THE PEOPLE, Plaintiff and Respondent, v. TROY ADAM ASHMUS, Defendant and Appellant, 54 Cal. 3d 932

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 August 17, 1984, the District Attorney of Sacramento County filed an information against defendant Troy Adam Ashmus in the superior court of that county. Count I charged that on May 19,1984, defendant murdered Marcella D. in violation of Penal Code

section 187. It was alleged that he committed the offense under the following special circumstances: (1) felony murder in the course of rape under Penal Code

section 261, within the meaning of Penal Code

section 190.2, subdivision (a)(17)(iii); (2) felony murder in the course of sodomy under Penal Code

section 286, within the meaning of Penal Code

section 190.2, subdivision (a)(17)(iv); and (3) felony murder in the course of a lewd or lascivious act on the person of a child under 14 years of age under Penal Code

section 288, within the meaning of Penal Code

section 190.2, subdivision (a)(17)(v). Counts II, III, and IV charged, respectively, that on that same date defendant engaged in rape, sodomy, and lewd or lascivious conduct against the same victim, in violation of the statutory provisions cited above—specifically, as to rape, former subdivision (2) (current subd. (a)(2)) of Penal Code

section 261 (Stats. 1983, ch. 949, § 1, p. 3416); as to sodomy, subdivision (

c) of Penal Code

section 286; and as to lewd or lascivious conduct, subdivision (

b) of Penal Code

section 288. Defendant pleaded not guilty to the charges and denied the special circumstance allegations. On his motion, the court subsequently changed venue from Sacramento to San Mateo County. Trial was by jury. The jury returned verdicts finding defendant guilty as charged, determined the murder to be of the first degree, and found all the special circumstance allegations true. It subsequently returned a verdict of death.

The court entered judgment accordingly, sentencing defendant to death for the murder and to full, separate, and consecutive middle terms of six years in prison for each of the three noncapital offenses. As we shall explain, we conclude that the judgment must be affirmed. I. Facts A. Guilt Phase Most of the basic facts relevant here were essentially undisputed at trial. About 4 o’clock on the afternoon of Saturday, May 19, 1984, Marcella (Marcie) D., who was seven years of age, rode to Howe Park in Sacramento on her bicycle.

There she met her brother Arby, age 10, who was responsible for her, and Arby’s friend Ernesto (P.J.) G., age 9. Arby and P.J. walked to a pond to fish from a dock, and Marcie went to play with some children within a few feet of the boys. Defendant, who was 22 years old, approached Arby and P.J. as they were fishing. For the past few days he had been camping in an area in adjacent Santa Anita Park called Stoner’s Pit, a site that was filled with litter but also secluded and covered with vegetation. He gave the boys advice and help in their fishing, and stayed nearby.

About 5 or 5:30 p.m., Arby and P.J. walked to the park clubhouse. Marcie soon rode up. She said that she was going off to Santa Anita Park with defendant: he had told her that he knew of a duck’s nest there, and that he would give her a duckling if any had hatched. The boys said that she should return in about an hour. Defendant and Marcie proceeded to Stoner’s Pit. Once there, he subjected her to a fatal attack. He raped her and perhaps also penetrated her with some foreign object, making a very large tear through the length of her vagina to within a quarter of an inch of her rectum.

He sodomized her, inflicting two small wounds in the anal or rectal tissue. He possibly committed oral copulation by inserting his penis into her mouth. He evidently ejaculated over her body. He stuffed into her mouth and throat material including two plastic bags, a piece of cellophane about six inches long and two to three inches wide, and a pair of red shorts she had been wearing; the bags were wedged side-by-side in separate tight wads deep in her throat with the cellophane in between; the shorts were tightly compressed within her mouth; the bags obstructed her throat and caused her to die by asphyxiation.

Covering her naked body with a carpet remnant he had used for a sleeping mat during his stay at Stoner’s Pit, he fled the scene. When Marcie did not return as she had been told, Arby and P.J. became concerned. They searched without success. Arby telephoned his father. He too searched without success. The police were called in. About 8:30 p.m., a neighborhood man who was assisting the officers found Marcie’s body. Within a few hours, defendant was arrested. He had fresh abrasions on at least one of his hands. It does not appear that the duck’s nest of which defendant spoke had ever existed.

Although most of the basic facts were essentially undisputed, one was strongly contested: intent to kill. The People sought to prove intent by evidence including the manner and means defendant used to kill Marcie. By contrast, defendant, who took the stand himself, expressly denied intent. In his testimony, he generally confessed his culpability, admitting that he had lied in extrajudicial statements to the police and others in which he attempted to avoid responsibility and even tried to shift blame to his brother Tracy, who was three years younger. All the same, he asserted that Marcie’s death was accidental.

Beyond the basic facts set out above, the People and defendant disputed the proper characterization of the events. The People attempted to prove that defendant was especially cruel and his attack singularly brutal. They relied largely on the established circumstances of the offenses. For his part, defendant tried to show the opposite.

For example, he testified to the following effect: he had consumed marijuana on the day in question; not long after reaching Stoner’s Pit with Marcie, “something right then and there hit me”; he asked her to take her clothes off, and she complied; he then took off his own; his intention was “[jjust to make her happy”; at first, she did not resist “because all I was doing was I was like a man would regularly treat a woman”; during what he called “the process of making love to her,” he did “nothing that would be harmful”; “Let’s put it this way,” he continued, “when I make love to a woman—one of my girlfriends—she don’t have no complaints at all”; soon, however, Marcie’s eyes began to flow with tears and she cried for help; “[ajbout two seconds later someone walked by and yelled out, ‘Did someone holler for help?’ ”; he then pushed the plastic bags into her mouth, but only “to keep her quiet”; after the act, he cleaned himself off and dressed; “I believe she was still moving when I finally left”; he did not remove the bags from her mouth because “I forgot they were there”; he covered her with the carpet remnant “out of courtesy”; he felt remorse and shame, apparently from the very moment he did the deed; and he stated that he preferred to refer to Marcie as a “person” because “I’m tired of people using the word ‘child.’ ” B.

Penalty Phase In their case in aggravation, the People introduced evidence to prove that defendant suffered two felony convictions: the first, in 1981, for burglary in the second degree in violation of Penal Code sections 459 and 460, in Kern County; and the second, in 1985, for assault with intent to commit rape in violation of Penal Code

section 220, in Sacramento County. They also presented evidence to establish the facts underlying the latter conviction. Lisa Cronin, the victim, testified that in the early hours of May 19, 1984— the date of the crimes against Marcie—defendant attacked her, and in fact bruised and sprained one of her arms; he announced his intent to commit rape; but he fled without accomplishing his purpose when bystanders came to her aid. In his case in mitigation, defendant introduced evidence to generally describe his background and character, from before birth up until the time of trial.

The testimony, given by lay witnesses as well as psychiatric and psychological experts, painted the following picture: defendant suffered abuse and neglect from his earliest years at the hands of his father and mother; his parents had a troubled and unhappy marriage, which was dissolved when he was about 17 or 18 years old; he was an emotionally and behaviorally disturbed child, youth, and adult; over the years, he had been cruel to animals and hurtful to his peers; he had experimented with drugs; he was friendless, angry, and refractory; and he may have experienced organic brain damage or impairment.

Further, the evidence supported an inference that he may have been under the influence of some mental or emotional disturbance at the time of the crimes. It also showed that his burglary conviction arose from petty, nonviolent criminal conduct. In addition, it suggested that he would not be dangerous in prison if his life were spared. In rebuttal, the People introduced evidence through the testimony of a psychologist, who opined that defendant had not, in fact, experienced organic brain damage or impairment. II.

Jury-selection Issues Defendant raises a number of claims bearing on the process of jury selection in order to demonstrate that the judgment should be reversed as to guilt or at least as to penalty. As will be shown, none is meritorious. A. Introduction At defendant’s request, the trial court employed a modified version of the “struck jury” system to select the jurors who would try the case, instead of the “jury box” system defined by statute (see generally former Pen. Code, § 1055 et seq.; current Code Civ. Proc., § 225 et seq.).

The prospective jurors were first examined for hardship, and some were excused on that basis. Those who remained were questioned individually and in sequestration (following limited group preinstruction and voir dire), and some were excluded for cause.

Those who remained after that stage had their names drawn randomly and listed in the order drawn; each side was allotted 26 peremptory challenges against prospective jurors and 5 against prospective alternates; prospective jurors “1” through “12” were drawn into the jury box; the People and defendant alternately struck (or passed) the prospective jurors in the box, with prospective juror “13” taking the place of the first person struck, prospective juror “14” taking the place of the second, and so on; in all, the People struck 22 prospective jurors and 4 prospective alternates, and defendant struck 19 of the former and 3 of the latter; neither side expressed any dissatisfaction with any of the persons selected as jurors or alternates; finally, 12 jurors and 5 alternates were sworn.

B. Denial of Motion as to “Guilt Phase Indudables” Prior to the commencement of jury selection, defendant moved the trial court for an order to govern the process of “California death qualification,” to the following effect: (1) not to exclude “guilt phase indudables” at that phase for cause for actual bias; and (2) to prohibit the People from attempting to exclude such persons on that basis. He claimed that such exclusion violates, among other provisions, the Sixth Amendment to the United States Constitution and

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section 16, of the California Constitution—including, as relevant here, the guaranties of trial by an impartial jury and trial by a jury drawn from a fair cross-section of the community. The trial court denied the motion. It rested its decision, in pertinent part, on a conclusion that the law did not support the position that defendant had taken. Defendant contends that the trial court’s ruling was erroneous. We disagree. The exclusion through “California death qualification” of “guilt phase indudables” does not offend the Sixth Amendment or

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section 16, as to the guaranty of trial by a jury drawn from a fair cross-section of the community. (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] [adhering to Fields); see also Lockhart v. McCree (1986) 476 U.S. 162, 173-177 [90 L.Ed.2d 137, 147-150, 106 S.Ct. 1758] [dealing solely with the federal constitutional right].) Neither does such exclusion offend the Sixth Amendment or

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section 16, as to the guaranty of trial by an impartial jury. (E.g., People v. Melton (1988) 44 Cal.3d 713, 732 [244 Cal.Rptr. 867, 750 P.2d 741] [impliedly dealing with both federal and state constitutional rights]; People v. Hamilton (1988) 46 Cal.3d 123, 136 [249 Cal.Rptr. 320, 756 P.2d 1348] [same]; see also Lockhart v. McCree, supra, 476 U.S. at pp. 177-184 [dealing solely with the federal constitutional right].) Defendant asks us to revisit these questions. We decline to do so.

To the extent that he urges departure from precedent laid down by the United States Supreme Court or by this court, his request is refused: we must follow the former and will follow the latter. C. Limitation of Examination on Voir Dire Defendant contends that the trial court erred when it limited his examination of prospective jurors on individual sequestered voir dire, assertedly in violation of California law as construed in People v.

Williams (1981) 29 Cal.3d 392 [174 Cal.Rptr. 317, 628 P.2d 869], From the very beginning of individual sequestered voir dire, as they extensively questioned the prospective jurors on their understanding of the two possible sentences at the penalty phase, defense counsel declared that life imprisonment without possibility of parole meant life imprisonment without possibility of parole. In so doing, they stated or implied that the penalty would inexorably be carried out.

They contrasted life imprisonment without possibility of parole, which might be imposed on defendant, with life imprisonment simpliciter, which had been imposed on such notorious criminals as Charles Manson and Sirhan Sirhan.

After 16 prospective jurors had been examined, the prosecutor objected to defense counsel’s examination on the ground that the questioning “unduly emphasize[d]” life imprisonment without possibility of parole and was “in the form of argument and comment on the law.” He said, “One or two questions on the subject I think would be sufficient.” The trial court expressed a concern to avoid the topic of possible postverdict governmental actions bearing on execution of penalty, specifically, commutation by the Governor of the sentence of death.

Defense counsel responded that the prospective jurors did not understand life imprisonment without possibility of parole, and needed instruction thereon. The trial court stated that both the prosecutor and defense counsel were “entitled to ask” the prospective jurors “how they feel about the two subject matters. Namely, death or life without the possibility of parole.” But it also said: “We are not here to instruct them on the law at this point.

What we are here to talk about is their qualifications.” Later, it reiterated: “This is not the time to preinstruct the jury or precondition them.” The trial court proceeded to rule as follows: “I will allow the question, ‘Do you understand that life without possibility of parole really means that in California; no eligibility for parole?’ If they say yes to that, that’s it. If they want to know more, you can ask them. I don’t want any references to Manson or Sirhan or that stuff.

It has nothing to do with their qualifications to sit on this case.” (Paragraphing omitted.) Thereafter, eight more prospective jurors were examined. Defense counsel continued to declare that life imprisonment without possibility of parole meant life imprisonment without possibility of parole. And they continued to state or imply that the penalty would inexorably be carried out. When the last of these eight prospective jurors, Kenneth N.

Judnick, was passed for cause by both sides, defense counsel stated that defendant had wished to examine Judnick more extensively as to life imprisonment without possibility of parole because of what he believed to be Judnick’s possible lack of understanding. Counsel added that in his view, the meaning of the penalty was generally a “very crucial point” and called for more extensive questioning.

The trial court responded that Judnick “understood” the matter “very clearly.” Following this interchange, the trial court undertook to instruct each of the remaining 103 prospective jurors—and actually instructed almost all of them—that life imprisonment without possibility of parole meant life imprisonment without possibility of parole. In doing so, it sometimes suggested that the penalty would inexorably be carried out. Defense counsel continued as previously in this regard. Even the prosecutor occasionally made comments to similar effect. In People v.

Williams, supra, 29 Cal.3d 392, we construed relevant statutory provisions, including former Penal Code

section 1078, and reconsidered pertinent cases, among them People v.

Edwards (1912) 163 Cal. 752 [127 P. 58]. (29 Cal.3d at pp. 398-407.) We “le[ft] intact the considerable discretion of the trial court to contain voir dire within reasonable limits.” (Id. at p. 408.) But we held that “counsel should be allowed to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds sufficient to sustain a challenge for cause." (Id. at p. 407.) We proceeded to “reaffirm that it is not ‘a function of the examination of prospective jurors to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’ [Citation.] Therefore, a question may be excluded if it appears to be intended solely to accomplish such improper purpose.” (Id. at p. 408, fn. omitted.) On appeal, as Williams itself makes plain (see 29 Cal.3d at pp. 409-412), a ruling by a trial court limiting examination of prospective jurors on voir dire is subject to review under the abuse-of-discretion standard.

Applying that test here, we find no error. As noted, the trial court ruled as follows: “I will allow the question, ‘Do you understand that life without possibility of parole really means that in California; no eligibility for parole?’ If they say yes to that, that’s it. If they want to know more, you can ask them.” (Paragraphing omitted.) In making its determination, the court evidently recognized, and sought to follow, such relevant decisions as People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810], and People v. Ramos (1984) 37 Cal.3d 136 [207 Cal.Rptr. 800, 689 P.2d 430].

In Morse we held to the effect that in deciding on penalty in a capital case, the jury is to consider only the criminal and his crime—and not possible postverdict governmental actions bearing on execution of sentence. (60 Cal.2d at pp. 636-653.) In Ramos we concluded that an instruction that the Governor could commute both a sentence of death and life imprisonment without possibility of parole would “violate the state constitutional due process guarantee because its reference to the commutation power invites the jury to consider matters that are both totally speculative and that should not, in any event, influence the jury’s determination.” (37 Cal.3d at p. 155.) In pertinent part, defense counsel’s examination of the prospective jurors was apparently not designed—and was certainly not conducted—to assist in the intelligent exercise of challenges.

Indeed, as counsel themselves effectively admitted, their questioning was intended to “instruct” the prospective jurors that life imprisonment without possibility of parole meant life imprisonment without possibility of parole—and also, it seems, to suggest to them that the penalty would inexorably be carried out. The trial court might properly have prohibited such examination altogether. Instead, it merely imposed a limitation. Its evident purpose was to prevent undue emphasis by defense counsel on life imprisonment without possibility of parole.

It did so in order not to trigger speculation by the prospective jurors as to possible postverdict governmental actions bearing on execution of penalty. In proceeding as it did, the court acted reasonably. Defendant argues against our conclusion. His point appears to be as follows: he was entitled to assure himself that the prospective jurors fully understood, and actually believed, that life imprisonment without possibility of parole meant life imprisonment without possibility of parole; but the trial court’s ruling frustrated his attempts to do so. We doubt the entitlement.

The assurance defendant apparently sought seems unattainable. We also doubt the effect. The ruling did indeed limit examination in this area, but not unduly so. Indeed, it appears to have drawn a reasonable line between productive and counterproductive questioning. To the extent that defendant’s argument assumes that a party has a right to “instruct” the prospective jurors on the meaning of life imprisonment without possibility of parole, it is unsupported.

In Williams we declared all but expressly that no such right exists. (29 Cal.3d at p. 408.) It is manifest that the trial court’s ruling could not have had any appreciable effect on the process or outcome of the jury’s deliberations. On its face, as we have concluded, the ruling did not unduly limit defendant’s examination of prospective jurors on voir dire. Neither did it impose any such limitation as applied. Defendant asserts that defense counsel’s questioning was “obviously chilled.” The record is otherwise.

More important, the trial court and/or defense counsel and/or the prosecutor generally “instructed” the prospective jurors—including, specifically, all who were subsequently sworn to serve as jurors or alternates—that life imprisonment without possibility of parole meant life imprisonment without possibility of parole. In so doing, they sometimes suggested—favorably to defendant, but inaccurately—that the penalty would inexorably be carried out. Defendant challenges the effectiveness of the “instruction.” His attack relies ultimately on speculation. Speculation, however, is insufficient.

To be sure, as a group the prospective jurors did not enter or leave voir dire with a technical knowledge of life imprisonment without possibility of parole. But the record shows that they obtained an understanding adequate for their purposes. We recognize that in the absence of the trial court’s ruling, defendant would probably have examined the prospective jurors more extensively and, as a result, might possibly have discovered further useful information. But on this record, such probabilities and possibilities are without consequence. D.

Excusal of Prospective Jurors Because of Their Views Opposing Capital Punishment Defendant contends in substance that the trial court erred under the Sixth Amendment to the United States Constitution and

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section 16, of the California Constitution, with their impartial-jury guaranties, when it excused prospective jurors Michael J. Sullivan, Jr., Christine Giffin, and Johnnie D. Van Giesen for actual bias because of their views opposing capital punishment. In Witherspoon v.

Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the United States Supreme Court implied that a prospective juror could not be excused for cause without violating a defendant’s federal constitutional right to an impartial jury unless he made it “unmistakably clear” that he would “automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before” him, or that his “attitude toward the death penalty would prevent [him] from making an impartial decision as to the defendant’s guilt.” (Id. at pp. 522-523, fn. 21 [20 L.Ed.2d at p. 785], italics in original.) In Wainwright v.

Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844], however, the court “clarif[ied]” Witherspoon and declared that the proper standard for excusal was “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Id. at p. 424 [83 L.Ed.2d at pp. 851-852], quoting Adams v. Texas (1980) 448 U.S. 38, 45 [65 L.Ed.2d 581, 589, 100 S.Ct. 2521].) In People v.

Ghent (1987) 43 Cal.3d 739, 767 [239 Cal.Rptr. 82, 739 P.2d 1250], we adopted the Witt standard as the test for determining whether a defendant’s state constitutional right to an impartial jury was violated by an excusal for cause. Thereafter, in People v. Coleman (1988) 46 Cal.3d 749, 765 [251 Cal.Rptr. 83, 759 P.2d 1260], we construed Witt in accordance with its plain terms, and beyond the factual context of Witherspoon, to state a measure of “partiality” that may be applied against prospective jurors in favor of capital punishment as well as those in opposition.

On appeal, the trial court’s determination as to whether and how the prospective juror’s views on capital punishment would affect his performance as a juror is entitled to deferential review. (People v. Gordon (1990) 50 Cal.3d 1223, 1262 [270 Cal.Rptr. 451, 792 P.2d 251].) The general standard is substantial evidence. (People v. Cooper (1991) 53 Cal.3d 771, 809 [281 Cal.Rptr. 90, 809 P.2d 865].) The court’s threshold finding on what those views actually are is examined under that same test.

Such a finding, we have stated, is generally “binding” “if the prospective juror’s responses are equivocal . . . or conflicting . . . .” (Ibid.; see People v. Daniels (1991) 52 Cal.3d 815, 875 [277 Cal.Rptr. 122, 802 P.2d 906] [to similar effect]; see also People v.

Fredericks (1895) 106 Cal. 554, 559 [39 P. 944] [a finding of this sort, however, will be struck down “when the evidence upon the examination of the juror is so opposed to the decision of the trial court that the question becomes one of law”].) The exclusion of a prospective juror in violation of Witherspoon and Witt requires automatic reversal—but only as to penalty and not as to guilt. (Gray v.

Mississippi (1987) 481 U.S. 648, 666-667 [95 L.Ed.2d 622, 638-639, 107 S.Ct. 2045] (opn. of the court); id. at pp. 667-668 [95 L.Ed.2d at pp. 638-639] (plur. opn.); id. at p. 672 [95 L.Ed.2d at p. 642] (conc. opn. of Powell, J.); see Witherspoon v. Illinois, supra, 391 U.S. at pp. 521-523 [20 L.Ed.2d at pp. 784-786] [antedating Witt].) At individual sequestered voir dire, the People challenged prospective jurors Sullivan, Giffin, and Van Giesen because of their views opposing capital punishment. Defendant presented opposition. The trial court sustained the challenges and excused Sullivan, Giffin, and Van Giesen.

After review, we find no error. Prospective juror Sullivan’s views on capital punishment would, at the very least, have substantially impaired the performance of his duties as a juror. To be sure, as the trial court determined, he apparently could consider the death penalty as a reasonable possibility. But on more than one occasion during voir dire, he made plain that his feelings about the ultimate sanction would lead him to apply to the question of guilt or innocence a standard of proof higher than proof beyond a reasonable doubt.

Next, prospective juror Giffin’s views on capital punishment would likely have prevented—and would certainly have substantially impaired—the performance of her duties as a juror. Through the beginning and middle of voir dire, she was reluctant to state her opposition to the death penalty categorically. But near the end, she declared without qualification: “My decision is not going to be the death penalty.” She proceeded to affirm that “under no circumstances” would she impose the ultimate sanction.

Lastly, prospective juror Van Giesen’s views on capital punishment would almost surely have prevented—and would surely have substantially impaired—the performance of her duties as a juror. Throughout voir dire, she revealed that she would all but automatically reject the death penalty and choose life imprisonment without possibility of parole. Like Giffin, she was reluctant to state her opposition categorically. But she asserted unreservedly: “The way I feel now and the way I was raised and what I have always believed that nobody has the right to take a life.

The judge says the state does, but if I’m on this jury, you make me the state. You make me responsible for taking someone else’s life. I can’t be responsible for taking another life.” (Paragraphing omitted.) Defendant argues against our conclusion, but he is not persuasive. He asserts that if a prospective juror “aver[sj” that he will apply the standard of proof beyond a reasonable doubt “yet . . . frankly concede[s] that the prospects of the death penalty may affect . . . what [he] may deem to be a reasonable doubt” (Adams v.

Texas, supra, 448 U.S. at p. 50 [65 L.Ed.2d at p. 593]), he could adequately perform his duties as a juror. Defendant claims that prospective juror Sullivan made such an averment. The record is otherwise. He also asserts that if a prospective juror could simply consider imposing the death penalty, he could adequately perform his duties as a juror. He claims that prospective jurors Giffin and Van Giesen could give such consideration. But a juror must be able to do more, specifically, to consider imposing the death penalty as a reasonable possibility. Giffin and Van Giesen revealed an inability to do so.

Throughout his argument, defendant maintains that the record does not support our result. We do not agree that voir dire was insufficient. We do agree, however, that prospective jurors Sullivan, Giffin, and Van Giesen each made certain statements that might be characterized as equivocal or ambiguous. Such statements, however, were relatively few, isolated, and unemphatic. Certainly, the trial court considered them insignificant. It effectively concluded that each of the three held views that would prevent or substantially impair the performance of his or her duties as a juror. We find no reason to disagree. E.

Refusal to Excuse Prospective Jurors Because of Their Views Favoring Capital Punishment Defendant contends in substance that the trial court erred under the Sixth Amendment to the United States Constitution and

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section 16, of the California Constitution, with their impartial-jury guaranties, when it refused to excuse prospective jurors Silvio P. Trapani, Betty V. Chadwick, Russell C. Wong, and William H. Wisecarver, Jr., for actual bias because of their views favoring capital punishment. At individual sequestered voir dire, defendant challenged prospective jurors Trapani, Chadwick, Wong, and Wisecarver, as relevant here, because of their views favoring capital punishment. The People presented opposition. The trial court overruled the challenges.

It turned out that prospective jurors Trapani, Chadwick, Wong, and Wise-carver were not among those chosen to serve as jurors or alternates. Chadwick and Wisecarver were not drawn into the jury box as potential jurors or alternates. Trapani and Wong were drawn as potential jurors, but were removed by defendant’s peremptory challenge. When the selection of the jurors was completed, defendant had seven peremptory challenges remaining out of twenty-six; when the selection of the alternates was completed, he had two remaining out of five.

Defendant now claims that the trial court erred by overruling his “for cause” challenges against prospective jurors Trapani, Chadwick, Wong, and Wisecarver. For purposes here, we shall assume—against the People’s argument—that the point is preserved for review and is in fact meritorious. But as will be shown, reversal is not required. “It appears that with the exception of an improper ‘Witherspoon exclusion’ ”—which, of course, is not presented here—“an erroneous ruling on a ‘for cause’ challenge is not automatically reversible but is subject to scrutiny for prejudice under harmless-error analysis.” (People v.

Gordon, supra, 50 Cal.3d at p. 1247.) This principle applies generally: it matters not whether the error merely offends state law or amounts to a violation of the United States Constitution. (See ibid.) Prejudice turns on whether the defendant’s right to a fair and impartial jury was affected. That is certainly true when state law is implicated. (People v. Bittaker (1989) 48 Cal.3d 1046, 1087 [259 Cal.Rptr. 630, 774 P.2d 659].) It is also true, we believe, when a federal constitutional violation is involved.

State-law error of this sort, bearing as it does on penalty in a capital case, is reviewed under the “reasonable possibility” standard of People v. Brown (1988) 46 Cal.3d 432, 446-448 [250 Cal.Rptr. 604, 758 P.2d 1135]. Error of federal constitutional dimension, by contrast, is scrutinized under the “reasonable doubt” standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824], (People v. Coleman, supra, 46 Cal.3d at p. 768.) The two tests are the same in substance and effect. (People v. Brown, supra, at p. 467 (conc. opn. of Mosk, J.) [citing Chapman v.

California, supra, at p. 24 (17 L.Ed.2d at pp. 710-711), which treats as equivalent the federal constitutional “reasonable possibility” and “reasonable doubt” standards].) After review, we can discern no prejudice flowing from the “erroneous” overruling of defendant’s “for cause” challenges against prospective jurors Trapani, Chadwick, Wong, and Wisecarver. It is evident that defendant’s right to a fair and impartial jury was not affected thereby. None of the foregoing persons served as a juror or even as an alternate. On this record, none could have tainted the panel’s members with his or her alleged bias.

Accordingly, none could have influenced the process or result of the deliberations. That an allegedly biased juror might have sat had he or she not been removed by peremptory challenge does not implicate the right to a fair and impartial jury in any substantial way. Defendant disagrees with our conclusion that reversal is not required. He argues against the applicability of harmless-error analysis. In People v. Gordon, supra, 50 Cal.3d at page 1247, we rejected such a point. He relies on language in Gray v.

Mississippi, supra, 481 U.S. at page 665 [95 L.Ed.2d at page 637], that “the relevant inquiry is ‘whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.’ ” (Italics in original.) But as we explained in Gordon, “that language was all but disapproved in Ross v. Oklahoma (1988) 487 U.S. 81 . . . .” (50 Cal.3d at p. 1247.) “It is the merest speculation whether an erroneous ruling on a ‘for cause’ challenge might actually have had any significant effect and, if so, whether such effect might have helped or harmed the defendant.

Hence, the inquiry identified by the Gray court cannot serve as a principled basis on which to conclude that the error should be deemed automatically reversible as a general matter, or even that it caused any harm in an individual case.” (Ibid.) Defendant then argues against the application of harmless-error analysis here. But any “harm” he may have suffered is conjectural at best. He effectively conceded the point below: as noted, he did not express any dissatisfaction with any of the persons selected as jurors or alternates.

Contrary to defendant’s assertion, the fact that the trial court—at his own request—employed a modified version of the struck-jury system is of no consequence for the applicability of harmless-error analysis or even the actual application of such analysis in this case. Under the method of jury selection employed here, each side was able to exercise its peremptory challenges with knowledge of the state of mind of the prospective jurors who might be drawn into the jury box and also with knowledge of the order in which they would be drawn—knowledge that it would not have had if the jury-box method had been used.

Accordingly, each side could “calculate,” in some rough way, the relative cost and benefit of any given peremptory: the possible benefit was, of course, the present removal of a prospective juror whom the party considered objectionable; the possible cost was the inability to remove at a later time a prospective juror whom the party considered more objectionable still. We do not believe—and certainly defendant does not show—that the method of jury selection employed here calls for a rule or result different from that stated above. F.

Excusal of Prospective Jurors on the People’s Peremptory Challenge Assertedly in Violation of the United States and California Constitutions During voir dire, as noted above, the People removed 22 prospective jurors and 4 prospective alternates by peremptory challenge. Now for the first time, defendant asserts that the prosecutor used his peremptories to systematically exclude all prospective jurors and prospective alternates— totaling 10 in number—who expressed reservations about capital punishment but were apparently not excludable for cause on the basis of actual bias.

Defendant effectively contends that by acting as he did, the prosecutor violated the following provisions of the United States and California Constitutions—specifically, the due process clauses of the Fourteenth Amendment and

article I, sections 7 and 15; the Sixth Amendment and

article I,

section 16, with their guaranties of trial by an impartial jury and trial by a jury drawn from a fair cross-section of the community; and the cruel and unusual punishments clauses of the Eighth Amendment and

article I,

section 17. But “ ‘[W]e see no . . . constitutional infirmity in permitting peremptory challenges by both sides on the basis of specific juror attitudes on the death penalty.

While a statute requiring exclusion of all jurors with any feeling against the death penalty produces a jury biased in favor of death [citation], we have no proof that a similar bias arises, on either guilt or penalty issues, when both parties are allowed to exercise their equal, limited numbers of peremptory challenges . . . against jurors harboring specific attitudes they reasonably believe unfavorable. [Citation.] [][] We recognize that a jury shorn of significant community viewpoints on an issue in the case is not ideally suited to the “purpose and functioning of a jury in a criminal trial.” [Citation.] That, however, is a result inherent in the parties’ historic and important right to exclude a limited number of jurors for fear of bias.’ ” (Italics in original.) (People v.

Gordon, supra, 50 Cal.3d at p. 1263, quoting People v. Turner (1984) 37 Cal.3d 302, 315 [208 Cal.Rptr. 196, 690 P.2d 669] (plur. opn.), overruled on another point in People v. Anderson (1987) 43 Cal.3d 1104, 1149 [240 Cal.Rptr. 585, 742 P.2d 1306].) III. Guilt Issues Defendant raises a number of claims for reversal of the judgment as to guilt. As will appear, none succeeds. A. Denial of Motion to Suppress Defendant’s Extrajudicial Statement Prior to trial, defendant moved to suppress evidence of a statement he made to the police during custodial interrogation after his arrest.

At the beginning of the interview, he was advised of, and waived, his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], including his right to remain silent. The People proposed to introduce at trial the opening part of the statement, which contained admissions serving to link defendant to the scene of the crime. The final portion of that

part is as follows. “[Police Officer]: Um, well see when [one of defendant’s acquaintances] said he saw you and he was talkin’ to you at the, there was a little girl standin’ next to you. And he’s walking] . . . “Ashmus: (Interrupting) you’re gonna try to con-, now I ain’t saying no more. “[Police Officer]: Pardon? “Ashmus: You ain’t gonna, no. I’m not gonna get accused of some-thin’.

I love people too much. “[Police Officer]: Um hum. “Ashmus: I wouldn’t even kill a fly, I’m sorry. “[Police Officer]: Who said anything about killing anybody? “Ashmus: I wouldn’t even hurt a fly or kill a fly, I’m sorry, don’t say no more (inaudible) [—] “[Police Officer]: (Interrupting) Troy, who said any-, who said anything about killing anybody? “Ashmus: The way you guys are talkin’ to me, I’m sorry, it’s what it sounds like. “[Police Officer]: Nobody said anything about that.

How come you’re bringing that up[?] “Ashmus: He told me there’s a serious offense. “[Police Officer]: Who told you what’s a serious offense? “Ashmus: The cop that told, brought me in. “[Police Officer]: The uniformed officer? “Ashmus: Yeah. “[Police Officer]: What did he tell you? “Ashmus: He told, I asked him what is my charge? He says there’s been a serious offense occurred and you were a suspect, a sus-, suspect. “[Police Officer]: Um hum.” As relevant here, defendant moved to suppress the final portion of the statement, from and including his interruption to the end.

He claimed as follows: through the words, “now I ain’t saying no more,” and “don’t say no more,” he effectively invoked his right to silence; as a result, the final portion of the statement—together with the asserted invocations themselves —was inadmissible under Miranda and its progeny. The trial court conducted an evidentiary hearing. The People offered the testimony of witnesses, including the police officer whose questions and comments are quoted above. They also presented the part of the statement they proposed to introduce at trial, both as audiotape-recorded and as transcribed.

Defendant did not offer any evidence. Determining in substance that defendant did not effectively invoke his right to silence, the trial court denied the motion. The People later introduced the part of the statement they had proposed, including its final portion, through both audiotape and transcript. Defendant now contends that the trial court erred by denying his motion to suppress the final portion of the statement. His claim rises or falls with whether he effectively invoked his right to silence. On appeal, a trial court’s resolution of such a question is reviewed independently. (People v.

Jennings (1988) 46 Cal.3d 963, 979 [251 Cal.Rptr. 278, 760 P.2d 475].) So scrutinized, the court’s determination here is sound. Within their context— clearly in the transcript and more clearly still on the audiotape—defendant’s words cannot reasonably be deemed an invocation of his right to silence. He spoke to his interrogators; he uttered the words in question; and without hesitation he proceeded to speak to them further. He evidently sought to alter the course of the questioning. But he did not attempt to stop it altogether. B.

Denial of Motion to Exclude Electrophoretic Evidence Relating to Dried Semen Stains Prior to trial, defendant moved in limine to exclude evidence linking him to the attack on Marcie D. through the electrophoretic analysis of dried semen stains discovered on her body. He claimed that such evidence was inadmissible under the Kelly-Frye rule. (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v.

United States (D.C.Cir. 1923) 293 Fed. 1013 [34 A.L.R. 145].) Under the Kelly-Frye rule as strictly defined, “admissibility of expert testimony based upon the application of a new scientific technique” depends on “a preliminary showing of general acceptance of the new technique in the relevant scientific community.” (People v. Kelly, supra, 17 Cal.3d at p. 30, following Frye v.

United States, supra, 293 Fed. at p. 1014.) Under the rule as more broadly stated, the admissibility of such evidence also requires (1) testimony as to general acceptance given by a person “properly qualified as an expert to give an opinion on the subject” (People v. Kelly, supra, at p. 30, italics deleted), and (2) testimony as to the use of “correct scientific procedures ... in the particular case” {ibid) given, of course, by a person properly qualified as an expert to give an opinion on that subject. Of course, the party offering the evidence has the burden of proving its admissibility. (E.g., People v.

Morris, supra, 53 Cal.3d at p. 206.) The weight of his burden is by a preponderance of the evidence. That is the general burden of proof “[e]xcept as otherwise provided by law . . . .” (Evid. Code, § 115.) No exception appears. The trial court conducted an evidentiary hearing. The electrophoretic evidence in question showed that the semen found on Marcie’s body could have been deposited by about 1.5 percent of the male Caucasian population, including defendant. The People introduced evidence to satisfy the Kelly-Frye rule both as strictly defined and as more broadly stated, and made argument in support.

They called two expert witnesses: Robert E. Garbutt, a criminalist with the Sacramento County District Attorney’s Laboratory of Forensic Services; and Brian Wraxall, a forensic serologist with the Serological Research Institute in Emeryville. By contrast, defendant offered no evidence and set forth virtually no argument. The question was litigated in light of our decision in People v. Brown (1985) 40 Cal.3d 512 [220 Cal.Rptr. 637, 709 P.2d 440], reversed on other grounds sub nomine California v. Brown (1987) 479 U.S. 538 [93 L.Ed.2d 934, 107 S.Ct. 837], which had been handed down more than three months earlier.

In Brown, we concluded that the trial court therein erred by ruling admissible, against a Kelly-Frye objection, certain evidence of the electrophoretic analysis of dried semen stains offered by the People. (40 Cal.3d at pp. 528-535.) Our reason was that the People failed to meet their burden in that particular proceeding as to the general acceptance of such analysis in the relevant scientific community, which we implied was forensic chemistry. (Ibid.) After the evidentiary hearing, the trial court denied defendant’s motion.

It concluded, in substance, that the Kelly-Frye rule applied to the electrophoretic evidence in question, that the People met their burden, and hence that the evidence was admissible under the rule. Called at trial by the People, Garbutt subsequently testified on the basis of the electrophoretic analysis that the semen found on Marcie’s body could have been deposited by about 1.5 percent of the male Caucasian population, including defendant. Defendant now contends that the trial court’s ruling was erroneous. On appeal, a Kelly-Frye ruling is reviewed independently.

The reason is this: the core issue of the general acceptance of the new scientific technique in the relevant scientific community is scrutinized under that standard (People v. Reilly (1987) 196 Cal.App.3d 1127, 1134-1135 [242 Cal.Rptr. 496]). The resolution of each of the other questions underlying the ruling is reviewed under the test appropriate thereto. As relevant here, the determination on the qualifications of an expert is examined for abuse of discretion. (People v.

Kelly, supra, 17 Cal.3d at p. 39.) This evidently extends to the expert who gives testimony on general acceptance—including the issues of his credentials and impartiality (People v. Brown, supra, 40 Cal.3d at p. 530). The determination on the use of correct scientific procedures in the particular case is also examined for abuse of discretion. (See People v. Reilly, supra, at pp. 1154-1155.) After independent review, we conclude that the trial court’s ruling was proper.

The People effectively conceded for purposes of defendant’s motion that the electrophoretic analysis of dried semen stains was a new scientific technique. They then proceeded to establish all that was required of them by a preponderance of the evidence. They showed the general acceptance of such analysis in the relevant scientific community of forensic chemistry. They offered the expert testimony of Wraxall to prove this point. They also offered the expert testimony of Garbutt to prove the use of correct scientific procedures in this case. Their evidence was sufficient. Defendant challenges the ruling.

As will appear, he is unsuccessful. Defendant’s attack is directed broadly at the determination of the general acceptance of electrophoretic analysis of dried semen stains in the relevant scientific community of forensic chemistry. But on the record made by the parties, the trial court expressly found such acceptance, and we independently agree. Defendant’s attack is directed specifically at Wraxall’s qualifications to give an opinion on the subject. He finds fault with the witness’s credentials and more fault still with his impartiality.

On this record, we find no abuse of discretion in the trial court’s implicit determination that Wraxall was sufficiently credentialed. What is required here are “academic and professional credentials which equip [the witness] to understand both the scientific principles involved and any differences of view on their reliability.” (People v. Brown, supra, 40 Cal.3d at p. 530.) The court could reasonably have found such credentials. Wraxall had extensive professional achievements and associations. Evidently, he had not earned all the academic degrees usually held by scientists in the field.

But he had in fact done significant scientific work. Indeed, he had published several papers in refereed scientific journals. On this record, we also find no abuse of discretion in the trial court’s express determination that Wraxall was impartial. For present purposes, impartiality turns on whether the expert is “so personally invested in establishing the technique’s acceptance that he might not be objective about disagreements within the relevant scientific community.” (People v. Brown, supra, 40 Cal.3d at p. 530.) The court could reasonably have resolved the issue in the negative.

To be sure, Wraxall had been involved in the development and promotion of electrophoretic analysis since the middle 1960’s, both intellectually and financially. But such involvement does not appear fatal to the requisite objectivity. C. Denial of Motions to Exclude Photographic Evidence Outside the presence of the jury, defendant made a motion to exclude certain photographs, some showing Marcie D. in life not long before the crimes, the others revealing defendant himself shortly thereafter.

He made a separate motion to exclude certain photographs and slides of Marcie in death, as she appeared at the crime scene and during autopsy. In support of each, he claimed that the challenged evidence was not relevant under Evidence Code

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

section 352. The People presented opposition, denying defendant’s claims. The trial court conducted a hearing on the photographs of Marcie in life and defendant himself. It reviewed the challenged evidence. Finding relevance and no undue prejudice, it denied the motion, ruled the photographs admissible, and subsequently received the items into evidence. The trial court later conducted a hearing on the photographs and slides of Marcie in death. Here too it reviewed the challenged evidence. Although it apparently found all the items relevant, it found some unduly prejudicial.

It granted the motion as to the items it found unduly prejudicial and ruled them inadmissible. Otherwise, it denied the motion, ruled the other items admissible, and subsequently received them into evidence. Defendant contends that the trial court’s rulings were erroneous. “The appropriate standard of review is abuse of discretion. [Each of] [t]he ruling[s] comprises determinations as to relevance and undue prejudice. The former is reviewed under that standard. So is the latter.” (People v.

Benson, supra, 52 Cal.3d at p. 786, citation omitted.) As to the photographs and slides of Marcie in death—which we have ourselves reviewed—we discern no error. The trial court did not abuse its discretion when it found the evidence relevant. “Because one of the theories on which the prosecution tried the case and on which the jury was instructed was premeditated murder, malice was material and the photographs [and slides] were relevant to that issue.” (People v.

Hendricks (1987) 43 Cal.3d 584, 594 [238 Cal.Rptr. 66, 737 P.2d 1350].) Contrary to defendant’s argument, we think it plain that these items had at least some tendency to prove malice. Neither did the trial court abuse its discretion when it found the evidence not unduly prejudicial. As stated, the photographs and slides were relevant. Although unpleasant, they were not gruesome. The court could reasonably have concluded that their prejudicial effect did not substantially outweigh their probative value.

As to the photographs of Marcie in life and defendant himself— which we have also reviewed—we arrive at the same result. The trial court did not abuse its discretion when it found the evidence relevant. At the time of the ruling, the People intended to—and subsequently did—call a number of witnesses to give testimony bearing directly on identity and indirectly on intent to kill. They intended to—and did—use the photographs, at least in part, to support the witnesses’ credibility. The testimony would—and did—link defendant and Marcie. The former had changed in appearance since the time of the crimes.

The latter, of course, was dead. Obviously, identity and intent to kill were material. So was the credibility of the witnesses testifying thereon. The items in question had at least some tendency to prove those issues. Defendant argues that in his opening statement (which preceded both the receipt of any evidence and also the ruling in question) counsel conceded identity and thereby removed the issue from dispute. The concession, however, was ineffective. Neither did the trial court abuse its discretion when it found the evidence not unduly prejudicial. As stated, the photographs were relevant.

Moreover, they threatened no unfair detriment to defendant. The court could reasonably have concluded that their prejudicial effect did not substantially outweigh their probative value. D. Prosecutorial Misconduct In his summation, the prosecutor explained to the jury why he called many witnesses and introduced many exhibits even though defense counsel conceded the issue of identity in his opening statement. One reason, he said, was that the People bore the burden of proof and defense counsel’s admission was not evidence and hence could not be used to meet that burden.

A second reason, he continued, was to disprove intoxication and its possible effect on the formation of intent to kill, if any such issue was raised. “A third reason,” he went on, was that “all that evidence . . . really puts Mr. Ashmus’ defense in context. The strength of all the identification evidence explains why he changed his defense.” At this point, defense counsel objected that the prosecutor was “getting into an area here which is totally improper for closing argument.” The prosecutor responded: “Well, he changed his story.

I’ll use the word ‘story’ if that’s more palatable.” Counsel replied: “My objection is in my opinion it is not more palatable and I am not acceding to the fact that the statement that it is—” The trial court interrupted: “I understand your objection. Objection overruled.” “My point,” said the prosecutor as he returned to his argument, “is that the reason that Mr.

Ashmus had changed his story, the initial, the story of complete and total denial of one of basically conforming his testimony to most of the evidence but denying the mental state, the last refuge of the hopelessly guilty, is because the evidence of his identification that he is in fact the person responsible for this crime was overwhelming.” (Italics added.) Defendant now contends that the prosecutor committed misconduct by uttering the italicized phrase.

He argues that the words amounted to an incorrect statement that the presumption of innocence—to which he was entitled 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, as well as under Penal Code

section 1096—was inapplicable in his case. We reject defendant’s claim 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”—and on the same ground—“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. We recognize that counsel objected to the prosecutor’s comments concerning the alleged change in the defense.

But that objection cannot reasonably be construed to extend to the later remark complained of here. “It is true that the rule does not apply when the harm could not have been cured.” (Ibid.) Such a situation, however, was not present here: any harm threatened was certainly curable.

We also reject the point on the merits. “What is crucial to a claim of .prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant. [Citation.] When, as here, the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by [such] a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable.” (People v.

Benson, supra, 52 Cal.3d at p. 793.) A reasonable juror would have construed the complained-of phrase to mean that a “mental” defense can be asserted by all criminal defendants, even those for whom no defense is actually available. There is no cognizable harm in a remark like this. Such a juror would also have taken the words as a comment that defendant himself was guilty. “Comment of that sort is permitted if it is reasonably fair in light of the evidence.” (People v. Benson, supra, 52 Cal.3d at p. 795.) The remark here was such.

A reasonable juror, however, could not possibly have construed the phrase—by itself or in context—to refer to the presumption of innocence, either expressly or impliedly, directly or indirectly. If such a juror had somehow adverted to the issue, he would have taken the words to mean that the presumption had been rebutted by the evidence presented by the People—surely a fair comment—and not that it was inapplicable in the first instance. E.

Instruction on Consciousness of Guilt The trial court instructed the jury that “If you find that before this trial the defendant made willfully false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but i[t] i[s] not suffic[i]ent of itself to prove guilt. The weight to be given to such a circumstance and its significance, if any, are matters for your determination.” Defendant contends that the trial court erred by instructing as it did.

He argues that the language quoted above defines a permissive inference, and that the permissive inference so defined is violative of the due process clause of the Fourteenth Amendment. In part, we agree with defendant. Plainly, the instruction under challenge defines a permissive inference—to the effect that if the defendant lied about the crime, it may be inferred that he himself believed he was responsible therefor.

Otherwise, however, we disagree. “A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.” (Francis v. Franklin (1985) 471 U.S. 307, 314-315 [85 L.Ed.2d 344, 353-354, 105 S.Ct. 1965], citing Ulster County Court v. Allen (1979) 442 U.S. 140, 157-163 [60 L.Ed.2d 777, 792-796, 99 S.Ct. 2213].) That condition is not met here.

The conclusion suggested by the instruction—the defendant himself believed he was responsible for the crime—is altogether justified on proof of the predicate fact—the defendant lied about the crime. Defendant claims that the challenged instruction did indeed define a permissive inference violative of the federal due process guaranty. His premise is, substantially, that the quoted language implied that if he lied about the attack on Marcie D., it might be inferred that he acted with intent to kill. In deciding whether the point is sound, we must ascertain the meaning of the instruction.

To do so, we must determine how a hypothetical “reasonable juror” would have, or at least could have, understood its words. (See Cage v. Louisiana (1990) 498 U.S. _ [112 L.Ed.2d 339, 341, 111 S.Ct. 328, 329] (per curiam) [“could have”]; Francis v. Franklin, supra, 471 U.S. at pp. 315-316 [85 L.Ed.2d at pp. 354-355] [same]; People v. Warren, supra, 45 Cal.3d at p. 487 [“would [have]”]; cf. Boyde v.

California (1990) 494 U.S. 370, 378, 380 [108 L.Ed.2d 316, 328, 329, 110 S.Ct. 1190, 1197, 1198] [holding that “[t]he legal standard for reviewing jury instructions claimed to restrict impermissibly a jury’s consideration of relevant evidence” under the Eighth Amendment “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of” such evidence].) Such a juror could not have understood the quoted language in conformity with defendant’s premise.

That defendant had effectively chosen to contest only intent to kill is of no consequence here. A reasonable juror simply could not have taken the words of the instruction to mean that lies by defendant supported an inference of intent to kill on his part. (Compare People v. Griffin (1988) 46 Cal.3d 1011, 1026-1027 [251 Cal.Rptr. 643, 761 P.2d 103] [rejecting a similar challenge against a similar instruction].) IV. Death-eligibility Issues Defendant challenges the determination that he was subject to the death penalty.

As relevant here, death eligibility is established when the defendant is convicted of murder in the first degree under at least one special circumstance. (Pen. Code, § 190.3.) Defendant was so convicted. As shown above, he has not successfully attacked the jury’s guilty verdict. And as shown below, he does not successfully attack its special circumstance findings. A.

Denial of Motion to Compel Discovery of the People’s Capital Prosecution Policies and Practices Prior to the change of venue from Sacramento to San Mateo County, defendant moved the court for an order compelling the People to provide discovery of the following information and material. “(

a) The name and case number of all murder complaints and informations filed in the Sacramento Municipal Court and the Sacramento Superior Court, respectively, in the last seven years. “(

b) A detailed description of how the prosecution generally decided to plead the aforementioned category of cases (i.e„ how it chose to allege either second degree murder, first degree murder without special circumstances, or first degree murder with special circumstances). “(

c) A detailed description of how the prosecution generally decided what to allow the defendants to plead guilty to in the aforementioned category of cases. “(

d) Copies of all written matter of any sort that discuss or describe how murder cases should be plead [sic] or how murder cases should be resolved by plea. “(

e) The nature of the murder charges in the complaints and informations noted in paragraph 1 [sic] above (e.g., second degree murder, first degree murder without special circumstances, or first degree murder with special circumstances), and the plea bargain last offered by the prosecution to the defendant in each of these cases.” Defendant made his motion under the United States and California Constitutions—specifically, the cruel and unusual punishments clauses of the Eighth Amendment and

article I,

section 17; the due process clauses of the Fourteenth Amendment and

article I, sections 7 and 15; and the equal protection clause of the Fourteenth Amendment and

article I,

section 7. Defendant based his motion on a claim to the following effect: the policies (if any) and practices of the Sacramento County District Attorney with regard to the filing of special circumstance allegations and/or the seeking of the death penalty were, or at least might be, arbitrary and capricious.

Subsequently, he purported to expand the ground of the motion to include a claim that these policies and practices revealed, or at least suggested, invidious discrimination—for example, against defendants, like himself, charged with the murder of a Caucasian victim. (As noted, defendant himself is Caucasian.) Defendant sought the information and material described above in order “to sensibly present a motion to dismiss the special circumstances alleged herein, or to prohibit the prosecution from seeking death.” In aid of the showing he set out to make in support of his motion, defendant requested that the court order an evidentiary hearing, at which he intended to call, among other witnesses, the Sacramento County District Attorney and present and former members of his office.

The People opposed defendant’s motion for discovery and his request for an evidentiary hearing. After argument, the court denied both the motion and the request. Defendant now contends that by so doing, the court erred. A ruling on a motion to compel discovery—like that here—is subject to review for abuse of discretion. (See, e.g., Hill v. Superior Court (1974) 10 Cal.3d 812, 816-823 [112 Cal.Rptr. 257, 518 P.2d 1353, 95 A.L.R.3d 820].) We find no abuse of discretion in this case.

Of course, the party moving to compel discovery must provide, inter alia, a “plausible justificalion” for the information and/or material he seeks. (Ballard v. Superior Court (1966) 64 Cal.2d 159, 167 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416]; accord, Griffin v. Municipal Court (1977) 20 Cal.3d 300, 306 [142 Cal.Rptr. 286, 571 P.2d 997].) The court could reasonably have concluded that defendant failed in this regard. Further, it could reasonably have concluded that he could not have supplied what was lacking after an evidentiary hearing.

To be sure, the facts that he proffered showed that the Sacramento County District Attorney treated different defendants differently. But those facts were simply insufficient to support a claim that the district attorney’s policies and practices might be arbitrary and capricious or invidiously discriminatory. Defendant argues to the contrary, but he is unpersuasive. For example, he attacks the basis of the court’s ruling. In denying his motion, the court stated that it was doing so “solely” under Kennan v. Superior Court (1981) 126 Cal.App.3d 576 [177 Cal.Rptr. 841].

Defendant says that Kennan is factually inapposite. He is wrong. The record here, as summarized above, and the record there, as described on pages 579 to 581 of 126 Cal.App.3d, are similar. Defendant then says that Kennan is legally unsound. Here too he is wrong. Contrary to his assertion, that opinion does not hold that prosecutorial policies and practices relating to the death penalty are immune from federal or state constitutional scrutiny.

Given a reasonable reading, it simply stands for the unobjectionable proposition that the exercise of discretion in this area does not amount per se to a constitutional violation. (Compare People v. Kennan (1988) 46 Cal.3d 478, 504-507 [250 Cal.Rptr. 550, 758 P.2d 1081] [stating at p. 505 that “[a]s the opinion” in Kennan v.

Superior Court “noted, prosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of equal protection, due process, or cruel and/or unusual punishment” under either the federal or state charter].) B. Instruction on Intent to Kill as to the Felony-murder Special Circumstances In Carlos v.

Superior Court (1983) 35 Cal.3d 131, 138-154 [197 Cal.Rptr. 79, 672 P.2d 862], we held that intent to kill was an element of the felony-murder special circumstance, and that the trial court was obligated to so instruct. In People v. Anderson, supra, 43 Cal.3d at pages 1138-1147, we overruled Carlos and held that intent to kill was required for an aider and abettor but not for the actual killer, and that the court was under a duty to instruct accordingly. When the felony-murder special circumstance is alleged to have occurred after Carlos and before Anderson, the former governs. (E.g., People v.

Duncan (1991) 53 Cal.3d 955, 973, fn. 4 [281 Cal.Rptr. 273, 810 P.2d 131], citing In re Baert (1988) 205 Cal.App.3d 514 [252 Cal.Rptr. 418] (per Arabian, J.).) This is such a case. Defendant contends that the trial court erred by instructing the jury as it did on intent to kill. He argues that its instructions on the issue were ambiguous and, as such, were inadequate. In considering defendant’s claim, we must address the following crucial question: Did the instructions adequately inform the jury of the requirement of intent to kill?

To resolve this issue, as stated above, we must determine how a hypothetical “reasonable juror” would have, or at least could have, understood the charge. In our view, the instructions more than adequately informed the jury of the requirement of intent to kill. A reasonable juror would have understood the charge as containing that requirement, and could not have construed it otherwise.

The trial court declared in words whose meaning could hardly have been plainer: “To find that the special circumstances referred to in these instructions are true, it must be proved” “That the defendant intended to kill a human being”; and, “in each of the three special circumstances . . . , a necessary element is the existence in the mind of the defendant of the specific intent to unlawfully kill a human being . . . .” Defendant argues to the contrary. But nothing to which he points in the record—including the charge as a whole and the arguments of counsel—is sufficient to undermine our conclusion.

Certainly, nothing obscures the plain meaning of the words quoted above. V. Penalty Issues Defendant raises a number of claims for reversal of the judgment as to penalty. As will appear, none succeeds. A. Admission of Evidence of Defendant’s Conviction of the Felony of Assault With Intent to Commit Rape and the Underlying Facts Immediately before the commencement of the penalty phase, defendant moved in limine to bar the introduction of evidence that he had been convicted of the felony of assault with intent to commit rape against Lisa Cronin.

The judgment in that case was entered after the commission of the capital and other offenses against Marcie D. (The attack on Cronin preceded the attack on Marcie by only hours.) At the time relevant here, the judgment in the Cronin case was on appeal. It was subsequently affirmed, and is now final. The existence vel non of prior felony convictions is an issue material to punishment under the 1978 death penalty law, specifically Penal Code

section 190.3 (hereafter sometimes

section 190.3). In support of his motion, defendant argued that a not-yet-final felony conviction is not a prior felony conviction within the meaning of

section 190.3. The trial court denied the motion. In their case in aggravation, the People called Cronin to present evidence relevant to another of the issues material to punishment under

section 190.3—the existence vel non of other violent criminal activity. Cronin testified to the facts briefly and without apparent emotion. Defendant objected to Cronin’s testimony as it was being given and moved to strike it when it was completed. His ground was in substance that the issue of other violent criminal activity did not embrace such activity that resulted in a felony conviction. The trial court overruled the objection and denied the motion.

At the close of their case in aggravation, the People moved into evidence an abstract of judgment showing defendant’s conviction of the felony of assault with intent to commit rape. In response, defendant stated, “No objection.” The trial court granted the motion and admitted the evidence. The law relevant here is as follows. The issue of other violent criminal activity covers all such activity—whether or not it results in a conviction. (People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal.Rptr. 184, 711 P.2d 480].) The conduct, however, must violate a penal statute. (People v.

Boyd (1985) 38 Cal.3d 762, 772 [215 Cal.Rptr. 1, 700 P.2d 782].) “The presence of such activity suggests that the capital offense is the product more of the defendant’s basic character than of the accidents of his situation, whereas its absence suggests the opposite.” (People v. Gallego (1990) 52 Cal.3d 115, 208-209, fn. 1 [276 Cal.Rptr. 679, 802 P.2d 169] (conc. opn. of Mosk, J.).) The issue of prior felony convictions includes all such convictions— whether or not the offense was violent. (People v.

Balderas, supra, 41 Cal.3d at p. 201.) The conviction, however, must be “entered before the capital crime was committed.” (Id. at p. 203.) Like the presence or absence of other violent criminal activity, “the existence or nonexistence of previous convictions reflects on the relative contributions of character and situation. Further, the existence of such convictions reveals that the defendant had been taught, through the application of formal sanction, that criminal conduct was unacceptable—but had failed or refused to learn his lesson.” (People v.

Gallego, supra, 52 Cal.3d at p. 209, fn. 1 (conc. opn. of Mosk, J.).) The issues of other violent criminal activity and prior felony convictions, of course, are not mutually exclusive. As stated above, other violent criminal activity covers activity even if it results in a conviction. And prior felony convictions include convictions even if the underlying criminal activity was violent. (See People v. Benson, supra, 52 Cal.3d at pp. 787-788; People v. Karis (1988) 46 Cal.3d 612, 640 [250 Cal.Rptr. 659, 758 P.2d 1189]; People v.

Melton, supra, 44 Cal.3d at p. 764.) Defendant now contends that the trial court erred by admitting the evidence of his conviction of the felony of assault with intent to commit rape. He argues that the evidence in question was inadmissible on the ground that a felony conviction entered after the capital offense—like that here—is not a prior felony conviction within the meaning of

section 190.3. We reject the claim at the threshold. The rule of timely and specific objection was not satisfied: at trial, defendant did not object on the ground that underlies his point here. Moreover, no exception to the rule is applicable—nor does defendant maintain otherwise. We shall nevertheless address the merits. The determination crucial to the trial court’s ruling is purely legal, dealing as it does with the coverage of

section 190.3. As such, it is subject to the standard of independent review. (People v. Louis (1986) 42 Cal.3d 969, 985 [232 Cal.Rptr. 110, 728 P.2d 180], following United States v. McConney (9th Cir. 1984) 728 F.2d 1195, 1202 (in bank).) Applying that test, we find error. As stated, prior felony convictions within the meaning of

section 190.3 are such convictions “entered before the capital crime was committed.” (People v. Balderas, supra, 41 Cal.3d at p. 203.) The conviction here is not in this class. Having found error, we must then consider its consequences. In People v. Brown, supra, 46 Cal.3d 432, we declared the following general rule: “state-law error at the penalty phase of a capital trial” (id. at p. 448) is not automatically reversible, but is subject to harmless-error analysis under the “reasonable possibility” standard. (See id. at pp. 446-448.) The rule applies to the kind of error here. (See People v.

Morales (1989) 48 Cal.3d 527, 567 [257 Cal.Rptr. 64, 770 P.2d 244] [recognizing the applicability of harmless-error analysis to this sort of error without expressly employing the reasonable-possibility test].) In conducting harmless-error analysis, we must ascertain how a hypothetical “reasonable juror” would have, or at least could have, been affected. (Cf. Yates v. Evatt (1991) 500 U.S. _, _ [114 L.Ed.2d 432, 111 S.Ct. 1884, 1893] [concluding that “to say that an [erroneous] instruction” was harmless under Chapman v.

California, supra, 386 U.S. 18, “is to make a judgment about the significance of the [instruction] to reasonable jurors”].) The record here discloses the following. Evidence of defendant’s conviction of the felony of burglary was properly admitted as relevant to the issue of prior felony convictions. More important—as we shall presently show—evidence of the facts underlying defendant’s conviction of the felony of assault with intent to commit rape was properly admitted as relevant to the issue of other violent criminal activity.

A reasonable juror could not have given defendant’s conviction of the felony of assault with intent to commit rape any appreciable weight independent of its underlying facts. Accordingly, there is no reasonable possibility that the error here affected the outcome. (Compare People v. Morales, supra, 48 Cal.3d at p. 567 [finding a similar error harmless].) Defendant also contends that the trial court erred by admitting evidence of the facts underlying his conviction of the felony of assault with intent to commit rape.

He argues that the issue of other violent criminal activity covers only the existence of such criminal activity and not the circumstances thereof. He then argues that even if the issue of other violent criminal activity does embrace the circumstances, such circumstances cannot include the result of the conduct—here, the fact that his attack caused a bruise and sprain to one of Cronin’s arms. He then argues that the evidence that may be used to prove other violent criminal activity is limited and does not extend to testimony by a live witness. Again, we reject the claim at the threshold.

The rule of timely and specific objection was not met, and no exception appears. Again, we shall nevertheless address the merits. The determination crucial to the trial court’s ruling is purely legal, dealing as it does with the coverage of

section 190.3 and the permissible manner of proof. As such, it is reviewed independently. So reviewed, it reveals itself to be proper. The issue of other violent criminal activity embraces not only the existence of such activity but also all the pertinent circumstances thereof. (People v. Benson, supra, 52 Cal.3d at p. 788.) Such circumstances may include the result of the conduct—and certainly include the bruise and sprain Cronin suffered here.

Also, the evidence that may be used to prove other violent criminal activity is subject to no special limitation. (Ibid.) Surely, testimony by a live witness is not barred. B. Discharge of a Juror Defendant contends that the trial court erred by discharging a juror at the juror’s request in the midst of the penalty phase. Penal Code

section 1089 provides in relevant part that “If at any time, whether before or after the final submission of the case to the jury, ... a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate, who shall then take his place in the jury box . . . .” About 8:05 a.m. one day during the penalty phase, one of the jurors, Fred C. Godfrey, telephoned the trial

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