PEOPLE v. LINTON (DANIEL A.)

Respondent’s Brief

Cal.March 22, 2010

opi COURT COPY In the Supreme Court of the State of California | PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, V. DANIEL ANDREWLINTON, Defendant and Appellant. CAPITAL CASE Case No. 8080054 SUPREME COURT MAR 23 2010 Frederick K. OhlrichClerk Deputy Riverside County Superior Court Case No. CR 60158 The Honorable Gordon R. Burkhart, Judge RESPONDENT’S BRIEF EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ANNIE FEATHERMAN FRASER Deputy Attorney General LISE S. JACOBSON Deputy Attorney General State Bar No. 183862 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2293 Fax: (619) 645-2271 Email: Lise.Jacobson@doj.ca.gov Attorneysfor Plaintiffand Respondent hoe rm oF TABLE OF CONTENTS Page Introduction... eee eeeeseeeesetseeeseeenesseeseessecseessuesesssseeseseaeeseeseessteeeseevesseusenss 1 Statementof the Case.......ceccecesssesssessseseeseeeseecssssseesseseecsesaeessessesessscsssstees 2 Statement Of Facts 0...eeecessscsssesseesssecsseesseecsseeessesstesseessesessssesssussusesecaes 3 Penalty Phase .0..... tees eesesceeseesnecseeeecesecenseseceetensesesesseesesesseseseascneesssecneeeass 18 ARGUMENT...cc ccceccsecsccesereeceetaesseesaeeeeseeessaeeeaesseseeeseesessaseaseensesenessesns 27 I. Thetrial court properly admitted the statements Linton madein his bedroom andhis attempted rape confession, properly precluded him from calling as witnesses an expert on coerced confessions and DDA William Mitchell, and properly sustained the prosecutor’s objections during cross-examination of Detective Stotz oe. ccccescssecsssssscsseessesessessssssecssesrecssesseesaes 27 A. The suppression motions and hearings...............0000 28 B. Linton forfeited the issue of whether he was in custody during the interview in his bedroom;in any event, he was not in custody andanyerror was harmless beyond a reasonable doubt................. 36 C. Linton voluntarily, knowingly, and intelligently waived his Miranda rights..........c:cccccsccsssseesessessseneees 4] D. Linton voluntarily confessedto the prior attempted Tape...ee eeeeeeseeseeceteesseseeeeesseesseceseessesees 44 E. Anyerror in admitting the attempted rape confession would not require a reversal of the murder conviction, the burglary-murderspecial circumstance, and the forcible lewdact special CITCUMSTANCE 0... eee seeeeeesceteseesceaeesessuseessseeeseeeneess 59 F. Thetrial court properly exercised its discretion in excluding the proffered expert testimony on COeTCEd CONFESSIONS 0.00... csccesesseesseseeeeteessesseessseescees 62 1. Thetrial court properly excluded Dr. Leo’s testimony under Evidence Code SECHION 352 ooo. eeeeecesesesscssesseesceseesesesesseseseeenes 64 Il. II. IV. TABLE OF CONTENTS (continued) Page = The exclusionofDr. Leo’s testimony did — ‘not violate Linton’s constitutional right to present a defense...eeesesscesessessssseeees 65 Anyerror in excluding Dr. Leo’s testimony was harmless...........0..cccccccceeeseeees 70 Thetrial court properly denied Linton’s request to call DDA Mitchell as a witness...........cccceseeees 71 l. Thetrial court properly exercisedits ' discretion in excluding DDA Mitchell’s TESTHMONY 000...eeeeeeeceeesesestessesesseeseesensenseevene 74 The exclusion ofDDA Mitchell’s testimony did not violate Linton’s constitutional rights...eeseseeesseeeen 76 Any error in excluding DDA Mitchell’s testimony was harmleSS...........ccccccccsesesesseesees 79 . The trial court properly exercised its discretion whenit sustained the prosecutor’s objections during Linton’s cross-examination of Detective STOLZ .oeeccceeesssessseeesesereesceessessesessescssessseceeseeeseseessecens 79 Thetrial court properly declined to dismiss Juror No.1 because she did not commit misconduct; any misconduct does not warrant a reversal...........cccccseeeeeees 86 Theinvited error doctrine bars review of Linton’s claim that the trial court erred in failing to instruct the jury that unrecorded oral admissions should be viewed with caution; any instructional error was harmless............. 93 Linton received a fair guilt trial...eseeteeeeeeees seeeeees 98 The trial court properly excluded evidenceoffered to establish a lingering doubt defense...........c.cccecseseseseeeees 98 A. B. The trial court properly precluded Linton from calling Dr. Leo and DDA Mitchell as witnesses...... 98 Thetrial court properly precluded Dr. Whiting from offering opinion testimony based on Linton’s statements to Wim .........cccsceeessesseeeeeces 101 VI. VOI. IX. TABLE OF CONTENTS (continued) Page Thetrial court properly excluded evidence that, in the middleofthe night about three years before Linton attempted to rape Melissa, another neighbor found a male intruder wearing only underwear in her home.......... 104 A. The proffered evidence andthetrial court’s TUNING... .esesesesceeeeseeececescscnescsssescessessscseesesecesscneaseaees 105 B. Thetrial court properly exercised its discretion . in excluding Mercado’s testimony.........000ce0 106 Thetrial court properly admitted victim impact testimony and photographs during the penalty phase........ 108 Thetrial court properly instructed the jury with CALSIC NO. 8.85 oeeececcesscsssssessseessesssseecsessevessaceesenscseees 114 Thetrial court properly instructed the jury with CALIIC No, 8.88 woo. ccescscesessesseesessecessescesessessacsescessenens 115 Linton forfeited several of his prosecutorial misconductclaims; all of his claims lack merit............... .. 118 A. The prosecutor properly attacked the defense argument and CASE...cessesssscssessesesseseccseesensnens 120 B. The prosecutor did not improperly vouchfor his team Or his CASC..........ceseceeessesesesecsesseseessssesscsesseese 126 C. The prosecutor argued reasonable inferences based on the evidence..........cccccccscesssesscsscsseceseecees 128 1. The prosecutor properly argued that Linton masturbated in Melissa’s underwear after the murder...ee 128 2. The prosecutor properly inferred from the evidence that Linton did not show remorse on the day of the murder................ 131 3. The prosecutor properly argued that a sentence oflife in prison without the possibility of parole was not sufficient........ 134 D. The prosecutor properly urged the jury to affirm community values by returning a death verdict...... 136 -iii- TABLE OF CONTENTS (continued) Page XI. Thetrial court adequately inquired into the alleged juror misconduct during the penalty phase Geliberations 0.0... ceecsssescescesessecsscssessessesecsecnsesseseesenseesare 138 XI. California’s death penalty statute does not violate the federal Constitution..............ccccccccsssessessesssesssensssassesessssssons 143 XIII. California’s Capital Sentencing Scheme Does Not Violate Equal Protection ....c.......ccisscsescessessessessesseserseeseeeens 146 - XIV. California’s death penalty statute does not violate international law or the eighth and fourteenth amendments ofthe federal Constitution ................cccce0e 147 XV. Linton receiveda fair penalty phasetrial .........c cc ceeeeeseee 148 CONCLUSION....ccc ceesceseeseeseesseneseeesseeesscssscesesseseseesessesesasseeenseseesenes 149 TABLE OF AUTHORITIES Page CASES Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]...144 Arizona v. F-ulminante (1991) 499 U.S. 279 [111 S.Ct. 1246, 113 L.Ed.2d 302)... 40 Arizona v. Mauro (1987) 481 U.S. 520 [107 S.Ct. 1931, 95 L.Ed.2d ASB] eeeeesseseseeseenne 82 Arnold v. State . (1976) 236 Ga. 534, 224 S.E.2d 386... cccccsssscseseseeseeeeenes 117, 118 _ Ashcraft v. Tennessee (1944) 322 U.S. 143 [64 S.Ct. 921, 88 L.Ed. 1192]...eceseeeee 55 Beckwith v. United States (1976) 425 U.S. 341 [96 S.Ct. 1612, 48 L-Ed.2d Voces38 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]... 144 Chapmanv. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705)...eeepassim Colorado v. Spring (1987) 479 U.S. 564 [107 S.Ct. 851, 93 L.Ed.2d 954]...eee42 Corley v. United States (2009) 129 S.Ct. 1558, 173 L.Ed.2d 443 wooocescccssesescscsseeceens 44 Crane v. Kentucky (1986) 476 U.S. 683 [106 S.Ct. 2142, 90 L.Ed.2d 636]... eeesecesseees seeeaesseneeeseesseenanesesansceesscsessusoeseneeaesassssedeseascaeeeessesicestscsuass 66, 67, 75, 80 Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].....ceeeeeee. 144 TABLE OF AUTHORITIES (continued) Page Darden v. Wainwright (1986) 477 U.S. 168 [106 S.Ct. 2464, 91 L.Ed.2d 144]... 119 Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469]... 68 Delaware v. Van Arsdall (1986) 475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674]... 86 Fare v. Michael C. (1979) 442 US. 707 [99 S.Ct. 2560, 61 L.Ed.2d.197]......cccseeseseeee 42 Holmes v. South Carolina (2006) 547 U.S. 319 [126 S.Ct. 1727, 164 L.Ed.2d 503).......... 66, 106 In re Carpenter (1995) 9 Cal4th 634 oo.cccccssessesessessssssecseseeseesestesesneseeees90, 146 In re Hamilton (1999) 20 Cal.4th 273 esecsersererereerecnenteneessesuuesccneesecusepeascuseceseseuseseneeese 90 Lunbery v. Hornbeak (E.D. Cal. 2008, case no. CIV S-07-1279 GGH (P) 2008 WL B851858ccccsetetseceecscneeseeessietetacensenseseeseseneesseseesseeseeseseeeeasones 58 Miller v. Fenton (1985) 474 U.S. 104 [106 S.Ct. 445, 88 L.Ed.2d 405]...eee 81 Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]...passim Missouri v. Seibert (2004) 542 U.S. 600 [124 S.Ct. 2601, 159 L.Ed.2d 643]... 81 Orozco v. Texas (1969) 394-U.S. 324 [89 S.Ct. 1095, 22 L.Ed.2d 31 L]oeeeeeeeeeeseeeeeeee 82 Paynev. Tennessee (1991) 501 U.S. 808 [111 S.Ct. 2597, 115 L.Ed.2d 720]...cee sa neeeeeseeeseeneceussesesessouseeceeesaeersasessaecsusseesessseesnseeasanens 109, 110, 111, 114 - vi TABLE OF AUTHORITIES (continued) Page People v. Anderson , . (1990) 52 Cal.3d 453eeeeccccssescsssessseseesessessuceeseeseessseecsscneseases 80 People v. Avila (2006) 38 Cal.4th 491...eseseeseesesntenneessaneasessessssessessereceeeesee LAD People v. Avila (2009) 46 Cal.4th 6800.cccccssseseessssssessessesesseseessscesneressessensaees 1440 People v. Bell (2007) 40 Cal.4th 582uo.eecsccsseseeseecssessessssessesecseseessseeseresssseves 142 Peoplev. Bemore (2000) 22 Cal.4th 809oo.eeessssssescsesscsssseesesseseeecsessersesssesavess 120 People v. Benavides (2005) 35 Cal.4th 69ooeeecesetescssssessesesseseseessesssseseeseesseenssesans 111 People v. Blair (2005) 36 Cal.4th 68600.eeesessescsesssesessssesessesseeessseeesess 102, 144 People v. Bonilla (2007) 41 Cal.4th 313oecceeesesseeesosseeaceneeeeeaeeseeatesaees 126, 127 People v. Boyde (1988) 46 Cal.3d 212oecccsesessesesessesesessesesscsessesssesasevssssusssaveces 45 People v.-Boyette (2002) 29 Cal.4th 381...eeeseseseeesesstecsessseeseeeteeseen 56, 58, 120, 130 People v. Breault (1990) 223 Cal.App.3d 125 oo.ceessssessscsessssessssesesssessessesssscaneacsers 39 People v. Breaux (1991) 1 Cal.4th 280cccceeeseeeens csteatseseneneeneneaesenees 117, 118 People v. Brown (2004) 33 Cal.4th 382... csccccccssesssscssesssecsscseseccsssssstssssscaeseseescees 143 Vii TABLE OF AUTHORITIES (continued) Page People v. Bunyard (2009) 45 Cal4th 836.00... ccscscssssssssssessssessesesessesseesssssnsevensesesaees 144 People v. Burney (2009) 47 Cal4th 203oceccssssssesesesesesesseceiecesecssssessscseesscssssescsas 120 People v. Cahill (1993) 5 Cal4th 478... seecssecssessesssssssesseesecsseesseesseessesssesssesessneenetss 49 People v. Carey (2007) 41 Cal.4th 109.0...essesvessaseaneesecscsearerseteasenaesarsaeseaeessacees 147 People v. Carpenter (1997) 15 Cal4th 312... ccsccssscssssssescesesessessecsesesserstneesees 100, 146 People v. Carrington (2009) 47 Cal4th 145occessccssssssesssesscssccssssssesssevsssseseasees passim People v. Carter (2003) 30 Cal4th 1166.00... cecscssssssesssssseesscsseseessceseesees 116, 141, 143 People v. Carter (2005) 36 Cal.4th L114.ccccssseesseseseecsseeccecssscssssssesssseesescavece 92 People v. Cash (2002) 28 Cal.4th 703.00... ececssesesssssssssssesseseseseesececsecscssesvseees 119, 120 People v. Cole (2004) 33 Cal4th 1158...eeesesesseesesesescesseseessesseenss 121, 123, 124 People v. Combs - (2004) 34 Cal4th 821 oo. eeecessssesssssesesesesesssseevsssssssssscessesseceenseese 36 People v. Cook . (2006) 39 Cal4th 566.0... .cesssseseeeesseeeesessescessesssssessanenteentes 124, 126 People v. Cooper (1991) 53 Cal.3d 77 ssescssesssstessesesssessteesteassiinstinstinseesseesssee O Vili TABLE OF AUTHORITIES (continued) Page People v. Cornwell (2005) 37 CalAth 50...ccecscscesessscssesssssecscssscssssatsesscssscsscaseseaes 66, 76 People v. Costello (1943) 21 Cal.2d 760.0... cececsscecsscesssssesecseesesessestentesteassesssssesaes Sesteeee 116 People v. Cromer (2001) 24 Cal.4th 889........ sesescesscosecsesesseseraceesesnesesaseeuseeesaeestenseeceuses 55 People v. Cruz (2008) 44 Cal.4th 636.0... cccsscsesesessssssssssescscssssssssssssvsssvasscsesecarsees 4] People v. Cudjo . (1993) 6 Cal4th 585oeceecessscsesesessssesesseesescssssesssscacseasseesestesacaeenes 79 People v. Cunningham | (2001) 25 Cal.4th 9260.ceeescsessesesesssssessesseessssssencssssessseeees 40, 66 People v. Curl (2009) 46 Cal4th 339oeccsecsssssessesssesesesssssscsssscssrenstseecesaes 64, 65 People v. Daniels (1991) 52 Cal.3d 815weeseaeeseeeeaces sesasesesesesneneneaseeesenens 120 People v. Danks . (2004) 32 Cal.4th 269 veresssessseesseesseessntsssnensanecntessnsennseesnes ecseeene 90, 91 People v. Davis (2005) 36 Cal.4th 510...eeeeccesesessesetessessssssstscsseesesveeteeteeeees 60, 147 People v. Davis (2009) 46 Cal4th 539ooeccccssssssesesssesssscsesesevevenes 40, 47, 114, 141 People v. Demetrulias (2006) 39 Cal4th Looececsesssssesesstsecssscsseeeees beseneenetecesseeeeensens 148 People v. Dennis (1998) 17 Cal.4th 468 oooeccccceseseseesesesesesesesesssescsssssseseeseasenen 128 ix TABLE OF AUTHORITIES (continued) Page People v. Dickey (2005) 35 Cal4th 8840cccsesssssesesesesssesenessssssssssssencetsssesereveres 96 People v. Doolin (2009) 45 Cal.4th390.0... esessessesceseeeeeeeeeesseeseseseectceceesscenes passim People v. Duncan | (1991) 53 Cal.3d 955oeescccssessesseresecseresseseeesseesdossessesessrscssonenenes 116 People v. Dunkle (2005) 36 Cal4th 861 oo.eeecsecessesesessesssesessesssesesesessesesecsasseeas 144 People v. Dykes (2009) 46 Cal4th 731 ooeceseccessssesesecsssesssesseseseeeseseeseeesenes passim People v. Earp (1999) 20 Cal4th 826.0... ccssesesesesssesseerseeeseeseseeseveeeaseaeeaeeaeeeses 119 People v. Edelbacher | (1989) 47 Cal.3d 983 oo.cecsesceeeeseeereeesasendeneececeeserseeeseneensersensenes 107 People v. Esqueda (1993) 17 CalApp.4th 1450.0... cceesesecssscsessesssessssssesssscsssssees 52, 53 People v. Farley | . (2009) 46 Cal.4th 1053.0... cssessssesscssesessessesseesseees 86, 143, 145, 148 People v. Friend (2009) 47 Cal.4th Docccccesessessssssssseseesesessseesesecsssaseswe L19, 120 People v. Frye (1998) 18 Cal4th 894oeccsecsessssesseseseseseesssesesseersssssessesees 79, 80 People v. Fudge (1994) 7 Cal4th 1075 oo. escssssssssessssssssecsessesescsesessesssstssssseesevaseees 70 People v. Garcia (2000) 84 Cal.App.4th 316.00... ccccsccsssseecsessescsseecsscessecssssseensesens 75 TABLEOF AUTHORITIES (continued) . Page People v. Gay (2008) 42 Cal4th 1195oeececessesesessescssscsesecssseseteusussseveseensees 100 People v. Geier (2007) 41 Cal4th 555 oo.eceeesessesesessesesescesessssescsssssssssesesssesecseesers 117 People v. Griffin (2004) 33 Cal4th 536...ccsecceescssessssssssessssesesescesssssscscsessensscesseees 74 People v. Guerra (2006) 37 Cal.4th 1067........cccccccesesessseesesssseseseensdesteeteteeeescesesssereee AL People v. Guerrero (1975) 47 CalApp.3d 441 oe. eecccceseeeesseessesesenssssesseeesSeaeessessesettees DD People v. Gurule (2002) 28 Cal4th 557 oo. cccecccscsssetesseeseeeea eeseneessnseseenenesesseseeeneaeanens 54 People v. Gutierrez | (2002) 28 Cal.4th 1083...ccsesssessecessesesseeees sessaceaseaneneeseeseneeass 107 People v. Hall (1986) 41 Cal3d 826 oo.cecesessssssssescsescecesssssssssesccvsessavsesseeeessezs 106 People v. Hamilton (2009) 45 Cal4th 863... ccecccccssesessesseeesessessensees 99, 100, 106, 107 People v. Harris (2008) 43 Cal4th 1269...cic ccecsssesesessescesseessesssensesneees 91, 115, 145 People v. Hedgecock (1990) 51 Cal.3d 395 ooccecscssseseeesessecsesssessssutscsvscsceseecatarsasens 142 People v. Hill (1992) 3 Cal.4th 959eceecsesssesssesesessscscscsssessssssssssseacerereaseeseees 55 People v, Hill . (1998) 17 Cal4th 800.0ccecsssssesssesesesecscscsessssssnsssecseenseeeesans 135 TABLE OF AUTHORITIES (continued) Page People v. Hines (1997) 15 Cal.4th 997 oo... eecscssecsssssssssssssscscssererecacecs secseseetsseeeseeeces 81 People v. Holloway (2004) 33 Cal.4th 96.0.0... sccscsssscsssssccscscscscscsssssscarseesesessesaceneesaees 44,55 People v. Honeycutt (1977) 20 Cal.3d 150... ceceeccesssesssesssssessesssssssescsesssessssreeseseescerenswee4 _ People v. Hovarter (2008) 44 Cal.4th 983 0... cccecessesesesssssscsesesescssseseecenssevseteaeeeesfeseseeees 64 . People v. Huggins (2006) 38 Cal.4th 175........00. saseesseceeeesaecesseterssensesseecssesenseenss passim People v. Jackson (1980) 28 Cal.3d 264ooececccsesesssssssestsssecussssssrscssersecerseseseetcenseaees 55 People v. Jimenez (1978) 21 Cal.3d 595.ceeeececseseseeesseeseeesecssnessessecsrenaceesssesesteseeesee 49 . People v. Johnson . (1992) 3 Cal.4th 1183oececccsessscseccssscscssscscsesiesssssesesacsseceeanseeees 133 People vy. Johnson (1993) 6 Cab.4th Looccessssssscesseesesseasessssssssessessssesrsareseeseee LIT People v. Kelly (2007) 42 Cal.4th 763 .....ceccccesescsssscssscesssersrsvscerevsessnereestsacase 112, 113 People v. Kennedy (2005) 36 Cal.4th 595 ooo. eececsesssesssssssssssscscscscscscsssssceserseseessesesseas 127 People v. Leonard (2007) 40 Cal.4th 1370... eeccsecccccsssssscscsscesseceecseseesesesseescssacsenes passim People v. Lessie (2010) 47 Cal.4th 1152...cccccscssssscsscscscscsvsesecsessssesssssacecssecsvess 42 Xil TABLE OF AUTHORITIES (continued) Page People v. Lewis (2001) 25 Cal.4th 610...cccsesssstscseseseeseeees eessssesecaneeteteseenceneas 95 People v. Lewis (2006) 39 Cal.4th 970..........0...ssseveseacaeseussessscsssesesessscsssssseseseeeseseees 111 People v. Lewis (2008) 43 Cal.4th 415oo.ccccsssssssssecsssssscscecssssscssssstseseseseses 117, 118 People v. Lewis (2009) 46 Cal4th 1255.0.ceccscesssetseseeeesseveuaenstsseeceaseessanene 89, 92 People v. Lindberg (2008) 45 Cal4th 1 oececscsesssscsssessssssesascessessssesesesesesasses 115, 117 People v. Loker (2008) 44 Cal4th 691occcccsscssssscssecesecersssecsssssesceccssssees 91, 127 People v. Marshall (1990) 50 Cal.3d 907 oo... cesescssssssssssssssssssccccssscscesscsssvsesvesscseseseeses 145 People v. Martinez (2003) 31 Cal.4th 673 0... cecsecessesscsscssssssssesetscessecessssssesesesesessecees 114 People v. Martinez . (2009) 47 Cal.4th 399ooccssssescsssssssssscscersestecsesssststsscsssesessseeses 145 People v. Massie (1998) 19 Cal.4th 550... ceccsessesescesscssscscsssseststsesessesvassessssessssceeses 45 People v. Mayfield (1997) 14 Cal.4th 668.0... cccccccsesscssscscsssscsescsesescscstssesvavecssessess 36, 93 People v. McWhorter (2009) 47 Cal.4th 318occcscscessscsssssssseesessesesescssestseeseseseees 45,115 People v. Mendoza (2007) 42 Cal.4th 686.0... ccccccscscssscsesssessrsscssssescsestssseavecstasssasesecs 120 Xill TABLE OF AUTHORITIES (continued) Page People v. Montiel (1993) 5 Cal.4th 877 ooo... esesscssssssssssessssssesssssssavssssecersesessssessensssenees 146 People v. Moore (1954) 43 Cal.2d 517 ..cesccsseccseecsssesssesssesseeessessutssseessnscssseccssesssessens 116 People v. Morrison . (2004) 34 Cal-4th 698.0...esessscsesseseesssseesesssssescsssssssssesseeseesees 146 People v. Mungia - (2008) 44 Cal.4th 1101occccesessessssssssssessssesesessssessesesscsvsseeserens 96 People v. Nesler . (1997) 16 Cal.4th 561 oo.ececccessssesescscsescscsrsessscsssrscereaesssessssaneess 90 People v. Nicolaus . (1991) 54 Cal.3d S51eeccccsessscsesescecsessscscsssssseeseveneceasscatarsesesass 117 People v. Ochoa (1998) 19 Cal.4th 353oeccecsssscsesecesesesscssssssssvevsvescsecerscsesassesesseees 37 People v. Page (1991) 2 Cal.App.4th 161 occcescscsssssssesscecscsssnereseeserees 68, 69, 70. People v. Page an (2008) 44 Cal4th Voecsesessessssssssssessssscsssrevsesterescerssens 116, 118 People v. Panah . (2005) 35 Cal.4th 395 oo. ceccccsescsssssscseseccsessssstssearecarercessessatssseseaees 107 People v. Parson (2008) 44 Cal.4th 332.0.cceeseeeeceeees beceesessecseeeneneeeseesateneees 144 People v. Pearch (1991) 229 Cal.App.3d 1282 oo. .cccccccscsssesssessessscecsssesesseccscscarsesseces 61 People v. Pollock (2004) 32 Cal.4th 1153 ........ccccscsccsccssssssseesessssecsccecasssesecessesesse 102, 104 XiV TABLE OF AUTHORITIES (continued) Page People v. Prieto . (2003) 30 Cal4th 226.00... eecccsesesssssceseseeessseesa estsceseseceeaeneneeaeeeeeeees 70 People v. Prince (2007) 40 Cal.4th 1179.ccscsessessscssssssesscsseees 100, 106, 107, 113 People v. Ramos . (2004) 121 CalApp.4th 1194oeccessessscssesssssssssessceseserersaes 67 People v. Richardson (2008) 43 Cal.4th 959ooocccssssesesssessssesescessessscscssnessecessstareesecaes 57 People v. Robinson (2005) 37 Cal.4th 592... ceeeeesesesesecsesessescscsesssssssessssesteveeseteesseaes 111 People v. Rogers (2009) 46 Cal.4th 1136.0. cccscsesesescsessssescsssssssssstsvscsesesvaceeceeaes 118 People v. Romero , (2008) 44 Cal.4th 3860.0.cccescsssssesesesegeeecsessssssssscscavsestecsecassess 144 People y. Rundle (2008) 43 Cal.4th 76.0... eccecsescsessssssseseseseessscessssssssessesestenees 41, 49, 54 People v. Sanchez (1995) 12 Cab4th Lineeccscsesssssecsseeesesssscssssscscstssssesscecseaseaees 135 People v. Schmeck (2005) 37 Cal.4th 240oocsecccssessscssessesececessesssssssssescssseesateneeeas 90 ° People v. Smith — (2003) 30 Cal.4th 581 oo. ccceccsssscsssssseecssssssssssescsuscsessensesens 121, 128 | - People v. Smith (2005) 35 Cal.4th 334occcecscsescsecsssssesessssssesescscseevacsnecaees 112, 145 People v. Smith (2007) 40 Cal.4th 483 oocccccesecseessceseevscsscsesescecaeesvente 125, 147 XV TABLE OF AUTHORITIES (continued) Page People v. Smith (2008) 168 Cal.App.4th 7.0...cccsssssscsssssesssesessessssscseeess saseeeeseceneeaee 91 People v. Son | (2000) 79 Cal.App.4th 224.0... ccecccssscsssscsceesssscscesecssssssenseees 65, 68 Peoplev. Stitely (2005) 35 Cal.4th 514...cccsccessssssesessseesseseserssssesvensssessesssesees 51, 99 People v. Storm (2002) 28 Cal.4th 1007... .seeceecssssessesssessesseesecsessesseessesssessnesiesses 38 People v. Tamborrino (1989) 215 Cal-App.3d 575 ....ccccesssssssessescsesesscerseseseesssscsssssusssevscns 61 People v. Thornton | (2007) 41 Cal.4th 39)occesesessstenesscessseessseeseseseseteeterseenencanes 98 People v. Valdez (2004) 32 Cal4th 73 oo... ecccsssssecsssssssessesessessessesees 131, 134, 136, 138 People v. Wallace (2008) 44 Cal.4th 1032.0... ecesesssesessescestesneseeserstesssesssssesstsetsatensenss 80 People v. Watson (1956) 46 Cal.2d 818occccccccccessceessesssecssnsesensssseseeees 70, 79, 86, 96 People v. Watson (2008) 43 Cal.4th 652.00. ceesssesssesesesssseseseseserseesesessssesesesestesssies 116 People v. Weaver (2001) 26 Cal.4th 876.0... cceceseeseeteeesssereseees seveneeatesseseveeeeseeseeereens 56 People v. Wharton (1991) 53 Cal.3d 522oeccssssesssessescseesessesssecsesssssecsscsestavscsersesers 134 People v. Whisenhunt (2008) 44 Cal.4th 174.00...sat ecsecuseesensesseeessaecssssaeeeseeaeesuseeaeesnss 146 Xvi TABLE OFAUTHORITIES (continued) Page People v. Whitt (1990) 51 Cal.3d 620.0.ccssesssesesessesssseeesscsssssssassscseassesenes 102, 104 People v. Williams (1997) 16 Cal.4th 635.0...aeessaececaecesneseeenseseesaseaeeeseeaeenaes 44, 45, 56 People v. Williams (2008) 43 Cal4th 584ooccesssssssssssescssssssescssscsssasssetscassesssssseaes 93 People v. Wilson . (2008) 43 Cal4th 1aeccesesesessssssesescecseceessscsssssassserenaresesesereners 96 People v. Wilson (2008) 44 Cal4th 758oeeccecccesssesssssssseecsessssssecsvavsestaceasacaesacasans 92 People v. Young (2005) 34 Cal.4th 1149.escesssssssessssesesesesssessstssessesseseenens 126 People v. Zambrano - (2007) 41 Cal4th 1084occccsssesesesssscssscscssecensssescecseesessaseces 137 People v. Zamudio (2008) 43 Cal.4th 327 ooo. cccscesessssesesssscscsscsescsesetenseees 113, 116, 147 People v. Zapien . (1993) 4 Cal.4th 929occscsssssssseesssesescsescsssssssssesesesestecsessseecacavaes 81 Pierce v. State (Ind. 2002) 761 N.E.2d 82] ...cccccsssesesesssssescsssssscsesssserecaserasseecseaes 52 Price v. Superior Court (2001) 25 Cal.4th 1046.0... ceseseeeseseeeesse ceceeessseaseneeneteneeaseaneaees 55 Reck v. Pate | (1961) 367 U.S. 433 [81 S.Ct. 1541, 6 L.Ed.2d 948]occ58 Remmerv. United States (1954) 347 U.S. 227 [74 S.Ct. 450, 98 L.Ed. 654]oceeceseeeesees 89 XVil TABLE OF AUTHORITIES (continued) Page Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556}....... 144 Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293].sevneeseees 15, 80 Thompson v. Keohane (1995) 516 U.S. 99 [116 S.Ct. 457, 133 L.Ed.2d 383]..........ccceseeee 38 United Statesv. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621}... 144 United States v. Craighead (2008) 539 F.3d 1073 oo. eeeessscessessescssscecseessssseesseseeasens sesepensenes 39, 40 United States v. Edwards — , (9th Cir. 1998) 154 F.3d 915 oooeeescsseeseeeseeeeeessesessesseeseeeees 76, 77 United States v. Hall (7th Cir, 1996) 93 F.3d 1337 ooo. esescessessscessessesseesseaseresseesrenes 68, 69 Verdin v. Superior Court . (2008) 43 Cal.4th 1096.00. cecccsesecssceesseesscessesseesestesseeesseseeaes 101 Washington v. Texas | (1967) 388 U.S. 14 [87 S.Ct. 1920, 18 L-Ed.2d 1019]...eee65 Whren v. United States (1996) 517 U.S. 806 [116 S.Ct. 1769, 135 L.Ed.2d 89] seseeeenseeaes 75, 80 Withrow v. Williams (1993) 507 U.S. 680 [113 S.Ct. 1745, 123 L.Ed.2d 407]... 44 Yarborough v. Alvarado (2004) 541 U.S. 652 [124 S.Ct. 2140, 158 L.Ed.2d 938]... 37 XVili TABLE OF AUTHORITIES (continued) Page STATUTES Evidence Code § 210oeecseesssssessesscsseesesssessenssucessacessesaesescesecssessaserenssasees 83, 106 Ibysesetaceeseaeecsecsensneusaeseeseteeesssesesneeses 64; 65, 66, 79 § BO] eeecescesscscssssessesscssesesscseserssssacsessssscssssssesaeeressssesesssesscserees 69 Penal Code 8 87eeesececesscssscssssesessessesssessessucsssscseseseccacsecesssusuessesscsessessassasees2 § 190.2, subds. (a)(17)(iii)... cessessesscssscssescscsssecsssecscesessesesesaveasecees 2 § 190.2, suds. (a)(17)(V) ....ecccccssssssssescscseccocsssssssssscesecesesesassesesecacseeess 2 § 190.2, subds. (a)(L7)(Vii) 0c. ceccccececsscscscsssssscsssecsesscsseeceueecarecesessees2 § 190.3 weeseeaeeeeeneescuueessessneceesseecessensaeesesoesessecesasuseeseaseeesens 125 § 190.3, subds. (a)-(k)......cccccssssscsscssssecsessececsesssessesessensensheseeesseee 114 § 190.3, factor (8)... cecccccssesececsesseesserscssceesereseseeesssacseseseeacseseeses 111 § 190.3, factors (d)-(h) & 0) seeeccesesuesecsecesseseseateceasetecseecsteusessesensseens 115° § 261, SUM. (8) occeecccceesssssssesscsssssssesscsesecesscssesessesarsaversscecsscsessuees 2 § 288, subd. (b) oo.eee ccesccecssssesecsseceesssscsseeseesseens beceseeeessteseeeesatensuees 3 BDeelectseceseesesessessesesessesecesssssesssssssnecegeseesssssecesaussautsavsusenscecsesesees 2 § O54 iececeeeseeetsesescsesseesasercesscessasscssssevscvevasscsssessasaesasuesecsesuecaseses 3 § 664 oeeeetecsessessesssesssecsecsessseccesssesssssavsusssacsaseutacsassecssssensscsesseees 2 8eeeceetecseeessesssseeecsesssecscesussersssusesscsatsassasaeaseaaesssseseucaceees 90 CONSTITUTIONAL PROVISIONS California Constitution © ATE, 8 Tooeeccecsssssessensecsscsessssssssseeseesueseseasescassauesercsseesssssseuees 86 AIT. TL, § LO.eessccsssessessessessscessvseessssecsesasssnsacsaeseussassessecstesesseses 86 United States Constitution Bighth Amendment..........ccccccescsssscsssscsescecssseeesesecerssseesessereeee 99, 147 Fifth Amendment...............Teesesseesseeees seveseseeeseeesseeseessatenssssacasseevecsecens 99 Fourteenth Amendment........0...ccccccccesseccessccesssscssesessesessesceses 86, 147 Sixth AMeNdMENt........ccccccccsssssesesescesceecssesecsesscscssesescesscesseveeee 86, 99 XIX TABLE OF AUTHORITIES (continued) - Page OTHER AUTHORITIES CALJIC NO. 2.70 o.ecescsecsseerecesessetseeseeseesnesceseseseseucnesesenesesaesesescscateneseasaaees 93, 95 NO. 8.85 oeeeeesceeesseeseneeslecuesteceeeeenssseasseveescencceesassctsorscsuarageasesevsasacs 114 NO. 8.88 oo. ecesesescescsssscceseeseesseesseesescseesnsseessreaesetssseesessarseseeas 115-118 The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U.L.Rev. 979, 1117 (1997)..........seeecenseaeeateseenseeees 62 INTRODUCTION Appellant Daniel Linton strangled to death his next door neighbor, twelve-year-old Melissa Middleton, during the course of a burglary, attempted rape, and lewd act by force on a child. About two months before the murder, Linton entered Melissa’s homelate at night and attempted to rape her while her parents slept in.a nearby bedroom. Onthe day ofthe murder, Linton denied any wrongdoing, but agreed to speak with the police the following day. Shortly after the police picked Linton up the next morning, he tacitly admitted that he murdered Melissa. After he was advised of and waived his Miranda’ rights, he provided moredetails about the murder and eventually admitted the prior attempted rape. A jury convicted Linton of capital murder committed with special circumstances, to wit, murder committed during the commission of or attempted commissionofa burglary, attempted rape, and forcible lewd act ona child. The jury also found Linton guiltyof attempted rape, burglary, and lewd act by force on a child in connection with the prior incident. After the penalty phase, the jury returned a verdict of death. Thetrial court sentenced Linton to death for murder and to a determinate term ofsix years for the other offenses. In this appeal, Linton challenges the admissibility of his confession to the prior attempted rape. Healso challengesvariousrulingsrelated to his statements, and contends the court erredinfailing to instruct the jury to view unrecorded extrajudicial statements with caution. Additionally, he alleges juror misconduct during guilt and penalty phase deliberations,that the court erred in excluding lingering doubt evidence, and that the prosecutor committed misconduct during penalty phase arguments. Healso ' Miranda v. Arizona (1966) 384 U.S. 436 444 [86 S.Ct. 1602, 16 L.Ed.2d 694]. raises a series ofpenalty-phaseinstructional error claims and challenges to California’s death penalty law that have been repeatedly rejected bythis Court. | | ~The judgment should be affirmedin its entirety. Linton forfeited ‘someofhis challenges to the admissibility ofhis statements, and the statements were properly admitted. Thetrial court properly exercisedits discretion in its evidentiary rulings related to his statements, and Linton invited the non-prejudicial guilt-phase instructional error. There was no jury misconduct during the guilt or penalty phase and the court’s inquiry into the alleged misconduct during the penalty phase was adequate. The court also properly excluded the proffered lingering doubt evidence, . becauseit was either irrelevant, had minimal probative value, or was cumulative. Linton forfeited several of his prosecutorial misconduct claims by failing to object and request an admonition. Inany event, the prosecutor did not commit misconduct. Finally, Linton provides no persuasive reason for this Court to reconsiderits prior precedentrejecting the standard attacks - on the penalty phase instructions and death penalty lawthatheraises here. STATEMENTOF THE CASE On June 14, 1995, the Riverside County District Attorney filed an information charging Linton with the murder ofMelissa Middleton. (1 CT 20; Pen. Code, § 187.)? The information further alleged felony-murder special circumstances for committing the murder during the commission of or attempted commission of burglary, rape, and a lewd andlasciviousact by force on a child under the age of 14 years. (1 CT 20-21; § 190.2, subds. (a)(17)(iii), (v), (vii).) The information also charged Linton with three offenses based on the prior incident with Melissa: residential burglary (§ 459; count 2); attempted rape (§ 664/261, subd. (a); count 3); and a lewd * All future undesignated code references are to the Penal Code. and lascivious act by force on a child under the age of 14 years (§ 288, subd. (b); count 4). (1 CT 21-22.) On March 15, 1999, the jury found Linton guilty of the charged offenses and foundthe three special circumstanceallegationsto betrue. _ (13 CT 3589-3595.) On March 30, 1999, the jury fixed the penalty as death. (13 CT 3670.) On June 17, 1999, the court denied Linton’smotion to modify the verdict, and sentenced Linton to death for the murder, six years for lewd act on achild by force, and a concurrent term of four years for attempted rape. The court stayed the sentence for burglary pursuant to section 654. (13 CT 3772, 3790.) STATEMENT OF FACTS In Novemberof 1994, twenty-year-old Linton lived with his parents and eight-year-old sister Stacey at a house in San Jacinto. (17 RT 2534- 2535, 2591, 2604; 34 RT 5283.) The victim, twelve-year-old Melissa Middleton,lived next door with her parents, Robert and Linda Middelton. (17 RT 2526-2528, 2535-2536.) The two families had been next door neighbors for about seven years. (17 RT 2534.) Melissa Middleton and Stacey Linton werelike sisters and occasionally spent the night at each other’s homes. (17 RT 2535, 2570.) In the past, the Middletons hired Linton to take care of their pets while they were on vacation. (17 RT 2572.) After their last family vacation in April of 1994, the Middletonsforgotto retrieve their keys from Linton. (17 RT 2572, 2596.) But they were not concerned: Linda Middleton trusted Linton, and Robert Middleton considered the Lintons friends. (17 RT 2580, 2596.) Around 2 a.m. in late Septemberor early October of 1994, Melissa cameinto her parents’ bedroom screaming, “Mommy, Mommy, why didn’t you come in? I was screaming for you.” (17 RT 2564, 2467, 2588.) Disturbed, agitated and crying, Melissa told her parents that a man had been ontop ofher in her bedroom, choking her with his hands. (17 RT 2564- 2565, 2575, 2589.) Melissa did not knowwhat theman looked like. (17 RT 2589.) Robert Middleton checked the house. The doors were locked and there were no signs of a break-in. (17 RT 2566, 2568, 2594.) Robert walked around the neighborhood, looking for anything unusual. (17 RT 2589.) He noticed a light on in a room at Linton’s home and saw Linton’s friend, Joseph Montero, working on a computer. Montero lived with the Linton family for about a month in the fall of 1994. (17 RT 2591-2592; 21 _ RT 3122-3 124, 3 146.) Robert asked Monteroifhad seen anyoneandtold him what Melissa said. (17 RT 2593; 21 RT 3125-3217.) Montero replied that he had not seen anyone. (17 RT2593.) Linton was not homeatthis ' time. According to Montero, Linton returned homeaboutfifteen to twenty minutes later, out of breath and “[{k]ind of scared looking.” (21 RT 3128, 3134.) Montero and Linton used marijuana and methamphetamine almost daily while Monterolived with the Lintons. (21 RT 3131, 3135.)° Montero believed that he and Linton had been using methamphetamineall day the day that Melissa had been attacked. (21 RT 3128.) After the choking incident, Melissa sleptin her parents’ bedroom for the remainder ofthe night. (17 RT 2565.) The next morning Melissa told her motherthat the man who choked her was naked. (17 RT 2578.) Her parents dismissed the incident as a nightmare. (17 RT 2568-2569, 2573- 2578, 2605.) Melissa deniedthat this was so. (17 RT 2577,) . About two months later, on November 29, 1994, Melissa stayed home . alone from school, because she wassick. (17 RT 2589.) Her father spoke ~ > Montero’s mother would not allow Monteroto live in her home becausehestole from her and used drugs. (21 RT 3155-3156.) Montero later joined the Army andreceived a bad conduct discharge for marijuana use. (21 RT 3177.) to her before heleft for work around 6:30 a.m. (17 RT 2585-2586.) Her motheralso checked on her before she secured the house and left for work around 7:30 a.m. (17 RT 2529-3530, 2540-2542, 2563.) - Around noon, Linda telephoned Melissa to check on her. (17 RT 2543.) Nobody answeredthe telephone. Thisscared Linda, but she thought that Melissa wasjust sleeping and did not hear the telephone. (17 RT 2543.) | Around 3:25 p.m., Linda returned from work, unlocked the front door, _ and called for Melissa. (17RT 2553-2554.) Nobody responded, and everything appeared to be normalinside the house. (17 RT 2554.) Linda looked for Melissa in Melissa’s bedroom, but did not find her there. (17 RT 2554-2555.) She then went to the master bedroom where she found Melissasitting on the groundat the foot of the bed with her legs crossed, “arms kind of out,” and head lying to one side. (17 RT 2555.) Melissa was wearing shorts, one sock, and the sameshirt that she had been wearing that morning. (17 RT 2558, 2560.) Linda called Melissa’s name a couple of times, touchedher, and realized that she was dead. (17 RT 2555.) After an unsuccessful resuscitation attempt, Linda ran to the homeofa neighbor, asked for help, and called 911. (17 RT 2555-2556.) Atthe direction of the 911 operator, Linda laid Melissa on the ground, placed a pillow underneath her head, and covered her because she was cold. (17 RT 2556-2557.) Melissa’s shorts were unbuttoned and unzipped. (17 RT 2557-2558; 12 CT 3340.) oe Around 3:40 p.m., San Jacinto Police Detective Michael Lynn arrived at the Middleton home. (17 RT 2612.) Although there were no signs ofa forced entry or a burglary, he declared the area a crime scene because ofthe condition of Melissa’s body. (17 RT 2615, 2617.) Melissa had bruises on her neck area and visible light red line leading from the middle ofher throat up to behind herright ear lobe area. (17 RT 2614-2615, 2619-2620.) Detective Lynn collected Melissa’s father’s headphonesfrom the bedin the master bedroom because he thought the wire from them could have caused _ the red bruise line on Melissa’s neck. (17 RT 2598, 2618-2619.) Detective Lynn alsocollected Melissa’s white sock from the master bedroomfloor, which appeared to match the one on her right foot, her Cameo ring, which was found underneathher body, and a rag on a stool across from her body. (17 RT 2562-2563, 2621-2622.) . Around4:20 p.m., Detective Glenn Stotz arrived at the scene and canvassed the neighbors. (18 RT 2741-2743.) Linton answered the doorat his house. (18 RT 2744.) Detective Stotz asked him if he had heard about what happened next door. (18 RT 2745.) Linton said he heard that Melissa had been killed. In response to further questions, Linton indicated he had not heard or seen anything out ofthe ordinary that day and did not know Melissa very well, although she was goodfriends with his sister. (18 RT 2745.) Linton asked how Melissa died. (18 RT 2745-2746.) Detective. Stotz said thatit appeared she had been chokedto death, but did not provide any additional details. (18 RT 2746.) Afier canvassing other residences, Detective Stotz returned to _ Linton’s house with Detective Lynn. Linton and his sister Stacey answered the door. (17 RT 2628-2629, 2746-2747.) Detective Stotz.asked Linton, “Let me get this right, Daniel. You didn’t know Melissa very well?’” (17 RT 2630; 18 RT 2747.) Linton responded, ““I hardly knew her.’” (18 RT 2748.) Stacey interjected, “‘Uh-huh. You usedto fight with her all the time.’” (17 RT 2630; 18 RT 2751.) Linton looked at Stacey and appeared to be shocked and appalled. (17 RT 2631; 18 RT 2752.) Detective Stotz then spoke with Linton alone. (18 RT 2752.) Detective Stotz told Linton, falsely, that some evidence was found on Melissa’s body. (19 RT 2814, 3037.) Linton maintained that he did not know Melissa that well and that she wasfriends with Stacey. (18 RT | 2752.) Detective Stotzasked Linton aboutthe earlier attack on Melissa. (19 RT 2752.) Lintoninitially denied knowledgeofthe attack, He later indicated that he thought he knew what Detective Stotz wasreferring to. Linton claimed that twoto three weeks earlier, he woke upin his yard around midnight, wearing only his jeans and underwear. Linton believed that he sleepwalked sometimes. (19 RT 2753-2754.) Detective Stotz asked Linton to hold out his hands. (19 RT 2754-2755.) As Linton didso,his arms and hands shook. His palms were also extremely sweaty. Detective Stotz saw a scratch and a gougemarkon Linton’s lower right forearm and asked about them. Linton said he believed he got scratched while playing with his cat earlier in the day. (18 RT 2755-2756.) Detective Stotz left at this point. (18 RT 2757.) . Shortly before 8 p.m. that day, Detective Stotz. returned to Linton’s house with the prosecutor. The two spoke withLinton in his bedroom. (18 RT 2756-2758.) Linton’s parents were home,butnotin his bedroom. (18 RT 2758.) At the start of the conversation, Detective Stotz told Linton that he wasnot underarrest and had noobligation to speak with them. (18 RT 2758.) Linton agreedto talk. He claimed he returned from a friend’s house around 4 a.m.that day and stayed homeforthe rest ofthe day. (18 RT 2759-2760.) Hesaid he did not see Melissa that day and hadlast seen her two to three weeks earlier. (18 RT 2759.) He claimedthat he had not been to the Middletons’ house since he last took care oftheir animals about three months earlier, and that he returned their keys at that time. (18 RT2761- 2763.) Whenasked if he had heard what happened to Melissa that day, Linton said that he heard she had been “strangled with a cord[,]”that there were somefingerprints present, and that she was found on the floorin her parents’ bedroom. (18 RT 2764-2765.) Detective Stotz had not said anything to Linton about the cord or the location of Melissa’s body. (18 RT 2765; 19 RT 2813-2819.) Linton agreedto speak with the police the next day.* (18 RT 2766-2767.) At 7:30 a.m.the next day, Detective Stotz telephoned Linton, in accord with Linton’s request that he be called after his parents left for work. Linton again agreed to speak with Detective Stotz. (18 RT 2767.) Around 9 a.m., Detectives Stotz and Lynn picked Linton up in an unmarkedcar. (17 RT 2631-2632; 18 RT 2767-2768.) The detectives sat in the front seat of the car and Lintonsat in the back seat, without handcuffs. (17 RT 2632- 2633.) During the car ride, Linton cried, shook and appeared remorseful. _ (17 RT 2654; 18 RT 2769.) He said “‘I wasn’t sure I could admitit,’” and “*I’m sorry I wasted yourtime, I wanted to turn myselfin last night, but I couldn’t doit in front ofmy parents[.]’” (17 RT 2633-2634, 2647; 18 RT 2769; 19 RT 2857.) Lintonalsoagreed to go the police station and “tell [the police] everything.’” (17 RT 2634; 18 RT 2769-2770.) Atabout 9:45 a.m., Detective Stotz turned on the tape recorderand advised Lintonofhis Miranda rights. Linton indicated he understood his rights and agreed to answer questions. (12 CT 3287-3288; 18 RT 2271.) The jury heard an audiotape of the interview. (18 RT 2780.) Linton initially stated that he went to the Middletons’ house at about 10 or 11 a.m. on the day of the murderand noticed the front door was unlocked. (12 CT 3288-3289.) After he entered the house, he heard noise upstairs and thought Linda was home. He wentupstairs and found Melissa instead. Melissa told Linton she wasgoingto call the police. As Linton — prepared to leave, Melissa started screaming. Linton grabbed-her by the throat and she stopped screaming. (12 CT 3288-3289.) Linton claimed he * Although muchofthis interview was tape recorded, the tapewas not played for the jury. did not really notice “how far [he] had goneuntil it was, until it was too” late.” (12 CT 3289.) | During the questioning that followed, Linton provided additional details about the murder andprior attack. He initially said he did not know whyhe wentto the Middletons’ house on the day ofthe murder. (12 CT | 3289-3290.) Later, he admitted that he went to the Middeltons’ house for money. Linton said he was missing $100 and thought that someone may have takenit, but not Melissa. (12 CT 3320-3321, 3349-3350, 3352.) Linton maintained throughout the interview that he did not know Melissa was home and wouldnothave goneinside her house if he had known she wasthere. (12 CT 3302, 3304, 3339, 3359-3360, 3365.) Lintonsaidthat after he entered the house, he unsuccessfully searched the downstairs area for money. (12 CT 3320-3321, 3343-3344, 3351, 3360.) When he walked upstairs, he saw Melissa. (12 CT 3323, 3352.) . Melissa told him to leave andthreatened to call the police. Linton told her that he wouldleave if she were quiet and askedhernotto call the police, but Melissa screamed. (12 CT 3324-3327, 3348, 3352, 3356-3357.) She then ran to her parents’ bedroom with Linton on her heels. (12 CT 3327.) Linton pushedher onto her parents’ bed so that she could not reach the telephone, grabbed her throat with both hands, and started choking her. (12 CT 3291-3294, 3330-3331, 3352-3354.) As Melissa struggled and gasped for air, Linton grabbed the headphones from the nightstand by the bed. (12 CT 3293-3295, 3334, 3354-3355.) He believed that he wrapped the headphonecord around her neck,crisscrossingit in front of her throat. He said the cord broke a few secondsafter he hadit taut. (12 CT 3296, 3334- 3335, 3354.) Melissa wasstill fighting him at that time. (12 CT 3296.) Linton resumed choking her with his hands. (12 CT 3297, 3354.) After she fell off the foot of the bed, and wasno longer “awake,” he “sat her up right so she waslikesitting down.” (12 CT 3335-3336, 3356.) He did not. know whyhedid this. (12 CT 3335.) Hethen picked up a rag and wiped the doorknobsonthefront door, the headphonecord, andthestair rail to “get rid of fingerprints,” because he “was scared,”“pretty sure”that Melissa was dead, and thought he would “get caught.” (12 CT 3307-3308, 3328, 3333, 3357-3358.) The police did not find anyfingerprints on the Middletons’ front doorknobsorstairrail. (21 RT 3199-3203.) Linton maintained throughout the interview that he did not intend to kill Melissa and wasonly “trying to knock her unconscious.” (12 CT. 3294, 3333, 3334, 3339-3340.) He denied involvement the previous day bécause his parents were homeandhe did not wantto gothepolicestation with his parents or have them see him goto the station. (12 CT 3302-3303.) Linton denied he had any sexual interest in Melissa during much of the interview. (See e.g., 12 CT 3297-3298, 3309, 3337, 3340, 3359; 19 RT 3001.) He also initially claimedthat he did not unzip Melissa’s shorts and offered explanations for how they got unzipped. Eventually, he admitted he unzipped Melissa’s shorts during the struggle to scare her. (12 CT 3298, 3338-3341, 3348, 3354.) He also said that he thought ofhaving sex with Melissa “but it was due more . . . just to scare her so she wouldn’t say anything ....” (12 CT 3339.) He later admitted the thoughtofraping Melissa crossed his mind “for a split second” but he “decided notto.” (12 CT 3366.) Detective Stotz followed up, “Okay, how far into it?” Linton replied, “Just the zipper and I just, no.” (12 CT 3366.) Linton claimed he “totally disdained the thoughtafter.” (12 CT 3368.) | Linton thought that Melissa may have screamed when she saw him on the day ofthe murder because ofthe prior incident in which he entered the Middletons’ homeafter midnight and grabbed Melissabythe throat after she awoke and started to say she was going to wakeher parents. (12 CT 3291-3293, 3301, 3311, 3313-3316, 3319, 3363.) Linton claimed that he went to the Middletons’ house that night because he “needed some money,” 10 and did not want to hurt Melissa when he grabbed herby the throat and she gasped for air. (12 CT 3313, 3318,3349.) Helater admitted he “tried to rape”? Melissa but did not get “very far at all” with her. (12 CT 3365.) He said he wasnot fully awakeat the time. He also said he wasunderthe influence of “speed.” (12 CT3312, 3315, 3363.) ‘Whenasked if he would have raped Melissa on the day ofthe murder if she had not put up a fight, Linton responded,“I had a chancethefirst time, didn’t I?” (12 CT 3368.) He said he wasnot underthe influence of any substance during the murder andlast snorted “speed” about a week earlier. (12 CT 3367.) After the murder, Linton returned to his house, showered, changed clothes, and washedthe clothes that he had been wearing. (12 CT 3344- 3346.) He also threw the Middletons’ keys, which he used to entertheir house on both occasions without their permission,in the trash inside ofhis house. (12 CT 3317-3319; 17 RT 2600.) He.threw the keys away to destroy evidence and because he never wantedto return to the Middeltons’ home. (12 CT 3317-3319.) In response to a question about whetherthe trash had been taken out, Linton stated, “Everything’s still at the house.” (12 CT 3317.) | _ After Linton’s arrest at 4 p.m., Detective Stotz searched Linton’s home and found the Middletons’ house keys, one ofMelissa’s rings, anda - ° Throughoutthe briefing, Linton suggests he “whispered”to the police that he attemptedto “reap” Melissa. (E.g., AOB 53-54, 57, 61, 72, 85-86, 89, 98, 157, 167.) Linton’strial counsel also suggested this to the jury during opening statement (17 RT 2522-2533), andlater asked Detective Stotz whether Linton said “reap”or “rape” on the tape (19 RT 2899-2900). Detective Stotz testified that he understood Linton to say “rape,” and that, while he guessed it could soundlike “reap,” “due to the nature ofthe conversation, [he] understood it as ‘rape.’” (19 RT 2899- 2900; see also 5 RT 606.) The tape and transcript ofit indicate Linton said “rape.” (People’s Exh. 15A; 12 CT 3365.) 11 pair ofMelissa’s soiled underwear in the trash can in Linton’s kitchen. (17 RT 2561, 2563; 19 RT 2799-2806.) DNAtesting linked Melissato the stain in the crotch area ofthe underwear and Linton to Sperm and semen detected on otherparts ofthe underwear, but not the crotch. (21 RT 3261- 3264, 3267-3271.) The probability ofthe DNAprofile ofthe sperm and semen samples occurring in the general population wasless than one in one billion people. (21 RT 3270-3271.) There was no semen onthe clothes Melissa was wearing whenthe police found her, including her underwear. (21 RT 3235-3238.) Her shorts smelled ofurine and hada stain consistent with it. (21 RT 3236-3238.) | Forensic pathologist Dr. Joseph Choi performed the autopsy two days after the murder. He determined that Melissa died of asphyxiation. The cause of death was strangulation. (18 RT 2682-2683, 2685-2686.) | Melissa’s body had signs of both ligature and manualstrangulation. There were two linear abrasions on her neck. One extended from underneath the chin to behindthe left ear in an upward direction. (19 RT 2709-2710.) The other extended from the front of the neck to behind the right ear. (19 RT 2709-2711.) The linear abrasion on Melissa’s neck could have been caused by a cable, cord, or headphone wire. (18 RT 2665-2666.) Melissa’s injuries were consistent with someonepulling on the ligature from behind. (19 RT 2700-2701.) Dr. Choi believed it was “not likely” that Melissa’s injuries were caused by a cord wrapped aroundher neck. (19 RT 2700- 2701.) He explained that if a cord were wrapped arounda person’s neck, there would be a mark around the circumferenceofthe neck, unless there washair in between the cord and neck. (18 RT 2699-2700.) In addition to the linear abrasions, Dr. Choi found large bruise on Melissa’s neck that could have been caused by a thumborfinger. (18 RT 2666.) She also had petechial hemorrhages on her neck, eyes, eyelids, and eye area, behind herears, on her forehead, and on her heart and lung 12 surfaces. (18 RT 2662-2663, 2667-2668, 2673, 2680, 2694.) The petechial hemorrhages were consistentwith alongerstruggle. (18 RT 2665.) | Melissaalso had burst blood vesselsin herleft eye that were consistent with strangulation, and hemorrhages around the hyoid bone and behind the thyroid cartilage, indicating pressure to the neck. (18 RT 2673, 2680.) She had no other injuries on her body. (18 RT 2678.) Swabs from Melissa’s mouth, anusand vagina tested negative for sperm, and Dr. Choi found no injuries or abnormalities on her genitalia. (18 RT 2708-2709.) The DNA profile found on two fragments offingernail clippings from Melissa’s left hand were consistent with Linton’s profile. (21 RT 3276- 3280.) One in 11,000 Caucasians, one in 25,000 Hispanics, and one in . about 5,600 Blacks share this profile. (21 RT 3280.) Defense The defense conceded Linton killed Melissa, but asserted that the special circumstanceallegations and other charges werenottrue,that Linton committed the murder during a panic attack, and that Linton’s inculpatory statements werethe false product of coercive, suggestive questioning of a shy, socially introverted individual with avoidant personality disorder. (30 RT 4642-4645, 465 1-4652, 4689-4692, 4696, 4703, 4714-4718.) | Forensic pathologist Werner Spitz opined that Melissa’s injuries may have been caused by Linton grabbing herloose-fitting, cotton V-neck shirt and twistingit tightly around her throat, with his knuckle going into part of her neck. (22 RT 3316-3319, 3364.) He believed that Melissa would have been “totally unconscious” in twenty to thirty seconds if the pressure on her neck were maintained. (22 RT3322.) Dr. Spitz saw no evidence of | manualstrangulation. (22 RT 3356.) He did not believe, based on his review of the autopsy photographs,that the lineal mark on Melissa’s neck was caused by a cord wrapped around her neck in the manner Linton 13 described to the police. (22 RT 3305, 3327.) On cross-examination, Dr. _ Spitz acknowledgedthat hair and hands betweena ligature and the neck ‘ could accountfor the absence of a circumferential linear abrasion. (22 RT 3363.) He also acknowledged that interrupted or intermittent strangulation was supportable if one credited Linton’s statements to the police. (22 RT 3381-3382.) | The defensealsocalled clinical psychologist Craig Rath. Dr. Rath evaluated Linton’s mental state between police interviews on November30, 1994,at the prosecution’s request. (23 RT 3475-3478, 3525.) Dr. Rath saw no signs ofbrain damageora brain disorder, and no deficits in cognitive functioning. (23 RT 3541, 3555, 3563.) Nor did he find any indications of insanity or a personality disorder. (23 RT 3541, 3572.) Linton seemedalert and responded appropriately to questions, though his affect was flat. (23 RT 3507, 3556.) Dr. Rathadministered the Minnesota Multiphasic Personality Inventory Test (MMPI) during the evaluation. (23 RT 3485-3486.) Linton had elevated scores onthe social introversion, depression, and psychopathic deviantscales, but did not meetthe diagnostic criteria for a sociopath. Linton’s responsesalso indicated he had hypomania,i.e., low energy. (23 RT 3489-3490, 3494, 3497-3498.) The jury also heard the audiotape of Linton’s interview with Dr. Rath. Linton reportedthat he did not think he had any history or periods of unconsciousness, blackouts, or seizures, but did get “[t}]he breath ... knocked out of” him whenhe washit by a car while riding his bicycle at age 14. (12 CT 3408-3409.) Linton had suicidal thoughts between the ages of eight and fifteen or sixteen and once heard oneofhis parents’ voices. (12 CT 3416, 3419.) He had had a couple of anxiety attacks in the past. Hislast period of anxiousness was about three monthsearlier. He did not know whatsetit off. (12 CT 3415-3416.) Linton last used marijuana a 14 '. month before the murderandlast used “speed” a week earlier. (12 CT 3412-3413.) Linton also described his father’s method of discipline. He said his father punished him by hitting him “aroundthe place andstuff,” that his father “used to get pretty carried away,” and that his father last hithim = ~ whenhe was16 years old. (12 CT 3391-3394, 3399.) One ofthe worst injuries he sustained occurred when he was betweenthe ages often and thirteen, when his father dragged him inside the house by his hair and he slipped on a'sled andhithis head on the banister. His father refused to take him to the hospital. When his mother came home, she took him to the hospital where he received fourorfive stitches. (12 CT 3392.) When Dr. Rath asked Linton what wasthe worst thing that happened to him in childhood, Lintonresponded“a lot ofthings happened”and that he was not sure what the worst was. (12 CT 3394.) He then recalled an incident ~ where he ripped off the pantry door whenhetried to get a glass. Whenhis father returned home and found the broken door, he was furious and “kicked” Linton “aroundthe place.” (12 CT 3394.) Linton repeatedly said he wassorry, but his father did not “let up.” (12 CT 3394.) Later, his father said he would not have punished him if he had simply apologized. (12 CT 3394.) Linton reported that his father did not “use full force” when he punished him, andthat he did not think his father ever grabbed him by the throat. (12 CT 3395.) Linton also told Dr. Rath that he wasin special education in the third grade andrepeated that grade. (12 CT 3397-3398.) He was diagnosed with Attention Deficit Disorder in the fifth grade andprescribed Ritalin, but stoppedtaking the drug becauseit made his hands shake. (12 CT 3397; 23 RT 3500.) Dr. Rath did not see any signs of hyperactivity during the interview, which indicated Linton had likely outgrown much ofthe observable symptomology. (23 RT 3500.) Linton said he graduated from - 15 high school in 1992, and had neverlived away from home. (12 CT 3395- 3396.) Living with his parents depressed him. (12 CT 3415.) Linton spent his time before the murder reading fantasy novels and science fiction books, looking for a job, and watching Star Trek. (12 CT 3401-3402.) He said he had a friend named Joey Montero and another friend named Jerry Smith. Linton and Smith played Dungeons and Dragons weekly. (12 CT 3403-3404.) Linton wanted a girlfriend, butdid not date. He described himself as sort of shy. (12 CT 3414-3415.) His typical fantasy wasto go on a date with a girl. (12 CT 3430.) Linton’s statements about the murder and prior incident were essentially in accord with what hetold the police except that he did not admit that he tried to rape Melissa during the first incident or thought about raping her during the murder. (12 CT 3422-3424, 3426-3428.) Hetold Dr. Rath that he found Melissa “very slightly”attractive. (12 CT 3421.) He later said that he did “notreally” find her attractive, and indicated that even ifhe did find herattractive, he could not have done anythingat the time of the murder because he was too scared. (12 CT 3430-3431.) Dr. Rath opined that based on the character traits Linton displayed _ during the testing and interview, Linton returned to the Middletons’ home on the day of the murder because of “[a] strong need.” (23 RT 3583-3584.) Dr. Cecil Whiting, a forensic and clinical psychologist, spent 15 hours with Linton during six meetings and administered a seriesoftests, including the MMPI and the Luria-Nebraska Neuropsychological Battery. Dr. Whiting also listened to Linton’s interviews with Dr. Rath and the police, spoke to someofLinton’s family members, and reviewed Linton’s school and medical records. (25 RT 3743-3749, 3755-3762, 3767, 3789- 3792, 3819, 3832, 3850, 3861; 26 RT 3875, 3945-3946.) | The MMPIrevealed that the most prominentpart of Linton’s personality wasself-isolation. (25 RT 3780.) Linton’s responsesalso 16 indicated he was depressed, uninvolved, self-critical, and still suffering from psychomotorretardation. (25 RT 3786, 3788, 3790.) The results of the Luria-Nebraskatest indicatedthat Linton had impairmentin the occipital-parietal region ofhis brain, which affects memory and vision and is related to dyslexia and panic disorders, and impairment in the right temporal lobe, whichaffects spatial and sequential analyses. (25 RT 3832- 3837.) Basedon the tests he administered and other materials he reviewed, Dr. Whiting diagnosed Linton as suffering from social phobia and panic: disorder with panic attacks, avoidant personality disorder, featuring social phobia and panic attacks, and neuropsychological impairment featuring problems with the right occipital-parietal area and right temporalarea ofthe cerebral cortex. (25 RT 3840.) Dr. Whiting opined Linton’s statements during the police station interviews abouthis loss ofperception oftime and fear during the murderandhis inability to recall events were consistent with him suffering a panic attack during the murder. (26 RT 3892-3893, 3911-3914.) Dr. Whiting further opined that Linton’s ability to withstand the pressures ofinterrogation and his suggestibility were affected by his hypomania andsocial introversion. (27 RT 4121-4123.) | Dr. Whiting believed that Linton’s frequent school changesas a child contributed to his social phobia, and noted that Linton’s school records indicated he had emotional problems and was socially isolated from his peers in kindergarten and the third grade. (25 RT 3865-3868, 3876-3877, 3879, 3882-3884.) On cross-examination, Dr. Whiting acknowledged that by age eleven ortwelve, a school psychologist reported a dramatic and positive change in Linton and notedthestable setting his parents had provided for him. (26 RT 3962-3967.) He also acknowledgeda social services report from that same timeperiod stated that Linton had “good peerrelationships.” (26 RT 3968.) 17 Melody Morrislived next door to Linton. She described his social awkwardness when he cametoher house to borrow her bicycle pump. (24 RT 3686-3687, 3690-3691.) During the daytime in October and November of 1994, Morris occasionally smelled marijuana and heard Linton andhis - friends listening to loud music. She was happythat Linton had friends and had not seen him having a good time before this. (24 RT 3697-3701.) Rebuttal Linda Middletontestified that she bought the shorts Melissa was wearing when she was murdered andthat the zipper workedthelast time she saw the shorts. (28 RT 4216-4218.) Robert Middletontestified that the cord on his headphones had extensive damage,thatit was notin that condition whenhelast used his headphones, andthathe kepthis headphonesonthe night standor the table by the bed. (28 RT 4221-4223.) | PENALTY PHASE The prosecutorpresented evidenceofthe impact ofMelissa’s murder on her family, friends, and the community. Melissa’s mother Linda testified that Melissa wasa friendly, outgoing and generousgirl who wanted to be a teacher when she grew up. (32 RT 4970-4971, 4975.) Melissa enjoyedparticipating in the Girl Scouts, camping, family vacations, visiting family, and horseback riding. (32 RT 4970, 4976.) WhenLindafirst found Melissa on the day of the murder, she blamed herself for her death because she thought that Melissa had overdosed on the _ cold medicinethat she hadleft for her. (32 RT 4980.) The two hardest things she had to do after the murder were calling her husband and her parents. (32 RT 4981.) The Middletons kept the door to Melissa’s room closed for four years after the murder. (32 RT 4982.) They no longer celebrated Thanksgiving or Christmas, which were part of the good times 18 they had with Melissa,who loved the holidays. (32 RT 4983-4984.) They usually visited Melissa’s grave on her birthday. (32RT 4983.) Linda thought about Melissa almost every minuteofthe day, talked to her when she woke up in the morning, and said goodnight to her in the night. (32 RT 4982.) She missed everything about Melissa. (32 RT 4985.) She missed seeing her daily, telling her she loves her, and giving hera kiss. Linda also commented that she will never see Melissa graduate, marry, becomea teacher, or the like. (32 RT 4982-4932.) Shefelt it would have been different or easier if Melissa had died in an accident or. from some type of disease. She said the four years since the murder had been “a nightmare” “Iwiith no closure[,]” as she never had an opportunity to say good-bye to Melissa. (32 RT 4985.) The Middletons saw a psychiatrist for a year after the murder andtried different support groups until they found a | group ofparents of murdered children who welcomed them. (32 RT 4984- 4985.) Melissa’s death wasalso difficult for Linda’s parents, who were very close to Melissa, and for Melissa’s brother, who told Linda, ““Mom, I’ll | neverbe able to come home,be able to live there again because she’s not there.’” (32 RT 4977, 4984.) Melissa’s father Robert testified aboutthe close relationship he had with Melissa, the sweetest person he ever knew. (32 RT 4986, 4989.) Robert recalled Melissa had a contagious laugh and “lit up” aroom. He characterized her as generous, loving, enthusiastic, smart and musically inclined. (32 RT 4986.) Robert taught Melissa to play the clarinet and saxophoneandthe two played music together. They also enjoyed long bicycle rides. (32 RT 4987-4989.) Robert was very close to Melissa. (32 RT 4989.) WhenLinda called Robert about the murder, hefell off his chair and hadto be helpedto the parking lot and driven home. (32 RT 4990.) The . 19 two toughest things he had to do after the murder were calling his parents and making the funeral arrangements. (32 RT 4994.) Like his wife, Robert still talked to Melissa. (32 RT 4993.) He missed walking hand-in-hand with Melissa, ridingbehind heronhis bicycle, “{j]ust little things like that.” (32 RT 4996-4997.) Robert no longer played the saxophone, whichhe hadplayedfor thirty years, and did not go the movies or Disneyland or do other things closely associated with Melissa. (32 RT 4987, 4993.) When he went to weddings, graduations, or other happy events, he felt cheated. (32 RT 4993.) Robert said that losing Melissa was the worst thing, but he also had to deal with images ofwhat Linton put her through. (32 RT 4991.) Hefelt guilty about not protecting Melissa and the biggest mistake ofhislife — thinking the prior incident was a nightmare. (32 RT 4992.) Robert said he has hadpanic attacks,felt total despair, and hadsuicidal thoughts. (32 RT 4991.) His emotional turmoil had diminished over time butthe void and . sadness had not gone away. (32 RT 4991, 4997-4998.) He did not see _some ofhis friends any more because they did not know whatto say to him. . (32 RT 4997.) His parents can hardly talk about the murder. (32 RT 4993.) Schoolofficials dedicated the Christmas parade after Melissa’s murder to Melissa. (32 RT 4996.) They also recognized her with a memorial plaque beneath the school flagpole and an empty chair at graduation, which students put flowers on. (32 RT 5004.) Jessica Holmes, a close friend, neighbor, and classmate of Melissa, described Melissaas a really “loving” person who couldnot hurt anyoneor any creature. (32 RT 5003, 5005.) Holmesrecalled that Melissa even kept | hurt waspsthat she found until the wasps “were better so they could fly away.” (32 RT 5005-5006.) Holmes and Melissa rode bicycles together, walked and skateboarded with Melissa’s dog, and werein the process of building a clubhouse when Melissa died. (32 RT 5003.) Before the 20 murder, Holmes felt invincible. Afterward, she wasafraid to be home alone. (32 RT 5005.) Shetried to forget about Melissa’s murder, but it was always in the back ofher mind. Holmesstill missed Melissa. (32 RT: 5006.) Shesaid that Melissa’s death was hard for everyone at school because it was an unprecedented, “scary experience.” (32 RT 5004-5005.) Another close friend and classmate, Lindsay Bryan, described Melissa as a “very cheerful” person who alwaystried to makeothers feel better. (32 RT 5008-5009.) Bryan enjoyed drawing and coloring with Melissa and listening to Melissa play her clarinet. (32 RT 5009.) Melissa told Bryan she wanted to be a mother when she grew up. (32 RT 5009.) Bryan was shocked when she heard about Melissa’s murder, cried a lot, and could not concentrate. (32 RT 5011.) She isolated herself after the murder and becamefearful of making new friends and losing them. (32 RT 5010.) She still missed Melissa. (32 RT 5010.) During the testimony ofMelissa’s parents and Holmes,the prosecutor presented total oftwenty-five still photographs that showed Melissaat various stagesofherlife, the memorial plaque at the flagpole at her school, and the empty chair at school graduation. (32 RT 4969, 4972-4979, 4994- 4996, 5004.) Defense Penalty Phase Evidence The defense presented evidence of Linton’s emotional problems and physical abuse and neglect. Randall Knack, a school psychologist who evaluated Linton in 1980 in Virginia, when Linton wasfive years old and in kindergarten, concludedthat Linton’s academic functioning was lowerthan expected given his intellectual ability, potential, and academic training. (33 RT 5108-5118.) Dr. Knack found “there were significant emotional problemsthat were interfering with [Linton’s] ability to concentrate, to comprehend information, and to express his thoughts, and that it was affecting his mood.” (33 RT 5118.) Dr. Knack recommendedthat Linton - 21 be considered for a special education program for the emotionally disturbed andthat Linton’s pediatrician review his case for a possible neurological evaluation. (33 RT 5123-5124.) Dr. Knack reported that Linton’s parents were supportive and eager to receive his recommendations. (33 RT 5133.) Susan McKenzie was Linton’s special education teacher in Virginia for a little over a year, in second and third grades. McKenzie recalledthat Linton had imaginary fights with his fingers and pencils. (33 RT 5146- 5149.) He was bright, but withdrawn; he did not socialize with other children. (33 RT 5150-5151, 5153.) McKenzietestified that she notified officials when Linton cameto school with stitches on his head, because Linton reported that his father said that Linton had hit his head onhis sled; Linton could not understand how this happened because his sled was round. (33 RT 5154.) McKenzie ranked Lintonin the top five of the severely disturbed children that she had seen in her career. (33 RT 5156.) She acknowledged on cross-examination that, after Linton left her class and was placed in a regular classroom in a private parochial school, he functioned at an average to above average level academically. (33 RT 5168.) School psychologist Becky Ott evaluated Linton in Virginia in 1983. (33 RT 5172.) Ott recalled Lintontolerated frustration poorly, talked to himself, and swatted imaginary flies on the table top. (33 RT 5175.) On the WechslerIntelligence Quotient Test, Linton “scored within the average to high average range with someindications of even higher intellectual ability.” (33 RT 5178.) Ott believed Linton’sintelligence was probably above average. (33 RT 5194.) But she noted that Linton seemedto experience stress and have difficulty with unstructuredtests. (33 RT 5178.) When asked to draw his family, Linton said he could not do so, but that he could draw a person. Linton then drew an armedrobotthat would kill anyone whocrossedhis path. (33 RT 5178, 5180.) Ott believed Linton’s inability to draw his family, the robot drawing, and his responses on one 22 test that she administeredindicated a strong likelihood of family violence. (33 RT 5180, 5192-5193.) Ott concluded from hertests and observations | that Linton was“significantly, emotionally disturbed.” (33 RT 5179.) She ranked him as one ofthe more emotionally disturbed children that she had tested. (33 RT-5184.) For testing purposes, Ott defined emotionally disturbed as unable to function in the academic environment. (33 RT 5190- 5191.) Ott acknowledged thatit appeared that Linton was functioning in an academic environmentin the fifth grade, and that she had not seen any records beyondthefifth grade. (33 RT 5191-5192.) The Linton family attended family counseling at the recommendation ofKnack and Ott, and Linton attended individual counseling. (33 RT 5521.) Jack McLaughlin, Linton’s teacher from a continuation high schoolin California, testified that Linton transferred to his school because he had not done the school work required at his traditional high school. (34 RT 5341, 5349-5351.) At the continuation school, which had easier classes, Linton did the bare minimumcredits, often chose to do what he wanted to do, regardless ofwhat was required ofhim, and mumbled when confronted by the staff. (34 RT 5364, 5372, 5387, 5393, 5409.) McLaughlin felt Linton waslazy at that time, but changed his mind after he learned of Linton’s academic history. (34 RT 5386, 5404, 5411.) Linton’s father had indicated on Linton’s enrollment form that Linton had never beenin a special education class and never received counseling. (34 RT 5356-5358.) McLaughlin wasalso not aware of Linton’s Attention Deficit Disorder diagnosis. (34 RT 5404-5407.) McLaughlin testified that, after Linton’s parents receiveda letter informing them that Linton wasbehindin his _ credits, Linton’s father responded that the school wasviolating the terms of the contract they had agreed to when Linton transferred, and that he was prepared to take necessary legal or political action. (34 RT 5368-5369.) 23 Robert Osborne, a retired Air Forcestaff sergeant, played Dungeons and Dragons with Linton at a weekly game from 1989 until the time ofthe murder. (35 RT 5418-5420.) Dungeons and Dragons, a role playing game, requires players to plan moves in advanceandanticipate the reactions of other players. (35 RT 5446.) Osbornerecalled that Linton was a math whiz; he couldrattle answers to questionsoffthe top ofhis head and was alwaysthefirst to add up the dice they used to play the game. (35 RT 5447-5448.) Osborne characterized Linton as an overly shy, nice, loyal person who was respectful of authority and a follower. (35 RT 5421-5423, 5437, 5442-5443, 5447.) He said other players could easily persuade Linton to do things that he did not wantto do during games. (35 RT 5242.) Linton gained confidence in gaming overtime, but could not handle pressure well. (35 RT5437, 5422.) Osborne had played Dungeon and Dragons with Linton through the mail since Linton’s incarceration. (35 RT 5457.) . Linton’s father Carl testified that he and his wife physically disciplined Linton by hitting him with a wooden spoon when Linton was an infant and toddler, in accord with the teachings of the church they attended at that time. Carl continued to physically discipline Linton until he was 17 or 18 years old. At times, he lost his temper and went beyond corporal punishment. (33 RT 5196-5203,5246, 5250-5251.) Hetestified about two specific incidents when this occurred. Thefirst was the sled incident that Linton described to Dr. Rath. (33 RT 5204-5206.) The second incident occurred when Linton was 15 or 16 years old. After witnessing Linton grab Stacey by the throat, Carl grabbed Linton by the throat, lifted him up, and | asked him howit felt. Linton “freaked out[,]” babbled incoherently, fled, and stayed outall night in a rain storm. (33 RT 5206-5207.) After Carl lost his temper with Linton, he would hug Linton, apologize andtell him that he loved him. (34 RT 5275; 35 RT 5478-5479.) 24 Carl also testified abouthis love for Linton, Linton’s learning and communication difficulties, and how Linton seemed sharpersince his incarceration and separation from him. (33 RT 5205-5203, 5208-5212, 5214-5215.) Carl said that before the murder, Linton played video games, watchedtelevision,slept, and had noresponsibilities apart from taking care of Stacey and light housekeeping. But Carl did not think that Linton was lazy. (33 RT 5244-5245.) Carl acknowledgedthat Linton had sufficient confidence to play in the band, be a teacher’s aide and take Tae Kwon Do classes. (33 RT 5248-5249.) Linton earned a purple belt in Tae Kwon Do. | (12 CT 2762.) Linton’s uncle corroborated Carl’s testimony aboutthe use ofthe spoonfor discipline in Linton’s early years and how Car! lost his temper with Linton. (34 RT 5256-5261, 5284, 5288-5289.) The uncle also , recalled an incident in which Carl and Linton’s motherleft then two-year- old Linton homealonein his crib while they went to a movie. Linton was crying when they returned. (34 RT 5652, 5285.) The uncle testified that Carl locked Linton in his room for misbehaving. (34 RT 5266, 5269.) The uncle did not witness anychild abuse, but did witness two beatings in 1993, just before Linton’s 19th birthday. (34 RT 5277-5278, 5290.) The uncle saidthat after Linton’s first few years, there were few signs ofphysical abuse. (34 RT 5294.) The uncle, wholoved Linton “very much,” thought Linton was “very lazy” before the murder and had grown up and become his own person sincehis incarceration. (34 RT 5280-5281, 5291.) Linton’s aunt, who was estranged from her brother Carl, felt Linton was neglected by his parents during infancy, was delayed in his language comprehension, and waspassive, quiet and withdrawn. (34 RT 5301-5310, 5316.) She also felt that Stacey was the center of Linton’s parents’ universe. (34 RT.5312.) The auntbelieved that, since his incarceration, Linton had appeared confident and to have a personality. (34 RT 5316.) 25 The aunthad nocontact with Linton between 1992 and 1994. (34 RT 5318.) | a Linton’s grandmothercorroborated the testimony ofother family members about Linton’s early neglect and abuse,his language delays, Carl’s temper, and the disparate treatment of Stacey and Linton. (35 RT 5473-5486.) The grandmother saw Carl abuse Linton with the spoon on many occasions. After she sawbruises on Linton’s body, she threatened to report Carl and Linton’s motherto child protective services if she saw another bruise. (35 RT 5478.) The grandmothercharacterized Linton as a . shy, withdrawn, loyal person wholacked confidence but was a “very good” kid. (35 RT 5487, 5490.) She believed Linton had gained confidence since his incarceration and wasable to copein the structure ofprison life. (35 RT 5491-5492.) The grandmothersaid that Linton indicated he felt dreadfulabout the murder. (35 RT 5493.) An official from the sheriffs departmenttestified that Linton had received only one disciplinary markerin jail. The marker was for possessing dice in his cell. (35 RT 5464-5468.) 26 ARGUMENT J. THE TRIAL COURT PROPERLY ADMITTED THE STATEMENTS LINTON MADEIN HIS BEDROOM AND HIS ATTEMPTED RAPE CONFESSION, PROPERLY PRECLUDED HIM FROM CALLING AS WITNESSES AN EXPERT ON COERCED CONFESSIONS AND DDA WILLIAM MITCHELL, AND PROPERLY SUSTAINED THE PROSECUTOR’S OBJECTIONS DURING CROSS-EXAMINATIO OF DETECTIVE STOTZ _ In his first argument, Linton raises six claims: (1) the statements he madein his bedroom were inadmissible because he was in custody at that time and had not beenadvised of his Miranda rights; (2) his subsequent ~ waiver ofhis Mirandarights was not voluntary, knowing andintelligent, becausethe prosecutor, DDA William Mitchell, and Detective Stotz falsely promised him during the bedroom interview that he would not be punished for any prior sex crimes that he may have committed against Melissa some time before the murder;(3) his confession to the prior attempted rape of Melissa was coerced by promises of leniency and other coercive interrogation techniques; (4) the trial court erred in denying his request to call an expert on coerced confessions;(5) thetrial court erred in refusing to allow him to call DDA Mitchell as a witness; and (6) the trial court erred in restricting his cross-examination ofDetective Stotz. Linton forfeited the custody and Miranda waiverclaimsby failing to object on these grounds below. These claimsalso fail on the merits, because Linton was not in custody during the bedroom interview and becausehe knowingly andvoluntarily waived his Miranda rights. Linton’s due process voluntariness claim fails because law enforcement did not coerce a confession through a promise of leniency or any other tactics. And even if a promise of leniency had been made, it was not the motivating factor for any confession. Thus, the trial court did not violate Linton’s state 27 and federal constitutional rights to due process and against self- incrimination by admitting his extrajudicial statements. Thetrial court also properly precluded the defense from calling an expert on coerced confessions and DDA Mitchell. The expert testimony would have had little, ifany, probative value and would have resulted in an undue consumption oftime. DDA Mitchell’s testimony would have been cumulativeto other evidence regarding the circumstancesofthe interviews | and interrogation. Finally, the trial court properly sustained the prosecutor’s objections during the cross-examination ofDetective Stotz, because the defense questions were either improperor called for marginally relevant evidence,at best. Accordingly, the trial court’s rulings did not violate Linton’sstate or federal constitutional rights to due process and confrontation. A. The Suppression Motions and Hearings Linton unsuccessfully moved to suppresshis taped confession at the preliminary hearing on the ground it was coerced by a promiseofleniency. (1 SCT 37,62, 84-91.) He later renewedhis suppression motion. (1 SCT - 37, 91; 1 CT 162-172.) After a partial hearing on the renewed motion,the court ruled that the motion shouldbe heardattrial. (2 RT 186.) At the subsequenthearing,the parties stipulated the trial court could consider the testimony from the preliminary hearing andpartial suppression hearing. (5 RT 538-539.) The court also considered the written filings, the audiotapes and transcripts of the interviews, and the testimony offive witnesses called by the defense — Detectives Stotz and Lynn, DDA John Chessell, Sergeant Rodriguez and Dr. Rath. (2 CT 498-502; 3 CT 773-779, 811-820, 825-834; 10 RT 1343.) The evidence establishedthe following: Detective Stotz first spoke with Linton around 4:45 p.m. on the day of the murder for about ten minutes at Linton’s front door. (1 SCT 10, 40.) Aboutforty minutes later, Detective Stotz returned to Linton’s home with ° 28 Detective Lynn. Bythis time, Detective Stotz had learned that Melissa had confided in a 13-year-old neighborthat, two to three weeks before the murder, Linton entered the Middletons’ house around midnight andtried to rape and choke her. (1 SCT 13-15.) Detective Stotz askedLinton aboutthe prior attack. Lintoninitially denied knowledge of it, but later said that he thought he knew whatDetective Stotz was referring to. Linton then explained that, two to three weeksearlier, he woke up in his yard around midnight, wearing only his jeans and underwear. Linton thought he may have been sleepwalking. (1 SCT 15-16.) The second conversation also took place at Linton’s front door and lasted aboutfifteen minutes. (1 SCT 41.) Around8:15 p.m., Detective Stotz returned to Linton’s home with DDAMitchelland interviewed Linton in his bedroom forthirty to forty- five minutes. (1 SCT 44.) At the start of the interview, Detective Stotz advised Linton that he was not underarrest and did not haveto talk to them. (5 SCT 67.) At one point, Detective Stotz asked Linton if he ever kissed Melissa. After Linton said “[n]o, I never” Detective Stotz interjected, “or madeout .. . you’re not gonnagetin trouble for that, y’know, wejust wanna know (that).” (5 SCT 81, alterationsin original.) Linton responded, “(I know) why would I get —- why wouldn’t I get in trouble for that?” (5 SCT81, alterationsin original.) Stotz replied, “Well, because, frankly, because she’s nolonger living, y’know. Nothing would happen to you if— if you had kissed her or grabbed her or touched her or even had sex with her. Y’know,at this point she’s — she’s no longerthe victim wouldn’t be her [sic]. She’s no longer with us. | So nothing would happen to you. We just need to know because — okay.” (5 SCT 81.) Linton responded, “Okay. ~ Ofcourse you know I’m not confessing to that.” (5S SCT 81.) Later in the interview, DDA Mitchell advised Linton that they were going to ask people in the neighborhood who were homeat the time ofthe. 29 murder totake a polygraph test. (5 SCT 85.) After Linton expressed reluctance to do so, DDA Mitchellstated: . Like, if— ifyou and Melissa had had some problemssexually in the past and you’retrying to hide that, that mightsetit off, so you’d haveto tell us about that ahead oftime: What we’re interested in, the murder, of course, we don’t care about anything else that happened, ifyou and Melissa, she stopped coming over here, ‘kay, that’s something that’s water under the bridge now. We’re lookingfor only the murderer, ifyou didn’t do that, take a polygraph and proveit with your background, with her as longas there isn’t something you’re hiding, worried about whetheror not they’re gonna ask questions about this one area, if you actually didn’t do the murder butyou’retrying to hide this other information or problemsthat you’ve had with her, that could kind’a skew the results one way ortheother. (5 SCT 86.) Linton eventually agreed to take a polygraphtest, but asked that his parents not be told aboutit and that he not be telephoned the next day until after his parents left the house. ‘(1 SCT 49-50.) Linton made no inculpatory statements during the interview. (5 SCT 67-88.) Detective Stotz and DDA Mitchell left after the interview. (1 SCT 67-68.) The next morning, Detective Stotz called Linton, and Linton agreed to meet with him. (1 SCT 50, 69.) Around 8:45 that morning; Detectives Stotz and Lynn picked Linton up at his home in an unmarked car. (1 SCT 39, 69-70.) During the drive, Linton told the detectives that there was no ° need for a polygraphtest, that the detectives knewlast night, and that he wasnotsure that he could admit it. (1 SCT 22, 51, 67-68.) Linton also said he wantedto tell Detective Stotz the previous night, but did not want to confess in front of his parents. He apologized for wasting their time. (1 SCT 54.) The detectives and Linton arrivedat the police station around 9 a.m. and went to Detective Lynn’s office. (1 SCT 52.) At the station, Linton sat with Detective Lynn in his office for about forty-five minutes, while 30 Detective Stotz prepared for the interview. (1 SCT 52; 5RT 550-552, 10° - RT 1066-1067 .) During this time, Linton asked Detective Lynn why he waslaughing at him. Detective Lynn twice denied doing so. (10 RT 1068.) WhenDetective Stotz returned to Detective Lynn’s office, he explained to Linton what would occur and advised him that he would be reading him his rights. (6 RT 735-739.) During that conversation, Linton asked Detective Stotz if he would be getting the death penalty. Detective Stotz told him that he only made recommendations to the District | Attorney’s Office, that the District Attorney’s Office actually decided what chargesto file and penalties to seek, andthat the court determined penalty. (1 SCT55, 71, 80-82; 5 RT 549, 658-659; 6 RT 736.) Linton also brought up the topic of forensics. (1 SCT 55; 6 RT 736.) About9:45 a.m., Detective Stotz advised Linton ofhis Miranda rights. (5 SCT 145-146; 1 SCT 39.) After Linton waivedhis rights, he described how he entered the Middletons’ home, how Melissa screamed when shefirst saw him, andhow he strangled her to death. (5 SCT 146- 149.) Detective Stotz asked Linton if Melissa screamed because she was afraid of him,andif she was afraid ofhim because of what happened two weeksearlier. (S SCT 149.) After Linton answered both questions affirmatively, the following exchange ensued: STOTZ: You andI talked aboutit. LINTON: | Yeah, you know about that, yeah, you don’t need to record that do you? STOTZ: Well, I need to know little bit ofbackground on what happened. LINTON: Why do you needto recordit? STOTZ: About what happened? LINTON: There’s no evidence on that. 31 STOTZ: LINTON: STOTZ: LINTON: STOTZ: LINTON: STOTZ: LINTON: STOTZ: About what happened a couple ofweeks ago? Yeah. Well, I just need to know becauselast night we talked and you didn’t, you said nothing happened. That’s because my parents were home. Okay,I understand that buthis [sic] is just part of the interview and like I said, you’re not going to get in trouble for what happened two weeksago, okay? Whynot? Well because like I told you last night, that’s water underthe bridge. That’s until today. No,that’s got nothing to do with it, I just need to know whyshe would see you and why she would run away from you screaminglike that andit’s kind of odd for a neighbor wholived there for six years. For instance, ifmy neighbor walked into my housethat I’ve knownforsix years, I wouldn’t just run away screaming and I’m sure you... (5 SCT 149-151, ellipsis in original.) Detective Stotz testified at the suppression hearing that he believed that Linton would not be charged for any prior crimes because of his murderconfession. (5 RT 556-557.) But he did not further convey this beliefto Linton. After Detective Stotz made the above-quoted “that’s got nothing to do with it,” Linton responded, “She was, she was barely screaming, she just ran to her parent’s room.” (5 SCT 151.) Detective Stotz then proceeded to question Linton about the murder,the prior attack, and the murder again, until 10:05 a.m. (5 SCT 151-162.) 32 The interview resumedat 10:40 a.m., after a thirty-five minute break, with Detective Stotz and DDA Chessell. (5 SCT 162.) Duringthis segment, Linton admitted that he went to the Middletons’ houseto steal on the day ofthe murder andthat he thought about having sex with Melissa | that day. But he continued to deny that hesexually assaulted Melissa then or two weeksearlier. 6 SCT 162-217.) He also declined to take a polygraph test. (5S SCT 199-200.) This segmentofthe interview endedat 11:20 a.m., with Detective Stotz offering Linton a soda and DDA Chessell offering him something to eat. (5 SCT216-217.) | About an hour and 25 minutes later, around 12:45 p.m., Dr. Rath began his one-on-oneinterview with Linton in an interview room at the police station. (5 SCT 90; 2 RT 148.) Atthe start of the interview, Dr. Rath madeit clear to Linton that whatever Linton said would not be confidential. (2 RT 155-156.) Healso told Linton he did not have to answer questions and something to the effect that he was workingfor the District Attorney’s office. (8 RT 1029-1030, 1035-1036.) During the interview, Linton denied committing any sex crimes or having any sexual interest in Melissa. (4 RT 1000; 5 SCT 90-125.) Dr. Rath only: directly questioned Linton aboutthe murder and prior incident for nine pages of the thirty-six page transcript. (5 SCT 90-125.) The interview ended at 1:50 p.m., at which time Linton started the MMPI. Linton finished the MMPI at . | 3:15 p.m. (5 SCT 125.) | Around 3:40 p.m., after about a twenty-five minute break, Detective Stotz resumedhis interview with Linton in Detective Lynn’s office. (5 RT 655; 5 SCT 217.) Sergeant Rodriguez joined the interview at 3:45 p.m. (5 ’ SCT 220.) Toward the end ofthe interview, Detective Stotz told Linton, “The sooner youtell me the truth], the sooner I'll turn this machine off and - the sooner we’ll all be on our way.” (5 SCT 232.) Sergeant Rodriguez added that Linton wasnottelling the entire truth and that he wouldfeel 33 better ifhe did so. (5 SCT 232.) After declining a glass ofwater and indicating that he was not hungry, Linton asked, “So I haveto say it.?” (5 SCT 232.) Detective Stotz responded, “I want [you] to tell methe truth.” ~ (5 SCT 233.) Linton asked, “Why with the tape on?” Detective Stotz explained that he did not take notes well. Linton replied, “So I have to say it out loud?” Stotz answered “Yes, you do.” Linton thenadmitted, “T tried to rapeher.” (5 SCT 233.) Linton said this happenedthe first timehe _ . entered the Middletons’ house,“like two months ago. whatever wheneverit was.” (5 SCT 233.) Linton maintained thathe did not do anything though and that he was under the influence of “speed.” (5 SCT 231, 233-234.) He also admitted that the thought ofraping Melissa crossed his mind when he unzippedherpants on the day of the murder, but he disdainedthe thought afterward. (5 SCT234-237.) Just beforethe interview ended at 4 p.m., Linton acknowledgedthat he had not been threatened or coerced to speak withthe police. (5 SCT 238.) Healsosaid, “I didn’t wantto, I didn’t want to, I thought I should report myself.” (5 SCT 238.) | Atthe close of the hearing, defense counsel argued that Linton’s confession that he attempted to rape Melissa some time before the murder was involuntary because it was the product of overbearing, coercive police tactics that included express promisesof leniency, softening up, and relentless questioning about Linton’s sexualinterest in Melissa. Defense counsel also argued that the examiners failed to honor his invocation of his Mirandarights and that Dr. Rath failed to re-Mirandize him. (10 RT 1214- 1296.) / | The prosecutor argued Linton validly waived his Mirandarights, that there was no need for Dr. Rath to re-admonish him, and that Linton did not invoke his right to remain silent during the interviews. (10 RT 1299-1311.) The prosecutor also argued Linton’s confessionwas not coerced. The 34 prosecutor noted Linton was placedin a detective’s office without . handcuffs, was provided refreshments, and was questioned by the police for a total ofone hour and ten minutes and by Dr. Rath for one hour andfive minutes. The interviews were low key; neitherthe tone nor the nature of the questioning was coercive. (10 RT 1304-1305, 1312, 1324.) The prosecutor further argued that Linton’s personal characteristics did not render the confession involuntary. Linton wasa twenty-year-old man who appearedto be ofnormalintelligence to Detective Stotz. (10 RT 1324.) Linton demonstrated through his lies and other responses that he was not intimidated, not simply providing answers suggested by the officers, and understood the value offorensic evidence. (10 RT 1325-1326, 1333-1334, 1336.) - With respect to the alleged promises of leniency, the prosecutor asserted that the “water under the bridge” commentin the bedroom wasnot a promise regarding potential charges, but instead an assurancethat, if Linton were not the murderer, he would not beliable for any past crimes against Melissa. (10 RT 1319.) Linton demonstrated that he understood this was so the next day with his ““That’s until today,’” response to Detective Stotz’s “water under the bridge comment.” (10 RT 1321-1322, 1329.) The prosecutor argued Deputy Stotz’s response — “No, that’s got nothing to do with it. I just need to know why she would see you andwhy she would run away from you screaming like that’” — was not a promise of leniency, but instead an explanation ofwhy Detective Stotz needéd to know about the prior incident. (10 RT 1329.) The prosecutorfurther argued that even if the comment were a promise ofleniency, it was not the motivating factor. (10 RT 1329.) Linton confessed to the murder on November 30 rather than November 29 because he did not want to confessin the presence of his parents, and he confessed to the prior attemptedrape, not because of any promise ofleniency, but because ofthe officers persistent but 35 permissible questioning on the subject. (10 RT 1329, 1335-1341.) The prosecutor asserted Linton’s hesitancy to discussthe prior incident had to do with his desire to not have his statements on this subject recorded, not any concern over whether or not he would be punishedfor it. (10 RT 1330- 1331, 1341.) | Thetrial court agreed with the prosecutor’s reasons, for the most part, and denied the defense suppression motion,finding the statements were freely and voluntarily made and that Linton’s will was not overborne. (10 RT 1343.) . During the prosecution’s case-in-chief, the court denied Linton’s motion for reconsideration. (4 CT 908-915; 18 RT 2773-2774.) The court also denied his newtrial motion, which includeda claim that his statements were wrongly admitted. (37 RT 5776; 14 CT 3752.) B. Linton Forfeited the Issue of Whether He Wasin Custody During the Interview in His Bedroom; In Any Event, He Was Not in Custody and Any Error Was | Harmless Beyond a Reasonable Doubt Miranda warnings are required before a custodial interrogation. _(People v. Mayfield (1997) 14 Cal.4th 668, 732, quoting Miranda, 384 U.S. | at p. 444.) Linton argues the statements he made in his bedroom should have been excluded because he wasin custody and had not been advised of his Miranda warnings. (AOB 61-67.) Linton did not challenge the admissibility ofthe statements he made in his bedroom onthis ground below. Indeed, whenthetrial court noted that Linton was in his bedroom during the interview on the evening ofNovember29, Linton’s counsel responded, “Right. He wasn’t in custody. We are not saying he was in custody on 11-29.” (9 RT 1182.) Accordingly, Linton forfeited this claim. (People v. Combs (2004) 34 Cal.4th 821, 845.) In any event, the evidence adduced regarding the bedroom interview established that Linton wasnotin custody atthat time. “An interrogation i8 36 custodial when ‘a person has been taken into custody or otherwise deprived ofhis freedom of action in any significant way.’” (People v. Leonard (2007) 40 Cal.4th 1370, 1400, quoting Mirandav. Arizona, supra, 384 U.S. at p. 444.) The question of custodyis resolved under an objective standard. “[T]he pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom ofmovement”ofthe degree associated with a formal arrest.”””” (Id. at p. 1400, quoting People v. Ochoa (1998) 19 Cal.4th 353, 401; accord Yarboroughv. Alvarado (2004) 541 U.S. 652 [124 S.Ct. 2140, 2149, 158 L.Ed.2d 938].) Where no formal arrest has occurred, the questionis whether, underthetotality of circumstances surrounding the interrogation, “a reasonable person in [the] defendant’s position would havefelt free to 395end the questioning andleave.’” (People v. Leonard, supra, 40 Cal.4th at p. 1400, alteration in original, quoting People v. Ochoa, supra, 19 Cal.4th at p. 402.) . Here, after twice speaking with Lintonbriefly at Linton’s front door, Detective Stotz returned to Linton’s home around8:15 p.m. with DDA Mitchell. (1 SCT 10, 40-43.) DDA Mitchell was wearing a suit and tie and identified himself as a deputy district attorney. (1 SCT 45; 5 RT 659.) Detective Stotz had identified himself to Linton whenhe first met him that day and had shownLintonhis identification, because he had been working narcotics and did not look like a police officer. (1 SCT 41.) . Linton invited Detective Stotz and DDA Mitchell into his home and “allowed” them to “take him back andtalk” in his bedroom. (1 SCT 44.) Linton’s parents andhis sister Stacey were homeat the time, and Linton’s father was aware that Detective Stotz, DDA Mitchell and Linton were going into Linton’s bedroom to talk. (1 SCT 65-66.) Linton wanted to speak to Detective Stotz and DDA Mitchell away from his parents. (1 SCT 66.) 37 Linton’s bedroom was approximately 12 feet by 12 feet with a bed in it. During the interview, Detective Stotz and DDA Mitchell were seated in chairs next to each other andLintonwas seated in a chair facing them, four _ to five feet away. (5 RT 617.) At the start ofthe interview, Detective Stotz advised Linton that he was not underarrest and did not haveto talk to them. (1 SCT.67.) Detective Stotz and DDA Mitchell then proceeded to question Linton about his whereaboutsthat day, how well he knew Melissa, his scratches, and whetherhestill had the Middletons’ house keys. They also asked Linton aboutthe prior attack on Melissa, whether he killed Melissa, and whether he would be willing to take a polygraph examination. (1 SCT 67-88.) After someinitial hesitancy, Linton agreed to take a polygraph test the following morning. (1 SCT 49-50.) The tone ofthe interview was low key. (Recusal Motion, Def. Exh. C [tape]; 3 RT 348.) Linton did not make any incriminating statements during thethirty- to forty-five minute interview. (1 SCT 44.) After the interview, Detective Stotz and DDA Mitchell left Linton at his home. Linton wasnot handcuffed, arrested or threatened with arrest at any time. No armed guardsor squad cars were postedat his door afterward, and Linton wasnot told to stay homeor threatened with any police action if he fled the house. (1 SCT 66-68; 5 RT 46.) A reasonable person in these circumstances would havefelt he was “at liberty to terminate the interrogation and leave.” Thompson v. Keohane (1995) 516 U.S. 99, 112 [116 S.Ct. 457, 133 L.Ed.2d 383]. Accordingly, _because Linton wasnotin custody during the interview in his bedroom, Miranda warnings were not required. (See e.g., Beckwith v. United States (1976) 425 U.S. 341, 347-348 [96 S.Ct. 1612, 48 L.Ed.2d 1] (Miranda. warnings not required where two specialagents questioned defendant in private home andnosufficiently coercive elements were present]; Peoplev. Storm (2002) 28 Cal.4th 1007, 1037 [defendant wasnot in custody during- 38 interview at his home]; People v. Breault (1990) 223 Cal.App.3d 125, 135 [same].) | | In arguing to the contrary, Lintonrelies upon the Ninth Circuit’s decision in United States v. Craighead (2008) 539 F.3d 1073, 1078. (AOB 62-66.) This Court is not bound by federal circuit court decisions. (People v. Leonard, supra, 40 Cal.4th at p. 1416.) In any event, Craighead is distinguishable. _ In Craighead, FBI agents obtained a warrantto search the defendant’s homefor childpornography. (United States v. Craighead, supra, 539 F.3d at p. 1078.) Eight law enforcementofficers from three different agencies participated in the subsequent search. All of the officers were armed, some wore protective gear, and some unholstered their guns in Craighead’s presence. (Id. at pp. 1078, 1085.) Two ofthe officers “directed” Craighead to a cluttered, unfurnished storage room in the back ofhis homefor a private conversation. (/d. at p. 1078.) One ofthe officers, who was dressed in a flack jacket and was visibly armed, appeared to be leaning against the closed storage room doorin such a mannerasto block Craighead’s exit | from the room. Theofficers did not read Craighead his Mirandarights. The officer who questioned Craighead informed him that he wasnot being arrested, and that he wasfree to leave at anytime. (Jd. at pp. 1078-1079.) Notwithstanding these assurances, Craigheadtestified that he did not feel free to leave because ofthe officer by the door. Craighead wasalso unaware that his work supervisor had been invited to accompany the officers to provide emotional support to him. (/d. at p. 1079.) The Ninth Circuit concluded that Craighead wasin custody, because a reasonable | person in his shoes would not have felt free to leave. (/d. at p. 1089.) Here, unlike Craighead, only twoindividuals came to Linton’s house, Detective Stotz and DDA Mitchell, and they only cameto interview Linton, not to execute a search warrant. Linton invited Stotz and Mitchell into his. 39 home. (1 SCT 44.) There is noindication in the record that either Detective Stotz or DDA Mitchell displayed any weaponsor worevisible. protective gear. The interview took place in Linton’s bedroom,allowing him “to take comfort in the familiar surroundingofthe home and decrease the sensation ofbeingisolated in a police-dominated atmosphere.” (United States v. Craighead, supra, 539 F.3d 1073 .) Linton knew his parents were homeas he did not want to speak to Detective Stotz and DDA Mitchell in front ofthem. (1 SCT 66.) In light of these distinctions, Craighead does not advanceLinton’sposition. _ - Even assuming Linton had been in custody during the bedroom interview and had preserved this claim for review, noprejudice ensued from the admission of the statements he made there. As defense counsel acknowledged below, Linton made no incriminating statements during the bedroom interview. (9 RT 1183.) And Linton confessed to the murder and the earlier attemptedrape the following day. Thus, any error was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 31 [111 S.Ct. 1246, 1265, 113 L.Ed.2d 302] [applying harmless-beyond-a- reasonable-doubt standard of Chapmanv. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705], in determining effect of erroneous admission of involuntary confession]; see People v. Davis (2009) 46 Cal.4th 539, 588 [any Miranda violation was harmless under Chapman, where defendant made only non-inculpatory statements during interview]; People v. Cunningham (2001) 25 Cal.4th 926, 994 [assumed Miranda _ Violation was harmless under Chapman where jury could consider same evidence through moredetailed testimony of other witnesses and’ defendant’s inconsistent statements revealed only his lack ofveracity].) Linton, however, argues his comments during the interview were “extremely prejudicial because they provided the context and foundation of the prosecution’s theory ofthe case, to wit, that he had attacked and 40 attempted to sexually assault Melissa several weeks [or months]earlier.” (AOB64,alteration in original.) Linton arguesthat it was only after hewas promised by Detective Stotz and DDA Mitchell that he wouldnot be held accountable for any prior attacks on Melissa that he admitted that he woke up late one night outside his home, wearing only jeans-and underwear. (AOB66-67.) Apart from the fact that this statement is not inculpatory, Linton’s argument overlooksthat he had already madea similar statement to Detective Stotz. earlier that day, during the second interview at Linton’s front door. (19 RT 2753-2756.) Accordingly, any error wasnot prejudicial. | C. Linton Voluntarily, Knowingly, and Intelligently Waived His Miranda Rights Linton contends that the alleged false promisesofleniency that - Detective Stotz and DDA Mitchell madeto him in his bedroom regarding the prior crimes rendered his subsequent waiver of his Miranda rights invalid. (AOB 68-69.) Attrial, Linton argued that his wavier was invalid becauseit was the productofpolice “softening up” (2 CT 498-502), and that his confession was involuntary because it was coerced by, amongother things, false promises of leniency (10 RT 1214-1296). Linton did not, | however, argue that the alleged false promises of leniency rendered his Miranda waiverinvalid. Accordingly, he has forfeited this claim on appeal. (See e.g., People v. Cruz (2008)44 Cal.4th 636, 669 [defendant forfeited claim that his statement was involuntary where only objection below wasbased on Miranda); People v. Guerra (2006) 37 Cal.4th 1067, 1094, overruled in part on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151 [defendant forfeited Miranda claim by failing to object on that basis below, but preserved issue ofwhether his statements were voluntary].) 4] Linton’sclaim also fails on the merits. “[A] suspect’s waiver ofthe Fifth Amendmentprivilege against self-incriminationisvalid onlyif it is made voluntarily, knowingly, and intelligently.” (Colorado v. Spring (1987) 479 U.S. 564, 566 [107 S.Ct.851, 93 L.Ed.2d 954].) A valid waiver has two components.First, the waiver“ofthe right must havebeen voluntary in the sensethatit was the product of a free anddeliberate choice rather than intimidation, coercion, or deception.” (/d. at p. 573.) Second, the waiver must have been executed with full awareness ofboth the nature ofthe relinquished right and consequencesofthe.decision to relinquishit. “Only ifthe ‘totality ofthe circumstances surroundingthe interrogation’ reveal both an uncoerced choice andthe requisite level of comprehension maya court properly conclude that the Miranda rights have been waived.” (bid, citations omitted.) The prosecution bears the burden of demonstrating the validity of a waiver. (Fare v. MichaelC. (1979) 442 U.S. 707, 724 [99 S.Ct. 2560, 61 L.Ed.2d 197]; People v. Lessie (2010) 47 Cal.4th 1152, 1169.) Here,the totality ofthe circumstancesestablishes that-Linton made an uncoerced choice to waive his Miranda rights with the requisite level of comprehension. After Linton tacitly confessed to the murderin the car, Detective Stotz fully advised him of his Miranda rights. (5 SCT 145-146.) Linton stated he understoodhis rights and was willing to talk to the police about the murder. (5 SCT 146.) Linton then described how hestrangled Melissa to death and how Melissa screamed whenshefirst saw him. (5 SCT 146-149.) When Detective Stotz broached the subject about what happened two weeksearlier and Linton expressed somereluctance to talk aboutit on tape, Detective Stotz told Linton, “you’re not going to get in trouble for what happened two weeks ago.” (5 SCT 150.) Linton asked, “Whynot?” Detective Stotz replied, “Well becauselike I told youlast 42 | night, that’s water under the bridge.” (5 SCT 150.) Linton responded, “That’s until today.” (5 SCT 150.) Linton’s “That’s until today” response demonstrates that he interpreted the. statements made by Detective Stotz and DDA Mitchell the night before as-indicating that he would only be immunefromliability for any prior attacks on Melissa if he were not the murderer. Linton’s interpretation is consistent with the words and context ofDetective Stotz’s and DDA Mitchell’s prior statements: Specifically, after Linton indicated during the bedroom interview that he had not seen Melissa on the day ofthe murder, Detective Stotz asked him if he had ever kissed or made out with - Melissa and advised him that he would notget in trouble for having done: so. .(5 SCT 67, 81.) When Linton asked why this was so, Detective Stotz replied, “Well, because, frankly, becauseshe’s no longer living, y’know.” (5 SCT 81.) And when Linton later expressed concern that his nervousness would “set . . . off a polygraph test, DDA Mitchell responded,“if you and Melissa had some problemssexually in the past and you’re trying to hide that, that might set it off, so you’d haveto tell us about that ahead of time. Whatwe’re interested in, the murder of course, we don’t care about anything else that happened, if you and Melissa, she stopped coming over here, ‘kay, that’s something that’s water under the bridge now. We’re looking for only the murderer, if you didn’t do that, take a polygraph and prove it....” (5 SCT 86.) Thus, at the time Linton waived his Miranda rights, he was not laboring under the misimpression that he would not be subject to punishmentfor the prior attack if he were the murderer. That Detective Stotz responded to Linton’s “That’s until today”statement by saying, “No,that’s got nothing to do with it,” could not alter Linton’s understanding of the alleged promises at the time of his earlier Miranda waiver. Accordingly, Linton validly waived his Mirandarights. 43 D. Linton Voluntarily Confessed to the Prior Attempted Rape - Linton contendsthat false promisesofleniency, the length and nature of the interrogation, and his personalcharacteristics rendered his confession to the prior attempted rape involuntary and, thus, inadmissible. (AOB 69- . 92.) The record supports thetrial court’s contrary determination. ‘ Both the state and federal Constitutions bar the admission of involuntary confessions. (People v. Holloway (2004)33 Cal.4th 96, 114.) “The prosecution has the burden of establishing by a preponderanceofthe evidence that a defendant’s confession was voluntarily made.” (Peoplev. Carrington (2009) 47 Cal.4th 145, 169.) “Whether [a] confession was voluntary depends upon thetotality of the circumstances.” (Jbid.) Factors relevant to the determination include: “‘the crucial elementofpolice - coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’” (People v. Williams (1997) 16 Cal.4th 635, 660,alterations in original, quoting Withrow v. Williams (1993) 507 U.S. 680, 693-694 [113 S.Ct. 1745, 1754, 123 L.Ed.2d 407].)° | © In his brief, Linton argues that “[a]ll roads in this case lead back to the same core issue about which the Supreme Court in Corley [v. United States (2009) 129 S.Ct. 1558, 173 L.Ed.2d 443] was so concerned: Whether the police and the district attorney violated [Linton’s] Miranda rights and coerced a confession from him about a prior crime in which he was alleged to have entered the Middleton houselate at night and tried to rape Melissa.” (AOB 53.) The issue in Corley was “whether Congress intended [18 U.S.C.] § 3501(a) to sweep McNabb-Mallory's exclusionary rule aside entirely, or merely meant § 3501(c) to provide immunization to voluntary confessions given within six hours of a suspect’s arrest.” (Corley v. United States, supra, at p. 1564.) The Corley Court ultimately held “that § 3501 modified McNabb-Mallory without supplanting it.” (/d. at p. 1570.) Thus, Corley does not support Linton’s claim that his confessionto the prior (continued..°) 44 “The question posed by the due process clause in cases of claimed psychological coercion is whetherthe influences brought to bear upon the accused were such as to overbear petitioner’s will to resist and bring about confessionsnot freely self-determined.” (People v. McWhorter (2009) 47 — Cal.4th 318, 347.) Although coercive police conduct is required to establish that aconfession was involuntary, such conduct does not require a finding of involuntariness. “The statement and the inducement must be causally linked.” (Id. at p. 347.) Thus,“‘[w]here a person in authority makesan expressorclearly implied promise of leniency or advantage for the accused whichis a motivating cause ofthe decision to confess, the confessionis involuntary and inadmissible as a matter of law.’” (People v. Williams, supra, 16 Cal.4th at p. 660, quoting People v. Boyde (1988) 46 Cal.3d 212, 238.) Conversely, where a promise of leniencyis not the motivating cause of the confession, suppression is not required. (People v. Williams, at p. 661.) | “On appeal, the trial court’s findings as to the circumstances surrounding [a] confession are upheld if supported by substantial evidencef.]” (People v. Massie (1998) 19 Cal.4th 550, 576.) A “trial court’s finding as to the voluntariness of the confession is subject to independent review.” ([bid.) Asdiscussed, during the bedroom interview, neither DDA Mitchell nor Detective Stotz promised Linton immunity for prior sex crimes ifhe were the murderer. Linton indicated that he understood this was so the next day when,after Detective Stotz informed him “you’re not goingto get in trouble for what happened two weeks ago”and “like I told you last night, (...continued) attempted rape should have been suppressed because it wasobtainedin violation ofMiranda or wasinvoluntary. 45 that’s water underthe bridge,” Linton responded, “That’s until today.” (5 - "SCT 150.) . _. Detective Stotz replied: ‘No,that’s gotnothing to do with it, I just need to knowwhy she would see you and why she would run away from you screaming like that andit’s kind of odd for a neighbor wholived there for six years. For instance, ifmy neighbor walked into my house that I’ve known for six years, I wouldn’t just run away screaming and I’m sure you... . (5 SCT 150-151.) Linton responded,“She was,she wasbarely screaming, she just ran to her parent’s room.” (5 SCT 151.) Detective Stotz then asked Linton several questions about the murder. (5 SCT 151-157.) By the time Detective Stotz made the above-quoted commentsto Linton,Linton had already implicitly and expressly confessed to entering the Middleton’s house without permission and strangling Melissa to death. Detective Stotz had also already advised Linton, in response to his question about whether he would receive the death penalty, that he only made recommendationsto the district attorney’s office and that the district attorney’s office decided the charges and penalties to seek. (1 SCT 71, 74, 80, 82; 5 SCT 146-149; 5 RT 548-549, 654-655, 658-659.) Thus, rather than promising leniency, Detective Stotz’s statements informed Linton why he needed to know about what happened two weeksearlier and that Linton would not be getting into any moretrouble for any prior crimes than he was already in for murdering Melissa. It appears that Linton recognized that Detective Stotz’s commentsnearthestart ofthe interrogation were not a promise of leniency, because after the interrogation ended, he asked | Detective Stotz something to the effect of “What now? Am I going to be sentenced to death?” (1 SCT 82.) Thus, none of the challenged statements were promises ofleniency. 46 This Court’s recent decision in People v. Davis, supra, undermines Linton’s contrary position. In Davis, after the defendant confessed to murdering the victim, the officer encouraged him to “getit all out in the open”and “getit off [his] chest,” and to admitany illegal sexual conduct because “[i]t ain’t going to makea difference to anything that happen.” (People v. Davis, supra, 46 Cal.4th at p. 600, alterations in original.) In an interview two dayslater, the officer again encouraged the defendantto say whether he sexually assaulted the victim, because “[i]t ain’t gonna make a hill ofbeansas far as what goes onifyou gototrial.” (/bid, alteration in original.) This Court rejected the claim that the officer’s comments were promises of benefit or leniency,noting the officer “‘said nothing beyond the obvious’ [citation], in that defendant’s crimes, involving the kidnap and murderof a child, made him eligible for the death penalty.” ([bid.) This Court further notedthat the officer correctly implied that evidence,or a lack of evidence, of sexual assault would not have changed that circumstance, and that the “[d]efendant himself acknowledged that he knew hefacedthe death penalty and even admitted he‘deserved’it.” Ibid.) Thus Davis supports the trial court’s ruling here. Moreover, even if one or moreofthechallenged comments here were construed as promises of leniency or benefit, they did not motivate Linton to confess to the prior attempted rape. The bedroom interview took place around 8:15 p.m. on the day of the murder andlastedthirty to forty-five minutes. Detective Stotz told Linton that he would notget in trouble for what happenedtwoweeksearlier and made the “water underthe bridge” and “No,that’s got nothing to do with it” statements around 9:50 a.m.the next day, just over five minutes into the interrogation. (People’s Exh. 1 in Support of Suppression Motion; 1 SCT 39; 5 SCT 150.) As discussed, by this time, Linton had already confessed to strangling Melissa both in the police car andatthe station, and had been advised that the District 47 Attorney’s. Office, not Detective Stotz, decided what chargesto file and penalties to seek. (1 SCT 71, 74, 80, 82; 5 SCT 146-149; 5 RT 548-549, 654-655, 658-659.) After Detective Stotz made the above-referenced comments, Linton continued to deny any sexual interest in or sexual assaults on Melissa. (5 SCT 79-83, 86, 155-159, 167, 177, 197, 199, 201, © 203-205, 213, 214, 226-227, 229-230.) It was not until about 3:56 p.m., more than six hours after Detective Stotz’s “water under the bridge” comment, that Linton admitted that he attempted to rape Melissa two months before the murder. (5 SCT 233; People’s Exh. 1 in Support of | Suppression Motion.) And Linton’s concern atthat time appearedto be having this confession memorializedontape, not whether he would be subjectedto additional punishmentfor the offense beyond what he would - receive for the murder. (5.SCT 233.) Indeed, Linton expressed the same — concern before Detective Stotz even made the post-Miranda comments | about whether Linton would getin trouble for ariy prior sex crimes. (5 SCT 149-150.) Additionally, Linton stated at the end of the interview that he had not been threatened or coerced and explained whyhespoke to the police — “I thoughtI should report myself.” (5 SCT 238.) And, as noted earlier, after the interview ended,Linton asked Detective Stotz ifhe would be sentenced to death (1 SCT 82), indicating he understood that he would notbegetting morelenient treatmentas a benefit for having confessedto the prior attempted rape. Thus, the record showsthat Linton’s confession to the prior attempted rape was not prompted by any implied promises of leniency made during the first segment ofthe interview. (See e.g., Peoplev. Carrington, supra, 47 Cal.4th at pp. 170-171 [defendant’s confession to murder and burglary in Palo Alto was not prompted by officer’s comments about a burglary in Los Altos where comments were madean hour before the confession and confession was apparently motivated by officer’s 48 confrontation of defendant with incriminating evidence found at her home and other evidence linking her to Palo Alto murder]; see also People v. Rundle, supra, 43 Cal.4th at pp. 118-120, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [taped confession to third murder-wasnot the product of allegedly coercive representation about beneficial psychiatric treatment where defendant admitted third murder before taped interview, never believed he would receive “benefits” mentioned, and admitted his desire to confess was based on his beliefthat a _ person should cooperate with lawenforcementandtell what he or she knows about the crime]; compare People v. Jimenez (1978).21 Cal.3d 595, 611-612, overruled on another ground in People v. Cahill (1993) 5 Cal.4th - 478, 510, fn. 17 [finding confession involuntary where defendanttestified that he confessed because ofthe officer’s comments].) Linton’s argumentsthat the length ofthe interrogation and other circumstances rendered his confession involuntary fare no better. “A police | interrogation that is prolonged may be coercive under some circumstances.” (People v. Carrington, supra, 47 Cal.4th at p. 175.) Here, the interrogation wasnot prolonged, and the circumstances were not coercive. Onthe afternoon ofthe murder, Detective Stotz questioned Lintonat his front door for about 10 minutes alone and about 15 minutes when he _ returned with Detective Lynn. Later that evening, around 8:15 p.m, Detective Stotz and DDA Mitchell questioned Linton in his bedroom for about 30 to 45 minutes. (1 SCT 10, 13-14, 41, 44; 5 SCT 67-88: 7 RT 771.) The next day, in accord with Linton’s requestthat he not be contacted until after his parents left for work, Detective Stotz called Linton after 730 a.m. Around 8:45 a.m., Detectives Stotz and Lynn picked Linton up at his home in an unmarkedpolice car. (1 SCT 39, 49-50; 5 RT 549- 550.) They arrived at the police station about 9 a.m. (5 RT 550.) In route, Linton spontaneously and almost immediately confessedto killing Melissa 49 and apologized for wasting the officers’ time, explaining that he did not wantto confessin front of his parents. (1 SCT 22, 52, 54,69-70; 5 RT 654-655.) About9:45 a.m., Detective Stotz advised Linton ofhis Miranda. rights, which he waived, and questioned him for 20 minutesin a detective’s office. (1 SCT 35, 37, 39; 1 RT 166; 5 RT 655; 5 SCT 162.) After a 35-minute break, Detective Stotz and DDA Chessellinterviewed Linton for 30 minutes in the detective’s office. (5 SCT 162, 216-217; 5 RT 655.) After a one hour and twenty-five-minute break, Dr. Rath interviewed _ Linton about the murder, the prior attack, and other subjects for one hour and five minutes in an interview room. (5 SCT 90; 2 RT 148; 5 RT 592, 655.) Linton then spent onehour and twenty-five minutes taking the 7 MMPItest. (5 SCT 125.) After a twenty-five-minute break, Detective Stotz and Sergeant Rodriguez interviewed Linton for twenty minutesin the detective’s office. (5 RT 655; 5 SCT 217.) Thus,although Linton arrived at the police station at 9’a.m. and was notarrested until 4 p.m., his post- Miranda questioning by law enforcementofficers lasted only 70 minutes and Dr. Rath only questioned him about the crimes and othersubjects for 65 minutes. The questioning during the interviews was low key, not aggressive. | (People’s Exhs. 1 & 2 in Support of Suppression Motion.) Asset forth above, the interviews took place during normal waking hours and there were breaks, somelengthy, in between segments. While Linton suggests he wasfatigued during the interview (AOB 92), when DDA Chessell asked Linton during the 10:40 a.m. segmentofthe interview if he was getting tired, Linton responded, “I just don’t like questions of course.” (5 SCT 187.) And Dr. Rath said he saw nosignsof fatigue during his evaluation of Linton that afternoon. (9 RT 973.) Linton also appearedto be lucid throughoutthe interviews and evaluation. (9 RT 978; 5 SCT 145-23 8.) 50 While Linton stated he-was tired ofbeing questioned (5 SCT 187) and- being asked the same questions over and over again (5 SCT 216), he never asked to terminate the interview. (See People v. Stitely (2005) 35 Cal.4th - 514, 535 [suspect must unambiguously invoke his right to remain silent].) Additionally, there is no indication that Linton, whoalreadytacitly confessed to murder before the post-Miranda interrogation began, was induced by fear to confess to the attempted rape. Indeed, when Lintonfirst arrived at the police station, he accused Detective Lynn of laughingat him, and when Detective Lynn denieddoing so, Linton responded, “Yes you a are.” (9 RT 1068.) His responses to some ofthe questions during the | interviewssimilarly showed that Linton wasnotintimidated by the interviewers. For example, when Detective Stotz asked Linton if he raped Melissa on the day ofthe murder, Linton denied doing so and asked, “Don’t wouldn’t you have found something in there?” (5 SCT 156.) When Detective Stotz responded that the coroner’s office would likely check — Melissa’s body the next day, Linton replied,“I think you would have found it out by now.” (5 SCT 156.) And when Detective Stotz disagreed, Linton commented, “You didn’t plant something.” (5 SCT 156.) Similarly, when Detective Stotz asked Linton if he wasa thief, Linton replied, “Do I look like I have, if I was a thief, I’d probably bea lot better off, I’d have a car.” (5 SCT 160.) During the final segmentofthe interview, after Linton confessed to the prior attempted rape, Detective Stotz asked him if he would have raped Melissa on the day of the murder if he had had the - chance. Linton replied, “No, I don’t think I would have. I had the chance the first time, didn’t I?” (5 SCT 237.) | The police also provided Linton basic amenitiesat the station. Detective Stotz believed that he provided Linton a cup of coffee, a candy bar and some sodas during the day. (1 SCT 53; 5 RT 580.) Theinterview transcript reflects that around 11:20 a.m., Detective Stotz offered Linton a. 51 soda and DDA Chessell asked him, “Want somethingto eat probably? You look hungry.” (5 SCT 216-217.) During the 3:40 p.m. interview segment, Linton declined a glass ofwater and indicated he was not hungry. (5 SCT 232.) Linton wasalso given bathroom breaks during the day, with an escort. (5 RT 594, 655.) As Linton points.out (AOB 90), during the courseofthe two days, the interviewers asked him morethan fifty questions abouthis sexual interest- in Melissa and any sex acts or attempted sex acts he may have committed on her. (5 SCT 79-83, 86, 155-159, 167, 177, 197, 199, 201, 203-205, 213, 214, 226-227, 229-230.) But they also questioned Linton onother subjects during these interviews. (5 SCT 67-87, 90-125, 145-238.) Furthermore, Lintonlied several times about having the Middleton’s house keys before admitting that he twice used them to enter the Middeltons’ home and threw themin his trash can after the murder. (5 SCT 148, 164, 174-175.) Thus, that Linton did not readily admit the prior attemptedrape does not mean that the police coerced a false confession through repeated questioning. Linton also claimsthat Detective Stotz and Sergeant Rodriguez engaged in the “good cop, bad cop”routine during the final segment ofthe interview to induce him to confessto the prior attempted rape. (AOB 90.) “[T]he use ofthe ‘good cop, bad cop’ interview techniquein itself’ is not “a basis for exclusion of a confession.” (Pierce v. State (Ind. 2002) 761: N.E.2d 821, 824.) But the routine may render a confession involuntary in some circumstances. (See People v. Esqueda (1993) 17 Cal.App.4th 1450, 1483-1487 [finding confession involuntary where officers using a variation of the classic “‘Mutt and Jeff” routine of police interrogation, questioned murder defendant for eight hours (including a pre-Miranda interrogation) using lies, accusations, exhaustion, isolation, and appeals to defendant’s manhoodandreligious beliefs].) 52 Here, Detective.Stotz and Sergeant Rodriguez did not employ the “good cop, bad cop”routine. (5 SCT 217-238.) Detective Stotz’s tone became more aggressive during the final segmentofthe interview than it _ had beenearlier. (6 RT 776; People’s Exh. 1 in Support of Suppression Motion.) But Detective Stotz could hardly be characterized as playing the role ofthe “bad cop” to Sergeant Rodriguez’s “good cop.” Detective Stotz told Linton that he thought he either had sex with Melissa or masturbated after he killed her and that he tried to. rape Melissa a few weeks or months earlier. (5 SCT 226-227, 229.) Detective Stotz advised Linton that the - soonerhe toldthe truth, the sooner he would turn the tape recorder off and they would be on their way. (5 SCT 323.) Sergeant Rodriguez did not contradict these statements. Instead, he explained to Linton that they were - asking him question about what he did to Melissa because they knew he. wasnottelling the entire truth and thathe would feel better if he did so: (5 | SCT 232.) Moreover, evenifthe two officers had engagedin the “good cop, bad cop”tactic, the interview here was not comparable to the one in Esqueda because, amongotherthings, the interviewers did not appeal to Linton’s manhoodorreligious beliefs and the pre- and post-Miranda ‘questioning totaledless than three and a halfhours. Furthermore, although Detective Stotz told Linton during thefinal interview segment, “The sooneryoutell methe truth, the sooner I’1l turn this machine offand the sooner we’ll all be on our way” (5 SCT 232), this did not render Linton’s subsequentconfession to the prior attempted rape involuntary (Contra AOB 85-89). This is because Detective Stotz’s comment merely informed Linton ofa benefit that would naturally flow from telling the truth, and did not indicate that the interview would - continue until Linton confessed to some type of sex crime. Linton further suggests Dr. Rath contributed to the coercive atmosphere by “softening [him] up” to confess about the prior incident and 53 his. sexual intent, by questioning him about his sexual motivation, and because he was a mental health care professional. (AOB81-82.) Contrary to Linton’s assertion, Dr. Rath wasnot “brought in”.to try to getLinton to admit a sexual interest in Melissa or that he raped or attempted to rape her. (AOB 90.) He was hired by the prosecution to perform. a psychological — evaluation. (2 RT 144, 153.) Atthestart ofthe evaluation, Dr. Rath informed Linton that he was a psychologist, that he would be evaluating him,that he was notthere to treat him, and that anything Linton told him would not be confidential. (2 RT 153-156.) Dr.Rath also told Linton he did nothave to talk to him and could end theevaluation at any time. (2 RT 157-158; 9 RT 1027-1029; 5 SCT 90.) Linton appeared to understand what Dr. Rath told him. (2 RT 156-158.) Thus, any misapprehension Linton may have had about Dr.Rath’srole as a mentalhealth care provider was dispelled at the start of the interview. (See e.g., People-v. Rundle, supra, 43 Cal.4th at p. 122.) Asfor Linton’s “softening up” argument,Linton forfeited this claim by failing to raise it in this context below. (People v. Gurule (2002) 28 Cal.4th 557, 602.) Moreover, while thisCourt has found a Miranda waiver invalid based on “a clever softening-up of a defendant through | disparagement ofthe victim and ingratiating conversation” (People v. Honeycutt (1977)20 Cal.3d 150, 160, italics in original), Linton cites no authority that “softening-up”invalidates a confession after a valid Miranda waiver. In any event, in contrast to Honeycutt, Dr. Rath neither disparaged Melissa nor engaged in ingratiating conversation with Linton. Instead, Dr. Rath asked Linton about his medicaland social history and then questioned him aboutthe crimes and his mental state at those times. (5 SCT 90-125.) After a defendant has waivedhis or her Mirandarights, police may | properly exchange information, summarize evidence, outline theories ofthe crime, confront with contradictory evidence, and debate with the suspect.- 54 (People v. Holloway, supra, 33 Cal.4th at p. 115.) They mayalso advise a suspect that he would feel better if he tells the truth and ofother benefits that will naturally flow from doing so. (People v. Jackson (1980) 28 Cal.3d_ 264, 299, disapproved onanotherpoint in Peoplev. Cromer (2001) 24 - Cal.4th 889, 901, fn. 3.) Thatis all that interviewers did here. (5 SCT 90- 125, 145-238.) Consequently, neither the length ofthe interrogation northe circumstances rendered Linton’s confessions involuntary. (Seee.g., People v. Carrington, supra, 47 Cal.4th at p. 175 [questioning over courseofeight hours did not appear to overbear defendant’s will to resist where questioning wasneither aggressive nor accusatory, there were no indications the statement was fear-induced, defendantappeared lucid throughoutinterrogation, spoke with confidence, gave coherent answers, and never asked to terminate interview, and police repeatedly offered food. and beverages, provided four breaks and allowed defendant to meet privately with her partner]; People v. Hill (1992) 3 Cal.4th 959, 981-982, overruled on anotherpointin Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [rejecting claim length ofinterrogation rendered statements involuntary and inadmissible where actual interrogation was only eight hours, which was dividedin five sessions, defendant was given breaks between sessions, sessions took place during normal waking hours, defendant was provided food, beverages and restroom breaks upon request, final session lasted only three hours and defendant wasnot subjectedto abusive or improperinterrogation techniques]; compare Ashcraft v. Tennessee (1944) 322 U.S. 143, 153-154 [64 S.Ct.921, 88 LEd. 1192] [confession compelled where defendant was questionedby relays of officers for 36 hours without any opportunity for sleep].) Linton also points to his personalcharacteristics and physical and mental conditions as additional circumstancesthat rendered his confession involuntary. (AOB 89-91.) A suspect’s age, education, degree of literacy, 55 familiarity with the criminal justice system, maturity, physical condition and mental health are considered in determining the voluntariness ofa confession. (People v. Boyette (2002) 29 Cal.4th 381, 412; People v. Williams, supra, 16 Cal.4th at p. 660.) But because coercive conduct onthe part of the state is required to establish a due process violation, a statement cannot be deemedinvoluntary based solely on a suspect’s condition. (People v. Weaver (2001) 26 Cal.4th 876, 921.) As discussed above, there was no coercive police conduct. Moreover, Linton’s personal characteristics did notrender him particularly susceptible to custodial interrogation. Linton was 20 yearsold at the time ofthe interview and a high school graduate. He appeared to Detective Stotz to have a normalIQ and did not appear to be mentally immature, although he looked like he was 15or 16 years old. (1 SCT 51-52, 78, 95.) Linton said helast used a controlled substance — “speed” — a weekbeforethe interview. (5 SCT 235.) Linton had no prior experience with the criminal justice - system. But he demonstrated some understanding of the system when he asked aboutthe death penalty both before and after the interview, and asked about forensic evidence before and during the interview. (1 SCT 74; 5 RT 654, 661, 667; 6 RT 683-684, 703.) Linton’s responses also indicated he _ understood the proceedings andthe questions posed to him, and that he was not suffering from any mental defect or condition. (5 SCT 145-23 8.) And, as discussedearlier, his lies about the Middleton’s keys and cocky responses to some questionsindicated that he wasnotparticularly vulnerable to police pressure despite his relative youth, lack of experience with the criminaljustice system, and lack of generallife experience. As Linton notes, he told Dr. Rath during the evaluation that he was | _ depressed and had a headache. (5 SCT 112-113.) But Dr. Rath foundthat Linton was not cognitively impaired during the evaluation and thathis 56 memory was notaffected by his depression.’ (8 RT.978.): And there is no . indication that the interviewers exploited these conditions. . Linton also told Dr. Rath he was in special education in third grade, - had been diagnosed with Attention Deficit Disorder in the fifth grade, and had been physically disciplined by his father until age 16. (5 SCT 96-97.) It does not appear from the record that anyofthese circumstances affected - Linton during the interrogation, that anyone other that Dr. Rath knewof them at that time, or that any ofthe interviewers exploited them. Asfor his emotional state, Linton sobbed and shed a ‘couple oftears in the police car. But he did not cry at the station, although he appeared to be on the verge of tears before he admitted the attempted rape. (1 SCT 73; 5 ~RT 604-605; compare AOB 92.) While-Linton may have felt vulnerable, — there are no indications ofpolice coercion. Accordingly, substantial evidence supportsthe trial court’s determination that Linton’s personal characteristics and mental condition did not render his confession involuntary. (See e.g., People v. Dykes (2009) 46 Cal.4th 731, 753 [rejecting claim that defendant’s youth and lack of experience with criminal justice system rendered his confession involuntary where there wasno indication officer exploited these circumstances and defendantstated he was freely and voluntarily speaking]; People v. Richardson (2008) 43 Cal.4th 959, 993 [rejecting due process. 7 In discussing his mental condition, Linton cites Dr. Rath’s testimony as support for the proposition that “[h]e may have had a dissociative disorder.” (AOB 92.) Defense counsel asked Dr. Rath what Linton’s statements that he wokeup in front ofthe refrigerator and in the front yard said about him. (8 RT 983.) Dr. Rath responded,“It could say any numberofthings. That he has a seizure disorder. It could say that he is lying. It could say that he was afraid and wastrying to get out oftrouble. It could saythat he has a dissociative disorder. I could probably list a dozen things it could say.” (8 RT 983.) 57 claim where officers had no reason to know of defendant’s lower IQ and defendant’s responsesto interrogation questions did not indicate a mental defect]; People v. Boyette, supra, 29 Cal.4th at p. 412 [substantial evidence supported trial court’s determination that defendant’s statements were voluntary despite his age, limited education and maturity]; compare Reckv. Pate (1961) 367 US. 433, 441-442 [81 S.Ct. 1541, 1546-1547, 6 L.Ed.2d 948] [holding confession coerced where 19-year-old suspect with subnormalintelligence and no prior experience with police was held incommunicado for almost eight days, was interrogated each day for six or seven hours by groupsofofficers, wasprovided inadequate food, was hospitalized twice, and wasinterrogated at one point until he vomited blood].) In arguing to the contrary, Linton relies upon expert opinion. testimony quoted in an unpublished district court opinion for the proposition that his confession was a stress-compliant false confession, a well-recognized type offalse confession that arises “when persons who are exceptionally vulnerable to interpersonal pressure and are unableto cope with the intensity of even a non-coercive interrogation are put in a position from whichit appears to them that the only wayto endthe intolerable pressure they are experiencing is to comply with the interrogator’s demand for a confession.” (AOB58,citing Lunbery v. Hornbeak (E.D.Cal. 2008, case no. CIV 8-07-1279 GGH (P) 2008 WL 4851858, 10.)® Linton’s reliance on Lunbery is misplaced, because the evidence beforethetrial court was that Linton wasnot exceptionally vulnerable to interpersonal pressure and was not unableto copewith the intensity of even a non- 8 Asdiscussed post, Linton unsuccessfully sought to introduce the testimony of the expert whotestified in Lunbery, sociology professor Dr. Richard Ofshe. 58 coercive interrogation. Indeed, Dr. Rath testified that Linton’s MMPI profile did not indicate that he was unable to withstandthe pressure of an in-custody interrogation. (8 RT 974.) Healsotestified that Linton was generally cooperative during hisinterview, but not totally submissive. (8 RT 936.) And while Dr. Rath acknowledged that someone with Linton’s MMPIprofile would perceive an interrogation as stressful and the ~ possibility ofthe death penalty would increasethe stress, he opined an interrogation wouldbestressful for anyone. (8 RT 946-952.) Again, Linton’s responses, particularly his repeated lies, indicated he was not particularly vulnerable to interpersonal pressure or simply complying with - the interviewers’ demands. In summary,after Linton spontaneously confessed to killing Melissa, and after he was advised ofand waived his Mirandarights, he was interviewedfora total of less than two and onehalfhours during normal waking hours. He was given breaks between interview segments, including one lengthy one. He was afforded food, beverages, and bathroom breaks, _ and was notrestrained at any time until his subsequent arrest. The interviews were conducted in a detective’s office and an interview room. The questioning was low-key, not aggressive or loud, and involved nomore than two interrogators at any given time. Linton was a high-school graduate who appeared to be of normalintelligence and not mentally immature. He was not underthe influence of any controlled substances during the interrogation andnot cognitively impaired. In light of the totality of these circumstances, Linton’s statements were voluntary and their admission did not violate due process. 59 E. Any Error in Admitting the Attempted Rape Confession Would Not Require a Reversal of the MurderConviction, the Burglary-MurderSpecial Circumstance, and the Forcible Lewd Act Special Circumstance Even assumingthetrial court erredin admitting Linton’s attempted | rape confession,it would not require a reversal ofthe murder conviction, - the burglary-murderspecial circumstance, and the forcible lewd act-murder special circumstance. Linton confessedto killing Melissa in the police car » and just after he was advised of and waived his Miranda rights. Linton does not appear to challenge the admissibility ofthese confessions. In addition to these confessions, the jury heard evidence that Melissa’s shorts were unzipped whenthe police found her. The day after the murder, the police found the Middletons’ house keys, Melissa’s ring, and a pair of Melissa’s soiled underwear in Linton’s trashcan. This underwear had Linton’s semen on them,but not in the crotch area, and Linton’s DNA was found on Melissa’s fingernail clippings. The Middletons’ house was not disturbed on the day of the murder and Richard and Linda Middleton indicated they neglected to get their keys back from Lintonafter the last time he tookcare oftheir pets. In light ofthis evidence, any error in admitting Linton’s confession to the prior attempted rape was harmless beyond a reasonable doubtas to the murder and the burglary-murder and lewd-act-murderspecial circumstances. (Cf. People v. Davis (2005) 36 Cal.4th 510, 555 [error in admitting brief statement harmless beyond a reasonable doubtin light defendant’s many other damaging admissions made on tape recording].) In arguing to the contrary, Linton points to the length ofthe jury deliberationsas an indicatorthat this was a close case. (AOB 99-103.) The . parties gave their opening statements on February 9, 1999. (12 CT 3283.) The jury began deliberating a month later, at 12:35 on March 9, 1999, (12. 60 CT 3439.) The jury returnedits verdict after two more days ofdeliberation.: (12 CT 3440-3441.) Giventhe length ofthe case and the complexity of the issues, deliberations oftwo and a halfdaysdo not suggest this was a close case. (People v. Cooper (1991) 53 Cal.3d 771, 837 [jury deliberations of 27 hours overthe courseof seven daysincapital case that lasted more than three months “demonstrates nothing morethanthatthe jury was conscientious in its performance ofhigh civic duty”]; People v. Tamborrino (1989) 215 Cal.App.3d 575, 587 [declining to speculate based on record before it that jury’s request forreadback of defendant’s testimony “implied the jury believed it was a close case orit had some question about whom to believe”].) AsLinton notes (AOB 100), jury questions can indicate a case is a close one. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1295.) Given the relatively short deliberation-period, that inference should not be drawn from the questions the jury asked in three notes, which stated: (1) “What is the definition of ‘cross admissibility.’” “Is it, cross admissibility, applicable both ways, 10/1/94 for11/29/94 and 11/29/94 for 10/1/94?” (13 CT 3606); (2) “Is it to far to speculate whether Melissa let [Linton] into the house?” “Please clarify if speculation can be used in determining innocence in this case?” “Whatis the definition of speculation?” “A juror believes the entire interview is a lie andis interjecting speculation, where do we go from here?” (13 CT 3608); and (3) “When does the waiver of your Miranda rights take place? Isit after they are read to you and you respondin the affirmative? Oris it after you sign the form? If there has to be a sign[ed] document to waive yourrights, then is the taped interviewstill considered evidence when yourrights are waived at the end ofthe . interview?” (13 CT 3610.) Moreover, and contrary to Linton’s suggestion (AOB 100), that one juror believed “the entire interview [was] a lie” (13 CT 3608), does not suggestthat the error in admitting the attempted rape - 61 confessionwas prejudicial. If anything, the statement suggests that one juror may have determinedthere was sufficient evidence to convict without the prior attempted rape confession.” As discussedearlier,this is true with respect to the murder and the burglary-murder and lewd-act-murder special circumstances. Accordingly, any error does not warrant a reversal ofthe murder conviction, the burglary-murder and lewd-act murder special circumstances, and the death judgment. * In his harmless error analysis, Linton discusses what he believesis the origin and progressionofthe prior crimes evidence. Heessentially . argues that Melissa’s parents’ report of her nightmare was the genesis, that law enforcementofficials assumed that the nightmare and sleepwalking incidents were onein the same,andthat they spent November 30th trying to persuade him “to admit a sexual motivation for one, the other, or both.” (AOB 96-98.) Elsewhere, Linton similarly argues that “[t]his case encompasses a compelling record that law enforcementauthorities, led by DDAMitchell, made an assumptionthat [Linton’s] strangulation ofMelissa was sexually motivated and then worked backwardsto create evidenceto fit - their theory[,]” and that “the prior incident may have been created or embellished as a result of improper police techniques ... .” (AOB 241.) Linton’s arguments overlook Detective Stotz’s testimony at the suppression hearing that he returned to Linton’s housea secondtime onthe day ofthe murder because ofwhat he heard from one ofMelissa’s neighbors. Specifically, a 13-year-old neighbor told Detective Stotz that Melissa had confided in her that Linton attempted to rape and chokeher twoto three weeksbefore the murder. (1 SCT 13-14; 5 RT 613.) While this hearsay testimony was only admitted at the suppression hearingto explain Detective Stotz’s actions (1 SCT 13; 5 RT 613), and wasnotoffered attrial (4 RT 490, 526-527), it refutes Linton’s assertion that there was “no evidence that at the point the authorities interrogated [him] on November 29, they had additional information about a prior incident” (AOB 97); his argumentthat law enforcementofficials simply wanted to create evidence to fit their theory of the case is speculation. 62 F. The Trial Court Properly Exercised Its Discretion in Excluding the Proffereda Expert Testimony on Coerced Confessions. Priorto trial, Linton filed a motion to introducethe testimony ofDr. Richard Ofshe regarding coercive interrogation techniques and false | confessions. (3 CT 544-701 [motion with attach., Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U.L.Rev. 979, 1117 (1997)].) At trial, Linton soughtto introduce testimony on the same subject through Dr. Leo. According to Dr. Leo’s declaration,his trial testimony would address “the following general topics: the use of influence, persuasion and coercion during interrogation; how certain police interrogation techniquesaffect the decision-making of custodial suspects; why certain psychological techniques are coercive andtheir likely effects; how and why contemporary police interrogation techniques can lead guilty suspects to make the decision to confess; how and why contemporary police interrogation techniques can lead the innocent to makethe decision to confess; and how to apply generally accepted principles to evaluate the reliability of confessions [and] statements.” (5 SCT 262.) | The prosecutor opposed the defense motion, arguing there was no foundation for such testimony, because Linton had not recanted his confession. The prosecutoralso argued the defense had failed to showthat the subject mater was a valid, accepted area of expertise, or that such testimony would assist the jury. (22 RT 3423-3426, 3428; 23 RT 3589- 3590; 24 RT 3618-3621; 25 RT 3737-3739.) Thedefense counteredthat a recantation was unnecessary and that the testimonyofboth pathologists established that Linton had falsely confessed to wrapping the headphone cord around Melissa’s neck in the manner he described. The defense also 63 countered the prosecutor’s remaining objections. (22 RT 3426; 23 RT 3591, 3603-3606, 3613; 24 RT 3615-3617; 25 RT3734-3736, 3739-3740.) The court determined the pathologists’ testimony was not inherently inconsistent with Linton’s testimony regarding how he choked Melissa with the cord. In this regard, the court noted that both pathologists had acknowledgedthat the presence ofhair between the skin andligature can ~ accountfor the absenceofa circumferentiallineal abrasion. (25 RT 3604- 3605, 3608, 3613; see 18 RT 2699-2700 [Dr. Choi’s testimony regarding hair]; 22 RT 3363 [Dr. Spitz’s testimony on same].) The court ultimately excluded Dr. Leo’s testimony under Evidence Code section 352, because the “very questionable probative value” of his proposed testimony was substantially outweighed by the danger ofundue time consumption. (25 RT 3740.) The court explained that the evidence was “extremely speculative,” because ofthe absence of“any basis or foundation to | indicate” that Linton’s confession was not true. (25 RT 3741; see also 23° RT 3592-3598,3612; 24 RT 3624.) | Linton subsequently challengedthis ruling in his newtrial motion. (14 CT 3753.) The court denied the motion, noting it had reviewedits ruling and determinedit was correct. (37 RT 5776.) 1. Thetrial court properly excluded Dr. Leo’s- testimony under Evidence Codesection 352 Claimsalleging the erroneous exclusion of expert testimony are reviewed underthe deferential abuse ofdiscretion standard. (Peoplev. Curl (2009) 46 Cal.4th 339, 359.) Underthis “standard, ‘a trial court’s ruling will not be disturbed, and reversal ofthe judgmentis not required, unless thetrial court exercised its discretion in an arbitrary, capricious, or patently absurd mannerthat resulted in a manifest miscarriageofjustice.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1004.) 64 - Thetrial court did not abuseits discretion here. Dr. Leo’s declaration indicates that he would not havetestified that Linton’s confession was false. Instead, he would havetestified about interrogation techniquesthat lead both guiltyand innocent people to make the decision to confess. (5 SCT 262.) This is consistent with Dr. Leo and Dr. Ofshe’s article, which recognizes that police interrogation techniques, including promises of leniency, can coerce true and false confessions. (3 CT 561-562, 569, 572, 656.) Asthetrial court observed, Linton did not present any competent evidencethat his confession wasfalse.Consequently Dr. Leo’s testimony would have had minimal, if any, probative value on the issue ofthe veracity of Linton’s confession and would have resulted in an undue consumption of time. Accordingly, the court properly excluded it under Evidence Code | section 352. (See, e.g., People v. Son (2000) 79 Cal.App.4th 224, 241 [upholding exclusion ofDr. Ofshe’s expert testimony because it was irrelevant given the absence of evidence “that police engaged in tactics wearing down Son into making false admissions,” and because a layperson without expertise could easily understand “Son’s testimonial admission that his confessionto [the officer] was false and made only because[the officer] assertedly promised that Son would serve nomore than one year in custody”); cf. People v. Curl, supra, 46 Cal.4th at pp. 357-359 [excluding expert testimony on how inmate informants concoct confessions through information flow where there was no evidence informant wasa repeat inmate informant and no evidence contradicting the informant’s testimony that defendant was the source ofhis information].) 2. The exclusion of Dr. Leo’s testimony did not violate Linton’s constitutional right to present a defense “A defendant has the general right to offer a defense through the testimonyofhis or her witnesses (Washington v. Texas (1967) 388 U.S.14, 65 19 [87 S.Ct. 1920, 18 L.Ed.2d 1019]), but a state court’s application of ordinary rules of evidence-including the rule stated in Evidence Code section 352--generally does not infringe upon this right.” (People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by . People v. Doolin, supra, 45 Cal.4th at-p. 421, fn. 22; accord Holmesv. South Carolina (2006) 547 U.S. 319, 326 [126 S.Ct. 1727, 164 L.Ed.2d 503].) While “the completeexclusion of evidence intended to establishan accused’s defense may impair hisor her right to due process of law, the exclusion ofdefense evidence on a minor orsubsidiary point does not interfere with that constitutional right.” (People v. Cunningham, supra, 25 Cal.4th at p. 999.) The seminal case on the exclusion ofdefense evidence regarding the circumstances of an interrogation is Crane v. Kentucky (1986) 476 U.S. 683 [106 S.Ct. 2142, 90 L.Ed.2d 636]. There, the trial courtexcludedall | evidenceofthe circumstancesofthe petitioner’s protracted interrogation, becauseit found that such evidencewas relevant only to the issue of voluntariness, which wasnot before the jury. (/d.at pp. 685, 690.) The Supreme Court reversed, holding “the blanket exclusion ofthe proffered testimony aboutthe circumstances ofpetitioner’s confession deprivedhim of a fair trial.” (dd. at p. 690.) TheCourt observed that the constitutional right to present a complete defense “would be an emptyone if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidenceis central to the defendant’s claim of innocence.” (/d. at p. 691.) Unlike the trial court in Crane, the trial court here did not make a - blanket exclusion ofall evidence relating to the circumstances ofLinton’s confession. Indeed, the jurors heard the audiotapes of Linton’s post- Miranda interviews with law enforcement and Dr. Rath. (18 RT 2779- 2780; 28 RT 4227.) They also heard testimony from Detectives Stotz and - 66 Lynn, Dr. Rath, and DDA Chessell about the circumstances of the recorded and unrecordedinterviews. (17RT 2626-2637, 2645-1647, 2649-2650; 18 .RT 2744-2771; 19 RT 2796, 2798, 2857-2861, 2870-2873, 2881, 2937, 2978-2979, 2985, 2995; 20 RT 3036-3038, 3040, 3050-3053, 3040, 3050- 3053, 3077, 3080, 3107, 3116-3118; 22 RT 3479-3480: 23 RT 3542, 3545- 3546, 3547; 24 RT 3637, 3668-3669, 3676, 3683-3684.) Additionally, the: defense presented Dr. Rath’s and Dr. Whiting’s testimony about Linton’s mental conditionatthe time ofthe interrogation andhis ability to withstand an interrogation. (23 RT 3500, 3502-3503, 3507, 3512,.3541, 3555-3556, 3561, 3572; 24 RT 3767; 26 RT 3892-3894,391 1-3912, 3931-3934; 27 RT 4121.) Thus, unlike the situation in Crane, Linton was permitted to and did attack the reliability of his confession with evidence regarding the manner and environment in which it was obtained. (See e.g., People v. Ramos (2004) 121 Cal.App.4th 1194, 1204-1207 [exclusion of Dr. Leo’s testimony did not violate Crane where defense counsel extensively cross-examined the interviewing officer about the techniques heused in interrogating defendant and other witnesses, defense had called other witnesses who testified that the same officer had threatened them and attempted to coerce statements from them and the defendant, and jury was aware ofthe circumstancesofthe interrogation based on the videotape].) Linton, however, argues that “[b]ased on Dr. Ofshe’s research, at the very least, the jury should have been informedthat ‘some suspects will [knowingly] give a coerced-compliant false confession’ in response to ‘classically coercive interrogation techniquessuch as . . . promises of leniency.’” (AOB 110, quoting 3 CT 574 [Ofshe & Leo article], ellipsis in AOB..) As discussed, there were no promises of leniency. Moreover, because there was no evidence Lintons’ confession was false, testimony that a promise of leniency can producetrue and false confessions would have had minimalif any probativevalue. (See 3 CT 655-656 [Drs. Ofshe. 67 and Leo’s observationin article that promises of lesser punishmentto a suspect whobelievesthere is sufficient evidence for an arrest and conviction will coerce confessions from the guilty and false confessions from the innocent].) Finally, even ifthere had been evidence of a promise of leniency and false confession, the jury would not have needed Dr. Leo’s testimony to understand that a promise ofleniency can coerce a false confession. (See e.g., People v. Son, supra, 79 Cal.App.4th at p. 241.) | In arguingto the contrary, Lintonrelies primarily relies on United States v. Hall (7th Cir. 1996) 93 F.3d 1337and People v. Page (1991) 2 Cal.App.4th 161. (AOB 108-113.) Neither case supports his position. | In Hall, the district court excluded Dr. Ofshe’s testimony, in part, ~ because it “would add nothing to what the jury would know from common experience.” (United States v. Hail, supra, 93 F.3d at p. 1341.) The Seventh Circuit disagreed: “Dr. Ofshe’s testimony, assumingits scientific validity, would havelet the jury know that a phenomenon knownasfalse confessions exists, how to recognize it, and how to decide whetherit fit the facts of the case being tried.” (/d. at p. 1345.) The court continued,“It was precisely because juries are unlikely to know that social scientists and psychologists. have identified a personality disorder that will cause individuals to make false confessions that the testimony would have | assisted the jury in making its decision.” (/bid.) The Hall court concluded the trial court prejudicially erred in failing to conducta full inquiry into Dr. Ofshe’s scientific knowledge and whetherhis testimony would assist the Jury. (Ibid, citing Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469].) | Hall is not binding (People v. Leonard, supra, 40 Cal.4th at p. 1416), andis distinguishable. Thetrial court here did not exclude Dr. Leo’s testimony becauseit believed that it concerned subject matter that was within the jury’s knowledge. Indeed,thetrial court stated it had reviewed - 68 Evidence Code section 801,'° which governsthe admissibility ofexpert opinion testimony, and was notcertain if it agreed with the prosecutor’s argumentthat Dr. Leo’stestimony was inadmissible underthis section.. The court did agree, however, with the prosecutor’s argumentthat the evidence “washighly speculative, that its probative value,if any,is substantially outweighed by its undue consumption oftime[.]” (25 RT . 3740.) It was for this reason that the trial court ultimately excluded the proffered testimony. (25 RT 3740-3741.) Thus, Hall does not advance Linton’s position. Page does noteither. In Page, the defendant confessed to a murder, recanted his confession shortly thereafter, and testified at trial about the circumstancesofthe interrogation that led him to falsely confess and the recantation. Thetrial court permitted a defense expert on police interrogationsto testify generally about factors that mightlead to a false confession, but did not permit him torelate those factors to the defendant’s statement or to render an opinion concerning the statement’sreliability. . (People v. Page, supra, 2 Cal.App.4th at pp. 175-183.) The appellate court '° Evidence Code section 801 provides: If a witnessis testifying as an expert, his testimony in the form of an opinion is limited to such an opinionasis: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert wouldassist the trier of fact; and (b) Based on matter (includinghis special knowledge, skill, experience, training, and education) perceived by or personally knownto the witness or made knownto him at or before the hearing, whetheror not admissible, that is of a type that reasonably mayberelied upon by an expert in forming an opinion upon the subject to which his testimonyrelates, unless an expert is precluded by law from using such matter as a basis forhis opinion. 69 upheld the trial court’s restriction on the expert’s testimony, noting the jurors were qualified to determine ifthe factors identified by the expert playeda role in the defendant’s confession and whether,in light ofthose factors, the defendant’s confession wasfalse. (People v. Page, supra,2 Cal.App.4th at p. 189.) Page is readily distinguishable because the foundation for the expert testimony that the court determined was missing in this case — some evidence that Linton’s confession was false — was present in Page as Page recanted his confession beforetrial and testified at trial about why he confessed to somethingthat he did not do. Accordingly, the exclusion of Dr. Leo’s testimony did not violate Linton’s right to present a defense. 3. Any errorin excluding Dr.Leo’s. testimony was harmless Even assumingthe trial court erred in excluding Dr. Leo’s testimony, the error was not prejudicial. As discussed above, the exclusion of Dr. Leo’s testimony did notviolate the federal constitution. Consequently, “the proper standard ofreview is that announced in People v. Watson (1956) 46 Cal.2d 818, 836 [Watson] . . . and notthe stricter beyond-a-reasonable- doubt standard reserved for errors of constitutional dimension” set forth in Chapman. (People v. Fudge (1994) 7 Cal.4th 1075, 1103 [error in excluding defense evidence on minoror subsidiary point is reviewed under Watson]; accord People v. Prieto (2003) 30 Cal.4th 226, 247 [error in admission ofexpert testimony warrants reversal only when the error is prejudicial under Watson].) Under Watson, a reversal is required only when “it is reasonably probable the verdict would have been more favorable to the defendant absentthe error.” (Watson,at p. 836.) Asdiscussed, the jury was fully informed ofthe circumstances of the interrogation and Linton’s mental condition at that time. There was no evidence that Linton’s confession was false. Underthese circumstances, it 70 is not reasonably probablethat presentation ofthe generalized information - that Dr. Leo outlined in his declaration would have materially affected the _ jurors’ assessmentofthe credibility of Linton’s confession to the prior attempted rape. Accordingly,a reversalis not required. For these same reasons, a reversal would not be warranted even if Chapman were the applicable harmless error standard. G. The Trial Court Properly Denied Linton’s Request to Call DDA Mitchell asa Witness On April 21, 1998, Linton filed a notice of intent to call DDA . Mitchell as a witness. (1 CT 214-225.) In the notice, Linton asked the court to considerthe propriety ofDDA Mitchell continuingas the trial - prosecutor givenhis participation in the interview in Linton’s bedroom and retention of Dr. Rath. (1 CT 214-221.) On May 26, 1998;the prosecution filed an opposition to what it deemed a recusal motion. (2 CT 305-309.) Lintonfiled replies on June 17, 1998, and August 6, 1998. (2 CT 345-362, 408-411.) At the subsequent recusal hearing, DDA Mitchell testified that he was the “on-call” deputy during the week ofMelissa’s murder. As such, he was responsible for assisting law enforcement. It was in this capacity that DDA Mitchell visited the crime scene with an investigator from his office and interviewed Linton in his bedroom with Detective Stotz. (3 RT 256-257, 327-328.) DDA Mitchell explained that his office’s preference was to assign a case to an on-call deputy whohasrespondedto a crime scene. (3 RT 328.) The decision to charge a murderasa capital offense is staffed and ultimately made by the District Attorney. (3 RT 329.) DDAMitchell recalled telling Detective Stotz before the bedroom interview to keep the questioning low key. (3 RT 256-257.) Hetestified that the gist of the statements that he and Detective Stotz made during the bedroom interview about liability for prior offenses wasthat if Linton were 71 not the murderer, as Linton then contended, he would notget in trouble for anything that happened between him and Melissain the past. (3 RT 295, 300-301.) Linton was not expressly advised that ifhe were the murderer,. he wouldgetinto trouble for prior crimes against Melissa. !! (3 RT 301:) DDAMitchell was not present at any other interview. (3 RT 327.) He was intelephone contact with the police at various times throughoutthe next day. (3 RT 303-304.) He was apprised of“what was being done” and made suggestions as to what to do next and somethings to ask about. (3 RT304, 327.) He also arranged to have Dr. Rath assist in the investigation and specifically instructed Dr. Rath to evaluate Linton. (3 RT 304-306, 325.) The extent ofLinton’s admissions or motivation for the murder played nopart in DDA Mitchell’s decision to hire Dr. Rath. (3 RT 323+ 324.) DDA Mitchell did not believe that he arranged to have DDA Chessell participate. (3 RT 306.) He denied directing theofficers and DDAChessell to focustheir interrogation on whether or not Linton had problems sexually with Melissa. (3 RT 324.) He also denied discussing with the officers, DDA Chessell, and Dr. Rath, the difficulty in establishing corpus for the prior incident. (3 RT 324-325.) DDAMitchell did not direct his investigator to delete from the audiotape ofthe bedroom interview the part in which Detective Stotz told Linton he wouldnotget in trouble if he had kissed, grabbed, touched, or had sex with Melissain the past.'? (3 RT 309-310.) DDA Mitchell was not '! Linton writes that at one point during the defense examination of DDAMitchell, DDA Mitchell “stepped outofhis role as witness and. back into his role as advocate, and objected to the question.” (AOB 129,citing 3 RT 301.) The record indicates then DDA Michelle Levine objected, not DDA Mitchell. (3 RT 301.) * Linton mentionsthe gap in the tape severaltimesin hisbrief. (AOB5, 117, fn. 16, 128, 137.) Beforetrial, Linton filed motions alleging that the prosecution failed to disclose exculpatory evidence and (continued..:) 72 aware that anything was missing from the defense copyofthe audiotape of that interview. (3 RT 310.) | In a minute order dated August 19, 1998, the court denied the defense '. motion to recuse DDA Mitchell. (2 CT 447-448.) The court found that DDAMitchellhad not engaged in any misconductor unethical behavior. Thecourt further stated that, if the defense chose to call DDA Mitchell as a witness, a second DDA could function as the prosecutorin that part ofthe case.’? (2 CT 447-448.) | Towardthe endofthe guilt-phase, defense counsel advised the court that she intendedto call DDA Mitchellas a witness, because he was a percipient witness to the bedroom interview and because he wasa far better witness then Detective Stotz, whom she had impeached on cross (...continued) intentionally or negligently destroyed or lost exculpatory evidence. The motions were basedonthefact that the defense copy of the bedroom interview tape had a 28-second gap onit. During that 28-secondperiod, Detective Stotz made the above-referenced statement that Linton would not get in trouble for prior sex crimes with Melissa. (1 CT 189-192, 282-289: see also 1 CT 216-219.) At a subsequenthearing, the court heard the testimony of a defense expert on audio recordings and the investigator from the District Attorney’s Office who provided a copy ofthe tape to the defense. (3 RT 360-425.) The court found there was no credible evidence that the police or prosecution had engaged in misconductor weregrossly negligentin providing the defective tape to the defense. In this regard, the court noted a copy of a tape with the same defect had apparently been provided to the prosecution. The court further noted that the gap in the tape was clearly apparent to the defenseas early as June of 1997, that it was not uncommon for copies of original tape recordings to be defective or lack the quality of the original tape recording, and that defense counsel could have asked to examinethe original tape at any time. Thus, the court found the defense suffered no prejudice from receipt of the defective tape and denied the defense motion to exclude the evidence. (2 CT 466.) '? On October 1, 1998, the Court ofAppeal summarily denied Linton’s petition for writ ofmandate challenging this ruling. (3 CT 797.) 73 examination. (27 RT 4177, 4179-4180, 4183.) Defense counsel further argued that DDA Mitchell’s testimony was relevant because he made suggestions to the interrogators throughout the day and that, withouthis participation in the interrogation process, the case would not have been a special circumstance murder, because the police would not have hired Dr. Rath and would not have directed questions toward felony murder. (27 RT 4182-4186.) Defense counsel argued the exclusion ofDDA Mitchell’s testimony would violate Linton’s constitutional rights to present a complete defense and to a reliable verdict in a capital case. (27 RT 4186.) DDAMitchellrespondedthat the defense’s proffer was fraught with unfounded speculation and misstatements ofthe evidence, and thathis: testimony regarding the bedroom interview would have been cumulative to | the audiotape and Detective Stotz’s testimony on this subject. (27 RT 4185.) DDA Mitchell further argued that his suggestions to the interviewer were not relevant: what was important was what happened during the interview on November30, which he was notpresentat. (27 RT 4185.) The court denied the defense request to call DDA Mitchell as a witness. (27 RT 4186.) Neither party introduced the audiotapeofthe bedroom interview into evidenceattrial. 1, Thetrial court properly exercised its discretion in excluding DDA Mitchell’s testimony A trial court’s decision to exclude a witness’s testimony is reviewed for an abuse of discretion. (People v. Griffin (2004) 33 Cal.4th 536, 574.) Thetrial court properly exercised its discretion here. “Only in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, defendant has an obligation to demonstrate that there is no other source for the evidence he seeks.” (People v. Garcia (2000) 84 Cal.App.4th 316, 332; accord People v. Guerrero (1975) 47 Cal.App.3d 441, 445 [“the practice of a prosecuting. 74 attorney’s testifying in a caseheis prosecuting - should generally not be approved except under extraordinary circumstances”].) In Garcia, the prosecutor conducted a taped interview ofa police officer in the presence of an investigator. Neither party called the officer who was the subjectofthe interview asa witness. The court of appeal held “thatdefendant’s request to call the prosecutoras a witness was supportedneither by extraordinary circumstancesnorby aninability to obtain the same information from another source,” namely the investigator whowaspresent during the interview. (People v. Garcia, at p. 332.) Like Garcia, DDA Mitchell conducted an interview ofLinton in the presence of another individual, Detective Stotz. Much ofthe interview was taped and a copy of the tape wasprovided to the defense. Thus, any testimony by DDA Mitchell about the bedroom interview would have been cumulative to the tape, which neither party introducedattrial, and thetrial testimony ofDetective Stotz. And anytestimony from DDA Mitchell regarding his reasonsfor participating in the case and his activities behind the scenes had nobearing on the veracity of the confession: only the actual circumstances that Linton experienced did. (See Crane v. Kentucky, supra, 476 U.S. at pp. 690-691; cf. Stansbury v. California (1994) 511 U.S. 318, 326 [114 8.Ct. 1526, 128 L.Ed.2d 293] [any inquiry into whether the interrogating officers have focused their suspicions uponthe individual being questioned (assumingthose suspicions remain undisclosed)is not relevant for purposes ofMiranda]; Whren v. United States (1996) 517 U.S. 806, 813 [116 S.Ct. 1769, 135 L.Ed.2d 89] [“Subjective intentions play no role in ordinary, probable-cause Fourth Amendmentanalysis”].) Linton, therefore, has failed to show that his request to call DDA Mitchell as a witness was supported byeither extraordinary circumstancesor the inability to obtain relevant information from another source. Accordingly, 75 the trial court properly exercised its discretion inprecluding Linton from calling DDA Mitchell as a witness. 2. The exclusion of DDA Mitchell’s testimony did not violate Linton’s constitutional rights Linton contendsthetrial court’s ruling violated his federal constitutional rights to confrontation and to present a defense. (AOB 124- 130.) No confrontation clause violation occurred because DDA Mitchell was not a witness against Linton. Andthetrial court’s ruling did not. violate Linton’s right to presenta defense or to compel witnesses, because DDAMitchell’s testimony would have been cumulative and had only marginal relevance at best. (People v. Cornwell, supra, 37 Cal.4th atp. 82.) . Linton principally relies upon United States v. Edwards (9th Cir. 1998) 154 F.3d 915 (Edwards) to support his claim of error. (AOB 124- 127.) Edwards is not binding (People v. Leonard, supra, 40 Cal.4th atp. 1416), and is distinguishable. In Edwards, police found crack cocainein a black bag inside the trunk of a car that the defendant had been driving whenthe policearrived in the area. The car was registered to another person. (Edwards, supra, 154 F.3d at pp. 917-918.) The main evidence linking the defendant to the bag, apart from disputed hearsay, was his presence in the car. (/d. at p. 918.) On the eveningofthe first day oftrial, the prosecutor examinedthe bagin the presenceoftwoofficers and found a bail bond receipt with the defendant’s nameonit under a cardboard support at the bottom ofthe bag. (Id. at pp. 918-919.) Thedefendant objected to the admission of the receipt. (Id.at p. 919.) Thetrial court overruled the objection, and the prosecutor examined the two percipient witnesses about the discovery,eliciting testimony that, among otherthings, the receipt was not planted. (Jd. at pp. 919-920.) During closing argument, the prosecutor characterized the receipt as close. 76 toa “smoking gun,” and the defense responded that the discovery of the receipt was suspicious. (Edwards, supra, 154 F.3d at pp. 920-921.) On appeal, the defendant argued the prosecutor’s continued representationconstituted improper vouching. (Edwards, supra, 154 F.3d at p. 921.) The Ninth Circuit agreed: “whena prosecutoris personally involved in the discovery ofa critical piece of evidence, whenthat factis made evident to the jury, and when the reliability ofthe circumstances surrounding the discovery of the evidenceis at issue, the prosecutor’s participation in the trial ofthe defendantconstitutes a formofimproper vouching.” (Id. at p. 923.) | Unlike the prosecutor in Edwards, DDA Mitchell was not personally ‘involved in the discovery ofa critical piece of evidence. DDA Mitchell participated in a taped interview ofLinton along with DeputyStotz at which Linton made no incriminatory statements. Thus, Edwardsis inapposite. | . | | In an attempt to bring this case within the ambit ofEdwards, Linton characterizes DDA Mitchell as the “architect ofthe promise-induced confession” and the orchestrator ofthe interrogation the dayafter the murder. (AOB 116, 128, 130.) Linton’s characterization ofDDA Mitchell’s role in the investigation is refuted by DDA Mitchell’s testimony at the hearing on the recusal motion, wherehe explained his duties as the on-call investigator and the extent of his involvementin the interrogation the next day, andthe testimony ofthe other interviewers throughout the proceedings. (See e.g., 3 RT 304-306, 324-327; 5 RT 551-553, 580-581: 6 RT 785-786; 7 RT 903; 9 RT 1015; 10 RT 1056-1058; 18 RT 2757, 2770- 2771; 19 RT 2861-2863; 23 RT 3476-3477, 3525; 24 RT 3638.) Furthermore, even ifDDA Mitchell had been the “architect” and orchestrator, as discussed,it is what happened in Linton’s presence during the interviews and interrogations, and not behindthe scenes,that is relevant 77 to the credibility ofhis confession. Again, DDA Mitchell only participated in the bedroom interview andhis testimony regardingthis interview would have been cumulative to the audiotape and Detective Stotz’s testimony. Linton also speculates that the reason DDA Mitchell failed to clarify with him that he wouldbe liable for prior crimes against Melissa if he were the murderer was that DDA Mitchell and Detective Stotz did not expect “the promise of leniency to be picked up by the tape.” (AOB 129.) Ifthe defense had wanted to makethe point that the challenged statements during the bedroom interview were fainter than other recorded statements, they could have doneso by introducing the audiotape into evidenceattrial. (Recusal Motion, Def. Exh. C [tape]; 3 RT 348.) While the defense advised the court that they were not presenting the tape becauseofits poor quality (19 RT 2841), Linton’s argumentsuggests it was ofsufficient quality to determinethatcertain statements were less audible than others. Additionally, there was nodisputeattrial that the challenged statements were made during the bedroom interview andthat they were not accompanied by anyclarifying comments. (19 RT 2852-2853, 2877-2878; 20 RT 3098-3099.) Furthermore, while Linton’s appellate counsel posits, “it is difficult to understand why an experienced prosecutor would not be carefulto clarify that the ‘gist’ was that appellant only would get leniency | if he were not the murderer” (AOB 129), Linton’s “That’s until today” comment (5 SCT 150) establishes that Linton himselfunderstood thegist of the challenged statements notwithstanding the lack ofclarifying comments (5 SCT 150). In sum,the trial court properly exercisedits discretion, and did not violate Linton’s constitutional rights, by precluding him from calling DDA Mitchell as a witness. 78 3. Anyerrorin excluding DDA Mitchell’s testimony was harmless. Even assuming the trial court erred in excluding DDA Mitchell’s testimonyattrial, no prejudice ensued. The Watson standard should apply because this was, at most, a misapplication of Evidence Codesection 352. (People v. Cudjo (1993) 6 Cal.4th 585, 612.) But a reversal would not be required even if Chapman were applicable. DDA Mitchell was a percipient witnessto only one event that had any bearing on the issue ofthe veracity of Linton’s attempted rape confession — the bedroom interview. Linton madeno inculpatory statements during the bedroom interview.And DDA Mitchell’s testimony about the circumstancesofthis interview, including Linton’s apparent mental state, would have been cumulative to the testimony of Detective Stotz, which the jury heard, and the audiotape, which the defense chosenotto introduceat trial. Accordingly,the trial | court’s rejection of the defense request to call DDA Mitchell as a witness does not provide a basis for a reversal. H. The Trial Court Properly Exercised Its Discretion WhenIt Sustained the Prosecutor’s Objections During Linton’s Cross-Examination of Detective Stotz Linton contendsthetrial court abused its discretion and violated his constitutional right to confront and cross-examine an adverse witness when it sustained the prosecutor’s objections to numerous questions during his cross-examination of Detective Stotz. Linton asserts his questions properly soughtto test Detective Stotz’s credibility and the reliability of the interrogation process. (AOB 131-157.) There was noerror. “{NJot every restriction on a defendant’s desired methodofcross- examination is a constitutional violation.” (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another ground by People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Trial courts retain wide latitude under 79 the Confrontation Clause and California law to restrict “cross-examination that is repetitive, prejudicial, confusing ofthe issues, or ofmarginal relevance.” (People v. Frye, supra, 18 Cal.4th at p. 946.) Unless a “defendant can show thatthe prohibited cross-examination would have produced‘asignificantly different impressionof[the witnesses’| credibility’([Delaware v.] Van Arsdall [(1986)] 475 U.S. [673], 680 [106 S.Ct. [1431] 1436[, 89 L.Ed.2d 674]]), the trial court’s exerciseofits discretion in this regard doesnot violate the Sixth Amendment.” (Ibid,first alteration in original.) ‘Thetrial court did not abuse its broad discretion in sustaining the challenged objections here. (People v. Wallace (2008) 44 Cal.4th 1032, 1070 [trial court rulings on objections are reviewed for an abuse of discretion].) As discussed, the circumstancesofthe actual interrogation are relevantto the credibility of a confession; what occurs outside the suspect’s presence and any uncommunicated thoughts, beliefs, and motives of the interrogators are not. (See’Crane v. Kentucky, supra, 476 U.S. at pp. 690- 691; cf. Stansbury v. California, supra, 511 US.at p. 326; Whren v. United States, supra, 517 U.S. at p. 813.) Thus, “a police officer’s opinion — regardingthe truthfulness of a suspect’s confession is generallydeemed inadmissible.” (People v. Anderson (1990) 52 Cal.3d 453, 478.) In light ofthe foregoing authority, the trial court properly sustained the prosecutor’s relevancy and other objections to Linton’s questions about the following subjects: (1) what type of training Detective Stotz received | _ on interrogating suspectsat the academy, whether he received additional training on the job, and whetherhe received any training on avoiding and recognizing false confessions (19 RT 2823-2824); (2) conversations Detective Stotz had with DDA Mitchell outside Linton’s presence (19 RT 2862-2863, 2881, 2904; 20 RT 3084-3085); (3) whether Detective Stotz was being honest when he madethe “water under the bridge” comment and 80 whether he believed Linton’s story that he went to the Middletons’ house to look for money (19 RT 2881; 20 RT 3091); (4) whether Sergeant Rodriguez wasactually concerned that Linton would feel better ifhe confessed (19 RT 2887); (5) why Detective Stotz asked some questions or: made somestatements and did not make others (19 RT 2900-2901, 2905, 2908-2909; 20 RT 3091); (6) Detective Stotz’s concerns and beliefs about the veracity ofLinton’s statements and Linton’s motives (19 RT 2906, 2909; 20 RT 3082); (7) whether certain interrogation techniques were . “time-honored”or“part ofthe process of catching a criminal” (19 RT 2886-2887); (8) the process the police use to validate a confession (19 RT 2905); and (9) whether Detective Stotz was tying to coerce a confession (20 RT 3092). | | | At best, testimony on these subjects would have had only marginal relevance to the credibility ofLinton’s confession and Detective Stotz. (People v. Hines (1997) 15 Cal4th 997, 1047[rejecting claim that court unduly restricted cross-examination where court sustained objectionsto questions on issues that had,at best, only marginal relevance]; see also People v. Zapien (1993) 4 Cal.4th 929, 976[legally correct evidentiary ruling will be upheld even if ruling was based onan incorrect reason].) Linton relies upon inapposite cases to support his argumentthat thetrial court erred because it was necessary and proper for him to lay a foundation as to Detective Stotz’s experienceandtraining in interrogation techniques to challenge a confession as being false. (AOB 132-133.) Specifically, - Lintonrelies upon cases that addressed challengesto the admissibility of a confession, not an attack on the credibility of a confession deemed admissible. (AOB 132-133, citing Missouri v. Seibert (2004) 542 U.S. 600, 604, 617 [124 S.Ct. 2601, 159 L.Ed.2d 643] [holding post-Miranda confession inadmissible where police employed question-first tactic]; Miller v. Fenton (1985) 474 U.S. 104, 109 [106 S.Ct. 445, 88 L.Ed.2d 405] 81 [holding voluntariness is a question oflaw, and recognizing the Court has long held that confessions obtained through theuse of certain interrogation techniques violate Due Process]; Arizona v. Mauro (1987) 481 U.S. 520, 530, fn.1 [107 S.Ct. 193 1, 95 L.Ed.2d 458] [J. Stevens, dissenting] [disputing majority’s determination ofno interrogation and quoting testimony ofofficer regarding whethera certain interrogation technique was employed]; Orozco v. Texas (1969) 394 U.S. 324, 328 [89 S.Ct. 1095, 1098, 22 L.Ed.2d 311] [J. White, dissenting] [disagreeing with majority opinion that Miranda warnings were required where suspect was under arrest when he wasinterviewed in his bedroom, noting that Miranda was concerned aboutthe dangerthat “the confidenceofthe prisoner could be’ _ eroded by techniques such as successive interrogations by police acting out friendly or unfriendly roles” during incommunicado interrogation in a police-dominated setting].) Thetrial court also properly sustained the prosecutor’s objectionsto questions about what was and wasnot said during the recordedpost- . Mirandainterviews because any such testimony would have been . cumulative to the audiotape that the jury had already heard. (19 RT 2882, 2908, 2980, 3082, 3084-3085, 3090-3093.) Additionally, the trial court properly sustained the prosecutor’s objections to questionsthat called for Detective Stotz to speculate about: (1) whether it was clear to Linton that the alleged promises of leniency madeduring the bedroom interview were still in effect the next day (19 RT 2880-2881); (2) whether between November 29 and November30 (a period oftime which also included Dr. Rath’s interview) Linton denied having any sexual interest in Melissa more than forty times (19 RT 2883); (3) whether Linton was aboutto crack or give up at one point during the interview (19 RT 2886, 2909); (4) whether he could tell from the tone of Linton’s voice at 3:40 p.m.that he wastired (19 RT2892); (5) whether Linton answered some specific questions 82 robotically (19 RT 2892); (6) whether Linton was “siving up”at the end of the interview (19 RT 2909); and (7) whether Linton was referring to something that happened two months before the murder when,in response to Detective Stotz’s question “Well, how far did you get?”, Linton replied, “Notvery far at all, no where” (20 RT 3081). Likewise,the trial court properly exercisedits discretion in sustaining the prosecutor’s vagueness objections to questions aboutDetective Stotz’s former testimony where defense counselfailed to indicate in her question what former testimony she was referring to. (19 RT 2869-2870.) When | defense counsel subsequently clarified her questions, Detective Stotz _ answered them, without objection. (19 RT 2870.) Thetrial court also properly sustained the prosecutor’s vagueness objection to Linton’s question, “Well, you believe that it must have crossed Daniel’s mind-about raping Melissa on the 29th. Right?” (19 RT 2909.) Detective Stotz’s actualbelief wasalso irrelevant. (Evid. Code, § 210.) | Thetrial court also properly sustained the prosecutor’s objection to the following questions on the ground they were argumentative: “Well, did you tell Daniel we’re gathering evidence here and onedayit’s going to be played in public and people are going to hear it?” (19 RT 2882); “When yousaw Melissa, did you think because she wasa pretty cute gal — did the thought cross your mind of some sexualinterest in her?” (19 RT 2908); “You were trying to threaten Daniel when youtold him that you would not stop the interrogation until he told you what you wanted to hear; isn’t that right?” (20 RT 3085); and “You gave Daniel Linton a choiceearlier in the interview betweentelling you that he wentinto [sic] steal and he wentin there to try to have sex with Melissa; isn’t that right?” (20 RT 3092). Similarly, the court properly sustained objectionsto the following questions because they were both argumentative and, as discussed post and ante, called for irrelevant evidence: “You told Daniel at a certain point at the end 83 of the interrogation, 3:40 to 4 o’clock,‘I don’t buy this story about you going over there to look for money.’ Was that a lie oris that the truth?” (20 RT-3090-3091); “You weretrying to coerce a confession, were you not, Officer?” (20 RT 3091-3092); and “Were you attempting to leave the impression that you were the person who wasdoing — conducting the interview of Daniel, the principal interviewer [during the bedroom interview]?” (21 RT 3112.) Additionally, the trial court properly sustained the prosecutor’s | | objections to several other questions on the groundthat they had been asked and answered. (Compare 20 RT 3082, 3085-3087, 3090-3093 with 19 RT 2814, 2816, 2873-2875, 2882, 2907; 20 RT 3000; 3008, 3037, 3081, 3089.) Finally, the trial court properly sustained a series of objections to questions about whether Detective Stotz includedthe alleged promises of leniency made during the bedroom interview in his police reports, the ‘number of questions asked by DDA Mitchell and Detective Stotz during the bedroom interview, whether Detective Stotz wastrying to portray himself to the jury as the lead interviewer, and whetherthe prosecutor in fact took the lead during the bedroom interview. (20 RT 3097; 21 RT 3111-3112.) That Detective Stotz and DDA Mitchell made statements during the bedroom interview aboutliability for prior offenses against Melissa wasnot disputedat trial. (19 RT 2852-2853, 2877-2878; 20 RT 3098.) Thus,the omission of these statements from Detective Stotz’s police report would have hadlittle, if any, impeachmentvalue. Similarly, that Detective Stotz and DDAMitchell both participated in the interview was notin dispute. (18 RT 2757-2766; 19 RT 2808, 2848, 2850-2851, 2856.) Whether DDA Mitchell asked 227 questions and Detective Stotz asked 129 questions had little, if any, probative value on the issue of the veracity ofLinton’s confessions the following day, or Detective Stotz’s credibility. 84 Accordingly, the trial court did not abuseits discretion in sustaining the prosecutor’s objections. But even assumingthetrial court erred in one or moreofits rulings understate law, no constitutional violation ensued. The jury heard the audiotapes ofthe post-Miranda interviews. Thejury also heard the | testimony of Detectives Stotz and Lynn, Dr. Rath, and DDAChessell, who | collectively described the circumstancesofthe interviews at Linton’s front’ door and in his bedroom on the day ofthe murder, the car ride to the police station the following morning, and the interviewsat the police station that day. ‘Additionally, the jury heard testimony about Linton’s mental and physical conditionatthe time ofthe interviews from these individuals and Dr. Whiting. Thus, there was ample evidence before the jury about “the reliability of the interrogation processitself... .” (AOB 132.) Defense counsel also extensively cross-examined Detective Stotz. (19 RT 2807-2838, 2843-2947; 20 RT 2977-3101; 21 RT 3106-3116, 3118- 3121.) During this examination, defense counsel elicited testimony that Linton appeared to be upset and shaken during the final interview segment, but nottired, and that he appearedto be giving up when hesaid the thought of raping Melissa crossed his mind. (19 RT 2891, 2909-2910.) Defense . counselalsoelicited testimony that Linton denied a sexualinterest in Melissa about forty times between November 29 and November30, and that Detective Stotz made it clear to Linton during the bedroom interview that he would notget in any trouble for any prior sex crimes, and that Detective Stotz honestly believed this was so. (19 RT 2876-2877; 2909- 2910.) Additionally, defense counsel impeached Detective Stotz with, among other things, his prior inconsistent statements, misstatements, and inferences that he had drawn from Linton’s statements but attributed to Linton in his police report. (See e.g., 19 RT 2813-2819, 2829-2833, 2910- 2919; 20 RT 2997-2998, 3013-3014.) 85 In light ofthe evidence before the jury and cross-examination of Detective Stotz that was permitted, the trial court’s evidentiary rulings did not violate Linton’s right to present a defensethat his confessionto the prior attempted rape was notcredible. Nor did thetrial court’s rulings violate Linton’s Confrontation Clause rights, as Linton has not established that answers to the challenged questions would haveproduced a significantly different impression of Detective’s Stotz’s credibility. Finally, even if one or moreofthe trial court’s rulings had been erroneous, given the evidence discussed above, the extensive cross- examination ofDetective Stotz, and the strength ofthe prosecution’s case, any constitutional violation was harmless beyonda reasonable doubt (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 1438: 89 L.Ed.2d 674] [confrontation clause violations are subject to review under Chapman]; People v. Farley (2009) 46 Cal.4th 1053, 1104 [applying Chapmanto assumedviolation of right to present a defense]), and anystate law error was harmless under Watson. II. THE TRIAL COURT PROPERLY DECLINED TO DISMISS JUROR No. 1 BECAUSE.SHE Dip NOT COMMIT MISCONDUCT; ANY MISCONDUCT DOES NOT WARRANT A REVERSAL Linton asserts Juror No. 1 committed misconduct by discussing the case with her husband andprejudging it, and that thetrial court’s failure to removeherviolated the Sixth and Fourteenth Amendments ofthe federal Constitution, and Article I, sections 7 and 16 ofthe California Constitution. (AOB 158-165.) Thetrial court properly determinedthat Juror No. 1’s monologue did not constitute misconduct. Evenifthere had been misconduct, Juror No. 1’s statements rebutted the presumptionofprejudice. During guilt-phase deliberations, the foreperson senta note tothetrial court stating: “As foremanI feel I should report that one of the jurors during our discussionsaid they [sic] had discuss [sic] a specific aspect of - 86 the case with her husband.” (13 CT 3609.) Later that day, the court met with counsel, Linton, and the foreperson. (31 RT 4820.) The foreperson said that while they were discussing the evidence that Melissa screamed when she saw Lintonat the top ofthe stairs, and whetheror not Melissa would have respondedin that manner, Juror No. 1 sated that she had discussed the issue with her husband and how she-would not have respondedlike Melissa did. (31 RT 4820-4821.) According to the foreperson, Juror No. | told the otherjurors,“I’m the first to admitthat I discussed this with my husband and we weretalking about the case.’” (31 RT 4821.) Juror No. 1 did not indicate whether her husband provided any feedback, because the otherjurors “basically said we didn’t want to go there. ...” (31 RT 4821.) Nofurther discussions about Juror No. I’s. conversations with her husband ensued. The foreperson did nottell the other jurors about his note to the court regarding Juror No. 1. (31 RT 4822.) | After the forepersonleft the courtroom, defense counsel expressed concern about Juror No. 1’s cavalier attitude toward the court’s instructions, that Juror No. 1 may have discussed other aspects ofthe case with her husband,and that they had no way ofknowing if Juror No. 1 was going to rely on her husband’s opinions in making determinations about the case. (31 RT 4824.) Thetrial court shared some of defense counsel’s concernsandinstructed the bailiff to contact Juror No.1. (31 RT 4825- 4828.) During the questioning that followed, Juror No. 1 stated that, after she wasselected asa juror, she told her husband that she might need to vent aboutthe case andthat, if she did so, he was not to ask her questionsorlet her continue. He wasjust to “kindofsit there and say, ‘Okay. Enough.” (31 RT 4829-4830, 4832-4833.) Juror No. 1 did this because she had a 87 feeling she “might explode at one point just becauseofthe facts ofthe case[,]” and her nature. (31 RT 4830.) WhenJuror No.1 heard during-the first week oftrial that Melissa screamed whenshe saw Linton at the top of the stairs on the day ofthe murder, she was disturbed because she would not have “freaked out” like that if her neighbor walked in. (31 RT 483 1, 4834.) This was before Juror No. 1 heard about the rest ofthe case. (31 RT 4831.) Juror No. 1 told her husband, “‘I can’t believe the way that this. happened.’ .. ‘Something the defendant did and this person reacted this way. I would not have donethat. I’m justa little’ — ‘I’m confused. I just don’t understand.’” (31 RT 4831- 4832; see also 31 RT 4829.) Juror No. 1 did not give her husband any senseofthe facts of the case. (31 RT 4829, 4831.) Her husbandjust “sat . there” and did not respond. (31 RT 4829-4830, 4832.) He gave no verbal feedback. (31 RT 4833.) Juror No. 1 said that if anyone had been standing in the room, her statements to her husband “would have madenosense at all.” (31 RT 4830.) Juror No.1 did not vent to her husband again during the remainderoftrial. (31 RT 4833-4834.) Nor did the two ever discuss the case. (31 RT 4833.) | After both counsel indicated they had no questions for Juror No. 1, the court admonished Juror No. 1 to refrain from discussing the case or venting with third parties. (31 RT 4834-4835.) The court also asked Juror No. 1, “You feel there’s anything that’s happenedhere, or even the fact that we called you in, that would affect your ability to either now be a fair and impartial juroror, two, be able to deliberate rationally with the other jurors?” (31 RT 4836.) Juror No. 1 responded, “No. Not atall.” (31 RT 4836.) The court theninstructed Juror No. 1 to continue deliberating. (31 RT 4836.) Defense counsel argued that Juror No. 1’s claimsthat she just vented to her husbandand that her husband provided no feedback were 88 disingenuous,if not an outright lie. Defense counsel asserted that Juror No. 1 wanted to share with the jury important information thatshe had obtained, namely her husband’s opinion, and that the foreperson’s comments indicated that Juror No. 1 told her fellow jurors that she discussed the case with her husband, including the facts surrounding the screaming incident. (31 RT 4836-4840.) The defense asked that Juror No. 1 be excused, because she was“clearly”trying to “bring her husband’s opinion into deliberations,” and that there was a real danger that Juror No.1 wasbeing influenced by her husband’s opinions. (31 RT 4841-4842.) The prosecutor countered that the defense argument was speculative and that Juror No. 1 was credible. (31 RT 4840-4841.) The court found Juror No. 1’s statements were credible and not inconsistent with those of the foreperson. (31 RT 4842.) The court further found there wasno indication that Juror No. 1’s husband provided any input to Juror No. 1 or any other juror, and that, while Juror No. 1’s 39 6¢- conduct was “perhaps” “on the edge ofpropriety[,]” no misconduct occurred. (31 RT 4842-4843.) The court also notedit had admonished Juror No. 1 to refrain from such conduct in the future. (31 RT 4843.) Consequently, the court denied the defense motion to dismiss Juror No.1. (31 RT 4843.) The court did noterr in so ruling. It is misconduct for a juror to discuss a case with a nonjuror during the course of a trial. (People v. Lewis (2009) 46 Cal.4th 1255, 1309.) “In a criminalcase, any private communication, contact, or tampering, directly or indirectly, with a juror during trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial .... The presumption is not conclusive, but the burdenrests heavily upon the Governmentto establish . . . that such contact with the juror was harmless to the defendant. [Citations.]’” (/d., quoting Remmerv. United States 89 (1954) 347 U.S. 227, 229 [74 S.Ct. 450, 98 L.Ed. 654], alteration in original.) | The presumption ofprejudiceis rebutted, and the verdict will not be set aside, “ifthe entire record in the particular case, including the nature of the misconductor other event, and the surrounding circumstances, indicates there is no reasonable probability ofprejudice, i.e., no substantial likelihoodthat one or more jurors were actually biased against the defendant.” (In re Hamilton (1999) 20 Cal.4th 273, 296,italics in original.) In emphasizing that the required showingis a substantial likelihood of actual bias, this Court has recognized that requiring perfectionfrom jurors would renderthe criminal justice system impotent. (People v. Danks (2004) 32 Cal.4th 269, 304.) “Jurors are not automatons. They are imbued with human frailties as well as virtues. Ifthe system is to functionat all, we musttolerate a certain amount of imperfection short of actual bias. To demandtheoretical perfectionfrom every juror during the course of a trial is unrealistic.” (Ibid, quoting Jn re Carpenter (1995) 9 Cal.4th 634, 654- 655.) | | In deciding ifjuror misconduct occurred, a reviewing court accepts the trial court’s credibility determinations and findings of historical facts if supported by substantial evidence. (People v. Schmeck (2005) 37 Cal.4th 240, 294.) “Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination.” (People v. Nesler (1997) 16 Cal.4th 561, 582.) In accord with Penal Code section 1122,thetrial court here admonishedthe jury at the beginningofthetrial, “You must not converse ... with anyone else on any subject connected with this trial... .” (17 RT 2501.) This admonitionis “directed at precluding the jurors from being exposed and influenced by outside sources or extrinsic evidence during the 90 trial as well as from deciding the case before it is submitted to them.” (People v. Smith (2008) 168 Cal.App.4th 7, 15.) _ Thetrial court’s factual findings that Juror No. 1 did not violate its admonition and did not receive information aboutthe case from her husbandare supported by substantial evidence. | Juror No. 1 stated that, after she was selected as a juror, she told her husbandthat if she vented, he wasto provide no feedback andto tell her to stop. When Juror No. 1 subsequently expressed her feelings and how she would have responded differently than some unspecified person in some unspecified context, her husbandjust sat there and did not say anything to her. Thus, Juror No. 1 did not commit misconductby “discussing” the case with herhusband and did not receive information about the case from her husband. (Cf People v. Danks, supra, 32 Cal.4th at p. 304 [holding there was no misconduct where juror “did not discuss the case or deliberations with her husband; but only the stress she wasfeeling in making the decision”].) But even if Juror No. 1’smonologue constituted misconduct, the information obtained through thetrial court’s inquiry of Juror No. 1 rebutted the presumption ofprejudice. Juror No. | stated that she did not provide any sense ofthe facts to her husband whenshe vented andthat he provided no feedback. Juror No.1 also confirmed that neither her venting — northe trial court’s inquiry into it would affect her ability to be fair and | impartial. “Courts may properly rely on such statements to determine whether a juror can maintain his or her impartiality after an incident raising a suspicion ofprejudice.” (People v. Harris (2008) 43 Cal.4th 1269, 1304.) Thetrial court’s inquiry and Juror No. I’s responsesestablish that Juror No. 1’s venting to her husband “‘is not, judged objectively, “inherently and substantially likely to have influenced the juror.” [Citation.] Nor doesit objectively demonstrate a substantial likelihood, or even a reasonable possibility, of actual bias. [Citations.]’ (People v. Loker (2008) 44 Cal.4th 91 691, 754-755.)” (Peoplev. Lewis, supra, 46 Cal.4th at p. 1309, alterations in original, parallel citations omitted.) Accordingly,the trial court did not violate Linton’s state and federal constitutional rights by denying his request to dismiss Juror No. 1. (See [bid [finding presumption ofprejudice, which arose from juror’s discussion during deliberations with her District Attorney investigator husband about the mannerthe foreperson was picked and the foreperson’s refusal to reveal results offirst poll, was rebutted where juror confirmed she revealed only these details to her husband and nothingsubstantive and juror confirmedthat neither the incident nor the | court’s inquiry into it would affect her ability to befair and impartial].) To the extent Lintonis also claiming that Juror No.1 prejudgedthe case (AOB 162), his claim lacks merit. It is improper for a juror to | prejudge a case (People v. Leonard, supra, 40 Cal.4th at p. 1412). But Juror No. 1’s venting to her husband doesnot establish that she prejudged the case. Instead, her statements established that she had a concern about oneaspect ofthe case at the beginningoftrial, before she hadheardall the evidence. That a juror entertained various concernsabout a case during trial does notestablish that the juror prejudged the case. (See People v. Wilson (2008) 44 Cal.4th 758, 841.) Finally, Linton arguesthat Juror No. 1’s alleged misconduct is structural error. (AOB 163.) “[E]mpanelling one or more jurors who are actually biased against the defense” constitutes structural error. (Peoplev. Carter (2005) 36 Cal.4th 1114, 1176.) As discussed, however, the record does not establish that Juror No. 1 was actually biased, or even that there wasa substantiallikelihood that she was biased. Accordingly, Linton’s claimofstructural error necessarily fails. 92 ’ JIL. THE INVITED ERROR DOCTRINE BARS REVIEW OF LINTON’S CLAIM THAT THE TRIAL COURT ERREDIN FAILING TO INSTRUCT. THE JURY THAT UNRECORDED ORAL ADMISSIONS SHOULD BE VIEWEDWITH CAUTION; ANY INSTRUCTIONAL ERROR WAS HARMLESS Linton contendsthetrial court deprived him ofhis state and federal constitutional rights to due process,a fair trial, and a jury determination whenit failed to instructthe jury with CALJIC No.2.70 that unrecorded oral admissions should be viewed with caution. (AOB 166-175.) Any error was invited. Alternatively, any error was harmless. A trial court has a sua sponte duty to instruct the jury to view extrajudicial admissions and confessions with caution. (People v. Williams (2008) 43 Cal.4th 584, 639; People v. Mayfield, supra, 14 Cal.4th atp. 716.) But such an instruction should not be given when a defendant’s admissions or confessions are tape recorded andthe tape recordingis played for the jury. (Ibid.) In this case, both sides requestedthe jury be instructed on confessions _ and admissions with CALJIC No. 2.70. (29 RT 4460.) The defense also submitted five modified versions of the instruction. (28 RT 4306; 13 CT 3466, 3560-3567.) After thecourt rejected the first four versions, the prosecutor argued the following sentence in the fifth defense instruction was unnecessary — ““Oral statements of a defendant should be viewed with caution’” — because Linton’s statements were recorded. (29 RT 4462-4471, 4479.) Defense counsel countered that the two interviews at Linton’s front door were not recorded and there was “evidence of statements made off | tape in this case.” (29 RT 4479.) The following exchange shortly ensued: THE COURT: “Evidence of an oral confession or oral admission of the defendant not made in court should be viewed with caution.” How about ifwe addedin there “not made in court” or “not” — 93 [THE PROSECUTOR]: “And not tape-recorded.” THE COURT: “And not tape-recorded”? [THE PROSECUTOR]: _Correct--. | [DEFENSE COUNSEL]: Well, I think that thentells the jury to not view critically -- [THE COURT]: -- the rest of it with caution? [DEFENSE COUNSEL]: -- therestofit. [{] So if that’s the alternative, better to do away with it entirely. (29 RT 4479-4480.) Defense counsel acknowledgedthat cases have heldthat an admonition to view an extrajudicial statement with caution is important whenthe statementis not recorded. (29 RT 4481.) But counsel argued that the CALJIC committee had not addressed confession evidencewith the same degreeofscrutiny that it had addressedeyewitness identifications. Defense counsel reasonedthat, as with eyewitness identifications, the | publicrelies upon confession evidence without awarenessofthe factors that can influencethereliability of the evidence. (29 RT 4480-4481.) Consequently, defense counsel maintainedthat“the jury should be instructed to view confession evidence with caution, whether or notits recorded,” and requested “that [the proposed language] stay in.” (29 RT 4480-4481 ) | The court disagreed, stating that it was “going to insert something about not made in court or not taped or exclude the whole thing or take the whole thing out, one or the other.” (29 RT 4481.) Defense counsel replied, “Well, then, in light ofthat, take the whole thing out.” (29 RT 4481.) The court then confirmed that defense counsel wanted to omit the cautionary language. Defense counselindicated this was correct, but askedthatthe defense objection be notedfor the record. (29 RT 4481.) 94 The court subsequently instructed the jury pursuant to CALJIC No. 2.70 as follows: | A confession is a statement made by a defendantin which he has acknowledgedhis guilt for the crimes for which he is on trial. In order to constitute a confession, a statement _ must acknowledgeparticipation in the crimes as well as [the] required criminal intent. An admissionis different. An admission is a statement made by the defendant which doesnot byitself acknowledge his guilt for the crimes for which the defendantis on trial, but which statement tendsto prove his guilt when considered with the rest ofthe evidence. You are the exclusive judges as to whether the defendant has made an admission or confession, and ifso, whether the statementis true in wholeorin part. You should consider evidence about the mannerin which defendant’s admission was madein determining the probative weightofthe admission. (30 RT 4566; 13 CT 3466.) Linton’s claim that the trial court erred in failing to instruct his jury to ' view his unrecorded oral admissions with caution is barred underthe invited error doctrine because, as the above summary shows, defense counsel opted to forgo any such admonition for a tactical reason: she believed the jurors would not critically examine thereliability of the recorded portions ofthe statement if such language were included in the instruction. (29 RT 4479-4481; cf. People v. Lewis (2001) 25 Cal.4th 610, 667 [invited error doctrine barred complaintofasserted instructional deficiency that resulted from defense counsel’s suggested revision] .) Even if Linton’s claim were not barred, any error was harmless. Lintonasserts that the error is one of federal constitutional magnitude and therefore the Chapman standard applies. (AOB 172-175.) Thefailure to - give an instruction admonishing jurors to view oral admissionswith caution. 95 is reviewed under Watson, becausethe failure to give such an instruction does not rendera trial fundamentally unfair. (People v. Wilson (2008) 43 Cal.4th 1, 19; People v. Dickey (2005) 35 Cal.4th 884, 905; but see People v. Mungia (2008) 44 Cal.4th 1101, 1134 [declining to decide whetherthe state or federal standard applies].) Butregardless ofwhether this Court | applies the state or federal harmless error standard, any error does not warranta reversal. The purposeofthe cautionary instruction on unrecorded oral admissionsis to help jurors decide whether a statementattributedto the . defendant wasin fact made. Consequently, “‘courts examining the prejudice in failing to give the instructionexaminethe recordto see ifthere was any conflict in the evidence about the exact wordsused, their meaning, or whether the admissions were repeated accurately.’ [Citation.]” (People v. Wilson, supra, 43 Cal.4th at p. 19.) | | As noted, Linton’s two conversations with Detective Stotz at Linton’s front door were not recorded. (See e.g., 17 RT 2630-3631; 18 RT 2745- 2756.) Most ofthe bedroom interview wasrecorded, but the tape was not played for the jury. Linton made unrecorded statements in the police car the next day and madeadditional statements before the tape was turned on at the police station and when the tape was being flipped over. (17 RT 2633-2634, 2647; 18 RT 2769-2770; 19 RT 2835, 2857, 2872-2873; 20 RT 3038-3043, 3048-3060; 24 RT 3676, 3683-3684.) Lintoncites to no conflicts in the evidence about the words attributed to him during these time periods. Attrial, defense counsel focused on what Detective Stotz told Linton during the unrecorded discussions and why Detectives Stotz and Lynn did not include some ofLinton’s unrecorded statements in their reports. (See e.g., 17 RT 2630-2631, 2634, 2636, 2640, 2644, 2647-2647, 2651-2652 [cross-examination ofDetective Lynn]; 19 RT 2835-2838, 96 2845-2853, 2870-2873, 2877-2878;20 RT 3036-3069, 3072-3073, 3094- 3095, 3098[cross-examination ofDetective Stotz].) Additionally, as discussed in the Statement ofFacts, ante, Linton denied any wrongdoing until his tacit confession in the police car. After that he confessed on tape to entering the Linton’s homeon both occasions - for money, to murdering Melissa, and to attempting to rape her on theprior occasion. These recorded confessions were played for the jury. Linton’s counsel also extensively arguedto the jury that Detective Stotz was not credible and that, during the unrecorded interviews, Detective Stotz made more statements to Linton that he admittedattrial. (See e.g., 30 RT 4653, 4655-3657, 4663, 4669-4673, 4679, 4681, 4696-4698.) Thus, any failure to instruct the jury that Linton’s unrecorded extrajudicial statements should be viewed with caution was harmless under any standard. . In his prejudice argument, Linton focuses on the statement he made at his front door that he had woken upin his yard around midnight twoto three weeks before the murder, wearing only jeans and underwear. (AOB 166-170, quoting 18 RT 2752-2754.) Linton asserts his “unrecorded admission about the prior incident formed the basis for questioning by the authorities as to whether what [he] recalledas sleepwalking wasactually the sexual assault described by Melissa to her parents several weeksor months before her death. Had the jury been told to view [his] unrecorded statements with caution,it is likely it would have been wary ofDetective Stotz’s testimony.” (AOB 174.) But there was no conflict regardingthis unrecorded admission. Indeed, defense counsel cross-examined Detective Stotz with quotations from the transcript of the bedroom interview. During that interview Linton confirmed muchofhis earlier statement about waking up in his jeans and underwear twoto three weeks earlier. (20 RT 3067- 3068; see 5 SCT 52-53.) Finally, the portions of Detective Stotz’s testimony that Linton points to in hisprejudice argument concerned his 97 impeachmentofDetective Stotz with Linton’s recorded confession,not his unrecorded oral admissions. (AOB 174-175,citing 19 RT 2911-2915.) Accordingly, any error does not warranta reversal. TV. LINTON RECEIVED A FAIR GUILT TRIAL Linton contends the cumulative effect ofthe errors alleged in arguments I-III, ante, violated his right to due process and warrant reversal. (AOB 176-179.) As discussed, the only error here — the failureto instruct the jury to view unrecorded oral admissions and confessions with caution — was invited andnot prejudicial. Thus,there are no errors to cumulate. (People v. Thornton (2007) 41 Cal.4th 391, 453.) V. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE OFFERED TO ESTABLISH A LINGERING DOUBT DEFENSE Linton contendsthetrial court deprived him ofhis state and federal constitutional rights to due process,a fair trial, and to present a defense whenit precluded him from presenting evidence that authorities coerced him into making a false confession. Specifically, Linton complains about the trial court’s rulings preventing him from calling Dr. Leo and DDA | Mitchell as witnesses, and from eliciting opinion testimony from Dr. Whiting based upon his interview with Linton. Linton asserts this evidence would haveestablished a lingering doubt about the attempted rape and forcible lewdact special circumstances. (AOB 180-194.) Thetrial court properly exercised its discretion in excluding this evidence. Alternatively, there is no reasonable possibility that Linton would have received a more favorable penalty determination had this evidence been admitted. A. The Trial Court Properly Precluded Linton from Calling Dr. Leo and DDA Mitchell as Witnesses Prior to the start ofthe penalty phase,the defense renewedits request to call Dr. Leo and DDA Mitchell as witnesses. The defense arguedtheir testimony wasrelevantto a lingering doubt defense and that excluding it - 98 would violate Linton’s Fifth, Sixth, and Eighth Amendmentrights. (31 RT 4902-4913, 4923-4926.) DDA Mitchell countered that Dr. Leo’s testimony had minimal relevance and would be unduly time-consumingandthat his own testimony would be cumulative to the testimony of Detectives Stotz and Lynn. DDA Mitchell also noted the defense could present a transcript . ofthe bedroom interview ifthey wanted to establish the words that were actually spokenat that time. (31 RT 4904-4905.) Thetrial court again excluded Dr. Leo’s testimony, because there was no foundation Linton’s confession wasfalse. (31 RT 4914.) In so doing, | the trial court expressly stated that Linton would not haveto testify in order for Dr. Leo’s testimony to become admissible;there just needed to be some evidence that the confession was false, which the court had not yet heard. (31 RT 4906-4907, 4910-4914: contra AOB 181.) The court further ruled that the defense could not call DDA Mitchell as a witness. (31 RT 4926.) Thetrial court properly exercised its discretion in so ruling. “A capital defendant has no federal constitutional right to have the jury considerlingering doubt inchoosing the appropriate penalty.” (People v. Stitely, supra, 35 Cal.4th at p. 566.) But evidence regarding “the circumstancesofthe offense, including evidence that may create a lingering doubt as to the defendant’s guilt of the offense, is admissible . . . as a factor in mitigation under section 190.3.” (People v. Hamilton (2009) 45 Cal.4th 863, 912.) This provision does not, however, afford a defendanta right to present “evidence not otherwise admissible at the penalty phase for the purposeofcreating a doubtasto his or her guilt.” (/bid.) The standard for determining admissibility of such evidence is whetherit relates to the circumstancesofthe crime or aggravating or mitigating factors, not whether it tends to prove the defendant did not commit the crimes. ([bid.) Such evidence cannot be “unreliable [citations], incompetent, irrelevant, lack 99 probative value,or solely attack the legality ofthe prior adjudication [citations].” (Ibid.) For the reasonsset forth in. detail in ArgumentI, sections F and G, ante, Dr. Leo’s proffered testimony and any testimony by DDA Mitchell bore little probative value to the defense of lingering doubt. Accordingly, | thetrial court properly. exercisedits discretion in excludingit. Moreover, even ifthe trial court had erred, a reversal ofthe death judgment would notbe warranted. “Error in admitting or excluding evidenceat the penalty phase of a capital trialis reversible if there is a reasonablepossibility it affected the verdict.” (People v. Gay (2008)42 Cal.4th 1195, 1223.) The “reasonable possibility’ standard and Chapman’s ‘reasonable doubt’ test . . . are the same in substance and effect.” (People v. Prince (2007) 40 Cal.4th 1179, 1299.) For the reasons set forth in ArgumentI, there is no reasonable possibility that the exclusion ofthe testimony of Dr. Leo and DDA Mitchell affected the verdict. In arguing to the contrary, Linton asserts the penalty phase decision wasClose. Linton relies on the length ofthe deliberations, a jury note, and two E-mails twoseparate jurors sent the foreperson as support for his argument. Thejury began deliberations at 2 p.m. on March 25, 1999. (13 CT 3662-3663.) The jury continued deliberating at 9:15 a.m. on March 29, 1999. (13 CT 3664.) At3:11 p-m.the jury sent the court a note indicating “it could not reach a verdict. (13 CT 3664, 3675.) The court respondedto the note by directing the jury to continue deliberations. (13 CT 3675.) The Jurors resumeddeliberations at 9 a.m. the next day, and indicated at 10:52. a.m. that they had reached a verdict. (13 CT 3677.) Given eleven. witnessestestified at the penalty phase and theserious nature ofthe question the jury was asked to decide, the length of the deliberations here, whichtotaled less than two full court days, do not indicate the case was a close one. (See People v. Carpenter (1997) 15 Cal.4th 312, 422, 100 supersededby statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) Nordo the two E-mails two different jurors sent to the foreperson indicate the case was close. As discussed in more detail in Argument XI, post, the notes simply reflected that two jurors got their feelings hurt by comments madeby other jurors in the deliberation room. (13 CT 3673.) Thus, any evidentiary errors do not warrant a reversal of the death verdict. B. The Trial Court Properly Precluded Dr. Whiting from Offering Opinion Testimony Based on Linton’s Statements to Him The defense sought to introduce testimony from Dr. Whiting, based - on his interview with Linton, regarding Linton’s ability to form the requisite specific intent for the special circumstances. (31 RT 4914-4916.) The prosecutor objected, arguing that permitting such testimony would result in the admission of incompetent, self-serving hearsay. The prosecutor noted that he had not been given discovery on Linton’s statements and only knew about the statements that Dr. Whiting included in - his reports, many ofwhich were shownto be erroneous on cross- examination. (31 RT 4916.) Consequently, if the proffered opinion testimony were admitted, the prosecution would notbe able to test the basis or reliability of the information on cross-examination. (31 RT 4916-4918.) The defense countered that they were simply trying to support Dr. Whiting’s opinion that Linton had a panic attack. Defense counsel suggested that if Dr. Rath had been looking for evidence of Linton’s actual intent, “he might have obtained from Daniel Linton the additional information that he had heart palpitations or shortness of breath or whatever it was, narrowing ofvision,all those things that might contributeorassist Dr. Whiting and mightassist [Linton] at this stage in showing that he was suffering a panic attack.” (31 RT 4920.) | 101 The prosecutor responded that after Dr. Rath described the symptoms of a panic attack,he specifically asked Linton whenthelast time he suffered anything like that was. Linton replied that it was three months earlier. (31 RT 4920.) The court ruled that Dr. Whiting could testify with the same limitations that it had imposedin the guilt phase, that is, Dr. Whiting had to support his opinions with evidence already in the record and could not testify or offer opinions based upon what Linton told him, because Linton’s statements wereself-serving hearsay. (31 RT 4920-4921: see 25 RT 3711- 3733; 3797-3806 [prior discussions].) The defense did not recall Dr. Whiting during the penalty phase. Linton raised the limitations on Dr. Whiting’s testimony in his new trial motion, which the court denied. (14 CT 5733-5755; 37 RT 5776.) Trial courts have broad discretion in ruling on the admissibility of expert opinion testimony. (People v. Pollock (2004) 32 Cal.4th 1153, 1172.) “Although an expert may base an opinion on hearsay, the trial court may exclude from the expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighsits proper 399- probative value.’” (/bid.) “[E]vidence proffered on the issue of lingering doubt may be excluded because the evidence in question is otherwise inadmissible as hearsayor is unreliable.” (People v. Blair (2005) 36 Cal.4th 686, 750; accord People v. Whitt (1990) 51 Cal.3d 620, 644.) Here,the trial court did not abuse its discretion in excluding Dr. Whiting’s opinionsbased onhis interviews with Linton. During the guilt phase,the jury heard the recorded statements Linton made to law enforcement and Dr. Rath the day after the murder about his mentalstate and physical condition at the timeofthe crimes, including his lack of perception of time, his lack ofrecall, his fear, his headache, and his intent. (E.g., 12 CT 3289, 3297, 3304-3306, 3308, 3333, 3337, 3339-3340, 3350,- 102 3352, 3355, 3357-3359, 3365-3367, 3420, 3424, 3426-3427; 23 RT 3516, 3510-3520, 3531-3533, 3564.) In particular, the jury heard Dr. Rath ask Linton ifhe had suffered any panic attacks, which Dr. Rath described as “where you feel like you can’t breath and your heart starts pounding, you may break into a sweat. Just comes over you and then goes away after a while?” (12 CT 3415.) Linton responded, “Previously, I had a couple of those. Butnot as hard, not that bad.” (12 CT 3415.) Dr. Rath followed up, “Okay. So you’ve had periods ofbeing anxious? When wasthelast time something like that happened?” (12 CT 3415.) Linton responded, “I don’t know,I guess about three months.” (12 CT 3415.) Linton said he did not _know ofanythingthat setit off. (12 CT 3415.) Additionally, Dr. Whiting testified during the guilt phase that neuropsychologicaltests indicated Linton had damagetohis occipital parietal area ofthe brain and that research showedthereis a relationship between that area and panic disorders. (25 RT 3832-3834.) Dr. Whiting further diagnosed Linton as suffering from, among other things, a panic disorder with panic attacks. (25 RT 3840.) Hetestified that Linton’s statementsto the police and Dr. Rath regardinghis lack ofperception of time during the crimes and lack of memory wereconsistent with a panic attack. (25 RT 3848-3849; 26 RT 3892-3894, 3911-3913; 27 RT 4158, 4169.) Thus,through the evidence presented and the questions posed to Dr. Whiting, the trial court allowed the defense to put before the jury in both the guilt and penalty phasesthe theory that Linton may have been suffering a panic attack or panickedat the time of the murder. (30 RT 4660, 4668, 4692-4693, 4701-4702, 4716; 35 RT 5583; 36 RT 5668.) If the trial court had also permitted Dr. Whitingto testify in the penalty phase about Linton’s statements to him, which were made more than two and a half years after the murder (26 RT 3944-3946), it would 103 have enabled Lintonto presenthis potentially self-serving and unreliable hearsay to the jury without ever having to testify and be subjectto cross- examination. Given the testimony the court did permit regarding the defense panic attack theory, the trial court did not abuseits discretion or violate Linton’s constitutional rights in precluding Dr. Whiting from offering opinion testimony based on Linton’s statementsto him. (See People v. Pollock, supra, 32 Cal.4th at p. 1172 [trial court properly exercised its discretion in precluding expert in guilt phase from offering an Opinion on whether defendant’s conduct before, during andjust after crime was consistent with binge patternof cocaine use where opinion would necessarily have been based in large part on defendant’s hearsay statements to expert four years after crime, and where defense was permitted to and did pose hypothetical question to expert that enabled defense to present theory the defendantkilled the victim while he was in the “tweaking” phase of his cocaine binge]; cf. People v. Whitt, supra, 51 Cal.3d at p. 644[trial | court properly excluded from penalty phase defendant’s extrajudicial ““Death Row’ assurances ofreform,” because they were not inherently reliable and their admission “wouldeffectively permit defendant to address the jury without subjecting himselfto cross-examination”].) Even assumingthetrial court erred in limiting Dr. Whiting’s _ testimony, given the jury heard Linton’s more contemporaneous, recorded statementthat he last suffered a panic attack about three monthsbefore the murder, there is no reasonably possibility the exclusion of Dr. Whiting’s testimony affectedthe death verdict. 104 VI. THETRIAL COURT PROPERLY EXCLUDED EVIDENCE THAT, IN THE MIDDLE OF THE NIGHT ABOUT THREE YEARS BEFORE LINTON ATTEMPTED TO RAPE MELISSA, ANOTHER NEIGHBOR FOUND A MALE INTRUDER WEARING ONLY UNDERWEAR IN HER HOME Linton contendsthe trial court violated his rights to due process,a fair trial, and to presenta defense whenit excluded evidence thatlate in the middle ofthe night some three years before the murder, a neighbor encountered an underwear-clad male in her home who wasnotLinton. (AOB 195-201.) Thetrial court properly exercisedits discretion and did not violate Linton’s constitutional rights in-excluding the evidence because it was irrelevant. A. The Proffered Evidence and the Trial Court’s Ruling Duringthe penalty phase, Linton soughtto introduce evidencethat, late one night about three years before the murder, his neighbor, Bettie Mercado, encountered an underwear-clad male between 25 and 30 years old in her hallway. (34 RT 5319-5322, 5334.) The prosecutor objected to the proffered testimony as irrelevant. (34 RT 5322.) Thecourt expressed doubt aboutthe relevance ofMercado’s testimony, but agreed to hear her testimony outside the jury’s presence. (34 RT 5323.) Mercadotestified that she lived around the corner from Linton, and that around 2:15 a.m. in late 1991, she heard her five- and eight-year old children chatting. (34 RT 5325-5326.) When she walked down the hallway to confront them, she met a male intruder. Mercado knew Linton andtestified that he was notthe intruder. (RT 5326-5326.) The intruder ran back to Mercado’s son’s room and grabbedhis clothes. Mercado’s husband chasedthe intruder from their home. (RT 5327.) The prosecutor objected to the admission of Mercado’stestimony on the groundit wasirrelevant. (RT 5321, 5334.) Defense counsel countered that the evidence raised a reasonable doubt about whether Linton was the - 105 person Melissa saw in her bedroom sometime before the murder. (RT 5334-5335.) The court excluded thetestimony,finding it had no relevance “whatsover.” (RT 5335.) . B. The Trial Court Properly Exercised Its Discretion in ' Excluding Mercado’s Testimony Relevant evidenceis defined as evidence “having any tendency in "reason to proveor disprove any disputed fact that is of consequenceto the determinationofthe action.” (Evid. Code, § 210.) “The test ofrelevanceis whetherthe evidence tends ‘logically, naturally, and by reasonable inference’to establish material facts such as identity, intent, or motive.” (People v. Hamilton, supra, 45 Cal.4th at p. 913.) Trial courts have broad discretion in relevancy determinations, but lack “discretion to admit irrelevant evidence.” (lbid.) Third party culpability evidence,like other types of exculpatory evidence,is admissibleonly if it is relevant, andits probative value is not. substantially outweighed by the dangers ofundue prejudice, delay or confusion of the issues. (People v. Hamilton, supra, 45 Cal.4th 863, 913.) Thus, courts are not required to admit any evidence, regardless of remoteness, to show a third person’s possible culpability.. (People v. Prince, supra, 40 Cal.4th at p. 1242.) Instead, to be admissible, third party culpability evidence must “be capable of raising a reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 833-834; see also Holmes v. South Carolina, supra, 547 U.S.at p. 327, fn. * [citing Peoplev. Hall, supra, as an example of a widely accepted third party culpability evidencerule].) Evidence of another person’s motive or opportunity to commit a crime, without more, is insufficient to raise a reasonable doubt about a defendant’s guilt. “[T]here must be direct or circumstantial evidencelinking the third person to the actual perpetration of the crime.” (d, at p. 833.) 106 In this case, not only did Mercado’s testimonyfail to link the unidentified intruder who enteredher hometo the man whoattacked Melissa, it did not even provide a motive or an opportunity for the man to attack Melissa. As Linton points out, both men entered homesin the same neighborhoodin the middle ofthe night. Mercado foundtheintruderin her © home in his underwear. Melissa said the man who chokedher was naked. ~ (AOB200; see 17 RT 2578.) But the two incidents wereabout three years apart. Asthetrial court observed, ifthe intrusion at Mercado’s home were — | “relevant, then why not bring in everyone in the neighborhood who’s ever been sexually assaulted within a few-mile radius, something like that, and say it’s not him?” (34 RT 5323.) Accordingly, the trial court properly exercised its discretion in excluding Mercado’stestimony, because it was inadmissible as third party culpability evidence andirrelevant to the issue of lingering doubt. (See e.g., People v. Hamilton, supra, 45 Cal.4th at p. 913 [trial court properly excluded profferedthird party culpability evidence in penalty phase where evidence did nothing to connect third party to crime in any manner]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1136-1137 [trial court properly excluded evidence that “Pablo or some otherthird party involved in drug trafficking had a motive or possible opportunity”to commit the murder]; People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [trial court properly excluded evidence victim associated with Hell’s Angels membersand drugdealers, because the evidencefailed to identify a possible suspect apart from defendant, did not link any third party to the comunission ofthe crime,and did not establish an actual motive for murder, only a potential one].) Because there was no state law error, Linton’s constitutional claimsalso fail. (People v. Prince, supra, 40 Cal.4th atp. 1243; People v. Panah (2005) 35 Cal4th 395, 482, fn. 31.) Even if the trial court had erred in excluding Mercado’s testimony, the error was harmless. Given the absenceofevidence linking the intruder that 107 entered Mercado’s hometo the onethattried to rape Melissa about three years later, and given Linton’s confession to having doneso, there is no ‘reasonablepossibility that Linton would havereceived a more favorable penalty phase determination but for the exclusion ofMercado’s testimony. ~ VII. THETRIAL COURT PROPERLY ADMITTED VICTIM IMPACT TESTIMONY AND PHOTOGRAPHS DURING THE PENALTY PHASE Linton contendsthetrial court erred in admitting the victim impact testimony ofMelissa’s parents and friends and the photographs ofMelissa and memorialtributes to her. (AOB 202-214.) The trial court properly admitted this evidence because it was relevantto the circumstancesofthe | crime and Melissa’s character and wasnot cumulative or unduly prejudicial. Priorto trial, the defense movedfor a ruling on the admissibilityof the prosecution’s victim-impact evidence, namely the testimony of Melissa’s parents and twoorthree ofher friends and a seven- oreight- minute videotape that contained 53 still photographs accompanied by instrumental music. (4 CT 917-1030.) The prosecutor filed a points and authorities in support of the admission of the evidence. (7CT 1863-1868.) The court watched the videotape, heard argument aboutit and the proposed testimony, and overruled Linton’s objections to the videotape and testimony. (13 RT 1728-1758.) Atthe penalty phase, the prosecutor presented the testimony of Melissa’s parents, and herfriends, Jessica Holmes and Lindsay Bryan, about Melissa’s life and character, and the impact that her murder had on them, Melissa’s other family members, and the community. The prosecutor did not show the videotape. Instead, the prosecutor elicited testimony from Melissa’s parents and Holmesabouta total of 25 photographsthat had been includedin the videotape. (32 RT 4969, 4972-4979, 4987, 4994-4996; 32 108 RT 5004-5005.) Twenty-three of the photographs depicted Melissa at: various points and events in herlife, from infancy up until shortly before . the murder. (32 RT 4969, 4972-4979, 4995-4996.) Another photograph showedthe flowers on the empty chair set up in memory ofMelissa at her school’s graduation (32 RT 5004), and another showed the memorial plaque underneath the school’s flag pole (32 RT-5004). . During examination of Melissa’s father, Linton tendered a continuing objection tothe victim impact evidence under Payne v. Tennessee (1991) - 501 U.S. 808, 825 i S.Ct. 2597, 115 L.Ed.2d 720]. (32 RT 4991, 4994.) After Melissa’s father finished his testimony, the defense complained that during the earlier testimony of Melissa’s mother, two jurors cried, two other jurors wiped their eyes, and another juror was visibly upset. (32 RT 4998-4999.) The defense argued the testimony went “far beyondthe boundsofthe brief glimpse ofvictim impact evidence.” (32 RT 4999.) The court overruled the objection as well as defense counsel’s subsequent request to strike the testimony of Melissa’s parents. (32 RT 5001, 5013.) The prosecutor later moved to admit 13 ofthe 25 photographshe had shownthe witnesses. (35 RT 5511.) The photographs showed: (1) Melissa’s schoolpicture taken in September or October of 1994, when Melissa was 12 years old (32 RT 4969; Exh. 1);(2) Melissa’s father holding her whenshe was around oneyear old and Melissa’s brother (32 RT 4972; Exh. 2); (3) Melissa sleeping at around age three (32 RT 4973; Exh. 5); (4) Melissariding a bike at age two or three (32 RT 4973; Exh.6); (5) Melissa in her Girl Scout vestat age ten or eleven (32 RT 4974; Exh. 8); (6) Melissa dressed as a Christmas package for a Christmas parade with the Girl Scouts (32 RT 4975; Exh. 10); (7) Melissa with her grandparents at Sea World (32 RT 4977; Exh. 14); (8) Melissa dressed for a dance recital. (32 RT 4995; Exh. 17); (9) Melissa at age twelve on a horse in Canada during a summervacation with her mother (32 RT 4978-4979; Exh. 18); 109 (10) Melissa at a Girl Scout father-daughter dance shortly before her death (32 RT 4995; Exh. 20); (11) Melissa with her clarinet (32 RT 4987; Exh. 21); (12) the memorial plaque for Melissa beneath the flagpole at her school (32 RT 5004; Exh. 26); and (13) Melissaat the wheelofa cruise ship during a family vacation (32 RT 4994; Exh. 27). The defense objected to the photographs ofMelissa during her | infancy and early yearsas irrelevant because she was considerably younger than twelvein the photographs. The defense also objected to the photograph ofthe memorial plaque as irrelevant. (32 RT 5512.) Defense counsel additionally objected to the number ofphotographs being submitted and their cumulative nature. Defense counsel argued the jurors were supposed to be making a reasoned,rational decision and the photographs would evoke the same emotions that the earlier testimony did. Consequently, the defense asserted the admission of the photographs would deny Lintonhis rights to due process, a fair trial, an impartial jury, and a reliable death verdict. (35 RT 5513-5514.) The court overruled the objections and admitted the photographs. (35 RT 5514.) The court rulings were proper. — In Payne v. Tennessee, the Supreme Court recognized that the specific harm caused by a defendant’s criminal act is a relevant consideration at | sentencing, and that, in order to understand this harm, states may permit the introduction ofvictim impact evidence that shows the uniquenessofthe victim as a human being. (People v. Dykes, supra, 46 Cal.4th at p. 781.) “Thehigh court determined that the state should not be prevented from ‘offering a “quick glimpse ofthe life” which a defendant “chose to extinguish,”[citation], or demonstrating the loss to the victim’s family and to society which hasresulted from the defendant’s homicide.’” (Id. at p. 781, quoting Payne v. Tennessee, supra, 501 U.S.at p. 822, alteration in original.) Thus, states ““may legitimately conclude that evidence about the 110 victim and about the impactofthe murder on the victim’s. family is relevant to the jury’s decision as to whetheror not the death penalty should be . imposed.” (People v. Dykes, supra, 46 Cal.4th at p. 781, citing Payne v. | Tennessee, supra, 501 U.S.at p. 827.) Victim impact evidenceis barred underthe federal Constitution “onlyif it is ‘so undulyprejudicial’ as to render the trial ‘fundamentally unfair.’” (Tennessee, at p. 825.) In California, victim-impact impact evidence and related “victim character” evidenceis admissible as a circumstance ofthe crime under section 190.3, factor (a). (People v. Robinson (2005) 37 Cal.4th 592, 560.).. Such evidence is inadmissible, however,if it “invites a purely irrational response from the jury... .” (People v. Lewis (2006) 39 Cal.4th 970, 1056-_ 1057.) Victim impact evidence may be providedbythe victim’s family membersandfriends. (People v. Benavides (2005) 35 Cal.4th 69, 107.) Thetrial court properly admitted the victim impact testimony of . Melissa’s parents, Holmes, and Bryan under séction 190.3, factor (a). Their testimony provideda brief glimpsein the life of Melissa. The jurors heard that Melissa waspart ofa tight-knit family. She loved animals, danced, playedthe clarinet and saxophone, went on long bike rides with herfather, was a Girl Scout, and enjoyed vacations with her immediate and extended family members. The testimony also described Melissa’s character, namely that she was a kind,affectionate, talented, and loving person. Additionally, the witnesses informed the jury of the profound andlasting impact Melissa’s murderhad on them and Melissa’s brother and grandparents. The testimony further established that Melissa’s classmates and the community also mourned her murder by placing flowers on an empty chair at her high school’s graduation, with a memorial plaque underneath the schoolflag pole, and by dedicating the Christmas parade to her. This “testimony, though emotionalat times,fell far short of anything that might implicate the Eighth Amendment.” (People v. Huggins (2006) 38 Cal.4th - 111 175, 238-239.) Instead, the testimony “is what one would expectin any case involving the murder ofa child.” (People v. Smith (2005) 35 Cal.4th 334, 365 [admissible victim-impact evidence included mother’s testimony -concerningthe loss ofher child: “‘“I don’t think the pain will ever go away ... I think the worstpart ofit is... what goes on in my mind what . happened to him. What he went though is . . . just very difficult”””]; see also People v. Dykes, supra, 46 Cal.4th at p. 782 [testimony of victim’s grandmotherandsister aboutfeeling of loss of child victim and testimony ofgrandmotherregarding victim’splan to use his allowance to buy a toy for his brother on the day of the murder properly admitted as circumstances of the crime].) | And, contrary to Linton’s position,the testimony was not too extensive. This Court has “rejected the claim that the evidence must be confined to a single witness.” (People v. Dykes, supra, 46 Cal.4th at p. 783.) Here, the prosecutor’s questioning ofthe four victim-impact witnesses wasrelatively brief— eighteen pages of transcript in the case of Mrs. Middleton, twelve pages oftranscript in the case ofMr. Middleton, six - pages of transcript in the case of Jessica Holmes,andfour pages of transcript in the case ofLindsay Bryan. Accordingly, there wasnoerror. (Id. at p. 782 [rejecting similar claim].) Linton’s challenge to the photographsfares no better. The photographs and accompanying testimony properly humanized Melissa, which is what victim-impactevidence is designed to do. (People v. Kelly (2007) 42 Cal.4th 763, 797.) The photographs provideda factual chronology ofMelissa’s life and thereby helped the jury understand the loss to her family and society that ensued from the murder. The jurors knew _ Melissa better after seeing the photographs andhearing the accompanying testimony, and neither the photographs northe descriptive testimony | expressed outrage. Moreover, the photographs did not emphasize any 112 particular period ofMelissa’s brieflife; they covered her whole life. Thus, the photographs and accompanyingtestimony wererelevant to the circumstances ofthe crime and were not unduly prejudicial. Consequently, the trial court properly exercisedits discretion in admitting them. (Seee.£.5 People v. Zamudio (2008) 43 Cal.4th 327, 366, disapproved on another ground in Peoplev. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [noerror in admitting 14-minute videotape depicting victims’ life history where narrating witness was objective and refrained from inappropriate comments that might arouse emotion, and videotape properly humanized victims, helped the jury understand theloss to the family and society with the factual chronology oftheir lives, and enabled the jury to know the victims better without emphasizing any particular period oftheir lives]; Peoplev. Kelly, supra, 42 Cal.4th at p. 797 [holding noerror in admission of 20- minute videotape containing a montage of still photographs and videoclips of victim’s life from infancy until shortly before she waskilled at age 19 and ended with a view ofvictim’s grave marker, where victim’s mother calmly and unemotionally narrated the tape, because the tape wasrelevant and not unduly emotional].) This Court has cautioned that “‘[c]ourts must exercise great caution in permitting the prosecution to present victim-impact evidence in’the form of a lengthy videotapedorfilmed tribute to the victim. ... [They] must strictly analyze evidenceofthis type and, if such evidenceis admitted, [they] must monitor the jurors’ reactions to ensure that the proceedings do not becomeinjected with a legally impermissible level of emotion.’” (People v. Zamudio, supra, 43 Cal.Ath at p. 367, quoting People v. Prince, - supra, 40 Cal.4th at p. 1289, alterations in original.) Here, the court watched the videotape that contained the twenty-fivestill photographsprior to trial. As Linton points out, some of the jurors apparently wept or wiped their eyes during Melissa’s mother’s testimony. But this did not renderher 113 testimony, the testimonyofthe other victim impact witnesses, or the photographs inadmissible. “[E]vidence concerning the impactofthe death ofa child on-his or her familyand friends is particularly poignant, but within the meaning ofPayne, supra, 501 U.S. 808, such evidenceremains - relevant to the jury’s understandingofthe harm caused by the crime.” (People v. Dykes, supra, 46 Cal.4th at pp. 781-782 [parallel citations omitted].) Becausethe victim impact evidence did not inject the . proceedings with a legally impermissible level of emotion, there was no error. | Even assumingthetrial court erred in not limiting the victim impact evidence, no prejudice ensued. Even without the victim impact testimony, - the circumstancesofthe murderitself— a twelve-year-old girl was strangled to death by her trusted, next door neighbor during the course of an attempted rape, midday in a suburban neighborhood left little doubtabout the impact ofthe crime on Melissa’s parents, her friends, and the community. (Cf. People v. Davis, supra, 46 Cal.4th at p. 618 [“Even without the victim impact testimony, the evidence ofthe prior crimes themselvesleft little doubt about the impact ofthose crimes on defendant's - victims.”].) Similarly, “no reasonable possibility ofprejudice arose from the admission of[the] quite ordinary family photographs.” (People v. Martinez (2003) 31 Cal.4th 673, 693.) Accordingly, any error does not warrant a reversal ofthe death judgment. VIII.THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC. NO.8.85 Thetrial court instructed the jury with CALJIC No. 8.85on the factors in aggravation and mitigation enumerated in Penal Codesection 190.3, subdivisions (a) through (k). (35 RT 5525-5527; 13 CT 3656-3657.) Linton contends thetrial court violated federal constitutionalrights to due process,a fair trial and a reliable penalty determination by including, over- 114 his objection, six mitigating factors that he contends were not supported by the evidence, namely factors (d),(e), (f), (g), (h) and (j). (AOB 215-222; see 13 CT 3621-3622; 32 RT 5023-5027.) He further contendsthetrial court violated his constitutionalrights by including, over hisobjection, the word “extreme”in describing the mental or emotional disturbance in factor (d). (AOB 218, 221-222; see 13 CT 3632-3633; 32 RT 5040-41.) As Linton acknowledges (AOB 218-220), this Court has repeatedly rejected both ofhis claims in past decisions. (E.g., People v. McWhorter, supra, 47 Cal.4th at p. 378 [claim inclusion of inapplicable factors violates the Constitution has been previously rejected by this Court, and inclusion of “extreme” in factor (d) does not serve as an improperbarrier of consideration of mitigating evidence]; People v. Lindberg (2008) 45 Cal.4th 1, 51 [noting Court had previously rejected challengesto use of the modifier “extreme” and declining to reconsider prior decisions]; People v. Harris, supra, 43 Cal.4th at pp. 1320-1321 [claim trial court violated constitutional rights by failing to delete inapplicable factors has been repeatedly rejected by this Court].) Because Linton provides no persuasive | reason whythis Court should reconsiderits prior precedent, his instructional error claims fail. IX. THE TRIAL COURT PROPERLY INSTRUCTED THE JURY WITH CALJIC NO.8.88 Linton contendsthe trial deprived him ofhis rights to due process, a fair trial, and a reliable penalty determination whenit instructed the jury with CALJIC No. 8.88. (AOB 223-232.) Linton’s four attacks on CALJIC No. 8.88 have already been considered and rejected by this Court in prior - cases. This Court should do likewise here. The jury wasinstructed with CALJIC No.8.88,in part, that “[t]o return a verdict of death, each ofyou must be persuadedthat the aggravating circumstancesare so substantial in comparison with the 115 mitigating circumstancesthat it warrants the death penalty instead oflife withoutparole.” (35 RT 5528.) | | Lintonfirst claims that the instruction was flawed becauseit failed to inform the jurors that ifthey determined the mitigating factors outweighed the aggravating ones, they must imposea sentence oflife without the possibility ofparole. (AOB 226-228.) This Court has repeatedly and consistently rejected this claim. (E.g., People v. Watson (2008) 43 Cal.4th 652, 702; People v. Zamudio, supra, 43 Cal.4th at p. 372; People v. Carter (2003) 30 Cal.4th 1166, 1226; People v. Duncan (1991) 53 Cal.3d 955, 978 (Duncan).) Linton, however, takes issue with this Court’s decision in Duncan. There, this Court held that “[t]he instruction clearly stated that the death penalty could be imposed only ifthe jury found that the aggravating circumstances outweighed mitigating.” (Duncan, at p.978.) This Court further concludedthat “[t]here was no needto additionally advise the jury of the converse(i.e., that if mitigating circumstances outweighed aggravating, then life without parole was the appropriate penalty).” (/bid.) Linton challengesthelatter conclusion. Specifically, after noting that this — Court did not cite any supporting authority, Linton argues that the conclusion conflicts with opinions that have disapproved instructions that emphasize the prosecution’s theory and ignore or minimize the defense theory. (AOB 227, citing People v. Moore (1954) 43 Cal.2d 517, 526-529; People v. Costello (1943) 21 Cal.2d 760; People v. Santana (2000) 80 Cal.App.4th 1194, 1209.) “Contrary to [Linton’s] characterization of the instruction, CALJIC 8.88 highlights the significant burden that must be satisfied before a verdict of death may be returned, and thereby conveys that life in prison without the possibility of parole is the appropriate punishmentifthis burdenis not met.” (People v. Page (2008) 44 Cal.4th 1, 57.) 116 Linton’s second contentionis that the trial court etred whenit denied the defense request to supplement CALJIC No. 8.88 with an instruction that the jury did not needto find mitigation in order to imposea sentenceoflife withoutthe possibility ofparole. (AOB 228-229; see 32 RT 5055-5056.) “[UJnder CALJIC No.8.88, whichwas given here, ‘[n]o reasonable juror would assumeheor she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were foundto exist.’” (People v. Geier (2007) 41 Cal.4th 555, 616, quoting People v. Johnson (1993) 6 Cal.4th 1, 52; see People v. Lindberg, supra, 45 Cal.4th at p. 52 [rejecting claim CALJIC No. 8.88 is unconstitutional becauseit fails “to informthe jury that it may return a sentenceoflife withoutthe possibility ofparole even in the absence of mitigating evidence”); People v. Lewis (2008) 43 Cal.4th 415, 533 [trial court was not requiredto tell jury it had discretion to imposesentence oflife without the possibility of parole even if there were no mitigating circumstances].) | Third, Linton argues CALJIC No.8.88’s “so substantial” standard for evaluating mitigating and aggravatingcircumstancesis “vague, directionless and impossible to quantify.” (AOB 230.) This Court has consistently rejected this argument. (E.g., People v. Carrington (2009) 47 Cal.4th 145, 199 [not vague]; People v. Lewis, supra, 43 Cal.4th 415, 533 [same]; People v. Geier, supra, 41 Cal.4th at p. 619 [same]; Peoplev. Breaux (1991) 1 Cal.4th 281, 315-316 [not vague, directionless or impossible to quantify]; People v. Nicolaus (1991)54 Cal.3d 551, 591 [same].) In arguing to the contrary, Linton notes that the Georgia Supreme Court ruled that the word “substantial” rendered a Georgia capital instruction impermissibly vague. (AOB 230, citing Arnold v. State (1976) 236 Ga. 534, 224 S.E.2d 386 (Arnold).) Linton’s reliance on Arnold is misplaced because the difference between the use of the word “substantial” 117 in the instruction in Arnold and CALJIC No.8.88 are “obvious.” (People v. Breaux, supra, | Cal.4th at p. 316, fn. 14.) The Arnoldjurors were asked to determine, “in isolation and without further guidance, whether a defendant’s prior criminal record was ‘substantial[.]’” (People v. Page, supra, 44Cal.4th at p. 56.) In contrast, here the jurors “were instructed extensively with respect to the manner ofperformingtheir task and were called upon to comparethetotality ofthe aggravating circumstances with the totality of the mitigating circumstances.” (bid; see 35 RT 5535-5528.) Theinstructions “adequately explained that the jurors ‘could return a death verdict only if aggravating circumstances predominated anddeath is the appropriate verdict.”” (People v. Page, at p. 56, quoting Breaux, supra, at p. 316.; see 32 RT 5527-5528) Accordingly, Linton’s attack on the “so substantial” standard should berejected. Fourth and finally, Linton asserts that CALJIC No.8.88failed to inform the jury that the central decision at the penalty phase is the determination of appropriate punishment, not whether deathis warranted. (AOB 231.) Again, this Court has repeatedly and consistently rejected this argument. (People v. Rogers (2009) 46 Cal.4th 1136, 1179; People v. Lewis, supra, 43 Cal.4th at p. 533; People v. Breaux, supra, | Cal.4th at pp. ' 315-316.) Linton provides no persuasive reason to reconsiderthis precedent. Accordingly, as with his other attacks on CALJIC No.8.88, this claim should berejected. X. LINTON FORFEITED SEVERAL OF HIS PROSECUTORIAL _ MISCONDUCT CLAIMS; ALL OF His CLAIMS LACK MERIT Linton contends the prosecutor committed misconduct on numerous occasions during his penalty phase closing argument,violating his constitutionalrights to due processanda fair trial. (AOB 233-256.) Linton forfeited many ofhis claims by failing to object. In any event, the 118 prosecutor did not commit misconduct, and even if he had, no prejudice ensued. Improper prosecutorial argumentviolatesthe “federal Constitution 666 whenit ““so infect[s] the trial with unfairness as to maketheresulting conviction a denial of due process.””” (People v. Cash (2002) 28 Cal.4th 703, 733, quoting Darden v. Wainwright (1986) 477 U.S. 168, 18 [106 S.Ct. 2464, 2471, 91 L.Ed.2d 144].) Improper argumentviolates state law. . “when it involves ‘the use of deceptive or reprehensible methodsto attempt to persuadeeither the court or the jury.’” (Ibid, quoting People v. Earp (1999) 20 Cal.4th 826, 858.) Penalty phase misconduct requires a reversal only ifthere is a reasonable possibility the jury would have rendered a more favorable verdict absent the error. (People v. Dykes, supra, 46 Cal.4th atp. 786, citation omitted.) To preserve a claim ofprosecutorial misconductfor appeal, a defendant must make a timely objection and request an admonition, unless an admonition would not have cured the harm. (People v. Friend (2009) 47 Cal.4th 1, 29.) Linton recognizes that he failed to object to many ofthe parts ofthe prosecutor’s arguments that he now claims were improper. He asserts that this Court should nonetheless consider the merits ofhis claims because: (1) an admonition would not have cured the harm;(2) an objection would have been futile; (3) the errors individually and collectively deprived him of “certain fundamental constitutional rights”; (4) the trial court had some responsibility to intervene on its owninitiative; and (5) counsel was ineffective in failing to object. (AOB 233-236.) Asthe below discussion of the unobjected to claimsof alleged misconduct shows,a timely objection and admonition would have cured any harm. The record refutes Linton’s claim that a proper objection would have beenfutile or that defense counsel believed this was so as defense counsel continued to object and the court sustained defense counsel’s 119 meritorious objection. (E.g., 36 RT 5612, 5618, 5620; see People v. Friend, supra, 47 Cal.4th at p. 30.) Linton’s fundamental rights argument does not provide.a basis for avoiding the forfeiture rule. (People v. Burney (2009) 47 Cal.4th 203, 266.) Nor does his assertion that the trial court had “some responsibility” to intervene on Linton’s behalf. (See Peoplev. Daniels (1991) 52 Cal.3d 815, 891 [rejecting argument court has a duty during penalty phase “to protect against the danger that a verdictis the product of improper argument whetheror not defendant objects”].) Finally, because the prosecutor did not commit prejudicial misconduct, defense counselwasnotineffective in failing to object. (People v. Boyette, supra, 29 Cal.4th at p. 433.) A. The Prosecutor Properly Attacked the Defense Argument and Case Lintonargues the prosecutor improperly demonized defense counsel at several points during his final argument. (AOB 238-241.) Linton forfeited his claims by failing to object to any ofthe comments discussed below. In any event, there was no misconduct. A “prosecutorhas widelatitude in describing the deficiencies in opposing counsel’s tactics and factual account.” (People v. Bemore (2000) 22 Cal.4th 809, 846.) But a prosecutor may not “cast aspersions on defense counsel or suggest that counselhas fabricated a defense.” (People v. Mendoza (2007) 42 Cal.4th 686, 701.) The question on appeal when a defendant claims a prosecutor improperly impugnedthe integrity of defense counsel during argumentis “whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarksin an objectionable fashion.’” (People v. Cash, supra, 28 Cal.4th at p. 733.) Linton first contends the prosecutor improperly argued, “Defense counselwill belittle the facts, accuse me of speculation. I didn’t createthis evidence.” (36 RT 5606.) But in so arguing the prosecutor did not engage 120 in the forbiddentactics offalsely accusing defense counseloffabricating a defense or deceiving the jury in another manner. (People v. Huggins, supra, 38 CalAth at p. 207.) Instead, the prosecutor “attacked the defense case and argument.” (People v. Smith (2003) 30 Cal.4th 581, 635.) Just before the prosecutor made the above-quoted statements, he asserted that Linton masturbated in Melissa’s underwearafter he killed her. Defense counsel interjected, “Your Honor, objection. There’s absolutely no evidence ofthat whatsoever.” (36 RT 5606.) The court overruled the objection, finding the argument came “within the reasonable range ofthe evidence.” (36 RT 5606.) And during closing argumentthe previous day, co-defense counsel attempted to minimizethe facts ofthe crimes and asserted that the prosecutor had speculated during his opening argument. (35 RT 5571-5580.) Attacking an opponent’s case and argumentis not only proper,it is “the essence of advocacy.” (Id. at p. 635.) Consequently, it is not reasonably likely the jury construed the challenged commentas a personal attack on defense counsel’s integrity. (People v. Huggins,at p. 207 [rejecting claim prosecutor improperly attacked integrity of defense counselby arguing, “Now,[defense counsel] has a tough job, and hetried to smoke onepast us,”and that counsel “will admit only whathe hasto admit and no more. Hewill comein at the lowestprice possible.”]; People v. Cole (2004) 33 Cal.4th 1158, 1203 [“it is not reasonably likely that the jury understood the prosecutor’s references to defense counsel as ‘deceiv[ing],” ‘unfair,’ ‘misleading,’ or ‘tricky’ to be personal attacks on counsel’s integrity”’].) Linton’s remaining claims are likewise without merit. As Linton points out, the prosecutor argued: “The defense in this case has been designed to desensitize you to the crimes that the defendant committed. I want you to recognize,ifyou have notalready,the language of manipulation. Her murderis referred to as a tragedy. It’s 121 not a tragedy,it’s a murder. It’s repeatedly said that Melissa died. Melissa didn’t die, she was killed. [She wasstrangled to death. The defendant was abusing controlled substance. He wasself-medicating. You have repeated use ofthe defendant ~defendant’s first name referring to his as Daniel and as a boy.] The defense has attemptedto present evidence ofhis entire childhood to you, especially at the agesoffive and eight, to attempt to humanize him,to divert attention away from the crime he committedand the reason| why he’s here. “And perhaps the most glaring example of a technique used to divert attention away from the defendant, whois the focus ofthese proceedings,is to paint other people, other persons,as the bad guy, as the bad guy. It’s been the big bad D.A.in this case who’s overfilled it, who’s overchargedit, who’s madeortried to make it look, according to the defense, as ifthe defendant did more than he actually did, committed more crimesthan he actually did. “And Mr. Ebert gets up here andtries to analogize the charges in this case to a disciplinary marker[he gotin jail for possession of dice written by a correctional officer].” (AOB 239,citing 36 RT 5609-5610 [bracketed language in transcript].) | This was a proper attack on defense counsel’s earlier argument and the defense case. Defense counsel referred to Melissa’s murder as a “tragedy” in opening statement and closing argument. (33 RT 5097, 5105; 35 RT 5571, 5593.) Defense counselalsostated during closing argument that “Melissa died.” (35 RT 5572, 5581, 5591). And, as the summary of the defense penalty phase evidence shows, Linton presented evidenceofhis entire childhood, focusing on evaluations that occurred when he wasfive and eight years old. Defense counsel emphasized this evidence during argument. (35 RT 5583-5584.) Furthermore, defense counsel argued that Linton did not have any criminal problemsuntil he started associating with Montero, and that the prosecutor overcharged the case. (35 RT 5593, 5579- 5580.) The defense also argued that the “real tragedy” was that instead of; 122 admitting andaddressing Linton’s problems,his father swept them “under the rug.” (35 RT 5589.) Finally, defense counsel analogized what he suggested was the overcharging in Linton’s criminal caseto the disciplinary markerthat Linton received for possessing dice. (35 RT 5580-5581 ) Thus, there was no misconduct. (People v. Huggins, supra, 38 Cal.4that p. 207; People v. Cole, supra, 33 Cal.4th at p. 1203.) The prosecutoralso argued,“The defense will belittle the charges, they belittle the evidence, they belittle the crime,all for the goal of divertingattention away from Daniel Linton.” (36 RT 5610-5611.) Again, this was anattack on the defense case, not counsel’s integrity. (People v. Huggins, supra, 38 Cal.4th at p. 207; People v. Cole, supra, 33 Cal.4th at p. 1203.) During closing argument, defense counsel minimized the crimes and evidence and argued the prosecutor overcharged the case. (35 RT 5574-5581.) The prosecutor further argued: And they know they only need one of you. They only - need oneofyou to fall for their diversion. They want you to believe the defendantis not that bad. It’s his first time | committing a crime. It’s his first time, so he deserves the morelenient sentence. Think about that argument for whatit is. (36 RT 5613.) . Defense counsel earlier emphasized that Linton had never been in trouble for anything before and had mental and emotional problems for which he did not receive adequate treatment. (35 RT 5582-5594.) Consequently, there is no reasonable likelihood the jury viewed the prosecutor’s argumentas an attack on defense counsel’s integrity rather than the defense argument. (People v. Huggins, supra, 38 Cal.4th at p. 207; People v. Cole, supra, 33 Cal.4th at p. 1203.) 123 The prosecutor argued: Particularly appalling is the audacity of defense counsel in calling or evoking Melissa Middleton’s name in an attempt to makea pleafor the lesser sentence in this case. Not only appalling, it was offensive. (36 RT 5618.) Defense counsel argued that Melissa would not want Linton to be ~ sentenced to death given that she wasthe “kindofperson that brought a wasp home... .” (35 RT 5590-5591.) The prosecutor’s commentattacked — this argument, not defense counsel’s integrity. Thus, there was no misconduct. (People v. Huggins, supra, 38 Cal.4th at p. 207; People v. Cole, supra, 33 Cal.4th at p. 1203.) . AsLinton notes, the prosecutor further argued, “‘[t}he defense, in the People’s position, has exaggerated the abuse the defendanthas suffered in - his childhood.’” (36 RT 5608.) During penalty phase arguments, prosecutors may express their beliefs ifthey “are based on the evidence presented.” (People v. Cook (2006) 39 Cal.4th 566, 613.) Here, there was a disparity in the childhood abuse described by Linton’s family members and what Linton himself reported to Dr. Rath. (Compare 12 CT3391- 3395, 3399 with 33 RT 5196-5208, 5246, 5250-5251; 34 RT 5258-5261, 5269, 5277, 5305; 35 RT 5475, 5478.) This disparity “was a legitimate subject ofprosecutorial comment.” (See e.g., Id. at p. 613 [disparity. between evidence andits characterization at trial as a kidnapping was a legitimate subject of prosecutorial comment].) Moreover, there is no reasonable likelihood that the jury construed the prosecutor’s exaggeration commentas an attack on the integrity of defense counsel. Finally, the prosecutor followed the above-quoted sentencebystating, “Undue emphasis has beenplaced, I would suggest, on his personality flaws and social inadequacies. They do not mitigate the crime.” (36 RT 5608.) The totality of this portion of the argument wasa proper response to defense 124 counsel’s discussion of Linton’s emotional problems and “[mJental handicaps[,]” and how Linton “neverreally had a chance[.]” (35 RT 5582- 5590 [defense counsel’s argument].) Accordingly, the prosecutor did not commit misconduct. Evenifthe jury could have construed one or more ofthe above- quoted commentsas an attack on defense counsel’s integrity, no prejudice ensued. Except for one, the challenged comments wererelatively brief. Andall were in response to the defense arguments and case. Additionally, the trial court instructed the jurors that they were to decide penalty based on the evidence presented throughoutthe case andthat they were to be guided by the statutory factors set forth in section 190.3. (35 RT 5525-5527; 13 CT 3655-3657.) The jurors were also instructed that the statements of counsel were not evidence. (17 RT 2500; 30 RT 4557; 13 CT 3447; see also 36 RT 5572 [defense counsel reminding jurors that the statements of counselare not evidence].) The jury is presumed to have followed these instructions. (People v. Smith (2007) 40 Cal.4th 483, 517.) Finally, the circumstances in aggravation were overwhelming. Linton used the keys that Mr. and Mrs. Middleton entrustedto him to enter their _ home and attemptto rape twelve-year-old Melissa while they were sleeping in the nearby bedroom. (12 CT 3313, 3319, 3365; 17 RT 2564, 2567, 2588.) When Melissa awokeandstarted to say she was going to wake her ' parents, Linton grabbed her by the throat andleft as she gaspedfor air. (12 CT 3313.) Undeterred by the possibility of getting caught, Linton returned to the Middletons’ home during broad daylight about two monthslater, again used the their keys to enter their home, and then strangled Melissa to death while he molested and attempted to rape her. (12 CT 3307, 3318, 3328, 3354, 3366, 3368.) Afterward, he wiped nearby surfaces to remove his fingerprints, returned to his house, showered, launderedhis clothes, and threw the Middleton’s keys, Melissa’s semen-stained underwear, and 125 Melissa’s ring in the trash. (12 CT 3344-3345, 3357-3358; 19 RT 2801- 2806.) In view ofthese circumstances, there is no reasonable possibility that Linton would have received a more favorable verdict had the prosecutor not madeoneor more ofthe above-quoted statements. (See People v. Young (2005) 34 Cal.4th 1149, 1193 [no prejudice ensued from ' prosecutor’s characterization ofdefense counselas liars during guilt-phase argument].) © B. The Prosecutor Did Not Improperly Vouchfor His Team or His Case Linton contendsthat the prosecutor also improperly vouched for key prosecution witnessesin the following portion of his argument, which,as noted above, he also contended was an improperattack on defense counsel’s integrity. Respondent has set forth the challenged portion ofthe argument again here for convenience. | Andperhapsthe most glaring example of a technique used to divert attention away from the defendant, whois the focus of these proceedings, is to paint other people, other persons,as the bad guy,as the bad guy. It’s been the big bad D.A.in this case who’s overfiled it, who’s overchargedit, who’s madeortried to makeit look, according to the defense, as ifthe defendant did more than heactually did, committed more crimes than he actuallydid. (AOB 242, quoting 36 RT 5609-5610.) Linton forfeited this claim by failing to object. In any event, there was no improper vouching. It is misconductfor prosecutors to bolster their case “‘by invoking their personalprestige, reputation, or depth of experience, or the prestige orreputation oftheir office, in support ofit.’” (People v. Bonilla (2007) 41 Cal.4th 313, 336, quoting People v. Huggins, supra, 38 Cal.4th at pp. 206-207.) It is also misconduct for a prosecutor to suggest that evidence available to the government, but not before the jury, corroboratesthe testimony of a witness.’” .(/d., quoting Peoplev. 126 Cook, supra, 39 Cal.4th atp. 593.) The problem with such comments is that jurors may construe them aspermitting them ““‘to avoid independently | assessing witness credibility and to rely on the government’s view ofthe evidence.’” (People v. Bonilla, supra, 41 Cal.4th at p. 336.) . Linton contends the prosecutor’s argument was “problematic because it implies that the district attorney is the ‘good guy’ who has evidence that the jury does not know aboutandthat the jury shouldtrust him,as the public prosecutor, to be doing the right thing.” (AOB 242.) But rather than vouchingforhis case or any ofthe witnesses, the prosecutor was simply commenting on a defense tactic, namely, that the defense was trying to divert attention from Linton’s culpability by painting others, including the prosecutor, as the bad guys. “It is not misconductfor a prosecutor to argue that the defense is attempting to confuse the jury.” (People v. Kennedy (2005) 36 Cal.4th 595, 626.) Moreover, given the content ofthe statement, there is no reasonablelikelihood that the jury would have viewedit as invoking the personal prestige of the District Attorney’s Office or as _ suggesting that the prosecutor had evidencethat corroborated the prosecution’s theory that had not been madeavailable to the jury. Accordingly, there was no misconduct. (See e.g., Jd. [rejecting claim that prosecutor improperly vouchedfor his case when he arguedto the jury that defense counsel’s “idea ofblowin’ smoke androiling up the waters to try to confuse youis you put everybodyelse on trial’”].) | _ Even ifthere had been misconduct, there is no reasonable possibility Linton would have received a more favorable verdict without the comment given its brevity and the context in whichit was made, the court’s instructions that the arguments of counsel were not evidence, and the strength of the aggravating circumstances. (See People v. Loker, supra, 44 Cal.4th at p. 740 [improper vouching was harmless under any standard where court promptly admonishedthe jury about prosecutor’s personal 127 views and remindedjurors on other occasionsthat the arguments ofcounsel were not evidence and where prosecutor emphasized his opinion was not determinative].) C. The Prosecutor Argued Reasonable Inferences Based on the Evidence . “*Prosecutors have wide latitude to discuss and draw inferences from the evidenceattrial.’”” (People v. Smith, supra, 30 Cal.4th at p. 617, quoting People v. Dennis (1998) 17 Cal.4th 468, 522.) The reasonableness of such inferencesis a question for the jury to determine. (Jbid.) It is misconduct, however, “for the prosecutor to state facts not in evidenceorto imply the existence of evidence knownto the prosecutor butnot to the jury.” (bid.) 1. The prosecutor properly argued that Linton masturbated in Melissa’s underwearafter the murder Linton challenges the prosecutor’s argument about his post-murder masturbation. (AOB 243-245.) The prosecutor argued; “The defendant masturbated after he killed MelissaMiddleton. It’s a disgusting thought, I know.” (35 RT 5559.) Linton’s counsel interjected, “Your Honor, there’s no evidenceofthat.” (35 RT 5559.) The prosecutor continued, “The evidence shows that[,]” and the court interjected, “[the prosecutor] is discussing reasonable interpretations. It’s up to the jurors to determine whetheror not that’s reasonable.” (35 RT 5559.) The prosecutor continued, Whyelse does he destroy or attempt to destroy and conceal that underwear after the commission ofthe murder? He had had that underwear for months before. Why doesn’t he just throw it awayafter it’s found in his room or in—he does the laundry or something? He’s got possession ofit. [{] Does it makesense that he’s just going to have this stuff? Why does — why doeshe use it to masturbate? Melissa’s dirty underwear. Think aboutit. [{] The reasonable 128 inference from all ofthis evidence, ladies and gentlemen,is — it’s overwhelmingly clear. Hestole it after he murdered her because he’s killed her. (35 RT 5559.) During final argument, the prosecutor asserted: Andthe most glaring, unremorseful and disgusting fact ofthis case is that with Melissa’s face, dead face, fresh in his mind, the defendant, Daniel Linton, his sexual urges unrequited, had to satisfy himselfusing Melissa’s underwear. (36 RT 5605-5606.) Defense counsel objected, “There’s absolutely no evidence ofthat whatsoever.” The court ruled, “Again,it’s something that the jurors can determine for themselves, if it comes within the reasonable rangeofthe evidence.” (36 RT 5606.) After defense counselindicated she wasalso objecting under the federal Constitution, the prosecutor continued: Defense counsel will belittle facts, accuse me of speculation. I didn’t create the evidence. J didn’t have Melissa’s underwear in my possession and put them in the ~ trash can with the keys, with her ring. The defendant did. Andit’s that. proximity in time and place in his possession that leads to rational inferences. They didn’t just happen to fall into the trash at the same time by somebodyelseputting them there other than the defendant. [{] With the face of death fresh in his mind, he had to — and excuse mefor being blunt — get himself off, which showsyouhis true intent and his obsession with Melissa Middleton. (36 RT 5606.) Asthe above-quoted portions of argument show,the prosecutor did not argue a fact not in evidence or imply he knew of evidencethat the jury did not know about. Instead, the prosecutor properly asked the jury to draw an inference from the evidence presentedattrial that Linton masturbatedin a pair of Melissa’s underwearafter he killed her. The evidence adducedat trial amply supported the prosecutor’s argument. Melissa’s shorts were 129 unzipped when her mother found her dead body. (17 RT 2555, 2558.) Although there was no semen on Melissa’sshorts or the underwear she had on underneath hershorts, Linton admitted to the police that the thought of raping Melissa crossed his mind when he unzipped hershorts. (12 CT 3366; 21 RT 3235-3238.) Linton also admitted that he attempted to rape Melissa about two months before the murder. (12 CT 3364.) Linton said he used the Middleton’s keys to enter the Middleton’shomeon the day of the murder, and returned to his home afterward. (12 CT 3318.) He also | - indicated that the Middleton’s keys were in the trash inside his home. (12 CT 3319.) Thepolice found the Middleton’s keys along with Melissa’s ring and semen-stained, soiled underwear in Linton’s kitchen trash. (19 RT 2800-2806; 21 RT 3261-3264.) DNA analysis established that Linton was the source ofthe semen that was on parts ofMelissa’s underwear, but not the crotch area. (21 RT 3261, 3265-327 1.) Asthe prosecutor argued to the jury, ifLinton had just found the ring and dirty underwear at his house, how would he have knownthat they belonged to Melissa? Moreover, if he had foundthe underwearat his home and knew they were Melissa’s, why would he care or masturbate in them? (35 RT 5559.) While Linton complainsthat the prosecutor’s argument was speculative and without foundation, the reasonableness of the prosecutor’s inference, which the court and prosecutorclearly informed the jury was an inference, was a question for the jury. Accordingly, there was no misconduct. (See e.g., People v. Boyette, supra, 29 Cal.4th at p. 436 [rejecting misconduct claim where prosecutor’s argument was a reasonable inference from the evidence and unobjectionable rhetoric].) Evenifthe prosecutor had erred, no prejudice ensued. Again, the prosecutor and the court madeit clear to the jury that the prosecutor was drawing an inference from the evidence that Linton masturbated in Melissa’s underwearafter the murder. The prosecutoralso identified the - 130 evidence that he believed supported the inference. (35 RT 5558-5561.) Additionally, the jury was instructed thatit was to “determine whatthe facts are from the evidence received during the entire trial, unless you are specifically instructedotherwise.” (35 RT 5525; 13 CT 3655.) The jury wasalso instructed that the statements of counsel were not evidence. (17 RT 2500; 30 RT 4557; 13 CT 3447; see also 36 RT 5572.) Furthermore, defense counsel arguedto the jury that the prosecutor’s suggestion that Linton masturbated over Melissa’s body wasa “vile fantasy,” as there was no fresh semen on the underwear in his trash, no semen on the clothes . Linton woreat thetime of the murder, and no evidence as to when Linton masturbated in Melissa’s underwear. (36 RT 5669.) Consequently,it is not reasonably possible that, but for the challenged comments, Linton would have received a more favorableresult. (People v. Valdez (2004) 32 Cal.4th 73, 134 [any possible prejudice from prosecutor’s misstatement of evidence was mitigated by the court’s instruction that counsels’ statements were not evidence].) 2. The prosecutor properly inferred from the evidencethat Linton did not show remorse on the day of the murder Linton complains that theprosecutor improperly arguedthat he expressed no remorseon the dayofthe murder because there was no evidence to support this argument. He also appearsto be asserting that the prosecutor violated his right to confrontation in so arguing. (AOB 245- 246.) Before quoting the portion of the argument Linton challenges,it is useful to place the prosecutor’s comments in context. The prosecutor beganhis discussion on Linton’s lack of remorse by noting that Lintonleft Melissa proppedupat the foot of her mother’s bed for her mother to find. Linton did not call 911, which the prosecutorasserted is what a normal 131 person whohadpanicked and accidentally killed someone would have done. (36 RT 5604-5605.) The prosecutor noted Linton instead “covered up his tracks[,]” stole one ofMelissa’s rings and a pair ofher soiled underwear, and masturbated in the stolen underwear. (36 RT 5605-5606.) The prosecutor continued: Nothing Daniel Linton did the next day, November 30th, 1994, whenthe officer came to pick him upat his house to talk to him some more, nothing he did that day can erase or mitigate what he had doneto Melissa andto her family the prior day. When you’re looking for any sign. ofremorse that is important as a mitigating factor in this case, look at his actions on the day that it counts, on the day that it matters, on the day when one wouldbe revolted. (36 RT 5606-5607.) Atthis point, defense counsel objected: “Your Honor, Sixth Amendmentright to confrontation. We had no opportunity to cross- examinethis witness.” After the court overruled the objection, the prosecutor argued: . The day where one would be revolted by one’s conduct if one had in him that humanfeeling, natural emotion, and not the mentality ofa killer. That’s when it counts. Not after police suspicion has focused on you,not after they have been asking probing questions abouta priorincident, not after they’ve noticed scratches on your arm,and notafter they’ve asked you to come downto the policestation to talk further about the case. It wasn’t until the next day that Mr. Linton ever expresses any sorroworgrief. (36 RT 5607.) Defense counsel renewed her Sixth Amendment objection and the court again overruled it. (36 RT 5607.) The prosecutor then questioned whether Linton would have turned himself in but for Detective ” Stotz’s observations of his nervousness, the scratches on his arm, and the inconsistencies in his statements at the door. (36 RT 5607.) 132 Linton contends the objected-to portions ofthe prosecutor’s argument were improper. The prosecutor’s argumentdid not violate Linton’s right to confrontation because the prosecutor did not inject his own unsworn testimony concerning his observations ofLinton during the interview in Linton’s bedroom. Instead, the prosecutor’s comments were based on the evidence that was presented to the jury through the testimony of Detectives Stotz and Lynn aboutthe questioning ofLinton at his front doorand the testimony ofDetective Stotz about what Linton said during the bedroom interview. (17 RT 2628-2631; 18 RT 2744-2766.) Thus, the prosecutor did not commit misconductin this regard. (See e.g., People v. Johnson (1992) 3 Cal.4th 1183, 1224-1226 [rejecting claim prosecutor injected his unsworn testimony in closing argument where argumentwassufficiently supported by the testimony oftwo witnesses].) Linton forfeited his claim that the prosecutor’sargument assumed a fact not in evidence by failing to object on this ground below. Even if he . did not, the claim lacks merit because the prosecutor was properlyinviting the jury to draw an inference that Linton lacked remorse from the evidence that he failed to call 91 1, tried to cover “his tracks” (12 CT 3344-3345, 3357-3358; 19 RT 2801-2806), masturbated in Melissa’s underwearafter the murder (12 CT 3318-3319, 3364, 3366; 19 RT 2800-2806; 21 RT 3261- 3271), and did not confessuntil the next day, after the police suspicion had focused on him (17 RT 2628-2631; 18 RT 2744-2766, 2768-2769; 12 CT 3288). In arguing to the contrary, Linton urges that the prosecutor’s characterization of him as lacking in remorse was inaccurate. He notes that he confessed the following morning soon after he waspicked up and explainedto the police that he did not confess the night before because he did not wantto do so in front of his parents. (AOB 246.) But the reasonablenessofthe prosecutor’s inference was a question for the jury to decide. Because the prosecutor did not rely on facts not in evidence and 133 instead simply invitedthe jury to draw a particular inference from the evidence, there was no misconduct. (See People v. Wharton (1991) 53 Cal.3d 522, 593.) . | But even if the prosecutor’s argument hadbeen improper, a reversal would not be warranted. Defense counselcountered the prosecutor’s argumentby noting that Linton did express remorseinthe police car the . day after the murder when he admitted he killed Melissa. (36 RT 5677.) The court also instructed the jury that the statements of counsel were not evidence. (17 RT 2500; 30 RT 4557; 13 CT 3447; see also 36 RT 5572.) Under these circumstances, there is no reasonablepossibility Linton would have received a more favorable verdict but for the prosecutor’s remorse argument. (People v. Valdez, supra, 32 Cal.4th at p. 134.) 3. The prosecutor properly argued that a sentence of life in prison withoutthe possibility of parole was not sufficient The prosecutor arguedthatlife without the possibility ofparole was not an appropriate punishmentin this case: I suggest to youit’s not enough in this case. The defendantwill havea life, if you let him havelife without parole. He will have a community ofpeople that he deals with. He will have his friends. He will have money to buy things. Hewill have television. He will have books. Hewill havevisits from his family. (36 RT 5563.) Defense counsel objected on the ground there was no evidence that Linton would havea television or books or anythinglikethat. (36 RT 5563.) The court overruled the objection. The prosecutor then continuedhis discussion onthis subject by noting that Linton would have telephone calls andvisits and be able to keep up with the lives ofhis family members, things that Melissa and her family would never have. (36 RT 5563.) 134 The evidence adduced attrial supported the prosecutor’s argument, in part. The jury heard testimony from Linton’s family membersoftheir post- incarceration interactions with Lintonin letters, in person, and on the telephone, how Linton had matured and gained confidence duringthis time- frame, how his parents and grandmother sent him money, and how he had purchasedthingsforhis fellow inmates with that money. (33 RT 5224; 34 RT 5281, 5316; 35 RT 5488-5491, 5495.) The jury also heard testimony that Osborne continued to play Dungeons and Dragons with Linton through the mail. (35 RT 5457.) Although the testimony concernedinteractions with Linton in jail and not prison, and there was no evidence that Linton would have books andtelevision in prison, the point of the prosecutor’s argument wasthat a sentence oflife without thepossibility of parole would enable Lintonand his family to continue to enjoy benefits that Melissa and her family could not enjoy, and thereforelife without the possibility of parole was not an appropriate sentence. Consequently, the prosecutor’s argument was proper. (Cf. People v. Sanchez (1995) 12 Cal.4th l, 73, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th atp. 421, fn.22 [no misconduct where reasonable jury would interpret brief statementthat life without the possibility of parole meantbeing alive “as an attempt to contrast ‘victim impact’ evidence against the penalty the prosecution believed defendant deserved”}; but see People v. Hill (1998) 17 Cal.4th 800, 838 [prosecutor improperly described conditionsoflife in prison where no evidence in record regarding conditions, but brief and mild comment wasnot prejudicial standing alone].) Evenifthe prosecutor erred in making the challenged remarks, there is no reasonable possibility that these brief and mild comments were prejudicial. While Linton speculates that“ajuror unversed with the ways of the criminal justice system might conclude [from the prosecutor’s] argumentthat [he] would be living the cushy life at a ‘Club-Fed’ type 135 facility” (AOB 247), the prosecutor dispelled any such notion by prefacing the.above-quoted remarks with an acknowledgementthatlife in prison withoutthe possibility ofparole is a “severe, severe punishment,”“a hard and severe punishment” (36 RT 5562-5563). Defense counsel also argued to the jury that a sentence oflife without possibility ofparole is not leniency but “one ofthe two mostterrible punishmentsthat our society imposes.” (36 RT 5628.) The defense also respondedto the prosecutor’s argumentin herrhetorical question to the jury: “And do youthinkit’s | lenient to spendthe rest ofyour natural life withno hopeofrelease, no hope of freedom, behind concrete walls, encased in a room thesize of a bathroom, where you haveno privacy, where you have no freedom, no hopeoffreedom? Is that leniency?” (36 RT 5673.) And, as repeatedly noted above, the jury wasinstructed that the statements of counsel are not evidence. (17 RT 2500; 30 RT 4557; 13 CT 3447;see also 36 RT 5572.) Underthese circumstances, any impropriety in the prosecutor’s argument wasnotprejudicial. (People v. Valdez, supra, 32 Cal.4th at p. 134.) D. The Prosecutor Properly Urged the Jury to Affirm. Community Values by Returning a Death Verdict Linton contendsthe prosecutor improperly appealed to public passion and sentimentin arguing: I’d suggest to youthat a death verdict, ladies and - gentlemen,is the ultimate validation ofwhat we hold and value most dear in our community andas individuals: Our life, our children, and the sanctity ofour home. Andifyou were to find that death is the appropriate sentence for Mr. Linton, you are doing no more than affirming in the loudest voice possible those values in our community. (36 RT 5619-5620.) The defense objected that “public community and public sentimentis improper argument, and there’s a referenceto that, the sanctity of our homes.” (36 RT 5620.) The prosecutor countered,“I’m commenting on - 136 the circumstancesofthis crime warranting — or how they warrantthe more appropriate sentencehere is death. He violated the sanctity ofa homein our community when hekilled a child who wasto be safe in that home.” | (36 RT 5620.) The courtsustained the defense objection. (36 RT 5620.) The prosecutor then argued, “A death verdictis the ultimate validation of our community values. Let the punishmentfit the crime. A death verdict says we will not tolerate this type of crime.” Defense counsel objected that the prosecutor was again appealing to public sentiment; the court disagreed. (36 RT 5620.) Linton forfeited his claim as to the first portion of the prosecutor’s argument by failing to request an admonition. His claimsalso fail on the merits because the prosecutor’s argument wasproper. Linton arguesthat “the emphasis by the prosecutor on community values and the implication that any juror who voted against the death penalty would not be upholding those values, was misconduct.” (AOB 249.) The prosecutor’s argumentdid not seek to invoke the untethered passions of the jury. Nor did the prosecutorinvite jurors to forgo their personal, individual responsibility to determine the appropriate punishment and simply vote for death in orderto uphold community values. Instead, the prosecutorbriefly and accurately argued that “the community, acting on behalf ofthose injured, has the right to expressits values by imposing the severest punishmentfor the most aggravated crimes.” (People v. Zambrano (2007) 41 Cal.4th 1084, 1178-1179, disapproved on another ground by - People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22 [rejecting claim that similar, lengthier argument constituted misconduct].) The prosecutor indicated this crime warranted the death penalty because Linton used the keys that had been entrusted to him by Melissa’s parentsto enter their home and murder Melissa, their beloved twelve-year-old daughter. Accordingly, there was no misconduct. 137 Evenifthere had been, no prejudice ensued. The prosecutor’s comments were brief. The court instructed the jurors that they were not to “be influenced by bias or prejudice against the defendant; nor be swayed by public opinion or public feeling” andthat they hadto individually determine the appropriate penalty. (35 RT 5525; 13 CT 3655.) The defense reinforced both principles in argumentandstressedthat the question ofwhether to impose the death penalty was not about whatthe - public wants. Defense counsel also arguedthat “there’s nothing about justice in the concept of vengeance” and that she certainly hoped “that our community values put some value uponlife.” (See e.g., 36 RT 5623-5627, 5632, 5650, 5652, 5671.) In light of the arguments of counsel and the court’s instruction, anymisconduct was notprejudicial. Finally, to the extent that Linton is arguing the cumulative effect of the prosecutor’s misconduct requires a reversal (AOB 249), his argumentis unavailing. “Without a single instance ofprosecutorial misconduct, [this Court] cannot conclude there was cumulative prejudicial impact depriving [Linton] of a fair trial and due process.” (People v. Valdez, supra, 32 Cal.4th at p. 136.) And even if one or more ofLinton’s prosecutorial misconduct claims had merit, they would not provide a basis for reversal because the cumulative effect of any misconduct wasnot prejudicial for the reasonsset forth ante. XI. THE TRIAL COURT ADEQUATELY INQUIRED INTO THE ALLEGED JUROR MISCONDUCT DURING THE PENALTY PHASE DELIBERATIONS Linton contendsthe trial court abused its discretion and violated his rights to due process,a fair trial, and a jury trial by failing to hold an evidentiary hearing regarding alleged juror misconduct during the penalty phase deliberations. (AOB 250-256.) Thetrial court’s inquiry was sufficient and established that no misconduct occurred. 138 On day three of the penalty phase deliberations, the foreperson sent the trial court a note, stating: I, Juror #9, received at my Email address two Emails from individuals on the jury regarding theconduct ofother jurors. _ (1) One juror was upset at another for saying they did not have compassion. (2) One juror was upset at another for saying they were having too much fun in the deliberation room, and not takingthis case serious. Is this appropriate[? Is this a problem[?] (13 CT 3673.) Thetrial court discussed the note with the parties. The prosecutor suggested that either the court or foreperson advise the jurors that any concernsor issues regarding the deliberations should beraisedin the presenceofother jurors and that the foreperson shouldnot be approached individually. (36 RT 5697.) The defense arguedtwojurors were not following the court’s admonition andthat the court should speak to those two jurors individually. (36 RT 5698.) Atthis point, the court received a note from the jury indicating it had reached a verdict. The court questioned whether this note rendered the earlier note moot. (36 RT 5699.) The defense argued the court shouldstill inquire because the earlier note indicated jury misconduct had occurred. (36 RT 5699.) The court agreed to question the foreperson. (36 RT 5700.) The foreperson stated that the E-mails came to him andthat he did not “see any cc’s in the headers.” (36 RT 5701.) Thus, to his knowledge the E-mails were only sent to him. (36 RT 5701.) The foreperson said thefirst E-mailbasically said, “they weretaken back and they were offendedby the fact that a juror had accused them ofnot having compassion in this matter.” (36 RT 5701.) The court askedthe parties ifthey believed the court should inquire aboutthe identity of the juror. (36 RT 5701.) The prosecutor said he did not think it was necessary; defense counsel disagreed. (36 RT 5702.) 139 . Thecourt also asked the foreperson about the second E-mail. The forepersonsaid, “In their E-mail they were offended by thefact that one juror said that they were having too much fun in this — in the deliberations.” (36 RT 5702.) Both of the statements referenced in the E-mails were made in the jury deliberation room. (36 RT 5702.) The foreperson agreed with the trial court that the jurors were just venting because they had been accused of something. (36 RT 5702.) ‘The foreperson did not respondto either E-mail; he deleted them “because in theheader they weren’t signed. They didn’t say, you know, — whothey were.” (36 RT 5701-5703.) Thus, the foreperson did not know whosent the E-mails. But he did know whothey were complaining about - “because both people had made these statements in the deliberation room. Thepeople that sent the E-mails, for whatever reason, didn’t want to confront them at the time these statements were madein the deliberation room.” (36 RT 5703.) The foreperson continued, “So they just sent me the E-mail. And the statements in the deliberation room were madeto all the jurors. It wasn’t madeto an individual.” (36 RT 5703.) The foreperson told the other jurors exactly what he had told the court — about the E-mails. Nobody said anything. One juror then suggested that the E-mails were inappropriate and that they shouldlet the court decide whether they were improper. There was no follow-up about the content of the E-mails. (36 RT 5704.) The foreperson reiterated that “everybody knew who madethestatement[referenced in the E-mails] because they _ were madein the jury room. Just nobody stood up andsaid, ‘Well, I sent the E-mail.” (36 RT 5705.) Defense counsel argued the two E-mailing jurors violated the court’s express instructions to not deliberate outside the jury room, andthat the court should identify those jurors. Defense counsel addedthat they did not know whatother notes and messagesthe juror had sent among themselves 140 and that it appeared there was “an attempt made outside the jury room to — to still a voice of a particular juror they don’t regard as a person whose voice should be heard.” (36 RT 5706.) The prosecutor countered there was no evidence ofmisconduct shown,and evenifthe E-mails had been | improper,the contents had been discussed during deliberations so the deliberations were not tainted. (36 RT 5706.) The court ruled there was no misconduct, because there had been no deliberations or discussions about the case outside the jury room; the two jurors were instead just “venting that apparently their feelings might have. — been hurt or something ofthat effect.” (36 RT 5707.) The court further ruled that it would be inappropriateto call the jurorsin and inquireifthey had violated the court’s admonitions because they had to assumethat the jurors abided by the court’s admonitions unless informed otherwise. Ifthe law wereto the contrary, the court noted, “we would get into a situation in every trial where at some point during deliberations we would havetocall each individualin and say, ‘Have you kept the admonitions?’ ‘Have your communicated with anybody?’ ‘Have you looked in a dictionary?’ ‘Have you done any additional research?’ or “Have youvisited the scene?” (36 RT 5707.) Thetrial court properly exercisedits discretion in declining to conduct any further inquiries. “When a trial court is aware ofpossible juror misconduct, it must make whatever inquiry is reasonably necessary[.]” (People v. Carter, supra, 30 Cal4th at pp. 1215-1218.) Trial courts have discretion to conduct evidentiary hearings to determine the veracity ofjury misconductallegations and to.permit parties to call jurors to testify at any such hearings. (People v. Davis, supra, 46 Cal.4th at p. 624.) Defendants do not, however, havea right to such hearings. (Ibid.) Evidentiary hearings “should not be used asa ‘fishing expedition’ to search for possible: misconduct, but should be held only when the defense has come forward - 14] with evidence demonstrating a strong possibility that prejudicial . misconducthas occurred.” (People v. Hedgecock (1990) 51 Cal.3d 395, 419.) And even when the defense makes such a showing, an evidentiary hearing would “generally be unnecessary unlesstheparties’ evidence presents a material conflict that can only be resolvedat such a hearing.” (Id. at p. 419.) | Here, after receiving the note from the foreperson describing the E- mails that he hadreceived, the court questioned the foreperson about the content ofthe E-mails, whether he responded to them, whether other jurors . received them and whetherthey werediscussed in the jury room. Thetrial court also provided the parties an opportunity to further question the foreperson. The foreperson’s uncontradicted statements indicated that no juror misconduct occurred. The E-mails concerned two jurors’ feelings about comments made about them during deliberations. The foreperson did not reply to the E- mails outside of the deliberations. Instead, he mentioned them to the other jurors during the deliberations. Thus, there were no “exchange” ofE-mails or discussions aboutthe case outside ofthe deliberations and, hence, no misconduct. (Contra AOB 255.) Moreover,to the extent it was improper for these jurors to send the E-mails to the foreperson, the content of the E- mails did not suggestthat there was a substantial likelihoodthat the jurors were actually biased. Instead, they merely reflected “the type ofheated discussion commonto jury deliberations” occurred in this case. (Peoplev. "Bell (2007) 40 Cal.4th 582, 619.) Accordingly, because there was no evidence of a strong possibility that prejudicial misconduct occurred, and because there were nodisputed, material issues offact, the trial court properly declined to inquire further. (See People v. Avila (2006) 38 Cal.4th 491, 605 [court did not abuseits discretion in declining request for evidentiary hearing, because even 142 assuming “Juror No. 6 did make statements disparaging defense counsel, the trial court, and the criminaljustice system,in violation of the court’s admonition not to discuss any subject connected with the trial, whether Juror No. 6 made such statements was not a material issue in the case, for _ the statements had no bearing on the matter pendingbeforethe jury,thatis, defendant’s guilt or innocence,”and thus“did not create a strong possibility of prejudicial misconduct”]; People v. Carter, supra, 30 Cal.4th at p. 1217 [evidentiary hearing properly denied where sworn statements ofjuror who had goneto dinner with another juror “(1) generally denied the occurrence _ of any misconduct, and (2) specifically denied that he had discussed the case with any other juror or jurors when the entire jury was not present’’].) XII. CALIFORNIA’S DEATH PENALTY STATUTE DOES NOT VIOLATE THE FEDERAL CONSTITUTION In a series of familiar arguments, Linton contends California’s death penalty schemeviolates the Constitution. Noneofhis claims have merit. Contrary to Linton’s assertion (AOB 259-260), “[s]ection 190.2, which sets forth the circumstances in whichthe penalty of death may be imposed,is not impermissibly broad in violation of the Eighth Amendment.” (People v. Farley, supra, 46 Cal.4th at p. 1133.) “NoriiS section 190.3, factor (a) applied in an unconstitutionally arbitrary or capricious manner merely because prosecutorsin different cases may argue that seemingly disparate circumstances, or circumstancespresent in almost any murder, are aggravating under factor (a).” (People v. Carrington, supra, 47 Cal.4th at p. 200.) Instead, “‘each case is judgedonits facts, each defendanton theparticulars ofhis [or her] offense.’” (Ibid, quoting People v. Brown (2004) 33 Cal.4th 382, 401, alteration in original; contra AOB 261-263.) Contrary to Linton’s argument (AOB 264-274), no constitutional violations ensued from the absence ofinstructions that the jurors had to find 143 any aggravating factor true beyonda reasonable doubt, that they had to unanimously agree on the presenceofan aggravating factor, and that they hadto find beyond a reasonable doubtthat the aggravating factors | outweighed mitigating factors. (People v. Bunyard (2009) 45 Cal.4th 836, 858 [rejecting argument that Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]; United States v. Booker (2005) 543 US. 220 [125 S.Ct. 738, 160 L.Ed.2d 621]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]; and Apprendi v. New Jersey (2000)530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] support a claim of constitutional error]; People v: Romero (2008) 44 Cal.4th 386, 429.) Furthermore, “neither the cruel and unusual punishmentclause ofthe Eighth Amendment,northe due process clause of the Fourteenth Amendment, requires a jury to find beyond a reasonable doubtthat aggravating circumstances exist or that aggravating circumstances outweigh mitigating circumstancesorthat death is the appropriate penalty.” (People v. Blair, supra, 36 Cal.4th at p. 753.) In fact, “thetrial court need not and should not instruct the jury as to any burden ofproofor persuasion at the penalty phase.” (/bid; contra AOB 274-277.) . Also contrary to Linton’s position (AOB 277-279), “[t]he law does not deprive defendant ofmeaningful appellate review and federal due process and Eighth Amendmentrights by failing to require written or other specific findings by the jury on the aggravating factorsit applies.” (People v. Dunkle (2005) 36 Cal.4th 861, 939, disapproved on another groundin People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Nor doesthe absence of such findings violate equal protection (People v. Parson (2008) 44 Cal.4th 332, 370) or a defendant’s rightto trial by jury (People v. Avila (2009) 46 Cal.4th 680, 724). 144 “The absence of intercase proportionality review does notviolate state or federal constitutional principles.” (People v. Martinez (2009) 47 Cal.4th 399, 455; contra AOB 279-281.) And Linton has failed “to support his assertion thatthis court has categorically forbidden such review; in the only case to whichherefers, [this Court] considered the showingofalleged © disproportionality and foundit insufficient. (People v. Marshall (1990) 50 Cal.3d 907, 947, 269.)” (People v. Harris, supra, 43 Cal.4th at p. 1323, _ parallel citations omitted; see AOB 281.) . Although the prosecutordid not rely on unadjudicated criminal activity as an aggravating circumstance under section 190.3, factor(b), Linton nonetheless contendsthatit is constitutionally impermissible to do so, and that even if it were permissible, such alleged criminalactivity would haveto be found beyonda reasonable doubt by a unanimousjury. (AOB 281.) To the extenta positive resolution ofthis claim could provide any benefit to Linton, this Court has already determined that “[s]ection 190.3, factor (b) doesnotviolate the federal Constitution by permitting the use ofunadjudicated criminalactivity as an aggravating factor, nor must such factors be found true beyond a reasonable doubt by a unanimous jury.” (People v. Harris, supra, 43 Cal.4th at p. 1323; accord Peoplev. Smith, supra, 35 CalAth at p. 374.) As discussed in part in Argument VIII, ante, use ofthe modifiers “extreme”in factors (d) and (g) and “substantial”in factor (g) do not “act as a barrier to the consideration of mitigating evidenceor violate the Fifth, Sixth, Eighth, or Fourteenth Amendments.” (People v. Farley, supra, 46 Cal.4th at p. 1134; contra AOB 282.) Finally, and contrary to Linton’s position (AOB 282-284), “[t}he trial court was notconstitutionally required to inform the jury that certain sentencing factors are relevant only in mitigation, and the statutory instruction to the jury to consider ‘whetheror not’ certain mitigating factors 145 were present did not unconstitutionally suggest that the absence ofsuch factors amountedto aggravation.” (People v. Whisenhunt (2008) 44 Cal.4th 174, 228.) Linton acknowledgesthat this Court has repeatedly rejected his contrary claim and quotes the rationale given by this Court in People v. Morrison (2004) 34 Cal.4th 698 (Morrison), i.e., “‘no reasonable juror could be misled by the language of section 190.3 concerning the relative aggravating or mitigating nature ofthe various factors.”” (AOB 283, italics omitted, quoting Morrison, supra, 34 Cal.4th at p. 730.) Linton argues this reasoning is undermined by Morrisonitself and Carpenter, supra, 15 Cal.4th at p 424, becausein both ofthose casesthe trial courts erroneously relied upon mitigating factors as aggravating circumstancesat the hearings on the motions to modify the verdicts. (AOB 283.) Healso cites People v. Montiel (1993) 5 Cal.4th 877, 944-945 (Montiel), as an example where the prosecutor was “misled in the same way.” (AOB 283.) Thetrial courts in Morrison and Carpenter did not consider mitigating circumstances as aggravating ones. Instead, the courts considered the objective circumstances of the underlying crime, which they could properly do under factor (a), under the wrongstatutory factor. (Morrison, at pp. 727-729; Carpenter,at p. 424.) In Montiel, the prosecutor argued the absence of mitigating circumstances wasa factor in aggravation, (Montiel, at p. 936.) But this Court found the prosecutor’s improper argument was harmless, and further found that “the mitigating nature of these factors is clear even in the face of contrary argument.” (/d. at p. 944.) Thus, Morrison, Carpenter, and Montiel do not support Linton’s assertion that reasonable jurors could be misled by the languageof section 190.3. Accordingly, his claim should berejected. 146 XT.CALIFORNIA’S CAPITAL SENTENCING SCHEME DOES Nor VIOLATE EQUAL PROTECTION Linton contends California’s capital sentencing schemeviolates equal protection, because capital defendants areafforded fewer procedural protections than non-capital defendants. (AOB 285-287.) To prevail on an equal protection claim, a defendant mustestablish the “the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” (People v. Smith, supra, 40 Cal.4th at p. 527, quotations and citations omitted.) Linton has not methis burden. “TBly definition, a defendant in a non-capital case is not similarly situated to his capital case counterpart for the obvious reason that the former’s life is not on the line.” (Ud. at p. 527, alteration in original, quotation andcitation omitted). Thus, California’s death penalty law does not violate equal protection because it does not require juror unanimity on aggravating circumstances, impose a burden ofproof on the prosecution, or require a statementofreasons for a death sentence. (People v. Carey (2007) 41 Cal.4th 109, 136-137; People v. Smith, at p. 527; People v. Davis, supra, 36. _Cal.4th at p. 571; see also People v. Zamudio, supra, 43 Cal.4th at p. 373 [death penalty law does notviolate equal protection because sentencing proceduresfor capital and noncapital defendants are different].) XIV. CALIFORNIA’S DEATH PENALTY STATUTE DOES NOT VIOLATE INTERNATIONAL LAW OR THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION Linton contendsthatthe use ofthe death penalty as a regular punishmentfor a substantial numberof crimesis contrary to international norms of human decency and that, consequently, the death penalty violates international law and the Eighth and Fourteenth Amendmentsofthe federal Constitution. (AOB 287-289.) International law does not require California to eliminate capital punishment. (People v. Doolin, supra, 45 - 147 Cal.4th at p. 456.) Furthermore, California does not impose the death penalty as regular punishment in California for numerous offenses. (People v. Doolin, supra, 45 Cal.4th at p. 456.) Instead, “[]he death penalty is available only for the crimeoffirst degree murder, and only when a special circumstanceis found true; furthermore, administration ofthe penalty is governed by constitutional and statutory provisions different from those applying to ‘regular punishment’ for felonies. (E.g., Cal. Const., art. VI, § 11; §§ 190.1-190.9, 1239, subd. (b).)” (People v. Doolin, supra, 45 Cal.4th at p. 456, quoting Peoplev. Demetrulias (2006) 39 Cal.4th 1, 44.) Thus, California’s death penalty law doesnotviolate international law or the federal Constitution. XV. LINTON RECEIVED A FAIR PENALTY PHASETRIAL Linton contends the cumulative effect of the evidentiary and instructional errors and prosecutorial and juror misconduct warrant a reversal. (AOB 290-294.) Asdiscussed, there were no such penalty phase errors. Moreover, any errors that may have occurred during Linton’s penalty trial were harmless under any standard, whether considered alone or in the aggregate. Consequently, Linton’s cumulative error claim necessarily fails. (People v. Farley, supra, 46 Cal.4th at pp. 1134-1 135.) 148 CONCLUSION Respondentrespectfully requests the Judgmentofconviction and sentence of death be affirmedin its entirety. Dated: March 19, 2010 $D1999KS0009 70261883.doc Respectfully submitted, EDMUND G. BROWN JR. Attorney General of California DANE R. GILLETTE ChiefAssistant Attorney General GARY W. SCHONS Senior Assistant Attorney General ANNIE FEATHERMAN FRASER Deputy Attorney General f . LISE S. JACOBSON Deputy Attorney General Attorneysfor Plaintiffand Respondent 149 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’SBRIEFuses a 13 point Times New Roman font and contains 47,130 words. Dated: March 19, 2010 EDMUND G. BROWN JR. \ _ Attorney General of California LISE S. JACOBSON Deputy Attorney General Attorneys for Plaintiff and.Respondent 150 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Linton - CaseNo.: S080054 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member'sdirection this service is made. I am 18 years ofage or older and not a party to this matter. I am familiar with the businesspractice at the Office ofthe Attorney General for collection and processing of correspondence for mailing with the United ‘States Postal Service. In accordancewith that practice, correspondence placed in the internal mailcollection system at the Officeofthe Attorney General is deposited with the United States Postal Service that same dayin the ordinary course ofbusiness. On March 19, 2010, I served the attached RESPONDENT?’SBRIEFbyplacinga 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 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Diane E. Berley Attomey at Law California Appellate Project (SF) PMB 834 101 Second Street, Suite 600 6520 Platt Avenue San Francisco, CA 94105 WestHills, CA 91307-3218 Attorneyfor Appellant Daniel Andrew Linton, 2 Copies Inga E. McElyea, Executive Officer Riverside County Superior Court Rod Pacheco 4100 Main Street District Attorney Riverside, CA 92501 Riverside County District Attorney's Office 4075 Main Street Riverside, CA 92501 I declare under penalty of perjury underthe lawsofthe State of California the foregoingis true and correct and that this declaration was executed on March 19, 2010, at San Diego, California. C. Pasquali GZAaul Declarant Signéture SD1999XS0009 / 70262502.doc