THE PEOPLE, Plaintiff and Respondent, v. GEORGE HERBERT WHARTON, Defendant and Respondent, 53 Cal. 3d 522

Opinion LUCAS, C.J. —George Herbert Wharton was convicted in 1986 of the first degree murder of Linda Smith. After being advised of and waiving his constitutional rights, he admitted the truth of a single special-circumstance allegation charging a prior conviction of second degree murder. (Pen. Code, § 190.2, subd. (a)(2); all further statutory references are to this code unless otherwise indicated.) He also admitted having suffered various prior felony convictions. (§§ 667, subd. (a), 667.5, subd. (b).) A Santa Barbara County jury set the penalty at death.

This appeal is automatic. (§ 1239, subd. (b).) We affirm. Facts Guilt Phase In response to a telephone call, Officer Rivas went on February 27, 1986, to the home of Linda Smith and defendant around 5:30 or 6 p.m., in an attempt to locate Smith. Rivas knocked on the door but received no answer. He observed a package addressed to Smith in the mailbox. Mrs. Lopez, a neighbor, reported having last seen Smith about two weeks before. Rivas procured a ladder, hoisted himself up to the balcony and looked into the apartment, announcing his presence and identifying himself as a police officer.

Noticing an open window, he removed the screen and entered the apartment. Finding no one at home, Rivas left a note for Smith and exited the apartment, locking the door behind him. After learning from a neighbor that the apartment contained an attic, Rivas, this time accompanied by Officer Garcia, reentered the apartment and searched the attic but found no trace of Smith. In the kitchen, however, both officers noticed a large cardboard barrel with a plastic bag over the top. Although they shook the barrel, they did not search it. Neither officer had a warrant authorizing these entries.

About 10 o’clock that night, Sergeant Zuniga spoke to Smith’s aunt, Mrs. Fechtner, who expressed concern for her niece’s safety. Zuniga went to Smith’s apartment and observed that the apartment was dark and that there was mail in the mailbox. In addition, the officer noticed Smith’s car was not in the driveway or the immediate neighborhood. Because Officer Rivas had left a note inside the apartment, however, Zuniga did not attempt to contact anyone at the residence. Zuniga left the residence about 11:10.

Also around 10 p.m., Iris Short, another neighbor, heard a loud thumping noise on Smith’s front door and then someone running up the stairs. When she looked out, she saw the silhouette of someone standing in front of the door. After talking to Mr. and Mrs. Lopez, she called the police. Officers Fryslie and Tracy responded to the call about 11:25. Receiving no answer to their knock, they tried the door and found it unlocked. After announcing their intention to enter the apartment, the officers entered. Although there was no one in the apartment, the officers found what appeared to be a suicide note.

Encountering the barrel, Fryslie felt part of the plastic covering that protruded; the contents felt soft and pliable. He then called Sergeant Zuniga and informed him that he may have found a body disposal site. Cutting open the bag inside the barrel, they found Smith’s body. The officers immediately ceased their search and left to obtain a search warrant. The warrant was obtained, executed the next morning (February 28th), and the body was removed. A search of the apartment uncovered, among other things, several empty prescription drug bottles and a note pad with a note that began, “Dear Dr.

Hamilton.” While most of the bottles bore the victim’s name, one bore defendant’s name. In addition, police found a toolbox in the garage. An autopsy revealed the victim had been struck three times on the head with a blunt instrument, probably a hammer. The victim received one direct blow and two glancing blows. Any of the blows would have caused instant unconsciousness. Although the victim had no other broken bones or lacerations, the presence or absence of defensive wounds such as bruises could not be determined because of the advanced state of decomposition of the body. Dr.

Failing, the pathologist in charge of the autopsy, testified that in his opinion, the victim died of asphyxia rather than the cerebral contusions. Because of the condition of the body, Dr. Failing could not pinpoint the time of death but opined it was probably 10 to 14 days earlier. Police located defendant that morning in a restaurant, but he fled when police arrived. After a brief search, police found him hiding under a truck and took him into custody. Defendant waived his Miranda rights (Miranda v.

Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]) and agreed to speak with Officer Tonello. Defendant stated that he lived with Smith and that he spent the night of February 26th with her in their home. He affirmed that Smith was alive that night. He eventually admitted, however, that they argued and that he killed her. He explained that they had been drinking heavily that night and began to argue. She threw a book at him and he hit her twice in the head. She may have hit her head on a table, but he was not sure.

He admitted he was mentally aware he was hitting her but stated that he was in a rage. He eventually realized she was dead. He began writing a letter to his psychotherapist, Dr. Hamilton, and then took several pills and lay down beside Smith. He tried to kill himself by inhaling gas from the oven. He did not know what he intended to do with the body, moving it from room to room. He also stated he lit a fire in the fireplace and brought Smith’s body into the room to keep her “warm.” At one point, he held Smith’s body to his own.

He eventually wrapped Smith’s body in blankets and plastic bags and placed it in the barrel, where it was found by police. Leighton Smith, the victim’s ex-husband, was sorting through the victim’s belongings after defendant was taken into custody. Although police had already searched the house, Leighton Smith contacted police when he discovered a hammer lying under a daybed. He also noticed many of the victim’s possessions were missing, including coins, furs, jewelry, china, a television, a camera, a microwave oven, and a stereo.

There was evidence that, in order to buy cocaine, defendant sold the victim’s property after, and possibly before, her death. He bartered away her car to Albert and Americo Perez for a quarter gram of cocaine plus a promise of more cocaine in the future. The Perez brothers sold the car in Mexico but agreed to retrieve it and testify against defendant in exchange for a grant of immunity. Sandra Barney testified that she helped defendant cash some of the victim’s checks; on at least two occasions, she saw him write the victim’s name on a check.

She also testified that they used the money from the checks to buy drugs and alcohol and that defendant tried to sell the victim’s jewelry. Jackie Dennis testified that defendant gave her some women’s clothes and jewelry to sell and asked if she knew anyone who wanted to buy some dishes. In addition, defendant’s two psychotherapists testified and related various inculpatory statements defendant made in therapy. (See discussion, post, p. 549 et seq.) Defendant did not present an afiirmative defense.

Penalty Phase The prosecution’s case at the penalty phase of the trial consisted of evidence of defendant’s prior felony convictions. In June 1975, 61-year-old Jane B. answered her doorbell and found defendant, a neighbor, on her doorstep. He indicated he had been fighting with his wife and asked to use Jane B.’s telephone. She told him it was too late to let him in but made up a package of cosmetics to give to defendant for his wife, thinking it would cheer her up. When she opened the door to hand the package to him, defendant forced his way in and, armed with a butcher knife, forcibly raped her.

During the crime, defendant held the knife to her throat, told her he would kill her if she screamed or made any noise, and made several small, shallow cuts on her neck. Defendant told her that if she reported the crime, he would return and kill her. He also threatened to firebomb her house. After defendant left, Jane B. discovered some money, a small radio, and a camera were missing. She testified at defendant’s subsequent rape trial that the ordeal was extremely painful and that it left her vaginal area bloody.

After his arrest for rape, defendant admitted he raped and robbed Jane B. but denied making the cuts on her neck. During his interrogation, defendant also admitted killing Robert Pierce after the latter solicited a homosexual act from him. Defendant said he kicked Pierce and continued to kick him after he fell down. Before leaving the scene, he took Pierce’s watch. The prosecution’s evidence showed that in February 1975, Santa Barbara police found the body of Pierce, a university professor, lying in a doorway.

Although they initially believed the death was accidental, an autopsy revealed facial and other injuries inconsistent with the accidental death theory. Defendant eventually pleaded guilty to second degree murder and rape. In addition to this evidence, the prosecution introduced evidence of defendant’s prior convictions for burglary and receiving stolen property. In the defense portion of the penalty phase, defendant called Dr. Judith Hamilton to the stand. She testified that defendant voluntarily sought treatment from her because of headaches, restlessness, and feelings of nervousness around people.

He also had a fear of hurting his girlfriend, victim Linda Smith. Defendant reported he had abused several drugs in the past, including cocaine, amphetamines, marijuana, and alcohol. In addition, he told her that he hated his father and grandfather, that his grandfather beat him with branches and scraps of wood, and that he was sexually abused by his mother’s friend when he was 11 years old. Defendant also revealed he had attempted suicide on three different occasions, the most recent being a month earlier. Dr.

Hamilton diagnosed defendant as suffering from atypical impulse control disorder and multiple drug or substance abuse. She could not determine on the basis of her sessions with defendant whether she could rule out paranoid schizophrenia and organic personality disorder as possible diagnoses. Claudia Ann Wharton, defendant’s sister, described his childhood. The family, including defendant, moved to his maternal grandmother’s farm in Hammond, Louisiana, after defendant’s parents separated. His mother worked as domestic and received welfare benefits.

David Lee, defendant’s stepgrandfather, was a six-foot, five-inch, three-hundred-pound man known as “Big Daddy” and was the father figure on the farm. Lee did not like defendant. Lee would beat defendant with a leather strap or an oak branch whenever defendant displeased him. Defendant carried a heavier share of the chores than did the other children. Defendant’s mother often quarreled with Lee; when he became angry, Lee would sometimes turn off the family’s water or refuse them wood to burn in the winter. Defendant’s mother had a drinking problem during defendant’s childhood years.

When defendant was 16, he left home and entered the Job Corps. Claudia also testified that defendant was a changed man after he was released from his first term in prison. He was anxious in crowds and had headaches. She stated that defendant told her he did not kill Pierce or rape Jane B. He also told her his wife had a miscarriage the night Jane B. was raped. Pearl Wharton, defendant’s mother, testified that she left home at age 11 when Lee tried to molest her. She married defendant’s father, George Wharton, when she was 22 years old and their marriage lasted about 30 years.

Defendant’s father drank and occasionally physically abused her. After the family moved back to her mother’s farm, Lee mistreated defendant, beating him with oak switches. On one occasion, she argued with Lee after he whipped one of her daughters with an extension cord. When Lee struck defendant’s mother with a broomstick, defendant picked up a stick to defend her. Lee produced a gun and defendant ran away. Linda Wharton, another of defendant’s sisters, essentially corroborated Claudia and Pearl Wharton’s description of defendant’s childhood years.

She speculated that Lee punished defendant because he looked like his father, a man Lee disliked. She also recalled that on one occasion, when defendant was 12 or 13 years old, Lee placed him in a burlap sack, dangled it from a tree branch with a rope, and then set a smoldering, smoky fire under the sack. Defendant was left in the sack for hours. Dr. Donald Patterson, a psychiatrist, examined defendant at the request of the defense. He concluded defendant suffered from a personality disorder, a substance abuse disorder, and possibly paranoid schizophrenia.

In addition, he noted that at the time of the crime, defendant was under severe stress which may have led to a brief reactive psychosis, i.e., a brief interruption of contact with reality because of some significant event or stress. This would explain defendant’s unusual behavior following the slaying, that is, moving the victim’s body from room to room and building a fire to keep her “warm.” Patterson stated that although “atypical impulse disorder” (Dr. Hamilton’s diagnosis) was a possibility, he was less comfortable with that diagnosis. Dr.

Patterson concluded by stating that, in his opinion, defendant was under the influence of extreme mental or emotional disturbance at the time he committed the crime because of the dysfunctional relationship he had with the victim. In addition, Patterson believed that defendant reasonably believed there was moral justification for his conduct and that he acted under extreme duress or under the substantial domination of another person. He reached these latter conclusions in light of evidence showing defendant suffered auditory hallucinations and may have killed in response to “voices” he heard inside his head.

Discussion Guilt Phase 1. Sufficiency of Evidence of Premeditation and Deliberation Defendant contends there is insufficient evidence of premeditation and deliberation to support the jury’s first degree murder verdict. Although defendant relies heavily on the circumstances of the crime—as he described them in his confession to Officer Tonello—to conclude there was insufficient evidence of premeditation, there was other evidence from which a rational trier of fact could have concluded defendant premeditated before killing.

This latter evidence was admittedly not overwhelming, but “we need not be convinced beyond a reasonable doubt that defendant premeditated the murder[]. The relevant inquiry on appeal is whether ‘ “any rational trier of fact” ’ could have been so persuaded.” (People v. Lucero (1988) 44 Cal.3d 1006, 1020 [245 Cal.Rptr. 185, 750 P.2d 1342], quoting People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255], and Jackson v.

Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781], italics in original.) As in past cases, we rely on the tripartite test first set forth in People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942].

Accordingly, we determine whether there was evidence of (1) defendant’s planning activity prior to the homicide; (2) his motive to kill, as gleaned from his prior relationship or conduct with the victim; and (3) the manner of killing, from which may be inferred that defendant had a preconceived design to kill. “[T]his court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Id. at p. 27.) In asserting there was no evidence of planning activity, defendant points to his confession, which tends to paint a picture of a killing during a spontaneous and uncontrolled explosion of anger, frustration, and rage.

As the prosecutor argued in his closing summation, however, the fact that the hammer—the likely murder weapon—was not found in the toolbox suggests defendant may have removed it ahead of time and placed it nearby, “planning to be in a rage.” (See People v. Martinez (1987) 193 Cal.App.3d 364, 372 [238 Cal.Rptr. 265].) This possibility was given some support by the testimony of defendant’s psychotherapists that he was seeing them because he was afraid he would strike Smith.

Another possible scenario raised by the prosecutor in closing argument is that defendant and Smith quarreled, he became angry, went to the garage to obtain the hammer with the intent to kill Smith with it, came back and struck her as she slept. (There was evidence she was not standing when struck.) As the prosecutor properly informed the jury, “premeditation can occur in a very short period of time.” (People v. Bloyd (1987) 43 Cal.3d 333, 348 [233 Cal.Rptr. 368, 729 P.2d 802]; People v.

Velasquez (1980) 26 Cal.3d 425, 435 [162 Cal.Rptr. 306, 606 P.2d 341].) Under this version, defendant’s act of retrieving the hammer would constitute planning activity. Either version of the actual crime is indicative of planning activity and reasonably inferable from the evidence.

Although both are inconsistent with the circumstances of the crime as related by defendant to Officer Tonello, the jury was entitled to disbelieve defendant’s self-serving statements, especially in light of the fact that he was less than forthcoming during that critical interview, at one point sarcastically directing Tonello to “do some detective work. That’s what you’re there for, you know.” Defendant was also somewhat inconsistent in his description of the killing, at one point saying he might have strangled Smith in addition to striking her on the head, but that he was not sure.

Under these circumstances, the jury’s decision to disbelieve his story was not unreasonable. The prosecutor also identified a plausible motive for the slaying. (See Lucero, supra, 44 Cal.3d at p. 1019 [“plausible” motive found].) The evidence clearly showed that defendant sold some of Smith’s belongings after her death and there was evidence from which the jury could have reasonably inferred that defendant was also stealing from Smith before her demise. Sometime before Smith’s death, defendant told his psychotherapist that their house was apparently burglarized and some of Smith’s coins and jewelry were missing.

Defendant and Smith placed the remaining valuables in the car, intending to take them to the bank for safekeeping, but the car was also burglarized and the remaining items lost. Later, however, Smith found in the house property allegedly taken in the burglaries. The clear implication was that defendant took the property himself, intending to sell it, and blamed the loss on a bogus burglary. This possibility was consistent with other evidence. Shortly before her murder, Linda Smith, defendant, and one Lewis Smith (no apparent relation) had dinner together.

Defendant and Lewis Smith took Linda Smith’s car to buy some liquor. She called the police and reported her car as stolen when defendant was gone for more than 45 minutes. The prosecutor invited the jury to conclude that she must have known about the prior thefts of her property because she was so quick to conclude defendant had stolen her car. We admit that these inferences are by no means the only ones that may be drawn from the evidence and that the evidence of premeditation and deliberation is not strong.

Nevertheless, the inferences urged by the prosecutor were permissible ones in that they are reasonably deducible from the evidence. (Johnson, supra, 26 Cal.3d at p. 576.) Viewing the evidence in a light most favorable to the People and presuming all reasonable facts in support of the judgment, we conclude a “rational trier of fact” could have been persuaded that there was evidence of (1) planning activity, and (2) motive.

Although the manner of killing was not indicative of a preconceived design to kill (Lucero, supra, 44 Cal.3d at p. 1020 [“multiple blows to the skull from a blunt instrument [is not very] suggestive of premeditated murder”]), appellate courts sustain verdicts of first degree murder where there is evidence of motive in conjunction with planning activity. (Anderson, supra, 70 Cal.2d at p. 27.) We thus conclude there was sufficient evidence to support the jury’s verdict that defendant premeditated and deliberated the killing. 2.

The Psychotherapist-patient Privilege Defendant raises a host of issues centered on his assertion that the trial court’s decision to permit the prosecutor to examine Drs. Hutcheson and Hamilton, defendant’s two psychotherapists, violated Evidence Code

section 1014, the psychotherapist-patient privilege. That

section provides in pertinent part that subject to waiver by voluntary disclosure, “the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist if the privilege is claimed by: [fl] (

a) The holder of the privilege.” Because the factual background of this issue is somewhat complicated, we discuss it in some detail. a. Background On January 27, 1986, i.e., more than two weeks before the murder, defendant voluntarily sought mental health counselling. He had four sessions with Dr. Hamilton, a postdoctoral intern; he was also examined by Dr. Hutcheson, a psychiatrist, once briefly and again for one full session. Based on defendant’s history as well as comments he made in these sessions, both Dr. Hutcheson and Dr. Hamilton warned Linda Smith that she was in danger. (See Tarasoff v.

Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166], hereafter Tarasoff.) Prior to trial, the prosecutor moved for a hearing and a determination that both doctors could testify about some allegedly privileged information, namely the Tarasoff warning. Both psychotherapists, represented by county counsel, joined the People’s motion. Defendant opposed the motion, relying on the psychotherapist-patient privilege.

After an in camera hearing in which both doctors testified, the trial court ruled that the prosecution could “inquire into the substance of the conversations with Linda Smith,” and that conversations between the doctors and the victim were discoverable, as were the professional impressions and diagnosis that prompted the warning. Included in the latter ruling were statements made by defendant, although the trial court specifically excluded “any statements [defendant made in therapy] that did not trigger the Tarasoff warning.” Shortly before Dr.

Hutcheson testified at trial, the parties met in chambers to discuss the doctor’s proposed testimony. The prosecutor proposed to ask Dr. Hutcheson about defendant’s comments concerning homicidal thoughts and whether a warning was given. Defendant objected “to any information going before the jury about Dr. Hutcheson having a conversation with Linda and telling her to do something.” He initially relied on hearsay and relevance grounds for his objection, later adding Evidence Code

section 352 as a third ground for exclusion. No mention was made of the psychotherapist-patient privilege. After some additional discussion, the trial court overruled defendant’s objections. The prosecutor also expressed his intention to ask Dr. Hutcheson about his conversation with Smith, arguing that defense counsel opened the door to such evidence by informing the jury, in his opening statement, that defendant was provoked by Smith. This statement, the prosecutor claimed* placed defendant’s state of mind in issue.

The trial court was dubious of this argument, stating that until defendant actually introduced evidence on that topic, his state of mind was not in issue. All parties, however, expressed concern for the witness’s inconvenience should he be called to the stand to give his testimony piecemeal. Defense counsel then proposed to make an offer of proof in camera regarding his intended line of questioning on cross-examination. All agreed to this procedure. After the prosecutor left the judge’s chambers, defense counsel stated that, on cross-examination, he intended to ask whether Dr.

Hutcheson had reached a diagnosis of defendant, and he expected the doctor to report that he had diagnosed defendant as a paranoid schizophrenic-chronic. Counsel admitted, “That’s going to put Mr. Wharton’s mental condition into issue.” When the prosecutor returned, the judge informed him, “I’m satisfied that the mental state of the defendant will be in issue in this case. I’m so informing you, and you may take whatever actions you so desire.” With the jury present, Dr. Hutcheson testified that on January 27, 1986, he spoke briefly with defendant at Dr.

Hamilton’s request in what he termed was a “semi-emergency session.” After five or ten minutes, Dr. Hutcheson determined that defendant was tense, anxious, and had “a variety of symptoms.” He concluded defendant should see him again as soon as possible. Dr. Hutcheson had no notes from this brief session and could not recall whether defendant made any comments that could be construed as threats of violence. Dr. Hutcheson saw defendant again on February 6th.

The psychiatrist discovered defendant was suffering from auditory hallucinations, that they were worse under stress, but that defendant could differentiate the voices from his own thoughts. Defendant told Dr. Hutcheson that he stayed away from guns and knives because he was afraid he might use them on himself or others. Defendant said nothing else about “potential threats or violence or orders to kill.” Defendant did not cross-examine Dr. Hutcheson at that time but reserved the right to do so later in the trial. After a similar in-chambers discussion with Dr.

Hamilton the next week, she testified and described her therapy sessions with defendant. She first saw defendant on January 27th. Her notes revealed that he had a “fear of hurting [his] current girlfriend” and was afraid he would hit Smith. Although Dr. Hamilton’s intake narrative states that defendant often had “thoughts ... of murder,” she could not recall what defendant said to prompt her to write those words. She was sure defendant never used the words “kill” or “murder.” Dr. Hamilton next saw defendant on February 3, 1986.

Her notes for that session state defendant “feels he is losing more control of his anger.” Defendant’s next appointment with Dr. Hamilton was for February 7th. During this session, he made no comments regarding violence towards Linda Smith. At his fourth and final session with Dr. Hamilton on February 14th, Dr. Hamilton’s notes report that defendant “feels manipulated by Linda” but she could not recall defendant’s precise words.

From her notes, she recalled that defendant told her that Linda Smith had reported her car as stolen, an apparent reference to the time defendant and Lewis Smith took Linda Smith’s car to buy some liquor. Finally, Dr. Hamilton noted defendant appeared calm, coherent, and was neatly groomed. On cross-examination, Dr. Hamilton reiterated that defendant never used the word “kill” or “murder.” Further, defendant’s admitted fear of losing control of his anger was not directed at anyone in particular. When defendant became angry at Smith, he would walk away or hit a wall.

On redirect examination, she testified her notes stated that defendant said, “Sometimes [Smith is] frightened of me. I need to get away from her and find solitude.” Dr. Hamilton said defendant became aggressive when intoxicated. After a recess, the prosecutor stated in chambers that he intended to question Dr. Hamilton about statements defendant made regarding the coins and jewelry that were allegedly taken in a burglary, only to be later discovered in the house by Smith. The trial court overruled defense counsel’s relevance and Evidence Code

section 352 objections and the prosecutor thereafter elicited this information from Dr. Hamilton in open court. At the close of Dr. Hamilton’s testimony, defendant recalled Dr. Hutcheson for cross-examination and established that the witness had diagnosed defendant as a paranoid schizophrenic. b. Discussion We begin with the fact that both Dr. Hamilton and Dr. Hutcheson were qualifying psychotherapists (Evid. Code, § 1010), and that defendant was their patient (id., § 1011).

Because defendant established a psychotherapist-patient relationship with both doctors, statements he made in the course of those professional relationships were, generally speaking, confidential communications coming within the scope of the privilege. (Id., §§ 1012 [defining the term “confidential communication”], 1014 [outlining the privilege].) Defendant’s arguments revolve around his claim that the trial court misconstrued the scope of the exception to the psychotherapist-patient privilege embodied in Evidence Code

section 1024 (hereafter

section 1024). That

section provides, “There is no privilege under this

article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.” It appears, however, that defendant waived the privilege by placing his mental state in issue. The record shows that prior to Dr. Hutcheson’s testimony, the parties were concerned about the possibility of Dr. Hutcheson delivering his testimony piecemeal.

During this discussion, the prosecutor stated that “The issue generally is . . . quote, ‘Once the defense puts the defendant’s mental state in issue . . .’ unquote, the privilege is waived .... I think that’s what you’re talking about.” Defense counsel replied, “Yes.” Later, defense counsel made an offer of proof in chambers that he intended to ask Dr. Hutcheson whether he had made a diagnosis of defendant. Counsel admitted, “That’s going to put Mr. Wharton’s mental condition in issue.” The trial court relayed this information to the prosecutor. Later, before the jury, defense counsel queried Dr.

Hutcheson about his diagnosis of defendant. Evidence Code

section 1016 states in pertinent part that “There is no privilege . . . as to a communication relevant to an issue concerning the mental or emotional condition of the patient if such issue has been tendered by: [10 (

a) The patient.” This

section seems applicable to the facts of this case and, indeed, seems to have been anticipated by defense counsel, who stated on the record that he understood he was placing defendant’s mental state in issue. Defendant argues it is unfair to rely on his offer of proof and subsequent cross-examination of Dr. Hutcheson to conclude he waived the privilege. He asserts that a closer reading of the record reveals that his offer of proof “was a product of the trial court’s erroneous ruling” permitting the prosecution to inquire about the Tarasojf warning (supra, 17 Cal. 3d 425).

In support, he notes that defense counsel stated that If Dr. [Hutcheson] takes the witness stand on cross-examination, one of the things I’m going to ask him is whether he made a diagnosis of Mr. Wharton. I know that he did and I know what the diagnosis is.

He’s going to tell the court that he was diagnosed ... as a paranoid schizophrenic-chronic.” (Italics added.) Defendant insists that we should interpret the single italicized word (“If . . .”) as meaning “counsel intended to elicit evidence about [defendant’s] mental and emotional condition only if the psychotherapist was called as a witness by the prosecution, an occurrence which the defense had consistently opposed.” (Italics in original.) Defendant’s position thus appears to be that although he placed his mental state in issue, he was unfairly “coerced” into doing so by the trial court’s “erroneous ruling” on the scope of the exception to the privilege embodied in

section 1024. Defendant and amici curiae raise a plethora of arguments that, they claim, demonstrate that the trial court misinterpreted

section 1024. Because the validity of our conclusion that defendant waived the privilege under Evidence Code

section 1016 hinges on the correctness of the trial court’s ruling on the scope of the privilege, we proceed to discuss these challenges. As explained below, because we find the trial court’s ruling on the scope of the

section 1024 exception was not “erroneous” but was in fact a correct

interpretation of the statute, defendant’s “coerced waiver” theory is untenable. Prior to trial, the court ruled that the prosecution could question Drs. Hutcheson and Hamilton about both (1) the substance of their warning to the victim, and (2) defendant’s statements, made in therapy, that “triggered” the warning. The former portion of the court’s ruling is unquestionably correct: once confidential “statements have been revealed to third persons in a communication that is not itself privileged . . . they are no longer confidential.” (People v. Clark (1990) 50 Cal.3d 583, 619-620 [268 CaLRptr. 399, 789 P.2d 127].) Defendant claims that the court interpreted

section 1024 too broadly by ruling that the privilege was involuntarily waived for all statements for all purposes merely because some of his statements (made in therapy) justified disclosure in the form of a warning to the victim. Amici curiae echo this argument and maintain that even if

section 1024 permitted the prosecution to question defendant’s psychotherapists about confidential communications defendant made that caused them to warn the victim, other communications, made in therapy but irrelevant to the warning, were not made available by

section 1024. Of particular importance were statements defendant made in therapy concerning the victim’s discovery of items purportedly stolen in a previous burglary. The prosecution relied on these statements to bolster its theory that defendant premeditated the homicide. We agree that the mere fact that some statements are nonprivileged by operation of

section 1024 does not automatically make all of defendant’s confidential communications to his therapists available to the prosecution. “[T]he psychotherapist-patient privilege is to be liberally construed in favor of the patient.” (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337 [107 Cal.Rptr. 309, 508 P.2d 309]; In re Lifschutz (1970) 2 Cal.3d 415, 437 [85 Cal.Rptr. 829, 467 P.2d 557, 44 A.L.R.3d 1].) “And, even when the balance tips in favor of disclosure, constitutional concerns require a strict circumscription of the scope of the disclosure.” (Cutter v.

Brownbridge (1986) 183 Cal.App.3d 836, 843 [228 Cal.Rptr. 545].) We have an “obligation to construe narrowly any exception to the psychotherapist-patient privilege: we must apply such an exception only when the patient’s case falls squarely within its ambit.” (People v. Stritzinger (1983) 34 Cal.3d 505, 513 [194 Cal.Rptr. 431, 668 P.2d 738].) The foregoing authorities, however, provide no support to either defendant or amici curiae because each misconstrue the trial court’s ruling.

Although the court permitted the prosecutor to inquire about “[statements by the defendant himself which [led] to the impressions and diagnosis and ultimate conclusion to communicat[e] with the victim,” the court went on to rule that “[n]ecessarily excluded are any statements that did not trigger the . . . warning.” (Italics added.) Thus, the court expressly limited application of

section 1024 to those confidential communications that “triggered” their decision to warn the victim. By circumscribing the scope of the exception to the privilege, the trial court acted in accordance with both the intent of the Legislature and this court’s prior pronouncements on the subject. (Stritzinger, supra, 34 Cal.3d at p. 513; In re Lifschutz, supra, 2 Cal.3d at p. 435.) Defendant also contends

section 1024 should not apply after the victim is dead because the purpose of the exception is to avert danger to others, a goal rendered irrelevant after the harm has occurred. Although

section 1024 permits a psychotherapist to warn a potential victim of danger, and indeed the therapist has a common law duty to do so (Tarasoff, supra, 17 Cal.3d 425), defendant argues that

section 1024 is a very limited exception to the otherwise strong public policy favoring confidentiality in psychotherapist-patient relationships. Once the threat of harm ceases to exist, he claims, the reason for the exception also evaporates and the interest favoring confidentiality again becomes paramount. Were we to adopt defendant’s

interpretation of the statute, however, a dangerous patient could regain the protection of the privilege by simply killing his victim, certainly an absurd result. (People v.

Morris (1988) 46 Cal.3d 1, 15 [249 Cal.Rptr. 119, 756 P.2d 843] [“a statute should not be interpreted in a manner that would lead to absurd results”].) Moreover, such a rule would ill serve the “public interest in safety from violent assault” (Tarasoff, supra, 17 Cal. 3d at p. 440), an interest our Legislature has found predominant when balanced against the admitted importance of maintaining the confidential nature of statements made in psychotherapy. (Ibid.) We have previously recognized “the public interest in supporting effective treatment of mental illness and . . . the consequent public importance of safeguarding the confidential character of psychotherapeutic communication.” (Tarasoff, supra, 17 Cal.3d at p. 440; In re Lifschutz, supra, 2 Cal.3d at pp. 422-423.) “Psychoanalysis and psychotherapy are dependent upon the fullest revelation of the most intimate and embarrassing details of the patient’s life ....

Unless a patient ... is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends.” (Sen. Judiciary Com. com., 29B West’s Ann. Evid. Code (1966 ed.) § 1014, p. 621.) In light of this strong public policy favoring confidentiality in the psycho-therapeutic relationship, defendant claims

section 1024 permits a disclosure of statements made in therapy only to warn a potential victim, i.e., that the

section is prospective only. To support this

interpretation, defendant notes that Tarasoff discusses

section 1024 in terms of averting or preventing threatened danger. (See Tarasoff, supra, 17 Cal. 3d at p. 441.) In addition, the language of

section 1024 itself permits “disclosure of the communication [if it] is necessary to prevent the threatened danger.” (Italics added.) Such phraseology in Tarasoff is explainable by the fact that that case involved a therapist’s common law duty to warn the intended victim of future danger; thus, its perspective was prospective in the sense that it required disclosure of confidential information before the harm occurred. Tarasoff did not concern a situation where the harm had already occurred and thus had no occasion to consider the issue. Cases addressing a retroactive application of the statute, i.e., after the threatened harm has occurred, have uniformly held

section 1024 applicable. People v. Gomez (1982) 134 Cal.App.3d 874 [185 Cal.Rptr. 155], is illustrative. In that case, the defendant killed Herrera, his ex-wife’s lover, and then sought to invoke the psychotherapist-patient privilege at trial to prevent two student interns from revealing death threats he made against Herrera. Both interns had revealed the threats to appropriate authorities. On appeal, the defendant claimed that although

section 1024 provided there was “no privilege” for such death threats, “the communications became privileged because by the time of trial, the victim was dead and ‘disclosure’ was no longer ‘necessary to prevent . . . danger.’” (134 Cal.App.3d at p. 881.) The Court of Appeal rejected that contention, reasoning that if the preliminary facts supporting application of

section 1024 existed prior to the injury (or in that case, death), there was simply “no privilege.” Gomez, supra, 134 Cal.App. 3d 874, relied on the reasoning in Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594 [162 Cal.Rptr. 724], In Mavroudis, the plaintiffs’ son Robert was treated by defendant hospital for various mental disorders. Plaintiffs filed a lawsuit based on Tarasoff, supra, 17 Cal. 3d 425, after Robert attacked them with a hammer, inflicting multiple physical injuries. In connection with the lawsuit, plaintiffs sought discovery of defendant’s psychiatric records.

After the trial court denied plaintiffs’ motion to compel production of records, they sought a writ of mandate, claiming inter alia that

section 1024 was applicable. The Court of Appeal recognized that “A literal reading of Evidence Code

section 1024 would limit its provisions to a prospective application” and that “Both the language of the statute and the Law Revision Commission comment speak in terms of ‘threatened danger.’” (Mavroudis, supra, 102 Cal.App.3d at p. 603.) The court nevertheless found

section 1024 applicable and reversed the denial of the motion to compel discovery: “If the preliminary facts upon which Evidence Code

section 1024 rests were present at a time prior to the injury complained of,

section 1024 prevents any privilege from attaching and the psychiatric records are subject to discovery in the subsequent proceeding.” (102 Cal.App.3d at p. 604.) Defendant cites Scull v. Superior Court (1988) 206 Cal.App.3d 784 [254 CaLRptr. 24] (hereafter Scull), which he argues supports his assertion that

section 1024 cannot apply after the threatened harm has occurred. In Scull, a psychiatrist was charged with the sexual molestation of a minor patient. The district attorney sought discovery of the psychiatrist’s records involving his former patients in an attempt to discover whether the accused had molested other patients during past treatment sessions. In addition, the prosecutor argued that if the accused was a pedophile, he was likely a repeat offender, and that disclosure of the names of his previous minor patients would could lead to inculpatory evidence and avert harm to other patients.

Over the defendant’s objections based on the psychotherapist-patient privilege, the trial court granted the district attorney’s discovery motion, but placed strict limitations on the manner in which the former patients could be contacted. The Court of Appeal let issue a writ of mandate and reversed, ruling the trial court erred in granting the discovery motion.

The appellate court balanced the competing interests and found “the proffered use of the evidence sought by the prosecution to be insufficient to overcome the patients’ right to confidentiality.” (Scull, supra, 206 Cal.App.3d at p. 792.) At one point, the appellate court opined that “there is nothing in the record to suggest that petitioner is still seeing any of his former patients.

Hence, the injuries which are complained of had already taken place and there was no evidence before the trial court that injury was likely to occur in the future.” (Scull, supra, 206 Cal.App.3d at p. 793.) Although this passage might suggest a retroactive application of

section 1024, two factors convince us otherwise. First, the Scull opinion fails to even mention

section 1024; instead, it merely considered a general exception to the psychotherapist-patient privilege on due process grounds. Second,

section 1024 does not apply to the factual situation posed in Scull, a case involving a potentially dangerous therapist.

Section 1024 applies only when a therapist has a “patient [that] is in such mental or emotional condition as to be dangerous to himself or to the person or property of another.” (Italics added.) The Scull court impliedly recognized this fact when, in rejecting the suggestion that Tarasoff, supra, 17 Cal. 3d 425, required disclosure of the patient names, it reasoned, “[Tarasoff] involved discovery concerning dangerous patients.

The policy which requires that a doctor warn of the proclivities of dangerous patients in order to prevent harm to others is not implicated where the persons who are sought to be identified are not sources of danger to the public.” (Scull, supra, 206 Cal.App.3d at p. 793, original italics.) We conclude Scull, supra, 206 Cal.App.3d 784, does not support defendant’s contention that

section 1024 is inapplicable after the threatened harm has occurred, and instead find the reasoning in Gomez, supra, 134 Cal.App.3d 874, and Mavroudis, supra, 102 Cal.App.3d 594, more persuasive. Because defendant made comments within the psychotherapeutic relationship which led his therapists to reasonably conclude he posed a threat to the victim, such comments were not privileged pursuant to

section 1024. Moreover, because the preliminary facts justifying application of

section 1024 existed prior to the realization of the threatened danger, not only were the therapists free to communicate such statements to the victim, but defendant’s statements were not privileged and the trial court correctly ruled that evidence concerning those statements was admissible at trial. Defendant maintains this

interpretation of

section 1024 is contrary to public policy because it will discourage those in need of help from seeking mental health counseling, fearing their personal and intimate revelations in therapy will be revealed to others. Moreover, he claims those who choose to seek help will be in a worse position for having done so.

We considered similar concerns in Tarasoff, supra, 17 Cal.3d 425, and found “that such predictions are entirely speculative.” (Id. at p. 440, fn. 12.) Moreover, as Justice Tobriner explained in that case, “the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.” (Id. at p. 442.) We thus conclude

section 1024 reflects “ ‘a clear expression of legislative policy concerning the balance between the confidentiality values of the patient and the safety values of his foreseeable victims.’ ” (17 Cal.3d at p. 441, fn. 13, quoting Fleming & Maximov, The Patient or His Victim: The Therapist’s Dilemma (1974) 62 Cal.L.Rev. 1025, 1063.) Accordingly, we cannot agree that our

interpretation of

section 1024 permitting Dr. Hutcheson and Dr. Hamilton to testify at trial contravenes public policy. Instead, such a rule vindicates the Legislature’s careful balance between the need for confidentiality in the psychotherapeutic relationship on the one hand, and public safety concerns on the other. Amici curiae contend the California Law Revision Commission Comment (hereafter the Comment) to

section 1024 (Deering’s Ann. Evid. Code (1986 ed.) § 1024, p. 213) compels a contrary

interpretation of that statute. The Comment states: “This

section provides a narrower exception to the psychotherapist-patient privilege than the comparable exceptions provided by [Evidence Code]

Section 982 (privilege for confidential marital communications) and [Evidence Code]

Section 1004 (physician-patient privilege). Although this exception might inhibit the relationship between the patient and his psychotherapist to a limited extent, it is essential that appropriate action be taken if the psychotherapist becomes convinced during the course of treatment that the patient is a menace to himself or others and the patient refuses to permit the psychotherapist to make the disclosure necessary to prevent the threatened danger.” (Italics added.) Amici curiae first argue that, based on the language in the Comment, we should interpret

section 1024 so that it is “comparable” to the other exceptions listed. Evidence Code sections 982 and 1004 delineate exceptions to the marital and physician-patient privileges, respectively, “in a proceeding to commit [the patient or either spouse] or otherwise place him or his property, or both, under the control of another because of his alleged mental or physical condition.” Both of these exceptions benefit the holder of the privilege. To be “comparable” to these exceptions, amici curiae claim, we should interpret

section 1024 in the same manner, i.e., that it should only apply “in proceedings conducted for the benefit of the persons to be protected by the section.” Such a constricted

interpretation is inconsistent with the plain meaning of

section 1024 as well as the Comment. In speaking in terms of “prevention” of a threatened danger “to himself or the person . . . of another” (italics added),

section 1024 is clearly intended not only as an exception for the benefit of a troubled patient, but for an endangered third person as well. Moreover, the Comment’s recognition that the exception “might inhibit” the psychotherapeutic relationship clearly anticipates that invocation of the exception would not inure to the patient’s benefit. Amici curiae next contend the Comment’s statement that

section 1024 is “a narrower exception” than Evidence Code sections 982 and 1004 means

section 1024 should be interpreted to apply “only in proceedings designed to prevent potential harm to the patient or to the person or property of another.” The Legislature, however, has shown that it knows how to limit application of an exception to the psychotherapist-patient privilege to a certain type of proceeding. (See Evid. Code, §§ 1023 [no privilege in proceeding to determine criminal defendant’s sanity], 1025 [no privilege in proceeding brought by patient to establish his competence].) We thus cannot assume the Legislature intended the same effect when it did not expressly so provide in

section 1024. (See Stickel v. Harris (1987) 196 Cal.App.3d 575, 591 [242 Cal.Rptr. 88]; Fogarty v. Superior Court (1981) 117 Cal.App.3d 316, 320 [172 Cal.Rptr. 594],) The psychotherapist-patient privilege in Evidence Code

section 1014, as well as the dangerous-patient exception in

section 1024, are both part of division 8 of the Evidence Code. Evidence Code

section 910 states that “the provisions of this division apply in all proceedings.” The term “proceedings” is defined in pertinent part as “any action, hearing, [or] investigation ... in which, pursuant to law, testimony can be compelled to be given.” (Evid. Code, § 901.) In light of these provisions, amici curiae argue that because the Tarasoff warning (supra, 17 Cal. 3d 425) was not given in a “proceeding” as defined in Evidence Code

section 901,

section 1024 cannot apply. Defendant’s trial, however, is a proceeding as defined by Evidence Code

section 901, so

section 1024 clearly applied there. Amici curiae also argue that the out-of-court disclosure of confidential information to the victim did not “waive” the privilege for purposes of defendant’s trial. As we explained, however, in People v. Clark, supra, 50 Cal.3d at page 620, “The question is not whether the psychotherapist-patient privilege has been waived . . . but whether the privilege may be claimed at all once the communication is no longer confidential.” Because confidential communications were disclosed to a third party, here victim Smith, such statements lost their confidential status and were no longer privileged. (Ibid.) Both defendant and amici curiae argue that application of

section 1024 does not operate to remove the psychotherapist-patient privilege for communications not disclosed. In making this argument, defendant misperceives the nature of

section 1024. Under that section, if a certain factual predicate exists (i.e., if the therapist believes the patient is a danger to another and disclosure is necessary to prevent the danger), the statute does not provide that the privilege is “waived”; it merely provides that “[t]here is no privilege.” Thus, operation of

section 1024 is not keyed to voluntary disclosure and the concept of waiver as is Evidence Code

section 912, which provides for waiver upon an uncoerced disclosure by the holder of the privilege. The fact that the two therapists warned the victim is not the reason why some of defendant’s confidential communications were admissible at trial; rather, it was the existence of the specified factual predicate that brings this case within the ambit of

section 1024. Recognizing the paramount importance of confidentiality in the psycho-therapeutic relationship, we stated in Tarasoff, supra, 17 Cal. 3d 425, that “the therapist’s obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger.” (Id. at p. 441.) Amici curiae argue that our

interpretation of

section 1024 effectively nullifies this admonition because being compelled to testify against one’s patient is the antithesis of a “discreet” disclosure. The quoted language from Tarasoff, however, read in context, clearly spoke to the proper balance between the therapist’s common law duty to the endangered person and the patient’s privacy, not to the application of

section 1024. Moreover, the

interpretation of

section 1024 we adopt today preserves a patient’s privacy to that extent which is consistent with the purpose of that provision inasmuch as it prohibits revelation of confidential communications, revealed in therapy, which did not trigger the warning to the victim. Moreover, amici curiae exaggerate the effect of a Tarasoff warning (supra, 17 Cal.3d 425). Not every warning is inevitably followed by realization of the threat.

Thus, we cannot agree that “the very act of warning the victim would mean the therapist could be compelled to reveal his patient’s communications in any and all public proceedings thereafter.” We assume that in many if not most cases, a discreet warning will help avoid any potential danger to the victim and thus obviate the necessity of having a subsequent public proceeding at which the therapist could be compelled to testify. In addition, we reemphasize that not every statement a patient makes in therapy can be revealed simply because a warning was given.

As explained, ante, only those communications that triggered or caused the warning fall with the scope of

section 1024. As an alternative to our

interpretation of

section 1024, both defendant and amici curiae propose we interpret that

section to permit therapists to warn potential victims in order to avert potential danger, “but to forbid any other use of such disclosures.” We disagree that this restrictive view of

section 1024 is consistent with the Legislature’s intent. Although we recognize “our obligation to construe narrowly any exception to the psychotherapist-patient privilege” (Stritzinger, supra, 34 Cal. 3d at p. 513), that obligation applies to determining whether the factual predicate of

section 1024 has been met. Once a court determines a case falls within the ambit of that section, the statute simply provides that “[t]here is no privilege.” Moreover, once confidential communications are revealed by a therapist to a third party, such communications lose their confidential status. (Clark, supra, 50 Cal. 3d at pp. 619-620.) We thus conclude the plain meaning of the language of

section 1024 cannot be reasonably read as having the far-reaching, preclusive effect advocated by defendant and amici curiae. Defendant further argues

section 1024 is inapplicable because his psychotherapists did not reveal any confidential communications to the victim. Even assuming arguendo such a revelation is a prerequisite to application of

section 1024 at a postdisclosure trial, we reject the argument for two reasons. First, defendant failed to object to the introduction of testimony of his therapists on this ground. (People v. Allen (1986) 42 Cal.3d 1222, 1271; Evid. Code, § 353 [232 Cal.Rptr. 849, 729 P.2d 115].) Second, even assuming we were to overlook the absence of a specific objection on this ground (see People v. Coleman (1988) 46 Cal.3d 749, 777 [251 Cal.Rptr. 83, 759 P.2d 1260]), it appears that “confidential communications,” as defined in the Evidence Code, were disclosed to the victim.

The record reveals that during an in chambers meeting, Dr. Hamilton recounted the Tarasoff (supra, 17 Cal. 3d 425) warning she gave to victim Linda Smith: “I said to her, ‘You’re in a very dangerous situation. I think you should get out,’ essentially. And she said, ‘Well, he’s tied me up and held a butcher knife to my stomach, and he’s hit me,’ and she said, ‘If I leave him I’ll be lonely,’ or, ‘he would kill me.’ [fl] And that was—so that’s—at which point I told her I thought she should get police protection.

At which point she said to me, ‘Well, I’ve tried that.’ She didn’t seem to think that would work.” Evidence Code

section 1012 states in pertinent part that the term “ ‘confidential communication between patient and psychotherapist’ means information, including information obtained by an examination of the patient, transmitted between a patient and his psychotherapist in the course of that relationship and in confidence . . . , and includes a diagnosis made and the advice given by the psychotherapist in the course of that relationshp.” As is clear, although Dr. Hamilton did not reiterate for the victim the exact statements defendant made in therapy which led her to warn the victim, Dr.

Hamilton revealed “information . . . transmitted between a patient and his psychotherapist” within the professional relationship. We conclude defendant’s psychotherapists revealed confidential communications, as that term is defined in the Evidence Code, to the victim. Defendant finally argues that a broad

interpretation of

section 1024 implicates constitutional privacy and due process concerns. Other than a bare mention, however, defendant does not expand on his due process claim. We thus decline to consider it further. (See People v. Blankenship (1989) 213 Cal.App.3d 992, 995-996 [262 CaLRptr. 141].) In regard to his privacy claim, we recognize the relationship between the psychotherapist-patient privilege and a patient’s constitutional right to privacy. (Cal. Const., art. I, § 1; In re Lifschutz, supra, 2 Cal.3d at pp. 431-432, citing Griswold v.

Connecticut (1965) 381 U.S. 479, 484 [14 L.Ed.2d 510, 514, 85 S.Ct. 1678].) “It is also well established, however, that the right to privacy is not absolute, but may yield in the furtherance of compelling state interests.” (Stritzinger, supra, 34 Cal.3d at p. 511.) In this case, the trial court carefully balanced the defendant’s rights with the state’s interest in seeking to “redress . . . wrongs committed against its citizens.” (Scull, supra, 206 Cal.App.3d at p. 790.) We find nothing in our

interpretation of

section 1024 that is in derogation of defendant’s constitutional right to privacy. In sum, we conclude that where a psychotherapist warns a potential victim pursuant to

section 1024, that statute permits the psychotherapist to reveal, in a later trial or proceeding, both the substance of the warning and the patient’s statements, made in therapy, which caused or triggered the warning. Because the trial court’s ruling on defendant’s motion to exclude such statements based on the psychotherapist-patient privilege was thus correct, defendant’s decision to place his mental state in issue and waive the privilege was simply a tactical choice made in response to a correct evidentiary ruling by the trial court. We thus reject his claim that his waiver was coerced. 3.

Motion for Mistrial Prior to calling Americo Perez to the stand, the parties met in chambers to discuss the scope of Perez’s grant of immunity and to warn him not to mention defendant’s prior felony conviction. After noting Perez had sustained a recent beating and had some facial injuries, the trial judge instructed the prosecutor “to make sure that it’s clear that somehow no implication that Mr. Wharton is in any way, shape or form involved in any retaliation or any suggested retaliation against Mr.

Perez.” During the prosecutor’s examination of Perez in open court, the following colloquy occurred: “Q [By the prosecutor] While you were in custody on this case, were you beaten up in the jail? “A Yes, I was. “Q On one occasion or more than one occasion? “A About two occasions. “Q Is something wrong with your mouth right now? “A I got a wired jaw. “Q Whoever did this, it was not Mr. Wharton; is that correct? “A No. That’s correct, it wasn’t Mr.

Wharton. “Q Would you tell us in your opinion if I use the phrase snitch or snitch jacket, do you know what I’m talking about? “A Yes, I do. “Q Would you explain that to the jury? “A That’s somebody that gets in a situation to where they—well, in my situation I wasn’t the snitch. Actually, Mr. Wharton there actually got the word out saying that.” Defense counsel immediately sought a sidebar conference and the jury was excused. The court agreed that the witness’s statement was blurted out and not in response to the prosecutor’s question.

Defense counsel moved for a mistrial and sought a consultation with defendant. Because the jury was waiting, all agreed that the prosecutor should proceed with an unrelated witness. After her testimony, the court received a note from one of the jurors, asking: “What was allowed and what was not allowed with regard to Americo Perez’ testimony?” No further action was taken that day. The matter was taken up in chambers the next day. Defense counsel renewed his motion for a mistrial.

After hearing argument, the trial judge stated that “the jury would take any admonition not to pay attention to certain testimony fairly seriously and would listen to it and be influenced by it.” The court ultimately denied the motion, stating: “I’m not suggesting it isn’t serious. I don’t think it’s near as serious as [defense counsel is] contending.” The jury was recalled and the court announced: “We received a note from one of the jurors yesterday concerning an evidentiary question. I think it will be answered eventually.” The court next addressed the matter after a weekend break.

With the consent of defense counsel, the court gave the following admonishment: “Ladies and gentlemen, last week during the testimony of Mr. Americo Perez, Mr. Perez blurted out a statement about the defendant, Mr. Wharton. If you heard the statement, you’re instructed to disregard it. Mr. Wharton had nothing to do with any injuries that were sustained by Mr. Americo Perez. You shall take it as a fact that Mr. Wharton had nothing to do with the injuries of Mr. Perez, [fi] You shall not draw any adverse inferences against Mr.

Wharton from the fact that any witness was injured while in or out of the jail.” The direct examination of Perez then continued. Significantly, Perez admitted on cross-examination that his injuries were caused by a former neighbor named Herbert Lewis. The dispute apparently centered around Perez’s occupancy of a residence that should have remained vacant because of Perez’s failure to pay rent. Lewis called the police and Perez conceded he told Lewis “a couple things that he disliked.” Perez testified that when they encountered each other later that night, Lewis punched him twice before fleeing.

Defendant insists the court abused its discretion by denying his motion for a mistrial. He emphasizes that Perez’s blurted-out assertion that defendant “got the word out” (presumably that Perez had testified against him at the preliminary examination and was thus a “snitch”) was irrelevant and extremely prejudicial inasmuch as defendant was being tried for a very violent crime.

In addition, he claims the information was extremely damaging in the penalty phase of the trial because it communicated to the jury that defendant would be a dangerous prisoner if imprisoned for life without the possibility of parole. “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” (People v.

Haskett (1982) 30 Cal.3d 841, 854 [180 Cal.Rptr. 640, 640 P.2d 776].) Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice. (See People v. Rhinehart (1973) 9 Cal. 3d 139, 152 [107 Cal.Rptr. 34, 507 P.2d 642] [witness’s inadvertent answer, if error, was not sufficiently prejudicial to justify mistrial].) Applying these principles, we conclude defendant’s claim of incurable prejudice lacks merit.

First, Perez’s testimony did not directly implicate defendant in the beating; he merely said defendant “got the word out,” thereby requiring the jury to draw the further inference that “the word” led to the injuries. Second, the trial court gave a direct and pointed admonition regarding the volunteered testimony. Although defendant argues the admonishment was disregarded by the jury because the inadvertent statement was made on a Thursday and the admonition did not come until the following Monday, this is mere speculation.

Finally, and most importantly, Perez’s own later testimony on cross-examination dispelled any lingering doubt about defendant’s alleged participation in the beating by placing the blame squarely on his neighbor, for reasons wholly unrelated to Perez’s prior testimony. We conclude the court properly denied defendant’s motion for a mistrial. 4. Alleged Prosecutorial Misconduct Defendant contends the prosecutor committed prejudicial misconduct during closing argument by making five references to matters outside the record. (People v. Miranda (1987) 44 Cal. 3d 57, 108 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v.

Bolton (1979) 23 Cal.3d 208, 212-213 [152 Cal.Rptr. 141, 589 P.2d 396].) Defendant is precluded from raising this issue on appeal, however, because he failed to timely object and request the jury be admonished. (Miranda, supra, at p. 108; People v. Murtishaw (1981) 29 Cal.3d 733, 759, fn. 21 [175 Cal.Rptr. 738, 631 P.2d 446]; People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468].) Because none of the comments was so serious that a timely admonition would have been inadequate to cure the harm, any objection to the prosecutor’s argument is deemed waived. (People v.

Harris (1989) 47 Cal.3d 1047, 1084 [255 Cal.Rptr. 352, 767 P.2d 619]; Green, supra, at pp. 34-35.) Defendant concedes trial counsel failed to object but presents two reasons why that fact is not controlling.

First, he claims a timely objection and admonition would not have cured the harm because juries generally have a high regard for the comments of the prosecutor, who is the People’s representative in the trial. (See Bolton, supra, 23 Cal.3d at p. 213 [a jury has a “special regard ... for the prosecutor”].) That argument proves too much, however, because under that theory, no misconduct by the prosecutor in closing argument could ever be deemed cured by a trial court’s admonition.

We thus reject that point as contrary to prior decisions of this court finding waiver under similar circumstances. (E.g., Harris, supra, 47 Cal.3d at p. 1084; Miranda, supra, 44 Cal. 3d at p. 108.) Second, defendant would overcome application of the waiver rule by claiming his trial attorney provided ineffective assistance of counsel by failing to object. (People v. Fosselman (1983) 33 Cal.3d 572, 584 [189 CaLRptr. 855, 659 P.2d 1144]; People v.

Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) Keeping in mind that “a mere failure to object to evidence or argument seldom establishes counsel’s incompetence” (People v. Ghent (1987) 43 Cal.3d 739, 772 [239 Cal.Rptr. 82, 739 P.2d 1250]), we examine each instance of alleged misconduct. During closing argument, the prosecutor addressed defendant’s claim that he killed while in a heat of passion. The prosecutor said: “if it were really heat of passion, what do you think would have happened? Ninety-nine times out of a hundred what happens if you have a heat of passion thing?

The person calls the police.” Defendant claims the prosecutor was alluding to statistical information not admitted at trial. The jury probably recognized the prosecutor’s comment as hyperbole in the context of an argument, not verifiable statistical information. Even if a reasonable juror might have taken this argument to mean the prosecutor was referring to evidence—not admitted at trial—of law enforcement experience in previous heat of passion cases, there is nothing on the record which indicates that counsel provided ineffective assistance by failing to object.

For example, counsel might not have wanted to highlight the point with the jury and make it wonder if there really was such evidence. Thus, on this record, we cannot conclude counsel was remiss in failing to object. The remaining incidents of which defendant complains do not even amount to misconduct. “It is settled that a prosecutor is given wide latitude during argument.

The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” (People v.

Sassounian (1986) 182 Cal.App.3d 361, 396 [226 Cal.Rptr. 880].) “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets warranted by the evidence.’ ” (Fosselman, supra, 33 Cal.3d at p. 580; see also People v. Fields (1983) 35 Cal.3d 329, 362-363 [197 Cal.Rptr. 803, 673 P.2d 680].) Defendant complains the prosecutor discussed defendant’s treatment of the victim’s body by saying that “We have laws . . . about what you can do with a dead body. Alot [s/c] of people regard it as a sacred thing.

There’s someone he says he loves and he stuffs her into a barrel. And that probably occurred before here. Here or before.” Although defendant claims that by this comment, the prosecutor implied defendant had committed this same crime in the past, the comment cannot be reasonably interpreted as a reference to a prior murder. Instead, the prosecutor was apparently making reference to a calendar being used as a visual aid for the jury. In any event, there was no evidence that defendant had previously mistreated a dead body in such a manner. Counsel cannot be faulted for failing to object this statement.

A few minutes later, the prosecutor commented on defendant’s behavior during his taped interrogation by Officer Tonello, noting it was surprising that defendant did not appear nervous. The prosecutor said, “I mean, I’ve been dragged into the station on occasion in my younger days. It’s kind of a tense situation; right?” Although this remark was not based on any evidence or common knowledge, it was fleeting and tangential and could not possibly have prejudicial even if we assume counsel should have objected.

Later, the prosecutor recalled that when asked whether the victim “was ... in good health,” defendant merely said, “To the best of my knowledge.” The prosecutor observed that defendant’s answer was reminiscent of “the Watergate cases.” Although there was no evidence admitted at trial about “the Watergate cases,” the prosecutor’s reference was fleeting and clearly permissible as an illustration drawn from history. (Sassounian, supra, 182 Cal.App.3d at p. 396.) Counsel thus cannot be criticized for declining to object.

Returning to the heat-of-passion issue, the prosecutor noted that, because defendant was the aggressor in the relationship, this was unlike a case in which a victim of spousal abuse suddenly kills her spouse. “The wife that’s had enough after being thumped . . . and finally does something, okay? Like, if you lived in Santa Barbara, like the Veronica Grove shooting. A victim of spousal abuse and finally she shot him.” There was no evidence at trial detailing the Veronica Grove shooting.

The prosecutor’s mention of the Veronica Grove shooting drew on information neither introduced as evidence at trial nor arguably of common knowledge. The remark, however, was fleeting and tangential and could not possibly have prejudiced defendant even if misconduct. Thus, assuming arguendo counsel should have objected, relief is not warranted. In sum, counsel’s failure to object did not constitute ineffective assistance, and his failure to object to the alleged prosecutorial misconduct waived the issue for appeal.

Finally, although we recognize that prosecutorial misconduct may in some cases be “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process” (Harris, supra, 47 Cal. 3d at p. 1084, citing Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [40 L.Ed.2d 431, 436-437, 94 S.Ct. 1868]), such is not the case here. The prosecutor’s comments were brief, mild, and noninflammatory. 5.

Instruction on Provocation Defendant requested the following special jury instruction: “A defendant may act in the heat of passion at the time of the killing as a result of a series of events which occur over a considerable period of time, [fl] When the provocation extends for a long time, you must take such period of time into account in determining whether there was a sufficient cooling period for the passion to subside.

The burden is on the prosecution to establish beyond a reasonable doubt that the defendant did not act in the heat of passion.” The trial court rejected the proposed instruction on the dual grounds that it was an incorrect statement of the law and that the correct legal points raised were adequately covered in other instructions. Defendant challenges both reasons for the trial court’s refusal to give his requested instruction. We agree with defendant’s initial point that provocation sufficient to reduce murder to manslaughter need not occur instantaneously, but may occur over a period of time. People v.

Berry (1976) 18 Cal.3d 509 [134 Cal.Rptr. 415, 556 P.2d 777], is illustrative. In Berry, the defendant’s wife Rachel traveled alone to Israel three days after their wedding. When she returned, she announced that she loved another man, they had been sexually intimate, and she now wanted a divorce. For a period of 13 days, “Rachel continually provoked defendant with sexual taunts and incitements, alternating acceptance and rejection of him.” (Id. at p. 514.) The defendant killed Rachel. Citing People v.

Borchers (1958) 50 Cal.2d 321 [325 P.2d 97], we concluded that the “two-week period of provocatory conduct” by the defendant’s wife was sufficient to justify an instruction on voluntary manslaughter based on heat of passion. (Berry, supra, 18 Cal.3d at p. 515; see also Borchers, supra, at p. 329 [the victim’s “long continued provocatory conduct”]; People v.

Bridgehouse (1956) 47 Cal.2d 406 [303 P.2d 1018] [same].) The key element is not the duration of the source of provocation but “ ‘whether or not defendant’s reason was, at the time of his act, so disturbed or obscured by some passion ... to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’ ” (People v. Rich (1988) 45 Cal.3d 1036, 1112 [248 Cal.Rptr. 510, 755 P.2d 960], quoting People v.

Logan (1917) 175 Cal. 45, 49 [164 P. 1121], italics omitted.) Indeed, we note that a jury instruction indistinguishable from defendant’s proposed instruction was approved, albeit in dictum, by the Fourth District Court of Appeal. (People v. Thompkins (1987) 195 Cal.App.3d 244, 256-257 & fn. 7 [240 Cal.Rptr. 516].) Defendant’s second point—that his proposed instruction was not duplicative of other instructions—also has merit as to some portions of the instruction.

The jury was given comprehensive instructions on heat of passion and provocation, including one stating that “the killing must have occurred while the slayer was acting under the direct and immediate influence of. . . heat of passion,” and that “the question as to whether the cooling period has elapsed and reason has returned is not measured by the standard of the accused, but the duration of the cooling period is the time it would take an average or ordinarily reasonable person to have cooled his heat of passion and for his reason to have returned.” In addition, the jury was told that the prosecution bore the burden of proving defendant did not act while under the heat of passion.

Despite these instructions, defendant’s proposed instruction raised two points not covered by the standard CALJIC instructions delivered by the court. First, the jury was not informed that provocation could occur over a “considerable period of time.” Second, it was not told that if provocation occurred over such a period, the jury “must” take that period of time into account in determining the effect of the cooling-off period. As we discuss, however, the trial court’s refusal to deliver an instruction addressing these legal points does not require reversal.

A criminal defendant is entitled, on request, to a instruction “pinpointing” the theory of his defense. (People v. Wright (1988) 45 Cal.3d 1126, 1137 [248 Cal.Rptr. 600, 755 P.2d 1049]; People v.

Sears (1970) 2 Cal.3d 180, 190 [84 Cal.Rptr. 711, 465 P.2d 847].) As we recently explained, however, instructions that attempt to relate particular facts to a legal issue are generally objectionable as argumentative (Wright, supra, at p. 1137), and the effect of certain facts on identified theories “is best left to argument by counsel, cross-examination of the witnesses, and expert testimony where appropriate.” (Id. at p. 1143.) Whether the period of provocation was long or short, the jury should consider all the facts to determine whether “sufficient time ha[d] elapsed between the provocation and the fatal blow for passion to subside and reason to return.” (People v.

Wickersham (1982) 32 Cal. 3d 307, 327 [185 Cal.Rptr. 436, 650 P.2d 311].) By directing that the jury “must” take into account the long period of provocation in determining the effect of a cooling-off period, defendant’s proposed instruction improperly singled out one factor, favorable to defendant, and improperly elevated it over other factors that the jury should also consider.

This portion of the instruction was thus objectionable as argumentative and properly refused, albeit for the wrong reason, by the trial court. (Wright, supra, 45 Cal.3d at p. 1138, and cases cited.) By contrast, the court erred in refusing to instruct the jury, at defendant’s request, that legally adequate provocation could occur over a considerable period of time.

It was defendant’s theory at trial that no single action on the part of the victim provoked the fatal blow but that the book-throwing incident was merely the culmination of his pent-up frustration and anger emanating from his ongoing dysfunctional relationship with the victim. In other words, his defense theory at trial was that he killed after enduring provocatory conduct by the victim over a period of weeks. The People argue there was insufficient evidence of this theory to justify the instruction.

We disagree; defendant proffered evidence from which reasonable persons could have concluded there was sufficient provocation to reduce murder to manslaughter. (See Wickersham, supra, 32 Cal.3d at p. 324.) Because defendant requested a “pinpoint” instruction on his theory of the case that was neither argumentative nor dup

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