THE PEOPLE, Plaintiff and Respondent, v. BRONTE LAMONT WRIGHT, Defendant and Appellant, 52 Cal. 3d 367

Opinion EAGLESON, J. Defendant Bronte Lament Wright was convicted of the first degree murder of Patricia Hunter (Pen. Code, § 187), rape (§ 261), attempted robbery (§§ 664/211), and burglary (§ 459).

Various enhancement allegations were found true: personal use of a deadly and dangerous weapon, infliction of great bodily injury upon a victim of advanced age, and commission of the offenses while defendant was on parole following a term of imprisonment for a violent felony in which he had used a handgun. (§§ 1203.075, 1203.085, 1203.09, 12022.7, 12022.8, 12022.) Three special circumstances were found true: that the murder was committed while defendant was engaged in the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(i)), rape (§ 190.2, subd. (a)(17)(iii)), and burglary (§ 190.2, subd. (a)(17)(vii)).

The jury fixed the penalty at death; this appeal is automatic. (§ 1239, subd. (b).) We filed an initial opinion in this case on March 2, 1989, affirming the judgment of guilt and reversing the penalty. Thereafter we granted a rehearing; supplemental briefs have been filed raising several new claims with citation to recent authorities. For the reasons set forth hereafter, we now conclude that the judgment should be affirmed in its entirety. Facts Guilt Phase Mrs.

Patricia Hunter, a 76-year-old widow, was last seen alive by a schoolgirl as she sat on the porch of her Pasadena residence at approximately 4:30 p.m. on April 30, 1981. Assistant Pastor Frank Brown became concerned the following day when Mrs. Hunter failed to attend a Sunday school teachers’ meeting. He went to her house but received no response to his knock on the front door or his taps on the side of the house. He crossed the street and enlisted the assistance of another church member, Ms. Hetker. The two returned to Mrs. Hunter’s home and entered through the unlocked front door. They discovered Mrs.

Hunter’s half-clothed body on the living room floor, returned to Hetker’s residence and summoned the police. Pasadena police officers found the victim naked from the waist down with socks, slacks, pantyhose, and underwear draped over the lower portion of the body. Blood was found splattered around the room and the upper portion of the telephone receiver was covered in blood. Broken bric-a-brac was strewn around the room indicating the victim had struggled with her assailant. A pillow was found next to the victim’s head.

A deputy medical examiner determined the victim had died from massive brain damage due to “many, many blows” delivered to “all areas of the head.” He testified the injuries were so extensive that “[t]he scalp was lifted away from the skull for a distance of about one inch by what amounted to a lake of liquid blood . . . .” Marks and discoloration around the victim’s eyes were consistent with being struck with the telephone receiver. Defensive wounds and abrasions were found on her hands and wrists. In addition, there was evidence of strangulation.

Further investigation revealed the presence of sperm in the external vaginal area but none inside the vagina. Physical evidence of penetration was inconclusive. A police fingerprint expert examined the crime scene and found defendant’s palm prints on a copy of Guidepost magazine and on a newspaper which were recovered from the living room next to where the body was found. Two neighbors reported having seen defendant, who lived within a block of the victim’s residence, walk by the victim’s house between 3 and 4:30 in the afternoon on April 30.

Ten to thirty minutes later, the same neighbors saw defendant return, stop in front of the victim’s home, and stand there looking at the victim’s property for one and one-half to two minutes. Pasadena police obtained a warrant and arrested defendant, with the assistance of his parole officer, one week after the murder. He was interviewed the following day. Defendant initially denied any involvement, but thereafter confessed to the crimes. The interview session was tape-recorded. Defendant stated he went to the victim’s house and asked if he could mow her lawn.

When she replied she already had somebody who performed that job for her, he asked for a glass of water. When she brought the glass to the door, he forced his way in. She began screaming so he hit her. He admitted striking her many times but claimed he left her alive, although he stated she was having difficulty breathing. He confessed to attempting to rape the victim, was equivocal as to whether he had achieved penetration, but admitted having ejaculated. He further admitted that he entered the victim’s home because he believed she would be an “easy mark,” and that he took $5 and some change from the victim.

He admitted “murdering” the victim but claimed it was not “intentional.” Defendant did not testify and introduced no evidence at the guilt phase. Penalty Phase At the penalty phase, the prosecution presented extensive evidence documenting defendant’s criminal history. On December 18, 1972, defendant, then 18 years old, along with a juvenile accomplice, entered the home of 80-year-old Shiu Maruyama and ransacked the residence looking for money. The accomplice held the victim at defendant’s direction but had to constantly remind defendant not to harm her.

They tried to force a ring from the victim’s finger but were unsuccessful. Defendant was apprehended at the scene and confessed his involvement in the crime to one Agent Cauchen. Cauchon testified at the penalty phase that defendant smiled while describing the incident to him and did not appear to exhibit any remorse whatsoever. Defendant was eventually convicted of second degree burglary. On June 21, 1974, defendant robbed two different victims in a Pasadena bank parking lot. The first, Jennifer Salsbury, testified defendant approached her as she was getting into her car, exhibited a gun, and took her wallet.

Salsbury drove away when defendant told her she would not be harmed if she left the scene. Minutes after the Salsbury robbery, defendant robbed Muriel Cunningham in the same parking lot. After exhibiting his gun, defendant took the victim’s purse containing between $50 and $60 and fled on foot. Although both victims later testified in court against defendant, there is no indication that convictions were obtained. On March 20, 1977, defendant, armed with a shotgun, robbed Stephen Hardin, who was working as a desk clerk in a Glendale motel.

After pointing the shotgun at his victim and threatening to kill him if he did not do as ordered, defendant obtained between $200 and $300 from the till, then forced Hardin to remove his trousers and stay in a closet until defendant made good his escape. Once again, although Hardin testified against defendant, there is no indication in the record that a conviction was obtained. Four days later, defendant entered a 7-Eleven convenience store in Glendale wearing a ski mask and brandishing a revolver. He instructed Tracie George, the clerk, to give him all the money in the register and she complied.

Ronald Pure, George’s boyfriend, was also present and was ordered by defendant to lie on the floor. Defendant was apprehended when Glendale Police Officer Tuosto observed him fleeing from the scene. Tuosto found defendant in possession of the stolen money, a revolver, and a ski mask. The handgun was fully loaded and operational; a bullet was in the chamber and an indentation in the shell casing evidenced that the firing pin had struck it but that the round had misfired. Defendant was convicted of first degree robbery with use of a handgun and assault with intent to commit robbery.

On June 25, 1977, Deputy Sheriff Molina observed defendant and inmate-victim Shires together in a locked cell in county jail. Shires was bleeding from two slashes on his abdomen. A search revealed a razor blade secreted in the cell’s toilet. Defendant was later convicted of assault with a deadly weapon. In addition to the incidents related above, the trial court took judicial notice of court documents establishing that defendant had been convicted in 1974 of two robberies involving the use of a handgun against victims Darland Shaw and Lena Johnson.

The prosecution also presented considerable evidence regarding defendant’s behavioral and adjustment problems while in prison. Correctional Officer Ortiz testified that on October 30, 1977, he observed defendant straddling and punching an inmate named Martin, who was spitting out blood. After correctional officers broke up the altercation, defendant jumped back into the fray, striking Martin two more times. The writeup of the incident concluded Martin had provoked the fight but that defendant struck the first blows.

Gregory Avila testified that he was a counselor at the California Men’s Colony and that on May 16, 1978, he interviewed defendant to determine whether he wished to participate in any educational or vocational training. Defendant replied he did not want to go to school. When queried how he planned to make a living after leaving prison, defendant replied that if he saw something he wanted, he would just take it. Defendant expressly stated he had no intention of altering his criminal conduct. On August 10, 1978, defendant was overheard threatening Correctional Officer J.R.

Duran that Duran’s “body” would be the next one found in the recreation shack. An inmate’s dead body had been discovered in the shack just 15 minutes earlier. Teri Gelatini, a kitchen worker at San Quentin, testified and recounted a 1979 incident in which defendant became verbally abusive towards her, allegedly threw a piece of paper at her, and needed to be restrained by guards. The writeup of this incident showed defendant admitted making unbecoming remarks towards Gelatini but was falsely accused of throwing the paper at her.

He admitted he became upset with her because she had previously been “tolerant” of him, but had subsequently changed. In late 1978, defendant approached Corrections Sergeant Ochoa and demanded a transfer out of his quad, saying he would hurt somebody unless he was transferred. A similar threat occurred in late 1979 when defendant told Correctional Counselor Bauer that someone would die if he was transferred to a different unit. On November 6, 1979, defendant was interviewed by Program Administrator Nyberg concerning the administrative decision to place defendant in restricted housing.

Defendant became verbally, abusive, upset the conference table, threw a chair against the wall, and was restrained by Nyberg. No one was injured during the incident. On June 19, 1979, Correctional Counselor John Williams interviewed defendant in San Quentin Prison. Defendant said that he was going to kill several women and one man when he was released from prison. He further stated he would make headlines and would not be captured by police. Williams reported defendant was a “sick,” “dangerous” prisoner and warned staff to use caution when seeing him.

Similarly, Correctional Counselor Crook testified that on December 4, 1980, he interviewed defendant about his postrelease plans and defendant replied, “I am freaky on the streets” and “I like to do all sorts of freaky things with the ladies.” The penalty phase evidence introduced by the defense consisted of testimony by defendant’s mother and uncle, as well as psychological evidence establishing defendant’s low intelligence. Defendant’s mother, Brooksie Wilson, testified that defendant’s father was physically abusive to both her and defendant.

The father beat defendant, striking him in the head on several occasions, and would lock the children in a closet when Wilson was away at night school. Wilson recalled one incident in which defendant’s father had struck him on the head with a brick. As a result of the beatings, Wilson moved with her children to California when defendant was two years old. Wilson remarried, but her second husband was an alcoholic and was jealous of the attention Wilson showed towards defendant. He often demanded to know whether Wilson loved him more than defendant.

On numerous occasions Wilson’s second husband would refuse to allow defendant into the house, or would order him to sleep on a mattress in the backyard. Defendant fought constantly with his stepfather, on one occasion getting into a fight with him after the stepfather physically abused defendant’s mother. On another occasion defendant’s natural father and his stepfather had a confrontation which resulted in both drawing guns, which incident was witnessed by defendant. In school, defendant was diagnosed as having a learning problem. His attention span was very short.

He was always placed in special classes and routinely received failing grades. In high school, he only attended school for two or three hours a day and spent the remainder of the day playing on the school grounds. Wilson estimated defendant’s “mentality” was that of a 13-year-old. She described him as “very immature” but protective of her, saying he became very upset when anyone directed a derogatory remark at her. He knew she was struggling to make a success of her life and he would clean people’s houses or yards and bring her half the money. Wilson tried to obtain help for her son but was unsuccessful.

Her appeal to the Director of the California Youth Authority was fruitless. She characterized defendant’s stay in the California Youth Authority as merely a custodial situation, and felt no real attempt was made to rehabilitate him. She believed he received virtually no supervision while on parole. On cross-examination, Wilson testified that on one occasion she had an argument with defendant about mailing obscene letters to women in their neighborhood, and had told him to stop doing it.

She further testified she did not believe defendant had a violent or explosive temper, nor did she consider him a dangerous individual. Defendant was living with Wilson and the stepfather, one-half block away from Hunter’s residence, on the date of her murder. John Williams, defendant’s uncle, had known defendant since he was two years old. Williams described defendant as a good worker who obeyed orders. However, he related an incident when, upon being chastised, defendant began rubbing his hands together in a frenzy, repeating, “I don’t know” over and over again.

Williams said defendant became anxious when someone raised his voice. He also recalled defendant as a compulsive eater; on occasion defendant would spend his entire earnings, from doing odd jobs, on six or seven hamburgers, which he would eat in front of his friends without offering to share the food. Williams and his wife believed defendant may have been in need of psychiatric help, but they did not want to get involved in the matter. Dr. Robert Van Vorast, a clinical psychologist who worked for the California Youth Authority, treated defendant between 1974 and 1976.

Van Vorast concluded defendant was impulsive, but not psychotic. Defendant’s intelligence was in the “borderline” to “low dull normal” range, meaning fourth or fifth grade level or slightly higher. “Continual intensive supervision” and regular therapeutic help was necessary for defendant to function in the community. Dr. Michael Maloney, a clinical psychologist, also examined defendant.

When asked whether he had found any evidence that defendant suffered from brain damage, he acknowledged there was no medical evidence of any brain damage in defendant’s history, but explained: “As a psychologist, what we really look for [are] certain patterns of behavior and certain deficits in certain areas, [fl] From that point of view, Mr.

Wright clearly has deficits in certain perception areas, perceptual motor areas, [fl] I don’t know that there have been any hard clinical findings, medical findings to suggest brain damage, but he has a pattern that looks like that from a psychological point of view, and it has been commented on back in to teenage years when he was at the California Youth Authority.” After discussing the results of some tests he had defendant take, Dr.

Maloney continued: “Oftentimes [test results such as defendant’s are] . . . suggestive of some disorganization in the brain and I might add that a person certainly could fake this, but Mr.

Wright has had references made to this kind of difficulty for years, much predating his arrest in this case. []j] So he does have a problem in this area, and as I said, it’s often suggestive of organic brain disfunction [sfc] and certainly not diagnostic of it. [fí] It does not mean that he has it, but there is something that is disfunctional [sic] in that area.” When asked on direct examination, “Did you make any judgments as to whether or not [defendant is] psychotic?,” Dr.

Maloney replied: “I saw no evidence that he is psychotic, [fl] He does give some pretty peculiar and even bizarre responses at times, but in terms of basic thinking processes, they’re not overly disturbed, [if] He didn’t hallucinate, as far as I know of. [fl] He’s not delusional, [fl] So the hard basis for a diagnosis of psychosis he doesn’t have.” Finally, Dr. Maloney agreed with Van Vorast’s test results reflecting defendant’s low level of intelligence. After considering this penalty phase evidence, the jury set the penalty at death.

Motions for modification of the penalty verdict, and for a new trial, were denied. Discussion I. Guilt Phase 1. Speedy Trial Defendant first contends that his conviction must be reversed due to a violation of his statutory right to a speedy trial. Former

section 1382 (applicable here) provided, in pertinent part: “[t]he court, unless good cause to the contrary is shown, must order the action to be dismissed in the following cases: . . . [fl] 2. When a defendant is not brought to trial in a superior court within 60 days after the . . . filing of the information . . . .” A continuance granted at the request of counsel normally constitutes such good cause (People v. Kirkpatrick (1972) 7 Cal.3d 480, 486 [102 Cal.Rptr. 744, 498 P.2d 992]), at least in the absence of evidence showing incompetency of counsel (Townsend v.

Superior Court (1975) 15 Cal.3d 774, 781 [126 Cal.Rptr. 251, 543 P.2d 619]) or circumstances where counsel’s request for a continuance is prompted only by the need to service other clients and the defendant himself objects to the delay. (People v. Johnson (1980) 26 Cal.3d 557, 566-569 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Moreover, a defendant’s failure to timely object to the delay and thereafter move for dismissal of the charges is normally deemed a waiver of his right to a speedy trial. (Sykes v. Superior Court (1973) 9 Cal.3d 83, 94 [106 Cal.Rptr. 786, 507 P.2d 90]; People v.

Wilson (1963) 60 Cal.2d 139, 146 [32 Cal.Rptr. 44, 383 P.2d 452].) Defendant was arraigned on July 10, 1981, and went to trial on August 13, 1982. During the interim, several continuances were granted at defense counsel’s request. On at least one occasion, defendant personally waived time. There was no pretrial objection by either defendant or defense counsel on speedy trial grounds.

Defendant acknowledges he failed to register a timely objection, but he argues his waiver was not a knowing and intelligent one because his defense attorney and the trial judge collaborated to prevent him from learning why counsel sought the several continuances. He claims the trial judge misinformed him regarding defense counsel’s legal experience, thereby lulling him into the belief that counsel would preserve his rights.

Defendant’s citation to the record, however, shows only that the trial court told defendant his appointed counsel was “an excellent attorney . . . very effective . . . very thorough . . . [and] conscientious.” It does not appear the trial court misled defendant by this comment. Defendant also complains he was denied an opportunity to participate in the proceedings and was thus uninformed as to the reasons for the various continuances. This claim stems from a bench meeting between counsel, the prosecutor, and the judge, out of defendant’s hearing.

At this meeting, counsel admitted that this was his first murder trial involving special circumstances, and that one reason for the requested continuance was to allow him time to attend a public defender’s seminar on how to try such cases. In addition, other reasons (his own workload and his investigator’s vacation) were discussed. We assume defendant is arguing that had he known this was counsel’s first murder trial involving special circumstances, he would have personally objected to a further continuance. This is illogical.

While counsel’s relative inexperience may have prompted defendant to move for appointment of new counsel or to proceed without an attorney, it would not have led defendant to refuse to waive time, which would only have resulted in his attorney having to go to trial less prepared.

Defendant also points to defense counsel’s statement at the bench that a conference out of defendant’s earshot was necessary “because of problems of client control.” This statement, defendant claims, is indicative of counsel’s belief that what would be said—namely, that this was counsel’s first special-circumstances murder trial—would prompt defendant to refuse to waive time. Although the “client control” remark may well have reflected counsel’s belief that his anticipated comments would further provoke defendant, as stated above we doubt they would have prompted defendant to refuse to waive time.

In the absence of anything in the record to support defendant’s claim that his own attorney and the trial court collaborated to prevent him from personally objecting to continuances, his failure to timely object and move for dismissal must be deemed a valid waiver precluding appellate review. (Wilson, supra, 60 Cal.2d at p. 146.) 2. Arrest Warrant Prior to trial, defendant sought to suppress his confession to police on grounds that the arrest warrant was not supported by probable cause. At the

section 1538.5 hearing, the parties discovered that the original affidavit in support of the arrest warrant had been destroyed by the superior court clerk’s office in accordance with their internal policy. Defendant promptly objected to the introduction of secondary evidence to establish the contents of the missing affidavit, citing the best evidence rule. (Evid. Code, § 1500.) The trial court reserved judgment on the objection and permitted the People to question the police officers involved in the procurement of the arrest warrant.

Sergeant Gray testified that he prepared the affidavit in support of the arrest warrant, and that it consisted of photocopies of all police reports up through the date of submission of the package to the magistrate, Judge Franciscus.

The prosecutor, who had obtained a new copy of the applicable police reports in the meantime, showed the new copy to Sergeant Gray and asked, “So the information that you presented to Judge Franciscus is everything that is visible and legible on these pages; is that correct?” Gray responded: “Yes, to the best of my recollection, that is the complete document that I gave Judge Franciscus.” Joseph Downs, a police fingerprint expert, testified he matched the palm prints found at the scene to exemplars of defendant’s palm prints.

His findings were included in the police reports which Sergeant Gray testified were submitted to the magistrate. The trial court overruled the objection, in effect permitting proof of the contents of the original writing by secondary evidence pursuant to Evidence Code

section 1501, which provides that, “A copy of a writing is not made inadmissible by the best evidence rule if the writing is lost or destroyed without fraudulent intent on the part of the proponent of the evidence.” Defendant contends that the admission of such secondary evidence was error. He argues that there was no competent evidence introduced to establish that the original writing was lost or destroyed.

He argues further that the trial court erred in concluding that the reconstructed affidavit was identical to the original affidavit since the cover sheet of the orginal affidavit, which was available, reflected that the original affidavit-package was 45 pages in length, whereas the People’s reconstructed copy consisted of 59 pages. Defendant’s claims are unavailing for several reasons. First, because defendant was arrested in an automobile on a public street, and not inside a residence, a warrant was not required in the first instance (Payton v.

New York (1980) 445 U.S. 573, 576 [63 L.Ed.2d 639, 644-645, 100 S.Ct. 1371]; People v. Ramey (1976) 16 Cal.3d 263, 275-276 [127 Cal.Rptr. 629, 545 P.2d 1333])—as long as the arresting officers had probable cause to believe defendant committed the murder of Patricia Hunter. (§ 836.) When the arresting officer has probable cause to arrest for a felony, and the arrest is not made inside a residence, the arrest is valid even though made under an invalid arrest warrant. (United States v. Rose (8th Cir. 1976) 541 F.2d 750, 756; People v. Kirk (1974) 43 Cal.App.3d 921, 926 [117 Cal.Rptr. 345]; see People v.

Groves (1969) 71 Cal.2d 1196, 1199 [80 Cal.Rptr. 745, 458 P.2d 985].) At the suppression hearing, Officer Gray testified that in making the arrest he knew that defendant lived near the victim, that defendant had been seen near the victim’s residence shortly before her death, and that defendant’s palm print was found on two articles in the same room where the victim’s body was discovered. These facts amply support the trial court’s determination of probable cause to arrest. Although the prosecution is generally not permitted to assert a new legal theory on appeal (see People v.

Hamilton (1969) 71 Cal.2d 176, 182 [77 Cal.Rptr. 785, 454 P.2d 681]), in this instance the issue of probable cause was fully litigated in the'trial court, and the defense could not have been prejudiced by the prosecution’s failure to expressly rely on a theory that the arrest was lawful regardless of the warrant’s validity. In any event, on this record we conclude that defense counsel’s best evidence rule objection was properly overruled, and the suppression motion properly denied.

At the hearing on the motion, defense counsel made certain statements that the trial court could reasonably have interpreted as an assent or agreement that the original documents in support of the arrest warrant had been destroyed. Counsel stated: “/ think it is established what the problem is and right here and now I am going to make that objection .... There is insufficient probable cause because the original record has been thrown away. ...

I would object to introduction of secondary evidence under the circumstances.” (Italics added.) By acknowledging that the documents had been “thrown away” and that the nature of the problem was “established,” defense counsel gave his assent to the factual representation made by the court that the original documents had been destroyed by the clerk. This affirmative manifestation of assent made it unnecessary to introduce evidence of those facts and precludes defendant from arguing on appeal that the facts were not proved by competent evidence.

The record further reflects that the critical police reports concerning the palm print evidence, the sightings in the neighborhood, and that a murder had occurred, are all dated prior to May 8, the day the arrest warrant was obtained. Given Sergeant Gray’s testimony that he would not have sought the arrest warrant without the palm print evidence, we may infer that, even if the original affidavit-package consisted of only 45 pages, included therein was evidence of the palm print, the neighborhood sightings of defendant, and that the victim’s death was the result of a murder.

Thus, even assuming Sergeant Gray’s testimony was subject to impeachment with the page discrepancy, the failure to object was clearly harmless. 3. Random Jury Selection Defendant next challenges the method by which the trial judge selected the initial group of 21 prospective jurors to be voir dired from among the 84 venire persons.

Apparently concerned that the traditional method of narrowing the group of venire persons for voir dire—i.e., a random draw of 12 names from a trial jury box—would inconvenience the 84 venire persons since the courtroom could only seat 48 people, the trial judge decided to designate the first 21 venire persons who came through the courtroom door as the first group. Defense counsel objected to this procedure, claiming it violated his right to a randomly selected jury.

Specifically, counsel argued that cliques of venire persons might enter the courtroom together, resulting in all or no persons of any such group being included amongst the first 21 people to enter the courtroom. In addition, counsel speculated that a venire person with an aggressive personality might “self-select” himself by entering first due to his eagerness to serve. Finally, after the first 21 prospective jurors were seated, counsel noted (out of the jury’s hearing) that no Blacks were in that group, and that several Black venire persons were seated together in the back of the room.

The trial court indicated its belief that the chosen method of selecting prospective jurors was no less random than if the names were to be drawn from the box in the traditional manner, and overruled the defense objection. The prosecutor suggested an alternative procedure which would have addressed the logistical problems of the small courtroom while perhaps better ensuring a random draw. The trial judge admitted the “solution is a good one, but I don’t think it’s necessary,” and commenced to implement the first-come, first-served procedure.

Later, the prosecutor expressed his misgivings, telling the judge he believed the Penal Code required a random draw of names from the trial jury box. By that time several prospective jurors had been voir dired, and defense counsel had noted his objection to any “irregular procedures.” After reviewing the Penal Code, the trial judge concluded that the relevant provisions did not direct a specific method of picking jurors, and overruled all the objections. Defendant now argues that the trial court’s actions abrogated his right to a randomly selected jury.

We conclude, however, that although the jury selection procedure utilized below was unorthodox, reversible error is not shown. “Trial juries for criminal actions are formed in the same manner as trial juries in civil actions.” (§ 1046.) Once the panel of prospective jurors is drawn “in a manner to insure random selection” (former Code Civ. Proc., § 246), the panel is sent to the trial court in order to select a jury therefrom. Former Code of Civil Procedure

section 600 (which applies here) provided the applicable procedure: the clerk “must draw from the trial jury box of the court the ballots containing the names of the jurors, until the jury is completed, or the ballots are exhausted.” Of course, “a party is constitutionally entitled to a petit jury that is as near an approximation of the ideal cross-section of the community as the process of random draw permits.” (People v. Wheeler (1978) 22 Cal.3d 258, 211 [148 Cal.Rptr. 890, 583 P.2d 748].) However, failure to comply with the procedures set forth in former Code of Civil Procedure

section 600 does not automatically require reversal. “A challenge to the panel can be founded only on a material departure from the forms prescribed in respect to the drawing and return of the jury in civil actions . . . .” (Former § 1059, italics added.) Defendant relies on People v. Johnson (1894) 104 Cal. 418 [38 P. 91], in which case the jurors, as here, were not selected by a random draw of names from the the trial jury box.

In that case the bailiff selected 12 prospective jurors from among the venire persons present in the courtroom, and those 12 persons ultimately served on the jury without objection from defense counsel.

Although this court held that the failure to object waived any claim of error, we noted that “[t]his mode of impaneling a jury differs materially from that prescribed in the statutes of the state, and if it had been done against the objection of defendant it would have constituted sufficient reason for reversal.” (Id. at p. 419.) Defendant urges that the instant case contains an error “virtually identical” to that in Johnson, supra, 104 Cal. 418. We disagree.

Since the bailiff in Johnson personally chose the jury from among the venire persons, the draw was not random, but was instead subject to the biases, both conscious and unconscious, of the person making the selections. In contrast, the selection procedure utilized here was not controlled by any one individual. We are unpersuaded that Johnson is controlling on these facts. What must be determined is whether the selection procedure employed here constitutes a “material departure” from that set forth in former Code of Civil Procedure

section 600. We conclude that it does not. While the scenarios postulated by defense counsel in support of his objection to the procedure raise some legitimate concerns, the record reflects that several panels of venire persons were ultimately utilized for selection of the jury in this case. Moreover, to the extent the procedure had the potential to manifest some subtle bias, that potential was de minimis since, after the first 21 venire persons were questioned, selection of jurors from all the remaining venire persons was accomplished by the traditional method.

Significantly, unlike the case in Johnson, supra, 104 Cal. 418, selection of the initial group of 21 prospective jurors was not undertaken by a single person, and there is no evidence that persons in that group were aware that the order in which they entered the courtroom would determine whether they would be included in the initial group to be voir dired. Moreover, the record shows defense counsel was able to fully question the venire persons and exercise his peremptory challenges in an informed manner.

Although we do not endorse the jury selection procedure employed here, we conclude that, on these facts, there was no material departure from the statutory procedure such as would require sustaining a challenge to the composition of defendant’s jury. 4. Peremptory Challenges a.

Use of the “Struck Jury ” Method to Pick Jurors After voir dire of the initial group of 21 prospective jurors was completed, but prior to the exercise of the first peremptory challenge, defense counsel objected to the “irregular picking of the jury” and requested that no more than 12 persons be present in the jury box at any one time, arguing the juror selection procedure employed by the court thus far was not permitted by the Penal Code. The court noted the objection and impliedly overruled it, stating, “Well, the Penal Code doesn’t specify, Mr. Blum.

It allows for a little creative judging and that’s what we’re doing here.” Each side then exercised 5 peremptory challenges against the initial 21-person panel, and the court had the clerk pick an additional 10 names at random. After 9 further peremptory challenges were exercised (leaving a jury of 12), another 6 prospective jurors were picked at random. The exercise of additional peremptory challenges left the panel at 11 jurors.

The court then stated it would “do this one more time,” but after a renewed objection by defense counsel was overruled, counsel withdrew his last peremptory challenge, leaving 12 seated jurors. However, the prosecutor then challenged 1 juror and 5 more names were drawn. After 3 more challenges, the prosecutor accepted the jury of 13. The trial court then indicated that if both sides passed on a jury of 13, 1 juror would be eliminated by a random draw. Instead, defense counsel challenged a final juror, leaving 12, and both sides then accepted the jury.

Defendant contends the trial court’s decision to have him direct his peremptory challenges against a potential jury of more than 12 persons improperly diluted his right to exercise his peremptory challenges. Former

section 1088 (which applies here) stated, in pertinent part, that “each party shall be entitled to have the panel full before exercising any peremptory challenge.” Although past cases involved the failure to maintain a full complement of 12 jurors when the parties were exercising their peremptory challenges (see, e.g., People v. Scoggins (1869) 37 Cal. 676; People v. Dufur (1917) 34 Cal.App. 644 [168 P. 590] [both cases having been decided before the enactment of the language in former

section 1088 requiring a “full panel”]), the question of whether former

section 1088 is violated when more than 12 persons are in the jury box appears to be one of first impression. A recent federal case cogently explains the different methods for exercising peremptory challenges posed here. “In the ‘jury box’ system of jury selection, the parties exercise their challenges against jurors already seated in the box, and who will remain on the jury unless challenged.” (United States v. Ricks (4th Cir. 1986) 802 F.2d 731, 733.) This is the system utilized in California.

However, “the ‘struck jury’ method of jury selection [is] where the trial judge tenders to each party a list of qualified veniremen and each side exercises its peremptories against the names on the list. If, after each side exercises its strikes, there remains more than 12 persons on the list, the trial judge must decide which twelve will constitute the jury.” (Ibid., fn. omitted.) The trial judge apparently attempted to employ a variation of the “struck jury” method in this case.

Defendant argues that strategic use of a peremptory challenge against any 1 prospective juror requires knowledge of the personalities of the remaining 11 jurors in the jury box. In seeking to obtain a balance of personalities on the jury, seasoned counsel’s acceptance of 1 juror might be influenced by the presence of another juror or jurors on the panel.

Requiring defendant to exercise his challenges against a panel of 21 prospective jurors in theory might have made it more difficult for counsel to evaluate the suitability of any particular juror, since counsel could not be certain who the other 11 jurors would be. Finally, under the “struck jury” method, if both sides passed on a panel consisting of more than 12 jurors, actual service of any 1 juror would then depend on the further luck of the draw. However, many of these same concerns were faced in the cases involving less than a full panel.

For example, in Scoggins, supra, 37 Cal. 676, the trial court had the clerk choose one juror at a time and insisted both sides decide whether that juror was acceptable before moving on to the next one. Describing the procedure then applicable, we noted the trial court should have randomly drawn 12 names and had all 12 jurors sit in the jury box for voir dire and the exercise of peremptory challenges.

We observed that “[t]he theory of the law probably is that the right to challenge peremptorily cannot be exercised so judiciously until the panel is filled with competent and qualified jurors, of whom each party is allowed to reject a certain number without assigning any reason therefor.” (Id. at p. 680, italics added.) We thus recognized early on that the composition of the entire panel can be relevant to the exercise of a peremptory challenge against any one juror.

In In re Mendes (1979) 23 Cal.3d 847 [153 Cal.Rptr. 831, 592 P.2d 318], 12 jurors were chosen, but before the alternate could be selected, 1 of the 12 was discharged due to a death in the family. The defendants challenged the trial court’s decision to reopen jury selection and permit the exercise of any unused peremptory challenges against the remaining 11 jurors.

In affirming the judgment in that case, we observed that “there was a valid reason for the court to allow peremptory challenges [against the 11 jurors already chosen:] so that both sides could satisfy themselves to the best of their ability with the final composition of the jury.” (Id. at p. 855.) We quoted, with apparent approval, the trial court’s comments in support of its ruling: “ ‘There is a possibility that somebody might have in the back of their mind that the new juror wouldn’t fit in with the total panel.’ ” (Ibid.) It is clear that knowledge of the composition of the entire panel can be relevant to the informed exercise of a peremptory challenge against a particular juror. (But see United States v.

Blouin (2d Cir. 1981) 666 F.2d 796, 798-799 [suggesting that the “struck jury” system may be more advantageous from a strategic point of view].) However, the fact that the procedure utilized here may have stood to make the exercise of the initial peremptory challenges less informed, does not in itself require reversal. This is not a case where the defendant was prohibited from exercising all of his allotted peremptory challenges, which error would require reversal. (See People v.

Armendariz (1984) 37 Cal.3d 573, 584 [209 Cal.Rptr. 664, 693 P.2d 243].) Although the jury selection procedure utilized here may have carried the potential for prejudice, we are not persuaded that such potential was realized here. The initial panel of 21 prospective jurors was pared down to the final 12 actual jurors via the challenge process, under procedures equally applicable to both sides. As the voir dire session drew to a close, both defense counsel and the prosecutor knew which 12 jurors would in probability comprise the petit jury.

Although defendant hypothesizes that under the trial court’s chosen procedure a defendant might logically be forced to exercise all of his peremptory challenges against a group of “50 or 100 or 5000” panelists, that simply did not occur here. We caution that adherence to the Legislature’s statutorily prescribed jury selection procedures remains the proper and authorized way to ensure selection of a fair and impartial jury.

Although the jury selection method utilized here departed from the statutory procedures then in effect, it did not unduly prevent defendant from exercising any of his allotted challenges, or otherwise fundamentally flaw the selection or final composition of defendant’s petit jury. Under such circumstances, it is settled that relief will not be granted on appeal absent a showing of prejudice. (People v. Mitchell (1964) 61 Cal.2d 353 [38 Cal.Rptr. 726, 392 P.2d 526]; People v. Hoyt (1942) 20 Cal.2d 306 [125 P.2d 29]; People v.

Saugstad (1962) 203 Cal.App.2d 536 [21 Cal.Rptr. 740].) Although requiring defendant to exercise his peremptory challenges against a panel of more than 12 prospective jurors at any given time technically ran afoul of the statutorily prescribed jury Selection procedure, prejudice warranting reversal has not been demonstrated. b. Purposeful Discrimination Under Batson v. Kentucky During voir dire, the prosecutor exercised a peremptory challenge against Black prospective juror Givan. Defense counsel objected and the following colloquy ensued: “Mr.

Blum [defense counsel]: Defense objects, noting the point that Miss Givan is black. I see no reason— “The Court: Overruled. “Mr. Blum: Can I just state the basis that it is systematic exclusion. “The Court: Seeing as she is the first black that is seated on the jury, I can’t see how you can get systematic exclusion. “Mr.

Collier [prosecutor]: I would also note for the record that during the Witherspoon voir dire, Miss Givan said she can only vote for the death penalty if she was absolutely forced to, and I am not about to place anybody on the jury since that’s the only issue—who is going to indicate that.” Defendant now contends the prosecutor excused Ms. Givan for racial reasons, thereby violating his right to equal protection under the federal Constitution. (Batson v.

Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712].)4 In order to establish a prima facie case of discriminatory motive, “the defendant first must show that he is a member of a cognizable racial group, [citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race.” (Batson v.

Kentucky, supra, 476 U.S. at p. 96 [90 L.Ed.2d at p. 87].) Next, the defendant must show that the totality of the relevant evidence demonstrates the prosecutor was exercising peremptory challenges to exclude venire persons on account of their race. “This combination of factors in the empaneling of the petit jury . . . raises the necessary inference of purposeful discrimination.” (Ibid. [90 L.Ed.2d at p. 88].) “Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.” (Id. at p. 97 [90 L.Ed.2d at p. 88]; cf.

Wheeler, supra, 22 Cal. 3d at pp. 280-282 [adopting this same procedure].) There is no doubt Blacks constitute a cognizable racial group for the purposes of our analysis. (See generally, Batson v. Kentucky, supra, 476 U.S. 79; Wheeler, supra, 22 Cal.3d at p. 280, fn. 26.) However, defendant did not establish a prima facie case of purposeful discrimination or systematic exclusion solely by his observation that one prospective juror peremptorily challenged by the prosecutor was Black.

He points to nothing else in the record, nor have we found anything, to support his claim that the prosecutor’s challenge to Givan was racially motivated. People v. Rousseau (1982) 129 Cal.App.3d 526 [179 Cal.Rptr. 892] is illustrative. In that case the prosecutor challenged the only two Blacks on the jury panel. Counsel objected by merely noting that “ ‘there were only two blacks on the whole panel, and they were both challenged by the district attorney.’ ” (Id. at p. 536.) The Rousseau court found counsel’s

summary reason, without more, wholly inadequate to shift the burden to the People to provide a racially neutral explanation for the challenge. (Id. at pp. 536-537; see also People v. Turner (1986) 42 Cal.3d 711, 719, fn. 4 [230 Cal.Rptr. 656, 726 P.2d 102].) As in Rousseau, defendant’s brief explanation of the basis for his objection (“the first Black prospective juror was challenged”), without more, was insufficient to establish a prima facie showing of systematic exclusion or purposeful discrimination. 5.

Denial of a Representative Jury Defendant contends that the exclusion of prospective jurors opposed to the death penalty deprived him of his Sixth Amendment right to a jury chosen from a representative cross-section of the community. We have repeatedly rejected this claim, observing that the exclusion of such jurors is constitutionally permissible. (See People v. Adcox (1988) 47 Cal.3d 207, 251 [253 Cal.Rptr. 55, 763 P.2d 906]; People v. Ghent (1987) 43 Cal.3d 739, 753-754 [239 Cal.Rptr. 82, 739 P.2d 1250]; Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758].) 6.

Ex Parte Communication With a Juror During voir dire, several venire persons were excused on the basis of anticipated financial hardship, but prospective juror Fascina stated she would not suffer any financial hardship by serving as a juror in defendant’s trial, estimated to last six weeks. Fascina was ultimately selected as one of the twelve jurors to try defendant’s case. The evidentiary phase of the guilt trial commenced on September 15, 1982.

On that same date, Phyllis Sandahl, the personnel administrator for Fascina’s employer, wrote to the court relating her company’s policy of paying its employees for a maximum of 10 days of jury service and requesting employees to seek excusal from service for any longer period. The trial judge responded to the employer by letter on September 16, 1982. He noted Fascina was a sitting juror in defendant’s case, described the seriousness of the charges, and expressed surprise at the company’s 10-day policy, saying he was informed the company would pay Fascina for the duration of the trial.

It was further stated in the letter that this new revelation came, “at a very bad time. In order to excuse her in the middle of the trial I would have to declare a mistrial and run the risk of freeing a man against whom a large amount of evidence has already been presented.

I am certain that such a result would not be desired by your company.” The court’s letter concluded: “Your re-consideration in this matter is vital.” Fascina’s employer wrote back the next day to inform the trial judge that Fascina would be allowed 20 paid days for jury service and an extended unpaid leave of absence that would not affect her position with the company. On September 22, 1982, the jury returned its verdicts of guilt. The trial judge then summoned Fascina, who had served as foreperson of the jury, over for a side-bar discussion.

He told her he understood she was not being paid for her service, and asked her if the situation was causing her undue hardship. She replied in the negative. He also asked her if she wished to be relieved; she replied she had come this far and felt it was her duty to continue serving on the jury. Neither the prosecutor nor defense counsel was a party to this conversation, nor had they been notified of the trial judge’s letter to Fascina’s employer. Defendant first argues we can infer from the dates on the trial judge’s letter and the letters from Fascina’s employer that the judge’s letter was hand carried.

From that he urges Fascina thus “may well have” read the letter, with its arguably misleading statements that the employer’s revelation came at a “bad time,” that a “large amount” of evidence had been produced, and that to excuse Fascina would “risk” freeing a dangerous man. This information, defendant argues, could have signaled to Fascina that the trial judge believed defendant was guilty, thereby prejudicing Fascina against defendant. Although the record does not unequivocally establish whether Fascina in fact read the trial judge’s letter during trial, it could certainly support such an inference.

Phyllis Sandahl, the personnel administrator for Fascina’s employer, filed an affidavit in which she stated it “would have been my normal practice to show” the trial judge’s letter to Fascina, and she added, “I believe I showed her the letter at that time and that she read it.” Furthermore, Fascina’s testimony at the hearing to settle the record provides additional evidence from which we may conclude she read the letter. She answered in the affirmative when asked if she had “occasion” to read the letter.

When she was then asked whether she had read the letter before or after her side-bar conversation with the judge, she replied, “I would think it was before, but I won’t swear to it, because I don’t know, I don’t remember.” Even assuming Fascina read the letter on the day it was written, we conclude no prejudice resulted. While the trial judge may have exaggerated the amount of evidence which, by that point, had been introduced at trial, the ultimate evidence of defendant’s guilt was overwhelming—including fingerprint evidence and his confession.

Moreover, it must have been fairly obvious to Fascina that the possibility of her being dismissed from the case came at a “bad time, since all concerned had already come through a lengthy voir dire process. Finally, defendant overstates the “ominous tone” of the trial judge’s letter; Fascina was already aware of the seriousness of the capital murder and related charges which defendant faced. In short, assuming Fascina read the letter prior to or at the start of trial, under the facts and circumstances she could not have been biased or prejudiced against defendant as a result thereof.

Defendant also argues that the trial judge’s ex parte side-bar communication with Fascina requires reversal of all his convictions, claiming the communication violated his constitutional rights to the effective assistance of counsel and to be present at all critical stages of his trial. It is well settled that the trial court should not entertain, let alone initiate, communications with individual jurors except in open court, with prior notification to counsel. (Paulson v.

Superior Court (1962) 58 Cal.2d 1, 7 [22 Cal.Rptr. 649, 372 P.2d 641].) “This rule is based on the precept that a defendant should be afforded an adequate opportunity to evaluate the propriety of a proposed judicial response in order to pose an objection or suggest a different reply more favorable to the defendant’s case. [Citations.]” (People v.

Garcia (1984) 160 Cal.App.3d 82, 88 [206 Cal.Rptr. 468].) While the rule against ex parte communications with jurors is based on a defendant’s constitutional right to personal presence at all critical stages of his trial and on his right to counsel, “[t]here is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.

The . . . conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice.” (Rushen v.

Spain (1983) 464 U.S. 114, 118-119 [78 L.Ed.2d 267, 273, 104 S.Ct. 453], italics in original, fn. omitted [per curiam opn.].) Although such communications violate a defendant’s right to be present, and represented by counsel, at all critical stages of his trial, and thus constitute federal constitutional error, reversal is not required where the error can be demonstrated harmless beyond a reasonable doubt. (Rushen v. Spain, supra, at pp. 117-120 [78 L.Ed.2d at pp. 272-274]; People v. Hogan (1982) 31 Cal.3d 815, 850 [183 Cal.Rptr. 817, 647 P.2d 93]; see Chapman v.

California (1967) 386 U.S. 18, 20-21 [17 L.Ed.2d 705, 708-709, 87 S.Ct. 824, 24 A.L.R.3d 1065].) Such was the case here. The record and settled statement reflect that Fascina advised the court her continued service on the jury would not cause her any financial hardship. She confirmed that she was never pressured to remain on the jury, and that her decision to continue serving was entirely her own. We conclude that although it was improper for the trial judge to communicate with Fascina without the knowledge of defense counsel (cf. People v.

Belmontes (1988) 45 Cal.3d 744, 815-816 [248 L.Ed.2d 126, 755 P.2d 310]), the error was harmless beyond a reasonable doubt. 7. Corpus Delicti Defendant next argues that his convictions for attempted robbery, rape, and burglary, as well as the three special circumstances based on those felonies, must be reversed because the evidence adduced at trial, exclusive of his extrajudicial statements, failed to establish the corpus delicti of those crimes.

In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. (People v. Towler (1982) 31 Cal.3d 105, 115 [181 Cal.Rptr. 391, 641 P.2d 1253]; People v. Mehaffey (1948) 32 Cal.2d 535, 545 [197 P.2d 12].) The elements of the corpus delicti are (1) the injury, loss or harm, and (2) the criminal agency that has caused the injury, loss or harm. (Jones v.

Superior Court (1979) 96 Cal.App.3d 390, 393 [157 Cal.Rptr. 809].) “The independent proof may be by circumstantial evidence [citation], and it need not be beyond a reasonable doubt. A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient. [Citations.]” (People v. Alcala (1984) 36 Cal.3d 604, 624-625 [205 Cal.Rptr. 775, 685 P.2d 1126].) It is not necessary for the independent evidence to establish that the defendant was the perpetrator. (People v.

Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]; Jones, supra, at p. 393.) The corpus delicti rule applies to felony-murder special-circumstance allegations. (People v. Robbins (1988) 45 Cal.3d 867, 885 [248 Cal.Rptr. 172, 755 P.2d 355]; People v. Mattson (1984) 37 Cal.3d 85, 93 [207 Cal.Rptr. 278, 688 P.2d 887]; compare People v. Morales (1989) 48 Cal.3d 527, 559 [257 Cal.Rptr. 64, 770 P.2d 244] [inapplicable to nonfelony-based special circumstances]; People v.

Mattson (1990) 50 Cal.3d 826, 874 [268 Cal.Rptr. 802, 789 P.2d 983].) Defendant first argues the People failed to establish the corpus delicti of attempted robbery before admission of defendant’s confession. However, defense counsel never lodged an objection on this ground, instead confining his objection to a Miranda claim. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) By failing to object, defendant cannot now complain the evidence was improperly admitted. (People v.

Mitchell (1966) 239 Cal.App.2d 318, 323 [48 Cal.Rptr. 533].) It may well be that “proof of the corpus delicti was available and at hand during the trial, but that in the absence of [a] specific objection calling for such proof it was omitted.” (Ibid.) Defendant obliquely admits the absence of an objection, but contends his trial counsel rendered ineffective assistance because there could be no reasonable tactical reason for declining to object. “It is established that reversal for ineffective assistance of counsel is generally unwarranted unless the defendant shows counsel’s alleged failings prejudiced his defense. (Strickland v.

Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674, 104 S.Ct. 2052]; People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]; People v. Fosselman (1983) 33 Cal.3d 572, 583-584 [189 Cal.Rptr. 855, 659 P.2d 1144].)” (People v. Williams (1988) 44 Cal.3d 1127, 1153 [245 Cal.Rptr. 635, 751 P.2d 901], italics in original.) Since the record provides no clue as to why counsel failed to object, we would normally affirm on appeal and require defendant to proceed via habeas corpus. (People v.

Pope, supra, 23 Cal.3d at p. 426.) Although this rule does not apply if “there simply could be no satisfactory explanation” for the omission (ibid.), it may well be that counsel was aware of additional evidence of attempted robbery aside from defendant’s own statements, and did not wish to invite its presentation. (Mitchell, supra, 239 Cal.App.2d at p. 323.) On this record, then, we cannot conclude defense counsel was ineffective for failing to object. In any event, the remaining valid special circumstances (post) preclude a finding of prejudice.

We need not rely on the failure to object to dispose of defendant’s further corpus delicti arguments. The partially clothed condition of the victim’s body, the evidence of extreme force and violence, and the presence of semen on the external genital area of the victim, together supported a reasonable inference that a rape had occurred. (People v.

Morales, supra, 48 Cal.3d at p. 553.) Defendant’s assertion that there was insufficient evidence of penetration is misplaced; there need only be slight evidence of that element of rape, and such may be inferred from the above-mentioned circumstantial evidence. (Alcala, supra, 36 Cal.3d at pp. 624-625.) Moreover, the felony-murder-rape special circumstance could be found true based on proof of an attempted rape. (§ 190.2, subd. (a)(17)(iii).) Similarly, we conclude the evidence established the corpus delicti of the crime of burglary.

There is no disputing that there was evidence of a forcible rape inside the residence. Although defendant complains there was no independent evidence to establish that he entered without consent (People v. Gauze (1975) 15 Cal.3d 709, 713-714 [125 Cal.Rptr. 773, 542 P.2d 1365]), this much may be inferred (so as to satisfy the corpus delicti rule) from the circumstantial evidence adduced at trial. 8. Circumstantial Evidence Instruction Defendant next argues that the trial court erred by declining to instruct the jury with CALJIC No. 2.01.

That instruction concerns the proper consideration of circumstantial evidence. However, the obligation to give CALJIC No. 2.01 arises only in those cases where circumstantial evidence is “ ‘substantially relied on for proof of guilt.’ ” (People v. Wiley (1976) 18 Cal.3d 162, 174 [133 Cal.Rptr. 135, 554 P.2d 881], quoting People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1].) “The reason for this rule is found in the danger of misleading and confusing the jury where the inculpatory evidence consists wholly or largely of direct evidence of the crime. [Citation.]” (People v.

Jerman (1946) 29 Cal.2d 189, 197 [173 P.2d 805].) “Extrajudicial admissions, although hearsay, are not the type of indirect evidence as to which the instructions on circumstantial evidence are applicable. [Citation.]” (Wiley, supra, at p. 174.) Defendant contends the People relied largely on circumstantial evidence to prove the rape and burglary charges.

However, it is apparent the People placed primary reliance on the following statements defendant made to the police during the postarrest interrogation: (1) that he had forcible intercourse with the victim; (2) that she was alive during the rape; and (3) that he forced his way into the victim’s home with the intent to take her money. Given this state of the evidence, the trial court did not err in denying defendant’s request for CALJIC No. 2.01. Defendant concedes his postarrest inculpatory statements were a large part of the People’s case.

However, he characterizes his statements as contradictory, requiring circumstantial evidence for corroboration. He argues such corroboration was critical to the People’s case, and from that concludes that the People “substantially relied” on circumstantial evidence, thereby requiring that the instruction be given. This reasoning has been found suspect. (See People v.

Williams (1984) 162 Cal.App.3d 869, 874-876 [208 Cal.Rptr. 790] [circumstantial corroborating evidence insufficient to trigger a duty to give CALJIC No. 2.01].) In any case, the record of the confession does not support defendant’s claim that he made contradictory statements. Rather, it reveals that defendant unequivocally admitted commission of the rape, the forcible entry, and his larcenous intent.

Since the People did not “substantially rely” on circumstantial evidence to prove defendant guilty of rape and burglary, it follows that the trial court correctly denied defendant’s request that the jury be charged with CALJIC No. 2.01. 9. Failure to Advise Defendant of the Consequences of the Stipulation Concerning the Victim’s Age and His Own Parolee Status During defendant’s trial, counsel agreed to stipulate that the victim was 76 years old at the time of her murder, and that defendant was on parole for armed robbery at that time.

Defendant now contends his convictions must be reversed because he was not advised of the consequences of the stipulations, nor was he asked to join in them. He relies on People v. Hall (1980) 28 Cal.3d 143 [167 Cal.

Rptr 844, 616 P.2d 826], wherein this court indicated, in dictum, that “trial courts in the future would be well-advised to assure the record adequately reflects the fact that a defendant is advised of any constitutional rights waived when stipulating to the status of an ex-felon.” (Id. at p. 157, fn. 9.) Even if we were to assume that this dictum in Hall should properly be extended to the stipulations at issue here, reversal would not be warranted. In People v.

Wright (1987) 43 Cal.3d 487 [233 Cal.Rptr. 69, 729 P.2d 260], we held that when a defendant’s submission or stipulation is not tantamount to a guilty plea, “[a] trial court’s failure to comply with [a] judicial rule of criminal procedure [like that articulated in Hall\ requires reversal only if it is reasonably probable a result more favorable to the defendant would have been reached if he had been properly advised. [Citations.]” (43 Cal.3d at p. 495, fn. omitted.) In this case, the factual stipulations appear routine; there is nothing in the record to suggest the People would have had any difficulty proving the victim’s age, or defendant’s parolee status.

Both facts are of a type which are easily verifiable by resort to standard sources. Moreover, we fail to perceive how there could have been any prejudice, since none of the related enhancements actually added an additional term to defendant’s overall sentence, but merely made him probation ineligible or prohibited a suspended sentence. Inasmuch as the special circumstance allegations were sustained, the minimum sentence defendant could have received was life imprisonment without the possibility of parole; the possibility of probation or a suspended sentence was nonexistent. 10.

Dissatisfaction With Counsel At the July 13, 1981, trial setting conference, defendant first broached the subject of his dissatisfaction with defense counsel. Noting that the book he was reading (Behind Charles Manson) advised that “the worst thing to get” was an “overworked PD,” defendant asserted that he was not getting along with counsel and that he wanted “at least a state appointed attorney.” Although defendant did not make a clear and unequivocal request to proceed in propria persona, he made this statement: “And I feel like this—like me and he can’t get along.

If I got to go down, let me go down by myself because I really don’t need no overworked PD trying to help me fight my case when he not [s/c] going to do nothing for me.” Counsel responded that he had been getting along with defendant until that morning, when counsel told defendant he was too busy to make defendant a copy of the charges against him for his own use. In addition, counsel refused to exchange some money for defendant, saying that was not one of his functions.

The matter ended when the trial court advised defendant that his attorney was competent and experienced, and that he stood a better chance of acquittal with counsel’s representation than without it. Defendant next expressed his dissatisfaction with counsel over a year later, on August 16, 1982. He complained at that time about counsel’s suggestion that he consider pleading guilty, and alleged that counsel was advising him to plead guilty because he wanted to avoid looking silly at trial, thereby damaging his professional reputation.

To punctuate his claim that counsel was not competent, defendant noted he had done some checking and discovered that defense counsel “is just a deputy public defender from the public defender’s office, and it states, you know, in law on the special circumstances case you’re entitled by law to two attorneys and right now I’m facing the special circumstances case and I ain’t even got one lawyer, not even one and it says by law you’re entitled to two . . . .” The trial court thereupon informed defendant that his counsel was indeed an attorney.

When the court next tried to determine whether defendant had discussed these matters with counsel, defendant began discussing another subject. The trial court interjected: “Wait a minute . . . . []]] You have to tell me certain things now that I need to know in order for me to make a decision as to whether to relieve [counsel] . . . and let you go pro per.” Defense counsel reported he had told defendant that the evidence of guilt was very strong and that a guilty plea might save his life.

He added that he told defendant a strong argument at the guilt phase would not be presented in order to preserve counsel’s credibility with the jury at the penalty phase. The trial court informed defendant his attorney knew much more about the case than anyone else, and opined that counsel’s initial suggestion that he plead guilty was not a face-saving maneuver, but rather tactical advice based on an appraisal of the strength of the People’s evidence.

In the course of this discussion, the trial court commented that counsel “is a person who has tried several cases similar to this before, cases involving the possibility of a death penalty in a murder trial.” a. Faretta Error Defendant first claims his right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] was violated. He argues that the trial court’s statement concerning counsel’s experience in capital cases was false, thereby preventing him from making an informed decision whether to assume the responsibility of his own defense.

To support his claim that the court’s comment was a misrepresentation, he directs our attention to an April 6, 1982, pretrial hearing at which counsel told the trial judge, outside the earshot of defendant and the jury, that defendant’s case was the first special-circumstances murder case he had ever tried. (See Discussion, ante, at p. 390.) Even assuming the accuracy of defendant’s factual premises, no Faretta error is established. “[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” (People v.

Windham (1977) 19 Cal.3d 121, 127-128 [137 Cal.Rptr. 8, 560 P.2d 1187], italics added; see People v. Bloom (1989) 48 Cal.3d 1194, 1219-1220 [259 Cal.Rptr. 669, 774 P.2d 698].) Here, defendant failed to clearly indicate at the August 16, 1982, hearing that he desired to have counsel relieved and to proceed pro se. The record, read as a whole, reveals that defendant was unhappy for two reasons: because he believed counsel was not a “real” attorney, and because at one point counsel advised him to consider pleading guilty.

The only possible reference in the record to defendant’s desire to proceed without an attorney—a tangential one at that—came at the very early stages when, at the trial setting conference a year earlier, defendant commented: “If I got to go down, let me go down by myself . . . .” And while the trial court mentioned more than a year later, on August 16, 1982, that it was trying to determine whether to relieve counsel and let defendant proceed in propria persona, that comment was made in response to a Marsden motion (People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]; see Discussion post, at p. 410), and was directed to defendant’s apparent dissatisfaction with defense counsel on that later date. On this record we conclude that the trial court did not violate defendant’s constitutional right to self-representation under Faretta v. California, supra, 422 U.S. 806, since defendant never made a timely, unequivocal assertion of that right. b.

Marsden Error Defendant also contends that these same alleged misrepresentations by the trial court regarding counsel’s previous experience with capital trial work demonstrate that the court failed to conduct a proper Marsden hearing. In Marsden, supra, 2 Cal.3d 118, we held that the right of an accused to the effective assistance of counsel may, under appropriate circumstances, include the right to have present counsel discharged and substitute counsel appointed.

In order to thoughtfully exercise its discretion whether to discharge present counsel, a trial court is required to listen to a defendant’s complaints about his attorney. (Id. at pp. 123-124.) “[A] judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” (Id. at p. 124.) It is apparent here that the alleged misrepresentations did not implicate defendant’s Marsden rights.

The record reveals that the trial court patiently listened to defendant’s complaints about counsel, asked counsel for his side of the story, and resolved the matter—we might add, to defendant’s apparent satisfaction—by explaining that public defenders were indeed “real” attorneys, and that counsel’s suggestion that defendant should consider pleading guilty was not a face-saving measure, but an honest appraisal of the strength of the People’s case.

The record further reflects that defendant never directly requested appointment of substitute counsel, but instead merely expressed some unhappiness with certain aspects of counsel’s handling of his case. On this record no Marsden error is established. c. Keenan Error Defendant next urges reversal is required because the trial court failed to properly consider appointment of a second attorney to assist defense counsel. Although we have held that appointment of a second attorney in a capital case is authorized under

section 987.9 (see Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108]), the record in this case shows defendant never actually moved for appointment of such counsel. Instead, we interpret defendant’s reference to the possibility of second counsel as an attempt to underscore his argument that since he was merely represented by an “overworked PD,” he had not been afforded the competent services of a single attorney, let alone two.

We noted in Keenan, supra, 31 Cal.3d 424, that “in assessing the need for [a second] attorney the court must focus on the complexity of the issues involved, keeping in mind the critical role that pretrial preparation may play in the eventual outcome of the prosecution.” (Id. at p. 432.) Defendant made no showing of the complexity of issues involved here. Indeed, the mention of “second counsel” first surfaced on August 16, 1982, the day on which counsel announced his readiness for trial. Voir dire commenced only two days later.

We deem it unlikely a sufficient showing of the need for second counsel could have been made on this record. Even had a timely and proper request for appointment of second counsel been tendered, on this record the trial court would not have abused its discretion in denying it. 11. Judicial Hostility Defendant next identifies 11 instances in which he claims the trial court’s comments were sarcastic and disparaging of defense counsel. The instances range from comments during voir dire to comments made when the court ruled upon objections to closing argument at the penalty phase.

After examining the record, we are in full agreement with the People that, read in context, the judge’s comments do not betray a bias against defense counsel. Indeed, in ruling on defendant’s pretrial requests to discharge defense counsel, the trial court voiced considerable praise for counsel’s abilities and performance. In any case, there were no timely objections to any of the complained-of comments such as would have enabled the court to dispel any misunderstanding with appropriate admonitions. (People v. Ramos (1982) 30 Cal.3d 553, 576 [180 Cal.Rptr. 266, 639 P.2d 908]; People v.

Lanphear (1980) 26 Cal.3d 814, 836 [163 Cal.Rptr. 601, 608 P.2d 689].) Accordingly, any asserted error is waived on appeal. (Ibid.) 12. Ineffective Assistance of Counsel Defendant argues that he was deprived of the effective assistance of counsel in various further particulars. We shall address each of defendant’s claims seriatim. a. Misrepresentation of Counsel’s Skill and Experience Defendant first argues that counsel’s silence in the face of the trial court’s erroneous assertion that he had previously tried a death penalty case constituted ineffective assistance.

Defendant speculates that counsel’s failure to correct the trial court’s representations was calculated to preserve a workable, if not amicable, attorney-client relationship.

However, he reasons that defense counsel’s failure to reveal the truth about his lack of capital trial experience prejudiced him in four possible ways; (1) he was “talked into” waiving his Faretta rights; (2) he was denied the right to make an informed decision whether to waive his speedy trial rights; (3) he was similarly denied the right to make an informed decision whether or not to testify; and (4) he would have participated more in trial strategy had he known of counsel’s alleged inexperience.

As the People convincingly argue, however, defendant has not demonstrated how the outcome of his trial would have been any different had counsel “corrected” the trial court’s misstatement. Although defendant speculates the trial outcome may have been different because he would have taken a more active role in the formation and implementation of the myriad tactical decisions he left to counsel, his argument is unavailing for two reasons. First, trial tactics are ordinarily within the sound discretion of trial counsel. (See, e.g., People v.

Haylock (1980) 113 Cal.App.3d 146, 151 [169 Cal.Rptr. 658].) Second, defendant’s hindsight attacks upon counsel’s performance are too general to support a conclusion that counsel’s omissions prejudiced the verdicts. For example, defendant does not demonstrate how he would have been better off had he not waived his speedy trial rights. In light of the overwhelming evidence of guilt, we conclude that this first ineffectiveness-of-counsel argument is wholly without merit. b. Second Counsel Defendant asserts counsel should have sought the appointment of second counsel because of his relative lack of experience.

However, the circumstance that counsel had not yet tried a death penalty case does not inescapably lead to a conclusion that appointment of second counsel was warranted here, absent some evidence that he was so inexperienced he could not provide effective assistance. (See People v.

Gzikowski (1982) 32 Cal.3d 580 [186 Cal.Rptr. 339, 651 P.2d 1145] [after lead counsel was relieved, second counsel was too inexperienced to continue alone; the trial court abused its discretion by denying a continuance to allow second counsel to associate new lead counsel].) Lack of capital trial experience does not in and of itself establish incompetency. (See Smith v. Superior Court (1968) 68 Cal.2d 547, 552-553, fn. 1 [68 Cal.Rptr. 1, 440 P.2d 65].) Defendant has not demonstrated counsel’s ineffective performance or the requisite showing of prejudice with bald allegations of inexperience alone. c.

Compliance With Discovery Defendant next contends defense counsel’s questioning of Sergeant Gray at a January 18, 1982, hearing to determine compliance with a previous discovery order was inadequate because counsel merely asked general questions and did not memorialize for the record the particular documents turned over to the defense by the prosecution. But defendant wholly fails to explain how he was prejudiced by counsel’s alleged inadequacy at this hearing. d.

Exclusion of Family Members From Proceedings Defendant argues that counsel was ineffective for failing to object when the prosecutor successfully moved to exclude all potential witnesses, including defendant’s mother and uncle. He speculates that these excluded relatives could have assisted trial counsel by observing the demeanor of witnesses, by contributing insights into the probable thinking of jurors, and by lending moral support. In addition, he claims the appearance that his family cared for him and his fate might have impressed the jury to vote for life rather than death at the penalty phase.

Fundamentally, potential witnesses are subject to exclusion from the courtroom until called to testify. In any case, these asserted benefits are pure speculation. No grounds are shown for concluding that counsel’s “inaction” prejudiced the verdicts. e. Jury Selection Defendant launches a variety of arguments by which he seeks to demonstrate that counsel provided ineffective assistance during jury selection. First, he maintains counsel should have excluded more prospective jurors based on their answers to questions concerning the death penalty.

He focuses in particular on four jurors, all of whom eventually served on the jury. However, defendant relies on answers by these four jurors given during voir dire which are taken out of context. Read in context, all four jurors affirmed their willingness and ability to listen to the evidence and to follow the instructions as given by the judge. Defendant also attacks c

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