# People v. Clark

> California Supreme Court · August 30, 1993 · 5 Cal. 4th 950

URL: https://www.frixlaw.com/law-library/cases/1121458

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. RICHARD DEAN CLARK, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 30, 1993
- **Citations:** 5 Cal. 4th 950; 22 Cal. Rptr. 2d 689; 93 Daily Journal DAR 11122; 857 P.2d 1099; 93 Cal. Daily Op. Serv. 6528; 1993 Cal. LEXIS 4179
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Panelli, Mosk
- **Cited by:** 233 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by People v. Doolin, 45 Cal. 4th 390 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1121458

## Opinion text

5 Cal.4th 950 (1993)
857 P.2d 1099
22 Cal. Rptr.2d 689
THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD DEAN CLARK, Defendant and Appellant.
Docket No. S004791. Crim. No. 26425.
Supreme Court of California.
August 30, 1993.
*970 COUNSEL
Paul G. Bower and Mary Lee Wegner, under appointments by the Supreme Court, William R. Lindsay, Daniel S. Floyd, Howard A. Jacobson, Chad S. Hummel, Karen N. Frederiksen, Barbara G. Zelkind, Shauna Weeks and Gibson, Dunn & Crutcher for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Ronald S. Matthias and Ronald E. Niver, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
PANELLI, J.
Defendant Richard Dean Clark was convicted, following a jury trial, of the first degree murder and rape of Rosie Grover. (Pen. Code, *971 งง 189, 261.) [1] The jury found true the special circumstance allegations that he committed the murder during the course of the rape (ง 190.2, subd. (a)(17)(iii)), that he inflicted bodily injury with the intent to do so (ง 1203.075, subd. (a)(1)), and that he used a deadly weapon in the commission of the murder (ง 12022, subd. (b)). The jury fixed the penalty at death. After denying the motion for modification of the penalty verdict, the court entered judgment accordingly. This appeal is automatic. (Cal. Const., art. VI, ง 11; ง 1239, subd. (b).)
We affirm the judgment in its entirety.
I. GUILT PHASE FACTS
A. Prosecution's Case-in-chief
1. Introduction
During the early morning of July 19, 1985, Rosie Grover was raped, stabbed with a sharpened screwdriver, and repeatedly bludgeoned about the face and neck with two pieces of concrete. Although the crime occurred in Mendocino County, a change of venue was granted on defendant's motion and the trial was held in Santa Clara County. Defendant was convicted of the murder.
2. The Victim, Rosie Grover
Rosie Grover was a 15-year-old high school student at the time of her death. On July 19, 1985, she took a Greyhound bus that left San Francisco around midnight and arrived in Ukiah around 4 a.m. After unsuccessfully attempting to obtain a ride home from the bus depot, she began to walk home. Her body was found the next morning in the rocky, dry bed of Doolan Creek.
3. The Defendant, Richard Clark
In early 1985, defendant met David Smith (Smith), a paraplegic, who hired defendant to care for him. About a month later, they moved to Ukiah. On July 18 and 19, 1985, defendant and Smith were staying with Smith's stepsister, Michelle Stevens, at 778 South State Street.
Defendant and Smith spent some part of the afternoon in a local bar, where each man drank three or four beers. Sometime that day, Smith traded *972 a small amount of methamphetamine for cocaine. They returned to Michelle Stevens's house, where both men ingested the cocaine. Although Smith had seen defendant use methamphetamine in the past, defendant did not use it in Smith's presence on July 18, 1985. Defendant, Smith, and perhaps others, smoked between two and five marijuana cigarettes.
During the evening, an argument arose between defendant and Matt Williams, Michelle Stevens's boyfriend. According to Williams, defendant "looked like he was on something" and "got kind of violent, shadow boxing around the house and throwing punches." Around 10 p.m., defendant left, announcing that he "was going to beat somebody up and rob them." Dino Stevens (Stevens), Michelle's stepbrother, left with defendant.
Stevens and defendant went to Munchie's, a pool hall located on State Street. After playing pool for 30 to 40 minutes, the men left and walked to the home of Robyn Boyd, a friend of Stevens. Robyn lived at 304 Cooper Lane, near the Greyhound depot. Stevens and defendant arrived at Boyd's house around midnight. Boyd was entertaining several friends; marijuana may have been available. The 2 men remained at Boyd's for 10 to 30 minutes. Upon leaving Boyd's, Stevens and appellant parted company.
Little evidence, other than defendant's statements to police (which will be discussed below), was presented to establish defendant's location and movements between the time he left Boyd's house and the time he entered the Ron-Dee-Voo Restaurant on July 19.
4. Discovery of the Body
About 6:15 a.m. on July 19, defendant entered the Ron-Dee-Voo Restaurant, which is located on South State Street near Doolan Creek. He was wearing mirrored sunglasses and was holding a partially empty wine cooler bottle in his hand. Defendant told Karen Mertle, a waitress, that he had found a girl in a nearby ditch. The girl was hurt "real bad" and "maybe raped." Mertle offered defendant coffee in order to "hold him there until the police arrived." Defendant handed the wine cooler bottle that he had been carrying to Mertle. She later gave the bottle to the police.
The witnesses present at the Ron-Dee-Voo that morning testified that defendant did not appear intoxicated. Several witnesses also testified that he did not appear suitably upset by his discovery.
5. The Investigation
Officer Wayne McBride of the Ukiah Police Department arrived at the restaurant at 6:34 a.m. Officer McBride had an intermittent conversation *973 with the defendant that lasted approximately 30 to 40 minutes. During this conversation, defendant explained how he discovered the body while taking a "shortcut" to buy cigarettes at a convenience store on State Street. He volunteered that he checked the body for a pulse and may have touched the luggage. Although defendant was wearing sunglasses and spoke rapidly and excitedly when he first met Officer McBride, the officer testified that defendant did not appear to be intoxicated, did not appear to be under the influence of methamphetamines and did not smell of alcohol.
At the scene of the crime, Detectives Fred Kelley and Edward Gall collected physical evidence. The body of Rosie Grover was partially clothed. Her jeans were buttoned, but a cloth belt was undone. Her jacket and blouse were open, exposing her bra. Her shoes and her pink tank top lay nearby. Her duffle bag and suitcase were 10 feet away from the body. Two bloody concrete blocks, the larger one weighing 18.5 pounds, lay near the body. The victim had suffered severe injuries to the head and face. Possible puncture or stab wounds were evident on the lower right portion of her abdomen.
During the search of the crime scene, a bottle of wine cooler of the same brand and flavor as the one defendant had given to Mertle was found in the victim's duffle bag.
After searching the crime scene, Kelley and Gall went to 778 South State Street. There, they received permission from David Smith to search his car. Kelley discovered a pair of Levi's 501 jeans and a sleeveless vest-type jacket on the rear seat. Blood appeared to be splattered on the legs of the jeans and wiped on the lower part of the vest. Stevens and Smith identified the clothing as that worn by defendant the previous evening.
6. Defendant's Statements to Police
Defendant gave three custodial statements to the police on the day of his arrest. The content of and circumstances surrounding these statements are more fully discussed later in the opinion.
Prior to his arrest, defendant spoke with Detectives Kelley and Gall. He waived his Miranda rights ( Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) and basically repeated the story that he had told Officer McBride earlier in the morning.
Following his arrest and booking, Detectives Kelley and Gall transported defendant to the hospital for a blood test. During the trip defendant confessed to killing Rosie Grover. He claimed, however, that the sexual intercourse with the victim was consensual. After the encounter, she said that she *974 was going to report him for rape. When she repeated this intention, he quickly decided that he would receive a less severe penalty for killing her than raping her and proceeded to do so.
Upon return to the police station, defendant agreed to provide a tape-recorded statement. Detectives Kelley and Gall and Deputy District Attorney Al Kubanis were present. After a colloquy during which defendant waived his constitutional rights, he gave a statement that differed somewhat from his prior statement. In the taped statement, defendant stated that during the previous evening he ingested eight or nine beers, several tablets of Valium, one-eighth gram of methamphetamine and several marijuana cigarettes. When describing the crime, defendant this time reported periods of time when he "blacked out."
7. Physical Evidence
The autopsy of the victim confirmed that she had been raped, stabbed and beaten. The autopsy was performed under the direction of Dr. Boyd Stephens, the Chief Medical Examiner and Coroner of the City and County of San Francisco. With respect to sexual assault, Dr. Stephens opined that the victim had suffered nonconsensual vaginal intercourse, but could not opine that sodomy had occurred. Examination of the victim's vagina revealed a laceration across the posterior aspect of the outer opening. This injury is associated with nonconsensual intercourse. No trauma to the anal opening was observed. Sperm was discovered on the outside and inside of the vagina. A "rare" sperm was found in the anus. Blood contamination in the mouth hindered attempts to locate sperm there.
Ten stab wounds were found on the body. Eight were superficial. Two deeper wounds were inflicted in the middle of the back, one of which penetrated a lung and the other the heart. The wounds could have been inflicted by a screwdriver found in Smith's car. These wounds preceded the blunt trauma injuries to the victim's head and neck.
While either of the deep stab wounds could have independently caused the victim's death, the actual cause of death was blunt trauma to the head and neck. Although Dr. Stephens was unable to determine how many blows had been struck, 19 separate areas of blunt trauma were visible. The vast majority of these trauma injuries would have independently caused death. The damage was so extensive that the victim's entire facial structure was collapsed and flattened. The two pieces of concrete found near the victim's body could have inflicted the trauma to the skull.
There was no conclusive evidence of attempted strangulation, in large part because the blunt trauma injuries obscured any symptoms that would normally have been present.
*975 A criminalist testified about tests performed on the physical evidence. Analysis of the blood splatters on defendant's Levi's jeans revealed enzymes consistent with both the victim's and defendant's blood. Defendant's shoes were splattered with human blood. A hair found on one of the shoes was consistent with the victim's hair and inconsistent with defendant's hair.
Defendant "could not be ruled out" as the source of the semen found in the victim's panties. Pubic hair found in the panties was consistent with the sample provided by defendant.
The concrete blocks found near the victim bore traces of blood consistent with that of the victim, as well as human head and eyebrow hair.
A sharpened screwdriver was found in David Smith's car approximately a week after the murder. The screwdriver was hand-sharpened and bore traces of human blood. The quantity of blood was not sufficient to type. The screwdriver could have made the puncture marks found in the victim's jacket and blouse.
B. The Defense Case
Defendant did not dispute that he killed Rosie Grover, but argued that he did not intend to kill her. He asserted that his emotional difficulties and chronic drug usage culminated in a "rage reaction" on the night of the murder. As argued by his counsel, "a person who goes into a rage [reaction] is not acting with intent."
Defendant called numerous witnesses to testify regarding his drug usage and depression. Both Kathryn Cote, a supervising case manager employed by Solano County Mental Health, and Robert Clark (Robert), defendant's brother, testified that defendant began to use drugs at an early age. Cote found defendant to be severely depressed and attributed his drug usage to this fact.
Friends testified that, in the months immediately prior to his move to Ukiah, defendant regularly ingested alcohol, marijuana and methamphetamine. Robert stated that defendant ingested drugs daily. Defendant's friends respectively testified that they had each observed defendant inject methamphetamine, on as many as five occasions. Many of these witnesses also testified to defendant's nonviolent character.
In February 1985, defendant attempted suicide by ingesting over 30 tablets of Valium. Following the suicide attempt, Robert Buley, a substance *976 abuse counselor with Shasta County Mental Health Agency, treated defendant. Buley testified that defendant was "heavily involved" with methamphetamine and that he was depressed and paranoid.
A Mendocino County therapist, who performed a mental status evaluation on defendant shortly after the crime, concluded that defendant was a "definite" suicide risk and should be observed. Based upon defendant's statements to him, the therapist also noted in his report that defendant was possibly in the process of detoxifying from various drugs.
Dr. Randall Baselt, a forensic toxicologist, testified regarding his analysis of a blood sample that was taken from the defendant shortly after his arrest. The analysis, performed in October of 1986, revealed traces of the metabolites of marijuana and diazepam (Valium), but no evidence of alcohol, cocaine or phencyclidine (PCP). A previous test done by a separate laboratory revealed the presence of methamphetamine. Dr. Baselt opined that the absence of traces of alcohol and cocaine was not inconsistent with ingestion of these substances. Rather, because of the decomposition rate of these drugs, he would not expect them to appear in the sample. The amount of the marijuana metabolite was consistent with the smoking of one or two marijuana cigarettes during the twenty-four hours prior to the blood extraction. The amount of the diazepam metabolite was consistent with the ingestion of "a very small dose of Valium, no more than five or ten milligrams" during the same 24-hour period. The level of methamphetamine in the blood at the time of the sample was in the middle therapeutic range, or, in other words, an amount consistent with that found in a diet pill. At the time of the murder, the amount of methamphetamine in the blood would have been in the "high therapeutic" or "low abuse" range.
Dr. Ronald Roberts, a clinical psychologist, performed a battery of tests on defendant. Dr. Roberts concluded that defendant has no neurological impairment, memory impairment, or organic disorder. Defendant has a low average intelligence quotient of 92. Defendant tested high on the psychopathic deviancy scale. Dr. Roberts also opined that defendant suffered from a deep-seated depression that he masked by using drugs. Dr. Roberts diagnosed defendant as suffering from "antisocial personality disorder." Defendant also exhibited elements of a borderline personality disorder.
Dr. David Smith, the medical director of the Haight Ashbury Free Medical Clinic, testified extensively about the effects of methamphetamine abuse. Dr. Smith described how chronic methamphetamine usage can produce a biochemical impairment of the brain. When this occurs, the extent of debilitation cannot be determined by the level of methamphetamine found in the blood, since the effect of the dosages taken over time is cumulative.
*977 Dr. Smith described a "rage reaction" as essentially a lesser form of amphetamine psychosis in which the biochemically impaired user reacts irrationally or violently to a true sensory stimulus. A person experiencing a rage reaction acts without thought. Dr. Smith could not definitely opine that defendant was suffering a rage reaction when he committed the murder. The witness conceded during cross-examination that defendant's behavior was not the product of a rage reaction if he killed the victim for the goal-oriented purpose of preventing her from identifying him as her rapist.
Dr. Stephen Raffle, a psychiatrist and professor of medicine at the University of California, San Francisco, provided several opinions regarding the psychiatric disorders suffered by defendant at the time of the murder. Most significantly, Dr. Raffle expanded upon Dr. Smith's testimony by opining that defendant had suffered a rage reaction and disassociative state (i.e., a short break from reality) at the time of the crimes. Dr. Raffle also diagnosed defendant as suffering at the time of the murder from (1) a borderline personality disorder with features of an antisocial personality disorder, and (2) an organic personality syndrome and intoxication caused by amphetamine abuse. On cross-examination, Dr. Raffle conceded that his diagnosis of rage reaction and disassociative state could be invalid if defendant had lied to him about the extent of his memory lapses during the course of the murder. Dr. Raffle further conceded that inconsistencies in the versions of events that defendant related to the police and to mental health experts provided a basis for believing that defendant lied to them, and, therefore, that his memory of the killing was not impaired.
C. Rebuttal
The prosecutor's rebuttal case primarily addressed the defense's expert testimony. Dr. Frederick Meyers, a professor of pharmacology at the University of California, San Francisco, testified that neither defendant's drug history nor his observed behavior at the Ron-Dee-Voo supported the rage reaction defense and that defendant was probably not under the influence of drugs or alcohol at the time that he killed Rosie Grover. Dr. Lee Coleman, a psychiatrist, took issue with many of the propositions underlying the diagnoses of the defense experts and explained potential drawbacks of psychiatric expert testimony. Dr. Coleman disagreed with Dr. Raffle's diagnoses that appellant experienced a rage reaction or disassociative state at the time of the murder.
II. GUILT PHASE ISSUES
A. Motion to Suppress Clothing
(1a) Defendant contends that the search and seizure of his clothing, found in Smith's car, violated his rights under the Fourth Amendment to the *978 United States Constitution and article I, section 13 of the California Constitution for two reasons: first, Smith, the owner of the car, did not have authority to consent to the search of defendant's clothing; second, the failure of the police to request defendant's permission to search his clothing vitiates Smith's consent. We conclude the search of the clothing did not violate defendant's constitutional rights and that suppression of the clothing and any evidence derived from it was not required. [2]
The Mendocino County Superior Court, prior to the change of venue in this case, held a hearing on defendant's motion pursuant to section 1538.5. Ukiah Police Department Officers Fred Kelley, Ed Gall, Wayne McBride and Charles Durfee testified at the hearing. An audiotape cassette and a transcript of a tape-recorded statement by the defendant were also admitted into evidence. The facts relating to the search of Smith's car as presented during this hearing are as follows:
Based upon the coincidence of finding in the victim's luggage a bottled wine cooler of the same brand and flavor as the one carried by the defendant, Detective Kelley asked another officer to request that defendant return to the police station for questioning. Defendant complied with the request.
Prior to questioning defendant, Kelley and Gall went to 778 South State Street, where defendant was a guest. There, in defendant's absence, they questioned Michelle Stevens and Smith. The officers learned that defendant had returned early in the morning of July 19, but had been locked out of the house. Defendant told Stevens and Smith that he had slept in Smith's car, which was parked in front of the house. Michelle Stevens told the policemen that she did not permit any alcoholic beverages on the premises and she showed them that there were no such beverages in her refrigerator. Kelley then requested permission from Smith to search his car for "anything that might help [him] out in [his] investigation" and Smith agreed.
While searching the car, Kelley noticed a pair of jeans and a vest on the back seat. Kelley removed the clothes from the interior of the car into the sunlight and noticed what appeared to be blood spatters below the knees of the jeans and blood swipes on the vest. [3] Detective Kelley showed the clothing to Stevens and Smith, who told him that defendant was wearing the clothes when he left the house on the night of the murder. Kelley seized the clothes and returned to the police department to interview defendant.
*979 Defendant concedes that the car belonged to Smith and that Smith had authority to permit Kelley to search the car. (See United States v. Matlock (1974) 415 U.S. 164, 170-171 [ 39 L.Ed.2d 242, 249-250 , 94 S.Ct. 988 ] [ Matlock ]; People v. Boyer (1989) 48 Cal.3d 247, 276-277 [ 256 Cal. Rptr. 96 , 768 P.2d 610 ].) [4] Defendant argues, however, that Kelley's movement and examination of the clothes found in the car constituted a separate search for which Smith's consent was not sufficient. We disagree.
(2), (3)(See fn. 5.) The United States Supreme Court has explained the basis for valid third party consent to a search as "rest[ing] ... on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." ( Matlock, supra, 415 U.S. at p. 171, fn. 7 [39 L.Ed.2d at pp. 249-250].) [5] Thus, objects left in an area of common use or control may be within the scope of the consent given by a third party for a search of the common area. (See 3 LaFave, Search and Seizure (2d ed. 1987) ง 8.5(c), pp. 299-304.)
(1b) As the owner of the searched car, Smith unquestionably had a possessory interest in it. Smith gave the police his consent to search the car for anything that might prove helpful in the investigation of the murder. By leaving his clothes readily displayed on the seat of Smith's car, defendant assumed the risk that Smith would consent to a search of the car and its contents. Defendant simply retained no legitimate privacy interest in the clothes as against Smith or Smith's invitees. The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed. (E.g., Illinois v. Andreas (1983) 463 U.S. 765, 771 [ 77 L.Ed.2d 1003, 1010 , 103 S.Ct. 3319 ].)
We have reviewed the authorities cited by defendant in support of his contrary position and conclude that none require that we reach a different result. We specifically hold that the general nature of Smith's consent explains why defendant's cause is not advanced by reliance upon Arizona v. Hicks (1987) 480 U.S. 321 [ 94 L.Ed.2d 347 , 107 S.Ct. 1149 ]. In that case, a bullet fired through the floor of the defendant's apartment injured a man on the floor below. The police entered the defendant's apartment without a *980 warrant in order to search for the shooter, for other victims and for weapons. During the search, a police officer noticed two sets of expensive stereo equipment. Suspecting the equipment was stolen, the officer read and recorded the serial numbers, moving some of the equipment in order to do so. After checking the serial numbers by phone, the police officer seized certain components that indeed were stolen. The Supreme Court held that the moving of the stereo equipment was an unlawful search. The court reasoned: "But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstances that validated the entry." ( Id. at p. 325 [ 94 L.Ed.2d at p. 354 ], italics added.) By contrast in the present case, the police were granted consent to search the car for "anything" helpful to the investigation of Rosie Grover's murder. The search of the contents of the car was within the scope of the consent granted to the police. Therefore, unlike the search of the stereo equipment in Hicks , the search of the clothing found in Smith's car was not a separate unlawful search.
Anticipating our ruling, defendant argues in the alternative that the search was invalid because the police obtained Smith's consent as a result of "misconduct," consisting of removing defendant from the scene prior to the search and then failing to request defendant's permission to search his clothing. Defendant's argument is unpersuasive. The consent of one person with common or superior authority over the area to be searched is all that is required; the consent of other interested parties is unnecessary. (E.g., Matlock, supra, 415 U.S. at pp. 171, 177 [39 L.Ed.2d at pp. 249-250, 253] [roommate's consent, obtained after defendant arrested and removed from the scene, sufficient]; People v. Haskett (1982) 30 Cal.3d 841, 855-857 [ 180 Cal. Rptr. 640 , 640 P.2d 776 ] [wife's consent, obtained after husband arrested and removed from the premises, sufficient].)
B. Motion to Suppress Defendant's Incriminating Statements
Prior to trial and pursuant to Evidence Code section 402, defendant moved to suppress certain statements that he made to the police. The challenged statements, referred to by the parties as the "Patrol Car Statement" and the "Taped Statement," amount to confessions to murder. Defendant contends that use of the statements violated the Fifth and Fourteenth Amendments to the United States Constitution and article I, sections 7 and 15, of the *981 California Constitution as well as the prophylactic rules set forth in Miranda v. Arizona, supra, 384 U.S. 436 (hereafter Miranda ) and its progeny. [6]
1. Background
The Santa Clara County Superior Court conducted a lengthy hearing to determine the admissibility of defendant's confessions. Both documentary and testimonial evidence was received. Witnesses included Ukiah Police Officers McBride, Durfee, Gall, and Kelley and defense psychiatrist Dr. Peter Mayland. The stipulated testimony of toxicologist Dr. Randall Baselt and the audiotape cassette and transcript of defendant's Taped Statement were also received in evidence.
The evidence relating to the investigation of the crime is generally consistent with evidence presented during the section 1538.5 hearing and at trial; it will not be set forth in detail again. Rather, we recount the story told by the hearing evidence beginning at the point of defendant's first custodial interrogation.
Detectives Kelley and Gall first encountered defendant when they returned to the station from their trip to 778 South State Street. Defendant was moved from the fingerprinting room, where he had been waiting for the detectives, to the sergeant's office.
At the beginning of the conversation in the sergeant's room, Kelley advised defendant of his constitutional rights. Defendant waived his rights and stated that he would speak with the officers. Kelley and Gall were both in the room, but only Kelley asked questions. Defendant essentially repeated the story that he had told McBride at the crime scene. In response to Kelley's questioning, defendant claimed that he had bought the wine cooler a few days earlier and had taken it from Michelle Stevens's refrigerator that morning, before he left to buy cigarettes. Referring to his activities of the previous evening, defendant explained that he had played pool at Munchie's, a local bar, with Stevens until 2 a.m. and then had slept in Smith's car. He also stated that he had not changed clothes since the previous day.
Kelley accused defendant of lying. Kelley told defendant that he knew that Michelle Stevens kept no alcohol in her house and that defendant had been wearing the bloody clothing that he had found in Smith's car. Defendant replied that he no longer wished to speak with the officers and that he *982 wanted to talk to a lawyer. Interrogation ceased. Kelley placed defendant under arrest for murder. Kelley asked defendant if he had an attorney. Defendant replied that he did not. Kelley asked defendant if he wanted to place a phone call. Defendant responded that he did not. The interrogation began at 10:51 a.m. and ended at 11:10 a.m.
Following the interrogation, Kelley and Gall filled out booking forms, removed appellant's clothing, and completed a rape sample kit.
About noon Gall and Kelley transported appellant to the local hospital, located about one-eighth of a mile from the police station, to obtain a blood sample. Gall was driving the car; Kelley was seated in the rear with the defendant, who was handcuffed. There was no conversation until appellant asked, "What can someone get for something like this, thirty years?" Gall responded, "Probably not unless you were a mass murderer." Gall explained during the hearing that "[i]n the years I've been a police officer and prior to that it's been my experience watching court processes, whether it is on TV or, in actual process or in a courtroom itself, I've never seen anybody serve, you know, more than seven and a half years. I have never seen anybody serve thirty years or more." Kelley testified that he knew that murder in California could be punished by death or life without possibility of parole, but did not correct Gall's remark. He testified that "[t]here was no particular reason" why he did not do so.
Fifteen to twenty-five seconds following this exchange with Gall, defendant sighed audibly and said, "I want this on the record. I'm guilty. I killed her. What do you want to know?" Kelley reminded defendant that he had requested an attorney and asked whether he still wanted to consult with a lawyer before talking to them. The complete Miranda warnings were not repeated at this time. Defendant replied negatively to Kelley's advisement, adding: "I just want to tell you the truth."
As they drove into the hospital parking lot, Kelley asked defendant what had happened. Defendant gave a narrative, which Kelley occasionally interrupted with questions. Defendant stated that he had met Rosie Grover early in the morning on State Street. She "came on" to him and "flashed her titty." They left for the creek bed, where they had consensual intercourse. Prior to the intercourse, she gave him a wine cooler which she took from her cloth bag. After they had intercourse, she threatened to accuse defendant of rape. He then choked her, stabbed her in the back with a screwdriver, which he found in the creek bed, and bashed her head with a piece of concrete. He fled back to 778 South State Street and changed his bloodstained clothing in Smith's car. He then decided to return to the creek bed and report "finding" *983 the body to deflect suspicion from himself. Defendant's narrative was delivered in a calm, deliberate manner with no inappropriate emotional outbursts or signs of intoxication.
The officers then took defendant into the hospital for the blood sample and fingernail scrapings. At that time, defendant began to express suicidal thoughts. He told the officers that he had "nothing to live for," and if he were given the chance that he would kill himself. Detective Kelley told him that mental health care would be available for him in jail. No other mention of help or promise of help was made to the defendant at any time. Based upon defendant's comments at the hospital, Gall noted possible suicidal tendencies on defendant's booking sheet when they returned to the station.
Upon return to the station, a tape-recorded statement was taken in the office of the chief of police. Kelley, Gall and Deputy District Attorney Al Kubanis were present.
The interrogation began with Kelley advising defendant for the second time of his complete Miranda rights. During the course of this colloquy, defendant repeatedly remarked: "What's a lawyer going to do for me?" At points he expressed confusion and self-pity. At the end of the discussion, he stated: "Yeah, I'll talk. I don't care."
The story told during the Taped Statement is similar to the story told in the patrol car. This time, however, defendant told the police that he had ingested a couple of tablets of Valium, one-eighth gram of methamphetamine and several marijuana cigarettes, as well as more beer than he had previously revealed. He also claimed to have "blacked out" during the murder and denied remembering that he stabbed Rosie Grover with a screwdriver. In response to questioning, defendant stated that he was hungry, but otherwise was feeling all right. The Taped Statement began at 12:41 p.m. and ended at 1:16 p.m. There was no unrecorded conversation with defendant.
In addition to these facts, the trial court considered evidence bearing upon defendant's state of mind at the time of the statements. First, jail records prepared under the direction of the Mendocino County jail were admitted into evidence. These records showed that the defendant was under a suicide watch for a time after he was first incarcerated and that mental health officials had visited defendant and had also recommended observing him for possible symptoms of drug withdrawal.
Second, the stipulated testimony of Dr. Baselt was received into evidence. This testimony was consistent with his trial testimony previously described. *984 Dr. Baselt also opined during this hearing that, although the drugs in defendant's system might have affected defendant's judgment at the time of the statements, he could not give an opinion regarding the degree of any such impairment, because people vary in their reactions to drug combinations.
Finally, Dr. Mayland testified at length that, based upon certain psychological factors arising from defendant's childhood, life-style and poly-drug use, he possessed "significant doubts" regarding whether defendant could understand and intelligently waive his rights on July 19, 1985. Dr. Mayland also testified, however, that the observations of defendant by the police officers at the time of the statements constituted the most reliable evidence on the issue before the court. After examining certain self-serving inconsistencies between defendant's three statements under cross-examination, Dr. Mayland further admitted that if all the statements that appeared to be self-serving fabrications were indeed fabrications, [7] defendant would have possessed "moderate intellectual functioning with raggedy edges" at the time of the statements.
2. The Patrol Car Statement
a. Miranda Rights
Defendant offers several reasons why his Patrol Car Statement should be deemed inadmissible under Miranda, supra, 384 U.S. 436 . We find no merit in defendant's claims.
(4a) Defendant first contends that Gall's response to his inquiry regarding possible penalties for "something like this" constituted interrogation in violation of Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [ 68 L.Ed.2d 378, 385-387 , 101 S.Ct. 1880 ] (hereafter Edwards ). In that case, the Supreme Court announced the following prophylactic rule: Once a custodial suspect invokes his right to an attorney, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or *985 conversations with the police." ( Ibid. ) The trial court specifically found that Gall's statement did not constitute interrogation. We review the trial court's finding regarding whether interrogation occurred for substantial evidence or clear error. ( People v. Clair (1992) 2 Cal.4th 629, 678 [ 7 Cal. Rptr.2d 564 , 828 P.2d 705 ]; People v. Mickey (1991) 54 Cal.3d 612, 649 [ 286 Cal. Rptr. 801 , 818 P.2d 84 ].) We conclude that there is substantial evidence to support the trial court's finding.
(5) Interrogation has a specific meaning as used in Miranda and Edwards . Interrogation "refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." ( Rhode Island v. Innis (1980) 446 U.S. 291, 301 [ 64 L.Ed.2d 297, 308 , 100 S.Ct. 1682 ], fns. omitted; accord, People v. Clair, supra, 2 Cal.4th at p. 679 .) The Supreme Court has also recognized that "[i]n deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards : preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment." ( Arizona v. Mauro (1987) 481 U.S. 520, 529-530 [ 95 L.Ed.2d 458, 468-469 , 107 S.Ct. 1931 ].) Where government actions do not implicate this purpose, interrogation is not present. ( Ibid. )
Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response. (See People v. Mickey, supra, 54 Cal.3d at pp. 645, 651 [no interrogation found when police responded to defendant's question regarding the burial of his victims and the defendant subsequently lost his composure and made incriminating statements]; cf. Rhode Island v. Innis, supra, 446 U.S. at pp. 300-303 [80 L.Ed.2d at pp. 319-321].) (4b) In this case, substantial evidence supports the conclusion that there was no reason for Gall to have known that his casual estimate of possible penalties would produce an incriminating response from this defendant. Defendant phrased his question in abstract terms and the officer responded in the same terms. The response contained no suggestion that if defendant confessed he would receive more favorable treatment, or that if he did not confess the penalties would be more harsh. Defendant was in effect told that the officer thought it was likely that the person who committed the crime, whoever that may be, would serve substantial prison time, albeit less than 30 years, whether or not *986 the person confessed. [8] The record does not establish that defendant was subject to "compelling influences, psychological ploys, or direct questioning." ( Arizona v. Mauro, supra, 481 U.S. at p. 529 [ 95 L.Ed.2d at p. 468 ].) Rather, the record demonstrates defendant's desire to unburden himself by confessing the murder. Defendant's expression of guilt was volunteered and was not the result of impermissible police interrogation. ( Ibid. ) [9]
(6a) Next, defendant contends that his waiver of his Miranda rights in the patrol car was neither knowing, intelligent nor voluntary. (See Miranda, supra, 384 U.S. at p. 444 [16 L.Ed.2d at pp. 706-707]; accord, Colorado v. Spring (1987) 479 U.S. 564, 566, 572 [ 93 L.Ed.2d 954, 960-961 , 107 S.Ct. 851 ]; Moran v. Burbine (1986) 475 U.S. 412, 421 [ 89 L.Ed.2d 410, 420-421 , 106 S.Ct. 1135 ].) According to the Supreme Court, this inquiry has "two distinct dimensions." ( Moran v. Burbine, supra, 475 U.S. at p. 421 [89 L.Ed.2d at pp. 420-421].) (7) "First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Citations.]" ( Ibid., quoting Fare v. Michael C. (1979) 442 U.S. 707, 725 [ 61 L.Ed.2d 197, 212-213 , 99 S.Ct. 2560 ].) [10]
(6b) Defendant argues that his waiver was not knowing and intelligent, because he was deceived by Gall's statement as to possible punishment and it was not voluntary because Gall's statement induced him to waive his *987 rights and confess. He also asserts that his background and mental state rendered him especially vulnerable to inducements or promises of leniency. The trial court found that defendant's waiver of his Miranda rights was knowing, intelligent and voluntary beyond a reasonable doubt. After independent review of the record ( People v. Mickey, supra, 54 Cal.3d at p. 649 ), we agree with the trial court's findings.
Although defendant contends that the waiver of his constitutional rights was not knowing and intelligent, he never contends that he did not understand the rights that were read to him and which he effectively invoked to terminate his Sergeant's Room Statement. (8)(See fn. 11.) Rather, he contends that he was misled regarding the penalties that he faced and for that reason his assessment regarding whether he should waive his rights was not knowing and intelligent. [11]
(6c) Defendant misunderstands the nature of the waiver required by Miranda . All that is required is that the defendant comprehend "all of the information that the police are required to convey" by Miranda . ( Moran v. Burbine, supra, 475 U.S. at p. 427 [89 L.Ed.2d at pp. 424-425].) "Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law." ( Id. at pp. 422-423 [89 L.Ed.2d at pp. 421-422], fn. omitted.) The record demonstrates that defendant was aware of and understood these rights.
(9)(See fn. 12.) We conclude that defendant's waiver of his Miranda rights in the patrol car was knowing and intelligent, whatever the applicable standard of proof. [12]
(6d) Defendant also contends that his Patrol Car Statement was not voluntary within the meaning of Miranda . He argues that his inexperience *988 with the legal system and the level of his mental functioning at the time of the Patrol Car Statement rendered him "particularly susceptible to responding to false representations and influences." An involuntary waiver of Miranda rights, however, is a product of government coercion. ( Colorado v. Connelly, supra, 479 U.S. at p. 170 [93 L.Ed.2d at pp. 486-487].) Taking into account the totality of the circumstances in this case, such coercion is absent. (10)(See fn. 13.) We find that, under any standard, the content of Gall's statement and the circumstances under which it was made were not such as to force or compel a confession from the defendant. [13] Furthermore, this court has repeatedly rejected claims of incapacity or incompetence to waive Miranda rights premised upon voluntary intoxication or ingestion of drugs, where, as in this case, there is nothing in the record to indicate that the defendant did not understand his rights and the questions posed to him. (E.g., People v. Breaux (1991) 1 Cal.4th 281, 301 [ 3 Cal. Rptr.2d 81 , 821 P.2d 585 ].)
b. Due Process
(11) Defendant also contends that his Patrol Car Statement was involuntary within the meaning of the due process clauses of the federal and state Constitutions. A statement is involuntary and, thus, inadmissible if it is obtained by threats or promises of leniency, whether express or implied. ( People v. Benson, supra, 52 Cal.3d at pp. 778-782; People v. Thompson (1990) 50 Cal.3d 134, 166-170 [ 266 Cal. Rptr. 309 , 785 P.2d 857 ]; People v. Hogan (1982) 31 Cal.3d 815, 838 [ 183 Cal. Rptr. 817 , 647 P.2d 93 ]; cf. Moran v. Burbine, supra, 475 U.S. at p. 421 [89 L.Ed.2d at pp. 420-421].) A finding of coercive police activity is a prerequisite for a finding that a confession was involuntary under the due process clauses of the federal or state Constitution. ( People v. Benson, supra, 52 Cal.3d at p. 778; Colorado v. Connelly, supra, 479 U.S. at p. 167 [93 L.Ed.2d at pp. 484-485].)
After reviewing the record, we do not find the requisite coercion. Even though Gall's statement was not accurate, the circumstances surrounding it *989 demonstrate none of the indicia of coercion. (See People v. Thompson, supra, 50 Cal.3d at p. 167 ; see also, ante, at pp. 985-986, 988.)
Gall's statement, whether considered objectively or subjectively (see People v. Benson, supra, 52 Cal.3d at p. 780), was not a promise of leniency or an inducement. [14] Viewed objectively, Gall's statement merely offered his opinion that the person who committed a crime like the one for which defendant was under arrest would serve substantial time in prison, but probably less than 30 years. There was no mention of the effect of cooperation upon the time to be served. There was no threat, promise, psychological trickery or physical violence used to prompt a confession. Nothing in the exchange between the officer and the defendant gives rise to the inference that an implied message was being conveyed. Viewed subjectively, Gall's statement was not shown to be a promise or an inducement. During the Taped Statement that followed, defendant stated that no promises or threats had been made to him by the police. Although Dr. Mayland testified that defendant was more susceptible than the average person to a suggestion that he would get a lighter punishment in return for a confession, it is clear that defendant did not view the exchange between himself and Gall as containing a promise of leniency. In light of all of the circumstances, we conclude that defendant's Patrol Car Statement was voluntary beyond a reasonable doubt. [15]
3. The Taped Statement
Defendant advances two reasons why the Taped Statement was inadmissible under Miranda . [16] First, defendant argues that he requested counsel prior to giving his statement, but that his request was ignored and interrogation did not cease as required by Edwards, supra, 451 U.S. 477 . Second, *990 defendant argues that he did not understand his Miranda rights and, therefore, was unable to knowingly and intelligently waive them. We reject defendant's contentions.
(12a) Defendant first argues that he invoked his right to counsel while being advised of his rights. In support of his argument, defendant points to his repeated phrase "what can an attorney do for me" and his comment "I'm really confused, I mean, I don't know what the fuck to do."
Whether defendant invoked his right to counsel is a factual question, which is reviewed by this court for substantial evidence or clear error. (E.g., People v. Hayes (1985) 38 Cal.3d 780, 784 [ 214 Cal. Rptr. 652 , 699 P.2d 1259 ] [invocation of right to counsel is a factual question]; People v. Bestelmeyer (1985) 166 Cal. App.3d 520, 526 [ 212 Cal. Rptr. 605 ] [invocation of right to counsel is a factual question]; but see Robinson v. Borg (9th Cir.1990) 918 F.2d 1387, 1390 [whether defendant's words constitute a request for counsel is a legal determination reviewed de novo].) The record supports the trial court's implicit finding that the defendant did not invoke his right to counsel during this colloquy. [17]
It is true, as defendant urges, that a request for counsel "need not be unequivocal to invoke defendant's right to call a halt to questioning." (E.g., People v. Thompson, supra, 50 Cal.3d at p. 165 .) Defendant cites numerous cases which have found equivocal language sufficient to invoke the right to counsel. In context ( People v. Thompson, supra, 50 Cal.3d at p. 165 ), however, defendant's statements in this case did not amount even to an equivocal assertion of his right to counsel.
It is clear from the record that defendant evaluated whether he should waive his rights and give the Taped Statement. He spoke of the reasons that would prompt him to do so. He asked questions to help him evaluate his position. The interrogators, while avoiding giving the defendant detailed legal advice, provided information responsive to his questions. The interrogators were at all times courteous, polite, and restrained. Although the defendant was aware from his experience that morning in connection with the Sergeant's Room Statement that if he invoked his rights the questioning would cease, he did not do so. In fact, notwithstanding his vocalized soul-searching, the record reflects that he waived his rights three times prior to the initiation of substantive questioning.
With respect to the specific comments to the effect of "what can a lawyer do for me," a review of the transcript and the cassette, including the tone and *991 inflections of defendant's voice, reveals that defendant's "questions" were rhetorical in nature and linked to his repeated explanation of the reasoning behind the waiver of his rights. (See People v. Thompson, supra, 50 Cal.3d at p. 165 .) Defendant repeatedly explained that he did not feel that a lawyer could assist him since he was guilty and previously had revealed this fact to the police. For these reasons, he was willing to talk without assistance of counsel.
Similarly, defendant's statement regarding his confusion, both in context and on its face, cannot be reasonably construed as a request for counsel. The Taped Statement demonstrates that defendant understood that he had a right to counsel; it is irrelevant, in the absence of coercion, that he had difficulty in deciding whether to exercise his right.
Even assuming that these comments, separately or in tandem, could be construed as an ambiguous request for counsel, the conduct of the interrogators was proper and defendant's subsequent waiver was valid. [18] (13) When the person under interrogation makes an ambiguous statement that could be construed as a request for counsel, the interrogators may clarify the suspect's comprehension of, and desire to invoke or waive, the Miranda rights. (E.g., People v. Carey (1986) 183 Cal. App.3d 99, 102, 103 [ 227 Cal. Rptr. 813 ], cert. denied (1987) 479 U.S. 1089 [ 94 L.Ed.2d 153 , 107 S.Ct. 1297 ]; United States v. Fouche (9th Cir.1989) 776 F.2d 1398, 1404-1405 .) (12b) The colloquy regarding defendant's rights consisted of such permissible clarification. The interrogators did not ask defendant substantive questions until defendant's position was clarified and a valid waiver was obtained. Moreover, no coercive tactics were employed in order to obtain defendant's Miranda waiver.
(14) We next turn to defendant's contention that his waiver of his rights was not knowing and intelligent. Defendant provides two reasons why his waiver was deficient. First, he argues that he had an insufficient understanding of the function of an attorney. Second, he renews his argument that his mental state rendered him incapable of providing a knowing and intelligent waiver of his rights. The trial court explicitly found that defendant did knowingly and intelligently waive his rights prior to giving the Taped Statement. After an independent review of the record ( People v. Mickey, supra, 54 Cal.3d at p. 649 ), we agree.
The Miranda warnings given to the defendant at the beginning of the Taped Statement were complete and accurate. Again, all that is required for *992 a valid waiver of these rights is that the defendant understand that he could stand mute, request a lawyer and that anything he did choose to say could be used against him to secure a conviction. ( Moran v. Burbine, supra, 475 U.S. at pp. 422-423 [89 L.Ed.2d at pp. 421-422].) The record reveals that defendant understood these rights. In fact, the record reveals that defendant was provided with more information than the Constitution requires in order to assist him in evaluating the wisdom of waiving his rights.
Defendant contends, however, that his waiver was deficient because he did not adequately comprehend what a lawyer could do for him. There is no constitutional requirement that the defendant understand the types of assistance that an attorney can provide. (Cf. Patterson v. Illinois (1988) 487 U.S. 285, 293-294 [ 101 L.Ed.2d 261, 272-274 , 108 S.Ct. 2389 ] [addressing Sixth Amendment right to counsel].) Unadorned Miranda warnings, which the defendant received, sufficed to give defendant all the information necessary for him to make a knowing and intelligent choice to waive or invoke his right to counsel. (Cf. ibid. ; Moran v. Burbine, supra, 475 U.S. at pp. 422-424 [89 L.Ed.2d at pp. 421-423].)
Defendant was not only provided with the information necessary for him to make an informed decision to waive his rights, but the record reveals beyond a reasonable doubt that he comprehended this information. As we have previously stated, we have reviewed all of the evidence relating to the defendant's mental state at the time the Taped Statement was taken, reviewed the transcript of the statement and listened carefully to the audiocassette tape-recording of the statement. Defendant understood and effectively invoked his Miranda rights earlier that day. At the time of the Taped Statement, he was thinking rationally enough to provide the date when Detective Kelley could not remember it. The addition to his partially exculpatory story of his blackout during the crime, as well as other favorable embellishments, also lead us to conclude that defendant was not so mentally impaired as to be unable to make a valid waiver of his rights. We recognize that the defendant felt a degree of hopelessness regarding the situation in which he found himself as well as self-pity arising from his unfortunate family life. At points in the initial colloquy, he expressed some confusion regarding what he should do. Nevertheless, we find beyond a reasonable doubt that defendant was capable of understanding and did understand his Miranda rights. Therefore, we conclude that defendant's waiver was knowingly and intelligently made. ( People v. Breaux, supra, 1 Cal.4th at p. 301 .)
C. Motion to Suppress Analysis of Defendant's Blood
(15a) Defendant contends that the Mendocino County Superior Court violated his rights under the Fourth Amendment to the United States Constitution and article I, section 13 of the California Constitution by failing to *993 suppress the results of tests performed on the sample of his blood that was drawn shortly after his arrest. We conclude that the results of the blood tests were properly admitted.
(16)(See fn. 19.) We need not address the merits of defendant's contentions relating to the existence or absence of probable cause to draw defendant's blood at the time it was drawn, because we conclude that the doctrine of inevitable discovery would validate the lower court's ruling in any event. [19] (15b) As the Attorney General persuasively argues, approximately 30 minutes after defendant's blood was drawn, defendant gave the Taped Statement in which he admitted that he had ingested several different drugs on the night of the murder, including Valium, methamphetamine, marijuana, and alcohol. The Taped Statement was legally obtained. As a result of defendant's revelations concerning his drug usage on the night in question, the police inevitably would have drawn defendant's blood. Furthermore, following these revelations there was probable cause to draw defendant's blood and exigent circumstances creating an exception to the warrant requirement were also present since defendant's body was metabolizing the evidence and delay could have resulted in destruction of the evidence sought. (See Schmerber v. California (1966) 384 U.S. 757, 770-771 [ 16 L.Ed.2d 908, 919-920 , 86 S.Ct. 1826 ].)
We recognize that metabolization of the substances in defendant's bloodstream would have continued in the 30 minutes to an hour between the time that defendant's blood was actually extracted and the time it inevitably would have been extracted following his Taped Statement. It is common, however, for experts to take into account the metabolization rate of a substance and extrapolate from the amount of a substance in a blood sample to arrive at an opinion regarding the amount of the substance in the blood at a critical point in time. Indeed, the expert testimony in this case was based upon this methodology. The expert testimony on the metabolization rates of the drugs detected in defendant's blood sample supports the Attorney General's argument that the blood sample that inevitably would have been drawn following the Taped Statement would have provided essentially the same information revealed by the blood sample that was actually drawn.
*994 For these reasons, we conclude that the trial court's ruling was correct under the doctrine of inevitable discovery. (See, e.g., Nix v. Williams (1984) 467 U.S. 431 [ 81 L.Ed.2d 377 , 104 S.Ct. 2501 ]; Green v. Superior Court, supra, 40 Cal.3d at pp. 136-139; People v. Superior Court ( Tunch ) (1978) 80 Cal. App.3d 665 [ 145 Cal. Rptr. 795 ]; cf. People v. Siripongs (1988) 45 Cal.3d 548, 568-569 [ 247 Cal. Rptr. 729 , 754 P.2d 1306 ].)
D. Conflicts of Interest
Defendant argues that his rights under the Sixth and Fourteenth Amendments of the federal Constitution and article I, section 15 of the California Constitution were violated by various conflicts of interest. Specifically, defendant complains that: (1) a conflict was created when Susan Massini, his first public defender, ran for and won the office of county district attorney during the time she represented him; (2) after the recusal of the district attorney's office following the election, a conflict was created when the court permitted a deputy district attorney to consult with the Attorney General's office, which had substituted as prosecutor for this case; (3) conflicts existed due to previous representation of certain prosecution witnesses by the Mendocino County Public Defender; and (4) the court failed to obtain valid waivers from defendant of any of these conflicts. For reasons explained below, we find no conflict requiring reversal.
1. General Principles
(17) "Included in the right to the effective assistance of counsel is `a correlative right to representation that is free from conflicts of interest.' [Citations.]" ( People v. Bonin (1989) 47 Cal.3d 808, 834 [ 254 Cal. Rptr. 298 , 765 P.2d 460 ]; accord, People v. Hardy (1992) 2 Cal.4th 86, 135 [ 5 Cal. Rptr.2d 796 , 825 P.2d 781 ].) We have repeatedly recognized that such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his [or her] responsibilities to another client or a third person or by his [or her] own interests. [Citation.]" ( People v. Bonin, supra, 47 Cal.3d at p. 835 ; accord, People v. Hardy, supra, 2 Cal.4th at p. 135.)
The standard for obtaining relief under the Sixth Amendment based upon a conflict of interest depends upon whether the defendant objected to the conflict at trial. Where a trial court requires the continuation of conflicted representation over a timely objection, reversal is automatic. ( Holloway v. Arkansas (1978) 435 U.S. 475, 488 [ 55 L.Ed.2d 426, 436-437 , 98 S.Ct. 1173 ].) On the other hand, "`a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his *995 lawyer's performance.' [Citations.] The Court in [ Cuyler v.] Sullivan [(1980) 446 U.S. 335, 348 ( 64 L.Ed.2d 333, 346-347 , 100 S.Ct. 1708 )] made clear that such a defendant must `show[] that his counsel actively represented conflicting interests,' and `the possibility of conflict is insufficient to impugn a criminal conviction.' [Citation.]" ( People v. Easley (1988) 46 Cal.3d 712, 724 [ 250 Cal. Rptr. 855 , 759 P.2d 490 ], italics in original.)
"Under our state Constitution, `[w]e have applied a somewhat more rigorous standard of review.' ( People v. Mroczko (1983) 35 Cal.3d 86, 104 [ 197 Cal. Rptr. 52 , 672 P.2d 835 ].) Regardless of an objection, "even a potential conflict may require reversal if the record supports "an informed speculation" that appellant's right to effective representation was prejudicially affected. Proof of an "actual conflict" is not required.' ( Id., at p. 105.)" ( People v. Cox (1991) 53 Cal.3d 618, 654 [ 280 Cal. Rptr. 692 , 809 P.2d 351 ].)
As we explained in People v. Easley, supra, 46 Cal.3d at page 725 , "[i]t is important to recognize that `adverse effect on counsel's performance' under [ Cuyler v.] Sullivan, supra, 446 U.S. at pages 348 and 350 [64 L.Ed.2d at pages 346, 348], is not the same as `prejudice' in the sense in which we often use that term. When, for example, we review a `traditional' claim of ineffective assistance of counsel (i.e., one involving asserted inadequate performance as opposed to `conflicted' performance), we require the defendant to show a reasonable probability that the result (i.e., the disposition) would have been different. [Citations.] ... As we suggested in Mroczko, supra, Sullivan requires an inquiry into whether the record shows that counsel `pulled his punches,' i.e., failed to represent defendant as vigorously as he might have had there been no conflict. [Citation.]"
Under our "somewhat more rigorous" state standard, a showing that the alleged conflict prejudicially affected counsel's representation of the defendant is also required. (See People v. Rodriguez (1986) 42 Cal.3d 1005, 1014 [ 232 Cal. Rptr. 132 , 728 P.2d 202 ] ["some grounds to believe that prejudice occurred must be discernible"]; People v. Castillo (1991) 233 Cal. App.3d 36, 62 [ 284 Cal. Rptr. 382 ] [any "informed speculation" of prejudice from conflict dispelled by examination of the trial record]; People v. Marshall (1987) 196 Cal. App.3d 1253, 1257-1258 [ 242 Cal. Rptr. 319 ] ["existence of even a potential conflict of interest must be accompanied by some evidence of ineffective representation before reversal is required"].)
With these principles in mind, we turn to defendant's specific claims.
*996 2. Alleged Conflicts Resulting From the Campaign, Election and Recusal
a. Background
The Mendocino County Public Defender, Susan Massini (Massini), personally represented the defendant from the inception of this case. At Massini's request, Joseph Allen (Allen), an experienced capital defense lawyer, was appointed assistant attorney pursuant to section 987.2. Both Massini and Allen played active roles in the defense.
At a time not disclosed in the record, Massini decided to run for Mendocino County District Attorney. The record does not indicate whether Massini's campaign was discussed with the defendant.
Massini was elected district attorney in June 1986. She took office on January 5, 1987.
On June 25, 1986, a few weeks after the election, Allen moved to recuse the district attorney's office from prosecuting defendant's case. On July 21, 1986, the court granted the motion. The Attorney General was substituted as prosecutor.
To place these events in the context of the trial, jury voir dire began on October 20, 1986. Presentation of evidence began on March 9, 1987.
b. The Campaign
(18a) Defendant did not register any objection in the trial court to Massini's representation. Therefore, contrary to defendant's assertions, the automatic reversal rule enunciated in Holloway v. Arkansas, supra, 435 U.S. 475 ( Holloway ), is inapplicable to this case. ( People v. Easley, supra, 46 Cal.3d at pp. 724; Cuyler v. Sullivan (1980) 446 U.S. 335, 348 [ 64 L.Ed.2d 333, 346-347 , 100 S.Ct. 1708 ].)
Further, defendant's assertions of an actual conflict with Massini during her campaign are unpersuasive. On this record, we do not find that Massini's personal interest in winning the election for district attorney threatened her loyalty to defendant. It is not the law that a public defender creates a conflict of interest merely by seeking employment with the district attorney's office or even by campaigning to assume that office while continuing to represent criminal defendants. ( People v. Marshall, supra, 196 Cal. App.3d at p. 1257 [defense counsel's acceptance of employment with district attorney does not *997 require finding of actual conflict of interest].) Any conflict between an attorney's personal interest in obtaining employment and his or her client's interest in loyal and effective representation is too attenuated to impute a violation of professional ethics in each such case.
Moreover, the record does not support a conclusion that Massini's alleged conflict of interest adversely affected defendant's representation. [20] Defendant was also represented by Allen during Massini's campaign. [21] Allen did not suffer from any alleged conflict of interest and was not an employee of Massini. Allen was an experienced death penalty and criminal defense attorney. He appeared for defendant during the motions to suppress and his name appeared on the numerous pretrial motions along with Massini's name. (19)(See fn. 22.) Allen's participation in the defense supports our conclusion that the defense was neither constitutionally inadequate nor tainted by the alleged conflict. [22] (18b) Allen was in a unique position to observe whether Massini's representation of defendant was adversely affected as a result of her campaign. Allen's silence regarding any deficiencies in his cocounsel's representation of their mutual client reinforces our conclusion, which is based on our review of the record, that Massini's representation of defendant was not adversely affected by her personal interest in winning the election.
Nevertheless, defendant urges two examples of instances where Massini's representation was impaired by the conflict of interest. First, defendant points out that his motion to suppress did not specifically argue that Detective Kelley's search of the clothing found in Smith's car constituted an impermissible independent search. This argument, however, lacks merit. (See, ante, at pp. 979-980.) This lack of merit, rather than the conflict of *998 interest, is the likely reason why this specific argument was not pursued. Another reason to explain this purported failure could be that Arizona v. Hicks, supra, 480 U.S. 321 , was not decided until after defendant's motion was heard. Finally, Allen, not Massini, wielded the laboring oar on this motion. Defendant wisely refrains from contending that Allen's representation was adversely affected by Massini's alleged conflict of interest.
Second, defendant challenges defense counsel's failure to explicitly argue that the necessary probable cause and exigent circumstances were not present to justify the taking of defendant's blood without a search warrant. While the record does not indicate that defense counsel raised this particular argument, defense counsel did argue that the blood sample should be suppressed on Fourth Amendment grounds.
Defendant contends that his counsel's failure to raise the specific argument that he has raised on appeal must be attributed to Massini's desire not to anger the police with whom she might soon be closely working. We cannot ascertain from this record the reasons why the argument was not pursued. To impute this decision to Massini's campaign, however, would be to engage in sheer speculation. For example, we would have to assume that Allen, as well as Massini, was laboring under divided loyalties and harbored some reason not to anger the police. Such an assumption does not make sense, since Allen no longer even regularly practiced in Northern California during the time in question. On this record, we do not find that "`it is demonstrated ... that the nature of the defense afforded deprived the defendant of a constitutional right.'" ( People v. Mroczko (1983) 35 Cal.3d at 86, 105 [ 197 Cal. Rptr. 52 , 672 P.2d 835 ], quoting People v. Keesee (1967) 250 Cal. App.2d 794, 798 [ 58 Cal. Rptr. 780 ].)
We also reject defendant's related contention that the alleged conflict warrants a per se reversal of his conviction and sentence based upon the public policy rule announced in People v. Rhodes (1974) 12 Cal.3d 180 [ 115 Cal. Rptr. 235 , 524 P.2d 363 ] (hereafter Rhodes ). In Rhodes , this court reversed the conviction of a defendant who was represented by a part-time city attorney, who simultaneously discharged prosecutorial responsibilities in the county in which the defendant was tried. In so doing, this court announced a judicially declared rule of criminal procedure that city attorneys, who exercise prosecutorial responsibilities, may not represent criminal defendants. ( Id. at pp. 186, 187.) Since Rhodes , however, we have recognized that in cases where the conflict between prosecutorial and criminal defense responsibilities is less direct, reversal is not required in the absence of prejudice to the representation. ( People v. Pendleton (1979) 25 Cal.3d 371, 381 [ 158 Cal. Rptr. 343 , 599 P.2d 649 ].) The serial nature of Massini's *999 criminal defense and prosecutorial responsibilities removes this case from the ambit of the Rhodes rule. (Cf. People v. Marshall, supra, 196 Cal. App.3d at pp. 1257-1259.)
c. Wood Error
Defendant further contends that the trial court erred in failing to inquire about Massini's alleged conflict of interest and in failing to obtain a knowing and intelligent waiver from the defendant of the same. Defendant contends that these failures constitute reversible error under Wood v. Georgia (1981) 450 U.S. 261 [ 67 L.Ed.2d 220 , 101 S.Ct. 1097 ].
(20) As we have consistently recognized, "[w]hen a trial court knows or should know that defense counsel has a possible conflict of interest with his [or her] client, it must inquire into the matter [citations] and act in response to what its inquiry discovers [citation]." ( People v. Jones (1991) 53 Cal.3d 1115, 1136 [ 282 Cal. Rptr. 465 , 811 P.2d 757 ].) Failure by the trial court to make the necessary inquiry or to respond to what its inquiry reveals is reversible error only if the defendant shows "that an actual conflict of interest existed and that that conflict affected counsel's performance." ( People v. Bonin, supra, 47 Cal.3d at pp. 837-838.)
In this case, we need not determine whether the trial court's failure to inquire into the circumstances surrounding Massini's campaign and continuing representation of the defendant was error. Even assuming the trial court's omission was error, defendant is not entitled to the reversal that he seeks, since the record supports neither a finding of actual conflict nor impaired representation.
d. Consultation Between the Attorney General's Office and the District Attorney's Office Following the Recusal
(21) Defendant argues that the trial court erred by modifying the recusal order to permit consultation and assistance by the district attorney's office to the Attorney General's office. Briefly, these modifications permitted (1) the district attorney's office to provide clerical and logistical support to the Attorney General, and (2) the Attorney General to consult with Robert Hickok (Hickok), the deputy district attorney who prosecuted the case prior to the recusal. The court specifically prohibited any direct participation by Hickok in the trial and any communication concerning the case between Hickok and Massini. We find no grounds upon which defendant would be entitled to relief.
The decision to recuse the Mendocino County District Attorney's Office is not challenged on appeal. That decision is governed by section 1424 and *1000 requires a showing that "a conflict of interest exists such as would render it unlikely that the defendant would receive a fair trial." The issue on appeal is limited to the effect of continuing contacts between the district attorney's office and the Attorney General's office following recusal.
We conclude that the recusal was not undermined by the modifications to the order. While defendant has not specified any purported harm flowing from the continuing contacts between the district attorney's office and the Attorney General's office, we assume that his objections are premised upon the possibility that confidential information was made known to the prosecution. We find no support for such a claim.
First, the modifications to the protective order incorporated safeguards protecting defendant's confidential information. The first two modifications to the recusal order provided for consultation with Hickok to end prior to the time that Massini was scheduled to assume her new office. The order as finally modified incorporated an ethical wall around Massini for purposes of this case by prohibiting Massini from discussing the case with Hickok and limiting the areas of consultation between Hickok and the Attorney General to events that occurred prior to Massini's election. These safeguards were sufficient to protect defendant's interests in the confidentiality of the communications between defendant and Massini. (See People v. Hernandez (1991) 235 Cal. App.3d 674, 680 [ 286 Cal. Rptr. 652 ]; People v. Lopez (1984) 155 Cal. App.3d 813, 827 [ 202 Cal. Rptr. 333 ].)
Second, no support exists for an inference that Massini actually violated the court's orders by breaching her ethical duties to defendant. Defendant acknowledged, by virtue of his stipulation to the recusal order as finally modified, that Massini would not violate her professional obligations by revealing his confidences or strategy or otherwise cooperating in his prosecution. (Cf. People v. Chadwick (1980) 106 Cal. App.3d 108, 116 [ 164 Cal. Rptr. 864 ].) The trial judge, who knew both Massini and Hickok, expressed his "confidence in their professional integrity and ethical judgment." "That assessment, made from a vantage point close to the circumstances and people involved, is entitled to our deference." ( People v. Lopez, supra, 155 Cal. App.3d at p. 827 , citing People v. Conner (1983) 34 Cal.3d 141, 149 [ 193 Cal. Rptr. 148 , 666 P.2d 5 ].)
3. The Public Defender's Representation of Prosecution Witnesses
When Massini relinquished the position of Mendocino County Public Defender, Ronald Brown (Brown) assumed that position and became cocounsel with Allen in this case. During the course of trial, several alleged *1001 conflicts involving Brown arose. Brown, in his capacity as Mendocino County Public Defender, previously had represented prosecution witnesses Robyn Boyd (Boyd), Smith, Stevens and Matt Williams. Brown also had personally represented Williams.
a. Boyd, Smith and Stevens
(22) Defendant correctly contends that in some circumstances a conflict of interest can result from an attorney's duty of loyalty to a client and the professional fiduciary obligations arising from the attorney's present or former representation of an opposing witness in a different proceeding. (See Leversen v. Superior Court (1983) 34 Cal.3d 530, 538 [ 194 Cal. Rptr. 448 , 668 P.2d 755 ].) The record reveals, however, that no actual or potential conflict resulted from the representation of Boyd, Smith and Stevens by the public defender's office.
Brown, as an officer of the court, was in the best position to assess whether a conflict of interest existed or was likely to arise. (E.g., People v. Belmontes (1988) 45 Cal.3d 744, 776 [ 248 Cal. Rptr. 126 , 755 P.2d 310 ].) Brown represented to the court that he possessed no confidential information relating to any of the three witnesses in question. (See ibid. [no actual or potential conflict found in similar circumstances arising in the context of firm under contract to county to be conflict public defender].) Both Brown and Allen represented to the court that the cross-examination of these witnesses would not be affected by any prior representation by the public defender's office. Furthermore, neither Brown nor his office represented any of the witnesses at the time of his or her cross-examination. Therefore, he did not have any interest in attempting to shield these witnesses from impeachment or to otherwise ensure that their testimony was well-received. (Cf. In re Darr (1983) 143 Cal. App.3d 500 [ 191 Cal. Rptr. 882 ].)
We reviewed the instances where defendant claims that the cross-examination of these witnesses was prejudicially deficient. After doing so, we find no reason to conclude that the alleged conflicts adversely affected defendant's representation.
b. Williams
(23) The purported conflict arising from prior representation of Matt Williams is more troubling. The public defender's office had represented Williams on several juvenile charges during time periods when neither Allen nor Brown was associated with the office. Brown also had personally represented Williams in connection with a charge of receiving stolen property. This representation began in February of 1986, prior to the time that *1002 Brown became the public defender and commenced work on defendant's case.
Upon learning that Williams would likely be a witness in defendant's case, Brown sought guidance regarding how to proceed with representation of his clients from the Mendocino County Superior Court. He was advised to terminate his representation of Williams, to refrain from disclosing to Allen any confidential information about Williams, and to arrange for Allen to conduct Williams's cross-examination.
Unlike the other prosecution witnesses discussed above, Brown did personally represent Williams and was in possession of attorney-client information. Therefore, although Brown had withdrawn from his representation of this witness, he likely would have been in a situation of divided professional duties if he had cross-examined Williams or assisted in that cross-examination. (See Leversen v. Superior Court, supra, 34 Cal.3d at p. 538.)
Brown, however, did not cross-examine this witness; Allen did. Allen was not in a position of conflict with respect to this witness. Both attorneys as officers of the court represented that Brown did not provide Allen with any confidential information obtained from or relating to Williams. [23] Sworn representations have been held to be effective in assuring the court that insulation of prior confidential communications from present representation has occurred and will continue to occur. (See also People v. Lopez, supra, 155 Cal. App.3d at p. 827 ; People v. Hernandez, supra, 235 Cal. App.3d at p. 680 .)
Allen also represented to the court that Brown's conflict would not affect his cross-examination of the witness. Allen was in the best position to make this determination. ( People v. Belmontes, supra, 45 Cal.3d at p. 776.) Upon reviewing the record, we have no difficulty crediting Allen's representation. We cannot find or hypothesize any failing on Allen's part that could be attributable to any information that Brown may have received from Williams or from any solicitude Brown may have felt for his former client. There was simply no adverse effect on defendant's representation resulting from Brown's potential conflict of interest. [24]
*1003 c. Wood Error
Defendant contends that the trial court committed Wood error in connection with the above mentioned alleged conflicts of interest. ( Wood v. Georgia, supra, 450 U.S. 261 .) Again, we need not determine whether the trial court's inquiry into or the defendant's waiver of the alleged conflicts was sufficient. Assuming error in this regard, defendant fails to demonstrate with respect to any one of the purported conflicts of interest both the existence of an actual conflict and an adverse effect on his representation. Therefore, defendant is not entitled to reversal on this ground. ( People v. Bonin, supra, 47 Cal.3d at pp. 837-838.)
E. Admission of Tape-recorded Statement of Defendant's Refusal to Provide Handwriting Exemplar
(24) Defendant next contends that the admission into evidence of a tape-recorded statement, in which he refused to comply with a court order to provide a handwriting exemplar, violated his rights under the Fifth and Sixth Amendments to the federal Constitution. The handwriting exemplar was sought in an attempt to further link the bloodstained jeans to defendant by matching his handwriting with notes found in the pockets.
Preliminarily, we observe that defendant's claim has been waived. (Evid. Code, ง 353, subd. (a).) At trial defendant objected to the introduction of the tape on the grounds of relevance and prejudice. [25] Appellant did not raise his constitutional claim.
Moreover, we would reject this claim on the merits even if it were not procedurally barred. [26] Compulsion of a handwriting exemplar is permissible under the Fifth Amendment. ( Gilbert v. California (1967) 388 U.S. 263, 266-267 [ 18 L.Ed.2d 1178, 1182-1183 , 87 S.Ct. 1951 ].) The taking of an exemplar is not a "`critical' stage of the criminal proceedings entitling [defendant] to the assistance of counsel." ( Id. at p. 267 [ 18 L.Ed.2d at p. 1183 ].) Furthermore, the refusal of a defendant to provide an exemplar in violation of a court order is admissible evidence of the defendant's consciousness of guilt. (See People v. Ellis (1966) 65 Cal.2d 529, 536-539 [ 55 Cal. Rptr. 385 , 421 P.2d 393 ] [voice sample]; South Dakota v. Neville (1983) 459 U.S. 553, 560-566 [ 74 L.Ed.2d 748, 756-761 , 103 S.Ct. 916 ] [blood test].)
Defendant nevertheless insists that the manner in which the tape-recorded statement was elicited constituted both impermissible interrogation ( Rhode *1004 Island v. Innis, supra, 446 U.S. 291 ; Edwards, supra, 451 U.S. 477 ) and the deliberate elicitation of an incriminating statement in violation of the Sixth Amendment right to counsel (e.g., Brewer v. Williams (1977) 430 U.S. 387, 401 [ 51 L.Ed.2d 424, 437-538 , 97 S.Ct. 1232 ]). The record does not support these contentions.
The record shows that Michael Prodan (Prodan), a special agent for the California Department of Justice, contacted defendant in jail. A defense investigator was also present. Prodan requested the exemplar and explained that the court had ordered defendant to produce it. As he was required to do ( People v. Ellis, supra, 65 Cal.2d at p. 539 ), Prodan advised defendant of the adverse evidentiary consequences of refusing to comply with the order. Prodan confirmed that defendant understood these consequences and that he nevertheless did not wish to produce the exemplar. At several points, defendant remarked that he did not see why he should assist the district attorney in "put[ting him] away." During the colloquy, Prodan did not engage in impermissible interrogation or deliberately attempt to elicit incriminating statements from defendant. The spontaneous or gratuitous comments made by defendant during his exchange with Prodan cannot be attributed to Prodan's permissible attempt to obtain the handwriting sample. (See People v. Johnson (1992) 3 Cal.4th 1183, 1224 [ 14 Cal. Rptr.2d 702 , 842 P.2d 1 ].) [27]
F. Admission of Defense Psychiatrist's Pretrial Testimony
Defendant next challenges the trial court's ruling permitting the prosecutor to impeach the testimony of his trial experts with the testimony, given at a pretrial hearing to suppress defendant's incriminating statements, of Dr. Peter Mayland, a defense psychiatrist. Defendant claims that this decision violated his federal and state constitutional rights to counsel and against self-incrimination, as well as state laws governing the attorney-client privilege. We find no error in the court's ruling.
1. Background
Dr. Peter Mayland (Mayland) was appointed to assist the defendant and his counsel in investigating a defense based upon the defendant's mental state at the time of the crimes. (Evid. Code, งง 730, 1017.) Mayland assisted defense counsel throughout the course of preparation for and during the trial.
*1005 As previously noted, the defense called Mayland as a witness during the pretrial hearing on the motion to suppress defendant's confessions. Mayland testified that he harbored "significant doubt" that appellant could have voluntarily waived his constitutional rights prior to making his incriminating statements to the police. He testified that he first met defendant approximately two days after the murder at the request of defendant's counsel. He continued to see the defendant on a weekly basis for approximately one or two hours a visit. He testified about his impressions of the defendant during their meetings. On at least two separate occasions, the defendant had provided detailed accounts of the crimes. Under cross-examination, Mayland recreated defendant's accounts of the crimes, using his notes to refresh his recollection. These notes were produced to the prosecutor.
At trial, the defense was that defendant was suffering from a "rage reaction" at the time of the crimes that prevented him from formulating the requisite intent to kill. Defendant called several experts to testify in support of his defense. Mayland was not called to testify at trial. The prosecution sought to impeach the reliability of the defense experts' conclusions by referring to various aspects of defendant's statements to Mayland.
After extensive briefing and argument on this subject, the trial court concluded that the prosecutor could use defendant's statements to Mayland to impeach the defendant's experts. Specifically, the trial court ruled that the "tendering of the psychiatric defense" waived any Fifth and Sixth Amendment privileges. The trial court also ruled that defendant had waived the statutory attorney-client and psychotherapist-patient privileges.
2. Waiver of Privileges
(25) Since Mayland was appointed to assist defendant's counsel under section 1017, all communications between defendant and Mayland were protected by two distinct privileges: the psychotherapist-patient privilege and the attorney-client privilege. (Evid. Code, งง 952, 954, 1010-1027; People v. Clark (1990) 50 Cal.3d 583, 619-623 [ 268 Cal. Rptr. 399 , 789 P.2d 127 ]; People v. Caro (1988) 46 Cal.3d 1035, 1060, fn. 11 [ 251 Cal. Rptr. 757 , 761 P.2d 680 ].) Defendant correctly concedes that at the time he tendered his mental defense at trial, he waived the applicable psychotherapist-patient privilege. Defendant argues, however, that the protection of the attorney-client privilege was never waived.
The Attorney General asserts that defendant waived the attorney-client privilege protecting his statements to Mayland when he called Mayland to testify during the suppression hearing. The Attorney General is correct. By *1006 calling Mayland to the stand during the suppression hearing, defendant manifested an intent that his communications with Mayland be revealed to third parties and that the attorney-client privilege be waived. (See, e.g., People v. Haskett (1990) 52 Cal.3d 210, 243 [ 276 Cal. Rptr. 80 , 801 P.2d 323 ].)
Defendant counters that, under the circumstances of this case, the testimony in question was impermissibly compelled in violation of the federal and state Constitutions. Defendant first urges that the statute governing the waiver of the attorney-client privilege specifically excepts compelled statements from its scope. Evidence Code section 912, subdivision (a) states in relevant part that the attorney-client privilege "is waived with respect to a communication protected by such privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone." [28] Relying primarily upon Simmons v. United States (1968) 390 U.S. 377, 393-394 [ 19 L.Ed.2d 1247, 1258-1259 , 88 S.Ct. 967 ] (hereafter Simmons ), defendant argues that Mayland's testimony was coerced or compelled when defendant proffered it in order to protect his Fifth Amendment rights.
In Simmons the United States Supreme Court established a rule of use immunity for a defendant's testimony in a suppression hearing. In that case, the defendant was charged with armed robbery. A critical piece of evidence against defendant was a suitcase containing implements and fruits of the robbery. The suitcase was seized by the police without a warrant during a search of the home of defendant's mother. At a suppression hearing, the defendant testified that he owned the suitcase in order to establish his standing to assert his Fourth Amendment right to exclude this evidence. The suppression motion was denied and defendant's testimony regarding ownership of the suitcase was admitted at trial to prove his guilt. ( Simmons, supra, 390 U.S. at pp. 379-381 [19 L.Ed.2d at pp. 1251-1252].)
The Supreme Court ultimately ruled that defendant's testimony at the suppression hearing was compelled within the meaning of the Fifth Amendment and could not be used at trial to prove his guilt. (390 U.S. at pp. 393-394 [19 L.Ed.2d at pp. 1258-1259].) The high court reasoned defendant should not be placed in the position of being forced to sacrifice one constitutional right (the protections of the Fifth Amendment's self-incrimination clause) in order to attempt to vindicate another constitutional right *1007 (the Fourth Amendment's prohibition on unreasonable searches and seizures). (390 U.S. at pp. 393-394 [19 L.Ed.2d at pp. 1258-1259].)
This court has also sought to ameliorate the difficult choices facing defendants who wish to testify in pretrial proceedings. We have extended use immunity to defendants' pretrial testimony in probation revocation hearings and juvenile status hearings that occur before trial. ( People v. Coleman (1975) 13 Cal.3d 867, 889 [ 120 Cal. Rptr. 384 , 533 P.2d 1024 ]; Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 809, 811 [ 210 Cal. Rptr. 204 , 693 P.2d 789 ].)
Neither defendant nor the Attorney General provided as authority any case in which use immunity was granted for the testimony of a psychiatrist at a pretrial suppression hearing. After reviewing the policies underlying such use immunities, we decline to find the Simmons rule applicable to the situation at hand. (Cf. People v. Haskett, supra, 52 Cal.3d at p. 244 [rejecting request for use immunity during retrial to bar use of psychiatric testimony offered by defense in first trial on the basis of lack of authority to support the request].)
Assuming without deciding that the waiver of the attorney-client privilege is of constitutional dimensions pursuant to the Sixth Amendment and its state counterpart, we are not faced in this case with an intolerable conflict between constitutional rights. Defendant was not compelled to waive the attorney-client privilege shielding his revelations to Mayland in order to support his suppression motion. As illustrated by the fact that mental health experts other than Mayland testified at trial, experts, who were not part of the defense team, could have been readied and called to testify during the pretrial hearing, thus obviating the asserted constitutional dilemma. The presentation of Mayland's testimony was a tactical choice that was not impermissibly coerced or compelled.
Defendant also appears to contend that his Fifth Amendment rights, as well as his Sixth Amendment rights, were infringed by the use of Mayland's testimony. This argument is without merit. First, defendant's statements to Mayland in no way were coerced or compelled, nor did they involve any state action; they were voluntarily made. ( People v. Clark, supra, 50 Cal.3d at p. 620, fn. 30.) Second, defendant waived his Fifth Amendments rights with respect to statements made during psychiatric examinations requested by or agreed to by the defense when he placed his mental state in issue during trial. ( People v. Williams (1988) 44 Cal.3d 883, 961-962 [ 245 Cal. Rptr. 336 , 751 P.2d 395 ]; Buchanan v. Kentucky (1987) 483 U.S. 402 , *1008 421-424 [ 97 L.Ed.2d 336, 354-357 , 107 S.Ct. 2906 ].) [29] Third, the jury was admonished that the statements in question could not be considered for the truth of their content. ( In re Spencer (1965) 63 Cal.2d 400, 412 [ 46 Cal. Rptr. 753 , 406 P.2d 33 ].)
In summary, defendant waived the attorney-client privilege protecting his statements to Mayland when Mayland took the stand at the pretrial hearing and revealed them. The defendant waived the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination when he raised his rage reaction defense at trial. At that point, Mayland's testimony was not protected by any applicable privilege or constitutional right and could be used by the prosecutor for impeachment or rebuttal. The result reached by the trial court was correct. For this reason, it is not necessary to address defendant's claims of prejudice resulting from the use of this testimony to impeach defense witnesses.
3. Use of Mayland's Testimony for Purposes Other Than the Limited Purpose for Which It Was Admitted
(26) Defendant claims prejudice resulting from references by the prosecutor during his summation at both the guilt and penalty phases to statements that defendant made to Mayland. Essentially, defendant contends that the prosecutor used the statements as substantive evidence relating to the manner in which the crimes were committed, rather than for the limited purpose for which they were admitted โ€” to illuminate the reliability of expert opinions. Our review of the arguments discloses three instances where the prosecutor's statements arguably tended to obscure the limited nature of the evidence in question.
Any harm flowing from these remarks readily could have been cured by an appropriate admonition following an objection by the defendant. Defendant objected during trial to only the comment made during the prosecutor's rebuttal statement during the guilt phase; therefore, his objections to the other two comments were waived. ( People v. Haskett, supra, 52 Cal.3d at p. 244 .)
*1009 With respect to the comment during rebuttal, we find no prejudice occurred. [30] The trial court sustained defendant's objection. Although the trial court failed to give a specific admonition regarding the limited use for which defendant's statements to Mayland were admitted, the trial court provided a general admonition. [31] The jury was instructed, however, both prior to the argument and again later during deliberations in response to questions regarding whether any of defendant's statements to the experts were "admissible evidence," that such testimony was not to be considered as evidence of the truth of the facts disclosed by the statements. Therefore, although a specific admonition was not immediately given by the trial court, any potential prejudice was dissipated by the trial court's instructions. ( People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17 .) There is no reasonable likelihood that the jury was misled. (See People v. Clair, supra, 2 Cal.4th at p. 663.)
Further, we find that, given the repeated admonitions and instructions that the jury was not to consider defendant's statements to the defense experts for their content, no prejudice arose from any of the challenged comments by the prosecutor, whether these comments are viewed individually or cumulatively. (Cf. People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17 ; People v. Hawthorne (1992) 4 Cal.4th 43, 79 [ 14 Cal. Rptr.2d 133 , 841 P.2d 118 ].)
4. Questions Relating to Defendant's Meetings with Mayland
(27) Defendant also claims that certain questions by the prosecutor to defense experts Drs. Ronald Roberts and Stephen Raffle constituted prohibited comment on the exercise of a privilege pursuant to Evidence Code, section 913, because these questions contained references to meetings between defendant and Mayland. We disagree. Mayland's meetings with defendant prior to the suppression hearing were within the scope of his testimony at that hearing. Therefore, at the time the prosecution asked the questions to which defendant now objects, there was no privilege to exercise with respect to facts relating to these interviews. The prosecutor's questions did not constitute impermissible comment on defendant's exercise of a privilege.
*1010 5. Failure to Accept Defendant's Proposed Settlement of the Record
Defendant next argues that his proposed settled record establishes that the trial court erred by admitting Mayland's testimony for any purpose during the trial. Defendant asserts that the court and the prosecutor had assured defense counsel during an unreported conference that Mayland's testimony would not be used for any purpose during trial and that trial counsel relied upon these assurances in deciding to present Mayland's testimony. Defendant contends that the trial court erred in denying his motion to settle the record, which would have substantiated this claim. Defendant also contends that he was deprived of his right to be present during all stages of the trial since he was absent from the unreported conference.
a. Background
During the appellate record correction process, appellate counsel moved for a settled statement detailing the contents of an unreported conference that occurred during the suppression hearing. The trial court accepted declarations and oral testimony from trial counsel regarding the circumstances of this alleged conference. Briefly, the defendant's trial attorneys contended that an in-chambers, unreported discussion occurred, during a recess in the Evidence Code section 402 hearing and prior to the time that Mayland was called as a witness, in which the judge, the prosecutor and both defense counsel participated. Both defense attorneys testified that the issue of whether Mayland's testimony, if he were to be called to the stand, would later be admissible at trial was discussed during this conference. Allen recalled that he announced his intent to call Mayland to testify "only if we could be assured that his testimony could not later be introduced at Mr. Clark's trial." As a result of this conversation, both defense attorneys left the chambers with the impression that the defense could call Mayland as a witness at the suppression hearing without his testimony later being used at trial. Allen subsequently admitted, however, that the trial court did not rule on this issue.
The prosecutor's recollection of the conversation differed. He testified that all counsel had been in chambers when the court inquired about the probable length of the remainder of the hearing. Defense counsel mentioned that a psychiatrist might be called as a witness. The court directed that it be informed by the end of the day as to whether the witness would be called. At that point, the prosecutor recalled counsel leaving chambers. In the courtroom, outside of the presence of the judge, Allen and the prosecutor discussed the evidentiary implications of Mayland's testimony and the possible relevance of Simmons, supra, 390 U.S. 377 . The prosecutor recalled telling *1011 Allen that he believed that Simmons immunized the testimony, but that subsequent cases permitted its use as impeachment.
The trial judge stated that he did not recall any such discussion occurring in his chambers. Furthermore, he expressed skepticism that any experienced defense counsel would have relied upon an "implied decision" such as the one Allen's testimony described or would have failed to bring this understanding to the attention of the court when the question of admissibility of Mayland's testimony was raised during trial.
The trial court denied the motion. In the course of doing so, the court found that the " Simmons issue" had not been discussed in the presence of the court and that the "scheduling discussion" was not material to any issue on appeal.
b. Discussion
(28) This court has repeatedly recognized that settlement of the record is primarily a question of fact to be resolved by the trial court. (E.g., People v. Hardy, supra, 2 Cal.4th at p. 183, fn. 30; People v. Beardslee (1991) 53 Cal.3d 68, 116 [ 279 Cal. Rptr. 276 , 806 P.2d 1311 ].) Once settlement is ordered, the trial court has broad discretion to accept or reject counsel's representations in accordance with its assessment of their credibility. ( People v. Beardslee, supra, 53 Cal.3d at p. 116; People v. Gzikowski (1982) 32 Cal.3d 580, 584-585, fn. 2 [ 186 Cal. Rptr. 339 , 651 P.2d 1145 ].) Defendant's contention that he was entitled to a hearing on this issue before a judge other than the trial judge in this case is meritless.
(29) Moreover, the trial court did not abuse its broad discretion. The recollection of the participants conflicted regarding the content of the in-chambers discussion. Both the court and the prosecutor recalled that the " Simmons issue" was not raised in the court's presence. The prosecutor recalled discussing it with defense counsel outside of the presence of the court. Substantial evidence supports the trial court's findings. Further, given these findings, the trial court correctly determined that the proceeding in question was not the type that may be settled under the California Rules of Court. ( People v. Gzikowski, supra, 32 Cal.3d at pp. 584-585, fn. 2.)
(30) Appellant also contends that his absence from the in-chambers conference violated his statutory (งง 977, 1043) and constitutional (e.g., People v. Jones, supra, 53 Cal.3d at p. 1140) right to be present during all trial proceedings. This right is not implicated, however, unless the proceedings bear a "reasonable, substantial relation to [defendant's] opportunity to defend the charges against him...." ( People v. Hovey (1988) 44 Cal.3d *1012 Cal.3d 543, 573-574 [ 244 Cal. Rptr. 121 , 749 P.2d 776 ]; accord, People v. Jones, supra, 53 Cal.3d at p. 1140.) A discussion regarding the length of time for a hearing and the possible defense witnesses to be called does not implicate defendant's opportunity to defend himself. (See People v. Hardy, supra, 2 Cal.4th at p. 178; People v. Wharton (1991) 53 Cal.3d 522, 602-603 [ 280 Cal. Rptr. 631 , 809 P.2d 290 ].)
c. Ineffective Assistance of Counsel
(31a) Defendant further argues that, by deciding to call Mayland as a witness without obtaining an order from the court or a binding commitment from the prosecutor not to use Mayland's testimony at trial, his trial attorneys rendered ineffective assistance to him. Defendant's argument is premised upon the fact that his trial attorneys testified that they never would have called Mayland to the stand if they had believed that his testimony could be used at trial.
(32) In order to prevail on his claim of ineffective assistance of counsel, defendant must demonstrate that (1) his attorneys' representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) his attorneys' deficient representation subjected him to prejudice, i.e., there is a reasonable probability that, but for his attorneys' failings, the result would have been more favorable to him. ( Strickland v. Washington (1984) 466 U.S. 668, 687 [ 80 L.Ed.2d 674, 693 , 104 S.Ct. 2052 ]; In re Wilson (1992) 3 Cal.4th 945, 950 [ 13 Cal. Rptr.2d 269 , 838 P.2d 1222 ].) In this context, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." ( Strickland v. Washington, supra, 466 U.S. at p. 694 [80 L.Ed.2d at pp. 697-698].)
(31b) We need not decide whether defendant's trial attorneys were incompetent, because defendant is unable to demonstrate that the alleged deficiency resulted in prejudice โ€” that is, that a more favorable result would have been reached at either the guilt or penalty phase had Mayland's testimony been excluded from the trial. First, appellant's statements to Mayland were not admitted at trial for their truth. Their sole use was for impeachment of the defense experts' opinions. Second, the use of Mayland's testimony to impeach the testimony of Drs. Smith, Roberts, and Raffle represented a small portion of the prosecutor's cross-examination of these witnesses. The testimony of these witnesses contained many contradictions. In rebuttal, the prosecutor presented additional evidence, including credible expert testimony, that cast further doubt upon the reliability of the evaluations of the defense experts. Additionally, the testimony of numerous percipient witnesses, who observed the defendant within hours following the *1013 crime, and the low levels of drugs revealed by the blood test taken after defendant's arrest cast doubt upon defendant's "rage reaction" theory. Based upon our review of the record, we conclude that a more favorable result in either the guilt or penalty phase would not have resulted even if Mayland's pretrial testimony had never been referred to during trial.
G. Alleged Prosecutorial Misconduct
Defendant next contends that the prosecutor's "egregious misconduct" rendered his trial fundamentally unfair in violation of his Sixth, Eighth and Fourteenth Amendment rights and their corresponding state rights. Defendant failed to object and seek a curative admonition in order to preserve these alleged points of prosecutorial misconduct for appeal. ( People v. Haskett, supra, 52 Cal.3d at p. 244 .) Nevertheless, we consider each claim on the merits in order to resolve potential ineffective assistance of counsel contentions based upon counsel's failure to object at trial.
1. Cross-examination Using Hearsay Material
(33) Defendant complains that the prosecutor improperly cross-examined Dr. Stephen Raffle using two forms of inadmissible hearsay: a scholarly article by Dr. Bernard Diamond and a jailhouse report.
a. Diamond Article
The prosecutor used an article by Dr. Bernard Diamond, entitled "With Malice Aforethought," in his cross-examination of Dr. Raffle, and a portion of the article was read to the jury in the course of the examination. Section 721, subdivision (b) of the Evidence Code governs the use of scholarly works in the cross-examination of expert witnesses. This subdivision permits the use of such materials when the expert "referred to, considered, or relied upon such publication in arriving at or forming his opinion." (Evid. Code, ง 721, subd. (b)(1).) In light of (1) Dr. Raffle's testimony that he considered or relied upon all of his training in arriving at his conclusions, (2) the relationship of the abolished defenses of diminished capacity and irresistible impulse to his opinion that defendant lacked the intent to commit his crimes due to a rage reaction, and (3) Dr. Raffle's former association with Dr. Diamond and his familiarity with Dr. Diamond's works, including the article in question, the cross-examination of the witness using this scholarly work was permissible. We find no violation of defendant's federal or state constitutional or statutory rights arising from the use of this article during trial.
b. Jailhouse Reports
(34a) In an effort to impeach Dr. Raffle's opinion that defendant was remorseful about the death of Rosie Grover, the prosecutor asked Raffle *1014 whether his opinion on this subject would be affected if he learned that defendant had displayed a "boastful, cocky attitude about the crime" while he was in the Mendocino County jail. At trial, the only objection to this line of questioning was that the defendant had not received a copy of the report from which this comment was taken. (35) A defendant who does not object and seek an admonition to disregard improper statements, argument or inquiry by the prosecutor waives any such error unless the harm caused could not have been corrected by appropriate instruction or retraction. ( People v. Bell (1989) 49 Cal.3d 502, 547 [ 262 Cal. Rptr. 1 , 778 P.2d 129 ].) (34b) Clearly, any harm caused by the prosecutor's reference to the content of this report could have been corrected if an objection had been made at trial. Therefore, defendant's claim is waived.
Putting aside the procedural barrier, we need not decide whether the prosecutor erred, because any harm resulting from the use of the report did not result in a miscarriage of justice within the meaning of article VI, section 13 of the California Constitution. ( People v. Lewis (1990) 50 Cal.3d 262, 282 [ 266 Cal. Rptr. 834 , 786 P.2d 892 ].) The questions regarding the jailhouse report were a very brief portion of an extensive and effective cross-examination of this witness. Moreover, the jailhouse report was not the only evidence used to question the witness's conclusions regarding the defendant's feelings of remorse for the crimes. (See, post, at pp. 1016-1017.) Under these circumstances, we find that no prejudice accrued to the defendant.
2. Cross-examination on Irrelevant Topics
(36) Defendant next contends that the prosecutor was permitted to cross-examine defense experts on various irrelevant and prejudicial topics, including future dangerousness, lack of remorse, and sodomy of the victim.
a. Future Dangerousness
Defendant complains that the prosecutor impermissibly inquired about his future dangerousness through questions asked of Drs. Roberts and Raffle. These questions asked whether certain of Dr. Roberts's findings could be viewed as inconsistent with specific statements by defendant to the effect that, if defendant were faced with the same set of circumstances, he would not rape and kill again.
Defendant's objections on the grounds of relevance at trial were overruled. Although the court permitted the testimony, it expressly admonished the jury: "[N]obody on this earth can predict what somebody is going to do in the future. I don't care who they are. [ถ] However, you may consider such *1015 testimony as it goes to the credibility of this witness or the credibility of any other witness testifying as an expert. You may also consider such testimony as it goes to impeach any witness but you may not consider such testimony for the truth of validating future behavior because nobody can do that...." Defendant also objects to a reference to Dr. Raffle's testimony on this subject during the prosecutor's closing argument at the guilt phase. After a review of the record, we find that the inquiry and responses on this subject were permissible for impeachment purposes and that neither the questions nor comments by the prosecutor exceeded the boundaries of the court's ruling admitting the testimony.
Part of defendant's "rage reaction" defense was that his behavior on the night of the crimes was inconsistent with his character and could only be attributable to ingestion of drugs. Defendant's psychological profile and character were extensively probed during direct examination of Drs. Raffle and Roberts. Moreover, both experts opined regarding how the defendant would fare in the future in the structured environment of prison. The prosecutor's questions were drawn from inferences from Dr. Roberts's psychological profile of defendant. These inferences tended to show that defendant would commit the same crimes if confronted with the same circumstances in the future. Accordingly, the prosecutor's questions were relevant to the credibility of the defense evidence that the crimes were out of character for this defendant.
Moreover, many of Dr. Raffle's opinions depended upon the acceptance of the truth of statements made by the defendant. The prosecutor effectively demonstrated through cross-examination that many of defendant's statements may have been lies, thus undermining the foundation of Dr. Raffle's opinions. On direct examination, Dr. Raffle specifically testified that the defendant told him that if faced with the same circumstances he would not kill and rape again. The prosecutor's questions tended to cast doubt directly upon the veracity of defendant's statement, a statement that Dr. Raffle accepted as true and relied upon in reaching his opinion.
The testimony on "future dangerousness" was relevant impeachment testimony and the jury was instructed to use it only in that manner. The prosecutor committed no misconduct in eliciting this testimony. (See People v. Mattson (1990) 50 Cal.3d 826, 877-878 [ 268 Cal. Rptr. 802 , 789 P.2d 983 ] [penalty phase].)
Finally, the prosecutor's reference to this subject during his summation was brief and related to the impeachment purpose of the testimony. In fact, the prosecutor specifically acknowledged that the jury was not to consider *1016 future possibilities in its deliberations. The prosecutor did not commit misconduct in making this brief statement ( People v. Visciotti (1992) 2 Cal.4th 1, 82 [ 5 Cal. Rptr.2d 495 , 825 P.2d 388 ]), and no prejudice could have arisen therefrom.
b. Lack of Remorse
Defendant next complains that the prosecutor was permitted to attempt to elicit from Dr. Raffle on cross-examination that certain conduct of the defendant demonstrated lack of remorse for his crimes. In particular, defendant points to cross-examination based upon the Mendocino County jailhouse report discussed above and the fact that defendant carried the victim's bottle of wine cooler from the scene of the crime and drank from it.
We reject defendant's claim of irrelevance and prejudice arising from these lines of questioning. First, the defendant did not object to either line of questioning during trial on the grounds of relevance or prejudice. These objections thus were waived. (See People v. Hardy, supra, 2 Cal.4th 86, 208-209 [penalty phase]; People v. Roberts (1992) 2 Cal.4th 271, 335-336 [ 6 Cal. Rptr.2d 276 , 826 P.2d 274 ].) Second, defendant himself placed the issue of his remorse into question during Dr. Raffle's direct examination. Dr. Raffle testified several times that defendant's "guilty conscience" was significant in his diagnosis of defendant. Moreover, Dr. Raffle was asked to assess the significance of defendant's possession of the wine cooler following the crime. Dr. Raffle stated that he did not know what that fact meant. The prosecutor's questioning regarding lack of remorse under these circumstances was relevant and not prejudicial. (See People v. Heishman (1988) 45 Cal.3d 147, 190 [ 246 Cal. Rptr. 673 , 753 P.2d 629 ].)
c. Sodomy
Defendant further contends that the prosecutor committed misconduct both by questioning Dr. Raffle regarding whether the defendant spoke to him about sodomizing Rosie Grover during the course of the rape and also by raising the issue of possible sodomy during his closing argument. Defendant argues that he was not charged with sodomy and that there was no evidence of sodomy in the record.
First, defendant did not object either to the prosecutor's questions to Dr. Raffle or to the discussion of sodomy in the prosecutor's closing argument. His objections, therefore, were waived. ( People v. Noguera (1992) 4 Cal.4th 599, 638 [ 15 Cal. Rptr.2d 400 , 842 P.2d 1160 ].)
Nevertheless, addressing the claim on the merits, we find no misconduct. First, the pathologist testified that "rare spermatozoa" had been found in the *1017 victim's anus. Second, Officer Gall testified that, based upon the presence of a white material on the victim's stomach, there was some basis to believe that the victim had been on her stomach at some point during the assault. While the evidence does not overwhelmingly support the prosecutor's theory that sodomy occurred, there was a sufficient evidentiary basis in the record to justify the prosecutor's question to Dr. Raffle and the prosecutor's statements during closing argument. (See People v. Thomas (1992) 2 Cal.4th 489, 526 [ 7 Cal. Rptr.2d 199 , 828 P.2d 101 ].)
Further, we conclude that, even if the prosecutor's fleeting references to sodomy could be deemed misconduct, they were not prejudicial. First, Dr. Raffle testified that defendant denied committing this crime. Second, given the evidence of the rape, the extremely brutal nature of the murder, and the victim's youth, it is not reasonably likely that the brief references in this lengthy trial to the possibility of sodomy were inflammatory. Finally, the jury was explicitly instructed that neither questions nor statements by attorneys are evidence. We find no reasonable likelihood that the jury was misled. (Cf. People v. Thomas, supra, 2 Cal.4th at p. 526.)
d. Cumulative Error
Defendant argues cumulative error resulting from the prosecutor's alleged misconduct. We find no cumulative error supporting reversal. (See People v. Hawthorne, supra, 4 Cal.4th at p. 79.)
3. Attack on Dr. Raffle
(37) Defendant next contends that the prosecutor committed misconduct by personally attacking Dr. Raffle by referring to him numerous times as a "liar" during cross-examination and summation. Defendant again failed to object to many of the questions and statements of which he now complains, thus waiving his objections. We further conclude that, after reviewing Dr. Raffle's testimony and the testimony of other experts during trial, it is apparent that sufficient discrepancies existed for the prosecutor to question Dr. Raffle's veracity. Under these circumstances, it was not prejudicial misconduct for the prosecutor to refer to Dr. Raffle during closing argument as a "liar," since this was one inference that could be drawn from the testimony admitted during trial. ( People v. Pinholster (1992) 1 Cal.4th 865, 948 [ 4 Cal. Rptr.2d 765 , 824 P.2d 571 ] ["prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence"].)
H. Other Purported Evidentiary Errors
1. "Blood-spatter" Testimony
(38a) Defendant argues that testimony on the subject of "blood-spatter" by Linton von Beroldingen (1) failed to meet the Kelly/Frye test ( People v. *1018 Kelly (1976) 17 Cal.3d 24 [ 130 Cal. Rptr. 144 , 549 P.2d 1240 ]; Frye v. United States (D.C. Cir.1923) 293 F. 1013 [ 34 A.L.R. 145 ]), and (2) was presented by an unqualified expert. Defendant's contentions lack merit.
First, with respect to the Kelly/Frye issue, this objection was not raised in the trial court and defendant failed to preserve this issue for appeal. ( People v. Kaurish (1990) 52 Cal.3d 648, 688 [ 276 Cal. Rptr. 788 , 802 P.2d 278 ].)
Second, overlooking the procedural obstacle, the objection is without merit. [32] The testimony at issue here raises none of the concerns addressed by Kelly/Frye. "The methods employed are not new to [science] or the law, and they carry no misleading aura of scientific infallibility." ( People v. Stoll (1989) 49 Cal.3d 1136, 1157 [ 265 Cal. Rptr. 111 , 783 P.2d 698 ] [psychological profile testimony], italics in the original.) In fact, the admissibility of "blood-spatter" or "blood dynamics" testimony in this state predates our Kelly decision. ( People v. Carter (1957) 48 Cal.2d 737, 750-751 [ 312 P.2d 665 ].) Moreover, neither the experiments conducted in connection with such analysis nor the principles underlying it produce an "aura of scientific infallibility." Rather, it is a matter of common knowledge, readily understood by the jury, that blood will be expelled from the human body if it is hit with sufficient force and that inferences can be drawn from the manner in which the expelled blood lands upon other objects. The Kelly/Frye rule is inapplicable. [33]
To the extent that defendant now renews his objection to the qualifications of Linton von Beroldingen, this objection is also without merit. (39) "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, ง 720, subd. (a).) The trial court's determination that a witness is qualified as an expert will not be reversed on appeal absent a clear abuse of discretion. ( People v. Chavez (1985) 39 Cal.3d 823, 828 [ 218 Cal. Rptr. 49 , 705 P.2d 372 ].)
(38b) No abuse of discretion is shown on this record. The witness had: (1) attended lectures and training seminars on the subject of blood dynamics *1019 in both California and Oregon; (2) read relevant literature; (3) conducted relevant experiments; [34] and (4) visited crime scenes where "blood-spatter" tests were conducted. ( People v. Carter, supra, 48 Cal.2d at p. 750 ; but see People v. Hogan, supra, 31 Cal.3d at pp. 851-852.) The trial court reasonab

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1121458. Public record. Not legal advice.