# People v. Hughes

> California Supreme Court · April 10, 2002 · 116 Cal. Rptr. 2d 401

URL: https://www.frixlaw.com/law-library/cases/2581420

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. KRISTIN WILLIAM HUGHES, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** April 10, 2002
- **Citations:** 116 Cal. Rptr. 2d 401; 27 Cal. 4th 287; 39 P.3d 432
- **Precedential status:** Published
- **Opinion:** Opinion by George
- **Judges:** George
- **Cited by:** 630 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2581420

## Opinion text

Opinion
GEORGE, C. J.
Defendant Kristin William Hughes appeals from a judgment of the Monterey County Superior Court imposing a sentence of death following his conviction of first degree murder (Pen. Code, § 187),
1
first degree robbery (§ 211), first degree burglary (§ 459), and sodomy (§ 286, subd. (c)). The jury found true the special circumstance allegations that the killing was committed in the perpetration of burglary (§ 190.2, subd. (a)(17)(G)), robbery
(id.,
subd. (a)(17)(A)), and forcible sodomy
(id.,
subd. (a)(17)(D)), and it also found true the allegations that, as to all four counts, defendant personally used a deadly or dangerous weapon, a knife (§ 12022, subd. (b)).
2
In addition to sentencing defendant to death on the murder conviction, the trial court imposed a total determinate term of 14 years and eight months on the remaining convictions, but stayed that term pending this appeal of the death judgment. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. Facts and Procedure
On September 7, 1989, after ingesting cocaine and alcohol for much of the prior day and night, defendant reported for work as a construction laborer, but soon passed out at the jobsite. Richard James, defendant’s boss, found him lying on the ground with his eyes partially open. Defendant jumped up and attempted to speak, slurred badly, and had trouble standing. James told defendant to go home and “straighten himself up.”
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Defendant’s home was in Pacific Grove, less than one-half of a mile from the jobsite. Defendant recently had moved into Jan Bishop’s studio apartment. Upstairs from Bishop resided Kim Hickman, a masseuse employed at a shop in Monterey.
Hickman returned from the shop to her apartment at approximately 12:00 noon to clean it in preparation for vacating the premises. (During the prior two weeks she had been sleeping at her boyfriend’s home, during which time she had begun moving her possessions to his house.) Defendant had met Hickman briefly the prior day, when she had dropped off a birthday present for Bishop at Bishop’s apartment.
Shortly after 8:00 p.m., an apartment complex neighbor, Olav Kvaslerud, noticed water seeping through his living room ceiling. Kvaslerud went to Hickman’s unit to investigate the leak, but received no response. He then inquired at Bishop’s unit, to determine whether there was leakage there as well. Defendant answered the door and did not appear to be intoxicated. Defendant accompanied Kvaslerud to his apartment, where they viewed the leak, which had turned a “little reddish.” Kvaslerud asked defendant whether he thought the liquid contained blood. Defendant did not answer, and left.
Kvaslerud looked inside Hickman’s apartment from a window and saw a woman’s body. He called the police, who found Hickman’s door unlocked. Pacific Grove Officers Heredia and Cox arrived, and observed Hickman on her back in the kitchen, dead, her clothes pulled or tom away, and her ankles and legs propped up against the wall. There was an object (later determined to be defendant’s suspenders) wrapped around her neck. Hickman had suffered numerous deep stab and puncture wounds to her chest. Her shirt was soaked in blood, which had flowed and commingled with water dripping from the open, defrosting refrigerator.
Detective Kennedy and Detective Uretsky of the Pacific Grove Police Department were summoned to the scene. They noticed that Hickman was wearing rubber cleaning gloves, and that there was a small scouring sponge saturated with blood and water next to her. Blood was spattered and apparently had been smeared and streaked with a sponge on the walls, stove, and refrigerator. A bloodied hunting knife was on the kitchen floor. Blood was found on various other objects throughout the unit. There were no signs of forced entry into the apartment.
After the police arrived, Bishop walked to the nearby beach at Lover’s Point to look for defendant. She saw him there and yelled to him that she thought Hickman had committed suicide. Bishop returned to the area of her
*317
apartment, where she sat down outside. Approximately 15 minutes later, defendant also returned and sat next to Bishop, but told her he could not stay because the presence of the police cars made him nervous.
After transferring control of the crime scene to Kennedy and Uretsky, Officers Heredia and Cox went outside to maintain security and prevent persons from entering the premises. They cordoned off the area with tape and spoke with several individuals to determine whether they had information or might be witnesses.
At approximately 11:45 p.m., Heredia and Cox saw defendant walking near the crime scene. Heredia, in uniform, walked toward defendant and had a brief conversation with him. Heredia inquired whether he could help defendant, and defendant replied that he lived in apartment No. 2. Heredia thought that to be odd, because the officers had spoken with Bishop, who had not mentioned having a boyfriend, husband, or roommate. Heredia asked defendant whether anyone else had spoken with him before Heredia had done so. Defendant replied that he had been there when the police first arrived, and an officer had spoken with him then and had told him that the situation was not “that big a deal” and that defendant could return in a few hours. Heredia told defendant that the situation was “more involved” and that the officers likely would be at the scene until at least late the next day. Defendant replied that this was fine with him and that he would return the next day.
Officer Heredia thought that these responses seemed strange under the circumstances. Although he and Officer Cox had been first on the scene, he had not seen defendant speaking with any other officer earlier in the evening. At that point, Heredia decided that Detective Kennedy should speak with defendant, and he summoned Kennedy, who joined the officers and defendant about a minute later. Upon Kennedy’s arrival, Heredia noticed, and pointed out, what appeared to be bloodstains on defendant’s jacket, which was draped on his arm.
Throughout these exchanges, the officers smelled alcohol on defendant’s breath and noticed that he had glassy eyes, seemed slightly intoxicated but not “drunk,” and although somewhat unsteady, did not have trouble standing. Detective Kennedy found defendant’s speech to be slightly slurred.
Detective Kennedy observed that defendant wore a white shirt bearing a small stain that appeared to be blood, that the front of defendant’s jeans was wet, and that defendant was smoking a Kool brand cigarette. When Kennedy asked defendant whether the jacket on his arm belonged to him, defendant
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replied that it did. Kennedy asked about the stains on the jacket, and defendant replied that they were from rust. Kennedy informed defendant that he was investigating an assault, and asked whether he could take his jacket and have a criminalist check it for blood. Defendant replied, “Go ahead,” and gave the jacket to Kennedy. The detective took the jacket to a criminalist who was in the crime scene apartment, where he learned that a blood-saturated Kool brand cigarette had been found on the floor directly above Hickman’s right shoulder. The tests on the jacket were inconclusive for fresh blood.
During the few minutes in which Detective Kennedy was having the jacket tested, Officers Heredia and Cox remained with defendant. Kennedy returned, stated that the tests were inconclusive, and asked defendant whether he would travel to the police station to speak with him there. Defendant replied, “Sure.” Subsequently, Heredia retrieved a cigarette butt—later determined to be Kool brand—that defendant had discarded on the ground.
Detective Kennedy testified that because defendant lived near the victim, he wanted to interview defendant in order to determine whether he had information relating to the homicide investigation, and that it was more appropriate to speak at the station, rather than on the dark street. Defendant was cooperative and expressed no hesitation about traveling to the police station.
Detective Kennedy asked Officer Cox to transport defendant to the police station. Before doing so, Cox handcuffed defendant and placed him in the back of a patrol car, explaining that defendant was not under arrest but was being handcuffed for safety reasons. (Officer Cox and Detective Kennedy both testified that this was an “acceptable” procedure used by the police department for transportation of unfamiliar persons, even if not suspects, and that such decisions are left to the transporting officer’s discretion.) Defendant said that he understood, and expressed no reluctance about being handcuffed or traveling to the station. Upon their arrival at the station, Officer Cox removed the handcuffs as soon as defendant exited from the car. Detective Kennedy estimated that, from the time defendant first was seen by the officer until the time he left for the police station, only about seven to 10 minutes elapsed.
Within a few minutes of defendant’s arrival at the police station, Detective Kennedy told defendant several times that he was not under arrest, and defendant repeatedly acknowledged that he understood. After defendant was advised of and waived his constitutional rights, Detective Kennedy videotaped a two-hour interview with defendant beginning at 12:30 a.m. on
*319
September 8. Defendant denied knowing Hickman, or having ever been inside her apartment. During the interview, defendant lit and smoked cigarettes with no coordination problems, and he appeared coherent and responsive.
In the course of the interview, Detective Kennedy noticed “track marks” on defendant’s arm, and defendant admitted using cocaine. After the interview, Kennedy arrested defendant for the homicide of Kim Hickman. Kennedy took defendant’s fingerprints and palm prints, and also took photographs of defendant’s hands and right foot.
Later that morning, defendant’s fingerprints and a bloody thumbprint were found at the crime scene, and defendant’s fingerprint was found on a pack of Kool brand cigarettes located in a Dumpster adjacent to the apartment. Identifiable prints could not be lifted from the knife or the gloves found at the scene. Subsequently, two latent impressions of defendant’s fingerprints also were found on a check that had been given to Hickman by a customer on the morning of her death. That check had been altered and cashed by defendant at a nearby Alpha Beta grocery store, within hours of Hickman’s death.
With Bishop’s consent, the police searched her apartment and found the following items in a closet and dresser drawer: tennis shoes with a pattern matching prints found at the crime scene, and a maroon-colored Crown Royal bag containing identification and credit cards belonging to other persons—Shirley Barrett-Sheridan and E.E. McFadden.
On September 23, 1989, Wendy May participated in a beach cleanup at Lover’s Point in Pacific Grove. At that time she found, behind a shrub, a Crown Royal cloth drawstring bag (similar to the one found in Bishop’s apartment) containing Hickman’s cashless wallet, checkbook, and credit cards.
Bishop testified that on September 6—the day before Hickman was killed—when Bishop arrived home from work, defendant gave her the bottle of wine and the birthday card that had been dropped off by Hickman. Shortly thereafter, defendant left the apartment with his friend Richard Stanley, and returned about four hours later, appearing somewhat intoxicated and nervous. Bishop and defendant began drinking from a new bottle of rum. Bishop had two drinks from the bottle, before going to bed at 2:00 a.m., while defendant was watching television. When Bishop awoke at 7:00 a.m., defendant still was watching television and drinking rum and appeared drunk, but he managed to get up and told Bishop that he was going to his
*320
jobsite. As she left for work, Bishop noticed that the bottle of rum was empty.
Defendant was not home when Bishop returned from work at 5:15 p.m. on September 7. He returned about 45 minutes later, wearing clothing different from that which he had worn that morning, and no suspenders. He also appeared different—it seemed to Bishop that defendant had “aged 15 to 20 years,” and that he had been drinking. Defendant gave Bishop a new, unopened bottle of rum to replace the one he had drunk the night before. Bishop asked defendant what was wrong, but he did not respond to that question. He mentioned, however, that he had been to the Alpha Beta grocery store.
Defendant again left Bishop’s apartment about 7:20 p.m. and returned approximately 20 minutes later with cigarettes, thereafter encountering Kvaslerud, who was investigating the leak of water into his own apartment. Defendant returned to Bishop’s apartment, where he mixed a rum drink for himself and prepared to depart. When Bishop asked defendant where he was going, he told her it was none of her business, and left with the bottle of rum.
A forensic pathologist testified that he examined Hickman’s body at the crime scene at 11:30 p.m. on September 7 and estimated that she had died before 5:30 p.m. that day. Autopsy evidence revealed that her numerous stab wounds were not themselves “rapidly fatal,” that death would not have occurred from the stab wounds until at least an hour after they were inflicted, and that she still was alive when she was strangled with both the suspenders (which had been wrapped tightly around her neck,
over
some of the stab wounds) and by the pressure of thumbs to the throat.
The position of Hickman’s body was consistent with some form of sexual attack. The pathologist testified that it appeared, from the state of rigor mortis, that Hickman’s legs had been propped up against the wall “sometime after death within the first few hours,” at which time she had been partially wiped or washed down. Also indicating that the body had been moved some time after death was the circumstance that the bottom of her feet, although covered with dried blood, had left no transfer of blood onto the wall. The pathologist testified that there was bruising two to three inches inside the victim’s rectum, that this bruising had occurred shortly before death, and that the bruising was consistent with penetration by a blunt object such as a penis or a finger. Tests for evidence of defendant’s seminal fluids or pubic hair at the crime scene were negative.
A criminalist testified that he found type A blood—a match with Hickman’s, and different from defendant’s type O—on one of the tennis shoes found in Bishop’s closet.
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James Zoellin testified that between 5:00 p.m. and 7:00 p.m. on September 7, he was in charge of the Pacific Grove Alpha Beta store, where defendant previously had worked for a few months. Defendant entered the store and presented Zoellin with a check, which he asked to cash. Zoellin noticed nothing unusual about defendant’s behavior. With Zoellin’s approval, store employees cashed the check, which later was determined to have been made out originally to Hickman. Testimony by a documents expert linked defendant’s handwriting to the “pay to order” and endorsement lines of the check. An Alpha Beta store clerk testified that she believed she recalled defendant purchasing “alcohol of some type” with the check proceeds.
Another store employee testified that the black suspenders found wrapped around Hickman’s neck were “exactly” like the distinctive suspenders that defendant had worn when he worked at the store.
Defendant presented evidence demonstrating his level of intoxication on the night before and on the day of the killing. Bishop testified that defendant mixed drinks on September 6 from a 750-milliliter bottle of 80-proof rum, but conceded that she previously had stated that the bottle was larger and that it was 151 proof. Richard Stanley, defendant’s friend, testified that he and defendant drank alcoholic beverages and ingested cocaine on two occasions on September 6, that defendant had searched unsuccessfully on that date for means to inject the cocaine, and that when he left defendant at Bishop’s apartment between 9:00 p.m. and 10:00 p.m. that same night, defendant was intoxicated and still had about half of the one-sixteenth of an ounce of cocaine powder that defendant had purchased earlier that evening. Urine and blood samples taken from defendant at 2:40 a.m. and 3:40 a.m. on September 8 tested positive for cocaine and alcohol, and these tests showed that at 3:40 a.m., defendant had a blood-alcohol concentration of .09 percent.
A forensic toxicologist testified that cocaine stimulates the central nervous system, whereas alcohol depresses mental and physical functions. In response to hypothetical questions from defense counsel, another expert, Department of Justice laboratory criminalist Juan Bergado, testified that given a .09 percent blood-alcohol level at 3:40 a.m., a 135-pound person (defendant’s approximate weight at the time of booking) would have had a .17 percent blood-alcohol level at 11:45 the prior evening. Bergado further testified that if such a person had consumed all but two ounces of a 750-milliliter bottle of a beverage containing 80-proof alcohol over a 14-hour period starting at 6:00 p.m. on September 6, that person would have a blood-alcohol level of approximately .26 percent by 8:00 a.m. on September 7 and about .16 percent at noon on that date. In response to further
*322
hypotheticals from defense counsel, Bergado also testified that if a beverage containing 151-proof (instead of 80-proof) alcohol were consumed, the blood-alcohol level would have been approximately .49 percent by 8:00 a.m. on September 7, and about .33 percent at 3:00 p.m. to 4:00 p.m. on that date. Finally, Bergado explained that most persons whose blood-alcohol level is between .25 and .35 percent would be “stuporous”—that is, the person would have great difficulty getting up and moving about, and be very unsteady, incoherent, and disoriented—and that most persons with a blood-alcohol level above .35 percent would be “unconscious,” that is, unable to stand erect or move without support, and would be unaware of their surroundings. Bergado added that the effects of impairment at these highest levels would be obvious to an untrained observer, but that an untrained observer might have some difficulty discerning impairment of a person whose blood-alcohol level was .15 percent or lower.
In response to questions from the prosecution, Bergado testified that if a 135-pound man had no alcohol in his system at 10:00 p.m., and then proceeded to consume 23 ounces of 80-proof alcohol until 7:00 a.m., the man would have a .30 percent blood-alcohol level by approximately 7:30 a.m., would be able to force himself to get up, walk, converse, and walk to work, and would have a blood-alcohol level of approximately .22 percent by noon. By contrast, Bergado testified that if the same person consumed the same amount of 151-proof alcohol under the same conditions, he would have a .56 percent blood-alcohol level by approximately 7:30 a.m., and for the next few hours would be unable to get up, walk, converse, or walk to work.
Dr. Steven Pittel, a psychologist specializing in the effects of drugs and alcohol, testified for the defense concerning the extent to which defendant was impaired by drugs or alcohol during the commission of the crime. Dr. Pittel reviewed defendant’s family background and noted that defendant’s parents and siblings had long histories of alcohol and drug abuse, and that defendant himself had a history of drug abuse. Pittel opined that on the night of Bishop’s birthday (September 6), defendant became very drunk after Bishop expressed anger with him for spending insufficient time with her, and that when defendant subsequently was sent home from work the following morning for being drunk, he was depressed and viewed his situation as the culmination of a series of disappointments.
Dr. Pittel, like the expert who preceded him, testified concerning hypothetical blood-alcohol levels on the morning before the killing. Pittel stated that if defendant’s blood-alcohol level was .26 percent at 8:00 a.m., defendant still would have been significantly impaired at noon (when he would have had an approximately .18 percent blood-alcohol level) and would have
*323
been on the borderline of impairment at 2:00 p.m. (when he would have had approximately .14 percent blood alcohol). Dr. Pittel also testified that if defendant’s blood-alcohol level were .49 percent at 8:00 a.m., defendant still would have been, at noon, “extraordinarily” impaired (at which time he would have had approximately .30 percent blood alcohol)—that is, defendant would have had difficulty reasoning, and possibly would have been unconscious. Dr. Pittel stated that although a person who has ingested both alcohol and cocaine may appear to be less impaired than one who has ingested one substance alone, this appearance is misleading, because cocaine balances out the coordination and slurred speech problems caused by alcohol, while the alcohol “takes off some of the edge” from the stimulant effect of the cocaine. Finally, Pittel testified that a person experiencing alcoholic “blackout” engages in “automatism”—a complex sequence of behavior with no recall of the behavior. Pittel asserted that the combination of drugs and alcohol ingested by defendant likely caused “significant impairment” of defendant’s mental abilities at the time of the charged crimes. Still, Pittel stated the circumstance that a person’s memory of an event is impaired does not signify that the person lacked control of his actions at the time of the event.
The prosecution, on rebuttal, presented evidence establishing that defendant’s place of employment on September 7 was approximately four-tenths of a mile from Bishop’s apartment, and that in order to walk that distance, one needed to cross several intersections, including one of Pacific Grove’s main thoroughfares. John Purdom, a police officer who lived near Bishop’s apartment, testified that between 3:00 p.m. and 5:00 p.m. on September 7, he and his fiancée were at home and noticed defendant walking up a hill with his bicycle on 16th Street above Lover’s Point, heading toward the Alpha Beta store. Purdom testified that his fiancée, who had been employed at that store with defendant, spoke with defendant for five to 10 minutes. Officer Purdom found that defendant seemed to act and speak in a “completely normal” fashion. Purdom’s fiancée confirmed these observations, adding that this encounter occurred between 3:00 p.m. and 3:30 p.m., or possibly 4:00 p.m. at the latest.
A Seaside police detective testified that he interviewed defendant at 1:00 p.m. on September 8, at which time defendant recounted meeting Purdom on the previous afternoon, admitted ingesting cocaine on the day prior to the killing, denied using crack or rock cocaine, stated that on the last occasion on which he had used cocaine he had “done about a gram,” and explained that although doing so did not make him feel “bad,” it did make him “a little bit antsy,” and “that’s where the liquor help[ed].” Finally, defendant told the detective that he remembered clearly everything that had happened the previous day and had no memory gaps.
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Pacific Grove Detective Uretsky testified that during the morning of September 11, he spoke with defendant about undertaking a “rape kit examination,” explaining that defendant would be transported to a local hospital for the taking of (among other things) fingernail and toenail scrapings. At that point, defendant requested that he be provided an attorney, and was returned to his cell for a few minutes while Uretsky telephoned the public defender’s office. Upon returning to defendant’s cell, Uretsky found him hunched over his sink, cleaning his hands. Uretsky testified that defendant’s fingernails, which previously had been of moderate length and dirty under the cuticles, were “notably different”—they had been bitten or cut, and the dirt had been removed.
The jury deliberated for just under two hours before returning its verdict of guilty as charged on all counts and finding true the special circumstances alleged.
At the penalty phase of the trial, the prosecution introduced evidence that defendant had suffered one prior felony conviction for escape, and three prior felony convictions for residential burglary. A deputy sheriff at the Monterey County jail testified that a “shank”-like object that could be used for stabbing was found in defendant’s jail cell where he kept his possessions.
The defense presented the following evidence in mitigation: Defendant was the seventh of eight children. His father was an electronics executive who owned his own firm. The family enjoyed skiing and sailboating, but defendant was unable to participate in those activities because he had club feet, for which he had undergone various surgeries. When he was 10 years of age, defendant’s parents separated and his mother left home, never to return. There was no discipline in defendant’s home, and his siblings began skipping school and using drugs and alcohol. Defendant’s father moved the family to Florida and remarried, but the foregoing problems continued and worsened. As defendant’s older siblings became more involved in drugs and alcohol and became truants, defendant was “lost in the shuffle.”
When defendant was 13 years of age, the family moved to New Hampshire, where defendant was placed in a local boarding school. A few years later, after one of defendant’s sisters died in a fire, defendant’s parents began to drink heavily and, according to defendant’s father, “did not care whether [defendant] lived or died.” Although the family’s children were well provided for materially, one of defendant’s sisters testified that the family’s children were “warehoused” without direction, discipline, love, or affection from their parents. Eventually, defendant began to consume drugs with his siblings. A sister testified that when high on drugs, defendant became “very scary.”
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Defendant’s former girlfriend, Susan Pothier, testified that he had lived with her family for a time, but was asked to leave when her parents discovered that he was injecting cocaine. Her relationship with defendant then ended. She described him as gentle and easygoing but suffering from low self-esteem, and she admitted she had been out of contact with him for the past six years and no longer knew him. Similar testimony was given by Rita Dolbeare, Pothier’s mother.
A defense psychologist who had prepared a report on defendant’s psychological history and background testified that defendant’s chaotic and unstable family situation affected his ability to cope with life, giving him a “low frustration tolerance”—problem exacerbated by his drug use, which apparently began at the age of 13 years.
Jerry Enomoto, the past Director of the California Department of Corrections, testified that based upon defendant’s prison records, it appeared to him that in the event defendant were to be incarcerated in a maximum security prison, he would make a satisfactory adjustment to a term of life imprisonment without the possibility of parole. On rebuttal, the prosecution introduced the testimony of a jail guard who recounted that when defendant was notified that a report would be written concerning his misconduct (involving an incident in which defendant placed cardboard over the locking mechanism of his door), defendant responded by saying “something like ‘go ahead, I don’t care, there is nothing you can do to me because I’m going away to prison for life anyway.’ ”
After slightly more than five hours of deliberations, the jury returned a verdict of death.
II. Claims and Analysis
A.
Pretrial Issues
1.
Delayed arraignment
Immediately after his police interview in the early morning of Friday, September 8, 1989, Detective Kennedy, at the request of defendant’s parole officer, placed defendant in custody on a parole hold for the use of cocaine. Also at that time, Detective Kennedy arrested defendant for the homicide of Hickman. Defendant was not arraigned until September 13, and asserts now that this delay violated his statutory and constitutional rights. In support, defendant relies upon section 825, codifying the right to arraignment “without unnecessary delay” and, in any event, within two days (now
*326
“48 hours”) after arrest
by warrant.
(See also Cal. Const., art. I, § 14 [establishing the right to felony arraignment “without unnecessary delay”];
County of Riverside v. McLaughlin
(1991) 500 U.S. 44 [ 111 S.Ct. 1661 , 114 L.Ed.2d 49 ].)
Defendant asserts in conclusory fashion that the postarrest statements that he made to a Seaside detective at 1:00 p.m. on September 8 (to the effect that he remembered the prior day and had no memory gaps) and Detective Uretsky’s testimony concerning defendant’s actions prior to the “rape kit examination” on September 11 (at which time defendant cleaned his fingernails after being told they would be examined) were produced by the delay and should have been excluded.
This claim is forfeited for failure to raise it at arraignment or at trial.
(People
v.
Turner
(1994) 8 Cal.4th 137, 176-177 [ 32 Cal.Rptr.2d 762 , 878 P.2d 521 ].)
3
In any event, the statutory claim is without merit. The two-day limitation of section 825 does not apply to this case, in which arrest was made without a warrant. (§ 849 [governing arraignment in cases of arrest without a warrant];
People v. Bonillas
(1989) 48 Cal.3d 757, 787, fn. 11 [ 257 Cal.Rptr. 895 , 771 P.2d 844 ].) Moreover, as we have observed, “the arraignment requirement of Penal Code section 825 has been interpreted as not applying when [as here] a parole hold on other matters has been placed upon the defendant.”
(Ng v. Superior Court
(1992) 4 Cal.4th 29, 38 [ 13 Cal.Rptr.2d 856 , 840 P.2d 961 ].) Finally, defendant fails to demonstrate that the delay resulted in his making the September 8 and 11 statements.
(People
v.
Turner, supra,
8 Cal.4th at p. 176 .)
Nor does defendant demonstrate that his constitutional claim has merit. “To justify exclusion of a statement, defendant must show that the delay produced admissions or that there was an essential connection between the illegal detention and admissions of guilt.”
(People v. Turner, supra,
8 Cal.4th at p. 176 .) Such a showing necessarily rests upon the facts of the particular case, but because defendant never raised this issue below, these facts were not developed, and the record that was made does not support defendant’s contention.
2.
Suppression motion
In the trial court, defendant moved pursuant to section 1538.5 to suppress various items of evidence (e.g., Kool brand cigarette butts that he discarded after speaking with officers, and personal items found in his
*327
apartment linking him to burglaries), statements (including his interview with Detective Kennedy), and observations (including those relating to defendant’s sobriety and the wetness of his clothing, etc.) collected on the night of September 7 and on the following days. Defendant asserted that his initial meetings with police officers at approximately 11:45 p.m. on September 7, on the street adjacent to the crime scene, constituted an illegal detention from the time Officer Heredia summoned Detective Kennedy to speak with defendant, and that all fruits of that detention should be suppressed. The trial court disagreed, finding that the encounter between defendant and the officers was consensual and not a detention, and that even if defendant had been detained at the point at which Detective Kennedy was summoned, Officer Heredia had reasonable cause to detain him. The court found it “abundantly clear . . . not only from the testimony of the officer but [also from the] videotape [of Detective Kennedy’s interview with defendant], that [defendant] at no point felt he was either being detained or [was] under arrest. HQ I would have to say in summary, that the police acted as I hope they would act under these kind of circumstances. They were curious and inquisitive, but not in violation of anyone’s Constitutional rights. . . . HD . . . [W]hen [defendant] went to the station, he explained to [Officer] Cox that he completely understood that it’s just a safety precaution that people have to be [hand]cuffed to be transported. HO Under the circumstances, I don’t know how the police could have been more protective of his legal rights and yet still do the job that we all expect them to do . . . .”
In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.
(People v. Williams
(1988) 45 Cal.3d 1268, 1301 [ 248 Cal.Rptr. 834 , 756 P.2d 221 ].)
“ ‘For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police “contacts” or “interactions” with individuals, ranging from the least to the most intrusive. First, there are . . . “consensual encounters” . . . , which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever—i.e., no “seizure,” however minimal—and which may properly be initiated by police officers even if they lack any “objective justification.” . . . Second, there are what are commonly termed “detentions,” seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police “if there is an articulable suspicion that a person has committed or is about to commit a crime.” . . . Third, and finally, there are those seizures of an individual which exceed the permissible limits of a
*328
detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.’ ”
(In re James D.
(1987) 43 Cal.3d 903, 911-912 [ 239 Cal.Rptr. 663 , 741 P.2d 161 ]
(James
D.).)
As the United States Supreme Court explained in
Florida v. Royer
(1983) 460 U.S. 491 [ 103 S.Ct. 1319 , 75 L.Ed.2d 229 ]: “[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching, an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.] If there is no detention—no seizure within the meaning of the Fourth Amendment— then no constitutional rights have been infringed.”
(Id.,
at pp. 497-498 [ 103 S.Ct. at p. 1324 ] (lead opn.).) Under case law established by the high court, “ ‘ “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” ’ ”
(James D., supra,
43 Cal.3d 903, 913 , and cases cited, italics omitted.)
Here, the initial interaction between defendant and Officer Heredia plainly was a consensual encounter. The apartment building had been cordoned off; police cars were parked outside and the area was being guarded by officers as defendant walked by. Heredia approached defendant, inquired whether he could assist him, and posed basic and preliminary questions to establish whether defendant might possess information concerning the crime. The conversation was nonaccusatory, routine, and brief, and would not have caused a reasonable person to believe that his or her liberty was being restrained.
We question defendant’s assertion that Heredia’s act of summoning Detective Kennedy, Kennedy’s subsequent exchange with defendant (including the request that defendant permit the police to test his jacket for blood), and the subsequent trip to the police station, substantially changed the volitional nature of the encounter. The record does not reflect that the officers engaged
*329
in conduct that would have made a reasonable person feel compelled to remain or to allow the testing of the jacket. Indeed, the record amply supports the trial court’s factual finding that defendant freely consented to remain for the purpose of speaking with Detective Kennedy, having the jacket tested, and being transported in handcuffs to the police station for further questioning.
In any event, even assuming that at some point in this sequence of events defendant was, as he asserts, constructively “arrested” prior to being formally arrested following the interview with Detective Kennedy, there would have been ample basis for such an arrest. Indeed, prior to defendant’s being transported to the police station, there was adequate probable cause to arrest him. The police knew that he (i) lived in the apartment house, (ii) smoked Kool brand cigarettes (like the ones found at the crime scene), (iii) wore wet pants (it appeared that the assailant had washed down the crime scene), (iv) appeared to have blood on his jacket, and (v) made initial statements to Officer Heredia that conflicted with the officer’s own observations. These facts and circumstances reasonably could engender in a reasonable person of ordinary care a strong suspicion that defendant had committed the crime.
(People v. Davis
(1981) 29 Cal.3d 814, 822-823 [ 176 Cal.Rptr. 521 , 633 P.2d 186 ].)
No Fourth Amendment violation having been established, the trial court properly denied the suppression motion.
3.
Trial court’s refusal to disclose police personnel files
Defendant filed a motion for discovery, seeking information regarding all “complaints” filed with the Pacific Grove Police Department concerning Detective Kennedy and Officers Heredia and Cox “relating to the fabrication of charges, distortions and exaggerations of alleged facts and/or evidence, or dishonesty, or use of improper tactics.” (See § 832.7 [making such records confidential]; Evid. Code §§ 1043, 1045.) Trial counsel clarified in a declaration that he sought evidence concerning the credibility of the officers, in order to support his theory that defendant was in fact detained by the officers. The prosecution produced the files, and the trial court inspected them in camera but did not disclose any information in them to defendant. Defendant asserts that the trial court erred.
The record reflects that the trial court found the vast majority of Officer Cox’s file, which consisted largely of letters of commendation, to be irrelevant to the issue of his credibility. The court noted that there was one charge of use of excessive force that had been filed by a person more than
*330
three months after that person had been arrested for driving under the influence, but the court found that complaint to be remote and of questionable relevance to the specific issue of Officer Cox’s credibility, as framed by the defense motion. The trial court found no discoverable material concerning Officer Heredia.
A trial court’s ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion.
(Pitchess v. Superior Court
(1974) 11 Cal.3d 531, 535 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) Consistent with customary procedure, the records have been made part of the record on appeal but have been sealed, and appellate counsel for defendant have not been permitted to view them. (See Cal. Rules of Court, rule 33.5(b)(2).) As we have done in similar situations
(People v. Samayoa
(1997) 15 Cal.4th 795, 827 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ]
(Samayoa)),
we independently have examined the materials in camera, and conclude that the trial court did not abuse its discretion in refusing to disclose the contents of either officer’s personnel files.
B.
Guilt Phase Issues
1.
Evidence admitted over defendant’s objection
a.
Admission of portions of postarrest videotaped interview
Defendant asserted that at the time of the killing, he was intoxicated to an extent that made it impossible for him to intend to commit the crimes. To rebut that claim, the prosecution was permitted to introduce excerpts of the beginning and closing portions of defendant’s videotaped postarrest interview. During those parts of the interview, defendant’s blood-alcohol level was .16 percent and .12 percent, respectively—measurements that coincided with some of the defense expert testimony concerning defendant’s estimated blood-alcohol level at the time of the killing, some 10 to 13 hours earlier. Accordingly, by presenting this evidence, the prosecution sought to demonstrate that, at a .12 to .16 percent blood-alcohol level, defendant conducted himself in a manner that did not reflect substantial impairment of his mental functions. (The jury was instructed to consider this evidence for the limited purpose of determining defendant’s mental and physical state at the time of the interview.)
Defendant asserts the court erred in admitting these portions of the videotape, because that evidence did not reflect a “ ‘reasonable representation of that which it is alleged to portray.’ ”
(People v. Carpenter
(1997) 15 Cal.4th 312, 386 [ 63 Cal.Rptr.2d 1 , 935 P.2d 708 ]
(Carpenter).)
Defendant
*331
claims that the videotape misleadingly failed to show that during part of the interview, defendant was leaning against a wall instead of supporting himself. Defendant also asserts that the videotape was irrelevant and did not assist the jury in its determination of the facts, but instead misled the jury.
Assuming for purposes of argument that these claims properly are preserved and have not been waived, the trial court did not err. The evidence was relevant and was “a reasonable representation of that which it is alleged to portray”—defendant’s mental state at certain blood-alcohol levels. As we observed in
Carpenter, supra,
15 Cal.4th 312 , in order for such a videotape to be admissible, “ ‘ “ ‘the physical conditions which existed at the time the event in question occurred need not be duplicated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken.’ ” ’ ”
(Id.,
at p. 386.) In this regard, we note that defense counsel was free to (and indeed, did) question Detective Kennedy concerning whether or not defendant leaned against a wall, and defense counsel argued to the jury that defendant was in fact leaning against a wall during part of the interview. We agree with the People that “any ‘incompleteness’ would go to the weight of the videotape on the issue of [defendant’s] sobriety and not to its admissibility.”
b.
Testimony concerning defendant’s request for counsel
As noted above, Detective Uretsky testified that on September 11, he advised defendant of the need to undergo a “rape kit examination,” and described what such an examination would entail. At some point, Detective Uretsky testified, defendant asked for counsel, and while he (Uretsky) was out of the room arranging for counsel, defendant washed his hands and trimmed his fingernails, removing matter that had been under his nails. On cross-examination, defense counsel explored with Detective Uretsky the sequence of events preceding the hand-cleaning incident, and stressed that defendant had “been in a cell ... or an interview room in the police department since around midnight on the 7th at that point,” and “for somewhere around three and a half days; is that right?” Detective Uretsky replied “yes,” and defense counsel then asked; “And it was sometime around this conversation with him that he was permitted to talk with a lawyer; is that right?” Detective Uretsky replied “yes,” after which the following occurred:
Defense counsel: “And insofar as you know, at that time on the 11th was the first time that he had spoken to a lawyer since he had been in custody . . . since around midnight on the 7th going on the 8th; is that right?”
Detective Uretsky: “Whether he had actually spoken to a lawyer or requested one?”
*332
Defense counsel: “As far as you know was that the first time that he had spoken to a lawyer?”
Detective Uretsky: “As far as I know that was the first time.”
Outside the presence of the jury, the prosecutor argued that this testimony left the jury with the impression that defendant had not previously been given the opportunity to speak with an attorney, and hence, in order to prevent the jury from speculating that defendant improperly had been denied counsel before that time, the prosecutor sought to introduce evidence that defendant first made his request for counsel immediately after being informed of the rape-kit examination. Defense counsel conceded that he “may have in fact opened the door” on this point, stating that he “had no objection that he could think of’ to the prosecutor’s proposal. The prosecutor thereafter was allowed to elicit testimony to the effect that defendant requested counsel “right after” he had been informed of the rape-kit examination.
Defendant now asserts that the prosecutor’s questioning was indeed objectionable, and error. He relies upon
Doyle v. Ohio
(1976) 426 U.S. 610, 618 [ 96 S.Ct. 2240, 2244-2245 , 49 L.Ed.2d 91 ] (it is fundamentally unfair, and a deprivation of due process, to promise an arrested person that his silence will not be used against him, and then to breach that promise by using silence to impeach his trial testimony),
Wainwright v. Greenfield
(1986) 474 U.S. 284, 295 [ 106 S.Ct. 634, 640 , 88 L.Ed.2d 623 ]
(Greenfield)
(“evidentiary use of an individual’s exercise of his constitutional rights after the State’s assurance that the invocation of those rights will not be penalized” is impermissible), and our statement in
People v. Crandell
(1988) 46 Cal.3d 833, 878 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ] (Crandell) that “comment which penalizes exercise of the right to counsel is also prohibited.” This claim is waived by defense counsel’s failure to object. Moreover, we do not perceive error on these facts.
4
In any event, even
assuming
error, in light of the overwhelming evidence of defendant’s guilt we conclude, beyond a reasonable doubt, that the verdicts could not have been affected by the prosecutor’s brief reference—made in response to defense counsel’s cross-examination—to defendant’s assertion of his right to counsel.
(Crandell
at p. 879 .)
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c.
Evidence of defendant’s prior criminal conduct
Defendant asserts that the trial court erroneously allowed introduction of evidence that credit cards belonging to Shirley B arrett-Sheridan and E.E. McFadden, and stolen from their respective automobiles six months prior to the killing, were found inside a maroon-colored Crown Royal bag in the apartment defendant shared with Bishop. On the first day of trial in this matter, and outside the jury’s presence, defendant pleaded guilty to receiving those items as stolen property. As noted above, a similar Crown Royal bag, containing Hickman’s stolen wallet, credit cards, and checkbook, was found at the beach near defendant’s apartment approximately two weeks after the killing.
Thereafter, the prosecutor sought to present evidence of the underlying circumstances of the receiving-stolen-property charges to which defendant had pleaded guilty, on the ground that those facts were relevant to establish that defendant intended in this case to commit, among other things, robbery.
5
(See Evid. Code, § 1101, subd. (b).) Defendant asserted that there was other evidence linking him with the murder, burglary, and robbery of Hickman, and that the proffered evidence should be excluded under Evidence Code section 352. The trial court disagreed with defendant’s assertions that allowing such evidence would unduly prejudice him. The court permitted the evidence to be introduced, .commenting “for the record” that “[gjiven the severity of the offenses that this jury is going to be hearing evidence on—a stabbing murder, wherein it is alleged that the victim was also strangled, sodomized, robbed and burglarized—I really have to question how shocked the jury would be to hear that he might also have some credit cards that belonged to some other people. I think in the relative hierarchy of things in this case, that new bit of information will be inconsequential.”
We find that the trial court did not abuse its discretion in making its ruling under Evidence Code section 352 and in concluding implicitly that stolen credit cards in Crown Royal bags are sufficiently distinctive “signature” characteristics to support an inference that the same person committed both the charged and the uncharged acts. (See
People
v.
Ewoldt
(1994) 7 Cal.4th 380, 403 [ 27 Cal.Rptr.2d 646 , 867 P.2d 757 ].) The evidence also was relevant to establish, among other things, that defendant intended to rob Hickman—an element of the charges that the prosecution was required to prove. Moreover, for the reasons stated by the trial court and quoted above, any federal constitutional error or error of state law clearly was harmless beyond a reasonable doubt.
*334
In a related argument, defendant asserts that the trial court erred in allowing the prosecutor to question Dr. Pittel on cross-examination concerning his knowledge of defendant’s prison record. Defendant claims that the trial court allowed such evidence under the authority of
People v. Powell
(1974) 40 Cal.App.3d 107, 155 [ 115 Cal.Rptr. 109 ]
(Powell)
(defendant’s parole status can be used to establish his motive and state of mind in killing a police officer to avoid revocation of his parole), but that
Powell
should not be extended beyond the context of one who kills a police officer in order to avoid apprehension and return to prison.
The trial court initially declined to allow the prosecutor to elicit such evidence, ruling that it was inadmissible under Evidence Code section 352. Thereafter, when the propriety of such information arose again in a different context—impeachment of testimony by Dr. Pittel that defendant had a good work ethic and a “commitment to work”—the trial court allowed such evidence to be admitted.
The prosecutor sought to cross-examine Dr. Pittel concerning the extent of his knowledge of defendant’s background, including the nearly four-and-one-half-year prison term that defendant had completed less than a year before the killing. Outside the presence of the jury, the prosecutor argued that Dr. Pittel had an incomplete picture of defendant and that his testimony left the jury with the false impression that defendant had maintained steady employment. When cross-examination resumed, and Dr. Pittel reasserted that defendant had a “relatively consistent. . . work record,” the trial court permitted the prosecutor to ask Dr. Pittel about the time period to which his testimony referred. Dr. Pittel responded that his reference was to the time before defendant moved to California in 1984, and during 1989—approxi-mately eight months prior to the killing, when defendant had worked at the Alpha Beta store. The prosecutor then asked, “[S]o he wasn’t working at all between 1985 and 1989?” Dr. Pittel responded that defendant “was incarcerated for a great deal of that period” and that he assumed that defendant worked in prison. On further questioning, Dr. Pittel testified that defendant had been in California for about one month, and had been unemployed, before being arrested on the charges that led to his incarceration in 1984.
We find it unnecessary to consider defendant’s argument that the holding of
Powell, supra,
40 Cal.App.3d 107 , should not be extended to establish motive or state of mind beyond the context of one who kills a police officer in order to avoid apprehension and return to prison. Even if the trial court had expressly ruled that the evidence could be admitted under the authority of
Powell ,
we agree with the People that the record reflects that the evidence actually was used by the prosecutor for a different and entirely proper
*335
purpose. The evidence was used not to establish motive or state of mind, but to impeach Dr. Pittel’s testimony concerning defendant’s work history (and hence to impeach Dr. Pittel’s expert opinion concerning impairment). (See Evid. Code, § 721, subd. (a) [an expert “may be fully cross-examined as to ... (2) the subject to which his or her expert testimony relates, and (3) the matter upon which his or her opinion is based and the reasons for his or her opinion”].) The trial court did not abuse its discretion in allowing the prosecutor to question Dr. Pittel in this regard.
In any event, even were we to assume error, no prejudice appears. The jury repeatedly was instructed that information relied upon by Dr. Pittel to form his opinion was “received only for the purpose of establishing what the basis for his opinion is, and not to prove that those specific facts are true.”
d.
Defendant’s statement to Officer Cox
Officer Cox testified that while defendant was being transported to the police station for questioning, defendant stated that he did not know the victim, and never had been in her apartment. Defendant asserts the introduction of this testimony was error. It was not; false statements by a defendant
6
are admissible to demonstrate consciousness of guilt.
(People v. Kimble
(1988) 44 Cal.3d 480, 495-496 [ 244 Cal.Rptr. 148 , 749 P.2d 803 ].) Nor did the trial court abuse its discretion in finding the evidence more probative than prejudicial under Evidence Code section 352. Defendant suggests that because he was on parole at the time of the killing and at the time of his statement to Officer Cox, he may have had a reason independent of any consciousness of guilt for denying that he had been in Hickman’s apartment, or that he knew her—he may have lied to Cox in an effort to avoid parole revocation on the basis of his recent drug use. Perhaps this is so, and defendant was free to argue this theory to the jury;
7
however, contrary to his view, a false denial remains relevant evidence of consciousness of guilt even if there also exists a possible alternate basis for the false denial that would not incriminate defendant as to the charged offenses.
e.
Introduction of two photographs
Defendant objected at trial to the introduction of various crime scene photographs. One photograph, People’s exhibit 12, showed blood in Hickman’s bathroom and included, in the foreground, a teddy bear in the
*336
bathtub. Other photographs to which defendant objected were close-up views of Hickman’s body at the crime scene. The trial court excluded one of those photographs as cumulative, but admitted the other, People’s exhibit 24(B). Defendant asserts that the trial court erred prejudicially in allowing the introduction of exhibits 12 and 24(B).
The trial court’s exercise of discretion in determining relevance and the admissibility of photographs will not be disturbed on appeal unless their probative value clearly is outweighed by their prejudicial effect.
(People
v.
Crittenden
(1994) 9 Cal.4th 83, 133-135 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ], and cases cited
(Crittenden).)
We have examined the exhibits and, although they are unpleasant to view, we cannot agree that the trial court abused its discretion in admitting them.
Regarding People’s exhibit 12, the trial court recognized that some jurors might be “curious” about why a teddy bear was in the victim’s bathtub, but it also doubted that the jurors’ “anxieties or passions would be inflamed by seeing” the bear next to blood spots. We agree with the People that the prosecution was entitled to “show visually the extent, the location, and the form of the blood found in Hickman’s apartment, which was relevant to malice (intent to kill) and premeditation and deliberation . . . and was not obligated to present its case in a sterilized fashion.” Even assuming, however, that this photograph should have been excluded as cumulative (as defendant observes, People’s exhibit 7(1), admitted without objection, showed the same scene—including the teddy bear—from a different and less dramatic view), we discern no prejudice to defendant, in light of the other properly admitted photographs and the overwhelming evidence of defendant’s guilt.
People’s exhibit 24(B) showed a close-up view of Hickman’s body, propped against a wall with suspenders wrapped around her neck and underwear rolled down to her knees. It also depicted wipe marks on her body, a damp paper towel on her neck, a blood-soaked cigarette, and a sponge. The trial court found that the photograph had “substantial probative value” in a number of respects—for example, the damp paper towel seemed to demonstrate that the killer had “enough presence of mind to . . . use it in a clean up process”; the “blood on the bottom of the victim’s feet mean[s] at least to a casual observer that this victim must have stood in her own blood before [she was] placed in the position that she was finally found in”; and finally, “there is the . . . position of the body as it relates to the allegation of the sodomy charge.”
Defendant asserts that each of these points was adequately demonstrated by other photos and testimony, and that People’s exhibit 24(B) was unnecessarily gruesome and cumulative. We are unconvinced; the other photographs show only a portion of what is shown in full by People’s exhibit
*337
24(B). The challenged exhibit was relevant to defendant’s criminal intent with regard to the murder and forcible sodomy charges, and it corroborated the testimony concerning the manner and location of the killing and the extent of the victim’s wounds. (See
People v. Allen
(1986) 42 Cal.3d 1222, 1256 [ 232 Cal.Rptr. 849 , 729 P.2d 115 ]
(Allen).)
Because the trial court reasonably could determine that the probative value of People’s exhibit 24(B) outweighed its prejudicial effect, the court did not abuse its discretion under Evidence Code section 352 by admitting the photograph into evidence.
2.
Evidence excluded over objection (habit evidence)
Defendant attempted to cast doubt upon the prosecution’s theory that he entered Hickman’s apartment with the felonious intent required for first degree felony murder, and for burglary, robbery and the corresponding special circumstances, by offering testimony that on occasions when Hickman cleaned her apartment, she would leave open the top half of the Dutch door to the apartment. Defendant asserts that the trial court improperly sustained the prosecutor’s objection to this proffered testimony of two defense witnesses. Defendant’s theory apparently is that, if the apartment door had been left “open,” this circumstance would suggest the absence of the requisite felonious intent, because a partially open door may have been a “sign of welcome” that constitutes “a partial relinquishment of privacy.” Defendant further speculates that the jury reasonably might have concluded that defendant “viewed [a partially open door] as an invitation to come in” and “to talk or continue a conversation.”
It may be questioned whether the proffered evidence was legally relevant. Assuming relevance, Evidence Code section 1105 would permit the admission of evidence of habit or custom “to prove conduct on a specified occasion in conformity with the habit or custom,” but as we have observed, the determination of the admissibility of such evidence rests in the sound discretion of the trial court.
(People v. McPeters
(1992) 2 Cal.4th 1148, 1178 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) Having reviewed the proffered testimony, we conclude that the trial court did not err in determining that the proffered evidence was insufficient to establish any habit or custom of Hickman in keeping her door partly open while cleaning her apartment. But in any event, because there is no evidence to support defendant’s speculation that Hickman invited the person who killed her into her apartment or that defendant entered only to talk to her, it is not reasonably probable that, had the evidence been admitted, the jury would have concluded that defendant entered the apartment without the requisite criminal intent to commit burglary and the other offenses related to the commission of the murder.
*338
3.
Claims concerning intoxication and unconsciousness
a.
Exclusion of testimony on effects of intoxication
Officer Heredia testified that when he and Officer Cox encountered defendant, he appeared to be slightly intoxicated. On cross-examination by defense counsel, Heredia was asked whether he found, as a police officer, that alcohol intoxication impairs a person’s judgment. The officer replied, “Depending on the state of intoxication.” The trial court sustained the prosecutor’s objection to that answer, on the ground that the officer’s experience in that area was related to driving under the influence and not to the “situation” at issue in this case.
In the course of Officer Cox’s subsequent testimony concerning defendant’s conduct and demeanor in the vicinity of the crime scene on the night of the killing, the witness asserted that he previously had encountered hundreds of persons who were under the influence of alcohol or cocaine. Thereafter the trial court informed defense counsel that “[i]f you intend to adduce from this witness evidence that might go to your client’s mental state ... I think you are going to have to lay substantially] more foundation.”
Defense counsel did not lay the requested additional foundation but still was able subsequently to elicit from Officer Cox the statement that “sometimes” the officer had found that persons who were under the influence possessed impaired mental abilities. Defendant now asserts the court improperly excluded these aspects of each officer’s testimony.
As noted above, the court did permit some such testimony by Officer Cox, to the effect that “sometimes” he had found the mental abilities of persons who are under the influence of alcohol or cocaine to be impaired. Moreover, defendant fails to establish that any exclusion of portions of the officers’ testimony prejudiced him at trial. Indeed, as the People observe, in view of Heredia’s testimony that defendant appeared to be only slightly intoxicated, and in light of the officer’s stricken answer that in his experience mental ability impairment was
dependent upon the state of intoxication,
it is doubtful that either officer’s testimony in this regard would have assisted defendant significantly.
b.
Limitation of expert testimony on effects of intoxication
Defendant asserts that the trial court improperly limited the testimony of his expert, Dr. Pittel, in various ways: (i) by allegedly prohibiting Pittel from
considering
defendant’s statement (made to a defense investigator) that defendant had consumed cocaine on the morning of the killing, (ii)
*339
by prohibiting Pittel from
testifying that he considered
defendant’s statement to the investigator as one of the bases for Pittel’s opinion concerning defendant’s state of impairment, and (iii) by prohibiting Pittel from testifying concerning defendant’s asserted intolerance to alcohol.
As defendant observes, the trial court at various points suggested that Dr. Pittel should not be allowed to consider defendant’s hearsay statements in forming his expert conclusion concerning defendant’s mental competence at the time of the killing. Ultimately, however, the trial court stated that Dr. Pittel could “testify that included in your opinion—among the [bases] for your opinion is an interview with the [defendant.”
Assuming that the trial court barred Dr. Pittel from considering defendant’s hearsay statement to the defense investigator, we agree with the People that no prejudice resulted, because Pittel’s opinion that defendant was in fact impaired—concerning which he was permitted to testify—was the same in any event. Pittel testified that, based upon defendant’s long history of cocaine use, his use of cocaine on the night preceding the killing, defendant’s search with his friend Richard Stanley for more cocaine and the means to inject it, the toxicology of cocaine in defendant’s body, Stanley’s testimony that defendant had cocaine remaining in his possession when Stanley last saw defendant on the night preceding the killing, and the circumstance that the commission of the crime was consistent with cocaine and alcohol intoxication, he believed that defendant was mentally impaired at the time of the killing.
As defendant asserts, the trial court did bar Pittel from testifying about defendant’s alleged hearsay statements to the defense investigator, which were inconsistent with his statements to the police. (In his statement to the police, defendant detailed his use of cocaine prior to the killing, but never mentioned using cocaine on the morning of the killing.) The trial court did not abuse its discretion in preventing Dr. Pittel from testifying as to such hearsay statements.
(Carpenter, supra,
15 Cal.4th at p. 403, and cases cited [trial court has discretion to bar expert from providing a detailed explanation that brings before the jury incompetent hearsay evidence, under the guise of stating reasons supporting his or her opinion].) We agree with the People that the trial court allowed defendant “reasonably wide latitude to present his expert evidence” and that the “few restrictions it placed on the extensive expert testimony” were proper and did not violate defendant’s constitutional right to present a defense.
We employ the same analysis and reach the same conclusion regarding defendant’s related assertion that the trial court improperly prohibited Dr.
*340
Pittel from testifying about or basing his opinion upon defendant’s alleged intolerance of alcohol. It is not clear from the record that the court forbade Dr. Pittel from considering information regarding defendant’s history with alcohol or expressing an opinion on defendant’s tolerance level based upon that information. The record suggests, instead, that the trial court was willing to permit Dr. Pittel to testify concerning defendant’s tolerance of alcohol based upon the expert’s review of information from defendant’s family and friends, as well as from defendant, concerning defendant’s drinking history, but that the court would not permit Dr. Pittel to testify concerning “specifics regarding alcohol tolerance.”
8
c.
Instruction that “no act is less criminal by reason of voluntary
intoxication”
Defendant asserts that the murder, robbery, and burglary convictions must be reversed because CALJIC No. 4.20, delivered at defense counsel’s request, “eviscerated” defendant’s voluntary intoxication defense to those charges. We disagree.
Former CALJIC No. 4.20 (5th ed. 1988) was delivered to the jury in two paragraphs as follows:
“The law provides that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such a condition.
fl[] In the crime charged in Count IV,
sodomy,
the fact that the defendant was voluntarily intoxicated is not a defense and
does not
relieve him of responsibility for the crime.” (Italics added.)
Immediately thereafter, former CALJIC No. 4.21 (5th ed. 1988) was delivered to the jury as follows: “In the crimes of
murder, robbery,
and
burglary,
of which Defendant is accused in Counts I, II, and III of the Information, a necessary element is the existence in the mind of the Defendant of a certain specific intent and/or mental state. HD
If the evidence shows that the Defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether the Defendant had such specific intent and/or mental state.
If from all the evidence you have a reasonable doubt whether the Defendant formed such specific intent or mental state, you must find that he did not have such specific intent and/or mental state.” (Italics added.)
Defendant asserts that although the second paragraph of CALJIC No. 4.20 correctly provides that voluntary intoxication is no defense to the general
*341
intent crime of sodomy, the first paragraph of that instruction erroneously told the jury that as a general matter,
“no acf
is less criminal because of voluntary intoxication, when in fact, as CALJIC No. 4.21 later informed the jury, voluntary intoxication
does
make the specific intent crimes of murder, robbery, and burglary “less criminal” if such intoxication prevents formation of the required specific intent and/or mental state. He asserts that a reasonable juror, reading these instructions as a whole, would have been confused by this assertedly contradictory information concerning whether or not evidence of voluntary intoxication may serve as a “defense” to the formation of the specific intent and/or state of mind required for murder, robbery, and burglary.
We may agree, for the purpose of argument, that in the context of this case, the first paragraph of CALJIC No. 4.20 was potentially misleading in light of the murder, robbery, and burglary charges. Indeed, as defendant has observed, at the time of trial the Use Note to CALJIC No. 4.20 cautioned that trial courts should deliver the full instruction only “in general criminal intent cases” and that it “should Not be given in cases where specific intent is required.” (Use Note to CALJIC No. 4.20 (5th ed. 1988) p. 158.) As defendant also concedes, however, his trial counsel requested the instruction, and hence any error would appear to be waived.
In any event, on the record before us, we cannot agree with defendant that the potentially misleading instruction posed a substantial risk of actually misleading the jury into believing that defendant’s voluntary intoxication evidence—essentially, the centerpiece of his defense—was irrelevant to, and could not be considered with regard to, his culpability for the offenses of murder, robbery, and burglary. As the People observe, the closing arguments of the defense and of the prosecution emphasized, implicitly and explicitly, the correct interpretation of both instructions, namely that CALJIC No. 4.20’s admonition applied only to count IV, sodomy, whereas under CALJIC No. 4.21, the jury
could
consider the effect of voluntary intoxication on defendant’s specific intent to commit the crimes charged in counts I-III— murder, robbery, and burglary. Viewing together the instructions, counsel’s legally correct arguments, and the evidence presented to the jury for its consideration, we do not believe that it is reasonably “likely the jury was ‘misled to defendant’s prejudice’ ” or that the jury would have understood CALJIC No. 4.20 to operate in the manner asserted by defendant, essentially precluding consideration of his primary defense.
{ Allen, supra,
42 Cal.3d 1222, 1280 [employing similar analysis in concluding that potentially misleading instructions concerning sentencing discretion did not constitute error].)
*342
d.
Instructions on voluntary intoxication
Defendant asserts that the trial court erred in failing to instruct on its own motion that voluntary intoxication may negate (i) premeditation and deliberation, and (ii) the mental states necessary for sodomy murder and the three special circumstance allegations.
The first aspect of this claim is foreclosed by
People
v.
Saille
(1991) 54 Cal.3d 1103, 1120 [ 2 Cal.Rptr.2d 364 , 820 P.2d 588 ]
(Saille),
in which we held that the trial court has no sua sponte duty to instruct, that voluntary intoxication may be considered in determining the existence of premeditation and deliberation. (See
People v. Clark
(1993) 5 Cal.4th 950, 1022 [ 22 Cal.Rptr.2d 689 , 857 P.2d 1099 ]
(Clark)
[applying
Saille
retroactively to a trial that occurred before the filing of the opinion in
Saille].)
Contrary to defendant’s view, application of the
Saille
rule, requiring defendants to request voluntary intoxication instructions, does not violate ex post facto principles. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) In any event, we do not believe that the instructions were misleading. As noted above, CALJIC No. 4.21 informed the jury that defendant’s intoxication should be considered in determining whether defendant possessed the “specific intent and/or mental state” required for count I, murder. In addition, the jury was instructed pursuant to CALJIC No. 3.31.5 that regarding the murder count, “there must exist a certain mental state in the mind of the perpetrator” and that “[t]he mental state required is included
in the definition of the crime
charged.” (Italics added.)
That
definition, provided to the jury through CALJIC No. 8.20, in turn advised that for the jury to find defendant guilty of first degree murder, it must find that he acted with “willful” premeditation and deliberation. The latter instruction further provided that “ ‘willful,’ as used in this instruction, means intentional” and that premeditation and deliberation “must have been formed upon pre-existing reflection and not upon a sudden heat of passion or other condition precluding the idea of deliberation.” We agree with the People that “by relating intoxication to ‘mental state,’ a reasonable jury would have understood deliberation and premeditation to be ‘mental states’ for which it should consider the evidence of intoxication.”
(People
v.
Castillo
(1997) 16 Cal.4th 1009, 1016 [ 68 Cal.Rptr.2d 648 , 945 P.2d 1197 ].)
The second aspect of this claim, concerning the trial court’s failure to instruct sua sponte that voluntary intoxication could negate the specific intent to commit sodomy (which intent was necessary to convict defendant of sodomy felony murder), and the court’s failure to instruct that voluntary intoxication could negate the mental state necessary to support the special circumstance allegations, is similar to the claim we rejected in
Clark, supra,
*343
5 Cal.4th 950 , with regard to a rape-felony-murder charge and a rape special-circumstance allegation. For the reasons set forth in
Clark, supra,
at page 1021, we conclude that when the jury instructions are viewed as a whole, it becomes clear that “the jury was instructed that
one
charge [here, count IV, sodomy] was excluded from the scope of the instructions on voluntary intoxication” and that “all other offenses”—and the special circumstance allegations—“remained within their scope.” As in
Clark,
there is no reasonable likelihood that the jury was confused or misled concerning the relevance of defendant’s intoxication evidence to both the sodomy-felony-murder count and the special circumstance allegations.
e.
Refusal of defendant’s instruction concerning unconsciousness
The trial court instructed on unconsciousness pursuant to CALJIC No. 8.47, as follows: “If you find that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter. [¶] When a person voluntarily induces his own intoxication to the point of unconsciousness, he assumes the risk that while unconscious he will commit acts inherently dangerous to human life or safety. Under such circumstances, the law implies criminal negligence.”
Defendant asserts that “in the context of [his] defense, the term ‘unconscious’ has a meaning peculiar to the law which the express terms of the instruction did not convey adequately to the jurors,” in that it failed to inform them (as he had requested the trial court also to instruct, in accordance with CALJIC No. 4.30) that “[unconsciousness does not require that a person be incapable of movement.”
We question whether the trial court had a sua sponte duty to provide a legal definition of “unconsciousness.” (Cf.
Saille, supra,
54 Cal.3d 1103, 1119-1120 .) Moreover, as the People observe, defendant has not shown that his proposed language correctly states a legal definition of “unconsciousness” as it relates to voluntary intoxication—indeed, as the People note, defendant’s requested instruction “is not a ‘definition’ of unconsciousness in the strict sense,” because it states only what unconsciousness does not necessarily entail, namely that a person be incapable of movement.
In any event, we conclude on the record before us that the jury adequately was informed through the instructions, the evidence, and the closing arguments of counsel that unconsciousness does not require that a person be incapable of movement. We further conclude that the jury was permitted to find that defendant was “unconscious” for purposes of CALJIC No. 8.47,
*344
despite his having moved about and acted as if he were conscious. As noted above, the jury was instructed that if defendant was unconscious when he killed, and acted without intent or malice aforethought, he would be guilty of involuntary manslaughter. Based upon the state of the evidence before the jury when it heard that instruction, it is not reasonably likely that the jury was misled into believing that it was precluded from finding unconsciousness merely because there was evidence that defendant moved about and engaged in various affirmative activity.
The evidence presented by defendant through Dr. Pittel stressed that “unconsciousness” or “blackout” could occur when a person’s blood-alcohol level reached .35 to .45 percent, but that this does not mean that such a person would be “flat out prone.” As Dr. Pittel explained, a person in this state “engages in what is known as automatism,” meaning that “the person goes through a sequence of behaviors, involving many hours of interaction with people, traveling, doing all sorts of things, but they have no recall afterwards.” In response to defense counsel’s question, “So a blackout doesn’t exclude the person being able to do tasks?” Dr. Pittel responded: “No. In fact, one of the characteristics of blackout is that the person is engaged in behaviors that he later then can’t recall.” Defendant cites nothing in the record to indicate that this testimony was controverted.
Contrary to defendant’s insinuations, the prosecutor did not argue or even suggest to the jury that defendant could not have been “unconscious” if the evidence showed that he had been moving about and acting as if he were conscious. The prosecutor did briefly mention that when defendant was awakened at his jobsite on the morning of the crimes, he got “right up” and that this was not the action of “somebody that is in a coma or unconscious.” This comment, however, was not directed toward defendant’s claim that he was unconscious
during the crimes,
hours later. Thereafter, in his own closing argument, defense counsel, without rejoinder, highlighted his understanding of the involuntary manslaughter and unconsciousness instructions: “If you look at the [involuntary manslaughter] instruction, if you read the instruction when you get back there to the deliberations you will see that the logical inference from that instruction is that a person who is unconscious due to voluntary intoxication can be up, can do acts, can do things that look normal and there may be no perception amongst other people that see that person that tells them that that person is unconscious due to intoxication.”
On this record, the jury was adequately informed that unconsciousness does not require that a person be incapable of movement.
*345
f.
Failure to instruct that voluntary intoxication short of unconsciousness may reduce homicide to involuntary manslaughter
As noted above, the trial court properly instructed the jury pursuant to CALJIC No. 8.47 (quoted
ante)
that if defendant was unconscious due to voluntary intoxication, he would be guilty of involuntary manslaughter. Defendant asserts that the trial court erred by failing
as well
to instruct the jury pursuant to CALJIC No. 8.45
9
that voluntary intoxication falling short of unconsciousness also could negate intent to kill and/or malice aforethought, and hence support a verdict of involuntary manslaughter.
10
Any error was invited. Defense counsel, after being apprised that the trial court would instruct the jury pursuant to CALJIC No. 8.47 either as written or in a modified form, expressly withdrew his request for CALJIC No. 8.45. Counsel stated in doing so that “[qjuite frankly, ... I think 8.47, whether you give the CALJIC form or whether you give the modification that I’ve requested,
more aptly addresses the issue in this case than 8.45 does.”
(Italics added.) Defendant asserts that defense counsel’s withdrawal of the request was based upon defense counsel’s misapprehension that CALJIC No. 8.45 would have been legally inapplicable in this case. Based upon our reading of the record, we disagree. It is true that at one point defense counsel agreed with the prosecutor’s assertion that “you don’t get to even instructing on [in]voluntary manslaughter [based upon] voluntary intoxication unless there is some evidence that the jury can conclude the defendant was unconscious.” Reading the record as a whole, however, it appears that this was simply a shorthand way of saying that the defense theory of the case was based upon unconsciousness, and that defense counsel was not seeking instructions on the effect of voluntary intoxication that would produce a result in defendant short of unconsciousness. Indeed, the record supports the conclusion that defense counsel, after extensive discussion and consideration, reasonably came to the conclusion that on the facts of the case, CALJIC No. 8.47, with its emphasis upon unconsciousness, more aptly fit the defense theory of the case.
We find unpersuasive defendant’s assertion that the trial court had an obligation to second-guess defense counsel’s assessment, and to instruct pursuant to CALJIC No. 8.45 despite defense counsel’s considered decision
*346
to withdraw his request for that instruction, or otherwise to amplify or modify CALJIC No. 8.47 or any other instruction in order to pinpoint an alternative theory that voluntary intoxication short of unconsciousness negated intent to kill and/or malice aforethought. (Cf.
Saille, supra,
54 Cal.3d 1103, 1118 .)
4.
Instructions on circumstantial evidence and consciousness of guilt
a.
Instruction pursuant to CALJIC Nos. 2.01 and 8.83
Defendant asserts that the trial court erred by instructing pursuant to CALJIC No. 2.01, which addressed the sufficiency of circumstantial evidence generally, and CALJIC No. 8.83, which addressed the sufficiency of circumstantial evidence in the context of the special circumstance allegations. These instructions in part each directed that every “fact which is essential to complete a set of circumstances necessary to establish” defendant’s guilt or the truth of a special circumstance allegation “must be proved beyond a reasonable doubt. In other words, before an inference essential to establish [guilt or a special circumstance] may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt.” (CALJIC Nos. 2.01 and 8.83.) The instructions continued by specifying that if circumstantial evidence is susceptible of “two reasonable interpretations, one of which points” to guilt and the other to innocence, or one of which points to the truth of a special circumstance allegation and the other to the defendant’s innocence relating to the allegation, the jury “must adopt that interpretation which points to” the defendant’s innocence concerning the special circumstance, and reject the interpretation that points to guilt or to the truth of the special circumstance. (CALJIC Nos. 2.01 and 8.83) Finally, the instructions provided:
“If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the
unreasonable.” (CALJIC Nos. 201. and 8.83, italics added.)
Defendant asserts that the italicized language allowed a finding of guilt (or of the truth of a special circumstance allegation) based upon a lesser degree of proof than beyond a reasonable doubt, and that the instructions operated as impermissible mandatory rebuttable presumptions. As defendant concedes, we repeatedly have rejected similar and substantially identical claims (e.g.,
People
v.
Millwee
(1998) 18 Cal.4th 96, 160 [ 74 Cal.Rptr.2d 418 , 954 P.2d 990 ]), and we see no reason to accept defendant’s invitation to reconsider those decisions here. As we observed in
Crittenden, supra, 9
Cal.4th 83, 144, “[w]hen the questioned phrase is read in context, not only
*347
with the remaining language within each instruction but also together with related instructions, including the reasonable doubt instruction, it is clear that the jury was required only to reject unreasonable interpretations of the evidence and to accept a reasonable interpretation that was consistent with the evidence.”
b.
Failure to instruct pursuant to CALJIC Nos. 2.02 and 8.83.1
As noted, the trial court gave the jury, at defendant’s request, two instructions concerning the sufficiency of circumstantial evidence: CALJIC No. 2.01 (addressing sufficiency of circumstantial evidence, generally), and CALJIC No. 8.83 (addressing sufficiency of circumstantial evidence in the context of special circumstance allegations, generally). The trial court denied defendant’s request to give two additional instructions, CALJIC Nos. 2.02, and 8.83.1, which would have explained to the jury how circumstantial evidence related to proof of specific intent or mental state.
As defendant observes, we have held that there is no need to give CALJIC No. 2.02 when the trial court gives a more inclusive instruction based upon CALJIC No. 2.01, unless the only element of the offense that rests substantially or entirely upon circumstantial evidence is that of specific intent or mental state.
(People
v.
Bloyd
(1987) 43 Cal.3d 333, 351-352 [ 233 Cal.Rptr. 368 , 729 P.2d 802 ].) Because mental state or specific intent was not the only element of the case resting upon circumstantial evidence, the trial court did not commit error by providing only the more inclusive instructions.
(People v. Marshall
(1996) 13 Cal.4th 799, 849 [ 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ];
People
v.
Rodrigues
(1994) 8 Cal.4th 1060, 1141-1142 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ]
(Rodrigues); People v. Mitchell
(1994) 30 Cal.App.4th 783, 811 [ 36 Cal.Rptr.2d 150 ].)
Defendant urges us to reconsider these holdings and conclude that the trial court’s refusal to instruct the jury as requested was prejudicial error in this case. We decline to do so.
11
*348
c.
Instruction on consciousness of guilt
The trial court instructed the jury, at the prosecution’s request, in the language of CALJIC Nos. 2.03 and 2.06, telling the jury that false statements or attempts to destroy evidence may indicate consciousness of guilt, but that such conduct is insufficient by itself to prove guilt. Defendant asserts that these instructions were impermissibly argumentative and improperly permitted the jury to draw irrational inferences.
As defendant observes, we repeatedly have rejected these challenges to the instructions in question. (E.g.,
People
v.
Jackson
(1996) 13 Cal.4th 1164, 1222-1224 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ]
(Jackson),
and cases cited.) We decline his invitation to reconsider these holdings.
5.
Claims concerning the burglary charge
a.
Adequacy of the burglary instructions—rape as a target offense
The jury was instructed that it could find defendant guilty of burglary if it found that he entered the victim’s apartment with the specific intent to commit (i) theft, or (ii) sodomy, or (iii) rape. The crucial question with regard to burglary was,
at the moment defendant entered the apartment,
did he have the
intent
to commit any of those three crimes?
To help the jury answer that question, the trial court instructed on the elements, including the required mental states, for theft and sodomy. But defendant was not charged with rape, and the court did not instruct, at any time, on the legal definition (including the required mental state) of that offense. The jury returned a general verdict, finding defendant guilty of burglary without specifying the predicate crime or crimes that it found him to have intended upon entering the victim’s apartment.
Defendant asserts that the trial court erred in failing to instruct the jury on its own motion regarding the offense of rape. The People assert there was no such duty to instruct. As explained below, we agree with defendant.
In
People
v.
Failla
(1966) 64 Cal.2d 560 [ 51 Cal.Rptr. 103 , 414 P.2d 39 ]
(Failla),
we held: “[W]here the evidence permits an inference that the defendant at the time of entry intended to commit one or more felonies and
*349
also an inference that his intent was merely to commit one or more misdemeanors or acts not punishable as crimes, the court must define ‘felony’ and must instruct the jury which acts, among those which the jury could infer the defendant intended to commit, amount to felonies. Failure to do so is error, for it allows the triers of fact to indulge in unguided speculation as to what kinds of criminal conduct are serious enough to warrant punishment as felonies and incorporation into the burglary statute.”
(Id.,
at p. 564.)
The duty to define such so-called target offenses and instruct on their elements has become well established. (E.g.,
People
v.
Williams
(1975) 13 Cal.3d 559, 563 [ 119 Cal.Rptr. 210 , 531 P.2d 778 ];
People
v.
May
(1989) 213 Cal.App.3d 118, 129 [ 261 Cal.Rptr. 502 ]
(May); People v. Smith
(1978) 78 Cal.App.3d 698, 708-711 [ 144 Cal.Rptr. 330 ].) Indeed, at the time of trial, the Use Note to CALJIC No. 14.50—then the standard instruction for burglary—admonished: “If the defendant is charged with entering to commit a felony other than theft,” as was the present defendant, “the felony must be named in the instruction and instructions defining such crime must be given.” (Use Note to CALJIC No. 14.50 (5th ed. 1988) p. 170.) We recently reaffirmed this understanding of
Failla
in a related context: “In
Failla , . . .
we held that when a defendant is charged with burglary, the trial court,
on its own initiative,
must give instructions to the jury identifying and defining the target offense(s) that the defendant allegedly intended to commit upon entry into the building.”
(People v. Prettyman
(1996) 14 Cal.4th 248, 268 [ 58 Cal.Rptr.2d 827 , 926 P.2d 1013 ], italics in original.)
Here, the question of defendant’s intent when he entered the apartment is unclear. There were no pre- or postoffense declarations of intent, and there was no evidence at the scene to suggest that a completed rape ever occurred. And yet the condition of the victim’s body and the partial removal of her clothing would have suggested to a reasonable juror that some kind of sexual intent was in defendant’s mind when he entered the apartment. As defendant observes, however, “sexual intent”—even if it consisted of an intent to commit some kind of sexual assault or some other “undifferentiated sexual misbehavior”
( Failla, supra,
64 Cal.2d at pp. 565-566)—is not the same thing as intent to commit rape.
The People assert that there was no error because “although rape has a legal definition, it is commonly understood to mean sexual intercourse against the will of the victim.” The People cite no empirical evidence or authority for the proposition that reasonable lay jurors are aware of the correct legal definition of rape and, as defendant observes, that assertion is contrary to
May, supra,
213 Cal.App.3d 118, 129 , and
People
v.
Rivera
(1984) 157 Cal.App.3d 736, 741 [ 203 Cal.Rptr. 842 ], both of which held that
*350
a definition of rape is required in the analogous circumstance of a prosecution for assault with intent to commit rape. The People’s assertion also might be made with respect to other offenses, such as oral copulation—one of the target crimes at issue in
Failla ,
and for which there is a duty to define and instruct on the elements of the offense. We reject the People’s attempted distinction and conclude that the court erred by failing to instruct, on its own motion, on the elements of rape.
Defendant asserts the error permitted the jury to “indulge in unguided speculation”
(Failla, supra,
64 Cal.2d at p. 564 ) concerning his intent at the time of the entry into the apartment and thereby violated various of his constitutional rights, including his rights to trial by jury and due process of law. He argues that the burglary conviction cannot be upheld on the theory that it was predicated on intent to commit sodomy or theft, because it cannot be known whether the jury’s general burglary verdict was premised upon those findings or instead upon a finding of intent at the time of entry to commit rape. Moreover, defendant observes, merely because the jury specifically convicted defendant on the sodomy and robbery counts, it did not necessarily find that defendant had the intent to commit those crimes
at the time he entered the apartment.
The People assert that this error did not withdraw an element from the jury’s determination, because the jury was instructed that it needed to find that defendant had the intent to rape (or commit sodomy or theft) at the time of entry. At most, the People assert, the error left the jury with incomplete and ambiguous directions.
Both parties appear to assume that in determining whether to affirm or reverse the burglary count, we should be guided by
People v. Guiton
(1993) 4 Cal.4th 1116 [ 17 Cal.Rptr.2d 365 , 847 P.2d 45 ]
(Guiton),
in which we concluded: “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in
[People
v.
Green
(1980) 27 Cal.3d 1 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ]
(Green)],
the
Green
rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground.”
(Guiton, supra,
4 Cal.4th at p. 1129.)
The People, relying upon
Guiton ,
assert that this case falls within the first category described in that case, and that absent an affirmative indication in the record that the burglary conviction actually rested upon a factually
*351
inadequate ground, reversal is not required, because two valid grounds for the burglary conviction remain. Defendant, also relying upon
Guiton ,
asserts that this case falls within the second category described in that case. Defendant stresses that he does not allege that the rape-based theory of burglary lacks evidentiary support, but instead that instructional error in failing to define the uncharged crime of rape rendered that theory of burglary legally erroneous. Under these circumstances, defendant asserts,
Guitón
teaches that the conviction must be reversed unless the People can show that the jury relied upon a legally correct theory in reaching the burglary verdict.
The situation that we face here—legally incomplete and ambiguous instructions relating to an element of the crime of burglary—does not fall squarely within either of the two categories described in
Guiton .
We do not have before us, as in the first category described above and as in the situation presented in
Guiton
itself, legally correct instructions on a theory for which there was an inadequacy of proof. Nor is the present situation identical to the kind of legal error described in the second category above, and as in the
Green
case—a legally
erroneous
instruction.
Guiton ,
therefore, is not entirely apposite.
It is important to remember that the question before us is not whether the jury properly found defendant committed, or intended,
rape,
but whether it properly found him guilty of
burglary,
despite the trial court’s error in failing to instruct on rape. In assessing the prejudicial impact of this instructional error, two points are critical. First, the intent to commit
any
felony (or theft) suffices for burglary. (§ 459.) Second, the jury need not unanimously decide, or even be certain, which felony defendant intended as long as it finds beyond a reasonable doubt that he intended some felony.
(People v. Russo
(2001) 25 Cal.4th 1124, 1132-1133 [ 108 Cal.Rptr.2d 436 , 25 P.3d 641 ];
Failla, supra,
64 Cal.2d 560, 567-569 .)
As explained below, under most of the possible factual scenarios that defendant posits whereby the jury might have erroneously found he intended rape, he still would be guilty of burglary; additionally, the one possible factual scenario under which the jury might have erroneously found that he intended rape is simply untenable.
The jury may have been uncertain as to exactly what sexual act would constitute rape. For example, as defendant suggests, the jury might have believed that defendant intended penetration by an object and might erroneously have believed that such intent would constitute an intent to commit rape. Or, if the jury believed that defendant entered the apartment with the intent to sexually assault the victim by, for example, groping or fondling, a
*352
properly instructed jury would have been informed that entry into the victim’s residence with such intent did not constitute entry with intent to rape. But any juror so believing (with a possible exception discussed below) still would properly find defendant guilty of
burglary.
Sexual assault of any type that a jury might erroneously consider to be rape would still be a
felony.
(E.g., §§ 243.4 [sexual battery], 289 [forcible sexual penetration].)
Any
felony suffices for burglary.
Stated differently, although the court should have instructed on the elements of rape, it also could have also instructed that the intent to commit any of these other sexual offenses would suffice for burglary. Sexual penetration under section 289 is the closest other offense in point. Defendant argues that what he did and what he intended, although clearly sexual, was ambiguous. Perhaps, upon entering the apartment, he intended penetration of the anus by an instrument, rather than sexual intercourse. The problem with this argument is that it might mean that defendant did not intend to commit rape, but he still would have intended to commit a felony (§ 289), which is all that is necessary for burglary. Defendant was convicted of burglary, not rape, and for the reasons discussed above, we conclude, beyond a reasonable doubt, that the absence of proper instruction on rape did not prejudice his burglary conviction.
(Chapman
v.
California
(1967) 386 U.S. 18, 24 [ 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 , 24 A.L.R.3d 1065 ]
(Chapman).)
As suggested, under only one possible and highly problematic scenario might the absence of an instruction defining rape have prejudiced defendant’s burglary conviction. If defendant intended consensual sex when he entered the apartment and
only thereafter
acquired the intent to employ force or fear, he did not commit burglary. Aside from the extreme unlikelihood that the jury so believed from all the circumstances, in this respect we can agree with the People that rape is commonly understood to mean sexual intercourse (however defined) “against the will of the victim.” Even if the jury was unaware of exactly what is meant by sexual intercourse, we can be confident that no jury would believe that
consensual
sexual intercourse was rape. Accordingly, if the jury believed defendant entered the apartment merely with the intent to engage in
consensual
sexual activity, no reasonable jury would believe that he entered with the intent to commit rape or any other sexual felony.
In short, defendant posits scenarios in which the jury erroneously may have believed that he entered the apartment with the intent to commit rape. But in each scenario, defendant would have entered with the intent to commit a felony, even if not specifically rape. On these facts, any misconception as to the exact elements of rape could not have resulted in an
*353
erroneous conviction of burglary, which is what is involved here. Because we conclude beyond a reasonable doubt that the instructional error did not produce an improper burglary verdict, we must affirm the burglary conviction and uphold the related special circumstance.
( Chapman, supra,
386 U.S. 18, 24 [ 87 S.Ct. 824, 828 ].)
b.
Asserted “directed
verdict’
on
“structure”
element of burglary
Defendant asserts the trial court “directed a verdict” on the “structure” element of burglary.
The trial court instructed the jury pursuant to former CALJIC No. 14.50, that in order to find a burglary it must be proved that defendant-
“entered a structure of the type shown by the evidence in this
case” (italics added) with the required intent. Defendant observes that at the time of the crimes charged, section 459 provided that anyone who entered a “house, room, apartment, ... [or other designated fixed structure or part thereof] or other building” or other designated place, with the required intent, is guilty of burglary. Defendant asserts that the italicized language had the effect of advising the jury that whatever structure was shown by the evidence would suffice for burglary, and that by so instructing, the trial court directed the verdict on the structure element.
We considered and rejected the identical argument in
People v. DeSantis
(1992) 2 Cal.4th 1198 [ 9 Cal.Rptr.2d 628 , 831 P.2d 1210 ], in which we reasoned: “The instruction required the jury to find that defendant entered a structure. It also required the jury to find that defendant entered a structure of the type shown by the evidence. The only thing that the instruction did not require of the jury was a finding that the ‘structure of a type shown by the evidence’ was a building. But only one type of structure was shown by the evidence: the Davieses’ house. By definition the house was a building. No rational trier of fact could have found that the structure shown by the evidence—the Davieses’ house—was not a building. The law does not require the jury to decide the impossible. There was no error.”
(Id.,
at p. 1225.) We also observed in
DeSantis
that “had any federal constitutional error occurred, it would have been harmless” beyond a reasonable doubt.
(Id.,
at p. 1225, fn. 9.)
It was uncontested at trial that Hickman’s apartment was a structure, and it cannot be doubted that the apartment was in fact a structure. In view of the evidence in the record, any error was harmless beyond a reasonable doubt.
(Neder v. United States
(1999) 527 U.S. 1, 7-20 [ 119 S.Ct. 1827, 1837-1839 , 144 L.Ed.2d 35 ] [instruction that omits element of offense is subject to harmless error analysis under
Chapman, supra,
386 U.S. 18 ].)
*354
c.
“Inhabited
dwelling”
element of burglary
i.
Sufficiency of evidence
Section 460 provides: “Every burglary of an inhabited dwelling house ... is burglary of the first degree.” Section 459 provides, “ ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.” Section 212.5 provides that “every robbery which is perpetrated in an inhabited dwelling house ... is robbery of the first degree.”
Defendant asserts there is insufficient evidence that Hickman’s apartment was an “inhabited dwelling” within the meaning of these sections, and accordingly, he claims, the first degree burglary and robbery convictions should be reversed. He argues that because the victim had moved many of her possessions and most of her clothing to her boyfriend’s home and had slept there during the prior two weeks, and was cleaning her own apartment in preparation for vacating it, she had “already moved to her boyfriend’s house” and her apartment was no longer an inhabited dwelling house.
As the People observe, although most of Hickman’s clothing had been moved to her boyfriend’s house, none of her furnishings had been moved. Accordingly, the evidence reflects only that she had begun to move to her boyfriend’s house, and was still in the process of doing so; it does not reflect that she “already” had moved, as defendant asserts.
Defendant cites decisions construing the term “inhabited dwelling” in the context of premises that were in the process of being vacated. In
People
v.
Jackson
(1992) 6 Cal.App.4th 1185 [ 8 Cal.Rptr.2d 239 ], the court upheld a conviction for first degree robbery because “[i]t [was] clear that [the tenant] was still presently using the house, and in particular his bedroom, at the time of the robbery”
(id.,
at p. 1189) and the tenant had not yet completed the move from the house
(id.,
at p. 1187). Other cases reinforce the proposition that when a tenant moves out of an apartment without intending to return and continue living there, the premises become “uninhabited” for purposes of the relevant statutes, even if the tenant leaves some property behind with the intent of retrieving it later. (E.g.,
People
v.
Cardona
(1983) 142 Cal.App.3d 481, 483-484 [ 191 Cal.Rptr. 109 ] [continued use of house by storing family belongings, while having departed with no intent ever to spend another night in the house, insufficient to make the house “inhabited” for purposes of first degree burglary].)
The use of a house as sleeping quarters is not determinative, but instead is merely a circumstance used to determine whether a house is inhabited. As
*355
observed in
People
v.
Hernandez
(1992) 9 Cal.App.4th 438, 441 [ 11 Cal.Rptr.2d 739 ], “statutory amendments have eliminated the requirement that a burglary take place at night for it to be first degree burglary. [Citation.] Thus, the Legislature has rejected the view, expressed in prior case law, that the use of a house as sleeping quarters is critical.” The court in
Hernandez
upheld a conviction for first degree burglary even though the victims of the burglary had just moved into the apartment, had not unpacked their belongings, and had not yet slept there.
(Id.,
at pp. 440-442.)
As observed in
People
v.
DeRouen
(1995) 38 Cal.App.4th 86 [ 44 Cal.Rptr.2d 842 ], disapproved on other grounds in
People v. Allen
(1999) 21 Cal.4th 846 [ 89 Cal.Rptr.2d 279 , 984 P.2d 486 ], “ ‘ “Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.” ’ [Citation.] ‘In addition, a burglary of an inhabited dwelling involves an invasion of perhaps the most secret zone of privacy, the place where trinkets, mementos, heirlooms, and the other stuff of personal history are kept. Society therefore has an important interest in seeing to it that burglars stay out of inhabited dwelling houses.’ ”
( DeRouen, supra,
38 Cal.App.4th 86, 91 .) Furthermore, “[t]he ‘ “ ‘inhabited-uninhabited’ dichotomy turns not on the immediate presence or absence of some person but rather on the character of the use of the building.” ’ [Citation.] ‘[T]he proper question is whether the nature of a structure’s composition is such that a reasonable person would expect some protection from unauthorized intrusion.’ [Citation.]”
(Id.,
at pp. 91-92, italics omitted.)
In the case presently before us, the evidence does not establish that the victim intended the day of her death—September 7,1989—to be the last day she would inhabit her apartment, and that she would not sleep there again. Apparently, her furniture (including, we presume, bedroom furniture) remained in the apartment, and the utilities remained on. We agree with the People that the victim’s “continual presence during the daytime, in a house where she kept her personal belongings increased the risk of personal injury and the danger of a violent confrontation during a burglary.” The evidence was sufficient to support the jury’s finding that defendant burglarized (and committed robbery in) an inhabited dwelling.
ii.
Adequacy of CAUIC No. 14.52
To define “inhabited dwelling house,” the trial court instructed the jury pursuant to CALJIC No. 14.52, as follows: “An inhabited dwelling
*356
house is a structure which is occupied and
customarily
used as a dwelling. It is inhabited although the occupants are temporarily absent.” (Italics added.) Defendant observes that section 459 defines an inhabited dwelling house as being one that is “currently” (not “customarily”) used for dwelling purposes, “whether occupied or not,” and asserts that the instruction was “clearly erroneous” because the words “customarily” and “currently” do not have the same meaning.
As the People observe, although the phrase “customarily used as a dwelling” focuses on the general nature of the structure, the instruction also informed the jury that the structure must be “occupied” and hence that the structure currently must be used as a dwelling (even though its occupants are temporarily absent). We also agree with the People that “[a]s long as the instruction given accurately conveyed the law, the apparent inconsistency between statutory language and the instructional language is of no consequence.” (See
People v. Benson
(1990) 52 Cal.3d 754, 801 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ] [“What is crucial ... is the meaning that the instructions
communicated to the jury”].)
We find that there is no reasonable likelihood that the jury misunderstood anything of significance by virtue of being instructed as it was.
12
6.
Claims related to the robbery charge
a.
Sufficiency of evidence supporting robbery and related charges
Defendant challenges the sufficiency of the evidence supporting his conviction for robbery (§ 211) and first degree murder based upon a robbery-felony-murder theory. He also challenges the sufficiency of the evidence supporting the true finding concerning the robbery-murder special circumstance.
Defendant asserts that the robbery charge must fail if the evidence does not support a finding that defendant conceived his intent to steal either before committing an act of force against Hickman, or during the commission of that act. Likewise, defendant asserts, a robbery-felony-murder theory of first degree murder was not satisfied if there was no robbery, or if the intent to rob arose after infliction of the fatal wound.
(People v. Morris
*357
(1988) 46 Cal.3d 1, 23, fn. 9 [ 249 Cal.Rptr. 119 , 756 P.2d 843 ], overruled on another ground in
In re Sassounian
(1995) 9 Cal.4th 535, 543 [ 37 Cal.Rptr.2d 446 , 887 P.2d 527 ].) And similarly, defendant urges, the robbery-murder special circumstance (§ 190.2, subd. (a)(17)) was not satisfied if the theft of the victim’s property was merely incidental to the murder.
(People
v.
Turner
(1990) 50 Cal.3d 668, 688 [ 268 Cal.Rptr. 706 , 789 P.2d 887 ]
(Turner).)
In all three respects, defendant argues that there is insufficient evidence that he harbored larcenous intent before or during his use of force or fear against the victim, and that the more reasonable inference from the evidence is that he formed the intent to take the items after killing her.
In addressing defendant’s claim of insufficiency, we must “review the entire record, and drawing all reasonable inferences in favor of [the judgment], . . . determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
(People
v.
Raley
(1992) 2 Cal.4th 870, 889 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ]
(Raley).)
We have stated that “when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.”
(Turner, supra,
50 Cal.3d 668, 688 .) And, significantly, we have observed that “[i]f a person commits a murder,
and after doing so takes the victim’s wallet,
the jury may reasonably infer that the murder was committed for the purpose of obtaining the wallet, because murders are commonly committed to obtain money.”
(People
v.
Marshall
(1997) 15 Cal.4th 1, 35 [ 61 Cal.Rptr.2d 84 , 931 P.2d 262 ], italics added
(Marshall).)
Here, of course, there is evidence that shortly after the killing defendant cashed a check made out to Hickman and placed her wallet inside a Crown Royal bag, which he hid under a bush at the beach near his apartment. It has been stated that “ ‘when a person is shown to be in possession of recently stolen property slight corroborative evidence of other inculpatory circumstances which tend to show guilt supports the conviction of robbery.’ ”
(People
v.
Mulqueen
(1970) 9 Cal.App.3d 532, 542 [ 88 Cal.Rptr. 235 ].) This evidence suggested that defendant entered the apartment with the intent to rob, and thereafter stored the loot in a Crown Royal bag (the same type of bag found in defendant’s closet containing personal property of other theft victims).
Defendant notes that he took only Hickman’s wallet and left behind other items of substantial value, such as her television and videotape recorder, and he argues that this circumstance, coupled with the slim evidence concerning
when
defendant formed an intent to steal, most reasonably supports a conclusion that he formed the intent to steal
after
the killing. From this, defendant reasons that no reasonable juror could have determined beyond a
*358
reasonable doubt that he formed the requisite intent to steal prior to or during the application of force or fear against the victim, or that the force used was employed for the purpose of perpetrating the theft. We conclude, based upon the language quoted above, that the evidence supporting the robbery and related charges is sufficient, and that, as the People assert, on this record a jury reasonably could infer that defendant intended from the outset to steal the victim’s possessions by force, or at least possessed that intent as he was engaged in inflicting force upon her.
Defendant also asserts that there is insubstantial evidence that he took Hickman’s wallet and check
from her person.
It is sufficient for robbery, however, if the property is taken from the victim’s “immediate presence” (§ 211), and hence, contrary to defendant’s assertion, his taking would be no less robbery merely because the victim may not have held or carried her wallet while she was cleaning her apartment.
(People
v.
Hayes
(1990) 52 Cal.3d 577, 626-627, 630-631 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ]
(Hayes)
[“immediate presence” means at least an area within which the victim reasonably could be expected to exercise physical control over the property taken; this test may be met even if the property was located in another room of the house].)
b.
Instruction concerning the intent element of robbery
Defendant asserts that the instructions given to the jury concerning robbery failed to advise the jury of the requirement that the intent to steal must arise before or during the commission of the act of force, and that the trial court had a sua sponte duty to so instruct. We find that the instructions given were adequate.
The jury was instructed in the language of CALJIC Nos. 9.40 (defining robbery)
13
and 8.21 (defining felony murder in the commission of robbery,
*359
among other crimes).
14
We have held that previous versions of those two instructions (former CALJIC No. 9.10 (4th ed. 1979), now CALJIC No. 9.40; and former CALJIC No. 8.21 (4th ed. 1979)), “adequately cover the issue of the time of the formation of the intent to steal.”
(People
v.
Hendricks
(1988) 44 Cal.3d 635, 643 [ 244 Cal.Rptr. 181 , 749 P.2d 836 ] (Hendricks); see also
Hayes, supra,
52 Cal.3d 577, 625-626, 629 .) Defendant concedes that CALJIC No. 9.40 is substantively identical to former CALJIC No. 9.10, relied upon in our prior cases, but, he asserts, the version of CALJIC No. 8.21 given in the present case differed “in a crucial respect” from the version given in
Hayes
and
Hendricks ,
and to the extent
Hayes
and
Hendricks
imply that CALJIC No. 9.40 is sufficient in itself, their analysis is erroneous.
The version of CALJIC No. 8.21 given in
Hayes
stated that a killing is murder in the first degree if it occurred
“as a result
o/the commission of the crime[] of robbery . . . .” (CALJIC No. 8.21, italics added, quoted in
Hayes, supra,
52 Cal.3d 577, 626, fn. 9 .) We stated in
Hayes
that “[a] reasonable juror would necessarily understand from this instruction that defendant was guilty of robbery-murder only if the intent to steal was formed before the fatal blow was struck.” (52 Cal.3d at p. 629.) The version of the instruction given here omitted the quoted “as a result of’ language, and instead provided that a killing is murder in the first degree if it occurred “during the commission or attempted commission of robbery . . . .” Defendant asserts that by virtue of this different language, we cannot be confident, as we were in
Hayes ,
that a reasonable juror necessarily would understand from this instruction that defendant was guilty of robbery murder only if the intent to steal was formed before the fatal blow was struck. Instead, defendant asserts, such a juror might have been left with the impression that defendant could be guilty of robbery murder if he formed the intent to steal
after
he struck the fatal blow. Defendant theorizes that a reasonable juror might have found that “the robbery began with the application of force which resulted in the homicide and continued through the time that [defendant] formed the intent to steal and acted on that intent by taking Ms. Hickman’s property.” In such a situation, defendant reasons, the juror would find that the killing was committed “during the commission of the robbery,” even though the juror also had found that “intent to steal did not arise until
*360
after the killing had occurred.” We are not persuaded by defendant’s speculation.
As both parties acknowledge, the jury also was instructed pursuant to CALJIC No. 3.31, regarding the concurrence of act and specific intent. That instruction required the jury to find “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”
15
Reading CALJIC Nos. 8.21 and 9.40 together with No. 3.31, we believe that a reasonable juror would understand that defendant had to possess the specific intent to steal prior to or during his application of the force required for the commission of the offense of robbery.
Moreover, the jury also was instructed pursuant to CALJIC No. 8.81.17 that (1) the robbery-murder special-circumstance allegation could not be found true unless “the murder was committed while the defendant was engaged in the commission of a robbery ... or the murder was committed during the immediate flight after the commission of a robbery,” and that (2) “[t]o find the special circumstance[] referred to in these instructions as murder in the commission of robbery ... is true, it must be proved . . . [that] the murder was committed in order to carry out or advance the commission of the crime[] of robbery ... or to facilitate the escape therefrom or to avoid detection. fl[| In other words, the special circumstance referred to in these i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2581420. Public record. Not legal advice.