# People v. Coddington

> California Supreme Court · September 27, 2000 · 97 Cal. Rptr. 2d 528

URL: https://www.frixlaw.com/law-library/cases/2636899

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. HERBERT JAMES CODDINGTON, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** September 27, 2000
- **Citations:** 97 Cal. Rptr. 2d 528; 23 Cal. 4th 529; 2 P.3d 1081
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Mosk
- **Cited by:** 270 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Shawn Garfield Price v. Superior Court, 108 Cal. Rptr. 2d 409 (2001).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2636899

## Opinion text

97 Cal.Rptr.2d 528 (2000)
23 Cal.4th 529
2 P.3d 1081
The PEOPLE, Plaintiff and Respondent,
v.
Herbert James CODDINGTON, Defendant and Appellant.
No. S008840.
Supreme Court of California.
July 3, 2000.
As Modified on Denial of Rehearing September 27, 2000. [*]
*552 Bruce Eric Cohen, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.
*553 Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Harry Joseph Colombo and John G. Mc-Lean, Deputy Attorneys General, for Plaintiff and Respondent.
BAXTER, J.
Appellant was convicted by a jury in the El Dorado County Superior Court of the May 16, 1987, first degree murders (Pen. Code, § 189) [1] of Mabs Martin, age 69, and Dorothy Walsh, age 73 (counts 1 and 2), with a multiple-murder special circumstance (§ 190.2, subd. (a)(3)), and of the May 17, 1987, forcible rape (§ 261, former subd. (2), now subd. (a)(2)) of Alecia T. (count 3), oral copulation (Pen.Code, § 288a) of Monica B. (count 5), and forcible digital penetration (§ 289, subd. (a)) (counts 4 and 6) of Alecia T. and Monica B., ages 14 and 12, respectively. The jury also found true an allegation that the crimes in counts 3 through 6 fell within section 667.6, subdivision (c), which provides for full consecutive terms. On appellant's plea of not guilty by reason of insanity, the jury found him sane at the time the crimes were committed. After trial of the penalty phase the jury returned a verdict of death on both murder counts. On January 20, 1989, after denying appellant's motions for new trial and reduction of the penalty (§ 190.4, subd. (e)), the court imposed the death penalty for the two murders, denied probation, and imposed four consecutive terms of eight years each on the remaining counts.
This appeal is automatic. (§ 1239, subd. (b).)
We shall affirm the judgment in its entirety.
I
FACTS
A. Prosecution Guilt Phase Evidence.
Martin and Walsh were murdered on May 16, 1987, when they accompanied Alecia and Monica, as chaperones, to what all four believed was the filming of an antidrug video in which the girls were to appear.
The evidence established that Alecia and Monica were lured to a South Lake Tahoe mobilehome appellant occupied on May 16, 1987, for the ostensible purpose of acting in the antidrug video. Prior to May 16, 1987, appellant had contacted several modeling agencies in Reno in person and by telephone, sometimes using the name Mark Bloomfield, and stated that he was interested in finding teenage models for the video. The caller, in a May 14, 1987 call to the Barbizon Modeling School and Agency in Reno, used that name and said he was from Barrett or Parrot Communications in Georgia. The person who appeared at the Barbizon agency on May 15, identifying himself as Mark Bloomfield, had a business card bearing the word Parrot. He appeared nervous and in disguise. His hair was very black and was slicked back with a hair preparation, he wore a mustache, and had horn-rimmed glasses. The owner of the agency decided that she would not supply any models for him. The person who contacted Aviance Modeling Agency on May 13, 1987, had dark brown hair, a mustache, and wore glasses. He asked if the agent there knew where Avalon Modeling Agency was located. A man who identified himself as Mark Bloomfield had called the Avalon Agency on May 13, 1987, inquiring about teenage models for an antidrug campaign he was filming at Lake Tahoe.
In May 1987 appellant had also contacted Candice Smith, a woman employed as a blackjack dealer in Stateline, Nevada, who knew him as Gary Sarno, a daily player at the blackjack table. Evidence was presented that before he called Smith, appellant told another blackjack dealer that he understood that Smith had a "pretty cute *554 little daughter." Appellant telephoned Smith at 3:00 a.m. using the name John Parrot. He affected a Southern accent and said he was calling from Atlanta, Georgia. The caller said he had obtained her name from Avalon Modeling Agency and wanted to use her in a beer commercial. During the call he mentioned Smith's daughter. Smith said she was not interested and questioned the hour of the call. He said he had played at her table quite a bit. He knew quite a bit about her. She hung up. He called back at 9:00 a.m., again identifying himself as John Parrot, and explained that he just wanted her to know the call was legitimate. He offered to let her speak to his partner. A voice which she thought was the same person then said "hello." Using the prior voice, he said he wanted to meet her for lunch. She hung up.
On Thursday evening, May 14, 1987, Mabs Martin, the owner of Showcase Models, set up an audition for appellant at her agency in Reno. Appellant, using the name Mark Bloomfield, conducted the audition. Witnesses described him as having really dark black hair that appeared to be dyed. He wore glasses and a dark pinstripe suit. Alecia, Monica, and eight to 10 other girls auditioned. They read from cue cards about drug abuse and walked around the studio. Ostensibly this audition was for a commercial to be shot at Lake Tahoe the following Saturday.
On Friday afternoon appellant auditioned girls at the Barbizon Modeling School. That evening appellant auditioned Jennifer K., another student at Showcase Models. When Jennifer parked she noticed a large, expensive car with a license that she believed read "TVTEEN." After discussing the drug problem and looking at Jennifer's portfolio, appellant said they would be going to Regan Beach. He talked about the commercial and said he wanted her to bring Very short shorts and a bathing suit. Jennifer knew that Martin planned to drive other girls to the site, but wanted to drive separately as she had to go to Sacramento on Saturday with her family. Martin and appellant opposed this. He wanted everyone to drive to Tahoe together and to meet at the Nugget casino. Martin arranged for Jennifer to meet Martin on Saturday morning and drive with Martin to the meeting. Martin called Jennifer later that evening and told Jennifer that appellant did not need Jennifer. His photographer said she was too old. Martin called Alecia and Monica, and told them that they had won the parts and would be paid $50 per hour.
Other circumstantial evidence that appellant planned both the murders of the chaperones and sexual molestation of the girls was offered. David Hacker testified that, in 1983, appellant had read aloud to David and his brother Allen from a booklet about assassinations which described various methods of killing people. One of the methods was using a clear nylon baggage tie, pulling it tight and walking off. Appellant said at the time, "[O]nce you have it on, you can't get it off." Evidence was presented that in February 1987, at the time appellant became the sublessee of the trailer, a person using the name Gary Sarno advertised in a local newspaper for used carpeting or mattress material needed for soundproofing. The telephone number of one person who had responded to the ad was found among appellant's possessions. Also, early in 1987 a South Lake Tahoe lumber company delivered plywood and studs to the trailer. In May 1987 a repairman entered the trailer and saw plywood, drywall, and insulation laid flat in the living room. A neighbor and the manager of the trailer park observed old and end pieces of carpet outside the trailer. An invoice revealed that the FLEX-CUF [2] ligatures that could not be released once cinched up, which appellant knew could be *555 used to strangle Martin and Walsh, had been ordered on March 13, 1987. The People also offered exhibits consisting of various scraps of writing by appellant found in his trailer. Exhibit No. 186 included writings taken from other exhibits which asked how to call "them," "how will they come," "where will they meet," how to get "them" to the trailer, and how to get "them" inside. To the last two, the response was "force."
Although most of the evidence of preplanning related to luring and confining teenage girls, these documents also bore words that could reflect appellant's concern that the chaperones would have to be killed. On one response appellant had added "tarp," which the prosecution argued was something in which a body could be wrapped. The prosecutor also argued to the jury that various disjointed words found on those papers reflected planning the murders and how to dispose of the bodies. Those words included "bag," "sacks," "case," "burn," "Rot," "shallow", "deep," "won't eat through," "chop," and "where store" followed by "trunk," "van," "M.D," "trailer," and "motel." Another series of words, which the prosecutor argued reflected preplanning of the murders, asked "what to do once inside" and responded "throat," "zap," "stomach," "straps," "cuffs," and "backup 45." Other notations suggested that appellant had also planned to leave distracting clues when he left and had planned what he would say if apprehended.
On Saturday, May 16, 1987, Martin told her son that she was going to drive to South Lake Tahoe with two girls to shoot an antidrug commercial and that her friend "Dottie" Walsh would accompany them. Martin owned a 1984 Chrysler Fifth Avenue automobile. Martin met Alecia and Monica and then picked up Dottie Walsh. They drove to the Nugget where Martin parked and the group waited in the restaurant. When appellant arrived, all five drove to appellant's trailer in Martin's car. The girls were told to go inside so they could change into shorts and freshen their makeup.
The two girls went in with Martin and Walsh. Appellant directed them to a room with wood walls on which were pictures of models. There was a bed in the room, but there were no mirrors. As the girls entered the room appellant rammed Martin and Walsh and threw them into the room, closing the door behind him. He ran to Alecia and hit her on the jaw with a rectangular black object about five inches wide and two inches thick. He then began hitting and pushing Martin and Walsh on the chest and face. He told all four to shut up and told Martin and Walsh to lie on the floor so he could tie them up. Before Martin got down, appellant threatened to kill one of the girls if she did not get down. He then used FLEX-CUFs to tie the women's hands behind their backs and to bind their feet. Walsh begged not to be killed. Martin told appellant "[T]ake us. Don't hurt the girls." One of them told appellant she would give him all the money he wanted, to which appellant replied, "I know you will." Alecia gave appellant money she had in her pocket. Appellant put a pillowcase over Martin's head and a FLEX-CUF around her neck. She asked him to loosen it, saying she could not breathe. She started to gag, and fell over to the side from a sitting position.
Appellant then ordered Alecia and Monica to lie over the legs of the older women. He used FLEX-CUFs to tie their hands behind their backs and their feet together. He then put Alecia on the bed and Monica on the floor beside the bed. He put a jacket over Alecia's face and a pair of shorts over Monica's head. Alecia could see only the carpet. She heard a "throwing up" sound from Walsh. Monica heard gargling noises. Alecia then heard a dragging sound like bodies being dragged. About 15 minutes later she heard the sound of plastic bags. Monica also heard the noise of dragging of the plastic bags and thought Martin and Walsh were no longer in the room.
*556 Appellant then returned to the room. He took the FLEX-CUFs off the girls and retied their hands in the front with belts. He put a ski mask over Alecia's eyes and a pillowcase over her head, securing it with a rope around her neck. Alecia was able to see a red substance on the carpet to the right of the door, however. Asked about what he was doing at that spot, appellant replied that he had spilled Kool-Aid and was going to clean it up. Monica was able to see him scrubbing something dark brown on the carpet. [3] Appellant was wearing a plastic bag over his head. His hair was black and wet.
Appellant told Alecia and Monica that he did not want them, saying, "[W]e wanted Mabs, and I was paid to get her, and I'll have to be paid extra for Dottie." Appellant allowed the girls to take off the wrist restraints and blindfolds. He said he might hold the girls for ransom. When Monica asked him if he was going to kill them, he displayed a pistol with a silencer on it, and said that if he planned to kill them he could already have done it. Alecia saw that the door into the room had eyeholes in it. Appellant gave them water, and, after making them turn around and put the pillowcases over their heads, brought in some fruit. Later, appellant brought magazines. Alecia removed an address label for "Herb Coddington" from one and put it in her suitcase. She later gave it to the FBI.
The next morning when the girls awoke, appellant brought eggs and strawberries and made the girls take vitamins. He allowed them to go into the living room of the trailer. Appellant was wearing what Alecia thought was a turtleneck with the arms over his mouth and part of his ears and a ski hat over his hair. The hair that she could see was orange. Monica thought he was wearing a knit cap and ski mask. She also saw orange hair sticking out. After the girls watched television, appellant said he was going to work out. He put them back in the other room and told them to change clothes so they could work out also. They heard heavy breathing as if he were working out. He said he was going to shower and they heard a shower. He then let the girls come back into the living room and had them exercise to a videotape. They were returned to the other room. They refused appellant's offer of a shower, but when Alecia used the bathroom to brush her teeth she saw brown hair, about the size of a moustache, all over the sink.
Appellant told the girls that they were going to make a videotape to be sold in Europe, with an 18-year-old boy his friends had kidnapped. He told them they would have to take off their clothes. He blindfolded them, but Alecia could see out under the blindfold. She asked appellant if he was going to rape them. He replied "no," and added that if the boy hurt them he would hurt the boy. The girls were then put on the bed where they held hands. Appellant then climbed onto the bed and began whispering to Monica. In his normal voice, holding a microphone, appellant pretended to tell the nonexistent boy to be gentle and make the girls feel relaxed. Affecting the voice of a young boy he then whispered to Monica that he was also scared and that, while he did not think they were going to be killed, the people had guns. Appellant undressed Monica and kissed her all over her body including her private parts. Alecia could hear, but could not understand, the whispering. When she asked Monica if she was all right, Monica replied "yes." After about half an hour Monica said "stop" and asked to get dressed. Appellant agreed.
Appellant then took off Alecia's clothes and whispered in a young boy's voice that he was sorry, he did not want to do this, and he hoped they would not kill them. He massaged Alecia all over her body and kissed her on her lips, breasts, and upper vagina. After 20 minutes she said "stop." *557 She heard appellant's voice coming from some distance, but there was still weight on the bed. It felt like a foot.
The girls were allowed to dress and go into the living room. Only appellant was there. Appellant said the video would have to be repeated as it was "not worth two cents" and no one would buy it. He promised to let the girls go home if they did another five or 10 minutes. He put them back in the room and again blindfolded them. Alecia was put on the floor, Monica on the bed, but they could still hold hands. Monica heard a voice with a European or British accent say the tape was no good, and heard appellant respond that he had tried. The other voice said he would have to do another one.
Appellant removed Monica's clothes and put a finger in her vagina. She felt pain and repeatedly asked him to stop. The voice pretending to be a boy called out to appellant and appellant said to stop. He asked Monica if she wanted her mouth on him and, when she said no, he told her that she would have to keep doing "it." Next, pretending to be the boy, he took her finger and sucked on it, saying that was how to do it. Appellant then put his penis in her mouth. She said she was going to throw up to which he replied: "Why did you say that? Now, you've ruined the whole thing." He told her she would have to do more. She said she could not and he allowed her to dress.
Appellant then put Alecia on the bed and told her that since Monica did not do very well she would have to do better. She repeatedly said "no," but he removed her clothes and put his finger in her vagina. She screamed to stop it. Appellant then said: "Well don't use the finger, you're going to have to fuck her." She screamed that he had promised he would not rape her, but appellant got back on the bed, put Alecia's legs over his shoulders and inserted his penis into her vagina. It was very painful and she told him that "it doesn't fit," again asking him to stop. He got off and said: "Well it doesn't fit. You're going to have to use the finger again." Appellant then inserted his finger into her vagina, causing her great pain and some bleeding. Alecia could see a red light in the corner of the room and believed it was a camera that was videotaping.
The girls were allowed to watch television later. When they asked permission to call their parents, appellant told them they could tape their voices and he would play the tape over a pay phone. He let them go to bed where they eventually fell asleep. On Monday morning, May 18, appellant told the girls that he was going to release them someplace and call the police so they could be taken to Reno. He instructed them to say they had been kidnapped and taken to a blue two-story house in Sacramento, warning them that if they did not follow those instructions the girls' families would be in danger. He did not release them, however. They were rescued that night by FBI agents and South Lake Tahoe police who had identified appellant as the suspect from composite sketches based on witness descriptions of the man who had been interviewing teenage models.
The law enforcement agents had been alerted to Alecia's disappearance by her stepfather. Alecia's stepfather broke into Martin's studio and used her Rolodex phone directory to contact persons from whom he was able to identify Martin's automobile, which his brother-in-law then located on a parking lot at South Lake Tahoe. FBI agents determined that the "TVTEEN" license plate was connected to a Tveten automobile dealership in South Lake Tahoe, [4] and learned from Tveten that the composite sketch was of a person Tveten knew as Gary Sarno, whose address plate. *558 dress was supplied. That address was for the trailer park where appellant lived in a trailer next to Tveten's mother. The trailer park manager confirmed that appellant's car had a TVETEN license plate on it before he acquired a Nevada plate.
In March 1987, Tveten had seen old carpeting outside appellant's trailer. Appellant told Tveten he was making a soundproof room for playing the guitar. Appellant had purchased a Porsche from Tveten because appellant's BMW, purchased in Europe, could not be registered in California. Appellant then told Tveten he was going to have the BMW licensed in Nevada and would not need the Porsche. Tveten took the Porsche on consignment to sell for appellant. About two weeks before the crimes with which appellant was charged, Tveten had given appellant paper license plates from his dealership so appellant could drive the BMW to Nevada for registration.
The trailer was placed under surveillance. The manager told agents that a paper dealer's license reading TVETEN formerly had been on appellant's car which now bore a Nevada license. Tveten telephoned appellant, told him that appellant's Porsche had been sold and Tveten had the money for him. Tveten also told appellant that the FBI was looking for him and that he should call them. When Tveten asked appellant if he was involved in the kidnapping that the newspapers had reported, appellant replied that he had done "much worse."
Alecia heard the telephone ring and appellant say: "What? My picture's in the post office?" They then heard a car leave. Shortly thereafter appellant telephoned David Hacker asking for directions to Allen Hacker's home in Happy Camp. Appellant said that "[t]hings were getting a little hot." FBI agents followed appellant when he left the trailer in the early evening and saw him enter the post office and look at the bulletin board. His hair was a glowing orange-yellow. Appellant returned to the trailer at 9:00 p.m. Three minutes later an FBI agent received a telephone call from a man who identified himself as Herb Coddington and said he understood the FBI was looking for him, that a friend had seen his photo in the post office and said that he was wanted. Asked for what, the caller replied: "The kidnapping in Reno." The agent told the caller that he was not sure whom they were looking for and would have one of the agents who had that information call. The caller gave the agent the phone number and address of the trailer occupied by appellant.
On Sunday whenever the two girls asked appellant if they could leave, he responded only, "[L]et me think." He once said he would drop them off and call the police so they could be taken to Reno, and that he would try to get a plane to Europe. Later, Alecia heard appellant ask someone on the telephone, "[M]y picture is on the wall?" Appellant then told Alecia and Monica that they did not have to worry because "they found me." He told them to give him their clothing so he could wash off his fingerprints. By then the trailer, which had been under surveillance, was surrounded by law enforcement personnel. Two FBI agents who had been assigned to interview appellant knocked, identified themselves as agents and asked to talk to appellant, who replied that he did not want to speak in person and would rather talk to them on the telephone. The lights had gone out and immediately an FBI agent made a call to the trailer. Appellant asked the agents outside what he was to do and was told the call was from the FBI and he was to answer the phone and do exactly as told. Appellant answered the phone and said there were people at the door. He was told the people were FBI agents and he should open the door. He told the agent on the telephone that the girls were there and said he needed to go to a hospital. Law enforcement personnel then assaulted and broke into the trailer. As they did so another agent had broken a window in the trailer, looked in and saw *559 appellant. He ordered appellant to "go down" and held him at gunpoint until the other agents who had by then entered the trailer took appellant into custody. While held at gunpoint, handcuffed and searched, appellant stated again that he was sick, and the girls were all right. He also said that the women were in a back bedroom and that he had placed them in plastic bags because he did not want any "messies." The FBI agents found Alecia and Monica in a room built within another room, its door secured by a two-by-four that was used as a bar. South Lake Tahoe officers, who then assumed control of the investigation, found the bodies of Martin and Walsh in plastic bags in a bedroom of the mobilehome.
Appellant was advised of his Miranda rights ( Miranda v. Arizona (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 ) at the time he was placed in an automobile for transportation to jail. While being transported appellant admitted that he had killed Martin and Walsh. He said again that he was sick and needed help. Under questioning, appellant admitted that he had strangled the two women. He killed them almost immediately after they entered the mobilehome on Saturday morning because they had fought him and were too hard to control. He denied sexual molestation of the girls. He explained his conduct by saying there were too many bad things in the world, too much smoking in the casinos, and too many drunk drivers.
Appellant was then taken to, and interviewed at, the South Lake Tahoe Police Department after again being advised of and waiving his constitutional rights. When asked how he killed the two women, appellant told the officers that he had strangled Martin and Walsh and they could find the cord he used inside the residence. He said he had killed the women almost immediately on Saturday morning when he brought them into the trailer. When asked how he controlled the two girls he said that he had built a soundproof room that the agents would find inside. He denied any sexual contact with the girls. He again explained his conduct by saying that there was too much smoking in the casinos and too many drunk drivers. He told the agents that police officers had a difficult job and that was why he had bagged up the women the way they were bagged up so the police would not have to see the "messies."
During the time the girls were being held in the trailer appellant had called Michael Szeremeta, an acquaintance then living in Minnesota whom he had called several times before these incidents. Szeremeta testified that he and appellant met in Las Vegas in 1982. Appellant was then a gambler by profession and had authored two books on gambling. Szeremeta, who had an advanced degree in mathematics, had discussed the mathematical possibilities related to gambling with appellant and thought appellant had a very sophisticated understanding of the subject. Appellant was accomplished at card counting, which improved the odds in his favor. In 1985 appellant had moved to South Lake Tahoe, but he still visited Szeremeta. Appellant once mentioned that he was practicing clairvoyance techniques and believed he could predict the outcome of the cards in baccarat.
Szeremeta moved to Minnesota in 1986. Appellant had called him on the telephone about five times after that. In either January or March 1987, appellant referred to "the man in Philadelphia" who had captured a woman and held her captive. Szeremeta received the fifth call from appellant during the time Alecia and Monica were being held captive. Appellant told Szeremeta that "I have something going here ... something like the guy in Philadelphia." Asked if it was voluntary, appellant replied "no." Appellant was not worried that he might be discovered because, he said, the landlord never came around. Appellant also said that he was close to 30 years old, his life was going nowhere, and the man in Philadelphia had gotten away *560 with it. He told Szeremeta that Szeremeta might want to stop by if he was in the area as "it" was "better than [he] could imagine."
When found, Martin's body, which had been inside a garbage bag, had a portion of a FLEX-CUF around her neck. Her hands were then tied with rope. Walsh, whose body was wrapped in clear plastic and placed inside three garbage bags, had a FLEX-CUF around her neck. Her hands were then tied in front of her body with rope. Autopsies confirmed that ligature neck compression was the cause of death of both Martin and Walsh. Each victim had suffered additional, very similar injuries, including lacerations and abrasions. There was bruising in Walsh's vaginal area outside the hymeneal ring, and a tear of Martin's vaginal area just outside the hymeneal ring. Walsh also suffered a hemorrhage inside her brain from a blow to the head. A FLEX-CUF container was found in the master bedroom of the mobilehome.
A physical examination revealed a recent bruise on Alecia's thigh and one on her cheek, erythema (redness), engorgement, and bluish bruising in the vaginal area, and torn necrotic tissue hanging from the hymen. The examining physician could not identify the instrumentality that caused the injuries, but they were consistent with insertion of a finger. Monica also had reddened tissue in the vaginal area.
B. Defense Guilt Phase Evidence/Prosecution Rebuttal.
During voir dire of the jurors the defense conceded that defendant was responsible for the deaths of Martin and Walsh, and that he had molested the two girls. During closing argument counsel again conceded appellant's guilt of the sex offenses and that he had killed Martin and Walsh. He disputed only the degree of homicide of which appellant was guilty and argued that the killing was an unplanned reaction to the victims' screaming and resisting when forced into the plywood room, an attempt to quiet the victims. Although the FLEX-CUFs were on the women's necks, only when that failed to quiet them did appellant pull them tight and kill them.
Only one defense witness was called during the guilt phase of the trial. The prosecutor had said in his opening statement that a Mr. Hacker would testify that appellant had a fascination with FLEXCUFs. In response to that statement, Allen Hacker testified that he had met appellant in 1981 or 1982 while working in Las Vegas casinos exploring the potential of card counting. Appellant was one of several persons he knew in Las Vegas who counted cards. He and appellant also shared an interest in target shooting.
Allen Hacker testified that he would not testify in accordance with the prosecutor's opening statement that appellant was obsessed with use of FLEX-CUFs as a method of killing. In 1982, in a Las Vegas gun shop, Allen Hacker and appellant had discussed "ziplocks," which he described as locking nylon strips like those used to tie garbage bags, when Allen read from a booklet, supposedly written by an ex-CIA agent, that described ways to kill people. He and appellant agreed that the methods were outrageous and unrealistic. Appellant expressed no particular interest in nylon ties then or in their subsequent contacts. Hacker denied telling FBI Agent McKevitt that appellant read The Anarchist Cookbook and seemed interested in ways of killing people, particularly women.
Allen Hacker also described appellant's inability to function under stress and "inappropriate" behavior while part of a gambling team of card counters. Appellant's behavior drew attention to himself when it appeared that the house was catching on. Allen Hacker denied telling FBI agents that appellant was cunning, sly, and expert at disguises. He believed he had told the agents that appellant was a bumbler who did unusual things. Appellant was extremely bright about mathematics, but did *561 not act the way other people did and most people were uncomfortable around appellant. Socially, appellant was like a 12 or 13 year old.
In rebuttal, McKevitt, the FBI agent who had interviewed Allen Hacker, testified that when she interviewed Allen Hacker, he had described appellant as sly, cunning and an expert at disguises. On cross-examination she conceded she could not recall whether Hacker might have said appellant believed he was an expert at disguises. The agent testified that Hacker was surprised that appellant was the subject of the investigation and thought appellant was too intelligent to get caught. Hacker had also told the agent that appellant was interested in methods of killing people, particularly women.
C. Sanity Phase Evidence.
Three defense experts testified that, in their opinion, appellant was legally insane at the time of the offense.
Mark J. Mills, M.D., a psychiatrist and professor of psychiatry at the University of California at Los Angeles Medical School, was the director of the Program in Psychiatry and Law for the UCLA Neuropsychiatric Institute and Hospital, and director of the Forensic Science Medical Group. He was board certified in psychiatry, neurology, and forensic psychiatry. Prior to attending medical school, Dr. Mills had graduated from Harvard Law School. He had interviewed appellant on two occasions for a total of 10 or 11 hours and had discussed the case with appellant's counsel and reviewed some documents to understand what had happened.
Dr. Mills offered his opinion that appellant did not suffer from any organic brain damage or illness, although there was a "negativity" in the temporal lobe that would be consistent with a delusionary disease. Dr. Mills concluded that for several months before and continuing through several months after the crimes appellant suffered from a delusional or paranoid disorder of the grandiose type described in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (3d ed. rev.) (DSM-III-R). Appellant believed he had a special relationship with a deity. A delusion is a systemic belief not shared by most other persons. Dr. Mills believed that appellant believed he was receiving messages from God in very unusual forms. Green traffic lights meant that whatever he was thinking he should do, red that whatever he was thinking or fantasizing about should be stopped. Yellow was a warning. Certain numbers heard on the radio or seen on clocks also communicated messages from God: 46 or 45 were "go" numbers. Twenty-six was a "stop" number. Indicative of his disorder, about a year and a half before the crimes appellant switched from rational thinking to "crazy" or "magical" thinking in his gambling. He believed at this time that if he did not obey the messages he received things would turn out very badly.
Dr. Mills was satisfied that appellant was not malingering. He found that many of the beliefs appellant described to him were also reflected in entries appellant made in his diary and on other papers contemporaneously with the events he described. Appellant knew what he was doing when he killed Martin and Walsh. He knew they would die when he applied the ligatures and he knew that was against the law. However, appellant believed that since he was obeying personal messages from God who would punish him if he did not comply, appellant did not believe or understand that he was violating any moral law. On that basis, Dr. Mills opined that appellant was insane at the time of the criminal acts.
Tests given to appellant several months after the crimes did not indicate he was psychotic or crazy, possibly because of the delay in testing. The delusional disorder had gotten better in the structured setting of the jail, where appellant received support *562 from his attorneys and understood the reality of the pending charges.
Fred Rosenthal, M.D., a psychiatrist with experience as a biologist and neurophysiologist, interviewed appellant for about 12 hours total and interviewed his mother, father and sister. He also reviewed extensive writings of appellant, a 60-page autobiography appellant prepared while in jail, police and FBI reports, psychiatric reports, and psychological testing reports. He concluded that appellant was psychotic and legally insane at the time he committed the crimes. He believed that appellant's illness might be schizophrenia, although not a typical textbook case of that illness, but he did not make that a firm diagnosis. Appellant did suffer a psychotic episode, but Dr. Rosenthal did not know if this was a psychotic episode superimposed on the borderline aspects of appellant's personality, or a brief reactive psychosis to stress, or if appellant was schizophrenic and had become psychotic at the time of the offenses. The delusional disorder diagnosis of Dr. Mills was not inconsistent with Dr. Rosenthal's diagnosis, as a delusional disorder is another, more specifically paranoid, form of psychosis.
Dr. Rosenthal believed appellant had severe obsessional problems as reflected in an endless production of notes and lists, voluminous written materials, the way he thought, his actions as described by others, and his very small and meticulous writing.
Dr. Rosenthal based his conclusion that appellant was psychotic and delusional on appellant's history, his magical thinking about numbers, and appellant's belief that he had extrasensory perception and belief that he was receiving messages from God who ordered appellant to do his bidding. Dr. Rosenthal testified that delusional thinking of this type was fairly common among schizophrenics and other persons who become psychotic. Although appellant was aware of the nature and quality of his actions and understood that what he did would cause the death of Martin and Walsh and knew that his conduct was unlawful and condemned by society, he did not understand that it was morally wrong.
Joseph Satten, M.D., a psychiatrist, interviewed appellant three times for about eight to nine hours total, spoke with appellant's parents and sister, and reviewed the FBI reports and the reports of prior psychiatric examinations, and the documents prepared by appellant at different times in his life. He also concluded that at the time of the offenses defendant suffered from a mental disease or defect, and was legally insane. Appellant suffered from a long-term mixed personality disorder with elements of several personality disorders. He also had obsessive compulsive disorder, which caused him to have obsessions and feel driven to do certain things. The obsessive-compulsive disorder had been superseded briefly by a psychotic disorder, either a paranoid (delusional) disorder or an atypical psychosis. Like Drs. Mills and Rosenthal, Dr. Satten concluded that appellant was insane at the time of the offenses. While appellant understood he was killing two women, he was incapable of distinguishing right and wrong and did not understand that what he was doing was morally wrong.
Dr. Satten found no inconsistency between appellant's statement to him that he had received no messages on the day he lured the victims to his trailer and his statement to another expert that the traffic lights were all green on the way to the trailer. Appellant simply meant that there was no message that he should not go through with his plan. He did not receive a stop message. Telling one person that he received the go-ahead sign in January and another that he received it in February 1987, was not a major or meaningful inconsistency.
Drs. Mills, Rosenthal, and Satten were aware of the contrary views of court-appointed experts and other experts who had examined appellant. They were also aware of appellant's past use of deception and lies, his gambling practices, and other *563 factors which might suggest that he was not being truthful and was motivated to lie when interviewed by them. That information did not change their view that appellant was psychotic and legally insane at the time he committed the crimes.
The prosecution witnesses offered contrary opinions.
Bruce T. Kaldor, M.D., had been appointed by the court to determine whether appellant was insane at the time of the commission of the crimes. He reviewed all available information and interviewed appellant for six hours over two days, interviewed his relatives, friends, jail personnel, arresting officers, and others. He asked Dr. Michael Erickson to undertake psychological testing to distinguish personality disorder, neurosis and psychosis, and possible malingering. Dr. Kaldor testified about the "practice effect" in which intelligent persons interviewed by several mental health professionals are able to tailor their responses to indicate certain symptoms. He also observed that persons who suffer from mental illness can be excellent malingerers because they have experienced the symptoms they describe. Dr. Kaldor believed that the inconsistencies in statements appellant made to the various experts could be significant in determining if he was malingering.
Dr. Kaldor concluded that appellant had a severe personality disorder with many facets, a DSM-III-R mixed personality disorder. His diagnosis was "Mixed personality disorder with anti-social, paranoid, border-line obsessive/compulsive, passive/aggressive, and narcissistic features." Appellant knew what he was doing when he killed the two women and knew that the acts were unlawful. He had not conceptualized his own religion, but had a concept of morality that was very idiosyncratic to him. He had his own ideas of what was right and wrong. He had no well-systematized, organized religious moral conception. Dr. Kaldor believed that as an aspect of his obsessive-compulsive disorder appellant did engage in conduct based on his perception of the meaning of numbers and traffic lights, but when caught, appellant exaggerated and embellished this for his own self-serving purposes to avoid responsibility for what he had done. Dr. Kaldor conceded that if he believed appellant's version of God fit within the People v. Skinner concept, [5] he would have to conclude that appellant was legally insane at the time of the offenses.
Robert M. Bittle, M.D., a psychiatrist appointed by the court, reviewed similar material, requested psychological and neurological testing, and interviewed appellant and his relatives. He also concluded that appellant, who was very intelligent, with an IQ of 142 to 145, had a remarkable ability to rationalize his behavior and beliefs, and was able to manipulate the psychological testing. He did not believe appellant's *564 use of numbers or stoplights had a delusional quality that would amount to a major mental illness. Appellant had an obsessive-compulsive personality. Such people go through certain rituals as a natural part of their personality. They tend to be more superstitious and have more rigid behavior patterns which they try to rationalize. This behavior went back to appellant's adolescence. Appellant was not disturbed by these behaviors and they did not seriously interrupt his daily existence. At the time of the offenses appellant was not totally controlled by making every decision with this ritual and with his obsessive thoughts and compulsive behavior. He had some independence. This distinguished appellant who had an obsessive-compulsive personality from a person suffering from a major mental illness or obsessive-compulsive disorder. The signs from God defendant experienced were a means by which appellant rationalized or justified behavior in which he wanted to engage.
Dr. Bittle diagnosed appellant as having a severe borderline personality disorder with a multitude of features including passivism, hysteroid elements, pendent elements, passive/aggressive elements, and antisocial elements. This was his lifelong functioning since midadolescence, accounting for his behavior over the preceding several years that he best represented what would be referred to as a borderline personality disorder. With a borderline personality under special circumstances in a period of high stress, the individual may have an acute psychotic episode. Dr. Bittie considered, but concluded that appellant did not suffer from, schizophrenia, a delusional paranoid disorder, or a brief reactive psychosis. Dr. Bittle concluded appellant suffered from a mental defect, a personality disorder, borderline type, that was severe, but that disease did not impair appellant's ability to understand the nature and quality of his acts or his ability to know right from wrong. Appellant did not have an organized moral system or a delusion that originated in an external source.
The parties stipulated that all of the guilt phase evidence could be considered in the sanity phase. [6] They agreed that the hundreds of documents seized in appellant's trailer would be displayed to the jury to emphasize the sheer number of records and papers he retained, some of which went back to his school days, and on many of which his compulsive writing appeared. They further stipulated that appellant had over $10,000 in cash available when arrested. The jury also received evidence regarding appellant's gambling activity and investments, and heard very brief testimony by his parents about his childhood, his family, his upbringing, and his religious beliefs. It viewed two videotapes, the first a compilation of home movies and slides depicting appellant in his early years, the other being excerpts of films found in appellant's trailer, which included scenes of appellant with a former girlfriend and her children and the part of a pornographic film into which appellant had inserted a clip of himself wearing makeup.
The jury returned a verdict finding appellant sane at the time of the offenses.
D. Defense Penalty Phase Evidence.
Joanne Garner had known appellant well through grammar and high school, but had seen him only twice since graduation. Most of her knowledge of appellant came from his visits to the home of his grandparents who were her neighbors. She testified that appellant had been normal, clean-cut, neat and fastidious, and very serious. He got along well with teachers and played chess with his fourth grade teacher during recess. She described normal childhood activities and said that when appellant got involved in something he became very involved and really studied the matter to learn everything he could about it. He was not dishonest and was never *565 violent, but was always the peacemaker. He would not harm anyone's property because he did not want that to happen to him. She and appellant were romantically involved for a brief period in high school, but when she told him she did not want to become more involved he accepted it and they remained friends. He had no sexually perverted or bizarre sexual ideas. He had a good relationship with his grandparents. Garner could not understand his murdering Martin and Walsh.
Vladimir Grigoriew had known appellant from kindergarten through high school. They lived three houses apart, played together, and were close friends. They saw each other infrequently after appellant joined the Marine Corps, but Grigoriew had visited appellant in California. As a child appellant was intellectual, cultured, and civilized compared with the other children. He read books and was not outdoorsy or physical. He was a master at any indoor board game. Appellant was obsessive about health and against smoking, drinking, taking drugs or eating junk food, frequently commenting about how bad those things were. He ordered a soft drink or water in bars or, if he ordered a drink, it would last for the evening. As an adult appellant had criticized Grigoriew's driving because he was not maximizing gasoline mileage. Appellant drove excessively slowly to save gas.
Appellant was not violent or even physical. He was frustrated because he was not popular and some children thought he was a wise guy. Appellant spoke in a loud voice and spoke out of turn in class. He would sometimes become depressed and felt that he was a loser because he and his circle of friends had not accomplished much in school and he did not have a girlfriend or a car. He had a very low image of himself.
Grigoriew described appellant's family as a typical average family, almost a model family. His father was a professional, and was a handyman around the house. He was quiet, but was available if someone had a question or wanted to know how something was done. Appellant's mother worked part-time, but spent most of her time taking care of the household, raising the children. The family had a nice house and two cars, and they socialized. Church was important to appellant's parents, but appellant had objected to having to attend religious education classes in grammar school. In high school appellant developed an interest in the Mormon Church, and joined the Methodist Youth Fund, which was made up of girls, in order to meet girls. He got Grigoriew to join with him for that purpose. The girls elected appellant president at the first meeting.
Appellant had discussed becoming an attorney with Grigoriew, but dropped out of college, saying high school had not prepared him to study for college. Grigoriew testified that after appellant dropped out of college, appellant did unusual things that caused Grigoriew to think appellant was having a nervous breakdown. Appellant shaved his head, hung around wearing white pajamas, and acted like a kung fu character. Then appellant took all his money and left for Las Vegas to gamble and win a lot of money, but found out only when he got there that you had to be 21 to gamble. Appellant then joined the Marine Corps even though they had agreed that a military career was not right for either of them.
Grigoriew was surprised that appellant did have some success as a gambler later, and believed appellant was successful and happy. In 1985, however, when Grigoriew visited him, appellant was dissatisfied with his life and with having accomplished little. On cross-examination Grigoriew testified that he had never given appellant permission to represent to the manager of the Tahoe Verde Mobile Home Park that Grigoriew would be appellant's roommate and had not authorized appellant to obtain a telephone calling card in Grigoriew's name.
Appellant's father, G. Herbert Coddington, testified that appellant seemed like a *566 normal child, but was a little more intelligent than average. He had a good memory and learned to play games like chess at an early age. He had no problems with the law and was no more disobedient than other boys his age. He was respectful of other people and was never cruel or violent. Kindness was one of his strong attributes. He was very gentle and the younger children liked and looked up to him. Small children liked him, and flocked around him. Appellant did have obsessive traits, however. He followed his parents around the house turning off the lights when they left the room. He chastised his mother for smoking. Raised as a Catholic because his mother was Catholic, appellant objected to having to attend services regularly while his father, a Protestant, did not do so. He annoyed his father by questioning him and asking "why" repeatedly. The family was close-knit and lived close to both sets of grandparents.
Appellant did not understand or accept the family rule that because a gentleman does not hit a girl he could not retaliate when hit by his sister or another girl. Appellant suffered from Osgood-Schatter's disease and was dissatisfied that he could not participate in physical activities as a result.
When appellant joined the Marine Corps he was promised he could sign up for the job he wanted and selected intelligence. He was made a clerk-typist, which fit within that category, but felt cheated and went AWOL. His father convinced him he should return. When he did he was given psychological tests, which led to an honorable discharge as unfit psychologically for service. When appellant last came home for Christmas in December 1986, his father noticed nothing unusual about his behavior other than that appellant played Santa Claus and ran back and forth handing out presents to the people there.
Appellant's father could not explain his son's conduct in committing the crimes.
Appellant's mother testified that she could recall nothing in appellant's upbringing to explain the crimes. They were a pretty close family, always together and supported each other. In Las Vegas appellant became more and more lonesome and wanted someone with whom to share his life, but he did not know how to go about it. He lived in a fantasy world. He liked science fiction and did not know what reality was anymore. At Christmas 1986 appellant seemed more nervous, but she thought it was from the stress of gambling.
Neither parent was aware that appellant had been discharged from the Marine Corps because of mental or emotional illness.
The parties stipulated that appellant had no prior criminal convictions.
E. Prosecution Penalty Phase Evidence.
The only evidence offered by the People at the penalty phase was rebuttal evidence in the form of a stipulation that appellant had represented to a rental agent that Grigoriew would be a cotenant of the space at the Tahoe Verde Mobile Home Park and that appellant had secured phone service in Grigoriew's name, and had received an international telephone credit card in that name.
After argument and instructions, the jury returned a verdict of death. [7] The court denied appellant's automatic motion *567 for modification of the penalty and his motion for new trial, after which judgment imposing the penalty of death was pronounced. Before imposing judgment the court found that appellant had been "well and fully represented by counsel" and ruled that the murder counts and special circumstances had been proved beyond a reasonable doubt, and that the aggravating factors outweighed the mitigating factors. [8]
II
APPELLATE CLAIMS
A. Pretrial and Guilt Phase Issues.
1. Transfer to Placerville for trial.
Appellant contends variously that the transfer of his trial from South Lake Tahoe to Placerville was unauthorized, denied him the right to trial in the vicinage in which the crime was committed, and denied him the right to a jury drawn from a representative cross-section of that area, both in violation of the Sixth Amendment to the United States Constitution. He also claims that the jury selection procedures denied him certain statutory rights.
Although the South Lake Tahoe area is only 50 to 60 miles from the county seat in Placerville, the El Dorado Superior Court has sessions in South Lake Tahoe for actions arising in the Tahoe area and in Placerville for actions arising in the "Western Slope" of the Sierra Nevada Mountains. The division facilitates a continuity of proceedings during the winter months when snow, ice, and related road closures make transportation from the Tahoe region to Placerville difficult. Code of Civil Procedure section 199 accommodates that division, providing that in El Dorado County, jury venires for the superior court "shall be drawn from residents of the supervisorial district, or a portion thereof, within which the court will sit for such trial and from residents of such other immediately adjacent supervisorial district or portion thereof, as may be specified by local superior court rules. Such veniremen shall serve the court sitting in the geographic portion of the county from which this section and such court rules specify trial jury venires shall be drawn, provided that such rules shall afford to each eligible resident of such county an opportunity for selection as a trial jury venireman. Such court may, in its discretion, order a countywide venire in the interest of justice."
Appellant was tried before Judge Finney, who regularly sat in the South Lake Tahoe session of the court. Pretrial proceedings were conducted in South Lake Tahoe. From the outset of those proceedings Judge Finney expressed concern that extensive publicity threatened appellant's right to a fair trial. That concern arose well before the trial itself began. After the magistrate denied a defense motion to close the preliminary hearing and seal the reporter's transcript thereof, the defense sought a writ of mandate in the El Dorado County Superior Court. Judge Finney directed issuance of a peremptory writ of mandate granting the relief sought by the defense. He found a substantial likelihood that the defendant's right to a fair trial would be prejudiced if closure were not ordered and found that alternatives to closure would not protect his rights. In so doing the judge observed that there had been numerous reports about the case on radio and television, as well as in major newspapers and the local newspapers that were relied on by the community as credible news sources. The South Lake Tahoe area from which a jury panel would be summoned had a population under 40,000 people. That, in addition to the fact that the victims were local and sympathetic, the *568 defendant had no substantial ties to the community, and the nature of the anticipated evidence created a substantial likelihood and probably a "virtual certainty" that a fair and unbiased jury could not be picked in the community unless the court acted to protect the defendant's right to a fair trial in the vicinage.
Notwithstanding the concern appellant expressed at this stage of the proceedings, and his subsequent motion to close all hearings on suppression motions [9] he did not seek, and consistently opposed, changing the location of the trial to Placerville. Counsel explained that, notwithstanding the "poisoned" community at South Lake Tahoe, they believed that Placerville was a very conservative community and, all things considered, they thought it might be more advantageous to try the case in South Lake Tahoe.
The trial venue was first discussed on January 7, 1988, when the prosecutor suggested that the court have defense counsel place on the record the reason no request for change of venue to another county or to move the trial "over the hill" to Placerville was made. The prosecutor was concerned that there might later be a claim of error or of incompetent counsel if this were not done and suggested that he need not be present and the record could be sealed to avoid revelation of defense tactics. Defense counsel stated that the matter could be discussed in chambers. [10]
*569 The District Attorney of El Dorado County then expressed concern in a letter to defense counsel dated February 16, 1988, with a copy to Judge Finney, that the case was scheduled for trial at the South Lake Tahoe session. He noted that there had been extensive publicity in the South Lake Tahoe area and that many witnesses were from that community. It would be difficult for jurors to avoid contact with the witnesses or other improper influence. The district attorney offered to confer with defense counsel. On March 4, 1988, Judge Fogerty, apparently the administrative presiding judge in Placerville, ordered the case transferred to the Placerville session of the court for further proceedings. Notwithstanding that order Judge Finney continued to conduct pretrial proceedings in South Lake Tahoe. On March 11, 1988, Judge Finney continued the trial date to a later Placerville session. Defense counsel objected to the transfer and the parties were permitted to submit briefs on the transfer question. The district attorney, by letter citing People v. Jones (1973) 9 Cal.3d 546 , 108 Cal. Rptr. 345 , 510 P.2d 705 , expressed concern that, unless the defendant consented, the transfer would violate the defendant's right to a jury of the vicinage since juries drawn to serve in the Placerville sessionexcluded residents of the South Lake Tahoe area. The district attorney noted, however, that Jones suggested that if a jury is drawn from the entire county the vicinage requirement is satisfied. Judge Fogerty then advised counsel for defendant that he did not believe the defendant could receive a fair trial in South Lake Tahoe because of the extensive publicity, that he was ordering a countywide venire for jury selection, and that he had ordered that all pretrial proceedings be heard before Judge Finney at the South Lake Tahoe session of the court.
Appellant opposed the transfer by motion for reconsideration of the March 4 transfer order. He argued that the transfer denied him equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution as he was the only criminal defendant alleged to have committed a crime in South Lake Tahoe to be forced to undergo trial in Placerville with a jury drawn from the entire county since the South Lake Tahoe session began in 1977. He also claimed denial of his right to be tried by a jury drawn from and comprising a representative cross-section of the community. Because many South Lake Tahoe residents had been exposed to the extensive publicity, they would face obstacles to jury service not shared by residents of other parts of the county. They would also face the hardship of daily travel of at least 130 miles over the Sierra Nevada Mountains for three months in order to serve in Placerville, all of which would result in a jury panel that would be inordinately underrepresentative of the South Lake Tahoe community, denying defendant the right to be tried by a jury comprising a cross-section of the community.
At this point the district attorney opposed the motion for reconsideration, observing that Code of Civil Procedure former section 206c (Stats.1977, ch. 229, § 1, p. 1026, now Code Civ. Proc., § 199), permitted countywide trial jury venires. He argued that the countywide venire satisfied constitutional vicinage and district concerns and that O'Hare v. Superior Court (1987) 43 Cal.3d 86 , 233 Cal.Rptr. 332 , 729 P.2d 766 , and People v. Jones, supra, 9 Cal.3d 546 , 108 Cal.Rptr. 345 , 510 P.2d 705 , were dispositive. On April 14, 1988, the court indicated that defense counsel had explained in chambers that the *570 process to determine if a fair trial could be had in South Lake Tahoe.
Judge Finney denied reconsideration of the transfer order and directed the jury commissioner to prepare a panel of 300 prospective jurors randomly selected from the entire county. [11] Judge Fogerty offered to try the case or to have someone cover his court if Judge Finney elected to try it. The trial was held in Placerville with Judge Finney presiding.
Appellant moved to quash the jury venire when only 30 of the 300 prospective jurors in the first two panels were from the Lake Valley Judicial District that encompasses the Lake Tahoe area. An evidentiary hearing on the issue of random selection was held on June 27, 1988. [12] Appellant offered evidence that there were 72,000 names on the source list from which jury venires were selected, of which 19,000 persons were Tahoe area residents. In selecting potential jurors for this trial, 6,000 persons were excluded because their names had appeared on other venires during the past year. Of those excluded persons, 3,000 were from the Tahoe area and were excluded even though they were not ineligible to serve. Of the 2,061 persons selected in the computer run, 502 had Tahoe area ZIP codes, and 1,559 had ZIP Codes from the Western Slope. Responses to questionnaires sent to those persons totaled 339 from the Tahoe area and 1,235 from the Western Slope. After reviewing the questionnaires as they came in and eliminating the persons who were ineligible to serve, the jury commissioner placed them in a stack as they came in and used the first 300, in three groups of 90 and one of 30, to create four panels for this trial. [13] Of the 90 persons in the first panel, 5 were from the Tahoe area. Of the 90 persons in the second panel, 21 were from the Tahoe area. The third panel of 90 included 12 persons from the Tahoe area; the 30-member fourth panel had no one from the Tahoe area.
Appellant also offered testimony by an expert in mathematics and statistics that one would expect that a random sample of the entire county would produce 80 persons from the Tahoe area, based on 19,000 potential jurors in the Tahoe area and 52,700 others, or 26.7 percent from the Tahoe area. Excluding the 3,000 names from each area that had been dropped, a random selection should produce 74 prospective jurors from the Tahoe area. Even considering only those from the Tahoe area who responded to the jury questionnaire, one would expect 64.6 panelists from the Lake Tahoe area in a random selection. After considering that a higher number of Tahoe area persons was excused by the jury commissioner than Western Slope persons, the witness concluded that there was one chance in 800 that the selection process was random. The witness acknowledged that the disparity might be attributable to the manner in which the names were selected from the questionnaires as they were received, those from the Placerville area being received *571 earlier, and might be affected by the percentage of Tahoe area persons excused by the jury commissioner because they were ineligible to serve as jurors or had another excuse. [14] From a mathematical viewpoint, because persons from the Tahoe area do not respond as quickly as those on the Western Slope, the expert did not consider the method by which jurors were selected for this trial to be an appropriate means by which to achieve randomness.
Appellant argued that the evidence established that the venire did not include a representative cross-section of the Tahoe area population. He acknowledged being unable to demonstrate that the disproportionate number of hardship excuses granted persons from that area was improper. Ultimately, the only defect in the selection procedure identified was use of the first 300 questionnaires returned from the 2,000-plus source list to which they had been mailed as the venire. That, counsel argued, was not a random sample. Judge Finney was not persuaded. He noted that the questionnaires were returned by individuals acting independently, whenever the individuals decided to fill them in and mail them, and they had been stacked as they came in. That, he reasoned was "probably as random as you can get." The judge also concluded that appellant's real complaint was not about randomness, but lack of representation from the vicinage. Defense counsel insisted that the motion to quash was based on both grounds.
The court rejected this challenge to the venire pretrial and again posttrial when offered as one basis for a motion for new trial. [15]
*572 The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, grants a criminal defendant the right to trial "by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." When the Legislature has specified a county as a judicial district, a jury drawn from an entire county satisfies the vicinage right that is thereby guaranteed. ( Hernandez v. Municipal Court (1989) 49 Cal.3d 713, 717 , 263 Cal.Rptr. 513 , 781 P.2d 547 .)
As we explained in Hernandez : "Vicinage and cross-section representation are guaranteed by the Sixth and Fourteenth Amendments. Although sometimes erroneously used interchangeably, vicinage and cross-section representation are discrete principles of criminal jury trials. The right to cross-section representation is a demographic requirement, which assures a criminal defendant a trial by a jury selected without systematic or intentional exclusion of cognizable economic, social, religious, racial, political and geographical groups. [Citations.] It is designed to protect the right to be tried by an impartial jury. [Citations.] [¶] The vicinage right is a geographic requirement. It is the right of a criminal defendant to be tried by a jury drawn from the area in which the crime occurred. [Citation.] It is unrelated to the ideal of impartiality [citation] and has nothing to do with the defendant's place of residence. Although the vicinage right is assertable by a defendant in a criminal trial, in the present day criminal justice system the vicinage requirement also protects the right of the offended community to pass judgment in criminal matters." ( Hernandez v. Municipal Court, supra, 49 Cal.3d at p. 716, fn. 1 , 263 Cal.Rptr. 513 , 781 P.2d 547 .)
There is no merit in appellant's contention that the judicial district in which these offenses were committed was the supervisorial district from which the jury venire was drawn for the South Lake Tahoe session of the superior court. The Legislature may determine the size of the area from which a jury may be drawn by establishing judicial districts. At the time of appellant's offenses in 1987, as now, El Dorado County had only one judicial district — the entire county. The Legislature had not authorized division of the county into smaller districts, and based on population, such division was impermissible. (Gov.Code, §§ 69640-69650.) [16] Thus, for vicinage purposes, the entire county was the district previously ascertained by law within the meaning of the Sixth Amendment. The designation of a South Lake *573 Tahoe session, or sitting of the court, could not change that controlling law. Although Government Code section 69751.5 authorizes the establishment of superior court "sessions" in cities more than 30 miles from the county courthouse if the city has a population exceeding 7,000 persons, designating a session of the superior court does not change the district for purposes of vicinage. In fact, the only reference to "district" in the superior court rule that established the South Lake Tahoe session was in a provision making the boundaries for the session identical to the boundaries of the municipal court district then in effect. (Super.Ct. El Dorado County, Local Rules, former rule No. 1, pt. 3; see now id., rule 2.00.09 [South Lake Tahoe session to hear actions arising in South Lake Tahoe Area, as defined].) [17] Appellant was accorded a jury drawn from the vicinage in which his crimes were committed. Neither the Sixth Amendment nor the California statutory scheme for jury selection was violated by the countywide draw.
We also reject appellant's claims that he was not tried by a jury selected from a venire representing a fair cross-section of the community and that the jury selection process was not random. He argues that only 12.3 percent of the 300-person venire was from the South Lake Tahoe area and notes the testimony of his expert who opined that the disparity showed that the selection process was not random. He does not make any argument based on those asserted facts, however, but ultimately claims that trial before the "wrong jury," a jury that had no residents of the South Lake Tahoe area, was "structural error" that requires per se reversal without a demonstration of prejudice. The evidence did not support these claims and no basis for reversal appears in the jury selection process. The jury was drawn from a panel selected randomly from the entire county. There was no systematic or intentional exclusion of jurors from the South Lake Tahoe area.
We need not decide here whether the court erred in moving the trial to Placerville over the objection of defendant or whether the concerns of the prosecutor and judge that defendant might not receive a fair trial in South Lake Tahoe constituted good cause for the transfer within the meaning of the local rules of the El Dorado County Superior Court. [18] Defendant was tried in the district specified by the Legislature. The possible violation of a local rule is not a basis for reversal.
Contrary to appellant's belief, the due process considerations upon which a criminal defendant's right to a hearing on the defendant's motion for a change of venue are founded (see Cal. Rules of Court, rule 841; People v. Cooper (1991) 53 Cal.3d 771, 804 , 281 Cal.Rptr. 90 , 809 P.2d 865 ) have no applicability to assignments within judicial districts which may be made for administrative purposes or other good cause. Even assuming such a right, appellant was granted a full hearing on his motion for reconsideration of Judge Fogerty's order.
We also reject defendant's claim that the transfer order denied him equal protection and resulted in cruel and unusual punishment. No imposition of punishment attends an order changing the location of a trial. It is true, as defendant argues, that under section 1033, subdivision (a), the trial of a defendant who objects may not be moved to another county. It does not follow, however, that a defendant who objects to trial within the district in which the charged offense occurred but in another city is denied equal protection as against a defendant objecting to transfer *574 to another county. Defendants do not have the right to trial in a particular court within the district. The assignment of cases for trial is among the administrative responsibilities of the court. (See Gov. Code, § 69508; Cal. Rules of Court, rule 205.)
2. Denial of motion to suppress evidence.
As the above summary of evidence suggests, the agents who broke into appellant's trailer had neither an arrest nor a search warrant. Because a warrantless entry is presumptively unreasonable within the meaning of the Fourth Amendment ( Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 ; Payton v. New York (1980) 445 U.S. 573, 586 , 100 S.Ct. 1371 , 63 L.Ed.2d 639 ), the People bear the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry. ( People v. Williams (1988) 45 Cal.3d 1268, 1298 , 248 Cal.Rptr. 834 , 756 P.2d 221 .) At the evidentiary hearing, in their memoranda of points and authorities filed thereafter, and at the subsequent argument of appellant's motion to exclude evidence taken from the trailer and the statements he made to the arresting officers, the People sought to establish that probable cause existed for the agents to believe that the victims were in the trailer, that exigent circumstances justified the entry because there was also probable cause to believe the girls' lives were in danger, and that the agents had not manufactured that exigency. [19]
Appellant did not, and does not, dispute the existence of probable cause at the time of the break-in. At the January 8, 1988, argument of the suppression motion, appellant's counsel conceded that probable cause to believe the lives of the girls were in danger had been established at the moment of the break-in. He argued only that there was no probable cause to believe the girls were in the trailer and in danger apart from his own statement to FBI Agent Baker when Baker called the trailer while Agent Barcklay was knocking on the door and asking to speak to appellant. He argued that this statement—that the girls were in the trailer—was the product of Agent Barcklay's unlawful demand for admittance to the trailer.
There was conflicting evidence at the hearing as to what Barcklay said to appellant. Barcklay testified that he asked only to speak to appellant. Agent Alexander, who overheard Barcklay, testified that Barcklay said "FBI, open the door." The trial court did not resolve the conflict, ruling instead that probable cause and exigent circumstances existed apart from anything appellant said to Baker while Barcklay was at the door.
In this court, appellant argues first that because a warrant could have been obtained before the agents approached the trailer, failure to obtain the warrant rendered the entry and search unlawful. He also argues, as he did below, that his statement to Agent Baker was in response to Barcklay's unlawful assertion of authority and therefore may not be relied on to justify entry into the trailer.
a. Ability to obtain warrant
Appellant argues that the exigent circumstances exception to the warrant requirement may be invoked only in circumstances in which law enforcement agents have insufficient time to obtain a warrant prior to the entry. He concedes that he did not argue his first theory below. *575 Therefore, the trial court made no findings on the question. Nonetheless, since appellant claims that his trial attorney rendered constitutionally ineffective assistance by failing to make this argument below, we address and reject the claim. Because the claim lacks merit, appellant cannot satisfy either prong of the constitutional test of ineffective assistance. He cannot establish that counsels' performance was deficient for failing to seek exclusion of the evidence on this ground or demonstrate that he was prejudiced by counsels' failure to do so. (See Strickland, v. Washington (1984) 466 U.S. 668, 693-694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 , 233 Cal.Rptr. 404 , 729 P.2d 839 .)
Following argument on the motion to suppress evidence the court ruled that, quite apart from anything appellant said on the telephone, probable cause to believe that the girls were in the mobilehome and exigent circumstances justifying a warrantless entry existed. Appellant had disputed only probable cause to believe the missing persons were in the mobilehome.
We agree that probable cause to believe the victims were in the mobile home existed prior to the time two FBI agents went to the door. Evidence offered at the evidentiary hearing on the motion to suppress evidence showed that prior to 9:00 p.m. on Monday, May 18, Knowles, the FBI agent in charge of the combined law enforcement effort to locate the four missing persons, who were believed to have been kidnapped, knew that a person resembling appellant had interviewed several young girls at various modeling agencies in the Reno area and had arranged to meet two of those girls and their chaperones in the South Lake Tahoe area on the day the four disappeared. The chaperone's car had been found abandoned not far from the location of the mobilehome. The FBI had learned the identity of appellant as the person who occupied the trailer, knew that witness Tveten had identified appellant as owning a car which used a TVETEN auto dealership license. Another witness had placed a car with what she recalled as a "TVTEEN" license at a modeling studio where the suspect had interviewed teenage models. Tveten told the investigating officers that appellant possessed firearms and said that a composite sketch of the suspect based on descriptions given by other teenage models and model agency employees resembled appellant. The officers also knew that appellant had said he was building a soundproof room in the mobilehome. FBI and local law enforcement personnel who had the mobilehome under surveillance saw appellant drive away from the trailer and attempt to avoid surveillance on his return. During that trip appellant drove in a manner that led them to believe he was attempting to avoid being followed. He appeared either to be wearing a wig or had unnaturally colored hair. Moreover at 9:03 p.m., shortly before the assault on the mobilehome, appellant had called the FBI, stating that a friend told him that the FBI wanted to talk to him about the Reno kidnapping and that appellant's picture was in the post office. The latter was untrue. No photo had been posted in the community.
The developments immediately preceding the decision to break into the trailer included the following: When appellant called the FBI to say he heard they wanted to talk to him, Agent Baker told appellant that Baker was not directly involved in the investigation, took appellant's telephone number and address, and told appellant someone would get in touch with him. Agent Knowles, the agent in charge, then detailed an interview team to go to the trailer to talk to appellant. The telephone call afforded the agents an opportunity to speak to appellant without revealing that they considered him a suspect. Depending on appellant's response, the agents might either seek consent to search or, if it was believed necessary, undertake a "protective sweep," i.e., "a sweep of the premises for the sole purpose of determining whether or not in this case there were *576 any victims in that residence; not for the purpose of obtaining any evidence...."
Barcklay testified that as he knocked on the door of the trailer, the lights in the trailer went out. He remained at the door and when he heard a voice asking who it was, identified himself and the other agent as FBI, and said he wanted to speak to appellant. Agent Alexander testified that Barcklay said "FBI, open the door." Barcklay testified that the person inside said he did not want to talk to them now and wanted to talk by telephone. Barcklay then heard the telephone ring inside the trailer and when the person inside asked what he wanted, Barcklay responded that the FBI was on the phone and he wanted the person to answer the telephone. He also heard a radio transmission from Agent Knowles directing the agents to "hit" the trailer, followed by a similar order from Agent Joyce who was at the scene. Within seconds, Agent Joyce was at the trailer breaking the window.
Knowles, who was at the South Lake Tahoe command post with Agent Baker, had telephoned the trailer at the request of Agent Joyce when the lights went out and had been advised by Baker that appellant said the girls were alive in the trailer, then instructed the agents to assault the trailer.
Special Agent Joyce was the agent in charge at the trailer. It was stipulated that he had the same knowledge of events as Knowles when he went to the site. He mobilized a team of agents to back up the two whom Knowles dispatched to interview appellant, and proceeded to the vicinity of the trailer. As Joyce parked, the two agents assigned to interview the occupant had just been directed by Knowles to do so. Joyce heard the interviewing officers knocking on the door when he saw the lights in the trailer go out. Concerned about the developing situation, he asked the command post to telephone the occupant of the trailer. Agent Baker did so. When advised by radio that the occupant told Agent Baker that the girls were alive in the trailer, Joyce ordered the agents at the scene to "hit the trailer." Joyce had not heard Knowles' command.
When Agent Joyce observed that the agent at the door of the trailer was having difficulty breaking in, Joyce took his gun, broke a window and went partially into the trailer. He saw appellant running to the back of the trailer, ordered him to halt and lie down, and held appellant at gunpoint until the agents who came through the front door took custody of appellant. Joyce then admitted an agent through the back door and went to a bedroom, where he saw the girls. Two South Lake Tahoe officers discovered the murder victims in another room. At that point those officers took charge, and asked the FBI agents to vacate the trailer, as they were sealing it while a search warrant was obtained. The FBI agents were in the trailer from seven to 10 minutes. [20]
The trial court remarked that there was overwhelming justification for the warrantless entry and commented that the FBI acted in what was really a restrained way. We agree. Probable cause to believe the victims were in the mobilehome and were in danger existed even before Agent Barcklay knocked on the door and appellant told Agent Baker on the telephone that the girls were in the trailer. Moreover, the record does not establish any delay, deliberate or otherwise, on the part of the FBI, the lead investigating agency, in obtaining a warrant. To the contrary, it shows that by the afternoon of May 18, the agents were following routine FBI procedures to obtain a warrant. They had discussed their evidence with a special agent in Sacramento whose job it was to advise field agents *577 whether probable cause existed. Having obtained his opinion, they had taken the next step of presenting their information to the United States Attorney for a formal legal opinion and, anticipating approval, had contacted the United States Magistrate in the South Lake Tahoe area to determine if he would be available that evening. FBI and other law enforcement agents had appellant under surveillance, but no attempt to contact him had been made. While the FBI agent in charge was awaiting a response from the United States Attorney to the probable cause inquiry, appellant called and said he had heard that the FBI wanted to talk with him. Appellant was told he would be contacted and agents were dispatched to interview him. No warrant was needed to go to the trailer in an effort to interview appellant in response to his own call. Only the subsequent rapidly developing events, events precipitated by appellant himself, necessitated action prior to obtaining the warrant. This was not a situation in which the officers deliberately waited for exigent circumstances in order to exploit that exception to the warrant requirement. (See United States v. Dowell (7th Cir.1984) 724 F.2d 599, 602 .)
None of the authorities relied on by appellant, for the proposition that the exigent circumstances exception to the warrant requirement does not apply when law enforcement agents have time to seek a telephonic warrant before entry, support his claim that a warrant was necessary here. None involved entry to rescue kidnap victims whose lives reasonably were believed to be in danger. When there is a compelling need for official action and no time to secure a warrant, exigent circumstances excusing compliance with the warrant requirement exist. ( Mason v. Godinez (7th Cir.1995) 47 F.3d 852, 856 ; United States v. Arch (7th Cir. 1993) 7 F.3d 1300, 1304 .) A reasonable belief of an imminent threat to life or welfare of a person within the home, probable cause to believe that a person reliably reported missing is within, or a reasonable belief that a person within is in need of aid, are well recognized as exigent circumstances that justify a warrantless entry. (See Welsh v. Wisconsin, supra 466 U.S. 740, 747-753 , 104 S.Ct. 2091 , 80 L.Ed.2d 732 ; Fletcher v. Town of Clinton (1st Cir.1999) 196 F.3d 41, 48 ; People v. Wharton (1991) 53 Cal.3d 522, 577-578 , 280 Cal.Rptr. 631 , 809 P.2d 290 ; People v. Lucero (1988) 44 Cal.3d 1006, 1017-1018 , 245 Cal.Rptr. 185 , 750 P.2d 1342 ; People v. Duncan (1986) 42 Cal.3d 91, 97 , 227 Cal.Rptr. 654 , 720 P.2d 2 ; People v. Ramey (1976) 16 Cal.3d 263, 276 , 127 Cal.Rptr. 629 , 545 P.2d 1333 ; People v. Wilkins (1993) 14 Cal.App.4th 761 , 17 Cal.Rptr.2d 743 ; see also 4 Witkin & Epstein, Cal.Criminal Law (2d ed.1989) Exclusion of Illegally Obtained Evidence, § 2377, p. 2804, and cases cited.) The warrantless entry in those circumstances is not "unreasonable" in the contemplation of the Fourth Amendment. In circumstances such as those in this case, immediate action was necessary. The agents were not obliged to delay rescue of the victims until a warrant, telephonic or otherwise, could be obtained.
By contrast, in United States v. Patino (7th' Cir.1987) 830 F.2d 1413 , on which appellant relies, warrantless entry was made into the home of an armed robbery suspect to arrest her and a companion also suspected of participating in a series of robberies. Several officers were available to ensure the suspects did not escape while a warrant was being obtained, and the suspects were not aware they had been located. Patino is clearly distinguishable, as no victim was being held in the home. In United States v. Duchi (8th Cir.1990) 906 F.2d 1278 , warrantless entry was made into the home of a suspect who had earlier picked up and taken to the home a package of cocaine. Again there was no reason to believe that a victim was being held in the home.
Therefore, even assuming that probable cause existed at some earlier time, there was no violation of the Fourth Amendment. Not only was there no deliberate delay in obtaining a warrant, but no *578 warrant was needed for the attempt to interview appellant following his call to the FBI. Inasmuch as the agents were in a place where they had a right to be — at defendant's door to seek an interview when subsequent events made them believe that immediate entry without completing the warrant process was necessary, the failure to have obtained a warrant at that time did not violate any of appellant's Fourth Amendment-based rights. No Fourth Amendment privacy interests are invaded when an officer seeks a consensual interview with a suspect. Exigent circumstances arising when the agents did so here justified the entry. This was not a situation in which there was deliberate delay in obtaining a warrant or a warrantless entry that the officers attempted to justify on grounds of convenience. (Cf. Trupiano v. United States (1948) 334 U.S. 699 , 68 S.Ct. 1229 , 92 L.Ed. 1663 ; Johnson v. United States (1948) 333 U.S. 10 , 68 S.Ct. 367 , 92 L.Ed. 436 .)
b. Response to unlawful assertion of authority.
Appellant argues here, as he did below, that his statement that the girls were in the trailer may not be considered in determining probable cause to believe the girls were in the trailer because that statement was the product of Agent Barcklay's unlawful demand for entry.
As noted above, the trial court found it unnecessary to decide whether Barcklay demanded entry or simply asked to speak to appellant because, the court ruled, probable cause to believe the missing persons were in the trailer existed apart from appellant's statement. We agree with that ruling. The evidence was sufficient to support that court's finding that even before Agent Barcklay said anything to appellant, probable cause existed to believe appellant kidnapped the missing persons and was holding them in the trailer, and that their lives were in danger. It is not necessary to consider appellant's statement that the girls were in the trailer to conclude that the exigent circumstances exception to the warrant requirement justified the entry.
The trial court did not err in denying appellant's motion to suppress evidence.
3. Exclusion of evidence of mental illness.
In advance of the guilt phase trial session at which appellant planned to offer psychiatric testimony, the court and counsel discussed the scope of the mental state evidence that would be admitted. Appellant conceded that no evidence of "diminished capacity" was admissible, but sought a ruling that the expert would be permitted to testify regarding "diminished actuality." The court ruled that the defense could offer any relevant evidence on mental defect or disease. However, no questions could be asked of the expert by either appellant or the People about whether or how such defect or disease would affect the defendant's mental state or actuality, or if it would impair his ability to form an intent, deliberate, or premeditate, unless the psychiatrist would testify, out of the presence of the jury, that he believed that appellant did not premeditate and deliberate the killings. The court extended that ruling to preclude any hypothetical questions regarding the effect of mental defect or illness on a person's ability to deliberate or premeditate. Appellant then offered no evidence of mental illness at the guilt phase. He now claims that the court erred.
The ruling was an overly restrictive reading of the statutory limitations on admission of evidence of mental illness. Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent is not admissible at the guilt phase of a trial. ( People v. Smithey (1999) 20 Cal.4th 936, 960-961 , 86 Cal.Rptr.2d 243 , 978 P.2d *579 1171.) Sections 28 [21] and 29 [22] permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state. An expert's opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation regardless of whether the expert believed appellant actually harbored those mental states at the time of the killing.
We reject, however, appellant's claim that exclusion of expert testimony on the ultimate question of fact as to whether appellant did form those mental states denied him the right to present a defense and thereby deprived him of rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. All authority is to the contrary. (See, e.g., People v. Nunn (1996) 50 Cal. App.4th 1357 , 58 Cal.Rptr.2d 294 ; People v. Young (1987) 189 Cal.App.3d 891, 905 , 234 Cal.Rptr. 819 ; People v. McCowan (1986) 182 Cal.App.3d 1, 12-15 , 227 Cal. Rptr. 23 ; People v. Whitler (1985) 171 Cal.App.3d 337 , 214 Cal.Rptr. 610 .) Sections 28 and 29 do not preclude offering as a defense the absence of a mental state that is an element of a charged offense or presenting evidence in support of that defense. They preclude only expert opinion that the element was not present.
Although we agree that the court erred in ruling that the experts could not testify unless they believed defendant did not premeditate and deliberate the murders, that error is not a basis for reversal of the judgment. The record does not confirm appellant's implied claim that his failure to offer expert testimony regarding mental illness or defect was attributable to the trial court's restriction of expert testimony. At the hearing, defense counsel conceded that section 29 precludes expert opinion on whether a defendant had the capacity to entertain or actually had a particular mental state when the crime was committed and submitted the matter only on the issue of whether hypothetical questions could be asked of the experts. The court ruled that expert opinion on the ultimate issue could not be introduced by means of asking the expert a hypothetical question such as what a person who had a bipolar disorder or was a paranoid schizophrenic could or could not do. The expert could not tie the disease to appellant's conduct in that manner. That discussion and a subsequent discussion of what evidence *580 the prosecution would be permitted to offer to impeach defense evidence of mental illness clearly assumed that the defense would be offering psychiatric testimony.
Thus, appellant was free to offer evidence that he suffered from a mental disease or defect as well as evidence about that disease or defect. Had the evidence he introduced at the sanity phase about his mental illness offered a basis from which the jury could infer that he did not premeditate or deliberate the murders, that evidence could have been introduced at the guilt phase. Inasmuch as he failed to offer any such evidence at the guilt phase and the record does not reflect that this failure was due to the court's ruling, the issue is not properly preserved or presented. ( People v. Samayoa (1997) 15 Cal.4th 795, 837 , 64 Cal.Rptr.2d 400 , 938 P.2d 2 .) Even assuming the court erred in precluding hypothetical questions, however, the error was not prejudicial. None of the experts, either court-appointed or defenseretained, all of whom testified that appellant was mentally ill, suggested that his illness precluded or would affect the ability to premeditate and deliberate. At least to the extent that it was relevant to the plan to seize the girls and their chaperones, the guilt phase evidence demonstrated extensive premeditation and deliberation. There was also sufficient evidence that the murders were premeditated and deliberate.
4. Presumption-of-sanity instruction.
The court instructed prospective jurors that during the guilt phase of the trial the defendant was to be conclusively presumed to be sane at the time of the crime. Although that instruction correctly states the law (see § 1026; People v. Haskett (1990) 52 Cal.3d 210, 232 , 276 Cal. Rptr. 80 , 801 P.2d 323 ), appellant contends that this was error which prejudicially undermined his guilt phase defense of lack of premeditation of the murders. He concedes that the jury was instructed that if the defendant did not premeditate because of mental illness or defect, he was not guilty of first degree murder, but claims, nonetheless, that the jury would conclude that the presumption-of-sanity instruction meant that the evidence of his odd behavior prior to the killings could not be considered. A defendant who believes that an instruction requires clarification must request it. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1140 , 36 Cal.Rptr.2d 235 , 885 P.2d 1 .) Appellant neither objected to the instruction nor sought modification.
We are satisfied that appellant suffered no prejudice here in any case. As defendant observes, we noted in People v. Burton (1971) 6 Cal.3d 375, 390 , 99 Cal.Rptr. 1 , 491 P.2d 793 that the instruction given there [23] could mislead the jury when evidence of mental illness was offered at the guilt phase. The Burton instruction was very different from that of which appellant complains here. Moreover, the prosecutor and defense counsel argued the presence or absence of mental disease during guilt phase closing argument, with defendant reminding the jury that whether appellant was mentally was for the jury to decide. The guilt phase instructions given shortly thereafter expressly advised the jury that premeditation and deliberation were elements of first degree murder and that evidence that the defendant suffered from a mental illness or defect could be considered in determining if those mental states were present. [24]
*581 There was no possibility of confusion arising from the instruction of which appellant complains here.
5. Failure to strike or exclude reference to alleged statement of Allen Hacker.
Appellant moved in limine prior to the prosecutor's opening statement to exclude mention of his conversation with David and Allen Hacker regarding methods of killing, including the use of nylon ties, described in a booklet allegedly published by the CIA. He argued that the statements had been made in jest many years before the murders. The court denied the motion, commenting that the use of FLEX-CUFs was a unique method of killing and thus the defendant's knowledge of the method was relevant. The prosecutor then told the jury that Mr. Hacker would tell the jury that defendant was "obsessed" with that means of killing. [25] Neither David nor Allen Hacker so testified. Both recalled the incident and confirmed that appellant had read aloud the description of killing with plastic ties, but each denied that appellant had shown a particular interest in that form of killing.
David Hacker testified that in 1983 appellant read to him and his brother Allen from a booklet about assassinations that described various methods of killing people. David Hacker recalled that appellant told them about two of those methods. One, "Keep a Cool Head," involved throwing liquid oxygen or liquid hydrogen in a person's face. The other was the use of a clear "baggie" nylon tie by walking behind the victim, getting the tie started, pulling it tight, and walking away. Appellant's affect or mood when describing that type of killing did not differ from his mood when he read about other methods of killing. There was laughter about "Keep a Cool Head" which was "hilarious, ridiculous." David Hacker was not really paying attention to how appellant was laughing when the use of nylon ties was described.
During his testimony Allen Hacker testified that appellant agreed that the methods of killing were outrageous and unrealistic. Allen Hacker also testified that appellant expressed no particular interest in nylon ties in subsequent contacts. On cross-examination, Allen Hacker denied telling FBI Agent McKevitt that appellant often read The Anarchist Cookbook and seemed particularly interested in killing women.
After the court denied a defense motion to strike the testimony Allen Hacker gave on cross-examination, and over a defense objection, Agent McKevitt, called on rebuttal by the People, testified that Allen Hacker had stated to her that appellant seemed especially interested in various methods of killing people, particularly women. [26] The court also denied a defense *582 motion to strike that testimony, ruling that the testimony was proper impeachment.
Before admitting McKevitt's testimony, the court held a hearing on the admissibility of that testimony. Daniel Birtwell, the chief investigator for the El Dorado County District Attorney's Office, testified that he spoke to both David and Allen Hacker. In November or December 1987 he telephoned David Hacker to find out how to contact Allen. In the course of the conversation, Birtwell brought up some of the topics covered in David Hacker's statement to Agent McKevitt. David Hacker did not state anything that departed from the FBI report.
Birtwell's personal interview of Allen Hacker in San Jose on January 12, 1988, was taped. Allen Hacker told him that he and appellant were in a Las Vegas gun store where they saw the book regarding methods of killing. Hacker referred to one of the methods as using a "ziplock." He did not use the term FLEX-CUF.
The court ruled that McKevitt's testimony would be admitted. It was relevant and the voir dire and hearing had not demonstrated that she was a liar. The court also ruled that the defense would not be permitted to call Birtwell or to introduce the entire taped interview of Birtwell on a defense theory that Allen Hacker's statements to Birtwell were prior consistent statements that were admissible under Evidence Code section 791 to rehabilitate Allen Hacker. The defense was unable to identify any part of the tape on which the subject of appellant's interest in killing was addressed. The statement was not made prior to Hacker's statement to McKevitt and there was no implication of recent fabrication by Hacker that would justify admission of the tape of the Birtwell interview.
Appellant now claims that allowing the jury to hear the prosecution's claim in his opening statement, that a Mr. Hacker would testify that appellant was interested in various methods of killing women, rndered the trial fundamentally unfair. Since the testimony of David Hacker did not support the prosecutor's claim, the jury might assume that Allen Hacker was the person to whom the prosecutor referred. Appellant therefore called Allen Hacker, making it clear to the jury that the reason Allen Hacker was being called was to dispel the false impression given by the prosecutor in the opening statement. Had he not been forced to do so, McKevitt's rebuttal testimony would not have come in.
Appellant's argument in support of his claim that the trial was rendered fundamentally unfair as a result of this is simply that it led to the erroneous admission of McKevitt's testimony. McKevitt's testimony, he argues, was hearsay that did not directly contradict Allen Hacker.
We first reject the claim that the prosecutor engaged in misconduct in his opening statement by characterizing appellant's interest in using a plastic tie as a method of killing as obsessive. Nothing in the record dispels the inference that the prosecutor anticipated that his witness would testify that appellant had expressed interest in that subject. His opening statement simply overstated the extent of that interest as described by subsequent testimony. It was not a statement that denied appellant a fair trial, diverted the jury from its proper role, or invited an irrational, subjective response. ( People v. Visciotti (1992) 2 Cal.4th 1, 83 , 5 Cal.Rptr.2d 495 , 825 P.2d 388 .)
We also reject the argument that failure to strike that assertion led to a fundamentally unfair trial and the erroneous admission of evidence. We cannot say that the admission of McKevitt's testimony to impeach Allen Hacker was such an arbitrary, capricious, or patently absurd exercise of discretion that it constituted an abuse of the discretion vested in a trial court to admit impeachment evidence. A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse. ( People v. Alvarez (1996) 14 *583 Cal.4th 155, 201, 58 Cal.Rptr.2d 385 , 926 P.2d 365 .) Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. ( People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 , 82 Cal.Rptr.2d 413 , 971 P.2d 618 ; People v. Jones (1998) 17 Cal.4th 279, 304 , 70 Cal.Rptr.2d 793 , 949 P.2d 890 .)
Even were we to assume that the admission of McKevitt's testimony was an abuse of discretion, the error was harmless. The evidence that appellant was prepared to kill if necessary to carry out his plan to falsely imprison and sexually abuse young girls was overwhelming. The uncontradicted evidence that he was aware that plastic ties could be used to strangle was relevant both to his intent when he tightened the ties around the necks of Martin and Walsh and, since he had ordered the ties ahead of time, to whether he premeditated the killings. That evidence was admissible regardless of what appellant argues was its prejudicial impact. It was not made inadmissible by Evidence Code section 352. "`The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging."' ( People v. Yu (1983) 143 Cal.App.3d 358, 377 , 191 Cal. Rptr. 859 .)" ( People v. Bolin (1998) 18 Cal.4th 297, 320 , 75 Cal.Rptr.2d 412 , 956 P.2d 374 .)
Regardless of any obsession or lack thereof, with the particular method of killing, neither the prosecutor's statement nor McKevitt's testimony resulted in prejudice to appellant.
6. Prosecutorial failure to disclose potentially favorable material evidence.
Before McKevitt's rebuttal testimony, during the hearing on the admissibility of her testimony, district attorney investigator Hawkins testified that he spoke with David Hacker in Las Vegas when he served Hacker with an out-of-state subpoena. He showed David Hacker a copy of David Hacker's statement to McKevitt, asked him to review it, asked if there were any inaccuracies, and was told by Hacker that it was his statement. Hacker pointed out some inaccuracies that Hawkins did not consider significant. Hawkins told Hacker they could be taken up at a later time.
Appellant's counsel asserted, during argument over the admissibility of McKevitt's testimony, that David Hacker told counsel on the previous night that he, David Hacker, had told the prosecutor after the prosecutor's opening statement that some of the statements attributed to David Hacker in the FBI report were inaccurate.
Appellant now contends that the failure of the prosecution to disclose that David Hacker told the prosecutor, before McKevitt testified, that McKevitt's typed report of her interview with David Hacker was inaccurate in some respects violated the state's obligation to disclose all evidence, including impeachment evidence, that reasonably appears to be favorable to the defense. ( United States v. Bagley (1985) 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 ; Brady v. Maryland (1963) 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378 , 285 Cal.Rptr. 231 , 815 P.2d 304 ; People v. Morris (1988) 46 Cal.3d 1, 30 , 249 Cal.Rptr. 119 , 756 P.2d 843 .) Appellant claims specifically that the prosecutor failed to disclose that David Hacker had denied telling McKevitt that appellant was obsessed with killing, and especially women. Appellant argues that, inasmuch as the People intended to place Hacker's statement to McKevitt into evidence, the People were obligated to reveal the impeaching evidence.
*584 First, the record does not support appellant's claim that David Hacker told investigator Hawkins that he did not tell McKevitt that appellant was obsessed with killing. Appellant implicitly concedes as much, asserting: "Because the record is undisputed, that, in the only conversation they had, the one thing David told [the prosecutor] was that he had not made the obsession statement attributed to him by McKevitt, it is only reasonable to conclude the latter was one of the inaccuracies David told Hawkins about, too."
Moreover, no evidence supports appellant's assertion that "the record is undisputed that" before he testified David Hacker told the prosecutor personally that he did not make the obsession statement. Appellant offers no citation to the record for that assumption and we have found nothing to support the claim. The only apparent basis for this claim is defense counsel's statement during argument that he had spoken with David Hacker after Hacker's testimony at which time Hacker told him that Hacker told investigator Hawkins that there were inaccuracies in McKevitt's report and that he had told the prosecutor immediately before he testified that he had not told McKevitt that appellant was obsessed with the different methods of killing people, especially strangulation by using FLEX-CUFs described in the booklet. The prosecutor did not acknowledge the truth of this assertion, which is supported only by double hearsay assertions, not evidence.
Assuming arguendo that counsel's argument created an undisputed record, however, no impropriety appeared. Evidence is favorable and must be disclosed if it will either help the defendant or hurt the prosecution. In assessing a claim made on appeal that the prosecution failed to reveal material evidence, favorable evidence is considered material only if it is reasonably probable that disclosure would have affected the result. ( United States v. Bagley, supra, 473 U.S. at p. 676 , 105 S.Ct. 3375 ; In re Sassounian (1995) 9 Cal.4th 535, 544 , 37 Cal.Rptr.2d 446 , 887 P.2d 527 .) That test is not met here. David Hacker did not testify that appellant had such an obsession. His denial that he had made such a statement could not have been used to impeach him. Neither David nor Allen Hacker disputed the accuracy of their statements that appellant was aware of the ziplock method of killing. Appellant thus fails to establish that evidence that David Hacker denied telling McKevitt that appellant was "obsessed" was material, favorable evidence that the prosecution was obligated to disclose.
Moreover, even assuming the statement should have been disclosed, the failure to do so did not harm appellant, since defense counsel were aware of the denial at the time McKevitt testified but made no effort to re-call David Hacker to use the statement to impeach McKevitt. Additionally, the only relevance of the denial was to refute the prosecutor's assertion in his opening statement that Mr. Hacker would testify that appellant was obsessed with that method of killing. The jury was instructed that the arguments of counsel were not evidence.
Thus, appellant not only fails to satisfy us that evidence of the denial could have been used to his advantage other than in an attempt to impeach McKevitt only insofar as she testified that David Hacker told her appellant was "obsessed" with using nylon ties for strangulation, but he was aware of the statement and could have called David Hacker as his witness.
For these reasons we also reject appellant's claim that in failing to "fully present" this claim—by arguing that Hawkins was an agent of the prosecution and thus whatever transpired between Hawkins and David Hacker was attributable to the prosecutor—counsel rendered constitutionally ineffective representation.
7. Admission of Candice Smith testimony.
Appellant objected to admission of Smith's testimony that he telephoned *585 her, using the name Parrott, and asked her to appear in a commercial, on the ground that the prosecution would be unable to prove that the caller was appellant. The court deemed the objection to be one made under Evidence Code section 352, and ruled that the evidence was more probative than prejudicial. Appellant now argues that the circumstantial evidence that appellant was the caller was not a sufficient foundation for admission of the evidence and contends that the evidence lacked probative value.
The prosecution bore the burden of establishing that appellant was the caller. ( People v. Collins (1975) 44 Cal.App.3d 617, 628 , 118 Cal.Rptr. 864 .) "(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: [¶] ... [¶] (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself." (Evid.Code, § 403, subd. (a)(4).) That burden was met. The People established that appellant had expressed an interest in Smith and knew she had a daughter; that he had played at Smith's table; that he was familiar with the Avalon Modeling Agency; and that he claimed to be calling from Atlanta, Georgia, the place he told the Barbizon agency his "Parrott" or "Barrett" firm was located. Although circumstantial, that evidence was a sufficient basis for concluding that appellant was the person who called Smith. The court did not abuse its discretion in admitting it. ( People v. Rodrigues, supra, 8 Cal.4th 1060, 1167 , 36 Cal.Rptr.2d 235 , 885 P.2d 1 .)
Assuming that appellant's argument on the foundation objection was sufficient to raise the latter claim, it lacks merit. Smith's testimony was relevant to the preplanning activity in which appellant engaged as he sought to lure women and young girls to his trailer.
8. Instructional error.
a. Murder instructions.
The trial court instructed the jury on first degree murder, second degree murder, and voluntary manslaughter. The defense withdrew a request for an involuntary manslaughter instruction. Appellant now contends that the trial court erred in instructing on second degree murder by describing only intentional but unpremeditated second degree murder. Appellant argues that the trial court also should have instructed, sua sponte, on an implied malice theory of second degree murder as a lesser included offense of first degree murder, since the evidence would have supported a conclusion that the murders were not intentional. He asserts that, had the jury been instructed on implied malice, verdicts of second degree murder might have been returned. Under the instructions given, the jury had no choice but to convict of an intentional killing or acquit.
We agree that the trial court erred. A court must "instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." ( People v. Breverman (1998) 19 Cal.4th 142, 162 , 77 Cal.Rptr.2d 870 , 960 P.2d 1094 .) Appellant contends that the evidence permitted an inference that the murders were not committed with premeditation but were committed in a panic when the victims put up unanticipated resistance and made noise. Murder was defined as "the unlawful killing of a human being with malice aforethought or the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life." The court instructed that the necessary mental states for first degree murder were premeditation, deliberation, and malice aforethought, and that in second degree murder "the necessary mental state is malice aforethought." In further defining second *586 degree murder, however, the court instructed only: "Murder of the second degree is also the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation." The court did not instruct the jury that second degree murder included unintentional killing with malice, and did not define implied malice.
Based on the evidence at trial a properly instructed jury could have returned second degree murder verdicts if the jury found that appellant acted in a panic and pulled the FLEX-CUFs tight only to overcome the victims' resistance and stop the noise. That he did not intend to kill when he did this was supported by evidence from which the jury could have found that someone cut the tie on Martin's neck before the police arrived. Since neither of the girls did so, the jury could have inferred that he cut the tie to assist Martin before she died.
The People respond to this claim of error that instructions on lesser included offenses are not required if there is no evidence that the offense was less than that charged. ( People v. Hawkins (1995) 10 Cal.4th 920, 953-954 , 42 Cal.Rptr.2d 636 , 897 P.2d 574 ; People v. Wickersham (1982) 32 Cal.3d 307, 323-324 , 185 Cal. Rptr. 436 , 650 P.2d 311 .) They argue on that basis that there was no obligation to instruct on any theory of second degree murder other than intentional killing because the evidence that appellant tightened the FLEX-CUFs when the victims resisted demonstrates that appellant acted with actual or presumptive knowledge that serious bodily injury was likely to occur. ( People v. Colantuono (1994) 7 Cal.4th 206, 219 , 26 Cal.Rptr.2d 908 , 865 P.2d 704 ; People v. Nieto Benitez (1992) 4 Cal.4th 91, 111 , 13 Cal.Rptr.2d 864 , 840 P.2d 969 .) That mental state permits an inference of implied malice, however, and does not support a conclusion that no instruction on second degree murder on a theory of implied malice was necessary.
The court's duty to instruct sua sponte extends to general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. Malice, an element of second degree murder, may be express, as when a defendant intends to kill, or implied. Malice may be implied from conduct that reflects an intent to do an act that is dangerous to human life. (§ 188; People v. Swain (1996) 12 Cal.4th 593, 602-603 , 49 Cal.Rptr.2d 390 , 909 P.2d 994 .) There was evidence here from which the jury could have inferred that appellant acted without intent to kill even though his conduct posed a high risk of death, but the instructions given defined only the express malice theory of second degree murder. [27]
We are satisfied, however, that the omission of complete instructions on the implied malice form of second degree murder was harmless error. There is no probability that the error affected the verdict. (Cal. Const., art. VI, § 13; People v. Breverman, supra, 19 Cal.4th at p. 165 , 77 Cal.Rptr.2d 870 , 960 P.2d 1094 ; People v. Watson (1956) 46 Cal.2d 818, 836 , 299 P.2d 243 .) The evidence of intent to kill was overwhelming and, under properly given instructions, the jury found that the killings were intentional, premeditated, and deliberate. ( People v. Jackson (1989) 49 Cal.3d 1170, 1199 , 264 Cal.Rptr. 852 , 783 P.2d 211 ; People v. Sedeno (1974) 10 Cal.3d 703, 721 , 112 Cal.Rptr. 1 , 518 P.2d 913 .) The jury was not, as appellant argues, forced by the instructions given into returning a verdict of first degree murder *587 even if it did not believe the killings were intentional and premeditated. The court made it clear that intent and malice were not synonymous, when it advised the jury that mental illness could be considered in determining if the defendant "had the mental states of malice aforethought and an intent to kill." Read in context, it seems clear that the court intended and the jury would have understood that the court was not limiting second degree murder to intentional killings, but was admonishing the jury that even if it concluded the killings were intentional, they were only second degree murder if not premeditated and deliberate. The instruction of which appellant now complains was followed immediately by another reasonable doubt instruction directing the jury to give the defendant the benefit of any doubt as to whether the murder was first or second degree.
The court also instructed that if the evidence as to any specific mental state was susceptible of two reasonable interpretations, the jury should accept the interpretation that pointed to the absence of that mental state and that if the jury concluded there was evidence of a mental disease or defect, that evidence could be considered in determining if appellant actually had the mental states of malice aforethought, intent to kill, premeditation, and deliberation.
b. False statements.
The court instructed the jury in the language of CALJIC No. 2.03 that if it found "that before this trial the defendant made willfully false or delib

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2636899. Public record. Not legal advice.