THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN BENSON, Defendant and Appellant, 52 Cal. 3d 754

Opinion MOSK, J. This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law {id., § 190 et seq.). On April 1, 1986, the District Attorney of San Luis Obispo County filed an information against defendant Richard Allen Benson. As subsequently amended, the information contained the following charges and allegations. Offenses and accompanying weapon-use allegations.

(1) On January 5, 1986, defendant committed a lewd or lascivious act with Stephanie Camargo, a child under the age of 14. (Pen. Code, § 288, subd. (a).)

(2) On the same date, he committed another such act with Stephanie. {Ibid.)

(3) On January 6 he committed yet another such act with Stephanie. {Ibid.)

(4) On January 5 he committed a lewd or lascivious act with Shawna Camargo, a child under the age of 14. {Ibid.)

(5) On the same date, he committed another such act with Shawna. {Ibid.)

(6) On January 6 he committed yet another such act with Shawna. {Ibid.)

(7) On January 5 he murdered Laura Camargo {id., § 187); he used a deadly and dangerous weapon {id., § 12022, subd. (b)).

(8) On the same date, he murdered Sterling Gonzales. {Id., § 187.)

(9) On January 6 he murdered Stephanie {ibid.)-, he used a deadly and dangerous weapon {id., § 12022, subd. (b)).

(10) On the same date, he murdered Shawna {id., § 187); he used a deadly and dangerous weapon {id., § 12022, subd. (b)).

(11) On the same date, he committed arson of an inhabited structure. {Id., § 451, subd. (b).)

(12) On January 7 he kidnapped Karen Stange {id., § 207, subd. (a)); he used a deadly and dangerous weapon {id., § 12022, subd. (b)). Special circumstance allegations.

(1) Defendant committed multiple murder. (Pen. Code, § 190.2, subd. (a)(3).)

(2) He intentionally killed a witness to a crime, viz., Stephanie Camargo. {Id., § 190.2, subd. (a)(10).)

(3) He intentionally killed a witness to a crime, viz., Shawna Camargo. {Ibid.)

(4) He committed felony murder based on a lewd or lascivious act with Stephanie. {Id., § 190.2, subd. (a)(17)(v).)

(5) He committed felony murder based on a lewd or lascivious act with Shawna. {Ibid.) “Prior offense” allegations.

(1) Previously, defendant had been convicted of, and had served a prison term for, two violent felonies (Pen. Code, §§ 667, subd. (b), 667.5, subd. (c)(6), 1203.066, subd. (a)(5)) involving a lewd or lascivious act with a child under the age of 14.

(2) Prior to the commission of the offenses charged, he had been convicted, on charges brought and tried separately, of a serious felony (id., § 667, subd. (a)), viz., kidnapping (id., § 207).

(3) Prior to the commission of the offenses charged, he had been convicted, on charges brought and tried separately, of two other serious felonies (id., § 667, subd. (a)), viz., kidnapping (id., § 207) and residential burglary (id., § 459). Defendant pleaded not guilty to the charges and denied the allegations. On his motion, the court changed venue from San Luis Obispo County to Santa Barbara County. Trial was by jury. Before opening statements, the parties stipulated to the severance of count 12, which charged the kidnapping of Karen Stange.

During the People’s case-in-chief, defendant withdrew his denial as to the “prior offense” allegations and admitted their truth. The jury returned verdicts finding defendant guilty as charged on the remaining counts, determined each of the murders to be of the first degree, and found all the weapon-use and special circumstance allegations true. The jury subsequently returned a verdict of death for the murders. On the People’s motion, the court dismissed count 12. It then entered judgment accordingly.

As we shall explain, we conclude that except as to the witness-killing special circumstances, the judgment must be affirmed. I. Facts A. Guilt Phase The evidence introduced at the guilt phase—which included parts of two confessions defendant made to the police and one he made to a police psychiatrist—establishes the following core of facts. On the evening of Saturday, January 4, 1986, Laura Camargo set out to visit Barbara Lopez and Katrina Flores. The three women were close friends.

Laura lived in Nipomo with her children, Stephanie Camargo, age four, Shawna Camargo, age three, and Sterling Gonzales, age twenty-three months, in a small, two-room shack that shared an unattached bathroom with another unit. Barbara and Katrina lived with their children in an apartment in Océano, which was about 10 miles away. Just before Thanksgiving of 1985, defendant had moved into the apartment; he was a jeweler by trade. Over the following weeks, he became acquainted with Laura and her children.

On the evening in question, Laura secured a baby-sitter to care for Stephanie, Shawna, and Sterling, and then obtained a ride to Océano. She socialized with Barbara, Katrina, and defendant. Before long, she decided to return home. Defendant arranged for a ride. Taking measures to conceal his destination from Barbara and Katrina, he accompanied Laura to Nipomo, carrying with him a heavy briefcase. As he later admitted, he “went out there with the intention of doing something to the kids.” Around midnight, defendant and Laura arrived at the shack, and the baby-sitter departed.

Shortly thereafter, defendant took up a claw hammer he found in the shack, apparently positioned himself behind Laura, and repeatedly and violently struck her in the head, as he subsequently acknowledged, “to take her out.” Laura fell; defendant thought she was dead; she gurgled loudly; he stuffed socks into and over her mouth; she soon expired. From that point on, he took pains to make it appear to Laura’s neighbors that no one was in the shack. He proceeded to sexually assault Stephanie and Shawna. Throughout Sunday, January 5, defendant continued to molest the two girls.

A number of times that day, neighbors came by the shack and the common unattached bathroom. More than once, Sterling coughed and cried; more than once, defendant quieted the child. After nightfall defendant—in words he later used—“realized . . . that it was inevitable”: in order to avoid discovery, he decided to kill Sterling. Although he met with resistance from the child as he attempted to smother and strangle him to death, he finally succeeded.

With Laura and Sterling dead, he found himself in what he later described as “a molester’s type of heaven”: in the paraphrase of the police psychiatrist to whom he confessed, “it was like being in heaven, and being completely able to get what he wanted with no interference.” As Monday, January 6, approached, defendant continued to molest Stephanie and Shawna. At the same time, he began to consider whether he should kill the girls.

As he later described his thoughts: “I knew it couldn’t be put off and uh, in the state of mind that I was in at that time, the best thing, no I can’t say it like that, the only option I had was to go ahead and finish the job and uh, try to keep from being implicated in it, okay. Uh, I had trouble bringing myself to do it. . . . [A]nd uh, you know, three, four times I set them up for it and I, I just couldn’t do it . . . .” As the sky began to lighten, however, defendant found himself able to carry through.

He took up a heavy steel jeweler’s mandrel which he carried in his briefcase; he repeatedly struck Stephanie and Shawna in the head; seeing that death did not come immediately, he seized the claw hammer and used the instrument to dispatch the children. As he subsequently admitted, he killed Stephanie and Shawna, and Laura and Sterling before them, “to protect my freedom.” To cover his crimes, he proceeded to start a fire in the shack. About 8 a.m., just before the flames began to rage, he fled. B. Penalty Phase The People presented a case in aggravation.

They set out to establish the circumstances of the crimes and the character of the criminal. To that end, they introduced, virtually in their entirety, defendant’s two confessions to the police. The statements provided many details about the incidents in question. For example, to start the fire defendant used materials he carried in his briefcase: the items included pornographic magazines; they also included pages of an album with sexually suggestive photographs of men and women—with the faces of girls pasted over the faces of the women. The statements contained several expressions of remorse.

But they also contained what appear to have been lies to minimize culpability. For instance, defendant portrayed himself as “Uncle Richard”: he claimed that Laura “sold” Stephanie and Shawna to him in exchange for his promise to pay her $150, and had indeed pressured him into agreeing to the bargain; she initiated, and participated in, the sexual activity; he was gentle and caused no hurt; the children enjoyed the “play” and indeed took an active and enthusiastic role. The People also sought to prove that on Tuesday, January 7, 1986, the day after he fled from Laura’s shack, defendant kidnapped Karen Stange (Pen.

Code, § 207, subd. (a)), through the use or threat of force or violence. Stange testified to the incident.

She stated, inter alia, that on the afternoon of January 7, she and defendant met at the home of a mutual friend in Océano; he asked her for a ride to Los Osos, she refused but offered to take him as far as San Luis Obispo, and he accepted; after they arrived at San Luis Obispo, he put a knife to her throat and displayed a needle whose prick he said would be fatal, and ordered her to drive to Los Osos; on the way, they stopped at a liquor store, and he instructed her to purchase pornographic magazines that “showed [a] progression from childhood to adult[hood]”; after they reached Los Osos, she managed to escape.

Finally, the People set out to prove that defendant had suffered certain prior felony convictions, and to establish that his conduct underlying such convictions involved the use or threat of force or violence. They offered stipulations as to the convictions, and the testimony of witnesses, including the victims, as to the underlying conduct. The tale told is as follows. In March 1972 defendant was convicted of committing a lewd or lascivious act with Joanna M., a child under the age of 14. (Pen. Code, § 288.) At the time of the offense, Joanna was nine years old.

Defendant made a forcible sexual attack on the child. In January 1976 defendant was convicted of kidnapping Lisa W. (Pen. Code, § 207.) At the time of the offense, Lisa was eight or nine years old. Defendant forcibly assaulted the child. Also in January 1976, defendant was convicted of committing a lewd or lascivious act with Leslie H., a child under the age of 14. (Pen. Code, § 288.) At the time of the offense, Leslie was three years old. Defendant was acquainted with Leslie and her family. He made a forcible sexual attack on the child. In December 1980 defendant was convicted of kidnapping Sara M. (Pen.

Code, § 207) and of committing residential burglary (id., § 459)—spe-cifically, entering Sara’s home in the nighttime with the intent to commit the kidnapping. At the time of the offenses, Sara was four years old. Defendant was acquainted with Sara and her family. He threatened the child with a forcible sexual attack. Defendant presented a case in mitigation. He introduced evidence relating to his background and character. The information came from expert witnesses as well as lay, including defendant’s family, friends, neighbors, teachers, and others.

Defendant was born on April 18, 1947, the fourth child in a family of six boys and one girl. His father was an alcoholic; his mother also was an alcoholic, as well as a drug addict and prostitute. At the hands of his parents and a stepmother, he suffered neglect and abuse. Early on, he began to have run-ins with the law, abuse alcohol and drugs, and engage in pedophilia. From childhood into adulthood, he lived mainly in institutions of various sorts: foster homes, group homes, juvenile hall, the California Youth Authority, jail, and prison. Defendant’s sister and two of his brothers testified on his behalf.

Experts offered opinion to the effect that defendant was a drug-dependent pedophile with an antisocial personality disorder, and that he may have been experiencing mental or emotional disturbance or diminished capacity at the time of the offenses in question as a result of his pedophilia and the ingestion of drugs. On direct examination, defendant elicited testimony suggesting he would not be dangerous in prison. On cross-examination, the People elicited testimony suggesting the opposite.

In addition to evidence relating to his background and character, defendant also introduced evidence concerning the nature of capital punishment. Specifically, he played a videotape of a brief segment of a television series called “Two on the Town,” which dealt with San Quentin Prison and the infliction of the penalty of death. In rebuttal, the People called one Mike Madding. Madding was the Public Information Officer at San Quentin Prison at the time the “San Quentin” segment was produced, and was interviewed on camera during the piece.

He testified as to the nature of the penalty of life imprisonment without possibility of parole. II. Guilt Issues Defendant raises two claims bearing on the question of guilt. As will appear, neither is meritorious. A. Denial of Motion to Suppress Confessions to Police After the jury was sworn and before the People made their opening statement, defendant moved to suppress his two confessions to the police. He had given those statements during interviews conducted on January 9 and 13, 1986, by officers including Detective Steven A.

Bolts of the San Luis Obispo Sheriff’s Department and Investigator Larry Wayne Hobson of the San Luis Obispo District Attorney’s Office. As relevant here, the ground of the motion was that the confessions were involuntary under the due process clauses of the Fourteenth Amendment to the United States Constitution and

article I, sections 7 and 15, of the California Constitution (hereafter sometimes

article I, sections 7 and 15). The argument in support was that the statements were assertedly obtained by what was claimed to be a promise of benefit, viz., a comment by Detective Bolts, “There’s no death penalty here.” Imposing on the People the burden of proving that defendant’s confessions were voluntary beyond a reasonable doubt in conformity with the decision in People v. Jimenez (1978) 21 Cal.3d 595, 602-609 [147 Cal.Rptr. 172, 580 P.2d 672], the court held a hearing on the motion outside the presence of the jury.

The People presented evidence of the interviews: they introduced fourteen 60-minute audiotape cassette recordings as well as a 227-page transcript of their contents; they also called Detective Bolts to the witness stand. Defendant too presented evidence of the interviews: he himself took the stand. After presenting argument, the parties submitted the matter. The next day, the court made its ruling.

Determining, in substance, that there was no coercive police activity and that Detective Bolt’s comment did not constitute a promise of benefit and in any event did not operate as an inducement, it concluded that the confessions were voluntary beyond a reasonable doubt. It accordingly denied the motion to suppress the statements and, as noted, subsequently admitted portions at the guilt phase and virtually all at the penalty phase.

As relevant here, its findings in support of the ruling were as follows. “Now, let me just touch briefly on the factual setting that the Court is dealing with. [Defendant was advised of, and waived, his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], prior to each of the interviews.] By way of background, I think it is appropriate to note for the record that in my opinion we are dealing with Mr. Benson a defendant who is very articulate, very well-spoken, seems to the Court having read this transcript, that he’s an intelligent young man. “Secondly, by Mr.

Benson’s own account, he was experienced in the criminal justice system. . . . “It was also brought to the Court’s attention yesterday that Mr. Benson was aware that he was a suspect in this, in the Nipomo homicide[s] very early on . . . . So he knew that going into the interview setting that we are focusing on. “Now, let’s talk about the interview itself. If I understand correctly, there were some one and a half to two hours of interview between Mr. Benson, Detective Bolts, and Detective Hobson in which there were no recordings made. And then the tape recorder was started, activated.

And there was another time frame, I guess, of an hour or perhaps even more on that tape before the sequence came up that we are focusing on. Sequence being this, quote, ‘There’s no death penalty here,’ close quote. “The record should reflect that at least on the portion of the record, the transcript that I have of the discussion between Mr. Benson and the police officers up to that point of the statement by Detective Bolts, there was—oh, I guess for want of a better word—there was a lack of candor in Mr.

Benson’s responses and some evasiveness to the detectives—responses to the detectives’ questions about the kidnapping. “And then the questioning shifts from the kidnapping area to the investigation of the Nipomo murders .... “Yes. The focus of the questions now has shifted, and the detectives by way of their questions to Mr. Benson have pointed out perhaps the obvious; that is, that his responses are not coinciding with responses made by other people who have given statements already .... “Then there is this colloquy between the detectives and Mr.

Benson about, ‘Your friends, and they are kind of sucked into this situation now. And what’s going to happen to them, they’re stuck in the middle here.’ “Mr. Benson says, quote, ‘Yeah, they don’t deserve it.’ Close quote. “There is a statement by Detective Bolts where he’s talking about things are different than they were in State Prison where people might lie for you. “Then Detective Hobson says this, ‘Richard, tell us what happened. We want to hear your side of the story.’ “And Mr. Benson says, T don’t know, man. It’s horrible, and I don’t even think I’m capable to do something like that.’ Close quote. “Okay.

Now, to me, having heard these tapes of this portion of the interview and having reread my transcript, to me, it seems fairly clear that Mr. Benson was focusing on the horror of the situation. I think he said yesterday, and I think it shows up later in the transcript here that he had feelings of real, real strong mental feelings here of why this all happened. And I see—I think reviewing this, that those were motivating his thinking, those feelings of horror and shame and guilt, motivating his thinking at this time. “Okay.

Now, we go on and there’s some further questioning, and then Detective Hobson says, ‘What’s going through your head right now, Richard?’ “Mr. Benson says, T don’t think you’d believe it.’ “ ‘Detective Hobson: I’d like to believe it. Try me. We sat here with you all this time. That’s why we’re still here with you, because we care also. “ ‘Detective Bolts: We’re caring, feeling human beings. We have compassion for a lot of things. We’ve seen a lot worse, believe me. This is not the end of the line by any means. “ ‘Detective Hobson: Richard, if we didn’t care, we wouldn’t be sitting here. “ ‘Mr.

Benson: I don’t see—I don’t see how you can say it’s not the end of the line. “‘Detective Bolts: It’s not. “‘Mr. Benson: It is for me. “‘Detective Bolts: Why? There is no death penalty here.’ “Okay. “Now, immediately thereafter, immediately after Detective Bolts says, ‘Why? There’s no death penalty here,’ Mr. Benson’s comment is, ‘That doesn’t matter.’ “And then Detective Hobson right away says, ‘Wait a minute. Before we talk about that—’and another version of the transcript said, ‘Before we talk about death penalty, we don’t know what happened in that house.’ “Okay. Now, those are three important statements.

Detective Bolts, ‘Why? There’s no death penalty here.’ “Mr. Benson, ‘That doesn’t matter.’ “Detective Hobson, ‘Wait a minute. If—before we talk about that, we don’t know what happened in that house.’ Okay. “Now, what happens then, did Mr. Benson immediately rely upon the statement of Detective Bolts? Did he totally discount what Detective Hob-son said thereafter? ‘Wait a minute. Before we talk about that,’ or, ‘Before we talk about death penalty, we don’t know what happened in that house.’ Did he discount that and open up immediately and start sharing his—[baring] his [soul] about this? “No way.

Go on for a little bit. He says, “ ‘Detective Hobson: Laura had a temper, we know that. Maybe you were put into a position where you had to make a choice. “‘Mr. Benson: It doesn’t matter what choices I had. “‘Detective Hobson: Sure, it does. “ ‘Mr. Benson: No, because nothing justifies the outcome.’ “Okay. This is tied in exactly with what we were talking about before that statement was even made. “‘What’s in your mind?’ “ ‘Richard: I don’t think you’d even believe it. I don’t know, man. It’s horrible. I don’t even think I’m capable of doing something like that.’ That’s in his mind now.

He’s thinking about the horror of it, and he says to the officer, ‘It doesn’t matter what choices I had because nothing justifies the outcome.’ Okay. “Then Detective Hobson says, ‘Well, why don’t you tell us and let us decide that.’ “And Mr. Benson says, ‘The thing of it is I can’t.’ “Detective Benson—or Detective Hobson, ‘Why?’ “Mr. Benson, T don’t know.’ “Detective Hobson, ‘You don’t know what?’ “Mr. Benson, T don’t know what happened.’ “Okay. So then we go into several minutes of, again, less than candid responses.

And then finally and slowly in the interview, they get around to the point where some candor is shown and those statements are made. “Okay. Then—trying to look at this entire scenario here—then later on, perhaps as long as two hours later, Detective Hobson and Detective Bolts leave the room and a lieutenant that I cannot remember his name comes into the room with Mr. Benson and visits for a period of time. And Mr. Benson says something to [the] lieutenant of a nature that these two detectives, Hobson and Bolts, have done a very good job.

And there are laudatory comments about they should be complimented for the good job that they’ve done in this interview session. “Okay. Then a couple of days later in a subsequent interview, and this goes back to what I said early on about Mr. Benson’s knowledge of the system, and why he was there in that room, and what it was all about. This is a subsequent interview, and Detective Bolts and Detective Hobson are explaining to Mr. Benson what might happen now when he goes to court.

They’re talking about the arraignment process, ‘And you’ll enter your plea and you’ll be given an opportunity.’ “And Detective Bolts says ...[.] “ ‘Not necessarily. You might not even be asked for a plea. They’ll decide the counsel issue first. So that you’ve had time to discuss your plea or the situation with counsel and enter a plea. It’s not uncommon for them to continue an arraignment for days or weeks in order for you to carefully consider your legal options. You know that—you know that all too well. “ ‘Mr.

Benson: I have enough knowledge of the legal system and the information that I have given you that nothing is going to change the fact that I did it and I admitted it. Now, this is going to be the end result. I did do it, and I did admit it.

I don’t understand how, I mean, I’m sure they can, now that you mention it, but I don’t understand how they can ask me in a court of law how I plead and not accept my . . . [.]’ “And then it goes on there, and then I think the next to last page of the transcript there is this colloquy. “ ‘Detective Bolts: Okay. “ ‘We’ll make sure that you get commissary, any other items that you need besides cigarettes?’ “Detective Bolts continues, “ ‘For a few hours today, we’ll probably be talking to you again if you so desire.

Just so that I’m clear, is there something that we’ve said, as far as you know, threats that we have made to you, or promises, or any promises of leniency, anything that has caused you to tell us what you’ve told us? “ ‘Mr. Benson: No. I’m surprised that that came up. “ ‘Detective Bolts: Well, I—you know, it’s something that, you know, I’ve thought of that maybe something we said that you interpreted as some kind of threat or promise or some— “ ‘Mr. Benson: You know what, if you guys started whipping me with billy clubs right now, you’d see me smile. So you know that’s not a—a— now, no.

You guys are good at your job. I complimented you to your lieutenant about it, as a matter of fact. I’m glad you are, because it served in getting me oif the street, you know. I feel that in some sick, twisted way I helped a little bit, but you guys still—you did your job.’ “Now, I mean, when I was thinking about this, I was asked to focus my attention on those six words: ‘Why? There is—Why?

There’s no death penalty here.’ And I did some rough calculation on this transcript of the final hours of the interrogation, and there were in the area of 152,000, 153,000 words in this transcript. “And I guess the suggestion is—I mean, I don’t—I’m not sounding critical. I don’t mean it to sound that way, but I guess when I was focusing on those six words: ‘Why? There’s no death penalty here.’ The argument would have—would go that I should discount and not consider the other 152,600 [szc] words.

And I think the case law suggests that that is inappropriate. “I think the case law points out that it is necessary for me to consider the entire gamut of questions, the attitude of the participants, the factual setting. I ask myself some questions, some obvious questions: What is the nature of the benefit allegedly offered to Mr. Benson by this, ‘Well, there’s no death penalty? Why? There’s no death penalty here,’ statement. That, ‘This is not the end of the line by any means.

There’s no death penalty here.’ And then again the response, ‘Well, it doesn’t matter, nothing justifies the outcome.’ “. . . [Tjhere is no suggestion that would be any worse or different if Mr. Benson confessed or if he didn’t confess .... “ . . . Everything totally aboveboard with the officers. No coercion, no harassment. No heavy-handedness, at least in the hundreds of pages that I’ve read. To the contrary, it was strangely cordial and somewhat light, and not at all heavy-handed in the approach that was taken.

There was open discussion in our—in the interview that I’m dealing with. “The obvious question, did Mr. Benson rely on—was he induced by Detective Bolts’ statement? I asked the obvious question, was there anything to rely on? . . . “. . . [T]here’s no suggestion of different treatment if Mr. Benson chose to make any confessions or admissions .... “. . . We don’t have any tough guy cop approach. As I’ve commented, we had to the contrary, officers who were patient and even-handed and fair in the way they approached their—this discussion. 66 “. . . [TJhere was no breaking down or loss of composure.

Listening to the tape, it was clear that he was thinking clearly and appropriately. It was clear to the Court in listening to it that, in fact, he hedged on the truth, understandably, for much of the interview until things started unraveling. “Okay. When I compare . . . ‘The totality of the circumstances in viewing the interview in its entirety in light of all of the attendant circumstances,’ I’m persuaded beyond a reasonable doubt that Mr.

Benson’s statements were not coerced by promise of leniency, but rather were made freely and voluntarily.” Defendant now contends that the court erred by denying his motion to suppress his confessions to the police as involuntary. An involuntary confession, of course, is inadmissible under the due process clauses of both the Fourteenth Amendment (e.g., Jackson v. Denno (1964) 378 U.S. 368, 385-386 [12 L.Ed.2d 908, 920-921, 84 S.Ct. 1774, 1 A.L.R.3d 1205]) and

article I, sections 7 and 15 (e.g., People v. Ditson (1962) 57 Cal.2d 415, 438-439 [20 Cal.Rptr. 165, 369 P.2d 714] [decided under the predecessor of Cal. Const., art. I, § 15]). (See, e.g., People v. Boyde (1988) 46 Cal.3d 212, 238 [250 Cal.Rptr. 83, 758 P.2d 25], affd. sub nom. Boyde v. California (1990) 494 U.S. 370 [108 L.Ed.2d 316, 110 S.Ct. 1190].) A confession is involuntary under the federal (e.g., Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 658-659, 84 S.Ct. 1489]) and state (e.g., People v.

Trout (1960) 54 Cal.2d 576, 583 [6 Cal.Rptr. 759, 354 P.2d 231, 80 A.L.R.2d 1418]) guaranties of due process when it “was ‘ “extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence[]” ’ ” (Hutto v. Ross (1976) 429 U.S. 28, 30 [50 L.Ed.2d 194, 197, 97 S.Ct. 202] (per curiam)). (See People v. Berve (1958) 51 Cal.2d 286, 290 [332 P.2d 97].) “[CJoercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ . . . .” (Colorado v.

Connelly (1986) 479 U.S. 157, 167 [93 L.Ed.2d 473, 484, 107 S.Ct. 515].) That is the law under the Fourteenth Amendment. (Ibid.) It is also the law under

article I, sections 7 and 15. (People v. Kelly (1990) 51 Cal.3d 931, 973 [275 Cal.Rptr. 160, 800 P.2d 516] (cone. opn. of Mosk, J.).) A confession is “obtained” by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by “proximate” causation. This is certainly true for the federal right. The requisite causal connection between promise and confession must be more than “but for”: causation-in-fact is insufficient. (Hutto v.

Ross, supra, 429 U.S. at p. 30 (per curiam).) “If the test was whether a statement would have been made but for the law enforcement conduct, virtually no statement would be deemed voluntary because few people give incriminating statements in the absence of some kind of official action.” (U.S. v. Leon Guerrero (9th Cir. 1988) 847 F.2d 1363, 1366, fn. 1.) The foregoing is also true for the state right. (People v.

Kelly, supra, 51 Cal.3d at p. 973 (cone. opn. of Mosk, J.).) When a challenge is mounted, the prosecution must prove that a confession is voluntary by a preponderance of the evidence under the Constitutions of the United States (e.g., Lego v. Twomey (1972) 404 U.S. 477, 489 [30 L.Ed.2d 618, 627-628, 92 S.Ct. 619]) and California (People v. Markham, supra, 49 Cal.3d at p. 71).

On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including “all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 226 [36 L.Ed.2d 854, 862, 93 S.Ct. 2041]). (E.g., Davis v. North Carolina (1966) 384 U.S. 737, 741-742 [16 L.Ed.2d 895, 898-899, 86 S.Ct. 1761] [reviewing federal constitutional claim]; People v.

Sanchez (1969) 70 Cal.2d 562, 571-572 [75 Cal.Rptr. 642, 451 P.2d 74] [apparently speaking of review of both federal and state constitutional claims].) The trial court’s determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well. The underlying questions are mixed; such questions are generally scrutinized de novo; that is especially true when—as here—constitutional rights are implicated (People v.

Louis (1986) 42 Cal.3d 969, 984-987 [232 Cal.Rptr. 110, 725 P.2d 180] [articulating principles underlying both federal and state standard-of-review jurisprudence]). Lastly, the trial court’s findings as to the circumstances surrounding the confession—including “the characteristics of the accused and the details of the interrogation” (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 226 [36 L.Ed.2d at p.862])—are clearly subject to review for substantial evidence. The underlying questions are factual; such questions are examined under the deferential substantial-evidence standard (People v.

Louis, supra, 42 Cal.3d at pp. 984-987 [articulating principles underlying both federal and state standard-of-review jurisprudence]). Having considered the matter closely, we are of the opinion that the court did not err by denying defendant’s motion to suppress his confessions to the police as involuntary. After independently reviewing the record in its entirety, we believe that the court properly concluded that the confessions were voluntary beyond a reasonable doubt. Examined de novo, each of the court’s crucial determinations is sound. First, the police activity here was clearly not coercive.

Having weighed the evidence, including the audiotapes and the transcript, we agree with the court’s assessment: “Everything totally aboveboard with the officers. No coercion, no harassment. No heavy-handedness ....

To the contrary, it was strangely cordial and somewhat light, and not at all heavy-handed in the approach that was taken.” “We don’t have any tough guy cop approach .... [W]e had to the contrary, officers who were patient and even-handed and fair in the way they approached their—this discussion.” “[T]here was no breaking down or loss of composure.” Defendant finds fault with the interrogation in several particulars. His complaints, however, simply fail to establish coercion on the part of the officers. He claims, for example, that the interrogation was “calculated” to secure a confession.

But “calculation” does not necessarily imply compulsion. Second, Detective Bolts’s comment about the death penalty did not constitute a promise of benefit. What the appropriate standard is for determining whether certain conduct amounts to a “promise” is apparently an open question: is it purely “objective” (i.e., from the perspective of a reasonable person); purely “subjective” (i.e., in accordance with the suspect’s actual understanding); or purely neither and partly both? (See generally People v.

Conte (1984) 421 Mich. 704, 739-740 [365 N.W.2d 648] [choosing what is evidently a hybrid standard, viz., “whether the defendant is likely to have reasonably understood the statements in question to be promises of leniency”], and cases cited therein.) But as will appear, the question need not be resolved here. The conclusion that Detective Bolts’s comment did not constitute a promise follows if the remark is construed “objectively.” Interpreted thus, it amounts to no more than an observation that ultimately proved to be incorrect—to the effect that the death penalty was not available here.

Nothing in the surrounding circumstances transforms the comment’s meaning or its force. Defendant claims in substance that Investigator Hobson’s interjection, “Wait a minute, before we talk about that, we don’t know what happened in that house,” supported the “promise” he discerns in Bolts’s words and conditioned that “promise” on Ms confession. We disagree. Hobson’s words effectively “withdrew” the remark. And as defendant himself conceded at the hearing, the remark was not “renewed”: the officers “[n]ever again discuss[ed] the matter of the death penalty with” him.

The conclusion that Detective Bolts’s comment did not constitute a promise follows even if the remark is construed “subjectively.” Several times at the hearing, defendant made admissions bearing on the matter. At one point, he stated that his

interpretation was as follows: “That at that time there was no—that the death penalty was dormant in California, and that they weren’t seeking the death penalty as far as what the interview, what the case was going to.” At another point, he said: “I felt that they were confirming what I already believed, that they weren’t seeking the death penalty, and the reason they weren’t seeking it is because at that time it wasn’t being used in California.” At yet another point, he stated: “You know, I can’t honestly say that anyone straightforward came out and said, ‘What—if you talk to us, I’m not going to give you the death penalty.’ I interpreted it to mean that the death penalty was—I mean, an officer, I mean, you know, handling the investigation is telling me, ‘There is no death penalty here.’ I assumed to be it wasn’t being sought, or that because of legal things in the court, the death penalty was either out, or going to continue being dormant.” It is true that defendant also testified that he did indeed interpret Detective Bolts’s comment as a promise.

But the court clearly, albeit impliedly, found his testimony unworthy of credit. On this record, we must agree. Third, Detective Bolts’s comment about the death penalty did not operate as an inducement. On this record, it is difficult to conclude that the remark was even a cause-in-fact of the confessions. To Bolts’s observation, “There’s no death penalty here,” defendant immediately responded, “That doesn’t matter.” The evidence practically compels the inference that insofar as the confessions were concerned, the comment in fact “didn’t matter.” We recognize that the remark preceded defendant’s confessions.

The intervening period of time, however, was not insubstantial. Moreover, temporal priority does not establish causal force: it is a logical fallacy to reason post hoc ergo propter hoc. In any event, the evidence simply does not support an inference that the causal connection between Bolts’s comment and defendant’s confessions was more than “but for.” As explained above, however, causation-in-fact is insufficient. Again, it is true that defendant testified that he was indeed induced to confess by the comment. But again, the court clearly, albeit impliedly, found his testimony lacking in credibility.

Again, on this record we must agree. In conclusion, we are of the opinion that defendant’s confessions were voluntary beyond a reasonable doubt. The court effectively determined that defendant spoke not because of coercion applied by the police but as a result of compunction arising from his own conscience. After independent review, we agree. Accordingly, the court did not err by denying the suppression motion. B. Denial of Motion to Suppress Confession to Police Psychiatrist Defendant moved to suppress his confession to the police psychiatrist.

He had given the statement during an interview conducted by the psychiatrist, William E. Gordon, a member of the Sexual Assault Response Team, on January 10, 1986—the day after his first confession to the police. Defendant made the motion orally in the midst of Dr. Gordon’s testimony as the People’s first witness. The ground was evidently that the confession was involuntary under the due process clauses of the Fourteenth Amendment and

article I, sections 7 and 15. The argument in support was somewhat vague—to the effect that the statement was assertedly obtained by a promise of benefit and/or the improper influence of official deception.

The “promise,” it appears, was a statement by a jailer: late on the night of January 9, 1986, after giving his first confession to the police, defendant was placed on “suicide watch,” and was put naked into a small, empty cell with foam-rubber padded walls and bare concrete floor—a so-called “rubber room”; he was told by the jailer that he would not be released until he was “cleared” by “Mental Health.” The “deception,” it appears, was the alleged substitution of Dr. Gordon in place of an expected visitor “from Mental Health” the next morning. The court conducted a hearing outside the presence of the jury.

The evidence included live testimony by defendant; the testimony he had given at the hearing on the motion to suppress his confessions to the police; and, it appears, the transcript of those statements. Concluding impliedly that the confession to Dr. Gordon was voluntary beyond a reasonable doubt, the court denied the motion. It determined, in substance, that defendant was properly advised of his Miranda rights by Dr. Gordon, and that he effectively waived those rights; that “there is no evidence ... of any kind of physical, or mental, psychological coercion upon Mr. Benson to talk with Dr.

Gordon”; that the authorities made no promise and practiced no deception; and that defendant freely gave his statement out of compunction. As noted, parts of the confession were subsequently introduced at the guilt phase. Defendant now contends that the court erred by denying his motion to suppress his confession to Dr. Gordon. We disagree. Reviewed de novo, the court’s conclusion of voluntariness and its supporting determinations are all sound. First, defendant was properly advised of, and effectively waived, his Miranda rights—nor does he claim otherwise.

Second, and of crucial importance, the necessary element of coercion on the part of the authorities is lacking. The record supports, indeed compels, the court’s conclusion: “there is no evidence ... of any kind of physical, or mental, psychological coercion upon Mr. Benson to talk with Dr. Gordon.” Defendant claims that “The police secured the . . . confession [to Dr. Gordon] by manipulating [his] custody so that he believed that the only way to secure his release from the ‘rubber room’ was to talk to the police psychiatrist.” “Manipulation,” however, is simply absent from the record.

We recognize that defendant was placed in a “rubber room” on “suicide watch.” But we cannot discern any official coercion therein. Indeed, at the hearing defendant effectively conceded that the placement was justified. In giving his first confession to the police, he made statements that he admitted “someone could have interpreted ... as being suicidal.” We also recognize that defendant testified that he spoke with Dr. Gordon “[b]asically to get out of that cell.” The court expressly found the assertion unworthy of credit. Its finding is supported by substantial evidence.

But in any event, the assertion is insufficient: it does not establish official coercion. Third, there was no promise or deception by the authorities. The evidence introduced at the hearing, including defendant’s own testimony, does not support the inference of any promise. Construed either “objectively” or “subjectively,” the jailer’s statement, i.e., that defendant would not be released until he was “cleared” by “Mental Health,” was merely a statement. That same evidence does not support the inference of any deception. In fact, defendant himself admitted that prior to the interview, Dr.

Gordon properly identified himself as a physician and a member of the Sexual Assault Response Team. His assertion that he nevertheless believed that Dr. Gordon “was from Mental Health” is of no consequence: his “belief” cannot properly be attributed to deceptive conduct on the part of the government. Finally, defendant made his confession freely out of compunction. The court stated: “[I]t seems to me clearly that Mr. Benson was going through some terribly draining emotional feelings.

And that in his own heart and mind he felt it was necessary to get this off of his chest and to speak to somebody about it.” We share the court’s view. In sum, the denial of defendant’s motion to suppress his confession to Dr. Gordon was not error. III. Special Circumstance Issues Defendant attacks the validity of two of the five special circumstance findings, specifically, those involving the killing of a witness. As will be shown, the attack is successful. Defendant contends that the evidence is insufficient to support the witness-killing special-circumstance findings.

As noted, two such special circumstances were alleged and subsequently found true, one involving Stephanie, the other Shawna. Penal Code

section 190.2, subdivision (a)(10) (hereafter

section 190.2(a)(10)), defines the witness-killing special circumstance in relevant part as follows: “The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal proceeding, and the killing was not committed during the commission, or attempted commission of the crime to which he or she was a witness . . . .” The elements of the witness-killing special circumstance have been stated thus: “(1) a victim who has witnessed a crime prior to, and separate from, the killing; (2) the killing was intentional; and (3) the purpose of the killing was to prevent the victim from testifying about the crime he or she had witnessed.” (People v.

Garrison (1989) 47 Cal.3d 746, 792 [254 Cal.Rptr. 257, 765 P.2d 419].) “ ‘In reviewing the sufficiency of evidence [for a special circumstance], the question we ask 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 [allegation] beyond a reasonable doubt.’ ” ’ ” (People v.

Bonin (1989) 47 Cal.3d 808, 850 [254 Cal.Rptr. 298, 765 P.2d 460], italics in original.) Defendant claims the evidence cannot support an inference that the murder of either Stephanie or Shawna “was not committed during the commission” of the murder of Laura within the meaning of

section 190.2(a)(10). We agree. In People v. Silva (1988) 45 Cal.3d 604, 631 [247 Cal.Rptr. 573, 754 P.2d 1070], we held that the crime witnessed cannot be deemed “prior to, and separate from,” the killing of the witness when both are part of “one continuous transaction” or “the same continuous criminal transaction.” Here, the crime witnessed and the killings of the witnesses were such. The evidence is univocal: the murder of Laura and that of Stephanie and Shawna were integral parts of a single continuous criminal transaction against the entire family.

Accordingly, the witness-killing special-circumstance findings are invalid. IV. Penalty Issues Defendant raises several claims bearing on the question of penalty. As will appear, none is meritorious. A. Denial of Defendant’s Motion to Bar Admission of Photographs of the Victims in Death Prior to the commencement of the penalty phase, defendant moved in limine to bar admission of any and all photographs of the victims in death. (Some of the photographs had been taken at the crime scene, others during autopsy.) He argued that the photographs were not relevant under Evidence Code

section 210 and, in any event, were excludable as unduly prejudicial under Evidence Code

section 352. The former provision defines “relevant” as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” The latter declares that “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (

a) necessitate undue consumption of time or (

b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” At the guilt phase, the court had barred admission of some of the photographs as unduly prejudicial, having determined in substance that the items were substantially more prejudicial than probative on the question of guilt. The People opposed the motion.

They argued in substance that (1) the photographs were relevant to issues that were both material and disputed, viz., the narrow question of the circumstances of the crimes and, certainly, the broad question of the appropriateness of death; and (2) they were not unduly prejudicial. After reviewing the photographs, the court effectively denied the motion. As pertinent here, it determined in substance as follows: the photographs were relevant to the circumstances of the crimes and the appropriateness of death; they were indeed gruesome; but it was not the case that all were unduly prejudicial.

It further determined that certain of the photographs were not unduly prejudicial and, as such, were admissible; and that others were in fact unduly prejudicial and, as such, were excludable. Subsequently, on the People’s motion and over defendant’s objection, it received into evidence the photographs it had held admissible. Defendant contends that the court’s ruling allowing the admission of the photographs in question was erroneous. The appropriate standard of review is abuse of discretion. The ruling comprises determinations as to relevance and undue prejudice.

The former is reviewed under that standard. (See People v. Green (1980) 27 Cal.3d 1, 19-20 [164 Cal.Rptr. 1, 609 P.2d 468] [speaking generally].) So is the latter. (See, e.g., People v. Pierce (1979) 24 Cal.3d 199, 211 [155 Cal.Rptr. 657, 595 P.2d 91] [speaking specifically of photographs].) Having considered the matter closely, we find no error. The court did not abuse its discretion when it determined that the photographs in question were relevant. Defendant’s argument to the contrary is unpersuasive.

The photographs were indeed probative—and highly probative—of issues that were both material and disputed, viz., the circumstances of the crimes and therefore the appropriateness of death. Nor did the court abuse its discretion when it determined that the photographs were not unduly prejudicial. Again, defendant’s argument is unpersuasive. To be sure, the photographs were gruesome. But as stated, they were also highly probative. The court could have reasonably concluded that their prejudicial force did not substantially outweigh their probative value. B.

Denial of Defendant’s Motion to Exclude Evidence of the Conduct Underlying His Prior Felony Convictions Prior to the commencement of the penalty phase, defendant moved in limine to exclude evidence of the conduct underlying his prior felony convictions. The ground was in substance that such evidence was not relevant, or at least not sufficiently relevant, to any issue material to penalty. As pertinent here, the argument was to the following effect: under penalty factor (

c) of Penal Code

section 190.3 (hereafter

section 190.3), “The presence or absence of any prior felony conviction” was indeed material; but the evidence sought to be excluded had no tendency in reason—or at least, no sufficient tendency—to prove or disprove the existence of any such conviction. Defendant appears to have assumed that the People sought to prove only the fact of his prior felony convictions. The People opposed the motion. They argued in substance as follows: contrary to defendant’s assumption, they sought to prove not only the fact of his prior felony convictions, but also the underlying conduct; under penalty factor (

b) of

section 190.3, “The presence or absence of [other] criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence” was also material; the evidence sought to be excluded had a substantial tendency to prove the existence of such criminal activity. The court denied the motion. It determined in substance that evidence of the conduct underlying defendant’s prior felony convictions was indeed relevant to the material issue of the existence of other criminal activity involving the use or threat of force or violence.

In pertinent part, it reasoned: “I think that if the prior conviction involves violent criminal activity, then the Court has no alternative but to allow into evidence the circumstances surrounding any prior felony conviction. I don’t know. I’m simply ignorant on what the facts are going to show or what the circumstances are surrounding any of the prior felony convictions.” Without significant objection by defendant, the People subsequently introduced, and the court received, specific evidence concerning the conduct underlying the prior felony convictions. Defendant now contends that the court’s ruling was error.

He must be deemed to challenge the crucial resolution of the question of relevance. As noted, such determinations are reviewed for abuse of discretion. No abuse appears. The People may, of course, seek to prove both the fact of prior felony convictions and any underlying criminal activity involving the use or threat of force or violence. (People v. Karis (1988) 46 Cal.3d 612, 640 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v. Melton (1988) 44 Cal.3d 713, 764 [244 Cal.Rptr. 867, 750 P.2d 741]; see People v.

Gates (1987) 43 Cal.3d 1168, 1203 [240 Cal.Rptr. 666, 743 P.2d 301].) Contrary to defendant’s claim, the evidence sought to be excluded appears plainly, and highly, relevant to the material issue of the existence of such criminal activity. Defendant may be understood to argue that the People should have been allowed to prove only the fact of the criminal activity, and that they should have been permitted to use only the record of the prior felony convictions in making their proof. But in People v.

Karis, supra, 46 Cal.3d at page 640, we effectively held that as a general matter, the People may prove any pertinent circumstance of the criminal activity, and may do so in any permissible way. Defendant does not persuade us that in this case the People should have been subjected to the restrictions he now urges. Defendant also contends that the subsequent admission of the specific evidence concerning the conduct underlying his prior felony convictions was error in and of itself. The point lacks merit.

The evidence was plainly, and highly, relevant to the material issue of the existence of other criminal activity involving the use or threat of force or violence. Defendant claims that the ruling and subsequent admission of the specific evidence concerning the conduct underlying his prior felony convictions violated certain rights assertedly guaranteed criminal defendants by, inter alia, the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution—viz., due process of law (U.S. Const., Amends. V, XIV); equal protection of the laws (id., Amend.

XIV); freedom from an impermissible risk of arbitrary and capricious decisionmaking (id., Amends. VIII, XIV); and reliable penalty determination (ibid.). We reject the point on procedural grounds. Defendant failed to put forth a sufficient constitutional argument when he made his motion in limine. He also failed to make a sufficient constitutional objection when the People introduced the specific evidence. Accordingly, he may not raise the underlying claim here. (See People v. Gordon, supra, 50 Cal.3d at pp. 1251-1252 [dealing with absence of argument]; People v.

Rogers, supra, 21 Cal.3d at p. 548 [dealing with absence of objection].) We also reject the point on the merits. The United States Supreme Court “has often declared that states have the broadest possible range in deciding what negative aspects of the defendant’s character and background are relevant to the sentencing determination.” (People v.

Balderas (1985) 41 Cal.3d 144, 204 [222 Cal.Rptr. 184, 711 P.2d 480].) Evidence of other criminal activity involving the use or threat of force or violence falls squarely within that range. (Id. at p. 205, fn. 32.) We are not persuaded that the admission of such evidence—in this particular case or generally—affects, in any constitutionally significant way, the fairness of the proceedings, the treatment of “similarly situated” defendants, the risk of arbitrary and capricious decisionmaking, or the reliability of the outcome. (See People v.

Karis, supra, 46 Cal.3d at pp. 639-641 [impliedly concluding as much as to risk and reliability]; People v. Balderas, supra, 41 Cal.3d at pp. 204-205 [impliedly concluding as much as to fairness, risk, and reliability].) C. Denial of Defendant’s Motion to Exclude Evidence of Unadjudicated Criminal Activity or, in the Alternative, to Impanel a Separate Jury Prior to the commencement of the penalty phase, defendant moved in limine to exclude evidence of unadjudicated criminal activity or, in the alternative, to impanel a separate jury to consider such evidence.

The motion was based expressly on the Fourteenth Amendment’s guaranty of due process of law and impliedly on the Eighth Amendment’s prohibition against cruel and unusual punishments. Defendant acknowledged that People v. Balderas, supra, 41 Cal.3d 144, was fatal to his request.

The guaranty of the Fourteenth Amendment—Balderas expressly held—did not bar the introduction of “other crimes” evidence at the penalty phase either absolutely or even before the same jury that sat at the guilt phase; nor—the case impliedly held—did the prohibition of the Eighth Amendment. (41 Cal.3d at pp. 204-205.) In spite of Balderas, defendant proceeded with the matter because “this may come up some day . . . .” Thereupon, the court denied the motion on the authority of that case. At the penalty phase, the People introduced “other crimes” evidence involving the kidnapping of Karen Stange.

Defendant contends that the court erred. He concedes that Balderas is controlling. He requests, however, that we reconsider and overrule that decision. We have declined similar invitations in the past. (See People v. Medina (1990) 51 Cal.3d 870, 906-907 [274 Cal.Rptr. 849, 799 P.2d 1282], collecting cases.) We decline defendant’s now. D.

Granting of the People’s Motion to Introduce Evidence in Rebuttal on the Nature of Life Imprisonment Without Possibility of Parole Outside the presence of the jury, defendant moved for an order allowing him to introduce, and play for the jury, certain evidence referred to in the facts, viz., the videotape of a brief segment of a television series called “Two on the Town,” which dealt with San Quentin Prison and the infliction of the penalty of death. He argued that the segment was admissible as “relevant to . . . sentence” under

section 190.3: it provided information as to the nature of the ultimate sanction. The People opposed the motion. They argued in substance that the segment on San Quentin Prison was inadmissible because the proper focus of the penalty phase was defendant and his crimes, and that the proffered evidence was not pertinent thereto. After viewing the “San Quentin” segment, the court granted defendant’s motion.

It reasoned in relevant part as follows. “[T]he ‘San Quentin’ film . . . basically is simply kind of a news account of what [the] San Quentin death chamber is, the gas chamber, and how it has been used in the past, and how it is continually to be maintained under the assumption that some day in California it will be used again, [fl] And I’ve thought about that. Does that relate to quote, ‘sentencing’ unquote? Well, that is one of the sentences that—one of the penalties that could be imposed in this case.

It seems that, therefore, it could be appropriate to allow the jury to see that tape so that they have clearly in mind the full and complete thrust of what a punishment of death decision could be. And so my ruling would be to allow them to see that tape.” Before the “San Quentin” segment was to be played, the People moved outside the presence of the jury for an order allowing them to introduce in rebuttal the testimony of Mike Madding as to the nature of the penalty of life imprisonment without possibility of parole.

As noted in the facts, Madding was the Public Information Officer at San Quentin Prison at the time the “San Quentin” segment was produced, and was interviewed on camera during the piece. The People argued in substance that Madding’s proffered testimony was admissible as “relevant ... to sentence” under

section 190.3: it would provide, inter alia, information as to the nature of the penalty of life imprisonment without possibility of parole. The prosecutor stated: “It’s my intention to call [Madding] in rebuttal . . . , since counsel has convinced the Court that they should know exactly what their options are, to inform the jury on what life without possibility of parole means.

In other words, what a person serving such a sentence can look forward to as far as his time in prison, what privileges are available, what liberties are not available, [fl] I think that in light of the Court’s ruling on the gas chamber, I think that they should also have an informed choice to know exactly what that type of sentence means.” Defendant opposed the motion.

Counsel argued in substance that the proffered testimony was inadmissible because it was speculative and in any event “[in]appropriate.” The prosecutor responded: “[Y]ou can’t say there are two penalties, and we’re only going to show them, the jury, what one of them is. []f] I don’t think they should be shown either one. I’ve made that clear. I’ve been overruled on that point. And I don’t think it’s fair for them to see one and not the other. They’re going to know what the death penalty is.

I think they should equally be informed what life without possibility of parole is.” The court declined to rule on the People’s motion. It reasoned in pertinent part as follows. “First of all, the reason I am allowing this tape to be shown is because I think that it goes, pursuant to 190.3 of the Penal Code, to the area of sentencing, [fl] The suggestion made by the District Attorney is that he should be allowed to present to the jury the other side, that is, the alternate to the possibility of the death penalty.

And that also he should be allowed the opportunity to call this person, I guess, who they interviewed on this, who was at that time, I think it was the Public Affairs Officer at San Quentin . . . . [fl] I’m not going to rule in a vacuum. I have no idea what this man. would say.

At the same time, I’m certainly not going to dismiss out of hand the District Attorney’s request to present a rebuttal witness as it relates to the sentencing factors, []j] So I suppose what we will end up doing is, if it in fact is still intended by the People to present such evidence, we’ll have this person come in and probably outside the presence of the jury make an offer of proof as to what the testimony would be .... [fl] I understand the District Attorney’s position, and it doesn’t on its face seem totally unreasonable, but I certainly am not going to just give him carte blanche to come in and bring forward information that I don’t think is appropriate.

So I think it’s premature. I’m not going to rule on that now.” Defendant proceeded to introduce into evidence, and play for the jury, the videotape of the “San Quentin” segment. After the defense rested, the People made an offer of proof outside the presence of the jury. The prosecutor stated as relevant here: “[I]t is my intention to call [Madding] . . . since, as Counsel eloquently observed, that the jury should know what the two alternatives are.

Now that they know one, and that is the gas chamber, that they should now be familiar with what the life prisoner without possibility of parole is subject to.” Called to the stand by the People in support of the offer of proof, Madding was examined by the prosecutor concerning such matters as the living accommodations and privileges available to persons sentenced to life imprisonment without possibility of parole, and also the living accommodations and privileges that defendant might himself obtain if he were sentenced to that penalty. Madding was cross-examined on these issues by defense counsel.

The court effectively granted the People’s motion. Its ruling was as follows. “The matter that is before me is the question of whether or not it’s appropriate for the District Attorney to ask questions of Mr. Madding as they relate to what would be the—I guess, the atmosphere or aspects of the sentence if the jury decided upon life imprisonment without the possibility of parole. []|] . . .

There are a couple of issues that are really before the Court. [ÍJ] First of all, it seems to me that it is appropriate to allow the District Attorney to show the other side of the coin, as it were, since I have allowed the defense to present briefly the videotape that shows the gas chamber at San Quentin.

And so I would allow at least some presentation of what it is that makes up life imprisonment without the possibility of parole, issue number one. [[[] Issue number two, I think it is inappropriate to allow the witness to speculate on various matters, and it’s—very much of the testimony that was elicited outside the presence of the jury certainly was speculative in nature.

So I guess we’ll take it on a question-by-question basis, and if there’s objections, I’ll rule upon those accordingly.” Thereupon, after calling Madding to the stand in the presence of the jury, the People conducted direct examination on, inter alia, the living accommodations and privileges of persons sentenced to life imprisonment without possibility of parole. For his part, defendant conducted cross-examination on these issues. Madding’s testimony was brief and neutral.

Defendant now contends that the court erred by granting the People’s motion for permission to introduce in rebuttal the testimony of Madding as to the nature of the penalty of life imprisonment without possibility of parole. He argues that the ruling was improper under, among other provisions, the cruel and unusual punishments and due process clauses of the Eighth and Fourteenth Amendments to the United States Constitution, and also under their counterparts in

article I, sections 17 and 7 and 15, of the California Constitution. The point must be rejected. Defendant himself raised the issue of the nature of the penalties available to the jury. He introduced evidence as to one. In response, the People introduced evidence as to the other. It may well be, as defendant now urges, that both were wrong. (See People v.

Thompson (1988) 45 Cal.3d 86, 138-139 [246 Cal.Rptr. 245, 753 P.2d 37] [holding inadmissible evidence as to the nature of the two possible penalties].) Also, it may well be, in accordance with the adage on which defendant now relies, that “two wrongs do not make a right.” But on this record, defendant must be held responsible for any error on the court’s part and accordingly may not be heard to complain thereof. The basis of the challenged ruling was the broad construction of the phrase, “relevant to . . . sentence,” in

section 190.3. That basis was laid by defendant himself. In any event, as noted Madding’s testimony was brief and neutral. Prejudice could not have arisen therefrom. E. Consideration of Invalid Witness-killing Special Circumstances Defendant contends that the court committed reversible error by allowing the jury to consider the invalid witness-killing special-circumstance findings. For the reasons stated in

part III, ante, we agree that error occurred. But we cannot agree that reversal is required. Certainly, the error here is not prejudicial per se, but rather is subject to harmless-error analysis. Whether it violates state law only or implicates the United States Constitution as well is immaterial. It is harmless under both the “reasonable possibility” test of People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135], and the “reasonable doubt” test of Chapman v.

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710, 87 S.Ct. 824, 24 A.L.R.3d 1065], “Although we presume that the jurors [followed their instructions and] considered the invalid special-circumstance findings independent of their underlying facts, we cannot conclude that they could reasonably have given them any significant independent weight.” (People v. Hamilton (1988) 46 Cal.3d 123, 151 [249 Cal.Rptr. 320, 756 P.2d 1348].) F. Prosecutorial Misconduct Defendant contends that the prosecutor committed misconduct in the course of his opening and closing arguments in summation.

What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant. (See People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal.Rptr. 141, 589 P.2d 396].) When, as here, the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. (Cf. People v.

Warren (1988) 45 Cal.3d 471, 487 [247 Cal.Rptr. 172, 754 P.2d 218] [holding that in deciding whether an instruction is erroneous, a court must determine how it would have been understood by a reasonable juror]. But cf. Boyde v.

California, supra, 494 at p. 370 [108 L.Ed.2d at p. 329, 110 S.Ct. at p. 1198] [holding that in deciding whether an ambiguous instruction is erroneous for Eighth Amendment purposes, a court must determine whether there is a reasonable likelihood that the jury would have understood the instruction as the defendant claims].) If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable. The first part of defendant’s attack is made under the rubric, “Evidence Outside of the Record.” The comments relevant here are as follows.

At one point in his opening argument, the prosecutor stated: “Now, I want to get to the reasons why I believe the death penalty is appropriate on the evidence of this case. The first and most important ... is this crime. This crime is perhaps the most brutal, atrocious, heinous crime certainly that’s been committed in San Luis Obispo County, probably in this County [i.e., Santa Barbara], and very likely in this State.” (Italics added.) Later in his opening argument, the prosecutor said: “No, they [i.e., the victims] can’t come in front of you and ask you to give this man the death penalty. That’s my job.

That’s what I have to do. This crime is the most brutal crime that can be imagined. Quite frankly, if this crime doesn’t deserve the death penalty, we shouldn’t have one.” (Italics added.) Then, in his closing argument, the prosecutor stated: “The statement [of Detective Bolts] about the death penalty, he [i.e., Bolts] doesn’t tell you anything about it. It could perhaps be the erroneous opinion that there is no death penalty in the State of California. Whatever it was, it certainly wasn’t binding.

They’ve certainly sought the death penalty, as have I, because it’s appropriate in this case.” (Italics added.) Defendant claims that through the italicized words the prosecutor improperly presented “evidence” outside the record concerning the relative “brutality,” “atrociousness,” and “heinousness” of the crimes in question, and also vouched for the appropriateness of the penalty of death on behalf of the government and himself personally. We reject the point on procedural grounds.

It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (E.g., People v. Green, supra, 27 Cal.3d at pp. 27-34.) In this case, defendant made no such assignment and request. It is true that the rule does not apply when the harm could not have been cured. (Ibid.) Such a situation, however, was not present here: any harm threatened was certainly curable.

Defendant argues the general rule should not be allowed to operate at the penalty phase of a capital case. In People v. Miranda (1987) 44 Cal.3d 57, 108, footnote 30 [241 Cal.Rptr. 594, 744 P.2d 1127], we disagreed. Defendant asserts that Miranda is unsound on this point: procedural rules, he seems to say, must yield when a man’s life is at stake. He is not persuasive. (People v. Gordon, supra, 50 Cal.3d at p. 1269.) We also reject the point on the merits. To be sure, a prosecutor may not go beyond the evidence in his argument to the jury. (E.g., People v.

Ledesma (1987) 43 Cal.3d 171, 238 [233 Cal.Rptr. 404, 729 P.2d 839], and cases cited therein (cone. opn. of Mosk, J.).) To do so may suggest the existence of “facts” outside the record—a suggestion that is hard for a defendant to challenge and hence is unfair. The question here is close. But after review, we believe that a reasonable juror would not have understood the prosecutor’s words as “evidence” outside the record concerning the relative “brutality,” “atrociousness,” and “heinousness” of defendant’s crimes in comparison with other actual crimes not introduced at trial.

Rather, such a juror would have heard the remarks as a comment on the nature of the offenses themselves—to the effect that they were of exceeding enormity. Comment of that sort is permitted if it is reasonably fair in light of the evidence. That is true not only of the crimes tried in the present proceeding. (See People v. Hovey (1988) 44 Cal.3d 543, 579 [244 Cal.Rptr. 121, 749 P.2d 776].) It is also true of other criminal activity involving the use or threat of force or violence. This is because the prosecutor may argue issues—such as these—that are material to penalty. (See People v.

Marshall (1990) 50 Cal.3d 907, 929 [269 Cal.Rptr. 269, 790 P.2d 676].) The comment here, which pertained to the crimes tried in the present proceeding, was reasonably fair. But in view of the potential for unfairness noted above, similar remarks should be avoided in the future. Next, a prosecutor may not, of course, vouch personally for the appropriateness of the verdict he or she urges. (See People v. Kirkes (1952) 39 Cal.2d 719, 723-724 [249 P.2d 1].) Nor, we believe, may the prosecutor do so on behalf of the government. Vouching may suggest the existence of “facts” outside the record.

A reasonable juror, however, would not have so understood the prosecutor’s comments here. Instead, a reasonable juror would have heard them to state what was obvious and altogether unobjectionable—i.e., that it was the People’s position that defendant’s crimes called for the ultimate sanction. The second part of defendant’s attack is made under the rubric, “Victim Impact.” In his opening argument, the prosecutor made the following comments relevant here. “Let’s look at his crimes. His prior crimes .... [T]he word ‘molest’ is somewhat of a soft word.

Don’t really know what happened .... “I felt it was essential to let you see what those crimes really were. It’s not enough to just tell you, and it broke my heart to have to bring those victims in to tell you. Not not [svc] one of them was reluctant. Not one of them said, T can’t do it. I don’t want to do it.’ “They all came in. They all testified. And it was heartbreaking. But it was important, because the only way you can really understand what a depraved individual this man is, is to look at the suffering that he has inflicted on others. “There’s another importance for bringing that in front of you.

Throughout this whole thing, the defendant talks about molesting Shawna and Stephanie. The nice child molester. The nice Uncle Richard. How he didn’t hurt them. How they liked it. How they were enthusiastic. “No. That’s the liar Richard Benson. They didn’t like it. They liked it as much as those other girls liked it. They were three and four years old. They weren’t any sophisticated sexual three or four year olds. They were just three and four year old little girls. That’s where that comes in.

It’s another manifestation of his personality, of his lies, and of his cruelty. “You see, I can’t prove to you by way of testimony the type ofpain, the type of suffering those little girls went through. I can’t do it. I can attempt to approximate it by showing you other little girls, what their experiences were, and how it scarred them for life.” (Italics added.) Defendant claims that through the italicized words, the prosecutor violated the Eighth Amendment principles stated in Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529], and South Carolina v.

Gathers (1989) 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207].

In Booth, the United States Supreme Court concluded that it was generally violative of a criminal defendant’s rights under the cruel and unusual punishments clause of the Eighth Amendment to introduce evidence concerning such matters as the victim’s personal characteristics, the emotional impact of the crime on the victim’s family, and the opinions of family members about the crime and the criminal: the information is irrelevant to the decision whether the defendant is to live or die, and its admission creates a constitutionally unacceptable risk that the decision maker may impose the ultimate sanction in an arbitrary or capricious manner. (482 U.S. at pp. 502-509 [96 L.Ed.2d at pp. 448-452].) In Gathers, the court followed Booth and concluded that it is generally violative of those same rights to present argument relating to such matters. (490 U.S. at pp. 810-811 [104 L.Ed.2d at pp. 882-883, 109 S.Ct. at pp. 2210-2211].) In People v.

Marshall, supra, 50 Cal.3d 907, 929, we held impliedly, but unmistakably, that Booth and Gathers do not extend to evidence or argument concerning the nature and circumstances of the capital offense or the effect of that offense on the victim. The reason is plain: that information is uniquely relevant to the life-or-death decision and, as such, does not create a constitutionally unacceptable risk of arbitrary or capricious sentencing.

We hold today that Booth and Gathers do not extend to evidence or argument relating to the nature and circumstances of other criminal activity involving the use or threat of force or violence or the effect of such criminal activity on the victims: in our view, that information is highly relevant to the life-or-death decision. We cannot reject the point on procedural grounds.

As stated, it is the general rule that a defendant—like defendant in this case—who did not make an assignment of misconduct and a request for admonition at trial cannot complain of the asserted impropriety on appeal. “The rule, however, does not apply when, as here, the authority supporting the complaint postdates the conduct complained of.” (People v. Gordon, supra, 50 Cal.3d at p. 1266.) But we do, and must, reject the point on the merits.

A reasonable juror would have understood the prosecutor’s words as comments on the nature and circumstances of defendant’s present crimes and his other criminal activity involving the use or threat of force or violence. In light of the evidence, those comments were reasonably fair. Such a juror would not have understood the prosecutor’s remarks as crossing the constitutional barrier marked by Booth and Gathers into such forbidden areas as the victims’ personal characteristics, the emotional impact of the crime on their families, and the opinions of family members about the crimes and the criminal.

The third part of defendant’s attack is made under the rubric, “Protection of Society.” In his opening argument, the prosecutor made the following comments relevant here. “Now, why is life without possibility of parole an insufficient punishment in this case? You may say, ‘What good would it serve to give Mr. Benson the death penalty, and we can accomplish everything we want with life without possibility of parole?’ “Well, first of all, that would be a rather selfish view. That means we’re thinking about ourselves. We’re thinking about us on the outside, thinking about the protection of that society.

We’re not thinking about the victims in this case when we make that assessment. We’re not saying that, ‘Look what he did. Let’s just put him away. We don’t have to think about him anymore.’ That’s not sufficient punishment for what he did. That’s not sufficient punishment for his crimes. “Would he still be dangerous? Would he still offend in the future? Certainly. He has that propensity .... “. . . We know if[] given the opportunity, he will not only molest children again, he will murder again.

That is not a 100 percent protection of society, and it’s a selfish view of ourselves to say that that’s the solution to this crime.” (Italics added.) Defendant claims that through the italicized words, the prosecutor presented an “argument” that “was grossly improper. Like the Briggs Instruction

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