# People v. Rundle

> California Supreme Court · April 3, 2008 · 74 Cal. Rptr. 3d 454

URL: https://www.frixlaw.com/law-library/cases/2633881

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN RUNDLE, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** April 3, 2008
- **Citations:** 74 Cal. Rptr. 3d 454; 43 Cal. 4th 76; 180 P.3d 224; 2008 Cal. LEXIS 3795
- **Precedential status:** Published
- **Opinion:** Opinion by George
- **Judges:** George
- **Cited by:** 509 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by People v. Doolin, 45 Cal. 4th 390 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2633881

## How later opinions describe it (automated extraction)

- characterizing a mistrial ruling as “a more favorable outcome”

## Opinion text

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Opinion
GEORGE, C. J.
A jury convicted defendant David Allen Rundle of the first degree murders of Caroline Garcia and Lanciann Sorensen, and of attempting to forcibly rape them. (Pen. Code, §§ 187, 261, subd. (a)(2), 664.)
1
It found true the special circumstances that defendant was convicted of multiple murders in this proceeding, and that defendant committed the murders in the course of attempting to rape the victims. (§ 190.2, subd. (a)(3), (17).) After the penalty phase of the trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to death.
2
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. Facts
A.
Introduction
In November of 1986, the bodies of two young women, Caroline Garcia, 18 years of age, and Lanciann Sorensen, 15 years of age, were found in rural areas of Placer County. The bodies were unclothed and the arms of both victims were bound tightly behind their backs. Both bodies were badly decomposed, such that the causes of death could not be authoritatively established, nor was there definitive remaining evidence that the victims had been sexually assaulted. Despite his earlier denials of any involvement in the murders, defendant, who was 21 years of age at the time, confessed to the authorities that he had sexual relations with the victims and killed them by strangulation. At trial, defendant testified he had killed the women in fits of rage induced by the victims’ behavior, but did not decide to engage in sexual activities with them until after they were dead. The evidence presented by the defense suggested that defendant’s rage was the result of psychological problems arising from the incestuous sexual abuse inflicted upon him as a child by his mother, his mother’s extensive history of engaging in other inappropriate sexual behavior (such as exhibitionism and having numerous extramarital affairs) which was common knowledge in the small towns where defendant and his family resided, and the general difficulties defendant had with his family.
The jury deliberated for less than a full court day before returning guilty verdicts and true findings on all charges and allegations.
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At the penalty phase, the prosecution presented evidence of an earlier similar murder of a third woman in Sacramento, whose body was found unclothed in a wooded area near the Sacramento River with her arms tied behind her back, and who had been raped and strangled to death. Defendant confessed to this murder during the investigation of the Garcia and Sorensen killings. The evidence also established that defendant committed three sexual assaults against other children when he was 14 years of age, for which he was subjected to juvenile delinquency proceedings. Defendant’s ex-wife testified that he physically and sexually abused her during their marriage. The defense presented further evidence of defendant’s mental state, his family and employment background, and his good behavior while incarcerated following his arrest for the charged offenses.
The jury deliberated further for less than a full court day before returning a verdict of death.
B.
Guilt Phase
1.
Prosecution Evidence
At approximately 3:00 p.m. on Sunday, September 7, 1986, Caroline Garcia left her home in Roseville. She planned to go to the bus station to take a bus to Colfax, where she planned to visit her husband Trinidad Garcia, from whom she was separated. She was wearing a black skirt and a red jacket. Trinidad saw Caroline at a park in Colfax sometime near 9:00 p.m. She told him she was going to the house of Chris Paoli, a friend who lived in Colfax. She also called Kim Manzano, who lived with Garcia in Roseville, and told Manzano she was going to Paoli’s house and was planning to take a bus back to Roseville that night and would be home at approximately 1:00 a.m.
After arriving at Paoli’s house, Garcia told Paoli a drunk man had bothered her earlier that evening, but another person had intervened on her behalf. She said she expected that person to come to Paoli’s house to drive her back to the bus station. At approximately 10:45 p.m., defendant arrived in his car and Garcia left with him.
No one, other than defendant, reported seeing Garcia alive again.
On Monday, September 8, 1986, the day after Garcia disappeared, a motorist reported finding discarded clothing near a turnout on Interstate Highway 80 between Weimar Cross Road and Colfax. A California Highway Patrol officer responded to the scene and found a dark-colored denim skirt, a pair of black and purple women’s panties, and a blue and white striped
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blanket that appeared to have a spot of blood and mucus on it. The area later was searched, but no other item of significance was found.
On September 16, 1986, another motorist reported finding a red blazer, a purse, and a wallet containing Garcia’s identification near a railroad crossing on Carpenter Road, a secluded area approximately two miles from Chris Paoli’s house in Colfax and six miles by road from where the skirt, underwear, and blanket had been found. Inside the purse was a bus ticket issued on September 7, 1986, for travel from Colfax to Roseville, a pipe commonly used to smoke marijuana, and an unopened package containing a condom. An extensive search of the area the next day failed to disclose any other evidence.
At trial, Kim Manzano testified that on September 7, 1986, Garcia was wearing the skirt, blouse, and jacket that were found. Manzano also identified the purse as the one Garcia took with her that day, and the panties as a pair Garcia had purchased the day before when she and Manzano were shopping. Defendant’s mother testified she had given defendant the blanket in May 1986 and that it did not have any red stains on it when she gave it to him.
Criminalist James Streeter examined the clothes and the blanket. He testified the clothing did not appear to be ripped or tom in any way, and was not stained with blood or any other bodily fluid. The blanket showed several bloodstained areas, in which there was a mixture of blood and a mucous material, most likely saliva, but no semen or seminal fluid. Based upon a comparison of the blood on the blanket and blood samples from Garcia’s parents, it was determined that the blood on the blanket was consistent with Garcia’s blood type.
In September 1986, defendant was employed as a general laborer by George Willson, a carpenter. The work involved physical labor, and defendant was strong for his size. Defendant did not show up for work on September 8 or 9, the days following Garcia’s disappearance.
On September 8, 1986, defendant told his ex-girlfriend Heather Smith that the authorities had been speaking with him about Garcia, and that they appeared to believe he had killed her. On the following day, defendant told his friend James Sciacca that he (defendant) was the number one suspect in Garcia’s disappearance because he was the last person seen with her. Defendant also had a chance meeting with Trinidad Garcia in Colfax on that day. Defendant mentioned he had given her a ride to the bus station the night she had disappeared. Trinidad insisted defendant go to the police to make a report, which defendant did. Defendant told the officers he had given Caroline Garcia a ride to the bus station, and had dropped her off after she declined his
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offer to wait with her. Defendant also said that on the way to the station they had seen the drunk man who had harassed Garcia earlier that day, but Garcia said she would go to the nearby gas station if there was any trouble.
Several days after Garcia’s disappearance, defendant and Sciacca went to a carwash, where defendant cleaned and vacuumed the interior of defendant’s car.
Defendant had two more interviews with the authorities, on September 11 and October 21, 1986, during which he provided essentially the same statement of events as above, except for adding that on the way to the bus station, they had stopped and smoked a small amount of marijuana Garcia had with her, and that defendant had asked Garcia to have coffee with him but she declined. Defendant denied he had anything to do with Garcia’s disappearance or had given her his blanket, and maintained he returned to the trailer where he was staying after dropping Garcia off that night. Defendant said a person named Bob who was staying at the trailer could verify that defendant had returned there that night, but defendant could not find Bob. He also told the officers “things had heated up” for him in Colfax because people thought he was involved in Garcia’s disappearance, and therefore he was avoiding the Colfax area.
On September 15 or 16, 1986, George Willson mentioned to defendant he had seen a search party looking for the “missing girl.” Defendant told Willson the authorities would not find anything, because they were “stupid,” adding they no longer were interested in him as a suspect in Garcia’s disappearance because someone else had been seen with her at the bus station and officers had found blood at her husband’s apartment. Defendant also said Garcia was a “slut” and a “sleep around,” as were most of the girls in Colfax.
On the evening of Thursday, October 10, 1986, Lanciann Sorensen and her friend Laura Yowell were at a friend’s house in Roseville, where they each consumed a beer. Later, they went to Yowell’s sister’s house, also in Roseville. Sorensen left alone sometime between 9:00 and 10:00 p.m., stating she was planning to hitchhike back to her mother’s house in Auburn. At approximately 10:00 p.m., Sorensen called her boyfriend, Matthew Sklansky, and said she was in a telephone booth near the freeway in Loomis. Sorensen sounded intoxicated, and told Sklansky she had been drinking alcohol and smoking marijuana. She said she was with a person she met that day named Dave, who lived in Colfax and with whom she had been hitchhiking. Sklansky had told Sorensen he wanted to see her that night, and Sorensen agreed to come to his house when she arrived back in Auburn, but also told him they could not have sexual intercourse because she was menstruating. Sorensen and Sklansky twice before had engaged in sexual intercourse together. Their conversation ended when Sorensen said she should go because
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Dave was bored. Sorensen also called her mother at approximately 10:15 p.m. and said she was making her way home.
No one reported talking to or seeing Sorensen alive after this telephone call. Her mother reported her missing on Monday, October 13, 1986.
In mid-October Willson observed that defendant was not his usual energetic and well-groomed self. Eventually, on October 17, 1986, Willson noticed defendant was distracted and unable to complete a simple project. Defendant told Willson that “Violence is golden.” Willson sent defendant home for the day, and defendant did not work for Willson again, despite a well-paying assignment that was to start soon thereafter.
At the October 21, 1986 interview, defendant also was asked about Sorensen’s disappearance. He denied ever having met her, stating he had worked in Roseville on October 10, the day Sorensen disappeared, and had spent the evening in Colfax with James Sciacca, a friend. Sciacca testified, however, that he had breakfast with defendant on October 11, 1986, and defendant told him that the previous day he had traveled to Sacramento where he had sexual relations with a prostitute, and then hitchhiked back, receiving a ride from a newspaper delivery man.
After the interview on October 21, 1986, Sciacca drove defendant to Reno, Nevada. Defendant told Sciacca he had spoken to the officers earlier that day about Garcia’s disappearance, and asked Sciacca whether he knew how defendant could secure identification in order to assume a new identity.
On November 7, 1986, a motorist traveling on Interstate Highway 80 stopped at the Loomis exit to let his dog out and saw what appeared to be a human body in a culvert off the road. Because he was afraid, the motorist waited several days to report the sighting. Thereafter, on November 14, 1986, officers went to that location and found Sorensen’s body mostly covered with dirt and weeds in a culvert approximately six feet below the level of the road. Her body was completely nude, and her hands were tied behind her back with a pair of pants. The officers also found a blouse and a purse in the area. Sorensen’s mother identified the pants, blouse, and purse as belonging to Sorensen.
The pathologist who conducted the autopsy testified Sorensen was slightly over five feet tall and weighed approximately 110 pounds. Because of the advanced decomposition of her body, the pathologist was unable to determine conclusively the cause of death, although a likely cause, in his opinion, was asphyxiation, secondary to strangulation, based upon hemorrhages and damage to muscle and cartilage in the neck area. The decomposition also
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prevented the pathologist from rendering an opinion whether Sorensen had been raped or whether sperm or other foreign bodily fluids might have been present at the time of her death.
The authorities obtained a warrant for defendant’s arrest for the murder of Garcia. On November 20, 1986, after defendant was arrested in Carson City, Nevada, two officers traveled there and interviewed him at the jail. After being advised of and waiving his
Miranda
rights,
3
defendant admitted killing Garcia and having sexual relations with her at the location where he strangled her. He drew a map marking where her body had been left. He denied any involvement in the Sorensen killing, however. Defendant said he was “loaded” on “acid”
4
during the last 30 days he was in Colfax, including the night Garcia was killed.
The area depicted on defendant’s map was searched on November 21, 1986. Garcia’s unclothed body was found draped around a tree approximately 30 to 40 feet from the road down a very steep incline, partially covered with dirt, rocks and debris, and badly decomposed and largely skeletonized. There was a red cloth tied around her mouth, and her arms were tied behind her back with a piece of wire looped around both wrists and tied with five knots. No other evidence was found in the area. As with Sorensen’s body, the advanced state of decomposition prevented the pathologist who performed the autopsy from determining the cause of Garcia’s death, or whether trauma from a sexual assault had occurred. The pathologist did conclude, however, that the evidence supported the opinion that Garcia’s death had been violent and had been caused by another person.
As defendant returned with the officers to the Placer County Jail in Auburn that day, he provided them with more details concerning the murder of Garcia. Defendant related the following. He ingested LSD before picking up Garcia, and then smoked some marijuana with her. He and Garcia were kissing in the backseat of his car, which was covered with the blue and white striped blanket, but when defendant placed his hand on Garcia’s leg, she said “No,” which led to an argument between them about having sexual relations. When defendant asked Garcia whether she wanted to have sex, she declined because she thought he was “all fucked up.” Defendant “flipped out,” “partly” because of this rejection, and pushed Garcia down and had sex with her. Garcia “partly” resisted by squirming. Defendant said he thought he ejaculated, but was not sure. He did not remember having tied her hands.
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Afterward, defendant became fearful that Garcia would tell others about what had happened, so he decided to kill her. Garcia started fighting, and defendant again pushed her down, grabbed a piece of wire, wrapped it around her neck, and held it there until she stopped moving. Defendant stated he remembered rolling Garcia’s body down a hill, but did not recall anything else.
Despite his earlier denials, defendant also admitted during the drive to Auburn that he killed Sorensen, providing the following details. He had met Sorensen at a mall earlier that day. Defendant had ingested LSD and was “really stoned.” Defendant killed Sorensen by strangling her “by a road.” He said, “It was all so fuzzy.” When asked whether he had sexual relations with Sorensen, defendant said, “I think so.” He stated he did not remember tying her hands, or exactly how he had returned to Colfax that night, although he remembered delivering newspapers along the way.
After arriving at the jail in Auburn and having dinner, defendant was interviewed by the authorities again, providing more details concerning the murder of Sorensen. Defendant said he and Sorensen were hitchhiking and were dropped off at the Loomis exit. Sorensen walked into town, returned about an hour later, and they then smoked marijuana together. Defendant began thinking about his difficulties with his family and became enraged. Sorensen thought defendant was “freaking out,” which made defendant more angry. He placed his hands on her shoulders and Sorensen swung at him, at which point defendant “blew up.” Defendant said he did not remember much after that point, but knew he engaged in sexual relations with Sorensen at some point, and ultimately strangled her because he was frightened. He also remembered covering the body with weeds and throwing away Sorensen’s purse before leaving the scene.
Teresa Jackson testified she introduced defendant to Garcia in July of 1986. According to the testimony of James Sciacca and Janet Spafford, defendant on several occasions prior to September 7, 1986, had asked Garcia out for a date, but Garcia had declined, once commenting that she thought defendant was “strange” or “weird.”
Teresa Jackson, Janet Spafford, and Heather Smith, all former girlfriends of defendant, testified they had seen defendant smoke marijuana, but never had seen him ingest LSD. George Willson testified that in July or August of 1986, when he and defendant were conversing about drug use, defendant said he did not consume LSD. James Sciacca testified, however, that defendant once ingested LSD in his presence.
Heather Smith visited defendant on several occasions in the Placer County jail after his arrest. During her last visit, Smith asked defendant why he killed
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Garcia and Sorensen. He said it was partly because he did not like “sleazy women.” He then said, “I had a good thing going while it lasted. Too bad I got caught.” Smith asked defendant why he had not killed her, and defendant replied he had no reason to kill her. Spafford testified that Smith told her defendant had said the reason he had not killed Smith or Spafford was because they had “said yes.”
2.
Defense Evidence
Defendant testified as follows: He met Garcia in June or July 1986, and they became friends. They twice went to Rollins Lake and smoked marijuana together, and once defendant invited Garcia to spend the night at the house where he was staying because she had no place to sleep. Defendant and Garcia never had sexual intercourse on these occasions, although they engaged in “deep kissing” during their visits to the lake. Garcia at that time did not want to be sexually involved with defendant or other men, because she was still in the process of divorcing Trinidad Garcia.
Contrary to what defendant confessed to the authorities, he testified very clearly remembering what happened on the nights he killed Garcia and Sorensen. After defendant picked up Garcia from Chris Paoli’s house on the night of September 7, 1986, Garcia inquired whether he had any marijuana. To avoid being detected, they went to the remote location of Carpenter’s Flat, parked, smoked marijuana, and talked. Garcia mentioned that her bus left at midnight. As Garcia began to speak about her difficulties with her husband, Trinidad, defendant became annoyed because he felt Garcia was nagging and overdramatizing her problems. Defendant began talking about his problems with his own family, but Garcia did not adequately recognize the seriousness of defendant’s troubles, which led to a heated discussion. After things calmed down, the two kissed for about 10 minutes. At some point, Garcia pulled away from defendant and again started talking about her problems with Trinidad. She said, “I can’t do this because of Trino.” They began to argue again about the relative seriousness of their personal difficulties, and Garcia again belittled defendant’s problems by stating they “don’t mean nothing,” telling him he “should just sit there and listen to her and keep [his] mouth shut.” This made defendant very angry and he, in rapid succession, punched Garcia in the face with his fist, lowered the back of the front seat in which she was sitting, and pushed her into the backseat of his car. At some point during these actions, Garcia said what had happened was all defendant’s fault. As Garcia was facedown in the backseat, defendant climbed on top of her, found a piece of wire on the floor of the car, wrapped the wire around Garcia’s neck, and strangled her. Defendant intended to kill Garcia when he put the wire around her neck, but at that point had no intention of having sexual relations with her.
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After a minute or two had passed and Garcia stopped struggling, defendant released the wire and sat back on the seat. Approximately five to 10 minutes later, he became sexually aroused and began undressing Garcia’s body. Defendant testified on direct examination that, while he was doing so, he heard a gurgling sound and saw a bloody substance coming from Garcia’s mouth. He tied the red cloth around her head over her mouth to stop the blood, and then continued undressing her. He was still fully clothed, but 15 to 20 minutes later, he undressed and engaged in sexual activities with Garcia’s body. On cross-examination, defendant testified he already had fully undressed Garcia’s body and himself and was engaged in sodomizing the body when he heard the gurgling sound, saw the blood, and placed the red cloth over her mouth.
When the blood came out of Garcia’s mouth, defendant stopped sodomizing the body, but continued again several minutes later after the bleeding ended. He eventually had an orgasm. About five to 10 minutes later, after again becoming aroused, he turned the body over and had vaginal intercourse until he had another orgasm. While defendant was having sexual relations with Garcia’s body, he tied her arms behind her back.
When he finished, defendant dressed, got out of the car briefly, then returned to the car, threw Garcia’s purse and jacket out the window, and drove away. Defendant drove around Colfax for approximately an hour and a half, during which time he went to his parents’ house, parked in the driveway and honked the horn, and also repeatedly drove past the Colfax police station—all while Garcia’s body was lying uncovered in the backseat of the vehicle. Defendant eventually disposed of Garcia’s body by throwing it down an embankment adjacent to a remote road, and rolled up Garcia’s clothes in the blanket and threw them from his car while en route to the nearby town of Weimar. Defendant did not know why he discarded the various items at different locations.
The next day, defendant returned to the location where he had discarded the body, but could not find it. Defendant proceeded there again on the following day, found the body, and pulled it up to the tree. He sat next to the body, thinking and talking to himself and to the body about his remorse at what had happened, how he hated his mother, and how Garcia’s actions had reminded him of his mother. Defendant returned to the body several times. After his last visit, defendant covered it with a piece of wood, rocks, and leaves.
On October 10, 1986, defendant hitchhiked to Sacramento. He ingested LSD during the trip, and smoked marijuana and consumed alcohol while there. He engaged in sexual activities with two prostitutes and then began
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hitchhiking back to Colfax at approximately 7:30 p.m. He met Sorensen at a restaurant near the highway on Douglas Boulevard, when she approached and asked him to light her cigarette. They decided to hitchhike together. After about 30 minutes, they got a ride, which took them to the Horseshoe Bar Road exit in Loomis. They arrived there about 10:00 p.m., and walked into town because Sorensen needed to make some telephone calls. After she did so, they returned to the freeway exit and smoked marijuana. Sorensen then left to walk back to town to make another phone call. When she returned, they moved off to the side of the road because the weather was cold, smoked more marijuana, and conversed. Sorensen said she thought defendant was cute, and later started “getting real friendly” toward him by inviting him to spend the night in the trailer behind her mother’s house in Auburn and sitting very close to him or on his lap. He, however, was not interested in engaging in sexual relations, because he already had been with the two prostitutes earlier that day and was, in fact, feeling guilty about those earlier activities.
At some point, while defendant was lying on his side on the ground and Sorensen was next to him, she reached over and unbuttoned his pants, reached inside his underwear, grabbed his penis, and moved her head toward him in an attempt to orally copulate him. Defendant became infuriated because he did not want to be touched, and jumped up, grabbing Sorensen by the neck in the process. He held her off the ground, spun her around while shaking her violently, and then threw her down. When she did not move, defendant knew she was dead. He was not thinking clearly when he killed Sorensen; he was very angry because of her unexpected and unwelcome sexual advance.
After realizing Sorensen was dead, defendant stomped around the area for several minutes and punched a nearby fence. He then returned to the body and sat down next to it for approximately 10 minutes. Defendant thought about the Garcia incident and became sexually aroused. He undressed himself as well as Sorenson’s body, and sodomized and had vaginal intercourse with the body. During a second act of sodomy, defendant tied Sorensen’s arms behind her back with her pants. After having an orgasm, he moved the body 15 to 20 feet away, covered it with grass and weeds, and left.
The sexual activities defendant engaged in with Garcia’s and Sorensen’s bodies were more exciting than any prior sexual encounters he had ever had, because he had complete control of the victims. The act of tying the victims’ hands behind their back, even though they already were dead, was thrilling to him and was brought on by (and heightened) his feeling of total control over the two women.
Defendant testified that when he was eight or nine years of age and residing with his family in Charleston, South Carolina, his mother began
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sexually molesting him. The molestation continued while the family resided in Idaho Falls, Idaho, and St. Mary’s, Georgia, when defendant was a teenager. The sexual abuse was frequent, especially in Idaho, and involved various types of sexual acts, including oral copulation and sexual intercourse.
Defendant also saw his mother having sexual intercourse with a 17-year-old neighbor in South Carolina, Ron K., and learned she had exposed her naked body to, and had sexual relations with, other men who visited the family home or were crew members on trains that passed behind the family’s house in Georgia. This behavior occurred in each of the towns in which the family resided, and continued in Colfax until close to the time of the Garcia and Sorensen killings.
Defendant’s mother also was present one night when Ron K. tied a rope to a rafter, placed the rope around defendant’s neck, and kicked away the chair upon which defendant was standing. Defendant hanged by his neck for 10 to 12 seconds before Ron K. removed the rope. Defendant’s mother laughed while defendant was hanging.
After one final incident of molestation in Georgia when defendant was 15 years of age, he refused to participate further and began to stay away from home. Defendant’s absences caused problems with defendant’s father, who believed defendant merely was being rebellious. Defendant, however, felt he could not tell his father why he was avoiding home. When defendant was 16 years of age, he left home permanently after a severe argument with his father about defendant’s behavior.
Defendant moved often during the next year, eventually coming to Colfax. Thereafter, defendant’s family, which included defendant’s two younger brothers and a younger sister, also moved to Colfax, causing more problems because defendant’s parents did not want him residing near them. Defendant was not welcome in their home, and his parents spread rumors about him to make his fife in Colfax difficult. They twice paid him to move away, which he did, although he returned in May 1986 and decided to remain there despite his difficulties.
Defendant testified his mother’s molestation of him caused him to feel angry and defenseless. He also later became confused when he reached sexual maturity and sometimes felt pleasure during the sexual activities he engaged in with his mother. His mother’s exhibitionism and her affairs with Ron K. and other men, which were widely known by other persons in the several communities in which they resided, angered and embarrassed defendant, especially when his friends or others mentioned the subject to him.
Defendant denied having said anything to Heather Smith about the killings or about having “had a good thing going while it lasted.” He admitted he had
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lied to numerous persons, including the authorities, when he first denied having anything to do with the deaths of Garcia and Sorensen. He explained his later confessions had some elements of truth, but that he lied when he stated that Garcia was alive and resisting when he had sex with her and lied when he stated he killed her and Sorensen because he was frightened. He did not tell the authorities he had had sex with the bodies only after the women were dead, because this was embarrassing and he believed it would appear worse if he admitted what happened rather than relating that he had raped the victims while they were alive. He also did not want to discuss the incestuous relationship he had with his mother. Defendant asserted that he believed he simply could admit having killed the women, and that would end the questioning. When the officers continued to press him for details, he gave false answers because he wanted the questioning to stop—but he also acknowledged voluntarily speaking with the officers and being advised he could stop the interviews at any point, and that they in fact had honored defendant’s request to stop on one occasion when he complained of a headache. Defendant testified that he decided to tell the truth at trial because he had learned from a defense investigator that defendant’s younger brother had legal problems relating to a sexual incident, and defendant did not want his brother to be in defendant’s position at some point in the future. Defendant, however, also admitted learning before giving his testimony at trial that it might benefit his defense if he were to testify he had not intended to have sex with the victims until after he had killed them.
Philip Bodily, who resided near defendant from 1975 to 1977 in South Carolina, testified that he, too, observed defendant’s mother having sex with Ron K. He never saw defendant’s mother engage in sexual behavior with defendant, but testified she did act in a sexually provocative manner toward Bodily on two occasions and Ron K. teased defendant about his mother’s sexual activities.
The parties stipulated that James and Sara Jo Ennis were defendant’s neighbors when his family resided in Georgia, and would testify that defendant’s mother often stood nude at the rear door of the house and sometimes would open and close her blouse while trains were passing on the tracks behind the house, but they did not see her board any of the trains.
Jeffrey Miner and Ronald Ballard testified that, on approximately five or 10 occasions over a two-month period in 1985, a woman standing at a window in defendant’s grandfather’s house in Colfax exposed her breasts by lifting up her shirt as Miner and Ballard drove by on the road in front of the house. Once, the woman exposed herself to Miner as he drove by, and then about 15 to 20 minutes later Miner and Ballard drove on a dirt road approximately 50 yards behind the house in order to avoid seeing the woman, but she came out
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on the road and again exposed herself. Scott Greger also saw a woman at that house exposing herself on numerous occasions during the four months he resided on the same street. Greger later learned the woman was defendant’s mother and he told defendant of this activity, but defendant appeared unconcerned.
Dr. Richard Yarvis, a psychiatrist employed by the defense, had treated victims of incest and molestation. He met with defendant for a total of approximately 20 hours. According to Dr. Yarvis, boys who are victims of incest committed by their mothers are more likely to become psychotic than girls who have incestuous relationships with their fathers. Both types of victimization, however, have “disastrous” impacts upon the victims. Victims of parental incest often have significant feelings of guilt, despondency, anxiety, and anger created by their powerlessness at being compelled by a parent to engage in behavior that the victim knows is wrong. Dr. Yarvis considered it very unlikely that a victim of parental incest would be “normal” in the psychological sense. Rather, the three likely outcomes were severe psychosis, in which the victim would be unable to distinguish reality from fantasy; less severe mental illnesses, such as chronic depression and drug and alcohol abuse; and antisocial behavior, such as criminal activity and sexual promiscuity.
During their meetings, defendant described to Dr. Yarvis an unpleasant childhood in which his father, who was in the Navy, was mostly absent and was often physically abusive to defendant when he was home. Defendant told Dr. Yarvis that his mother was sexually provocative, promiscuous, and an exhibitionist, and carried on an incestuous relationship with defendant for several years. Although Dr. Yarvis did not believe defendant was psychotic, defendant exhibited low self-esteem and nervousness at close physical proximity to others, and had a serious temper with a “short fuse.” Defendant unreasonably interpreted a remark made by Dr. Yarvis during one interview, and on another occasion defendant fell out of his chair and became so angry, distressed, and embarrassed that Dr. Yarvis became mildly frightened that defendant might become violent.
Dr. Yarvis testified it is rare for a woman to be an exhibitionist, and that exhibitionists rarely commit more active sexual crimes. He also stated that necrophilia, or sexual activity with dead bodies, is quite abnormal and rare, and he had no clinical or research experience in that area.
Defendant re-called his mother as a witness for the defense. She denied, however, that she had an incestuous relationship with defendant, that she had sexual relations with Ron K. or any train crew members, or that defendant had been subjected to a hanging in her presence. She denied ever having
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intentionally exposed her body to anyone at any of the places in which she had resided. She said defendant had been a liar since he was a young child, and had left the family home because he would not follow the rules, rather than because of any incestuous relationship with her.
3.
Prosecution Rebuttal Evidence
The prosecution re-called the lead investigating officer, who testified that photographs of defendant’s vehicle showed that the lever that would lower the back of the driver’s seat was on the outside of the seat, near the door. The officer did not photograph or examine the lever for the front passenger seat, and did not know whether the front seats would fully recline.
C.
Penalty Phase
1.
Prosecution Evidence
a.
Murder of Elizabeth Lactawen
After defendant was arrested, officers from the Sacramento County Sheriff’s Department interviewed him concerning a series of other homicides in the Sacramento area. During the first interview, defendant waived his
Miranda
rights and denied involvement in any other murders. During a second interview, defendant continued to deny any role in the murders the officers were investigating, but confessed to another murder that had occurred in the City of Sacramento. Investigators from the Sacramento Police Department were summoned and they interviewed defendant for a third time regarding the murder of Elizabeth Lactawen.
On May 10, 1986, a homeless man reported finding a dead body near the Sacramento River in an area overgrown with vegetation and known as a homeless encampment. Responding police officers found a woman’s body, mostly covered by plastic and cardboard. The unclothed body of Elizabeth Lactawen was not yet cold to the touch. Lactawen was 24 years of age, was four feet five inches tall, and weighed 76 pounds. A cloth gag was tied around her mouth, and her arms were tied behind her back with an electrical cord. There were bruises around her neck and left breast, and blood and other fluids coming out of her nose. The pathologist who performed the autopsy believed Lactawen had been strangled with a thin rope or wire.
There also was evidence of sexual assault, including blood clots in the vagina and on the cervix and bruising on Lactawen’s inner thighs, injuries which in the pathologist’s opinion could have been caused by someone forcibly spreading open her legs and raping her. The bruises were inflicted
*105
before she died. Clothes matching Lactawen’s small stature were scattered around the area. There also was fecal matter in the pubic area, which possibly was caused by a person sodomizing Lactawen before having vaginal intercourse with her. There was no tearing of the vagina or anus or evidence of sperm. Lactawen had no alcohol or drugs in her blood.
During the interview with the Sacramento police officers, defendant said he was sitting near the Sacramento River when Lactawen walked by. They began talking, and then walked to a more secluded spot nearby, where they had consensual sex. They spoke some more, and defendant became angry and strangled her. He did not remember how he strangled her or whether he tied her up or used a gag.
5
b.
Childhood Sexual Assaults
In 1979, when defendant was 14 years of age and residing in Idaho Falls, Idaho, he sexually assaulted a six-year-old girl, Rebecca Y., and two boys, 12-year-old Brian M. and 11-year-old Cori H., in two separate incidents. On March 17, 1979, Rebecca Y. was walking home from her friend’s house when a teenage boy told her he knew her mother and that Rebecca should do what he said or she would be in trouble. The boy promised he would give her money if she did what he said. Rebecca positively identified defendant in court as the boy.
Defendant led Rebecca to an area under a bridge and told her to do what he said or he would kill her with a rock. He removed his penis from his pants and told Rebecca to put her mouth on it while forcing her head down. When Rebecca’s babysitter called for her, defendant ran away.
Rebecca’s father received a telephone call about what had happened and drove to the bridge, where he saw a young man jump out of the canal and get on a bicycle. Rebecca’s father chased after the boy, eventually tackling him. The zipper of the boy’s pants was down, and the boy said he “did not hurt her.” The father could not recognize defendant in court, but did identify a picture of him from that time period as looking like the boy.
When a police officer arrived, the boy identified himself as David Allen Rundle. Defendant initially denied having assaulted Rebecca, but later that
*106
day at the police station admitted taking her under the bridge, threatening to kill her with a rock, and trying to “have sex” with her.
On April 24, 1979, Brian M. and Cori H. were riding their bikes when they came across a person jogging who said he knew of good trails for bike riding. During his testimony Brian identified defendant as this person. The boys agreed to follow defendant, who led them to the bottom of a 15- to 20-foot-deep pit in a very remote area. Once there, defendant said he had a gun in his pocket and threatened he would either shoot the boys or crush them with a rock if they did not do what he said. Defendant ordered the boys to disrobe and then told Cori to lie on the ground and Brian to “fuck him.” When Brian said he did not understand, defendant told him to lie on top of Cori, which he did. Defendant then told them to get up, took out his penis, and had the boys orally copulate him until he ejaculated. He then left with the boys’ clothes and told them not to leave the pit for 15 minutes or he would shoot them, and not to tell anyone about what had happened or he would find them and kill them. After the boys left the pit, they found their clothes nearby, returned home, and reported what had happened. Later, Brian was taken to a house, where he identified defendant as the perpetrator.
c.
Marital Abuse
Defendant’s ex-wife testified she married defendant in March of 1984 and separated from him in July of 1985. Defendant was physically violent toward her during the marriage. He often struck her, once pushed her from a moving car, and on one occasion during an argument threw her down and pounded her head on the floor approximately 20 times. On many occasions defendant also physically forced her to engage in oral copulation and sodomy. Defendant continued with these acts even though on various occasions she told him to stop, vomited while his penis was in her mouth, and tried to keep away from him.
d.
Psychiatric Testimony
Dr. Irwin Lyons, a psychiatrist, interviewed defendant on behalf of the district attorney’s office soon after defendant’s arrest, in order to evaluate defendant’s mental status. Defendant described the incidents with Rebecca Y., Brian M., and Cori H., as well as the Garcia and Sorensen murders. Defendant did not mention that Sorensen had attempted to orally copulate him, or that his mother sexually molested him as a child. Defendant said his family rejected him, and his problems with his family caused him to have attacks of extreme rage during which he could not control himself. Dr. Lyons did not believe defendant suffered from any psychosis, but concluded he did
*107
have a personality disorder arising partly from deficient child-rearing practices by his parents. Defendant was egocentric, immature, lacking in capacity for empathy, and amoral. He was subject to impulsive behavior during his rage attacks.
2.
Defense Evidence
Dr. Richard Thomas, a psychologist, treated defendant in Idaho after his sexual assault on Rebecca Y. In his opinion, defendant at that time had an “explosive personality disorder,” which commonly involves overreacting to a situation, blaming others, and making excuses for one’s difficulties and inappropriate actions. Defendant was not psychotic or schizophrenic.
At counseling sessions, defendant refused to speak about the assault, a circumstance that concerned Dr. Thomas because defendant also said he enjoyed inflicting pain upon others and, in the doctor’s opinion, had a “real high potential ... to act out.” Defendant’s mother encouraged his refusal to speak about the incident, thus negatively affecting defendant’s ability to accept responsibility and obtain any benefit from treatment. Dr. Thomas felt defendant’s family had problems in communicating and that defendant’s mother was overwhelmed by having to care for the four children during the father’s frequent, and at times lengthy, absences. Dr. Thomas, having provided marriage counseling to defendant’s parents after defendant was sent to a state juvenile facility, believed they had made progress in addressing their problems.
Defendant’s aunt and uncle, George and Bonnie Mae Russell, testified that defendant was a “bright, alert” child and was “full of promise and potential.” According to them, defendant’s mother singled defendant out for discipline and often verbally abused him, never acting in a motherly way toward him. George testified he saw defendant’s mother attempt to stab his father during a fight that occurred in defendant’s presence. When defendant was no more than a year and a half old, George also observed what he thought was evidence of sexual abuse upon seeing defendant’s penis. In George’s opinion, defendant’s mother’s denial of abuse was insincere, and she often lied. George viewed defendant as a victim of his mother’s abusive parenting and of dealers who supplied defendant with drugs.
Several of defendant’s past employers testified he was a hard-working, conscientious, and trustworthy employee. Deborah Peters, with whom defendant resided in Nevada after the murders, testified he was nice and helpful and that she would not have expected him to be charged with murder. Sherry Couzens, an instructor in a high school equivalency program who met with defendant in jail once a week for approximately two months, testified defendant completed
*108
the program while incarcerated and was a quiet, focused, and thorough student. A sergeant at the jail testified defendant provided deputies with information concerning another inmate’s plan to escape from the jail and helped them locate two prisoner-made weapons.
A defense investigator testified defendant’s ex-wife said defendant’s relationship with his family was very strained and she never saw them act affectionately toward him. She also said defendant told her his mother was not faithful to his father, and his mother had strange sexual “quirks.” Defendant’s ex-wife told another investigator she wanted to “pull the switch” on defendant and have a party to celebrate.
3.
Prosecution Rebuttal Evidence
The prosecution’s investigator testified that George Russell, defendant’s uncle who testified on defendant’s behalf, stated he felt very strongly that the death penalty should not be imposed in this case because defendant was not fully responsible for the crimes. Additionally, Russell earlier told the investigator he was unaware of any sexual conduct between defendant and his mother; Russell had not mentioned observing any evidence of sexual abuse when defendant was an infant or of defendant’s being physically disciplined by his parents.
Donald Rundle, defendant’s brother, testified that defendant was not treated differently from any of his siblings, was not subjected to violent discipline or verbal abuse, and refused to follow the family’s rules. Donald saw marijuana in defendant’s possession, but never observed other drugs. Donald told a defense investigator that after defendant was arrested for the murders, their father was so upset that “if [defendant] was to get hit by a car in front of Dad, Dad would turn around and walk away sooner than help him.”
4.
Defense Surrebuttal Evidence
The defense investigator testified that Donald had said defendant’s father would rather run over defendant with a car than stop for him, and that this statement referred to the father’s attitude before defendant was arrested for the murders.
II. Discussion
A.
Sufficiency of Appellate Record
Defendant contends his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution to a record adequate to permit meaningful appellate review were violated by the trial
*109
court’s failure to order transcribed (1) a proceeding in which it was established that defendant, contrary to his prior wishes, had chosen not to be absent from the penalty phase of the trial, and (2) in-chambers discussions regarding jury instructions. These claims fail.
6
1.
Defendant’s Decision to Attend the Penalty Phase
During a noon recess in the presentation of the prosecution’s opening statement at the penalty phase of the trial, defendant told court staff he did not wish to be present for the remainder of the trial. The trial court subsequently mentioned this on the record outside the presence of the jury, and a second recess was taken to allow defendant to discuss the matter with his attorneys. After that recess, the court held an in camera meeting with defense counsel, at which counsel requested the court adjourn for the day to allow more discussions with defendant. Back in open court, the court adjourned the proceedings until the following morning and also advised defendant the court was concerned that his decision be made in a careful, rational, calm, and reflective manner, mentioning to him that his absence during the penalty phase was likely to “make it worse” for him. Defense counsel were directed to “report” to the court by 8:30 the next morning, at which point the prosecution and the jurors would be notified as to when the proceedings would resume.
The following morning, on the record and outside the presence of the jury, the trial court “confirm[ed] for the record that at present there is no request from Mr. Rundle at this time to be absent.” Defense counsel agreed, and trial proceeded with defendant present.
Defendant now contends the “court and defense counsel met on the morning o[f] May 25, 1989, to determine whether [defendant] was willing or
*110
able to participate in the remainder of the trial.” In the absence of a record of these discussions, defendant argues, it is impossible to determine whether defendant was competent to proceed with trial, or whether some improper influence, including possible forced medication, was exerted upon defendant in order to convince him to change his decision to be absent.
Defendant, however, has not established that any hearing actually occurred that morning that could have been transcribed. The trial court merely directed defense counsel to contact the court in the morning before proceedings began and report to the court defendant’s decision so the jury and the prosecution could be notified when proceedings would resume. The court then confirmed on the record that defendant no longer wished to absent himself from the proceedings, which presumably is what defense counsel reported earlier that morning. Unlike other instances in which the record explicitly mentions off-the-record discussions, here there is no indication anywhere in the record, including in the settled statements on appeal, that any discussion between counsel and the court took place regarding defendant’s ultimate decision to attend the proceedings. Defendant’s suggestion a meeting occurred at which such a discussion transpired is no more than unsupported speculation, and he has not shown the existing record is inadequate in this respect.
2.
Jury Instructions
In contrast to the situation discussed above, it is undisputed that a number of informal meetings concerning proposed guilt and penalty phase jury instructions were held off the record and hence were not transcribed. The trial court instead afforded defendant the opportunity to place on the record after the instructions were finalized any objections to the jury instructions to be given or requests for other instructions that were not resolved to his satisfaction during the conferences. As the trial court and the parties later acknowledged, this procedure was erroneous. Section 190.9, subdivision (a)(1), requires that all conferences and proceedings in a death penalty case must be conducted “on the record with a court reporter present.” We previously have held, however, that such an error is not reversible per se; instead the defendant must demonstrate prejudice. (See
People
v.
Freeman
(1994) 8 Cal.4th 450, 509 [ 34 Cal.Rptr.2d 558 , 882 P.2d 249 ];
People v. Cummings
(1993) 4 Cal.4th 1233, 1333, fn. 70 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) We decline defendant’s request to reconsider this holding.
“[S]tate law entitles a defendant only to an appellate record ‘adequate to permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective
*111
appellate review. [Citations.] Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. [Citation.] The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.]”
(People
v.
Rogers
(2006) 39 Cal.4th 826, 857-858 [ 48 Cal.Rptr.3d 1 , 141 P.3d 135 ]
(Rogers))
After the unreported discussions regarding jury instructions at each phase of the trial, the trial court discussed the proposed final instructions in open court and invited counsel for both sides to place on the record any continuing objections to those instructions, including requested instructions that were not accepted by the court. In reviewing the guilt phase instructions, the court specifically warned counsel that “your silence after a [jury instruction] number is read indicates that we are all in concurrence. If I don’t stop myself, stop me because that will be the way we reflect the rulings.” Similarly, at the penalty phase, on-the-record, substantive discussions took place concerning all of the instructions before the final instructions were adopted, during which the trial court invited the defense to state agreement or disagreement with the instructions. Defense counsel testified during the record settlement proceedings that all unresolved objections and requests were placed on the record during these transcribed proceedings, and the prosecutor stated that he too confirmed from his notes that all of the defense objections were stated on the record.
Defendant observes, however, that even with these explanations thus placed into the record, the specifics as to whether additional objections were raised and how those objections were resolved so as to eliminate any ongoing disputes are absent from the record.
7
He contends that because of this shortcoming, he cannot definitively determine which instructions initially were objected to or requested, whether the resolution of any such objections was “the correct outcome or the result of an erroneous application of law or an unreasonable interpretation of the evidence,” or whether some instruction that was supported by the evidence was intentionally or negligently omitted.
Although there is a gap in the record of the process by which the final jury instructions were compiled, defendant has not carried his burden of demonstrating that this gap in any way affects our ability to undertake meaningful appellate review of the jury instructions. The instructions actually given to the jury are contained in the record, and defendant was afforded the opportunity to make, on the record, all his objections to those instructions, which he did. The record, therefore, is adequate to allow us to determine which objections defendant preserved for appeal and to review the merits of these
*112
objections. It is unfortunate that we do not have the added benefit of a more complete record of the bases for the preserved objections or requests, any response to them from the prosecution, and the reasoning of the trial court in overruling an objection or denying a request, but this circumstance does not prevent us from adequately reviewing the preserved challenges to the instructions. (See
People v. Huggins
(2006) 38 Cal.4th 175, 204-205 [ 41 Cal.Rptr.3d 593 , 131 P.3d 995 ]
(Huggins).)
8
We also are able to adequately review claims—several of which defendant has raised and are addressed below—that the trial court had a duty to give certain instructions on its own motion, because we may assume that when the existing record is silent, no invited error by defense counsel occurred. (Cf.
People v. Young
(2005) 34 Cal.4th 1149, 1203 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ]
(Young)
[“because it cannot be ascertained whether defense counsel specifically requested clarification [of an instruction], we shall give defendant the benefit of the doubt and find the issue preserved for appeal”];
People
v.
Cooper
(1991) 53 Cal.3d 771, 830 [ 281 Cal.Rptr. 90 , 809 P.2d 865 ] [“ ‘the court’s responsibility [on its own motion to give a required instruction] could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction’ ”].)
Although defendant’s ability to challenge the adequacy of his attorneys’ representation vis-á-vis jury instructions may be limited at this point by the absence of a complete record, defendant has not shown that he has been prejudiced in his ability to advance any claims of ineffective assistance of counsel he might have raised on appeal. Defendant has not established that had these conferences been transcribed, the record would demonstrate defense counsel’s understanding of the law and counsel’s tactical reasons, if any, for objecting to or requesting particular instructions, or choosing not to do so. (See
People
v.
Mendoza Tello
(1997) 15 Cal.4th 264, 266-267 [ 62 Cal.Rptr.2d 437 , 933 P.2d 1134 ].)
Accordingly, the error in failing to transcribe the jury instruction conferences was harmless under the applicable state
(People v. Watson
(1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]
(Watson))
and federal
(Chapman v. California
(1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705 , 87 S.Ct. 824 ]) standards.
B.
Denial of Pretrial Motion to Exclude Defendant’s Confessions
As mentioned above, defendant participated in a series of eight interviews with representatives of law enforcement after he was arrested: the first three
*113
with officers from the Placer County Sheriffs Department regarding the murders of Garcia and Sorensen; the next two with officers from the Sacramento County Sheriff’s Department regarding other murders they were investigating that had similarities to the Garcia and Sorensen cases; one interview with officers from the City of Sacramento Police Department regarding the Lactawen murder; another interview with Sacramento County Sheriff’s officers; and finally an interview with Dr. Irwin Lyons, a psychiatrist who was evaluating defendant on behalf of the district attorney’s office. Defendant was advised repeatedly of his
Miranda
rights, waived those rights, and agreed to talk. Nonetheless, he moved before trial to suppress the statements he made to the officers as involuntary and as obtained in violation of
Miranda,
on the ground the waivers were not knowingly, intelligently, and voluntarily made. The trial court, conducting a hearing at which several officers testified, found the waivers valid and the statements voluntary. Defendant’s motion later was expanded to include the statements he made to Dr. Lyons, and a second pretrial hearing was held at which Dr. Lyons, various peace officers, and defendant testified.
9
In light of the new testimony offered, the trial court reconsidered its earlier ruling on the admissibility of the statements made to the officers, but again found that all of the statements, including those made to Dr. Lyons, were voluntary and that defendant’s
Miranda
waivers were valid. Critical to the trial court’s decision were its findings that (1) although the Sacramento County officers made some representations to defendant about possible leniency and psychological treatment, these statements were not specific promises but were statements of the “generalized benefit to be gained by speaking”; (2) these representations were not the cause of defendant’s decision to make the statements; and (3) defendant never invoked his right to remain silent or to the assistance of counsel, even though he once asked the Sacramento County officers to stop questioning him, and mentioned an attorney during the interview with Dr. Lyons.
During the guilt phase of the trial, over defendant’s renewed objection, a Placer County officer testified concerning defendant’s confessions to the Garcia and Sorensen murders. At the penalty phase, again over renewed objection, tape recordings of defendant’s confessions to the Lactawen murder were played to the jury, and Dr. Lyons testified concerning defendant’s confessions. On appeal, defendant contends the trial court erred by not suppressing his statements. We are not persuaded.
*114
The admission at trial of a defendant’s statements made involuntarily to government officials violates the defendant’s federal due process rights under the Fifth and Fourteenth Amendments.
(Dickerson
v.
United States
(2000) 530 U.S. 428, 433-434 [ 147 L.Ed.2d 405 , 120 S.Ct. 2326 ]
(Dickerson).)
Similarly, a defendant must be advised of his or her
Miranda
rights, and must make a valid waiver of these rights, before questioning begins or any statements resulting from interrogation can be admitted.
(Id.
at p. 435;
Miranda, supra,
384 U.S. at p. 479.)
When a defendant challenges the admission of his or her statements on the ground they were involuntarily made, the prosecution must prove by a preponderance of the evidence the statements were, in fact, voluntary.
(People v. Guerra
(2006) 37 Cal.4th 1067, 1093 [ 40 Cal.Rptr.3d 118 , 129 P.3d 321 ]
(Guerra).) A
statement is involuntary if it is “not ‘ “the product of a rational intellect and a free will.” ’ ”
(Mincey v. Arizona
(1978) 437 U.S. 385, 398 [ 57 L.Ed.2d 290 , 98 S.Ct. 2408 ]
(Mincey).)
The court in making a voluntariness determination “examines ‘whether a defendant’s will was overborne’ by the circumstances surrounding the giving of a confession.”
(Dickerson, supra,
530 U.S. at p. 434 .) Coercive police tactics by themselves do not render a defendant’s statements involuntary if the defendant’s free will was not in fact overborne by the coercion and his decision to speak instead was based upon some other consideration.
(Colorado v. Connelly
(1986) 479 U.S. 157, 167 [ 93 L.Ed.2d 473 , 107 S.Ct. 515 ]
(Connelly); People v. Maury
(2003) 30 Cal.4th 342, 404-405 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ]
(Maury).)
The determination whether the authorities improperly coerced a defendant’s statements involves an evaluation of the totality of the circumstances, including the nature of the interrogation and the circumstances relating to the particular defendant.
(Dickerson, supra,
530 U.S. at p. 434 .)
The same inquiry applies when a court evaluates the voluntariness of a
Miranda
waiver.
( Connelly, supra,
479 U.S. at pp. 169-170.) Such a waiver must be knowingly and intelligently made, meaning that the defendant must have been capable of freely and rationally choosing to waive his or her rights and speak with the officers.
(People v. Frye
(1998) 18 Cal.4th 894, 988 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ]
(Frye).)
Even if a defendant voluntarily has waived his or her
Miranda
rights to remain silent and to have counsel present, the defendant later may revoke the waiver. In such a case, “once a defendant has indicated an intent to assert his right to remain silent or to counsel, all further attempts at police interrogation should cease.”
(People v. Jennings
(1988) 46 Cal.3d 963, 977 [ 251 Cal.Rptr. 278 , 760 P.2d 475 ].) “In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must
unambiguously’
assert his right to silence or
*115
counsel.
(Davis v. United States
(1994) 512 U.S. 452, 459 [ 129 L.Ed.2d 362 , 114 S.Ct. 2350 ]
(Davis),
italics added.) It is not enough for a reasonable police officer to understand that the suspect
might
be invoking his rights.
(Ibid.)
Faced with an ambiguous or equivocal statement, law enforcement officers are not required under
Miranda, supra,
384 U.S. 436 , either to ask clarifying questions or to cease questioning altogether.
( Davis, supra,
512 U.S. at pp. 459-462.)”
(People v. Stitely
(2005) 35 Cal.4th 514, 535 [ 26 Cal.Rptr.3d 1 , 108 P.3d 182 ]
(Stitely).)
A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.
(Ibid.; Jennings, supra, 43
Cal.3d at p. 978;
People v. Silva
(1988) 45 Cal.3d 604, 629-630 [ 247 Cal.Rptr. 573 , 754 P.2d 1070 ]; see also
Miranda, supra,
384 U.S. at pp. 473-474.)
On appeal, we review independently the trial court’s legal determinations of whether a defendant’s statements were voluntary
(Guerra, supra,
37 Cal.4th at p. 1093 ), whether his
Miranda
waivers were knowingly, intelligently, and voluntarily made
(People v. Mayfield
(1993) 5 Cal.4th 142, 172 [ 19 Cal.Rptr.2d 836 , 852 P.2d 331 ]
(Mayfield)),
and whether his later actions constituted an invocation of his right to silence
(People v. Gonzalez
(2005) 34 Cal.4th 1111, 1125 [ 23 Cal.Rptr.3d 295 , 104 P.3d 98 ]). We evaluate the trial court’s factual findings regarding the circumstances surrounding the defendant’s statements and waivers, and “ ‘accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence.’ ”
(Ibid.; Guerra, supra,
37 Cal.4th at pp. 1092-1093.)
1.
Invocation of Right to Silence at First Interview
Defendant first contends he invoked his right to remain silent at the conclusion of the first interview with the Placer County officers at the Carson City jail when he told them he wanted to stop the interview because he had a headache and wished to return to his cell. Defendant never raised this claim in the trial court. He filed only a generic written motion requesting the suppression of all statements made to the authorities, without any discussion of which particular grounds for suppression existed; indeed, his attorney conceded after the first suppression hearing that there was no basis to challenge the admission of the statements made by defendant to Placer County officers on grounds of involuntariness, and never mentioned an invocation of the right to silence. No further testimony or argument regarding an invocation of the right to remain silent during the interviews conducted by the Placer County officers was offered at the second hearing, and the trial court made no finding regarding whether defendant invoked his right to silence at the conclusion of the first interview.
*116
“Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was ‘timely made and so stated as to make clear the specific ground of the objection.’ Pursuant to this statute, ‘ “we have consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable.” ’ [Citation.]”
(People v. Demetrulias
(2006) 39 Cal.4th 1, 20-21 [ 45 Cal.Rptr.3d 407 , 137 P.3d 229 ]
(Demetrulias).)
“To satisfy Evidence Code section 353, subdivision (a), the objection or motion to strike must be both timely
and
specific as to its ground. An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a ‘placeholder’ objection stating general or incorrect grounds (e.g., ‘relevance’) and revise the objection later in a motion to strike stating specific or different grounds.”
(Id.
at p. 22.)
Thus, defendant’s entirely generic motion to exclude all of his statements to law enforcement officers, coupled with the absence of specific argument that defendant had invoked his right to silence at the end of the first interview, failed to preserve this claim for appeal.
10
(See also
People
v.
Partida
(2005) 37 Cal.4th 428, 434-435 [ 35 Cal.Rptr.3d 644 , 122 P.3d 765 ]
(Partida).)
Even if this claim had not been forfeited, it is without merit. Defendant’s request to stop the interview at the Carson City jail was not an assertion of his right not to incriminate himself. Defendant already had confessed to the Garcia murder and provided the officers with a map showing where the body was located. Defendant had not expressed any reluctance to speak further about the murder before asking to stop the interview because he had a headache. Immediately after defendant asked to end the interview, the officers, in fact, stopped the questioning, and asked him only whether they could pose more questions during the next few days, to which he answered, “Yes.” Defendant never testified during the suppression hearing that when he asked to stop the interview because he had a headache, he at that time had decided not to speak further with the officers at any future occasion concerning the crimes. In fact, defendant’s testimony was to the contrary: that he always intended to cooperate with the authorities because he thought “that’s what you do.” It is clear from this record that defendant did not invoke his right not to incriminate himself, but merely asked for a break from questioning. The statements made by defendant during the later session with the officers, including the questioning by the Sacramento officers, therefore were
*117
not the “fruits” of any constitutional violation resulting from the continued questioning of defendant after he asked for a temporary suspension of questioning for the night.
2.
Asserted Inducements by Sacramento County Officers
Defendant contends his confessions to the Lactawen murder, which were admitted at the penalty phase of the trial, should have been suppressed because they were the product of improper coercion by officers from the Sacramento County Sheriff’s Department. We disagree.
After defendant confessed to the Garcia and Sorensen murders, the Placer County officers contacted homicide investigators in the Sacramento County Sheriff’s Department who were investigating a series of other murders of young women in the Interstate Highway 5 corridor in Sacramento County (the 1-5 murders). During the first interview with the Sacramento County officers, defendant denied any involvement in any murders other than the two to which he had confessed. In a second interview, defendant continued to deny involvement in the 1-5 murders but admitted having committed another murder, which turned out to be the Lactawen homicide. After defendant provided details of that incident, the officers realized the murder was under the jurisdiction of the City of Sacramento Police Department and contacted homicide officers in that agency. Those officers then conducted a third interview, during which defendant provided more details of the Lactawen murder.
11
These interviews were tape-recorded, and a redacted recording of the second interview, with references to the 1-5 murders excised, was played to the jury along with a recording of the third interview.
Defendant argues these recorded statements were involuntary, and thus improperly admitted, because his will was overborne when the Sacramento County officers, during their second interview, threatened to withhold psychiatric treatment if defendant did not confess, promised him leniency and treatment if he did confess, and predicted defendant’s mental difficulties would seriously worsen if he did not talk but would lessen if he did. The trial court found the officers did make “inducements” but their statements did not extend beyond suggestions defendant would realize some “generalized benefit” by speaking. More significantly, the court found the representations that were made were not the cause of defendant’s decision to make the statements. Rather, the trial court concluded, defendant chose to confess “because of his preexisting belief that that’s what you did” and his desire to “unburden himself.”
*118
On appeal, defendant argues primarily that the trial court erred by finding that the actions of the officers did not constitute improper coercion. We need not resolve that question. Even assuming—without deciding-—the statements made to defendant might constitute improper promises or threats under some circumstances, we conclude the trial court did not err by finding that a preponderance of the evidence in this case established defendant’s decision to confess to the Lactawen murder was voluntary and was “completely separate and apart from any apparent inducements that [the officers] might have given to him.” (See
Connelly, supra,
479 U.S. at p. 167 ;
Maury, supra,
30 Cal.4th at pp. 404-405.)
Defendant’s challenge to the trial court’s finding of a lack of causation centers on the circumstance that his confession to the Lactawen murder followed close in time to when the officers made their representations in attempting to convince him to talk. He argues, relying upon the Court of Appeal’s decision in
People
v.
Cahill
(1994) 22 Cal.App.4th 296, 316 [ 28 Cal.Rptr.2d 1 ], that there is a rebuttable presumption his confession resulted from the representations, because of their temporal proximity. Assuming, without deciding, defendant’s reading of
People
v.
Cahill, supra,
22 Cal.App.4th 296 , is a correct statement of the law,
12
we nonetheless conclude the totality of the circumstances in this case establishes defendant’s confession was not the product of the representations made by the officers.
First, the tape-recorded statements upon which defendant relies were made after defendant had admitted committing a third murder. As the officer testified at the suppression hearing, the first interview conducted by the Sacramento County officers concerning the 1-5 murders was unproductive. The officers then returned a few minutes later with their supervisor, who “covered a lot of the ground [they] had already talked about . . . and got the
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same sort of denials that [they] had earlier encountered.” Approximately 27 minutes into the second interview, defendant told the officers he had not committed any of the killings about which they were questioning him, but had committed another murder. It was at this point that the tape recorder was turned on. Although this tape recording begins with the officers discussing possible benefits defendant might receive by telling the officers about the murder, defendant’s initial admission obviously came before
those
particular statements. Indeed, defendant testified at the hearing that the first time the Sacramento County officers mentioned obtaining help for him was when an officer made a statement about another murderer who supposedly was placed in a prison psychiatric facility—a statement found more than one minute into the tape (that is, after defendant had admitted committing another murder). There was no testimony at the suppression hearing concerning any promise, threat, or other inducement having been made before the tape recorder was turned on. Thus, the record does not contain evidence suggesting the officers made any representations before defendant confessed to the Lactawen murder, although defendant, apparently, had not yet supplied them with the details.
Second, as the trial court observed, it appears from statements made by defendant during the interviews that he never believed he would receive the benefits discussed by the officers. Despite their statements that defendant could receive help if he talked, he repeatedly expressed his belief that even if he spoke to them he would be sent to prison, forgotten about, and receive no help. He continued to voice this belief even after providing the details of the murder. At no point during the interview did defendant explicitly state or even imply that he had been convinced otherwise. Although defendant testified at the
suppression hearing
that he believed, even before speaking to the authorities, he would receive help from them, this after-the-fact, self-serving testimony is directly contradicted by the prior contemporaneous expressions of his state of mind: that he would not receive any help, but instead would be sent to prison and forgotten.
13
In fact, on cross-examination, defendant testified he told the officers during the interviews he would not be offered a beneficial deal because “the way the people were cussing at me and stuff out in the booking room, I figured it was over.”
14
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Third, defendant’s own testimony at the suppression hearing established that his decision to confess to the three murders was based upon his own preexisting personal belief that a person should cooperate with the authorities and tell them what he knows about a crime, completely separate from any representations made by the officers. On direct examination, when asked about his
Miranda
waivers, defendant said, “I figured I had to cooperate. I always did before. When I got in trouble in Idaho, I did it then.” On cross-examination and redirect examination, defendant reiterated many times his belief that confessing is “what you do when you are caught by the law.” Indeed, the trial court examined defendant briefly, specifically asking him: “When you say you felt you had to cooperate with [the officers], that was something you felt from before this ever started and you believed that all the way through?” Defendant responded, “Yes, because you tell them what you know.”
15
In addition, the circumstance that defendant had confessed to the Placer County officers concerning two murders, although those officers had not given any “inducements,” is further evidence of his state of mind concerning his willingness to admit his role in the Lactawen murder regardless of any representation made by the Sacramento County officers.
In sum, there is ample evidence supporting the conclusion that defendant’s decision to confess to the Lactawen murder was not the product of any coercive tactic by the officers, but rather was based upon defendant’s free will and his preexisting belief that when questioned by the authorities, a person should tell what he knows. This evidence substantially outweighs any implication arising from defendant’s decision to confess to the Lactawen murder a relatively short time after the officers made their representations about defendant’s receiving help—the primary circumstance cited by defendant in support of his claim of error. Accordingly, the trial court properly denied the motion to suppress these statements.
3.
Statements to Dr. Lyons
Defendant challenges the admission of Dr. Lyons’s testimony regarding statements made by defendant during the interview conducted in the Placer County Jail soon after his arrest. Defendant contends these statements should have been excluded on the ground the waiver of his
Miranda
right to remain silent was not knowing, intelligent, and voluntary, because his preoccupation with receiving psychological treatment rendered him unable to appreciate the circumstance that Dr. Lyons was acting on behalf of the prosecution. Defendant also claims his statements were involuntary because they were the
*121
product of the prosecution’s “highly disturbing practice” of sending a psychiatrist to visit a mentally disturbed defendant. Defendant never raised these specific claims below, and the trial court accordingly made no finding on these issues.
16
The only issues raised and addressed by the trial court in this regard were whether defendant had invoked his right to silence at the conclusion of the interview with the Sacramento County officers immediately prior to Dr. Lyons’s interview, and whether defendant invoked his right to counsel during Dr. Lyons’s interview.
17
Defendant does not renew those issues on appeal, and therefore they are waived. (Cal. Rules of Court, rule 8.204(a)(1)(B) [former rule 14(a)(1)(B)];
People
v.
Wilkinson
(2004) 33 Cal.4th 821, 846, fn. 9 [ 16 Cal.Rptr.3d 420 , 94 P.3d 551 ].) The claims he does raise regarding his statements to Dr. Lyons are forfeited.
(Demetrulias, supra,
39 Cal.4th at p. 22.)
Even if they were not forfeited, defendant’s claims that he did not knowingly and intelligently waive his
Miranda
rights and that his waivers and statements to Dr. Lyons were involuntary would fail, because there is no evidence supporting them. To the contrary, Dr. Lyons testified in detail concerning his giving defendant the
Miranda
advisements, including informing defendant that Lyons had been appointed by the district attorney and might testify against defendant at trial, and that his purpose in meeting with defendant was not to provide him with medical or psychiatric treatment. Dr. Lyons testified defendant stated that he understood his rights and Dr. Lyons’s role before agreeing to speak to Dr. Lyons. Defendant repeatedly and emphatically stated he wished to speak to Dr. Lyons despite Lyons’s potentially adverse role in the case. Throughout the interview, defendant appeared to understand Dr. Lyons’s questions and was able to communicate.
18
*122
Moreover, defendant testified he generally realized from the various
Miranda
advisements he received that what he said would be used in court, and although he testified he believed he would receive “help” from the authorities, he never stated his own thinking was so affected by his desire for help that he did not understand the implications of speaking with Dr. Lyons or felt unable to exercise his free will to refuse to do so. Although defendant’s answers on cross-examination were somewhat evasive, defendant, when asked whether he realized his statements to Dr. Lyons might be used against him answered, “I didn’t know
what extent
he would, no.” When specifically asked whether he voluntarily spoke with Dr. Lyons about his crimes, defendant answered, “Yes. That’s what his job was. He wanted to know my state of mind, how I felt about the crimes.”
It was not until defendant was asked somewhat leading questions on redirect examination that he testified his “principal motivation” for speaking to Dr. Lyons was his desire to receive help from him. Even if this claim is true, it does not establish that defendant’s decision to speak with Dr. Lyons was the result of any coercive activity by Dr. Lyons, as opposed to defendant’s internal beliefs and desires.
Defendant argues on appeal, however, that the very circumstances of the interview were improperly coercive because, prior to meeting Dr. Lyons, the officers had told defendant they had arranged for psychological help for him. This argument, however, is refuted by the evidence in the record. Dr. Lyons testified he repeatedly told defendant he was not meeting with him to provide psychiatric help, and defendant, in fact, understood this and did not expect help from Dr. Lyons, but rather expressed his desire for future psychological help in a general sense. Thus, any misapprehension defendant initially may have had regarding Dr. Lyons’s role and what defendant might gain from speaking with him would have been dispelled during the interview. There is no evidence in the record supporting defendant’s claim that he did not knowingly, intelligently, and voluntarily waive his
Miranda
rights before speaking with Dr. Lyons, or that his statements were otherwise involuntary because of improper coercion.
4.
Total Length of Interrogations
Defendant makes an additional claim on appeal that was not raised below: he asserts his statements to the officers concerning the Lactawen murder and to Dr. Lyons were involuntary because of the “extensiveness of the interrogations.” Defendant stresses the total amount of time he was interrogated on the day he was transferred from Nevada to California. (See
Mincey, supra,
437 U.S. 385 ;
Spano v. New York
(1959) 360 U.S. 315, 322 [ 3 L.Ed.2d 1265 , 79 S.Ct. 1202 ].) Again, this claim was not raised or addressed in the trial
*123
court and therefore is forfeited.
(Demetrulias, supra, 39
Cal.4th at p. 22.) Additionally, even if not forfeited, this claim is without merit. Unlike the situations in
Mincey
and
Spano ,
here there was no single interview that lasted many hours, ultimately resulting in a confession after the defendant earlier had refused to speak. (See
Mincey, supra,
437 U.S. at p. 401 [four-hour interrogation of a “seriously and painfully wounded man on the edge of consciousness” that stopped only during those periods when he was unconscious];
Spano, supra,
360 U.S. at p. 322 [eight-hour interrogation at night with only one break while defendant was moved to a new location for further questioning].) Rather, there was a series of relatively short interviews by various officers about different crimes, often with significant breaks in between, including the first night after his arrest and a dinner break the next day when he arrived at the Placer County Jail. Even during the first two interviews with officers from the Sacramento County Sheriff’s Department, which were separated by only a few minutes, defendant admitted to the Lactawen killing after less than one hour of questioning in total. There simply is no evidence in the record, including the tape-recorded statements and defendant’s testimony at the suppression hearing, suggesting that the authorities exploited any “slowly mounting fatigue” resulting from prolonged questioning, or that such fatigue occurred or played any role in defendant’s decision to confess. (Cf.
Spano, supra,
360 U.S. at p. 322 .)
C.
Guilt Phase Claims
1.
Assertedly Erroneous Evidentiary Rulings
a.
Admission of Defendant’s Suppression Hearing Testimony During Cross-examination at Trial
Before defendant testified at the hearing on his motion to suppress his statements to the officers, his counsel clarified that defendant was making a “limited waiver” of his right not to be called as a witness, in that he would not be testifying as to the substance of any of his statements, but only regarding his
Miranda
waivers and the voluntariness of his statements. During cross-examination at the suppression hearing, the prosecutor asked defendant whether he had spoken with the officers at the Carson City jail and given them a “full statement” concerning the Garcia killing. When defendant answered that he had not given them a
full
statement, defense counsel objected and moved to strike the answer as nonresponsive, further objecting to the question because “to the extent that the question calls for anything substantive, it is beyond the scope of the limited waiver of self-incrimination.” The court struck the answer and asked the prosecutor to rephrase the question. The court also advised defendant to answer the prosecutor’s questions “without saying the actual things that you said.” Soon thereafter, the following questions and answers were exchanged:
*124
“Q [by prosecutor]: Were you cooperating with [the officers] because you thought that that was the right thing to do and you were going to just tell the truth?
“A [by defendant]: I was sure that’s what you do when you are in that position. I had to do it before.
“Q: Did you decide to talk to them yourself? Did you make that decision that ‘I’ll talk with them because I am going to tell them the truth’?
“A: Well, they come and asked me. They said they had all the evidence, so I—yes, I guess so.
“Q: Okay. You decided on your own to talk to them, is that right?
“A: After they told me they had all the evidence, yes.
“Q: Okay. And did you want to tell the truth at that interview at the jail yourself?
“A: I did.”
At that point defense counsel objected to the prosecutor’s question as “substantive.” The trial court described the question as “mixed” and stated, “I think the question [sz'c] will be admitted not for the substantive notion of wanting to tell the truth—” at which point the prosecutor interjected, stating the answer was offered “for his state of mind.” The court then stated, “Yes. Accepted solely for that purpose, limited to it.” The prosecutor then followed up with a reiteration of the question whether defendant wanted to tell the truth to the officers, and defendant answered, “I didn’t walk in voluntarily. I figured that that’s what you do when you are caught by the law. Tell them what you know.”
At trial, defendant testified that the version of the Garcia and Sorensen killings he gave the officers during the interviews—that he engaged in sexual activities with the victims and strangled them because he was frightened— was not true, primarily because he now was stating that he had strangled the victims in fits of rage and did not decide to engage in sexual activities with them until after they were dead. He also testified he did not want to tell the officers what really happened because the truth was embarrassing; he did not want to talk about his problems with his mother; he thought it would be worse for him if he gave them a true account, and he thought that giving the untrue versions would cause the officers to stop questioning him.
*125
On cross-examination, the prosecutor sought to impeach defendant with the testimony from the suppression hearing set forth above, in which defendant said he wanted to tell the officers the truth. Defendant objected on the ground that use of his hearing testimony would “mislead[] the jury, in that the purpose of any of those questions and answers didn’t have to do with the substantive truth of the statements. [][] They had to do with the
Miranda
warnings, the admissibility.” The prosecutor disagreed, arguing some of the questions and answers concerned the substantive issue of whether the statements to the officers were true. The trial court stated, somewhat cryptically, that with regard to “some of the questions, at least, the jury could find [they] went to substance, and I think those are arguably sufficient within the substance to be permissible.”
Defense counsel then expressed concern that the only way to avoid misleading the jury would be to disclose the context in which defendant’s prior testimony was given, but telling the jury that the hearing concerned defendant’s motion to suppress those statements would unduly prejudice defendant. Accordingly, defense counsel argued, the testimony should be excluded under section 352 of the Evidence Code. The trial court, although not convinced disclosure of the full context of the testimony would be prejudicial, agreed that disclosure of these circumstances was unnecessary and could be avoided through certain precautions, and therefore permitted the prosecutor to make use of the prior testimony during cross-examination.
The prosecutor then cross-examined defendant primarily by reading the suppression hearing questions and answers and asking defendant whether his testimony at the hearing—that he wanted to tell the truth to the officers—was itself truthful. Defendant responded essentially that he wanted to tell the truth in part—that he killed Garcia and Sorensen—but did not want to tell the whole truth, for example, the details of the murders. Defendant did not request any clarifying admonition to the jury or revisit his prior testimony during the subsequent redirect examination.
On appeal, defendant contends that the trial court erred by allowing the prosecutor to impeach him with this testimony from the suppression hearing, and that this error denied him his “rights to a fair trial, confrontation, due process, effective assistance of counsel and a reliable and non-arbitrary sentencing process under the Fifth, Sixth, Eighth and Fourteenth Amendments.” Defendant argues use of the prior testimony was improper because it was limited specifically to his state of mind and should not have been used to impeach his testimony about the actual truthfulness of his confessions. Allowing the prosecutor to do so, defendant contends, changed “the rules in the middle of the game,” depriving him of a fair trial and effective assistance
*126
of counsel and, in effect, retroactively depriving him of a fair opportunity to challenge the admission of the statements in the first instance. We are not persuaded.
Preliminarily, defendant’s arguments on appeal are not the same as those he raised in the trial court. Defense counsel did not argue the hearing testimony was inadmissible per se, as defendant does now; rather, he argued that its use was misleading without its being placed in context, and that providing the jury with this context would be unduly prejudicial.
19
Defendant does not renew this argument on appeal. He therefore has forfeited the new claims he now raises on appeal. (See
Partida, supra,
37 Cal.4th at pp. 434-435.)
Even if defendant had preserved these claims, we would find them to be without merit. At the suppression hearing, defendant testified he wanted to tell the authorities the truth, which in the context of the motion to suppress was relevant evidence on the issue whether his confessions were voluntary and his
Miranda
waivers were valid. (Evid. Code, § 210 [relevant evidence is that “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action”].) At trial, defendant testified he did
not
want to tell the truth to the officers, and he was impeached with his hearing testimony on that issue. In addition, defendant’s own trial testimony put in issue not only whether he wanted to tell the truth to the officers, but also the very truthfulness of his confessions.
Defendant, however, never testified at the suppression hearing that he actually
told
the truth to the officers, and therefore no such statement was admitted as evidence at trial. Indeed, whether or not he actually told the truth to the officers was not germane at the suppression hearing, where the only issues were whether his statements were voluntary and his
Miranda
waivers were valid. Nevertheless, once defendant at trial also put at issue the veracity of his confessions, the same testimony regarding his state of mind admitted at the suppression hearing took on threefold significance: it tended generally to impeach his credibility as a witness; it tended directly to prove he
did
want to tell the truth to the officers (see
People v. Crew
(2003) 31 Cal.4th 822, 849 [ 3 Cal.Rptr.3d 733 , 74 P.3d 820 ]); and it tended circumstantially to prove he did, in fact,
tell
the truth to the officers.
On appeal defendant takes issue with this third use, but, notably, this was not the concern he raised at trial. There he argued, in essence, that the jury
*127
would not recognize the thin line between his stating he
wanted
to tell the truth and his
not
saying he
told
the truth, without some explanation of the context in which his suppression hearing statements were made. In other words, at trial defendant contended the jury improperly might view his hearing testimony as an admission that he told the truth to the officers when, in fact, the truthfulness of the confessions was not in issue at that time. Defendant did not argue at trial, however, that it would be improper to view his wishing to tell the truth as circumstantial evidence he told the truth, perhaps because, as we shall explain, this inference was proper.
In using the prior testimony in cross-examination at trial, the prosecution adduced the same evidence admitted at the suppression hearing—that defendant wanted to tell the truth to the officers. No “substantive” evidence of the confessions beyond what defendant previously gave pursuant to his “limited waiver of the right to self-incrimination” was admitted at trial. In fact, no such “substantive” evidence existed, because of the properly circumscribed nature of the suppression hearing testimony.
20
Instead, at trial a new inference could be drawn from that same evidence: because defendant wished to tell the truth, he probably did tell the truth.
21
(Cf.
People v. Griffin
(2004) 33 Cal.4th 536, 578 [ 15 Cal.Rptr.3d 743 , 93 P.3d 344 ] [state-of-mind exception to the hearsay rule under Evid. Code, § 1250 permits admission of a hearsay statement as proof of “the declarant’s future conduct in accordance with his or her expressed intent”].) Defendant’s own trial- testimony put the truthfulness of his testimony and his earlier confessions at issue. There was nothing improper, therefore, in admitting the suppression hearing testimony to rebut his trial testimony or in allowing the jury to infer from this evidence that defendant acted in accordance with his state of mind, and that his confessions to the officers were truthful. Because there was no error in admitting the testimony given at the suppression hearing, no violation of defendant’s constitutional rights occurred. (See
Partida, supra,
37 Cal.4th at pp. 434-435.)
*128
b.
Exclusion of List of Names in Sorensen’s Address Book
During the cross-examination of Lanciann Sorensen’s mother, Stephanie Bradish, defense counsel inquired whether she “had any evidence that Lanciann was sexually active at about the time of her disappearance.” The prosecution objected on relevance grounds. A sidebar discussion was held, at which the defense made an offer of proof that Bradish found a book containing a list of men or boys with whom Sorensen had sexual relations. Defense counsel argued this evidence showed Sorensen was sexually active and therefore it was more likely she made the supposedly unwelcome sexual advance toward defendant that caused him to become enraged and strangle her. The trial court sustained the prosecutor’s objection, subject to revisiting the issue outside the presence of the jury. At the following noon recess, defendant clarified his offer of proof, contending a list of the names and ages of 16 males found on a page in Sorensen’s address book was a list of her sexual partners, and a police report prepared by Officer Valerie Miller, who was investigating the initial missing persons report, mentioned that Bradish told Miller that Sorensen “kept a list of men she slept with.”
Bradish and Officer Miller then testified outside the presence of the jury regarding the list. Bradish said she did not remember telling Miller there was a list of men with whom Sorensen had had sexual relations. In fact, Bradish stated she had no information about Sorensen’s sexual activity in general or about the meaning of the list. Bradish did not find the address book until after Sorensen was missing, and Sorensen never had mentioned a list of individuals with whom she had had sexual relations. In Bradish’s opinion it was equally likely the list was, or was not, a list of Sorensen’s sexual partners.
Officer Miller testified that after the missing persons report was filed, Bradish frequently furnished the officers with the names of individuals who might have had information concerning Sorensen’s whereabouts. At some point there was a discussion of Sorensen’s boyfriends and sexual partners, which Miller found noteworthy because Sorensen was a minor. Miller did not know where Bradish had obtained her information, but was under the impression Bradish “was working off some reference to guide us.” It was Miller’s understanding that a list of Sorensen’s boyfriends existed, and some of the names on this list were those of persons with whom Sorensen had had sexual relations. Miller never saw an actual list of names, and did not recognize the list of 16 names in Sorensen’s address book as a list of boyfriends.
The trial court found that, even assuming the list was admissible under a hearsay exception and did not constitute prohibited character evidence, defendant had not established a sufficient foundation for its admission. The
*129
trial court therefore sustained the prosecutor’s objection and excluded the proffered evidence of Sorensen’s sexual activity. On appeal, defendant challenges the trial court’s decision. We conclude the trial court did not err.
22
“Of course, only relevant evidence is admissible. (Evid. Code, § 350.) Sometimes the relevance of evidence depends on the existence of a preliminary fact. [Citations.] The court should exclude the proffered evidence only if the ‘showing of preliminary facts is too weak to support a favorable determination by the jury.’ [Citations.] The decision whether the foundational evidence is sufficiently substantial is a matter within the court’s discretion.”
(People v. Lucas
(1995) 12 Cal.4th 415, 466 [ 48 Cal.Rptr.2d 525 , 907 P.2d 373 ]
(Lucas);
see also Evid. Code, § 403, subd. (a)(1) [when the relevance of proffered evidence depends upon the existence of a preliminary fact, the proponent of the evidence has the burden of producing sufficient evidence of that fact].)
Here, defendant failed to establish as preliminary facts that Bradish and Officer Miller were competent to testify concerning Sorensen’s sexual history in general or, specifically, concerning the meaning of the list of names. At most, if one accepts Miller’s testimony to the extent it conflicts with that of Bradish, Miller testified only that she believed Bradish had a list of Sorenson’s boyfriends, some of whom had had sexual relations with Sorensen. There was no testimony from Miller that the list in Sorensen’s address book was the presumed list of sexual partners, and Bradish likewise testified she did not know the significance of the list, having discovered it only after Sorensen was missing. In short, defendant failed to establish as a preliminary fact that the list was what he claimed it to be. Rather, defendant’s belief that the list of names chronicled Sorensen’s sexual partners was only speculation. The list therefore was irrelevant, and the trial court properly excluded it.
(People
v.
Scheid
(1997) 16 Cal.4th 1, 14 [ 65 Cal.Rptr.2d 348 , 939 P.2d 748 ] [trial court lacks discretion to admit irrelevant evidence].) In addition, because Bradish testified she could only guess with whom Sorensen may have been sexually involved and Officer Miller also knew of no specifics, the two witnesses had
*130
no other relevant evidence to present in that regard. Accordingly, the trial court did not err in excluding the proffered evidence of Sorensen’s sexual activities.
23
c.
Exclusion of Evidence That Defendant’s Mother Was Sexually Abused by Her Father
Prior to defendant’s mother being called as a witness in the defense case, defendant notified the trial court he planned to introduce evidence establishing that his mother had been sexually abused by her father—defendant’s grandfather—when she was a young girl. Defendant argued this evidence would corroborate his testimony that his mother sexually abused him, because Dr. Yarvis earlier had testified about a correlation between a person’s being the victim of incest as a child and later, as a parent, becoming the perpetrator of incest on his or her children. The trial court sustained the prosecution’s objection on relevance grounds, finding Dr. Yarvis’s testimony insufficient to establish the correlation between being a victim of incest and becoming a perpetrator. Therefore, the evidence of abuse inflicted by defendant’s grandfather was irrelevant. Defendant contends on appeal the trial court erred and claims, as he did in the trial court, that exclusion of this evidence violated his state and federal constitutional rights. We conclude the trial court did not abuse its discretion in excluding this evidence, and defendant’s constitutional rights were not violated.
As mentioned above, when a defendant has proffered evidence, the relevance (and therefore the admissibility) of which depends upon the existence of a preliminary fact, he or she bears the burden of producing sufficient evidence of the preliminary fact.
(Lucas, supra,
12 Cal.4th at p. 466 ; Evid. Code, § 403, subd. (a)(1).) Sufficient evidence in this context means evidence strong enough to “ ‘support a favorable determination by the jury.’ ”
(Lucas,
*131
supra,
12 Cal.4th at p. 466 .) The determination of the existence, or nonexistence, of sufficient evidence of a preliminary fact is committed to the sound discretion of the trial court.
(Ibid.)
Here, the preliminary fact at issue was whether there is an increased probability a child whose parent subjected her to incest will, as an adult, inflict similar abuse upon her own children. As the trial court pointed out, there is no
inherent
logical connection between being a victim of incest and later engaging in incest with one’s own children. Rather, proof of such a correlation would require, as the trial court described it, some type of “scientific” support, for example, medical, psychological, or statistical studies.
In arguing for admission of this evidence, defendant relied exclusively upon the testimony of Dr. Yarvis to establish such a connection, but Yarvis’s testimony was remarkably equivocal and limited. The entirety of the questions and answers touching upon this subject, cross-examination included, comprises less than one full page of the reporter’s transcript. During direct examination, the following exchange occurred:
“Q [by defense counsel]: Just incidentally, is incestuous behavior by a parent frequently associated with similar victimization of that parent when the parent was a child?
“A [by Dr. Yarvis]: We’re really just beginning to study this area, so it’s still one where more is not known than is known. [][] There certainly appears to be some evidence in the psychiatric literature that suggests that a parent who has been either physically or sexually abused has a greater likelihood to inflict similar abuse on their child than a parent who has not been so affected. But how much more likely is not clearly known.
“Q: Okay, [f] Is it an accurate and general statement that incest tends to run in families?
“A: Well, on the basis of what I just said, I suppose you’d have to conclude that. I hesitated because I said it is much more clear about physical abuse than it is clear at this point about sexual abuse, although I think what you’ve just said is probably correct.”
On cross-examination, the prosecutor asked Dr. Yarvis: “You would agree with me, would you not, that all children who have been the subject of sexual abuse do not become sexual abusers?” Dr. Yarvis replied: “Absolutely not.”
24
*132
The shortcomings of this testimony in establishing the preliminary fact at issue are obvious. According to Dr. Yarvis, at the time of defendant’s trial, study of the possibility of this correlation was just beginning, though there was “some” evidence that “appear[ed]” to “suggest” a relationship existed. There was, however, more
not
known than known, especially with regard to sexual abuse as opposed to physical abuse. Moreover, even if a victim of incest were more likely than another person to later engage in incest with her children, the increased level of likelihood was “not clearly known.”
Dr. Yarvis’s answer to the more abstract question concerning whether incest “tends to run in families” was based upon the equivocal opinion discussed in his prior response, not his knowledge of any separate statistical analysis of the frequencies of incest within families. Thus, his response, “what you’ve just said is probably correct,” was merely a restatement of the prior answer in a slightly different context and did not add independent weight to the testimony.
On appeal, defendant cites other evidence of the asserted correlation, but we evaluate the trial court’s exclusion of the proffered evidence based upon the evidence before the court when it made its decision.
(People v. Fairbank
(1997) 16 Cal.4th 1223, 1249 [ 69 Cal.Rptr.2d 784 , 947 P.2d 1321 ] [“Of course, we cannot consider on appeal evidence that is not in the record.”].) Defendant also cites, for the first time on appeal, the opinion of the Supreme Court of Minnesota in
State v. Cermak
(Minn. 1985) 365 N.W.2d 238
(Cermak),
in which the court rejected the appellant’s challenges, including lack of foundation, to an expert’s testimony regarding the “intergenerational” nature of incest. That case, however, is distinguishable and only serves to reinforce our conclusion here.
In
Cermak ,
the expert testified concerning her own extensive research into (and treatment of) families affected by incest, which at that time had spanned several years and included her publication of a demographic study on the characteristics of offenders, victims, and spouses. She unequivocally expressed an opinion that incest was a learned behavior that was passed from
*133
one generation to the next unless there was outside intervention.
( Cermak, supra,
365 N.W.2d at pp. 241-242.) This testimony stands in stark contrast to Dr. Yarvis’s statements, which were exceedingly tentative in expressing the opinion that a correlation existed, and lacked citation to the sources of the information upon which his opinion—such as it was—was based, other than a general reference to the “psychiatric literature.”
25
Based upon the evidence presented by defendant at trial, we conclude, as the trial court found, that defendant failed to establish as a preliminary fact that a correlation exists between being a victim of incest as a child and later as a parent engaging in incest with her children. The trial court therefore did not abuse its discretion in excluding as irrelevant the proffered evidence of the incestuous relationship between defendant’s mother and grandfather. Because we conclude the proffered evidence was irrelevant, and properly was excluded as such, it follows defendant’s constitutional rights were not violated.
(People v. DeSantis
(1992) 2 Cal.4th 1198, 1249-1250 [ 9 Cal.Rptr.2d 628 , 831 P.2d 1210 ] (DeSantis) [exclusion of irrelevant evidence does not violate a defendant’s due process, confrontation, or 8th Amend, rights].)
2.
Defendant’s Absence During His Mother’s Testimony
Defendant was voluntarily absent during the second part of the guilt phase testimony of his mother. He contends on appeal his absence violated his federal and state constitutional rights, as well as state statutory law.
“As a constitutional matter, a criminal defendant accused of a felony has the right to be present at every critical stage of the trial.
(Illinois
v.
Allen
(1970) 397 U.S. 337, 338 [ 25 L.Ed.2d 353 , 90 S.Ct. 1057 ].) The right derives from the confrontation clause of the Sixth Amendment to the federal Constitution and the due process clauses of the Fifth and Fourteenth Amendments, and article I, section 15 of the California Constitution.”
(Frye, supra,
18 Cal.4th at p. 1010 .) A critical stage of the trial is one in which a defendant’s “ ‘absence might frustrate the fairness of the proceedings’
(Faretta
v.
California
(1975) 422 U.S. 806, 819, fn. 15 [ 45 L.Ed.2d 562 , 95 S.Ct. 2525 ]), or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge’
(Snyder
v.
Massachusetts
(1934) 291 U.S. 97, 105-106 [ 78 L.Ed. 674 , 54 S.Ct. 330 ]).”
(People v. Rodriguez
(1998) 17 Cal.4th 253, 260 [ 70 Cal.Rptr.2d 334 , 949 P.2d 31 ]
(Rodriguez).)
A defendant may waive his or her constitutional right to be present during a critical stage, provided the waiver is knowing,
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intelligent, and voluntary.
(People v. Moon
(2005) 37 Cal.4th 1, 20-21 [ 32 Cal.Rptr.3d 894 , 117 P.3d 591 ].)
Under California statutory law, section 1043, subdivision (a) provides that “[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.” Although, pursuant to section 1043, subdivision (b)(2), a felony trial that has commenced generally may continue if the defendant subsequently is voluntarily absent, this exception does not apply in capital cases. (§ 1043, subd. (b)(2).) Similarly, section 977, subdivision (b)(1) requires, in part, that defendants charged with a felony must be present “during those portions of the trial when evidence is taken before the trier of fact.” Under that statute, a defendant is not permitted to waive his or her presence at that stage of the proceedings. (§ 977, subd. (b)(1); see also
People v. Weaver
(2001) 26 Cal.4th 876, 967-968 [ 111 Cal.Rptr.2d 2 , 29 P.3d 103 ]
(Weaver).)
Thus, under the statutes, a capital defendant generally must be present during the trial when evidence is taken. A defendant seeking reversal of a judgment based upon statutory error, however, must demonstrate prejudice under
Watson, supra,
46 Cal.2d at page 836—that it is reasonably probable a result more favorable to the defendant would have been reached in the absence of the error.
(Weaver, supra,
26 Cal.4th at p. 968 .)
After defendant testified, defense counsel announced they would re-call defendant’s mother as a witness in order to examine her concerning the claimed incestuous relationship she had with defendant and about her exhibitionism. Outside the presence of the jury, defense counsel notified the court that defendant was “experiencing extreme stress at the prospect of hearing his mother testify concerning these subjects,” and instead wished to voluntarily absent himself during her testimony. Counsel stated they had advised defendant of his right to be present and his right to waive that right, and of the possible advantages and disadvantages of his not being present. The court then directly questioned defendant as to whether he had sufficiently discussed the matter with his attorneys and still wished to waive his presence. Defendant said he had, and wanted to absent himself from that testimony.
The trial court, finding defendant knowingly and voluntarily had waived his right to be present, granted his request to be absent. Before defendant’s mother testified, the court explained to the jury that due to the nature of the expected testimony, the court had granted defendant’s request to exercise “his right” to be absent during the testimony. Defendant returned to the courtroom after his mother completed her testimony.
Defendant first contends that in a capital case the defendant’s presence during the taking of testimony is so fundamental to the fairness of the
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proceeding that he or she should not be permitted to waive the constitutional right to be present, even if done so knowingly, intelligently, and voluntarily. We have rejected this very claim
(People
v.
Price
(1991) 1 Cal.4th 324, 405 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ]), and defendant’s argument, which relies primarily upon three nearly 200-year-old United States Supreme Court cases, the relevant parts of which the high court itself has rejected as “broad dicta”
(Illinois
v.
Allen, supra,
397 U.S. at pp. 342-343), provides no compelling reason to revisit the issue. (See also
People v. Davis
(2005) 36 Cal.4th 510, 531 [ 31 Cal.Rptr.3d 96 , 115 P.3d 417 ];
Weaver, supra,
26 Cal.4th at p. 966 ;
People
v.
Jackson
(1996) 13 Cal.4th 1164, 1209-1210 [ 56 Cal.Rptr.2d 49 , 920 P.2d 1254 ];
Campbell
v.
Wood
(9th Cir. 1994) 18 F.3d 662, 672 (en banc) [“There is no principled basis for limiting to noncapital offenses a defendant’s ability knowingly, voluntarily, and intelligently to waive the right of presence. Nor do we find logic in the proposition that a right that may be waived by disruptive behavior cannot be waived by an affirmative petition freely made and based on informed judgment.”].)
Defendant correctly contends that despite his valid waiver of his constitutional right to be present during the testimony in question, his absence violated sections 977 and 1043. We must stress that a defendant’s statutory ability to waive his presence in a capital case is more circumscribed than the associated ability to waive his constitutional right. As we previously have observed, “ ‘[t]he Legislature evidently intended that a capital defendant’s right to voluntarily waive his right to be present be severely restricted.’ ”
(Weaver, supra,
26 Cal.4th at p. 968 .)
Even assuming defendant has not forfeited his appellate claim of statutory error by failing to raise the claim in the trial court (cf.
People v. Vera
(1997) 15 Cal.4th 269, 276-281 [ 62 Cal.Rptr.2d 754 , 934 P.2d 1279 ]
(Vera)
[claim of deprivation of statutory right to jury trial on prior-prison-term sentence enhancement was not a claim of the deprivation of a fundamental constitutional right that may be raised for the first time on appeal]), defendant nonetheless has not demonstrated that such statutory error warrants reversal, because it is not reasonably probable that without the error, the result of the trial would have been more favorable to him. Defendant admitted killing the victims, and the jury rejected his version of the events—that he did so in uncontrolled fits of rage and did not form the intent to have sexual relations with his victims until after they were dead—in less than one full day of deliberations. In short, the guilt phase evidence against him was overwhelming. Although, unlike the situation in
Weaver ,
the proceedings as to which defendant was absent involved the testimony of a live witness, defendant already had testified on the subjects about which his mother was to be examined. Indeed, she was asked primarily whether defendant’s and other witnesses’ testimony was true, and she responded in the negative. Defendant’s attorneys obviously were quite familiar with what defendant possibly
*136
might add to the examination, and there is no evidence in the record that defendant might have assisted counsel in some other manner had he been present. Defendant has not established that a different outcome at this phase of the trial would have been reasonably probable had he been forced to remain in the courtroom against his will. (See also
Weaver, supra,
26 Cal.4th at p. 968 [noting it was possible defendant’s absence, which was based upon his fear of becoming overly emotional in the presence of the jury, helped his case rather than prejudiced it].)
26
Defendant, relying upon
Hicks v. Oklahoma
(1980) 447 U.S. 343, 346 [ 65 L.Ed.2d 175 , 100 S.Ct. 2227 ], contends the statutory violation deprived him of his federal constitutional procedural due process rights because, he argues, he was denied his “liberty interest” in the proper application of state law. Sections 977 and 1043, however, do not create a liberty interest for the benefit of defendants of the type involved in
Hicks .
(Cf.
People
v.
Breverman
(1998) 19 Cal.4th 142, 170-172 [ 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ]
(Breverman)
[distinguishing
Hicks
based upon the different right created by the state law provision at issue];
Vera, supra,
15 Cal.4th at pp. 279-280 [deprivation of statutory right to jury trial on sentencing enhancement “does not constitute a claim of federal constitutional dimension” under
Hicks].)
Indeed, as a practical matter, the statutes here at issue
deprive
a capital defendant of his or her ability to voluntarily waive the constitutional right to be present, and require him or her to remain in the courtroom. We cannot accept the premise that the federal constitutional right of due process was implicated in this case by an error of state law that afforded defendant something he asked for—and which was permissible under the state and federal Constitutions—but should not have received under state statutory law, and, moreover, that did not directly implicate his interest in freedom from restraint, as did the error in
Hicks .
(See
Cabana v. Bullock
(1986) 474 U.S. 376, 387, fn. 4 [ 88 L.Ed.2d 704 , 106 S.Ct. 689 ] [“In
Hicks,
we held only that where state law creates for the defendant a liberty interest in having the jury
*137
make particular findings, the Due Process Clause implies that appellate findings do not suffice to protect that entitlement.”], overruled on other grounds in
Pope v. Illinois
(1987) 481 U.S. 497, 502, fn. 7 [ 95 L.Ed.2d 439 , 107 S.Ct. 1918 ];
Engle v. Isaac
(1982) 456 U.S. 107, 121, fn. 21 [ 71 L.Ed.2d 783 , 102 S.Ct. 1558 ] [“We have long recognized that a ‘mere error of state law’ is not a denial of due process. [Citation.] If the contrary were true, then ‘every erroneous decision by a state

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2633881. Public record. Not legal advice.