THE PEOPLE, Plaintiff aand Respondent, v. DOUGLAS SCOTT MICKEY, Defendant and Appellant, 54 Cal. 3d 612

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 May 29, 1981, the District Attorney of Placer County filed an information against defendant Douglas Scott Mickey. Count I charged that on or about September 29, 1980, defendant murdered Eric Lee Hanson. (Pen.

Code, § 187.) Count II charged that on or about the same date he also murdered Catherine Blount. (Ibid.) As to each count, five special circumstances were alleged: multiple murder (id., § 190.2, subd. (a)(3)); intentional murder for financial gain (id., § 190.2, subd. (a)(1)); heinous, atrocious, or cruel murder (id., § 190.2, subd. (a)(14)); felony-murder-robbery (id., § 190.2, subd. (a)(17)(i)); and felony-murder-burglary (id., § 190.2, subd. (a)(17)(vii)). Defendant pleaded not guilty to the murder charges and denied the special circumstance allegations.

On his motion, the court subsequently changed venue from Placer County to San Mateo County. Also on his motion, it set aside both of the heinous-atrocious-cruel special-circumstance allegations. Trial was by jury. The panel returned verdicts finding defendant guilty as charged on both counts of murder, determined each offense to be in the first degree, and found all the remaining special-circumstance allegations true. It subsequently returned a verdict of death. The court entered judgment accordingly.

As we shall explain, we conclude that except as to one of the multiple-murder special-circumstance findings and both of the intentional-murder-for-financial-gain special-circumstance findings, the judgment must be affirmed. I. Facts A. Guilt Phase At the guilt phase, the People introduced substantial evidence, both testimonial and physical, to prove the murder charges and special circumstance allegations. The evidence featured certain extrajudicial statements by defendant to persons including family members, friends, and acquaintances, the police, and a fellow inmate in jail.

It also included testimony by Edward Rogers, who was an accomplice and took the stand under a grant of immunity. The tale told is long and detailed. Its substance is as follows. In September 1980 defendant was married to Lieutenant Allison W. Mickey, an Air Force nurse, and resided with her and her two children in housing at Yokota Air Force Base in Japan. The couple was experiencing difficulties in their financial situation and consequent distress in their personal relationship. By the time of trial, their marriage had been dissolved.

About September 17, 1980, defendant returned to California, flying into Travis Air Force Base in Solano County. During much of his time in the state, he stayed with Rogers, a longtime friend, in Concord; both were about 31 years of age. Defendant disclosed several reasons for his visit—including, primarily, an intent to execute a plan to rob and murder a man in Placer County and then possibly to travel to Alaska to kill his wife’s former husband for the proceeds of a life insurance policy of which she and/or her children were beneficiaries. The man in Placer County was Eric Lee Hanson.

He dealt in marijuana and hashish, and also cultivated the former. He had a business partner by the name of Randy Hoehne. Hanson lived with his lover, Catherine Blount, in a house in the rural community of Ophir; Hoehne lived there as well, but at the time relevant here slept in a tent some distance away in order to guard the marijuana crop; Hanson was about 29 years old, Blount 18, and Hoehne 24. Defendant had been a friend of Hanson for several years, but bore secret grievances against him and desired revenge. Years earlier, defendant believed, Hanson had stolen certain items belonging to him and his family.

In 1979 defendant raided Hanson’s marijuana crop in retaliation. After his arrival in California, he retrieved the drug from the place at which he had hidden it, and began to consume it continually—apparently together with alcohol. He discussed his scheme against Hanson with Rogers and took steps to accomplish his objective. On September 22, 1980, defendant traveled to Hanson’s home in a car he had borrowed from Rogers in order to carry out his plan. He arrived about 11 p.m. He was armed with a rifle belonging to Rogers, which he had fitted with a homemade silencer.

Blount was alone in the house; Hanson and Hoehne were out on the property. Blount invited defendant in. Hanson soon returned. Defendant did not do the deed—apparently because Hoehne learned of his presence and could therefore link him to whatever might happen. He visited with Hanson and Blount, stayed overnight, and left the next day. During his time at the property, defendant observed Hanson counting “a good size stack of money”; he attempted to sell him some of the marijuana he had stolen the year before, but was unsuccessful.

On September 28, 1980, defendant again traveled to Hanson’s home in order to carry out his plan, this time accompanied by Rogers in a pickup truck belonging to the latter. The pair established a rendezvous point at a public telephone booth near a restaurant a few miles from the house; defendant took down the number of that telephone and gave Rogers the number of Hanson’s. They drove to the property. Rogers left defendant off. The time was near midnight. Defendant was armed with, at least, a knife belonging to himself and a pistol belonging to Rogers.

Hanson and Blount were alone in the house; Hoehne was in his tent. Hanson and Blount greeted defendant at the door and invited him in. During the earliest hours of September 29, 1980, evidently after Hanson and Blount went to sleep, defendant killed the couple: he bludgeoned Hanson with a baseball bat and slit his throat from ear to ear down to the spinal cord; he stabbed Blount seven times in the chest in a close pattern, piercing her heart with three of the blows.

Immediately thereafter, he removed a substantial quantity of property from the house, loaded it into a black Volkswagen Karmann Ghia that belonged to Hanson, and departed; he left no fingerprints behind. He arrived at the rendezvous point. Rogers followed in the pickup truck. Some distance away, with Rogers’s help he transferred the goods to the truck and then wiped the Volkswagen clean of fingerprints and abandoned it there. Defendant said he wanted to go back and bum the house; Rogers dissuaded him, declaring one should never return to the scene of the crime. The pair drove back to Concord.

Once there, defendant sutured with needle and thread a gaping injury he had sustained to his left leg during the events at Hanson’s home. The pair proceeded to stash the stolen goods. On September 30,1980, defendant fled this country from Travis Air Force Base, stopped over in Hawaii, and arrived at Yokota Air Force Base in Japan on October 3. On October 2 Rogers made a statement to officers at the Placer County Sheriff’s Department implicating himself and defendant in the deeds described above. Defendant was subsequently arrested in Japan and was eventually returned to this state.

In his defense, defendant introduced little evidence, and did not himself take the stand. It was his basic position that the People failed to sustain their burden to prove him guilty beyond a reasonable doubt as to any applicable mental state required for criminal liability. More positively, he claimed that in committing the acts in question he acted in self-defense or under voluntary intoxication and/or diminished capacity as a result of voluntary intoxication. For his defense, he relied on certain of his extrajudicial statements introduced by the People, which if believed could support his position. B.

Penalty Phase At the penalty phase, the People introduced evidence in aggravation that they themselves characterized as “very limited.” Specifically, they attempted to prove that on four occasions, in the course of domestic disputes involving his first and second wives, defendant engaged in other violent criminal activity, viz., assault and/or battery. By contrast, defendant introduced substantial evidence in mitigation. Family members, friends, and acquaintances narrated a story of defendant’s background and character. Its main points are these.

Defendant’s parents, Robert and Dorothy Mickey, were married in 1946; defendant’s brother Ronald was bom in 1947, defendant himself in 1948; the family lived in the environs of Placer and Nevada Counties. Defendant was a good, loving, and hardworking child and youth. Tragedy, however, touched defendant’s life. When he was about five years of age, a half brother named Randall was killed in an automobile accident. When defendant was about 17, his mother died in an automobile crash— possibly by accident and possibly by suicide. He had been very close to her, and felt her loss deeply.

He turned to alcohol to deaden the pain. Not long afterward, his maternal grandfather died. A little later, his brother Ronald killed himself. Defendant began to drift through life, moving from job to job, place to place, marriage to marriage. He developed a taste for various illicit substances, including marijuana, hashish, mescaline, psilocybin, hallucinogenic mushrooms, phencyclidine (PCP), and lysergic acid diethylamide (LSD). He also developed an interest in eastern religions. He soon met Hanson, who shared his taste and interest. The two men quickly became close friends.

They engaged in unusual behavior under the influence of the illicit substances they ingested. For example, they “would get naked and admire . . . the strength in their bodies .... And they would talk about philosophies and mn through the hills like deer . . . .” With the exception of the crimes of which he had been convicted and the other unadjudicated violent criminal activity, defendant was nonviolent, and would likely adapt well to life in prison. Two experts gave opinions bearing on defendant’s mental state at the time of the crimes.

Each testified in substance that at the critical time, defendant did not have the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law—or at best, any capacity he may have had was “severely” or “significantly” impaired. Each identified two causes of defendant’s condition: long-term and heavy “polysubstance” abuse and psychopathology. Each discovered a delusional system that was apparently based on writings of an author named Carlos Castaneda, who was then popular in the dmg culture.

In that system, as one of the experts stated in pertinent part, Hanson was the master and defendant the apprentice; defendant wished to become a “spiritual warrior”; at one point, Hanson began to “rob[ ]” defendant of the “power” he needed to achieve his goal; defendant had to kill Hanson to get his “power” back—and did so. Each expert’s opinion was based in large part on information provided by defendant himself. In rebuttal, the People introduced evidence in the form of opinion by an expert to counter the opinions of defendant’s experts.

The opinion of the People’s expert was based on information coming from sources including defendant as well as his family, friends, acquaintances, and others. The People’s expert contradicted defendant’s. II. Guilt Issues Defendant raises a number of claims challenging the judgment as to guilt. As will appear, none is meritorious. A. Denial of Motion to Suppress Statements Prior to trial, defendant moved to suppress evidence of certain statements he had made. On October 14, 1980, he was arrested in Japan for the murder of Hanson and Blount.

On January 16, 1981, he departed Japan for the United States in the custody of Robert P. LaRoche, a deputy United States Marshal for the Eastern District of California; Donald J. Nunes, the Sheriff of Placer County; and Curtis A. Landry, a deputy sheriff and detective under Nunes’s command. The party flew from Tokyo to Honolulu, stayed overnight, and then flew from Honolulu to San Francisco. During the Tokyo-Honolulu flight and later in Honolulu, defendant made self-inculpatory statements to Detective Landry.

As relevant here, the suppression motion was based on the broad ground that the statements in question were involuntary and hence inadmissible: they were involuntary as a matter of fact 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; and they were involuntary as a matter of law under the rule of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] (hereafter sometimes Miranda). The trial court conducted a hearing. Defendant and the People introduced evidence, both testimonial and documentary. The witnesses included Marshal LaRoche, Sheriff Nunes, and Detective Landry, but not defendant. The court found facts expressly and impliedly.

Those facts tell the following tale.* * During the earliest hours of September 29,1980, defendant killed Hanson and Blount. On September 30 he fled this country from Travis Air Force Base, stopped over in Hawaii, and arrived at Yokota Air Force Base in Japan on October 3. At that time, he was still married to Lieutenant Allison W. Mickey, an Air Force nurse, and resided with her and her two children in base housing.

On October 7, 1980, the People filed a complaint in the Justice Court for the Aubum-Colfax Judicial District of the County of Placer accusing defendant of murdering Hanson and Blount under special circumstances. That same day, an arrest warrant was issued by the court, indicating Yokota Air Force Base as defendant’s residence. On October 11, 1980, Sheriff Nunes left for Japan, taking with him the arrest warrant and supporting papers. A provisional warrant for detention was subsequently issued by Japanese authorities.

On October 14, 1980, defendant was arrested by United States Air Force security police officers at his residence on the Yokota Air Force Base. Shortly thereafter, Sheriff Nunes met defendant. He advised him of his rights under Miranda. Defendant told Nunes that “he did not want to decide whether to talk to [him] or not at that time. That he wished to counsel with a friend”—who was apparently a “military attorney”—“before making a decision.” Thereupon, conversation essentially ceased. Nunes, however, did inform defendant that he would be held at the Tokyo Detention House pending extradition.

Defendant was surrendered to Japanese authorities. From that day forward, defendant’s wife Allison cooperated with Nunes and other officials. On October 15, 1980, it appears, defendant expressed a desire to waive extradition proceedings and return to the United States voluntarily. Sheriff Nunes learned of this fact from the United States Embassy. Through the embassy he attempted to arrange a meeting with defendant to seek confirmation, but was informed he had requested to speak only with his wife.

On October 16,1980, at Sheriff Nunes’s request, Allison visited defendant and asked whether he did in fact desire to waive extradition; defendant apparently answered in the affirmative. The Japanese government, however, would not permit a waiver. On October 18,1980, Sheriff Nunes departed Japan. He left behind certain evidence he had gathered relating to the murder of Hanson and Blount for use in the extradition proceedings. Those proceedings were subsequently conducted. Defendant was represented by counsel. On January 12, 1981, Marshal LaRoche arrived in Japan with a warrant for defendant’s extradition.

With him were Sheriff Nunes and Detective Landry. The presence of nonfederal officers such as Nunes and Landry was not customary. It was permitted, however, when authorized. Such was the case here. Nunes and Landry went to Japan to collect evidence and interview witnesses and also to accompany defendant on his return. They did not intend to seek a statement from defendant, nor did they actually try to do so. In Nunes’s words, “We were in transit. . . . [T]he conditions weren’t conducive to that.” During their stay in Japan, Nunes and Landry did in fact collect evidence and interview witnesses.

About 3:30 p.m. on January 16, 1981, Marshal LaRoche, Sheriff Nunes, and Detective Landry met defendant at the Tokyo Detention House in order to take him into their custody. Defendant was alert and in good health; he was also jovial and extremely talkative, evidently glad to be in the company of Americans and to be able to speak English. He recognized Nunes and appeared happy to see him again. Nunes engaged in “small talk” with defendant and helped him with his tie. Landry explained to defendant the operation of a knee brace that would be used as a restraint.

Landry knew defendant had previously been Mirandized by Nunes. About 3:50 p.m. Marshal LaRoche, Sheriff Nunes, Detective Landry, and defendant boarded a van for Tokyo International Airport at Narita. The trip took approximately three hours. During the ride, defendant spoke with Nunes, who was seated next to him, and to a lesser extent with Landry.

Although their conversation touched on such topics as the countryside and Tokyo’s congested traffic, in LaRoche’s view “Almost all of it concerned home town talk, [defendant’s] father, friends, relations, people that they knew mutually.” LaRoche “thought he talked an awful lot,” and was “glad when he kept quiet.” It was defendant who generally opened the conversation and directed its course. Throughout this period of time, there was no mention of the murder of Hanson and Blount. About 7 p.m. Marshal LaRoche, Sheriff Nunes, Detective Landry, and defendant arrived at Tokyo International Airport.

The group waited in a security area for more than an hour. Again there was “small talk,” but no mention of the crimes. Landry was regularly afflicted with bad breath and constantly carried mints to deal with the problem. The day before, he had visited defendant’s wife Allison at her residence. She kept a bowl of mints near the door, and gave him some. As a result of their close proximity, Landry noticed that defendant too had bad breath. He offered him a mint. Defendant took it and expressed recognition.

Landry asked, “[D]o you know where I got this?” Defendant replied, “Yes,” and “his chin quivered and he kind of bowed his head and put his head in his hands” and “covered his eyes . . . .” Some time later, the group boarded their plane. About 9 p.m. Marshal LaRoche, Sheriff Nunes, Detective Landry, and defendant began their journey from Tokyo to Honolulu as their plane lifted off. The flight was scheduled to last about five hours. Defendant and Nunes took seats in one row, the former at the window, the latter on the aisle, with an empty seat in between; Landry and LaRoche took seats one row back.

Defendant spoke to Nunes about his family and hobbies. He was talkative, pleasant, and cooperative, and did not exhibit any sign of grief or sadness. It was he who opened the conversation and directed its course. No mention was made of the crimes. About an hour into the flight, Sheriff Nunes changed seats with Detective Landry in order to get some rest, and a half-hour later moved to an empty row, stretched out, and went to sleep. A snack was served. Defendant and Landry proceeded to consume a great deal of coffee during the remainder of the flight.

Defendant started conversation with Landry by expressing a general preference for Asian food. Apparently, he then spoke of politics. He went on to talk of his family and his love for his wife Allison and her children. He asked Landry about his family, and Landry responded.

In the course of the discussion, Landry said that he remembered that defendant had played football in high school, and that he knew of his father and had participated in investigations surrounding the death of his mother and the suicide of his brother; he remarked that they “went back a long way together.” Defendant also talked about such matters as “the economies of the two nations, Japan and the United States, the presidential elections in the past,” “the present economy of West Germany, . . . and how much the mark is worth on the market.” Landry generally “answered his questions and made the time go by as long as [he] was there.” He considered him “well read.” It was defendant who opened the conversation and directed its course.

Again, no mention was made of the crimes. About three hours into the flight, “there was a lull in the conversation” between Detective Landry and defendant. Defendant then asked “something to the effect if Eric and Catherine were buried together.” Landry replied that Hanson and Blount had separate memorial services, their bodies were cremated, and their ashes were scattered in the High Sierra. Thereupon defendant, in Detective Landry’s words, “suffered an emotional lapse. He became a bit—crying, he was openly crying to me, the lower lip was quivering, he found it difficult to speak.

When he was able to maintain some emotional control, he made reference—he made the statement twice that it should have never happened, it should have never happened and continued crying.” “[H]e continually suffered this emotional upheaval and he cried openly. The inflection of his voice rose and he took a few moments and actual few moments and I couldn’t tell you the time lapse to gain his composure. And again he made a statement to the effect that it would have been all right if Eric had listened to me and I didn’t think he would react the way he did. And he continued in his state as I have described. . . .

And he made mention . . . something to the effect the marijuana patch that had been ripped off the previous year and that the marijuana returned to Eric that night was the same marijuana that he had ripped off. And his emotional statement became again apparent and he was crying almost to the uncontrollable state. And again, the inflection of his voice was up when he mentioned something to the effect of everything went wrong, if only Eric hadn’t lost his cool and he continued crying . . . .” During this episode, which lasted about 20 minutes, Landry was passive, saying and doing nothing.

About four hours into the flight, having composed himself, defendant resumed his conversation with Detective Landry. He spoke of his family and his love for his wife Allison and her children, as well as his hobbies and politics. It was he who reopened the conversation and directed its course. No further mention was made of the crimes. About 6:30 a.m. local time—or 1:30 a.m. Tokyo time—Marshal La-Roche, Sheriff Nunes, Detective Landry, and defendant ended their journey from Tokyo to Honolulu as their plane touched down.

As the group prepared to disembark, defendant said, “Curt, I would like to continue our conversation at a later time.” Landry replied, “Fine, yes.” Defendant appeared in control of himself. The group passed through customs. LaRoche, Nunes, and Landry took defendant to the Honolulu jail by van; the ride took 30 to 45 minutes; there was not much conversation between defendant and the others; what talk there was generally concerned the scenery.

Defendant was booked into the jail for the day; the procedure filled 30 to 45 minutes; LaRoche, Nunes, and Landry then left and proceeded to the United States Marshal’s office in downtown Honolulu, at which they arrived about 45 minutes later. Mid- to late morning, after they had parted company with defendant, Marshal LaRoche, Sheriff Nunes, and Detective Landry conversed together. Landry said that defendant had made statements concerning the crimes during the flight from Tokyo to Honolulu, and had requested to talk further about the subject. Nunes asked whether he had advised defendant of his Miranda rights.

Landry said no. Nunes “very sternly” asked why had he not done so. Landry said, “I didn’t feel I was interrogating Mr. Mickey at the time and I saw no reason to advise him of his rights.” Nunes then consulted with the Placer County District Attorney’s office by telephone on how to proceed with the matter. Afterward, he instructed Landry in substance as follows: return to the jail; ask defendant if he desired to speak further about the crimes; if he responded in the affirmative, advise him of his Miranda rights and obtain a waiver; and then commence interrogation.

Landry was somewhat fatigued and wished to get some sleep before conducting the interview. Nunes directed him to set about the task forthwith. He complied. At 12:42 p.m. local time—or 7:42 a.m. Tokyo time—Detective Landry met defendant in an interview room at the Honolulu jail. Defendant acknowledged that it was at his request that Landry was present. Landry advised defendant of his Miranda rights, and defendant proceeded to make a waiver. Interrogation ensued.

Landry asked questions about the killing of Hanson and Blount, and defendant gave answers implicating himself in the deed and also in its planning and aftermath. Throughout the interview, defendant appeared alert and aware; at no time did he express any reluctance to respond or any desire to stop. On five or six occasions, he became “emotional” and paused to compose himself. Shortly before 5 o’clock, the session closed. Defendant stated that he had spoken voluntarily and had not been coerced in any way.

The next day, it appears, Marshal LaRoche, Sheriff Nunes, Detective Landry, and defendant returned to the continental United States, flying from Honolulu to San Francisco. In view of the foregoing facts, the trial court denied defendant’s motion to suppress his statements to Detective Landry.

It made determinations to the following effect, among others, either expressly or by implication: Sheriff Nunes properly advised defendant of his Miranda rights; defendant effectively invoked his right to counsel; all the same, his statements on the flight from Tokyo to Honolulu were voluntary because they were not coerced through “softening up” and did not result from interrogation, but were volunteered; the statements in Honolulu were also voluntary because they were not coerced, but were given after defendant himself initiated discussion and was subsequently readvised of, and waived, his rights.

The statements in question were later introduced at trial. Defendant now contends that the trial court erred by denying his motion to suppress what he refers to as his “inflight” and “Honolulu admissions.” The law that is applicable to the claim is well settled. Under the due process clauses of both the Fourteenth Amendment to the United States Constitution and

article I, sections 7 and 15, of the California Constitution, these principles are established: an involuntary confession or admission is inadmissible; a statement is involuntary if it is the product of coercion or, more generally, “overreaching”; involuntariness requires coercive activity on the part of the state or its agents; and such activity must be, as it were, the “proximate cause” of the statement in question, and not merely a cause in fact. (People v. Benson (1990) 52 Cal.3d 754, 778-779 [276 Cal.Rptr. 827, 802 P.2d 330].) Next, in Miranda v.

Arizona, supra, 384 U.S. 436, the United States Supreme Court laid down the following “prophylactic” rule (Michigan v. Tucker (1974) 417 U.S. 433, 446 [41 L.Ed.2d 182, 194, 94 S.Ct. 2357]) to implement the prohibition against compelled self-incrimination contained expressly in the Fifth Amendment and impliedly in the Fourteenth. “. . . [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . .

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (384 U.S. at p. 444 [16 L.Ed.2d at pp. 706-707].) The phrase “custodial interrogation” is crucial.

The adjective encompasses any situation in which “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda v. Arizona, supra, 384 U.S. at p. 444 [16 L.Ed.2d at p. 706].) The noun “refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Rhode Island v.

Innis (1980) 446 U.S. 291, 301 [64 L.Ed.2d 297, 308, 100 S.Ct. 1682], fn. omitted.) Absent “custodial interrogation,” Miranda simply does not come into play. (See, e.g., Minnesota v. Murphy (1984) 465 U.S. 420, 429-431 [79 L.Ed.2d 409, 420-422, 104 S.Ct. 1136] [no “custody”]; Rhode Island v.

Innis, supra, 446 U.S. at pp. 298-302 [64 L.Ed.2d at pp. 306-309] [no “interrogation”].) Miranda does not “prohibit the police from merely listening to . . . voluntary, volunteered statements” uttered by a person, whether or not in custody, “and using them against him at the trial”—nor does the Fifth or Fourteenth Amendment. (Edwards v.

Arizona (1981) 451 U.S. 477, 485 [68 L.Ed.2d 378, 101 S.Ct. 1880] (hereafter sometimes Edwards).) Hence if “custodial interrogation” is lacking, Miranda rights are not implicated and there is consequently “no occasion to determine whether there ha[s] been a valid waiver.” (Edwards v. Arizona, supra, at p. 486 [68 L.Ed.2d at p. 387].) In Edwards v. Arizona, supra, 451 U.S. 477, the United States Supreme Court laid down a “prophylactic rule” (Oregon v.

Bradshaw (1983) 462 U.S. 1039, 1044 [77 L.Ed.2d 405, 411, 103 S.Ct. 2830] (plur. opn.)) to implement Miranda: “an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (451 U.S. at pp. 484-485 [68 L.Ed.2d at p. 386].) An accused “initiates” such dialogue when he speaks words or engages in conduct that can be “fairly said to represent a desire” on his part “to open up a more generalized discussion relating directly or indirectly to the investigation.” (Oregon v.

Bradshaw, supra, 462 U.S. at p. 1045 [77 L.Ed.2d at p. 412] (plur. opn.).) In the event he does in fact “initiate” dialogue, the police may commence interrogation if he validly waives his rights. (Id. at p. 1046 [77 L.Ed.2d at p. 413] (plur. opn.); Edwards v.

Arizona, supra, 451 U.S. at p. 486, fn. 9 [68 L.Ed.2d at p. 387].) On appeal, the conclusion of a trial court on a pure question of law is subject to independent review, whereas its finding on a pure question of fact is subject to review for substantial evidence—which, for present purposes, is equivalent to federal “clearly erroneous” scrutiny. (See generally People v. Louis (1986) 42 Cal.3d 969, 984-988 [232 Cal.Rptr. 110, 728 P.2d 180], following United States v.

McConney (9th Cir. 1984) 1195, 1200-1204 [728 F.2d 1195] (in bank).) Determinations as to the voluntariness of a statement for both the federal and state constitutional guaranties of due process of law—which is a resolution of a mixed question of law and fact that is nevertheless predominantly legal—are reviewed independently. (People v.

Benson, supra, 52 Cal.3d at p. 779.) So too determinations as to the presence of coercive state activity and the existence of causality—also predominantly legal mixed questions. (Ibid.) By contrast, findings on whether there was custodial interrogation—which appears to be a predominantly factual mixed question—are reviewed for substantial evidence or “clear error.” (Cf. United States v.

Poole (9th Cir. 1986) 806 F.2d 853, 853 [holding that “[t]he determination whether a defendant was subjected to custodial interrogation is essentially factual, and is reviewable under the [federal] ‘clearly erroneous’ standard”]; accord, United States v. Gonzalez-Sandoval (9th Cir. 1990) 894 F.2d 1043, 1046.) Likewise, findings on whether the accused effectively initiated further dialogue relating to the investigation—which, in our view, is also a predominantly factual mixed question.

Finally, determinations as to the validity of a waiver of Miranda rights—a predominantly legal mixed question—are reviewed independently. (E.g., People v. Marshall (1990) 50 Cal.3d 907, 925 [269 Cal.Rptr. 269, 790 P.2d 676].) Having carefully scrutinized the record, we are of the opinion that the trial court did not err by denying defendant’s motion to suppress the “inflight” and “Honolulu admissions.” First, after independent review we believe that defendant’s “inflight admissions” were voluntary under the due process clauses of both the federal and state Constitutions.

The requisite coercive activity by the state or its agents is absent. With regard to the totality of the conversations disclosed by the record, it was generally defendant who was active and Marshal LaRoche, Sheriff Nunes, and Detective Landry who were passive: he opened discussion and directed its course; they essentially responded. So far as the challenged statements are concerned, Landry hardly acted at all—and manifestly did not “overreach” in any way. Also absent is the necessary causal connection between any activity by the state or its agents and the statements in question.

The record reveals that there was only one proximate cause—and indeed, only one cause of any real substance: defendant’s desire to justify, excuse, or at least explain his problematic conduct. Defendant argues that the required state coercion and proximate causation were indeed present in the “psychological and physiological pressure” he claims he experienced as a result of such factors as his extended incarceration in a foreign detention facility, his longing for his family, and the demands of travel. There was no state coercion.

This conclusion follows as a matter of law to the extent that the claimed “pressure” sprang from within defendant. The compulsion must be attributable to the state. The conclusion follows as a matter of fact to the extent that the “pressure” came from without. Its direct and substantial source was defendant’s decision to flee from California to Japan in an attempt to avoid apprehension for the murder of Hanson and Blount—a decision for which the state cannot be held responsible. Further, there was no proximate causation flowing from state activity.

As noted, the sole cause of any substance for the statements in question was defendant’s desire to justify, excuse, or at least explain. Defendant asserts in substance that the People’s labeling the statements “unreliable” at trial is an effective concession of their involuntariness. Not so. It is merely a declaration of the People’s view that they are self-serving in some particulars. In the course of his argument, defendant urges strenuously that Sheriff Nunes and especially Detective Landry intended to “soften” him up—i.e., to “coerce” a statement out of him by cajolery—and that they succeeded in doing so.

The trial court made a determination to the contrary—soundly, in our judgment. The finding on the absence of the claimed intent is factual, and is supported by substantial evidence. The conclusion on the lack of coercion and proximate causation is mixed and predominantly legal, and withstands de novo scrutiny. Second, after independent review we believe that defendant’s “inflight admissions” were voluntary under Miranda.

We shall assume for argument’s sake that defendant did indeed invoke his right to counsel as declared by Miranda when he told Sheriff Nunes that he wished to consult with a friend, who was apparently a “military attorney,” before deciding “whether to talk to [him] or not at that time.” Nevertheless, we cannot discern any “custodial interrogation” within the meaning of Miranda. The trial court found no such interrogation, and its finding is supported by substantial evidence. To be sure, defendant was in custody. But he was simply not interrogated.

Plainly, there was no express questioning by any of the officers, including Detective Landry. Nor, in our view, were there any words or actions on their part that they should have known were reasonably likely to elicit an incriminating response. Defendant argues to the contrary—subtly, but unpersuasively. As we have observed, the sole cause of any real substance underlying the statements in question was defendant’s desire to justify, excuse, or at least explain.

Miranda, as noted, does not “prohibit the police from merely listening to . . . voluntary, volunteered statements” uttered by a person, whether or not in custody, “and using them against him at the trial.” (Edwards v. Arizona, supra, 451 U.S. at p. 485 [68 L.Ed.2d at p. 387].) Here, Landry merely listened to the statements, which were voluntary and volunteered. Defendant argues that he did not waive his Miranda rights beforehand. But when, as here, “custodial interrogation” is lacking, Miranda simply does not come into play.

Third, after independent review we believe that defendant’s “Honolulu admissions” were voluntary under the due process clauses of both the federal and state Constitutions. For the reasons stated above, we find absent both the requisite coercive activity by the state or its agents and the necessary causal connection between any such activity and the statements in question. Defendant argues that the “psychological and physiological pressure” he claims he experienced increased over time and distance as a result of fatigue and other factors.

But any such increase was insufficient on this record to render the statements involuntary. Defendant also argues that the “Honolulu admissions” were involuntary as the product of the assertedly involuntary “inflight statements”—they were, so to speak, the tainted fruit of a poisonous tree. Because the tree was not poisonous, its fruit was not tainted. Defendant again argues in substance that the People’s labeling the statements “unreliable” at trial is an effective concession of their involuntariness. We again reject the assertion.

Fourth, after independent review we believe that defendant’s “Honolulu admissions” were voluntary under Miranda. We recognize the prophylactic rule of Edwards v. Arizona, supra, 451 U.S. 477, 484-485 [68 L.Ed.2d 378, 386]: “an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” There was no violation here.

Defendant initiated further discussion when he said to Detective Landry, “Curt, I would like to continue our conversation at a later time.” Certainly, his words can be “fairly said to represent a desire” on his part “to open up a more generalized discussion relating directly or indirectly to the investigation.” (Oregon v. Bradshaw, supra, 462 U.S. at p. 1045 [77 L.Ed.2d at p. 412] (plur. opn.).) The trial court impliedly found to that effect, and its finding is supported by substantial evidence. At the threshold, defendant argues—again—about the tainted fruit of a poisonous tree. But again, no poison, no taint.

He then argues that the Edwards rule was in fact violated. He says that the rule requires the suspect to initiate the meeting with the police and not merely the discussion, “unless such a meeting . . . was in the ‘normal course of events.’ ” We find no such requirement in Edwards itself or elsewhere. (See Arizona v. Roberson (1988) 486 U.S. 675, 687 [100 L.Ed.2d 704, 717,108 S.Ct. 2093] [holding that “any ‘further communication, exchanges, or conversations with the police’ that the suspect himself initiates, Edwards v.

Arizona, 451 U.S., at 485, are perfectly valid” (first italics added)].) He next says that he did not in actuality initiate further discussion. His assertion founders on the words he spoke. Indeed, at one point in his briefing he concedes that “[t]he ‘conversation’ to be continued was the very ‘conversation’ surrounding and including the inflight admission[s].” When, as stated above, there is no violation of the Edwards rule, the police may commence interrogation if the suspect validly waives his Miranda rights. Such a waiver is evident here. The trial court so determined. And on independent review we agree.

Defendant argues that the “psychological and physiological pressure” he claims he experienced, as well as other factors, prevented him from making a voluntary, knowing, and intelligent waiver. The record does not support his position. B. Denial of Motion to Suppress Letters Prior to trial, defendant moved to exclude more than 24 letters he had written and sent to his wife Allison. As relevant here, he claimed a privilege under Evidence Code

section 980 to refuse and prevent the disclosure of the letters as confidential marital communications. Evidence Code

section 980 declares in pertinent part that “a spouse . . . has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if ... the communication was made in confidence between him and the other spouse while they were husband and wife.” The People opposed the motion. They denied the claim of privilege. At issue (among other questions) were whether defendant intended nondisclosure of the letters’ contents, and whether he had a reasonable expectation of privacy therein. The trial court conducted a hearing.

Defendant called Detective Landry as a witness. The People introduced three of the letters into evidence.

The following facts were established beyond dispute: defendant wrote the letters in question to his wife Allison while he was incarcerated in the Tokyo Detention House, and sent them to her from that location; in the letters introduced at the hearing, he revealed a belief that Japanese and/or United States authorities were intercepting all his mail and reading its contents; indeed, in those letters he directed comments to such “readers”; Allison received the letters and voluntarily turned them over to Detective Landry in Japan on January 15, 1981.

The trial court rejected the claim of privilege and denied the motion.

At trial, the People introduced portions of three letters that had not been presented at the hearing for two purposes: (1) to show that around the time of the murder of Hanson and Blount, defendant and Allison were experiencing difficulties in their financial situation, and that defendant came to California from Japan to alleviate that condition; and (2) to corroborate the testimony of Edward Rogers on that point. “I am really glad Frank [Plunk, Allison’s former husband,] came through, just think he might have loaned us the money all of the time.” “My trip to Cal wasn’t in vain.

I finally found out you truly loved me and you got your bills paid. That is a pretty good haul for both of us.” “I would sacrifice everything for you. Hell, look I have. Actions speak louder than words. You got the money you wanted and now you ignore my need.” Defendant now contends that the trial court erred by denying his motion. It appears that a ruling on a motion such as the present, which concerns the admissibility of evidence, is subject to review for abuse of discretion. (Cf. United States v.

Marashi (9th Cir. 1990) 913 F.2d 724, 729 [holding to that effect under federal standard-of-review principles].) The underlying determinations, of course, are scrutinized in accordance with their character as purely legal, purely factual, or mixed. We are of the opinion that the ruling of the trial court is sound under any standard. The letters did not come within the privilege for confidential marital communications. The record establishes that the documents were not written or sent “in confidence.” To make a communication “in confidence,” one must intend nondisclosure (see People v.

Gomez (1982) 134 Cal.App.3d 874, 879 [185 Cal.Rptr. 155]; People v. Carter (1973) 34 Cal.App.3d 748, 752 [110 Cal.Rptr. 324]), and have a reasonable expectation of privacy (see North v. Superior Court (1972) 8 Cal.3d 301, 311 [104 Cal.Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155]). Apparently, defendant did not have the required intent. Certainly, he did not have the necessary expectation. The court made a determination to that effect. For purposes of the privilege, the existence vel non of a reasonable expectation of privacy appears to be a predominantly factual mixed question. (See People v.

Rodriguez (1981) 117 Cal.App.3d 706, 715 [173 Cal.Rptr. 82] [to similar effect].) As such, its resolution is subject to review for substantial evidence. But even if scrutinized de novo, the court’s determination is plainly correct. Defendant had no expectation of privacy, reasonable or otherwise. As noted, he believed that the Japanese and/or United States authorities were intercepting all his mail and reading its contents. Defendant argues against our conclusion, but to no avail. In substance, his attack is against the trial court’s reasoning. But of course, we review the ruling, not the reasoning.

And as we have explained, the ruling was sound. In any event, the reasoning was substantially similar to that set out above. Defendant asserts that the court misallocated the applicable burdens of proof. We are not persuaded. As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. (1 Jefferson, Cal.

Evidence Benchbook (2d ed. 1982) § 25.2(p), p. 715 [speaking generally of claimants of privileges].) He is aided by a presumption that a marital communication was made in confidence. (Evid. Code, § 917.) The opponent has the burden to prove otherwise (ibid.) by a preponderance of the evidence (see id., § 115). Although the court could have dealt with the burdens more explicitly, any deficiency under these circumstances was certainly not fatal. C.

Denial of Motion to Exclude Photographs Prior to trial, defendant moved for a hearing to determine the admissibility of certain photographs that the People intended to introduce into evidence. The photographs included what were referred to as items 33A, 33B, 33C, 33D, 33E, and 33F—which depicted Hanson’s body at the crime scene—and items 36A, 36B, 36C, 36D, 36E, and 36F—which depicted Blount’s body at the same place. At the hearing, defendant argued that items 33A, 33B, 33C, 33D, 36D, and 36E should each be excluded under Evidence Code

section 352 as substantially more prejudicial than probative, specifically, as overly gruesome or merely cumulative or both. The People agreed as to item 33C—expressly conceding that it was cumulative to other photographs—but disagreed as to the others. The trial court reviewed each of the photographs defendant sought to exclude. Thereupon, it granted the motion with regard to item 33C, but denied it with regard to items 33A, 33B, 33D, 36D, and 36E. At trial, the People sought to introduce the five nonexcluded photographs, among others. Defendant renewed his motion. The court denied the request again.

It then received items 33A, 33B, 33D, 36D, and 36E into evidence as exhibits 33-A, 33-B, 33-D, 36-D, and 36-E. Defendant now contends that the trial court’s ruling was erroneous as to item 33D/exhibit 33-D. The decision comprises a determination as to undue prejudice. The appropriate standard of review is abuse of discretion. (People v. Benson, supra, 52 Cal.3d at p. 786 [speaking specifically of photographs].) No abuse appears. We have ourselves reviewed the photograph in question, which shows Hanson’s upper body and the wound to his throat.

The court could have reasonably concluded that the evidence was not substantially more prejudicial than probative. It was relevant to the crucial issues bearing on defendant’s conduct and mental state at the time of the crimes. Moreover, it was not overly gruesome—at one point during the hearing below defense counsel conceded as much—nor was it merely cumulative to other evidence. Defendant claims that the trial court did indeed err. His first attack is “procedural.” It fails. Of course, “on a motion invoking [Evidence Code

section 352] the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value . . . .” (People v. Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468], citing authorities; accord, People v. Wright (1985) 39 Cal.3d 576, 582 [217 Cal.Rptr. 212, 703 P.2d 1106].) The record here does so. Contrary to defendant’s implication, no more is required. Certainly, the trial judge need not expressly weigh prejudice against probative value—or even expressly state that he has done so (see People v. Johnson (1987) 193 Cal.App.3d 1570, 1576 [239 Cal.Rptr. 190]).

Defendant’s second attack is “substantive.” For the reasons stated above, it fails as well. D. Denial of Motions for Continuance Defendant contends that the trial court erred by denying, inter alia, certain motions he made for continuance of proceedings. The record pertinent to this claim must be set out at some length. On January 20, 1981, Fred R Tuttle III was appointed to represent defendant as counsel. On February 11, 1981, Lyle H. Shattuck was appointed as associate counsel. Trial was later set for November 9, 1981. On motion by both the People and defendant, it was continued to March 22, 1982.

On defendant’s motion, it was continued again to November 8, 1982. Trial was subsequently reset for March 28, 1983. On defendant’s motion, it was continued yet again to May 9, 1983, this time to allow the National Jury Project, which had been retained by counsel at a cost of $15,000, to provide defendant with assistance in the process of jury selection. Trial was later reset to May 11, 1983, with hearings on a number of pretrial motions scheduled for May 9, 1983. On May 9, 1983, defendant moved for a continuance of all proceedings. His grounds were these:

(1) Attorney Shattuck had unexpectedly fallen ill and was absent; and (2) the defense needed more time to locate, contact, and interview possible penalty phase witnesses in order to furnish the National Jury Project with certain information it required. The trial court held a hearing that day. Requesting an immediate continuance of 60 days, Attorney Tuttle argued both the “illness” and “lack of preparation” claims. He urged the former mainly in open court. He pressed the latter almost exclusively in chambers, outside the prosecutor’s presence.

There, he stated in substance as follows: the defense believed that the penalty phase “is the most important phase as far as this case is concerned. The guilt phase, there is very little to be done in that regard so far as the Defendant is concerned”; counsel had three possible penalty phase witnesses; those persons had become hostile; as a result, counsel did not have sufficient information to furnish to the National Jury Project; if they failed to furnish such information, they “would deprive the Defendant of his rights”; in fact, as a result of the foregoing, they were not prepared for the penalty phase.

The trial court decided not to rule on the motion at that time. It was inclined to reject the claim of lack of preparation. But it wished to obtain more information about the claim of illness. To accommodate certain personal concerns expressed by Attorney Tuttle, it continued the previously scheduled matters to the next day. On May 10, 1983, the trial court reopened the hearing on defendant’s motion for continuance. Both Attorney Tuttle and Attorney Shattuck were present. Although Shattuck stated that he was not feeling well, he did not indicate that he was or would be unavailable because of illness.

At the hearing, argument focused on such matters as when the defense learned, or should have learned, of the identity of possible penalty phase witnesses; whether the information such persons might supply was required by the National Jury Project; and to what extent, if at all, counsel needed that group’s assistance. In the course of argument, Attorney IXittle stated that defendant might have a “constitutional right” to the National Jury Project’s assistance.

To the trial court’s question, “If the continuance was not granted, would that be a violation of this man’s due process rights?,” Tuttle responded, “Perhaps.” He went on to explain: “Well, I just feel that it may be depriving him of a right to adequate representation by Counsel.

Since they are in effect our agents and they are saying that they are unable to provide this service for which they have been retained, then perhaps he is not being provided with adequate Counsel.” The prosecutor remarked, “I just, Your Honor—the claim of ineffective assistance of Counsel, I just—I think there is just too many ifs . . . .” Attorney Shattuck responded: “This is the first capital case that I have had. ... I have been practicing approximately 30 years and I have handled quite a few jury trials.

And since my contact with the National Jury Service [szc] I have realized that I didn’t know anywheres near as much about picking jurors as I thought I did.” He proceeded: “I, having learned as much as I have so far, I would feel incompetent to select a jury in a capital case without their assistance.” He added, “[W]e really feel that we really need the National Jury Service [szc].” He conceded, however, that the group would provide assistance even if a continuance was not granted.

He closed: “And we don’t know what the evidence—they don’t know what the evidence is and they can’t assist us well and I personally feel if I couldn’t have their assistance, my client would be denied the effective assistance of Counsel even though [I have] 30 years of experience and I tried a lot of cases.” The trial court denied the motion, finding that “there is no good cause for continuance.” Jury selection commenced on May 11, 1983. The National Jury Project assisted defendant throughout the process.

On May 19 defense counsel stated that defendant would move for a continuance based on the absence of the defense investigator—who had evidently been injured in an automobile accident—as soon as they received the relevant medical reports. On June 9 jury selection was completed. That same day, defendant orally moved for a continuance of trial. His ground was lack of preparation attributable in part to the injury suffered by the defense investigator.

The trial court put the matter over to June 14, 1983, to allow defendant an opportunity to file supporting papers, and stated that it would make its ruling on that date. At that point, defendant began to speak: “Your Honor, I have something I would like to say, I feel needs to be on the record.” Attorney Tuttle explained, “It’s in regard to our possible competence or incompetence, Your Honor . . . .” With counsel’s consent, the trial court allowed defendant to proceed. He stated: “It concerns the preparation of my defense, Your Honor.

I have been—I have given my lawyers a long—a list a long time ago of witnesses, and to my knowledge, 75 percent of them have not been interviewed. I don’t even know if I have a defense at the guilt or the penalty phase.” The court asked, “At this time, you are saying that your attorneys are incompetent?” Defendant answered nonresponsively, “I have had them for quite a while.” He then went on: “I would like to go—if we could have a continuance and I could find out myself.

I just talked to the investigator on the phone myself.” The court reiterated that it had put the matter over and would not make a ruling immediately. On June 14,1983, defendant filed papers supporting his June 9 motion for continuance, asking that trial be scheduled for July 5, 1983. He restated his ground as lack of preparation attributable in part to the injury suffered by the defense investigator and a consequent threat to the effectiveness of counsel’s assistance at the guilt phase.

At the hearing that day, the trial court stated to defense counsel: “I will be awfully frank with you gentlemen, I don’t think there is any just cause for a continuance.” Its reason, in a word, was “the age of the case.” Counsel proceeded to present argument. With counsel’s consent, the trial court then allowed defendant to make a statement.

He said in substance that at the time the defense investigator suffered his injury, he began to seriously question counsel’s competence; he admitted he had made no attempt to address his concerns to the court at that time; he now believed that counsel were unprepared for trial and hence incompetent for the task; he also believed that counsel had not adequately cooperated with his efforts to aid the defense; he added: “I am totally inexperienced in legal matters and I am at a loss as to what is proper steps to be taken.

I am not even sure that a continuation can or will rectify the deficiencies of my defense team preparation.” Thereupon, Attorney Shattuck moved to withdraw from representing defendant “if [that is] the way my client feels about my competence.” The trial court denied defendant’s motion for continuance. It stated in relevant part: “This case has been going for two and a half years. Eventually this whole idea is to search for the truth. Now we have gotten to the place where we get involved in the search for the truth. Now it has to happen.” The court also denied Attorney Shattuck’s motion to withdraw.

Attorney Tuttle renewed the motion for continuance, observing that neither the People nor defendant was ready to proceed: “I can’t see that there is any great crisis as far as a one week or two week continuance . . . .” The trial court effectively set aside its denial of the motion and then ordered a one-week continuance to June 21, 1983, in order to “accom[m]odate both sides.” It noted that Attorney Shattuck had unsuccessfully moved to withdraw. It also noted that defendant “has been straddling the fence whether he wants another attorney.

I get the impression that he does . . . .” It then stated that “we have got [June 21] for you to do whatever you have to do, along those lines[.]” It reminded counsel as the hearing was about to close: “And if you could advise your client about that incompetency if he wants to do what he wants he has got time to do whatever he wants to do.” Attorney Shattuck responded: “Yes, Your Honor. I will confer with him right away.” On June 21, 1983, the guilt phase opened. Defendant did not renew his motion for continuance. Nor did he attempt to express any complaints about counsel.

Neither did Attorney Shattuck renew his motion to withdraw. On July 12 defendant moved for a continuance of 30 days between the end of the guilt phase and the beginning of the penalty phase, if any. On July 20 the guilt phase closed with the jury’s adverse verdicts and special-circumstance findings. Later that day, the trial court ordered a continuance of about three weeks, to August 9. On that date, the penalty phase opened. On August 26 it closed with the jury’s verdict of death. Defendant now claims that the trial court erred by denying the motions for continuance that he made on May 9, 1983, and June 9, 1983.

The granting or denial of a motion for continuance rests within the sound discretion of the trial court. (E.g., People v. Grant (1988) 45 Cal.3d 829, 844 [248 Cal.Rptr. 444, 755 P.2d 894].) That discretion, of course, must be exercised in conformity with the applicable law. A continuance may be granted only on the moving party’s showing of good cause. (Pen. Code, § 1050, subd. (e); Pen. Code, former § 1050, subd. (b), as amended by Stats. 1982, ch. 952, § 1, p. 3444.) Such a showing requires, inter alia, a demonstration that both the party and counsel have used due diligence in their preparations. (People v.

Grant, supra, at p. 844.) It follows that on appeal, a ruling on a motion for continuance is subject to review under the abuse-of-discretion standard. (See, e.g., People v. Grant, supra, 45 Cal.3d at pp. 843-844.) In our view, the trial court did not abuse its discretion by ruling as it did on defendant’s motion of May 9, 1983. The court found that “there is no good cause for continuance.” Its finding was not unreasonable. As noted, the motion rested on grounds involving Attorney Shattuck’s illness and the defense’s lack of preparation.

The former was effectively withdrawn by Shattuck’s presence at the May 10, 1983, hearing. The latter could certainly have been deemed insufficient. There was no demonstration that both defendant and his counsel had used due diligence. Indeed, the facts strongly suggested the opposite: Attorney Tuttle and Attorney Shattuck had been appointed in early 1981, trial was originally set to commence later that year, and defendant himself evidently possessed much of the information considered crucial, viz., the identity of possible penalty phase witnesses.

Neither did the trial court abuse its discretion by ruling as it did on defendant’s motion of June 9, 1983. It must be emphasized at the outset that contrary to defendant’s characterization, the court granted the motion— although it continued trial only to June 21 and not to July 5 as had been requested. The court all but expressly found that defendant had failed to make a showing of good cause for a continuance beyond June 21. Its finding was not unreasonable. As noted, the motion rested on grounds of lack of preparation and a consequent threat to the effectiveness of counsel’s assistance at the guilt phase.

The former could have been deemed insufficient. There was no demonstration that both defendant and his counsel had used due diligence. Indeed, as stated above, the facts strongly suggested the opposite. The other ground could also have been deemed insufficient. Any threat to counsel’s effectiveness at the guilt phase was speculative and nothing more—especially in view of Attorney Tuttle’s statement in chambers on May 9, 1983, that “Tlie guilt phase, there is very little to be done in that regard so far as the Defendant is concerned.” Defendant argues against our conclusion.

But notwithstanding his assertion, he simply does not establish that the trial court erred in ruling as it did on either of his motions. Defendant also claims that the trial court erred by denying what he asserts was his motion for substitution of counsel and by refusing to afford him a proper hearing on his underlying complaints about counsel’s performance. The point is empty. There was no denial of a motion for substitution. Defendant never made any such request. Further, there was no refusal to afford him a proper hearing on his complaints. Indeed, the record is otherwise.

Defendant next claims that the trial court erred by denying Attorney Shattuck’s motion to withdraw as counsel. Determination of such a request is entrusted to the sound discretion of the trial court. (See, e.g., People v. McCracken (1952) 39 Cal.2d 336, 350 [246 P.2d 913].) Accordingly, its decision is subject to review for abuse of discretion. (See ibid.) No abuse appears. As noted, Shattuck made his motion on June 14, 1983, following the completion of jury selection and prior to the opening of the guilt phase.

He did so immediately after defendant expressed a belief that counsel were unprepared for trial and hence incompetent for the task—stating that he was seeking to withdraw “if [that is] the way my client feels about my competence.” On this record, the trial court’s ruling was certainly not unreasonable. Put simply, the court could have viewed Shattuck’s words as too little, too late.

Finally, defendant claims in substance that the trial court’s acts and omissions and/or the acts and omissions of counsel threatened to violate and/or did in fact violate his right under the Sixth Amendment to the effective assistance of counsel and/or representation free from conflicts of interest. Having reviewed the record in its entirety, we simply disagree. The acts and omissions in question did not implicate the Sixth Amendment in any significant way. E. Denial of Separate Guilt and Penalty Juries Prior to trial, defendant made a motion to impanel separate juries to try the issues of guilt and penalty.

He based his request on a claim that the exclusion through “California death qualification” of “guilt phase indudables” violates a criminal defendant’s right to a jury drawn from a fair cross-section of the community under the Sixth and Fourteenth Amendments to the United States Constitution and

article I,

section 16, of the California Constitution. He expressly declined to rely on a claim that the challenged exclusion violates a criminal defendant’s right under the same provisions of the federal and state charters to a jury that is impartial—specifically, a panel that is neutral on the question of guilt and hence not conviction prone. The trial court denied the motion. Defendant contends that the trial court’s ruling was erroneous. That is not the case. The claim on which defendant relied below is without merit.

The exclusion through “California death qualification” of “guilt phase indudables” does not offend a criminal defendant’s right to a jury drawn from a fair cross-section of the community under the Sixth and Fourteenth Amendments to the United States Constitution and

article I,

section 16, of the California Constitution. (E.g., People v. Fields (1983) 35 Cal.3d 329, 342-353 [197 Cal.Rptr. 803, 673 P.2d 680] (plur. opn.); id. at pp. 374-375 (conc. opn. of Kaus, J.); People v. Guzman (1988) 45 Cal.3d 915, 948-949 [248 Cal.Rptr. 467, 755 P.2d 917]; see, e.g., People v. Warren (1988) 45 Cal.3d 471, 479 [247 Cal.Rptr. 172, 754 P.2d 218] [adhering to Fields].) Further, the claim on which defendant expressly declined to rely is not preserved for review.

As noted, there was no argument that the challenged exclusion offends a criminal defendant’s federal and state constitutional rights to an impartial jury. Of course, when an argument was not presented to support a motion, it may not be urged to attack the subsequent ruling. In any event, we have never found the present argument persuasive. (See generally Hovey v. Superior Court, supra, 28 Cal.3d at pp. 8-69.) Our views have not changed. F.

Excusal From Jury Service for Hardship Defendant contends that the trial court erred by improperly excusing 229 persons from jury service in this action on the ground of undue personal hardship. (He lists a total of 325 prospective jurors and 235 hardship excusáis.) The major argument is that the court used the challenged excusáis to remove all persons who simply did not wish to serve in a capital case—or allowed such persons to remove themselves—and thereby created a pool of “volunteers.” A minor argument is that the court generally ordered the challenged excusáis without adequate support in the law or the facts or both.

The claim asserts violation of California statutory and decisional law and also the United States and California Constitutions. At defendant’s request, the trial court employed the following procedure to select the jury that would try his case: examination of prospective jurors in panels, resulting in excusáis for hardship; individual sequestered examination of those who remained, leading to exclusion for cause; the random drawing into the jury box of those who still remained, ending with removal on peremptory challenge by the People or defendant; and finally, the swearing of 12 jurors and 4 alternates.

Voir dire was conducted over 18 days. Initially, 325 prospective jurors were examined in 4 panels. By way of introduction, the trial court stated that the expected length of the proceedings was about 10 to 12 weeks. It went on to solicit, and determine, claims of undue personal hardship. At this stage it received 232 requests for excusal; it granted 218 and denied 14. Only then did it reveal that the action was criminal in nature and might involve the death penalty. At this stage it received, and granted, four additional requests.

The 103 remaining prospective jurors were then examined individually and in sequestration. In the course of these proceedings, the People took 11 challenges for cause, all successfully. For his part, defendant took eight challenges for cause, three successfully. The trial court removed an additional four persons for cause, two clearly on its own motion and two apparently so. It also excused 12 more persons for hardship. Six persons did not appear. From the 67 still remaining, prospective jurors were randomly drawn into the jury box.

The People and defendant were each allotted 26 peremptory challenges against prospective jurors and 4 against prospective alternate jurors. The People used 13 such challenges against prospective jurors and 2 against prospective alternate jurors. Defendant used nine against the former and four against the latter. The jurors and alternates were sworn. Before the guilt phase opened, the trial court excused one of the jurors for hardship and substituted an alternate in his place. In total, the trial court excused 235 persons for undue personal hardship.

No objection whatever was made by either the People or defendant. As stated, defendant claims that the trial court erred by improperly excusing 229 persons from jury service in this action because of undue personal hardship—220 at panel voir dire, 8 at individual sequestered voir dire, and 1 after swearing. After close consideration, we reject defendant’s claim on procedural grounds. A defendant may properly raise in this court a point involving an allegedly improper excusal for undue personal hardship only if he made the same point below.

The requirement of a contemporaneous and specific objection promotes the fair and correct resolution of a claim of error both at trial and on appeal, and thereby furthers the interests of reliability and finality. When a contemporaneous and specific objection is made, the parties are put on notice to characterize the claim as they think proper and to set out the law and facts as they deem necessary.

With their response, the trial court is provided with a basis on which to define the claim and then determine whether it is meritorious and, if so, how any harm may be avoided or cured as promptly and completely as possible. On such a record, the appellate court may then decide whether a challenge to the trial court’s ruling is sound. (Cf. People v.

Gallego (1990) 52 Cal.3d 115, 166 [276 Cal.Rptr. 679, 802 P.2d 169] [applying the requirement of a contemporaneous and specific objection to a claim that the prosecutor used peremptory challenges to remove prospective jurors on the sole ground of group bias in violation of Cal. Const., art. I, § 16, as construed in People v. Wheeler (1978) 22 Cal.3d 258 (148 Cal.Rptr. 890, 583 P.2d 748)].) Plainly, defendant does not satisfy the rule requiring a contemporaneous and specific objection: as noted, he made no objection whatever to any of the trial court’s hardship excusáis.

Nor does he show that any exception to the requirement is available. He argues that the rule does not apply to claims of error under the United States or California Constitution. We are not persuaded. The reasons for the requirement extend to all claims of whatever dimension. Its operation should therefore extend to all as well. Were we to proceed beyond the threshold, we would be inclined to reject defendant’s claim on the merits. Of course, a trial court has authority to excuse a person from jury service for undue personal hardship. (Code Civ. Proc., § 204, subd. (b); see Code Civ.

Proc., former § 200, added by Stats. 1975, ch. 593, § 3, p. 1310, and repealed by Stats. 1988, ch. 1245, § 1, p. 4140.) Exercise of that authority is reviewed for abuse of discretion. (See People v. Wheeler, supra, 22 Cal.3d at p. 273.) Applying that standard, we believe that no pervasive error appears under California statutory or decisional law. Almost all of the 229 challenged excusáis for undue personal hardship seem reasonable. To be sure, the trial court’s examination was usually quite brief in length and often jocular in tone.

Its result, however, was virtually always the sound determination of the question presented. (Compare People v. Thompson (1990) 50 Cal.3d 134, 157-159 [266 Cal.Rptr. 309, 785 P.2d 857] [arriving at a similar conclusion on a similar record].) Read fairly and as a whole, the record does not bear out defendant’s argument that the trial court used the challenged hardship excusáis to remove all persons who simply did not wish to serve in a capital case—or allowed such persons to remove themselves. As the facts set out above show, the court denied 14 requests for excusal on this ground.

Moreover, it ordered almost all the challenged excusáis—224 out of 229—before it revealed that the action was criminal in nature and might involve the death penalty. Neither does the record support defendant’s argument that the trial court generally ordered the challenged hardship excusáis without adequate basis. The court used its practical experience and made pragmatic evaluations. As a general matter, defendant’s criticism in this regard is little more than a cavil. Of the 229 challenged hardship excusáis, however, 4 are indeed troubling.

In each of these instances, it appears that the trial court—although not without chastisement—did in fact allow a prospective juror to remove himself because he simply did not wish to serve. But it cannot be said that any of these persons was motivated by a desire to avoid participation in a capital (or even a criminal) case. Of the four prospective jurors here considered, three were excused at panel voir dire before they had even been informed of the nature of the proceedings. The fourth, it is true, was excused at individual sequestered voir dire after he received that information.

But the record reveals that he acted solely out of economic considerations. Further, we believe that no error appears under the United States or California Constitution. In this regard, defendant claims that the challenged excusáis for undue personal hardship violated, inter alia, his rights to (1) a jury drawn from a fair cross-section of the community, under the Sixth and Fourteenth Amendments to the United States Constitution and

article I,

section 16, of the California Constitution; (2) an impartial panel, under the same provisions; (3) a reliable determination by such a panel on the issue of life or death, under the Eighth and Fourteenth Amendments and

article I,

section 17; and (4) equal protection of the laws, under the Fourteenth Amendment and

article I,

section 7. The point rests on an assumption that all persons who did not wish to serve in a capital case were removed. The assumption is unsupported. Certainly, we cannot conclude that the pool remaining after the challenged excusáis constituted “volunteers.” As noted, 14 requests for excusal were denied. A fortiori, we cannot conclude that the pool constituted “volunteers” for a capital (or even a criminal) case. As also noted, almost all the challenged hardship excusáis were made before the nature of the proceedings was revealed.

On this record, we can find no significant infringement of defendant’s fair-cross-section, impartial-jury, and reliable-penalty-determination rights. The four questionable excusáis were without appreciable effect. In any event, even if the trial court did in fact err as defendant claims under both California statutory and decisional law and also the United States and California Constitutions, reversal would not be warranted. In our view, none of the asserted violations entails prejudice per se. And certainly, none discloses actual prejudice.

On the issues of both error and reversibility, defendant finds the state of the record unsatisfactory. But having made no relevant objection below, he may not be heard to complain in that regard. G. Prosecutorial Misconduct Defendant contends that the prosecutor committed misconduct in the course of both his opening statement and his summation.

He complains of the following: a reference, in the former, to a possible witness for the People who was not ultimately called, which suggested that at some time after his arrest he had made plans to escape; and an allusion, in the latter, to the existence of facts not in evidence, to the effect that he envied Hanson. He argues that the claimed misconduct violated state law and also offended the United States Constitution—specifically, the confrontation clause of the Sixth Amendment, the cruel and unusual punishments clause of the Eighth Amendment, and the due process clause of the Fourteenth Amendment.

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.” (People v. Benson, supra, 52 Cal.3d at p. 794.) In this case, defendant made no such assignment and request at any time. “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.

The reference and allusion now complained of threatened little, if any, harm: each was brief and, in context, unremarkable. Any possible harm was readily curable. Defendant’s argument to the contrary founders on the record. H. Overruling of Objection to Letters Outside the presence of the jury, the People moved for a ruling on the admissibility of portions of four letters written by defendant in the Tokyo Detention House.

Three of the letters were addressed to his wife Allison: “I am really glad Frank [Plunk, Allison’s former husband,] came through, just think he might have loaned us the money all of the time.” “My trip to Cal wasn’t in vain. I finally found out you truly loved me and you got your bills paid. That is a pretty good haul for both of us.” “I would sacrifice everything for you. Hell, look I have. Actions speak louder than words. You got the money you wanted and now you ignore my need.” (See pt.

II.B., ante.) The fourth letter was addressed to his father: “I will probably be here til damn close to Christmas, maybe even longer. Thank you for sending my little family $4,000.” The People sought (1) to show that around the time of the murder of Hanson and Blount, defendant and Allison were experiencing difficulties in their financial situation, and that defendant came to California from Japan to alleviate that condition; and (2) to corroborate the testimony of Edward Rogers on that point. Defendant objected to the portions of the four letters as irrelevant under Evidence Code

section 210 and as substantially more prejudicial than probative under Evidence Code

section 352. He argued, in substance, that the evidence was of no consequence to the action, and might allow an assertedly improper inference about the provenance of the $4,000 mentioned in the letter to his father—to the effect that “the money was given to his father by Doug Mickey to send to his wife and may have come from the Eric Hanson house.” The People responded, in substance, that the portions of the four letters were relevant to the issue of motive, and were not substantially more prejudicial than probative.

They offered suggestions to prevent the assertedly improper inference that defendant feared, including a statement to the jury that they were introducing the evidence only to show motive, and even an agreement not to present the portion of the letter to his father. Defendant refused. Overruling defendant’s objection, the trial

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