People v. Coffman

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Opinion

WERDEGAR, J.

A San Bernardino County jury convicted Cynthia Lynn Coffman and James Gregory Marlow of one count of each of the following offenses: murder (Pen. Code, § 187),

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kidnapping (§ 207, subd. (a)), kidnapping for robbery (§ 209, subd. (b)), robbery (§ 211), residential burglary (§ 459) and forcible sodomy (§ 286, subd. (c)). The same jury found true as to both defendants special circumstance allegations that the murder was committed in the course of, or immediate flight from, robbery, kidnapping, sodomy and burglary within the meaning of section 190.2, subdivision (a)(17)(A), (B), (D) and (G). The jury further found that Coffman and Marlow were personally armed with a firearm. (§ 12022, subd. (a).) Following Marlow’s waiver of a jury trial on allegations that he had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a), the trial court found those allegations to be true. The jury returned a verdict of death, and the trial court entered judgment accordingly. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. Facts

A.

Guilt Phase

1.

Prosecution’s Case-in-chief

On Friday, November 7, 1986, around 5:30 p.m., Corinna Novis cashed a check at a First Interstate Bank drive-through window near the Redlands Mall, after leaving her job at a State Farm Insurance office in Redlands. Novis, who was alone, was driving her new white Honda CRX automobile. Novis had been scheduled for a manicure at a nail salon owned by her friend Terry Davis; she never arrived for the appointment. Novis also had planned to meet friends at a pizza parlor by 7:00 that evening, but she never appeared.

That same day, Coffman and Marlow went to the Redlands Mall, where Marlow’s sister, Veronica Koppers, worked in a deli restaurant. Between 5:00 and 5:30 p.m., Veronica pointed the couple out to her supervisor as they sat in the mall outside the deli. Coffman was wearing a dress; Marlow, a suit and tie.

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Later, at the time they had arranged to pick Veronica up from work,

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Coffman and Marlow entered the deli and handed Veronica her car keys, explaining they had a ride.

Around 7:30 p.m., Coffman and Marlow brought Novis to the residence of Richard Drinkhouse. Drinkhouse, who was recovering from injuries sustained in a motorcycle accident and having some difficulty walking, was home alone in the living room watching television when the three arrived. Marlow was wearing dress trousers; Coffman was still wearing a dress; and Novis wore jeans and a black and green top and had a suit jacket draped over her shoulders. Marlow told Drinkhouse they needed to use the bedroom, and the three walked down the hallway. The women entered the bedroom. Marlow returned to the living room and told Drinkhouse they needed to talk to the girl so they could “get her ready teller number” in order to “rob” her bank account. Drinkhouse complained about the intrusion into his house and asked Marlow if he were crazy. Marlow replied in the negative and assured Drinkhouse “there won’t be any witnesses. How is she going to talk to anybody if she’s under a pile of rocks?” Drinkhouse asked Marlow to leave with the women. Marlow declined, saying he was waiting for Veronica to bring some clothing. He told Drinkhouse to stay on the couch and watch television.

Knowing Marlow had a gun and having previously observed him fight and beat another man, and also being aware of his own physical disability, Drinkhouse was afraid to leave the house. At one point, when Drinkhouse appeared to be preparing to leave, he saw Coffman, in the hallway, gesture to Marlow, who came out of the bedroom to ask where he was going. Drinkhouse then returned to his seat on the couch in front of the television.

Veronica arrived at the Drinkhouse residence 10 to 15 minutes after Coffman, Marlow and Novis. Marlow came out of the bedroom, told Veronica he “had someone [tjhere” and cautioned her not to “freak out” on him. Marlow said he needed something from the car; Coffman and Veronica went outside and returned with a brown tote bag. About 10 minutes later, Coffman drove Veronica to a nearby 7-Eleven store in Novis’s car, leaving Marlow in the bedroom with Novis. Drinkhouse heard Novis ask Marlow if they were going to take her home; Marlow answered, “As soon as they get back.” Veronica testified that, during this period, Coffman did not appear frightened or ask her for help in escaping from Marlow. Drinkhouse likewise testified Coffman appeared to be going along willingly with what Marlow was doing.

Upon returning from the 7-Eleven store, Coffman entered the bedroom where Marlow was holding Novis prisoner and remained with them for 10 to

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15 minutes. During this time, Drinkhouse heard the shower running. After the shower was turned off, Marlow emerged from the bedroom wearing pants but no shoes or shirt; he had a towel over his shoulders and appeared to be wet. He walked over to Veronica, said, “We’ve got the number,” and started going through a purse, removing a wallet and identification. Marlow then returned to the bedroom with the purse. Veronica left the house. About five minutes later, Coffman, dressed in jeans, emerged from the bedroom, followed by Novis, handcuffed and with duct tape over her mouth, and Marlow. Novis’s hair appeared to be wet. The three then left the house. Drinkhouse never saw Novis again.

Marlow and Coffman returned the following afternoon to ask if Drinkhouse wanted to buy an answering machine or knew anyone who might. When Drinkhouse responded negatively, the two left.

Novis’s body was found eight days later, on November 15, in a shallow grave in a vineyard in Fontana. She was missing a fingernail on her left hand, and her shoes and one earring were gone. An earring belonging to Novis was later found in Coffman’s purse. Forensic pathologist Dr. Gregory Reiber performed an autopsy on November 17. Dr. Reiber concluded that Novis had been killed between five and 10 days previously. Marks on the outside of her neck, injuries to her neck muscles and a fracture of her thyroid cartilage suggested ligature strangulation as the cause of death, but suffocation was another possible cause of death due to the presence of a large amount of soil in the back of her mouth. Marks on her wrists were consistent with handcuffs, and sperm were found in her rectum, although there was no sign of trauma to her anus.

When Novis uncharacteristically failed to appear for work on Monday, November 10, without calling or having given notice of an intended absence, her supervisor, Jean Cramer, went to Novis’s apartment to check on her. Cramer noticed Novis’s car was not parked there, the front door was ajar, and the bedroom was in some disarray. Cramer reported these observations to police, who found no sign of a forced entry. Terry Davis went to Novis’s apartment later that day and determined Novis’s answering machine and typewriter were missing.

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Around 9:30 p.m. on Friday, November 7, the night Novis apparently was killed, Veronica Koppers visited her friend Irene Cardona and tried to sell her an answering machine, later identified as the one taken from Novis’s apartment. Cardona accompanied Veronica, Coffman and Marlow to the house of a

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friend, who agreed to trade the answering machine for a half-gram of methamphetamine. The next day, Debra Hawkins bought the answering machine that Cardona had traded. The Redlands Police Department eventually recovered the machine. Harold Brigham, the proprietor of the Sierra Jewelry and Loan in Fontana, testified that on November 8, Coffman pawned a typewriter, using Novis’s identification.

Victoria Rotstein, the assistant manager of a Taco Bell on Pacific Coast Highway in Laguna Beach, testified that between 11:00 p.m. and 12:00 a.m. one night in early November 1986, after the restaurant had closed for the evening, a woman came to the locked door and began shaking it. When told the restaurant was closed, the woman started cursing, only to run off when Rotstein said she was going to call the police. Rotstein identified Coffman in a photo lineup and a physical lineup, but did not identify her at trial. On November 11, 1986, the Taco Bell manager found a bag near a trash receptacle behind the restaurant; inside the bag were Coffman’s and Novis’s drivers’ licenses, Novis’s checks and bank card, and various identification papers belonging to Marlow.

The day after Novis’s disappearance, Marlow, Coffman and Veronica Koppers returned to Paul Koppers’s home; Marlow asked him if he could get any “cold,” i.e., nontraceable, license plates for the car. On the morning of November 12, Marlow and Coffman returned to Paul Koppers’s residence, where they told him they had been down to “the beach,” “casing out the rich people, looking for somebody to rip off.” Koppers asked Marlow if he knew where Veronica was; after placing two telephone calls, Coffman learned Veronica was in police custody. On the Kopperses’ coffee table, Marlow saw a newspaper containing an article about Novis’s disappearance with a photograph of her car. Marlow told Coffman they had to get rid of the car. Paul Koppers refused Marlow’s request to leave some property at his house.

Coffman and Marlow left the Koppers residence and drove to Big Bear, where they checked into the Bavarian Lodge using a credit card belonging to one Lynell Murray (other evidence showed defendants had killed Murray on November 12). Their subsequent purchases using Murray’s credit card alerted authorities to their whereabouts, and they were arrested on November 14 as they were walking on Big Bear Boulevard, wearing bathing suits despite the cold weather. Coffman had a loaded .22-caliber gun in her purse. Novis’s abandoned car was found on a dirt road south of Santa’s Village, about a quarter-mile off Highway 18. Despite Coffman’s efforts to wipe their fingerprints from the car, her prints were found on the license plate, hood and ashtray; a print on the hood of the car was identified as Marlow’s. A resident of the Big Bear area later found discarded on his property a pair of gray slacks with handcuffs in the pocket, as well as a receipt and clothing from the Alpine Sports Center, where Coffman and Marlow had made purchases.

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2.

Marlow’s Case

Dr. Robert Bucklin, a forensic pathologist, reviewed the autopsy report and related testimony by Dr. Reiber. Based on the lack of anal tearing or other trauma, Dr. Bucklin opined there was insufficient evidence to establish that Novis had suffered anal penetration. He also questioned Dr. Reiber’s conclusion that Novis might have been suffocated, as opposed to aspirating sandy material during the killing or coming into contact with it during the burial process.

3.

Coffman’s Case

Coffman testified on her own behalf, describing her relationship with Marlow, his threats and violence toward her, and other murders in which, out of fear that he would harm her or her son, she had participated with him while nonetheless lacking any intent to kill. Coffman also presented the testimony of Dr. Lenore Walker, a psychologist and expert on battered woman syndrome, in support of her defense that she lacked the intent to kill. The trial court admitted much of this evidence over Marlow’s objections.

Coffman testified she was born in St. Louis, Missouri, in 1962 and, following her graduation from high school, gave birth to a son, Joshua, in August 1980. Shortly thereafter she married Joshua’s father, Ron Coffman, from whom she separated in April 1982. In April 1984, Coffman left St. Louis for Arizona, leaving Joshua in his father’s care, intending to come back for him when she was settled in Arizona.

Coffman testified that when she met Marlow in April 1986, she was involved in a steady relationship with Doug Huntley. She and Huntley had lived in Page, Arizona, before moving to Barstow, where Huntley took a job in construction. Coffman, who previously had worked as a bartender and waitress, was briefly employed in Barstow and also sold methamphetamine. In April 1986, both Coffman and Huntley were arrested after an altercation at a 7-Eleven store in which Coffman pulled a gun on several men who were “hassling” Huntley and “going to jump him.” Charged with possession of a loaded weapon and methamphetamine, Coffman was released after five days. The day after she was released, Marlow, whom she had never met, showed up at the apartment she shared with Huntley. Marlow said he had been in jail with Huntley and had told him he would check on Coffman to make sure she was all right. Coffman and Marlow spent about an hour together on that occasion and smoked some marijuana. After Huntley’s release, he and Coffman visited Marlow at the Barstow motel where Marlow was staying.

By June 1986, Huntley was again in custody and Coffman was preparing to leave him when Marlow reappeared at her apartment. At Marlow’s request,

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Coffman drove him to the home of his cousin, Debbie Schwab, in Fontana; while there, he purchased methamphetamine. Within a few days, Coffman moved with Marlow to Newberry Springs, where they stayed with Marlow’s friends Steve and Karen Schmitt. During this period, Marlow told her he was a hit man, a martial arts expert and a White supremacist, and that he had killed Black people in prison. In Newberry Springs, Coffman testified, Marlow for the first time tied her up and beat her after accusing her of flirting with another man. During this episode, his demeanor and voice changed; she referred to this persona as Folsom Wolf, after the prison where Marlow had been incarcerated, and over the course of her testimony identified several other occasions when Marlow had seemed to become Wolf and behaved violently toward her. After this initial beating, he apologized, said it would never happen again, and treated her better for a couple of days. She discovered he had taken her address book containing her son’s and parents’ addresses and phone numbers, and he refused to give it back. He became critical of the way she did things and when angry with her would call her names. He refused to let her go anywhere without him, saying that if she ever left him, he would kill her son and family.

After some weeks in Newberry Springs, Marlow told Coffman his father had died and left him some property in Kentucky and that they would go there. Coffman would get her son back, he suggested, and they would live together in Kentucky or else sell everything and move somewhere else. Marlow prevailed on her to steal a friend’s truck for the journey; after having it repainted black, they set off. Not long before they left, Marlow bit her fingernails down to the quick. They went by way of Colorado, where they stayed with a former supervisor of Marlow’s, Gene Kelly, who discussed the possibility of Marlow’s working for him again in Georgia. They then passed through St. Louis. Arriving in the evening and reaching her parents by telephone at midnight, Coffman was told it was too late for her to visit that night; the next morning, Marlow told her there was no time for her to see her son. Accordingly, although Coffman had not seen her son since Christmas 1984, they drove straight to Kentucky.

Upon arriving, they stayed with Marlow’s friend Greg (“Lardo”) Lyons and his wife Linda in the town of Pine Knot. Marlow informed Coffman the real reason for the trip was to carry out a contract killing on a “snitch.” Once they had located the intended victim’s house, Marlow told her she was to do the killing. She protested, but ultimately did as he directed, carrying a gun, fashioning her bandana into a halter top, and luring the victim out of his house on the pretext of needing help with her car. When the victim, who had a gun tucked into his belt, had come to the spot where their truck was parked and was taking a look under the hood, Marlow appeared and demanded to know what the man was doing with his sister. Marlow then grabbed the man’s gun. Coffman testified she heard a shot go off, but did not see what

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happened. Coffman and Marlow returned to Lyons’s home. Sometime later, Marlow and Lyons left the house and returned with a wad of money. Coffman counted it: there was $5,000.

Coffman testified that Marlow subjected her to several severe beatings in Kentucky. In mid-August 1986, they drove to Atlanta, where Marlow told her he had a job. While in a bar after his fourth day working for Gene Kelly, Marlow became angry at Coffman. That night, in their hotel room, he began beating her, took a pair of scissors, threatened to cut her eye out, and then cut off all her hair. He forced her out of the motel room without her clothes, let her back in and forcibly sodomized her. Marlow failed to show up for work the next day and was fired. They then returned to Kentucky, where they unsuccessfully attempted a burglary and spent time going on “pot hunts,” i.e., searching rural areas for marijuana plants to steal. Just before they left Kentucky to go to Arizona, they stole a station wagon.

Back in Arizona, they burglarized Doug Huntley’s parents’ house and stole a safe. After opening it to find only some papers and 10 silver dollars, they took the coins and buried the safe in the desert. Returning to Newberry Springs and again briefly staying with the Schmitts, they sold the stolen car and stole two rings belonging to their hosts, pawning one and trading the other for methamphetamine.

From Newberry Springs, in early October 1986, Marlow and Coffman took a bus to Fontana, where they again stayed with Marlow’s cousins, the Schwabs. During that visit, Marlow tattooed Coffman’s buttocks with the words “Property of Folsom Wolf’ and her ring finger with the letters “W-O-L-F” and lightning bolts, telling her it was a wedding ring. Leaving the Schwab residence in late October, they hitchhiked to the house of Rita Robbeloth and her son Curtis, who were friends of Marlow’s sister, Veronica. From there, Veronica brought Coffman and Marlow to the home she shared with her husband, Paul, and his brother, Steve. At the Robbeloth residence one day, Coffman, Marlow and Veronica were sharing some methamphetamine, and Marlow became enraged over Coffman’s request for an equal share. Although Coffman quickly backed down, Marlow began punching her and threatened to leave her by the side of the road. Later, back at the Koppers residence, Marlow continued to beat, kick and threaten to kill her, forced her to consume four pills he told her were cyanide, extinguished a cigarette on her face and stabbed her in the leg, rendering her unconscious for a day and unable to walk for two days.

Coffman recounted how she and Marlow, along with Veronica, left the Koppers residence and came to stay at the Drinkhouse residence the night before they abducted Novis. On the morning of November 7, 1986, Marlow

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told her to put on a dress, saying they would not be able to rob anyone if they were not dressed nicely. Marlow borrowed a suit from Curtis Robbeloth and told Coffman they had to “get a girl.” She testified she did not understand he intended to kill the girl. After dropping Veronica off at her job, Coffman and Marlow drove around in Veronica’s car looking for someone to rob. Eventually they parked in front of the Redlands Mall. When they saw Novis’s white car pull up in front of them and Novis enter the mall, Marlow said, “That is the one we are going to get,” despite Coffman’s protests that the girl was too young to have money. He directed Coffman to get out of the car and ask Novis for a ride when the latter returned to her car. Coffman complied, asking Novis if she could give them a ride to the University of Redlands. When Novis agreed, Marlow got in the two-seater car with Coffman on his lap. As Novis drove, Marlow took the gun from Coffman, displayed it and told Novis to pull over. Then Coffman drove while Novis, handcuffed, sat on Marlow’s lap. He told Novis they were going to a friend’s house and directed Coffman to the Drinkhouse residence, where they arrived between 7:00 and 7:30 p.m. When Novis told them she had something to do that evening, Marlow assured her, “Oh, you’ll make it where you are going. Don’t worry.”

As Marlow went in and out of the bedroom at the Drinkhouse residence, Coffman sat with Novis. When Novis asked if she was going to be allowed to leave, Coffman told her to do what Marlow said and he would let her go. Showing Novis the stab wound on her leg, Coffman told her Marlow was “just crazy.” Marlow dispatched Coffman to make coffee and proceeded to try to get Novis to disclose her personal identification number (PIN). Finally Novis gave him a number. Marlow then taped Novis’s mouth and said, “We are going to take a shower.” He removed Novis’s clothes and put her, still handcuffed, into the shower. Coffman testified he told her (Coffman) to get into the shower, but she refused. Thinking Marlow was going to rape Novis, Coffman testified she “turned around” and “walked away” into the living room. There she retrieved her jeans and returned to the bedroom to get dressed. Coffman denied either arousing Marlow sexually or having anything to do with anything that happened in the shower. When Marlow told her to dress Novis, Coffman responded that if he uncuffed her, she could do so herself. He removed the handcuffs to permit Novis to dress, then handcuffed her again to a bedpost.

Around this time, Veronica arrived at the Drinkhouse residence. Marlow took Novis’s purse, directed Veronica to get his bag out of her car, and told Coffman and his sister to go to the store, where they bought sodas and cigarettes. Back at the Drinkhouse residence, Veronica departed and, soon thereafter, Marlow, Coffman and Novis left, with Coffman driving and Novis, duct tape on her mouth, handcuffed, and covered with blankets, in the back of the car. Marlow told Coffman to drive to their drug connection in Fontana, but directed her into a vineyard. There, Marlow and Novis got out of the car,

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and he removed her handcuffs and tape. He explained they could not bring a stranger to the drug connection’s house, so he would wait there with Novis while Coffman scored the dope. They walked off, with Marlow carrying a blanket and a bag containing a shovel.

Coffman testified she felt confused at that point because she possessed only $15, insufficient funds for a drug purchase. Believing Marlow intended to rape Novis, she backed the car out of the vineyard, parked down the street and smoked a cigarette. When she returned, no one was there. She could hear the sound of digging. Some 10 to 15 minutes later Marlow reappeared, alone. Without speaking, he threw some items into the back of the car and, after Coffman had driven for a while, began to hit her and berated her for driving away.

They returned to the Robbeloth residence, house, where Marlow changed clothes. Next they drove to a First Interstate Bank branch, but were unable to access Novis’s account because she had given them the wrong PIN. From there, around 9:30 p.m., they went to Novis’s apartment and, after a search, found a card on which Novis had written her PIN. They also took a typewriter, a telephone answering machine and a small amount of cash. They returned to the Robbeloth residence, where Marlow spoke with Veronica, who then drove them around unsuccessfully looking for a friend to buy the answering machine. Leaving Veronica around 3:00 or 4:00 a.m., Coffman and Marlow tried again to access Novis’s account, only to learn there was not enough money in the account to enable them to withdraw funds using the automated teller. They returned to the Drinkhouse residence.

The next morning, Veronica joined them around 8:00 or 9:00. After trying again to sell the answering machine, they pawned the typewriter for $50 and bought some methamphetamine. That afternoon Coffman and Marlow went to Lytle Creek to dispose of Novis’s belongings. Coffman had not asked Marlow what had happened to Novis; she testified she did not want to know and thought he had left her tied up in the vineyard. They returned to the Drinkhouse residence around 5:00 p.m. Later that evening, after trading the answering machine for some methamphetamine in the transaction described in Irene Cardona’s testimony, Coffman and Marlow went with Veronica to the Koppers residence, where they “did some speed” and developed a plan to go to the beach in Orange County on Marlow’s theory that “it would be easier to get money down there because all rich people live down at the beach.” Veronica drove Coffman and Marlow back to Novis’s car, which they drove to Huntington Beach, arriving at sunrise.

After lying on the beach for several hours, they looked unsuccessfully for people to rob. Marlow berated Coffman for their inability to find a victim,

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held a gun to her head and ordered her to drive. After threatening to shoot her, he began to punch the stab wound on her leg. That night, they slept in the car in front of some houses near the beach. The next day, Coffman cashed a check on Novis’s account, receiving $15. They continued their search for a potential victim and eventually bought dinner at a Taco Bell, where Marlow discarded their identification, along with Novis’s. They drove up into the hills and spent the night. The next day, they resumed their search for someone to rob. Seeing a woman walking out of Prime Cleaners, Marlow commented that she would be a good one to rob. They continued to drive around, however, and spent the night in the car behind a motel on Pacific Coast Highway after removing the license plates from another car and putting them on Novis’s car.

The following afternoon, Coffman and Marlow entered Prime Cleaners and committed the robbery, kidnapping, rape and murder of Lynell Murray detailed below (see

post,

at pp. 32-34).

Coffman also presented the testimony of several witnesses suggesting her normally outgoing personality underwent a change and that she behaved submissively and fearfully after she became Marlow’s girlfriend. Judy Scott, Coffman’s friend from Page, Arizona, testified that when Coffman and Marlow visited her in October 1986, Coffman, who previously had been talkative and concerned about the appearance of her hair, avoided eye contact with Scott, spoke tersely and had extremely short hair that she kept covered with a bandana. Lucille Watters testified that during the couple’s July 1986 visit to her house, Coffman appeared nervous, rubbing her hands and shaking. Linda Genoe, Lyons’s ex-wife, testified she met Coffman in June 1986 when she and Marlow visited her at her home in Kentucky. Genoe observed that whenever Marlow wanted something, he would clap, call “Cynful” and tell her what to do. Coffman would always sit at his feet. On one occasion, Genoe saw Coffman lying on the floor of the bedroom in which she was staying, naked and crying; Coffman did not respond when Genoe asked what was wrong. The next morning, Genoe saw scratches on Coffman’s face and bruises around her neck, and Coffman seemed afraid to talk about it. Once Genoe observed Coffman cleaning between the spokes on Marlow’s motorcycle with a toothbrush while Marlow watched. While at Genoe’s house, Coffman and Marlow got “married” in a “biker’s wedding.”

Coffman also presented the testimony of Psychologist Lenore Walker, Ph.D., an expert in battered woman syndrome. Dr. Walker opined that Coffman was generally credible and suffered from battered woman syndrome, which she described as a collection of symptoms that is a subcategory of posttraumatic stress disorder. Certain features of defendants’ relationship fit

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the profile of a battering relationship: a pattern of escalating violence, sexual abuse within the relationship, jealousy, psychological torture, threats to kill, Coffman’s awareness of Marlow’s acts of violence toward others, and Marlow’s alcohol and drug abuse. Dr. Walker administered the Minnesota Multiphasic Personality Inventory to Coffman and diagnosed her as having posttraumatic stress disorder and depression with dysthymia, a depressed mood deriving from early childhood.

Officer Lisa Baker of the Redlands Police Department testified that on November 15, 1986, she took Coffman to the San Bernardino County Medical Center and there observed various scratches and bruises on her arms and legs, a bite mark on her wrist, and a partly healed inch-long cut on her leg. Coffman told Baker the bruises and scratches came from climbing rocks in Big Bear.

Gene Kelly, formerly Marlow’s supervisor in his employment with a company that erected microwave towers, testified that one evening in June 1986 he saw Marlow, who believed Coffman had been flirting with another man, yank her out of a restaurant door by her hair.

4.

Prosecution’s Rebuttal

Jailhouse informant and convicted burglar Robin Long testified that in January 1987

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she met Coffman in the San Bernardino County jail. Coffman told Long that when Marlow took Novis into the shower, she got in with them, and Marlow fondled both of them. Coffman also told Long that Novis was alive and at the Drinkhouse residence when Marlow and Coffman went to Novis’s apartment to look for her PIN. Coffman said she told Novis they would have to kill her because they could not leave any victims alive. After Marlow killed Novis, Coffman told Long, he came back to the car and got the shovel, whereupon Coffman went with him into the vineyard and was present when Novis was buried. Coffman told Long that killing Novis made her feel “really good.” Coffman also said they had taken a number of items from Novis, including a watch, earrings and makeup.

With respect to Lynell Murray, Coffman told Long (contrary to Coffman’s trial testimony) that she had gotten into the shower with Marlow and Murray. Coffman never told Long that Marlow had beaten her or that the only reason she had participated in the killings was because she was afraid for her son’s safety.

The prosecution presented the testimony of several police officers regarding Coffman’s prior inconsistent statements. Odie Lockhart, an officer with

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the Huntington Beach Police Department, and other officers accompanied Coffman to the vineyard where Novis was buried. Contrary to her testimony, Coffman did not tell Lockhart that when Marlow took Novis into the vineyard, she had backed her car out; rather, Coffman told him she stayed in the same location. When Lockhart asked Coffman how Marlow had killed Novis, she said she “guessed” he strangled her, but indicated she was only supposing. Contrary to Coffman’s testimony that she did not know Novis was dead when she and Marlow went to Novis’s apartment to search for her PIN, Coffman told Sergeant Thomas Fitzmaurice of the Redlands Police Department in a November 17, 1986, interview that the reason they did not ask Novis for the correct PIN after the number Novis initially gave them did not work was that “she was already gone by then.” Despite Coffman’s trial testimony that Marlow had beaten her while they were holding Lynell Murray at the motel in Huntington Beach, Fitzmaurice testified that Coffman never mentioned such a beating during a formal interview at the Huntington Beach Police Department and, indeed, said Marlow “wasn’t mean” to her.

Finally, to rebut Coffman’s claim that she continued to fear Marlow after her arrest, Deputy Blaine Proctor of the San Bernardino County Sheriff’s Department testified that he was working courthouse security during September and October of 1987, and while preparing Coffman and other inmates for transportation to court on one occasion he noticed Coffman had left her holding cell and gone to the area where Marlow was located. When he next saw Coffman, she was in front of Marlow’s cell; Marlow was standing on his bunk with his hips pressed against the bars and Coffman was facing him with her head level with his hips. When Coffman and Marlow observed Proctor, Coffman stepped back and Marlow turned, revealing his genitals hanging out of his jumpsuit. Marlow appeared embarrassed and told Proctor that “nothing happened.”

5.

Marlow’s Rebuttal

Clinical Psychologist Michael Kania testified, based on Coffman’s psychological test results and Dr. Walker’s notes and testimony, that Coffman was exaggerating her symptoms, was possibly malingering, and did not suffer from posttraumatic stress disorder, although she met most of the criteria for a diagnosis of antisocial personality disorder.

Various individuals acquainted with both defendants testified that Marlow and Coffman seemed to have a normal boyfriend-girlfriend relationship and, although Coffman wore a bikini on many occasions, the witnesses had never observed cuts or bruises on her.

Veronica Koppers testified that when she was around Coffman, Coffman was under the influence of methamphetamine almost every day. Coffman

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never expressed fear of Marlow for herself or her son; instead, she wanted Marlow to get her son back for her by taking the boy and “getting rid” of her ex-husband and former in-laws. Coffman frequently nagged Marlow to acquire more money. With one exception, all of the arguments between defendants that Veronica witnessed were verbal and nonphysical. The one exception was an argument that occurred while Veronica was driving defendants to a drug connection to purchase methamphetamine. Coffman, in the front seat, kept telling Marlow they needed to get more money to score speed and to get Joshua; Marlow told her to shut up. Coffman kept it up and Marlow slapped her. Veronica told both to get out of her car; they complied. After defendants continued to argue for a few minutes, Marlow got back into the car and told Coffman that if she wanted to leave, she could. She begged him not to leave her. He said, “Okay, get in [the car] and get off my back.” Coffman got back into the car and was silent. Veronica acknowledged that one day, after she had returned home following work, Marlow told her he had accidentally stabbed Coffman; the wound was a small puncture-type wound that did not bleed a lot and, contrary to Coffman’s testimony, Coffman did not seem to have any trouble walking the next day.

Veronica testified that, at the Drinkhouse residence on the night Novis was abducted, she saw Coffman going through Novis’s purse. She also saw Coffman coming out of the bedroom wearing jeans and with wet hair.

Marlow testified he was not a member of or affiliated with any prison gang and had never told Coffman he had been a member of such a gang or had killed anyone while in prison. He acknowledged to the jury that he had had several disciplinary write-ups while in prison but claimed they were for verbal disrespect toward the staff. He denied telling Coffman she would be killed if she ever left him or threatening to have her son killed. He admitted he and Coffman had had physical fights. He had never forced her to have sex, and Coffman never told him she disliked oral sex. Contrary to Coffman’s testimony, they had had sex on the occasion when they first met.

Marlow acknowledged that during their stay in Newberry Springs, he and Coffman had had two real arguments, but he denied, contrary to Coffman’s testimony, that on the first occasion he kicked her, tore off her clothes, tied her up or threatened to kill her. Instead, he had merely pushed her to the ground with an open hand. On the second occasion, Coffman had rebuffed several of Marlow’s requests for assistance in painting a trailer, claiming she was busy gluing together a broken nail; finally, Marlow claimed, he had bitten off the broken nail and trimmed her other nails with a nail clipper. Marlow testified that on their trip east in June 1986, Coffman had declined to visit her mother on the morning following their arrival in St. Louis. A few days after they reached Kentucky, Lyons and another man approached

*29

Marlow about killing one Gregory Hill; Marlow testified that, although he had told Coffman he would rather wait for an expected job opening with his former supervisor, Gene Kelly, Coffman told him the hit would be faster money. Finally, he agreed to do the killing, and Lyons gave him a .22-caliber pistol to do the job. Marlow testified he had never killed anyone before and, when he and Coffman had parked their truck on a hill overlooking Hill’s house, he expressed reservations centering on whether Hill might have a wife and children and whether in fact he might not have snitched as he was alleged to have done. Coffman told him he was going to have to deal with that and, when he said he could not, she demanded the gun and told him she would deal with it. After Coffman got Hill to come and take a look at the truck, Marlow, who had secreted himself in the woods, noticed that Hill had a gun in his back pocket. Marlow emerged and demanded to know what Hill was doing with his sister. When Hill pulled out his gun, Marlow grabbed his arm and the gun went off in the course of the struggle.

Later, Coffman expressed interest in a second contract killing proposed to them, but Marlow balked at the idea. During the ensuing argument, Coffman revealed that her ex-husband and former in-laws had legal custody of her son, and she wanted them to “pay” with their lives for taking him away from her. When Marlow refused to kill them, she threatened to inform the police about the Hill killing; the argument became heated, and he pushed her down; she got up and slapped him, and he slapped her. Contrary to Coffman’s testimony, he did not kick her or hit her in the face with a clutch plate.

In Atlanta, after a few days of working for Gene Kelly, Marlow agreed to Kelly’s offer to take him and Coffman out for dinner and drinks; Marlow felt reluctant, however, because Coffman had been flirting with other men, and he was afraid of getting into another argument with her in which the subject of the killing might come up. They first went to a pool hall where, after drinking a lot of tequila, Marlow got involved in an argument over Coffman with two other men. Marlow told Coffman he wanted to leave the pool hall. Entering a restaurant as the argument continued, Marlow became angry when Coffman told him she was going to sleep with Kelly. He pulled her out of the restaurant by the hair, and they went back to their motel room. In the past, Marlow had threatened to cut her hair when she had flirted with other men; this time, he did it. He denied Coffman’s accusations that he had threatened to put out her eye and had beat and sodomized her.

Marlow testified he and Coffman returned to Kentucky, where he was offered $20,000 to kill a pregnant woman in Phoenix, Arizona; Marlow was not interested, but Coffman wanted him to take the job or to get her to Arizona so that she could do it. They traveled as far as Page, Arizona, before running out of money and heading to Newberry Springs, where they stayed

*30

with the Schmitts for a week. There, at Coffman’s request, Marlow tattooed her ring finger and buttocks.

In early October, Marlow and Coffman arrived at Veronica’s house. Marlow described the incident in which Coffman was stabbed: High on methamphetamine, they had been arguing about money and her son, Joshua; Coffman wanted him to take the contract to kill the woman in Phoenix, but Marlow was unwilling. Coffman threatened to “tell on [him] for Kentucky” if he did not, and said she would do the job herself. Coffman was in bed, under the covers. Marlow stabbed the bed, wounding Coffman’s leg. Marlow asked one of the Kopperses if they had anything for pain, and they gave him Dilantin, which he in turn gave to Coffman. Marlow denied Coffman’s claim that he told her the pills were cyanide and threatened to kill her.

Marlow recounted his version of the offenses against Novis. On November 7, 1986, after moving to the Drinkhouse residence, Marlow and Coffman discussed committing a robbery for money to get Coffman to Arizona. After donning borrowed clothes that afternoon, while they were waiting to pick up Veronica at the Redlands Mall, Coffman noticed Novis pull up alongside their car and commented that she wanted that car for the trip to Arizona. When Novis came out of a store, Coffman asked her for a ride. She and Marlow got into the car, and Novis started driving. Coffman nudged him several times to pull out the gun. He did so and told Novis to pull over. Coffman took over the wheel and, without any prompting from Marlow, drove to the Drinkhouse residence. Marlow testified his intention at that point was to take the car and get Novis to obtain money from her ATM.

At the Drinkhouse residence, they went straight into the bedroom, where Coffman handcuffed Novis to the bed, took her purse to the living room and searched it, finding an ATM card. Coffman took Novis into the shower and asked Marlow to join them, saying she wanted to see him have sex with Novis. Marlow entered the shower but was not aroused by the prospect, and Coffman performed oral sex on him. After getting out of the shower, Marlow took some money from Novis’s purse and asked Coffman to go to the store and get cigarettes. She and Veronica did so. While they were gone, Drinkhouse asked Marlow for $1,000 for bringing Novis to his house and told Marlow he could not simply let her go because she would bring the police to his house. Upon her return, Coffman too told him he could not just let Novis go.

Marlow, Coffman and Novis left the Drinkhouse residence. Coffman was driving and, with no direction from Marlow, drove to the vineyard. They argued and, Marlow testified, Coffman insisted he “do something.” He told her, “You do something.” Coffman said she wanted to get some speed.

*31

Marlow took a sleeping bag out of the car and sat down with Novis while Coffman drove off. She returned some 15 minutes later and commented, “You still haven’t done anything.” Marlow told her to kill the lady if she wanted the lady killed. After Coffman continued to insist, he put his arm around Novis from behind and began choking her. Marlow testified he told Novis to lie down, remain still until they left, and then get up and run away. He then let go of her; she was lying on her side and still breathing. He spread a little dirt over her, avoiding her head. Shown pictures of the grave site, Marlow testified it did not look like that when he left her. When he returned to the car, Coffman asked if he was sure Novis was dead. He told her he was not sure and they left. When they stopped by a field near the Drinkhouse residence, Marlow got out of the car and waited in the field while Coffman took off. When she returned, she asked him if he was okay.

Later, after an unsuccessful attempt to use Novis’s ATM card, Marlow and Coffman went to Novis’s house. As they approached the apartment, Marlow told Coffman they should not go in because he did not think Novis was dead and the police might be watching; Coffman told him not to worry.

Dr. Michael Kania testified about an interview he had had with Marlow in January 1987. In that interview, Marlow expressed a desire to protect Coffman and said he would do anything to help her. Marlow told him that killing Novis was a response to his wanting to “do good” and to hear Coffman tell him he “did good.” Marlow had only killed Novis, he told Kania, because of pressure from Coffman and Drinkhouse.

6.

Prosecution Surrebuttal

To impeach Marlow’s testimony, Sergeant Fitzmaurice recounted statements obtained from him without waiver of the rights described in

Miranda v. Arizona

(1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ]

(Miranda).

Marlow told Fitzmaurice, among other things, that the killing of Novis was “a 50-50” thing, and Coffman “got the ball rolling.” Marlow indicated both he and Coffman took Novis into the shower, but he was unable to perform sexually despite Coffman’s attempting to help him maintain an erection. He also said that they had tried to use Novis’s ATM card after she was dead, that he did not tell Novis what was going to happen to her, and that he had dug a hole for Novis’s body with the shovel the police later found at the Bavarian Lodge.

B.

Penalty Phase

1.

Prosecution’s Case in Aggravation

In addition to the guilt phase evidence of the offenses defendants committed against Corinna Novis, the prosecution’s case in aggravation included

*32

evidence that, on November 12, 1986, Marlow and Coffman committed murder, rape and other offenses against Lynell Murray, a young college student, in Orange County.

5

The prosecution also presented evidence that Marlow committed, and was convicted on his plea of guilty to, three robberies in 1979 (§ 190.3, factors (b) & (c)) and that, while incarcerated pending trial in the present case, he committed an act of violence against a jail trusty (id., factor (b)). Aggravating evidence against Coffman consisted of an incident of brandishing a deadly weapon and possessing a concealed weapon, and an act of violence against her former boyfriend, Doug Huntley.

a.

Murder of Lynell Murray

On November 12, 1986, Lynell Murray failed to return home from her job at Prime Cleaners in a Huntington Beach mall. Around 6:00 p.m. that evening, a half-hour before Murray was to get off work, Lynda Schafer drove into the parking lot of the mall and noticed Coffman, dressed in tight jeans, walking in front of various businesses in the mall. Schafer entered Prime Cleaners and left some clothing with Murray, who was alone at the time. As Schafer left the parking lot, she noticed Coffman passionately embracing a man, later identified as Marlow, near an alley behind the cleaners.

About 6:30 p.m. that evening, Linda Whitlake was leaving her health club, located near Prime Cleaners. As Whitlake walked to her car, Coffman, cursing profanely, approached her, claiming her new car would not start. When Whitlake agreed to give Coffman a ride to her motel, down Pacific Coast Highway, Coffman said she would go tell her boyfriend that Whitlake would drive them. Seeing a man in a small white car with its hood up, Whitlake had misgivings, locked her purse in her car and started over to tell them she had changed her mind. Coffman met her halfway and said her boyfriend had decided to telephone the auto club instead.

Around 7:00 p.m., a half-hour after Murray was scheduled to get off work, her boyfriend, Robert Whitecotton, arrived at Prime Cleaners, which appeared to have been burglarized and ransacked. Murray’s car was parked in the store’s back lot. Whitecotton called the police.

At 7:13 p.m., Coffman, wearing a black and white dress, checked into room 307 of the Huntington Beach Inn. She registered under the name of

*33

Lynell Murray, using Murray’s credit card to pay for the room. At 8:19 p.m., a balance inquiry regarding Murray’s Bank of America checking account and a withdrawal of $80 from that account were made at an ATM located at a Corona del Mar branch of the bank. One minute later an additional $60 was withdrawn, leaving a balance of $4.41.

Later that night, Coffman checked into the Compri Hotel in the City of Ontario, again using Murray’s credit card. Around midnight on November 13, Coffman and Marlow dined on shrimp and steak at the Denny’s restaurant across the street from the hotel. The two were seen embracing in the restaurant. Coffman, wearing a skirt and blouse, did all the ordering and paid for the meal using Murray’s credit card; Marlow, in a three-piece suit, neither smiled nor said anything to restaurant staff.

Around 3:00 p.m. on November 13, an employee of the Huntington Beach Inn entered room 307 and found Murray’s body. The cause of death was determined to be ligature strangulation. Murray’s head was in six inches of water in the bathtub; her head and face were bound with towel strips, and two gags were in and over her mouth. Her right arm was secured to a towel binding her waist. Her right leg lay across the toilet, and her left leg rested on the floor in front of the toilet. Her ankles apparently had been bound with duct tape, although most of the tape had been removed. Murray’s bra, pantyhose and one earring were missing; evidence suggested she had been raped and possibly urinated on.

6

She had suffered premortem blunt force trauma to the head, midsection injuries, bruising of the legs and two black eyes consistent with having suffered blows before death. A footprint on a bathmat near the body was consistent with prints made by boots belonging to Marlow.

After visiting the Koppers residence on the morning of November 13, Marlow and Coffman drove to the City of Big Bear and checked into the Bavarian Lodge. Coffman registered using Murray’s credit card. Further attempts to purchase clothing at a sporting goods store using Murray’s credit card alerted authorities to defendants’ whereabouts and led to their arrest on November 14 while they walked along a road near Big Bear. When officers seized Coffman’s purse, they found it contained Murray’s identification cards and wallet, an earring matching the lone leaf-shaped earring Murray was wearing when her body was discovered at the Huntington Beach Inn, a loaded .22-caliber revolver and .22-caliber ammunition, credit card receipts bearing Murray’s forged signature, and a brown paper bag, similar to those used at Prime Cleaners, containing coins. A search of the room defendants had occupied at the Bavarian Lodge yielded clothing stolen from Prime

*34

Cleaners and a gray suit jacket matching the one Marlow earlier had been seen wearing, with a set of handcuffs (later determined to be the ones Marlow had taken from Paul Koppers) in the pocket, identification in the name of James Gregory Marlow, a ladies’ blue wallet and various single earrings. Novis’s white Honda was found parked off a highway near Santa’s Village, an amusement park in San Bernardino County, bearing license plates stolen from a vehicle parked at the Huntington Beach Inn. Inside a trash can in Santa’s Village, a maintenance worker found a pillowcase with, among other items, a maroon bra identified as belonging to Murray and laundry receipts from Prime Cleaners.

b.

Marlow’s 1979 Robberies and 1988 Assault

i.

Upland Robbery

On November 5, 1979, Jeffrey Johnson lived in an apartment upstairs from sisters Lori and Kathy Liesch on Silverwood Avenue in Upland. At 6:45 that morning, Johnson answered a knock at his door. Marlow and one Allen Smallwood, at the time both heroin addicts, asked Johnson if he worked in construction. When Johnson answered affirmatively, Smallwood hit him in the face, causing him to fall to the floor. Entering the apartment, the two men asked where the drugs were, and Marlow starting beating Johnson with a chain. Smallwood restrained Johnson while Marlow searched the apartment. Johnson was then told to put his shoes on and was taken downstairs to the Liesches’ apartment.

Smallwood, holding a knife to Johnson’s back, and Marlow entered the Liesches’ apartment, where Lori was still in bed. Smallwood ordered her to get out of bed and, when she said she had no clothes on, Marlow attempted to pull the covers off her. After Smallwood told Marlow to stop, Marlow started searching the apartment for drugs over Lori’s protests that she knew nothing about any drugs. While searching, Marlow surprised Kathy, who was returning to the apartment after taking her boyfriend to work. He brought Kathy to the bedroom, where she, Lori and Johnson were tied up with electrical cord. Marlow and Smallwood warned them not to contact the police because they had taken all their identification and would come back for them. At one point during the ordeal, when Lori would not stop crying after Smallwood demanded she stop, Marlow grabbed his crotch and told her he had “something to shut her up.” The Liesch sisters each found that a small amount of cash was missing from their wallets, as well as Kathy’s keys, while Johnson found $180 was missing from his dresser.

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ii.

Robbery at Leather Goods Store

On November 6, 1979, Joanne Gilligan owned a leather goods store in Upland. On that day, while she was helping a customer in the store, Marlow walked in and came to the counter. When Gilligan asked if she could help him, Marlow told her he had a gun and she should lie down on the floor. Marlow’s hand was in the pocket of his sweatshirt and it appeared to Gilligan that he could have had a gun, although she did not actually see one. Gilligan and the customer she had been helping each got down on the floor, while Marlow removed money from the register, grabbed a couple of coats and fled. Gilligan identified Marlow at the preliminary hearing and at the present trial.

iii.

Robbery at Methadone Clinic

On November 20, 1979, Gertrude Smith and Wilson Lee were working at a methadone clinic in the City of Ontario in San Bernardino County. At 10:00 a.m. that day, Marlow, armed with a sawed-off shotgun, and Smallwood, carrying a pistol, entered the clinic. Marlow ordered clinic employees not to move. Marlow and Smallwood demanded methadone but were told the drug was locked in the safe. As Marlow held the shotgun on Smith, Smallwood went down a hallway with Wilson and confronted an employee, demanding he open the safe where the methadone was kept. When the employee had difficulty opening the safe, Marlow urged Smallwood to shoot him in the head. After the safe was opened, Marlow and Smallwood fled with methadone having a street value of $10,000.

At the time of his arrest, on November 26, 1979, Marlow had a bottle containing methadone in his jacket pocket and was carrying a loaded sawed-off shotgun wrapped in a shirt. He claimed to have recently purchased the methadone, but refused to identify who sold it to him or to discuss the clinic robbery.

iv.

Assault Against Jail Trusty

On February 17, 1988, Gary Hale, a jail trusty facing charges of driving under the influence, was bringing breakfast to other inmates at the San Bernardino County jail. When Marlow complained, Hale assured him he had been given the same quantity of potatoes as everyone else. Shortly afterward, Hale noticed Marlow was pointing a blow gun at him. As Hale walked away, he was hit by a paper blow dart with a pin at the end. Marlow later bragged to Deputy Carvey that “It was a lucky shot through the bars.”

c.

Evidence Against Coffman

California Highway Patrol Officer Robert W. Specht testified that about 4:00 a.m. on April 5, 1986, he detained Doug Huntley for driving erratically

*36

and at high speed. The car, in which Coffman was a passenger, stopped at an apartment complex in Barstow. While officers attended to the irate Huntley, Coffman, yelling obscenities at the officers, ran toward a house carrying her purse. Specht, who had received a radio report of an earlier incident linked to Huntley and Coffman, in which Coffman had brandished a gun at several men who were engaged in an altercation with Huntley at a 7-Eleven store, ordered her to come out of the house with her purse. When she complied, Sergeant James Lindley of the Barstow Police Department retrieved a bindle of cocaine or methamphetamine from her purse; a silver derringer was recovered from the house where Coffman had hidden it.

Doug Huntley testified that at the 7-Eleven store, three men had followed him to the parking lot, and one had assaulted him. After Huntley threw his assailant to the ground, Coffman pulled the derringer from her purse and held it on the other two men. Huntley also testified about an incident that had occurred about a year before the 7-Eleven incident. Huntley was walking down the street after arguing with Coffman, who drove up beside him and asked him to get in the car. When he told her he would rather walk home, she drove down the street, turned around and drove in his direction, coming up on the sidewalk and forcing him to move out of the way.

2.

Marlow’s Case in Mitigation

Marlow’s sister, Veronica Koppers, testified she was born in 1959 and spent her early childhood in rural Steams, Kentucky, with Marlow, who was some four years older; her mother, Doris Hill; her father (Marlow’s stepfather), Wendell Hill; and Doris’s mother, Lena Walls. Her parents fought constantly; her father shot her mother, and she stabbed him seven times.

In 1963, Doris, Lena, Marlow, Veronica, an aunt and uncle, and their five children all moved to California to get away from Wendell Hill. They first lived in East Los Angeles and then moved to El Monte, Azusa and San Dimas. Doris developed a pattern of not staying with her children on a regular basis, frequently leaving them for extended periods in Lena’s care. Neither Doris nor Lena worked and, while Lena received Social Security and AFDC payments for the children, Veronica did not know how Doris supported herself at this time. Doris customarily had parties, with drinking and marijuana smoking, going on in her house around the clock. Doris neglected the children, never taking them to the doctor or dentist and often leaving no food for them. One Thanksgiving, Veronica recalled, Doris took her and Marlow to dinner at their uncle’s house; Doris said she was going to the liquor store and did not return for several months. From time to time, Marlow was sent to stay with his father, Arnold Marlow; he also spent time in foster homes. Doris enjoyed many types of drugs, became addicted to heroin, and

*37

openly used drugs in front of her children. She also brought home many different men. Veronica recalled visiting her mother at the Sybil Brand Institute for Women and at the state prison in Frontera.

When Doris got out of prison in 1972, she introduced Veronica to drugs, as she had Marlow and their cousins Pam and Clel. When Marlow was 15, Veronica saw Doris administer heroin to him by tying his arm and injecting it. Doris, who was then supporting herself with prostitution and stealing from her “tricks,” also taught Veronica how to burglarize houses.

Ray Saldivar testified that he met Doris in 1964, when she bought drugs from him. As of the time of trial, Saldivar had conquered his drug habit and was working as a tree trimmer. In 1965, Saldivar moved in with Doris and, after living there for several days, first discovered that Doris had children, despite the fact he had visited her house numerous times before moving in. She was not a loving mother, frequently having to be reminded to feed the children. Marlow was constantly afraid his mother was going to leave him, to the point that he sometimes slept on the floor next to her bed. In their household, people came and went all day long to buy drugs. In Saldivar’s opinion, Marlow was an “innocent child” who “didn’t [ask] to grow up” in “that abnormal home” and “grew up around nothing but dope fiends all his life.”

Lillian Zamorano testified that she met Doris in the mid-1960’s at a bar in Pico Rivera where the two women came to spend a good part of their time. They became good friends, and Doris eventually moved into Zamorano’s house. Doris did not mention to Zamorano that she had children until at least six months after they met. Zamorano never saw Doris display any affection toward her children. Zamorano’s daughter, Rosemary Patino, met Marlow on Christmas 1966 and remembered him as a “good,” “normal,” “playful” child. On that occasion, she testified, they expected a family holiday, but Doris and Lillian left to go to a bar despite Marlow’s crying and pleading with Doris to stay.

Doris died in a fire in 1975.

Sue Warman, formerly the wife of Arnold Marlow, testified she first met Marlow when he was six and a half years old and was sent to live with his father. Marlow’s “mouth had sores all around it and his teeth were rotten.” Warman took Marlow to the dentist and the doctor, bought him new clothes and enrolled him in school. Although initially positive about Marlow’s arrival, Arnold soon began giving Marlow frequent “whippings” “if everything wasn’t done . . . just right.” In Warman’s view, Marlow was “a lonely, lost little boy wanting somebody to love him.” Marlow stayed with his father

*38

and Warman for about three months, until Doris came to his school, unannounced, and took him away. Because Doris had legal custody of Marlow, Warman was told nothing could be done. Warman did not see Marlow again for another seven years. In 1969, California welfare officials contacted Arnold, asking if he could take care of Marlow. At 13, Marlow appeared in better condition than the first time Warman had seen him, but he “still looked like that little, lost, lonely boy.” Marlow got along well with his half siblings, and Warman never had any problems with him. Arnold, however, continued to beat his children, including Marlow.

7

After about a year, Warman—tired of Arnold’s drinking and abusive behavior—made plans to leave him. Knowing she would not get custody, she took Marlow to a foster home so that he would not have to stay with his father. Warman asked the jury to spare his life, commenting that his death “won’t bring those people back. And Greg never had a chance from the day he was bom either. And I love him. I always loved him.”

Allen Smallwood, who at the time of trial was serving a sentence at Folsom State Prison for a series of robberies, testified that he met Marlow at a party when Marlow was 23 years old; Smallwood was 35 and had already been convicted of two robberies and two escapes. Smallwood was then a heroin addict with a $700 per day habit; Marlow had a somewhat lesser habit. Smallwood testified he recmited Marlow, who was undergoing heroin withdrawal, to rob a man named Johnson, who Smallwood had heard was a police informant. Smallwood and Marlow robbed Johnson of several thousand dollars in cash and about six ounces of cocaine. Smallwood denied that Marlow had a chain during the robbery. Later, Smallwood traded some of the cocaine for heroin and some for weapons he planned to use in robbing the methadone clinic, for which effort he again recmited Marlow, who was again going through withdrawal. Smallwood testified he did not think Marlow would have committed those robberies without his importunings. Smallwood had to “show him the ropes,” as Marlow, whose criminal experience was limited to “stuff like” “petty shoplifting,” was “kind of naive.”

Clinical Psychologist George Askenasy testified that in 1975, when he conducted a psychological examination of Marlow for the California Youth Authority, he had found him “a pathetic young man with a chaotic life history,” whose father showed no interest in him and whose mother exhibited a “smothering” “possessiveness” toward him. Marlow, the witness stated, was “caught in an approach-avoidance conflict with many guilt feelings about his relationship with his mother,” “anxious, feeling of inadequacy, sexual confusion, [and] unmet dependency needs . . . .”

*39

3.

Coffman’s Case in Mitigation

Katherine Davis, Marlow’s former wife, testified regarding Marlow’s violence and jealousy and its emotional and physical effects on her. Her testimony is summarized below in connection with a related claim of error (see

post,

at p. 112). Marlene Boggs, Davis’s mother, confirmed much of her daughter’s testimony and described observing her daughter’s scars and bruises, as well as a 75-pound weight loss and hair loss, during Davis’s relationship with Marlow.

Coffman’s former employers testified she was a good worker when employed as a waitress and bartender in Arizona.

Carol Maender, Coffman’s mother, testified about the marital, financial and other difficulties she encountered in raising Coffman and sons Robbie and Jeff, the latter of whom was given up for adoption. As an infant, Coffman had suffered from a painful double inguinal hernia that required surgical repair while she was still in early infancy.

8

Maender testified to a lack of closeness with Coffman, progressing to irritability and aggression on Coffman’s part toward her mother. Coffman bonded well, however, with her stepfather, Bill Maender. Coffman went through Catholic grammar school and public junior high school without major difficulty, but once in high school she encountered problems with grades, truancy and drugs. At one point, she ran away and stayed at the home of her boyfriend, Ron Coffman, for a couple of months; the Maenders did not know where she was. Coffman returned to her own home when she discovered she was pregnant. Their son was bom after Coffman graduated from high school; the couple married and, with the baby, moved into a bungalow on Ron’s parents’ property. The marriage was not a happy one; Ron was mean, abused her physically and cheated on her with other women. Eventually Coffman left him, moving into an apartment and working while Ron’s mother took care of the baby. Then Coffman left Missouri for California, planning ultimately to have her son with her, but Ron’s parents obtained custody of the child. Bill Maender, Coffman’s stepfather, testified Coffman did not abandon her son when she moved west.

Clinical Psychologist Craig Rath, Ph.D., examined Coffman and opined that Coffman’s relationship with Marlow was precipitated by impaired bonding in her early life. He felt she was not malingering and discounted the possibility that she suffered from antisocial personality disorder catalyzed by Marlow.

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4.

Prosecution’s Rebuttal

Sergeant Richard Hooper of the Huntington Beach Police Department testified that Chuck Coffman, Ron Coffman’s father, told him Cynthia Coffman’s personality was aggressive when he knew her in St. Louis.

II. Pretrial and Jury Selection Issues A.

Denial of Severance Motion

Before and at various points during trial, each defendant unsuccessfully moved for severance. Defendants now contend the denial of their motions requires reversal of the judgment.

Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: “When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.” (See

People v. Boyde

(1988) 46 Cal.3d 212, 231 [ 250 Cal.Rptr. 83 , 758 P.2d 25 ], affd. on other grounds

sub nom. Boyde v. California

(1990) 494 U.S. 370 [ 108 L.Ed.2d 316 , 110 S.Ct. 1190 ] [acknowledging legislative preference].) Joint trials are favored because they “promote [economy and] efficiency” and “ ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.’ ”

(Zafiro v. United States

(1993) 506 U.S. 534, 537 [ 122 L.Ed.2d 317 , 113 S.Ct. 933 ].) When defendants are charged with having committed “common crimes involving common events and victims,” as here, the court is presented with a “ ‘classic case’ ” for a joint trial.

(People v. Keenan

(1988) 46 Cal.3d 478, 499-500 [ 250 Cal.Rptr. 550 , 758 P.2d 1081 ].)

The court’s discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in

People

v.

Massie

(1967) 66 Cal.2d 899, 917 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ], such that severance may be appropriate “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” (Fns. omitted.) Another helpful mode of analysis of severance claims appears in

Zafiro v. United States, supra,

506 U.S. 534 . There, the high court, ruling on a claim of improper denial of severance under rule 14 of the Federal Rules of Criminal Procedure, observed that severance may be called for when “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.”

(Zafiro, supra,

at p. 539 ; see Fed. Rules Crim.Proc., rule 14, 18 U.S.C.) The high court noted that less drastic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice.

(Zafiro, supra,

at p. 539 .)

*41

A court’s denial of a motion for severance is reviewed for abuse of discretion, judged on the facts as they appeared at the time of the ruling.

(People

v.

Hardy

(1992) 2 Cal.4th 86, 167 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ].) Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial.

(People

v.

Keenan, supra,

46 Cal.3d at p. 503 [ 250 Cal.Rptr. 550 , 758 P.2d 1081 ].)

Coffman argues that several factors dictated severance of her trial from Marlow’s: the antagonistic nature of their defenses, the expected introduction of Marlow’s extrajudicial statements implicating her in the offenses (see

People

v.

Aranda

(1965) 63 Cal.2d 518, 526-527 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ]), and the risk of prejudicial association with the assertedly more culpable Marlow. Citing, inter alia,

Johnson v. Mississippi

(1988) 486 U.S. 578 [ 100 L.Ed.2d 575 , 108 S.Ct. 1981 ], Coffman also relies on the need for heightened reliability of the determination of guilt and penalty in a capital case. Marlow, in turn, relies on the antagonistic nature of Coffman’s defense and the resultant admission of much evidence inadmissible on any theory as to him but relevant to Coffman’s state of mind. As will appear, we find no abuse of discretion in the denial of defendants’ severance motions.

In

People v. Hardy, supra,

2 Cal.4th at page 168 , we said: “Although there was some evidence before the trial court that defendants would present different and possibly conflicting defenses, a joint trial under such conditions is not necessarily unfair. [Citation.] ‘Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants’ trials,

none has found an abuse of discretion or reversed a conviction on this basis.’

[Citation.] If the fact of conflicting or antagonistic defenses

alone

required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ ” We went on to observe that “although it appears no California case has discussed at length what constitutes an ‘antagonistic defense,’ the federal courts have almost uniformly construed that doctrine very narrowly. Thus, ‘[antagonistic defenses do not

per se

require severance, even if the defendants are hostile or attempt to cast the blame on each other.’ [Citation.] ‘Rather, to obtain severance on the ground of conflicting defenses, it must be demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict

alone

demonstrates that both are guilty.’ ”

(Ibid.,

last italics added.) When, however, there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.

(Ex parte Hardy

(Ala. 2000) 804 So.2d 298, 305 .)

*42

In this case, although Coffman’s defense centered on the effort to depict Marlow as a vicious and violent man, and some evidence that would have been inadmissible in a separate guilt trial for Marlow

9

occupied a portion of their joint trial, the prosecution presented abundant independent evidence establishing both defendants’ guilt. Such evidence showed that Coffman and Marlow, with Novis, came to the Drinkhouse residence around 7:30 on the evening of Novis’s disappearance; Marlow indicated to Drinkhouse that they needed to get Novis’s PIN in order to rob her. When Drinkhouse asked Marlow if he were crazy and complained about their bringing Novis to his house, Marlow told him not to worry, saying, “How is she going to talk to anybody if she’s under a pile of rocks?” When Veronica Koppers arrived at the Drinkhouse residence a while later, Marlow told her he had someone there and “not to freak out on him.” Coffman appeared to be going along willingly with Marlow’s actions and did not ask for Veronica’s help to escape Marlow. Marlow took Novis into the shower, and both left the house with wet hair, along with Coffman. Novis had duct tape over her mouth. Novis’s apartment later was found to have been entered and her typewriter and answering machine stolen. Marlow and Coffman traded the answering machine for drugs, and Coffman, using Novis’s identification, pawned the typewriter. The day after Novis’s disappearance, Marlow, Coffman and Veronica Koppers returned to Paul Koppers’s home; Marlow asked him if he could get any “cold,” i.e., nontraceable, license plates for the car. Three days later, near a trash receptacle located behind a Taco Bell restaurant in Laguna Beach, where Coffman previously had been seen, a bag was found containing identification and other items belonging to Coffman, Marlow and Novis. Novis’s car was found on November 14, 1986, abandoned on a dirt road south of Santa’s Village near where Marlow and Coffman were seen walking on Big Bear Boulevard. Coffman’s fingerprints were found on the license plate, hood and ashtray of the car; one print on the hood of the car was identified as Marlow’s. An earring of Novis’s was later found among Coffman’s belongings. After defendants were arrested, Novis’s body was found in a vineyard in Fontana where she had been strangled and buried. An autopsy revealed sperm in Novis’s rectum. Based on the foregoing evidence, we conclude the nature of the defenses here did not compel severance.

Even were we to conclude the trial court abused its discretion in denying severance, the same independent evidence of defendants’ guilt would lead us to conclude defendants have not demonstrated a reasonable probability of a more favorable outcome as to either guilt or penalty had severance been granted, as would be required for reversal. That evidence, as recited above,

*43

virtually ensured the jury would reach the verdicts it did. In severed trials, moreover, the prosecutor could have introduced evidence of the Orange County offenses to show defendants’ intent in committing the crimes against Corinna Novis, further bolstering the People’s case. (See Evid. Code, § 1101, subd. (b).) With respect to penalty, we note that in addition to the evidence of the Orange County and Kentucky killings, most if not all of Marlow’s violent conduct as described by Coffman and other witnesses potentially was admissible under section 190.3, factor (b), as was Coffman’s prior criminality involving violence. In the face of this overwhelming evidence, we see no reasonable probability of a more favorable outcome for either defendant had severance been granted.

We further conclude that introduction of defendants’ extrajudicial statements implicating each other in the offenses did not dictate severance. Both defendants in this case took the stand and submitted to cross-examination, thus vindicating each codefendant’s Sixth Amendment confrontation rights. This procedure satisfied the rule of

Bruton v. United States

(1968) 391 U.S. 123 [ 20 L.Ed.2d 476 , 88 S.Ct. 1620 ] and its progeny, which provides that if the extrajudicial statement of a nontestifying codefendant is to be introduced at a joint trial, either the statement must be redacted to avoid implicating the defendant or severance must be granted.

(Id.

at pp. 135-136; see

Richardson

v.

Marsh

(1987) 481 U.S. 200, 208-210 [ 95 L.Ed.2d 176 , 107 S.Ct. 1702 ];

Nelson

v.

O’Neil

(1971) 402 U.S. 622, 629-630 [ 29 L.Ed.2d 222 , 91 S.Ct. 1723 ].) Although California law predating

Bruton

had required severance whenever a codefendant’s extrajudicial statement implicating the defendant was to be introduced, barring effective redaction, regardless of whether the codefendant testified at trial (see

People v. Aranda, supra,

63 Cal.2d at pp. 530-531), since the adoption by the voters in June 1982 of Proposition 8, with its preclusion of state constitutional exclusionary rules broader than those mandated by the federal Constitution (see Cal. Const., art. I, § 28, subd. (d)), the

Aranda

rule is coextensive with that of

Bruton. (People

v.

Boyd

(1990) 222 Cal.App.3d 541, 562 [ 271 Cal.Rptr. 738 ].) Consequently, the introduction of defendants’ extrajudicial statements did not compel the trial court to grant severance.

We also reject Coffman’s contention that severance was compelled by the factor of prejudicial association. The evidence here showed defendants both took an active role in the commission of the crimes; this is not a situation in which a marginally involved defendant might have suffered prejudice from joinder with a codefendant who participated much more actively. Nor is this a situation in which a strong case against one defendant was joined with a weak case against a codefendant.

In sum, given the prosecution’s independent evidence of defendants’ guilt and the trial court’s carefully tailored limiting instructions, which we presume

*44

the jury followed

(People

v.

Boyette

(2002) 29 Cal.4th 381, 436 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ]), even under the heightened scrutiny applicable in capital cases

(Williams

v.

Superior Court

(1984) 36 Cal.3d 441, 454 [ 204 Cal.Rptr. 700 , 683 P.2d 699 ]), we find no abuse of discretion in the denial of severance. For the same reasons, defendants’ claims that the joint trial deprived them of their federal constitutional rights to due process, a fair trial and a reliable penalty determination likewise must fail.

B.

Denial of Motion for Change of Venue

Defendants contend the trial court erred in denying their motions for a change of venue and thereby violated various state and federal constitutional guarantees, including those of due process, a fair trial and a reliable penalty determination.

“The applicable principles are settled. A trial court should grant a change of venue when die defendant demonstrates a reasonable likelihood that in the absence of such relief, he or she cannot obtain a fair trial.”

(People

v.

Weaver

(2001) 26 Cal.4th 876, 905 [ 111 Cal.Rptr.2d 2 , 29 P.3d 103 ].) On appeal, “we make an independent determination of whether a fair trial was obtainable”

(People v. Jennings

(1991) 53 Cal.3d 334, 360 [ 279 Cal.Rptr. 780 , 807 P.2d 1009 ]) and reverse when the record discloses a reasonable likelihood the defendant did not have a fair trial

(People v. Bonin

(1988) 46 Cal.3d 659, 672-673 [ 250 Cal.Rptr. 687 , 758 P.2d 1217 ] [reasonable likelihood in this context means something less than “ ‘more probable than not,’ ” and something more than merely possible], overruled on other grounds in

People

v.

Hill

(1998) 17 Cal.4th 800, 823 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]). To make that decision, we examine five factors: the nature and gravity of the offense, the nature and extent of the media coverage, the size of the community, the status of the defendant in the community, and the prominence of the victim.

(People v. Douglas

(1990) 50 Cal.3d 468, 495 [ 268 Cal.Rptr. 126 , 788 P.2d 640 ], disapproved on other grounds in

People v. Marshall

(1990) 50 Cal.3d 907, 933, fn. 4 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ].)

At the evidentiary hearing on the venue change motion, the defense presented more than 150 articles from regional newspapers and various videos of television coverage of the case. In addition to the Novis homicide, many of the articles referred to the Orange County and Kentucky cases and an alleged contract to kill a pregnant woman in Arizona, and characterized defendants as armed and dangerous transients implicated in serial killings. Some articles recounted Marlow’s criminal history and alleged ties to the White supremacist Aryan Brotherhood, and some alluded to defendants’ use of methamphetamine. A few articles mentioned Coffman’s Roman Catholic upbringing. Many articles referred to defendants’ confessions and cooperation

*45

with authorities. Others reported procedural developments in the Novis and Murray cases and the prosecutions of Veronica Koppers and Richard Drinkhouse on lesser charges in the Novis case. The amount of media coverage declined substantially shortly after the discovery of Novis’s body.

The defense also presented testimony by two California State University, Chico, professors, Robert S. Ross, Ph.D., an expert in survey methodology, and Edward J. Bronson, Ph.D., who designed a telephone public opinion survey administered to 526 San Bernardino County residents in early 1988, some nine months before trial. The survey was designed to have a margin of error of 4.5 percent. Participants were first asked whether they recalled a November 1986 incident in which a young woman named Corinna Novis was reported missing in Redlands and her body was found a few days later in a shallow grave in a Fontana vineyard, having been sexually molested, strangled and then buried. Of the 282 participants who resided in the judicial district from which the jury in this case was drawn, 70.9 percent responded affirmatively. When provided a few additional facts, the number of participants recognizing the case increased. Over 80 percent of participants who recognized the case from the facts recited in the survey believed defendants were definitely or probably guilty.

The trial court denied the motion to change venue, noting the case had received less publicity than other cases tried without difficulty in the county of original venue. The court distinguished the prejudgments of guilt “glibly” espoused by the telephone survey participants from the “decision made by a jury sworn to abide by the law, carefully voir dired and instructed as to the law and having a tremendous sense of their responsibility for the lives of the defendants.” The court found no reason to believe that prospective jurors with “irreversible” opinions as to a defendant’s guilt would not disclose them on voir dire, or that jurors who had merely heard of the case could not put aside any knowledge and base their decision on the evidence and the law given to them during the trial.

Independently reviewing the relevant factors, we conclude the trial court did not err in denying the motion. The gravity of the offenses with which defendants were charged weighs in favor of a change of venue, but does not compel it.

(People

v.

Jenkins

(2000) 22 Cal.4th 900, 943 [ 95 Cal.Rptr.2d 377 , 997 P.2d 1044 ].) As for the size of the community, while arguing San Bernardino County is like a collection of small towns, defendants acknowledge the county’s population is the fourth largest in the state. Venue changes are seldom granted from counties of this size. (See

People v. Fauber

(1992) 2 Cal.4th 792, 818 [ 9 Cal.Rptr.2d 24 , 831 P.2d 249 ] [Ventura County].) With respect to the status of the victim and the accused, we observe that before her death Novis was not prominent, nor were defendants well known, in the

*46

community. Although some of the media coverage of this case referred to defendants as transients, Marlow in fact had friends and relatives who lived in San Bernardino County, and he had lived in the county for a time. These factors, therefore, do not militate in favor of a venue change. The pretrial publicity, while extensive, substantially predated the trial.

(Jenkins, supra,

at p. 944 .) And in the course of the actual voir dire, all of the jurors eventually seated who said they remembered hearing about the case indicated that pretrial publicity would not prevent them from acting as fair and impartial jurors. That neither Coffman nor Marlow exhausted their peremptory challenges strongly suggests the jurors were fair and that the defense so concluded. (Pe

ople v. Cooper

(1991) 53 Cal.3d 771, 807 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ].)

People

v.

Williams

(1989) 48 Cal.3d 1112 [ 259 Cal.Rptr. 473 , 774 P.2d 146 ], on which Marlow relies, is distinguishable. That case involved a county (Placer) of very small population where media coverage of the offense was continuous up to the time of trial and where the victim and her family had long and extensive ties to the community, such that a substantial proportion of prospective jurors acknowledged they knew the victim, her family and her boyfriends, and a smaller but still significant number knew the prosecutor, his investigators or deputy sheriffs who were to testify.

(Id.

at pp. 1126-1131.) Similar circumstances are not present here.

We therefore find no reasonable likelihood the denial of a change of venue deprived defendants of a fair trial or due process of law.

C.

Restriction on Voir Dire

Coffman contends the trial court improperly restricted death-qualification voir dire in a way that prevented her from effectively exercising challenges for cause and deprived her of her state and federal constitutional rights to due process of law, a fair trial and an impartial jury, and a reliable determination of guilt and penalty. Specifically, Coffman complains the trial court prevented her counsel from questioning the prospective jurors on their views regarding the circumstances of the case that were likely to be presented in evidence in order to determine how such circumstances might affect their ability to fairly determine the proper penalty in the event of a conviction.

Prospective jurors may be excused for cause when their views on capital punishment would prevent or substantially impair the performance of their duties as jurors.

(Wainwright v. Witt

(1985) 469 U.S. 412, 424 [ 83 L.Ed.2d 841 , 105 S.Ct. 844 ];

People v. Ochoa

(2001) 26 Cal.4th 398, 431 [ 110 Cal.Rptr.2d 324 , 28 P.3d 78 ].) A challenge for cause may be based on the prospective juror’s response when informed of facts or circumstances

*47

likely to be present in the case being tried.

(People v. Kirkpatrick

(1994) 7 Cal.4th 988, 1005 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ].) Thus, we have affirmed the principle that either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine penalty after considering aggravating and mitigating evidence.

(People

v.

Cash

(2002) 28 Cal.4th 703, 720-721 [ 122 Cal.Rptr.2d 545 , 50 P.3d 332 ]; see CALJIC No. 8.85 (7th ed. 2004).) “Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. (See

People v. Jenkins[, supra,

22 Cal.4th at pp.] 990-991 . . . [not error to refuse to allow counsel to ask juror given ‘detailed account of the facts’ in the case if she ‘would impose’ death penalty].) In deciding where to strike the balance in a particular case, trial courts have considerable discretion.”

(Cash, supra,

at pp. 721-722 .)

We conclude Coffman fails to establish an abuse of discretion, in that she cites no trial court ruling precluding her from asking questions necessary to identify jurors unable to discharge their sentencing responsibility consistently with the law. Unlike in

People v. Cash, supra,

28 Cal.4th at pages 720-722, the trial court did not categorically prohibit inquiry into the effect on prospective jurors of the other murders, evidence of which was presented in the course of the trial. Rather, the trial court merely cautioned Coffman’s counsel not to recite specific evidence expected to come before the jury in order to induce the juror to commit to voting in a particular way. (See

People v. Burgener

(2003) 29 Cal.4th 833, 865 [ 129 Cal.Rptr.2d 747 , 62 P.3d 1 ].) Notably, the trial court invited counsel to draft a proposed question for prospective jurors eliciting their attitudes toward the death penalty and in fact itself questioned a prospective juror whether he could weigh all the evidence before reaching a penalty determination in a case involving multiple murder. Even if counsel believed they were precluded from inquiring into a juror’s ability to fairly determine penalty in such a case, Coffman failed to exhaust her peremptory challenges or to express dissatisfaction with the jury as sworn on this ground. Any error, therefore, was nonprejudicial.

{Id.

at p. 866.)

D.

Alleged Juror Bias and Ineffective Assistance of Counsel in Failing to Exercise Challenges

Coffman argues we must reverse her conviction and sentence because four of the jurors who decided her case were biased in favor of the death penalty.

*48

She acknowledges her trial counsel failed to challenge any of the four, either for cause or by using available peremptory challenges, and thus forfeited any appellate claim of error in the seating of those jurors. (See

People v. Morris

(1991) 53 Cal.3d 152, 184 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ], disapproved on other grounds in

People v. Stansbury

(1995) 9 Cal.4th 824, 830 [ 38 Cal.Rptr.2d 394 , 889 P.2d 588 ].) She asserts, however, that she should be relieved of the consequences of counsel’s inaction because they rendered ineffective assistance in this regard. On this record, we conclude her claims lack merit.

As noted above, a prospective juror may be challenged for cause based upon his or her views regarding capital punishment only if those views would “ ‘ “prevent or substantially impair” ’ the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.”

(People

v.

Cunningham

(2001) 25 Cal.4th 926, 975 [ 108 Cal.Rptr.2d 291 , 25 P.3d 519 ], quoting

Wainwright v. Witt, supra,

469 U.S. at p. 424 .) A prospective juror who would be unable conscientiously to consider all of the sentencing alternatives, including, when appropriate, the death penalty, is properly subject to excusal for cause.

(People v. Jenkins, supra, 22

Cal.4th at p. 987.) Our review of the record confirms that none of the four jurors who defendant asserts were biased would have been properly excused under this standard, as each expressed a willingness to consider all the evidence presented before reaching a decision as to penalty. Counsel therefore did not perform deficiently in not challenging those jurors for cause. (See

Strickland

v.

Washington

(1984) 466 U.S. 668, 687 [ 80 L.Ed.2d 674 , 104 S.Ct. 2052 ] [claims of ineffective assistance of counsel entail deficient performance assessed under an objective standard of professional reasonableness and prejudice measured by a reasonable probability of a more favorable outcome in the absence of the deficient performance];

People v. Ledesma

(1987) 43 Cal.3d 171, 216-218 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ].) Nor can we say counsel rendered ineffective assistance in failing to exercise peremptory challenges with respect to these jurors: “ ‘Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process.’ ”

(People v. Freeman

(1994) 8 Cal.4th 450, 485 [ 34 Cal.Rptr.2d 558 , 882 P.2d 249 ], quoting

People

v.

Montiel

(1993) 5 Cal.4th 877, 911 [ 21 Cal.Rptr.2d 705 , 855 P.2d 1277 ].)

E.

Allegedly Improper Excusal of Prospective Juror B.

Coffman contends the trial court deprived her of her state and federal constitutional rights of due process, equal protection and an impartial jury in granting a challenge for cause, joined by the prosecutor and both defendant Marlow’s counsel and her own, to Prospective Juror B. Coffman further contends her counsel rendered ineffective assistance in joining in the challenge. Her contentions lack merit.

*49

Preliminarily, respondent argues Coffman invited any error by joining defendant Marlow’s challenge. As articulated in

People v. Wickersham

(1982) 32 Cal.3d 307, 330 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ], disapproved on other grounds in

People v. Barton

(1995) 12 Cal.4th 186, 201 [ 47 Cal.Rptr.2d 569 , 906 P.2d 531 ]: “The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.” In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. (See

People v. Catlin

(2001) 26 Cal.4th 81, 150 [ 109 Cal.Rptr.2d 31 , 26 P.3d 357 ];

People

v.

Wader

(1993) 5 Cal.4th 610, 657-658 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ];

People

v.

Hardy, supra,

2 Cal.4th at p. 152.) Here, Coffman’s counsel did not merely acquiesce, but affirmatively joined in the challenge to Prospective Juror B., and thus cannot be heard to claim the court erred in excusing her.

In any event, the trial court did not err. “On appeal, we will uphold a trial court’s ruling on a challenge for cause by either party ‘if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ ”

(People v. Bolden

(2002) 29 Cal.4th 515, 537 [ 127 Cal.Rptr.2d 802 , 58 P.3d 931 ].) Although Coffman urges that Prospective Juror B.’s remarks were, at most, ambiguous and reflected merely hesitancy or reluctance and not outright refusal to impose the death penalty, read in context the prospective juror’s comments indicated that, while she favored the death penalty as a sentence for first degree murder, she could not personally impose it owing to her religious background. Because excusal therefore was appropriate, trial counsel did not perform deficiently in joining the challenge.

F.

Motion to Disqualify Trial Judge

Pursuant to Code of Civil Procedure section 170.1, Coffman moved to disqualify Judge Don Turner, the superior court judge assigned to preside over her case for all purposes. That statute requires disqualification, inter alia, whenever “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(C).) In support of the motion, Coffman’s counsel, Alan Spears, declared he was a candidate for the office of San Bernardino County Superior Court judge and, as such, was running in opposition to Judge Duane Lloyd. Counsel further declared that Judge Turner was a member of the Committee for Judge Duane Lloyd, had allowed his name to be used on Judge Lloyd’s campaign letterhead, and had failed to disclose to counsel his involvement in

*50

Judge Lloyd’s reelection effort. As a result of these facts, counsel alleged, Coffman reasonably might entertain a doubt that Judge Turner would be able to remain impartial in her case. Counsel further alleged on information and belief that Judge Turner was biased against him. Judge Turner filed a responsive declaration denying any such bias or grounds for disqualification, stating he “fores [aw] no difficulty in being completely impartial in the trial of this case or any other case in which Mr. Spears is involved,” and noting “Mr. Spears has tried many cases (including death penalty cases) in my courtroom. I respect his ability and he is welcome in my department at any time.” Judge Turner observed he had “no objections to continuing as the trial judge in this case,” nor did he “object to having the case reassigned depending upon the needs of the court.”

The motion was assigned to another judge of the San Bernardino County Superior Court, who denied the motion by minute order stating: “Court finds Judge Turner does not have any bias or prejudice toward Mr. Spears, nor will have in the future.”

Coffman assigns the ruling as error in this appeal, contending it invalidates all of Judge Turner’s subsequent rulings in the case and requires reversal of the judgment. She acknowledges that in

People v. Brown

(1993) 6 Cal.4th 322, 334 [ 24 Cal.Rptr.2d 710 , 862 P.2d 710 ], we held that Code of Civil Procedure section 170.3

10

precludes appellate review of a ruling on a statutory motion for disqualification, but contends her

nonstatutory

claims arising under the due process clause of the Fourteenth Amendment to the federal Constitution and the Eighth Amendment’s guarantee of reliability in penalty determinations in capital cases are cognizable on appeal. Respondent contends Coffman failed to articulate a due process claim below and cannot do so for the first time here.

Assuming Coffman’s motion alleging judicial bias sufficiently preserved the constitutional claims she advances on appeal, or at least the due process claim

(People v. Brown, supra,

6 Cal.4th at p. 334 ; see

People v. Yeoman

(2003) 31 Cal.4th 93, 133 [ 2 Cal.Rptr.3d 186 , 72 P.3d 1166 ] [objection on grounds of due process and equal protection sufficiently preserved 8th Amend, claim based on same facts]), we conclude her contention lacks merit. The allegations presented in support of her disqualification motion simply do not support a doubt regarding Judge Turner’s ability to remain impartial.

11

*51

G.

State Action Allegedly Interfering with Coffman’s Presentation of a Defense

Coffman contends that certain actions by the prosecution effectively dissuaded certain witnesses from testifying on her behalf, thus suppressing favorable evidence within the meaning of

Brady

v.

Maryland

(1963) 373 U.S. 83 [ 10 L.Ed.2d 215 , 83 S.Ct. 1194 ] and depriving her of her federal constitutional rights of compulsory process and to a reliable determination of guilt and penalty. She also contends that the San Bernardino County Superior Court denied her due process by failing to pay on time certain authorized investigative expenses, resulting in the unavailability, during the guilt phase, of witness Katherine Davis, the former wife of defendant Marlow, who would have testified about Marlow’s physical and emotional abuse during their marriage.

12

Coffman raised these contentions in an unsuccessful pretrial motion to strike the special circumstance allegations against her and in a motion for new trial. She now reasserts them as a basis for reversal of the judgment. For the reasons that follow, we conclude the contention lacks merit.

As relevant to the claim that the prosecution dissuaded potential witnesses, at an evidentiary hearing on the motion to strike the special circumstance allegations, Coffman’s counsel presented defense investigator Barbara Jordan’s testimony to the effect that her efforts to obtain witnesses in Page, Arizona, had been hampered by disinformation Redlands Police Sergeant Larry Scott Smith had spread there. Jordan further testified that potential witness Judy Scott, who had roomed with Coffman, reported to Jordan that she felt the police had pressured her not to talk to Coffman’s defense team; they told her Coffman was a lesbian and asked her how close she and Coffman were and whether Coffman had brought prostitution customers to the house when the two were living together. According to Jordan, other potential witnesses who had spoken with the police declined to speak with Coffman’s investigators and treated them with hostility. Jordan stated that Scott and another witness, Debbie Pugh, denied using words or making statements attributed to them in the Redlands police reports, which omitted information exculpatory as to Coffman. Sergeant Smith acknowledged visiting Page with Detective Dalzell of the Redlands Police Department and interviewing Judy Scott; Smith testified he asked Scott if Coffman was bisexual, but elicited no information in that regard; following up on information received in Page, he also asked Scott about Coffman’s possible involvement in prostitution.

*52

The trial court denied the motion, commenting: “I have seen nothing, either in the offer of proof or in the questioning of this witness, which substantiates any [allegation of improper conduct by police in relation to prospective witnesses]. All I have heard so far is that witnesses are telling somewhat different stories to different people, and you’ve been in this business long enough to know that that’s not a novel concept.”

“ ‘Governmental interference violative of a defendant’s compulsory-process right includes, of course, the intimidation of defense witnesses by the prosecution. [Citations.] [f] The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.]’

(In re Martin

(1987) 44 Cal.3d 1, 30 [ 241 Cal.Rptr. 263 , 744 P.2d 374 ].) Threatening a defense witness with a perjury prosecution also constitutes prosecutorial misconduct that violates a defendant’s constitutional rights.

(People

v.

Bryant

(1984) 157 Cal.App.3d 582 [ 203 Cal.Rptr. 733 ].)”

(People

v.

Hill, supra,

17 Cal.4th at p. 835 .) Due process also is violated when the prosecution makes a material witness unavailable by, for example, deportation.

(United States v. Valenzuela-Bernal

(1982) 458 U.S. 858, 873 [ 73 L.Ed.2d 1193 , 102 S.Ct. 3440 ] [due process mandates dismissal of charges when the defendant makes a plausible showing that the deported witness’s testimony would have been material and favorable to the defense, in ways not merely cumulative to the testimony of available witnesses].)

The record before us contains no evidence that the prosecution engaged in witness intimidation or other conduct depriving Coffman’s defense of a material witness. The circumstance that a witness is reluctant to assist one side or the other of a criminal prosecution, or tells different stories to different investigators, is, as the trial court observed, far from unusual and does not, in itself, support a claim that the prosecution interfered with a defendant’s right of compulsory process or suppressed material evidence within the meaning of

Brady v. Maryland, supra,

373 U.S. 83 , even if we assume

Brady

applies in this situation, where the prosecution did not control the witnesses. Consequently, the trial court committed no error in denying Coffman’s motion to strike the special circumstance allegations, and reversal of the judgment is unwarranted.

Coffman also urges that the court’s delay in paying investigative expenses incurred in developing her defense of battered woman syndrome deprived her of a potential witness in the guilt phase of trial, namely, defendant Marlow’s former wife Katherine Davis, and thus violated Coffman’s right to due process as articulated in

Ake v. Oklahoma

(1985) 470 U.S. 68, 80-83 [ 84 L.Ed.2d 53 , 105 S.Ct. 1087 ]. Davis did testify in Coffman’s case in mitigation during the penalty phase concerning Marlow’s abusive conduct during

*53

their marriage some years before the present offenses. Because Coffman made no offer of proof sufficient to enable us to determine that Davis would have given relevant, admissible testimony during the guilt phase, and because Coffman’s argument before the trial court focused on the failure to pay the expenses of investigators for trips to such places as Missouri and Kentucky, rather than the delay in paying Davis’s expenses in coming to California to testify in this trial, we cannot conclude the trial court erred in denying Coffman’s motion to strike the special circumstance allegations.

III. Guilt and Special Circumstance Issues A.

Introduction of Allegedly Coerced Statements

Defendants contend their convictions must be reversed because the trial court improperly allowed the prosecutor to impeach them with postarrest statements that each allegedly made involuntarily as a result of police coercion. Although the issue is close, we reject defendants’ contentions and conclude the statements were voluntarily made.

1.

Factual Background

In order to resolve this issue, we find it necessary to recite in some detail the circumstances under which the statements were given. By the time of defendants’ arrest on November 14, 1986, seven days after Novis disappeared, Redlands Police Department investigators had become aware of possible connections between the Novis case and the murder of Lynell Murray in Huntington Beach. After defendants’ arrest, investigators from both localities interviewed them at the Redlands Police Department.

Officers believed that in light of Marlow’s criminal experience, he probably would not be forthcoming during interrogation and that Coffman, by contrast, was more likely to cooperate with them. Accordingly, they first questioned Coffman for some three and a half hours, from about 5:30 p.m. until about 9:00 p.m. During the course of this interview, officers gave Coffman coffee, cigarettes, food and socks for her bare feet. Coffman complained of a wound on her leg, but the record does not reflect that she was provided medical attention during this period. Officers also falsely told Coffman that Marlow was providing police with information and “ratting on her.” At the end of this first interview, officers drove Coffman to the area of Lytle Creek, where officers believed defendants had spent time, returning to Redlands in the early morning hours of November 15. Coffman then was questioned further until she agreed to take investigators to Novis’s body, which was found, pursuant to her direction, around 4:00 a.m. in a vineyard in Fontana.

*54

Marlow, meanwhile, was questioned for over three hours, from 9:00 p.m. until after midnight. During this interrogation Marlow was provided with food and allowed to smoke. Marlow ultimately agreed to try to take officers to Novis’s burial site. Marlow directed officers to the Sierra Street off-ramp in Fontana, but once there he asked that Coffman be brought to the scene so she could show the officers where the body was located. As the officers could not at that time reach Sergeant Smith, who then had custody of Coffman, they returned Marlow to the Redlands Police Department. At 8:30 the same morning, after the discovery of Novis’s body, officers resumed interrogating Marlow and informed him that Coffman had told them all about the Novis and Murray homicides. During this portion of the interrogation, Marlow gave a detailed statement about both murders, as well as the Kentucky killing. A further interrogation took place two days later, on November 17.

At the outset of the interviews, defendants each were advised of and invoked their

Miranda

rights.

( Miranda, supra,

384 U.S. 436 .) Investigators nevertheless continued to question each defendant despite their repeated requests for counsel. Sergeant Fitzmaurice told Marlow, numerous times, that because he had invoked his

Miranda

rights, whatever he told officers in the course of the interrogation could not be used in court.

Ruling on defendants’ motions to suppress their statements to investigators, the trial court concluded all statements had been made voluntarily and thus could properly be used for impeachment purposes under

Harris v. New York

(1971) 401 U.S. 222, 225-226 [ 28 L.Ed.2d 1 , 91 S.Ct. 643 ]

(Harris),

despite the officers’ noncompliance with

Miranda .

With respect to Coffman’s motion to suppress the fruits of her statement, namely the location of Novis’s body and testimony relating to its condition, after hearing evidence regarding the grave’s shallowness and its proximity, in a working vineyard, to roads and a residential area, the court ruled that testimony regarding the body and its location was admissible pursuant to the doctrine of inevitable discovery.

2.

Legal Principles

Recently, in

People

v.

Neal

(2003) 31 Cal.4th 63, 67-80 [ 1 Cal.Rptr.3d 650 , 72 P.3d 280 ], we reviewed certain legal principles governing the admissibility of defendants’ custodial statements. “It long has been settled under the due process clause of the Fourteenth Amendment to the United States Constitution that an involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion is inadmissible in a criminal proceeding. (See, e.g.,

Brown

v.

Mississippi

(1936) 297 U.S. 278, 285-286 [ 80 L.Ed. 682 , 56 S.Ct. 461 ].) In

Miranda

v.

Arizona[, supra,]

384 U.S. 436 . . . , recognizing that any statement obtained by an officer from a suspect during custodial interrogation may be potentially involuntary because such

*55

questioning may be coercive, the United States Supreme Court held that such a statement may be admitted in evidence only if the officer advises the suspect of both his or her right to remain silent and right to have counsel present at questioning, and the suspect waives those rights and agrees to speak to the officer. The court further held in

Miranda

that if the suspect indicates that he or she does not wish to speak to the officer or wants to have counsel present at questioning, the officer must end the interrogation. In

Edwards

v.

Arizona

(1981) 451 U.S.

477

[ 68 L.Ed.2d 378 , 101 S.Ct. 1880 ] ..., the high court held that if the suspect invokes the right to counsel, the officer may not resume questioning on another occasion until counsel is present, unless the suspect voluntarily initiates further contact. In

Harris v. New York[, supra,]

401 U.S. 222 . . . , the court held that although a statement obtained in violation of

Miranda

may not be introduced by the prosecution in its case-in-chief,

Miranda

was not intended to grant the suspect license to lie in his or her testimony at trial, and thus if an ensuing statement obtained in violation of

Miranda

is voluntary, the statement nonetheless may be admitted to impeach a defendant who testifies differently at trial.

“In

People

v.

Peevy

(1998) 17 Cal.4th 1184 [ 73 Cal.Rptr.2d 865 , 953 P.2d 1212 ], we addressed the issue whether a law enforcement officer’s intentional continuation of interrogation of a defendant, in spite of the defendant’s invocation of his or her right to counsel—in deliberate violation of Miranda—renders the statement obtained by the officer inadmissible even for impeachment purposes. We concluded that in light of the emphasis in

Harris

that

Miranda

should not be interpreted to permit a defendant to testify falsely at trial with impunity, under

Harris

the officer’s misconduct in

Peevy

did not affect the admissibility of the statement as impeachment evidence.

(Id.

at pp. 1193-1194, 1203-1205.)”

(People v. Neal, supra,

31 Cal.4th at p. 67.)

“A statement is involuntary [citation] when, among other circumstances, it ‘was “ ‘extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight....”” [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ ”

(People v. Neal, supra,

31 Cal.4th at p. 79.)

“In reviewing the trial court’s determinations of voluntariness, we apply an independent standard of review, doing so ‘in light of the record in its entirety, including “all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter]” ....’”

(People v. Neal, supra,

31 Cal.4th at p. 80.) But “we accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.”

(People v. Mayfield

(1997) 14 Cal.4th 668, 733 [ 60 Cal.Rptr.2d 1 , 928 P.2d 485 ].)

*56

Relevant to this case, too, is the line of judicial decisions, beginning with the

pre-Miranda

decision in

People v. Modesto

(1965) 62 Cal.2d 436 [ 42 Cal.Rptr. 417 , 398 P.2d 753 ] and finding support in the high court’s decision in

New York

v.

Quarles

(1984) 467 U.S. 649 [ 81 L.Ed.2d 550 , 104 S.Ct. 2626 ], that recognized an exception to the usual constraints on custodial interrogation in the situation where an overriding need exists to rescue persons in danger or to protect human life. In

Modesto ,

the defendant was arrested on suspicion of murdering one young girl, whose body had been found, and harming another, who was missing. This court concluded that the possibility of finding a missing child alive allowed interrogation without advising the suspect of his rights to remain silent and to the assistance of counsel.

(Modesto, supra,

at p. 446 .) The Court of Appeal in

People

v.

Dean

(1974) 39 Cal.App.3d 875 [ 114 Cal.Rptr. 555 ], involving custodial questioning of a kidnap suspect concerning a missing victim’s whereabouts, concluded that the

Modesto

rule remained viable after

Miranda. (Dean, supra,

at p. 882.) Similarly, the Court of Appeal in

People v. Riddle

(1978) 83 Cal.App.3d 563, 574-575 [ 148 Cal.Rptr. 170 ], relied on

Modesto

in holding that

Miranda

did not preclude recognition of a limited exception to the normal rules governing custodial interrogation under exigent circumstances involving a possible threat to human life.

Riddle

held that “under circumstances of extreme emergency where the possibility of saving the life of a missing victim exists, noncoercive questions may be asked of a material witness in custody even though answers to the questions may incriminate the witness. Any other policy would reflect indifference to human life.”

(Riddle, supra,

at p. 578 .) Since in the

Riddle

case the court concluded the defendant’s statements were voluntarily made and lawfully obtained, it found no basis on which to exclude them.

(Id.

at pp. 580-581.)

In

New York v. Quarles,

the high court recognized an analogous exception to

Miranda

in situations involving a threat to public safety. In that case, a woman approached police officers to say she had just been raped and that her assailant, who had carried a gun, had entered a nearby grocery store. Officers entered the store and confronted Quarles, who fit the woman’s description of her assailant. Frisking him, an officer discovered an empty shoulder holster. After handcuffing him, the officer asked where his gun was located. Quarles nodded toward some empty cartons, saying, “The gun is over there.” After retrieving a loaded .38-caliber gun from an empty carton in the area Quarles had indicated, officers read Quarles his

Miranda

rights and questioned him further following his waiver of rights.

(New York v. Quarles, supra,

467 U.S. at pp. 651-652.) The Supreme Court reversed the state court’s decision suppressing the gun and initial statement, concluding that “the need for answers to questions in a situation posing a threat to the public safety

*57

outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

(Id.

at p. 657.) The court declined to make the availability of the public safety exception turn on the subjective motivation of the particular officers involved.

(Id.

at p. 656.) The court noted that Quarles was free, on remand, to argue his statement was coerced under traditional due process standards.

(Id.

at p. 655, fn. 3.)

Under

New York

v.

Quarles

and

People

v.

Modesto ,

the circumstances in the present case, involving the rescue of a known individual, were sufficiently exigent to place the initial interrogations, that is, those taking place before the discovery of Novis’s body, outside the scope of

Miranda .

Novis had been missing for a week at the time defendants were questioned, this passage of time lessening but by no means eliminating the possibility that she remained alive. (Compare

People

v.

Manning

(Colo. 1983) 672 P.2d 499, 509 [police concern for rescuing child who had been missing for 14 weeks “had long since ceased to be realistic,” hence rescue doctrine inapplicable].) Before the interrogation, Marlow’s sister, Veronica Koppers, had told the police that Marlow previously had been known to leave individuals bound and stranded alive in rural areas. Officers did not know whether defendants had done the same with Novis, or whether she was being held in a residence or other structure somewhere. The absence of any blood or other signs of physical trauma in Novis’s car supported a reasonable hope that she might be alive and justified questioning defendants despite their invocation of their

Miranda

rights. That officers employed an interrogation technique of referring to Novis alternately as dead and as still alive by no means negated the exigency, as the officers apparently sought to avoid alienating defendants and instead attempted to gain their confidence, whichever circumstance might in fact exist. Under these circumstances, the rescue doctrine applied, and statements defendants made before police discovered the victim’s body, if voluntarily made, were admissible despite the officers’ noncompliance with

Miranda .

3.

Voluntariness of Marlow’s Statements

As noted, whether the admission of Marlow’s statements violated due process depends upon whether they were voluntarily made in the totality of the circumstances.

(People

v.

Neal, supra,

31 Cal.4th at pp. 79-80.) Marlow, joined by Coffman, contends his November 14 statement was involuntary because (1) his interrogator, Sergeant Fitzmaurice, ignored his nine requests to speak with an attorney; (2) Fitzmaurice repeatedly assured Marlow that nothing he said could be used in court, a promise that both rendered Marlow’s statement involuntary and gave rise to estoppel or use immunity; (3) the statement was induced by a promise of better jail conditions if Marlow cooperated and a threat of worse conditions if he did not; and (4) the

*58

police exercised a coordinated strategy of extracting statements first from Coffman and then from Marlow. We disagree: Marlow’s interrogation, while prolonged, was not accompanied by a denial of all creature comforts or accomplished by means of physical or psychological mistreatment, threats of harsh consequences or official inducement amounting to coercion, nor were Marlow’s admissions the product of coerced statements by Coffman.

The record reflects that what Marlow characterizes as a promise of better jail conditions if he cooperated or a threat of worse if he did not simply amounted to Fitzmaurice’s acknowledgment that the nature of the crimes of which Marlow stood accused tends to evoke negative feelings, that Marlow’s cooperation could be made known to jail authorities, and that the latter might look favorably on such cooperation—all of which Marlow evidently well knew.

13

Any “coordinated strategy” of confronting Marlow with Coffman’s statements violated his due process rights only if doing so actually and proximately caused him to make his admissions against his will. (See

People

v.

Musselwhite

(1998) 17 Cal.4th 1216, 1240-1241 [ 74 Cal.Rptr.2d 212 , 954 P.2d 475 ].) Marlow points to no evidence in the record supporting such a conclusion; his interrogators’ comments that Coffman was cooperating with them surely did not render Marlow’s statements involuntary. That Sergeant Fitzmaurice repeatedly ignored Marlow’s requests for an attorney does give rise to concern, but—given Marlow’s maturity and criminal experience (he was over 30 years old and a convicted felon at the time of the interrogation)—it was unlikely Marlow’s will was thereby overborne.

Fitzmaurice’s assurances that any statements Marlow might make could not be used in court similarly raise the specter of coercion, but after independently reviewing the transcripts of the interrogation and the hearing on Marlow’s suppression motion, we see no reason to disturb the trial court’s determination that his statements were voluntarily made. Significantly, for a considerable period after Fitzmaurice began to assure Marlow his statements would not be used, Marlow continued to resist disclosing Novis’s whereabouts or admitting he committed the offenses. His resistance, far from reflecting a will overborne by official coercion, suggests instead a still operative ability to calculate his self-interest in choosing whether to disclose or withhold information. Marlow’s admissions followed and appeared to be precipitated by continued confrontation with the evidence authorities possessed. (Cf.

State v. Walton

(1989) 159 Ariz. 571 [ 769 P.2d 1017, 1025-1026 ] [when 45 minutes elapsed between officer’s assurance that “it’s nothing that can’t be worked out” and the defendant’s admissions, during which time officer continued to confront the defendant with known evidence, court

*59

concluded admissions were not made in reliance on the assurance].) Moreover, Marlow was not promised leniency in exchange for admissions; rather, his interrogators advised him they had sufficient evidence to convict him without them.

Marlow contends that under

People v. Quartermain

(1997) 16 Cal.4th 600 [ 66 Cal.Rptr.2d 609 , 941 P.2d 788 ], the use of his statements in court violated due process. In

Quartermain,

this court, relying on the rationales of

Santobello v. New York

(1971) 404 U.S. 257, 262 [ 30 L.Ed.2d 427 , 92 S.Ct. 495 ] (when a guilty plea rests in any significant degree on the prosecutor’s promise or agreement, the promise must be fulfilled),

Doyle v. Ohio

(1976) 426 U.S. 610, 618 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ] (fundamental fairness precludes use of a defendant’s post-Miranda-warning silence to impeach his trial testimony), and their progeny, concluded that when a prosecutor violated an agreement made with the defendant not to use his statement in any court proceedings against him, fundamental fairness required that the prosecutor honor the agreement, and under the circumstances the introduction of the statement to impeach the defendant resulted in prejudice requiring reversal of the judgment.

(Quartermain, supra,

at pp. 618-622 .) We observed that the prosecutor’s improper use of the defendant’s statements for impeachment purposes and in closing argument, by “paintfing] defendant as a fabulist,” “struck at the heart of his defense,” as to which the jury’s assessment of his credibility was crucial.

(Id.

at pp. 620, 622.) Assuming the use of Marlow’s statements after repeated assurances to the contrary was fundamentally unfair, here the prosecutor presented abundant other evidence of defendants’ guilt, enabling us confidently to conclude the verdict was unattributable to any error in admitting the statements.

(Id.

at p. 622, citing

Sullivan

v.

Louisiana

(1993) 508 U.S. 275, 279 [ 124 L.Ed.2d 182 , 113 S.Ct. 2078 ]; cf.

People v. Gutierrez

(2002) 28 Cal.4th 1083, 1132-1133 [ 124 Cal.Rptr.2d 373 , 52 P.3d 572 ] [the defendant’s statement not involuntary despite circumstance that investigating officer told him it would not be used in court for any purpose].)

Marlow’s further contentions that the officers’ representations that any statements he might make would not be used in court estopped the prosecution to introduce them, or resulted in a kind of use immunity, are unpersuasive. The Right to Truth-in-Evidence Law (Cal. Const., art. I, § 28, subd. (d)), added to our state Constitution in 1982 when the voters passed Proposition 8, provides in pertinent part that “relevant evidence shall not be excluded in any criminal proceeding.” The provision was intended to abrogate judicially created rules requiring the exclusion of otherwise admissible evidence, such as voluntary admissions. (See

People

v.

Macias

(1997) 16 Cal.4th 739, 749 [ 66 Cal.Rptr.2d 659 , 941 P.2d 838 ];

People

v.

May

(1988) 44 Cal.3d 309 , 318

*60

[ 243 Cal.Rptr. 369 , 748 P.2d 307 ].) Marlow does not explain how a common law estoppel or immunity theory might avoid the stricture of this constitutional provision.

Even were we to assume, for argument’s sake, the trial court erred in finding Marlow’s statements were voluntarily made and thus admissible for impeachment purposes, we would conclude the error was harmless beyond a reasonable doubt.

(Chapman v. California

(1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ];

People v. Cahill

(1993) 5 Cal.4th 478, 487 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ].) As respondent observes, Marlow did not challenge the prosecution’s evidence that, in concert with Coffman, he kidnapped, robbed and killed Corinna Novis, and that he entered her apartment and stole several items of property; his only defense was that he lacked the intent to kill. Yet the evidence of Marlow’s intent to kill, apart from his statements, was overwhelming: Marlow, with Coffman, abducted Novis and sodomized her in the shower at the Drinkhouse residence, inducing her to disclose the PIN for her bank card in order to steal her money. Marlow sought to assuage Drinkhouse’s anxiety at Novis’s presence in his house by saying, “How is she going to talk to anybody if she’s under a pile of rocks?” Defendants equipped themselves with a shovel when they drove to the vineyard where Novis was strangled. Sufficient force was employed in the strangulation to permit the pathologist to opine a second person (such as Coffman) might have assisted Marlow in the killing, or the killer might have placed his foot on Novis’s back as her face was pressed into the ground, accounting for the soil inside her mouth. On this record, it appears beyond a reasonable doubt the error, if any, did not contribute to the verdict.

(Neder v. United States

(1999) 527 U.S. 1, 15 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ];

Chapman, supra,

at p. 24 .)

14

4.

Voluntariness of Coffman’s Statements and Admissibility of Evidence Derived Therefrom

A similar analysis leads to the conclusion that Coffman’s statements were voluntary and thus properly admitted. Although Coffman’s interrogation was lengthy and officers ignored her requests for an attorney, they provided her with food and coffee, allowed her a cigarette, and brought her socks and other clothing after she complained of feeling cold. Although officers did not immediately provide medical attention for Coffman’s leg wound, the injury, approximately two weeks old at the time, clearly was not as serious as that in

Mincey v. Arizona

(1978) 437 U.S. 385, 399-402 [ 57 L.Ed.2d 290 , 98 S.Ct. 2408 ], in which the high court held that statements resulting from the repeated interrogation of a hospitalized suspect suffering from a gunshot

*61

wound were involuntary. Coffman’s admissions occurred after repeated confrontation with the known evidence. She contends that investigators improperly threatened to have her child removed from his home in Missouri, but since she rejected the factual possibility their suggestion clearly had no coercive effect on her. Coffman also contends the officers induced her to involuntarily admit her guilt by falsely telling her Marlow had incriminated her and by making promises of assistance.

15

What the officer meant in asserting he would “help” Coffman is unclear, but we are unpersuaded his comments constituted a promise of leniency that rendered her subsequent statements and conduct involuntary.

The scenario here differs from

Collazo v. Estelle

(9th Cir. 1991) 940 F.2d 411 , on which Coffman relies. There, the federal court of appeals found reversible error in the admission of a confession obtained after an interrogating officer attempted to discourage a suspect from talking with a lawyer by predicting a lawyer would direct him not to speak with the police and “it might be worse” for the suspect.

(Id.

at pp. 414, 416, 420.) Here, the officers—questioning Coffman in the midst of authorities’ efforts to locate Novis—did not hint she would receive harsher treatment if she failed to cooperate.

Moreover, Coffman continued for a considerable period to resist the officers’ requests that she tell them where Novis could be found. Rather than threaten Coffman, interrogators attempted by various techniques to appeal to her sense of moral integrity and any possible sympathy or sensitivity she might have toward the victim’s family. The record supports the conclusion that Coffman’s statements were the product of her own free will.

Even were we to conclude otherwise, i.e., that the trial court erred in finding Coffman made her statements voluntarily, the record contains overwhelming evidence of her guilt. Specifically, the testimony of Richard Drinkhouse and Veronica Koppers supported the conclusion that Coffman willingly participated in the offenses; Harold Brigham testified Coffman was the person who pawned the stolen typewriter using Novis’s identification; Victoria Rotstein placed Coffman near the location where identification belonging to Coffman, Marlow and Novis was found several days after the offenses; and Coffman’s (along with Marlow’s) fingerprints were found on Novis’s car. Any error in the admission of Coffman’s statements therefore did not, beyond a reasonable doubt, contribute to the verdict.

(Neder v. United States, supra,

527 U.S. at p. 15 .)

*62

Coffman further contends the discovery of Novis’s body and the evidence derived from it were the product of her coerced statements and should have been excluded. Having concluded Coffman’s statements were voluntarily made, we further conclude the fruits of those statements were properly admitted. Moreover, even had the statements been involuntary, the trial court properly ruled the physical evidence was admissible under the doctrine of inevitable discovery, which recognizes that if the prosecution can establish by a preponderance of the evidence that the information inevitably would have been discovered by lawful means, then the exclusionary rule will not apply.

(Nix v. Williams

(1984) 467 U.S. 431, 443-444 [ 81 L.Ed.2d 377 , 104 S.Ct. 2501 ].) This is so because the rule is intended to ensure that the prosecution is not placed in a better position than it would have been had no illegality occurred; the rule does not require it be put in a worse one.

(Ibid.)

Novis’s body lay, partially exposed, in a shallow grave in a working vineyard near a residential area. Investigators found evidence that bicycles and horses had been ridden nearby. On these facts, the trial court reasonably could find that Novis’s body ultimately would have been found regardless of defendants’ statements.

5.

Failure to Instruct Regarding Impeachment Use of Defendants’ Admissions

When defendants’ extrajudicial statements were admitted into evidence, the trial court gave the jury no instruction limiting their use to impeachment of defendants’ credibility. Among the instructions the trial court read at the close of the guilt phase was CALJIC No. 2.13, which informs the jury that a witness’s prior inconsistent statements may be considered not only as they bear on the witness’s credibility, but also as evidence of the truth of the facts as stated by the witness on the prior occasion. Marlow, joined by Coffman, contends the trial court erred in failing to instruct the jury, sua sponte, that statements taken in violation of

Miranda

could be used only for impeachment purposes under the rule of

Harris v. New York, supra,

401 U.S. 222 . They argue that the court’s giving of CALJIC No. 2.13 resulted in the jury’s improper use of the statements as substantive evidence of guilt.

In

People v. Nudd

(1974) 12 Cal.3d 204, 209 [ 115 Cal.Rptr. 372 , 524 P.2d 844 ], overruled on other grounds in

People

v.

Disbrow

(1976) 16 Cal.3d 101, 113 [ 127 Cal.Rptr. 360 , 545 P.2d 272 ], this court declined to impose on trial courts a sua sponte obligation to give a limiting instruction when admitting Mi'randa-violative statements for impeachment purposes. Marlow, however, contends

Nudd

is, in this respect, no longer good law in light of

Richardson v. Marsh, supra,

481 U.S. at pages 206-207, in which the high court in dictum observed that “in

[Harris

v.

New York, supra,

401 U.S. 222 ], we held that statements elicited from a defendant in violation of

*63

[ Miranda, supra,

384 U.S. 436 ], can be introduced to impeach that defendant’s credibility, even though they are inadmissible as evidence of his guilt,

so long as the jury is instructed accordingly.”

(Italics added.) The Courts of Appeal have been divided on the question whether such a sua sponte instructional obligation exists. (Compare

People v. Torrez

(1995) 31 Cal.App.4th 1084 , 1088-1091 [ 37 Cal.Rptr.2d 712 ] [no sua sponte obligation] with

People v. Duncan

(1988) 204 Cal.App.3d 613, 620-622 [ 251 Cal.Rptr. 355 ] [imposing sua sponte duty].) Recently, however, in

People v. Gutierrez, supra,

28 Cal.4th at page 1134, this court rejected a claim that the admission for impeachment of a defendant’s Miranda-violative statement, without a limiting instruction and notwithstanding the giving of CALJIC No. 2.13, constituted error. The same conclusion obtains here.

16

B.

Admission of Evidence That Marlow Requested an Attorney During Police Questioning

Marlow contends his constitutional rights to counsel and to due process of law were infringed when he was cross-examined by the prosecutor and by Coffman’s counsel regarding his request for counsel before police questioning, and when the prosecutor, on rebuttal, examined Sergeant Fitzmaurice concerning the same subject. The contention was forfeited for appellate purposes by the lack of a contemporaneous objection.

(People v. Crandell

(1988) 46 Cal.3d 833, 879, fn. 14 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ], abrogated on other grounds in

People v. Crayton

(2002) 28 Cal.4th 346, 364 [ 121 Cal.Rptr.2d 580 , 48 P.3d 1136 ].) Were we nevertheless to consider the merits, we would conclude that although the question is close, any error was harmless.

(Chapman

v.

California, supra,

386 U.S. at p. 24 .)

The challenged questioning went as follows:

“[Prosecutor:] Q. ... It’s true that when the police first talked to you they read you your

Miranda

rights, correct?

“[Marlow:] A. I believe so.

*64

“[Prosecutor:] Q. Well, you asked for a lawyer, didn’t you?

“[Marlow:] A. It’s been a long'time, [f] I—we went to court a lot of times talking about me asking for a lawyer.

“[Prosecutor:] Q. Okay. Do you remember whether you asked them for a lawyer when you were read your

Miranda

rights?

“[Marlow:] A. I believe I did.

“[Prosecutor:] Q. They ignored that, right?

“[Marlow:] A. I think so.”

On recross-examination, Coffman’s attorney, Spears, asked Marlow: “But are you able to reconcile how on the one hand you were screwed up on drugs, and how on the other hand you had the sense to ask for a lawyer during the questioning?” Marlow responded: “I couldn’t explain it to you, Mr. Spears.”

Spears went on to ask: “One of the first things that happened was that you got what’s called the

Miranda

advisal; is that correct?” Marlow answered: “I believe so.” Spears: “And right after getting that advisal, you told the police that you needed to get hold of a lawyer. You made a request for counsel, didn’t you?” Marlow: “If it says I did, I did.” After Spears pointed out where, in the transcript of the interrogation, Marlow had requested counsel, he continued: “Do you remember making a subsequent or another request for a lawyer?” When Marlow answered negatively, Spears cited another instance in the interrogation when Marlow said he needed to talk to a lawyer.

17

Finally, in rebuttal, the prosecutor asked Sergeant Fitzmaurice whether, at the start of Marlow’s interview, he had read Marlow his

Miranda

rights and elicited the fact that Marlow had expressed a wish to see an attorney before questioning.

As we said in

People

v.

Crandell, supra,

46 Cal.3d at page 878:

“Wainwright v. Greenfield

[(1986)] 474 U.S. 284 [ 88 L.Ed.2d 623 , 106 S.Ct. 634 ], concerned a prosecutor’s argument to the jury that the defendant’s repeated refusals to answer questions without first consulting an attorney demonstrated a degree of comprehension inconsistent with the defendant’s claim of insanity. This argument was held to be a denial of federal due

*65

process rights under the reasoning of

Doyle

v.

Ohio[, supra,]

426 U.S. 610 .... HQ

Wainwright

and

Doyle

are founded on the notion that it is fundamentally unfair to use

post-Miranda

silence against the defendant at trial in view of the implicit assurance contained in the

Miranda

warnings that exercise of the right of silence will not be penalized.

(Wainwright v. Greenfield, supra,

474 U.S. at p. 295 ].) A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited.

(People

v.

Fabert

(1982) 127 Cal.App.3d 604, 610-611 [ 179 Cal.Rptr. 702 ];

People v. Schindler

(1980) 114 Cal.App.3d 178, 188-189 [ 170 Cal.Rptr. 461 ].)”

Counsel for a codefendant, like the prosecutor, is bound by this principle and thus is precluded from commenting on the defendant’s assertion of the right to counsel. (See

People

v.

Hardy, supra,

2 Cal.4th at p. 157 [applying related rule of

Griffin

v.

California

(1965) 380 U.S. 609, 615 [ 14 L.Ed.2d 106 , 85 S.Ct. 1229 ], barring comment by the codefendant’s counsel on the defendant’s failure to testify].)

Respondent argues that the questioning quoted above was aimed, at least in part, not at suggesting Marlow’s guilt but instead at showing that during his interrogation his faculties were unclouded, contrary to his testimony that he was mentally impaired due to drug usage. Respondent further contends that a defendant who testifies waives the privilege against self-incrimination and is subject to cross-examination on all relevant matters, of which Marlow’s mental status during police questioning was one. Respondent also asserts that

Wainwright v. Greenfield

does not preclude examination pertaining to the defendant’s demeanor and behavior, suggesting that the challenged questioning may be so characterized. These arguments, which are unsupported by citation to any factually similar cases, are not persuasive.

Wainwright

characterized as

Doyle v. Ohio’s

primary rationale the avoidance of the fundamental unfairness that flows from the state’s breach of the implied assurances contained in the

Miranda

warning, stating broadly: “What is impermissible is the 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.”

(Wainwright v. Greenfield, supra,

474 U.S. at p. 295 .) Coffman’s attorney directly probed the inconsistency between Marlow’s claim of drug-related impairment and his assertion of his right to counsel during questioning; the prosecutor’s cross-examination was not so focused, but instead seemed to address Marlow’s refusal to help officers find Novis. The questions by Coffman’s counsel and the prosecutor, although apparently aimed at different objects, each made evidentiary use of Marlow’s assertion of the right to counsel and thus violated

Wainwright .

Even were the prosecutor’s questions somehow indirectly aimed at addressing Marlow’s mental state at the time of the interrogation, here other

*66

evidence (such as officers’ personal observations) surely would have been directly probative of Marlow’s demeanor and behavior without the necessity of penalizing Marlow’s assertion of his right to counsel.

(Wainwright v. Greenfield, supra,

474 U.S. at p. -295 [“the State’s legitimate interest in proving that the defendant’s behavior appeared to be rational at the time of his arrest could have been served by carefully framed questions that avoided any mention of the defendant’s exercise of his constitutional rights to remain silent and to consult counsel”]; cf.

People v. Crandell, supra,

46 Cal.3d at pp. 878-879 [prosecutor referred to the defendant’s invocation of right to counsel “primarily as a point of reference within the taped interview to assist the jury in locating an area where the prosecution believed that the

tone

of defendant’s statements . . . appeared to be inconsistent with defendant’s statements about the events of the preceding night and about his relationships with the two decedents”].)

As in

People v. Crandell, supra,

46 Cal.3d 833 , however, “if the remarks had the objectionable effect of drawing the jury’s attention to the exercise of protected rights,” the verdicts were certainly not affected by this “ ‘brief and mild reference’ ” and, in view of the overwhelming evidence, any error was harmless beyond a reasonable doubt.

(Id.

at p. 879.) Thus, even assuming Marlow had properly preserved this claim for appeal, any error flowing from questioning him about his invocation of his right to counsel was harmless. Moreover, this lack of prejudice defeats Marlow’s claim that counsel rendered ineffective assistance in failing to object.

C.

Alleged Massiah Error

Coffman contends her statements to jailhouse informant Robin Long, including her admissions that she had gotten into the shower with Novis and Marlow, that Novis was still alive when Marlow and Coffman went to her apartment to find her PIN, and that Novis had to be killed because they could not leave any victims alive, were obtained in violation of her right to counsel and thus improperly admitted over her motion to suppress.

18

She further contends Long’s testimony infected the sentencing process with unreliability, in violation of the Eighth Amendment to the federal Constitution. As will appear, Coffman’s contentions lack merit because she fails to demonstrate that the government did anything more than accept information that Long elicited from Coffman on her own initiative.

In

Massiah v. United States

(1964) 377 U.S. 201 [ 12 L.Ed.2d 246 , 84 S.Ct. 1199 ], the high court held that once a judicial proceeding has been

*67

initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant.

(Id.

at pp. 206-207;

In re Neely

(1993) 6 Cal.4th 901, 915 [ 26 Cal.Rptr.2d 203 , 864 P.2d 474 ].) To prevail on a

Massiah

claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

(Kuhlmann

v.

Wilson

(1986) 477 U.S. 436, 459 [ 91 L.Ed.2d 364 , 106 S.Ct. 2616 ];

People v. Jenkins, supra,

22 Cal.4th at p. 1007 .) “Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.”

(Neely, supra,

at p. 915 .) The requirement of agency is not satisfied when law enforcement officials “merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance.”

(Ibid.) A

preexisting arrangement, however, need not be explicit or formal, but may be inferred from evidence of the parties’ behavior indicative of such an agreement.

(Ibid.)

A trial court’s ruling on a motion to suppress informant testimony is essentially a factual determination, entitled to deferential review on appeal.

(People v. Fairbank

(1997) 16 Cal.4th 1223, 1247-1248 [69 .Cal.Rptr.2d 784, 947 P.2d 1321 ].)

During the hearing on Coffman’s motion to suppress statements she made to Robin Long while Long was in jail on a parole violation, San Bernardino County Deputy Sheriff Bobbi New testified officials were aware of Long’s practice, while in custody, of engaging in mock fortunetelling with playing cards as a means of eliciting from incarcerated suspects statements that Long would then communicate to law enforcement officials. New testified that Long was placed in protective custody, where she met and talked with Coffman, for reasons other than her alleged status as a police agent. (According to Long’s later testimony, because of a prior child endangerment charge she was placed in protective custody whenever she was incarcerated.) Long’s parole agent, Frank Mamone, testified at the same hearing that no official had contacted him to arrange any deal for Long’s testimony or to change her parole status, and that Long had been released around February 6, 1987, as a normal procedure due to the minor nature of her parole violation (absconding and failing to report to her parole agent). Long herself testified she wanted to learn the details of Coffman’s case because two of Long’s friends had been murdered and she wondered if there was a connection between those killings and Coffman’s case. Long also testified she did not like being incarcerated and acknowledged she had given information to authorities in an unrelated case in order to get out of jail, but insisted she had been promised nothing in

*68

connection with the present case and her testimony would have no bearing on how long she would spend in custody on her current parole violation.

Coffman essentially argues that because Long was a known informant, the circumstance that she was housed near Coffman compels the inference that she was a police agent. The trial court reasonably concluded otherwise, given the testimony showing Long had acted on her own initiative and the absence of any evidence that authorities had encouraged her to supply information or insinuated that to do so would be to her benefit, or that her release from jail was other than in the normal course for a minor parole violation. Consequently, the admission of Long’s testimony did not violate Coffman’s Sixth or Eighth Amendment rights.

D.

Long’s Testimony as Assertedly Improper Rebuttal

Coffman contends that Long’s testimony was improper rebuttal because it failed to contradict particular elements of the defense case. Instead, she argues, it merely supported a conviction generally and thus should have been presented in the prosecution’s case-in-chief. She contends the error violated her state and federal constitutional rights to effective assistance of counsel, against self-incrimination, to a fair trial, to confrontation, to nonarbitrary and reliable determinations of guilt, death eligibility and penalty, and to present a defense. She further contends the error constituted an arbitrary denial of a state-created liberty interest and thus violated her federal due process rights. She acknowledges her trial counsel failed to object to the order of proof, thus forfeiting the issue for appellate review, but contends this omission represents ineffective assistance of counsel.

On the merits, Coffman’s argument is unpersuasive. The order of proof rests largely in the sound discretion of the trial court, and the fact that the evidence in question might have tended to support the prosecution’s case-in-chief does not make it improper rebuttal.

(People v. Mosher

(1969) 1 Cal.3d 379, 399 [ 82 Cal.Rptr. 379 , 461 P.2d 659 ], disapproved on another ground in

People

v.

Ray

(1975) 14 Cal.3d 20, 29-30 [ 120 Cal.Rptr. 377 , 533 P.2d 1017 ];

People

v.

Warner

(1969) 270 Cal.App.2d 900, 906 [ 76 Cal.Rptr. 160 ]; Evid. Code, § 320; Pen. Code, §§ 1093, subd. (d), 1094.) It is improper for the prosecution to deliberately withhold evidence that is appropriately part of its case-in-chief, in order to offer it after the defense rests its case and thus perhaps surprise the defense or unduly magnify the importance of the evidence. Nevertheless, when the evidence in question meets the requirements for impeachment it may be admitted on rebuttal to meet the evidence on a point the defense has put into dispute.

(People v. Harrison

(1963) 59 Cal.2d 622, 629 [ 30 Cal.Rptr. 841 , 381 P.2d 665 ].) Because Coffman testified she had nothing to do with what happened in the shower

*69

between Marlow and Novis and denied knowing that Marlow had killed Novis in the vineyard, the prosecutor was entitled to rebut her testimony with prior inconsistent statements and admissions to Long. Because an objection would not have been well taken, counsel did not render ineffective assistance by failing to make one.

E.

Marlow’s Invocation of the Fifth Amendment

Both defendants challenge the propriety of the process by which Marlow, on cross-examination after his direct testimony in rebuttal to Coffman’s testimony, as described below, invoked his privilege against self-incrimination some 44 times when questioned about the Orange County crimes. Respondent acknowledges error occurred, but argues neither defendant suffered any prejudice thereby. Marlow also contends that comment by the prosecutor and Coffman’s counsel in their respective closing arguments concerning his failure to testify about the Orange County offenses violated his privilege against self-incrimination and the rule in

Griffin

v.

California, supra,

380 U.S. 609 .

1.

Factual Context

We first place these contentions in context. Before trial, the prosecutor informed the court and defendants that he would not seek to introduce evidence of the Orange County offenses against Lynell Murray. Accordingly, neither in his opening statement nor in his case-in-chief did he refer to or present evidence of those crimes. In Coffman’s counsel’s opening statement and Coffman’s testimony; however, she informed the jury about the Orange County killing. The trial court instructed the jury that Coffman’s testimony about the Orange County offenses was being admitted only to show Coffman’s state of mind and was not to be considered as evidence against Marlow, either as reflecting on his character or as demonstrating a probability that he committed the San Bernardino County offenses.

After Coffman rested, Marlow testified in rebuttal. Just before Marlow took the stand, his counsel sought a ruling precluding cross-examination on the Orange County crimes. The trial court declined to make a ruling at that time. During the course of Marlow’s direct examination, his counsel asked him if he had intended to kill Novis. Marlow denied so intending. When his counsel asked him if Novis was still alive at the point when, after choking her, he laid her on the ground in the vineyard, Marlow replied: “I know she was alive. I didn’t want to kill her

or anybody else.”

(Italics added.) Just before the start of cross-examination, the court held an in limine hearing on the scope of the proposed cross-examination. The prosecutor argued that Marlow’s response

*70

as quoted above opened the door to cross-examination on the Orange County homicide. Marlow’s counsel contended his client’s answer was nonresponsive and ambiguous as to what incident he was referring to and that he retained a privilege to refuse to answer questions relating to the Orange County homicide.

The trial court noted that although defendants were currently on trial only for the charged offenses against Novis, Coffman’s defense had raised the issue of her relationship with Marlow in an effort to show she acted only under duress and coercion; and Marlow, for his part, had testified to the contrary, namely, that he had not manipulated her, she had manipulated him. The Orange County crimes, the court believed, were highly relevant to the nature of defendants’ relationship in connection with the murder of Novis. And, said the court, because Marlow had denied having the intent to kill anybody at any time, the People had “the right to show the relationship in connection with this other murder in Orange County.”

Thereafter, Coffman’s counsel cross-examined Marlow, asking him various questions about his actions in Orange County. Rather than answer, Marlow stated he was “taking the Fifth” on those questions. Finally, Coffman’s counsel asked the court to direct Marlow to answer, stating, “[WJe’ve had a ruling on that and this is an area I am seemingly entitled to probe.” The court disagreed: “The ruling is you could ask questions. I didn’t rule on whether or not he could take the 5th Amendment. That issue was not raised.” In further discussion outside the presence of the jury, Marlow’s counsel clarified that “[Marlow] is not testifying on my advice because he has not come to trial and will not come to trial in Orange County until these proceedings are concluded.” The court stated: “[I]n any event, the court has to honor his reliance upon his Fifth Amendment privilege not to testify concerning the Orange County thing, [f] That was not gone into at all on his direct. [][] It is true that there are a lot of overlapping things, such as intent to kill, which flow from one case to the next that give the District Attorney a great interest in inquiring into the details of that case. [f][] But there is no way you can force him to answer as against his reliance on the Fifth Amendment.” The prosecutor responded: “I know we can’t force him to answer. You could instruct him to. I know it wouldn’t do any good. We have no control over him, but you legally, as you know, can instruct him that he is required to answer.” The court answered: “Yes. I think in view of the fact that he does have a trial pending in Orange County and he has avoided that testimony on the stand here, justice requires that we honor his Fifth Amendment privilege.” The court continued: “[A]s a practical matter we all know that taking the Fifth Amendment in view of all the evidence that’s come out in this case is a tacit admission to the jury that the worst is true. [][] And since nobody is trying to convict him of the Orange County case, why, we don’t have the problems of the burden of proof. [][] So far as the information which the jury

*71

will—whether we like it or not, consider his refusal to answer is one of the things which is in their heads. [][] They will be instructed very carefully not to consider that, but it’s—.” The prosecutor responded: “I’m not sure taking the Fifth this way isn’t something they shouldn’t be able to consider. That’s part of what I’m trying to make my point, [f] Procedurally, will the court at least permit me to force him to take the Fifth on these issues?” The court acknowledged the prosecutor was “entitled to get his answer.”

Before the jury, the prosecutor asked a succession of questions to which Marlow responded with an assertion of his Fifth Amendment privilege. After the 27th such assertion, the court interjected: “I’d better clarify the record on that, counsel. Mr. Marlow, when you say I have to take the Fifth on that, are you intending to say that you refuse to answer the question on the ground that the answer may tend to incriminate you?” Marlow responded in the affirmative. The court then told the jury: “The record may show that when the defendant refers to taking the Fifth, he is in effect stating that he refuses to answer the question on the ground that the answer may tend to incriminate him. [‘IQ On that basis, he does not have to answer the question.” The court also informed the jury that the questions as to which Marlow asserted a privilege were not themselves evidence and were not to be considered as such. The court later instructed jurors with CALJIC No. 2.25, directing them to draw no adverse inference from Marlow’s invocation of the privilege.

2.

Marlow’s Contentions

Marlow contends the trial court erred in permitting any cross-examination concerning the Orange County offenses because no evidence had been admitted against him, and he had not testified, concerning that incident. Marlow further contends that once the trial court ruled his invocation of the privilege against self-incrimination regarding the Orange County crimes was proper, it erred in requiring him to assert the privilege in front of the jury and informing the jury that he did so each time because the answer would tend to incriminate him. (See

People v. Mincey

(1992) 2 Cal.4th 408, 440-442 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ].) Finally, the instruction advising the jury to draw no adverse inference from Marlow’s invocation of the privilege did not, he contends, eliminate the prejudice stemming from these circumstances. Respondent contends Marlow waived his Fifth Amendment privilege as to the Orange County crimes by testifying, on direct examination, that he did not want to kill “anybody,” inferentially including Lynell Murray, and that he therefore actually no longer had a privilege to assert before the jury. Consequently, respondent urges, Marlow received the benefit of an instruction (CALJIC No. 2.25, telling the jury to draw no adverse inference from the assertion of the privilege) to which he was not entitled. Moreover, respondent

*72

points out, the jury was instructed regarding the limited purpose of evidence of the Orange County murder, an offense for which he was not on trial in the present proceeding.

We conclude that Marlow’s direct examination response denying he ever wanted to kill Novis “or anybody else” did “open the door” to questioning regarding the Orange County murder, and the trial court abused its discretion in implicitly ruling to the contrary. “A defendant who takes the stand to testify in his own behalf waives the privilege against self-incrimination to the extent of the scope of relevant cross-examination. [Citations.] ‘It matters not that the defendant’s answer on cross-examination might tend to establish his guilt of a collateral offense for which he could still be prosecuted.’ ”

(People v. Thornton

(1974) 11 Cal.3d 738, 760-761 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ], disapproved on other grounds in

People v. Flannel

(1979) 25 Cal.3d 668, 684, fn. 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ], and abrogated on other grounds in

People

v.

Martinez

(1999) 20 Cal.4th 225, 234 [ 83 Cal.Rptr.2d 533 , 973 P.2d 512 ];

Jenkins

v.

Anderson

(1980) 447 U.S. 231, 236, fn. 3 [ 65 L.Ed.2d 86 , 100 S.Ct. 2124 ].) “None of [the] fundamental principles [underlying the rule precluding the prosecution from cross-examining a testifying defendant beyond the scope of direct examination, upon the case generally] . . . imply that when a defendant voluntarily testifies in his own defense the People may not fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.”

(People v. Schader

(1969) 71 Cal.2d 761, 770 [ 80 Cal.Rptr. 1 , 457 P.2d 841 ]; see also

United States v. Hearst

(9th Cir. 1977) 563 F.2d 1331, 1340-1341 .) In the context of the trial, following Coffman’s testimony that Marlow killed Murray, Marlow’s testimony denying he wanted to kill “anybody” reasonably would have been understood as referring to Murray, and it would have been unfair not to permit Coffman and the prosecutor to amplify it. Cross-examination of Marlow concerning the events in Orange County, we conclude, thus was relevant and proper, and his purported assertion of the privilege was ineffective.

19

From this conclusion it follows that the trial court did not commit

Griffin

error (see

Griffin v. California, supra,

380 U.S. 609 ) in explaining to the jury the meaning of Marlow’s purported assertions of the

*73

privilege. The trial court should not then have instructed the jury with CALJIC No. 2.25, or perhaps, on request, should have stricken Marlow’s direct testimony regarding his lack of desire to kill anybody. Nevertheless, we see no reasonable probability of a more favorable outcome in the absence of these irregularities, for Marlow was not charged in this proceeding with the Orange County offenses, and we presume the jury followed the instruction to draw no adverse inferences from his assertion of the privilege.

(People

v.

Boyette, supra,

29 Cal.4th at p. 436.)

20

Marlow further contends that both the prosecutor and Coffman’s counsel violated his right against self-incrimination by commenting, in their respective summations, on his failure to testify about the Orange County homicide.

(Griffin

v.

California, supra,

380 U.S. 609 ;

People

v.

Hardy, supra,

2 Cal.4th at p. 157

[Griffin

rule applies to comment by codefendant as well as prosecutor].) Specifically, the prosecutor commented: “Now the abduction out of that cleaners—and we have only heard Miss C

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