THE PEOPLE, Plaintiff and Respondent, v. LAVERNE JOHNSON, Defendant and Appellant, 6 Cal. 4th 1

Opinion LUCAS, C. J. I. Introduction By information filed in San Mateo County Superior Court, defendant Láveme Johnson was charged with two counts of murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), and one count of arson of an inhabited dwelling (§451, subd. (b)). The information alleged the murders constituted a special circumstance of multiple murder (§ 190.2, subd. (a)(3)). The jury found defendant guilty on all three counts, finding true the special circumstance allegation.

The jury subsequently returned a death verdict, and the trial court sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We note that on April 15, 1993, defendant filed a habeas corpus petition with this court. We denied the petition on September 15, without issuing an order to show cause. As will appear, we reject defendant’s claims of prejudicial error and affirm the judgment in its entirety. II. Facts On January 15, 1986, police officers and firefighters were summoned to a house fire in Daly City.

Inside the house, the officers found the bodies of Maria Victoria Holmes, aged 52, and her daughter, Luisa Anna Castro, 32. The evidence indicated that two fires (one upstairs, and one downstairs) had been intentionally set, probably through the use of some flammable liquid. Victim Holmes evidently had been severely beaten and kicked. Her body showed extensive contusions and abrasions; her face was swollen and bloody. An autopsy indicated she died from 12 or more blows to her head and face. Victim Castro’s body was burned beyond recognition; a large knife was found nearby.

An autopsy determined, however, that she had died from strangulation; a wire was found wrapped tightly around her neck. Further investigation revealed the following facts: Victim Holmes was a hotel manager who wore expensive jewelry and possessed an extensive collection of gold jewelry from Central America. She shared her home with her daughter, victim Castro, a nightclub security guard, who was currently dating defendant, a customer of the club. Castro also had a collection of gold jewelry and frequently boasted of it.

On the night of the murders, Castro had prepared dinner for defendant at her home after they had driven her children to a babysitter. Later that evening, someone murdered the two women, stole their jewelry, and set fire to their home in an apparent attempt to cover up the crimes. Defendant was arrested after a girlfriend, Roshaun Fuller, told police that he had admitted assaulting the women and taking their jewelry. According to Fuller, defendant stated he “knocked out” Castro and, when victim Holmes came upstairs to investigate, he knocked her down and kicked her in the head.

Defendant had been seen wearing, and later pawning, some gold jewelry, although it could not positively be traced to the victims. Defendant also admitted to the investigating officers some facts regarding his relationship with Castro, including sharing dinner with her at her home on or about the night of the murders. According to defendant, he left the house after Castro had become intoxicated and fallen asleep.

Although defendant denied killing the women, at one point he told the interrogating officer that, “I probably did do it, but you are not going to get me to say I did do it.” The defense offered an alibi (defendant was seen engaging in a bar fight on the day in question) and evidence to cast doubts on Fuller’s testimony, which was frequently contradictory and inconsistent. According to a defense investigator, Fuller admitted lying to police regarding defendant’s admission that he assaulted both women.

At the penalty phase, the People admitted evidence of defendant’s prior crimes, including four prior felony convictions for robbery, burglary, disorderly conduct (transmitting a false alarm), and theft, and numerous unadjudicated offenses including rapes, oral copulation, robberies, batteries and assaults. The defense relied primarily on background and character evidence, including testimony regarding defendant’s troubled childhood, his lack of parental guidance, and the likelihood he would succeed in a supervised prison setting.

Defendant personally testified regarding some of the foregoing matters, and attempted to mitigate some of the “prior crimes” evidence by explaining the extenuating circumstances surrounding them. A defense psychologist, Dr. Fricke, testified regarding defendant’s sociopathic personality. On rebuttal, a prosecution psychiatrist stressed defendant’s antisocial and manipulative personality, and his potential dangerousness. III. Guilt Phase Contentions A. Discharge of Juror Solano Defendant first contends the court erred in discharging Juror William Solano after trial had commenced.

In a related contention, defendant asserts he was wrongfully excluded from the in camera hearing held to determine whether Solano should be excused. We conclude neither contention has merit. Near the close of the prosecution’s case-in-chief, the court called for an in-chambers conference and revealed the following facts and observations: Juror Solano did not appear to be paying attention to the witnesses; instead, he was either watching the judge or defendant, or was “doodling” in his notebook.

Solano “consistently smiled” at defendant, “to the extent that the teeth are showing.” On many occasions, defendant smiled or nodded back at Solano. In addition, the court noted that Solano had been late in arriving at the courtroom at least three times, and that he tended to close his eyes and possibly “nod off” during court proceedings.

The court further indicated that police records revealed Solano had been arrested for possessing narcotics, contrary to his jury questionnaire response that his only arrest was “for being out late while under age.” The court questioned the two courtroom deputies, who confirmed that Solano appeared to be paying no attention to the proceedings. Deputy Kutch read from his logbook, which indicated Solano had “nodded off” three times, had doodled for fifteen minutes on one occasion, and had nodded or smiled at defendant seven times during the trial.

Deputy Steiner confirmed that Solano had closed his eyes for a short time on several occasions, and had frequently smiled at or greeted defendant before lunch breaks. The prosecutor asked that Solano be examined regarding his fitness to remain on the jury. The prosecutor observed that on one occasion he noticed that Solano’s eyes were closed and his chin was resting on his chest. As Solano began to fall forward, he opened his eyes in a startled manner. Defense counsel objected to the hearing, noting that several other jurors had also either closed their eyes during testimony or smiled at defendant.

Counsel also requested that defendant be present at any further hearing on Solano’s status as a juror. The court denied this request on the basis that the hearing was not part of the trial, did not involve defendant’s guilt, and bore no reasonable relation to defendant’s opportunity to defend himself. Additionally, according to the court, defendant’s presence might intimidate Solano and make it more difficult to extract accurate responses from him. Defense counsel indicated that, in order to avoid alienating Solano, he too would not attend the hearing. The prosecutor likewise elected not to attend.

The court thereupon questioned Solano in his chambers on a variety of subjects. When asked about his response to the questionnaire inquiry regarding prior arrests, Solano acknowledged he had been arrested when cocaine had been discovered nearby, and had also been arrested for public intoxication. When asked why he had failed to reveal that information, he replied that “I was just trying to get through with this questionnaire as soon as possible.

It just didn’t seem that important to me.” Solano also acknowledged he had closed his eyes occasionally during trial, and had nodded or smiled at defendant from time to time. According to Solano, these gestures and smiles were “just a reaction [to] someone smiling at me . . . .1 smile back.” The court ruled that Solano should be excused because of his concealment of his prior arrests, and because of his sleeping during the course of the trial. The court replaced Solano with one of the alternate jurors, Samuel Ybarra. 1.

Defendant’s absence from hearing Before examining the propriety of discharging Solano, we must determine whether the court erred in refusing to allow defendant personally to attend the in-chambers hearing regarding possible discharge of the juror. The defendant has a constitutional (Cal. Const., art. I, § 15) and statutory (§§ 977, subd. (b), 1043, subd. (a)) right to be personally present at his trial. (See also United States v.

Gagnon (1985) 470 U.S. 522, 526 [84 L.Ed.2d 486, 490, 105 S.Ct. 1482], and cases cited [defendant has federal due process right to attend court proceedings if his presence has a reasonably substantial relation to his ability to defend himself].) Under

section 977, subdivision (b), the defendant “shall” be present at certain proceedings (arraignment, plea, preliminary examination, sentencing, and “those portions of the trial when evidence is taken before the trier of fact”), and “shall” also attend “all other proceedings,” unless he or she files a written waiver of the right to be present at such proceedings. Although the broad language of the foregoing

section appears to grant the defendant an unqualified right to attend all in-chambers conferences, we have held that the defendant’s absence from various court proceedings, “even without waiver, may be declared nonprejudicial in situations where his presence does not bear a ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” (People v. Garrison (1989) 47 Cal.3d 746, 782 [254 Cal.Rptr. 257, 765 P.2d 419], quoting from People v. Bloyd (1987) 43 Cal.3d 333, 359-360 [233 Cal.Rptr. 368, 729 P.2d 802], italics added; see also People v.

Hardy (1992) 2 Cal.4th 86, 177-178 [5 Cal.Rptr.2d 796, 825 P.2d 781] [absence from portion of voir dire and some in-chambers discussions]; People v. Wharton (1991) 53 Cal.3d 522, 602-603 [280 Cal.Rptr. 631, 809 P.2d 290] [absence from various in-chambers proceedings]; People v. Medina (1990) 51 Cal.3d 870, 902-903 [274 Cal.Rptr. 849, 799 P.2d 1282] [absence from in-chambers conferences and in-court reading of testimony]; People v. Douglas (1990) 50 Cal.3d 468, 517-518 [268 Cal.Rptr. 126, 788 P.2d 640] [absence from reading of testimony]; People v.

Lang (1989) 49 Cal.3d 991, 1025-1028 [264 Cal.Rptr. 386, 782 P.2d 627] [absence from jury view of murder scene, from conference regarding jury request for clarification, and from reading of testimony]; People v. Bittaker (1989) 48 Cal.3d 1046, 1079-1080 [259 Cal.Rptr. 630, 774 P.2d 659] [absence from various hearings and conferences]; People v. Robertson (1989) 48 Cal.3d 18, 59-62 [255 Cal.Rptr. 631, 767 P.2d 1109] [absence from penalty-reduction hearing and sentencing]; People v.

Hovey (1988) 44 Cal.3d 543, 585-586 [244 Cal.Rptr. 121, 749 P.2d 776] [absence from reading of testimony].) We initially reject defendant’s assertion that the Solano hearing was one involving the presentation of evidence to “the trier of fact" within the meaning of

section 977, subdivision (b), thereby compelling his presence under the terms of that section. It seems clear the foregoing “evidence presentation” provision has no application to in-chambers hearings on collateral matters held outside the jury’s presence. Accordingly, under the foregoing cases, in determining whether defendant was prejudiced by being excluded from the Solano hearing, we must inquire whether defendant’s presence bore a “reasonably substantial relation to the fullness of his opportunity to defend against the charges” against him.

Defendant fails to explain in what manner his presence at the in-chambers hearing could have enhanced his opportunity to defend against the charges. He suggests that had he been allowed to attend the hearing at issue, he might have helped his counsel in questioning Juror Solano.

The point seems unduly speculative, especially in light of defense counsel’s own decision, previously discussed, to absent himself from the hearing rather than risk alienating the juror. (See Medina, supra, 51 Cal.3d at p. 903; Hovey, supra, 44 Cal.3d at p. 585.) In situations similar to the present case, although occurring prior to the enactment of

section 977, subdivision (b), we have indicated that the defendant would have no right to attend such hearings. (In re Lessard (1965) 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39] [absence from private conference with juror asking to be excused]; People v. Abbott (1956) 47 Cal.2d 362, 372 [303 P.2d 730] [absence from hearing regarding juror’s qualifications]; see also United States v.

Gagnon, supra, 470 U.S. at p. 527 [84 L.Ed.2d at pp. 490-491] [absence from hearing to determine juror’s impartiality].) Defendant relies on various federal and sister-state cases which indicate a criminal defendant has a right to attend in-chambers conferences regarding a juror’s impartiality, qualifications or possible misconduct. (E.g., Walker v. Lockhart (8th Cir. 1988) 852 F.2d 379, 381-382; United States v. Gay (9th Cir. 1975) 522 F.2d 429, 435; People v.

Medcoff( 1955) 344 Mich. 108 [73 N.W.2d 537, 543].) Respondent cites other cases which find no prejudicial error in excluding the defendant from such conferences. (E.g., U.S. v. Patterson (9th Cir. 1987) 819 F.2d 1495,1507, and cases cited; United States v. Lustig (9th Cir. 1977) 555 F.2d 737, 745-746 [46 A.L.R.Fed. 714], cert, den. (1978) 434 U.S. 1045 [54 L.Ed.2d 795, 98 S.Ct. 889].). As respondent observes, many of defendant’s cited cases preceded the decision of the United States Supreme Court in United States v.

Gagnon, supra, 470 U.S. at pages 526-527 [84 L.Ed.2d at pages 490-491], wherein the high court made it clear that due process principles do not entitle the defendant to appear at every encounter between judge and jurors. As Gagnon explains, the central inquiry in such situations is whether the defendant’s presence at the hearing reasonably could have assisted his defense of the charges against him. (Ibid.) As we have discussed, defendant fails to convince us that his presence could have assisted his defense in any way.

Thus, we conclude that, although defendant may have had a statutory right to attend the Solano hearing, his exclusion therefrom did not amount to prejudicial error because it is unlikely his presence would have enhanced his opportunity to defend against the charges. Moreover, several cases have observed that if, as a result of the hearing in question, the affected juror is discharged and an alternate juror is picked to replace him, prejudice to the defendant will not be presumed. (See United States v. Lustig, supra, 555 F.2d 737, 746; People v.

Dell (1991) 232 Cal.App.3d 248, 256-257 [283 Cal.Rptr. 3610] [court excused sick jurors without hearing]; Peckham v. State (Alaska Ct.App. 1986) 723 P.2d 638, 640 [defendant excluded from inquiry into juror misconduct].) As stated in People v. Dell, supra, “appellant does not claim she was actually prejudiced from the substitution of jurors nor does it appear she could reasonably make such an argument. Alternates are selected from the same source, in the same manner, with the same qualifications and are subject to the same challenges.

Alternates have an equal opportunity to observe the entire proceedings and take the same oath as regular jurors. [Citation.] In this case, appellant had ample opportunity to voir dire the alternates and use her allotted peremptory challenges. [Citation.] Nor is there any allegation the alternates were either incompetent or biased." (232 Cal.App.3d at pp. 256-257.) The foregoing authorities seem apposite here. Accordingly, we conclude that no prejudicial error occurred by reason of defendant’s exclusion from the Solano hearing. 2.

Defense counsel’s absence from hearing Defendant next contends that his counsel’s absence from the Solano hearing deprived him of the right to counsel at a critical stage of the proceedings. The contention lacks merit. As previously discussed, defense counsel made a tactical decision not to attend the hearing. Counsel indicated he wished to avoid alienating Solano should he remain a juror in the case.

Although defendant argues that such a decision required his personal consent, our decisions indicate that trial counsel has discretion to make “an informed decision as to the necessity of attending” in-chambers proceedings. (People v. Medina, supra, 51 Cal. 3d at p. 904 [counsel absent from reading of testimony to jury]; see also People v.

Jackson (1980) 28 Cal.3d 264, 314 315 [168 Cal.Rptr. 603, 618 P.2d 149] [counsel authorized to make tactical decisions and control court proceedings without first obtaining personal waiver from defendant].) Defendant’s suggestion that counsel’s decision to forgo the hearing reflected his incompetence cannot be sustained in light of the reasonable tactical consideration which, according to counsel, induced that decision.

Accordingly, we need not reach the question whether a defendant has a constitutional right to his" counsel’s presence at conferences called for the purpose of determining whether particular jurors should be discharged and alternates selected. We note, however, that one recent case has held that “there is no constitutional violation when alternate jurors are substituted in the absence of counsel.” (People v. Dell, supra, 232 Cal.App.3d at p. 257; see also In re Mendes (1979) 23 Cal.3d 847, 852 [153 Cal.Rptr. 831, 592 P.2d 318].) 3.

Solano was properly discharged Defendant next contends the court erred in discharging Juror Solano. As previously noted, the court discharged Solano for two reasons, namely, (1) his sleeping during the trial, and (2) his untruthful or incomplete responses to the jury questionnaire. Defendant contends there was no evidence that Solano was actually sleeping. He cites cases indicating that jury verdicts will not be overturned in the absence of “convincing proof" that a juror actually slept during trial. (E.g., Hasson v.

Ford Motor Co. (1982) 32 Cal.3d 388, 411 [185 Cal.Rptr. 654, 650 P.2d 1171].) Defendant observes that the court failed to inquire of Solano whether in fact he had fallen asleep, or had missed any testimony. (See People v. Roselle (1912) 20 Cal.App. 420, 424 [129 P. 477].) The present case does not involve a claim of juror misconduct sufficient to overturn a verdict. Instead, we must determine whether the trial court abused its discretion in discharging one juror and substituting an alternate. Under

section 1089, the court, upon “good cause shown,” may discharge any juror “found to be unable to perform his duty” at any time during the trial. (See also Code Civ. Proc., § 233.) The determination of “good cause” rests in the sound discretion of the court (People v. Abbott, supra, 47 Cal.2d at p. 371; People v. Dell, supra, 232 Cal.App.3d at p. 256), and the court’s finding thereof will be upheld if substantial evidence supports it (People v. Burgener (1986) 41 Cal.3d 505, 520 [224 Cal.Rptr. 112, 714 P.2d 1251]).

We have also stated, however, that a juror’s inability to perform as a juror must “appear in the record as a demonstrable reality.” (People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537], fn. omitted.) Here, there was ample evidence indicating that on one or more occasions Solano had actually fallen asleep during trial. The court, its two deputies, and the prosecutor each stated on the record that they had observed defendant exhibiting various physical indicia of sleep, including eye closures, head nodding, and slumping in his chair.

As for Solano’s incomplete questionnaire responses, the court found he had failed to disclose two prior arrests. Concealment of prior criminal charges constitutes good cause for discharge of a juror under

section 1089. (See People v. Price (1991) 1 Cal.4th 324, 399-401 [3 Cal.Rptr.2d 106, 821 P.2d 610] [concealment of prior conviction and dismissed assault charge]; People v. Farris (1977) 66 Cal.App.3d 376, 386-387 [136 Cal.Rptr. 45] [concealment of misdemeanor prosecution and arrest record].) Defendant argues Solano’s prior arrests were in legal effect mere detentions, because no accusatory pleadings were ever filed. (See § 849.5.) Assuming Solano was entitled to rely on this provision in completing his questionnaire (see McMahon v.

Municipal Court (1970) 6 Cal.App.3d 194, 200 [85 Cal.Rptr. 782]), he could not simply ignore these incidents for he was also asked if he had ever been “accused” of a crime. His “no” response was incomplete and misleading. In any event, as we have discussed, the court’s ruling excusing Solano can be sustained solely on the basis of its finding that Solano had fallen asleep during trial.

In a related contention, defendant suggests he was denied due process by the discharge of Juror Solano without a showing of “legal necessity.” He suggests he had a constitutional right to be tried by the first jury impaneled to try his case. None of the cases cited by defendant in support of this argument indicates that due process principles would forbid substitution of an alternate juror under the circumstances presented here. (See, e.g., U.S. v.

Bates (9th Cir. 1990) 917 F.2d 388, 392.) Defendant also argues he was denied due process by the trial court’s “ex parte” manner of investigating Juror Solano’s suitability as a juror. In defendant’s view, the court “abandoned its role as a neutral arbiter” by secretly observing Solano, recording his conduct, and examining his questionnaire responses and arrest record, before announcing to the parties the court’s doubts as to his suitability.

Defendant cites no cases suggesting the trial court, in the course of investigating whether good cause exists to replace a juror suspected of misconduct or inattentiveness, must reveal its concerns to the defendant or his counsel before conducting further investigation. It is doubtful that such a limitation on the court’s discretion under

section 1089 is necessary to protect any of the defendant’s legitimate interests. (See People v. Keenan (1988) 46 Cal.3d 478, 533 [250 Cal.Rptr. 550, 758 P.2d 1081] [recognizing court’s power to conduct “discreet and properly limited investigation” of possible jury misconduct], 539 [recognizing court’s “broad discretion as to the mode of investigation”].) We conclude the court properly discharged Juror Solano. B. Substitution of Juror Ybarra Alternate Juror Samuel Ybarra was chosen to replace Juror Solano.

Although defendant had not previously objected to the selection of Ybarra as an alternate, nonetheless, once he was substituted as a juror to replace Solano, defense counsel moved for a mistrial. Counsel represented that Ybarra was unacceptable to defendant and would have been challenged earlier had defendant been allowed to exercise another peremptory challenge. (The court had allowed both sides only one challenge “per seat” for the four alternate jurors, and defendant had previously used his challenge for the seat ultimately given to Ybarra.) The motion was denied.

Defendant now argues he should have been given “a number of peremptory challenges equal to the number of alternates selected and unencumbered by any restriction to any particular seat.” The objection to the court’s allocation of peremptory challenges comes too late. Objections to the jury selection process must be made when the selection occurs. (See People v. Caro (1988) 46 Cal.3d 1035, 1047 [251 Cal.Rptr. 757, 761 P.2d 680].) C. Admissibility of Defendant’s Statements Defendant contends the court erred in admitting certain statements he made to police officers on March 28 and April 3, 1986.

We conclude the statements were properly admitted and, in any event, any Miranda error was harmless beyond a reasonable doubt. 1. March 28 interview On March 28, 1986, defendant was interviewed by Officers McCarthy and Keate concerning the murders of Castro and Holmes. Officer McCarthy told defendant the purpose of the interview, and defendant replied, “fine.” When McCarthy brought out a tape recorder, defendant objected, stating “No tape recording, I don’t want to incriminate myself.” The recorder was not used. Officer McCarthy thereupon read defendant his Miranda rights (see Miranda v.

Arizona (1966) 384 U.S. 436, 444-445 [16 L.Ed.2d 694, 706-707, 86 S.Ct. 1602, 10 A.L.R.3d 974]), and defendant confirmed that he understood those rights and wished to talk with the officers. Defendant was also informed he could terminate the interview at any time. The ensuing interview lasted around two and one-half hours.

During its course, McCarthy explained that defendant would be charged with the two murders, and defendant (1) bragged that his mother would hire a “high price lawyer out of New York” to defend him, (2) inquired of possible penalties for the murders, and (3) initiated the possibility of a plea bargain.

When informed that he might be charged with offenses carrying the death penalty, defendant stated, “Maybe I ought to talk to a lawyer, you might be bluffing, you might not have enough to charge murder.” Officer McCarthy thereupon asked defendant if he wanted to talk to a lawyer at that point, and defendant made no direct reply except to repeat that he thought McCarthy was “bluffing.” Defendant, stating “This is off the record,” next asked Officer McCarthy if a 10-year sentence was possible for the murder charges.

McCarthy replied that the matter of sentence was up to the district attorney, the court and defendant’s counsel. Defendant acknowledged he was worried about receiving a death sentence. (As explained below, the foregoing “off the record” discussion about sentencing was ruled inadmissible.) Defendant next asked Officer McCarthy to “Tell me what you have and I might make you a proposition.” McCarthy replied that he customarily did not disclose evidentiary details.

Defendant indicated that he would not “say” anything “without some kind of arrangement.” He also declared that “I probably did do it, but you are not going to get me to say I did do it.” Defendant then asked McCarthy to approach the district attorney and negotiate a 10-year sentence for the murder charges. 2. April 3 interview On April 2, Officer Quinn received a phone call from a person identifying himself as “Antonin.” (Defendant was also known as Antonin Capriano.) Antonin indicated he was confined at the San Mateo County jail and wished to speak to the officer.

Officers Quinn and McCarthy visited defendant and again read him his Miranda rights. Defendant again confirmed he understood" these rights and wished to talk with the officers. At one point in the interview, the officers asked defendant to tell what happened in regard to Castro and Holmes. Defendant insisted the discussion be “off the record,” stating that he was not going to incriminate himself by telling what happened.

He added that he would plead guilty to manslaughter “for two years.” After terminating the interview (“I don’t want to say anything else”), he called the officers back and told them to see if the district attorney would “go for twenty straight years for the case.” According to the Attorney General, and not disputed by defendant’s appellate counsel, none of defendant’s statements at the April 3 interview was introduced at trial.

Accordingly, it is apparent that defendant could not have been prejudiced by any asserted Miranda errors occurring during that interview, and we do not discuss defendant’s claims in that regard. 3. Trial court’s rulings Defendant moved the trial court to suppress his statements, asserting that the interviews continued after he had invoked his rights to remain silent and to consult with an attorney. The court disagreed, finding that defendant had voluntarily waived those rights, and did not reinvoke them.

The court also ruled, however, that in light of defendant’s “off the record” assertions during the course of both interviews, any statements immediately following these assertions would be inadmissible. The affected statements related to possible plea bargains or potential sentences for the murders. 4. Discussion As we stated in People v. Boyer (1989) 48 Cal.3d 247, 263 [256 Cal.Rptr. 96, 768 P.2d 610], reviewing a similar claimed Miranda violation, “The scope of our review of constitutional claims of this nature is well established.

We must accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. [Citation.]” a. “No tape recorder” remark Defendant contends he invoked his right to remain silent at the outset of the March 28 interview by remarking: “No tape recorder.

I don’t want to incriminate myself.” The trial court found that this remark was ambiguous and did not necessarily disclose an intent to “cut off’ all questions, as opposed to merely expressing an objection to the use of a tape recorder to memorialize defendant’s responses. In the trial court’s view, defendant’s remarks indicated only a “partial restriction” on his willingness to speak to the officers. Accordingly, they were entitled to continue the interrogation once they clarified the situation by giving Miranda advisements and obtaining defendant’s express consent to be interviewed. We agree.

As indicated previously, the advisements, and defendant’s agreement to talk, occurred immediately following his “no tape recorder” remark and clearly confirmed his general willingness to speak to the officers. Defendant asserts his remarks showed he was unwilling to “freely and completely” discuss his case with the police. (See People v. Burton (1971) 6 Cal.3d 375, 382 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Randall (1970) 1 Cal.3d 948, 956 [83 Cal.Rptr. 658, 464 P.2d 114].) We find the foregoing cases inapposite.

They recite the familiar rule that police interrogation must cease once the defendant, by words or conduct, demonstrates a desire to invoke his right to remain silent, or to consult with an attorney. Neither case, however, stands for the proposition that a defendant automatically invokes those rights by imposing conditions (such as “no tape recorder”) governing the conduct of the interview. Defendant contends that prior cases have held a suspect’s refusal to permit a tape-recorded interview constitutes an invocation of his right to remain silent. (See People v.

Hinds (1984) 154 Cal.App.3d 222, 235-236 [201 Cal.Rptr. 104]; People v. Nicholas (1980) 112 Cal.App.3d 249, 268 [169 Cal.Rptr. 497].) In both these cases, however, the suspect’s refusal to permit a recording was accompanied by other facts disclosing his clear intent to speak privately and in confidence with the officers. (See also People v. Braeseke (1979) 25 Cal.3d 691, 702-703 [159 Cal.Rptr. 684, 602 P.2d 384] [defendant’s request for “off the record” discussion invoked his self-incrimination privilege].) In the present case, by contrast, the trial court found no such clear intent on defendant’s part.

Although defendant asked that the proceedings go “off the record” at various points during the interviews, he expressed no general expectation of privacy covering the entire interview. (We discuss in a subsequent part of this opinion defendant’s separate contention that his requests for “off-the-record” treatment required the officers to terminate further questioning.) As another recent case observes, “it was for the trial court to determine whether [the defendant’s] refusal to . . .be recorded was in fact an invocation of his right to silence.

The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable, and we will not disturb it on this appeal. [Citations.]” (People v. Maier (1991) 226 Cal.App.3d 1670, 1678 [277 Cal.Rptr. 667].) Defendant observes that he linked the “no tape recorder” remark with the explanation that “I don’t want to incriminate myself,” a statement defendant deems an explicit invocation of his self-incrimination privilege.

But the trial court reasonably could find that the remark, being linked to defendant’s insistence on “no tape recorder,” merely expressed his assumption that only recorded statements could incriminate him at trial. Immediately after defendant made this remark, the officers read defendant the Miranda advisements, and asked defendant if he wished to talk to them. These advisements included the unqualified admonition that anything defendant said to the officers could be used against him in a court of law.

The trial court reasonably could find that this admonition cleared up any possible misconception defendant previously may have entertained regarding the admissibility of his unrecorded statements to the officers. Several California cases have indicated that if a defendant expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights, the officers may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (See People v. Carey (1986) 183 Cal.App.3d 99, 103 [227 Cal.Rptr. 813], and cases cited; People v.

Bestelmeyer (1985) 166 Cal.App.3d 520, 526-527 [212 Cal.Rptr. 605]; People v. Russo (1983) 148 Cal.App.3d 1172, 1177 [196 Cal.Rptr. 466].) We approve the rule of these cases and find it applicable here. Giving defendant full Miranda warnings and obtaining his waiver of his Miranda rights was a legitimate method of clarifying any ambiguities inherent in defendant’s “no tape recorder" remark. b.

Defendant’s references to securing a lawyer Midway during the March 28 interview, Officer McCarthy indicated (as he had already done several times during the interview) that murder charges would be brought against defendant.

He replied that “My mother will put out money for a high price lawyer out of New York.” McCarthy asked for the name of defendant’s lawyer, but he refused to furnish it, stating, “I don’t want you talking to my lawyer.” Thereafter, following a discussion (initiated by defendant) of the possible penalties that might be imposed for the murders, including death or life without possibility of parole, defendant stated, “Give me a minute, I might tell you something you want to hear.” After a few moments of silence, defendant then said, “Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder.” Officer McCarthy immediately asked defendant if he wanted to talk to a lawyer before answering more questions, and defendant simply repeated that he thought McCarthy was bluffing.

He made no further mention of lawyers during this interview. Defendant contends that each of the foregoing references to lawyers invoked his right to counsel and should have induced the officers to terminate the interview. The trial court ruled that defendant’s initial remark regarding his mother securing a “high price" lawyer was “not an expression of an intent to terminate the interview at that time, but instead related to a future trial and not to present questioning.” We agree.

The cases hold that if a defendant indicates in any manner that he wishes to consult with an attorney, the interrogation must cease. (Miranda v. Arizona, supra, 384 U.S. at pp. 444-445 [16 L.Ed.2d at pp. 706-707]; People v. Boyer, supra, 48 Cal.3d at p. 271.) The California courts have found invocations of the right to counsel in such varying statements or inquiries as “ I don’t know if I should have a lawyer here or what’ ” (People v. Russo, supra, 148 Cal.App.3d at p. 1177), “ ‘Do you think we need an attorney?’ ” and “ T guess we need a lawyer’ ” (People v.

Superior Court (Zolnay) (hereafter Zolnay) (1975) 15 Cal.3d 729, 735-736 [125 Cal.Rptr. 798, 542 P.2d 1390]), “ ‘Well, maybe I should talk to my attorney, Mr. Corbin’ ” (People v. Munoz (1978) 83 Cal.App.3d 993, 995 [148 Cal.Rptr. 165]), and “ ‘Tell me the truth, wouldn’t it be best if I had an attorney with me?’ ” (People v.

Hinds, supra, 154 Cal.App.3d at p. 234.) Yet we have found no case suggesting that a suspect’s statement concerning the possible retention of a lawyer for future proceedings would require termination of a police interrogation. (See Zolnay, supra, 15 Cal.3d at p. 736 [suspect’s expressed need for attorney was “immediate,” not merely “in the future” (italics omitted)].) In our view, the trial court properly deemed defendant’s statement mere bragging about his ability to secure high priced legal representation for future proceedings, and not a request to consult with an attorney during the present interrogation.

This

interpretation of defendant’s remarks is reinforced by his refusal or inability to give Officer McCarthy the name of his lawyer. Defendant’s second remark, “Maybe I ought to talk to a lawyer,” is considerably more troublesome. The trial court ruled that the word “maybe” rendered the statement equivocal, and that in context the reference to a lawyer was not intended as an invocation of defendant’s right to remain silent.

Defendant’s intent to continue the interview was confirmed by his failure to respond to McCarthy’s immediate inquiry as to whether defendant wanted an attorney, and by defendant’s subsequent request of McCarthy to “Tell me what you have and I might make you a proposition.” As previously indicated, the courts have found Miranda violations despite considerable equivocation by the defendant. We briefly review the apposite decisions.

In Zolnay, supra, 15 Cal.3d at page 735, we observed that the suspect’s question, “ ‘Do you think we [referring to himself and a codefendant] need an attorney?’” and his statement, “T guess we need a lawyer,’” were “a direct result of the interrogation. The record discloses that the query interrupted the interrogation at a point when defendants’ choice seemed all but limited to confession or silence. Moreover, defendants’ subsequent specific request that the deputies recommend an attorney indicates both their continuing concern and their specific and pointed desire to consult counsel.

We think the record discloses sufficient invocation of their right to remain silent.” We stressed in Zolnay (id. at p. 736) that “ ‘no particular form of words or conduct is necessary’ ” to invoke the self-incrimination privilege. (Quoting from People v. Randall, supra, 1 Cal.3d at p. 955.) The present case is factually distinguishable from Zolnay, supra, in several respects. Initially, on this record it is highly unlikely that defendant’s reference to an attorney disclosed his confusion or uncertainty about continuing the interview.

A reading of Officer McCarthy’s notes of the interrogation reveals that from start to finish defendant maintained a confident, “cocky” attitude, verbally sparring with the officer, expressing doubts about the strength or admissibility of the evidence against him, negotiating with McCarthy for a possible reduced sentence, and bragging about his good looks, his various girlfriends, his ability to produce an alibi for “any date you want,” and his mother’s ability to hire an expensive lawyer.

As McCarthy noted, defendant appeared to “almost relish[] his role as the focus of our attention . . . .” Unlike the situation in Zolnay, supra, defendant never asked the deputies to recommend an attorney, and he declined to respond to McCarthy’s attempts to learn his lawyer’s name or to determine whether he in fact truly wanted to speak to an attorney. In People v. Munoz, supra, 83 Cal.App.3d 993, the officers took a robbery suspect to an interview room and began to interrogate him. As soon as the interrogating officer introduced himself, the suspect stated, “Well, maybe I should talk to my attorney, Mr.

Corbin.” Rather than terminate the interview, the officer agreed that the suspect could talk to his attorney, but first the officer wanted to explain what information he had, and what he needed to learn. Eventually, the suspect confessed. The Munoz court, citing our Zolnay decision, supra, 15 Cal.3d 729, held that the continued interrogation was improper.

The court noted that although the suspect’s remark was “ambiguous,” it could be construed “as an invocation of his right to speak to an attorney before questioning.” (83 Cal.App.3d at p. 996.) The court also relied on the fact that the suspect had mentioned his attorney by name, indicating he already had retained counsel. (Ibid.) In People v. Hinds, supra, 154 Cal.App.3d 222, a murder suspect was arrested and interrogated after being advised of his Miranda rights.

The suspect asked the officer, “ ‘Tell me the truth, wouldn’t it be best if I had an attorney with me?’ ” Rather than stop the interrogation, the officer indicated to the suspect that although this matter was for him to decide, the attorney “would not be the one going to jail, possibly facing ‘first degree murder, special circumstances and the death penalty. ’ ” (Id. at p. 231.) Eventually, the suspect admitted the killing.

The Hinds court, explaining that “ ‘Ambiguous statements are to be construed as invocations . . . ,’” found that the suspect’s initial inquiry was sufficient to invoke his right to counsel. (154 Cal.App.3d at p. 235, quoting from People v. Duran (1983) 140 Cal.App.3d 485, 492 [189 Cal.Rptr. 595].) Hinds likewise is factually distinguishable, however, for the interrogating officer in that case, rather than attempt to clarify the suspect’s ambiguous remark, improperly tried to dissuade him from terminating the interview. (See 154 Cal.App.3d at p. 235.) People v.

Bestelmeyer, supra, 166 Cal.App.3d 520, 527-528, seems more closely on point. There, after the suspect was arrested for molesting his stepdaughter, the arresting officer gave Miranda warnings and commenced an interview. At the outset, after being told he could terminate the interview at any time, the suspect was asked by one officer what he was thinking.

The suspect replied, “ T was just thinkin’, maybe I shouldn’t say anything without a lawyer and then I thinkin’ ahh.’ ” (Id. at p. 524.) The officer continued explaining to the suspect that he could waive his rights, agree to talk to the officers, and then reinvoke his rights and stop talking to them. The suspect made no further references to an attorney, and eventually he made incriminating statements.

The Bestelmeyer court found that the suspect’s initial remark was too ambiguous to amount to an invocation of his right to the presence of counsel, and that substantial evidence supported the lower court’s finding that the suspect knowingly waived that right. (166 Cal.App.3d at pp. 527-528.) Turning to the present case, we think that in light of the whole record, including defendant’s overall conduct and demeanor during the interrogation, the ambiguous and tentative nature of his reference to an attorney, Officer McCarthy’s immediate attempt to clarify defendant’s remark, and defendant’s refusal to respond thereto, there was substantial evidence to support the trial court’s determination that defendant did not invoke his right to counsel.

Accordingly, it is unnecessary to determine whether the asserted Miranda error was prejudicial. (See pt. III. C.4.d., post.) c.

The “off-the-record” request As noted above, at one point in the March 28 interview, after Officer McCarthy had assured defendant that he was not “bluffing" about charging defendant with murder, defendant abruptly stated, “This is off the record.” McCarthy replied, “You’re doing all the talking, don’t let me stop you, go ahead.” Defendant thereupon asked McCarthy, “Can you get me 10 years?” The ensuing discussion concerned possible penalties that might be imposed. (All of these “sentencing” discussions were excluded at trial.) Soon thereafter, defendant asked McCarthy, “Tell me what you have and I might make you a proposition.” After McCarthy falsely told defendant that McCarthy knew that defendant had pawned some of the victims’ jewelry, and that victim Holmes had identified defendant before she died, defendant stated that his name was not on any pawn slip, that it would be his word against the pawnshop owner, and that a dying declaration from victim Holmes “would convict me of killing her . . . but not [victim Castro], but it’s close in time, but I am not saying I did it. [¶] . . .1 probably did do it, but you are not going to get me to say I did do it.” (This latter statement was introduced at trial.) Immediately thereafter, defendant again said, “This is off the record,” and McCarthy told him to go ahead.

Defendant then directed McCarthy to go to the district attorney and “get me ten straight. . . years, and I will give you something you want.” The remaining discussion concerned possible arrangements for reduced sentences in return for defendant’s statement about the murders. The trial court found that defendant’s “off the record” requests pertained only to the sentencing and plea bargain discussions which immediately followed those requests, and that accordingly any statements not pertaining to sentencing were admissible. The court ruled that only the sentencing discussions would be inadmissible at trial.

Defendant contends that all statements following his initial “off-the-record” request should have been suppressed, because McCarthy never informed him that the interview was no longer “off the record.” He cites no cases imposing such a rigid requirement, and we have found none so holding. The main inquiry should be whether defendant knowingly and intelligently waived his right to remain silent. Here, the trial court found the waiver remained valid as to discussions not involving sentencing. (See People v.

Silva (1988) 45 Cal.3d 604, 629-630 [247 Cal.Rptr. 573, 754 P.2d 1070] [suspect’s refusal to discuss certain subjects not conclusive indication of intent to terminate interrogation]; People v. Hayes (1985) 38 Cal.3d 780, 784-786 [214 Cal.Rptr. 652, 699 P.2d 1259] [defendant’s expressed reluctance to discuss “details” of confession did not invoke Miranda right to silence]; see also People v. Edwards (1991) 54 Cal.3d 787, 814-817 [1 Cal.Rptr.2d 696, 819 P.2d 436] [“off-the-record” request does not render volunteered statements inadmissible].) We find the record amply supports the trial court’s finding.

It seems unlikely defendant would have repeated his “off-the-record” request if he had intended or assumed the proceedings remained off the record following his initial request. It could be argued that defendant’s request that the interview proceed “off the record” disclosed his confusion about the admissibility of his statements to the officers, thereby vitiating the Miranda waiver. In People v. Braeseke, supra, 25 Cal.3d at pages 702-703, we held that a defendant’s “off-the-record” request, acceded to by the officers, was inconsistent with a knowing waiver of self-incrimination rights.

As we stated in that case, “defendant’s request revealed a marked lack of understanding of the Miranda warnings. [Citation and fn. omitted.].” (See also Frazier v. United States (D.C.

Cir. 1969) 419 F.2d 1161, 1168-1169 [136 App.D.C. 180] [officers’ obligation to clarify the defendant’s misconception regarding admissibility of oral admissions].) Braeseke, supra, 25 Cal.3d 691, is distinguishable, however, because there the trial court permitted admission of the defendant’s statements despite his request for “off-the-record treatment.” In the present case,' as we have indicated, the trial court excluded those statements regarding possible sentencing to which the off-the-record request was directed.

Moreover, it is arguable that an “off-the-record” request no longer necessarily demonstrates confusion on the defendant’s part because, following Braeseke, such a request effectively insulates the affected portion of the interview from subsequent courtroom use. As with defendant’s statement that “maybe I ought to talk to a lawyer,” because we find no Miranda violation in connection with defendant’s “off the record” remark, it is unnecessary to determine the prejudicial effect of such error.

Nonetheless, because it seems apparent that no prejudice resulted from any such violation, we address that subject briefly, as follows: d. Prejudice The principal inculpatory statement made by defendant after he indicated he “maybe” needed counsel and requested “off-the-record” treatment was his statement that “I probably did do it [kill victim Castro], but you are not going to get me to say I did do it.” The prosecutor emphasized this statement in his closing argument to the jury.

The statement, though somewhat softened by the word “probably,” nonetheless reasonably could be viewed as a confession or admission of guilt. We note, however, that (as disclosed to the jury) during the same interview defendant repeatedly denied his guilt of either murder. In context, the jury could have viewed defendant’s “probably guilty” remark as more of a taunt to the interrogating officer than an outright admission of guilt.

Under federal law, the test of prejudice for admitting a coerced confession is the Chapman test, requiring reversal unless the error was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309 [113 L.Ed.2d 302, 331-332, 111 S.Ct. 1246, 1265]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065].) Presumably, the federal courts would apply the same test to a confession adduced in violation of Miranda.

Similarly, under state law, we recently rejected a per se reversible error standard for coerced confessions, concluding that a conviction may be affirmed despite the erroneous admission of an involuntary confession, when the record shows that the admission of the confession was harmless beyond a reasonable doubt. (See People v. Cahill (1993) 5 Cal.4th 478, 509-510 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) Was any Miranda error in this case harmless beyond a reasonable doubt? On this record, we believe it was.

Defendant, before suggesting that he “maybe” should see his lawyer, and before asking to go “off the record,” admitted to Officer McCarthy that he knew Castro and had visited her on or about the night of the murders. According to defendant, on the last such visit, he drove Castro’s children to a babysitter, ate dinner with her, had “sex” with her and drank with her until she became intoxicated and fell asleep. Her mother, victim Holmes, called from downstairs to inquire of Castro, and defendant told her Castro was asleep.

All this evidence of defendant’s involvement with the two victims on or about the night they were murdered was seemingly untainted by defendant’s subsequent claimed invocations of his Miranda rights. In addition, defendant’s girlfriend, Roshaun Fuller, testified at trial that defendant had admitted to her that he “knocked out” victim Castro, “hit” victim Holmes on the back of her head, and thereafter stole $200 and a ziploc bag of heavy gold jewelry from them. Other witnesses placed defendant with Castro on or about the night of the murders, and later observed him wearing expensive gold jewelry and new clothes.

Significantly, other than pointing to flaws and inconsistencies in witness Fuller’s testimony, the defense failed to rebut the foregoing evidence or to raise any credible defenses to the murder charges. In light of the strong incriminating evidence that was properly admitted at trial, we conclude that admission of defendant’s equivocal statement that he “probably did it” was harmless beyond a reasonable doubt. D.

Testimony of Denise Lancaster Defendant contends the court erred in allowing witness Denise Lancaster to testify at the guilt phase that defendant had threatened to kill her and had told her he had killed before. At an in limine hearing, Lancaster testified she had picked up defendant in March 1986 while he was hitchhiking. (The charged murders occurred in January 1986.) He raped her, threatened to kill her, and told her he had killed before. The court ruled that Lancaster could not testify concerning the rape, but could relate the other statements.

At trial, she did so, referring to the rape as a “physical confrontation” with defendant. Defendant asserts Lancaster’s testimony that he had killed before was irrelevant because the statement was not linked to the charged murders. (Cf. People v.

Hamilton (1985) 41 Cal.3d 408, 417, 428 [221 Cal.Rptr. 902, 710 P.2d 981] [defendant’s statement, “Yeah, [I’ve had my fun,] and I’ll kill a lot more, too, and you may be first on my list,” held admissible because in context it “required no speculation to connect it to the [pending murder charges]”.) Defendant suggests that admissions of prior criminal conduct unrelated to the charged offense are inadmissible at the guilt phase, being essentially character evidence barred by Evidence Code

section 1102, subdivision (b). We think that defendant’s admission of a prior killing or killings, made soon after the charged murders were committed, was relevant to the ultimate question of defendant’s guilt. The. jury was entitled to infer that defendant was referring to the killing of Castro and Holmes. The fact that he could have been referring to an unrelated killing goes more to the weight of his statement than to its admissibility.

Moreover, in light of the other evidence of defendant’s guilt, outlined above, any error in admitting Lancaster’s testimony concerning defendant’s admission of a prior killing was harmless. We note that defendant does not argue the inadmissibility of Lancaster’s recital of defendant’s threat to kill her. Although this evidence seemingly would have little relevance to the issue of defendant’s guilt, it is at least arguable the threat confirmed defendant’s intent or state of mind to kill those who opposed him. (See People v.

Lang, supra, 49 Cal.3d at pp. 1013-1016.) In any event, any error in admitting the statement was undoubtedly harmless in light of the remaining evidence of guilt. E. Ineffective Counsel Claim As previously noted, victim Castro was strangled with a wire wrapped around her neck. The wire was examined by a prosecution expert, Mario Soto, who testified at trial the wire was a telephone cord that had been cut, rather than tom, from the wall.

According to Soto, prior to forming the foregoing conclusion, he purchased some telephone wire and tried cutting and breaking it to duplicate the ends of the wire found around Castro’s neck. The cut wire more closely resembled the wire found at the scene. Defense counsel made no objection to this testimony. Defendant now contends counsel was ineffective in failing to object to Soto’s testimony on the ground that no proper foundation was laid to support his out-of-court “experiment" with the wire.

Defendant asserts that the People failed to establish the wire used by Soto was sufficiently similar to the wire found wrapped around Castro’s neck. (See DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1231 [242 Cal.Rptr. 423] [experiment results inadmissible unless conditions substantially identical to prior event]; Andrews v. Barker Brothers Corp. (1968) 267 Cal.App.2d 530, 537 [73 Cal.Rptr. 284] [same].) Defendant suggests the omission was prejudicial because Soto’s testimony helped establish the People’s theory of intentional, premeditated murder.

On the present record, we find no basis for concluding that counsel’s failure to object reflected his incompetence. As a general rule, failure to object to specific items of evidence “involves tactical decisions on counsel’s part and seldom establishes counsel’s incompetence. [Citation].” (People v. Jackson, supra, 28 Cal.3d at p. 292.) In the present case, it is possible that counsel deemed it tactically unwise to object to Soto’s testimony. Indeed, it is conceivable that counsel investigated the matter and learned that Soto indeed used similar wire in his experiment.

Accordingly, we need not resolve the question whether counsel’s omission prejudiced defendant in light of the other evidence of his premeditation. Under such circumstances, the incompetence claim must be denied. (See People v. Pope (1979) 23 Cal.3d 412, 425-426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) F. Evidence and Instructions Relating to Burglary As previously indicated, the jury found defendant guilty of two counts of first degree murder. The murder charges against defendant alleged both premeditated murder and felony murder.

To establish the latter, the People attempted to prove defendant committed an underlying burglary (§ 459), based in part on his possession of jewelry recently stolen from the victims. (The People also attempted to prove an underlying rape was committed [§ 261], as discussed post, pt. III. G.) Objecting to any instructions on the offense of burglary, the defense noted the absence of evidence indicating defendant entered the victim’s home with the intent to steal the jewelry.

The trial court nonetheless instructed the jury regarding the crime of burglary, and additionally instructed, based on CALJIC No. 2.15 (5th ed. 1988), as follows: “Conscious possession of recently stolen property is not in and of itself sufficient to permit an inference that the defendant committed the crime of burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt.

However, this evidence need only be slight, and need not in and of itself be sufficient to warrant an inference of guilt. [¶] As corroboration you may consider the attributes of possession— time, place and manner, that the defendant had an opportunity to commit the crime charged, the defendant’s conduct, his false or contradictory statements, if any, or other statements he may have made with reference to the property, and any other evidence which tends to connect the defendant with the crime charged.” Defendant now raises a variety of claims of error arising from giving the foregoing instruction.

We find no merit in any of them. 1. Evidence of burglary First, defendant asserts the instruction was improper because there was insufficient evidence a burglary had in fact occurred. (Cf. People v. Morris (1988) 46 Cal.3d 1, 40 [249 Cal-Rptr. 119, 756 P.2d 843] [improper to give unqualified CALJIC No. 2.15 instruction where evidence relating to defendant’s possession of stolen property is unclear].) He contends evidence was lacking regarding his intent to steal at the time he entered the victims’ home. (See § 459.) We disagree.

Examination of the record indicates there was sufficient circumstantial evidence of a burglary, and of defendant’s intent to steal the victims’ jewelry when he entered the victims’ home. (See People v. Earl (1973) 29 Cal.App.3d 894, 896-898 [105 Cal.Rptr. 831] [circumstantial evidence routinely used to establish intent to steal].) Defendant admitted to the officers he was aware the victims possessed gold jewelry, and also that he was present at their home on or about the date of the murders. Substantial amounts of gold jewelry were missing from the premises.

Defendant was later seen wearing gold rings, bracelets and necklaces, and was also seen pawning some gold jewelry (although this jewelry could not be positively traced to the victims). He told Roshaun Fuller that he assaulted and “robbed” both victims after ransacking their rooms and taking their jewelry. He also told Fuller that he made his living by taking property from women. Additionally, he told an acquaintance, Constance Smith, prior to the murders that he was not romantically interested in victim Castro, but simply looked on her as someone from whom he could obtain money.

We conclude that, in light of the foregoing record, there was sufficient evidence of a burglary, including a preexisting intent to steal. Accordingly, the court did not err in giving CALJIC No. 2.15. 2. Evidence of possession of stolen jewelry As previously noted, under People v. Morris, supra, 46 Cal. 3d at page 40, an unqualified instruction based on CALJIC No. 2.15 should not be given if the defendant’s possession of the stolen property is unclear or in dispute. (See also United States v.

Bamberger (3d Cir. 1972) 456 F.2d 1119, 1134.) Defendant asserts that the prosecution introduced no evidence establishing that he possessed any of the victims’ jewelry. We disagree. Several witnesses described in detail various items of the victims’ missing jewelry, including a large “coin-type” medallion worn by victim Holmes. Witness Constance Smith testified that this medallion could have been the same one she saw defendant wearing following the murders. As previously noted, defendant was seen wearing gold rings, bracelets and necklaces, and was also seen pawning some gold jewelry.

He told Roshaun Fuller that he assaulted and “robbed” both victims after ransacking their rooms and taking their jewelry. We conclude the record contains sufficient evidence of possession of stolen property to justify the instruction. 3. Presumption of burglary Defendant asserts that CALJIC No. 2.15 created ah improper presumption of burglary arising from the mere fact of possession of stolen property. But the instruction does not so state.

Indeed, it relates a contrary proposition: a burglary may not be presumed from mere possession unless the commission of the offense is corroborated. (Defendant suggests the instruction allows corroboration merely by evidence of the charged offense of murder, but we think it clear that, read in context, the instruction requires corroboration of the underlying burglary, and not the murder itself.) Moreover, as the People observe, the ultimate question whether or not a burglary "occurred, and the subsidiary question whether defendant possessed the requisite preexisting intent to steal, were left to the jury through the usual instructions regarding the elements of that offense.

Thus, contrary to defendant’s assumption, CALJIC No. 2.15 did not remove the issue of intent from the jury’s consideration. (See People v. Figueroa (1986) 41 Cal.3d 714, 725-727 [224 Cal.Rptr. 719, 715 P.2d 680]; see also People v. Anderson (1989) 210 Cal.App.3d 414, 422, 426-431 [258 Cal.Rptr. 482] [upholding validity of CALJIC No. 2.15].) Defendant nonetheless contends that CALJIC No. 2.15 is a “permissive presumption” of a kind justified only if the evidence is “sufficient for a rational juror to find the inferred fact beyond a reasonable doubt . . . .” (Barnes v.

United States (1973) 412 U.S. 837, 843 [37 L.Ed.2d 380, 386, 93 S.Ct. 2357].) Defendant further notes that constitutional principles require a rational connection between the proved facts and the presumed fact. (E.g., Ulster County Court v. Allen (1979) 442 U.S. 140, 157 [60 L.Ed.2d 111, 792, 99 S.Ct. 2213]; see also People v. Roder (1983) 33 Cal.3d 491, 497-499 [189 Cal.Rptr. 501, 658 P.2d 1302].) Assuming the challenged instruction amounts to a presumption of burglary based on defendant’s possession of recently stolen property, we think the evidence summarized above (see pt.

F.l. and F.2., ante) amply meets the standard set forth in Barnes and Ulster. Similarly, for the reasons above set forth, we must reject defendant’s related contention that his murder convictions must be reversed on the ground of insufficient evidence of burglary as the underlying felony. Having concluded that the court did not err in giving CALJIC No. 2.15, we need not address defendant’s further contentions that the purported error was reversible per se, and that the error cannot be rendered harmless by reliance on the prosecution’s alternative theories of premeditated murder or rape/murder (see Griffin v.

United States (1991) 502 U.S._[116 L.Ed.2d 371, 382-383, 112 S.Ct. 466, 474]; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [17 Cal.Rptr.2d 365, 847 P.2d 45]). G. Evidence of Rape As previously indicated, the People, in attempting to prove that defendant committed first degree murder as to both victims, relied on both a premeditated-murder theory and a felony-murder theory. The latter theory was based on defendant’s commission of the underlying offenses of burglary (previously discussed, ante, pt. III. F.) and rape or attempted rape.

Defendant contends there was insufficient evidence of rape or attempted rape to support a felony-murder finding as to victim Holmes. Consistent with our prior holdings, we agree. We also conclude, however, that the insufficiency as to the rape/murder theory was harmless in light of the valid alternative theories of premeditated murder and burglary/murder that were presented to the jury with respect to both victims. To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt.

In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (People v. Barnes (1986) 42 Cal.3d 284, 303 [228 Cal.Rptr. 228, 721 P.2d 110]; People v. Johnson (1980) 26 Cal.3d 557, 576-578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]; see Jackson v.

Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573, 99 S.Ct. 2781].) The People relied on the following evidence to support a felony-murder (rape or attempted rape) theory as to victim Holmes: Defendant admitted to police that on or about the night of the murders, he visited the home of victims Holmes and Castro, encouraged Castro to drink to the state of intoxication, and then had “sex” with her.

During police interrogation, although the officers had not accused defendant of raping either victim, and indeed had not even mentioned that offense, defendant, in the course of evaluating the evidence against him, made the observation that “rape is hard to prove because it [the inquiry] is if she gave up the pussy or didn’t she.” Some physical evidence indicated that victim Holmes may have been sexually assaulted in the course of her murder. Her body was dressed only in a sweatshirt and bra; she was wearing nothing from the waist down. (Cf. People v.

Jennings (1991) 53 Cal.3d 334, 367 [279 Cal.Rptr. 780, 807 P.2d 1009] [corpus delicti of rape inferred from evidence of murder in remote locale coupled with unclothed condition of body].) The officers found a pair of pantyhose on the floor of her room. Holmes had been beaten severely; blood was found on the floor, sofa cushions and loveseat in that room.

This evidence supported the prosecution’s theory that any sexual activity was nonconsensual. (See id. at p. 368.) Defendant correctly observes that no evidence was introduced to indicate any sexual trauma, seminal traces or other evidence of penetration, forced or otherwise, as to victim Holmes. The People argue, however, that a felony-murder charge could be sustained on a finding of attempted rape, and the jury was so instructed. (See § 189; People v. Hillery (1965) 62 Cal.2d 692, 704-705 [44 Cal.Rptr. 30, 401 P.2d 382] [evidence of trauma to genitals unnecessary to establish attempted rape]; cf. People v.

Wright (1990) 52 Cal.3d 367, 405 [276 Cal.Rptr. 731, 802 P.2d 221] [lack of evidence of penetration not fatal to felony-murder/rape special-circumstance finding sustainable on proof of attempted rape].) But other than the inference that defendant may have raped victim Castro, the only evidence of his rape or attempted rape of victim Holmes was ‘her partly unclothed body. Defendant cites prior cases of this court to support his position that the unclothed or partly clothed condition of the victim’s body is insufficient to establish an actual or attempted sex offense. (See People v.

Anderson (1968) 70 Cal.2d 15, 34-36 [73 Cal.Rptr. 550, 447 P.2d 942] [insufficient evidence of intent to commit lewd act under § 288]; People v. Craig (1957) 49 Cal.2d 313, 318-319 [316 P.2d 947] [insufficient evidence of specific intent to commit rape or attempted rape]; see also People v.

Granados (1957) 49 Cal.2d 490, 497 [319 P.2d 346] [victim found in bloodstained room with skirt pulled up and genitals exposed, but no evidence of spermatozoa or genital trauma—held insufficient to establish felony murder based on commission of lewd act].) These cases are indeed close on point, though factually distinguishable in some respects. Inexplicably, the Attorney General fails to address, or even cite, these cases in his respondent’s brief.

In Craig, the defendant, earlier in the evening, had expressed his general desire to “have a little loving,” and he subsequently quarrelled with a woman in a bar (not the victim) who refused to dance with him. Later that night, he attacked and killed the victim by strangling her and by beating her 20 to 80 times. The victim’s body was found in a service station, lying beneath a jacked-up automobile. She had apparently been dragged across the ground about 25 feet, and 2 nearby cars were spattered with blood. She was wearing a raincoat over a nightgown and panties.

Her raincoat had been ripped open, and her nightgown and panties were likewise tom so that the “front part of the body was exposed.” (49 Cal.2d at p. 316.) Her panties were torn open and were “under her.” (Ibid.) She was found lying on her back with her legs slightly spread, and had suffered multiple contusions and lacerations of her face, breasts, neck and lower abdomen. (Ibid.) A divided court (four to three; maj. opn. by Carter, J.; dis. opn. by Spence, J.) held that because of the lack of evidence of the defendant’s specific intent to commit rape, such as blood on the fly qf his trousers or any other evidence that a sexual act or attempt took place, felony-murder-rape charges could not be sustained and, accordingly, the court modified the judgment to second degree murder. (The court had also found the evidence insufficient to show a premeditated murder.) The majority stressed that although the defendant’s clothing was generally spattered with blood, no blood was found on the front of his trousers, fly or undershorts, making it unlikely a sex act was accomplished or even attempted.

The open position of the victim’s legs “loses significance when it is recalled that the body had been dragged some 20 to 25 feet.” (49 Cal.2d at p. 319.) The Craig dissent would have found substantial evidence that the murder was committed in an attempt to commit rape. (Id. at pp. 321-322 (dis. opn. of Spence, J.).) In People v. Anderson, supra, 70 Cal.2d 15, the defendant had repeatedly stabbed the 10-year-old female victim. More than 60 wounds were inflicted, extending over her entire body, including vaginal lacerations. No evidence of spermatozoa was found.

The victim’s naked body was found under a pile of boxes and blankets; her bloodstained and shredded dress was found under her bed. The crotch had been ripped out of her blood-soaked panties. Only defendant’s socks and shorts were bloodstained, suggesting he was only partly clothed during the attack. (Id. at pp. 20-22.) Relying on People v.

Craig, supra, 49 Cal.2d 313, a divided court (four to three; maj. opn. by Tobriner, J.; dis. opns. by Burke and Sullivan, JJ.) modified a first degree murder judgment to second degree murder, holding that the foregoing evidence was insufficient to sustain a finding of the defendant’s specific intent to commit a lewd act under

section 288, as required to invoke the felony-murder doctrine. (70 Cal.2d at pp. 34-36.) The Anderson majority concluded that insufficient evidence was introduced to show the defendant’s sexual intent; the location of the victim’s wounds bore little relevance to that issue. (See id. at p. 35.) The court also found the evidence was insufficient to establish premeditated murder. (See id. at pp. 24-34.) We have cited both Craig, supra, 49 Cal.2d 313, and Anderson, supra, 70 Cal.2d 15, with apparent approval in subsequent cases determining the sufficiency of the evidence of sexual offenses underlying a felony-murder charge. (E.g., People v.

Thomas (1992) 2 Cal.4th 489, 526-527 [7 Cal.Rptr. 2d 199, 828 P.2d 101] [citing, but distinguishing, Craig]', People v. Hernandez (1988) 47 Cal.3d 315, 347 [253 Cal.Rptr. 199, 763 P.2d 1289] [citing, but distinguishing, both Craig and Anderson].) Assuming that Craig and Anderson correctly state the law (and the Attorney General does not contend otherwise), they would appear to be controlling here. There are, of course, some factual distinctions between those cases and the present one.

Here, unlike Craig, supra, 49 Cal.2d 313, we are not faced with any circumstances (such as the lack of blood on defendant Craig’s trousers) inconsistent with a finding that defendant raped, or attempted to rape, victim Holmes. Nor can her partly clothed state be attributed to being dragged from place to place, as in Craig. Moreover, unlike the situation in Anderson, supra, 70 Cal.2d 15, defendant’s specific intent to commit rape possibly could be inferred from the fact he earlier had sex with Holmes’s daughter, Castro.

But Anderson, supra, 70 Cal.2d 15, appears to hold that the victim’s lack of clothing, even when coupled with evidence indicating the defendant was nearly naked during the attack, is insufficient to establish specific sexual intent. We have found no cases holding otherwise. In People v. Jennings, supra, 53 Cal.3d at page 367, cited by the People herein, we held that the corpus delicti of rape could be inferred from the fact that the young female victim’s body was found unclothed in a remote location.

We stressed, however, that the corpus delicti requirement could be satisfied by only a “ ‘slight or prima facie’ showing. [Citations.]” (Id. at p. 368.) As we explained above, more than a mere “prima facie” showing is required to sustain a finding of rape or attempted rape on appeal. Other than victim Holmes’s partly clothed body, there was no evidence of a sexual assault on her. We conclude that, under Anderson and Craig, the evidence was insufficient to support a finding of first degree murder based on rape or attempted rape of victim Holmes. Does the insufficiency of evidence require reversal of the judgment?

As we explained in

part III. F., ante, the prosecution’s felony-murder theory soundly rested on proof that both murders occurred during the course of a burglary. Moreover, defendant has not challenged the legal or evidentiary support for the prosecution’s premeditated murder theory. Finally, the record shows that in closing argument the prosecutor conceded to the jury that “This [Holmes’s murder] was probably not a felony murder during the course of a rape,” but instead was premeditated murder. Defense counsel gratefully exploited the concession in his own closing argument.

Accordingly, we may apply the rule that if one of the prosecution’s alternative theories of criminal liability is found unsupported by the evidence, the judgment of conviction may rest on any legally sufficient theory unaffected by the error, unless the record affirmatively demonstrates that the jury relied on the unsupported ground. (See Griffin v. United States, supra, 502 U.S. _ [116 L.Ed.2d 371, 372-373, 112 S.Ct. 466, 474]; People v.

Guiton, supra, 4 Cal.4th at pp. 1129-1130.) Based on our review of the record, we conclude that the insufficiency of evidence supporting a rape/ murder theory as to victim Holmes was harmless under the circumstances here. H. Sua Sponte Instruction on Provocation Defendant next contends the trial court erred in failing to instruct sua sponte, based on CALJIC No. 8.73, that the jury, in deciding whether defendant could be found guilty of second degree murder of victim Castro, could consider evidence of any provocation that played a

part in inducing the homicide, even if that evidence was insufficient to reduce the offense to manslaughter. The record discloses that the court instructed the jurors generally on the subject of second degree murder, telling them that such a finding would be appropriate if the killing was intentional, and was committed with malice aforethought, but was neither premeditated nor deliberate.

At counsel’s request, the court also instructed that provocation could reduce the offense involving victim Castro to voluntary manslaughter. (The court found no substantial evidence of provocation as to victim Holmes, and declined to so instruct as to her death.) As defendant observes, a sua sponte instruction on provocation and second degree murder must be given “where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately” to carry it out. (People v.

Wickersham (1982) 32 Cal.3d 307, 329 [185 Cal.Rptr. 436, 650 P.2d 311].) Wickersham noted that “the fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt” as to premeditation. (Ibid.) Defendant argues that because the trial court apparently found sufficient evidence to justify giving a provocation/ manslaughter instruction, then a fortiori there must have been enough evidence to instruct on second degree murder.

The problem with defendant’s analysis is that there was insufficient evidence of provocation to justify any instructions on that subject. Thus, the trial court’s instruction on manslaughter was inappropriate and unnecessary, though obviously not prejudicial to defendant. Defendant introduced no evidence whatever to support a defense of provocation, or to indicate he was relying on one. Instead, he attempted to mount an alibi defense, to cast suspicion on another acquaintance of Castro, and to impeach witness Fuller’s incriminating testimony.

A provocation defense would have been inconsistent with the foregoing denial of guilt. Under such circumstances, no sua sponte instruction was required. (People v. Wickersham, supra, 32 Cal.3d at p. 329; People v. Sedeno (1974) 10 Cal.3d 703, 716 [112 Cal.Rptr. 1, 518 P.2d 913].) Defendant observes, however, that at an in-chambers conference with the court at close of trial, his counsel indicated he would also rely on a provocation defense, a defense that the jury might accept despite rejecting the alibi defense.

Counsel cited the testimony of interrogating officer McCarthy that, according to defendant, Castro first became intoxicated and then became emotional and upset, complaining about being mistreated by men, “hollering” at defendant, and “knocking things over,” before finally going to sleep. Significantly, nothing in the portion of defendant’s statement that was summarized by the testifying officer indicated any relevant effect on defendant’s state of mind resulting from Castro’s words or actions. Indeed, according to his statement, defendant was not provoked into killing Castro.

Thus, the foregoing evidence would have given the jury no basis whatever for concluding that defendant “formed the intent to kill as a direct response” to Castro’s conduct as required by Wickersham, supra, 32 Cal.3d at page 329. (See also People v. Morris (1991) 53 Cal.3d 152, 211, and fn. 12 [279 Cal.Rptr. 720, 807 P.2d 949] [no evidentiary basis for believing jury might have found adequate provocation].) The trial court likewise expressed its doubt that defendant’s provocation evidence was “substantial” enough to justify a provocation/manslau

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