PEOPLE v. TULLY (RICHARD C.)

Respondent's Brief

Cal.December 13, 2006

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL CASE v. S030402 RICHARD TULLY, Defendant and Appellant. Alameda County Superior Court No. H9798 The Honorable William R. McGuiness, Judge RESPONDENT?’S BRIEF SUPREME COURT | FILE» = DEC 1 3 2006 SUPREME COURT COPY Frederick K. Ohirich Clerk , BEPOTY BILL LOCKYER Attorney General of the State of California MARY JO GRAVES Chief Assistant Attorney General GERALD A. ENGLER | . . Senior Assistant Attorney General RONALDS. MATTHIAS Supervising Deputy Attomey General MARGOJ. YU Deputy Attorney General State Bar No. 105085 455 Golden Gate Avenue,Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5872 Fax: (415) 703-1234 Email: margo.yu@do}j.ca.gov 4 Attorneys for Respgndent DEAR PENALTY TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 STATEMENT OF FACTS 3 Appellant, Sandy Olsson, And Hollyhock Street In Livermore 3 July 24 And 25, 1986: The Crime 7 The Autopsy 17 July 26, 1986 To March 27, 1987: Further Investigation 22 Appellant’s Statements To The Authorities 25 Appellant’s Guilt-Phase Defense Case 36 The Prosecution’s Guilt-Phase Rebuttal Case 37 The Prosecution’s Penalty-Phase Case 37 Appellant’s Penalty-Phase Defense Case 41 ARGUMENTS 50 I. THE MISSING PORTIONS OF THE RECORD DO NOT DEPRIVE APPELLANT OF AN ADEQUATE RECORD ON APPEAL 50 A. The Law Is Well Settled 50 B. Appellant Shows No Prejudice 52 1. Two Of The Transcripts Appellant Claims Are Missing Are Not 2. The Settled Statement Reconstructs Many Unreported Proceedings And Discussions 53 53 TABLE OF CONTENTS (continued) Page The Settled Statement And Court Summaries Reconstruct Many Unreported Proceedings And Discussions Court Summaries Alone Reconstruct Many Unreported Proceedings And Discussions The Existing Record Apart From The Court Summaries And Settled Statement Reconstruct Many Unreported Proceedings And Discussions Nothing That Occurred In The Unreported Proceedings And Discussions That Cannot Be Reconstructed Could Have Resulted In Reversible Error Hi. THE TRIAL COURT PROPERLY DENIED APPELLANT’S SUPPRESSION MOTION A. The Evidence Adduced At The Suppression HearingIs Denied Appellant’s Arguments At Trial And On Appeal Appellant’s Attacks On The Constitutionality OfWhat Occurred At The Traffic Stop All Fail L. 2. The Police Did Not Unduly Detain Appellant The Police Did Not Need Reasonable Suspicion To Ask Appellant Questions Unrelated To The Traffic Stop Or For Consent To Search His Person Appellant Validly Consented To A Search OfHis Person il 62 67 70 72 78 78 86 89 89 91 92 Ii. TABLE OF CONTENTS (continued) Page 4. The Search OfAppellant’s Person Did Not Exceed The Scope OfHis Consent 5. The Police Did Not Unconstitutionally Search Appellant’s Car, Arrest Him, Or Search Him Incident To That Arrest D. Appellant Did Not Make Involuntary Statements On March 7, 1987 E. Under No Circumstances Is Appellant Entitled To A Suppression OfThe Fingerprint Evidence Against Him Or Suppression Of The Inculpatory Statements He Gave Police On March 27 And 30, 1987 THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTIONTO SUPPRESSHIS INCULPATORY STATEMENTS A. The Evidence Adduced At The Suppression HearingIs Detailed B. Appellant’s Arguments At Trial And The Trial Court Ruling C. The Standard Of Review Is Well Established D. Appellant’s Attacks On The Admissibility Of His Match 27, 1987 Statement To Police All Fail 1. Appellant Validly Wavied His Miranda Rights On March 27 And The Contrary View Is Forfeited 2. Appellant Did Not Unequivocally Request Counsel On March 27 ili 95 98 99 104 110 110 120 122 123 123 125 IV. E. F. TABLE OF CONTENTS(continued) Page 3. Appellant Voluntarily Gave His Statement On March 27 And His Contrary Claims Are Forfeited 127 Appellant’s Attacks On The Admissibility OfHis First March 30, 1987 Statement To Law Enforcement All Fail 130 1. Appellant Validly Waived His Miranda Rights On March 30 And The Contrary View Is Forfeited 130 2. Appellant Did Not Invoke His Right To Remain Silent 131 3. Appellant Voluntarily Gave His First Statement On March 30 133 Any Error Was Harmless 137 THE TRIAL COURT DID NOT ERR BY DISMISSING CERTAIN PROSPECTIVE JURORS FOR CAUSE 139 A. Standard Of Review 139 B. The Trial Court Properly Dismissed M.D. 140 C. The Trial Court Properly Dismissed E.H. 149 D. The Trial Court Properly Dismissed M.K. 150 E. The Trial Court Properly Dismissed B.D. 153 F. The Trial Court Properly Dismissed T.L. 156 iv VIL. VIII. IX. TABLE OF CONTENTS(continued) THE TRIAL COURT DID NOT ERR IN DENYING THE DEFENSE’S MOTION TO EXCLUDE ALL WITNESSES FROM THE COURTROOM DURING THE GUILT PHASE SUFFICIENT EVIDENCE SUPPORTS THE GUILT PHASE JUDGMENT Page -159 171 A. Sufficient Evidence Supports The First Degree Murder Conviction On A Premeditation And Deliberation Theory 172 B. Sufficient Evidence Supports The First Degree Murder Conviction On A Felony Murder Theory And Also Supports The Burglary-Murder Special Circumstance And The Count 2 Assault With Intent To Commit Rape Conviction THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE OF APPELLANT’S UNEMPLOYMENT APPELLANT’S CLAIMS OF INDIVIDUAL AND CUMULATIVE PROSECUTORIAL MISCONDUCT AND TRIAL COURT ERROR AT THE GUILT PHASE REGARDING THE INTRODUCTION OF EVIDENCE ARE MERITLESS NO PREJUDICIAL PROSECUTORIAL MISCONDUCT DURING ARGUMENT IS DEMONSTRATED . 179 184 190 210 XI. XII. XII. TABLE OF CONTENTS(continued) THE JURY FOUND, UNANIMOUSLY AND BEYOND A REASONABLE DOUBT, EACH FACT ESSENTIAL TO APPELLANT’S CONVICTION AND JUDGMENT NO INSTRUCTIONAL ERRORS APPEAR A. Consciousness Of Guilt Instructions B. Circumstantial Evidence Instructions C. Voluntary Intoxication Instructions NO CUMULATIVE PREJUDICE IS DEMONSTRATED THE TRIAL COURT COMMITTED NO PREJUDICIAL CONSTITUTIONAL OR STATUTORY ERRORIN ADMITTING THE PROSECUTION’S PENAL CODE SECTION 190.3, FACTOR (B) EVIDENCE IN AGGRAVATION; MANY OF APPELLANT’S CONTRARY ARGUMENTS ARE FORFEITED : A. No State Law Violation Occurred B. No Federal Constitutional Error Occurred Page 221 223 223 226 228 231 232 234 237 C. Appellant’s Remaining Theories OfInadmissibility Are Forfeited D. AnyError Did Not Prejudice Appellant VI 239 239 XIV. XV. TABLE OF CONTENTS(continued) Page THE TRIAL COURT DID NOT ERR IN ADMITTING VICTIM IMPACT EVIDENCE AT THE PENALTY PHASE AND SEVERAL OF APPELLANT’S OBJECTIONS ARE FORFEITED 241 A. Victim Impact Evidence Is Constitutional 242 B. Appellant’s Ex Post Facto Attack Is Forfeited And Meritless 244 C. Appellant’s Assertion That It Is Unconstitutional To Permit The Admission Of Victim Impact Evidence That Is Not Limited To The Facts Or Circumstances KnownTo The Defendant At The Time Of His Or Her Capital Crime Is Forfeited And Meritless 244 D. The Victim Impact Evidence Was Not Unduly Prejudicial 245 E. The Tnal Court Did Not Err In Refusing To Exclude The Victim Impact Evidence On Inadequate Notice Grounds 247 THE PROSECUTOR DID NOT COMMIT PREJUDICIAL MISCONDUCT DURING HIS PENALTY PHASE ELICITATION OF THE VICTIM IMPACT EVIDENCE AND SEVERAL COMPLAINTS ARE FORFEITED 250 A. The Alleged Misconduct During The Direct Examination Of Sandra Walters 252 The Alleged Misconduct In The Direct Examination Of Trip Walters 255 Vil XVI. E. TABLE OF CONTENTS(continued) Page The Alleged MisconductIn The Direct Examination Of Jan Dietrich 258 The Alleged MisconductIn The Direct Examination Of Chifford Sandberg 262 Any Misconduct Did Not Prejudice Appellant: 264 THE PROSECUTOR DID NOT COMMIT PREJUDICIAL MISCONDUCTINPENALTY PHASE OPENING STATEMENT OR SUMMATION; MANY OF APPELLANT’S CONTRARY CLAIMS ARE FORFEITED 267 A. The Prosecutor Did Not Commit Prejudicial Misconduct During Penalty Phase Opening Statement And Two Of Appellant’s Allegations Are Waived 268 The Prosecutor Did Not Prejudicially Argue Facts Not In Evidence So As To Inflame The Jury Or Engage In Speculation About The Crime During Penalty Phase Summation; Two Of Appellant’s Seven Allegations Are Otherwise Forfeited 271 The Prosecutor Did Not Prejudicially Argue Facts Not In Evidence So As To Inflame The Jury Or Engage In Speculation About Irrelevant Matters During Penalty Phase Summation 280 The Prosecutor Did Not Prejudicially Misstate The Law 282 vill XVII. XVIII. XIX. TABLE OF CONTENTS(continued) Page THE RELIGIOUS REFERENCES BY THE PROSECUTOR AND DEFENSE COUNSEL DID NOT PREJUDICE APPELLANT; APPELLANT’S CONTRARY CLAIMS ARE FORFEITED 288 A. The Law Is Well Established 289 B. Appellant Made Not A Single Objection To Any Of The Prosecutor’s Religious References C. The Prosecutor’s Religious References In Opening Penalty Phase Summation Did Not Prejudice Appellant D. Defense Counsel Responded In His Own Opening Penalty Phase Summation E. The Prosecutor’s Religious References In Rebuttal Penalty Phase Summation Did Not Prejudice Appellant F. In Rebuttal Penalty Phase Summation Defense Counsel Again Responded G. Conclusion: Still No Prejudice THE PROSECUTOR DID NOT COMMIT MISCONDUCTINARGUING APPELLANT’S FUTURE DANGEROUSNESS NO TRIAL COURT ERROR OR PROSECUTORIAL MISCONDUCT OCCURRED WITH RESPECT TO THE PROSECUTOR’S CHARTS ix 290 290 292 295 299 300 302 305 XXI. XXII. TABLE OF CONTENTS (continued) THE TRIAL COURT DID NOT ERR WHEN RESPONDING TO THE JURY’S INQUIRY REGARDING THE “LEGAL DEFINITION OF LIFE WITHOUT THE POSSIBILITY OF PAROLE”; APPELLANT’S CONTRARY CONTENTION IS FORFEITED Page 309 A. Appellant’s Present Claim Of Error Is Procedurally Barred B. The Current Claim Is Devoid Of Merit THE TRIAL COURT DID NOT ERR UNDER EITHER STATE LAW OR THE FEDERAL CONSTITUTION IN DENYING APPELLANT ALLOCUTION A. No Error Occurred B. Appellant’s Contrary Arguments All Fail NEITHER THE TRIAL COURT NOR THE PROSECUTOR PREJUDICIALLY TRANSGRESSED THE LAW GOVERNING REMORSE A. The Law In This Area Is Well Settled 311 312 314 315 315 319 319 B. Application OfThe Facts To The Law ShowsNoTrial Court Error Or Prosecutorial Misconduct C. Appellant’s Additional Arguments All Fail 320 328 TABLE OF CONTENTS (continued) Page XXII. THERE IS NO CONSTITUTIONAL REQUIREMENT THAT THE TRIAL COURT INSTRUCT THE JURY THAT THE REASONABLE DOUBT STANDARD GOVERNS THE PENALTY DETERMINATION 332 XXIV. NO CUMULATIVE ERROR REQUIRES REVERSAL OF THE DEATH JUDGMENT 335 XXV. THE TRIAL COURT DID NOT ERR_IN ANY RESPECT IN ITS CONSIDERATION OF APPELLANT’S MOTION TO MODIFY THE VERDICT 337 A. The Law And BackgroundIs Detailed 337 B. The Trial Court Did Not Make “Deficient” Aggravation Findings 342 C. The Trial Court Did Not Make “Deficient” Mitigation Findings 343 D. The Trial Court Properly Found That The Circumstances In Aggravation Outweighed The Circumstances In Mitigation 344 E. The Trial Court Did Not Improperly Rely On His Notes 346 F. The Trial Court Did Not Improperly Rely On The Probation Report 346 G. The Trial Court Made An Independent Determination On The Appropriateness Of The Death Penalty 347 XI XXVI. XXVIII. XXVIII. XXIX. XXX. TABLE OF CONTENTS (continued) DEATH-QUALIFICATION JURY VOIR DIRE PASSES MUSTER UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS CALIFORNIA’S DEATH PENALTY LAW ADEQUATELY PERFORMS THE CONSTITUTIONALLY MANDATED NARROWING FUNCTION THE COURT HAS PREVIOUSLY REJECTED ALL OF APPELLANT’S ATTACKSON THE CONSTITUTIONALITY OF CALIFORNIA’S DEATH PENALTY LAW APPELLANT’S “INTERNATIONAL LAW” CONTENTION IS NOT COGNIZABLE AND OTHERWISE MERITLESS CALIFORNIA’S STATUTORY SCHEME GIVING PROSECUTOR’S DISCRETION TO DECIDE WHICH CASES TO CHARGE AS CAPITAL CASES DOES NOT VIOLATE THE FEDERAL CONSTITUTION CONCLUSION xii Page 349 354 361 367 372 375 TABLE OF AUTHORITIES Page Cases Abbott v. Cavelli (1931) 114 Cal.App. 379 307 Adamsv. Texas (1980) 448 U.S. 38 100 S.Ct. 2521 65 L.Ed.2d 581 349 Allen v. Cupp (9th Cir. 1970) 426 F.2d 756 105 American Baptist Churches v. Meese . (N.D. Cal. 1989) 712 F.Supp. 756 - 369, 370 Apprendi v. New Jersey (2000) 530 U.S. 466 120 S.Ct. 2348 147 L.Ed.2d 435 221, 222, 226, 227, 332, 333 Arizona v. Fulminante (1991) 499 U.S. 279 111 S.Ct. 1246 113 L.Ed.2d 302 138, 300 Atkins v. Virginia (2002) 536 U.S. 304 122 S.Ct. 2242 153 L.Ed.2d 335 242. Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 242 Baxter v. Palmigiano (1976) 425 U.S. 308 96 S.Ct. 1551 47 L.Ed.2d 810 214 TABLE OF AUTHORITIES (continued) Page Berger v. United States (1935) 295 U.S. 78 55 S.Ct. 629 79 L.Ed.2d 1314 190 Berkemer v. McCarty (1984) 468 U.S. 420 104 S.Ct. 3138 82 L.Ed.2d 317 93 Blackburn v. Alabama (1960) 361 U.S. 199 80 S.Ct. 274 4 L.Ed.2d 242 100 Blakely v. Washington (2004) 542 U.S. 296 124 S.Ct. 2532 159 L.Ed.2d 403 221, 332 Booth v. Maryland (1987) 482 U.S. 496 107 S.Ct. 2529 96 L.Ed.2d 440 242 Boyde v. California (1990) 494 US. 370 110 S.Ct. 1190 108 L.Ed.2d 316 224, 311 Brady v. Maryland (1963) 373 US. 83 83 S.Ct. 1194 . 10 L.Ed.2d 215 191 i TABLE OF AUTHORITIES(continued) Page Brown v. Mississippi (1936) 297 U.S. 278 56 S.Ct. 461 80 L.Ed.2d 682 100 Buchananv. Kentucky (1987) 483 U.S. 402 107 S.Ct. 2906 . 97 L.Ed.2d 336 349, 352 Bush v. Gore (2000) 531 U.S. 98 121 S.Ct. 525 148 L.Ed.2d 388 351, 373,374 California v. Beheler (1982) 463 U.S. 1121 103 S.Ct. 3517 77 L.Ed.2d 1275 93 California v. Hodari D. (1991) 499 US. 621 111 S.Ct. 1147 113 S.Ct. 690 93 California v. Ramos (1993) 463 U.S. 992 103 S.Ct. 3446 77 L.Ed.2d 1171 358 Chapmanv. California (1967) 386 U.S. 18 87 S.Ct. 824 17 L.Ed.2d 705 88, 138, 240, 264, 292, 296, 300-302, 315 ill TABLE OF AUTHORITIES (continued) Page Clemons v. Mississippi (1990) 494 U.S. 738 110 S.Ct. 1441 108 L.Ed.2d 725. - 363 Colorado v. Connelly (1986) 479 U.S. 157 107 S.Ct. 515 93 L.Ed.2d 473 100, 123 Davis v. United States (1994) 512 U.S. 452 114 S.Ct. 2350 129 L.Ed.2d 362 125 Donnelly v. DeChristoforo (1974) 416 U.S. 637 191, 285, 287 Draper v. Washington (1963) 372 U.S. 487 83 S.Ct. 774 9 L.Ed.2d 899 50 Dreyfus v. Von Finck (2d Cir. 1976) 534 F.2d 24 369 Edwards v. Arizona (1981) 451 U.S. 477 101 S.Ct. 1880 68 L.Ed.2d 378 102 Estelle v. McGuire (1991) 502 U.S. 62 112 S.Ct. 475 116 L.Ed. 385 237,311 1V TABLE OF AUTHORITIES(continued) Florida v. Jimeno (1991) 500 U.S. 248 111 S.Ct. 1801 114 L.Ed.2d 297 Francis v. Franklin (1985) 471 U.S. 307 105 S.Ct. 1965 85 L.Ed.2d 344 Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370 Furman v. Georgia (1972) 408 U.S. 238 92 S.Ct. 2726 33 L.Ed.2d 346 Geders v. United States (1976) 425 US. 80 96 S.Ct. 1330 47 L.Ed.2d 592 Gideon v. Wainwright (1963) 372 U.S. 335 83 S.Ct. 792 9 L.Ed.2d 799 Green v. United States (1961) 365 US.301 81 S.Ct. 653 5 L.Ed.2d 670 Greer v. Miller (1987) 483 U.S. 756 107 S.Ct. 3102 97 L.Ed.2d 618 Page 95, 96 211 369 354-356, 358, 360 163 300 315, 316 237, 240 TABLE OF AUTHORITIES(continued) Gregg v. Georgia (1976) 428 U.S. 153 96 S.Ct. 2909 49 L.Ed.2d 859 Griffin v. California (1965) 380 U.S. 609 85 S.Ct. 1229 14 L.Ed.2d 106 Griffin v. Illinois: (1956) 351 U.S. 12 76 S.Ct. 585 100 L.Ed.2d 891 Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542 Harris v. Pulley (9th Cir. 1982) 692 F.2d 1189 Harris v. Reed (1989) 489 U.S. 255 109 S.Ct. 1038 103 L.Ed.2d 308 Hovey v. Superior Court (1980) 28 Cal.3d 1 In re Arturo D. (2002) 27 Cal.4th 60 In re Lance W. (1985) 37 Cal.3d 873 In re Lucas (2004) 33 Cal.4th 682 vi Page 356, 358 213, 214, 324 50 368, 370 363 124 349, 351 129 95 218 TABLE OF AUTHORITIES (continued) Page In re ShannonB. (1994) 22 Cal.App.4th 1235 317 Jackson v. Denno (1964) 378 U.S. 368 84 S.Ct. 1774 12 L.Ed.2d 908 100 Jackson v. Virginia (1979) 443 U.S. 307 99 S.Ct. 2781 61 L.Ed.2d 560 171 Lisenba v. California (1941) 314 U.S. 219 62 S.Ct. 280 86 L.Ed.116 237 Lockett v. Ohio (1978) 438 U.S. 586 98 S.Ct. 2954 57 L.Ed.2d 973 357, 358 Lockhart v. McCree (1986) 476 U.S. 162 106 S.Ct. 1758 90 L.Ed.2d 137 351, 352 Mansfield v. State (Fla. 2005) 911 So.2d 1160 222 Matta-Ballesteros v. Henman (7th Cir. 1990) 896 F.2d 255 368 McCleskey v. Kemp (1987) 481 U.S. 279 107 S.Ct. 1756 95 L.Ed.2d 262 358 vil TABLE OF AUTHORITIES (continued) McKaskle v. Wiggins (1984) 465 U.S. 168 104 S.Ct. 944 79 L.Ed.2d 122 Miranda v. Arizona (1966) 384 U.S. 436 86 S.Ct. 1602 16 L.Ed.2d 694 Morganv.Illinois (1992) 504 U.S. 719 112 S.Ct. 2222 119 L.Ed.2d 492 Nix v. Williams (1984) 467 U.S. 431 104 S.Ct. 2501 81 L.Ed.2d 377 Payne v. Tennessee (1991) 501 U.S. 808 111 S.Ct. 2597 115 L.Ed.2d 720 People v. Anderson (1966) 64 Cal.2d 633 People v. Anderson (1968) 70 Cal.2d 15 People v. Anderson (2001) 25 Cal.4th 543 People v. Arias (1996) 13 Cal.4th 92 Page 300 92-94, 100, 101, 119, 120, 124, 125, 131, 137 140 107 241-243, 246 331 172, 181 239, 333 356 Vill TABLE OF AUTHORITIES(continued) People v. Ashmus (1991) 54 Cal.3d 932 People v. Atchley (1959) 53 Cal.2d 160 People v. Avena (1996) 13 Cal.4th 394 People v. Avila (2006) 38 Cal.4th 491 People v. Balderas (1985) 41 Cal.3d 144 People v. Barnes (1986) 42 Cal.3d 284 | People v. Barnett (1998) 17 Cal.4th 1044 People v. Barton (1995) 12 Cal.4th 186 People v. Bell (1989) 49 Cal.3d 502 People v. Bell (1996) 43 Cal.App.4th 754 People v. Belmontes (1988) 45 Cal.3d 744 People v. Bemore (2000) 22 Cal.4th 809 People v. Benson (1990) 52 Cal.3d 754 ix Page 240, 264 100 351 88, 89, 162, 187, 238 364 136 191, 362, 363, 372 236 282 91,92 363 362 122, 123, 272 TABLE OF AUTHORITIES(continued) People v. Berryman (1993) 6 Cal.4th 1048 People v. Blair (2005) 36 Cal.4th 686 People v. Bohana (2000) 84 Cal.App.4th 360 People v. Bolden (2002) 29 Cal.4th 515 People v. Bolin (1998) 18 Cal.4th 297 People v. Bonillas (1989) 48 Cal.3d 757 People v. Boyd (1985) 38 Cal.3d 762 People v. Boyette (2002) 29 Cal.4th 381 People v. Bradford (1997) 14 Cal.4th 1005 People v. Bradford (1997) 15 Cal.4th 1229 People v. Braeseke (1979) 25 Cal.3d 691 People v. Brito (1991) 232 Cal.App.3d 316 People v. Brown (1988) 46 Cal.3d 432 Page 339 365, 371 312 362, 363, 368 172, 363 338 319, 320 243, 245, 366 290 140, 165-168 101 176 239, 240, 264, 302, 315 TABLE OF AUTHORITIES (continued) People v. Brown (1998) 62 Cal.App.4th 493 People v. Brown (2004) 33 Cal.4th 382 People v. Burgener (2003) 29 Cal.4th 833 People v. Cahill (1994) 22 Cal.App. 4th 296 People v. Cain (1995) 10 Cal.4th 1 People v. Carpenter (1997) 15 Cal.4th 312 People v. Carpenter (1999) 21 Cal.4th 1016 People v. Carrera (1989) 49 Cal.3d 291 People v. Cash (2002) 28 Cal.4th 703 People v. Catlin (2001) 26 Cal.4th 81 People v. Champion (1995) 9 Cal.4th 879 People v. Chatman (2006) 38 Cal.4th 344 People v. Clair (1992) 2 Cal.4th 629 Xi Page 91 244 332 136 191, 328 248, 367 363 353 140 353 303 224 191, 285, 323, 332 TABLE OF AUTHORITIES (continued) People v. Clark (1993) 5 Cal.4th 950 People v. Coddington (2000) 23 Cal.4th 529 People v. Cole (2004) 33 Cal.4th 1158 People v. Coleman (1969) 71 Cal.2d 1159 People v. Cook (2006) 39 Cal.4th 566 People v. Cooper (1991) 53 Cal.3d 771 People v. Cox (1991) 53 Cal.3d 618 People v. Cox (2003) 30 Cal.4th 916 People v. Craig (1957) 49 Cal.2d 313 People v. Crittenden (1994) 9 Cal.4th 83 Peoplev. Cross (1963) 213 Cal.App.2d 678 People v. Cuevas (1995) 12 Cal.4th 252 People v. Cummings (1993) 4 Cal.4th 1233 Xi | Page 107, 248 254 226 319, 320 75 338 319 333 181 122, 127, 131, 139, 363 317 215 51, 75, 352 TABLE OF AUTHORITIES (continued) People v. Cunningham (2001) 25 Cal.4th 926 People v. Danielson (1992) 3 Cal.4th 691 People v. Danks (2004) 32 Cal.4th 269 People v. Davenport — (1985) 41 Cal.3d 247 People v. Davenport (1995) 11 Cal.4th 1171 People v. Davis (1995) 10 Cal.4th 463 People v. Davis (2005) 36 Cal.4th 510 People v. Dennis (1998) 17 Cal.4th 468 People v. Diaz (1992) 3 Cal.4th 495 People v. Dickey (2005) 35 Cal.4th 884 People v. Ditson (1962) 57 Cal.2d 415 People v. Dunkle (2005) 36 Cal.4th 861 People v. Edelbacher (1989) 47 Cal.3d 983 Page 139, 156, 345 365 363 305 194, 196, 315, 364 238 222, 365 344 182 332, 333, 356, 362, 363, 368, 372 100 363 187, 354 Xlil TABLE OF AUTHORITIES (continued) People v. Edwards (1991) 54 Cal.3d 787 People v. Elliot (2005) 37 Cal.4th 453 People v. Ervin (2000) 22 Cal.4th 48 People v. Espinoza (1992) 3 Cal.4th 806 People v. Failla (1966) 64 Cal.2d 560 People v. Farnam (2002) 28 Cal.4th 107 People v. Fauber (1992) 2 Cal.4th 792 People v. Fierro (1991) 1 Cal.4th 173 People v. Frierson (1979) 25 Cal.3d 142 People v. Frye (1998) 18 Cal.4th 894 People v. Gardner (1969) 71 Cal.2d 843 People v. Ghent (1987) 43 Cal.3d 773 People v. Gionis (1995) 9 Cal.4th 1196 XIV Page 242, 243, 245 363 289, 290, 296 267, 270 182, 222 199, 200, 213, 345, 346, 355 218, 363 310 363 passim 331 319, 364, 371 267, 270 TABLE OF AUTHORITIES (continued) Page People v. Glaser (1995) 11 Cal.4th 354 95 People v. Gonzalez (1990) 51 Cal.3d 1179 320, 326 People v. Gonzalez (2006) 38 Cal.4th 932 239, 240 People v. Granados (1957) 49 Cal.2d 490 181 People v. Gray (2005) 37 Cal.4th 168 363 People v. Green (1980) 27 Cal.3d 1 124 People v. Griffin (2001) 90 Cal.App.4th 741 222 People v. Griffin (2004) 33 Cal.4th 536 159, 165-167, 356 People v. Gurule (2002) 28 Cal.4th 557 351, 353, 356 People v. Gutierrez (2002) 28 Cal.4th 1083 332 People v. Harris _ (2005) 37 Cal.App.4th 310 208, 246 People v. Hart (1999) 20 Cal.4th 546 192, 198, 199, 202, 203, 207, 248, 249, 363 People v. Haskett (1982) 30 Cal.3d 841 175, 372, 373 XV TABLE OF AUTHORITIES (continued) People v. Hawkins (1995) 10 Cal.4th 920 People v. Hawthorne (1992) 4 Cal.4th 43 People v. Hayes (1990) 52 Cal.3d 577 People v. Heard (2002) 31 Cal.4th 946 People v. Hill (1992) 3 Cal.4th 959 People v. Hill (1998) 17 Cal.4th 800 People v. Holloway (2004) 33 Cal.4th 96 People v. Holt (1997) 15 Cal.4th 619 People v. Hood (1969) 1 Cal.3d 444 People v. Howard (1992) 1 Cal.4th 1132 People v. Huggins (2006) 38 Cal.4th 175 People v. Hughes (2002) 27 Cal.4th 287 People v. Ireland (1969) 70 Cal.2d 522 Xvi . Page 276 51, 344 362, 363 139, 140 140, 342 191, 263, 287, 290, 298 226 124, 130, 137, 339 330 50, 51, 75, 77 244 227 183 TABLE OF AUTHORITIES (continued) People v. Jackson (1980) 28 Cal.3d 264 People v. Jackson (1996) 13 Cal.4th 1164 People v. Jenkins (2000) 22 Cal.4th 900 People v. Jennings (1988) 46 Cal.3d 963 People v. Jennings (1991) 53 Cal.3d 334 People v. Johnson (1980) 26 Cal.3d 557 People v. Johnson (1989)] 47 Cal.3d 1194 People v. Johnson (1992) 3 Cal.4th 1183 People v. Johnson (1993) 6 Cal.4th 1 People v. Jones (1997) 15 Cal.4th 119 People v. Jurado (2006) 38 Cal.4th 72 People v. Kaurish (1990) 52 Cal.3d 648 People v. Keenan (1988) 46 Cal.3d 478 Page 363 226, 352, 353 362, 363, 368 338 226 3,171 353 363 138, 181 265, 308, 313, 324, 364 224, 226, 244, 247 357 315, 316, 320, 329, 331, 373 XVil TABLE OF AUTHORITIES (continued) Page People v. Kelly (1992) 1 Cal.4th 495 226 People v. Kipp (1998) 18 Cal.4th 349 312 People v. Kipp (2001) 26 Cal.4th 1100 366 People v. Kirkpatrick (1994) 7 Cal.4th 988 140, 372 People v. Koontz (2002) 27 Cal.4th 1041 356 People v. Kraft (2000) 23 Cal.4th 978 363, 364 People v. Lawler (1973) 9 Cal.3d 156 97 People v. Lenart (2004) 32 Cal.4th 1107 289, 296, 300 People v. Lewis and Oliver (2006) 39 Cal.4th 970 245 People v. Lewis (1990) 50 Cal.3d 262 © 346, 347 People v. Lewis (2001) 25 Cal.4th 610 171, 329 People v. Lewis (2001) 26 Cal.4th 334 220, 356, 363 Peoplev. Livaditis (1992) 2 Cal.4th 759 347 XVIll TABLE OF AUTHORITIES (continued) Page People v. Lucero (2000) 23 Cal.4th 692 317 People v. Markham (1989) 49 Cal.3d 63 123 People v. Marshall (1990) 50 Cal.3d 907 338 People v. Massie (1998) 19 Cal.4th 550 317 People v. Maury (2004) 30 Cal.4th 342 372 People v. Mayfield (1997) 14 Cal.4th 668 172, 174 People v. McPeters (1992) 2 Cal.4th 1148 222 People v. Medina (1995) 11 Cal.4th 694 361, 364 People v. Memro (1995) 11 Cal.4th 786 339 People v. Mendoza (2000) 24 Cal.4th 130 364 People v. Michaels (2002) 28 Cal.4th, 486 © 303 People v. Mickey (1991) 54 Cal.3d 612 93, 94, 102, 122, 123, 127, 182, 226, 229 People v. Millwee (1998) 18 Cal.4th 96 268 xix TABLE OF AUTHORITIES (continued) Page People v. Milner (1988) 45 Cal.3d 227 124, 130, 137 People v. Mincey (1992) 2 Cal.4th 408 139, 363 People v. Miranda (1987) 44 Cal.3d 57 174, 247, 249 People v. Montiel (1993) 5 Cal.4th 877 passim People v.Moon (2005) 37 Cal.4th 1 365 People v. Morales (1989) 48 Cal.3d 527 364 People v. Morris (1988) 46 Cal.3d 1 182 People v. Morris (1991) 53 Cal.3d 152 93 People v. Morrison (2004) 34 Cal.4th 698 356 People v. Murtishaw (1981) 29 Cal.3d 733 . 302, 303 People v. Musselwhite (1998) 17 Cal.4th 1216 . 131 People v. Nakahara (2003) 30 Cal.4th 705 221 People v. Natale (1978) 77 Cal.App.3d 568 94 KX TABLE OF AUTHORITIES (continued) People v. Navarette (2003) 30 Cal.4th 458 People v. Nicolaus (1991) 54 Cal.3d 551 People v. Ochoa (2001) 26 Cal.4th 398 People v. Osband (1996) 13 Cal.4th 622 People v. Padilla (1995) 11 Cal.4th 891 People v. Panah (2005) 35 Cal.4th 395 People v. Partida (2005) 37 Cal.4th 428 People v. Peevey (1998) 17 Cal.4th 1184 People v. Pensinger (1991) 52 Cal.3d 1210 People v. Phillips (1985) 41 Cal.3d 29 People v. Pinholster (1992) 1 Cal.4th 865 People v. Pollock (2004) 32 Cal.4th 1153 People v. Pompa-Ortiz (1980) 27 Cal.3d 519 XX Page 145 315 140, 191, 235, 356, 362, 363, 366 209, 361 191, 287 246, 364-366 88, 162, 187, 238, 239 100 213 233-235, 239, 240 75, 76, 144, 145, 153 245 73 TABLE OF AUTHORITIES (continued) Page People v. Pride (1992) 3 Cal. 4th 195 172, 248 People v. Ramos . (1984) 37 Cal.3d 136 310 People v. Ray (1996) 13 Cal.4th 313 135, 238 People v. Redmond (1969) 71 Cal.2d 745 — 171 People v. Renteria (1992) 2 Cal.App.4th 440 97 People v. Reza . (1981) 121 Cal.App.3d 129 230 People v. Riel (2000) 22 Cal.4th 1153 211, 342 People v. Risenhoover (1968) 70 Cal.2d 39 338 People v. Rivera (1992) 8 Cal.App.4th 1000 90 People v. Robarge (1953) 41 Cal.2d 628 338 People v. Robbins (1988) 45 Cal.3d 867 315 People v. Robinson (2005) 37 Cal.4th 592 334 People v. Rodrigues (1994) 8 Cal.4th 1060 163, 245 XXil TABLE OF AUTHORITIES (continued) People v. Rodriguez (1986) 42 Cal.3d 730 People v. Rogers (1978) 21 Cal.3d 542 People v. Roldan (2005) 35 Cal.4th 646 People v. Rowland (1992) 4 Cal.4th 238 People v. Roybal (1998) 19 Cal.4th 481 People v. Russo (2001) 25 Cal.4th 1124 People v. Salinas (1982) 131 Cal.App.3d 925 People v. Samoyoa (1997) 15 Cal.4th 795 People v. Sanchez (1977) 72 Cal.App.3d 356 People v. Sanchez (1995) 12 Cal.4th 1 People v. Sanders (1995) 11 Cal.4th 475 People v. Sandoval (1992) 4 Cal.4th 155 People v. Sapp (2003) 31 Cal.4th 240 Page 332, 339 89, 91, 92, 99, 102, 103, 245 153, 158, 289, 290, 356, 365, 366, 371 367 289, 292 222, 94 363 317. 174 242, 361, 364 289, 292, 296, 301 362 XXill TABLE OF AUTHORITIES (continued) People v. Seaton (2001) 26 Cal.4th 598 Peoplev. Silva (2001) 25 Cal.4th 345 People v. Slaughter (2002) 27 Cal.4th 1187 People v. Smith (2005) 35 Cal.4th 334 People v. Smithey (1999) 20 Cal.4th 936 People v. Snow (2003) 30 Cal.4th 43 People v. Stanley (1995) 10 Cal.4th 764 People v. Steele _ (2002) 27 Cal.4th 1230 People v. Stewart (1985) 171 Cal.App.3d 59 People v. Stitely (2005) 35 Cal. 4th 514 People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665 People v. Taylor (1986) 178 Cal.App.3d 217 People v. Taylor (1990) 52 Cal.3d 719 XXIV Page 71, 72 182 277, 279 362 263, 284, 312 332, 333 169, 353 174, 176, 348, 352 170 362, 366 107 94 363 TABLE OF AUTHORITIES (continued) Page People v. Thomas (1992) 2 Cal.4th 489 88, 187, 206, 239, 254, 268, 272, 276, 326 People v. Thompson (1980) 27 Cal.3d 303 100 People v. Thompson (1988) 45 Cal.3d 86 209, 211, 310 People v. Towler (1982) 31 Cal.3d 105 171 People v. Turner (1994) 8 Cal.4th 137 361, 364 People v. Valdez (1986) 177 Cal.App.3d 680 159, 163 People v. Valdez (2004) 32 Cal.4th 73 202, 255-257, 263 People v. Vieira (2005) 35 Cal.4th 264 . 359 People v. Visciotti (1992) 2 Cal.4th 1 249 People v. Wader (1993) 5 Cal.4th 610 356 People v. Walker (1988) 47 Cal.3d 605 234 People v. Warren (1984) 152 Cal.App.3d 991 91 People v. Wash (1993) 6 Cal.4th 215 122, 194, 265, 282, 288, 290, 292, 308, 313, 325 XXV TABLE OF AUTHORITIES (continued) Page People v. Watkins (1994) 26 Cal.App.4th 19 89, 91, 92, 99, 103. People v. Welch (1999) 20 Cal.4th 701 213 People v. Wells (1996) 12 Cal.4th 979 373 People v. Wharton (1991) 53 Cal.3d 522 272, 279 People v. Whitson (1998) 17 Cal.4th 229 123 People v. Whitt (1990) 51 Cal.3d 620 310, 312 People v. Wickersham (1982) 32 Cal.3d 307 236 People v. Wiley (1976) 57 Cal.App.3d 149 317 People v. Williams (1988) 45 Cal.3d 1268 97 People v. Williams (1995) 40 Cal.App.4th 446 174 People v. Williams (1997) 16 Cal.4th 635 101, 168, 366 People v. Wilson (1967) 66 Cal.2d 749 330 People v. Wilson (1992) 3 Cal.4th 926 187, 226 XXV1 TABLE OF AUTHORITIES (continued) People v. Wrest (1992) 3 Cal.4th 1088 People v. Wright (1990) 52 Cal.3d 367 People v. Yoder (1979) 100 Cal.App.3d 333 People v. Yu (1983) 143 Cal.App.3d 358 People v. Zapien (1993) 4 Cal.4th 929 Portuondo v. Agard (2000) 529 U.S. 61 120 S.Ct. 119 146 L.Ed.2d 47 Price v. Kramer (9th Cir. 2000) 200 F.3d 1237 Pulley v. Harris (1984) 465 U.S. 37 104 S.Ct. 871 79 L.Ed.2d 29 Ring v. Arizona (2002) 536 U.S. 584 122 S.Ct. 2428 153 L.Ed.2d 556 Ross v. Superior Court (1977) 19 Cal.3d 899 XXVil Page 194 364 308, 313 238 364 214 218 363 221, 226, 242, 332, 333 347 TABLE OF AUTHORITIES (continued) Page Schad v. Arizona (1991) 501 U.S. 630 111 S.Ct. 2491 115 L.Ed.2d 555 221 Schneckloth v. Bustamonte (1973) 412 U.S. 218 93 S.Ct. 2041 36 L.Ed.2d 854 94 Sei Fujii v. State ofCalifornia (1952) 38 Cal.2d 718 369 Simmonsv. South Carolina (1994) 512 U.S. 154 114 S.Ct. 2187 129 L.Ed.2d 133 311, 313 Smith v. Balkcom (Sth Cir. 1981) 660 F.2d 573 357 Smith v. Balkcom (Sth Cir. 1984) 671 F.2d 858 357 Spears v. Mullin (10th Cir. 2003) 343 F.3d 1215 222 Stanford v. Kentucky (1989) 492 U.S. 361 109 S.Ct. 2969 106 L.Ed.2d 306 370 State v. Lovelace (Idaho 2004) 90 P.3d 298 222 State v. Tucker (Ariz. 2003) 68 P.3d 110 222 XXVill TABLE OF AUTHORITIES(continued) Page Sullivan v. Louisiana (1993) 508 U.S. 275 113 S.Ct. 2078 124 L.Ed.2d 182 . 301 The Paquete Habana (1900) 175 U.S. 677 44 L.Ed. 320 20 S.Ct. 290 370 Tuliaepa v. California (1994) 512 U.S. 967 114 S.Ct. 2630 129 L.Ed.2d 750 357, 358 Tumey v. Ohio (1927) 273 U.S. 510 47 S.Ct. 437 71 L.Ed. 749 300 United States ex rel. Lujan v. Gengler (2d Cir. 1975) 510 F.2d 62 368 United States v. Antoine (9th Cir. 1990) 906 F.2d 1379 77 United States v. Bacall | (9th Cir. 1971) 443 F.2d 1050 104, 105 United States v. Booker (2005) 543 U.S. 220 125 S.Ct. 738 160 L.Ed.2d 621 - 221,332 United States v. Brand (1st Cir. 1996) 80 F.3d 560 77 XX1X TABLE OF AUTHORITIES(continued) United States v. Drayton (2002) 536 U.S. 194 122 S.Ct. 2105 153 L.Ed.2d 242 United States v. Gallo (6th Cir. 1985) 763 F.2d 1504 United States v. Hernandez (5th Cir. 1978) 574 F.2d 1362 United States v. Kelly (8th Cir. 1999) 167 F.3d 436 United States v. Perez (9th Cir. 1994) 37 F.3d 510 United States v. Purry (D.C.Cir. 1976) 545 F.2d 217 United States v. Robinson (1988) 485 U.S.25 108 S.Ct. 864 99 L.Ed.2d 23 United States v. Shabazz (Sth Cir. 1993) 993 F.2d 431 United States v. Sierra (3rd Cir. 1992) 981 F.2d 123 United States v. Wallace (9th Cir. 1988) 848 F.2d 1464 United States v. Zabaneh (Sth Cir. 1988) 837 F.2d 1249 XXX Page 94 77 132 77 91 94 214 91 77 132 368 TABLE OF AUTHORITIES (continued) Page Vasquez v. Hillery (1986) 474 U.S. 254 106 S.Ct. 617 88 L.Ed.2d 598 | 300 Wainwright v. Sykes (1977) 433 U.S. 72 97 S.Ct. 2497 53 L.Ed.2d 594 | 124 Wainwright v. Witt (1985) 469 U.S. 412 105 S.Ct. 844 83 L.Ed.2d 841 139, 349 Waller v. Georgia (1984) 467 U.S. 39 104 S.Ct. 2210 81 L.Ed.2d31 300 Watson v. State (Tex. Crim. 1988) 762 S.W.2d 591 132, 133 Wong Sun v. United States (1963) 371 U.S. 471 83 S.Ct. 407 9 L.Ed.2d 441 78, 106 Zant v. Stephens (1983) 462 U.S. 862 103 S.Ct. 2733 77 L.Ed.2d 235 355 XXXi TABLE OF AUTHORITIES (continued) Constitutional Provisions California Constitution article I article I, § 7 article I, § 15 articlel, § 16 article I, § 17 article I, § 28, subd. (d) United States Constituion Fourth Amendment Fifth Amendment Sixth Amendment Eighth Amendment Fourteenth Amendment United States Constitution article VI, § 2 Statutes Evidence Code § 210 § 350 § 352 § 353 § 777 § 777, subd.(a) § 780 § 1101 Page passim 75 75 75 75 100 78, 87, 89, 91, 93, 95, 96 passim passim passim passim 368 191, 203, 215 191 245 88, 124, 239, 245, 257 159, 161, 162, 168, 169 : 159 215 187 XXXil TABLE OF AUTHORITIES (continued) Penal Code § 187 § 187, subd.(a) § 190.2, subd. (a)(17) § 190.2, subd. (a)(17)(G) § 190.3 § 190.3, factor (a) § 190.3, factor (b) § 190.3, factor (c) § 190.3, factor (d) -§ 190.3, factor (1) § 190.3, factor (k) § 190.3, factors (a)-(k) § 190.4 § 190.4, subd. (e) § 190.9 § 190.9, subd. (a) § 190.9, subd. (a)(1) § 220 § 245, subd.(a)(1) § 459 § 1044 § 1102.6 § 1200 § 1202 § 1203, subd. (b) § 1203.075 § 12022 subd.(b) § 12022.7 Title 28 United States Code § 2254, subd. (a) 170, 247, 319, 339, 342, 359, 364 242, 286, 320, 326, 328, 342, 361, 362 232, 234, 238, 239, 286 364 364 364 364 320 340 337-339, 345, 347 51 St 51 1-3 108 1, 108, 222 192 159, 161, 162, 165, 166, 168, 169 317, 318 215 346 1 1-3 1 124 XXXill TABLE OF AUTHORITIES (continued) Page Court Rules California Rules of Court rule 7 51 rule 28 342 tule 31(b)(11) 119 rule 34.1(a)(1)(A) 119 tule 243.9(a) 119 Other Authorities California Jury Instructions, Criminal No. 2.01 226 No.2.02 227 No. 2.03 223, 225 No.2.04 223, 225 No. 2.52 223, 225 No. 4.21 228 No.8.10 178 No. 8.11 178 No.8.20 178 No.8.83 227 No.8.83.1 227 No. 8.84 309 No.8.85 232, 365 No. 8.88 309, 365, 366 Federal Criminal Rule tule 32(a) 316 Proposition 8 95 Schatz and Rivkin, The California Death Penalty: Requiem for Furman? (1997) 72 N.Y.U. L.Rev. 1283 355-359 XXXIV TABLE OF AUTHORITIES (continued) Page Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights (1992) S.Exec.Rep. No. 23, 102nd Cong., 2nd Sess 369 XXXV IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, CAPITAL vs CASE RICHARD TULLY, S030402 Defendant and Appellant. STATEMENT OF THE CASE By information filed December 1, 1987, in the Alameda County Superior Court, the district attorney charged appellantRichard Christopher Tully in count 1 with murder (Pen. Code, § 187)’ Attendant to count 1 the information alleged the following special circumstance: that appellant committed the murder while engaged in the commission of burglary, or the attempted commission andflight thereafter of burglary (§ 190.2, subd. (a)(17)). (6 CT 1539.) Also attendant to count | the information alleged that during the commission of the murder appellant personally used a knife (§ 12022, subd. (b)) and inflicted great bodily injury on his victim (§ 1203.075). (6 CT 1539- 1540.) The information charged appellant in count 2 with burglary (§ 459), and in count 3 with assault with intent to commit rape (§ 220). Attendant to both counts 2 and 3 the information alleged that appellant inflicted great bodily injury on his victim (§§ 1203.075, 12022.7), and count 3 added a knife-use enhancement (§ 12022, subd. (b)). (6 CT 1540-1541.) At arraignment on February 29, 1988, appellant pleaded not guilty and 1. Hereinafter, unless otherwisestated,all statutory referencesare to the Penal Code. denied both the special circumstance and enhancementallegations. (6 CT 1542, 1548.) On June 10, 1989,the trial court granted the prosecution’s motion to amend the informationbystriking the count 1 great-bodily-injury allegation, the count 2 burglary charge (and accompanying GBIallegation), and redesignating the count 3 charge ofassault with intent to commit rape as count 2. (6 CT 1542; 7 CT 1826.) | Jury voir dire began on June 22, 1992. (7 CT 1877; 2 RT 341.) The presentation of evidencein the guilt phase commenced on July 28, 1992 (8 CT 1932; 10 RT 2007), and ended on August 14, 1992 (8 CT 1974; 14 RT 2982- 2983; 15 RT 3016). Additionally on August 14, 1992,the trial court granted the prosecution’s motion to dismiss the GBIallegation attendant to count 2. (8 CT 1974; 15 RT 3017.) The jury returned its guilt phase verdict on August 18, 1992, finding appellant guilty of first degree murder on count 1 (§ 187, subd.(a)), and also finding true the attendant burglary-murderspecial circumstance (§ 190.2, subd. (a)(17)), and the use-of-a-weapon enhancementallegation (§ 12022, subd.(b)). - The jury additionally found appellant guilty on the count 2 charge of assault with intent to commit rape (§ 220), and found the knife-use enhancement allegation true (§ 12022, subd. (b)). (8 CT 1979-1983; 16 RT 3263-3266.) ‘The presentation of evidence in the penalty phase began on September3, 1992 (8 CT 2005; 16 RT 3412), and ended on September 11, 1992 (8 CT 2019; 17 RT 3620). The jury returned its verdict on September 21, 1992, fixing appellant’s punishment at death. (9 CT 2130; 18 RT 3900-3903.) On December4, 1992,thetrial court denied appellant’s motion to modify the judgment (§ 190.4). The court thereafter imposed the death judgment on the count 1 murder conviction (§ 187), and sentenced appellant to a determinate four-yearprison term on the count 2 conviction of assault with intent to commit rape (Pen. Code, § 220), plus a consecutive term oftwo years on thefinding that during the assault appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)). The court then stayedthat six-year term, as well as the one-year term it had imposed on the jury’s finding that during the commission of the murderappellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)). (9 CT 2146-2154; 18 RT 3906-3919.) STATEMENT OF FACTS The facts are presented as this court must view them-—in the light most favorable to thejudgment. (People v. Johnson (1980) 26 Cal.3d 557, 575-579.) Hence,all inferences and intendments are drawnin the prosecution’s favor, and all conflicts and ambiguities in the evidence are presumed resolved in the prosecution’s favor as well. (/bid.) Appellant, Sandy Olsson, And Hollyhock Street In Livermore In the winter of 1985, the then 26-year-old appellant moved in with John Chandler at 1572 Hollyhock Street in Livermore, two doors down from where Sandy Olsson lived. (13 RT 2503-2504.) Appellant had been recently discharged from the MarineCorps. (13 RT 2532.) He subsequently lived with Chandler “offand on.” (13 RT 2503-2504, 2534.) Appellant was five feet six inchestall, and weighed 160 pounds. (Exh. 9C at p. 15.) Because Chandler had beenseriously dating appellant’s mother for manyyears, he andappellant were “almost like father and son.” (13 RT 2501-2503.) Chandler told authorities that sometime around September 1985 he was with appellant when appellant picked up a hunting license and purchased a Buck 110 knife. (14 RT 2854-2855.)” The hunting license was dated August 19, 1985. (14 RT 2528.) Asfor Chandler and Olsson,in thetime they were neighbors they spoke to each other only once, for about 10 minutes. Chandler accidentally broke one ofOlsson’s house windowswith a golfball and he went to her hometo explain what had happened. (13 RT 2504-2505.) Chandler never told appellant about this incident. (13 RT 2506.) In early 1986 Sandy Olsson was 59 years old. (14 RT 2780-2781.) She lived alone for most of the year and worked as a registered nurse at the — Veteran’s Administration Medical Center in Livermore, where she had numerousresponsibilities. (10 RT 2007-2012, 2019, 2022; 14 RT 2780-2782, 2792-2793, 2825.) The backyard ofOlsson’s homeat 1556 Hollyhock opened on to Springtown Golf Course. (10 RT 2031; 11 RT 2094, 2103-2104, 2126, 2209; 12 RT 2296; 13 RT 2642.) Typically Olsson worked Monday through Friday from either 7:00 or 7:30 a.m. to 4:00 p.m., and sometimes on weekends. (10 RT 2013-2014; 14 RT 2782, 2807.) On the days that her shift ended at 4:00 p.m. Olsson would arrive home at about 4:30 p.m. She would enter through the front door, and then shut, lock, and chain the door behind her. (14 RT 2783, 2788, 2823.) She would typically walk directly to her bedroom,put her purse on the dresser, and change someofher clothes. (14 RT 2783-2784, 2808-2809.) She next typically walked into the kitchen and pouredherself a Coke with a small amount of bourbon mixedin. (14 RT 2784-2785, 2808, 2817.) Olsson boughtlarge quantities of both Coca-Cola and bourbon when she foundit on sale. (14 RT 2809, 2821.) 2. At trial Chandler denied this. (13 RT 2526-2528.) Hetestified as follows: “I said we went, we bought a hunting license, and we stopped at Don’s Surplus, and we went over to K-Mart and looked for some binoculars. I could not pinpoint which place he boughta knife, if he bought one. I could not remember him buying one. That’s why I couldn’t pinpoint when he bought it, if he did, if he boughtit.” (13 RT 2527.) 4 Olsson’s father, Clifford Sandberg, who was widowedin 1982, regularly arrived from his home in Topekato stay with Olsson from the end of October to the beginning of March. (14 RT 2780-2782, 2792-2793.) When he stayed with her, he cooked, cleaned, washed and folded clothes, and did odd jobs around the house. (14 RT 2786-2787, 2792.) When he did the wash, he usually washed twopairs ofmen’s flannel pajamas,both his and his daughter’s. (14 RT 2787.) According to Sandberg, he and Olsson would eat dinner together and afterwards watch television together. (14 RT 2785.) When Sandberg sometimes asked Olsson in the eveningifshe wantedto go outfor a walk or do somethingelse,she typically declined,citing fatigue from work. (14 RT 2787-2788.) Instead Olsson wouldretire to her bedroom with a bourbon- and-coke drink and read her mail, magazines, and the newspaper. Sandberg would go to his room and read. (14 RT 2785-2786, 2816.) On Sundays, father and daughter wentto church together. (14 RT 2797.) Olsson’s daughter, Sandra Walters,talked to her mother onthe phoneonce a week, and spent the weekend with her once a month. (14 RT 2807, 2820- 2821, 2829, 2831.) If Olsson was working, after work they wouldsit andtalk, take Walters’s dog for a walk, make dinner, or go out to dinner and shop. (14 RT 2810.) If they went out, they would be homebefore 8:00 p.m., andthensit and talk or watch TV. (RT 2810.) At the end of each night Olsson walked through her house and madesurethatall the windows and doors were locked. (14 RT 2823-2824.) Olsson routinely went to bed anywhere from between 9:00 p.m. to 10:00 p.m. (14 RT 2810, 2814.) Olsson was a very modest woman who wore flannel pajamas to bed because she always felt cold. She also woreeither a very tattered brownorblueterry cloth men’s robe. (14 RT 2797-2798; 2814-2817.) Olsson often fell asleep while reading. When Walters stayed over, she would turn off her mother’s bedroom light after Olsson fell asleep. (14 RT 2815.) Sandberg recalled similar events. When he would stay with his daughter he sometimes saw her bedroom light on when he would awakein the very early morning. He would knock, open the door, and find Olsson in her flannel pajamas and bathrobe sitting up asleep with a bookstill open. Sandberg would put away the book, pull the blankets over her and say, “Honey, scoot down and I'll turn out the light.” (14 RT 2786-2787, 2795.) The next moming, after Olsson went to work, Sandberg would gointo her room,pick up the drinking glass andtake out old newspapers. Olsson kept her bedroom very neat. Her bed was always made and her clothes hung or put way. She neverleft her bathrobe lying on the floor next to her bed. (14 RT 2786-2788, 2815.) According to Sandberg, when he stayed with his daughter she never had male visitors, but approximately once a month would go out to dinner with some nurse friends. (14 RT 2787, 2793-2794, 2800, 2804.) Walters had met only one of those friends, Barbara Green. (10 RT 2017; 14 RT 2812.) Elden Freeman, who, along with his wife, had lived directly across the street from Olsson for 21 years, could not recall Olsson having any visitors in July 1986 except for her daughter. (13 RT 2642-2643, 2645; 14 RT 2831-2832.) Freeman wasretired and home most of the time. (13 RT 2643.) As for appellant, Chandlerfirst testified that appellant wasstill living with him in early July 1986, but later testified that appellant moved out around that time or perhaps a few daysearlier. (13 RT 2503, 2507-2508.) Appellant kept a key to the house, however, left some of his clothes there, and continued to receive mail and phonecalls there. (13 RT 2508-2510.) Appellant would come over “seldom,” said Chandler, after he (appellant) moved out, but there were times when Chandler found appellant sleeping in the house when Chandler got up to go to work. (13 RT 2511, 2521, 2523.) And Chandlerleft notes for appellantin the house after appellant moved out because appellant had left no forwarding address or new phone number. For example, Chandler received a letter addressed to appellant that was postmarked July 18, 1986, and on that letter Chandler left a note for appellant to return a call to the union hall conceming ajob. (13 RT 2510-2513, 2516.)” Appellant was havingdifficulty Keeping a job. (13 RT 2522.) In any event, it had been on July 17, 1986, that Sandberg spoke to his daughter—for what turnedoutthe be the last time—whenhecalled her to wish her a Happy 60th Birthday. (14 RT 2780-2781, 2791.) Walters saw her mom-—for whatalso turned outto be thelast time—during the weekendofJuly 19 to 21, 1986, when they got together to celebrate Olsson’s birthday. (14 RT 2806, 2820.) Olsson andhersister. had “big plans” to visit their father in Topeka on Saturday July 26,to help him celebrate his 85th birthday. (10 RT 2025; 14 RT 2791-2792, 2822.) July 24 And 25, 1986: The Crime On Thursday, July 24, 1986, Olsson arrived for work at the VA Medical Center at 7:00 a.m. So did fellow registered nurse, Maxine Gatten. (10 RT 2012, 2027, 11 RT 2090.) Gatten did not see any injuries or bruises on Olsson. (10 RT 2012.) That day nurse Deborah Gifford and Olsson worked on the same floor. Gifford also saw no bruise on Olsson’s forehead. (11 RT 2089, 2092.) At about 4:00 p.m. the two nurses left work together and walked from the hospital to their cars. Olsson was in a good moodgiven her impendingtrip to Topeka. (11 RT 2089-2090, 2092.) From work Olsson proceeded to a nearby 3. In statements he eventually gave to the authorities appellant stated that while he had moved out of Chandler’s home in November 1985,in July 1986 he “still had belongings there” and “came and checked the mail.” (People’s Exh. 9C at p. 39.) Appellant “used to go there weekly to check on mail” because from November 1985 onward he used Chandler’s houseas his permanentaddress. (/bid.) Albertson’s supermarket. (11 RT 2090-2093.) At about 4:15 to 4:45 p.m., neighbor Freeman saw Olsson return home from work,park in her driveway, get out of her car with her purse slung overher shoulder, and walk into her house. (13 RT 2644-2648.) At about 8:00 p.m., from his front window, Freeman saw Olsson exit her lighted den. (13 RT 2645-2646, 2649.) At about 10:00 p.m., Olsson tumedoffthe light. (13 RT 2650.) No other lights were on in her house. (13 RT 2651.) Also at around 10:00 p.m., Linda Rocke, wholived with her family at 1427 Aster Lane in Livermore, went into their backyard, which opened up on to Springtown Golf Course. (11 RT 2094-2095.) Rocke subsequently went to sleep in her bedroom,the closest room to the golf course. At 4:00 a.m. Rocke was awakened by a noise. She wentto the family room to quiet the family dog, who wasbarking wildly at the sliding glass door leading to the backyard. (11 RT 2096-2097, 2101, 2109.) Because the dog would not calm down Rocke forced it outside so it would not waketherest of the family up. (11 RT 2097- 2098.) Once outside the dog ran towards the backyard gate that separated part of the yard from the golf course. (11 RT 2098.) Twoto three feet from the gate Rocke found what lookedlike a small bathroom screen on the deck. (11 RT 2095, 2099, 2104-2105, 2113-2115.) Rocke,struggling to get her dog back inside, did not give much thought to the screen and eventually went back to sleep. (11 RT 2099-2101.) When Rocke awokeat 6:00 a.m. and wentinto her backyard she again saw the bathroom screen. (11 RT 2101-2103.) At around 7:30 a.m., as Elden Freeman returned from his morning walk, he noticed that Olsson’s car was still in her driveway. He thought that perhaps she was sleeping in; he knew she was going on vacation soon and he was expecting her to bring over her house key so he could take care of the house while she vacationed, as he usually did. (13 RT 2644, 2651-2652; 14 RT 2832.) Meanwhile, at the VA Medical Center, Olsson had not shown upfor work. Fellow nurse Gatten called Olsson’s home but nobody answered. (10 RT 2015, 2081.) Gatten then called the night supervisor and asked if Olsson had called in sick. She had not. (10 RT 2015.) Gatten next took over Olsson’s duties as the charge nurse and made the necessary staffassignments. (10 RT 2015- 2016.) At about 8:00 a.m. Gatten placed third call to Olsson, but there was still no answer. (10 RT 2015-2016.) Olsson’s colleagues were concerned that Olsson wassick because she had been complaining of chest pains and because she was very reliable and rarely called in sick. (10 RT 2017-2018, 2027.) At 8:45 am., nurse Gatten saw Olsson’s close friend and office mate Barbara Green. They commentedto each other that there had to be a problem because Olsson would never fail to show up for work without phoning in. (10 RT 2017, 2021-2023, 2026-2027, 2068.) Thereafter Green immediately called Olsson’s home. Green thoughtthat perhaps Olsson’s car had broken downonthe road and she needed help. (10 RT 2028.) Greenlet the phonering 20 times but no one answered. Greentold the chiefnurse that she was worried and going over to Olsson’s house. (10 RT 2029; 14 RT 2767-2769.) Green and Olsson had madea pact with each other that if need be they “would hold each other until death.” (10 RT 2031.) Green had a feeling that Olsson might need her. (10 RT 2031.)” Green drove to Olsson’s house and saw hercar parkedin the driveway and a newspaperin front. (10 RT 2029.) Green rang the doorbell, knocked on the door and yelled her friend’s name. There was no response. (10 RT 2030.) Green unsuccessfully tried to open the front door and peeked through the slightly-opened curtain of the living room window but did not see any movementinside. (10 RT 2030, 2036, 2061, 2078.) She also looked through 4. Nurse Green had been at work for a few hours already because she had not been able to sleep the night before and didn’t want to stay home and disturb her family. (10 RT 2025-2026.) When Green saw Olsson the day before she didn’t observe any bruises on Olsson’s forehead. (10 RT 2025.) 9 a wrought-iron protected window with a partially-opened curtain. Greenstill did not see Olsson. (10 RT 2031, 2036-2037, 2062.) Green next walkedto the back of Olsson’s house where she saw two bedroom windowscovered with screens. Green tried to openthe back sliding glass doors, but they were locked. (10 RT 2031-2032, 2061, 2064.) Green could not walk any farther around the house because chicken wire blocked the path to the garage. (10 RT 2032, 2061.) Green saw a high bathroom windowthat was open and hadnoscreen. She moved tall planter stand under the window and stood on it, but her fingertips barely reached the windowsill. (10 RT 2032-2034, 2037-2039, 2064, 2074-2076; 14 RT 2833.) Green continuedto yell out “Sandy”to let her friend know she wasthere to help. (10 RT 2040.) Green went to each of the next- door neighborsto try to get help but neither was home. (RT 2032, 2034-2035, 2040.) Green then went to Freeman’s house where she explained to him that Olsson had notarrived for work and wasnot answering her phoneandthat she (Green) could not get into Olsson’s house to see if she wasall right. Green used the Freeman phone and called 911. (10 RT 2040-2043; 13 RT 2642, 14 RT 2832-2833.) While waiting for police to arrive Green returned to Olsson’s house with Freeman. (10 RT 2043-2044, 14 RT 2832.) She moveda taller plant stand under the open bathroom window and as Freemansteadied it she climbed up and was able to reach through the window and push open the bathroom door. In the reflection of the full-length mirror on the bathroom door Green saw . Olsson laying on her stomachacross a bed, naked. A puddle ofblood was on the floor. (10 RT 2044-2046.) Green wanted to get inside immediately to try and stop the bleeding on Olsson’s head, but Green could not climb throughthe window. (10 RT 2045-2046.) Freeman ran back to his houseto get a ladder. (10 RT 2046; 14 RT 2834.) Green stayed and repeatedly yelled assurances to Olsson that she would tend to her as soon as possible. (10 RT 2046; 14 RT 10 2834.) With Freeman’s help Green used the ladder to climb in the house through the bathroom window. (10 RT 2047-2048, 2072-2074; 14 RT 2834- 2835, 2840.) Green rushed to her friend. (10 RT 2048.) Olsson was laying face down across the bed with her head turnedto the left and her foot extended over the side of the bed. Her right leg was pulled up into an awkwardposition. (10 RT 2048-2049.) Her arms were underneath her and blood was dripping down her face. (10 RT 2048.) There were multiple slits on her shoulders and back showingfatty tissue. Herleft eye was bulging out ofher head. (10 RT 2048.) Blood was still dripping onto thefloor. Green touched and stroked Olsson underher right shoulder blade, the only area of her body that had no wounds. (10 RT 2048-2049.) With her touch Greenfelt “death. There’s nothing as cold as death.” (10 RT 2048-2049, 2070.) Olsson’s bed clothes, blankets and sheets were crumpled undermeath her. (10 RT 2048-2049, 2076.) Green noticed that the bedroom closet door wasslightly open and she becameafraid that somebody wasstill inside the house. (10 RT 2049.) As she walkedoutofthe bedroomto locate a phoneto call 911 again, she saw a family picture that had fallen from the wall to the hallway floor and another picture on the wall that wastilted and broken. (10 RT 2049-2051; 14 RT 2843.) As she walked through the kitchen and living room Green foundneither a phone nor an intruder. She did not turn on anylights. (10 RT 2050-2051.) Green reached the front door and grabbed the knob. She sawthat the chain mount, along with the screws and a piece of wood, had been torn outof the door molding. (10 RT 2051-2052.) The chain mount and screws were hanging from the chain, which wasstill fastened to the lock plate attached to the door. (10 RT 2052.) Green turned the door knob, but the door was locked. Frightened, she tried again, determined to force her way out if necessary. This time the door unlocked and Green opened the door. (10 RT 2052, 2077-2078; 11 14 RT 2843, 2846.) Freeman, who was outfront, walked inside. (14 RT 2836.) He glanced inside the bedroom and saw Olsson lying on her stomach on the bed. He asked Green if Olsson wasall right. Green, crying, shook her head no. Green said she could not find the phone. Freeman showedherto the breakfast dining area and to a telephone. (10 RT 2053; 14 RT 2836.) Barbara Green, distraught and crying overher friend, again called 911. She reported that Sandy Olsson had been murdered—‘stabbedto death.” (10 RT 2053-2054; 14 RT 2836.) A police officer soon arrived and Green told him about Olsson. (10 RT 2054, 2065.) Freeman left and Green sat in the kitchen and cried. (10 RT 2054.) There was no bloodin that area of the house. (10 RT 2054.) .The officer asked Green if Olsson was really dead. Green replied, “I know she is, but Pil check.” (10 RT 2055.) Green walked to Olsson and tried to feel a pulse | on her neck, but could not. Green told the police officer, “Yes, she is dead. There is no pulse.” (10 RT 2055-2056.) The officer asked a second time, “Are you sure she’s dead?” (10 RT 2056.) Green touched Olsson’s neck again and confirmed the absenceof a pulse. (10 RT 2055-2056.) When LivermorePolice Sergeant Scott Robertson, assigned to investigate the crime, arrived at 1556 Hollyhock at 9:45 a.m., he met up with three other officers, Community Service Aid Sao Mangrai,as well as Green and Freeman. (11 RT 2117-2118, 2166-2168; 12 RT 2318-2319 .)}¥ Robertson noted that there were no lights on the golf course behind Olsson’s houseto illuminate her back yard. (14 RT 2859.) Nor werethere anystreet lights near the front of the house. (14 RT 2860.) Inside the homethe officer found the point of forced 5. Green stayed in the house until a police officer said she could leave. (10 RT 2059.) Green then returned to the Freeman house where she called work and told them about Olsson. (10 RT 2059.) At some point Green went homeand lay on her couch where she felt her heart racing so fast she thought it would burst. (10 RT 2059.) | 12 entry: the front door, as shown by the fresh damage to the chain lock. Robertson noted, as did Green,that the chain mount, screws, and woodthat had been attached to the door molding was pulled outof it, and was hanging from the chainstill fastened to the lock plate attached to the back of the door. (11 RT 2122, 2128, 2151, 2169, 2174; 14 RT 2843, 2862.) Robertson notedthat. the two-inch brass screws that had once held the chain mount to the door molding had beenset into a void instead of a stud. (14 RT 2862-2864.) As Robertson walked through the house he observedthatit was well kept, andthat there was no clutter anywhere except in the kitchen. (11 RT 2120, 2130.) A receipt from Albertson’s was on the kitchen counter. (11 RT 2132; 12 RT 2257-2558; 14 RT 2909.) It showed that Olsson had received $3.95 in change. (14 RT 2918.) There were no lights or appliances on inside the house. (11 RT 2123.) In the main hallway Robertson saw that two pictures on the wall were tilted, and that pictures were on the floor in the entryway and master bedroom. Apart from the injuries to the victim, those were the only signs of a struggle. (11 RT 2121-2122, 2124, 2128, 2133-2134, 2141-2142, 2154; 12 RT 2233; 14 RT 2843.) Robertson saw no blood anywhere in thehouse exceptin the master bedroom. (11 RT 2120.) In the master bedroom police saw Olsson’s naked bodylaying on her bed. (11 RT 2135-2136, 2138, 2143, 2145-2146, 2168-2169, 2190-2191; 12 RT 2232-2233.) Underneath her body were a pair of flannel pajamas and blankets. (11 RT 2148-2149, 2190-2191; 12 RT 2237-2238.) Robertson saw “bruised” and “marked”lines on Olsson’s forehead,lips, and outsideherleft ankle, which Robertson believed consistent with being hit with the edge of a forced-open door. (11 RT 2175-2176.)% Officers observed a small pool of blood on the 6. Onanearlier occasion, Olsson’s father recalled, a neighbor came by during evening hours seeking medicalattention for his wife. Olsson responded to the neighbor’s loud and rapid poundingat the front door by opening the door and peeking out, while keeping the chain secure. (14 RT 2788-2789.) 13 carpet floor next to the west edge of the bed. Robertson also saw blood splatters on the closet doors and a blood smear onthe light switch. (11 RT 2123-2124, 2135, 2141-2142, 2144, 2172-2174, 2192; 12 RT 2232-2233.) There was a glass ofCoca-Cola and a glass ofbourbon on the night stand next to the bed. (11 RT 2134, 2138, 2185.) A bathrobe and a pair of slippers were on the floor next to the east side of the bed. (11 RT 2134, 2138, 2145; 12 RT 2233.) On the desk in the bedroom were some folded clothes, put there by Olsson in preparation for her plannedtrip to visit her father. (11 RT 2135, 2138, 2146; 14 RT 2822.) Robertson found no moneyin the house. (11 RT 2156-2157.). Outside the house Robertson checked the windowsandsawthat while both the master bedroom and kitchen windows were open a few inches,eachstill had its screen attached. Similarly, the windowsto the den that overlooked the driveway were fully open but secured by iron grates and undisturbedscreens. (11 RT 2127, 2157-2159.) The curtains covering Olsson’s window were slightly opened andthe drapes for the sliding glass door were drawn shut. (14 RT 2861.) The master bathroom window wasfully opened and hadnoscreen. (11 RT 2127.) At 10:30 a.m. Lieutenant Don Neherofthe Livermore Police Department arrived at 1556 Hollyhock and began coordinating a search of the outside of Olsson’s home and the Springtown Golf Course. (12 RT 2288-2290.) Meanwhile, two golfers, Judith Marie Williams and Cathie Garton, found a purse floating in a pond on the ninth hole. (11 RT 2196-2197.) Because Williams thoughtthe purse mightbe stolen she fished it out of the water with her golfball retriever and turnedit in at the clubhouse. (11 RT 2198.) Inside the purse were, among other items, a checkbook, hospital identifications, and a driver’s license,all belonging to Olsson. (11 RT 2199-2201; 12 RT 2291- 2293, 2295, 2313, 2331-2340, 2348.) The purse contained no money. (11 RT 14 2207; 12 RT 2313, 2339-2340.) At around noon Lieutenant Neher picked up the purse at the clubhouse, and placed it in an evidence bag, returned to Olsson’s house, and gaveit to CSA Mangrai. (11 RT 2201-2202; 12 RT 2291- 2295, 2313, 2329-2330.) | Mangrai took numerous photographs of the crime scene, including of Olsson’s body. (11 RT 2136, 2168; 12 RT 2230, 2319, 2330.) Other investigators videotaped the crime scene (both inside and outside the home), and took measurements of the home (for diagram purposes). (11 RT 2125- 2135; 12 RT 2228-2235.) At another point Olsson’s body was removed from the scene and officers and Mangrai began collecting evidence, including the blood. (11 RT 2148-2149; 12 RT 2228-2229, 2235-2260, 2330, 2340.) At about 2:30 p.m., Renorise Conn, security officer for the Lawrence . Livermore Laboratory, along with five co-workers, were directed to 1556 Hollyhockto assist Livermore police in conducting a search of the Springtown Golf Course for a knife. (11 RT 2208-2212; 12 RT 2290.) At around 3:00 p-m., Conn was searching undera large pinetree in knee-high brush, about 29 feet from the backside ofa fence along the golf course behind 1313 Aster Lane, whichran parallel along the opposite side of the golf course from Hollyhock. As Conn usedher baton to push the brush back and forth, she heard a “clink” sound, openedthe brush with her baton, and saw a knife. (11 RT 2212-2214, 2222; 12 RT 2295-2297, 2300.) The knife was very bloody and had what appearedto betissue on the bladenext to the handle. (11 RT 2214, 2216-2220, 2223; 12 RT 2310-2311.) Conn called over others. (11 RT 2215; 12 RT 2297.) Officers bent down and examinedthe knife. (11 RT 2221; 12 RT 2295- 2297, 2310.) At 3:10 p.m., CSA Mangraiarrived, took pictures of the knife, and, using gloves, putit in a paperbag to preserveits evidentiary value. (11 RT 2215-2216, 2221; 12 RT 2298-2299, 2319-2320, 2353-2356.) At around 4:00 or 5:00 p.m. Linda Rocke returned homeand saw police 15 officers on the golf course. Oneofficer was leading a canine who was smelling the ice plant directly behind the Rockes’ backyard fence. (11 RT 2103.) When Rocke askedthe officer, “What are you doing?”, the officer did not answer. (11 RT 2103-2104.) Rocke saw her husband at home and was surprised because he was supposed to be golfing. He explained that the golf coursewas closed due to a murder. (11 RT 2105.) Rocke noted for her husband the police presence andthe screen in their yard and suggested they contactthe police. (11 RT 2106-2107.) She eventually did so. (11 RT 2093-2094, 2107.) At 5:00 p.m. Lieutenant Neherceasedthe search ofthe golf course, having found nothing in addition to the knife. (12 RT 2299-2300.) At 8:00 p.m. he met up with Mrs. Rocke at her homeandshe directed him to the window screen in her back yard. She also told him about the commotion her dog had caused that morning. (11 RT 2107; 12 RT 2300-2301.) Mrs. Rocke noticed a couple oftears in the screen andthat a bottom corner was bent. (11 RT 2108.) Neher carefully collected the screen to preserve any fingerprints. (11 RT 2107, 2115; 12 RT 2302-2302, 2313.) Neher measuredthedistance ofthe mostdirect route from Olsson’s house on Hollyhock to the Rocke’s house at 1427 Aster Lane to be 213 yards. (12 RT 2303-2304.) The distance between the Rockes’ house to the area of the golf course behind 1313 Aster Lane, where the knife was found, to be 121 yards. (12 RT 2304, 2316.) From where the Buck knife was found to the duck pond in which the purse was found floating was 337 yards. (12 RT 2304.) From Olsson’s house to the duck pond was 671 yards. (12 RT 2305.) Olsson’s house did not have a fence that prevented direct access to the golf course. (12 RT 2316.) Thepaint flecks on the outside screen matched the color of Olsson’s house. The scratches on the inner screen correspondedto scratches on the inner frame of Olsson’s master bathroom window. Police determined that the screen belonged to Olsson’s master bathroom window. (11 RT 2159-2160, 2188.) 16 Like Mrs. Rocke, police saw that the screen was bentand had holes andcuts in it. (11 RT 2161, 2187-2188.) The Autopsy Dr. Sharon Van Meter, an expert pathologist, performed autopsies for the Alameda County Coroner’s office. On July 26, 1986, she performed an autopsy on the body of Sandy Olsson. (13 RT 2653-2656.) Olsson was five feet seven inches tall and weighed 155 pounds. (13 RT 2657.) Olsson had multiple woundsto her body, including two stab wounds to the left side ofher face, and a stab wound nearthe eye, which was seven-eights of an inch wide and two inches deep, and had passed through the skin and soft tissue and broke the orbital ridge, the bone underthe eyebrow. Infliction ofthe latter injury required considerable strength. (13 RT 2657-2658, 2661-2664.) The second stab woundto the left side of Olsson’s head, which was seven-eighths of an inch wide and two-and-one-half inches deep, had passed into the soft tissue just below herleft cheek bone. (13 RT 2663-2664.) A stab woundto Olsson’s neck, three-quarters ofan inch wide and one-half to three-quarters inch deep, had passed through the skin and caused some hemorrhaging. A fourth stab wound, very small, wasslightly abovethe third woundandhadbarely penetrated the skin. (13 RT 2658, 2664-2665.) Olsson also had a stab woundto the lowerleft chest, one-and-one-quarter inch wide, and three to four inches deep, which had not only passed through the skin and the soft tissue of the chest wall, but through muscle and between tworibs and severed third rib in two places, entering the sac around Olsson’s heart and the fatty tissue on the surface ofthe heart. Dr. Van Meter opinedthat considerable force had been requiredto inflict this wound. (13 RT 2667, 2698.) Dr. Van Meter found seven stab woundsto the left side of Olsson’s neck and upperleft shoulder. These woundswereall three-quarters of an inch to one 17 inch in length and about three to four inches deep. (13 RT 2658-2659, 2669, 2676.) They all had penetrated the skin and soft or fatty tissue and muscles, but did nottransect any large vessels or enter any body cavity. (13 RT 2668-2670.) Dr. Van Meterstated that it would have required a moderate amountof force to penetrate these muscles, e.g., the same force it would take to stab through a three- to four-inch raw steak. (13 RT 2670.) In addition, Dr. Van Meter observed 11 stab wounds to Olsson’sleft upper back, wounds the doctor numbered 8 through 18. Wound number8 was three- quarters of an inch wide. (13 RT 2659, 2671.) Wound number 9 was a “complex stab wound” that had been made by overlapping knife cuts, or by movement of the knife or body. (13 RT 2659, 2671.) This wound had penetrated between two ribs. Wound number10, three to four inches deep, had passedthroughthe soft tissue and between two ofOlsson’s ribs andinto herleft lung,leaving oneofthe ribs fractured. (13 RT 2671.) Stab wound number11 had entered towards Olsson’s side and penetrated the soft tissue outside her chest wall. This wounddid notenter the rib cage. Wound numbers 12 through 14, each three to four inches deep, had penetrated Olsson’s middle back and passed between twoofherribs, injuring the left lung. Wound number15 was another complex wound, having penetrated three to four inches between two of Olsson’s ribs and injuring a lung. (13 RT 2672.) Wound number 16, two inches deep, had passed into the soft tissue and muscle, but did not enter Olsson’s chest cavity. (13 RT 2673.) Wound numbers 17 and 18, three to four inches deep, had passed between two ribs and caused defects in a lung. (13 RT 2673.) These two stab wounds were three-quarters of an inch to one inch in length. (13 RT 2659.) Olsson’s five remaining stab woundswere to her middle back area. (13 RT 2673.) Wound number19, three inches deep, had passed throughthesoft tissue between two of her ribs and caused damageto the left lung. (13 RT 2673.) 18 Wound number20, twoto three inches deep, had entered.the right side of the back and passed through the space between tworibs, fracturing one, and continuedinto the right lung. (13 RT 2673.) Wound number 21, twoto three inches deep, had penetrated the soft tissues and fractured a rib. This wound did not pass into the body cavity but ran along the side of the vertebral column. (RT 2673-2674.) Wound numbers 22 and 23 one to one-and-a-half inches deep,hadpassedintothe soft tissue of Olsson’s back, but did not penetrate her chest cavity. (13 RT 2674.) The stab woundsto the eye, left cheek, neck, throat, chest, and the upperleft shoulder of Olsson all resulted in hemorrhagingin the underlying soft tissue and muscles. Knife wounds 8 through 18 all resulted in significant hemorrhaging into the lung tissue and chest cavity. Knife wounds 19 to 23 caused bleedinginto the lung and right chest. The hemorrhaging indicated that Olsson’s heart had been pumping—andthat she wasstill alive—when she was stabbed 28 times. Dr. Van Metertestified that none of these stab wounds would have resulted in instant death for Olsson, and that she could have survived for more than an hourafter the woundswereinflicted. (13 RT 2674- 2677, 2683.) Dr. Van Meteralso testified that Olsson may have remained conscious throughoutthe knife attack, and would havefelt pain each time the knife penetrated her body. Additionally, Olsson would have had difficulty breathing as her lungs and chest filled with blood and air leaked out of her lungs instead of her air passages. (13 RT 2677-2679.) Dr. Van Meter next testified thatthe stab wounds would have caused considerable bleeding andthat Olsson could have lapsed into shock and lost consciousness. (13 RT 2678.) Dr. Van Meter could not determine the order in which the wounds were inflicted on Olsson. (13 RT 2678.) Dr. Van Meter believedthatall of the knife wounds inflicted on Olsson were consistent with having been made by the Buck 110 knife the authorities had found at the Springtown Golf Course. (13 RT 19 2686.) Dr. Van Meter also found hemorrhaging in Olsson’s neck and larynx muscles, and fractures of the superior horns of her thyroid cartilage and of the hyoid bone underthe tongue. These injuries were the result of blunt force or compression of the neck, such as by strangulation. Such injuries would have caused Olsson pain and considerable difficulty breathing. The injuries would have resulted in spasm of the airway so that when Olsson breathed, her voice box would have collapsed and her air passage would have becomeobstructed, causing her to gasp and gurgle. (13 RT 2679-2681.) Dr. Van Meter stated that whenall oxygen is blocked, an individual could lose consciousness in a few seconds andultimately die. Ifan individual can gasp andtakein bitofair, the person may be able to sustain life for 30 minutes or longer. Again, the considerable hemorrhaging overthe fractures indicated that Olsson wasalive whenthe fractures were perpetrated on her. (13 RT 2680-2682.) Dr. Van Meter also observed multiple bluntinjuries, bruises, abrasions, and lacerations on Olsson’s body. There was hemorrhaging and bruising aroundthe left eye; on the right forehead there was a contusion an inch-and-a-quarter in diameter with small scrapes and a lot ofblood; and there were contusions on the inside ofOlsson’s upperand lowerright lips. (13 RT 2660, 2662, 2665-2666.) Olsson’slip injuries could have been caused by a blow orfall against an object. (13 RT 2666.) Herlip and head injuries were consistent with her head having come into contact with the edge of a door being forced open. (13 RT 2666, 2711.) . Olsson also had a bruise on the back ofher right hand, about two inchesin diameter, covering the bonearea of herthird, fourth, and fifth fingers, along with four small abrasions at the base of the hand. On the back of Olsson’s right forearm was a purple contusion, andshealso had a small faint contusion on the side ofherleft forearm, just below the elbow. (13 RT 2661, 2683-2684.) 20 On Olsson’s left thigh, just above the knee, was an abrasiona little less than two inches in length. Onthe back of her left and right thighs were small bruises. (13 RT 2660-2661, 2684.) On the side of Olsson’sleft ankle were a series of small abrasions forming a line. (13 RT 2661, 2684.) All of these bruises were no more than 24 or 36 hours old, Dr. Van Meter opined. (13 RT 2714.) Dr. Van Meter examined,butdid not find trauma to Olsson’s vaginal area. The doctor explained, however,that the absenceofvisible injury or trauma did not mean that Olsson had not been forced to submit to an act of sexual intercourse before her death. (13 RT 2687-2688.) Dr. Van Meter swabbed Olsson’s vaginal, rectal, and oral areas, took pubic and headhair samples, and collected samplesofblood andurine(both ofwhichtested negative for drugs). (13 RT 2688, 2689, 2703-2704, 2706-2707.) Dr. Van Meter also found no signs of alcohol abuse by Olsson. (13 RT 2689-2690.) Dr. Van Meter explained that after Olsson died and her heart stopped pumping,blood from her head continued to drain downward andontothe floor due to gravity. (13 RT 2691.) Dr. Van Meterstated that Olsson died between the time she was last seen, at 10:00 p.m. on Thursday, July 24, and when her body was foundat 9:00 a.m. the following morning. (13 RT 2692.) Dr. Van Meter opinedthat the bruises on Olsson’s forearms and right hand could have been defensive wounds from punches,or blunt object injuries caused by being shoved up againsta wall, or from a door being forced open on them. Olsson had no defensivecuts or scratch woundsonherforearmsor hands from a knife, which suggested she was notattacked with the knife from the front. (13 RT 2694, 2701.) Dr.Van Meter examined Olsson’s fingernails for blood or tissue from the assailant, but found none. (13 RT 2694.) Dr. Van Meter pointed out that Olsson suffered the majority of her woundsto her back. (RT 2701.) Dr. Van Meter determined that the cause of Sandy Olsson’s death was 21 shock and hemorrhaging,as a result ofthe multiple stab wounds, and associated with asphyxia dueto fractures of the larynx. (14 RT 2729-2730.) July 26, 1986 To March 27, 1987: Further Investigation On July 26, 1986, Martin Collins,a latent print supervisor for the California Department of Justice and an expert in latent fingerprint development and comparison, examined the Buck 110 knife found at Springtown Golf Course and confirmed the existence of two identifiable prints on the brass end of the knife handle. He photographed the prints, made sure negatives were properly developed, and notified the Livermore Police Departmentofhis findings. (12 RT 2380-2385; 14 RT 2732.) The quality of the prints was excellent and the detail extremely clear. (14 RT 2733.) On July 29, 1986, Donna Mambretti, another DOJ fingerprint analyst and expert, traveled with fingerprint analyst Angelo Rienti to Olsson’s home at 1556 Hollyhock where they, along with members of the Livermore Police Department, reprocessed the homefor fingerprints. (11 RT 2189-2190; 12 RT 2280, 2397, 2424-2425, 2458-2461.)” Analysts Mambretti and Rienti recovered numerous useable fingerprints. (12 RT 2426.) - Overthe next several months, the Livermore police submitted fingerprints to analyst Mambretti for comparison with latent prints found at the crimescene. 7. On July 25, CSA Mangrai, Deputy Sheriff Richard Jensen, and Sergeant Mark Weiss had dusted for fingerprints in the homein the areas where ' someone was likely to have entered or touched, such as walls, windows, mirrors, and door knobs. (11 RT 2167; 12 RT 2260-2262, 2267-2268, 2271- 2272, 2276-2278, 2281-2282, 2340, 2365-2366, 2374-2376.) Mangrai had developed multiple prints from some of the Coke bottles and two picture frames, and at some point developeda print from the window screen found at the Rocke residence. (11 RT 2161; 12 RT 2348-2353, 2366-2372, 2375.) Further fingerprinting of the screen revealed prints belonging to Officer Robertson. (11 RT 2161; 12 RT 2432-2433.) 22 (12 RT 2425, 2442; 14 RT 2866.) The only matches were of the victim, Freeman,and twopolice officers. (12 RT 2425-2428, 2436-2437; 14 RT 2866- 2868.) The other useable prints were not identified, and many recoveredprints proved unidentifiable. (12 RT 2426, 2428-2440, 2473.) Manyofthe prints analyst Mambretti compared with those foundat the crime scene came from the Automated Latent Print System at the state Department of Justice. The source of the ALP prints were from DOJ’s master fingerprint file; 1.e., fingerprints of individuals who had been arrested for felonies in California. (12 RT 2440- 2444, 2046.) None ofthe ALP prints matchedanyoftheprints lifted from the crime scene. (12 RT 2444.) Sharon Binkley, a criminalist with the Alameda County Sheriff's Department, examined somebiological specimens and other evidencefor the presence of semen. The biological specimens were from Olsson’s vaginal, mouth, and rectal areas, and the evidence was her pajamas, robe, bedding and throw rug. (13 RT 2574-2475, 2577-2578.) Binkley found no semen or spermatozoa anywhere. (13 RT 2576-2578.) Those negative findings did not eliminate the possibility that sexual intercourse had occurred between Olsson and her assailant, Binkley opined, since intercourse can occur without ejaculation. (13 RT 2576.) Cnmunalist Binkley also examined the Buck knife found at Springtown Golf Course, a swab of blood collected from that knife, and a sample of Olsson’s blood. (12 RT 2321-2324, 2360; 13 RT 2575, 2579.) Binkley observedsoil and somefine animal hairs on the blade, saw that the tip of the blade was brokenoff, andalso noted that the edgeofthe blade was chippedin twoareas. (13 RT 2618-2619.) She also saw red-brownstains on the blade andacross the top of the knife handle, which she scrappedoffandtested a portion thereof for the presence ofhuman blood. (13 RT 2580-2582.) That sample, as well as the swab of blood taken from the blade, proved consistent with Olsson’s blood. 23 (13 RT 2579-2580, 2583-2587, 2613-2614.) Binkley also observedvisible prints on the handle of theknife. She knew additional examination of the knife for the presence of fingerprints was scheduled. (13 RT 2581.) She measured the knife blade as three-and-three- quarter inches long, and three-quarters of an inch at its widest point. The handle was four-and-three-quarter inches long. (13RT 2580-2581.) Binkley additionally examined Olsson’s bed sheets and found bloodstains that appeared to have been made by someone using the sheets to wipe off a bloody knife sequentially; i.e., first on one side of the blade and then on the other side. The person did this with the knife at at least twice. (13 RT 2590- 2592, 2608-2611, 2632-2635.) The measurements ofthese bloodstains on the sheets matched the Buck knife Binkley examined. (13 RT 2593-2600.) Meanwhile, from August 1986 onward appellant was apparently still spending time at Chandler’s home on Hollyhock as Chandler was still leaving messages for appellant, and appellant had keys to the house until mid-March 1987. (13 RT 2511, 2517-2521.) During that same period the authorities had no leadsinto the killing of Olsson, other than the unidentified fingerprints on the knife. (14 RT 2868.) On March17, 1987, based on a conversation with anotherofficer, Sergeant Robertson submitted appellant’s fingerprints to the state DOJ. (12 RT 2443; 14 RT 2827.) The analysts examinedtheprints, and identified appellant’s right ring fingerprint as matching a fingerprint left on the brass end ofthe Buck 110 knife discovered at the Springtown Golf Course on July 25, 1986. (12 RT 2406-2423, 2449-2453; 14 RT 2872.) On March 27, 1987, Sergeant Robertson arrested appellant in Pleasanton at about noon. (14 RT 2873, 2908, 2918.) At around 3:40 p.m. or so CSA Mangrai took fingerprints and palm prints from appellant. Later, the DOJ analysts identified appellant’s right palm printon the knife from the golf course. 24 (12 RT 2341, 2406, 2408-2410, 2411, 2413, 2443, 2449-2453.) Appellant’s Statements To The Authorities Livermorepolice interviewed appellant at the police station at about 8:00 p.m. on March 27, 1987. (14 RT 2873-2877; People’s Exh. 5C.) Appellant acknowledged reading about the Olsson murder in the paper. Sergeant Robertson asked him, given what he had read, “what type of person, or what would you think would be the motive for somethinglike that?” (14 RT 2876- 2877; People’s Exh. 5C.) Appellant first answered, “I don’t know,” then expounded, “it was “pretty bizarre really. First you know,I figure burglary.. But lookingat it I’d haveto, Td probably haveto say I don’t know. I guessit’s somebody that might have been a lover, or something, or domestic type, because a relationship she had or something. And where they found her. Apparently somebody had a quarrel and obviously it got out of hand.” (People’s Exh. 5C.) Appellant then repeated that he had initially thought it was a burglary, but on “closer examinationitjust didn’t ring like a burglary,” since “she didn’t have a lot of shit stolen.” (People’s Exh.5C.) Plus, appellant continued, murderis “a bit extreme”for a burglar (“A burglar, why don’t they, why don’t they just tie her up, you know, gag herand all that good stuff like they do in the movies?”). (People’s Exh. 5C.) Appellant opined that because there were no signs offorced entry at Olsson’s house, and her body was found unclothed,this again indicated that the crime was committed by someone she knew,perhaps a former lover or boyfriend (“like a domestic type thing” that “got out of hand.”). (People’s Exhibit 5C; 14 RT 2893-2895.) Sergeant Robertson knew that the newspapers hadreported that Olsson had been found naked,butthat the papers had inaccurately reported that there were no signs of forced entry. (14 RT 2894-2895.) 25 Sergeant Robertson told appellant.that the police had identified his (appellant’s) fingerprints as being on the knife that had killed Shirley Olsson. (14 RT 2873, 2906-2907.) Appellant denied involvement and stated that sometimein the spring of 1986 his knife had been stolen from his car. (14 RT 2873-2874.) Appellant denied knowing Olsson and denied ever being in her house. (14 RT 2875.) Also on March 27, 1987, Robertson told appellant’s wife Vicky that the police had identified appellant’s fingerprints on the murder weapon. (14 RT 2896-2897, 2905-2908.) On Sunday, March 29, 1987, Robertson received a call from anotherofficer and based on that call met with appellant’s wife, Vicky Tully, the next day. Later that same day, March 30,at about 8:00 p.m., Robertson and Detective Mike Newtoninterviewed appellantat the Santa Rita jail. (14 RT 2898, 2900; People’s Exh. 6A, Exh. 6C at p. 1.) Appellant waivedhis rights. (People’s Exh. 6C at p. 2.) Whenthe officers asked appellant to discuss the day of July 24, 1986, appellant asked them to “add” to the record their off-the-record discussions about “the Witness Protection Program.” (/d. at p. 2.) One ofthe officers assured appellantthat the police would pursue the program in the event that any informationortestimony appellant provided,specifically that involving “the Hell’s Angels,” met Witness Protection Program criteria. (/bid.) Appellantthen told the officers that on July 24, 1986, he and one “Doubting Thomas” (a Hell’s Angel who appellant didnot knowthe real nameof) went to a house on Hollyhock Street in Livermore. (People’s Exh. 6C at pp. 2-3.) Appellant did not know Doubting Thomas’s true name, although he did know where Thomas and his wife lived in Livermore because appellant had been there before. (Jbid.) Appellant described Thomasas a “[s]craggy looking guy, long black hair, wavy, always needs to be combed, always wearsleatherjacket, 26 leather vest, excuse me. Every once in a while he’ll being wearinga shirt that says Hell’s Jangels Hell Angels down the side.” (People’s Exh.C at p. 2.) Morespecifically, appellant told the officers that as the bars “were almost closing” on what would havebeenthe early morning on July 25, he was driving to his friend Tom Tinsley’s house when he saw Doubting Thomas walking down the street and picked him up. (/d. at pp. 3-4, 18-20.) Thomas told appellant he had just come from Tinsley’s house where “there was nothing happening.” (/d. at p. 19.) Appellant was drunk, having consumed fourorfive. 12-ounce beers and four orfive 4-ounce “kamikazes” in the preceding three _hoursat the Sunshine Saloon in Pleasanton. (People’s Exh. 6Cat p. 18.) In the previous 18 months appellant had associated with Thomas aboutsix to twelve times. (/d. at p. 27.) Thomas was wearinghis usualleather vest, a black and white long sleeve shirt, and jeans. (/d. at p. 19.) He told appellant he wanted to go to a woman’s house on Hollyhock in Livermore so that he could “pick up some drugs”from herthat she obtained from a hospital. (/d. at pp. 3-4, 19- 20, 27.) Appellant knew Thomashad been drinking. (/d. at p. 17.) | Appellant told Doubting Thomasthat he rented a room at John Chandler’s residence on Hollyhock. (People’s Exh. 6C at pp. 4-5, 20.) Thomas remarked on the coincidence(“that’s where we’re going”; “that worked out good”), and directed appellant to park at Chandler’s because that was “only a couple of houses down”from their destination. (/d. at p. 20.) From Chandler’s driveway the men walked to the woman’s home. (/d. at pp. 4-5, 20.) Thomas didn’t name the woman andappellant did not know anyonewholivedin the home but Thomassaid that “he’d knownher for a while, that he could get drugs for money, for he’d buy drugs from her that she’d get from the hospital.” (dd.at pp. 4,15.) Doubting Thomasdid not say how he knew the woman, what kind of drugs he purchased from her (hesaid it was “always something different”), or how long he had been buying drugs from her. (People’s Exh. C at pp. 4, 19, 27 22.) Appellant recounted for the officers that Doubting Thomas loudly knocked on the woman’s front door a couple oftimes while he (appellant) waited in the front driveway leaning against a blue car. (People’s Exh. 6C at pp. 5, 17.) Appellant wonderedifthe neighbors could hear the knock. (/d. at p. 17.) After a: short time a woman answered the door voluntarily, and she and Thomas spoke for a momentbefore he stepped inside. (/d. at pp. 5, 17.) Within five minutes, however, with the front doorstill slightly open, Thomas motioned for appellant to enter as well. (People’s Exh. 6C at pp. 5, 17.) Appellant complied. (Ud. at p. 5.) Appellant waited in the hallway as Thomas and the womanspent time together in the bedroom. (id. at p. 5.) Appellant had never seen her before. (/d. at p. 27.) Appellant went to the living room and made himself comfortable on the couch. (People’s Exh. 6C at p. 6.) Appellant repeated for the officers that he had been drinking that night and was already about “half-cocked,” but nonetheless grabbed a bottle of alcohol that was on the lady’s counter (“whiskey or someshit”) and “took a few pulls off ofthat.” (/bid.) Aboutfive to ten minutes after appellant entered he heard DoubtingThomas and the woman talking in the bedroom. (/bid.) Appellant could not make out any words, only that Thomas and the woman spoke calmly to each otherat first before starting to arguea little bit. (/bid.) After the voices calmed down, appellant further told police, Doubting Thomas motionedfor him to comeinto the bedroom. Appellant met him in the hallway. (People’s Exh. 6C at p. 7.) Doubting Thomasasked appellantifhe “wanted to have little fun with her?” (/bid.) Appellant, who was“in the mood,”replied, “sure, why not.” (/bid.) He therefore entered the bedroom where the he found the lights already off and the womansitting naked on the edge ofthe bed. (People’s Exh. C at p. 7.) She said, “Hi, how you doing?” and 28 appellant respondedlikewise. (Jbid.) Thomas said, “Ifyou want we can go and have some fun and games.” (/bid.) Appellant asked Thomas ifhe was“talking about a threesome or something?” (/d. at pp. 7-8.) Thomas replied that he “already hadhis before, so he’s notinto it tonight.” (/bid.) Thomas said, “You go ahead and head on.” (/bid.) Appellant again said “sure, why not,” and “went in and disrobed.” (/d. at p. 7.) Doubting Thomas wentto another room. (Ud. at pp. 8, 18.) Appellant told the officers that after taking off his clothes he “started making out” with the naked womanand then “fucked her.” (People’s Exh. 6C at p. 8.) As he “mumbled and stumbled” his way through the sex appellant noticed that the woman was missing herright breast. (/d. at p. 8.) Appellant did not ejaculate because he was “too drunk”andlost his erection “pretty quick.” (Ibid.) Because the intercourse did not last long appellant was in the bedroom for less than 10 minutes. (/d. at pp. 8, 18.) Appellant’s failure left him feeling “kinda stupid.” (/d. at pp. 8-9.) He dressed and apologized to the woman, stating that he “hoped it would be better next time.” (/bid.) Appellant nexttold the officers that as the woman had put on some pajamas or a robeheleft the room to find Doubting Thomas. (People’s Exh. 6Catp. 9.) Doubting Thomasasked appellant how he“liked it” and appellant answered, “well you know,I wasa little too drunk to really enjoyit.” (/bid.) Appellant also told Doubting Thomasthat he (Thomas)“could probably havea handat it.” (bid.) As Doubting Thomas then reentered the woman’s bedroom and talked with her some more appellant returned to the bottle of alcohol and “started hitting”it again “a few more times.” (/bid.) Appellant heard the woman and Doubting Thomas start arguing again, but again could not hear the specific words (“I wasn’t paying much mindto it”). (People’s Exh. 6C at p. 9.) “It sounded like they were wrassling or he was knocking her around or something.” (Ibid.) Appellant, holding the bottle of 29 alcohol, walked towards the hallway“to try andlisten in a little bit, trying to know whatthe hell was going on.” Ubid.) Ashe then heard what soundedlike “furniture and shit” getting knocked around he watched the woman, naked, comecharging out of the bedroom andrunrightinto him. (/d.at pp. 9-10.) Appellant told police that Doubting Thomas was right behind the “struggling” woman and grabbedher by the throat and hair “and jerked her back into the room.” (People’s Exh. 6C at pp. 10, 25.) She “wasn’t struggling muchthen.” (Id_at p. 10.) Appellant asked him, “Whatthe hell’s going on?” (People’s Exh. 6C at p. 10.) Doubting Thomas told appellant not to worry; that the woman was giving him a hard time. (/bid.) Appellant, a little worried, said, “right on” and “hurry the fuck up.” (Jbid.) He “wantedto get the hell out of there.” (/bid.) Appellanttold the police that about 45 minutes had passed since he and Doubting Thomas entered the house. (People’s Exh. 6C at p. 10.) After Thomaspulled the woman back into the bedroom, appellant went into the living room wherehehearda “scuffle” coming from the bedroom. (id.at pp. 10-11.) Within a matter ofminutesit “gotkinda quiet” and Thomas exited the bedroom.(/d. at pp. 11, 25.) Appellant entered the bedroom to find out “what the hell was going on andto see if Thomas “got anything from her or what.” (Id. at p. 11.) With moonlight shining into the bedroom appellant saw the woman lying on the bed, naked and with multiple stab woundsto herback. (Ibid.) She wasnot moving. (Ibid.) Thomas said, “God damn fucking bitch.” (Ibid.) Appellant was“freaked” and “couldn’t believe whatthe hell was going on.” (Ibid.) Appellant asked, “Whatthe fuck you’d do, did you fucking kill her or what?” (dd. at p. 12.) Doubting Thomasreplied, “Yes, she’s fucking dead man.” ([bid.) Thomas did not explain why. (/bid.) Appellant“froze” and then asked Thomas,“What the fuck’s wrong with you man?” (Jbid.) At some point appellant returned the bottle of alcohol to the counter, he next 30 told police. (People’s Exh. 6Cat p. 16.) He noted that Doubting Thomas was still wearing the black leather gloves he had been wearing the entire time. (Jd. at pp. 21, 26.) At some point appellant went to his car to get his own pair of gloves because, as he told the officers, “after I saw what happened,I didn’t want my fingerprints in the house.” (Id. at pp. 21, 23.) Appellant returned to the house to find Thomas sitting on the living room couch rammaging through a bulky medium-sized purse he had taken from the lady’s bedroom. Forhis part appellant tried to wipe downthe areas around the doorway, the bedroom,the bottle, and the other items and areas he might have touched. (People’s Exh. 6C at pp. 21-24.) Thomas helped appellant with the wipe-down but with little interest (he had been wearing gloves and “was in a hurry”). (id. at p. 21.) As Thomas and appellant exited through the back sliding glass patio door Thomas had the purse in his possession. (/d. at pp. 12, 20-24.) Appellant was “freaking out” and “couldn’t believe it” (/d. at p. 12.) Appellant had not used the bathroom at all while in the house. (/d. at p. 25.) Onceoutside, appellant told police, Doubting Thomas handed him the knife he (appellant) had been storing in the console between the seats in his car. (People’s Exh.6C at pp. 12, 27.) Thomassaid,“Here, here’s your knife.” (/d. at p. 12.) Appellant said, “You fucking asshole man, you fucking wastethis chick man, you use my fucking blade.” (/d. at p. 12,27.) Appellant saw blood all over the opened knife, on his coat, and all over Thomas. (Id. atp. 12.) As they walked, with appellant carrying the still-extended knife, appellant, “still freaking,” said, “Man, I don’t know what the fuck we’re gonna do, what the fuck we’re gonna do.” (/d. at pp. 12-13.) Thomastold appellant to “be calm” and “fucking be cool.” (Jbid.) Appellantsaid, “we’re gonna fuckingfry for this man,go to the fucking chair.” (/d. at p. 13.) Thomas told appellant “don’t worry aboutit, well be covered.” (/bid.) Doubting Thomas wanted to return to John Chandler’s house but appellant 31 nixed that idea, saying “‘we can’t go back overthere, you know, looking like we do.” (People’s Exh. 6C at p. 13.) They then walked towards a duckpondthat was on the golfcourse about 200 to 300 yards from the woman’s house. About halfway to the pond, appellant grew “pissed off’ and threw the knife into the backyard of a house on the opposite side of the course from the victim’s home. (Id. at pp. 13, 15.) Appellant’s throw angered Thomas, who then wanted to retrieve the knife. (/bid.) As for the purse, Thomas took what he wanted from it (“rat-fucked it”), and threw it in the pond. (/d. at p. 13.) Appellant “didn’t pay much mind”to any ofthe pictures he saw in the purse. Thomasnoted that the woman worked at a V.A. Hospital. (/d. at p. 22.) Appellant told Thomas that they had to get rid oftheir “fucking clothes.” (/d. at p. 13.) Appellant thus took offthe sleeves to his coat, his shirt, and histennis shoes, and gave them to Thomas. (/bid.) Appellant told Thomas to wait by the duck pond while he wentto get the car. (/d. at p. 14.) In his bare feet appellant ran on the sidewalk and through the streets back to his car and then returned to pick up Thomas. (Id. at pp. 14, 26.) Appellant noted that Thomas was no longer holding his clothes and had gotten rid of some of his own. (/d. at p. 14.) Appellant asked Thomasabout the missing clothes and Thomasreplied, “don’t worry aboutit, I stashed ’em so they won’t be found.” (Id. at pp. 14, 26.) From there appellant drove Thomas back to where he hadoriginally picked him up (dd.at pp. 14- 15.) Appellant told Thomas that if “he went down I’d go downtoo.” (Id.at p. 25.) Appellant then returned to Chandler’s house and spentthe night there. (/d. at pp. 14-15, 26.) Appellant did not return to the woman’s house and take anything else. (/d. at p. 15.) He was unaware ofThomas having taken anything from the house otherthan the purse. (Ibid.) Appellant told police he did no stabbing. (People’s Exh. 6C at p. 15.) “T didn’t even know he was gonnadothat. I didn’t even know he had my fucking knife.” (People’s Exh. 6C at p. 15.) In the one or two months after the 32 stabbing appellantran into Doubting Thomas onlya couple of times and they said nothing to each other. (Jd.at pp. 23, 26.)” On March 30, 1987, at 11:30 p.m., an investigator from the District Attorney’s Office and a deputy district attorney interviewed appellant at the Santa Rita Jail after he waived Miranda rights. (14 RT 2739-2746; People’s Exh. 9A-9C.) Appellant again expressed interest in the Witness Protection Program becausehe had beenpresentat the time of Olsson’s homicide but he emphasized he didn’t do it: “I expressed my fears for myself as well as my family. And uh,to say I’m concerned would be an understatement because uh, ... this other fellow is associated with the Hells Angels and I wantto make sure _ that myselfand my family are both protected.” (People’s Exh. 9Cat p. 2.) The prosecutor offered appellant no promises and reminded him that what he said could and would be used against him. (/d. at pp. 2-3.) The prosecutor also tebuffed appellant’s overtures for a reduced charge andsentence. (Id. at p. 3.) The prosecutor asked appellant why he told his wife a story different from whathe told police on March 27. (People’s Exh. 9C at p. 3.) Appellant answeredbystating that he was going to “believe in” what Officers Robertson and Newton told him and added, “I hopelike hell that, you know,they’re telling me the truth and I’m surethey are so I’ll go ahead and go on with what I had saidearlier and tell you whatI got here.” (Jd. at p. 4.) In appellant’s ensuing answers to the questions posed to him by the prosecutor and the investigator, appellant essentially repeated whathe had told the officers earlier regarding the events of July 25, 1986, with some additions and changes, summarized as follows: 8. At the request of the Livermore police, the chief nurse at the Livermore Veteran’s Administration Medical Center. researched which medications were handled by Olsson during her tenure there. (14 RT 2769.) ChiefNurse Bricktestified that in the 27 years she was in charge there had been no shortages of any controlled substances. (14 RT 2769-2779.) 33 First, when Doubting Thomasand Olsson were together in her bedroom for the first time after appellant and Thomas entered the house it didn’t sound to appellant like Olsson and Thomas were having sex. And, when Thomas offered Olsson to appellant, he (Thomas) did not say he had already hadsex. (People’s Exh. 9C at pp. 12-13.) Second, during his sexual encounter with Olsson, appellant not only french kissed her and fondled herbreast, but she kept her arms wrapped around him and whenit was over asked him in a whisper, “Did you come?” (People’s Exh. 9C at pp. 15-16.) Third, when Olsson came running out of the bedroom before Doubting Thomas grabbed herandpulled her backin, she ran into appellant and knocked him over. (People’s Exh. 9C at p. 19.) She said nothing to appellantat that time. (/d. at pp. 20, 33.) Fourth, when Doubting Thomas pulled Olsson back into the bedroom she “wasn’t resisting that hard.” (People’s Exh. 9C at p. 20.) Fifth, during that time period nothing got disturbed; no pictures fell offthe wall “or anything like that.” (People’s Exh. 9C at p. 21.) Sixth, asked why Doubting Thomas would wantto stab Olsson, appellant replied, “I have no idea. J didn’t ask him.” (People’s Exh. 9C at p. 23.) “TI asked him whatthe fuck he did that for?” (/bid.) Seventh, after obtaining his gloves from his car, the areas in Olsson’s home that appellant wiped downincluded“the doorway,bottles of liquor, the knobs, the table in the bedroom,thelittle bit of the dresser.” (People’s Exh. 9C at pp. 24, 34.) Eighth, as appellant did his wiping, Doubting Thomas rummaged Olsson’s purse. Appellant did not state that Thomas helped him wipe things down. (People’s Exh. 9C at p. 25.) Ninth, in leaving Olsson’s house they had to unlock the sliding glass patio 34 doorto get out and appellant believed that Doubting Thomas re-lockedit after they were outside. (People’s Exh. 9C atp. 26.) Tenth, this wasn’tthefirst time in his life that a woman appellant did not know offered herselfto him sexually immediately after meeting him. (People’s Exh.9C at p. 29.) Asked by the prosecutor, “how manytimes have you had sex with women where you don’t say anything, she just spreads her legs and you start screwing?,” appellant replied, “More times than I care to remember.. . _ Td say morethan, morethanfive, less than twenty.” (Id. at p. 30.) “Sometimes it was party situations, sometimes it was just, um, what they call a pass-around chick.” (People’s Exh. 9C at p. 30.) “It’s not an unusual occurrence.” (/bid.) Appellant elaborated further: “Well, you know, if you go overto parties or anything like that, biker chicks, that kind of thing.” (/d. at p. 29.) Appellant concededthat Olsson did notstrike him as a “biker chick.” (bid.) Eleventh, once outside Olsson’s home, appellant saw blood on his jacket and “figured”it got there when Olsson bumped into him. (People’s Exh. 9C at pp. 32-33, 35.) Even though he was very drunk that night appellant could remember what occurredin vivid detail becauseit was “pretty dramatic event.” (People’s Exh. 9C at pp. 39-40.)” 9. People’s Exhibits SE, 6C, and 9C are the transcripts made from the tape recordings (People’s Exhs. 5C, 6A, 9A-B)thatthe prosecution played for the jury. Presumably the prosecution prepared these transcripts to comply with rule 243.9 of the California Rules of Court. The jury used Exhibits 6C and 9C to follow along as the prosecution played the corresponding tapes. Wecite to those transcripts herein, not the tapes. (14 RT 2745-2746, 2748-2749, 2898- 2900.) By contrast, the prosecution did not provide Exhibit SE to thejury. (14 RT 2876-2877.) Because the prosecution did not provide 5E to thejury, we are citing only to the tape, Exhibit SC. The prosecution did not introduce the Exhibit 6C and 9C transcripts into evidence. (15 RT 2990-2992.) Rule 31(b6)(11), which governs the normalrecord on appeal, and rule 243.9(a), both provide that transcripts of tapes furnishedto the jury or tendered to the court mustbe includedin the clerk’s transcript on appeal. Rule 34.1; which governs the contents and form ofthe record in a capital appeal, specifically provides that 35 The police ultimately determined that “Doubting Thomas” was one Thomas Pillard. (14 RT 2902.) The police subsequently interviewed Pillard, obtained a set of fingerprints from him, and submitted those fingerprints to the analysts at the state Departmentof Justice. (14 RT2903-2904.) Appellant’s Guilt-Phase Defense Case Expert criminalist Sharon Binkley testified that if a strand of hair from an unknown sourceis different from a strand ofhair from a known source, one can ‘concludethat the unknowndoesnotoriginate from the knownindividual. (14 RT 2931-2934.) Criminalists cannot determine whether a discarded strand of hair is from a male or female, but can sometimes determine the race of the person the examinedhair belongs too. (14 RT 2934.) In this case, Binkley examinedseveral pieces of hair evidence: pubic and head hair from Olsson, pubic and head hair from appellant, hair found in Olsson’s bedroom (from hersheets, blankets, pillowcases pajamas, robe) and hair brushed from Olsson’s vaginal area (a “pubic brush”is “where a combis run through the pubic hair of the victim at the coroner’s office” and “the idea is to pick up any loose pubic hairs or anything that is in the pubic hair of the victim”). (14 RT 2935-2938, 2950-2951, 2978-2979.) Except for some reddish brown animalhairs on pillow case, and two human headhairs on a knitted blanket, all of the hairs Binkley examined were consistent with having come from Olsoon, and inconsistent with appellant’s hair. (14 RT 2939-2943, 2958, 2978.) rule 31(b)(11) is applicable and thus transcripts are to be includedin a capital record. (Cal. Rules of Court, rule 34.1(a)(1)(A).) Because the transcripts that comprise Exhibits SE, 6C, and 9C were notincluded in the clerk’s transcript in this case, the People, subsequentto the filing of this Respondent’s Brief, and pursuantto rule 12(b)(1) ofthe California Rules of Court, will file a motion in Alameda County Superior Court to augmentthe record with those transcripts. _ 36 The Prosecution’s Guilt-Phase Rebuttal Case Sandra Walters, Olsson’s daughter,testified that on July 19, 1986, she went to her mother’s hometo visit and brought her dog, a Setter and Lab mix, with reddish-brownhair that the dog would regularly shed. (14 RT 2982.) The Prosecution’s Penalty-Phase Case On January 7, 1988, at around 5:45 p.m., in the maximumsecurity housing unit at the Santa Rita jail, appellant engagedin a fist fight with another inmate during meal time. (16 RT 3412-3414.) Appellantreceived a split lowerlip that required hospital treatment. (16 RT 3414.) The other inmate had novisible injuries. (16 RT 3415.) On September 26, 1991, at around 4:00 p.m., during meal time, appellant and another inmate were in a “wrestling hold” with each other. (16 RT 3418-3419.) “They continued holding on and,like trying to grasp each other, and eventually . . . they separated, tried to throw a couple of punchesat eachother, and then ended up back in the graspin wrestling kind ofsituation.” (16 RT 3419.) Neither inmate complied with demands to separate and the authorities had to forcibly separate them. (16 RT 3420.) Appellant had some bumpsandbruisesto his face and the other inmate required treatmentfor an eye injury. (16 RT 3422.) While appellant stood five foot seven inchestall and weighed 155 pounds, the other inmate was six feet tall and weighed 175 pounds. (16 RT 3422-3423.) Sandra Walters, Sandy Olsson’s daughter, was very close to her mom;they werebestfriends whovisited often (“we would love to shop”) and spoke on the phone. (16 RT 3425, 3438.) They talked together about “everything and anything.” (16 RT 3425.) Olsson wasa very loving, caring, and wonderful person. (16 RT 3425.) She “meant everything” to Walters. (16 RT 3425.) Learning of her mother’s death andits details left Walters “{l]ost and very, 37 very afraid, very scared.” (16 RT 3428-3432.) In her words, “I didn’t know who was going to take care ofme ifmy mom wasn’t around.” (16 RT 3432.) Despite receiving grief counseling, Walters remained very angry that her motherhad been taken from her. (16 RT 3437, 3439-3440.) Although Olsson had always wanted one or more grandchildren, as Walters explained, her mother’s death hadleft her with intimacydifficulties. (16 RT 3427.) Walters -also explained, “I don’t wantto have children because I don’t want anybodyto have to go through what I have, to lose your mother.” (16 RT 3427-3427.) “It’s very hard for me to be close with somebody. I prevented myself to be close enough to love somebody because J am afraid they’re going to go away like my mother did.” (16 RT 3439.) Olsson had once had breast cancer, and,testified Walters, “I think because she had a mastectomy, I realized because of that, that one, she would die sometime, and I—I think I expected it to be by cancer. But if she would have died by cancer, I could haveat least said good bye to her. I would have had sometime.” (16 RT 3434, 3436.) Walters thought of her mother daily, and “unfortunately, the first thought is the horror ofhow she died.” (16 RT 3432.) “Without ever thinking about it before, a knife was a utensil. And now,every time I see any kind of a knife, it’s how my mom died, represents the horror in her death.” (16 RT 3432.) In 1992, six years after her mother’s death, Walters still slept with a night light and a hatchet under the bed. (16 RT 3432.) Sandra Walters’s brother, Elbert Walters ITI (“Trip”) (16 RT 3463), testified that his mom enjoyedlife and cared for othersat all times (16 RT 3441). She “was a happy humanbeing.” (16 RT 3441.) She was also Trip’s “anchor.” (16 RT 3444.) Ashe putit, “She was always there for me. She was my friend.” (16 RT 3444.) Olsson had unconditional love for Trip, even as he struggled through someproblemsearlier in his life. (16 RT 3444, 3450.) 38 Olsson’s death left Trip feeling as if he were having a nightmare, and he desperately hoped that he was going to wake up. (16 RT 3442.) It wasn’t until he finished the distribution of his mom’s effects and the “hell” that that entailed, that he realized she “was really dead.” (16 RT 3442-3443.) That realization, according to Trip, “turned my whole world upside down. I was very depressed. The loss ofmy mother, to me, I, —can’t—I do not know how to put that into words. It was devastating.” (16 RT 3446.) Trip particularly missed the comfort his mother brought him during bad times, and missed sharing with her the good things that had happened to him since her death. (16 RT 3446.) “Unfortunately welive life on life’s terms. If ‘my motherdies ofcancer or an automobile accidentor somethinglike that, I am sure I would be able to understand it. For her to be murdered, I cannot understand that. And I can—I—I cannot understand that; it’s absolutely asinine.” (16 RT 3449.) Olsson’ssister, Jan Dietrich, testified that they were great friends who did a lot of traveling and sharing together. (16 RT 3459.) Dietrich knew that her sister had planned to work only three more years and was saving moneysothat she would have the freedom to do even moretraveling in retirement. (16 RT 3459.) Dietrich lived in Washington D.C., and when she was phoned with the information regarding hersister’s murder, couldn’t get on an airplaneright away. (16 RT 3460-3461.) She dreaded havingtotell her father, believing the news might cause his death too. (16 RT 3461.) “I was afraid he would have a heart attack.” (16 RT 3461.) Mr. Sandberg was expecting the plannedarrival of Olsson when Dietrich arrived at his home in Topeka, and, according to Dietrich, “my dad wasgetting all set and prepared for her. He was making the chicken dinner when I walkedin the door.” (16 RT 3462-3463.) “I didn’t tell him right away. I told him welost Sandy, and it took about two hours before 39 I couldtell him what happened. And he’s awful smart, so he finally, after about two hours, he said, ‘Okay, Jan, what really happened.’” (16 RT 3461.) From Topeka Dietrich made immediate arrangements to travel to Livermore, and as she waited in the airport she struggled with the knowledge that one ofplanesarrivingat that time was the plane hersister was supposedto have been on. (16 RT 3463.) On arrival in the Bay Area Dietrich took on the responsibility of trying to arrange for hersister’s funeral in an area with which Dietrich was not familiar, all while also trying to answerpolice questions. (16 RT 3664-3466.) The day after the funeral was Mr. Sandberg’s 85th birthday, and it was painful for Dietrich to watch him open the presents Olsson had already bought and wrapped for him. (16 RT 3468.) The following day a memorial service was held for Olssonat the Livermore Veteran’s Administration Medical Center at the insistence of the hospital administration. (16 RT 3468, 3476.) “The head ofthe hospital spoke, as well as many of the nurses, and then even patients spoke of what Sandy meantto them.” (16 RT 3468.) When Dietrich wasfinally allowedto access hersister’s home, she foundit “alien and awful,” full of fingerprint powderand blood onthe floors. (16 RT 3469.) Television cameras were also outside the house, and, on the request of police, Dietrich went on camera to ask anyone who knewanything regarding the crime to come forward. (16 RT 3470.) The mannerofhersister’s death left Dietrich with a constant worry about Olsson’s last 15 or 20 minutes, when,in Dietrich’s words, “I wasn’t there to help her.” (16 RT 3473.) Dietrich had no closure. (16 RT 3474.) Olsson’s father, Mr. Sandberg, 91 years of age in 1992, last saw his daughter Sandy on Memorial Day 1986,andlast spoke with her on the phone in mid-July. (16 RT 3485, 3487.) Both he and Olsson were looking forward to her planned 1989 retirement, as they were planning to buy a vehicle together, 40 equipit, and then begin traveling. (16 RT 3486.) Mr. Sandberg noted“that the first summerafter her retirement, we were going to go up to Canadaandupto the Yukon.” (16 RT 3486.) At his age, Mr. Sandberg had experienced the death of a numberofpeople close to him, but the mannerofhis daughter Sandy’s death had bothered him greatly, and caused him to experiencedifficulty sleeping. (16 RT 3487-3488.) Manytimes a day he was remindedof her. (16 RT 3488.) Appellant’s Penalty-Phase Defense Case The mitigation evidence appellant presented focused primarily on his family background. | Appellant’s maternal grandfather was an Apache Indian who lived on a reservation in New Mexico until he was 35 years old. (17 RT 3573.) He married a woman who was half-Indian and half-French; they both spoke Spanish and had a Spanish surname, DeHerrera. (17 RT 3573-3574.) Appellant’s mother Louise was born in 1934. (17 RT 3577, 3586.) Louise eventually had five children: She gavebirth to a daughter, Shirley, in 1952, and a son, Roger was born 11 months later on February 20, 1953. Their father left home in between those births, never to return. Louise remarried two to three years later and gave birth to Regina in 1955. (17 RT 3519-3521, 3558-3559, 3594.) When the children were very youngLouise often left them with their grandparents, and Roger remembered an incident when he wasaboutfive years old and asked his grandmother if she was “a Mexican.” (17 RT 3575.) According to Roger, she told him to approach her, “so I got up to her thinking she’s going to tell me some magnificent family secret and she slapped my face. I was stunned and taken aback,so I went to my mother and I said, “Mother, I asked momma if we were Mexican and she slapped me. Whydid she do that?’ And my mother told me, “Becauseit’s 41 noneof your business.’” (17 RT 3575-3576.) After later divorcing Regina’s father, appellant’s mother married Richard Ross Tully, and appellant was born on March 19, 1959. Mrs. Tully gave birth to a third son, Russell, in 1969. Russell’s paternity was uncertain. (17 RT 3519-3521, 3535, 3558-3559; People’s Exh. 6C at p. 1.) In any event, appellant was born in Turkey, while the family was stationed there as part of Mr. Tully’s service in the United States Air Force. (17 RT 3520, 3532, 3561.) The elder Mr. Tully had a drinking problem, and on one occasion during their stay in Turkey Shirley recalled that Mr. Tully, while drunk, attempted to spank Reginafor no reason atall. Their maid prevented it. (17 RT 3522, 3532- 3533.) Roger recalled that while in Turkey his mother and stepfather turned their base apartmentinto “‘a social club” for parties and forced the children to stay in their bedrooms whereall of the furniture had been placed. (17 RT 3570.) During one such party Rogerleft his room and saw his stepfather on the floor “knocked out cold” with a skillet on his head or stomach and food onhis stomach. (17 RT 3570.) Mrs. Tully then rounded up the children and took them to the house of another military family. (17 RT 3570.) It was during the family’s stay in Turkey that doctors diagnosed Regina with learning disabilities (“she may have been borderline retarded’) and recommended counseling for her. (17 RT 3561.) Appellant was approximately 18 months old whenthe family left Turkey. (17 RT 3532.) At somepointafter that, when Shirley and Roger were between 8 and 10 years old, Mr. Tully was assignedto a base in Greenlandfor a six- month period while the rest of the family lived in Wyoming. For a portion of that period Mrs. Tully had a live-in lover, and indeed on one occasion Roger saw his mother “naked and ontop ofher friend, who wasalso naked.” (17 RT 3524, 3536-3538, 3577-3578.) Roger further recalled that as a child, he and his 42 siblings “were constantly taken to visit friends” ofhis mother’s, “male friends,” who,she told the children, were never to be disclosed “to that God awful Richard Tully.” (17 RT 3577.) At some point after Wyoming the entire family was living together in Alaska. (17 RT 3522-3523.) There, Shirley became even more aware of her stepfather’s drinking, and became very embarrassed and ashamedbyit. (17 RT 3525.) According to Shirley, in Alaska, ifMr. Tully “wasn’t at the club, he was downstairs in the basement drinking.” (17 RT 3525.) Asthe oldestit fell to Shirley to clean the basementup after Mr. Tully, “and it always smelledofstale alcohol and beer.” (17 RT 3525-3526.) Shirley further recalled that her stepfather’s drinking not only cost him an Air Force rank and required him to spend timein a rehabilitation center, but it caused financial problems for the family and physicalfights with Mrs. Tully. (17 RT 3523-3524, 3526, 3546.) Mrs. Tully was the aggressor, said Shirley: “They were always fighting. [] Yes, at times my mother would get really mad, and mystepfather would have to hold her back because of her anger. . . . [§] Well, he would come homelate at night, or from the weekend, and they wouldstart fighting, naturally, because he was gone and he would be drinking. Andit didn’t end there. They would not speak to each other for days.” (17 RT 3524.) Shirley recalled that her stepfather had no respect for animals; on one occasion she saw him throw a Chihuahua downa flightofstairs. (17 RT 3527.) Healso seemed to have continuing animosity towards Regina, and oncetried to make her sleep in the bed that appellant had wet. (17 RT 3527.) When Shirley was 11, she remembered, Mr. Tully cameinto her room and asked her if she wanted “to learn how boys kissed.” (17 RT 3526, 3543.) And then, according to Shirley, “he tried to lay me downonthe bed, and I wouldn’t lay down onthe bed, because I felt just terrible. It was wrong.” (17 RT 3527.) When Shirley told her mother aboutthis, “it seemed like it didn’t sink in.” (17 43 RT 3527.) According to Roger, up until this time the family was somewhat religious and attended church on holidays. (17 RT 3586.) Like Shirley, Rogerrecalled his stepfather’s alcoholism well, remembering that Mr. Tully was a good workerdespite the fact that he sometimes drank to the point ofhallucination. (17 RT 3563, 3576.) One time, in Alaska, appellant (then six), Roger, and Mr. Tully went camping near a lake. (17 RT 3576, 3592.) “And while we were there, we parked the camper whereit overlooked the lake, and Richard Ross drank himselfinto such a stuporthat he thought we were in the lake, and he began screaming, “Get out, get out, get out. We’re going down, we’re going down.’” (17 RT 3576.) On a numberof other occasions, Rogerrecalled, Mr. Tully either did not return homein the evening, or else was accompanied homeby military police. (17 RT 3563, 3577.) On some occasions Mr. Tully came homewith black eyes. (17 RT 3563, 3576- 3577.) And one time, when Roger was 12, Mr. Tully “came home with an elbow that was just swollen up like a softball and his face was swollen shut.” (17 RT 3577, 3593-3594.) Mrs. Tully often accused Mr. Tully of being unfaithful. (17 RT 3577.) According to Roger, “In my mind, it was constantly that my mother would berate Richard Ross Tully for being a drunkard, a whoremonger, chasing women.” (17 RT 3571.) Although Roger remembered his stepfather “as a very quiet man with very little inputinto the home” (17 RT 3571),he alsorecalled quite a lot of physical aggressiveness between his parents, with his mother usually becoming the aggressor (17 RT 3563, 3569-3570). “That’s when we generally had an argument situation in our house. And more times than I care to remember, we were jerked up out of sleep in the middle of the night and hauledoffto a friend’s house or a neighbor’s house because ofvarious reasons that my mother wouldcite that my father was drunk, he was no good, he was dangerous and what have you for a stepfather.” (17 RT 3563.) Affection in the 44 Tully family was “up and down.” (17 RT 3569.) When Mr. Tully would leave the house to escape his wife’s anger and hostility she turned that anger and hostility toward her children. (17 RT 3571.) She would berate them for essentially no reason, and often ordered them to work around the houseatall hours of the day or night. (17 RT 3571.) “Of course,”stated Roger, “it didn’t matter what we were doing, we weren’t doing it nght or well enough or quick enough.” (17 RT 3571.) Accordingto Shirley, Mrs. Tully was “worse than a drill sergeant,” who offered her children no ‘compliments on anything, only demands for a better job. (17 RT 3525.) Ina word, according to Shirley, her mother was very “difficult,” and often did things to Shirley that “crushed” her. (17 RT 3528.) Rogertestified that Mrs. Tully meted out discipline on changing rules; thus, “you neverreally quite knew whenyou wereline for something, something you might do today mightbe all right and tomorrow mightbe the very wrongthing to do.” (17 RT 3572.) Mrs. Tully “used whatever was handy” to hit her children, including a belt. (17 RT 3572, 3599.) On one occasion Mrs. Tully broke a finger “disciplining” Roger with “her bare hand,” and another time smacked him in the head with herfist. (17 RT 3572.) Appellant seemed to catch the greatest bulk of Mrs. Tully’s anger and discipline. (17 RT 3573, 3597, 3600.) Whenthe family wasliving in San Bernadino during Roger’s ninth grade year, he discovered pornographic paperbacksin his parents’ bedroom: “Some of them dealt with incest with the father making it with the daughter. These werejustlittle paperback books, cheap ones put together I guess that you would find in X rated stores.” (17 RT 3578.) All of the dysfunction and commotionin the family not only turned Shirley inward, whereshe tried to block everything out, but it turned Roger into a very confused young man bythe time he was 15. (17 RT 3528-3529, 3564.) He 45 “acted out,” turned to drugs, and ran awaywith the circus for a six-week period of time when the family was living in Cheyenne. (17 RT 3564-3566.) Asfor appellant, Shirley tried to provide love, support, and care for him, and Rogertriedto be a goodbig brotherto him, playing with him,fighting with him, comforting him, and helping him with his schoolwork. (17 RT 3562, 3583-3584.) Mr. Tully was still hardly ever home (he worked twojobs), and Mrs. Tully sometimes worked too. (17 RT 3562, 3586.) Appellant looked up to Roger and Rogerloved appellant. (17 RT 3582.) When Rogerwas 16 and the family was living in Sacramento he ran away from home, feeling compelled to do so by another loud argument betweenhis stepfather and mother. (17 RT 3565-3566.) At some point Roger returned home, and the family moved to Dublin, California, where Roger began his senior year of high school. (17 RT 3567, 3593.) Shirley stayed behind in Sacramento after her graduation from high school. (17 RT 3528-3529, 3533, 3569.) During his senior year of high school, just before his 18th birthday in February 1971, Roger had a religious conversion. (RT 3567, 3594.) He then began spending so much timewith his church friends that one day his mother, in his words, “packed a bag for me,putit on the front lawn, and told meto go live with them.” (17 RT 3567.) Roger did so. (17 RT 3535-3536, 3567.) And when he left homethat day it was the last time he ever spoke with his stepfather. (17 RT 3571-3572.) Living with the church family was “‘a different life” for Roger. (17 RT 3567.) He learned “what a normallife” waslike, and learned about people whom hepreviously didn’t know existed: “people who didn’t drink all night, people who didn’t throw things. It was kind ofnice to come homein the evening. I even had a part-time job. After that it was always nice to find somebodythere that cared about you and was concerned about you and was concerned about your job and talked to you about other things. Somebodyyou [could] sit down anddiscuss the conditions oflife with.” (17 46 RT 3568.) Appellant was then 12 years old, and had just stopped wetting the bed and sucking his thumb. (17 RT 3571, 3583-3584.) Rogerstill came to see him, and tried to still provide support for him. (17 RT 3571.) Rogertried to bring his religion to appellant and he spoke to appellant aboutit; because Roger had been ostracized by the Tully family, however, appellant was forbidden from going to church with him. (17 RT 3587-3588, 3599.) Rogerleft for college in the fall of 1971. (17 RT 3567, 3594-3595.) | Shirley recalled visiting the family on an occasion when appellant was 13. Mrs. Tully constantly called appellant“stupid,” which caused him to cry and be upset. (17 RT 3528.) Mrs. Tully commonly told appellant“that he wasjust like his father.” (17 RT 3582.) When appellant was about 14 his parents finally split up. (17 RT 3534, 3583.) Roger graduated from college in 1975 with a degree in Theology. He returned to the Bay Area for a while andlived with the family he had lived with during his senior year of high school. (17 RT 3560-3561, 3596.) He had a brief visit with appellant in 1976. (17 RT 3590-3591.) Thereafter, Roger engaged in some missionary work. (17 RT 3560-3561.) By 1980 Mrs. Tully had injured her back in a fall and was living in Louisiana. (17 RT 3591.) Roger movedthereto locate his mother “and help her out.” Once there, he began a career as a Baton Roguepolice officer, serving part of that time as a homicide detective. (17 RT 3557-3560, 3591.) In 1981 appellant moved to Louisiana as well. (17 RT 3591.) Russell was living there too. (17 RT 3591-3592.) At some point appellant joined the Marines. (17 RT 3590.) In 1982 Regina wasarrested for distribution of marijuana and placed on diversion. (17 RT 3589-3590.) Meanwhile, Shirley had hadfive children of her own but lost custody of them because she could not take care of them. 47 Twice in 1984 she was hospitalized for mental and emotional problems. (17 RT 3529-3530.) During one of her breakdowns, she apparently attacked a highway patrolman. (17 RT 3588-3589.) Around 1986, on a therapist’s recommendation, Shirley joined a group called the Adult Children of Alcoholics, and the group meetings helped her. (17 RT 3529, 3533.) Sometime in 1986 Roger needed to transport his mother to the hospital because of an attempted suicide by taking a drug overdose. (17 RT 3579- 3582.) Roger had to handcuffher to preventher from ingesting morepills. (17 RT 3582.) This wasthe last contact he had with her. (17 RT 3546, 3582.) He foundherto be volatile: “she can be very sweet, give you theshirt offher back, but then makeyoupayforit later. But to describe her personality, as people get to know her, she really doesn’t have what I call close friends or sustained relationships.” (17 RT 3578.) She “goes off’ at the slightest provocation. (17 RT 3579.) Between 1987 and 1992 Russell was arrested in Louisianaforcultivation ofmarijuana but was neverprosecuted. (17 RT 3589-3590.) He and Roger had no relationship. (17 RT 3598-3599.) Nor did Regina and Mrs. Tully. (17 RT 3546.) A few years before 1992, when Shirley tried to renew herrelationship with her stepfather, he offered her money to have sex with him. (17 RT 3547- 3548.) Shirley had visited and corresponded with appellant regularly during his incarceration, and she hopedto continueto be able to do that. (17 RT 3531.) Shirley’s daughter Ursula, 18 years old in 1992, became acquainted with her uncle, appellant, only after he went into custody. (17 RT 3548-3550.) They - confided in each other and he offered her advice, which she hoped would continue. (17 RT 3551-3552.) According to Roger, the only thing that kept him from being in appellant’s situation was that he had a religious conversion. (17 RT 3568, 3590.) “The 48 only thing between mebeing up here and him being there, was the fact that I had a religious conversion whenI was 18. I knew what road I was going down. I knew whatit was going to lead to and I wasableto get out ofit, but I was 18 and he was 12 when left. It’s his responsibility, he’s got to take his responsibility for his reactions, but as far as how it all came out,it didn’t, as strange as it might seem,it’s the most normal, natural result. I don’t blame him.” (17 RT 3568.) Appellant had two children, Tony and Tanya. (17 RT 3531, 3602-3604.) Tony had written letters to his father in custody and had spoken with him on the phone, and wanted his father to live. (17 RT 3602-3603.) Finally, the inmate who fought appeilant in the Santa Rita jail in January 1988, Derek Mendoca, testified that he threw the only punchin that fight, hitting appellant in the mouth, and did so because appellant had “wiped some mustard or ketchup” on Mendoca’sshirt. (17 RT 3513-3515.) They had been friends before the fight and remainedfriends afterwards. (17 RT 3515, 3517.) Mendoca had 12 separate felony convictions: four counts of robbery, four counts of kidnaping, and four counts of rape. (17 RT 3514-3517.) 49 ARGUMENT I. THE MISSING PORTIONS OF THE RECORD DO NOT DEPRIVE APPELLANT OF AN ADEQUATE RECORD ON APPEAL Appellant states that well over 50 hearings or proceedings in his case, beginning in municipal court and continuingall the way through the penalty phase, went unreported. (I AOB 16, 19-20, & fn. 6.) Appellant contendsthat this renders the appellate record so incomplete and inadequate that this Court will be unable to conduct a meaningful review. (I AOB 16-23.) Appellant claimsin turn thatthis constitutes a violation of his Sixth Amendmentright to competent counsel on appeal, his Eighth Amendment right to a reliable determination ofguilt and penalty, and his Fourteenth Amendment nights to due process and equalprotection (as well as his parallel rights underarticle I of the state constitution), requiring reversal ofboth the guilt and deathjudgments. (I AOB16-23.) | Appellant’s assertions are meritless. He has not met his burden of demonstrating that the existing appellate record is not adequate to permit meaningful appellate review. A. The Law Is Well Settled There is no federal constitutional requirementthatall trial proceedings be transcribed. (People v. Howard (1992) 1 Cal.4th 1132, 1166.) “Under the Fourteenth Amendment, the record of the proceedings must be sufficient to permit adequate and effective appellate review.” (People v. Howard, supra, | Cal.4th at p. 1166; citing Griffin v. Illinois (1956) 351 U.S. 12, 20 [76 S.Ct. 585; 100 L.Ed.2d 891]; Draper v. Washington (1963) 372 U.S. 487, 496-499 [83 S.Ct. 774, 9 L.Ed.2d 899].) “Under the Eighth Amendment, the record 50 must be sufficient to ensure that there is no substantial risk the death sentence has beenarbitrarily imposed.” (People v. Howard, supra, | CalAth at p. 1166; citations omitted.) With respect to state law, at the time of appellant’s trial section 190.9, subdivision(a), read in pertinent part substantially as does subdivision (a)(1) today: “In any case in which a death sentene may be imposed,all proceedings conductedin the justice, municipal and superior courts, including proceedings in chambers, shall be conducted on the record with a court reporter present.” Wherea trial court fails to comply with section 190.9, or where portions of the record of trial court proceedings are missing for other reasons, the defendant must proceed with other methods of reconstructing the appellate record, such as through“settled statement” procedures (see Cal. Rules ofCourt, tule 7), if available, in order to obtain review. (People v. Hawthorne (1992) 4 Cal.4th 43, 66, People v. Frye (1998) 18 Cal.4th 894, 941.) The defendantis entitled to no remedy provided the incomplete record is adequate to permit - meaningful appellate review. (People v. Frye, supra, 18 Cal.4th at 941; accord, People v. Cummings (1993) 4 Cal.4th 1233, 1334, fn. 70.) It is the “defendant’s burden to show that deficienciesin the record are prejudicial”; i.e., it is the defendant’s burden to show thathe or she has beenleft with a record that is not adequate to permit meaningful appellate review. (People v. Howard, supra, | Cal.4th at p. 1165.) “As we said in People v. Chessman (1950) 35 Cal.2d 455, 462, ‘[i]nconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show whatit is and whyitis consequential.’ (/bid.) The Penal Codeis to the sameeffect: ‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions, which do not affect the substantial rights of the parties.’ (§ 1258; see also §§ 960, 1404.)” (People v. Howard, supra, | Cal.4th 51 at p. 1165.) B. Appellant Shows No Prejudice On November 10, 1997, the trial court held a hearing to conduct a preliminary review ofappellant’s post-judgment motionsto correct, augment, and settle the record on appeal. (11/10/97 RT 1-2.) The court directed the deputy clerk in charge of appellate issues and records to determine whether the allegedly missing transcripts ofproceedingsor hearingsidentified by appellant had in fact been transcribed. If so, the court stated it would order them produced; if not, the court wanted “somelevelofcertification”that they did not exist or could not be reported. (11/10/97 RT 7-9.) The court also directed appellate counsel and the prosecutor to review the existing transcripts to determine if the judge who presided over the memorialized hearings and proceedings hadstated for the record his recollection and understanding ofany off-the-record discussions or conferences. And, the court continued, if additional material was needed, defense counsel and the prosecutor should prepare a proposedsettled statement. (11/10/97 RT 10-12.) . Subsequently, appellant filed supplemental motions to correct and augment the record on appeal, and on August 12, 1998,he filed a second supplemental motion to augment. (51 CT 15365-15376; 15377-15381.) On February 23, 1999, appellantfiled “Appellant’s Draft Settled Statement Settling The Trial Court Record.” (51 CT 15396-15417.) On April 13, 1999, Judge Philip V. Sarkisian initialed and adopted appellant’s draft as the “Settled | StatementSettling The Trial Court Record.” (51 CT 15396, 15418) On July — 16, 1999, the court held an off-the-record conference in chambers regarding the status of appellant’s motion for corrections of the record. (51 CT 15423.) On August 30, 1999, appellant filed a list of items that remained outstanding, includinga list of proceedings for which no reporter’s transcripts existed. (51 52 ~ CT 15424-15431.) Several court reporters filed declarations stating that they had no stenographernotes for some of these proceedings. (ACT 1-9.) On September3, 1999, the court issued an order to correct the record. (51 CT 15432-15439.) That same day, the court acknowledged that the settled statement had been filed and the court dropped the matter from the calendar. (51 CT 15439.) 1. Two Of The Transcripts Appellant Claims Are Missing Are Not Appellant’s inability to show that the existing appellate record is inadequate to permit meaningful appellate review begins with the fact that two of the proceedings he claims went unreported, proceedings on January 27, 1992 (I AOB20,citing 8 CT 1744), and August 14, 1992 (I AOB 20,citing 8 CT 1974) were indeed reported. Thetranscripts are in the appellate record. The transcript for the proceeding dated January 27, 1992, where the court continued the matter to set a trial date, is included in the augmented clerk’s transcript. (ACT 116-117.) The transcript for the proceeding dated August 14, 1992, where, among other things, the court and counsel conferred in chambers regarding instructions and exhibits, where exhibits were marked for identification and the court admitted them into evidence, and where the court placedjury instructions on the record,is includedin the reporter’s transcript. (15 RT 2988-3022; 8 CT 1974.) 2. The Settled Statement Reconstructs Many Unreported Proceedings And Discussions Asnoted, the superior court initialed and adopted “Appellant’s Draft Settled StatementSettling The Trial Court Record”as the court’s “Settled Statement Settling The Trial Court Record.” (51 CT 15396-15417.) Thesettled statement 53 makesclear that many ofthe unreported proceedings that appellant complains ofdealt only with routine procedural or scheduling issues, which establishes an absence of prejudice from the missing transcript. For example, appellant complains that a September 10, 1987 hearing in Livermore Municipal Court went unreported. (I AOB 19,citing 5 CT 1128.) Theclerk’s transcript indicates that on September 10, 1987, Detective Jensen did not appear with compliance discovery materials; the prosecutor reported that there would be a substitution of counsel; and the court vacated the date set for the preliminary hearing and maintained that date for a compliance hearing. (5 CT 1128.) While no reporter’s transcript memorializes this event, the settled statement indicates that“all the information [Assistant Public Defender] Byron Brownrecalls concerning this hearing is contained in the Municipal Court Clerk’s Docket and Minutes for this date.” (ACT 8; 51 CT 15398.) Second, appellant complains about missing reporter’s transcripts for - November 18, 1987 preliminary hearing bench conferences andproceedings. (J AOB 19,citing 2 CT 526, 538, 564.) The record otherwise indicates that on November18, 1987, Detective Jensen requested an in camera hearing to claim his privilege to refuse to disclose certain police records. (2 CT 525.) The court discussed whetherit would be moreefficient to hold the in camera proceeding at anothertime and proceed with other witnesses. The prosecutortold the court that he only had one witness available that day, and there was a “discussion off the record.” (2 CT 526-527.) The settled statement indicates that Defense Counsel Brownbelieved the unreported discussion “concerned whether the parties should complete the in camera proceeding and continue with Thomas ~ Marshallas the witness,orifthey should take other witnesses’ testimony.” (51 CT 15411.) Third, the record otherwise also indicates that on November 18, 1987, Detective Newton claimedhis privilege notto disclose police-file information 54 regarding work that witness Marshall had done for the Livermore police department. (3 CT 557-559.) Defense counsel proposed that the court pre- approve questionsthat he wanted to ask Marshall on cross-examination,so that the court would not haveto repeatedly recall Detective Newtontothe standto assert his privilege on a question-by-question basis. (3 CT 564.) There was then a “side bar discussion.” (3 CT 564.) Thesettled statementindicates that Assistant Public Defender Brown believed that the unreported “discussion concerned whether Officer Michael Newton was going to have to return to court and assert the claim of privilege every time the issue of privileged information was raised.” (51 CT 15412.) Fourth, appellant complains about a missing reporter’s transcript for a December1, 1987 preliminary hearing bench conference and proceeding. (I AOB19, citing 5 CT 1105.) The preliminary hearingtranscript indicates that on that day the court held appellant to answer; ordered him to appear for arraignment on December 15, 1987; andthat theprosecutor informedthe court that a police officer would pick up the blood in evidencefor refrigeration. A “discussion off the record” then occurred, after which the court set the next court date. (S CT 1105.) Thesettled statementindicates that Defense Counsel Brownrecalled that the unreported “discussion concernedthe preservation of the blood samples and other refrigerated evidence.” (51 CT 15414.) Fifth, appellant complains about a missing December 15, 1987 reporter’s transcript for an Alameda County Superior Court pretrial and in limine proceeding. (I AOB 19, citing 6 CT 1543.) The clerk’s transcript indicates that on December 15, 1987, appellant’s arraignment was continuedto January 19, 1988. (6 CT 1543.) While the record does not contain a reporter’s transcript for this event, the settled statement indicates that Defense Counsel Brown recalled that “the reporter’s transcript for the preliminary hearing had notyet been prepared at the time of [the] appearance. Therefore, the arraignment was 55 continued for four weeks.” (51 CT 15398.) Sixth, appellant complains about the destruction ofthe court reporter’s notes for a January 19, 1988 hearing. (I AOB 16, fn. 6.) The clerk’s transcript indicates that on January 19, 1988, appellant’s arraignment was again continued, this time until January 25, 1988. (6 CT 1544.) While the record does not contain a reporter’s transcript of this event, the settled statement indicates that Assistant Public Defender Brownrecalled that the arraignment was continued becausethe reporter’s transcript of the preliminary hearing was not yet ready. (51 CT 15399.) | Seventh, appellant complains about a missing April 15, 1988 reporter’s transcript for an Alameda County Superior Court pretrial and in limine proceeding. (I AOB 19,citing 6 CT 1584.) The clerk’s transcript indicates that on April 15, 1988, the court continued a hearing on a motion to dismiss until May6, 1988. (6 CT 1584.) While no reporter’s transcript exists for this date, the settled statement indicates that Defense Counsel Brownbelievedthat “since the Penal Codesection 995 motion wasfiled that same day, the motion hearing was continued.” (51 CT 15400.) In other words, again all that is missing is a reporter’s transcript for a _ routine scheduling matter. Eighth, appellant complains about missing superior court transcripts for pretrial and in limine proceedings held on April 18, 1988, and June 6, 1988. (i AOB 19-20, citing 7 CT 1593, 1626.) The clerk’s transcript indicates that on both dates appellant was not present and the court dropped the defense suppression motion without prejudice. (7 CT 1593.) Although there are no teporter’s transcripts memorializing these events the court reporter has certified that her “shorthand notes reflect that on [both dates] when the court called the case of Richard Tully, the defendant was not present in court and the pending matters were dropped from calendar.” (ACT 1.) The settled statementstates 56 the same. (51 CT 15400.) Ninth, appellant complains abouta missing reporter’s transcript for June 17, 1988, concerning another superior court pretrial and in limine proceeding. (I AOB20,citing 7 CT 1131.) The clerk’s transcript indicates that on June 17, 1988, the court continued a motionto correct the record to June 21, 1988. (7 CT 1631.) This event is not memorialized in a reporter’s transcript. However, the settled statement indicates that Assistant Public Defender Brownrecalled that the “Deputy District Attorney [Mike Gaffey], wanted to talk to Deputy District Attorney David Whitman aboutthe proposedcorrectionsto the record. The hearing was then continued.” (51 CT 15402.) Tenth, appellant complains about a missing reporter’s transcript for a trial proceeding held on November2, 1992. (I AOB20,citing 9 CT 2144.) The clerk’s transcript indicates that on that day, on defense request, the court continued the “report and sentence” that had been calendared for that day. It is true that the continuance was not reported. (9 CT 2144.) Thesettled statement indicates that Defense Counsel Wagner“did not recall what occurred at this court appearance.” However, “[t]he majority of court appearances following Mr. Wagner’s appointmentrelated to scheduling matters [].” (51 CT 15410.) Eleventh, appellant complains about an unrecordedor untranscribed bench conference and proceeding which occurred during trial, on September9, 1992. (I AOB 20, citing 17 RT 3601.) What the extant reporter’s transcript does indicate is that on September 9, 1992, the court asked if appellant’s brother, Roger Tully, could be excused as a witness. Defense counsel asked if they could approachthe bench and there wasan off- the-record discussion between the court and counsel in chambers. Afterwards, the court excused Roger, subject to recall. (17 RT 3601.) The settled statement indicates that defense counsel Wagnerbelieved the unreported “discussion concerned holding or 57 excusing witness Roger Tully.” (51 CT 15415.) Not only doesthe settled statement, in whole orin part, reconstruct many of the unreported proceedings to show that those proceedings dealt only with routine scheduling or procedural issues, but the settled statement, in whole or in part, reconstructs many of the other missing reporter’s transcripts. For example, appellant complains about a missing reporter’s transcript from a Livermore Municipal Court hearing held on August11, 1987. (I AOB 19, citing 5 CT 1122.) The clerk’s transcript indicates that on that day, the court conducted a discovery hearing prior to the preliminary hearing. The clerk’s transcript provides a detailed accountofthe hearing. (5 CT 1122-1124.) The reporter’s transcript does not contain this hearing, but the settled statement indicates that “(alll the information Byron Brown recalls concerning this hearing 1s contained in the Municipal Court Clerk[’]s Docket and Minutes for this date (5 CT 1122).” (ACT 8; 51 CT 15397.) Second, appellant complains about a missing reporter’s transcript from a Livermore Municipal Court hearing held on August 19, 1987. (I AOB 19, citing 5 CT 1124, 1126.) The clerk’s transcript indicates that on that day the court heard argumentand ruled on a discovery motion. (5 CT 1124, 1126.) Again, although the appellate record does not contain a reporter’s transcript for this hearing, the settled statement indicates that “[a]ll the information Byron Brownrecalls concerning the hearing is contained in the Municipal Court Clerk[’]s Docket and Minutesfor this date (5 CT1124, 1126).” (ACT 8; 51 CT 15397.) Third, appellant complains about unrecorded or untranscribed bench conferences and proceedingsat the preliminary hearing on November 17, 1987. ({ AOB 19, citing 2 CT 488, 514.) The existing preliminary hearing transcript indicates that on that day, defense counsel moved to exclude testimony of prosecution witness Marshall regarding admissions madeby appellant while 58 Marshall and appellantwereinjail together. (2 CT 483.) Defense counsel and the prosecutor presented argument anda discussion washeld offthe record. (2 CT 488.) Thesettled statementindicates that Defense Counsel Brownrecalls that the discussion was about“the time frames Thomas Marshall was working with the Livermore Police Department.” (51 CT 15410.) The preliminary hearingtranscript also indicates thatafter the direct examination of Marshall, two “break(s] [were] taken” (2 CT 514.) Appellant additionally complains that there is no reporter’s transcript of an in camera hearing purportedly taken during one of the two “breaks.” (I AOB 19; citing 2 CT 514; see 51 CT 15410.) However, the record does not suggest that an in camera hearing was taken during either break. The settled statementindicates that Defense Counsel Brownhad no recollection of a proceedingheld duringeitherofthe “breaks.” (51 CT 15410.) The Livermore Municipal Court Clerk’s Docket and Minutes indicate the same. (5 CT 1141.) Fourth, appellant complains about unrecorded or untranscribed bench conferences and proceedings held on November 19, 1987,at the preliminary hearing. (I AOB 19,citing 2 CT 586; 3 CT 709.) The preliminary hearing transcript indicates that on November 19, 1987, witness Marshall took the stand, and the court stated that it would ask Officer Newton about certain information the defense had requested. A “discussion [was] held off the record.” Thesettled statement indicates that Defense Counsel Brownbelieved that the “discussion concernedinformation regarding the time frame of [when] the monetary compensation [was] paid to Thomas Marshall by the Livermore Police Department and the number of payments Marshall received.” (51 CT 15412.) Furthermore,the preliminary hearing transcript indicates that on November 19, 1987, the prosecutor objected to a response given by Marshall on cross- examination as nonresponsive, and objected to a question asked by defense 59 counsel as speculative and calling for a legal conclusion. The court sustained the objections and requested the parties to meet with it in chambers. The transcript indicates that a “sidebar discussion” was held. (3 CT 709; see also 5 CT 1153.) The settled statement and Livermore Municipal Court Clerk’s Docket and Minutes indicate that the in-chambers discussion and sidebar discussion were one and the same. Andthe settled statement indicates that Defense Counsel Brownbelievedthat the “discussion concerned simplifying the questions for the witness, Thomas Marshall.” (51 CT 15412; 5 CT 1153.) _Fifth, appellant complains about unrecorded or untranscribed bench conferences and proceedings that took place at the preliminary hearing on November 24, 1987. (I AOB 19,citing 5 CT 1043, 1046, 1078, 1079.) The preliminary hearing transcript indicates that on that day defense counsel requested from the prosecutorcertain informationthe prosecutor had developed on potential suspects. (5 CT 1045-1046.) A “discussion off the record” occurred andthe court ordered a 30-minute recess to talk with the attorneys about what investigative materials might have to be providedto the defense. . (5 CT 1046.) The settled statement indicates that Defense Counsel Brown believed the “discussion concerned what leeway he would be given in questioning the witness, Scott Robertson, about the focus of the police and the other leads and suspects that the police had in the case.” (51 CT 15413.) Sixth, appellant complains about a missing reporter’s transcript for an August 13, 1992, in-trial and in-chambers conference regarding guilt phase instructions and exhibits. (I AOB 20,citing 8 CT 1975.) The clerk’s transcript indicates that on August 13, 1992, counsel submitted proposed jury instructions, court and counsel conferred in chambers regarding jury instructions and exhibits, and the matter was continued for further conference. This proceeding was indeed unreported (8 CT 1975) but the settled statement indicates that Defense Counsel Wagner recalled “conferring on guilt phase 60 instructionsand believe[d] the results of these discussions werelater put on the record.” (51 CT 15409.) The record indeed memorializes a discussion on August 14, 1992, betweenthe court and counsel, regarding instructions, and the offering of, objections to, and admission of exhibits. (15 RT 2988-3022.) Seventh, appellant complains about a missing reporter’s transcript for a September 10, 1992 in-trial and in-chambers conference regarding penalty phase jury instructions. (I AOB 20, citing 8 CT 2018.) The clerk’s transcript indeed indicates that on September 10, 1992, the court and counsel conferred in chambersregardingjury instructions. This conference went unreported. (8 CT 2018.) Thesettled statement indicates that Defense Counsel Wagner recalled “conferring on penalty phaseinstructions and believe[d] the results of these discussions were later put on the record.” (51 CT 15409.) They were. (17 RT 3624-3625.) Eighth, appellant complains about missing September 9, 1992 reporter’s transcripts for in-trial bench conferences and proceedings. (I AOB 20,citing 17 RT 3601, 3611.) The reporter’s transcript in existence indicates that on September9, 1992, the prosecutor, on cross-examination, asked appellant’s son what he had done with his father the last time they were together before appellant was taken into custody. (17 RT 3610-3611.) Defense counsel objected and an off-the-record discussion took place between the court and counsel in chambers. The court then overruled the objection. (17 RT 3610- 3611.) Thesettled statement indicates that defense counsel Wagnerbelieved the “discussion concerned [co-counsel] SpencerStrellis’s beyond the scope of direct examination objection to Kenneth Burr’s cross-examination question of Richard Anthony Tully... .” (51 CT 15416; 8 CT 1974.) 61 3. The Settled Statement And Court Summaries Reconstruct Many Unreported Proceedings And Discussions In our view, the settled statement together with the court summaries made on the record reconstruct many of the unreported discussions of which appellant complains. For example, as noted, appellant complains about unreported or untranscribed preliminary hearing proceedings from November 24, 1987. (I AOB 19,citing 5 CT 1043, 1046, 1078, 1079.) The preliminary hearing transcript indicates that on that day, a defense witness, Sergeant Robertson, testified that as part of the Olsson murder investigation he had assigned additional patrol officers to stop and question people, including those known to have a history ofviolence. (5 CT 1041-1042.) The court stated that defense counsel was entitled to “explore other suspects,” but was uncertain ofthe focus of counsel’s examination. (5 CT 1042.) A “discussion off the record” took place. Subsequently, the court explained that the off-the-record discussion addressed the “possible problems in light of this line of questioning.” (5 CT 1043.) Similarly, the settled statement indicates that Defense Counsel Brown believed the “discussion concerned what leeway he would be given in questioning the witness, Scott Robertson, about the focus of the police and the other leads and suspects that the police had in the case.” (51 CT 15413.) Second, appellant complains about a missing June 25, 1992 reporter’s transcript of a trial matter. (I AOB 20, citing 8 CT 1975.) The clerk’s transcript indicates that on June 25, 1992, counsel and appellant were present in the courtroom and counsel conferred off the record regarding jury “questionnaires.” (8 CT 1887.) The memonialized transcript showsthat the court summarized the unreported conference as follows: That after 160 potential jurors had completed questionnaires, counsel conferred so that they could excuse certain prospective jurors for cause by way ofstipulation. (2 CT 62 370.) The settled statement confirmsthis as it indicates that defense counsel believed that the “‘unreported sessions’ involved discussions with the prosecutor regarding juror questionnaires, which led to later stipulations made on the record.” (51 CT 15414.) Third, appellant complains about a missing July 1, 1992, reporter’s transcript. ([ AOB 20,citing 8 CT 1908.) The clerk’s transcript indicates that on that day counsel and appellant were present in the courtroom;that counsel conferred offthe record regarding “questionnaires”; and that the court excused prospective jurors for cause by wayofstipulation of counsel. (8 CT 1908.) The reporter’s transcript showsthat the court explained, on the record, the unreported conferencein detail: THE COURT:Therecord will reflect defendantis present, as areall counsel. Further, that counsel have been, as I understandit, conferring this morningin the courtroom,asI further understandit, in the presence of the defendant with respect to the questionnaires completed by the third and fourth jury panels that have been assembled here with regard to prospective jurors, and I’m referring now to the morning panel of June 29th and the afternoon panel of June 29th. It’s my further understanding that based on their conference that counsel have agreed that certain jurors who I will identify by way of . juror numberon eachrespectivelist ofjurors will be excused for cause pursuantto stipulation, andthat the range ofreasons which underlie the stipulations are the same as were earlier set forth on the record with regardto the first two panels; am I correct, Mr. [Prosecutor]? [THE PROSECUTOR]: Yes, your Honor. THE COURT: [Defense Counsel]? [Defense Counsel]: Yes, your Honor. (2 RT 462.) Atthis pointthe court identified the jurors it would excuse for cause by way of stipulation. (2 RT 462-464.) Thesettled statement, likewise, indicates that Defense Counsel Wagner believed the “unreported sessions involved discussions with the prosecutor regarding juror questionnaires, which led to 63 later stipulations made on the record.” (51 CT 15414.) Fourth, appellant complains about an unrecorded or untranscribed bench conference and proceedingthat took place during trial on August 12, 1992. (I AOB20,citing 14 RT 2927.) The reporter’s transcript in existence for that day indicates that after the lunch recess, defense counsel withdrew thelast question he had asked Criminalist Binkley regarding DNAtesting ofhair,“in light ofthe stipulation.” (14 RT 2977.) Afterthe trial court excused Binkleyas a witness, the prosecutor placed on the record the stipulation between counsel that while “DNAtesting on hair torn from the head with tissue on the roots may provide informationas to the donorofthe hair,” the hairatissue in this case, hair found on an afghan or blanketin Olsson’s bedroom “remain unidentified, that is, it doesn’t belong to Sandy Olsson, does not belong to the defendant.” (14 RT 2979.) “Those two hairs were not pulled from the head, and thus do not have the necessary tissue for DNA processing. Thus there is very little likelihood that DNAtesting would provideany information aboutthe donorofthat hair.” (14 RT 2979.) The clerk’s transcript shows the same. (8 CT 1956.) While the settled statement indicates that there exists no reported transcript of the “proceeding at which a stipulation was discussed,” the settled statement also indicates that Defense Counsel Wagner“vaguely recalls that as a result of his question to Sharon Binkley at RT 2962:24 (“You can DNAtype them, can’t you?”), an in camera discussion was held andthe parties reacheda stipulation that appears at RT 2979...(51 CT 15415.) | Fifth, appellant complains about the untranscribed or unreported bench conference and proceeding held September3, 1992, during trial. Appellant’s citation to the recordin this regard (I AOB20,citing 16 RT 3404), makesclear that he is referring to an unreported proceeding that took place on September 1, 1992. (See 16 RT 3398.) The reporter’s transcript in existence indicates that on Tuesday, September 1, 1992, out of the presence ofthe jury, the court made 64 an extensive ruling regarding victim impact evidence. (16 RT 3404.) Afterwards, the court stated it was ready to proceed with the next phase of the proceedings, but was informedthat the jury had not been asked to return until Thursday morning. An off-the-record discussion then took place. (16 RT 3398-3404.) The court stated for.the record that during the unreported discussion, the parties had requested a copyofthe court’s ruling on the victim impact evidence, and the court agreed to make copies available as soon as possible. (16 RT 3404.) The settled statement confirms this, as Defense Counsel Wagnerbelieve[ed] the “discussion concerned the court’s issuance of a written ruling on victim impact evidence.” (51 CT 15415.) Sixth, appellant complains about threeunrecorded or untranscribed bench conferences and proceedings which occurred during trial on September 15, 1992. (I AOB20,citing 18 RT 3727, 3731, 3816.) With respect to one of those complaints, the reporter’s transcript indicates that at the endofSeptember 15, andat the end ofthe prosecutor’s closing argument, the court called defense counsel to the bench, and then held an “off the record discussion” betweenit and all counsel in chambers. (18 RT 3816.) After that unreported discussion, the court stated: All right, ladies and gentlemen, as I expect you have surmisedthat we've been discussing the issue on scheduling. Based onthe that discussion,in the sequencehere, it would be an appropriate place to take the afternoon recess bit early. (18 RT 3816.) Similarly, the settled statement indicates that Defense Counsel Wagner believed that the “conversation concerned Mr. Wagner’s request to begin the final argument” the next day. (51 CT 15416.) Seventh, appellant complains about an unrecorded.or untranscribed bench conference and proceeding which occurred duringtrial on September 16, 1992. Appellant’s citation to the record (I AOB 20,citing 18 RT 3890) makesclear 65 that heis referring to an unreported matter from September 17, 1992. (18 RT 3890.) | The reporter’s transcript in existence for that day shows that an unreported conference between the court and counsel took place to discuss a question posedby the jury. (18 RT 3890.) The court stated, for the record: Yesterday, the court received from the jury the following request, it reads: “We,the jury in the aboveentitled cause, request the following: Life definition—” the word “definition” is crossed out, “defimition of life,” and then it goes on to say,“legal definition oflife in prison without possibility of parole.” The court and counsel have conferred with regard to the issue of a responseto this matter, and it has been agreed the court will respond to this inquiry as follows: for the purpose of determining the appropriate ~ sentence for this defendant, you should assumethat either the death penalty or confinementin state prison for life without the possibility of parole would be carried out. You are not to consider or speculate as to any other possibility or any circumstance that might preclude either of the two penalties from being carried out. Andthat response is based in part on People v. Thomas, 45 Cal.3d — 131, People v. Witt at 51 Cal.3d 620, People v. Ramos 37 Cal.3d 159, and People v. Fiero, FIERO,[sic] at 1 Cal. 4 at page 250. All night. With that, Mr. Bailiff, if youll bring the jury down, we will respond to the inquiry. (18 RT 3890-3891.) Likewise, the settled statement indicates that defense counsel Wagner “knows that this discussion involved answering the jury’s question and considering various authorities, which resulted in the agreement thatis stated on the record.” (51 CT 15416.) As demonstrated above, the settled statement, together with the court summaries made onthe record, reconstruct many ofthe unreported discussions of which appellant complains. 66 4. Court Summaries Alone Reconstruct Many Unreported Proceedings And Discussions The appellate record before this Court reflects that the trial court and counsel put on the record the sum and substance of many of the unreported discussions appellant is currently protesting the absenceof. For example, appellant complains about an unrecorded or untranscribed bench conference and proceedingthat took place during trial on July 24, 1992. (I AOB20, citing 1 RT 190.) The reporter’s transcript in existencefor July 24, 1992, showsthat at some point the court and counsel metoff the record to review photographs and videotapes. (9 RT 1905.) Both counselstatedforthe record a detailed account of their requests and objections regarding the admission of the photographs andvideotapeinto evidence. (9 RT 1905-1925.) (It thus matters notthatin the settled statement, Defense Counsel Wagnerstated that he “did not recall this review ofthe exhibits.” (51 CT 15414.)) Second, appellant complains about an unrecorded or untranscribed bench conference and proceeding that took place duringtrial on August 4, 1992. (1 AOB20,citing 13 RT 2522.) Thereporter’s transcript for that day shows the prosecutor asking prosecution witness John Chandler if appellant had a hard time keeping a job six months before the murder occurred. Defense counsel objected on the grounds ofrelevance and requested an offer ofproofoutside the presence ofthe jury. The court and counsel then conferred off the record and - the court overruled the objection. (13 RT 2522-2523.) The court, prior to breaking for lunch andoutsidethe presence ofthe jury, put on the record the details of the bench conference: I simply want to memorialize for the record the subject matter ofthe last bench conference, which occurred at approximately 11:45. It was with respect to the witness Chandler, and, with regard to that, there had been a question asked by [the prosecutor] generally relating to the subject matter of the defendant’s employmentsituation prior to the killing. That was objected to. We—there was an approachto the bench 67 on that issue. There was discussion relating to the relevance of that question, also with regard to the relevance of the defendant’s appearance during the period that was being discussed beforethe killing and also with regard to the issue of possible drug use or involvement with drugs. At the end of that discussion the Court indicated that the Court would,and the record reflects that, the Court did overrule the objection relative to the defendant’s work history and the period of time being discussed before the killing. Finding there to be relevanceto that line of inquiry also J permitted the prosecutor, and indicated that I would to ask specific questionsrelative to the defendant’s appearance during that period. I also indicated that there was not to be, and there was not, any specific question relating to the subject ofdrug use andparticularly this - witnesses conclusion as to whatsituation may haveornotrelated in the change in appearancethat he attributed to the defendant. AndI think,ifyou agree with the accuracy ofthat recollection, we'll take our recess and return at 1:45. (13 RT 2536-2537.) Third, appellant complains about an unrecorded or untranscribed bench conference and proceeding that took place during trial on August 11, 1992. (I AOB20,citing 14 RT:2903.) The reporter’s transcript in existence for that day indicates that at one point the prosecutor asked police witness Robertson about Thomas Pillard, a.k.a. “Doubting Thomas,” a potential suspect in the murder investigation. Defense counsel objected to the questions, and the court and counsel then conferred off the record. (14 RT 2902-2903.) The court, at the end of direct examination and after excusing the jurors for the day, memorialized the bench conferences held earlier that afternoon. In relevant part, the court stated: At approximately 3:40 p.m. there was a further discussionrelating to a question by [the prosecutor] concerningthe issue of the investigation relating to the individual identified as Thomas Pillard and as to whether or not there had been discussion between the police and Mr.Pillard’s father. There wasa discussion at benchrelating to the relevanceof that line of questioning. 68 The Court indicated at the conclusion of that discussion the Court would permit a further question, in addition to the questions that had already been asked and to which there were answersrelating to that subject, would permit an additional question concerning whether or not the police had conducted an investigation relating to Mr. Pillard. (14 CT 2924-2925.) Fourth, as noted earlier, appellant complains about untranscribed or unreported bench conferences and proceedings that took place during trial on September 15, 1992. (1 AOB 20, citing 18 RT 3727, 3731, 3816.) The reporter’s transcript in existence for that day showsthe prosecutor, in his penalty phase opening summation, arguing victim impact evidence. Defense counsel objected twice, each time followed by a “discussion in chambers, not reported.” (18 RT 3727, 3731.) Following the noon recess, the court memorialized for the record the unreported conferences, as follows: I simply wanted to memorialize for our record that there were two bench conferences this morning during the courseofthe prosecution argument, both were requests of the defense counsel. With regard to the first bench conference, counsel expressed concern. relative to speculation and argument concerning the victim’s state of mind. There was discussion by court and counsel with regard to recognition of certain permissible argument concerning the—placing the jury in the victim’s place, and certain argumentbeing permissiblein that regard. But the court indicated that such argument was not without limitation, that victim impact argumentlike victim impact evidence was likewise, in the court’s view, not withoutlimitation, and that that was the guidanceprovidedat that time in terms of that dimension of argument. There was a second conference relating to a portion of the prosecution having utilized certain charts as demonstrative assistance throughoutthe course of argument. [Defense Counsel] Mr. Wagnerand Mr.Strellis raised a concern about a portion ofone chart whichI believe reflected something to the effect of bargaining with him. And with regard—there is an objection madeto that. That objection, the objection basically,as I recall, being that such a statement was without supporting the evidence, it was inviting the jury to speculate. The court sustained that objection and at defense request gave a—defense requested a specific admonition which wasgiven. That’s myrecollection of those 69 two conferences. (18 RT 3758-3759.) The prosecutor added that he supplied counsel with a hard copyofthe chart which had the phrase “dealing with bargaining” on it, and defense counsel acknowledgedthis. (18 RT 3759-3760.) 5. The Existing Record Apart From The Court Summaries And Settled Statement Reconstruct Many Unreported Proceedings And Discussions The existing reporter’s and clerk’s transcripts indicate that at least four of the unreported or untranscribed bench conferences and proceedings appellant protests dealt only with routine scheduling or procedural matters. For example,as noted previously, appellant complains about unreported or untranscribed matters from the preliminary hearing on November24, 1987. (I AOB 19, citing 5 CT 1043, 1046, 1078, 1079.) The preliminary hearing transcript in existence for that day showsthatafter the defenserested, the court asked if the prosecutor and defense counsel wanted to present argument then or later. Defense counsel stated that he wanted the court to read certain newspaperarticles before argument, after which the parties engagedin an off- the-record discussion. The court then assigned the date and time for argument. (5 CT 1079.) (It matters not that the settled statement indicates Assistant Public Defender Browncould notrecall this unreported discussion. (51 CT 15413.)) Second, appellant complains about an unreported or untranscribed bench conference and proceedingthat occurred duringtrial on June 11, 1992. (7 AOB 20, citing 1 RT 110.) The record shows that on that day, at a pretrial proceeding, while defense counsel was cross-examining a witness, the court ordered witnesses, who wereto testify at any proceeding in the case, to not be present in the courtroom. There was then a “discussion off the record,” and defense counsel resumed questioning the witness. (1 RT 110.) The clerk’s 70 transcript indicates that during the off-the-record discussion the court and counsel marked several exhibits for identification. (7 CT 1844.) Third, appellant complains about an unreported or untranscribed bench conference and proceeding that occurred duringtrial on August 20, 1992. (I AOB20,citing 16 RT 3261.) The reporter’s transcript in existence for August 20, 1992, indicates that after the jury began to deliberate, the court stated that there remained matters for it to address with counsel: A review of the verdict forms, items of evidence referred to as the “envelopes” (which the court had “already covered [] on the record”), and how to accommodate anyjury request for tapes and transcripts. (16 RT 3261.) The court ordered a recess and an off- the-record discussion occurred. (16 RT 3261.) Undoubtedly that discussion concerned the insignificant procedural matters. Fourth, appellant complains about an unreported or untranscribed bench conference and proceeding that occurred during trial on August 27, 1992. (I AOB20,citing 16 RT 3335.) The reporter’s transcript indicates that at one point on that day the court stated that it had conducted an unreported “brief scheduling conference” with counsel. (16 RT 3335.) Thus, it appears that the above unreported proceedings hadto do only with scheduling or other purely procedural events. Appellant has failed to indicate what the missing records might otherwise contain and there is “norealistic possibility that anything that occurred during these unreported conferences could haveresulted in reversal of the judgment.” (People v. Seaton (2001) 26 Cal.4th 598, 700.) 71 6. Nothing That Occurred In The Unreported Proceedings And Discussions That Cannot Be Reconstructed Could Have Resulted In Reversible Error Just as the existing record reconstructs many of the missing reporter’s transcripts and shows there is “no realistic possibility that anything that occurred during these unreported conferences could have resulted in reversal of the judgment” (People v. Seaton, supra, 26 Cal.4th at pp. 698-701), that ~ same conclusion applies to the missing transcripts that the record and parties cannot reconstruct. For example, appellant complains about unreported or untranscribed bench ’ conferences and proceedings from the preliminary hearing on November 18 and 19, 1987. (I AOB 19, citing 2 CT 526, 538, 564, 709.) At one point on that day the court held an in camera hearing with Deputy Jensen and Detective Newtonregarding their claimed privilege to not disclose information regarding work that witness Marshall had done for the Livermore police department. (3 CT 538.) This event is not memorialized by the reporter’s transcript, and the settled statement indicates that Assistant Public Defender Brown “was not present for the in camera proceeding.” (ACT 8; 51 RT 15411.) The preliminary hearing transcript also indicates that on November 19, 1987; defense counsel on cross-examination, twice asked Marshall about whetherhe andjailmate Shane hadtalked about Shane threatening appellant’s life. There was a “discussion off the record,” after which defense counsel continued to ask Marshall abouthis conversation with Shane. (3 CT 746-747.) Thereporter’s transcript does not memorialize this discussion, andthesettled statement reads that Defense Counsel Brown did not recall this sidebar discussion. (51 CT 15413.) It is unfortunatethatthe trial court and counsel could not reconstruct what was specifically discussed betweenthe court, Jensen, and Newton in camera at the preliminary hearing, or what the court and counsel discussed at the bench 72 during cross-examination of Marshall during the preliminary hearing. However, Marshall never testified at trial and therefore appellant cannot demonstrate any unfairness athis trial. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) This same conclusion applies to the unreconstructed bench conference and proceeding that at one point occurred during the preliminary hearing on November24, 1987. (I AOB 19,citing 5 CT 1078, 1079.) The preliminary hearing transcript indicates that one point on that day defense counsel asked the court to strike testimony about the type of bed clothing Olsson woreat night whenherfather stayed at her house. (5 CT 1072-1073, 1075-1076, 1078.) There was a “discussion off the record,” after which the court admitted the testimonyfor the purpose of showing that Olsson wore nightclothes when she went to bed. (5 CT 1078-1079.) It is unfortunate that the trial court and counsel could not reconstruct what they discussed at this bench conference during the preliminary hearing. However, appellant objected to this same testimonyat trial and the discussion asto the admissibility ofthis evidence was fully placed on the record. (14 RT 2757-2762.) He thus can suffer no prejudice from the missing portion of the preliminary hearing transcript. (People v. Pompa-Ortiz , supra, 27 Cal.3d 519, 529.) Werecognize that appellant protests that reporter’s transcripts are missing for proceedings that occurred on these dates: June 17, 1991; September 23, 1991; November 25, 1991; January 30, 1992; February 11, 1992; March 10, 1992; March 20, 1992; April 17, 1992; May 6, 1992; May 26, 1992; and June 9, 1992. (I AOB 16, 19-20, & fn. 6.) What occurred on those dates has not been definitively reconstructed. However, we know from the clerk’s transcript andthe settled statement that counsel waived the presence of a court reporter for the proceedings of February 11, 1992; March 10, 1992; March 20, 1992; April 17, 1992; May 6, 1992; May 26, 1992, and June 9, 1992. (7 CT 1739, 73 1744, 1745, 1750,.1751, 1825.) We also know that the majority of the proceedings dealt only with scheduling matters (such as the setting ofa trial date). (7 CT 1665, 1666, 1668, 1737, 1738, 1739, 1744, 1745, 1750, 1751, 1804; 51 CT 15405-15409.) Finally, appellant protests that the trial court’s “personal notes”are notpart of the appellate record. (I AOB 21.) On December4, 1992, the court denied appellant’s motion to modify the death verdict to one oflife in prison without the possibility of parole. (18 RT 3914.) The court stated that, in makingits determination,it had examined and reviewedall evidence, and “also reviewed its own personal notes relating to the evidence receivedasto all phases of the _ case.” (18 RT 3914.) The absence of those notes from the record has not prevented appellant from litigating any issue the case presents, where the court’s decisions and the evidencein support of the decisions are contained in the record. In summary, any missing portionsofthe recordin this case do not foreclose adequate and meaningful appellate review. The settled statement, the clerk’s transcript, the reporter’s transcript, and the summariesofthe court and counsel memorializing for the record the unrecorded proceedings, provide the content for mostofthe unreported proceedings and discussions. (51 CT 15396-15417.) Appellant is simply wrong when he contends that the memorialized court summaries “fail to reflect the substance ofthe proceedings”andthatthe “settled statement and augmented record do not adequately reconstruct the substance of the missing records and incomplete transcripts.” (I AOB 16-17.) In addition, many of the unreported proceedings or discussions dealt with routine scheduling and procedural matters, how to preserve physical evidence, or with the clerical marking of exhibits. It is also simply inconceivable that anything of consequence could have happenedator prior to the preliminary hearing, which are when many of the unreported proceedings that appellant 74 complains of took place. (People v. Cook (2006) 39 Cal.4th 566, 586.) Accordingly, one can hardly call those missing portions of the record “substantial” in the sense that they affect the ability of this Court to conduct a meaningful review. (People v. Cummings, supra, 4 Cal.4th at p. 1334,fn. 70.) The record is more than “sufficient to ensure thatthere is no substantialrisk the death sentence has been arbitrarily imposed.” (People v. Howard, supra, 1 Cal.4th at p. 1166.) People v. Pinholster (1992) 1 Cal.4th 865, is instructive. There, the trial court refused to order the reporter to memorialize every bench conference between the court and counsel. Thus, 133 sidebar conferences went unreported. (Id. at p. 919.) Defendant argued to this Court that the trial court’s action. violated, among otherthing,his right to due process,to effective assistance of counsel, andto a fair and reliable review of the guilt and penalty determinations as guaranteed by article J, sections 7, 15, 16 and 17 of the California Constitution, and by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. (1 Cal.4th at p. 919.) This Court rejected the claim: Weare convinced that no “substantial” portion of the record is missing in this case. The record in this appeal consists of 56 volumes of reporter’s transcripts, covering 7,557 pages, 4 volumes of clerk’s transcripts, covering 1,208 pages, as well as augmented clerk’s and reporter’s transcripts of several volumes. We have before us the reporter’s transcript of the preliminary hearing, of hearings on all the pretrial motions, of voir dire, of the opening and closing arguments of the prosecutor and both defense counsel, of the testimony of every witness, and of the trial court’s every word to the jury, including, of course,jury instructions. Wehaveall the parties’ pleadings and written motions, as well as the reporter’s transcript of the hearing on defendant’s motion for new trial, the application for modification of sentence, and the formal sentencing. For the purposeofappeal,a settled statement was prepared, supplyingthe recollection ofthe parties and the court of the content of the unreported sidebar discussions. Theparties were able to fully settle the record as to 66 sidebar discussions; as to 40 more, they recalled at least part of the discussion, and as to 27 discussions, no settled statement is provided. Of the 133 unreported 75 sidebar discussions, 58 took place during jury selection and before the taking of testimony. To put the matter in perspective, we note that the trial extended over 53 court days. Most importantly, the trial court told counsel it was appropriate to put their objections on the record; it was only their sidebar argumentsthe court refused to order reportedin every instance. Many sidebar conferences were in fact reported. Counsel followed. the court’s advice; the record bristles with hundreds of evidentiary and other objections, and the court’s rulings thereon. With respect to every issue raised on appeal, we have found the record sufficient to permit review. It is in this context that we mustfind that any abuseofdiscretion, assumingit existed, was not prejudicial, because the recordis clearly adequate for meaningful appellate review. (People v. Pinholster, supra, 1 Cal.4th at pp. 921-922:) Likewise here, the record in this appeal consists of 18 volumes ofreporter’s transcripts, covering 3,921 pages, and 51 volumes of clerk’s transcripts, covering 15,463 pages. There are also additional volumesof reporter’s and augmented reporter’s transcripts. This Court has before it the reporter’s transcriptof the preliminary hearing, ofthe hearingsofthe pretrial motions, of voir dire, of the opening and closing arguments of the prosecutor and defense counsel, of the testimony of every witness, and ofthe trial court’s every word to the entire jury, including, of course, jury instructions. It appears that this Court has beforeit all the parties’ pleadings and written motions, as well as the reporter’s transcript of the hearing for the application for modification of the verdict, and the formal sentencing. Asin Pinholster, the present record is clearly adequate for appellate review. This conclusion is supported by the fact that in discussing the record appellant not only does not focus on what the record contains, but also fails to persuasively assert that what is missing has prevented him from litigating any issue the case presents. Finally, appellant argues that “if this Court fails to find prejudice,” in the alternative it must apply a reversible per se standard wheneverthere are missing and unreconstructed portions of an appellate record in a capital case. (I AOB 76 22.) However, “[w]ith the exception of the Fifth Circuit, every Court of Appeals that has addressed the issue of incomplete or unavailable transcripts has required that the appellant show that the Act’s violation specifically prejudiced their ability to perfect an appeal.” (United States v. Kelly (8th Cir. 1999) 167 F.3d 436, 438; see United States v. Brand (1st Cir. 1996) 80 F.3d 560, 563; United States v. Sierra (3rd Cir. 1992) 981 F.2d 123, 125; United States v. Gallo (6th Cir. 1985) 763 F.2d 1504, 1530; United States v. Antoine (9th Cir. 1990). 906 F.2d 1379, 1381.) This Court’s rule is that prejudice is not presumed from missing appellate records. This Court should not abandonits rule thatit is the defendant’s burden to show that deficiencies in the record are prejudicial (People v. Howard, supra, 1 Cal.4th at p. 1165), in favor ofarule ofper se reversal wheneveranyportion of the record is missing, no matter how insignificant. This Court should continue to weigh the burdens and benefits of reversal on a case-by-case basis so that a defendant does not get the windfall ofreversal where, as here, nothing suggests that the missing portions of the appellate record includes anything of consequence. Appellant’s first contention fails in its entirety. 77 I. THE TRIAL COURT PROPERLY DENIED APPELLANT’S SUPPRESSION MOTION Appellant contends that on March 7, 1987, in many different ways, the police violated numerousof his rights under the Fourth, Fifth, Sixth, Eighth, . and Fourteenth Amendments to the United States Constitution, as well as his rights underarticle I of the California Constitution. Appellant contends that — these violationsled to the discovery ofthe fingerprint evidence against him,as well as the inculpatory statements he gave to the authorities on March 27 and "March 30, 1987. Appellant assigns prejudicial errorto the trial court’s rejection ofhis constitutional arguments and its concomitant ruling refusing to suppress the.fingerprint evidence andhis inculpatory statements. (I AOB 24-65.) Appellant claims are baseless. He wasnot the victim of any constitutional violation. And evenif he was the victim of one or more such violations, the discovery of the inculpatory finger and palm print evidence was nottainted by or the fruit of the illegalities (see Wong Sun v. United States (1963) 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441]), and the police would have inevitably obtained that evidence in any event. Accordingly, appellant would have also inevitably given his incriminating statements. The trialcourt properly denied his suppression motion. A. The Evidence Adduced At The Suppression Hearing Is Denied After the discovery of the homicide of Sandy Olssonand the recovery, on the golf course behind her house,ofa Buck knife with a fingerprint and partial palm print on it, the Livermore police conducted a neighborhood check by contacting the residents of 150 to 200 houses in Olsson’s neighborhood for leads to potential suspects. The police marked, on an area map, the houses where they successfully made contact with a person. (3/30/92 RT 4-9, 16-17, 78 33, 41-46.) Between July 1986 and March 1987,police investigated about 30 people as possible suspects. Appellant was notincluded. (3/30/92 RT 8-9.) Also during that time period the Livermorepolice sentall ofthe fingerprints in their records to the Department of Justice for comparison with the fingerprint on the recovered Buck knife. (3/30/92 RT 8, 17-18.) Appellant’s fingerprints from a 1973 juvenile arrest were among those sent and compared. (3/30/92 RT 10, 18-19, 26.) The analyst only compared the tight-middle fingerprint on the fingerprint cards provided him by the Livermore police with the fingerprint found on the Buck knife. (3/30/92 RT 19.) He made no match. (3/30/92 RT 8-9, 19.) On March 7, 1987, at about 8:00 p.m., as Livermore police officers Trudeau, Painter, and Shweib surveilled the residence of a known narcotics offender and probationer, Kenneth Perry, at 353 North “I” Street, two men in a Fiat drove by twice and then parked three car lengths away from Perry’s residence. (3/30/92 RT 49-52, 108.) Trudeau told Painter that he recognized the passenger as Ed Snyder, but could notrecall the driver’s namealthough he (Trudeau) had previously stopped the Fiat. (3/30/92 RT 50-52, 90, 108-109.) Snyder stayed in the car as the driver exited and walked to Perry’s residence. (3/30/92 RT 53.) Shortly thereafter, Perry and thedriver looked out a window at Officer Shweib, as he drove away on a call with his overhead lights on. (3/30/92 RT 55, 86-87.) Painter told Trudeau that he thought appellant was thedriver of the Fiat. (3/30/92 RT 53, 109.) Painter explained that about a week earlier he had taken a report in which appellant was suspected of vandalizing a truck with a knife. Appellant had been purportedly retaliating for a narcotics transaction gone sour, and Painter further told Trudeauthat the vandalism victim and a friend had claimed appellant was a heavy narcotics user who was normally armed. Painter advised that appellant 79 had a suspended driver’s license and that Snyder had a warrant out for his arrest. (3/30/92 RT 53-54, 70-71, 76, 84-85, 91, 109-111, 119-120; 4/6/92 RT 126-127, 134-135.) Twenty-five minutes later appellant walked out of Perry’s apartment. (3/30/92 RT 53-55.) He got in the Fiat, backed up one-half block without turning on his lights, made a U-turn, and drove northbound. Officer Trudeau followed him for six blocks, confirmed that appellant had a suspendedlicense, and then initiated a traffic stop. (3/30/92 RT 56-57, 76-78, 92, 109.) Officer Painter followed two blocks behind. (3/30/92 RT 57-58.) Trudeau proceeded to the driver’s side of the Fiat and asked appellant for his registration and driver’s license. Appellant spent a short time looking for his car registration and finally, provided only his license, which identified him as Richard Tully and his address as 1572 Hollyhock, in Livermore. (3/30/92 RT 58, 89-90, 101.) Meanwhile, Painter, rejoined by Officer Shweib, stood at the passenger side of the Fiat. Painter spoke to Snyder and arrested him. Painter and Shweib moved Snyderto a patrol car. (3/30/92 RT 58-59, 90, 93, 101, 111-112; 4/6/92 RT 125.) As Shweib waited in the patrol car with Snyder, Painter walked back to appellant, who was standing outside the driver’s side door of the Fiat with Trudeau. When Trudeau walked backto his patrol car to complete a citation for appellant having driven with a suspendedlicense, Painter began speaking with appellant about the prior vandalism incident. (3/30/92 RT 59-60, 74-76, 95-97, 113-114; 4/6/92 RT 125, 127, 135-136, 139.) Painter told appellant that he (the officer) had heard that appellant was a heavy narcotics user, and was “heavily” armed with a knife. Painter told appellant that he wanted to search him and asked him for permission to do so. (3/30/92 RT 60, 75,:90, 96-97, 114; 4/6/92 RT 128-129, 131, 137.) “I told him I would like to search him; if he mind if I search him.’ (3/30/92 RT 114.) Appellant responded 80 affirmatively. (3/30/92 RT 61, 114.) “‘Sure, I don’t have anything on me.’” (3/30/92 RT 114.) Using a flashlight, Officer Painter looked inside appellant’s belt line and pockets and removed clear plastic bindle containing white powderfrom oneofappellant’s front pants’ pockets. (3/30/92 RT 94, 114-115, 131-132, 138, 140.) Painter believed the powder was methamphetamine and gave it to Officer Trudeau. (3/30/92 RT 61, 115-116, 135.) Trudeau then asked appellant if he could search the Fiat. Appellant replied, “‘Sure, go ahead.’”(3/30/92 RT 62, 94, 115-116; 4/6/92 RT 132-134, 138, 140.) Underthe ashtray Trudeau found twoor three hyperdermic syringes, and a bent and burned spoon. At that point the officers arrested appellant for possession of methamphetamine, possession of hyperdermic syringes, and driving with a suspendeddriver’s license. (3/30/92 RT 62-63, 116.) The police transported appellant to the Livermore Police Station. (3/30/92 RT 63, 116- 117.) At headquarters Trudeau conducted another search of appellant. He found seven or eight clear plastic coin bags containing methamphetamine in appellant’s underwear. (3/30/92 RT 63, 98, 117.) Trudeau thenread appellant his Miranda rights. Appellant waived them. (3/30/92 RT 63-64, 79.) Trudeau explained to appellant that he was going to ask him questions aboutthe items the officers had found on him. Appellant said he didn’t want to talk, so Trudeau stopped the conversation. (3/30/92 RT 64-65, 79-80.) Subsequently, however, appellantinitiated a conversation concerninghis desire to not go to Santa Rita jail that evening. (3/30/92 RT 65.) Trudeaureplied that there were ways for that not to happen; that perhaps they could come to an agreement where appellant could “work off his offense.” (3/30/92 RT 65.) At that point appellant and Trudeau talked about who appellant could buy methamphetaminefrom. (3/30/92 RT 65.) Trudeaualso asked appellantifhe wantedto talk to the narcotics detective. Appellant said yes. (3/30/92/RT65.) 81 Asthey then waited for that narcotics officer, Detective Jensen, Trudeau and appellant talked about appellant’s background. (3/30/92 RT 65-66.) Appellant discussedhis service in the Marine Corps, his problems with homelife, and his problems with methamphetamineuse, including that he was using fourorfive times a day by injection. (3/30/92 RT 66.) Appellant also admitted that he supported his habit by breaking into cars and housesandselling the stolen items, and that he was being treated for a stomach problem at the Veteran’s Hospital. (3/30/92 RT 66.) Officer Trudeautold appellant that the information regarding his methamphetamineuse and how he supported his habit would not be used against him and Trudeaudid not includethis information in his police report. (3/30/92 RT 81.) When Detective Jensen arrived he spoketo appellant privately about striking a deal. Later Jensen told Trudeau that appellant had agreed to “work off his case.” (3/30/92 RT 67.) Because ofthat the police released appellantthat night. (3/30/92 RT 67, 103.) A few days later, Trudeau realizedthat he still had possession ofappellant’s driver’s license from the traffic stop. (3/30/92 RT 68-69.) Trudeau called Jensen to see if he was in touch with appellant. Jensen replied that he was going to file the original charges against appellant because appellant had breachedhis end of their bargain. (3/30/92 RT 69.) When Trudeau drove to the address shown on appellant’s driver’s license, 1572 Hollyhock in Livermore, he realized that appellant lived only two houses away from where homicide victim Olsson had lived. (3/30/92 RT 69, 87-89.) Trudeau also recalled that appellant had said he was getting treatment for a stomach condition at the Veteran’s Hospital, and Trudeau knewthat Olsson had been a nurseat the Livermore VA Hospital. (3/30/92 RT 69-70.) Trudeau also recalled that the FBIprofile of the Olsson killer indicated that the perpetrator more than likely lived in the area, knew the area, and was probably a drug user. (3/30/92 RT 71.) Trudeau thus believed appellant to be a suspect in the Olsson killing. 82 (3/30/92 RT 87.) Trudeau found no one homeat 1572 Hollyhock. (3/30/92 RT 71) | On March 17 or 18, 1987, Officer Trudeau contacted Officer Robertson. According to Trudeau, he told Robertson about March 7 andthe contact with appellant and the subsequent breached deal. (3/30/92 RT 71-72, 81-82.) Trudeau also told Robertson about his attempt to return appellant’s driver’s license, that appellant lived two houses away from victim Olsson, and that appellant had stated he was a methamphetamineuser whobrokeinto houses to support his habit and who was beingtreated at the VA Hospital where Olsson had worked. (3/30/92 RT 72, 83-84.) Robertson testified that he did not recall Trudeau telling him about appellant’s statements concerning appellant’s methamphetamine use and how he supported his habit. (3/30/92 RT 21-22, 25-29.) Robertson did recall that Trudeau told him aboutthe traffic stop and searches, and that Trudeau had discovered that appellant lived only a couple doors away from the victim’s house. (3/30/32 9-10, 21-23, 25-26.) Trudeau also suggested that perhaps appellant’s prints should be re-checked againstthe prints found in the Olsson case. (3/30/92 RT 10, 21, 26-28.) Trudeau and Robertson briefly looked atthe area map used for the neighborhood check. There was no indication that appellant lived in the area or had been contacted. (3/30/92 RT 33-34, 72-73, 81, 83-84.) | As Trudeauleft the office he ran into Officer Leal and told him what he suspected about appellant. Leal replied that he knew ofappellant because he had recently taken a report about a-knife crime in which appellant was a suspect. (3/30/92 RT 73, 85.) Trudeau thenrelayedthis additional information to Robertson. (3/30/92 RT 10, 73.) Robertson ran a records check on appellant, learned of past arrests, and found in the police files appellant’s fingerprints from the 1973 juvenile case. (3/30/92 RT 10; 4/6/92 RT 172.) 83 On March 25, 1987, Robertson hand carried appellant’s 1973 prints to Sacramento and gave them to analyst Rienti at the DOJ. Rienti determined that appellant’s right-ring fingerprint—as opposedto the right-middle fingerprint compared previously—matchedthe fingerprint onthe Buck knife. (3/30/92 RT 10-11, 19, 26-27.) On March 27, 1987, at 11:10 a.m., a detective called and advised Livermore Police Sergeant Jack Stewart that appellant’s car was at 4097 Churchill Drive in Pleasanton. (4/6/92 RT 148.) The police had two warrants for appellant’s arrest (neither was for the murder of Olsson). (4/6/92 RT 149, 169.) Stewart notified Officer Robertson ofthis development, and Robertson was aware that this was the address where Vicky Tully, appellant’s wife, lived. (4/6/92 RT 149-150, 169.) Officers immediately traveled there. (3/30/92 RT 12; 4/6/92 RT 150.) When Stewart knocked onthe front door a woman answered and not only said that Mrs. Tully was not home, but that appellant was not allowed to be there. (4/6/92 RT 150-151.) Stewart identified himselfas a police officer . and asked the woman if they could talk to her about the whereabouts of appellant. The womaninvited the officers inside. (4/06/92 RT 151-152.) After officers walked into the living room Stewart asked the woman if she knew where Mrs. Tully or appellant were. The woman repeatedthat she didn’t know where Mrs. Tully was andthat appellant was not allowedin the house. (4/6/92 RT 152.) Stewart next heard a door open downthe hall and saw whohebelieved to be Vicky Tully walk out of one room and towards another. Stewart asked her if she was Vicky Tully. (4/5/92 RT 152, 161, 164.) She replied affirmatively and asked why. (4/6/92 RT 152-153.) Stewart identified himself and said he was looking for appellant. Mrs. Tully looked at the door she was walking towards andsaid,“Yes, Richard is in there. Heis asleep. I will get him. He doesn’t have any clothes on.’” (4/6/92 RT 153, 165.) Mts. Tully opened the 84 door to the room. Stewart saw a man laying on his stomach on the bed. Stewart drew his weapon and quickly moved downthe hall and told Mrs. Tully that the police wouldretrieve appellant. (4/06/92 RT 153-154, 160, 162, 165- 167.) Sergeant Stewart and another officer entered the room. They yelled at the man to wake up, asked if he was appellant, and Stewart identified himself as a police officer. (4/6/92 RT 154, 167.) The man slowly awoke and.said, “Yeah, yeah, I’m Richard.”” (4/6/92 RT 154.) Stewart told him the police had a warrantfor his arrest and handcuffed him. (3/30/92 RT 12-13; 4/06/92 RT 154-155, 169.) Officer Robertson spoketo Mrs. Tully on the front porch. (3/30/92 RT 13- 14, 30.) She gave signed consentfor the police to search the bedroom where appellant was found. (3/30/92 RT 14, 30; 4/6/92 RT 155, 168.) From the bedroom theofficers seized clothes and indicia of appellant’s identity. (3/30/92 RT 15-16.) | Officers transported appellant to the police department. (3/30/92 RT 12; 4/06/92 RT 154-155.) There, Robertson arrested appellant for murder. (3/30/92 RT 24.) Appellant gave his address as 1572 Hollyhock in Livermore. (4/6/92 RT 170.) The police fingerprinted appellant. (3/30/92 RT 16.) A few days later, the police drove the prints to Sacramento and gave them to analyst Rienti. (3/30/92 RT 16.) Appellant’s palm print matchedthepartial palm print on the Buck knife. (3/30/92 RT 16-17.) | On March 27, 1987, appellant made a statement to law enforcementat the police department. (3/30/92 RT 17, 21; see pp. 25-26, ante.) On March 30, 1987, at the Santa Rita jail, appellant made two additional statements to law enforcement. (3/30/92 RT 17, 21; see pp. 26-35, ante.) Wewill present additional facts adduced at the suppression hearing where relevant to our discussion of the issues. 85 B. Appellant’s Arguments At Trial And On Appeal At trial appellant contended first that the methamphetaminethe police seized from his personat the traffic stop needed to be suppressed because (1) his consent to search was the product of an un-Mirandized interrogation _ concerning the vandalism offense; and(2) the search exceeded the scope ofthe © consent. (7 CT 1740-1741, 1770-1774, 1779; 4/6/92 RT 171; 6/1/92 RT 202- 204, 216, 220.) Appellant contended next that the trial court needed to suppress the syringes and burnt spoon seized from his car on March 7 on the groundthat the consent appellant gave to that search was tainted by the unconstitutional search of his person. (7 CT 1740-1741, 1779-1780.) Appellant contended next that absent these illegal searches and seizures the police would have had no probable cause to arrest him on March 7. Thus, the search of his person incident to that arrest at the police station was unconstitutional and the trial court needed to suppress the eight bindles of methamphetamine seized from his person at that time. (7 CT 1740-1741, 1780.) Appellant contended next that his statements to Officer Trudeau that he used methamphetamine, broke into houses and cars to support his habit, and wasbeingtreated at the Livermore Veteran’s Hospital, needed to be suppressed because (1) Trudeauelicited the statements after appellant invoked his Miranda rights; and (2) appellant gave the statements involuntarily. In support of that second argument appellant contended that Trudeau had made him a direct promise of leniency when Trudeau told him the statements would not be used against him. (7 CT 1740-1741, 1774-1776, 1781; 6/1/92 RT 204-212.) Appellant contended next that the trial court needed to suppress the evidence seized from the bedroom he wasarrested in on March 27, 1987, because the police committed a knock-notice violation prior to entering the 86 bedroom, and because Mrs. Tully’s consent to search the bedroom was the product of the knock-notice violation. (7 CT 1741, 1776-1778; 4/6/92 RT 172; 6/1/92 RT 172.) Appellant next contendedthat the fingerprint evidence the police uncovered post-arrest needed to be suppressed because it was tainted by and was the fruit ofthe above-outlined constitutional violations. (7 CT 1741, 1781-1786; 4/6/92 RT 172, 175.) Appellant argued that the prosecution could not show that the fingerprint evidence was purged of the originalillegalities or that the police would haveinevitably discovered it. (7 CT 1783-1785; 6/1/92 RT 212-215.) Appellant lastly contended that because the authorities confronted him with the fingerprint evidence wheninterrogating him on March 27 and 30, 1987, and because that confrontation was the motivating force behind his inculpatory statements, the trial court needed to suppress those statements. (7 CT 1786- 1787; 4/6/92 RT 172.) The trial court rejected all of appellant’s arguments but one: The court foundthat the police elicited involuntary statements from appellant on March 7 (that he used methamphetamine, burglarized houses andcars to support his habit, and was beingtreated at the Livermore Veteran’s Hospital) and the court ordered those statements suppressed. Thetrial court refused to suppress any evidenceas tainted by oras the fruit of the involuntarily-elicited statements, however. (6/8/92 RT 220-222.) Asstated, in this Court appellant contends that the police violated certain of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as his rights underarticle I of the California Constitution. (I AOB 24-65.) While he agrees with the trial court that he gave involuntary statements to the police on March 7, 1987 (I AOB 45- 50), he contendsthat before then the police unconstitutionally detained him on the traffic stop and unconstitutionally searched his person atthat time (I AOB 87 32-44). He contends that the subsequent search of his car was also unconstitutionaleitheron its ownoras a fruit of the priorillegalities, and that his subsequent arrest and search of his person incident to that arrest, were tainted by and the fruits of the prior illegalities. (I AOB 44-45.) Appellant apparently recognizes thatat trial the prosecution did not present any of the evidence the police uncovered as a result of the March 7 traffic stop and searches, and the subsequent arrest and search incident to the arrest. He nevertheless wants this Court to find those actions amountedto constitutional violations, and asks this Court to rule that those violations, and the involuntary- statement violation, led to the discovery of evidence the prosecution did introduceattrial: The fingerprint evidence against him, and the inculpatory statements he gaveto the authorities on March 27 and March 30, 1987. Again, appellant’s bottom line is that all of the constitutional violations he suffered compelled suppression of the fingerprint evidence against him and the inculpatory statements he madeto the authorities on March 27 and 30. (I AOB 60-64.) Appellant wants a reversal of the guilt and penalty judgments as a remedy. (I AOB 64-65.) “None of the constitutional errors are harmless beyond a reasonable doubt.” (I AOB 64,citing Chapmanv. California (1967) 386 U.S. 18, 23 [87 S.Ct. 824, 17 L.Ed.2d 705].) This Court should reject all ofappellant’s contentions. All are without merit and in support ofthem he makes manyclaimsthat are procedurally defaulted.” 10. Theories of inadmissibility not presented to the trial court are forfeited on appeal, including theories ofinadmissibility premised on the federal Constitution. (People v. Thomas (1992) 2 Cal.4th 489, 519-520; People v. Partida (2005) 37 Cal.4th 428, 437-438; see also Evid. Code, § 353.) We do not read this Court’s teaching in People v. Avila (2006) 38 Cal.4th 491, 527, fn. 22, as changingthe general rule. There, this Court stated that an appellant may make a federal constitutional argumentforthe first time on appeal where the argument does “not invoke facts or standards different from those thetrial court was asked to apply,” but instead merely asserts “that the trial court’s error, insofar as it was wrong for the reasonsactually presented to that court, had the 88 C. Appellant’s Attacks On The Constitutionality Of What Occurred At The Traffic Stop All Fail Appellant erroneously contends that the police committed numerous violations of his constitutional rights when they stopped him in the Fiat on March 7, 1987. 1. The Police Did Not Unduly Detain Appellant Appellant does not challenge the inceptionofthetraffic stop. He seemingly concedesthat the police had a reasonablebasis to pull him overto investigate whether he was driving with a suspended license. (I AOB 32.) Instead, he claims that the first constitutional violation he suffered was that the police detained him for an unlawfully long duration. And, he continues, becauseit was during this unlawful period that the police obtained the consent to search his person(resulting in a seizure of methamphetamine and commencement of the process that led to the fingerprint evidence), the consent to search “was tainted.” (I AOB 32-36.) Because appellant did not makethis argumentattrial (see pp. 86-87, ante) it is forfeited on appeal. Fourth Amendmenttheories are waived unlessthey | were presented to the lower court. (People v. Rogers (1978) 21 Cal.3d 542, 547-548; People v. Watkins (1994) 26 Cal.App.4th 19, 32.) additional legal consequence of violating the federal Constitution.” That appears to be what appellant is doing here with his Sixth and Eighth Amendment invocations—arguing that the trial court’s suppression-motion error had the additional consequence of violating his Sixth and Eighth Amendmentrights. Again, Avila does not holdor suggest that an appellant may _ raise a federal constitutional argumentfor the first time on appeal, including a theory of inadmissibility, when the argumentis that the trial court erred for reasons notpresentedto that court. We will note where such forfeiture occurs here. 89 Moreover, appellant’s argument is also meritless. Police must carry out detentions in a manner“reasonablyrelated in scope to thecircumstances which justified the interference in the first place.’” (People v. Rivera (1992) 8 Cal.App.4th 1000, 1006, citation omitted.) That’s what occurred here. After Officer Trudeau stopped the Fiat he proceeded to the driver’s side door and asked appellant for his car registration and driver’s license. Trudeau spoketo appellant while appellant looked for his car registration. Officer Painter arrested passenger Snyder on an outstanding arrest warrant and movedhim to a patrol car. (3/30/92 RT 58-59, 90, 101, 111-112; 4/6/92 RT 125.) Officer Shweib stayed with Snyder while Painter walked to appellant, who was standing next to his Fiat, and Trudeau then walked back to his own carto write the citation. Painter began talking to appellant about an unrelated vandalism case in which appellant was alleged to have used a knife to vandalize a carin retaliation for a drug deal that had gone sour. Painter told appellant that the victim and the victim’s friend hadsaid that appellant was a heavy narcotics user and armed with a knife. Painter asked if he could search appellant. (3/30/92 RT 110, 114; 4/6/92 RT 125-132, 135-137, 139.) Trudeau reapproached appellant to finalize the citation by obtaining some minor information and appellant’s signature. By the time Trudeau reachedthe car, Painter had already asked appellant for his consent to search his person, which appellant gave. (6/30/92 RT 60-62.) Accordingly, appellant was not the victim of an “unreasonably prolonged”detention that rendered invalid the consent to search he gave during that detention. 90 2. The Police Did Not Need Reasonable Suspicion To Ask Appellant Questions Unrelated To The Traffic Stop Or For Consent To Search His Person Appellant contends that even if he was not the victim of an unreasonably prolongedtraffic stop, he was the victim of a constitutional violation because Officer Painter questioned him aboutthe alleged vandalism during the stop, and asked for consent to search his person, without “reasonable suspicion” to support the vandalism questioning. Appellant believes that this improper questioning makes the consent he gave to search his person “fruit of the poisonoustree.” (II AOB 32-36.) For a second timeappellant is offering a Fourth Amendmenttheory he did not offer at trial. (See pp. 86-87, ante.) It is therefore waived. (People v. Rogers, supra, 21 Cal.3d at pp. 547-548; People v. Watkins, supra, 26 Cal.App.4th at p. 32.) It is also without merit. Police may ask a detainee about matters unrelated to the detention without reasonable suspicion that the detainee is involved in those matters. (People v. Brown (1998) 62 Cal.App.4th 493, 498-500; People v. Bell (1996) 43 Cal.App.4th 754, 767-768.) During traffic stop an officer may notonly also ask questions about matters unrelated to the stop, but may also request consent to search, where suchactions do not prolong the detention beyond the time it would otherwise take. (People v. Bell, supra, 43 Cal.App.4th at p. 767; citing United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 434- 437.) And, of course, facts which cometo light during the detention may provide reasonable suspicion to prolong the detention. (See, e.g., People v. Warren (1984) 152 Cal.App.3d 991, 995-997; United States v. Perez (9th Cir. 1994) 37 F.3d 510, 513-514.) Here, Officer Painter’s briefconversation with appellant about the unrelated vandalism case did not require “reasonable suspicion” that appellant was involved in the vandalism, and, as set forth above, the consent to search that 91 Painter obtained from appellant occurred before Officer Trudeau completed the traffic stop by finalizing appellant’s citation for driving with a suspended license. Put differently, Painter’s conversation and request for consent to search did not extend appellant’s detention beyond the time justified for the traffic stop. (People v. Bell, supra, 43 Cal.App.4th at p. 767.) 3. Appellant Validly Consented To A Search Of His Person Appellant offers three reasons whythe consent he gave Officer Painter for a searchofhis personat the traffic stop was invalid. (I AOB 36-40.) Appellant thus faults the trial court for not finding that this constitutional infirmity began the tainted process towards the fingerprint evidence and inculpatory statements. (I AOB 36-40.) First, appellant contendsthat he gave an involuntary consent because he was being unconstitutionally detained. (I AOB 36-37.) However, this argumentis forfeited because attrial appellant not only made no claim that he involuntarily consented to a search ofhis personatthetraffic stop, but, as we have already demonstrated, appellant made no “unconstitutional detention” argument below either. (See pp. 86-87, ante; People v. Rogers, supra, 2\ Cal.3d at pp. 547-548; People v. Watkins, supra, 26 Cal.App.4th at p. 32.) In any event, he was not unconstitutionally detained. (See pp. 89-90, ante.) Second, appellant finally makes an argument he did raise below: He complains that he was not given his warnings per Mirandav. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] prior to Painter asking him questions aboutthe alleged prior vandalism incident and asking him for consent to search his person. (I AOB 38-39.) “The officers were required to advise [appellant] ofhis Miranda rights and obtain a waiver ofthem before.asking him any questions. The subsequent ‘consent’ by [appellant] was tainted by this Miranda violation.” (I AOB 39.) 92 Appellant’s position does not withstand scrutiny. Miranda v. Arizona, supra, 384 U.S. 436, requiresthat the police admonish a criminal suspect who is in custody “of specified Fifth Amendmentrights.” (People v. Morris (1991) 53 Cal.3d 152, 197.) The well-known Miranda warnings(the right to remain silent, the right to consult a lawyer, the right to have a lawyer present during questioning, and the right against self-incrimination) are designed to protectthe privilege against compelled self-incrimination from “the coercive pressures that can be brought to bear upona suspectin the context ofcustodial interrogation.” (Berkemer v. McCarty (1984) 468 U.S. 420, 428 [104 S.Ct. 3138, 82 L.Ed.2d 317].) Absent “‘custodial interrogation,’ Miranda simply does not comeinto play.” (People v. Mickey (1991) 54 Cal.3d 612, 648.) In determining “whether a suspect is in custody for the purposes of receiving Mirandaprotection, the ultimate inquiry is simply whetherthere is a formalarrestor restraint on freedom ofmovementofthe degree associated with a formalarrest.” (California v. Beheler (1982) 463 U.S. 1121, 1125 [103 S.Ct. 3517, 77 L.Ed.2d 1275]; internal quotation marks omitted.) That a person may be seized for Fourth Amendmentpurposes because a reasonable personin his or her shoes would not feel free to walk away from the police (Californiav. Hodari D. (1991) 499 U.S. 621, 625-628 [111 S.Ct. 1147, 113 S.Ct. 690), does not necessarily mean he or she is in custody for Miranda purposes. Indeed, the “noncoercive aspectofordinary traffic stops prompts us to hold that persons temporarily detained pursuantto such stops are not ‘in custody’ for the purpose ofMiranda.” (Berkemer v. McCarty, supra, 468 U.S.at p. 440.) As the prosecutor persuasively pointed out to the trial court below, the present record contains no suggestion that at the traffic stop there wasrestraint on appellant’s freedom ofmovementofthe degree associated with a formalarrest. (7 CT 1789-1790.) At no point did Officer Painter’s vandalism questioning cease to be brief 93 and casual and becomesustainedand coercive. (People v. Salinas (1982) 131 Cal.App.3d 925, 936.) Nor did Painter ever draw his gun (see People v. Taylor (1986) 178 Cal.App.3d 217, 229), handcuff appellant (see United States v. Purry (D.C. Cir. 1976) 545 F.2d 217, 220), or put him in a patrol car (see People v. Natale (1978) 77 Cal.App.3d 568, 572). Instead, Painter, by himself, simply spoke with and inquired of appellant for a few minutes about the alleged prior vandalismas appellant stood outside his own car. Meanwhile, Officer Trudeau was completing the traffic citation and Officer Schweib was with passenger Snyder. (3/30/92 RT 59-60, 74-76, 95-97, 113-114; 4/6/92 RT 125, 127-129, 131, 135-137, 139.) Findings as to whether a custodial interrogation occurred, “which appears to be a predominately factual mixed question,” is “reviewed for substantial evidence.” (People v. Mickey, supra, 54 Cal.3d at p. 649.) Substantial evidence supports the trial court’s rejection of appellant’s argumentthat he was the victim of a Miranda violationat the traffic stop. (6/8/92 RT 220.) Next, appellant returns to the forfeited argumentthat he did not voluntarily consentto a search ofhis person,asserting that the involuntariness is shown by the fact that he “was nottold that he hadthe right to refuse consent,” and by the fact Officer Trudeau was holding his driver’s license when Officer Painter asked him for his consent to search. (I AOB 39). However, police “need not always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.” (United States v. Drayton (2002) 536 U.S. 194, 206-207 [122 S.Ct. 2105, 153 L.Ed.2d 242], citing, e.g., Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [93 S.Ct. 2041, 36 L.Ed.2d 854].) Furthermore, that Trudeau was holding appellant’s licenseis irrelevant given that Painter asked appellant if he “would mind” being searched (3/30/92 RT 114), thereby indicating to a reasonable person that he or she would befree to refuse. Absolutely nothing in the record suggests that Painter’s request for 94 consent to search was coerciveor that appellant’s consent was involuntary. 4. The Search Of Appellant’s Person Did Not Exceed The Scope Of His Consent Appellant next renews another argument he madeattrial: That if nothing else, the unconstitutional journey towards police acquisition ofthe fingerprint evidenceagainst him andthe inculpatory statements he gave authorities began at the traffic stop when thesearch of his person exceeded the scope ofhis consent. (I AOB 40-44.) Appellant claims his consent waslimited to a search for weaponsandthus, Officer Painter exceeded the scope ofthat consent when he reached into one of appellant’s pants’ pockets and retrieved the methamphetamine. (I AOB 40.) Appellant’s claim is unwarranted. Thetrial court expressly found that Officer Painter asked for and received appellant’s consent for the search of his person and that “the search did not exceed the scope of the consent given.” (6/8/92 RT 220.) In reviewing this ruling this Court will defer to the trial court’s factual findings, express or implied, where supported bysubstantial evidence. In determining whether,on the facts so found, the search or seizure was reasonable under the Fourth Amendment,this Court exercises its independentjudgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)}" Here,the trial court ruled correctly. Florida v. Jimeno (1991) 500 U.S. 248 [111 S.Ct. 1801, 114 L.Ed.2d 297], sets forth the standard for evaluating the scope of consent to search underthe Fourth Amendment. The High Court explained that where consent would be 11. In exercising their independentjudgmentCalifornia appellate courts, after the passage of Proposition 8 in 1982, apply the federal Constitution, as interpreted by the United States Supreme Court, not California law (to the extent California law is inconsistent) when confronted with Fourth Amendment questions and requests for the exclusion of evidence. (Jn re Lance W. (1985) 37 Cal.3d 873, 890, 896.) 95 reasonably understood to extend to a particular place or thing, the Fourth Amendmentprovides no grounds for requiring a more explicit authorization: The Fourth Amendmentdoes notproscribeall state-initiated searches and seizures; it merely proscribes those which are unreasonable. [Citation.] Thus, we have long approved consensual searches because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so. [Citation.] The standard for measuring the scope ofa suspect’s consent under the Fourth Amendmentis that of “objective” reasonableness—whatwouldthe typical reasonable person have understood by the exchange betweenthe officer and the suspect? [Citations.] (500 U.S. at pp. 250-251.) Here, it is plain that Officer Painter acted within the scope of appellant’s consent. Painter testified that he had taken a prior police report im which appellant was a suspect for vandalizing a truck with a knife. Painter testified that he explained to appellant that the victim and victim’s friend hadsaid that appellant was a “heavy” narcotics user and was “heavily”’ armedwith a knife. Painter asked appellant if he would mind being searched. (3/30/92 RT 113- 114; 4/6/92 RT 127-128, 137.) Appellant answered, “Sure, I don’t have anything on me.” (3/30/92 RT 114.) Painter, using a flashlight, opened and looked inside appellant’s pockets. In the left front pocket of appellant’s pants Painter found a clear plastic bindle containing white powder that appeared to be methamphetamine. (3/30/92 RT 115.) Painter testified that he had specifically told appellant that he wanted to search him for weapons and narcotics. (4/6/92 RT 129.) On cross-examination, Painter acknowledged that he had previously testified that he told appellant he wanted to search him for a knife. (4/6/92 RT 130-131.) However, on redirect examination, Painter testified, “I recall mentioning the weaponandI recall mentioning the narcotics use. But [—apparently made reference in the transcript of searching for weapons. But I don’t recall exactly narrowing my scope of my searchat that point.” (4/6/92 RT 137-138.) It was the trial court who had the “power to 96 judge the credibility ofwitnesses,” and “resolve any conflicts in the testimony.” (People v. Lawler (1973) 9 Cal.3d 156, 160; see also People v. Williams (1988) 45 Cal.3d 1268, 1301.) Because this Court reviews the evidencein the light most favorable to the lower court’s ruling (People v. Renteria (1992) 2 Cal.App.4th 440, 442), it must presumethe trial court found that Painter asked appellant if he could search him for narcotics and weapons. Phrased another way, because Officer Painter explicitly told appellant that he had been informed that appellant was a heavy narcotics user and heavily armed with a knife before asking to search his person,it is reasonable for the officer and appellant to have understoodthat the search was to encompass any pockets in appellant’s clothing where a knife or narcotics could reasonably be concealed, even appellant’s coin pocket. It is plain that Painter was searching for both drugs and weaponsandthat appellant had consentedto that. Nevertheless, appellant argues that Officer Trudeau “was sure Painter did not mention drugs when Painter obtained [appellant’s] consent to search.” (I AOB 41.) Appellant, however, fails to mention that Trudeautestified that he wasat his car writing the traffic citation when Painter wastalking to appellant and that Trudeau did not hear most of the conversation between Painter and appellant. Specifically, Trudeau made clear that he did not hear Painter’s request for consentto search, “word for word.” (6/30/92 RT 75.) Appellant also argues that because Officer Painter testified on cross- examination that he did not expectto find a knife in the coin pocket(see 4/6/92 RT 133-134), that this somehow showsthe scope of search exceeded the consent given. (I AOB 42.) We note initially that there existed some confusion over where Painter found the methamphetamine. Trudeautestified first that he saw Painter remove the methamphetamine from appellant’s left front pants’ pocket. (3/30/92 RT 61.) Trudeautestified later that Painter seized the drugs from the coin pocket of appellant’s Levi’s jeans. (3/30/92 RT 94.) 97 Paintertestified that he found the drugs in appellant’s left pocket. (3/30/92 RT 115.) Later Painter reiterated that he seized the bindle from appellant’s left pocket, but acknowledged that he had previously testified that he found the bindle of drugs in the coin pocket. (4/6/92 RT 132-133.) He also thought he had previously testified that he did not remember if the bindle was in appellant’s coin pocketorleft front regular pocket. (4/6/92 RT 133.) Painter | noted that he was confused because he thought he found the drugs in appellant’s left front pocket, yet he believed a coin pocket wasonly on the nght front side of a pair of Levi’s jeans. (4/6/92 RT 132.) In light of all of this testimony thetrial court could have reasonably concludedthat Painter foundthe drugs in appellant’s left front pocket, and not the coin pocket. In any event, even if Officer Painter found the drugsin the right front coin pocket, his testimonythat he did not expect to find a knife in the smaller pocket did not mean he could not have found a knife there. Hetestified that the coin pocket was twoinches deep (4/6/92 RT 133), which could easily fit a small fold-up knife. As explained above,Painter’s request to search would have been properly interpreted by a reasonable person as extending to any pocket that could carry drugs or weapons. Appellant’s general assent did not delimit the scope of the request to search. Painter’s subsequent explanationsofhis actions at the suppression hearing cannotretroactively restrict the scope of appellant’s general consentto a broad requestfor a search for weapons and drugs. Accordingly, appellant’s claim that the search exceeded the scope ofhis consent is without merit. 5. The Police Did Not Unconstitutionally Search Appellant’s Car, Arrest Him, Or Search Him Incident To That Arrest Because appellant’s claim that the search of his person on March 7, 1987, exceeded the scope of his consent is without merit, his next argument 98 necessarily fails. To explain, appellantasserts that the search of his car, which occurredafter the search of his person,“was tainted bythefirst illegal search.” (I AOB 44.) “Based on these two searches, [appellant] was arrested. . . . Since theonly basis for this arrest was theillegally seized evidence, the arrest was illegal sinceit wasnot supported by any independentfactual basis providing probable cause at the time it was made.. . . [{]] At the police station, another search of appellant wasconducted. . ... Since [appellant] was being illegally detainedat the time, the search wasillegal as it was a directfruit of the illegal arrest and tainted by all the prior illegal events.” (I AOB 44-45.) Again, as we demonstrated above, the premise of appellant’s argumentis flawed. The police constitutionally searched his person at the traffic stop. There was therefore nothing wrong with the subsequent consent search of appellant’s car (wherein the officers seized drug paraphernalia), the arrest, and the search incidentto the arrest (where the officers seized numerousadditional baggies of methamphetamine). D. Appellant Did Not Make Involuntary Statements On March 7, 1987 The trial court, in agreement with appellant, ruled that appellant’s incriminating March 7 statements to Officer Trudeauthat “he was committing burglaries to support his drug habit and the related statements abouthis drug use and his treatment at the V.A. Hospital were involuntary and must be 12. Appellant also argues that the search of his car wasillegal “for the same reasons as discussed above.” (I AOB 44.) To the extent appellantis currently arguing that the search of his car exceeded the scope of the consent he gaveto the searchofhis car, or that his consent was invalid because he was being “unconstitutionally detained”atthe time, the arguments are procedurally barred. He made no such arguments attrial (See pp. 86-87, ante; People v. Rogers, supra, 21 Cal.3d at pp. 547-548; People v. Watkins, supra, 26 Cal.App.4th at p. 32.) 99 suppressed. He was expressly told that these statements would not be used against him.” (6/8/92 RT 220-221.) The admissibility of inculpatory statements in California is governed by federal standards. (See Cal. Const., art. I, § 28, subd. (d); People v. Peevey (1998) 17 Cal.4th 1184, 1188.) The admission of an involuntary statementas evidence against a defendantviolates the defendant’s due processrights under both the California and United States Constitutions. (Jackson v. Denno (1964) 378 U.S. 368, 385-386 [84 S.Ct. 1774, 12 L.Ed.2d 908]; People v. Ditson (1962) 57 Cal.2d 415, 438-439.) Use of such involuntary statements in a criminal prosecution is prohibited because “it offends ‘the community’s sense of fair play and decency’ to convict a defendant by evidence extorted from him.” (People v. Atchley (1959) 53 Cal.2d 160, 170.) In general, statements are considered voluntary “if the accused’s decision to speak is entirely . _ without ‘any form ofcompulsion or promise ofreward” (People v. Thompson (1980) 27 Cal.3d 303, 327-328, citation omitted); i.e., the police treat the accusedin such a waythat his statements are the productof a rational intellect and a free will (Colorado v. Connelly (1986) 479 U.S. 157, 163-164 [107 S.Ct. 515, 93 L.Ed.2d 473]; Blackburn v. Alabama (1960) 361 U.S. 199, 208 [80 S.Ct. 274, 4 L.Ed.2d 242]; Brownv. Mississippi (1936) 297 U.S. 278 [56 S.Ct. 461,80 L.Ed.2d 682)). In this Court appellant reiterates his agreement with the tral court’s “involuntary statement”ruling, and offers the position that the court could have excluded these March 7 statements on four additional grounds: (1) Trudeau elicited the statements in violation of appellant’s Mirandarightto silence (I AOB45-47); (2) appellant madethe statements involuntarily because Trudeau had promised him he wouldbereleased and not prosecuted (I AOB 47-48); (3) fundamental fairness as guaranteedby the due process clause ofthe Fourteenth Amendment mandated suppression (I AOB 48-49); and (4) appellant madethe 100 statements while being unconstitutionally detained (I AOB 49). Fromthis, of course, appellant repeats his view thatthe trial court should have excludedthe fingerprint evidence, and his inculpatory statements on March 27 and 30, 1987, as tainted by or being the “related fruits” of the unconstitutional March 7 statements. (I AOB 47, 50.) Appellant is wrong on the latter point because he is wrong on the former points. The trial court erroneously held that appellant’s March 7 statements to Officer Trudeau were involuntary. Thefactual basis ofthe trial court’s ruling is not supported by substantial evidence,as it needs to be to be valid. (People v. Williams (1997) 16 Cal.4th 635, 659-660.) The trial court found that appellant gave the statements involuntarily because, as a factual matter, appellant “was expressly told that these statements would not be used against him.” (6/8/92 RT 220-221.) However, the only evidence on thispoint was that Trudeau made thepromise after appellant madethe incriminating statements. (3/30/92 RT 81.) It is manifest that Trudeau could not have made a promise specific to appellant’s statements about his methamphetamineuse and whathe did to support his habit, until after Trudeau knew the content of appellant’s statements. Therefore, appellant’s statements were not induced by Trudeau’s promise and werenotcoerced. We can challenge the trial court’s contrary ruling on this point here because “the People may, on an appeal by the defendant and pursuantto the provisions of section 1252, obtain review ofallegedly erroneousrulings bythe trial court in order to secure an affirmance of the judgment of conviction.” (People v. Braeseke (1979) 25 Cal.3d 691, 700-701, vacated and cause remanded (1980) 446 U.S. 932 [100 S.Ct. 2147, 64 L.Ed.2d 784], reaff'd (1980) 28 Cal.3d 86.) | As for appellant’s claim that Officer Trudeau elicited the March 7 incriminating statements in violation of appellant’s Miranda nighttosilence(I 101 AOB 45-47), that argumentfails as well. When an in-custody subject invokes his or her Miranda rights, law enforcement must abandon all attempts to question the subject, unless the accused him or herself initiates further communication. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [101 S.Ct. 1880, 68 L.Ed.2d 378].) “An accused ‘initiates’ such dialogue whenhe speaks words or engages in conduct that can be ‘fairly said to representa desire’ on his part ‘to open up a more generalized discussionrelating directly or indirectly to the investigation.” (People v. Mickey, supra, 54 Cal.3d at p. 648.) It is undisputed that appellant, in this case, reinitiated the conversation with Trudeau after he had invoked his right to silence earlier. (3/30/92 RT 64-65.) Accordingly, the conversation which followed relating to appellant’s general history, including his use ofmethamphetamine, how he supported his habit, and his medical treatment at the VA Hospital, did not violate appellant’s Miranda rights. Appellant even acknowledges that he “initiated further conversation with Trudeau after invoking his rights,” but somehow tries to fashion a Miranda violation by claiming that Trudeau did not “scrupulously honor” his right to silence, but instead “questioned”and “cajoled” him into incriminating himself. (I AOB 46.) According to appellant then, if a suspect invokes his right to silence, but later initiates a desire to speak with police, the police must decline the opportunity. Appellant’s failure to cite authority in support of this argument is telling and requires rejection ofit. Appellant next argues that the Fourteenth Amendment’s due process clause guarantee of fundamental fairness compelled suppression of his March 7 statements because Officer Trudeau told Officer Robertson about those statements after having promised appellant the statements would not be used against him. (I AOB 48-49.) This argumentis forfeited because appellant did not makeit at trial. (See pp. 86-87, ante; People v. Rogers, supra, 21 Cal.3d at 102 pp. 547-548; People v. Watkins, supra, 26 Cal.-App.4th at p. 32.) Appellant’s fundamental fairness argumentis also without merit. Officer Trudeau did not promise that he would not disclose appellant’s statements to anyoneelse, but instead told appellant that the statements would not be used against him. The record suggests that Trudeau and appellant understood their exchange to mean that appellant’s statements would not be used in a court of law to prosecute him for the drug charges for whichthe police had arrested him. Their exchangedid not apply to any other offense for which appellant could be prosecuted. After all, the officers had just seized methamphetamine and drug paraphernalia from appellant’s person and car. Theofficers arrested appellant for possession of drugs and drug paraphernalia. Appellant was bookedat the police station for possession of drugs. Detective Jensen and appellant strucka . deal so that appellant would not haveto go to jail and face prosecution for the drugs he possessed. When Trudeau told appellant that the information about his methamphetamine use and howhe supported his habit would not be used against him,the totality of the circumstances mandates that appellant would have understood Trudeau to mean only that the police would not use that information to prosecute him in a court of law for the drugs found in his possession. Appellant’s drug possession was the only crime Trudeau was investigating and the offense that appellant wasgoing to “work off.” Trudeau did not expect to discover information about any other crimes. Hetestified that at that time it never entered his mind that appellant could be a murder suspect. 13. Also waived are appellant’s current arguments that this Court should rule the March 7 statements inadmissible because appellant involuntarily made them on a promise from Trudeau that he would be released and not prosecuted (I AOB 47-48), and because appellant made the statements while being unconstitutionally detained (I AOB 49). (See pp. 86-87, ante; People v. Rogers, supra, 21 Cal.3d at pp. 547-548; People v. Watkins, supra, 26 Cal.App.4th at p. 32.) And in any event, as we have already established, appellant was not being unconstitutionally detained. 103 (3/30/92 RT 68.) On March 7 Trudeau knew very little about the murder investigation of Olsson. (3/30/92 RT 67.) Under these circumstances, it was not fundamentally unfair to appellant for Trudeau to tell Officer Robertson about appellant’s statements on March 17 or 18, after Trudeau learned that appellant’s address was two homes away from where Olsson hadlived. Appellant’s attacks on his March 7, 1987 incriminating statements are without merit. E. Under No Circumstances Is Appellant Entitled To A Suppression OfThe Fingerprint Evidence Against Him Or Suppression OfThe Inculpatory Statements He Gave Police On March 27 And 30, 1987 Assuming the trial court ruled correctly in excluding appellant’s incriminating March 7, 1987 statements as unconstitutionally obtained, appellant is wrong in arguing that he was due suppression ofthe fingerprint evidencethe police later uncovered against him,or the inculpatory statements he gave police on March 27 and 30. (I AOB 60-64.) Asthe trial court also ruled,“the fingerprint evidence soughtto be suppressed was nottainted by the illegally obtained statements and is admissible.” (6/8/92 RT 221.) Atthe time the involuntary statements were obtained, the officer had no reason to suspect or believe the conversation would turn up evidence of any crimeother than the narcotics offenses. In the court’s view,this was a case of investigatory serendipity, as that word is used in the cases. It was not a case wherethe objectofthe illegality was to secure evidence of the fingerprint match soughtto be suppressed. I also note that this is not a case involving egregious police conduct designed to wear down a suspect’s resistance. Without minimizing the seriousnessor significance of the mistakes leading up to the involuntary statements, this was a somewhattechnicalviolation ofthe defendant’s rights, albeit one which requires suppression of the statements themselves. (6/8/92 RT 221.) As became clear at the suppression hearing below, the concept of “investigative serendipity” arises from United States v. Bacall (9th Cir. 1971) 104 443 F.2d 1050, 1057, where the court stated: Where the evidence sought to be suppressed was discovered through utilization of some legally obtained leads as well as someillegally obtained leads, the substantiality of the legally obtained leads may influence the determination whether the evidence ought to be suppressed. (Id. at p. 1056.) The Bacall court added: [When officers through serendipity discover evidence concerning a suspect whom they are unlawfully investigating in connection with another, different crime, the new evidence is not tainted where the officers discovered it only because their unlawful investigation fortuitously put them in a position to do so and wheretheir unlawful investigative intent did not extend to the additional evidence. (id. at p. 1057.) In Allen v. Cupp (9th Cir. 1970) 426 F.2d 756, 759, the court explained the rationale for this rule: “Deterrence can haveits effect only whenit can be said that an object of the illegal conduct was the securing of the evidence soughtto be suppressed.” Thatis not this case. Trudeau had no intention or expectation that evidence related to the Olsson investigation would surface from his March 7 conversation with appellant. Trudeau specifically testified that up to that point, he knew very little about that case, and did not have any suspicion that appellant would bea suspectin it. (3/30/92 RT 68.) Serendipitously, Trudeau forgot to give appellant his driver’s license back on March 7. And a few days later, when Trudeau droveto appellant’s houseto return the license,the officer realized that appellantlived only two doors away from where victim Olsson had lived. It was this fortuitous event, combined with appellant’s statements and Trudeau’s knowledgeofthe FBI profile ofthe Olssonkiller, that led to Trudeau viewing appellant as a suspect in Olsson’s murder, and led him to contact Officer Robertson andfill him in. (3/30/92 RT 87.) As Trudeauleft the office 105 after talking to Robertson he ran into Officer Leal and told him what he — suspected about appellant. Leal replied that he knew of appellant because he had recently taken a report about a knife crime in which appellant was a suspect. (3/30/92 RT 73, 85.) Trudeauthenrelayed this additional information to Robertson. (3/30/92 RT 10, 73.) Robertson ran a records check on appellant, learned of past arrests, and found in the police files appellant’s fingerprints from the 1973 juvenile case, and resubmitted them to the DOJ, where a match with the fingerprint on the murder weaponfinally occurred. (3/30/92 RT 10-11, 19, 26-27; 4/6/92 RT 172.) Viewed another way, granting establishmentofthe allegation that the police involuntarily obtained statements from appellant on March7, the fingerprint evidence did not come by exploitation of that illegality, but by means sufficiently distinguishable to be purged of the primary taint. (Wong Sunv. United States, supra, 371 U.S. at pp. 487-488.) - The People additionally submit that even if appellant suffered constitutional violations on March 7, 1987, in addition to the elicitation from him of involuntary statements, suppressionofthe fingerprint evidence remainsout of order. Asthetrial court held: I find the police would inevitably have again compared [appellant’s] prints with those found on the knife found at the murder scene. Basedonall of the evidence, including but not limited to Sergeant Stewart’s testimony, which I find to be credible, the People have established a reasonably strong probability that in the normal course of the continuing murderinvestigation, [appellant] would have emerged as a prime suspect quite apart from the statements he gave to the Officer Trudeau. The police planned to do further computer searches onall residences in the area, including [appellant’s] residence. This search would have revealed information which, when coupled with other properly obtained evidence aboutthis [appellant], would have caused the police to ultimately resubmit the [appellant’s] fingerprints for comparison with the prints found on the knife. The fingerprint match would ultimately have been discovered by lawful means. 106 (6/8/92 RT 221-222.) Theinevitable discovery doctrine provides thatthe fruit of a constitutional violationmay be admitted into evidence wherethe prosecution canestablish by a preponderanceofthe evidencethat the evidence would have been discovered through properpolice procedures. (Nix v. Williams (1984) 467 U.S. 431, 444 [104 S.Ct. 2501, 81 L.Ed.2d 377]; People v. Clark ( 1993) 5 Cal.4th 950, 994; People v. Superior Court (Tunch) (1978) 80 Cal.App.3d 665, 681 [a reasonably strong probability that the police would have obtained the evidence lawfully].) A preponderanceofsubstantial evidence supports the trial court’s inevitable discovery ruling in this case. Sergeant Jack Stewart testified that starting January 1, 1987, he was assigned to supervise Officer Robertson on the Olsson murder case. (4/6/92 RT 143-144.) At the end of January, Stewart reviewed the neighborhood check which had been previously conducted bythepolice. (4/6/92 RT 144, 158.) He found manydiscrepancies betweenthe police reports and the area map which purported to show which houses had been contacted and whichresidents had been identified by the police. (4/6/92 RT 144, 146.) In mid-February, Stewart told Robertson that he wantedthe police to reconduct the entire neighborhood check——anddefinitively determine the ownerof each house, wholived there, whether the house wasa rental, and whether there had been peopleliving or visiting the houseat the time of the murder. (3/30/92 RT 20-21, 31, 41-48; 4/6/92 RT 147, 159-160.) If that had meanta “triple check” of some houses, Stewart testified, so be it. (4/6/92 RT 159-160.) Stewart testified that he also wanted the police to run a check through the computer systemsat the police department and at the Department of Motor Vehicles, in an attempt to determine if any of the peopleliving in the neighborhood had had any prior police contact. (4/6/92 RT 147-148.) Stewart testified that he did not have a chance to assign a date or department staff to reconduct the neighborhoodcheckprior to appellant’s arrest on March 27, 1987. (6/1/92 RT 107 199-200.) Dale Brearcliffe, Livermore Police Department Crime Analyst, in charge of the records computer system, testified that had the address 1572 Hollyhock been entered into the department computer in late March or early April 1987, the computer would have produceda report listing the residents of the address as John Chandler, appellant, and Vicky Tully. Entering appellant’s nameinto the computer would have produceda report listing appellant’s prior contacts with the Livermore police, including that on March 5 1987, he became a suspect in a Penal Codesection 245, subdivision (a)(1) investigation. (6/1/92 RT 181-188, 192-193.) Sergeant Stewart testified that ifhe had had the chance to carry out his plans to have a police computer system examination of all of the addresses in Olsson’s neighborhood,it would have produced the namesofthe residentsat 1572 Hollyhock andtheir criminal history. A DMV computer run also would have producedthe criminal history for those residents. (6/1/92 RT 194-198.) Atthat point, the police would have learned that appellant was a resident at 1572 Hollyhock,that he had a criminal history, and was a suspectin an assault with a deadly weapon offense. (6/1/92 RT 194-198.) Stewart testified that at that point he would have submitted fingerprint cards from the departmentfile of all residents with a criminalhistory, including appellant’s (again), to DOJ in Sacramento. Asa result, the police would have found that appellant’s ring finger and palm print matched those prints on the Buck knife used to stab Olsson to death. (6/1/92 RT 194-198.) Lastly, with respect to appellant’s argument2 attack on the admissibility of his March 27 and 30, 1987 statements, the only argument he madeattrialin this regard is that because the authorities confronted him with the fingerprint evidence when interrogating him on March 27 and 30, and because that confrontation was the motivating force behind his inculpatory statements, the 108 trial court needed to suppress those statements. (7 CT 1786-1787; 4/6/92 RT 172.) However, because, as we have proved, the fingerprint evidence was admissible, appellant’s trial attack on the admissibility of the statements necessartly fails. In conclusion, appellant’s argument 2 garners him noreliefwhatsoever. He has presented this Court with absolutely no cognizable basis to concludethat the trial court should have suppressed the fingerprint evidence and the March 27 and 30 inculpatory statements. 109 Ti. THE TRIAL COURT PROPERLY DENIED APPELLANT’S MOTION TO SUPPRESS HIS INCULPATORY STATEMENTS . Appellant contends that the trial court prejudicially erred in denying his motion to suppress the statement he made to law enforcement on March 27, 1987, and the two he made on March 30, 1987. (I AOB 66-102.) Appellant claims that the admission of these statements violated his Fifth Amendment right against self-incrimination, his Fourteenth Amendment right to due process, his Eighth Amendmentrightto ““‘heightenedreliability’ at all phases 3of a capital case,” and his parallel rights under article I of the California Constitution. (I AOB 66, 81, 101-102.) Thetrial court did noterr in denying appellant’s motion to exclude the three statements at issue from evidence,butif it did, the error was harmless beyond a reasonable doubt. A. The Evidence Adduced At The Suppression Hearing Is Detailed On Friday, March 27, 1987, at about noon, the police arrested a shoeless andshirtless appellantat his wife’s house on two separate warrants for narcotics violations and transported him to the Livermore Police Department. (1 RT 53- 55, 78-80.) Officer Robertson also believed that he had probable causeto arrest appellant for the murder of Sandy Olsson because his fingerprint had been identified on the Buck knife found near the sceneofthe crime. (1 RT 80-82.) Appellant’s wife, Vicky Tully, was presentat his arrest. (1 RT 84-85.) Police either asked, or told Mrs. Tully to proceedto the police station. They were investigating her possible commission of check fraud. Mrs. Tully drove herself to the station house. (1 RT 81, 83-85, 95.) At the police station, Mrs. Tully confessed to writing fraudulent checks but 110 officers did not take her into custody. (1 RT 85-86, 143.) And,at 4:00 p.m., Officer Robertson and Detective Newton commencedan interview with her. (1 RT 62; People’s Exhs. 7A, 7B.) According to standard police practice, the officers did not arrest her on the check fraud but referred it to the District Attorney’s Office for a determination on possible prosecution. (1 RT 86, 143- 144, 151-152.) . During the interview, which concerned only appellant’s background,neither Robertson nor Newton referenced Mrs. Tully’s check fraud as Robertson did not view it as relevant to the murder investigation (1 RT 86- 87.) After her interview ended Mrs. Tully asked the officers several times for permissionto talk to appellant. The police said they would try to arrangethat before they transported him to jail. (1 RT 62-63, 96.) At around 6:00 p.m., after giving him some candy bars, a coke, and cigarettes, Robertson and Newton commencedan interview with appellant. (1 RT 54-55, 144-145, 162-163, 175.) The police turned on the microphoneor “body wire” that was hidden underthe tablein the interview room. (1 RT 55- 56, 124, 147-148.) Almost immediately Robertson asked appellant how hefelt. (1 RT 94.) During the next four minutes, Robertson asked appellant for biographical, family history, and other booking information. (1 RT 91-95, 146, 175.) At 6:07 p.m. Robertson read appellant his Miranda rights, which appellant expressly waived, both orally and in writing. (1 RT 54-57, 94-95, 146-147, 164, 175.) The officers spoke with appellant for 20 to 30 minutes before taking a break, during which time they discovered that their tape was producingdistorted and almost incomprehensible voices. (1 RT 58-59, 61, 93- 94, 147, 163, 175-180; People’s Exhibit 4.) During the break, which lasted 90 minutesorso, police gave appellant some water, some pizza, a cigarette, and permitted him to use the restroom. (1 RT 145, 164-165.) 111 At 7:52 p.m., Robertson and Newton resumedtheinterview using a regular tape recorder. (1 RT 59, 134-135, 179; People’s Exhs. SA-C, 5D.) Within the first hour of the interview the officers gave appellant another cigarette and permitted him to use the restroom again. (1 RT 145.) At 9:20 p.m. they gave him another soda andat 10:00 p.m. anothercigarette. (1 RT 145.) Also around that time the following colloquy occurred: Q. Oh,before I forget, the next couple ofdays we’re going to get a hold of a polygraph examiner. You know what a polygraph is? Uh-huh. Okay. Would you be—submit yourselfto a polygraph examination? Do I have a choice? Well, I ain’t got a gun to your head, night? No. DoI have a rubber hose? No. Hot lamp? No. Water dripping on your face? No. Gotall your fingernails? I think so. | Okay. No bamboo underneath them? I don’t think so. If I do,notelling, heh-heh. There’s your choices. > O P P O P H P H r H P O P O P H Pe Well, this charge you placed on meandthe, ah, the accusations, to say the least are serious, I think it would be— Q. In the State of California there is nothing more serious than murder. A. Okay. Q. Period. 112 A. Then I think it would behoove meto consult a lawyer. Q. Okay. Before submitting to a polygraph examination? A. Um,yeah, before submitting to any question I wouldn’t want to answer. Q. And that’s where we’ve been at tonight, right? We’re not here to talk to you about no dopeshit, so what, you know, whocares, dope’s dope. A. You know,too, the polygraphis only as good as the man running the machine. The machineis fallible too. You think you could beat that? Machinesare fallible, too. Do youthink you could beat a polygraph? I don’t know, I— You ever taken one? No, I’ve never had experience with ’em. You think you could beat the polygraph machine? P O P er Oo P A I have no idea, I have no experience with them. DETECTIVE ROBERTSON: You’ve maintained though that everything you’ vetold usis the truth. A. Uh-huh. Q. I think we’d probably find out differently. A. Well, like I said the polygraph is only as good as the man who runs it, and once again you’ve got a machine. Machinesarefallible as I well know. I’ma machineoperator. DETECTIVE NEWTON: Anditjust depends who runsthe, we get the best. That’s just part— A. The machine is fallible. You’re only as good as machine and humansare madeto error. Q. So what. You’re, maybe, and maybe I’m, maybe I’m nothearing you right. But before you gonna be completely truthful here, you’re going to wait andtalk to an attorney; is that correct? A. Well, no. What you’re saying hereis that you don’t believe what I’m 113 saying. Q. No, I don’t. A. So, you’d take, you’d rather take the, uh— Q. —word of a machine. A. Right, and that’s in the area of, stepping into that area I’m even more unknowledgeable than this area I’m involvedin right now. Q. More than you know about. A. I think it best that if, I wanted to face, I think it would be best if I consult a lawyer. Le ) . You know about polygraphs? I heard of them. And you know howthey work? Basically. Howdo they work? I guess they hook up a couple of wires to you. Well, you guess so you don’t know? Yeah, exactly. Very good. P O P P H oO P . That’s right. I don’t know,that’s why Id like to talk to someone whodoes. -Q. 2200 hours. I’m going to stop for a few minutes. (1 RT 114-117, 136-139; People’s Exh. 5D at 71-74.) During the ensuing 14-minute break Robertson consulted with Officer Trudeau, who wantedto help andoffered to participate in the in the interview. Theofficers decidedto substitute in Trudeau for Newton. (1 RT 100, 140-141, 147, 149-151, 170.) The interview re-commencedthis way. DETECTIVE ROBERTSON:Thetime is now 2234hours,still March 27, 1987. Present in the room is myself, Detective Scott Robertson. Joining me now is Officer Scott Trudeau. Richard, do you know Officer Trudeau? 114 Yes. Okay. Before we movetoo far along now,are you tired? Not anymoretired than I wasearlier. Heh-heh. Doyoufeel like continuingto talk to us? > O r DO PS Sure.- Q. All right, good. Whenwelastleft thistape, we were talking about polygraph and you mentioned talking to the lawyer. Do you want a lawyer now? A. No. I’m all night. Q. You’re sure? A. Yeah. (1 RT 140-141; People’s Exh. SD at 74.) Officer Trudeau then began questioning appellant. (People’s Exh. 5D at 74.) Atno pointduringtherest ofthe interview did appellant request a lawyer. _(1 RT 141-142.) Towardsthe end of the interview the officers put appellantin an ankle shackle (“we were kind of in and out of the room and wanted to maintain security”). (1 RT 89-90.) Appellant made no admissions about the homicide during the interview (1 RT 99), althoughhe did offer some opinions aboutthe crimethat the prosecution eventually presented to the jury (see pp. 25- 26, ante). This interview ended at 12:05 a.m. on March 28, 1987. (1 RT 59-62, 88-89, 90, 124.) Mrs. Tully had been waitingin the police lobby, asking to speak with - appellant, gone homefor awhile, and then returned to thestation,still desiring to speak with appellant. (1 RT 95-97, 101-102, 112.) At the endoftheir interview with appellant the officers consented to Mrs. Tully’s request and permitted her and appellant to speak privately to each other, in the interview room, for about five minutes. (1 RT 61-63, 95-98, 113.) Mrs. Tully left and the police transported appellant to the Santa Rita jail. (1 RT 63, 65.) On Sunday, March 29, 1987, Mrs. Tully called the Livermore police 115 headquarters and asked to speak to Officer Robertson or Detective Newton, but neither was working. Arrangements were therefore made to have Mrs. Tully meet with the officers on March 30. (1 RT 64-65.) And on that day, at 1:30 p.m., Mrs. Tully told Robertson and Newton that when she had spoken with appellantin the police interview room twodays before he said he had been in Olsson’s house, in another room, when “Doubting Thomas”stabbed and killed Olsson. Appellant also told Mrs. Tully, she relayed to the officers, that he had subsequently thrown awaythe knife. (1 RT 65, 69, 121-122, 194.) Robertson asked Mrs. Tully if she would make a taped statement, but she refused. She feared retaliation from “Doubting Thomas,” who was supposedly connected with the Hell’s Angels. (1 RT 66.) Perhapsin response to a question Robertson told Mrs. Tully about the Witness Protection Program and explained that if it were true that “Doubting Thomas” had killed Olsson, arrangements could be madefor her andappellantto participate in that program. (1 RT 66- 67, 117-121.) At some point Newton, who had stepped out of the room, returned wearing a body wire and tapedtherest of the conversation with Mrs. Tully. (1 RT 67, 194; People’s Exhs. 8A, 8B.) Newton asked Ms.Tully if she would weara body wire andtalk to appellant at the Santa Ritajail. (1 RT 66- 67, 96-97, 99, 213; People’s Exh. 8B at pp. 9-10.) Mrs. Tully again refused. (1 RT 67-68; People’s Exh. 8 B at pp. 9-10.) Robertson reiterated the Witness Protection Program possibility, but, he continued, it was the District Attorney’s Office, not the police, who would determine if she and appellant qualified for ‘the program. (1 RT 66-67, 117-121; People’s Exh. 8B at pp. 10-11, 13-14.) Newtontold Mrs. Tully that if“Doubting Thomas”was in fact Olsson’s killer, and she helpedthe police “with that,” they, in turn, to help her deal with her fear, would “work the State Witness Protection Program” for her and her children. (1 RT 120-121; People’s Exh. 8B at p. 12.) “[Y]ou and kids, no way they find, they’d give you a residence, they give you a new identity, new place 116 to live, if it comesto that. If yourlife is so in jeopardy, that for the State or Witness Protection Program, they’ll move you away. Plain and simple.” (1 RT 120-121; People’s Exh. 8B at p. 12.) Later that day, Officers Robertson and Newton wentto the Santa Rita jail to interview appellant about the “Doubting Thomas”information Mrs. Tully had given them. (1 RT 68-69, 103-104, 193.) Mrs. Tully followed in a separate car, again hopingto visit appellant. (1 RT 69-70, 212, 214.) In an interview room, Robertson and Newtonspoketo appellant. (1 RT 70, 195.) The officers were not taping the conversationat this point. They spoke with him for 30 minutes orslightly more. (1 RT 122-127.) According to Robertson,the officers told appellant that they had spoken with his wife, and that she had explained his version of the Olsson murder. | Theythen asked him ifhe wanted to give an additional statement. (1 RT 70-71, 103-104, 125.) Appellant did not respond. (1 RT 71, 103-104, 121-123.) The officers repeated the information Mrs. Tully had provided them. (1 RT 71, 104, 130.) Appellant remainedsilent. (1 RT 104, 130.) Newtontold appellantthat they knew he mightbefrightened of “Doubting Thomas”andthat he might need assistance from the Witness Protection Program if he (appellant), was telling the truth. (1 RT 130.) At that point appellant asked the officer what promises they could make him and his family about what he would receive from a Witness Protection Program. Newton explained that if it were true that appellant was merely presentat the murderscene and that his family might be harmed,the police could refer him and his family to the District Attorney’s Office for consideration to be placed in a protection program. (1 RT 71-72, 130-131.) Appellant asked to speak to his wife. (1 RT 72, 104-105.) According to Newton,he told appellant that he had just talked with Mrs. Tully, and that she had said appellant wanted to changehis story. (1 RT 198- 199.) When appellant did not reply, Newton asked him,“is that true?” (1 RT 117 199-201, 202-203.) Newton then told appellant that he knew appellant might be frightened of “Doubting Thomas” and might require assistance from the Witness Protection Program. (1 RT 195, 200-201, 203-204.) Appellant asked about the program and what promisesthe police could make him regarding his family and what he would receive from the program. Detective Newton next told appellant that the police did not have the final say on the Witness Protection Program, and that appellant had to betelling the truth in order to qualify. (1 RT 201, 204.) Both Newton and Officer Robertson recalled that appellant asked to speak to his wife. (1 RT 72, 125, 209-210.) The officers agreed to that request and Mrs. Tully entered the room and spoke privately with appellant for a few minutes. Appellant then told the police he would give a statement. (1 RT 72- 73, 113, 125, 209-212.) The police asked Mrs. Tully to leave the room. (1 RT 74.) A few minutes later, at 8:08 p.m., on tape, the officers re-affirmed that appellant had been advised of his Mirandarights and waived them, and began interviewing him. a RT 74-76, 123, 125, 127; People’s Exhs. 6A, 6B at p. 2.) Appellant immediately asked the police to put on tape “the part about the Witness Protection Program.” (1 RT 127-128; People’s Exh. 6B at p. 2.) Newton reiterated on tape that the police had discussed with appellant and his wife that appellant might provide testimony concerning the Oakland Hell’s Angels, and if that information met the criteria for the Witness Protection Program, the police would work to enroll appellant and his wife into the program. (1 RT 128; People’s Exh.6B at p. 2.) Appellant confirmedthat this was “correct.” (1 RT 128-129.) Appellant then provided the detailed taped account of what had happened to Sandy Olsson on July 24, 1986, that the prosecution eventually presented to the jury. (See pp. 26-32, ante.) Both during the March 30 interview andafter it, Newton called Deputy 118 District Attorney Charles Fraser and informed him ofthe interview. (1 RT 76, 206, 211.) Fraser wanted to listen to the tape and then conduct his own interview. (1RT 76.) Fraser, along with an investigator, did in fact conduct a second March 30, 1987 taped interview of appellant, during which appellant waived Miranda (1 RT 182-191; People’s Exhs. 9A-9B,9C at pp. 1-2), and gave more statements that the prosecution ultimately played for the jury (see pp. 32-35, ante)” Appellant testified at this suppression hearing as well. Hestated that during his March 30, 1987 conversation with his wife Vicky at the jail, he asked her, ““Why did you snitch me off?’” (1 RT 218-219, 224.) She explained that she wasscared for herself and the children. (1 RT 219.) Vicky told appellant that the police “were holding the check issue” over her head and he assumed, based on whatofficers had told him,that they were threatening her with charges as an accessory to murder. (1 RT 225-227.) Appellant then told her what the officers had told him about the Witness Protection Program. (1 RT 219.) “She said they had spoketo her aboutit also 14. People’s Exhibits SA-SC are the tapes ofthe entire March 27, 1987 police interview of appellant, and People’s Exhibit 5Dis the transcript of those tapes. (1 RT 134-136.) People’s Exhibit 6A is the tape of the first March 30 interview of appellant, and People’s Exhibit 6B is the transcript of that tape. (1 RT 142.) (Exh. 6B and Exh.6C are identical transcripts. (9 CT 2132.)) People’s Exhibit 7A is the tape of the March 27 police interview of Vicky Tully, and People’s Exhibit 7B is the transcript of that tape. (1 RT 142.) People’s Exhibit 8A is the tape of the March 30 police interview of Vicky Tully, and People’s Exhibit8B is the transcript. (1 RT 142.) People’s Exhibits 9A and 9B are tapes of the second March 30 interview of appellant, and People’s Exhibit 9C is the transcript of those tapes. (1 RT 183-184.) Thetrial court admittedall of these tapes and transcripts into evidence for purposes of the instant suppression hearing. (1 RT 158-159, 231-232.) Thetranscripts were not madea part of the record on appeal, although they should have been. (Cal. Rules of Court, rules 31(b)(11), 34.1(a)(1)(A), 243.9(a).) We will therefore make these transcripts part of the augmentation motion we discussed earlier. (See p. 35, fn. 9, ante.) . 119 and it was something that she wanted to do andfelt it was necessary to do.” (1 RT 220.) Appellant and Vicky discussed the program some more, with Vicky more than willing to participate. (1 RT 220.) Thepossibility ofthe program played the “key”part in appellant’s decision to talk to the police. (1 RT 220.) “Well, detectives, when they first came out to speak with me, they had told me about how I was arrested on this 187, Vicky—had confessed to the check charges and so shehadto befair, that she could certainly do some time with me. That being the case, there was talk of the kids being put in the foster home, andif I cooperated, on the otherside of the coin, my family would go in the program, be taken cared ofand provided for. So, on the one hand,if I didn’t cooperate, my wife was going to join mein the jail, and my children were goingto foster homes. Onthe other hand, if I did cooperate, my family would be protected.” _(1 RT 220-221.) Appellant spoke with police because he wasafraid of Vicky going to jail and also the fear of “Doubting Thomas” and wanted assurances that neither of those fears would be realized. (1 RT 227-228.) B. Appellant’s Arguments At Trial And The Trial Court Ruling Appellant moved for suppression of his March 27, 1987 statement, as well ~ as both March 30, 1987, statements, on essentially three grounds. Appellant argued that during the March 27 interview the police ignoredhis invocation of his right to counsel, and that this Miranda violation not only required suppression ofthe March 27 statement, but both statements he gave on March 30 because he didn’t have counsel there. (1 RT 238; 2 RT 286-291, 312.) . Appeliant argued next that during the untaped portion of his March 30 interview with Newton and Robertsonthe officers ignored his invocationofhis right to silence, and that this Miranda violation required suppression of 120 everything hetold them thereafter, and also required suppression ofhis second statement on March 30,as fruit of the poisonoustree. (1 RT 238; 2 RT 291- 293, 297-301, 312.) Appellant argued nextthat the trial court should suppresshis first March 30 statement on involuntariness grounds. Morespecifically, he asserted that the police elicited the statement from him through a Witness Protection Program inducement. (1 RT 238; 2 RT 301-311.) As part of this argument appellant contendedthat the police had unconstitutionally used his wife as their “agent,” getting her to not only provide him with witness protection information, but also to “soften him up” for questioning. (2 RT 312-314.) Appellant alleged that the involuntariness of his first March 30 statement rendered his second statement that day fruit of the poisonoustree. (1 RT 312-314.) Thetrial court rejected appellant’s motion as follows: That based on the totality of the circumstances, the [appellant’s] motion to suppress is hereby denied on all grounds promulgated. The statements were preceded by adequate warning ofconstitutional rights and a voluntary and knowing waiver thereof that was freely and intelligently made. The dispositive question here, however, is whether the defendant invoked his Sth Amendmentright to counselin the statement of March 27,787. Ifhe did, clearly, none of his subsequent statements would be admissible. The court will find that the [appellant] did not therein unambiguously invoke his right to counsel. If the implication of a Miranda right is equivocal or ambiguous, the police are permitted to continue talking as they did here with respect to the polygraph | examination issue for the purposeofclarifying whether the defendant had invoked such a right. , Further, the court will find that the [appellant’s] momentary delay in responding or failure to immediately reply to police questioning on March 30, ’87, did not constitute an implied implication of his 5th Amendment right to remain silent and/or his 5th Amendmentright to counsel. Finally, the court will also find that the prosecution has sustainedits 121 burden of proving that these same statements were voluntary. With specific regard to the statements of March 30, ’87, and the Witness Protection Program issue, the court will determine, again, based on the totality of the circumstances, including the preceding conversation with the police and Vicky Tully, their uncertainty as to what to believe and as to the defendant’s status as a suspector a witness, {appellant’s] initial reaction to their questions and a necessity as truthfulness as a prerequisite, that the statements on that subject fall short ofinducementor promise oflenient treatment and did notresult in a violation of [appellant’s] Sth Amendmentrights. Accordingly, as I say, [appellant’s] motion in that regard is hereby denied. (9 RT 1928-1929.) In this Court appellant lodges numerousattacks onthetrial court’s ruling. (I AOB 66-100.) His claims are either procedurally barred, without merit, or both. C. The Standard Of Review Is Well Established Thetrial court’s findingsas to the circumstances surrounding the statements at issue—including “the characteristics of the accused and the details of the interrogation—areclearly subject to review for substantial evidence.” (People v. Benson (1990) 52 Cal.3d 754, 779.) Also affirmed if supported by substantial evidence are the trial court’s resolution of disputed facts and reasonable inferences from thefacts, and its credibility evaluations. (People v. Crittenden (1994) 9 Cal.4th 83, 128; People v. Wash (1993) 6 Cal.4th 215, 235.) Determinations as to the validity of a waiver of Miranda rights, a predominately legal mixed question, are reviewed independently (People v. Mickey, supra, 54 Cal.3d 612, 649), although the question of whether a defendant invokes his Miranda rightsis a factual one reviewed for substantial evidence (People v. Crittenden, supra, 9 Cal.4th atp. 131). A “trial court’s determinations concerning whethercoercivepolice activity 122 waspresent, whether certain conduct constituted a promise and,if so, whether it operated as an inducement, are apparently subject to independent review as well. The underlying questions are mixed; such questions are generally scrutinized de novo.” (People v. Benson, supra, 52 Cal.3d at p. 779.) Finally, the trial court’s determination as to the voluntariness of a statement for both the federal and state constitutional guaranties of due process of law, whichis a resolution of a mixed question of fact and law that is nevertheless predominately legal, are reviewed independently as well. (/bid.; People v. Mickey, supra, 54 Cal.3d at p. 649.) D. Appellant’s Attacks On The Admissibility Of His March 27, 1987 Statement To Police All Fail Appellant offers several reasons whythetrial court should have excluded his March 27, 1987 statement from evidence. Nonehasanybasis. 1. Appellant Validly Wavied His Miranda Rights On March 27 And The Contrary View Is Forfeited Appellant claims that his March 27, 1987 statement to police was erroneously admitted into evidence because he didn’t validly waive his Miranda rights before giving that statement. (I AOB 84, 86.) He asserts that “any purported waiver” on that date was “involuntary.” (I AOB 86.) It is well settled that before police may interrogate a criminal suspect who is in their custody the defendant mustgive the officers a knowing and voluntary waiverofhis or her Mirandarights. (People v. Whitson (1998) 17 Cal.4th 229, 247.) The prosecution has the burden of showing the validity of the defendant’s waiver ofhis or her constitutional rights by a preponderanceofthe evidence. (Colorado v. Connelly, supra, 479 U.S. at pp. 168-169; People v. Markham (1989) 49 Cal.3d 63, 71.) 123 It ts equally wellsettled, however, that appellants may not make arguments for the first time on appeal (see generally Evid. Code, § 353), and that is what appellant is doing here. He did not challenge the validity of his March 27 Miranda waiver belowon any ground. (See pp. 120-121, ante.) The standard rule requiring a timely and specific objectionat trial to preserve the issue for appeal applies to Mirandaissues. (People v. Holt (1997) 15 Cal.4th 619, 666; People v. Milner (1988) 45 Cal.3d 227, 236.) In any event, the record showsthat at 6:07 p.m. on March 27, Officer Robertson read appellant his Miranda rights, and that appellant expressly waivedthoserights, both orally and in writing. (1 RT 54-57, 94-95, 146-147, 164, 175.) As the trial court found, police gave appellant an “adequate warming” of his “constitutional nights” and appellant gave “a voluntary and knowing waiverthereofthat was freely andintelligently made.” (9 RT 1928.) 15. Feeling obliged to defend this judgmenton all available grounds, herein the People have addressed the merits of many of appellant’s waived claims. This Court has no obligation to address the merits of waived claims, however, and should instead reject assignments of error on procedural “failure to object” grounds identified by the People throughout this case, thereby upholding California’s timely and specific contemporaneous objection rule (Evid. Code, § 353), andits corollary principle that a defendant may not assign error for the first time on appeal (People v. Green (1980) 27 Cal.3d 1, 27-34; People v. Milner, supra, 45 Cal.3d at p. 236). For purposes of federal habeas corpus review (whichis only available for personsin custodyin violation ofthe Constitution or lawsortreaties of the United States (28 U.S.C. § 2254,subd. (a)), a failure to properly object to or raise a federal constitutional issue at the state trial ordinarily constitutes a procedural default, foreclosing collateral review ofthe forfeited claim. (Wainwright v. Sykes (1977) 433 U.S. 72, 86-87 [97 S.Ct. 2497, 53 L.Ed.2d 594].) However, when a state appellate court reaches the merits of an issue despite the lack of a sufficient objection attrial without also or alternatively “plainly stating” that it is invoking the waiver doctrine, its failure to vindicate state procedure justifies federal review on the merits. (Harris v. Reed (1989) 489 U.S. 255, 262-264,fn. 10 [109 S.Ct. 1038, 103 L.Ed.2d 308].) Since the federal procedural default rule protects the state’s interest in the finality of its judgments, a federal court does no offense to state procedure by refusing to enforce a state procedural rule ignored bythe state 124 2. Appellant Did Not Unequivocally Request Counsel On March 27 Appellant claimsthat trial court erred in not excluding his March 27, 1987 statement to police from evidence because during the statement he unequivocally requested the assistance of counsel andthe police ignored that request. (I AOB 74-81.) Appellant is wrong. As the United States Supreme Court explained in Davis v. United States (1994) 512 U.S. 452 [114 S.Ct. 2350, 129 L.Ed.2d 362], if a criminal suspect “effectively waiveshis right to counsel after receiving the Miranda warnings, law enforcementofficers are free to question him. But if a suspect requests counselat any time during the interview,he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.” (512 U.S. at p. 458; citations and internal quotation and edit marks omitted.) However, any request for counsel must be unambiguous. (Id. at p. 459.) As Davis explained further, “‘a statementeither is such an assertion of the nght to counselor it is not. Although a suspect need not speak with the discrimination of an Oxford don, he mustarticulate his desire to have counsel presentsufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a requestfor an attorney. Ifthe statement fails to meetthe requisite level of clarity, [the law] does not require that the officers stop questioning the suspect.” (/d. at 459; citations and internal quotation marks omitted.) Any reference to counsel “that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” (/bid.; original emphasis.) court. In such a case, the federal court simply accepts the state court’s subordination ofthe state’s interest in finality. 125 Here, appellant did not unequivocally invokehis right to counsel. Well into the four-hourinterview, Detective Newton asked appellanta series ofquestions about whether he would submit to a polygraph examination. (People’s Exh. 5D at p. 72.) Appellant responded,“Then I think it would behoove meto consult alawyer.” (Ibid.) To clarify whether appellant’s request was related only to the possible polygraph, Newton specifically asked, “Okay. Before submitting to a polygraph examination?” (/bid.) Appellant answered, “Uhm, yeah, before submitting to any questions I wouldn’t want to answer.” ([bid.) Context thus shows that appellant meant he wanted counsel “before submitting” to any polygraph questions. This is further demonstrated bythe fact that immediately thereafter, appellant continued to focus on the issue of his taking a polygraph exam: He expressed concern about thereliability of a polygraph machine and commentedthat he had no experience in that area. (/d. at pp. 72-73.) Detective Newton sought further clarification and stated “maybe I’m not hearing you right. But before you gonna be completely truthful here, you’re going to wait and talk to an attomey, is that correct?” (/d. at p. 73.) In response appellant again voiced concern that he was unfamiliar with polygraphs, commenting,“I think it best that if I wanted to face, I think it’d be best if I consult a lawyer.” (/bid.) Newton then asked appellant a few questions about his knowledge of how a polygraph examination worked. (/d. at pp. 73-74.) Appellant stated that he didn’t really know. (Jbid.) “That’s right. I don’t know,that’s why I’d like to talk to someone whodoes.” (/d. at p. 74.) Then,after a 14-minute break, Officer Robertson asked appellantifhe felt “like continuingto talk to us?” (People’s Exh. 5D at p. 74.) Appellant replied, “Sure.” (/bid.) Robertson, to resolve any ambiguity, asked, “When welastleft this tape, we were talking about polygraph and you mentioned talking to a lawyer. Do you want a lawyer now? (/bid.) Appellant said, “No, I’m all right.” (People ‘s Exh. 5D at p. 74) Robertson reiterated, “You’re sure?” 126 (Ibid.) Appellant replied yeah.” (/bid.) This question of whether appellant unequivocally invoked his right to counsel is a factual one reviewed for substantial evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 131.) Substantial evidence supports thetrial court’s findingthat appellant did not unequivocally request counsel during the March 27, 1987 interrogation, and therefore the police did notviolate his right to counsel by questioning him withoutonepresentto assist him. (9 RT 1928.) 3. Appellant Voluntarily Gave His Statement On March 27 And His Contrary Claims Are Forfeited Appellant next claims that he gave his March 27, 1987 statement to the police involuntarily, and he offers several grounds in support. (I AOB 86-90.) Asnotedearlier, “an involuntary confession or admission is inadmissible.” (People v. Mickey, supra, 54 Cal.3d at p. 647.) However, a statementis involuntary only “if it is the product of coercion or, more generally, ‘overreaching.”” (Jbid.) Wesubmitfirst that appellant’s claims in this regard are forfeited. While prior to the suppression hearing he offered the view that one of the issues before the trial court had “to do with the straight voluntariness under the conditions [appellant] was placed” (1 RT 48), thereafter appellant never offered a single specific argumentthat his March 27 statement was the product ofpolice coercion,leniency, or other overreaching, and thus was involuntary (2 RT 285- 337). Appellant’s claims also fail on the merits. For example, he complainsthat “the duration and conditions” of his confinement “at the police station were coercive.” (I AOB 86.) He argues that when he was arrested, the police took him to the police station without shirt and shoes, held him atthe policestation for six hours before interrogating him, questioned him “for many hours,” and 127 shackled him to the floor with an ankle bolt. (I AOB 86.) The record, however, offers appellant no support. While appellant was wearing only pants whenarrested (1 RT 79), Officer Robertson could notrecall if officers provided appellant with coveralls at the police station (1 RT 87). It is clear that before the interview and until it ended police provided appellant with cigarettes, water, soft drinks, candy, pizza, and permitted him to use the restroom. (1 RT 54-55, 144-145, 164-165, 175.) And, it was notuntil the “latter part ofthe interview”thatpolice put the ankle shackle on appellant, and did so because they were going in and outof the interview room and wanted to maintain security. (1 RT 89-90.) Thefacts therefore show that appellant was hardly treated coercively. | Appellant next complains that the police “deceived and led” to him; arrested him on narcotics offensesas a “ruse” to interrogate him for the murder; and “falsely and repeatedly” told him that “‘five’ Department of Justice fingerprint analysts had determinedhis fingerprints matched those found in Ms. Olsson’s house.’” (J AOB 87.) The record showsthat the police properly arrested appellant on twoarrest warrants for narcotic violations. (1 RT 53-54.) This was no ruse. The police did not need a “ruse”to interrogate appellant for murder. As Officer Robertson testified, he had probable causeto arrest appellant for murder because two days earlier, the police had matched appellant’s fingerprintto the fingerprint on the bloody Buck knife found near the murder scene. (1 RT 80-82.) That the officers told appellant that “five” analysts had made such a match when in reality only one had hardly rises to a level of deception such as to produce an untrue statement. Indeed, appellant continued to deny complicity in the crime despite the officer’s assertion that his fingerprints were found in the house. Appellant next complains that “the police used threats to try to get him to talk.” (J AOB 88.) Appellant asserts that at the beginning of the March 27 128 interview, the police questioned him “about checks foundin his car belonging to someoneelse that had Vicky’s name on them.” (I AOB 88,citing People’s Exh. 5D at p. 2.) Appellant continues his claim with the assertion that this police inquiry about the checksin his car, “initiated the threat, made overt on March30, that Vicky would goto jail if [appellant] did not talk to the police.” (I AOB 88.) Howeverappellant’s argumentis supportedonly by his testimony, which meansthat on appeal the argumentessentially has no evidentiary support. Appellant ignores the fact that the trial court, in denying the suppression motion, implicitly rejected his testimonythat the police had threatened him on March 30th that his wife would go tojail if he did not give a statement. Finally, appellant complainsthat after he told the police that he wanted a lawyer during the March 27 interview “the policetried yet another ploy to keep. him talking” by bringing “Officer Trudeau into the interview room.” (I AOB 88.) Appellant claims Trudeau “relied on” his “past relationship” with appellant(i.e., the March 7 arrest where Trudeau “cajoled him into talking by telling him nothing that he said would be used against him”) “to catch” appellant “off guard and to put him at ease so that he would incriminate himself.” (I AOB 88-89.) This argument is procedurally barred not only because appellant did not makeit below (see pp. 120-121, ante), but because at the suppression hearing he presented no evidenceofany “past relationship” with Trudeau. Where“testimony was not before thetrial court at the time of the suppression hearing,” “it is irrelevant to our inquiry now,” because “in - reviewingthe trial court’s suppression ruling, we consider only the evidence ~ that was presentedto the trial court at the time it ruled.” (In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18, citation omitted.) A review ofthe March 27, 1987 interview establishesthat the police did not use any ofthe traditional methods of intimidation which result in involuntary statements or confessions. Police made no promisesto appellant, and neither 129 Officers Robertson, Newton or Trudeau yelled at appellant, displayed a weapon,or threatened him in any other way. Appellant never indicatedthat he felt frightened or threatened or appeared as such. Additionally, the officers were neither overly aggressive nor confrontational with appellant. Appellant never appeared not to understand whathe andthe officers were talking about and he neverincriminated himself. The opinionsthat he gave aboutthe crime that the prosecutionlater usedat trial show a defendant in control andtrying to putthe police off his trail; those statements don’t show a “peaten-down” man speaking against his will. E. Appellant’s Attacks On The Admissibility Of His First March 30, 1987 Statement To Law EnforcementAll Fail . Appellantoffers several reasons whythetrial court should have excluded his first March 27, 1987 statement from evidence. Nonehasanybasis. 1. Appellant Validly Waived His Miranda Rights On March 30 And The Contrary View Is Forfeited Appellant claims that his first March 30, 1987 statement to police was erroneously admitted into evidence becausehe didn’t validly waive his Miranda rights before giving that statement. (I AOB 84.) Because appellant did not make this argument attrial (see. pp. 120-121, ante) he cannot make it now (People v. Holt, supra, 15 Cal.4th at p. 666; People v. Milner, supra, 45 Cal.3d at p. 236). In any event, the record shows,as thetrial court found,that priorto the first March 30 statement the police adequately advised appellant of his Miranda rights andthat he voluntarily and knowingly waived those rights. (1 RT 74-76, 123, 125, 127; People’s Exhs. 6A, 6B at p. 2; 9 RT 1928.) 130 2. Appellant Did Not Invoke His Right To Remain Silent Appellant claims that the police violated his Mirandarights duringthefirst March 30, 1987 statement because the officers interrogated him even though he invoked his right to remain silent. (I AOB 81-83.) In support, appellant points to his silence after the police asked him if what his wife had told them about his “Doubting Thomas”statementto her “was true.” (I AOB 82,citing 1 RT 70, 130.) Appellant claims that instead of honoring his silence, the officers “cajoled and induced”him to talk. (I AOB 82.) Notso. As with the invocation of the right to counsel, law enforcementofficials must stop questioning a suspect whoinvokeshis orherrightto silence.“Ifthe individual indicates in any manner, at any timepriorto or during questioning, that he wishes to remain silent, the interrogation must cease.’” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238, quoting Mirandav. Arizona, supra, 384 U.S. 436, 473-474.) The question of whether appellant invokedhis rightto silence is a factual — one reviewedfor substantial evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 131; People v. Musselwhite, supra, 17 Cal.4th at p. 1238.) Here, substantial evidence supports the trial court’s finding that appellant did not invokehis right to remain silent during the first March 30, 1987interrogation, and therefore the police did notviolate his rights by continuing to question him. (9 RT 1928-1929.) After appellant remainedsilent whentheofficers told then that they knew what he had told his wife about “Doubting Thomas’s” commission ofthe killing of Olsson, Newton acknowledged appellant’s fear and explained that if appellant’s story were true, he might qualify for the Witness Protection Program. Appellant hesitated momentarily, and then asked about the Witness Protection Program and what promises the police could make to him and his family. (1 RT 70-72, 104, 122, 125, 130-131, 195-196, 199, 200-201, 203, 208-209.) Appellant’s silence was a pause to think and to 131 strategize about his next statement, and was not an invocationofhis right to remain silent. Appellant knew his rights, and knew hedidn’t haveto talk ifhe didn’t wantto. Appellant relies upon United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475, United States v. Hernandez (Sth Cir. 1978) 574 F.2d 1362, 1368, . fn. 9, and Watson v. State (Tex. Crim. 1988) 762 S.W.2d 591, 598, for the proposition that the “most obvious manner”to assert the right to remain silent “is by remaining silent.” (I AOB 82.) However, those three cases are distinguishable. In Wallace, there existed no evidence that defendant expressly waived her rights and she remained silent for perhaps as many as 10 minutesbefore giving an incriminating statement. (United States v. Wallace, supra, 848 F.2d at p. 1475.) In Hernandez, the police read defendant his Miranda rights three to four — times andeach time he refused to speak. The first occurred whentheofficers arrested the defendant at midnight. Five hourslater, after appellant had been confined in a police wagon for five hours, “where he was effectively held imcommunicado without any possible access to an attorney,” the police took him to the police station. There the police read him his rights again, and questioned him twoto three more times. Each time defendant refused to speak. Finally, within 45 minutes after arriving at the police station, in a room with more than three police officers present, the police elicited incriminating statements from defendant. The Hernandez court held, “Such police conduct is tantamount to coercive pressure applied to the accused to force him to reconsiderhis invocationofhis right to silence.” (United States v. Hernandez, supra, 574 F.2d at pp. 1365, 1368-1369.) In Watson v. State, supra, 762 S.W.2d 591, the police interrogated defendant on multiple occasions. Thefirst time, after being read his Miranda 132 warnings, defendant did not answer any question aboutthe burglary for 30 to 40 minutes, and was returnedto his cell. (/d. at pp. 597-598.) At the second interrogation, defendant refused to answer for 20 minutes and was returned to his cell. An officer told the prosecutor that defendant“didn’t wantto talk.” (dd. at p. 598.) At the third interrogation, defendant remainedsilent for 15 to 20 minutes and then madea statementthat did not implicate himself. After his co- defendant confessed and implicated Watson, the police interrogated him for a fourth time, at which time he madeincriminating statements. The Watson court held: We conclude that [defendant’s] silence, his refusal to answer any questions during the first and secondinterrogationsandpart ofthe third interrogation, his conduct demonstrating he didn’t wantto talk and did not wantto cooperate with the police was sufficient to indicate his desire to remain silent and to exercise his right to “cut off questioning” particularly given the Miranda card warnings that were read. to him. The record showsthat the police understood [defendant] “didn’t want ~ to talk.” There was no reasonable basis for inferring that [defendant] had changed his mind. . (Watson v. State, supra, 762 S.W.2d at p. 599.) By contrast, in this case appellant was not peppered with questions on multiple occasions nor did he remain silent on multiple occasions. He remained silent for a very short period while thinking of the best way to ask the officers what Witness Protection Program promises they could make him andhis family. Thetrial court ruled correctly in refusing to find that appellant invokedhis right to remain silent. (9 RT 1928.) _ | 3. Appellant Voluntarily Gave His First Statement On March 30 Appellant next claims that he gave his first March 30, 1987 statement involuntarily, and he offers several reasons in support, including police promises ofleniency, threats, psychological ploys,andthe “use”ofhis wife to 133 induce him to talk. (I AOB 83, 90-101.) His claims fail. Appellant complainsfirst that police, “from the beginning” on March 27, 1987, “engineered” Mrs. Tully’s involvement in this case to compel him to incriminate himself. (I AOB 91.) Appellant argues that the officer used his March 27 meeting with his wife Vicky “as leverage for her cooperation, andit was Vicky’s report of what [appellant] said during this conversation that ultimately led to [appellant’s] March 30th statements to law enforcement.” (I AOB89.) | The record offers no support for this claim. That the police did not arrest Mrs. Tully on her confession to check fraud on March 27 was in compliance with policy. (1 RT 86, 143-144, 151-152.) And it was Mrs. Tully, not the police, who persisted that she be allowed to visit and talk to appellant. On March 27 she asked the police several times ifshe couldtalk to appellant before he was transported to jail. (1 RT 62-63, 96.) Contrary to appellant’s suggestion, the police did not order her to return to the police stationto talk to appellant. She hadleft the station and returned on her own. (1 RT 95-97, 101- 102, 112.) It was also Mrs. Tully who called the police on March 29 and requested to talk to Officer Robertson or Detective Newton. (1 RT 64-65.) The next day, she, on her own volition, went to the police station and told the police that appellant had told her that he was present at the house when “Doubting Thomas” murdered Olsson, and that they were afraid ofThomas. (1 RT 65, 69, 194.) In response to herexpressedfears, the police told Mrs. Tully about the Witness Protection Program, where her family would be given a new identity, anew home,and newjobs,ifthey qualified for the program. (1 RT 65-69, 99, 118, 194.) Itis obviousthat the policewere not “leveraging” for Mrs. Tully’s cooperation, but vice versa. And Mrs. Tully was not “used”bythe police. She refused the police’s request to makea taped statement and again refused to help the police by wearing a body wire to tape her conversation with appellantat the 134 Santa Ritajail. (1 RT 66, 68.) Itis inconceivable howthe police, by permitting Mts. Tully to speak to appellant, committed an act tantamount to “those psychological ploys which, underthe circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.” (People v. Ray (1996) 13 Cal.4th 313, 340, 341.) | Appellant also argues that the police lied to Mrs. Tully to obtain incriminating statements from him. (I AOB 93.) Pointing to the police interview ofMrs. Tully on March 30, 1987,appellantasserts that the police told her “that “it would be easier’ on [appellant] ifhe admitted to some involvement in the crime,” and “would not ‘lie’ to her about that.” (I AOB 93, citing People’s Exh. 8B at p. 10.) The People respondthat not only does appellant fail to cite to a place in the record that shows that Mrs. Tully conveyedthis statementto appellant, but the police did not lie to her. Mrs. Tully asked them: “If Richardis telling the truth that he isn’t the one,that at least did this, would it be any easier on Richard?” (/bid.) Newton’s affirmative answer(“Yea’’) was true. If appellant wastelling the truth that “Doubting Thomas” committed the murder while appellant was simply presentat the scene, things would have been easier for him than for Thomas. Appellant asserts that he gavehis first set ofMarch 30 statements to police involuntarily in response to the police threats that Mrs. Tully “was going to go to jail, either on check fraud chargesor as an accessory to murderandthat their children would be taken away from her.” (I AOB 90-91.) Appellant ignores that the only evidence in support ofthis assertion is his own testimony (1 RT 220-221, 225-227), and that the trial court implicitly rejected it in denying the suppression motion. This credibility determination was forthetrial court alone, and it leaves appellant’s claim without factual support” 16. Appellant vehemently argues in this Court that the trial court could not have reasonably accepted any testimony offered by Officers Robertson and 135 Appellant lastly asserts that the police induced his March 30 statement through a promise of leniency. According to appellant, the police used the Witness Protection Program as an offer to get him to incriminate himself. (1 AOB95-97.) Appellant states he talked only because he wanted to make sure “he and his family would be protected” and the authorities led him to believe such witness protection “would be arrangedifhe talked.” (I AOB 97.) The law, ofcourse, providesthat if a defendantis given to understandthat he or she might reasonably expect benefits in the nature ofmore lenient treatmentat the hands of the police, prosecution, or court, in consideration of making the statement, even a truthful one, such motivation may render the statement involuntary and inadmissible. (People v. Cahill (1994) 22 Cal.App. 4th 296, 309-17.) Here, the record shows that when the officers explained the Witness Protection Program to Mrs. Tully they made clear to her that appellant’s statement about Doubting Thomas having committed the murderhadto be true, and that it would be the District Attorney’s Office, not the police, who would determine whether she and her family qualified for the program. (1 RT 66-67, 99, 118, 120-121.) Similarly, when police explained the Witness Protection Program to appellant, they madeclear to him that he had to be giving them a true statement, and that the District Attorney would ultimately determine whether he qualified for protection. (1 RT 70-72, 128, 130-131, 201-204.) Morespecifically, Newton told appellant that the police would haveto be able “to corroborate” the information appellant gave them before he could qualify Newton becausetheir testimony suffered from numerous inconsistencies and was therefore unreliable. (I AOB 92-93.) On appeala court can reject the testimony of a witness the trier of fact believed only if the witness gave “mherently improbable”testimony,or testified to events whichthe truth thereof was “physically impossible.” (People v. Barnes (1986) 42 Cal.3d 284, 306.) Noneofappellant’s criticisms ofthe testimony ofRobertson and Newton meets either of these two Barnes prongs. 136 for a protection program. (1 RT 201.) Appellant confirmedthat as a “correct” understanding. (1 RT 128-129.) Appellant therefore could not have reasonably believed that the police were promising him participation in the Witness Protection Program for himself and his family if he made a statement. Indeed when appellant spoke with prosecutor Fraser in his second March 30, 1987 interview,appellant said he wanted “to make sure that myselfand my family are both protected.” (People’s Exh. 9C at p. 2.) Fraser replied, “I can’t make you any promises. I can’t promise you about anything.” (/bid.) Appellant cites no case, and the People have found none, which holds that the police make an improper inducementto a witness whenthey tell him or her that they will try to get the witness into a protection program ifthe witnesstells them the truth and the witness otherwise qualifies for protection. This was the essence ofthe trial court’s ruling. (9 RT 1929.) Finally, regarding appellant’s secondset ofinculpatory statements on March 30, 1987, those he gave prosecutor Fraser and investigator Brock,in this Court appellant does not detail any trial court error in the admission of those statements. He baldly suggests only that those statements were “involuntary” (I AOB 83, 90, 101), but since he made no such argumentattrial, he cannot makeit now (see pp. 120-121, ante; People v. Holt, supra, 15 CalAth atp. 666; People v. Milner, supra, 45 Cal.3d at p. 236). Moreover, because, as we have demonstrated, the police committed no constitutional violationsin theelicitation of appellant’s March 27 and first March 30, 1987 statement, appellant’s trial argument, that the second March 30 neededto be suppressedasfruit of the poisonoustree, necessarily fails. F. Any Error Was Harmless Wheninvoluntary or Miranda-violative statements are erroneously admitted into evidence, no reversal is required if the prosecution can show the error 137 harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18, 23-24; Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 113 L.Ed.2d 302]; People v. Johnson (1993) 6 Cal.4th 1, 32-33.) That is certainly the case here, with respect to the murder verdict and burglary-murder special circumstance, if this Court finds that the trial court erred in admitting one or more of appellant’s March 27 and March 30, 1987 statements. Simply put, the fingerprint evidence on the murder weapon overwhelmingly established that appellant burglarized victim Olsson’s home, and stabbedher to _ death. 138 IV. THE TRIAL COURT DID NOT ERR BY DISMISSING CERTAIN PROSPECTIVE JURORS FOR CAUSE Appellant contends that the trial court erred by excusing five prospective jurors for cause: M.D., E.H., M.K., B.D., and T.L. (I AOB 103-168.) Appellant claims that as a result of this trial court error, the following rights were violated: His “rights to a fair and impartial jury, due process andto a fair and reliable penalty determination under the Sixth, Eighth and Fourteenth Amendments and article I of the California Constitution resulting in a miscarriage ofjustice.” (I AOB 103, 168.) Appellant wants a reversal of the guilt and death judgments as a remedy. (I AOB 103, 167-168.) He is not entitled to it. No error occurred. A. Standard Of Review The decisions of this Court and the United States Supreme Court establish that a prospective juror “‘may be challenged for cause based uponhis or her views regarding capital punishment only if those views would “‘prevent or 399substantially impair’” the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.’” (People v. Heard (2002) 31 Cal.4th 946, 958; quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 [105 S.Ct. 844, 83 L.Ed.2d 841]; People v. Crittenden, supra, 9 Cal.4th 83, 121; People v. Mincey (1992) 2 Cal.4th 408, 456.) “A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate. In addition, on appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as bindingthe trial court’s determinationas to the prospective juror’s true state of mind whenthe prospective juror has made statements that are conflicting or ambiguous.” (People v. Cunningham (2001) 25 Cal.4th 926, 139 975, citations and internal quotation marks omitted.) Seco“mitigating circumstances.’” (People v. Roldan, supra, 35 Cal.4th at p. 745, quoting People v. Boyette, supra, 29 Cal.4th 381, 466.) “CALJIC No. 8.88, . . . adequately defines ‘mitigation.’” (People v. Panah, supra, 35 Cal.4th at p. 500, citing People v. Ochoa, supra, 26 Cal.4th at p. 452; see also People v. Stitely, supra, 35 Cal.4th at p. 574 [“The standard instruction in CALJIC No.8.88 adequately advised jurors on the scope of their discretion to reject death and to return an LWOPverdict.”’].) D. Finally, appellant asserts that the death penalty is unconstitutional becauseit is currently “simply unacceptable in American society.” (IJ AOB 723.) “Recent events and shifting public opinion prove that modern standards of decency have evolved to the point where the death penalty is now viewed as inhumane.” (II AOB 724.) This is a curious and incorrect claim, in light of the fact that a January 2004 Harris Poll indicates that more than two-thirds of Americans continue to support the death penalty. (See generally, .) 366 XXIX. APPELLANT’S “INTERNATIONAL LAW” CONTENTION IS NOT COGNIZABLE AND OTHERWISE MERITLESS Appellant’s penultimate contention is that his convictions and death sentence resulted from state and federal constitutional violations which also contravened customary international law andinternationaltreaties to which the United States is a party. (II AOB 728-734.) More specifically, appellant asserts that he was denied his rights to due process, a fair trial, equal protection, freedom from cruel and unusual punishment, andto reliable, individualized, and non-arbitrary penalty determination, under principles established by the International Covenant on Civil and Political Rights (“ICCPR”), and the “International Convention for the Elimination of All Forms of Racial Discrimination (“ACEAFRD”). (II AOB 728-734.) “Violation ofthese rights afforded by international law warrantthe granting of relief without any determination of prejudice.” (II AOB 734.) “International law is fully applicable and binding upon domestic courts.” (II AOB728.) Appellant is precluded from raising this issue becausehelacks standing to assert a violation ofinternational law. Additionally, this Court has previously rejected the notion that California’s death penalty statutes somehow violate international law. Initially, this Court should preclude appellant from raising violations of customary international law ortreaties for the first time on appeal, since he neverraised such claimsin the trial court. If, as this Court has held, appellant cannot raise federal constitutional issues for the first time on appeal (People v. Rowland (1992) 4 Cal.4th 238, 265, fn. 4, 267,fn. 5; People v. Carpenter, supra, 15 Cal.4th 312, 385), the law should prevent him from raising international law ortreaty issues forthe first time on appeal. 367 Second, appellant’s claim that the state and federal constitutional violations he suffered also comprised violations of international law fails because, as demonstrated throughout, he did not suffer violations of state or federal constitutional law. (People v. Jenkins, supra, 22 Cal.4th 900, 1055; People v. Bolden, supra, 29 Cal.4th 515, 567; People v. Dickey, supra, 35 Cal.4th 884, 932.) Third, appellant has failed to show that he has any standing to invoke the jurisdiction of international law in this proceeding because the principles of international law apply to disputes between sovereign governments and not between individuals. (Hanoch Tel-Oren v. Libyan Arab Republic (D.D.C. 1981) 517 F.Supp. 542, 545-547.) Nor does appellant have any standingto raise claims that his conviction and death sentence resulted from violations ofinternational treaties. It is true that article VI, section 2, of the United States Constitution provides, in pertinent part, that the Constitution, the laws of the United States, and all treaties made underthe authority of the United States are the supreme law of the land. However,treaties are contracts among independentnations. (United States v. Zabaneh (Sth Cir. 1988) 837 F.2d 1249, 1261.) Under general principles of international law, individuals have no standing to challenge violations of internationaltreaties in the absenceofaprotest by the sovereign involved. (Matta-Ballesteros v. Henman (7th Cir. 1990) 896 F.2d 255, 259; United States ex rel. Lujan v. Gengler (2d Cir. 1975) 510 F.2d 62, 67.) Treaties are designedto protectthe sovereign interests ofnations, andit is up to the offended nations to determine whether a violation of sovereign interests occurred and requires redress. (United States ex rel. Lujan v. Gengler, supra, 510 F.2d at p. 67; Matta-Ballesteros v. Henman, supra, 896 F.2d at p. 259.) It is only whena treaty is self-executing, that is, when it prescribes rules by which one may determineprivate rights, that one may rely 368 on it for the enforcementofsuch rights. (Dreyfus v. Von Finck (2d Cir. 1976) 534 F.2d 24, 30.) In order for a provision of a treaty to be self-executing without the aid of implementing legislation and to have the force and effect ofa statute, it must appearthat the framers ofthe treaty intended to prescribe a rule'that, standing alone, would be enforceable in the courts. (Sei Fujii v. State ofCalifornia (1952) 38 Cal.2d 718, 722.) In determining whether a treaty is self-executing, courts look to the following factors: (1) the language and purposeofthe agreementas a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement; (4) the availability and feasibility of _ alternative enforcement mechanisms; (5) the implications of permitting a private right of action; and (6) the capability of the judiciary to resolve the dispute. (Frolova v. Union ofSoviet Socialist Republics (7th Cir. 1985) 761 F.2d 370, 373; American Baptist Churches v. Meese (N.D. Cal. 1989) 712 F.Supp. 756, 771.) Here, appellant fails to cite any authority in support of a claim that the treaties upon whichherelies are self-executing. No language in any of these treaties appears to create rights in private persons. Therefore, appellant is incapable of asserting a personal cause of action under the foregoing instruments. Indeed, the articles of the ICCPRare not self-executing. (II AOB 477-478, and fn. 139, citing Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights (1992) S.Exec.Rep. No. 23, 102nd Cong.,2nd Sess.) To the extent appellant believes that the ICCPRis a forceful source ofcustomary international law and as such is binding upon the United States that claim doesnot explain how the ICCPR has the force and effect of a statute for which an individual alleging a violation of may seek redressin the courts. Appellant’s suggestions that “customary international law” is somehow 369 applicable to the review of constitutional issues presented here is unpersuasive. It is well recognized that courts are not substitutes for international tribunals, and international law does not create the right of an individual to pursue a private human rights suit against a sovereign government. (Hanoch Tel-Orenv. Libyan Arab Republic, supra, 517 F.Supp. 542.) . | Appellant further claims he has a cause of action under principles. of customary international law because the provisions ofthe ICCPRare accepted by the United States courts as customary international law. (II AOB 728-729.) The customsandusagesofcivilized nations have long been used as a source of international law binding uponall nations where there is no treaty and no controlling legislative, executive, orjudicial decision. (The Paquete Habana (1900) 175 U.S. 677, 700 [44 L.Ed. 320, 20 S.Ct. 290]; American Baptist Churches v. Meese, supra, 712 F.Supp.at p. 770.) However, the United States Supreme Court has held that interpretation of the United States Constitution, and by extension, its application to state statutory law, is ultimately an issue for it (the High Court) to decide. (Stanford v. Kentucky (1989) 492 U.S. 361, 370, fn. 1, 377 [109 S.Ct. 2969, 106 L.Ed.2d 306].) Thus, while documents or studies prepared by professional groupsorotherinterested parties (such as the ICEAFRD) may be among the commentaries submitted to, or reviewed by, the court on a particular issue, they are neither controlling nor dispositive of the federal constitutional issue presented. (Jbid.) In essence, interpretation and application of the provisions of the United States Constitution to questions presented bystate or federal statutory or constitutional law is ultimately an issue for the United States Supreme Court and the lower federal courts, not customary international law. Finally, appellant’s claim lacks merit because this Court has essentially 370 already rejected it. (People v. Ghent, supra, 43 Cal.3d 739, 778-779.) In Ghent, this Court held that international authorities similar to those now invoked by appellant do not compelelimination of the death penalty, and do not have any effect upon domestic law unless either self-executing or implemented by Congress. (/bid.) As in Ghent, appellant cites no authorities suggesting the international resolutions on which herelies have been held effective as domestic law. Ghent thus compels rejection of appellant’s claim. (Accord, People v. Roldan, supra, 35 Cal.4th 646, 744 [“The California death penalty law does not violate international law, specifically the International Covenanton Civil and Political Rights.”]; People v. Blair, supra, 36 Cal.4th 6686, 755 [“‘“[i]Jnternational law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.”’’’].) In sum, appellant has waived this claim and further has no standing to invokeinternationallaw asa basis for challenging his state convictions and judgment ofdeath. Furthermore, appellant has failed to state a cause of action under international law for the simple reason that appellant’s various claims of violations of due process in connection with his prosecution, conviction and sentencing in this case are without merit. Finally, this Court is not a substitute for international tribunals. In any event, American federal courts carry the ultimate authority and responsibility for interpreting and applying the American Constitution to constitutional issues raised by federal orstate statutory or judicial law. This Court’s earlier conclusion in Ghent has equal applicability in this case. 371 XXX. CALIFORNIA’S STATUTORY SCHEME GIVING PROSECUTOR’S DISCRETION TO DECIDE WHICH CASES TO CHARGEAS CAPITAL CASES DOES NOT VIOLATE THE FEDERAL CONSTITUTION It is clear that under California law prosecutors in special-circumstance cases have discretion whether or not to seek the death penalty. Appellant submits that this defect in the state’s statutory schemeintroducesarbitrary and capricious elementsinto the decision-making process and thereby violates the Eighth Amendment to the United States Constitution, as well as the due process and equal protection clauses ofthe Fourteenth Amendment. (II AOB 735-744.) “Because of the prosecutorial discretion, some offenders will be chosen as candidates for the death penalty by one prosecutor, while others with similar characteristics in different counties will not be singled out for the ultimate penalty.” (II AOB 735.) Appellant asks this Court to set aside the death judgmentas a remedy. (IJ AOB 733-734.) This Court has repeatedly rejected appellant’s contention, and the People see no reason to revisit it, much less for this Court to change its mind and accept the claim. (People v. Haskett, supra, 30 Cal.3d 841, 859-860; People v. Kirkpatrick, supra, 7 Cal.4th 988, 1024; People v. Barnett, supra, 17 Cal.4th 1044, 1179); People v. Maury (2004) 30 Cal.4th 342, 438; People v. Dickey, supra, 35 Cal.4th 884, 932.) The law permits—indeed demands—that prosecutors treat different defendants differently. Various cases involve various witnesses, victims, and facts. (People v. Haskett, supra, 30 Cal.2d at p. 860.) As this Court has explained,“prosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and ofitself evidence an arbitrary and capricious capital punishment system or offend principles of equal protection, due process, or cruel and/or unusual punishment.” (People 372 v. Kirkpatrick, supra, 7 Cal4th at p. 1024, quoting People v. Keenan, supra, 46 Cal.3d 478, 505.) “Absent a persuasive showingto the contrary, we must presumethatthe district attorney’s decisions were legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement.” (People v. Haskett, supra, 30 Cal.3d at p. 860.) Appellant’s reliance on Bush v. Gore, supra, 531 U.S. 98, is unavailing. According to appellant, Bush v. Gore makesclear “that fundamentalrights cannot be denied based upon arbitrary and disparate statewide ‘standards.’ The Court held that, where a single state entity has the power to assure uniformity in implementing a fundamentalright, there must beat least some assurance that the rudimentary requirements of equal treatment and fundamental fairnessaresatisified.” (II AOB 737.) In Bush v. Gore, a Florida Supreme Court order to recount votescast in the 2000 presidential election by applying an “‘intent of the voter’” test was reversed bythe nation’s High Court. (531 U.S.at pp. 1-2-103.) The Court found the “recount mechanisms implemented in responseto the decisions of the Florida Supreme Court do notsatisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamentalright.” (id. at p. 105.) The Court further concluded the “problem inheres in the absenceofspecific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and ... necessary.” (/d. at p. 106.) In Bush, the Court did not purport to offer any views on the criminal law, andit is fundamentalthat a case is not authority for a proposition neither raised nor considered therein. (People v. Wells (1996) 12 Cal.4th 979, 984, fn. 4.) Indeed the Bush court expressly limited its analysis to the unique circumstances of the 2000 presidential election process in Florida and the recount procedures. (531 U.S. at p. 109.) The Court’s statement that its “consideration is limited to the 373 present circumstances, for the problem of equal protection in election processes generally presents many complexities” (531 U.S. at p. 109), reveals the futility of appellant’s reliance upon the Bush opinion. Indeed,the issue in Bush concemedstandardsfor interpreting physical marks on a physical object, not anything as intangible as a prosecutor’s thought processes or the considerations that properly influence a death penalty decision (e.g., the evaluation of evidence and credibility; the background of the defendant; the viewsofthe victim’s family). 374 CONCLUSION Accordingly,for all of the foregoing reasons the People respectfully ask this Court to affirm the judgment. Dated: December8, 2006 MJY:bw SF1993XS0001 Respectfully submitted, BILL LOCKYER Attorney General of the State of California MARY JO GRAVES Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General RONALD S. MATTHIAS Supervising Deputy Attorney General ee MARGOJ. YU Deputy Attorney General Attorneys for Respondent 375 mee CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEFusesa 13 point Times New Romanfont and contains 118,139 words. Dated: December 8, 2006 Respectfully submitted, BILL LOCKYER Attorney General of the State of California MARGO J. YU Deputy Attorney General Attorneys for Respondent DECLARATION OF SERVICE BY U.S. MAIL Case Name: Peoplev. Tully No.: S030402 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On December11, 2006, I served the attached (1) RESPONDENT’S BRIEF AND (2) MOTION AND DECLARATION OF GOOD CAUSE TO FILE OVERSIZED RESPONDENT’S BRIEF by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: James S. Thomson The Honorable Thomas Orloff Attorney at Law District Attorney Thomson & Stetler Alameda County District Attorney’s Office Saor E. Stetler 1225 Fallon Street, Room 900 819 Delaware Street Oakland, CA 94612-4203 Berkeley, CA 94710 (two copies) County of Alameda Rene C. Davidson Courthouse Jolie Lipsig Superior Court of California Attomey at Law 1225 Fallon Street 1006 Fourth Street, Suite 301 Oakland, CA 94612-4293 Sacramento, CA 95814 (two copies) Michael G. Millman Executive Director California Appellate Project (SF) 101 Second Street, Suite 600 San Francisco, CA 94105 I declare under penalty of perjury under the lawsof the State of California the foregoing is true and correct and that this declaration was executed on December 11, 2006, at San Francisco, California. B. Wong | b.W4 Declarant Signature 20070535 .wpd