograph of defendant’s right hand taken approximately two weeks after the murder.

He testified that an injury on defendant’s palm was consistent with one that would be suffered if a person were to stab with a knife and the knife were to slip. Sheridan also testified that defendant’s wound would have bled and was consistent with the injury having occurred two weeks earlier. David Stockwell, a criminalist in the San Bernardino County Sheriff’s Department, was assigned to assist in the collection of evidence from the crime scene. He testified that the victim’s body was found on the floor of the minister’s office, on her back, between the desk and the wall of the office.

Under the desk were numerous items that appeared to be from a purse, and a purse was beneath shelves that were affixed to the wall. One of the victim’s shoes was on the floor near her foot, and her other shoe was on the desk. A telephone and telephone cord also were on the floor, and the office window was broken. Stockwell was aware that a key was found in the trash can in the minister’s office. He observed blood on numerous items in the minister’s office. Stockwell received blood samples from the victim and defendant, which he analyzed to determine 11 genetic markers.

His analysis did not involve DNA directly, but focused instead upon particular proteins produced pursuant to the donor’s DNA coding. He testified that the 11 particular markers in defendant’s blood appear most frequently in the Caucasian population, and those 11 markers are found in one in 42,600 Caucasian individuals. Stockwell analyzed numerous bloodstains found in the church but was unable to test every stain he collected for each of these 11 genetic markers, because some of the samples were too small.

All of the bloodstains for which Stockwell obtained testing results were (1) consistent with the victim’s blood, (2) consistent with defendant’s blood, or (3) consistent with a mixture of both individuals’ blood. He testified that stains on the victim and on her clothing, and a blood smear on an ottoman located next to her body, were consistent with the victim’s blood. Bloodstains found on the window blinds in the minister’s office apparently had been deposited as a result of being flung with some force from a moving object and were consistent with the victim’s blood.

Stockwell analyzed samples obtained from the purse and concluded two smears were consistent with the victim’s blood, three drops were consistent with defendant’s blood, and two drops were consistent with a mixture of blood from both individuals. Stockwell explained that because the mixtures appeared within single drops of blood, the two sources of blood must have mixed before contacting the surface of the purse.

Bloodstains consistent with a mixture of the victim’s blood and defendant’s blood also were collected from the desk, the chair, two shelves of the bookcase, one of the shelves affixed to the wall, and the carpet in the minister’s office. Mixed stains also were found on the carpet outside the minister’s office and on the floor of the church foyer. Finally, bloodstains consistent with only defendant’s blood were found on the carpet in the minister’s office, the floor at the entrance to the church office, the floor of the foyer, and the drinking fountain in the foyer.

Stockwell testified that samples of the victim’s blood and defendant’s blood, and a sample of a drop of blood obtained from the purse that was consistent with defendant’s blood, were sent to Cellmark Diagnostics for DNA analysis. Dr. Robin Cotton, the laboratory director at Cellmark, explained that her laboratory extracts DNA from cells and analyzes certain DNA sequences that vary in length among individuals. At Cellmark’s laboratory, five locations of the DNA from each of these three blood samples were examined.

Each location of the DNA generated two distinct lengths or “bands,” representing the DNA received from each parent and resulting in 10 bands to compare. Cotton testified that all 10 of the bands from the blood on the purse matched the bands from defendant’s blood. She also testified that the presence of all 10 of these bands would occur in approximately one in every 24 million individuals. Gilbert Johnson, the husband of the victim, testified that she worked as a volunteer at the church.

He identified the purse found in the minister’s office as belonging to his wife, and numerous items found on the floor next to her body as normally kept by her in her purse. He also testified that she had a habit of keeping at least $50 in her purse. According to Johnson, his wife was strong willed and would have resisted an attempt to rob or rape her. d. Evidence obtained from other sites On August 26, 1991, at approximately 10:00 p.m., San Bernardino County Deputy Sheriff Phil Brown located the victim’s vehicle in the parking lot of a Lucky store in Apple Valley.

Brown testified that the driving distance between the church and the parking lot was one and one-half miles. Jeffrey Smink, a forensic specialist with the sheriff’s department, testified that he did not find any fingerprints in the passenger compartment but located a bloodstain on the passenger seat. Stockwell testified that this stain was consistent with a mixture of the victim’s blood and defendant’s blood. On September 10, 1991, Thomas Bradford, a detective with the San Bernardino County Sheriff’s Department, together with defendant’s parole officer, Steven Slaten, visited defendant at his residence.

Bradford testified that he took possession of the clothes defendant was wearing, including Rustler brand blue jeans with a 33-inch waist and a 30-inch length, and a blue T-shirt. On January 11, 1992, Curtis Edwards and his brother found the victim’s wallet in a mine shaft while the two men were prospecting in the Mojave Desert. Edwards testified that the wallet did not contain any cash. He delivered it to the sheriff’s department. On January 18, the Edwards brothers led Detective Bradford to the mine shaft.

Bradford testified that he found a pair of Rustler brand blue jeans, with a 33-inch waist and a 30-inch length, and a blue T-shirt in the mine shaft, which was located 2.2 miles from defendant’s residence. Stockwell analyzed bloodstains found on the pair of jeans and on a piece of tissue paper found in the mine shaft.

He testified that a stain “just above or right on the right knee” of the jeans was a “saturating” stain, indicating that the “fabric had come in contact with a fair amount of blood that soaked into that knee area.” He agreed that such a stain would be formed “if . . . [the victim’s] blood was on the ground and [the person wearing the jeans] put their knee in it.” He stated that, due to the passage of time and the conditions in the mine shaft, the blood had degraded, and he obtained results for only two genetic markers, both of which were consistent with the victim’s blood.

With respect to the tissue paper, Stockwell testified that it was “crumpled,” with what appeared to be a contact blood smear, “as if someone was grasping that particular item and the blood from the hand would have bled onto that piece of paper.” Stockwell obtained results for three genetic markers from the tissue paper, each of which matched defendant’s blood. e. Defendant’s visit to the church on Saturday, August 24, 1991 Irma Plate, the minister of the church, testified that she attended a meeting at the church on Saturday, August 24, 1991 (two days prior to the murder).

She recalled that, at some point that afternoon, Nina Pittsford, a church member, asked her to speak to a man who had come to the church but was not part of the meeting. The man identified himself as Martin Jennings and stated that his mother had been hospitalized. He asked Plate to pray for his mother. Plate invited him to write a prayer request and to place it in the church’s “prayer request box,” which he did. She testified that the man spoke with her for a moment or two, and then departed from the church. f.

Prior criminal conduct Johnnie C. testified that defendant had robbed and raped her on May 23, 1972, when she was working as a receptionist at the Burns Studio in Boise, Idaho. She recalled that defendant entered the studio at approximately 11:15 a.m., when she was alone in the office, and told her he wanted a photograph of himself to send to his girlfriend. Johnnie testified that defendant left after she scheduled an appointment for him, but he returned five or 10 minutes later and told her she should not call his home, because the portrait was to be a surprise for his family.

She recalled that he left again, but returned again five or 10 minutes later, proceeded down the hall toward the studio’s workrooms before she was able to return to the receptionist room, and told her he was “going to rob this place.” After confirming she was alone, he asked for her purse, which was in the cabinet behind him. She testified that he took $6 or $7 from her purse.

When a bell on the front door rang, indicating someone had entered the studio, defendant said, “You better get out there and get rid of them fast or there’s going to be a lot of people hurt.” As she showed photographic proofs to the customers, she could hear the floor squeak and therefore knew he was standing “right around the comer” watching her. Johnnie testified that when the customers left, defendant ordered her to return to the workroom and sit on a stool.

She saw that he had removed the money from the cash drawer, which was in the same cabinet as her purse, and had marked over his name in the appointment book. She related that he came toward her and placed his hands on her breast and thigh, and she jumped off the stool and told him to leave her alone and to get away. She recalled that he started hitting her in the face with his fist, splitting open her lip, and then knocked her down. She testified that every time she tried to get up, he knocked her down with his fist.

He told her, “ ‘If you don’t stop fighting, I’m going to hurt you really bad.’ ” She therefore “stopped fighting and just laid there crying and looking off.” He then raped her. When he started to leave, he said, “ ‘You better not call the police and you better forget that you ever saw me or else I’ll come back and kill you.’ ” She recalled that he pulled the telephone from the wall and left through the back door.

She reported that she suffered bruises on her face and body, and that he “hit me a lot in the abdomen.” She did not see a weapon but thought he told her he had one; although she “was convinced that he did,” she could not “swear to it.” After pleading guilty to raping Johnnie C., defendant was sentenced to life in prison in Idaho. Upon his release on parole on January 18, 1982, he moved to Apple Valley, California. Cindy M. testified that defendant robbed and assaulted her on March 29, 1982, when she was working in the office of a solar energy business in Apple Valley.

She testified she was alone in the office when defendant walked in at approximately 11:00 a.m. and told her he was waiting for a real estate agent to show him an office. He asked to use the telephone, but when he attempted to place a call, the telephone was not operative. Cindy then walked to another business’s office to contact the telephone company. She recalled that when she returned to her office, defendant inquired whether he could remain there because it was cold and windy outside. She agreed, and he remained in the office until noon, when a friend arrived to go to lunch and Cindy asked defendant to leave.

Soon after Cindy returned to her office at approximately 1:30 p.m., defendant again appeared and inquired whether he could wait in her office. At approximately 1:45 p.m., Cindy walked toward the back of her office to obtain advertising mailers to address, and when she turned around, defendant was standing immediately in front of her. She testified that he “put [a knife] right to my throat” and told her to put down the mailers. He pointed to her purse and asked whether it was hers, and she confirmed it was. He then turned her around so she was facing the door of the bathroom in her office.

She recalled that he handed her the purse and told her to give him her money. After she took her wallet out of the purse and gave him the cash, he told her to empty her purse onto the floor, which she did. When asked whether there was any other money, she told him there was cash in a box in a desk drawer, but he did not move toward that location. Instead, he continued to hold the knife to her throat and moved her into the bathroom. Then he lowered the knife, told her to remove her clothes, and came closer to her.

Cindy testified that she “grabbed his hand with the knife in it and I just . . . pushed it towards his . . . body, [f] And we fought and struggled and then he just started hitting me and he stabbed me, and I went down and he grabbed my hair and he kneed me under the chin, and then we struggled a bit more and he said, ‘Try that again, I’ll kill you.’ ” When he came near her again, she “screamed ‘No’ and pushed and ran out” the bathroom door and through the front door. Richard Nester was at the front door, about to open it, as Cindy ran from defendant.

Cindy recalled telling Nester, “He’s got a knife and he’s trying to rape me.” Nester told her to run, and she escaped to the office of another business. Thereafter, she was treated for a stab wound to the left side of her nose, which went through her nasal passages to the roof of her mouth. She also suffered two black eyes, two fractured teeth, and some bruises. Richard Nester testified that as he pushed open the front door, Cindy came running from the back of the office, with blood streaming down her face, and screamed at Nester, “ ‘He’s got a knife.

He tried to rape me.’ ” Nester recalled that as he pulled the door closed after Cindy ran out, the person who was following her stuck his right arm out the door and slashed at Nester with a knife as Nester tried to hold the door closed. After five or 10 seconds of struggling to hold the door, Nester ran to the parking lot of a nearby office building and yelled to a man to call the police, but the man drove away. Nester testified that he returned to his vehicle and pursued a person who, having run to a white Datsun truck, drove out of the parking lot ahead of Nester’s vehicle.

Nester described his pursuit of the Datsun, including his attempt to crowd that vehicle into a guardrail. During the chase, Nester attracted the attention of a sheriff’s deputy, who joined the pursuit and subdued the driver of the Datsun. Nester testified that the man in the Datsun was the man whom he encountered in Cindy’s office. Defendant was convicted of robbery and assault with intent to commit rape in connection with his attack upon Cindy M. He was sentenced to 13 years in prison, and was paroled from prison on December 12, 1990. 2. The defense case a.

Expert testimony Laurence Mueller, an associate professor in the Department of Ecology and Evolutionary Biology at the University of California, Irvine, testified that the databases used by Cellmark Diagnostics, which had analyzed the blood samples (see ante, at p. 1310), were inadequate for the methods employed by Cellmark. He stated that Cellmark’s use of the “product rule”—which involves multiplying the frequencies with which each particular DNA band or length appears in the population—is flawed if the populations from which data is collected are heterogenous rather than homogeneous.

According to Mueller, forensic calculations should be based upon the numerous subgroups that make up the major population groups, and should not be reached by treating a large group of numerous subgroups as if the group were homogeneous. Mueller advocated use of the “counting method,” pursuant to which the entire genetic profile is compared to each genetic profile in the database and only complete matches are included in the calculations of frequency.

Mueller also criticized Cellmark’s criteria for determining a match, asserted that Cellmark underestimates the frequency of each length, and faulted Cellmark for not including in its analysis what Mueller described as Cellmark’s “Oriental” database. By including the “Oriental” database, and by increasing the interval of the lengths that were considered to be matches, Mueller’s application of the product rule arrived at a frequency of defendant’s DNA match of one in 3.6 million.

Taking into account Cellmark’s error rate—which Mueller calculated to be one in 139, based upon a false positive result from a proficiency test in 1988 and a second false positive from such a test in 1989—and using the “counting method,” Mueller calculated the frequency of defendant’s DNA to be one in 185 or less. b. Defendant’s testimony Defendant testified that in 1991, he and his stepfather, Art Jennings, lived in two trailers, north of Apple Valley, supporting themselves by collecting recyclable materials.

His mother lived out of state, and her health had been deteriorating due to “a peritoneal infection.” She passed away on October 25, 1991. Defendant related that he learned about the Church of Religious Science while imprisoned in Idaho, and had visited the church in Apple Valley in 1982, when its minister was John Dennis. He recalled visiting the church again on August 24, 1991, to see Reverend Dennis, when he learned that Reverend Plate was the new minister.

He explained that he introduced himself as his half brother, Martin Jennings, because defendant did not have telephone service and the only telephone number he knew was Martin Jennings’s number. He confirmed that he spoke to Reverend Plate about his mother’s condition and completed a prayer request, but in contrast to Plate’s testimony and the rebuttal testimony of Nina Pittsford, he also testified that he requested, in the presence of Plate and Pittsford, to use the telephone, and that he entered the minister’s office and made a call.

Defendant testified that he then walked from the church to the Lucky store in Apple Valley, but Art was not there. Defendant then walked to an area containing service stations where he and Art routinely collected recyclable materials, but Art was not there, so he walked home, arriving sometime between 3:00 p.m. and 5:00 p.m. Defendant testified that on August 26, 1991, the day of the crimes, he and Art worked at home until 9:00 or 10:00 a.m., then drove to a bank, a construction supply store, and a Smart & Final store, where Art purchased chewing tobacco.

Defendant initially testified that when he and Art left Smart & Final at approximately 1:30 p.m., they went on the first “run,” collecting recyclable materials, finishing that run at approximately 3:00 p.m. When asked whether he went “anywhere near” the church on August 26, he provided a revised account of his day. He testified that the closest he came to the church was the CC Market, which was approximately one block east of the Lucky store in Apple Valley. He stated that he was at the Lucky store at approximately 11:00 a.m. and walked to the CC Market a few minutes later to purchase a carton of cigarettes.

He recalled that when he returned to the Lucky store, he could not find Art. He testified that he then walked to the area containing the service stations where he and Art usually collected recyclable materials, but upon not finding Art there, he walked seven or eight miles back to his residence, remaining there until 5:00 or 6:00 p.m., and then walked to visit a nearby family. With respect to the healing injuries on his right hand, which were photographed on September 10, 1991, defendant testified that these occurred on August 22, 1991, when he was collecting recyclable materials from dumpsters.

He stated that although he was left handed, he used both hands when recycling, and that he suffered cuts two or three times a week. Defendant also testified regarding the mine shaft in which the victim’s wallet was found. He recalled that on August 16, 1991, he and Art dumped 10 to 15 loads of nonrecyclable “junk” into the mine shaft in which the victim’s wallet was found, but he claimed the jeans and the T-shirt found in the mine shaft were not his clothes.

He stated that the jeans he was wearing on September 10, 1991, which were the same brand and size as the jeans recovered from the mine shaft, were Art’s jeans, which he was wearing because he planned to launder his own work pants. The prosecutor showed defendant a photograph of the inside of defendant’s trailer, taken on September 10, 1991. Defendant confirmed that a clean pair of jeans and a blue T-shirt visible in the photograph were his clothes.

He also confirmed that seven or eight pairs of clean pants were visible on hangers in the photograph, and that clothing in a bucket on the floor was the laundry he was collecting to wash on September 10. He explained that he was wearing Art’s jeans that day because all of his work clothes were dirty, and that not all of his jeans were work clothes. The prosecutor also questioned defendant concerning his prior crimes. Defendant admitted he had robbed and raped Johnnie C. but denied taking her purse, and claimed he hit her only once, did not hit her hard, and did not knock her down.

Defendant denied robbing and assaulting Cindy M. He admitted visiting her office to use the telephone in the morning on the day of her assault, but claimed he was in the parking lot in the afternoon when he heard a scream. He testified that he then drove away because he was a parolee, and “the next thing I remember I was up on Apple Valley Road and . . . Nester’s truck hit the tailgate of my pick-up.” 3. Rebuttal Nina Pittsford testified concerning defendant’s visit to the church on August 24, 1991. She recalled that defendant told her his mother was hospitalized due to a heart attack.

Pittsford stated she did not “feel right” about defendant, and decided to refer him to Plate, the new minister, and to remain near them. She testified that defendant did not enter the minister’s office, and she did not hear him ask to use the telephone. B. Penally Phase Evidence 1. Prosecution evidence Bunny Lynn Miles testified that she received obscene telephone calls from defendant in October and December 1989. When she terminated his calls, he placed additional calls and made threatening statements concerning her daughter, who was 10 years of age.

After one of his calls was traced to Art Jennings’s telephone, Miles identified defendant’s voice at a parole revocation hearing. Laurel R. testified that on June 13, 1972, when she was 12 years of age, her mother, Dinah J., gave defendant permission to use the telephone at the family home in Boise, Idaho. After defendant left, Laurel noticed that he drove by the house two or three times. Thereafter, she heard her mother screaming for help, and then observed defendant holding a gun to her mother’s back. Defendant told Laurel and four other children that if they moved, he would shoot them.

Her mother offered to leave the house and cash a check for him in the amount of $100. He agreed, and when he left the house with Laurel’s mother, he told the children that the house was being watched and that if they moved, he would shoot them and their mother. Dinah J. testified that after she allowed defendant to use the telephone, he returned and asked to use her telephone again, and as he followed her inside to make a call, she saw he had a gun. She recounted the events as to which Laurel R. testified, and also described accompanying defendant to a grocery store, where she obtained cash for him.

Dinah testified that defendant then drove her to an isolated area, raped her twice, and forced her to orally copulate him. After resisting, she acquiesced when he discharged his firearm in front of her face. Monica DiVincenzo, the daughter of Gail Johnson, the homicide victim, identified family members who were in photographs found inside the victim’s wallet. She testified that she had visited her mother every day, and that her own daughter usually stayed with Johnson on Saturday nights and accompanied her to church on Sundays. 2.

Defense evidence Defendant’s maternal aunt, Bessie Killebrew, testified that defendant’s mother, Pearl, ran away from home at the approximate age of 15 years, and initially was placed in a “girls’ home” and later in a mental institution. Subsequently, Pearl and Ray Foster had 11 children. Killebrew testified that the Foster family lived in poverty, and she described Ray Foster’s discipline of the children, employing a belt, as “a little harsh.” She stated that Ray Foster left the family in 1954, after the eldest daughter, who was then 12 years of age, accused him of molesting her.

Killebrew recalled that Pearl and her children left Idaho with Art Jennings in 1955, and that the children were made wards of the State of Nebraska in 1957. Art Jennings confirmed that he drove with Pearl and her children to Nebraska, but he exhibited difficulty in recalling the names and the number of her children. He denied ever disciplining defendant or any of the other Foster children. He testified that Pearl told him that her daughter Helen had died when her son Larry rolled onto Helen and suffocated her during the night.

He stated that the Foster children were removed from Pearl’s custody while Jennings was in jail, and that the Nebraska authorities would not tell him or Pearl where the children were being kept. Four of defendant’s siblings testified concerning their childhood. Larry testified that Pearl and Art beat the children, sometimes while the children were tied up, and forced them to steal. He recalled that the family traveled from state to state, living in Art’s vehicle and harvesting crops. He testified that Art killed Larry’s sister Helen in the vehicle by smothering her.

In 1957, the children were taken by the State of Nebraska and placed in Whitehall Home for Children. Larry stated that a housemother at Whitehall taught both defendant and him about sex, instructing them that “you got to hit them in the mouth before you do anything or they don’t like it.” He testified that he and defendant were transferred to a state mental institution, where they were beaten and sexually abused and drugs were administered, as were electroshock treatments and “hydrotherapy,” which involved transferring the subject from hot water to ice water and back again.

Defendant’s sister Wilma provided similar testimony concerning their time with Art and Pearl and at Whitehall, and also testified that Pearl accused defendant of smothering Helen. Another sibling, Steven, corroborated the foregoing testimony and also recounted that “the first sexual experiences were the girls with Art and the boys with mom.” The eldest daughter, who ran away before Art joined the family, testified that her father molested her, with Pearl’s knowledge, and that Pearl blamed the daughter for the molestation.

Defendant provided similar descriptions of his childhood and additional details about his life. Before being sent to Whitehall, he had attended school for a total of five months. At Whitehall, at 10 years of age, he was placed in first grade, remaining at that level for two years. During his third year at Whitehall, he attended eighth grade. He testified he was beaten at Whitehall and ran away on several occasions in an attempt to find his family.

He recalled that, at 12 years of age, he was accused of attempting to molest a housemother and was sent to a mental hospital for more than a year, where he received psychotropic medication, hydrotherapy, and electroshock treatment. Defendant also described his criminal history, which encompassed being kept in custody for all but approximately two and one-half years of his adult life. During his time in prison, he earned a high school equivalency degree, was trained as a dental assistant, and was an excellent worker.

Four individuals who resided at Whitehall contemporaneously with the Foster children described their experiences. Samuel Zanderholm testified that children were not allowed to visit their siblings on a daily basis but were permitted to interact when they encountered each other during free time. He recalled that some children were spanked with a paddle, and confirmed that “a lot of people” ran away. He was unaware of any sexual abuse. Esther Zanderholm testified that life at Whitehall was very regimented, and recalled that lilac branches were used to whip children.

Darlene Cummings testified that Whitehall was a very controlled environment in which residents had no freedom, making it difficult for residents to adjust to life outside of Whitehall. She stated she was hit in the mouth once and her brother was hit with a rubber hose once, but she was unaware of any sexual abuse.

She stated that children who returned to Whitehall from the mental institution “acted kind of strange and they even looked different,” and she confirmed that it “was pretty commonly known . . . that if you went to the mental institution, you got the shock treatment.” Daryld Schlereth confirmed that spankings and blows to the face were administered by staff at Whitehall. He testified that most of the teachers and houseparents were “pretty decent,” but he ran away four times because he grew tired of the rules.

He stated he had heard children discuss electroshock treatment when they returned from the mental hospital, but he never heard about treatment with ice water. When asked whether he saw defendant get hit, he stated that he thought defendant had been “worked . . . over a few times like all of us.” He testified that defendant bullied other children, and that defendant became more violent and rebellious after returning from the mental hospital. Dr. Edward Fischer, a psychologist, administered various tests to defendant and conducted interviews concerning his background.

He testified that defendant has an IQ of 112, and no indication of organic brain damage. He concluded defendant has an “antisocial personality” disorder, and testified that individuals with this disorder exhibit a low tolerance for frustration and engage in conflict with authority.

According to Fischer, such individuals “can’t change the way they behave, [f] Their emotional responses were conditioned by the earlier emotional scenarios that were acted out with their family.” He described defendant’s family as extremely dysfunctional, with “substantial abuse, incest, thievery.” Documents reviewed by Fischer disclose that when defendant was institutionalized in Nebraska, questions were raised concerning whether he could adjust to life outside an institution. According to Fischer, defendant could function well in a highly structured environment such as a prison.

James Park, a former associate prison warden at San Quentin State Prison, addressed the issue of prison security. He stated that an individual sentenced to life imprisonment without the possibility of parole would be placed in the level-four security classification, which is the highest security level for the general prison population. He added that even if such a prisoner eventually is reclassified for level-three confinement, he or she will be guarded by the same level of perimeter security and gun coverage as a level-four prisoner.

He stated that although level-four prisoners may work, go to the exercise yard, and participate in programs such as Alcoholics Anonymous, their schedules are very regimented. He testified that defendant was an excellent worker in prison and, in Park’s opinion, would “pay his way” in prison and “contribute to the safe, good operation of a prison.” II. DISCUSSION A. Pretrial Issues 1. Physical restraint of defendant at trial At trial, defendant was restrained by a stun belt and leg restraints.

He contends these restraints violated his rights of confrontation, due process, a fair trial, the assistance of counsel, and a reliable determination of the issues of guilt and penalty, as well as the presumption of innocence, under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The prosecutor moved for an order permitting the use of physical restraints upon defendant, based upon his escape from Idaho State Penitentiary in 1973 and his flight from Richard Nester after defendant attacked Cindy M.

At a hearing on the motion, defense counsel stated that the defense did not object to an electronic security belt, but did oppose leg restraints.

The trial court concluded that defendant “has, over the years, exhibited violence and also a firm commitment to escape when he decided to do that.” The court further concluded that “this is a case in which we should not just rely upon the belt, because, although the belt is handled by extremely competent people, you never know what’s going to happen.” “[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v.

Duran (1976) 16 Cal.3d 282, 290-291 [127 Cal.Rptr. 618, 545 P.2d 1322]; see also Deck v. Missouri (2005) 544 U.S. 622, 629 [161 L.Ed.2d 953, 125 S.Ct. 2007] [“the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial”]; People v. Stevens (2009) 47 Cal.4th 625, 632-633 [101 Cal.Rptr.3d 14, 218 P.3d 272] [reviewing principles concerning physical restraints]; People v.

Mar (2002) 28 Cal.4th 1201 [124 Cal.Rptr.2d 161, 52 P.3d 95] [addressing factors to be considered in evaluating whether a stun belt should be used].) Defendant did not object to being restrained or to the use of a stun belt as a restraint. Therefore, he has forfeited his claim to the extent he contends he should not have been restrained at all, or that the stun belt was an inappropriate form of restraint. (See People v. Ward (2005) 36 Cal.4th 186, 206 [30 Cal.Rptr.3d 464, 114 P.3d 717]; People v. Tuilaepa (1992) 4 Cal.4th 569, 583 [15 Cal.Rptr.2d 382, 842 P.2d 1142] (Tuilaepa I), affd. sub nom. Tuilaepa v.

California (1994) 512 U.S. 967 [129 L.Ed.2d 750, 114 S.Ct. 2630] (Tuilaepa II).) We need not decide whether the trial court abused its discretion in concluding that defendant also should be constrained by leg restraints, because there is no evidence suggesting that any juror observed the use of these restraints. “We have consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury. [Citations.]” (Tuilaepa I, supra, 4 Cal.4th at pp. 583-584; see also People v. Anderson (2001) 25 Cal.4th 543, 596 [106 Cal.Rptr.2d 575, 22 P.3d 347].) 2.

Voir dire of prospective jurors Defendant claims the trial court’s examination of the prospective jurors was inadequate to reveal bias, and that the jury included jurors who were biased against defendant. He contends the trial court’s examination violated Code of Civil Procedure

section 223, and resulted in a denial of his rights to a fair trial, a fair and impartial jury, due process of law, and reliable guilt and penalty determinations under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and

article I,

section 16 of the California Constitution. In 1996, when defendant’s case was tried, Code of Civil Procedure former

section 223 specified that “the court shall conduct the examination of prospective jurors,” and also provided that the court had discretion to permit the parties to engage in further inquiry. In the present case, the examination of prospective jurors initially was conducted through a questionnaire.

The trial court rejected defendant’s request that the questionnaire set forth six categories of views concerning the death penalty, rather than the five categories identified in the prosecution’s proposed questionnaire, and also rejected defendant’s objections to the manner in which the prosecution had defined these categories. The court informed defendant, however, that “during the Hovey voir dire, you will have great latitude in phrasing the questions your way using your chart [of classifications] and saying I think this is a better way, let’s explore it with you.” (See Hovey v.

Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301] [voir dire that addresses issues related to the death penalty “should be done individually and in sequestration”]; see also People v. Cunningham (2001) 25 Cal.4th 926, 973, fn. 5 [108 Cal.Rptr.2d 291, 25 P.3d 519] [Code Civ.

Proc., § 223 abrogates Hovey's requirement of individual and sequestered voir dire].) The trial court confirmed with defense counsel that the prosecution’s questionnaire addressed all of the issues that the defense wanted addressed and was not phrased in a manner that was argumentative or that would require the jurors to prejudge the evidence.

The court also reiterated that “over and above the questionnaire, counsel is going to have extremely wide latitude in terms of the Hovey voir dire and in terms of the voir dire of the jurors [once] they are seated as a group in the box . . . .” Before distributing the questionnaire, the trial court read to the prospective jurors the charges and allegations against defendant, informed them that defendant had pleaded not guilty, and explained that the People bore the burden of proving those charges and allegations beyond a reasonable doubt.

After considering claims of hardship, the court explained that if the jury found defendant guilty of murder in the first degree and found a special circumstance allegation to be true, there would be a second phase of the trial during which the jurors would be presented with evidence concerning aggravating and mitigating circumstances and would be asked to decide between the punishments of death and life imprisonment without the possibility of parole. The court read to the prospective jurors the description of aggravating and mitigating factors set forth in

section 190.3, and stated that “we need to select people who can fairly choose one punishment over the other” rather than individuals who would be committed in advance to selecting one of the two punishments over the other. The court explained that all of the prospective jurors would receive a questionnaire, and that none of them should “hold back with regard to any feelings you might have on any issue that is raised.” After the prospective jurors returned the questionnaires, counsel were afforded time to review the answers and then were allowed to question the jurors.

The trial court did not pose any oral questions to the prospective jurors, nor did it limit the parties’ questioning of them. Defendant did not object to the manner in which voir dire was conducted, nor did he indicate he believed the trial court should undertake examination in addition to the questions posed by the questionnaire and the unlimited questioning afforded defendant and the prosecution. Defendant therefore has forfeited his claim that the voir dire was inadequate. (See People v.

Taylor (2010) 48 Cal.4th 574, 608 [108 Cal.Rptr.3d 87, 229 P.3d 12] [the defendant forfeited his claim of inadequate voir dire “because his counsel failed to suggest followup questions ... or otherwise complain about the adequacy of the trial court’s voir dire”]; People v. Rogers (2009) 46 Cal.4th 1136, 1149 [95 Cal.Rptr.3d 652, 209 P.3d 977] (Rogers) [“Defendant neither objected to the questionnaire used, nor proposed any modifications of additional questionnaire inquiries.

He therefore has forfeited any claim that the questionnaire and its contents were inadequate to root out any pro-death-penalty bias on the part of the prospective jurors.”]; People v. Robinson (2005) 37 Cal.4th 592, 620 [36 Cal.Rptr.3d 760, 124 P.3d 363] [“If counsel had believed that further inquiry was necessary . . . , he could have submitted additional questionnaire inquiries or suggested additional oral questions. . . . [D]efense counsel’s failure to do so forfeits the claim on appeal.”].) Defendant’s claim also fails on the merits.

The trial court examined the prospective jurors through the comprehensive questionnaire (see Code Civ. Proc., former § 223 [“the court shall conduct the examination of prospective jurors”]) and afforded defendant unlimited voir dire. As in Rogers, “[t]hese procedures ‘provided an adequate basis upon which the parties were able to exercise challenges for cause as well as peremptory challenges.’ (People v. Robinson, supra, 37 Cal.4th at p. 618 [addressing a similar questionnaire with followup trial court questioning]; see People v.

Carter [(2005)] 36 Cal.4th [1215,] 1251 [32 Cal.Rptr.3d 838, 117 P.3d 544] [voir dire found more than adequate when written juror questionnaires were used, and each side was given very limited time to voir dire but also given the opportunity to request additional court-conducted followup questions].)” (Rogers, supra, 46 Cal.4th at pp. 1150-11-51.) In these circumstances, the trial court had no duty to compel counsel to explore more thoroughly the views of the prospective jurors, or to engage itself in additional questioning. (See People v.

Stewart (2004) 33 Cal.4th 425, 458 [15 Cal.Rptr.3d 656, 93 P.3d 271] [additional areas of inquiry might have assisted defense counsel in exercising challenges, but such inquiry was not constitutionally compelled]; see also Ristaino v.

Ross (1976) 424 U.S. 589, 594-595 [47 L.Ed.2d 258, 96 S.Ct. 1017] [“Voir dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ [Citations.] This is so because the ‘determination of impartiality, in which demeanor plays such an important part, is particularly within the province of that trial judge.’ ”].) Finally, although defendant did not challenge any of the seated jurors for cause and did not exhaust the peremptory challenges available to him, he contends the verdicts must be set aside because six jurors were biased against him. (See Johnson v.

Armontrout (8th Cir. 1992) 961 F.2d 748, 754 [“When a defendant fails to object to the qualifications of a juror, he is without remedy only if he fails to prove actual bias.”].) “Actual bias” is “the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); see People v.

Hillhouse (2002) 27 Cal.4th 469, 488 [117 Cal.Rptr.2d 45, 40 P.3d 754].) Our review of the record reflects that none of the six jurors challenged by defendant exhibited actual bias against him. Although Juror No. l’s questionnaire stated she was unwilling to weigh and consider all aggravating and mitigating factors, further questioning revealed that she was confused by the questionnaire’s inquiry, and that she would weigh and consider such factors.

Although Juror No. 3 favored the death penalty, indicated that his background in law enforcement would make it difficult to be fair and impartial, expressed skepticism concerning psychological evidence, and stated he would “have to be really convinced” of the mitigating factors, he also responded that he would not always vote for the punishment of death, would weigh and consider the aggravating and mitigating factors, could be a fair and impartial juror in the present case, and would listen to both sides.

Contrary to defendant’s assertion, Juror No. 7 did not state he would vote for the punishment of death if defendant “did the crime.” Rather, he answered “yes” in response to the question “if you were convinced . . . that he . . . did the crime and deserves the death penalty, you could vote for the death penalty?” Juror No. 10 stated she “would lean towards the death penalty probably,” but would not always vote for death and would consider aggravating and mitigating factors.

She agreed with defense counsel’s characterization of her position as “very pro death as far as the death penalty.” When the prosecutor inquired whether she “could listen to both sides and be fair and make a proper decision,” she responded, “I think so, as much as anybody can. I’m not sure.

It would be very difficult, but I think that I can.” Juror No. 11 indicated during voir dire that she would not consider “a person’s life story” or psychological evidence, and then stated that she would “have to hear it or see it.” When defense counsel explained that he was referring to “any evidence you hear, [that] we ask you to weigh and consider,” she responded, “Oh, yeah, that’s exactly what I would do.” Finally, Juror No. 12 indicated on his questionnaire that he neither favored nor opposed the death penalty, and was willing to weigh and consider all of the aggravating and mitigating factors.

Defendant quotes Juror No. 12’s statement that “to kill another person should warrant the death penalty . . . ,” but defendant omits the last three words of the statement—“based on circumstances.” Defendant also points to Juror No. 12’s statement, in response to the question whether he had discussed the death penalty with his spouse or friends, that “senseless killing warrants the death penalty,” and the juror’s reference to prisoners who have been sentenced to life imprisonment without the possibility of parole as “being catered to for a crime committed.” None of these six jurors’ statements reflect actual bias against defendant.

B. Guilt Phase Issues 1. Admission of evidence of prior crimes Defendant contends the trial court’s admission of evidence of his prior crimes violated Evidence Code sections 1101 and 352, depriving him of his rights to a fair trial, to present a defense, and to due process of law, and rendered the guilt and penalty phase determinations unreliable, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The People moved in limine to admit the testimony of Johnnie C. and Cindy M. concerning defendant’s prior robberies and assaults.

This evidence was offered to prove identity, a common plan, and intent. (Evid. Code, § 1101, subd. (b).) To establish that the prior crimes were admissible, the People emphasized the number of similarities between each of them, respectively, and the charged offenses that are the subject of the present automatic appeal.

With respect to the attack on Cindy M. and the charged offenses involving Gail Johnson, the People stated that (1) the two incidents occurred within three-quarters of a mile of each other, in a relatively rural town area, Apple Valley, (2) both occurred between noon and 1:30 p.m., (3) both occurred in an office, (4) both female victims were working alone, (5) defendant had visited each site before the crimes occurred, (6) during his earlier visits to both sites, defendant provided a false story with respect to the purpose of his visit, (7) the contents of both victims’ purses were emptied onto the floor, (8) the victims’ purses were placed on the floor, (9) the victims were moved to a back area,

(10) Cindy M. was told to disrobe, and one of Gail Johnson’s shoes was found on top of the desk, (11) both victims resisted and were stabbed, and (12) each attack occurred shortly after defendant was released on parole. The People also observed that, although no knife was seen or used in the attack on Johnnie C. in Boise, Idaho, that attack shared many of the 12 foregoing similarities between the attack on Cindy M. and the present offenses. Defense counsel argued that the two prior attacks were not sufficiently similar to the charged crimes to be relevant.

He challenged the view that the Cindy M. incident and the charged offenses occurred in an area of a rural town, stating that the population of “[t]he metropolitan area of Apple Valley, Victorville, Hesperia and other adjacent and contiguous communities is considerably in excess of 100,000.” With respect to the time of day, the office setting, and the presence of only the female victim, counsel claimed it would be necessary to know the number of similar crimes committed in the area in order to determine the uniqueness of these characteristics.

He also asserted that defendant did not present a false story at the church—his mother was ill, and he was concerned about her. With respect to the presence of a purse and its spilled contents on the floor, counsel stated that “[tjhere is only one quick method to find items contained in a purse.” He also argued that because the prior crimes involved sexual assaults, the evidence was unduly inflammatory, and jurors would be tempted to convict him of the charged crimes if they believed he should have served more time for the prior crimes.

The trial court concluded the crimes exhibited common features that were sufficiently distinctive to support the inference that the same person committed all three crimes pursuant to a common scheme and with the same intent, and that the probative value of the evidence outweighed the risk of undue prejudice.

The court instructed the jury, pursuant to CALJIC No. 2.50, that “[sjuch evidence, if believed, was not received and may not be considered by you to prove that defendant is a person of bad character or that he has a disposition to commit crimes. [][] Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show: [f] A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged or the identity of the person who committed the crime, if any, of which the defendant is accused.” “Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. (Evid.

Code, § 1101.) Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 369 [75 Cal.Rptr.2d 716, 956 P.2d 1169].) “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] ...

In order to be admissible to prove intent, the uncharged conduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (People v.

Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757] (Ewoldt).) “A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [E]vidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are individual manifestations.’ ” (Ibid.) “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. . . . [T]he uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Id. at p. 403.) “ ‘ “The highly unusual and distinctive nature of both the charged and [uncharged] offenses virtually eliminates the possibility that anyone other than the defendant committed the charged offense.” [Citation.]’ ” (People v.

Hovarter (2008) 44 Cal.4th 983, 1003 [81 Cal.Rptr.3d 299, 189 P.3d 300] (Hovarter).) If evidence of prior conduct is sufficiently similar to the charged crimes to be relevant to prove the defendant’s intent, common plan, or identity, the trial court then must consider whether the probative value of the evidence “is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid.

Code, § 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404.) “Rulings made under [Evidence Code sections 1101 and 352] are reviewed for an abuse of discretion. [Citation.]” (People v.

Mungia (2008) 44 Cal.4th 1101, 1130 [81 Cal.Rptr.3d 614, 189 P.3d 880].) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal... is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” [Citation.]” (Hovarter, supra, 44 Cal.4th at p. 1004.) As we explain below, the trial court did not abuse its discretion in concluding that the evidence was relevant to prove defendant’s intent and plan, or in concluding that its probative value with respect to these two issues was not substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice.

In addition, because evidence of prior conduct may be admitted to prove a defendant’s intent and plan, regardless of whether it also is relevant to prove the defendant’s identity as the perpetrator, we need not decide whether the evidence was admissible to prove defendant’s identity. Assuming, without deciding, that the jury should not have been instructed that it could consider the evidence to establish defendant’s identity as the perpetrator, any error in this jury instruction was harmless.

Finally, neither the admission of the evidence, nor the instruction that the evidence was relevant to establish defendant’s identity as the perpetrator, violated defendant’s rights to a fair trial, to present a defense, to due process of law, and to reliable determinations of the issues of guilt and penalty. We begin our analysis by noting the similarity between the prior crimes and the charged offenses.

The evidence established defendant’s pattern of visiting an office in the middle of the day, determining that a woman was alone in the office, returning in the middle of the day, moving the woman to a more remote area of the premises, demanding the woman’s money and any other cash available on the premises, and violently attacking her when she resisted.

If the jury found that defendant was the perpetrator of the charged crimes, the pattern of his prior crimes strongly suggested that at the. time he returned to the church two days after his initial visit in the middle of a weekday, when there was only one vehicle in the church’s parking lot and after learning that the minister was a woman, he entered the church with the same intent as reflected in his prior crimes—to determine that a woman was alone, to move her to a more private area of the premises, and to rob and assault her, pummeling her with his fists and stabbing her with his knife if necessary to subdue her.

These common features manifest the same general plan, and therefore support a finding that defendant acted in accordance with that plan. Defendant asserts that any probative value of the prior-crimes evidence was minimized by differences between the charged crimes and the prior crimes. First, he contends, the prior crimes were “fundamentally dissimilar to the charged crimes in that the former crimes were committed for the purpose of sexual gratification whereas the current crimes had no such hallmarks.” We disagree. The three incidents were quite similar, as far as they all progressed.

Each involved the robbery of a woman alone in an office, and each involved a violent confrontation. The first confrontation ended when Johnnie C. relented in the face of defendant’s violent attack, and the second ended when Cindy M. escaped after defendant assaulted and threatened to kill her. That the violent confrontation in the current case ended in death rather than a sexual assault does not detract significantly from the pattern reflected in the three incidents. For these same reasons, we also reject the related contention that it was “purely coincidental” that the victims were women.

Second, defendant, noting he was identified by the victims of the prior crimes, asserts that he made no effort before or during the prior crimes to conceal his identity from the victims. In contrast, “[i]n the current case, the perpetrator was not personally identified by any witness, and considerable efforts were made after the killing to preclude the possibility of identification.” In connection with the crimes committed against Johnnie C., however, defendant marked over his name in the studio appointment book.

In addition, defendant’s violent assault upon Cindy M. suggests that he would have killed her in order to avoid detection, had she not escaped. His flight from Nester also reflected the measures he would take to avoid apprehension. Finally, to the extent the evidence reflects increasing efforts to avoid apprehension and conviction, such efforts reasonably might be expected from a person who repeatedly has been apprehended for his crimes. Third, defendant asserts that the passage of time between the incidents reduced the probative value of the evidence.

The passage of time is explained, however, by defendant’s incarceration for major portions of the periods between the offenses. (See People v.

Lewis (2009) 46 Cal.4th 1255, 1287 [96 Cal.Rptr.3d 512, 210 P.3d 1119] (Lewis) [noting that the defendant had been incarcerated much of the time between the prior misconduct and the charged crimes].) Our conclusion that defendant’s prior crimes were relevant to prove that defendant had the same intent and plan when he returned to the church does not end our inquiry. “[T]o be admissible such evidence ‘must not contravene other policies limiting admission, such as those contained in Evidence Code

section 352. [Citations.]’ [Citation.] We thus proceed to examine whether the probative value of the evidence of defendant’s uncharged offenses is ‘substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ (Evid. Code, § 352.)” (Ewoldt, supra, 7 Cal.4th at p. 404.) As reflected in our analysis of the similarity of the three crimes, the tendency of the prior offenses to establish defendant’s intent and the general plan of his actions in the church is strong.

If, as established by the evidence, defendant—after learning two days earlier that the minister was a woman— returned to the church in the middle of a weekday when there was only one vehicle in the parking lot, moved the victim from the church office to the minister’s personal office, and robbed and assaulted her, his prior crimes provided persuasive proof that when he returned to the church he did so with the intent to rob and assault any woman he found alone, demanding money from the victim, assaulting her, and killing her when she resisted.

In addition, the evidence is not merely cumulative of other evidence concerning defendant’s intent and the actions he took after entering the church, because the balance of the evidence does not render his intent and actions beyond dispute. (See Ewoldt, supra, 7 Cal.4th at p. 406 [“if it is beyond dispute that the alleged crime occurred,” evidence of uncharged conduct to demonstrate a common design or plan “would be merely cumulative and the prejudicial effect of the evidence of uncharged acts would outweigh its probative value”].) “Evidence is prejudicial within the meaning of Evidence Code

section 352 if it ‘ “uniquely tends to evoke an emotional bias against a party as an individual” ’ [citation] or if it would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause on the basis of extraneous factors” ’ [citation].” (People v.

Cowan (2010) 50 Cal.4th 401, 475 [113 Cal.Rptr.3d 850, 236 P.3d 1074].) With respect to the risk of undue prejudice, defendant observes that evidence of other crimes is “inherently prejudicial.” (See Ewoldt, supra, 7 Cal.4th at p. 404.) “As Wigmore notes, admission of this evidence produces an ‘over-strong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts.’ [Citation.] It breeds a ‘tendency to condemn, not because he is believed guilty of the present charge, but because he has escaped unpunished from other offences . . . .’ [Citation.] Moreover, ‘the jury might be unable to identify with a defendant of offensive character, and hence tend to disbelieve the evidence in his favor.’ [Citation.]” (People v.

Thompson (1980) 27 Cal.3d 303, 317 [165 Cal.Rptr. 289, 611 P.2d 883], fn. omitted.) Due to these inherent risks, “uncharged offenses are admissible only if they have substantial probative value.” (Id. at p. 318, original italics; see Ewoldt, supra, at p. 404.) For the reasons set forth above, the evidence of defendant’s prior crimes has substantial probative value with respect to the issues of intent and a common plan. Therefore, the inherent risks did not preclude the admission of this evidence.

Defendant identifies as an additional risk of undue prejudice the circumstance that he had been sentenced to lengthy prison terms for the prior crimes, but had been released from prison. He asserts that no jury would acquit him in light of his prior record.

Defendant served significant prison terms for the prior offenses, however—almost 10 years in Idaho State Penitentiary, and seven years in California. (See Lewis, supra, 46 Cal.4th at p. 1287 [“Because defendant was convicted of the prior rape and sentenced to prison, ‘the jury would not be tempted to convict [him] simply to punish him for the other offenses . . . .’”].) We perceive minimal if any risk that the jury would conclude he was not the perpetrator of the charged crimes, but would convict him based upon the view that 17 years in prison for his prior crimes was inadequate punishment.

Finally, defendant characterizes his prior crimes as “highly inflammatory and prejudicial.” Although the prior crimes were violent and sexual, they were less inflammatory than the evidence in the present case, in which defendant repeatedly stabbed the victim as she lay on the floor. (See People v.

Demetrulias (2006) 39 Cal.4th 1, 18-19 [45 Cal.Rptr.3d 407, 137 P.3d 229] [in evaluating whether the probative value of an uncharged crime was outweighed by its potential for prejudice, the court noted that the uncharged incident involved a very serious assault, but the charged incident was a homicide].) In addition, as in Demetrulias, the jury was instructed not to consider the evidence to prove that defendant was a person of bad character, thereby “minimizing the potential for improper use.” (Id. at p. 19.) In sum, we conclude the trial court did not abuse its discretion in determining that the evidence reflected similarities between the prior crimes and the charged offenses sufficient for the evidence to be relevant to prove defendant’s intent and common plan in committing the current offenses.

We also uphold the trial court’s exercise of discretion in determining that the probative value of this evidence was not outweighed by the risk of undue prejudice. Defendant contends, however, that the evidence could not be admitted for a purpose other than identity if the identity of the perpetrator was in dispute. We have rejected this argument. “As we recently observed in Alcala [v.

Superior Court (2008)] 43 Cal.4th 1205 [78 Cal.Rptr.3d 272, 185 P.3d 708], a fact finder properly may consider admissible ‘other crimes’ evidence to prove intent, so long as (1) the evidence is sufficient to sustain a finding that the defendant committed both sets of crimes [citation], and further (2) the threshold standard articulated in Ewoldt can be satisfied—that is, ‘the factual similarities among the charges tend to demonstrate that in each instance the perpetrator harbored’ the requisite intent. [Citation.] There is no requirement that it must be conceded, or a court must be able to assume, that the defendant was the perpetrator in both sets of offenses.” (People v.

Soper (2009) 45 Cal.4th 759, 778 [89 Cal.Rptr.3d 188, 200 P.3d 816].) As noted above, the trial court instructed the jury that the evidence of defendant’s prior crimes also could be considered with respect to the issue of the identity of the perpetrator. We need not decide whether the prior crimes were sufficiently similar to the charged offenses to be relevant to the issue of identity, because any error in the court’s instruction was harmless. (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243] [“a ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”].) As noted above, the evidence was admissible, regardless of whether it was relevant to the issue of identity. Thus, the jury would have heard this evidence even if the trial court had not admitted it to establish defendant’s identity as the perpetrator.

In addition, as summarized below, there is overwhelming evidence establishing that defendant was, in fact, the perpetrator of the charged crimes. Finally, the prosecutor, in his arguments to the jury, stated that the evidence of defendant’s prior crimes was insufficient to establish defendant’s identity as the perpetrator. Therefore, it is not reasonably probable that a result more favorable to defendant would have been reached in the absence of the reference in the jury instruction to proof of identity.

Blood found at the crime scene was consistent with defendant’s blood, and the DNA profile would occur in only one in every 24 million Caucasian individuals. Even when the defense expert expanded the interval of DNA lengths considered to be matches and applied the “product rule” to a database that included additional ethnic groups, the frequency of defendant’s DNA was determined to be only one in 3.6 million persons.

Also, the defense expert did not challenge Stockwell’s conclusion that the proteins present in defendant’s blood and in blood found at the crime scene would appear in only one in every 42,600 Caucasians.

Although the defense expert rejected the validity of the product rule, he also testified that in the 100 cases in which he had testified, all of the approximately 12 laboratories involved had employed the product rule rather than his preferred “counting method.” In addition to the blood evidence, numerous other facts established defendant’s identity as the perpetrator: (1) items stolen from the victim were found in the same mine shaft in which defendant disposed of “junk,” (2) a pair of jeans of the same brand and size as those worn by defendant when he was arrested, with the knee area soaked with blood consistent with the victim’s blood, was found in the same mine shaft, (3) the blood on a piece of tissue paper that was found in the mine shaft, and appeared to have been held by a bleeding hand, was consistent with defendant’s blood, (4) the cut on defendant’s hand was consistent with the type of injury a person would sustain if his or her hand slipped while stabbing with a knife, (5) defendant had visited the church only two days prior to the charged offenses, (6) the church was a 15-to 20-minute walk from the Lucky store, where defendant parted company with his stepfather approximately 45 minutes before the crimes were committed, (7) the victim’s vehicle was abandoned at the same Lucky store, and (8) on the day in question, defendant became separated from his stepfather, in contrast to their usual routine of collecting recyclable materials together.

Finally, although defendant denied he was the perpetrator, his testimony tended to establish he was not being truthful. Not only did his testimony conflict with the testimony of Reverend Plate and Nina Pittsford regarding his statements and activities at the church on Saturday, but he repeatedly was impeached with statements he made to interrogating officers following his arrest.

Not only was the evidence of defendant’s identity overwhelming, but the arguments of defense counsel and the prosecutor informed the jurors that they should not rely upon defendant’s prior crimes in determining the identity of the perpetrator of the charged offenses. Defense counsel asserted that the evidence of defendant’s prior crimes was of no probative value with respect to defendant’s identity, and the prosecutor stated to the jury that “just the fact that he commits the crime, these kind of crimes in this particular way, well, that of course doesn’t mean he did this one.

If that’s all the evidence we had, we wouldn’t be here, correct? But that isn’t all the evidence that we have.” The prosecutor then reviewed for the jury the extensive evidence of defendant’s identity as the perpetrator. Defendant asserts that the admission of the evidence in question violated his federal constitutional rights, but he does not specifically address the prejudice, if any, resulting from the jury instruction. First, because the evidence was relevant to prove a fact of consequence, its admission did not violate defendant’s due process rights. (See McKinney v.

Rees (9th Cir. 1993) 993 F.2d 1378, 1384 [“Because the evidence . . . makes a fact of consequence . . . more probable, its admission was not in violation of the historically grounded rule against the use of ‘other acts’ evidence to prove character.”].) Second, any error in the instruction’s reference to the evidence as relevant to prove defendant’s identity as the perpetrator would not constitute a violation of defendant’s due process rights, because the instruction did not “infect[] the entire trial.” (Estelle v.

McGuire (1991) 502 U.S. 62, 72 [116 L.Ed.2d 385, 112 S.Ct. 475] [“The only question for [a federal court] is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ”].) “It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” (Ibid., italics added.) The overwhelming evidence of identity, and the arguments of counsel, which focused the jury upon this overwhelming evidence and advised jurors not to base a finding of identity upon defendant’s prior crimes, lead us to conclude that the instruction did not corrupt the factfinding process.

On this record, the jury instruction’s reference to evidence of defendant’s identity did not affect defendant’s federal constitutional rights to a fair trial, to present a defense, to due process of law, and to reliable determinations of the issues of guilt and penalty. In a related contention, defendant asserts that even if Cindy M.’s testimony was admissible, Nester’s testimony concerning defendant’s flight from that incident was not. The People’s motion in limine represented that the prior crimes would be proved by the testimony of Johnnie C. and Cindy M., and by certified copies of the convictions.

During defendant’s opening statement, however, defense counsel stated that defendant would tell the jury he was not guilty of the attack upon Cindy M. Shortly after Nester began testifying, defense counsel objected, asserting that this testimony was inadmissible under Evidence Code sections 352 and 1101 and was not within the scope of the trial court’s order granting the in limine motion. The prosecutor responded that Nester’s testimony “is necessary to identify the defendant as Cindy [M.’s] attacker.

As counsel said, if the defendant wasn’t her attacker, this witness will prove that he was because he chased him down and nabbed him.” The trial court queried, “What about that?” Defense counsel responded, “His testimony is not relevant until Mrs. [M.] testifies.” The court then asked whether Cindy M. would testify. The prosecutor confirmed she would, and the trial court overruled defendant’s objection to Nester’s testimony. Defendant asserts that the trial court overruled his objection “[without discussing or ruling on the Evidence Code [section] 352 grounds.” The court was not required, however, to discuss

section 352 before ruling. “ ‘[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code

section 352.’ ” (Lewis, supra, 46 Cal.4th 1255, 1285.) The record reflects that the trial court followed proper procedure in ruling upon defendant’s objection. In ruling upon the motion in limine to admit evidence of defendant’s prior crimes, the court considered both Evidence Code sections 1101 and 352. When defendant objected that Nester’s testimony did not come within

section 1101 or within the trial court’s earlier ruling, and raised a further objection under

section 352, the trial court elicited an explanation from the prosecutor concerning the purpose for whic

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