THE PEOPLE, Plaintiff and Respondent, v. GABRIEL CASTANEDA, Defendant and Appellant, 51 Cal. 4th 1292

Opinion CANTIL-SAKAUYE, C. J. A jury convicted Gabriel Castaneda of the first degree murder of Colleen Mary Kennedy (Pen. Code, §§ 187, subd. (a), 189), one count of second degree commercial burglary (Pen. Code, §§ 459, 460), one count of kidnapping (Pen. Code, § 207, subd. (a)), one count of sodomy by use of force (Pen. Code, § 286, subd. (c)(2)), and one count of second degree robbery (Pen. Code, § 211).

The jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, kidnapping, sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (B), (D), (G).) The jury also found true the allegations that defendant personally used a deadly and dangerous weapon in the commission of each of the five crimes (§§ 12022, subd. (b)(1), 12022.3, subd. (a)), and intentionally confined the victim in a manner that exposed her to a substantial likelihood of death during the commission of kidnapping (§ 209, subd. (a)).

Finally, the jury further found that during the commission or attempted commission of sodomy, defendant kidnapped the victim (§ 667.61, subd. (e)(1)), engaged in the tying and binding of the victim (§ 667.61, subd. (e)(5)), personally inflicted great bodily injury upon the victim (§ 667.61, subd. (d)(6)), and committed the offense of burglary of a commercial establishment that was then closed to the public (former § 667.61, subd. (e)(2); Stats. 1997, ch. 817, § 6, pp. 5575-5577).

The trial court found true the allegations that defendant suffered two prior convictions for serious felonies (§§ 667, subd. (a)(1), 1170.12). The court also found that defendant suffered a felony conviction in 1987, and did not remain free of prison custody and did commit additional offenses resulting in felony convictions during the five-year period subsequent to the conclusion of his prior prison term. (§ 667.5, subd. (b).) Following the penalty phase of the trial, the jury returned a verdict of death.

The trial court denied defendant’s application to modify the death penalty verdict to life imprisonment without the possibility of parole (§ 190.4, subd. (e)), and sentenced defendant to death. The court also sentenced defendant to a term of life in prison without the possibility of parole and to 123 years to life in prison with respect to the other charges of which he was convicted. This appeal is automatic. (§ 1239, subd. (b).) We reverse the judgment of conviction for kidnapping, vacate the findings related to kidnapping, and otherwise affirm the judgment. I. FACTS A. Guilt phase evidence 1.

Prosecution case The victim, Colleen Mary Kennedy, was employed by P. Basil Vassantachart, M.D., at his medical clinic in Montclair, San Bernardino County, where she performed clerical tasks and provided some medical services, such as taking X-rays and assisting with physical therapy. On Mondays, she worked alone at the clinic from approximately 9:00 a.m. until the doctor arrived at approximately 11:00 a.m. Her routine on Mondays was to finish her clerical tasks and then to sit in her office and read a newspaper or book until patients arrived at 10:30 or 11:00 a.m.

She kept the clinic door locked while she was alone, but from her office inside the clinic, she could see the front door to the clinic, and she admitted patients when they arrived. In February 1998, following a minor automobile accident, defendant, his brother George Castaneda and George’s wife Gina Ybarba received physical therapy at the clinic. Their first two appointments were on February 26 and March 5, when Dr. Vassantachart, the victim, and a second “nurse” were present at the clinic in the morning.

After one of these appointments, defendant told Ybarba that when the second nurse bent over to tie her shoe, she put her “behind” in his face, and Ybarba responded that the nurse “better not do that to George.” Their third appointment was on Monday, March 9, at 9:30 a.m., when the victim apparently was alone in the office. At some point in mid- or late March, Dr. Vassantachart or the victim informed Ybarba that there was no insurance coverage for their treatment, but the clinic would continue treatment if they would be financially responsible. Ybarba conveyed this information to defendant.

Thereafter, the three received no further treatment at the clinic. On Monday, March 30, 1998, the day of the crimes, Dr. Vassantachart’s office manager, Shirley Vassantachart, spoke to the victim by telephone at 9:28 a.m., and perceived nothing unusual in their interactions. She placed another telephone call to the victim between 10:15 and 10:30 a.m., but the victim did not answer. Patients began arriving at 10:30 a.m., but the victim did not open the clinic door or answer the telephone. Thereafter, Dr. Vassantachart unlocked the clinic.

When he entered the victim’s office, he noticed an open book on the floor, which he characterized as “very unusual.” He proceeded 40 to 50 feet further into the clinic, and found the victim’s dead body lying facedown across a “procedure table.” Photographs of the crime scene, which Dr. Vassantachart confirmed were accurate, show that the victim was naked from the waist down, except where her pants caught on one of her ankles. Her hands were bound behind her back, and her legs were splayed, with one leg hanging down from each side of the table.

Her body was askew, so that her head also hung over one side of the table, and her genital area was near a comer of the table. An examination of the exterior of the building after the crimes were committed revealed no evidence of a forced entry. Dr. Frank Sheridan, the Chief Medical Examiner for the County of San Bernardino, described the victim’s condition. Her hands were tied tightly behind her back with shoelaces, which left deep ligature marks on her wrists. A gag, comprised of a sock and a shoelace, was in her mouth and wrapped tightly around her neck.

She had abrasions on her forehead, on either side of her chin, and on her neck, which might have resulted from a struggle against someone holding her face and attempting to put the gag on her. There were four areas of hemorrhaging inside the scalp, which were caused by blows with a blunt object. Sheridan concluded that the cause of death was blood loss from multiple stab wounds to the victim’s neck. There were 29 wounds inflicted with a Phillips screwdriver on the back and sides of her neck.

The wounds at the back of the neck, over the spine, were more shallow, where the bone would have stopped the weapon; they were deeper on the sides of the neck.

Some of the superficial wounds appeared to have been caused by “jabbing” or “prodding” of the victim, and with respect to these “scraping” or “glancing” wounds, Sheridan agreed it was possible the screwdriver was being used “as an implement to intimidate.” At least 15 of the wounds were “fairly deep,” and Sheridan opined that “it would take a significant amount of pressure to enter the skin . . . with a screwdriver.” Collectively, the wounds caused much hemorrhaging into the tissues of the neck, but two wounds on the left side were the most lethal, because they opened the carotid artery and the jugular vein.

Sheridan stated it was difficult to determine how long the victim remained alive after these two vessels were severed; because blood continued to flow to and from her brain on the right side of her neck, but he stated that “it would take a matter of several minutes,” and that she might have survived as long as 15 minutes. He concluded that all of these wounds were inflicted while the victim was alive, but he could not determine the order in which they were inflicted.

The wounds’ close proximity suggested they occurred within a short period of time, but they might have occurred over a period of 15 minutes, with some “inflicted at an earlier stage and the rest fairly quickly after.” The gag was in place around the victim’s neck when most or all of the wounds were inflicted, as evidenced by holes in the sock. The gag, which became soaked with blood, partially obstructed the victim’s breathing, and thereby contributed to her death. Dr.

Sheridan also testified that it appeared from his external examination that there might be some bruising in the area of the vaginal entrance, but he was not able to confirm through microscopic examination of a sample of the underlying tissue that there was bruising. He noted a small amount of dried feces around the anal area, but observed no apparent trauma to the anal region. In addition, his internal examination of the rectum and anal area revealed nothing that indicated trauma.

He further explained that whether there were visible injuries from a sexual assault would depend upon how much struggling occurred and whether the injuries were inflicted when the victim was dead or near death, at which time muscles would relax and there would be little circulation to enable bruising. No spermatozoa was found on the vaginal, rectal, and oral smears taken from the victim, but tests revealed seminal fluid on two areas of carpet and on a feces-stained sock that was found on the floor beneath the procedure table.

In addition, a palm print was found on the upward-facing sheet of paper that covered the table on which the victim’s body was found. In the course of their investigation, law enforcement officials obtained palm prints and DNA samples from Dr. Vassantachart’s patients, including defendant. A latent print examiner identified 12 points on defendant’s print and on the latent print found on the paper that matched. He testified that he was “certain” that the prints originated from the same source.

A forensic scientist extracted DNA from spermatozoa found on the feces-stained sock and from defendant’s saliva sample, and examined seven genetic markers using a process known as “polymerase chain reaction” (PCR). She determined that the seven genetic markers from the two samples matched, and that the particular DNA profile appears in one in 19 million Caucasians, one in 524 million African-Americans, and one in four million Hispanics.

Another scientist analyzed five genetic markers from the DNA extracted from the sock and from defendant’s DNA, using a process known as restriction fragment length polymorphism (RFLP). His analysis reflected that the genetic markers from the two DNA samples matched, and that the particular DNA profile occurs in fewer than one in six billion individuals in each of three racial categories—Caucasians, Hispanics, and African-Americans. The PCR analysis and the RFLP analysis generated different statistical frequencies because each analysis tested different genetic markers with different variability.

Considering the two results together, the scientist who performed the RFLP analysis concluded that, unless the source of the DNA extracted from the sock was an identical twin or a brother of defendant, the source of the DNA was defendant. At the time of the crimes, defendant was living with his girlfriend, Virginia Castaneda, in Ontario, California. On the day of the crimes, he drove Virginia’s burgundy Nissan Sentra to his first day of work at a Toyo Tires distribution center. Defendant reported to work at approximately 6:00 a.m. that day, and worked until a scheduled morning break at approximately 9:00 a.m.

When Robert Love, a supervisor at Toyo Tires, checked after the break to ensure that everyone was working, he was informed that defendant had left at the break. According to Francisco Tello, who worked with defendant that day, at the morning break at approximately 9:00 a.m., defendant inquired where he could find something to eat, and was informed that he would have to look for food away from the work premises. Tello testified that defendant left no later than five minutes after the break started. Various law enforcement officers drove different routes between the Toyo Tires distribution center and the clinic.

The longest period of time the trip required was approximately 21 minutes. The evidence reflected that during the time period in which the crimes were committed, a vehicle similar to Virginia Castaneda’s vehicle was parked at a Long John Silver’s restaurant located in the same block as the clinic. Linda Salley testified that when she arrived to work at the restaurant between 9:10 and 9:15 a.m., no other vehicles were in the parking lot.

Martha Carter, another employee of the restaurant, testified that when she arrived to work at 9:45 a.m., she noticed a vehicle in the parking lot, which was unusual, because the restaurant did not open until 11:00 a.m. Salley then went to the parking lot to investigate, and observed what she described as a late model burgundy-colored Japanese vehicle. The vehicle was parked on the side of the restaurant farthest from the clinic, where it could not be seen from the clinic. When Carter went to the parking lot between 10:00 and 10:15 a.m., the second vehicle was still there.

Carter could not recall whether the vehicle was in the lot when she went out after 11:00 a.m., by which time police officers had arrived in the area. When shown a photograph of Virginia Castaneda’s vehicle, Salley testified that the vehicle she saw in the lot was “probably” the same vehicle as in the photograph, and Carter testified that it was “similar” to Virginia Castaneda’s vehicle. George Castaneda, defendant’s brother, testified that he had seen defendant use a Phillips screwdriver as a weapon.

Defendant’s parole officer testified that on April 20, 1998, when he searched Virginia Castaneda’s vehicle, he found a Phillips screwdriver in the wheel well in the trunk, underneath a panel. The search was related to a parole violation rather than to the investigation of the charged crimes, and the parole officer did not seize the screwdriver. On May 8, 1998, at which time defendant was in custody for a parole violation, law enforcement officers advised him of his Miranda rights, and defendant stated he was willing to speak to the officers.

He confirmed he had received treatment from the victim, and that the victim was alone in the office during one of these visits. With respect to his activities on the day of the crimes, he stated that he drove a red Nissan to Toyo Tires, arriving at approximately 6:30 a.m., he hurt his thumb unloading tires and did not want to work, so he left at the first break, at approximately 8:30 a.m. He then drove to the residence of his cousin, Gloria Salazar, in El Monte, arriving at 9:00 or 10:00 a.m.

He related that he awakened Salazar, went out to buy some beer and food, and then returned and talked to Salazar until he departed at approximately 3:30 p.m. to pick up Virginia Castaneda from her place of employment. When the interview resumed following a break, an officer told defendant, perhaps falsely, that Salazar said defendant did not arrive at her residence until noon on March 30. Defendant then stated that before he traveled to Salazar’s residence, he saw his half brother, Louie Arroyo, standing on a street comer, in need of heroin.

Defendant claimed he and Arroyo traveled somewhere to obtain heroin, and then both went to Salazar’s residence. On May 15, 1998, at defendant’s request, law enforcement officers spoke with him again. At this interview, defendant stated that he left Toyo Tires at approximately 9:00 a.m., traveled to Pomona to the residence of Elizabeth Ibarra, a former girlfriend, and then traveled to Salazar’s residence. Defendant stated that he did not previously mention his visit with Ibarra because he was engaged to be married to someone else.

According to defendant, he arrived at Ibarra’s residence at approximately 9:30 a.m., the two of them went somewhere “to meet a connection,” and he remained with Ibarra until approximately 11:00 a.m., at which time he drove to Salazar’s residence. Contrary to his earlier account, he stated that he did not see Louie Arroyo on March 30. Ibarra testified that after defendant was arrested, he told her he needed her to tell the investigators he was with her at the time of the crimes. After she reconstmcted her activities of March 30, she informed defendant he was not with her that day.

She recalled that he insisted he was with her, and repeatedly asked her to tell the police officers that he was with her. She described him as “very upset,” and she interpreted his manner as threatening. Telephone records reflected that between defendant’s interview on May 8 and his interview on May 15, he placed 11 telephone calls to Ibarra. Ibarra also testified that defendant visited her in early March and several times in April 1998, to obtain heroin and to talk. She recalled that she purchased heroin for them when defendant visited.

When asked if defendant had money, she responded, “Not very often, no.” According to Ibarra, when defendant visited her, they would discuss his relationship with Virginia. In particular, he spoke “very much” about anal intercourse with Virginia—that it hurt Virginia and she complained, but he wanted to continue engaging in anal sex. The victim’s husband, Steven Kennedy, testified that when his wife worked, she wore a round gold ladies’ watch with a dark brown or black band, and sometimes wore a ring.

After his wife’s death, he was unable to find the watch or a particular gold ring with a green or red stone—he did not know which color because he is colorblind. The victim also carried to work a purse in which she kept her wallet with credit cards and cash, and a satchel containing work-related items. He searched their residence, but did not find her purse or its contents, or the satchel. He cancelled all of the missing credit cards during the first week of April. Mary Boyle, the victim’s mother, also recalled that the victim always wore at least one ring.

After her daughter’s death, Boyle discovered that a ring she had bought for the victim, which had an emerald flanked by two diamond chips, was missing, and that one of the victim’s watches was missing. According to Shirley Vassantachart, the office manager, the victim always wore one or two rings and a watch with a black leather band. She also recalled that the victim kept her purse in the office area where she read her book.

She explained that the satchel to which the victim’s husband referred was used by the victim to carry patient records, bills, petty cash for making change, and payments collected from patients between Dr. Vassantachart’s Montclair office and his Covina office, where the victim worked on other days of the week. She testified that although the victim would have delivered the collections to the office manager the previous Friday, the victim would have had petty cash of $30 to $40 in the satchel on Monday when the crimes were committed.

The investigating officers did not find the satchel, the victim’s purse, or their contents at the crime scene. In late March or early April 1998, while visiting Gloria Salazar, defendant removed a watch and a ring from his pocket, told Salazar that “this bitch got me mad,” and stated that he was going to throw the items off the freeway. Salazar suggested he give the items to her, which he did. Salazar was unsure of the date, but stated that it could have been March 30. She testified that the ring was gold and had a colored stone.

She could not recall the color of the stone at trial, but according to the detective who interviewed her, Salazar told him the ring had a green stone. Salazar testified that she took the ring to a pawn shop and gave the watch to a friend whom she called her “grandfather.” She did not inform law enforcement officers of these facts until August 1999, by which time the ring was gone from the pawn shop; however, the grandfather still had the watch, which he gave to the police.

The victim’s husband testified that the watch shown to him at trial “looks like the watch she would wear, but it’s kind of beat up,” and he was not certain it was her watch. He stated that the finish was rubbed off, but the gold areas that remained were the same color as his wife’s watch. The victim’s mother, Mary Boyle, similarly testified that she did not know whether the watch shown at trial was her daughter’s watch, that she thought her daughter’s watch was a brighter gold, and that her daughter’s watch had a black leather band.

Finally, Shirley Vassantachart testified that the watch at trial looked like the victim’s watch, but noted that it lacked a band and that the gold around its face was faded or worn off. 2. Defense case Defendant presented evidence that he could not have been at the scene of the crimes when they occurred. First, two police officers testified that when Francisco Tello and Robert Love were interviewed in early May 1998, each said that the first work break at Toyo Tires on March 30 was at approximately 9:30 a.m., a half hour later than the time to which they testified at trial.

Second, defendant’s sister-in-law, Gina Ybarba, and defendant’s son, Gabriel, Jr., who was 16 years of age at the time of the crimes, testified that they saw defendant at his residence midmoming on March 30. Ybarba, who lived next door to defendant, recalled that she heard a vehicle in the driveway at 10:00 a.m. on March 30, looked out the window, and saw defendant and a dark-haired woman whom she identified as Elizabeth Ibarra. After the vehicle left, she went to the back door of defendant’s apartment, and asked Gabriel, Jr., if that was his father who had driven into the driveway. He confirmed it was.

Gabriel, Jr., testified that he visited defendant on weekends, and sometimes stayed until Monday or Tuesday. He recalled a Monday when Ybarba came to defendant’s apartment to talk to him. On that particular Monday, defendant came into the apartment, remained for 10 to 15 minutes, and then departed at 10:50 or 11:00 a.m. Gabriel, Jr., testified that he thought these events happened on a Monday, because he had returned to his mother’s residence the following day at 11:00 a.m.

When asked why he specifically remembered this particular visit, he testified that on that Monday, his father’s girlfriend, Virginia Castaneda, had repeatedly called the apartment when defendant failed to pick her up after work, defendant had returned late that evening, and defendant and Virginia had argued. Defendant also presented evidence that law enforcement officers may have obtained from defendant’s residence a sock with defendant’s semen on it.

Virginia Castaneda testified that defendant’s parole officer and other officers came to their residence on April 20, 1998, and conducted a parole search, after defendant failed to report to his parole officer. She recalled that when the officers arrived, she and defendant were having sex, and that defendant ejaculated and wiped himself off with boxers or socks. She testified that the officers took dirty boxers, socks, and T-shirts from the bedroom. She further testified that when the residence was searched again by law enforcement officers on May 8, the officers seized almost all of the family’s clothing. 3.

Rebuttal Several law enforcement officers testified concerning their parole search of defendant’s residence on April 20, 1998. Defendant’s parole officer recalled that when he first saw Virginia Castaneda, she was in bed with an intravenous (IV) drip attached to her arm, and “[s]he looked very ill.” He asked her the reason for the IV, and she said that she was having problems with her pregnancy. At the time of the search, the parole officer was unaware of the charged crimes, and he did not learn of the homicide investigation of defendant until three to four weeks after the parole search.

The only clothing seized during the search was a beanie and a shirt the parole officer found hidden on top of a cabinet in the kitchen. He confirmed he found a screwdriver in the trunk of Virginia’s burgundy Nissan Sentra, but he did not seize the screwdriver. A second parole officer, who was also unaware of the homicide investigation at the time of the parole search, confirmed the testimony of defendant’s parole officer, except he did not recall seeing or hearing about a screwdriver.

A police officer who accompanied the parole officers recalled that Virginia was attached to an IV drip, and described her as “obviously ill.” A detective from the Montclair Police Department, the lead agency in the investigation of the charged crimes, testified that no one from that department was involved in the parole search of defendant on April 20, 1998.

He estimated that he learned of the parole search “sometime after May 6.” Elizabeth Ibarra testified that she initially thought it was possible defendant had been with her on March 30, but changed her mind after she reviewed her telephone records and spoke to her relatives. She-also testified that, unlike the dark-haired woman whom Ybarba and Gabriel, Jr., claimed to have seen with defendant on March 30, she had had blond hair for 12 years, until approximately two weeks before testifying at trial. She testified she had never been to defendant’s residence in Ontario. B. Penalty phase evidence 1.

Defense case At defendant’s request, the defense presented its penalty phase witnesses first. Richard Hall, Ph.D., a clinical psychologist, reviewed defendant’s records from the California Department of Corrections (CDC; now the Department of Corrections and Rehabilitation), and performed psychological evaluations on defendant. According to the Wechsler Adult Intelligence Scale-Revised, defendant has an IQ of 84, which is in the low average range of intellectual functioning.

According to the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), defendant was depressed, and he was “a very male oriented person.” Hall found no indication of any mental defect; in particular, he found no evidence of psychosis or schizophrenia. Dr. Hall characterized defendant’s difficulty in adjusting to society as a personality disorder caused by his environment.

According to Hall, records from the CDC reflected that during defendant’s incarceration in a maximum security prison, he was found guilty of rules violations, “for either being out of bounds or fighting,” and was disciplined by being isolated from the general prison population in a higher security housing unit. Hall explained that there are four security levels in California prisons, and that levels 3 and 4 are maximum security levels, where prisoners’ movements are highly regulated and controlled.

He stated that a defendant sentenced to life imprisonment without the possibility of parole will never be placed outside of a maximum security setting. Television, radio, and an hour in the yard are available to a prisoner in levels 3 and 4, unless the prisoner fails to follow prison rules. Hall testified that, according to studies, prisoners confined in levels 3 and 4 tend to adapt to the rigid structure and become good workers, and may have difficulty surviving outside of a highly structured prison environment.

Hall opined that defendant could function in a prison setting “without much difficulty,” and testified that nothing in his evaluation of defendant led him to believe that defendant could not survive in prison the rest of his life. Frank Gawin, M.D., a psychiatrist whose specialty focused on the effects of medication and drugs on the brain, obtained information from defendant about his history of drug use. From 12 to 14 years of age, defendant abused inhalants, and at age 14, he began using marijuana and ethanol. According to Dr.

Gawin, drug use at such an early age indicated that defendant was in an environment in which drugs were available and permitted. He also testified that drug use at 12 years of age limits a child’s capacity for maturation, by interfering with the ability to perceive social and moral signals correctly and to remember the consequences of one’s actions. Defendant’s drug use was mild from age 20 to age 24, when he was working at two jobs and maintaining a relationship. Dr.

Gawin characterized defendant’s life from age 20 to 24 as “relatively stable,” but acknowledged that during this period, defendant was sentenced to the California Youth Authority (now Division of Juvenile Justice) twice, for burglary and assault with a deadly weapon, escaped from the Youth Authority, was arrested for drugs and possession of a sawed-off rifle, and fathered children with three different women. At 24 or 25 years of age, defendant began using heroin and cocaine.

His cocaine use ended at age 34, as a result of experiencing a panic attack while on the drug, but he became dependent on heroin, and used it in moderate amounts in the morning and periodically during the day, to stave off symptoms of withdrawal and his increasing depression. In sum, Dr. Gawin testified, defendant suffers from the mental illnesses of drug dependence, a major depressive disorder, and an anxiety disorder.

Armando Morales, Ph.D., a professor of psychiatry and biobehavioral sciences, who specialized in the study of Hispanic gang culture, received information about defendant’s family and his prison record, and interviewed defendant. Defendant’s maternal grandparents were farmworkers who emigrated to the United States from Mexico in 1920. Defendant’s grandmother suffered from depression and his grandfather was a heavy drinker, but Dr. Morales was not able to establish whether the grandfather was an alcoholic. Defendant’s mother also reported that she herself was a moderate to heavy drinker from 17 to 22 years of age.

Although Dr. Morales learned there was “heavy use of alcoholic beverages” among the mother’s sibling group, he could not confirm whether any of the siblings were alcoholics. Dr. Morales testified that defendant’s mother was raped when she was 12 years of age, and thereafter had three “marital relationships.” The first relationship began when she was 14 years of age and the man was 19. She gave birth to a daughter during this relationship.

At age 16, she became involved with a boy, 15 years of age, who was a “heavy drinker.” During this second relationship which lasted from 1958 to 1966, she gave birth to five sons and a daughter, including defendant, who was bom in 1960. Each of the five boys had juvenile and adult criminal histories, was dependent on drags, and served time in prison. At 26 years of age, she entered a relationship with a man who had a history of drug problems and incarceration, and they had two sons, both of whom developed drug problems and served time in prison. Dr.

Morales reported that defendant’s mother left defendant and his siblings with her parents during the day while she worked, but her parents had little control over the children, and defendant and some of his brothers became involved in “turf-oriented” Hispanic gangs. Morales identified numerous factors related to gang membership, including poverty, parenting problems, family members who are in gangs, violence in the family or the neighborhood, poor education and employment history, and a person’s age.

He described gangs as surrogate families for their members, and stated that defendant was initiated into a gang at 12 to 15 years of age. At 20 or 21 years of age, defendant married Elvira Moreno, whose parents and siblings were better educated than defendant’s family. During the period defendant lived with Elvira’s family, he obtained employment and dissociated himself from his peers, but eventually he was drawn back to his brothers, became involved in drugs again, and was rejected by his wife. Dr.

Morales found that defendant fit within three psychiatric diagnostic categories: substance abuse dependence, mood disorder (depression), and dependent personality. Symptoms of his depression included anger and irritability, and a lack of energy, drive, or direction when he was on his own rather than in an institution. Morales stated that depression may have biological and environmental components. With respect to defendant’s dependent personality, Morales stated that after 10, 11, or 12 years of age, defendant became a follower, dependent on peers.

Various relatives and friends of defendant testified on his behalf. Lucia Gonzalez gave birth to defendant’s son, Gabriel Castaneda, Jr., in December 1981, but her relationship with defendant ended soon thereafter. Their son visited defendant on three or four weekends in 1998, until defendant was arrested for a parole violation in April 1998. Approximately one week after that arrest, defendant asked their son to claim that a firearm found in defendant’s residence belonged to the son.

Gabriel, Jr., confirmed that defendant exerted “a little bit” of pressure on him to claim ownership of a firearm, but defendant respected his decision not to claim ownership. He asked the jury to consider a punishment other than death, because he would like to become better acquainted with defendant. At about the time defendant’s relationship with Gonzalez ended, he began a relationship with Elvira Moreno, who became pregnant. They married in 1982, and lived together with her parents for almost a year, but she ended their relationship when she found a syringe in his pocket.

She testified that defendant treated her with respect, but struck her once, causing bruising around her eye. Defendant was incarcerated during most of their son’s childhood, but he wrote letters and drew pictures for their son, and advised him to stay in school, take care of his mother, and stay away from gangs. Defendant’s father-in-law testified that defendant complied with his rules while residing in the Morenos’ home in 1982, but changed and “went the other way” when he associated with his brothers and other relatives.

Henry and Louie Arroyó, the sons of defendant’s mother and stepfather, testified that each of their mother’s eight sons belonged to a gang, each had served time in prison, and most had used heroin. According to Henry, his father, who “practically raised” defendant, also used heroin. Both Henry and Louie testified that they never saw defendant strike a woman. Defendant’s sister, Dianna Castaneda, testified that defendant was protective towards her, and she never saw him abuse a woman. When defendant was released from prison in 1997, she took him into her residence, and he became very active in her church.

After a couple of months, however, defendant stopped following rules Dianna established for living in her home and he began a relationship with Virginia Castaneda, the wife of his brother Juan. Dianna expressed disapproval, and defendant moved out of her residence and stopped attending church services. Dianna’s friend Yvonne Tovar testified that she had known defendant for approximately 19 years. She described him as “nice to everyone, very cordial, very respectful,” and she could not recall him ever striking a woman. 2.

Prosecution case George Castaneda, defendant’s brother, testified that he and his brothers were “bom and raised” in their neighborhood gang and had used heroin, but after being released from prison a second time, George stayed away from his family and completed his parole without any violations. He stated that their stepfather encouraged the brothers to obtain drags and alcohol for the stepfather, and that the brothers drank and smoked marijuana with their stepfather. George had never seen defendant strike a female. Testimony was presented concerning an armed robbery by defendant in August 1991.

Daniel Hills testified that as he was unlocking the door to his truck, an arm grabbed him around the neck and “practically picked me up off the ground.” His assailant told him not to turn around or the assailant would shoot him. One or two other people searched his pockets and took all of his belongings. His assailants then threw him on the ground, tied his hands behind his back with his belt, removed his shoe and sock, shoved the sock in his mouth, kicked him in the side, and drove away in his track.

The day after the track was stolen, California Highway Patrol officers found defendant at the scene of a collision, slumped in the passenger seat of the track. Defendant was convicted of the.offenses. Deputy Joe Braaten of the San Bernardino County Sheriff’s Department, testified that in June 1999, he received an anonymous note that an inmate named “Gato” had a syringe in a lotion bottle in his cell. He identified defendant as “Gato,” and searched the cell defendant shared with another inmate.

He found nothing in the lotion bottle, but he found a syringe stored inside a deodorant container labeled “Gato,” a needle stored inside a soap container, a homemade handcuff key inside a baby powder jar, and a weapon manufactured from a hard plastic spoon in plain view. On cross-examination, Braaten agreed that prisoners sometimes attempt to cause trouble for other prisoners. He confirmed he found it odd that the weapon was left in plain view, and said he did not know which of the cell’s occupants owned the items found in the cell.

He also testified that when an inmate is away from a cell during a recreation period, the cell door remains open for approximately five minutes, and it would be possible for another inmate to go into the cell for a brief time. Elizabeth Ibarra testified that she met defendant when he was in jail, and they began living together when he was released. Less than six months later, they stole a stereo in order to obtain drugs, and were arrested following a high-speed chase. After they were released from prison, they lived together again. She testified that when “[defendant] uses drugs, he gets angry. . . .

And when he gets mad, he hits.” When she refused to have sex with him, “[h]e’d get mad and I would have to do it anyway.” She stated that he would tie her to his arm to prevent her from leaving at night. She recalled an instance when defendant beat her, and defendant’s sister contacted Ibarra’s mother and brother to come to retrieve Ibarra. Ibarra’s mother recalled seeing braises on Ibarra’s neck and wrists, and testified that Ibarra told her defendant had tried to choke her. Psychologist Sandra Baca testified that it is common for victims of abuse to minimize or deny abuse, and to return to the abuser.

She reviewed the data Dr. Hall generated in applying the MMPI-2 test to defendant, and determined that Hall had made an error in his calculations, resulting in his conclusion that defendant was depressed. She testified that, correctly calculated, the MMPI-2 results reflected that defendant “meets the criteria for an antisocial personality disorder and with some depressive features and with some alcohol and substance abuse.” Dr. Baca stated that people with antisocial personality disorder do not develop feelings for other people, and they use others to further their own goals.

Such individuals may be outwardly gracious, in contrast to the persona they exhibit “behind closed doors,” and many are “master manipulators.” Unlike depression, “personality disorders ... are not amenable to treatment at all.” According to Dr. Baca, these individuals know what they are doing, but they do not think about being apprehended, and only after they are apprehended do they devise an explanation for their actions. Finally, she testified that defendant could have led his life differently, but “he has chosen to exercise the wrong choices.” II. DISCUSSION A.

Pretrial Issue Defendant’s absence from two hearings Defendant contends his absence from two conferences violated his right to be present during the trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution,

article I, sections 7 and 15 of the California Constitution, and Penal Code sections 977, subdivision (b), and 1043, subdivision (a).

The first conference between the court and counsel occurred during jury selection, as proceedings were about to resume, and the trial judge asked to “see counsel in the hallway for a moment.” Out of the presence of defendant and the prospective jurors, the court stated that it “needed to put on the record and inform you both” that a prospective juror had told the court’s jury coordinator that the prospective juror “had been informed by someone, they couldn’t tell who, that they were all going to be videotaped.” According to the court, the jury coordinator had “checked and found no one with a video camera outside the jury assembly room.

And [the bailiff] said he didn’t see anyone out in the hallway. I don’t know where it came from or who it was by or if you know anything about it at all.” The prosecutor and the defense counsel responded that they would object if someone brought a camera into court.

The court reiterated its purpose of ensuring counsel was aware of the report, and added that the jury coordinator did not have the juror’s name. “So we are in a situation where we have very little information other than that general information.” Defense counsel stated, “I am just going to ignore it at this point.” The prosecutor added that he would do the same. Finally, the court stated that if it learned anything more, it would bring the information to counsel’s attention.

The second conference occurred again during jury selection after defense counsel undertook to explain to prospective jurors differences between the guilt and penalty phases of trial. With respect to the penalty phase, defense counsel stated that “[y]ou can consider what type of upbringing he had. You can consider the area he lived in. You can consider his education.” The prosecutor asked to approach the bench, and the court directed that counsel meet with the court in the hallway. At the conference, the prosecutor objected that defense counsel’s comments were incorrect statements of the law.

The court directed defense counsel not to preinstruct the prospective jurors, but the prosecutor clarified that he was not objecting to preinstruction, only to reference to “neighborhood and so forth.” Defense counsel then asserted that “if I start talking about aggravating versus mitigating, [the prospective jurors] don’t know what the heck I’m talking about.” The court responded that it had already introduced the concepts of aggravating and mitigating circumstances to the prospective jurors, and defense counsel agreed to rephrase his comments.

When voir dire resumed, defense counsel noted that the court had alluded to “the aggravating factors and the mitigating factors,” and asked whether anyone on the panel “would feel that once the guilt phase is over and if you convict [defendant], that no matter what, at that point you won’t listen to the mitigating factors that might be presented by me in this case?” Although a criminal defendant generally has a right to be personally present at trial, there are various limitations upon this right.

First, “ ‘[u]nder the Sixth Amendment’s confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.” ’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1231 [17 Cal.Rptr.3d 532, 95 P.3d 811] (Cole); see also Kentucky v.

Stincer (1987) 482 U.S. 730, 739 [96 L.Ed.2d 631, 107 S.Ct. 2658] [“the Confrontation Clause’s functional purpose [is to] ensur[e] a defendant an opportunity for cross-examination”].) Defendant provides no explanation concerning how these conferences during jury voir dire proceedings had any relation to his opportunity for effective cross-examination, nor do we perceive any relation. (See People v.

Gray (2005) 37 Cal.4th 168, 198 [33 Cal.Rptr.3d 451, 118 P3d 496] (Gray) [litigants must support each legal point with argument].) Second, “ ‘under the Fourteenth Amendment’s due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a “stage . . . that is critical to [the] outcome” and “his presence would contribute to the fairness of the procedure.” ’ [Citations.]” (Cole, supra, 33 Cal.4th at p. 1231; see also Kentucky v.

Stincer, supra, 482 U.S. at p. 745 [same].) Defendant contends his presence at the first conference concerning the videotaping rumor would have contributed to the fairness of the trial. He bases his contention upon a subsequent event during jury selection: later the same morning, the prospective juror who had spoken to the jury coordinator about videotaping stated, in the presence of other prospective jurors, that the courthouse allowed videotaping and that he was concerned about gang retaliation in the event the jury returned a guilty verdict.

Defendant asserts that, had he been present at the conference, he would have had the opportunity to object to the decision not to pursue the matter. Then, according to defendant, the prospective juror could have been questioned outside the presence of other prospective jurors, and the jury pool would not subsequently have been exposed to comments concerning gangs. His theory is speculation, and therefore is inadequate to establish that the conference was “critical” or that his presence would have “contributed to the fairness” of the procedure. (People v.

Harris (2008) 43 Cal.4th 1269, 1307 [78 Cal.Rptr.3d 295, 185 R3d 727]; see People v. Waidla (2000) 22 Cal.4th 690, 742 [94 Cal.Rptr.2d 396, 996 P.2d 46] (Waidla).) With respect to the second conference, concerning the propriety of defense counsel’s description of mitigating factors, defendant asserts he “could have assisted counsel by providing information about himself that could have been used to explain the concepts of aggravation and mitigation in a way that would have avoided the prosecutor’s objection.” Defendant’s claim lacks merit.

The conference concerned a legal issue—whether defense counsel was misstating the factors that may constitute mitigating circumstances. Therefore, defendant did not have a right to be present. (People v. Perry (2006) 38 Cal.4th 302, 312 [42 Cal.Rptr.3d 30, 132 P.3d 235].) For the same reasons we have rejected defendant’s contentions under the Sixth and Fourteenth Amendments to the federal Constitution, we also reject his assertions of error under state law. “ ‘The state constitutional right to be present at trial is generally coextensive with the federal due process right. [Citations.]’ [Citation.]” (People v.

Butler (2009) 46 Cal.4th 847, 861 [95 Cal.Rptr.3d 376, 209 P.3d 596].) “Under

article I,

section 15 of the California Constitution, ‘a criminal defendant does not have a right to be personally present “either in chambers or at bench discussions that occur outside of the jury’s presence on questions of law or other matters as to which [his] presence does not bear a ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” ’ ” [Citations.]’ [Citations.]” (Cole, supra, 33 Cal.4th at p. 1231.) Defendant provides no additional argument concerning the asserted violation of his rights under the California Constitution, and we perceive no manner in which his presence at either of the two conferences bore a reasonably substantial relationship to his opportunity to defend against the charges.

For the same reason, defendant had no right under sections 977 and 1043 to be personally present at these bench discussions, nor was a written waiver required. (Cole, at p. 1231.) B. Guilt Phase Issues 1. Instruction concerning asportation Defendant contends the trial court provided an erroneous instruction concerning the element of asportation for the offense of kidnapping, and thereby violated his rights to due process and a fair trial under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and

article I, sections 7 and 15 of the California Constitution. The trial court instructed the jury, pursuant to CALJIC No. 9.50, concerning the crime of kidnapping. (§ 207, subd. (a).) The instruction observed that kidnapping requires movement of the victim “for a distance that is substantial in character.” It further explained, in language taken from our opinion in People v.

Martinez (1999) 20 Cal.4th 225, 237 [83 Cal.Rptr.2d 533, 973 P.2d 512] (Martinez) that, “[i]n determining whether a distance . . . is substantial in character, you should consider the totality of the circumstances attending the movement, including, but not limited to, the actual distance moved or whether the movement increased the risk of harm above that which existed prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit the additional crimes.” (Italics added.) The events at issue here occurred before Martinez, supra, 20 Cal.4th 225, was decided, when “the asportation standard [was] exclusively dependent on the distance involved.” (Id. atp. 233; see People v.

Caudillo (1978) 21 Cal.3d 562, 574 [146 Cal.Rptr. 859, 580 P.2d 274], overruled in Martinez, supra, 20 Cal.4th at p. 229.) In Martinez, we held that the jury should consider instead “ ‘the totality of the circumstances’ ” in deciding whether the distance a victim was moved was “ ‘substantial in character.’ ” (20 Cal.4th at p. 237.) We further concluded that the new standard could not be applied retroactively, because it effected an unforeseeable enlargement of the factual basis for determining what constitutes a “substantial distance” under the kidnapping statute, and the defendant did not have fair warning of the enlargement.

For the same reasons, and as the Attorney General concedes, the standards set forth in Martinez cannot be applied to defendant’s actions. We also conclude, as the Attorney General concedes, that “it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.” (People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) The prosecutor presented evidence that it would be more difficult to hear noises made in the procedure room than in the victim’s office, stated to the jury that the movement was “[n]ot a great distance in terms of actual feet,” and urged the jury to focus upon whether the movement increased the likelihood of the attack and decreased the risk of detection. Thus, the evidence and argument focused upon the totality of the circumstances rather than the distance.

Therefore, the conviction for kidnapping must be reversed and the findings based upon kidnapping must be vacated. 2. Instruction concerning implied malice Defendant contends that the trial court’s instruction defining “implied malice” deprived him of his rights to due process, to trial by jury, and to be free from the imposition of cruel and unusual punishment under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and

article I, sections 7, 15, 16 and 17 of the California Constitution.

The trial court instructed the jury that “[e]very person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of burglary, kidnapping, rape, sodomy by use of force or robbery, all of which are felonies inherently dangerous to human life, is guilty of the crime of murder . . . .” (CALJIC No. 8.10.) The court further instructed that “ ‘[m]alice’ may be either express or implied. [|] Malice is express when there is manifested an intention unlawfully to Mil a human being, [f] Malice is implied when: [][] The Mlling resulted from an intentional act, [][] The natural consequences of the act are dangerous to human life, and [1] The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. . . .” (CALJIC No. 8.11.) Next, the court instructed the jury that “[a]ll murder which is perpetrated by any Mnd of willful, deliberate and premeditated Mlling with express malice aforethought is murder of the first degree,” and it explained the terms “willful,” “deliberate,” and “premeditated.” (CALJIC No. 8.20, italics added.) The court then instructed the jury concerning first degree felony murder, explaining that a Mlling may be intentional, unintentional, or accidental, but it will be murder of the first degree if it is committed in the course of specified felonies. (CALJIC No. 8.21.) Defendant asserts that the trial court’s instructions erroneously authorized the jury to find him guilty of first degree murder based upon a finding of implied malice. “ ‘In reviewing [a] purportedly erroneous instruction[], “we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” [Citation.] In conducting this inquiry, we are mindful that “ ‘a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’ ” [Citations.]’ [Citation.] ‘Additionally, we must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.’ [Citation.]” (People v.

Richardson (2008) 43 Cal.4th 959, 1028 [77 Cal.Rptr.3d 163,. 183 P.3d 1146] (Richardson).) The instructions in the present case correctly, but unnecessarily, explained “implied malice.” The instructions did not, however, inform the jury that it could find first degree murder based upon implied malice. Nor is there a reasonable likelihood that the jury would have understood the instructions to authorize such a finding.

The two instructions that addressed the bases of first degree murder—CALJIC Nos. 8.20 and 8.21—correctly explained the two scenarios in which first degree murder could be found, and CALJIC No. 8.20 required express malice in the context of willful, deliberate, and premeditated murder. We reject defendant’s view that the jury would have understood CALJIC No. 8.20, which referred to murder with express malice aforethought, as encompassing only a subset of intentional murders, and would have assumed that a finding of implied malice also would support a conviction of first degree murder.

In any event, because the jury found that the killing was committed in the course of burglary, robbery and sodomy, it necessarily found that the killing was first degree felony murder, regardless of its understanding of the malice requirement in connection with willful, deliberate, and premeditated murder.

Finally, we find no merit in defendant’s assertion that the jury might have “used implied malice as the standard for finding the commission of a felony in connection with the murder.” CALJIC No. 8.10 explained that, to find defendant guilty of murder, it must be proved “[t]he killing was done with malice aforethought or occurred during the commission or attempted commission of’ various specified felonies. (Italics added.) CALJIC No. 8.21 explained in connection with the charge of felony murder that “[t]he specific intent to commit burglary, or kidnapping, or rape, or sodomy by use of force, or robbery . . . must be proved beyond a reasonable doubt.” Thus, the jury could not logically have concluded that if defendant merely acted with conscious disregard for human life (CALJIC No. 8.11), and did not intend to commit the specified felonies, he could be found guilty of first degree felony murder. 3.

Sufficiency of the evidence of kidnapping, sodomy, robbery, burglary, and of an independent felonious purpose Defendant contends the evidence was insufficient to support convictions for kidnapping, burglary, robbery, or sodomy, or to establish an independent felonious purpose in connection with the commission of these felonies.

Therefore, he asserts, the convictions for these four felonies, any conviction for felony murder premised upon these four felonies, and the special circumstance findings that the murder was committed in the course of the commission of these four felonies, violate his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. “ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ (People v.

Lindberg (2008) 45 Cal.4th 1, 27 [82 Cal.Rptr.3d 323, 190 P3d 664].) ‘[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 99 S.Ct. 2781]; see People v. Staten (2000) 24 Cal.4th 434, 460 [101 Cal.Rptr.2d 213, 11 P.3d 968] [‘An identical standard applies under the California Constitution.’]; People v.

Cain (1995) 10 Cal.4th 1, 39 [40 Cal.Rptr.2d 481, 892 P.2d 1224] [the same standard applies to the sufficiency of the evidence to sustain a special circumstance finding].)” (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290 [96 Cal.Rptr.3d 512, 210 P.3d 1119], fn. omitted (Lewis).) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable

interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054 [99 Cal.Rptr.2d 1, 5 P.3d 68].) a. Kidnapping As explained above in our discussion of the element of asportation, the conviction for kidnapping must be reversed, based upon error in the relevant jury instruction. Therefore, we need not address whether substantial evidence supports the conviction. b.

Sodomy “Sodomy is sexual conduct consisting of contact between the penis of one person and the anus of another person. Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (§ 286, subd. (a).) Defendant makes two contentions: there is no evidence of penetration, and no evidence the victim was alive when any penetration occurred. (See People v.

Farnam (2002) 28 Cal.4th 107, 143 [121 Cal.Rptr.2d 106, 47 P.3d 988] [the victim must be alive at the time of penetration].) The evidence establishes that the victim was gagged, bound, naked from the waist down, and positioned in a manner that exposed her anal area, there were dried feces around her anal area, and the sock on which defendant’s seminal fluid was found was stained with feces. From these facts, a rational trier of fact could conclude that defendant’s penis penetrated the victim’s anus.

Defendant asserts, however, that there are other rational explanations for the circumstantial evidence, such as rape or masturbation by defendant together with defecation by the victim.

In support of this contention, he cites CALJIC No. 2.01, which instructed the jury that “a finding of guilt . . . may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.” The jury was instructed with CALJIC No. 2.01, and resolved the issue of penetration against defendant. Defendant’s second contention, that there is no evidence the victim was alive at the time of penetration, also fails.

The evidence establishes (1) she was already gagged and bound when most or all of the wounds were inflicted, (2) she was alive when the 29 wounds to her neck were inflicted, and (3) she might have survived as long as 15 minutes after the lethal wounds to her carotid artery and jugular vein were inflicted. From these facts, a rational trier of fact could conclude that the victim was alive when defendant sodomized her. In addition, contrary to defendant’s view, the timeline confirms he sodomized the victim before she died.

The victim was alive and unperturbed at 9:28 a.m., and defendant left the clinic before patients began arriving at 10:30. During this period, defendant entered, overpowered, and gagged the victim, moved her 40 to 50 feet, put her on the procedure table, bound her, stripped off her socks, shoes, and other clothing, prodded and stabbed her 29 times, and also engaged in sexual activity. Defendant’s contention that there is no evidence the victim was alive when penetration occurred is without merit. (People v. Bolden (2002) 29 Cal.4th 515, 553 [127 Cal.Rptr.2d 802, 58 P.3d 931] (Bolden).) c.

Robbery Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) Defendant contends there is no substantial evidence that he took any of the victim’s property, or that he formed the intent to take the property prior to the victim’s death or prior to her becoming unconscious. The evidence reflects that the victim typically wore a watch and a ring at work, and that her watch and her ring were missing from her body after her death.

In addition, defendant gave a watch and a ring to Gloria Salazar, stating that “this bitch got me mad.” The watch defendant gave Salazar was similar to a watch the victim wore, except by the time of trial its black leather band was missing and its finish appeared worn or faded. The ring he gave Salazar was gold with a green stone, and the victim’s ring was described as gold with an emerald stone. The evidence reflects that the victim kept her purse and wallet in the office area, where she apparently was confronted by defendant as she was reading a book, and that her purse and wallet were missing from the scene.

Finally, a satchel the victim carried between work and home, which contained petty cash of $30 to $40, was missing. Reviewing the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the conclusion that defendant took the victim’s watch, ring, purse, wallet, and satchel. (See People v.

DePriest (2007) 42 Cal.4th 1, 47 [63 Cal.Rptr.3d 896, 163 P.3d 896] (DePriest) [“Where a person is left dead or dying in ‘relative proximity’ to property that was taken, and such property is later found in the defendant’s possession, the jury is entitled to infer that the victim was robbed and that the defendant committed the crime.”]; People v.

Maury (2003) 30 Cal.4th 342, 402 [133 Cal.Rptr.2d 561, 68 P.3d 1] [because property that was in the possession of the victim was missing, the jury could reasonably infer that the defendant stole the property].) The circumstances that no witness was certain it was the same watch, that no witness saw which ring the victim was wearing on the day of the crimes, that the ring, the purse, the wallet, and the satchel were not recovered, and that the victim’s credit cards were not used, do not render this evidence insufficient.

With respect to when defendant formed the intent to take the property, the evidence reflects defendant had been employed only sporadically, he was using heroin regularly, and he did not have money to pay for drugs “very often.” (See U.S. v. Mitchell (9th Cir. 1999) 172 F.3d 1104, 1107-1109 [“addiction establishes a likelihood of desperate need and lack of self[-]control, not just financial interest in being richer”]; U.S. v. Miranda (9th Cir. 1993) 986 F.2d 1283, 1285 [evidence of the defendant’s heroin habit was admissible to demonstrate a motive to commit a bank robbery]; see also People v.

Cornwell (2005) 37 Cal.4th 50, 96 [33 Cal.Rptr.3d 1, 117 P.3d 622] (Cornwell) [evidence of poverty, without more, is not admissible to prove a motive for theft or robbery].) The purse and wallet were missing from the office area where defendant would have first encountered the victim. The victim’s book was on the floor, an unusual location. The watch and ring were not present when she was discovered with shoelaces tied tightly around her wrists.

Because her hands were bound behind her back, her wrists and fingers would have been directly in defendant’s view as he prodded her with a screwdriver and sexually assaulted her on the table.

From these facts, a rational trier of fact could conclude that defendant had a motive to steal, and that he formed the intent to steal from the victim before he traveled to her office, or soon thereafter, when he confronted her in the office, bound her wrists, and sexually assaulted her. (See DePriest, supra, 42 Cal.4th at pp. 46^-7 [court rejected defendant’s complaint that prosecution did not eliminate the possibility the defendant formed the intent to steal after he used force, finding substantial evidence he intended to steal when he accosted his victim]; People v.

Yeoman (2003) 31 Cal.4th 93, 128-129 [2 Cal.Rptr.3d 186, 72 P.3d 1166] (Yeoman) [intent to steal must be formed before or during the application of force]; People v. Navarette (2003) 30 Cal.4th 458, 499 [133 Cal.Rptr.2d 89, 66 P.3d 1182] [“one can certainly rob a living person by killing that person and then taking his or her property”].) Therefore, substantial evidence supports the robbery conviction. Again, defendant’s alternative inferences do not render insufficient the substantial evidence of his commission of robbery. d.

Burglary Any person who enters a building or room with the intent to commit larceny or any felony is guilty of burglary. (§ 459.) Defendant contends there was no substantial evidence that, at the time he entered the clinic, he intended to commit a felony therein. “[A] defendant’s intent . . . may be inferred from all of the facts and circumstances disclosed by the evidence. [Citation.]” (People v. Carter (2005) 36 Cal.4th 1114, 1157 [32 Cal.Rptr.3d 759, 117 P.3d 476] (Carter).) As noted above, the evidence establishes that defendant had a motive to steal.

The evidence also reflects that he desired anal intercourse, but his girlfriend resisted. In addition, the record reflects that defendant knew the victim would be alone in the office when he arrived, and that he parked his vehicle where it could not be seen from inside the clinic. Finally, the evidence reflects that defendant, armed with a screwdriver, stole the victim’s property, moved her to the back of the clinic, gagged her, bound her, put her on the table, removed her clothes, sodomized her and stabbed her 29 times, all in less than an hour.

From the swift execution of these acts, a rational trier of fact could conclude that when defendant entered the clinic, he intended to rob and sodomize the victim.

The fact that the evidence may also support other scenarios does not render insufficient the evidence supporting the verdict. (Bolden, supra, 29 Cal.4th at p. 553.) Defendant’s suggestions that the vehicle was not the one he was driving, or that he parked at the restaurant because he planned to dine there after his visit to the clinic, or that he parked there because he missed the turn to drive to the clinic, or that the victim angered him after he entered the clinic, do not preclude the reasonable inference that he entered the clinic with the intent to commit a felony therein.

In addition, the circumstance that the victim may have admitted him into the clinic does not negate his felonious intent. (People v. Frye (1998) 18 Cal.4th 894, 954 [77 Cal.Rptr.2d 25, 959 P.2d 183] [“a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner’s or occupant’s consent”].) e.

Independent felonious purpose “ ‘[T]o prove a felony-murder special-circumstance allegation, the prosecution must show that the defendant had an independent purpose for the commission of the felony, that is, the commission of the felony was not merely incidental to an intended murder.’ [Citations.]” (People v.

Lindberg, supra, 45 Cal.4th at p. 27.) “[A] jury deciding the truth of the special circumstance allegation is not required to assign a hierarchy to the defendant’s motives in order to determine which of multiple concurrent intents was ‘primary,’ but instead the jury need only determine whether commission of the underlying felony was or was not merely incidental to the murder.” (Bolden, supra, 29 Cal.4th at p. 558.) “[A] ‘concurrent intent to kill and to commit an independent felony will support a felony-murder special circumstance.’ [Citation.]” (People v.

Abilez (2007) 41 Cal.4th 472, 511 [61 Cal.Rptr.3d 526, 161 P3d 58] (Abilez).) Defendant contends there was no evidence of an independent felonious purpose with respect to the special circumstances based upon sodomy, robbery, and burglary.

As explained previously, the substantial evidence supporting defendant’s convictions for sodomy, robbery and burglary also supports the conclusion that those felonies were not merely incidental to an intended murder. “This behavior was not incidental or ancillary to the murder, but amply demonstrates an independent felonious purpose in support of the . . . special circumstances.” (Abilez, supra, 41 Cal.4th at p. 511.) Contrary to defendant’s suggestion, Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely), Ring v.

Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556, 122 S.Ct. 2428] (Ring), and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi), do not require that the jury expressly find each element of a special circumstance. 4.

Absence of instructions on lesser included offenses of second degree murder, involuntary manslaughter, false imprisonment, and grand theft Defendant contends that the absence of jury instructions concerning second degree murder, involuntary manslaughter, false imprisonment, and grand theft deprived him of his rights to due process, a fair trial, a jury determination of every material fact, a proper determination of death eligibility, and reliable determinations of guilt and penalty under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and

article I, sections 1, 7, 15, 16 and 17 of the California Constitution. “[I]t is the ‘court’s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed.’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 826 [89 Cal.Rptr.3d 225, 200 P.3d 847]; see Beck v.

Alabama (1980) 447 U.S. 625, 637 [65 L.Ed.2d 392, 100 S.Ct. 2382].) “Conversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction’ [Citation.]” (Cole, supra, 33 Cal.4th at p. 1215.) Substantial evidence “is not merely ‘any evidence ... no matter how weak’ [citation], but rather ‘ “evidence from which a jury composed of reasonable [persons] could . . . concludeQ” ’ that the lesser offense, but not the greater, was committed. [Citations.]” (People v.

Cruz (2008) 44 Cal.4th 636, 664 [80 Cal.Rptr.3d 126, 187 P.3d 970].) “ ‘On appeal, we review independently the question whether the court failed to instruct on a lesser included offense.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 705 [94 Cal.Rptr.3d 699, 208 P.3d 634].) As explained below, we need not decide whether the evidence would have supported a charge of second degree murder, because the jury’s findings establish that the jury found defendant guilty of first degree felony murder.

In addition, because there was no substantial evidence to support convictions for involuntary manslaughter or grand theft, the court was not required to instruct the jury concerning these crimes. Finally, because the conviction for kidnapping must be reversed, based upon error in the relevant jury instmction, we need not decide whether the jury should have been instructed concerning false imprisonment as a lesser included offense of kidnapping. a.

Second degree murder The trial court instructed the jury concerning two theories of first degree murder: (1) willful, deliberate, and premeditated murder, and (2) killing in the commission of specified felonies. (§ 189.) The court initially indicated that it also would instruct the jury concerning the lesser included offense of second degree murder, but ultimately declined to do so, stating that, earlier, it “had not taken into consideration the nature of the gagging and the binding.” The verdict did not indicate whether the conviction for first degree murder was based upon a finding that the murder was willful, deliberate, and premeditated, or that the killing occurred in the commission of specified felonies.

As noted above, however, the jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, sodomy, and robbery. (§ 190.2, subd. (a)(17)(A), (D), (G).) Because “the elements of felony murder and the special circumstance[s] coincide, the true finding[s] as to the . . . special circumstance[s] establish[] here that the jury would have convicted defendant of first degree murder under a felony-murder theory, at a minimum, regardless of whether more extensive instructions were given on second degree murder. [Citations.]” (People v.

Elliot (2005) 37 Cal.4th 453, 476 [35 Cal.Rptr.3d 759, 122 P.3d 968] (Elliot).) Therefore, the jury necessarily found defendant guilty of first degree felony murder, and any error in not instructing the jury concerning second degree murder was harmless beyond a reasonable doubt. Defendant urges the court to hold that second degree murder is a lesser included offense of first degree felony murder. He notes that we declined in People v. Valdez (2004) 32 Cal.4th 73, 114-115, footnote 17 [8 Cal.Rptr.3d 271, 82 P.3d 296], to address this issue.

We noted, however, the Attorney General’s contention that second degree murder is not a lesser included offense of first degree felony murder, because malice is an element of second degree murder, but is not an element of first degree felony murder.

We ultimately concluded in Valdez that the trial court did not err in failing to instruct the jury on second degree murder, because there was no substantial evidence “that the killing was other than [a] robbery murder.” (Id. at p. 116.) Here, defendant does not address (1) how second degree murder, which requires malice, can be a lesser included offense of first degree felony murder, which does not require malice, or (2) what substantial evidence Supports the conclusion that the killing was other than a burglary robbery sodomy murder. Defendant also cites People v.

Blair (2005) 36 Cal.4th 686 [31 Cal.Rptr.3d 485, 115 P.3d 1145], in which the defendant was charged with murder by the administration of poison. (See § 189 [“All murder ... by means of. . . poison ... is murder of the first degree”].) We acknowledged in Blair that “[i]f a jury is not satisfied that a defendant acted with either express or implied malice, it may find the defendant guilty of second degree murder on a felony murder theory.” (Blair, at p. 745, original italics.) We concluded, however, that (1) there was no substantial evidence that the defendant intended merely to injure the victim, and (2) any error in failing to instruct the jury concerning second degree felony murder was harmless, because the jury found true the special circumstance that the defendant intentionally killed the victim by the administration of poison. (Id. at pp. 746-747.) Similarly, in the present case, (1) there is no evidence that defendant intended merely to injure the victim when he bound and gagged her, inflicted 29 wounds to her neck, and left her bleeding on the procedure table, and (2) the jury’s finding that the killing was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, sodomy, and robbery precluded the jury from finding that the murder was of the second degree. (See § 189 [murder committed in the perpetration or attempt to perpetrate robbery, burglary, or forcible sodomy is murder of the first degree].) Therefore, our acknowledgement in Blair that second degree felony murder could be a lesser included offense of first degree murder in the circumstances of that case is of no assistance to defendant.

Finally, defendant asserts that “[s]econd degree felony murder instructions would have presented the question whether [defendant] murdered [the victim] while committing a dangerous felony other than kidnapping, burglary, sodomy, and robbery,” but he does not identify what other dangerous felony he might have committed. b.

Voluntary manslaughter After the trial court noted that it had been provided with proposed instructions concerning attempted rape and attempted sodomy as lesser included offenses to rape and sodomy, it inquired of defense counsel, “with regard to lesser included offenses, are there any others that you are aware of?” Defense counsel responded, “No, I don’t believe so.” The prosecutor then stated, “just for the record, on that particular point on the lesser includeds, [defense counsel] and I have had discussions concerning this particular point in the case on several occasions.

And [defense counsel] has indicated that this is a tactical thing on his part, and I will speculate as to what it is and I can understand what it may or may not be. But not to go into anything else, we have had discussions on this.” The trial court responded, “All right,” and then proceeded to review other jury instructions. Defense counsel did not dispute the prosecutor’s statements. Based upon this exchange, respondent contends the doctrine of invited error bars defendant from challenging the absence of an instruction concerning voluntary manslaughter.

Although “the doctrine of invited error .. . applies if the court accedes to a defense attorney’s tactical decision to request that lesser included offense instructions not be given” (People v. Prince (2007) 40 Cal.4th 1179, 1265 [57 Cal.Rptr.3d 543, 156 P.3d 1015]), the record does not reflect that defense counsel made a tactical decision with respect to an instruction concerning voluntary manslaughter. (See People v. Harris, supra, 43 Cal.4th at p. 1299 [“the record shows no tactical reason, and therefore we do not apply the invited error doctrine”]; People v.

Wilson (2008) 43 Cal.4th 1, 16 [73 Cal.Rptr.3d 620, 178 P.3d 1113] [the defendant’s agreement that the court need not instruct on specific lesser included offenses was not invited error, because defense counsel did not express a deliberate tactical purpose for agreeing]; People v.

Valdez, supra, 32 Cal.4th at pp. 115-116 [because the record was ambiguous as to which lesser included offenses counsel had considered and rejected, the doctrine of invited error did not apply].) Voluntary manslaughter “is the unlawful killing of a human being without malice,” committed “upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) As we recently reiterated, to establish the crime of voluntary manslaughter, there must be evidence that (1) the defendant killed in the heat of passion, and (2) such passion would be aroused in an ordinarily reasonable person under the circumstances. (People v.

Rogers (2009) 46 Cal.4th 1136, 1168-1169 [95 Cal.Rptr.3d 652, 209 P.3d 977].) The evidence defendant cites in support of these elements is his statement to Gloria Salazar that “this bitch got me mad,” his statement that he had injured his thumb working at Toyo Tires, and the presence of the victim’s book on the floor of her office.

From this evidence, he proposes that the jury could have inferred that he traveled to the clinic to obtain treatment for his thumb, and “[o]nce [defendant] arrived at the medical clinic, events transpired out of control because [defendant] became angry over some conduct or comment by the victi

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