# People v. Osband

> California Supreme Court · July 29, 1996 · 13 Cal. 4th 622

URL: https://www.frixlaw.com/law-library/cases/5452162

## Case

- **Full name:** THE PEOPLE, and v. LANCE IAN OSBAND, and
- **Court:** California Supreme Court
- **Decided:** July 29, 1996
- **Citations:** 13 Cal. 4th 622; 96 Daily Journal DAR 9137; 55 Cal. Rptr. 2d 26; 919 P.2d 640; 96 Cal. Daily Op. Serv. 5583; 1996 Cal. LEXIS 3814
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Kennard, Mosk
- **Cited by:** 952 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5452162

## How later opinions describe it (automated extraction)

- holding that with respect to premeditation and deliberation, “[t]he test is not time, but reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.”
- holding error was harmless beyond a reasonable doubt because defendant received more than he was entitled to when the jury was instructed on the “specific intent” to commit the underlying felony of rape
- noting it has “regularly rejected the contention 7 that the court must specify which factors of section 190.3 apply in mitigation and which in 8 aggravation”

## Opinion text

Opinion
THE COURT. *
Defendant Lance Ian Osband has been sentenced to death under the 1978 death penalty statute for murder.
In an information, defendant was charged with the murder on October 5, 1985, of Lois Minnie Skuse. (Pen. Code, § 187; all unlabeled statutory references are to this code.) It was also alleged that he used a knife in the killing. (Former § 12022, subd. (b).) Three special circumstances were alleged: that the murder was in the first degree and he committed it during a burglary (former § 190.2, subd. (a)(17)(vii)), during a robbery (former § 190.2, subd. (a)(17)(i)), and after raping Skuse (former § 190.2, subd. (a)(17)(iii)).
Defendant was also charged with the burglary of the Skuse residence (§ 459), and with the robbery (§ 211) and forcible rape (§ 261, subd. (a)(2)) of Skuse. It was alleged that he used a knife to commit the robbery (former § 12022, subd. (b)) and rape (§ 12022.3, subd. (a)).
*653 Defendant was also charged with attempting to murder Norma C. 16 days after he killed Skuse. (§§ 187, subd. (a), 664.) He was further charged with the burglary of the classroom in which she was attacked (§ 459), with robbing her (§ 211), and with assaulting her with the intent to rape (§ 220). Each of these four charges also carried allegations of infliction of great bodily injury (§ 12022.7) and knife use (former § 12022, subd. (b)).
A jury found defendant guilty on all counts and all the allegations true, except for the knife-use allegations in the charges stemming from the attack on Norma C., following the trial court’s decision to strike those allegations. It found that the murder of Skuse and the burglary of her apartment were offenses committed in the first degree. The burglary of Norma C.’s classroom was found to be in the second degree.
Facts
I. The Guilt Phase.
A. The Prosecution’s Case.
1. The Killing of Lois Minnie Skuse.
Just before noon on October 6, 1985, the son and daughter-in-law of 66-year-old Lois Minnie Skuse found her body on the floor of the bedroom of her Sacramento apartment. Her son first saw the body; he cried out “almost instantaneous[ly]” on entering the bedroom from a short hallway. As her daughter-in-law explained: “All of the drawers in her dresser had been dumped” on top of the body so that she and her husband could only “see her legs kind of halfway out from underneath the pile” formed by the drawers and clothing. She called to her husband not to touch anything because there might be fingerprints, and she summoned the police, who arrived while she was still on the phone. A coroner’s deputy saw “one leg and part of another” protruding from underneath the pile.
The bedroom had been ransacked. In addition to the drawers and clothing atop Skuse’s body, papers and boxes lay on the bed. Her purse’s contents had also been emptied onto the bed, and her car keys and wallet were missing.
Skuse’s television set was also missing. And the padlock to her garage was unlocked, which was unusual. A knife drawer in the kitchen was open, a position in which Skuse, a careful housekeeper, would not have left it. After Skuse died, her son and daughter-in-law moved a knife set of Skuse’s *654 to their house along with other personal effects. A police officer showed her daughter-in-law a photograph of a knife, or the item itself, and it was similar to the type found in that set. However, she could not say that a knife was missing from the set.
When the police permitted Skuse’s son and daughter-in-law to reenter the home, they recovered $14,000 in envelopes in various hidden locations. Empty envelopes were scattered “all over the place.”
The United States Postal Service mailed Skuse’s wallet to her son and daughter-in-law. Those individuals received it about two weeks after the killing.
The coroner’s deputy examined the scene. Skuse had “some fragments” of clothing on. “There was what appeared to be a pair of panties that had been either cut or ripped, where the crotch was not in its normal position with respect to where it should be. [‘JO The waistband was still around the waist . . . .” The deputy collected samples of fluid from Skuse’s pubic area.
An impression of defendant’s palm print was found on one of the dresser drawers lying on the body—a police officer testified that he believed it was the topmost drawer in the pile, located near Skuse’s head—and impressions of his fingerprints or thumbprints were found on a small turquoise tissue box located atop the dresser, on the tissue paper itself, and on an envelope and a box lid that were found on the bed. Shoe print impression's apparently formed by blood and consistent with those made by the type of shoe defendant owned were found in the apartment.
The pathologist who performed an autopsy on Skuse testified that he found a one-and-three-quarter-inch-deep V-shaped stab wound on the right side of her neck. It could have been caused by a serrated knife found near Skuse’s head. The wound was not “a simple slit-like stab wound[, as] if one stabbed a knife in an apple . . . .” Rather, it had “two arms to it, as if there were two separate stab wounds in the same area” or as if “movement had occurred while the knife went in one direction . . . [and] was twisted slightly, and removed, making two cuts rather than one.” If the product of a single insertion, its shape could also have been caused by movement by Skuse rather than twisting of the knife. It had almost completely severed her carotid artery, and was the cause of death, which would likely have occurred very quickly but not instantaneously.
In addition, the pathologist testified that a rib and various facial bones, including the upper jawbone, were broken, consistent with Skuse’s having *655 been beaten. Epidermal and other injuries also revealed that she had been severely beaten about the face. The pathologist found sperm in her urethra, vagina, and vaginal introitos. He also testified that Skuse suffered from osteoporosis or “soft bones” that in turn caused kyphosis, i.e., a stooped or hunchbacked condition.
2. The Attack on Norma C.
Early in the evening of October 21, 1985, Gloria Luevano was waiting outside the gymnasium at St. Patrick’s Elementary School in Sacramento County when 51-year-old Norma C., covered with blood and with “one shoe on and one shoe off with one nylon,” came up to her. She went for help and when it arrived she showed a police officer where the second grade classroom was located. The blinds to that classroom were closed, whereas those to the first, third, and fourth grade classrooms were open.
Norma C., the second grade teacher, testified that she was grading workbooks at 5:20 to 5:25 that afternoon. The classroom curtains were open. She was wearing boots that zipped up almost to the knee. Defendant entered the room, strode quickly toward her, threw her on the floor and, without a word, started beating and choking her, hitting her at least 15 times. Bleeding profusely, Norma C. told him that she had a daughter and that she hoped he would not kill her. He dragged her—by her arms, she was fairly certain, although a sheriff’s deputy experienced in analyzing bloodstain patterns thought that she was dragged by her feet or legs—to the back of the room and asked her if she had any money. (She was uncertain whether she was dragged on her back or on her stomach.) Although her glasses had been knocked off and her eyesight was dimmed by blood, she could see him going through her purse, which had both paper money and coins in it. She was fully clothed at that time. Then she blacked out. She next recalled being lifted into an ambulance. By the time she arrived at the hospital, she had discovered that her undergarments and one boot were missing. She could not remember telling a police officer at the hospital, in effect, that she had been raped. She identified defendant in the courtroom as the man who had battered her, and also testified that she had identified him in a photographic lineup.
Norma C. testified that she was left with a broken jaw and teeth and fractured facial bones. She lost her sense of smell and parts of her face remained numb at the time of trial. She had been lacerated, and had also received “three large incisions, . . . [including] one . . . which was near my neck vein.” She had been required “to go and have some tests to see whether or not my jugular vein had been severed.” She did not keep a knife *656 in the classroom. There were, however, scissors that were evidently not in plain sight. She did not see a weapon in defendant's hand.
Norma C. also testified that she did not try to defend herself because the force of defendant’s attack on her convinced her that he intended to kill her in any event and she did not want to increase her suffering.
A police officer testified that five to ten minutes after he arrived at 6:20 p.m. he went to the second grade classroom to try to apprehend the culprit. The curtains were drawn. He looked inside the classroom to see whether a suspect might still be there and, observing no one, guarded it for an hour until investigators could arrive and collect evidence.
Another police officer testified that the drapes were drawn when she arrived and that she found a stain that appeared to be caused by blood on the inside edge of one of them. Still another officer testified that there was blood at several locations on the classroom floor. And another officer testified that he gathered up the spilled contents of a purse and the purse itself from the floor, retrieving $1.68 entirely in coins. He saw no money inside the purse, although he did not conduct a thorough search of it. He also found and collected a “wad of clothing” consisting of “[l]ady’s underpants, a pair of pantyhose that were turned inside out, and inside the leg of one pantyhose at the foot was a woman’s shoe or boot.” The underpants and pantyhose were tom.
An identification technician for the Sacramento Police Department who inventoried the purse’s contents testified that she found $4.99 in coins but no paper money.
Defendant’s fingerprints were found in the classroom. Shoe print impressions apparently formed by blood were also found. There was testimony that they were likely made by defendant’s shoes.
A doctor who treated Norma C. on the evening of the attack testified that she had a laceration within about an inch from the carotid artery accompanied by swelling of that side of her neck. The swelling raised the possibility that “tiie carotid artery that supplies blood to the brain had been partially transected, such that the blood would leave the vascular channel . . . into the soft tissue.” He also described various facial fractures. She had her jaw immobilized for six weeks and could only drink liquids.
A police officer acknowledged on cross-examination that Norma C. told him from her hospital bed that she was unable to see defendant during the attack because of the blood in her eyes.
*657 3. Postarrest Forensic Analysis.
When defendant was arrested, he was wearing Nike tennis shoes. They were introduced into evidence.
There was testimony that 20 percent of the Black population, including defendant, have type B blood. Skuse had type O blood. Norma C. had type A blood. Defendant’s shoes had been exposed to type O blood and also to blood that could have come from individuals with types A and B or an individual with type AB.
There was also testimony that fluid on swabs containing semen found in Skuse’s vaginal area tested positive for type B and type O antigens. The former could have been contributed by defendant, and either he or Skuse could have contributed the latter. A purple robe that Skuse was wearing was semen stained; the semen reacted to a test for type B antigen, consistent with what defendant could produce.
4. Postarrest Interrogation.
On October 22, 1985, defendant, evidently having waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R3d 974] to silence and to counsel, told a homicide detective that he had never visited the Skuse apartment. When told that his fingerprints had been found there, he could offer no explanation for their possible presence. He also denied ever having been inside St. Patrick’s Elementary School and could not understand why his fingerprints might be found in a second grade classroom there.
B. The Defense’s Case.
Defendant testified on his own behalf and, contrary to his pretrial statement to the police, acknowledged having been at both crime scenes. He also admitted wearing at both scenes the shoes that were seized on his arrest.
With regard to Skuse’s killing, the defense was alibi—defendant testified, “I didn’t do any murder.” He described two Black males who were carrying a television set down the stairs leading from Skuse’s apartment. He asked them if they were moving and they said that they were. He asked whether the apartment was for rent and they told him to talk to the manager. They loaded the television into a red truck. He tried to find the manager but could not. He saw the solid door to Skuse’s apartment open and the screen door ajar, and, getting no response from inside, entered. He found the bedroom in disarray *658 but saw nobody, dead or alive. He did touch surfaces inside the house. He took nothing from the apartment; he was there for two to three minutes and then continued on his way. When he was arrested the day after he attacked Norma C., the police asked him about a homicide that had occurred at Skuse’s apartment. That scared him and he denied being at the apartment or the elementary school.
On cross-examination, defendant admitted that he inspected a jewelry box in the apartment but found nothing valuable. He also admitted, as he had on direct examination, that he entered the apartment with the idea of stealing something. When he entered the bedroom, the light was dim, and although he saw no blood, he did not know whether he might have stepped in any.
Defendant admitted that he attacked Norma C. He testified that he did so out of upset: evidently his car had run out of gasoline and stalled nearby, he was having other car trouble, and he had needed to appear in traffic court earlier that day. He dragged her to the back of the room, tearing her pantyhose. When she volunteered to give him money he emptied the contents of her purse onto the floor but, finding only coins, took nothing. He had no weapon, did not rape or attempt to rape her, and did not intend to kill her. He left, went back to his car, and finally obtained gasoline by siphoning it from another car.
On cross-examination, defendant admitted that he entered the classroom with the intent to steal and that he attacked Norma C. “more or less” because, in the prosecutor’s words, he was “having a bad day.” He did not know why he did not drag her by the ankles rather than her pantyhose, why her tom underpants should have been found on the floor, or whether he turned out the light or pulled the drapes on leaving. He did not know how she could have been stabbed in the neck. He did nothing to try to get medical help for her. After he left and siphoned gasoline out of the car, he went with some friends to buy some beer, had a few drinks, and returned home.
Defendant testified that he was of average strength at the time of the crimes.
There was evidence for the defense beyond that presented by defendant’s testimony. Defense counsel adduced evidence that a pair of yellow sunglasses found on Skuse’s bed did not belong to her or to defendant. Fingerprint impressions belonging to unknown individuals were found on other property taken from the scene of the killing, and it was impossible to determine how long his fingerprint impressions might have been present on the property recovered from the premises.
*659 Skuse’s son conceded in testimony that when he found her, he could see only her ankles.
The criminalist acknowledged that Nike is a common brand of shoe and that he had not learned how many shoes with defendant’s sole pattern had been sold in Northern California. It was conceivable that shoes of different size could have the same size and design of sole pattern.
The criminalist also stated that the type B activity found on Skuse’s purple robe could have been caused by bacterial contamination, although such an event would be unusual. Bacteria present in fecal matter found on the robe could have altered the analysis of the stains also found on it, and could themselves generate type B activity, in which case the seminal stains could have been caused by anybody. Indeed, all the swabs that tested positive for semen could have been so contaminated, although there was no visual indication that they were. However, the criminologist did not see any unusual bacteria.
C. The Prosecution’s Rebuttal Case.
A police officer testified that there was blood only in the bedroom of the Skuse apartment and that he found it on the floor “[a]bout and under the victim and at her feet.” The blood at her feet consisted of that left by shoe print impressions, and some shoe print impressions lay underneath her lower legs. The only pooled blood in the apartment lay directly under Skuse’s torso.
II. The Penalty Phase.
A. The Prosecution’s Case.
In aggravation, the prosecution introduced evidence of prior violent criminal activity.
Dorothy Cossman, who was approaching her 70th birthday at the time, was walking on a sidewalk on September 1, 1984, when she sensed that someone was fast approaching by bicycle and preparing to snatch her purse. She clutched it and wheeled around to ward off the perceived impending robbery. A person on a bicycle struck her in the buttocks but did not seize the purse. She was not injured or knocked to the ground. She could remember few details of the incident. A police officer testified, however, that defendant was detained and arrested and that Cossman identified him in a showup as the culprit.
*660 On cross-examination defendant elicited the officer’s belief that he pleaded guilty to misdemeanor battery. It was later stipulated that he did so.
Fourteen-year-old Angela M. was walking to school on March 26, 1984, when defendant offered her a ride. Instead he took her to a house where he forced her into a bedroom, kissed her repeatedly, fondled her over her brassiere, and told her she could not leave “ ‘until I get what I want, and I want to make love to you[]’ . . . .” He was interrupted by the sound of the front door being unlocked and opened, and she was able to flee and ran to her aunt’s house. At some point during the incident defendant apologized for his misconduct. Angela’s mother called the police. Angela testified that defendant later warned her that “if anyone pressed charges against him, someone was going to get hurt.”
On cross-examination, asked whether she recalled that defendant was convicted of battery, Angela M. testified that she thought he was convicted of statutory rape. After her testimony the parties stipulated that he pleaded no contest to a misdemeanor battery charge.
B. The Defense’s Case.
The principal at the elementary school defendant attended until the end of fourth grade testified that he presented no major discipline problems, was friendly with other students, and was a “nice kid.” There was testimony from a pastor that he attended church until his early teens and still believed in Christianity. An older sister testified that he led an uneventful childhood until age 13. There was testimony that at about age 17 he took it on himself for 3 months to care for a sick woman who had nobody else for the task—he was at her house every night and would do chores for her, ignoring an opportunity to steal hundreds of dollars from her purse. And a teacher testified that defendant received a high school diploma in jail—he was the first person to graduate from the independent study program in which he was enrolled—that he wanted to continue formal study, and that he was a very motivated student.
Defendant was 19 years old when he killed Skuse and attempted to kill Norma C. There was testimony that he started drinking beer with friends in sixth grade and soon was dabbling in marijuana use. He began using other drugs such as methamphetamine, phencyclidine-laced “sherm” cigarettes, and cocaine, and his circle of friends changed. In the six months before he was arrested he was regularly intoxicated by drugs and alcohol, and when “loaded” he was susceptible to personality changes. His drug and alcohol abuse caused him to become more frenetic, and he began to neglect his once meticulously maintained automobile.
*661 A psychologist opined that defendant would adjust well to life in a prison setting. On cross-examination, he admitted that defendant told him he was convicted because the jury was corrupt, that if he were released he would be on methamphetamine or crack cocaine, and that, in the prosecutor’s words, “he’s been a problem ever since he was bom and just didn’t fit into society.”
There was other testimony describing defendant’s background and character. His girlfriend of several years’ standing expressed loyalty toward him and testified that she would like to marry him. The two had a son who was twenty months old when she testified.
At closing argument counsel for defendant stressed the unpleasantness of prison life and emphasized that life imprisonment without possibility of parole was a very severe punishment. He insisted that defendant was not so entirely devoid of humanity or the ability ever to contribute to society that he deserved execution, and he urged the jury to show mercy to him and compassion for his girlfriend, mother, and infant son.
Claims of Error
I. Inadequate Record on Which to Bring Appeal.
Defendant contends that the judgment must be reversed because the superior court clerk’s office destroyed many trial exhibits after the proceeding ended. He asserts that he has been left with an inadequate record to pursue his appeal, in violation of the federal and state Constitutions. Although he generally lists the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and their California constitutional equivalents as the legal basis for his contention, he focuses on claims of violations of his right to due process of law under the Fourteenth Amendment, to an asserted right to a reliable determination of his guilt and punishment under the Eighth and Fourteenth Amendments, and to the effective assistance of counsel on appeal under the Sixth and Fourteenth Amendments.
On this court’s order, the trial court held a series of post-trial hearings to determine which exhibits had been lost, to try to reconstruct them, and to prepare and certify a settled statement regarding exhibits that could not be reconstructed. Defendant registered a continuing objection, under the United States and California Constitutions, to the reconstruction of any exhibit absent a finding that it was certain that the replacement matched the original.
The court found that misconduct by employees in the clerk’s office resulted in the exhibits’ loss. Although it could not conclusively decide the *662 nature of the misconduct, its findings suggest that the exhibits were improperly safeguarded and hence were inadvertently discarded.
Three of the missing exhibits were never admitted into evidence. Those remaining consist of color photographs or diagrams. Aided by the prosecution’s retention of some 800 photographic negatives, the court found that 62 exhibits could be precisely reconstructed. Although another twelve original exhibits—all photographs—could not be traced to a single replacement photograph, it was possible in each case to identify between two and five such photographs that “may be the same as the original exhibit.”
Six exhibits could not be reconstructed. These were the subject of a settled statement. The first, a manila folder that may once have contained lineup photographs, was among the three exhibits not admitted into evidence. The second and third, diagrams drawn by witnesses who were medical doctors, could not be reconstructed. One, however, “is described in the trial transcript.” The fourth was “a color photograph of the victim Lois Skuse, sitting at a kitchen table . . . .” The fifth and sixth, diagrams previously drawn and then marked during testimony, survived only in unmarked form.
We review the court’s findings regarding the reconstruction of the missing exhibits, which are essentially factual, on a deferential substantial evidence standard. (See People v. Hardy (1992) 2 Cal.4th 86, 183, fn. 30 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ].) We then independently determine whether the record, as reconstructed and settled by the trial court, is adequate to allow the appeal to proceed meaningfully.
Turning to the first prong, we see, with one exception to be discussed, no reason to question the court’s findings regarding reconstruction of the lost exhibits. Preliminarily, we observe that defendant’s somewhat conclusory argument that generally no substantial evidence supports the rulings fails to persuade. We turn to the heart of defendant’s argument: that the findings that five particular exhibits (Nos. 14, 16, 34, 51, and 52, all photographs) were reconstructed are unsupported by substantial evidence. Having reviewed the record with regard to each exhibit’s reconstruction, we agree with defendant in one case, but otherwise disagree.
In the case of exhibit No. 52, defendant is correct that substantial evidence does not support the ruling reconstructing the exhibit. There was trial testimony by a police officer that exhibit No. 52 showed, in the prosecutor’s words, “the lower portion of the remains of Lois Skuse as she was [lying] on the floor.” But there was also testimony that exhibit No. 52 showed a television stand—testimony buttressed by the court’s description of the *663 exhibit when it and the parties were later reviewing them. The People speculate that the officer was describing exhibit No. 72. However, that surmise is questionable, because, without any indication that he was being shown the same exhibit again, the prosecutor later asked him whether exhibit No. 72 depicted the victim on the floor. Moreover, the prosecutor appeared generally to be proceeding in numerical order as he showed the officer the exhibits. We agree with defendant that the court’s finding must be set aside to the extent it finds that exhibit No. 52 was reconstructed. In the case of the other four exhibits, we will not disturb it.
Defendant further contends that the superior court’s ruling that exhibit No. 48—a photograph of the victim while alive—should be replaced with a new, similar photograph must be set aside because substantial evidence does not support it. But the court made no attempt to find that the new photograph replaced the lost original, only that it was similar. The prosecutor testified that the replacement photograph was “fairly similar in contents [to the original]. It is a photograph of her sitting at a kitchen table. The only thing really missing is the [Christmas] present sitting on the table in front of her, but that’s it. That is the same likeness of her.”
Turning to the next prong of our inquiry, we conclude on independent review that the record is adequate to allow the appeal to proceed.
The exhibits “admitted into evidence or refused” are part of the record on appeal. (Cal. Rules of Court, rule 4.5.) Defendant is entitled to a record “adequate to permit meaningful appellate review.” (People v. Howard (1992) 1 Cal.4th 1132, 1165 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] [impliedly considering state and federal law]; see also id. at p. 1166 [explicitly addressing Eighth and Fourteenth Amendment requirements].) But the burden is his to show that the deficiencies in the record are prejudicial to him. (Id. at p. 1165.) The parties were able either to reconstruct or to issue a settled statement regarding virtually the entire record. The reconstruction restored most of the record; the settled statement provided a satisfactory substitute for other portions (People v. Holloway (1990) 50 Cal.3d 1098, 1116 [ 269 Cal.Rptr. 530 , 790 P.2d 1327 ]). Although the record as reconstructed remains deficient, defendant has not met his burden of showing that the deficiencies—the loss of certain exhibits and the court’s inability to assign an exact replacement photograph to each of 12 original photographic exhibits—have left him unable to proceed with his appeal on a record adequate to permit meaningful appellate review.
We turn to defendant’s argument that proceeding with this appeal on a deficient record will preclude counsel from providing effective assistance on appeal.
*664 A defendant claiming ineffective assistance of counsel under the federal or state Constitutions must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ].) We apply that standard to representation on appeal. (People v. Hamilton (1988) 45 Cal.3d 351, 377 [ 247 Cal.Rptr. 31 , 753 P.2d 1109 ]; Alford v. Rolfs (9th Cir. 1989) 867 F.2d 1216, 1220 ; see also In re Harris (1993) 5 Cal.4th 813, 833 [ 21 Cal.Rptr.2d 373 , 855 P.2d 391 ]; cf. Evitts v. Lucey (1985) 469 U.S. 387, 392 [ 83 L.Ed.2d 821, 827 , 105 S.Ct. 830 ] [declining to decide whether same standard to show ineffective assistance on review applies to appellate as well as trial counsel].)
There is no reasonable probability that the outcome of this appeal differs because of the deficiencies in the record before us. As we show below, we are able to review the judgment in a meaningful manner notwithstanding those deficiencies. Defendant has not been denied any right to an adequate appeal.
Defendant also claims that the trial court erred by refusing to find beyond a reasonable doubt that the replacement exhibits matched the original. To the extent that the court used a lower standard of proof in reconstructing the record—e.g., finding by a preponderance of the evidence that an exhibit had been reconstructed—it did not err. (Evid. Code, § 115; see also Curl v. Superior Court (1990) 51 Cal.3d 1292, 1305-1306 [ 276 Cal.Rptr. 49 , 801 P.2d 292 ].)
II. Issues Regarding Pretrial Proceedings.
A. Claims Regarding Forensic Analysis of Tardily Discovered Hair.
Before trial, defendant moved to have laboratory tests performed on physical evidence taken from the crime scenes, or to have samples provided to him so that he could perform his own tests. The motion was granted.
Near the conclusion of jury selection, counsel for both parties informed the court that an item of evidence retrieved from the Skuse murder scene had just been discovered to contain some hair. Before the presentation of evidence was to begin, defendant moved to continue the case pending analysis of the hair. The prosecutor, for his part, agreed not to call any witnesses to discuss the hair’s significance for the rest of that week. Defendant agreed to proceed, and reserved his opening statement. The parties do not say whether evidence based on the tardily discovered hair was ever introduced, or whether tests were ever performed on it.
*665 Defendant contends that the prosecution intentionally withheld evidence material to his culpability. In essence, he asserts that the failure to disclose the evidence disrupted his trial strategy, notably by forcing him to reserve his opening statement.
The prosecution has a due process duty under the Fourteenth Amendment to the United States Constitution to disclose evidence to a defendant. (See, e.g., United States v. Bagley (1985) 473 U.S. 667, 674-677 [ 87 L.Ed.2d 481, 488-491 , 105 S.Ct. 3375 ].) But such evidence must be both “favorable” to the defendant and “ ‘material’ ” to either guilt or penalty. (Id. at p. 674 [ 87 L.Ed.2d at p. 489 ].) Favorable evidence is evidence that the defense could use either to impeach the state’s witnesses or to exculpate the accused. (Id. at p. 676 [ 87 L.Ed.2d at p. 490 ].) “Bagley held that . . . favorable evidence is material, and constitutional error results from its suppression. . . , ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” (Kyles v. Whitley (1995) 514 U.S. 419 [ 131 L.Ed.2d 490, 505 , 115 S.Ct. 1555 ].) A “reasonable probability” is one sufficient to “undermine[] confidence in the outcome.” (United States v. Bagley, supra, 473 U.S. at p. 678 [ 87 L.Ed.2d at p. 491 ].)
Defendant candidly acknowledges that it is impossible on this record to know the significance of the additional samples, and that “full resolution of this issue must await the presentation of additional facts in [his] Petition for Writ of Habeas Corpus.” We agree that the issue cannot be resolved on the record now before us. He points to no place in the record that might divulge the evidence to be material or favorable. Thus, on appeal, he has not established that any delay or purported misconduct in handling the tardily discovered hair prejudicially affected the outcome at trial.
He also contends that his counsel were ineffective under the Sixth and Fourteenth Amendments to the federal Constitution for failing to vigorously pursue enforcement of the court’s discovery orders. This contention rests on a general assertion that counsel neglected discovery matters until jury selection was underway. But he refers only to the tardily discovered hair samples.
As stated, a defendant claiming ineffective assistance of counsel must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. Defendant concedes that the significance of the hair samples is unknown. On this record, therefore, it is impossible to find prejudice, assuming for purposes of argument that counsel’s performance may have been deficient in some respect. He also asserts that counsel’s *666 neglect of discovery matters forced him to reserve his opening statement until the presentation of his case. But he does not contend that any need to do so resulted in prejudice to him. This contention we also reject.
B. Denying Motion to Sever Skuse- and Norma C.-related Counts.
Defendant moved to sever the counts charging crimes in the Skuse killing from those in the attack on Norma C. The court denied the motion.
We review the court’s ruling for an abuse of discretion. (See People v. Cummings (1993) 4 Cal.4th 1233,1284 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ].) A court abuses its discretion when its ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [ 9 Cal.Rptr.2d 628 , 831 P.2d 1210 ].) The ruling did not fall outside those bounds.
The governing statute is section 954, which provides in relevant part: “An accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts .... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. . . .”
“The statutory requirements for joinder were met here because both incidents involved the same class of crimes—murder [and attempted murder, both involving batteries (see People v. Miller (1990) 50 Cal.3d 954, 987 [ 269 Cal.Rptr. 492 , 790 P.2d 1289 ])]. Since the requirements for joinder were satisfied, defendant can predicate error only on a clear showing of potential prejudice. [Citation.] ‘The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]
“ ‘The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial.’ [Citation.] Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’ case, so that the ‘spillover’ effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case.” (People v. Sandoval *667 (1992) 4 Cal.4th 155, 172-173 [ 14 Cal.Rptr.2d 342 , 841 P.2d 862 ], affd. sub nom. Victor v. Nebraska (1994) 511 U.S. 1 [ 127 L.Ed.2d 583 , 114 S.Ct. 1239 ].)
The criteria listed in Sandoval should not be misunderstood as being equally significant, however. “[T]he first step in assessing whether a combined trial [would have been] prejudicial is to determine whether evidence on each of the joined charges would have been admissible, under Evidence Code section 1101, in separate trials on the others. If so, any inference of prejudice is dispelled.” (People v. Balderas (1985) 41 Cal.3d 144, 171-172 [ 222 Cal.Rptr. 184 , 711 P.2d 480 ]; see People v. Mason (1991) 52 Cal.3d 909, 934 [ 277 Cal.Rptr. 166 , 802 P.2d 950 ].)
Cross-admissibility suffices to negate prejudice, but it is not needed for that purpose. Although “ ‘we have held that cross-admissibility ordinarily dispels any inference of prejudice, we have never held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.’ ” (People v. Sandoval, supra, 4 Cal.4th at p. 173; see also §954.1, eff. June 6, 1990 [codifying rule].)
“[T]he propriety of a ruling on a motion to sever counts is judged by the information available to the court at the time the motion is heard.” (People v. Cummings, supra, 4 Cal.4th at p. 1284.) Defendant conceded that his fingerprints were found at both crime scenes, along with shoe prints similar to those made by a pair of shoes he owned, but argued that those facts did not suffice to establish identity and that judicial economy did not require one trial. He also argued that the murder case was much weaker than the attempted murder case, in which Norma C. identified him as her assailant, but that a jury hearing Norma C. testify about the attack on her would be outraged and would therefore be unfairly inclined to convict him of Skuse’s murder.
The prosecution introduced evidence relating to cross-admissibility. It offered evidence that defendant’s shoes bore traces of blood, and argued that the blood evidence would be cross-admissible because the evidence showed that the traces could only have been left by (1) a single individual with type AB blood, or (2) two or more contributors. There was insufficient blood to be able to prove that it came from defendant or the two victims. Because Skuse was type O, Norma C. type A and defendant type B, the prosecution explained that it would need to introduce evidence of both sets of crimes to explain why the blood on the shoes did not come from a person with type AB blood.
The prosecution also argued that at trial it would present strong evidence that defendant committed both sets of crimes. It declared there would be *668 evidence that his palm print was found on a drawer lying atop Skuse’s body and that Norma C. had identified him as her assailant. It contended that his shoes matched the pattern of bloody shoe prints found at both scenes. The prosecution also argued that his modus operand! was to rape both women, who were alone and vulnerable, to kill them with a knife following a savage beating, and then to opportunistically steal whatever valuable items might be in the vicinity.
The court denied the motion without comment. Implicitly, it found evidence of the offenses cross-admissible, for the hearing focused on the blood evidence taken from defendant’s shoes.
The court did not abuse its discretion in implicitly finding no cross-admissibility consideration that might favor severance. For that reason alone, its ruling must be sustained. (See Frank v. Superior Court (1989) 48 Cal.3d 632, 639 [ 257 Cal.Rptr. 550 , 770 P.2d 1119 ].) Defendant calls any such reasoning “spurious”; in his view, the evidence could have been tailored at each trial to exclude mention of the other blood. Nevertheless, as stated, the burden was his to “ ‘clearly establish that there is a substantial danger of prejudice’ ” arising from the joinder of charges (People v. Sandoval, supra, 4 Cal.4th at p. 172). The court did not abuse its discretion in ruling that he failed to meet that burden.
Finally, “[e]ven if the ruling was correct when made, we must reverse if defendant shows that joinder actually resulted in ‘gross unfairness,’ amounting to a denial of due process.” (People v. Arias (1996) 13 Cal.4th 92, 127 [ 51 Cal.Rptr.2d 770 , 913 P.2d 980 ].) For the reasons the prosecution presented to the court, no gross unfairness occurred when the motion was denied.
III. Jury Selection Issues.
A. Denying Motion for Separate Juries for Guilt and Penalty Phases.
Defendant maintains that the court violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution by denying his motion to impanel separate juries to hear the guilt and penalty phases of his trial. The gravamen of the basis for the motion was that “the exclusion from the guilt phase of jurors categorically opposed to the death penalty deprived him of a jury composed of a representative cross-section of the community, in violation of his Sixth and Fourteenth Amendment rights. We have rejected such claims [citation], as has the United States Supreme Court [citation].” (People v. Kaurish (1990) 52 Cal.3d 648, 674 [ 276 Cal.Rptr. 788 , 802 P.2d 278 ].)
*669 Defendant withdrew a motion to bar voir dire on the death penalty after the court denied the motion to impanel separate juries. He perfunctorily asserts that counsel were ineffective, apparently in violation of the Sixth Amendment to the United States Constitution, for doing so on his behalf. To the contrary, it was certainly not professionally unreasonable to examine jurors who might decide whether his life should be spared or taken on their opinions regarding that subject.
B. Other Jury Selection Issues.
At defendant’s behest and over the prosecutor’s objection, the court agreed to use a “modified struck system” of jury selection. (See People v. Johnson (1992) 3 Cal.4th 1183, 1211 [ 14 Cal.Rptr.2d 702 , 842 P.2d 1 ]; People v. Pride (1992) 3 Cal.4th 195, 226-227 [ 10 Cal.Rptr.2d 636 , 833 P.2d 643 ]; People v. Ashmus (1991) 54 Cal.3d 932, 955-956 [ 2 Cal.Rptr.2d 112 , 820 P.2d 214 ].) The record reveals that the court was concerned about subjecting many prospective jurors to what it believed to be the tedium of the “jury box” system, and that after observing similar selection proceedings in another courtroom, it decided to accede to defendant’s request in an effort to save time and reduce tedium.
Under the version of the struck system used in this case, pools of prospective jurors were screened seriatim for hardship. Those prospective jurors who remained filled out questionnaires. Next, they were randomly selected to appear in groups of five in the morning and six in the afternoon and each was examined outside the presence of the others to determine whether he or she should be excused for cause. After this process, 12 of the remaining prospective jurors were randomly selected for seating in the jury box and the parties exercised their peremptory challenges. A prospective juror who was excused was replaced with another from the pool of qualified prospective jurors by name drawn at random.
The foregoing procedure occurred in three rounds. At the end of the first, defendant used 21 of his 26 peremptory challenges. At the end of the second, he consumed two of the five remaining. At the end of the third, he had one left. At that point, and after the jury was sworn, he moved for a mistrial based on the jury selection procedure. Specifically, he declared that the use of three rounds of peremptory challenges rather than one made it impossible to exercise them effectively. The court denied the motion.
Defendant contends that the jury selection procedure violated rights he locates in the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and their California equivalents, essentially because, in *670 his view, the first jury pool was prosecution-prone and he was therefore forced to consume many of his peremptory challenges early in the process without knowing whether members of succeeding pools would be more or less objectionable. Had the court used a pure struck system, he contends, he would have known the views of all prospective jurors when exercising peremptory challenges.
But defendant has not preserved his claim for review. He objected to the selection process after the jury was sworn, and therefore did so in an untimely manner. (Former § 1060, enacted 1872; see now Code Civ. Proc., § 225, subd. (a)(1); People v. Flowers (1974) 38 Cal.App.3d 813, 818 [ 113 Cal.Rptr. 701 ].)
Next, defendant contends that the court wrongly failed to excuse six jurors he challenged for cause. But because he did not exercise all of his peremptory challenges, that claim, too, is precluded on appeal. (People v. Morris (1991) 53 Cal.3d 152, 184 [ 279 Cal.Rptr. 720 , 807 P.2d 949 ].) Defendant contends that because he can justify his refusal to use his last peremptory challenge, that rule does not apply to him. (But see ibid, [defendant must also show he was dissatisfied with the jury as selected].) He asserts that when the final group of prospective jurors had been qualified, he knew about each juror’s views, but did not know the order in which they would be called, and therefore had to reserve a peremptory challenge. The implication is that someone worse for the defense might be called and he had to hedge against that possibility. But we have previously rejected the argument that the struck-jury system permits exceptions to the exhaustion rule (People v. Johnson, supra, 3 Cal.4th at p. 1211) and decline to reexamine our reasoning.
Defendant next contends that counsel were ineffective, apparently in violation of the Sixth Amendment to the United States Constitution, for failing to adequately question seven prospective jurors who, in his view, were hostile to him.
As stated, to show ineffective assistance of counsel, defendant must establish deficient performance and a prejudicial outcome. (Ante, at p. 663.) He has not met his burden.
Preliminarily, we note that only one of the seven prospective jurors was actually seated, and defendant did not exhaust his peremptory challenges. With regard to the other six, therefore, any contention that counsel were ineffective is, as the People respond, pure conjecture—no prejudice can arise from any deficiency involving the voir dire of them. (People v. Cain (1995) 10 Cal.4th 1, 62 [ 40 Cal.Rptr.2d 481 , 892 P.2d 1224 ].)
*671 The seventh juror, Edward Kluza, sat on the jury. He seemed to be taken aback by a question whether he would consider defendant’s background in deciding penalty. Initially he stated that he would assign the factor no mitigating weight; then, in response to the next question, he said, “I can’t see that it should weigh that heavily.” Kluza was then asked, “if ... we only introduce evidence in mitigation [that] consisted of . . . Mr. Osband’s background, . . . would you totally say, ‘Hey, that’s the only evidence they got, automatic death penalty’?” He replied, “Oh, no. No. I don’t—I don’t think I’d close my mind.” He continued in a similar vein.
Counsel’s questioning of Kluza was not deficient. The questioning elicited his views and revealed that he was open-minded with regard to penalty. Moreover, Kluza’s written questionnaire would already have assured counsel on that score: he answered that he had “no strong feelings one way or the other” about the death penalty, that the principle of lex talionis—“ ‘an eye for an eye’ ”—is “a little too broad,” and that he would have no difficulty whatever ignoring it. Indeed, the prosecution had reason to be concerned about Kluza, because in his questionnaire he ventured that “[t]oo much is at stake to allow circumstantial evidence to dictate” the rendering of a guilty verdict. In general, the questionnaire suggests a juror who would be fair to both sides and would sit without invidious preconceptions or prejudices. Counsel were not deficient with regard to the voir dire of Kluza.
Finally, defendant contends that three seated jurors were wrongly told during voir dire that the penalty process was standardless and subjective—in effect, that they could impose the death penalty on a whim. Not so. What the jurors he lists were told was that if the trial reached a penalty phase it would be up to them to decide defendant’s fate by assigning whatever weight they deemed proper to each factor in aggravation and mitigation. This was correct. “As we have emphasized, the sentencing function is inherently moral and normative [citation] and therefore the weight or importance to be assigned to any particular factor or item of evidence involves a moral judgment to be made by each juror individually.” (People v. Crandell (1988) 46 Cal.3d 833, 882-883 [ 251 Cal.Rptr. 227 , 760 P.2d 423 ] (lead opn. by Kaufman, J.).)
Defendant also implicitly complains that the prosecutor committed misconduct when he effectively told one of the three jurors, Sara Kint, that “[w]hatever moral misgivings [she might feel about the death penalty] would be secondary to the fact that ... it is the law here in Califomia[.]” Defendant did not object to this statement at the time, and may not do so now. In any event, the implication of his point is that the prospective juror was improperly told the decision would be purely mechanical without any *672 room to exercise discretion or mercy. (See People v. Champion (1995) 9 Cal.4th 879, 947-948 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ].) But the prosecutor immediately informed Kint that she personally and subjectively would have to decide the issue by weighing the aggravating and mitigating circumstances presented. We find no misconduct.
IV. Guilt Phase Issues.
Defendant raises various claims that prejudicial error occurred during the guilt phase. As will appear, none of them has merit.
A. Order Compelling. Defendant to Provide Blood and Hair Samples.
The prosecution sought an order, after trial began but before the taking of evidence, to compel defendant to furnish samples of blood and hair for forensic analysis. It explained that it was seeking these specimens because it needed hair from additional locations on his body, and that previously drawn blood had deteriorated over time. Defendant argued that it was unreasonable under the Fourth Amendment to the United States Constitution to take the samples, in essence because no exception to the warrant requirement appeared and there was no probable cause to support the intrusion. Nonetheless, the court granted the motion.
Defendant renews his contention, declaring that taking the blood and hair samples violated the Fourth Amendment’s bar against “unreasonable searches and seizures” because it was conducted without a warrant. He also asserts perfunctorily that it violated other constitutional rights.
Taking the blood sample constituted a search and seizure under the Fourth Amendment. (Schmerber v. California (1966) 384 U.S. 757, 767 [ 16 L.Ed.2d 908, 918 , 86 S.Ct. 1826 ].) Although “the plucking of defendant’s hairs by the police constituted a ‘seizure’ that might conceivably be subject to the constraints of the Fourth Amendment” (State v. Sharpe (1973) 284 N.C. 157, 162-163 [ 200 S.E.2d 44, 48 ]), nevertheless the question whether taking hair samples generally implicates the Fourth Amendment appears to be unsettled. (United States v. De Parias (11th Cir. 1986) 805 F.2d 1447, 1456 [matter undecided in federal courts]; see also United States v. D’Amico (2d Cir. 1969) 408 F.2d 331, 333 [“clipping” a “few strands of hair from appellant’s head was so minor” an intrusion that the Fourth Amendment is not implicated].)
We need not decide under what circumstances taking hair samples might constitute a search or seizure that implicates the Fourth Amendment, however. There was no constitutional violation in this case. *673 It is hornbook law that “ ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable’ ” under the Fourth Amendment’s warrant requirement unless they fall within one of a few narrow exceptions thereto. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-455 [ 29 L.Ed.2d 564, 576 , 91 S.Ct. 2022 ] (plur. opn. by Stewart, J.).) But as long as the prosecution shows that probable cause exists for the intrusion, a court order compelling specimens to be taken from the body of a criminal defendant satisfies the Fourth Amendment’s guaranty. (Com. v. Trigones (1986) 397 Mass. 633, 641 [ 492 N.E.2d 1146, 1151 ]; Matter of Abe A. (1982) 56 N.Y.2d 288, 290 [ 452 N.Y.S.2d 6, 7 , 437 N.E.2d 265 , 266 ] [criminal suspect]; see also State v. Weigel (1980) 228 Kan. 194, 198 [ 612 P.2d 636, 642 ] [hair sample]; State v. Jones (1977) 279 Or. 55, 59 [ 566 P.2d 867, 870 ]; but see Mills v. State (1975) 28 Md.App. 300, 302, 307 [ 345 A.2d 127, 129, 132 ].)
Probable cause was surely present here. There was strong evidence of defendant’s presence at both crime scenes; indeed, “at the time of the motion for blood and [hair] samples, a preliminary hearing had already been held at which one of the victims, under oath, identified [him]. Because probable cause had been established at a hearing prior to this motion, we are persuaded that [defendant] was accorded as much constitutional protection under this court order as he would have had under a search warrant.” (State v. Brown (1984) 118 Wis.2d 377, 388 [ 348 N.W.2d 593, 599 ]; see also Com. v. Trigones, supra, 397 Mass, at p. 641, fn. 4 [ 492 N.E.2d at p. 1151 ] [discussing blood evidence].) And the order was issued following a contested hearing—in sum, the procedures more than satisfied the policy against oppressive governmental intrusions that lies behind the Fourth Amendment’s warrant requirement. (Ibid:, Coolidge v. New Hampshire, supra, 403 U.S. at pp. 454-455 [29 L.Ed.2d at pp. 575-576] (plur. opn.).) There was no Fourth Amendment violation in taking the blood or hair. Nor was any other provision of the federal or state Constitutions violated.
B. Issues Regarding Restraints on Defendant.
Before the prospective jurors first saw him, defendant moved to have only one bailiff seated behind him, in addition to the regular courtroom bailiff, who evidently was seated or standing elsewhere, and not to be restrained by chains or handcuffs in the courtroom. He also moved to have his handcuffs removed in the hallway, where jurors or prospective jurors could not see the procedure. The court granted the motions. On one occasion, however, prospective jurors briefly may have seen him in handcuffs.
First, defendant contends that the court violated the federal Constitution by restraining him in chains while in court. The People respond that *674 the record shows he was not mechanically restrained. We agree: as we read the record, the court granted defendant’s motion and he was specially secured only by the presence of the extra bailiff seated behind him, as he sought in his motion.
Without clearly articulating the legal basis for the claim, defendant also argues that even the presence of that bailiff constituted excessive security. But he invited any error—the court granted his proposal for security arrangements.
Defendant also contends that the court erred on state law and federal constitutional grounds in not investigating, on its own, the effect on prospective jurors of once briefly seeing him in handcuffs, and in not instructing them that they should not consider the presence of restraints an indication of guilt. It is unclear whether they did see him in restraints. However, any glimpse by prospective jurors of him in handcuffs could not have caused prejudice, whether under state law or federal constitutional standards, even if error occurred. (See People v. Rich (1988) 45 Cal.3d 1036, 1083-1085 [ 248 Cal.Rptr. 510 , 755 P.2d 960 ].)
C. Denying Motion to Exclude Putrid Clothing.
The prosecutor moved to introduce in evidence blood-saturated pantyhose and underwear taken from the Norma C. crime scene. He alerted the court that the two items had a foul odor attributable to the blood’s putrefaction, and that the prosecution had been trying to air the garments that morning to reduce the odor, with partial success. Defendant objected, asserting that photographs of the exhibits should be introduced in place of the original items. The court ruled that the garments could be introduced, but that it would be done just before a recess with the side door open to allow more air circulation. The jurors were informed in advance of the garments’ stench, and a witness showed them, pointing out a tear in each item. The garments were exhibited only briefly, and the court then immediately excused the jury for lunch. After the jurors left defense counsel asked the court to leave some doors open to air the room, and the court so ordered.
Defendant contends that the court erred under state law (Evid. Code, § 352) by permitting the prosecution to introduce evidence that was substantially more prejudicial, by reason of its odor, than it was probative. He also predicates claims of violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution on the asserted state law error.
We review a ruling on an objection of undue prejudice for an abuse of discretion. (People v. Clair (1992) 2 Cal.4th 629, 660 [ 7 Cal.Rptr.2d 564 , 828 P.2d 705 ].) Under this deferential standard, we find no error.
*675 As a rule, the prosecution in a criminal case involving charges of murder or other violent crimes is entitled to present evidence of the circumstances attending them even if it is grim. “Service on a murder trial jury is not entertainment; such duty is serious and onerous; by serving, the jurors are executing a primary and necessary duty as citizens. Often the details of evidence are unpleasant, but adult finders of fact must face this duty calmly and undismayed.” (People v. Campbell (1965) 233 Cal.App.2d 38, 43 [ 43 Cal.Rptr. 237 ].)
The evidence was relevant to establish the charge of assault with intent to rape Norma C. The court did what it could to minimize the prejudicial impact of the odor. It did not abuse its discretion in admitting the evidence. Because there was no state law error, neither was there any predicate for a constitutional violation.
D. Failing to Ask Jurors What They Overheard in Hallway.
Counsel for defendant complained that two police officers were discussing material contained in their police reports, including the time of their arrival at the Norma C. crime scene, in the hallway where jurors could overhear them. The court ordered the prosecutor to make sure his witnesses stayed at the far end of the corridor, and when the jurors took their seats it admonished them, “You’re not to consider anything that’s said outside the courtroom. The only evidence that you are to consider is the evidence that comes from the witness stand . . . .”
At trial, defendant did not request a hearing on the matter. Nevertheless he contends that the court erred by not conducting a hearing on its own initiative to determine what the jurors might have overheard. He argues that they might have heard a discussion so prejudicial that no admonition could cure it. He claims generally that the failure to hold a hearing violated the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and implies that state law was also violated. He focuses, however, on perceived violations of the due process and confrontation clauses contained in the Fifth, Sixth, and Fourteenth Amendments.
“The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court. [Citation.] The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [50 As our cases make clear, a hearing is required only where the court possesses information which, if proven to be true, would constitute ‘good cause’ to doubt a juror’s *676 ability to perform his duties and would justify his removal from the case.” (People v. Ray (1996) 13 Cal.4th 313, 343 [ 52 Cal.Rptr.2d 296 , 914 P.2d 846 ].) The record does not reveal that the court had any information of this type.
Moreover, if any violation of the law occurred when the jurors overheard statements extraneous to the record, any prejudice that may have arisen therefrom was cured by events immediately following defendant’s complaint to the court, which strictly admonished the jurors not to consider anything they might hear beyond the witness stand. We presume that they followed the court’s instructions and disregarded anything they may have overheard. (People v. Green (1965) 236 Cal.App.2d 1, 26 [ 45 Cal.Rptr. 744 ].)
Defendant also contends that counsel were ineffective for failing to seek a hearing on the matter. There is no reasonable probability that the outcome would have differed had they done so. In that case, the court in turn would have done what it in fact did: admonish the jury to disregard anything overheard in the hallway. Defendant argues, as stated, that the jurors might have overheard something so prejudicial no admonition could cure it. That speculation cannot give rise to a successful claim of ineffective assistance, however. He bears the burden of showing that such a remark was made. On this record he cannot do so.
E. Admissibility of Photographic Evidence.
Defendant contends that the court erred under state law by admitting into evidence photographs that were either cumulative or substantially more prejudicial than probative. He also claims that the rulings violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
1. Photograph of Skuse While Alive.
Dorothy Monahan testified that “Lois Skruse” was her neighbor. The prosecutor corrected her and she acknowledged that the name was Skuse. Monahan testified that she saw Skuse on the Friday before her killing. She identified her from a photograph—exhibit No. 48, which was subsequently lost and has not been replaced—taken on her birthday and also apparently showing Christmas presents. (Evidently Skuse’s birthday occurred at Christmastime.) Skuse’s daughter-in-law also identified her from the photograph. It appears that viewing it caused her eyes to well with tears, and the jury could see that reaction.
Defendant argued that he had offered to stipulate to Skuse’s identity and that the photograph should be excluded. Nevertheless, the court *677 admitted it into evidence, finding that its “prejudicial effect, if any, would be far outweighed by the probative value . . .
As alluded to, we note that the photograph was lost after trial, could not be replaced, and is unavailable on appeal. We will therefore accept defendant’s characterization of it as very likely to evoke feelings of sadness and sympathy for Skuse. Nonetheless, we find no abuse of discretion in ruling that it would be admitted.
“To be sure, we have repeatedly cautioned against the admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items. [Citations.] Otherwise, there is a risk that the photograph will merely generate sympathy for the victims.” (People v. DeSantis, supra, 2 Cal.4th 1198, 1230 .) In that case, we concluded that “our own inspection of the photograph in issue here suggests that it possibly did generate sympathy for the victims, a harmless- and congenial-appearing elderly couple.” (Ibid.)
Nevertheless, in DeSantis we declined “to find error. The photograph, which was shown to three witnesses, was relevant to establish the witnesses’ ability to identify the victims as the people about whom they were testifying. The possibility that it generated sympathy for the victims is not enough, by itself, to compel its exclusion if it was otherwise relevant.” (2 Cal.4th at pp. 1230-1231.) That conclusion applies with equal force here. Indeed, Monahan’s initial stumble, in which she gave the wrong last name for Skuse, shows the importance of using photographic evidence to ensure the accuracy of testimony. Even if defendant offered to stipulate to Skuse’s identity, the photograph helped lay to rest a question the jury might otherwise have had about whether Monahan actually knew whom she saw on the Friday before Skuse died. We find no state law error, nor are we persuaded that any constitutional violation occurred.
2. Admission of Photographs of Crime Scenes and of Victims.
Many photographs of the crime scenes and of Skuse and Norma C., showing them after defendant’s attacks, were admitted. Defendant objected to the admission of certain of them as either unduly prejudicial or cumulative (Evid. Code, § 352); the court accordingly excluded a few of them, but most were admitted. To others he did not object.
Defendant contends that the court erred under state law and violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution by overruling various objections to the admission of some of *678 the photographs. He also contends that he was denied the effective assistance of counsel when his counsel failed to object to the admission of others.
We review a ruling denying a motion to exclude photographic evidence on grounds of undue prejudice or cumulativeness for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 866 [ 47 Cal.Rptr.2d 219 , 905 P.2d 1305 ].) There was no abuse of discretion: the court’s rulings fell within the bounds of reason. We have reviewed the photographs and, although we believe an average member of the community would find some of them quite disturbing, they are neither unduly prejudicial nor cumulative. They tended to prove tihe mental-state and physical-act elements of the crimes charged (see id. at pp. 865-866), and in our view they did so without portraying the crime scenes or the victims in a gratuitously inflammatory manner.
Defendant further contends, most unpersuasively, that to the extent his counsel failed to object to the admission or use of each photograph, they rendered ineffective assistance. We disagree. It would have been pointless to object to the introduction or use of all of the photographs, or even many of them: their probative value was high and certainly was not substantially outweighed by prejudice. Counsel objected to the introduction of photographs into evidence when a plausible argument could be made that they should be barred under Evidence Code section 352. In particular, they objected to a particularly grim photograph (for which three replacements were furnished in the reconstructed record; the three are similar) showing the body of Skuse after the overlying debris had been removed. The court ruled that the photograph should be admitted—properly, in our view, for it did not abuse its discretion in implicitly concluding that the photograph was not substantially more prejudicial than probative. Counsel were not ineffective.
F. Instructional Issues.
1. Reasonable Doubt Issues.
Defendant contends that the instructions given the jury removed the constitutional requirement that the prosecution prove every element of each crime charged beyond a reasonable doubt.
He bases his contention in part on the provision to the jury of CALJIC No. 2.90 (4th ed. 1979 bound vol.), defining reasonable doubt. That claim fails. (People v. Freeman (1994) 8 Cal.4th 450, 501-505 [ 34 Cal.Rptr.2d 558 , 882 P.2d 249 , 31 A.L.R.Sth 888], explaining Victor v. Nebraska, supra, 511 U.S. 1 [ 127 L.Ed.2d 583 ].)
And otherwise he bases his contention on the provision to the jury of CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1 (identical in all material respects to those found in the 1979 bound volume edition of CALJIC).
*679 “In these instructions, which pertained to the sufficiency of circumstantial evidence to prove (1) the charged offenses (CALJIC No. 2.01), (2) the required mental state [or specific intent] (CALJIC No. 2.02), (3) the special circumstance allegations (CALJIC No. 8.83), and (4) the required mental state as to the special circumstance allegations (CALJIC No. 8.83.1), the trial court informed the jury that, if one interpretation of the evidence ‘appears to you to be reasonable and the other interpretation to be unreasonable, [it would be your duty to] accept the reasonable interpretation and [to] reject the unreasonable.’
“Specifically, defendant urges that, by informing the jurors of their duty to accept an interpretation of the evidence establishing defendant’s guilt as long as that interpretation appears to be reasonable, the instructions (emphasized by the prosecutor’s argument to the jury that the prosecution had presented a reasonable interpretation of the evidence) permitted the jury to determine guilt based upon a degree of proof less than that mandated by the reasonable doubt standard [citations]. Defendant urges that the instructions thus functioned to convey an unconstitutional, mandatory, conclusive presumption of guilt.” (People v. Crittenden (1994) 9 Cal.4th 83, 144 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ].)
“When we consider a claim of this sort, the question we ask is whether there is a reasonable likelihood that the jury construed or applied the challenged instruction^] in an objectionable fashion.” (People v. Berryman (1993) 6 Cal.4th 1048, 1073, fn. 3 [ 25 Cal.Rptr.2d 867 , 864 P.2d 40 ].) To do so, we examine all the instructions given (People v. Davis (1995) 10 Cal.4th 463, 521-522 [ 41 Cal.Rptr.2d 826 , 896 P.2d 119 ]), noting that the jury was instructed “to consider all of the instructions as a whole and ... to regard each in light of all the others.” (CALJIC No. 1.01 (4th ed. 1979 bound vol.).)
Doing so, we find no reasonable likelihood that the jury was misled with regard to its obligation to find each element of each charged crime proven beyond a reasonable doubt. The jury was instructed that each inference or fact necessary to establish guilt must be proven beyond a reasonable doubt. (See also People v. Crittenden, supra, 9 Cal.4th at p. 144.) Defendant’s contention is without merit.
2. Failing to Instruct on Intent for Special Circumstance Findings.
Defendant contends that the court erred by failing to instruct the jury that it must find he had the intent to kill before it could find true each felony-murder special-circumstance allegation. (See People v. Johnson *680 (1993) 6 Cal.4th 1, 44-45 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].) The People agree.
The prosecution tried the case on the theory that defendant personally killed Skuse. It successfully urged the court to delete the requirement of intent to kill when instructing on the special circumstances. It also successfully argued to the jury that he was guilty of first degree murder for committing a felony murder or a premeditated and deliberate murder.
“In Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ], we held that intent to kill was a necessary element of the felony-murder special circumstance .... We overruled . . . Carlos ... in People v. Anderson (1987) 43 Cal.3d 1104 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ]. As to offenses committed after Carlos but before Anderson , however, due process and ex post facto principles demand that the intent-to-kill requirement apply to any felony-murder special circumstance charged in connection with such offenses.” (People v. Johnson, supra, 6 Cal.4th at p. 44.) The murder of Skuse allegedly occurred on October 5, 1985, during the “window period” between Carlos and Anderson .
We filed People v. Anderson (1987) 43 Cal.3d 1104 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ], on October 13. Trial in this case began the next day, and the parties proceeded under the erroneous assumption that because defendant was the actual perpetrator of Skuse’s killing if he killed at all, Anderson applied and there was no need to instruct the jury that it must find he had the intent to kill to find true the special circumstances of felony murder. The court agreed.
The jury was instructed as follows on each special circumstance alleged (we quote from the written version furnished to the jury; see post, at p. 687): “To find that the special circumstance[] referred to in these instructions as murder in the commission of [the underlying crime] is true, it must be proved: Ffl] 1. That the murder was committed while the defendant was engaged in the commission or attempted commission of [the underlying crime]; and [^ 2. That the murder was committed in order to carry out or advance the commission of the [underlying] crime ... or to facilitate the escape therefrom or to avoid detection. In other words, the special circumstance referred to in these instructions is not established if the [underlying crime] was merely incidental to the commission of the murder.” (Cf. CALJIC No. 8.81.17 (4th ed. 1984 Supp.).) The standard jury instruction, if given in a manner adapted to the facts of this case, would also have told the jury that “it must be proved: [f] . . . [*][] 2. That the defendant intended to kill a human being.” (See ibid.)
*681 Three felony-murder special circumstances were alleged, one each for the underlying crimes of burglary, robbery, and rape. No other special circumstance was alleged.
Failing to instruct the jury that it had to find intent to kill as an element of each of the felony-murder special circumstances was, of course, error under Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ] (Carlos). The question is whether the error was harmless. The determination depends on application of the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]. (People v. Johnson, supra, 6 Cal.4th at p. 45.)
In People v. Whitt (1984) 36 Cal.3d 724, 734 [ 205 Cal.Rptr. 810 , 685 P.2d 1161 ], we stated that under the language of a felony-murder special-circumstance instruction similar to the ones provided here “[t]he jury was not instructed to find that [the defendant] intended to kill. . . .” (See also id. at p. 736.) The instruction in Whitt told the jury “to find the robbery-murder special circumstance allegation true if it found ‘that the murder was committed during the immediate flight after the commission of a robbery by the defendant; and . . . that the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection.’ ” (Id. at p. 734.)
We consider Whitt to be dispositive on this point. (Cf. conc. opn. of Mosk, J., post, at p. 738.) The error, however, does not require reversal, for in People v. Johnson, supra, 6 Cal.4th at pages 45-46, we held that error in failing to instruct that a special circumstance contains a requirement of the intent to kill is harmless when “the evidence of defendant’s intent to kill . . . was overwhelming, and the jury could have had no reasonable doubt on that matter.” We so conclude here.
To “ ‘[i]ntend’ means ‘to have in mind as a purpose or goal . . . .’” (People v. Balcom (1994) 7 Cal.4th 414, 423, fn. 2 [ 27 Cal.Rptr.2d 666 , 867 P.2d 777 ]; cf. People v. Velasquez (1980) 26 Cal.3d 425, 434 [ 162 Cal.Rptr. 306 , 606 P.2d 341 ] (lead opn.), vacated and remanded sub nom. California v. Velasquez (1980) 448 U.S. 903 [ 65 L.Ed.2d 1132 , 100 S.Ct. 3042 ], reiterated (1980) 28 Cal.3d 461 [ 171 Cal.Rptr. 507 , 622 P.2d 952 ] [defining intent in terms of purpose or knowledge].) As in People v. Johnson, supra, 6 Cal.4th 1 , and in People v. Cudjo (1993) 6 Cal.4th 585, 630 [ 25 Cal.Rptr.2d 390 , 863 P.2d 635 ], we conclude that the method of killing “would preclude any inference [that it] was accidental or unintentional” (Johnson, supra, 6 Cal.4th at p. 47); rather, as we shall explain, “the only reasonable conclusion the jury could have drawn was that defendant” (ibid.) intended to kill.
*682 The instructions and argument indicated that defendant could be found guilty of the first degree murder of Lois Minnie Skuse either because the killing was premeditated and intentional, or because it occurred during the commission of a burglary, robbery, and rape. The prosecutor argued, however, that whichever theory was credited by the jury, defendant’s “intent to kill was obvious” based on the severity of the beating and the fatal knife wound to the carotid artery. The prosecutor theorized that defendant killed Skuse in order to “cover up” his other crimes. Against this backdrop, it is highly likely that the jury found an intentional homicide when it convicted him of first degree murder and found true the three felony-murder special circumstances.
We also conclude that no reasonable jury, properly instructed under Carlos , would have failed to find intent to kill based on the evidence in this case. The deep stab wound in the neck of Skuse, an elderly (ante, at p. 653), “tiny” (post, at p. 719), and osteoporotic (ante, at p. 655) woman (see People v. Cudjo, supra, 6 Cal.4th at p. 630 [“helpless victim”]) who was probably already disabled through defendant’s beating of her, combined with evidence that he stabbed her twice or, if not twice, stabbed her once and twisted or let the knife twist in her neck, is inconsistent with unintentional homicide. The pathologist did not describe the wound as a laceration, as if Skuse had brushed or pushed against a knife blade held parallel to the skin, but as a “stab wound.” His testimony also established that the knife was inserted with such force that the carotid artery “had almost been completely cut, severed.” (See People v. Johnson, supra, 6 Cal.4th at p. 47, citing “People v. Pride, supra, 3 Cal.4th at p. 247 [multiple stab wounds consistent with finding of premeditated murder]”; cf. People v. Balderas, supra, 41 Cal.3d 144, 199 [gunshot wound “not in an area of vital organs,” inter alia, defeats possibility of “an intent to kill as a matter of law”].)
Moreover, there was little doubt that the knife wound was administered while the victim was in the same defenseless position in which her body was found—lying facedown and battered on the bedroom floor. Descriptions of the crime scene established that blood drained from the stab wound in Skuse’s neck and “saturated” a throw rug underneath her upper body. There was no evidence that Skuse was moved to this position after the fatal wound was inflicted. While we do not know when defendant obtained the murder weapon from the kitchen and carried it into the bedroom, the medical evidence establishes to a near certainty that he harbored lethal intent at the moment he used the knife.
The brutality of the assault, which involved force far in excess of that needed to complete any of the other crimes committed against Skuse, also *683 evinces an intent to kill. (See People v. Cudjo, supra, 6 Cal.4th at p. 630.) Defendant testified that he was of average strength and the jury could infer from the evidence presented that Skuse was frail. Her frailty was readily apparent because of her stooped or humpbacked condition. Together, these facts virtually eliminated the possibility that defendant inflicted the blunt trauma injuries and knife wound during a violent struggle or while the victim offered any meaningful resistance.
The condition in which defendant left the body further supports the view that he intended to kill. He “[djraped” the purple robe across the victim’s shoulder and back, stacked four dresser drawers on top of the robe, and then tossed items of clothing onto the pile. At some point, he also dumped the contents of the victim’s purse on the bed and removed her television from the living room. The only reasonable inference is that defendant searched the apartment for valuables after attacking Skuse, safe in the knowledge that she would not interfere because she was either dead or dying.
Our conclusion is also supported by the manner in which the jury resolved the crimes defendant was charged with committing against the other victim, 51-year-old Norma C. In finding him guilty of attempted murder in this incident, the jury rejected his trial testimony and found that he intended to kill that victim, for the intent to kill is an element of the offense of attempted murder. (People v. Visciotti (1992) 2 Cal.4th 1, 56 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ].) The crimes against Norma C. occurred just two weeks after Skuse was murdered and were highly similar. In both incidents, an older female victim was severely beaten in the face and choked, was cut or stabbed at or near the carotid artery, was forced to lie facedown on the floor, and had her panties ripped or displaced; and in both, defendant raped or intended to rape, dumped the contents of the victim’s purse, and stole her wallet or money. It seems improbable that the jury would have found that he intended to kill Norma C. but that he did not intend to kill Skuse, who was older and frail, even though Skuse died as a result of her injuries and defendant was found to have used a knife only against Skuse.
Citing and discussing People v. Fuentes (1985) 40 Cal.3d 629 [ 221 Cal.Rptr. 440 , 710 P.2d 240 ], defendant asserts that the court’s instructional error and the emphasis the prosecution placed on the felony-murder theory combined to cause him to abandon possible defenses that he was the killer but did not intend to kill, or that he was an accomplice to others who burglarized Skuse’s apartment but that the others killed her.
We are unpersuaded. Leaving aside any question of invited error, the record makes plain that the prosecutor did not, as defendant implicitly *684 contends, emphasize felony murder to the virtual exclusion of the other theory available to him—namely, premeditated and deliberate murder. Hence “defendant had a dual incentive to present [evidence of a lack of intent to kill]. First, such evidence was crucial in the event the jury determined that defendant was [not guilty of felony murder] .... [ID Second, lack of intent to kill would have been a strong mitigating factor at the penalty phase of the trial.” (People v. Fuentes, supra, 40 Cal.3d at pp. 642-643 (conc. and dis. opn. of Lucas, J.); accord, id. at p. 643 (conc, and dis. opn. of Mosk, J.); see also People v. Barbosa (1991) 228 Cal.App.3d 1619, 1627-1628, fn. 12 [ 279 Cal.Rptr. 626 ].) The parties’ and court’s interpretation of the requisite mental state for the felony-murder special circumstances could not have had the effect that defendant suggests.
• As stated, the prosecution’s theory of first degree intentional murder gave defendant every incentive to present evidence negating an intent to kill, notwithstanding the parties’ mistaken assumption that Carlos did not apply. Yet “[rjelying on an alibi defense, defendant presented no evidence that the killing was other than intentional.” (People v. Cudjo, supra, 6 Cal.4th at p. 630.) According to defendant’s version of events, he did not see Skuse when he entered her apartment, and he did not rape or kill her or take any of her property. This version of events is fundamentally inconsistent with defendant’s current claim that, absent Carlos error, he might have sought to persuade the jury that he was the killer but had no intent to kill. Given his trial testimony, we can only assume that no evidence “worthy of consideration” on intent to kill was available. (People v. Garcia (1984) 36 Cal.3d 539, 556 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ].)
For the foregoing reasons, defendant’s claim of reversible Carlos error fails.
3. Instruction Explaining Uses of Evidence to Show Intent.
The jury was instructed that intent may be proven by direct or circumstantial evidence. The court modified CALJIC No. 3.34 (4th ed. 1979 bound vol.) so as to provide the jury this language: “The intent with which an act is done is shown as follows: (By a statement of his intent made by a defendant.) [C[Q By the circumstances attending the act, the manner in which it is done, and the means used.”
The jury was also instructed that for all the offenses charged except rape, battery, and battery with serious bodily injury, which were said to be general-intent crimes, “there must exist a union or joint operation of act or conduct and a certain specific intent and/or mental state in the mind of the *685 perpetrator and unless such specific intent and/or mental state exists the crime to which it relates is not committed. [^0 The specific intent and/or mental state required is included in the definition of the crimes charged.”
The gravamen of defendant’s claim is that “the instruction . . . mandatorily defined intent by action” by stating that intent “is shown” by certain acts amounting to direct or circumstantial evidence—hence the element of intent was taken from the jury, in asserted violation of several provisions of the federal Constitution.
Defendant is wrong. There is no reasonable likelihood that the jury would have understood that it must find intent established if it found certain acts to have been committed. Rather, it would have understood that intent is found, if at all, either by a defendant’s own statements or by circumstantial evidence from which it can be inferred.
4. Instructing on Rape in Terms of General Intent and Specific Intent.
The jury was given a version of CALJIC No. 3.30 (4th ed. 1979 bound vol.) adapted to the rape charge against defendant. The instruction informed them that rape was a general intent crime and explained: “To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.”
The jury was instructed, with regard to felony murder: “The unlawful killing of a human being . . . which occurs as a result of the commission or attempt to commit . . . rape . . . and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.” (Capitalization altered and italics added.) As stated above, the jury was also instructed that “[t]he specific intent and/or mental state required is included in the definition of the crimes charged.”
Defendant contends that the instructions were contradictory, vague and confusing, requiring reversal under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Specifically, he observes that the rape instruction required a finding of general intent, whereas the felony-murder-rape instruction required a finding of specific intent.
Rape is a general intent crime. (People v. Hernandez (1988) 46 Cal.3d 194, 209 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ].) As the jury was informed in *686 the instruction defining rape, performing a proscribed act was enough to violate the law. To find that felony murder occurred, however, the jury was required also to find “specific intent.” We discern no reasonable likelihood that the jury would understand the requirement of “specific intent” in the felony-murder charge to mean anything but the mental state of the purpose to achieve some goal—i.e., intent. There is no reasonable likelihood that the jury would understand that the term “specific intent” might mean something else (see People v. Hood (1969) 1 Cal.3d 444, 456-458 [ 82 Cal.Rptr. 618 , 462 P.2d 370 ]; Director of Public Prosecutions v. Beard [1920] A.C. 479, 497-498 (per Lord Birkenhead)). Therefore defendant received more than he was entitled to when the jury was instructed on the “specific intent” to commit the underlying felony of rape. The reference inured to his benefit. If error occurred, it was harmless.
5. Effect of Misreading Instructions.
Defendant contends that the court prejudicially erred by misreading various instructions to the jury, and thereby violated rights he discerns in the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, requiring reversal of his convictions. This claim is without merit.
The court erroneously substituted “burglary” for “robbery” when reading the last sentence of the instruction on the felony-murder-robbery special circumstance.
The court stated, “In determining the believability of a witness, you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the Defendant...” (italics added), whereas the written instruction provided, “. . . of the witness . . . .”
Defining burglary, the court instructed: “Every person who enters any structure of the type shown by the evidence in this case, with the specific intent to steal ... or with the specific intent to commit rape, a felony, is guilty of . . . burglary.” Following other instructions on burglary, the jury was also given this written instruction, modifying CALJIC No. 14.59 (4th ed. 1979 bound vol.): “If you agree unanimously that defendant made an entry with the specific intent to steal or to commit rape, a felony, you should find the defendant guilty of burglary, and you are not required to agree on which particular crime the defendant intended to commit when he entered.” The court’s oral instruction did not include the words “of burglary”; it stated that if the jury found he entered with the intent to steal or rape it “should find the defendant guilty . . . .” Defendant contends that the oral form of *687 this instruction directed the jury to find him guilty of all crimes charged if it decided he entered the Skuse residence and the Norma C. classroom with the intent to steal or rape.
The court stated, according to defendant, that “[ijmplied malice aforethought is applicable to the crime of attempt to commit murder," whereas the written instruction contained the word “inapplicable.” The corrected reporter’s transcript shows that the court read that part of the instruction properly. But it did orally substitute “attempt” for “intent” in the ninth paragraph of that written instruction, misstating a clause instructing that “acts of a person who intends to kill another person will constitute an attempt where they themselves clearly indicate a certain, unambiguous intent to kill . . . .” (CALJIC No. 8.66 (4th ed. 1987 Supp.), italics added.)
The court omitted “discussed or” from the admonition of CALJIC No. 8.83.2 (4th ed. 1979 bound vol.): “In your deliberations the subject of penalty or punishment is not to be discussed or considered by you.”
The court stated, “In this case there are . . . four possible verdicts as to Count Two, . . . [and] six possible verdicts and two findings as to Count Eight,” omitting any mention of count seven, whereas the written instruction provided, “In this case there are . . . three possible verdicts as to Count Two, ... six possible verdicts as to Count Seven, and four possible verdicts as to Count Eight.”
Finally, the court stated, “[a\ttempted murder is the unlawful killing of a human being with express malice aforethought.” (Italics added.) The written instruction also contained this obvious misstatement of law, which the court and parties agreed to during the instruction conference, evidently overlooking the flaw.
Regarding the instructions orally misstated but whose written form defendant does not contend to be erroneous: The jurors had before them six copies of the written version when they began to deliberate, and we presume that they were guided by those copies. (People v. Crittenden, supra, 9 Cal.4th 83, 138.) Although defendant insists that it is mere speculation to conclude that the jury even read the printed instructions, much less was guided by them, their primacy was reinforced by the court’s admonition that “[y]ou are to be governed only by [each] instruction in its final wording whether printed, typed or handwritten.” This direction reminded the jurors that it is difficult to recite complicated and lengthy written material verbatim and that the carefully prepared and reworked written text should guide them. The error committed in misstating the instructions was harmless. (Id. at p. 139.) *688 However, we emphasize the importance of trial judges reading jury instructions with care.
With regard to the instruction on attempted murder whose written form also misstated the law: The error was so obvious that we do not believe there is any reasonable likelihood that the jury, with its members deliberating the charges, would have understood that attempted murder is defined as an unlawful killing with malice aforethought. The same instruction explained that an element of attempted murder is “a direct but ineffectual act. . . done by one person towards killing another . . . .” Even if, as is most unlikely, the jury misunderstood the instruction, it could only have benefitted defendant. The misstatement of the law in the oral and written instruction was also harmless. There was no violation of any constitutional provision.
6. Failing to Require Unanimity Regarding Murder Theory.
The jury was instructed that it could find defendant guilty of first degree murder on a theory either of felony murder or of killing with malice aforethought, intent to kill, premeditation, and deliberation. The instructions did not require that the jury unanimously decide on one of these two bases for a conviction. Defendant contends that this procedure violated the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. He acknowledges that we have held otherwise. (People v. McPeters (1992) 2 Cal.4th 1148, 1185 [ 9 Cal.Rptr.2d 834 , 832 P.2d 146 ].) We decline to reconsider our view.
7. Cumulative Effect of Assertedly Erroneous Instructions.
Defendant contends that the cumulative impact of giving the jury numerous instructions he finds defective—in sum, those reviewed in the instructional error part of this discussion—deprived him of rights he finds in the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
We disagree. We have concluded that some of the instructions about which he complains were in fact free of error, and that the errors in giving others were harmless. The cumulative effect of error did not deprive him of any constitutional right.
Defendant also maintains that the prosecutor committed misconduct by disparaging the instructions, calling them “legal jargon”—a term that defendant equates with “incomprehensible” speech or “gibberish”—and thereby undermining the jurors’ understanding that they must follow them to return a lawful verdict.
*689 When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief complained of. (People v. Clair, supra, 2 Cal.4th 629, 663 .)
In fact the prosecutor was speaking only of the complicated murder instructions, which do contain numerous terms of art. There is no reasonable likelihood that the jury would interpret his remarks as disparaging. No misconduct occurred.
G. Failing to Provide All Verdict Forms and to Read Them Correctly.
As part of giving instructions, the court read the verdict forms to the jury. It failed to read any form returning a verdict of not guilty of first degree murder. And it also failed to read the form returning a verdict of not guilty for the rape of Skuse.
In addition, defendant contends that the court failed to provide the jury with a not guilty form for a first degree murder verdict and with any forms at all on a verdict for murder in the second degree, even though it promised that it would do so. The record supports his assertion. He did not, however, call these problems to the court’s attention when they occurred.
He contends that by its errors the court directed the jury to return guilty verdicts on the first degree murder and rape charges, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. He also urges that these constitutional provisions were violated by the court’s failure to provide forms for second degree murder.
We do not decide whether the failure to notify the court of these problems prevents defendant from raising the issue on appeal. (Cf. § 1259 [claim of instructional error may be considered for first time on appeal if “the substantial rights of the defendant were affected” by the asserted error].) In any event, we have a different view from him of the merits of this issue. The jury was instructed that to find him guilty of first degree murder or rape it would have to decide that he committed these crimes beyond a reasonable doubt. Thus, just as was true of the error in misreading certain instructions to the jury (ante, at pp. 686-688), the errors in failing to properly read the verdict forms were harmless.
The parties do not raise, and we do not address, the question whether the court has any duty to provide the jury with verdict forms. But any failure to provide a form, if error it is, results in no prejudice when the jury has been *690 properly instructed on the legal issue the trial presented. When “the jury has been properly instructed as to the different degrees of the offense, it must be presumed that if [the jurors’] conclusion called for a form of verdict with which they were not furnished, they would either ask for it or write one for themselves. It certainly could have no necessary tendency to preclude them from finding such verdict, [f] We discover no reversible error in the record . . . .” (People v. Hill (1897) 116 Cal. 562, 570 [ 48 P. 711 ]; accord, People v. Elliott (1953) 115 Cal.App.2d 410, 424 [ 252 P.2d 661 ]; see also People v. Schindler (1969) 273 Cal.App.2d 624, 642 [ 78 Cal.Rptr. 633 ] [dictum].)
H. Sufficiency of Evidence for the Convictions and. for the Crimes Supporting the Special Circumstance Findings.
Defendant contends in substance that there is insufficient evidence that he committed any of the crimes charged in light of the requirements of the due process clause of the Fourteenth Amendment to the United States Constitution and its equivalent in the California Constitution (Cal. Const., art. I, § 15). He also urges that the evidence was insufficient to find true the special circumstance allegations.
We disagree: there was sufficient evidence in each instance.
“In reviewing [a claim regarding] the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.] ‘[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We ‘ “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Davis, supra, 10 Cal.4th 463, 509-510 .) If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [ 61 L.Ed.2d 560, 573-574 , 99 S.Ct. 2781 ]), as is the due process clause of article I, section 15, of the California Constitution (People v. Berryman, supra, 6 Cal.4th 1048, 1083 ).
1. Crimes Against Skuse and Special Circumstances.
Defendant claims that the evidence is insufficient to establish his guilt of first degree murder, rape, robbery, or burglary—the crimes for which *691 he was prosecuted in connection with the killing of Skuse—or to find true the special circumstance allegations. He contends that because the prosecution lacked sufficient evidence of the killer’s identity, the evidence for felony murder was insufficient, and that because it lacked evidence of premeditation and deliberation, the evidence to convict him on that theory also was insufficient.
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) At the time of Skuse’s killing, first degree murder could be accomplished by a “murder . . . committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288 . . . .” (Former § 189, added by Stats. 1982, ch. 950, § 1, p. 3440.) Rape was then defined in pertinent part as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator” “accomplished against a person’s will by means of force or fear of immediate and unlawful bodily injury on the person or another.” (Former § 261, subd. (2), added by Stats. 1984, ch. 1635, § 79.5, p. 5865.) Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§211; see also §212 [defining fear].) Burglary was defined, as relevant to this case, as an entry into any “room, apartment... or other building . . . with intent to commit grand or petit larceny or any felony . . . .” (Former § 459, added by Stats. 1984, ch. 854, § 2, p. 2896.) Burglary of an “inhabited dwelling house” was burglary of the first degree. (Former § 460, subd. 1, added by Stats. 1982, ch. 1297, § 1, p. 4786.)
In light of the evidence described ante, at pages 653-655 and 657-658, a rational trier of fact could surely have found beyond a reasonable doubt that defendant perpetrated felony murder and committed all three underlying felonies charged with respect to Skuse. The presence of defendant’s palm, thumb, and fingerprint impressions at the scene; the shoe print impressions; the ripping of Skuse’s underwear; the presence of semen; the severe beating that she endured; the postal authorities’ return of her wallet and the disappearance of the television set and car keys; and defendant’s own testimony regarding his visit to her apartment—these items of evidence permitted a rational trier of fact to find beyond a reasonable doubt that defendant committed felony murder, to find the offenses of rape, robbery, and burglary established beyond a reasonable doubt, and to find true each special circumstance alleged. Regarding the latter, defendant contends that even if the evidence sufficed to establish the underlying crimes, the special circumstance allegations may not be sustained, for the intent to kill was required at the time of the crimes and the jury never found such an intent. We have, *692 however, concluded that under the evidence presented the only reasonable conclusion the trier of fact could have reached was that defendant intended to kill Skuse. (Ante, at pp. 679-684.) There was sufficient evidence to permit us to sustain the allegations, and any error regarding a failure to find intent was harmless.
As stated, defendant also contends that there was insufficient evidence to find him guilty of first degree murder on a theory of premeditation and deliberation (former § 189, added by Stats. 1982, ch. 950, § 1, p. 3440). We need not address this point, however, because his conviction adequately rests on the first degree murder verdict and the three true felony-murder special-circumstance findings, “which, under the instructions actually given, necessarily entail a unanimous determination of felony . . . murder . . . beyond a reasonable doubt.” (People v. Berryman, supra, 6 Cal.4th at p. 1086.)
2. Crimes Against Norma C.
Defendant also contends that there was insufficient evidence to convict him of attempting to murder Norma C. He reasons that the prosecution’s case lacked a sufficient showing of the element of intent to kill.
We have already explained the elements of murder. An attempt was defined, at the time defendant attacked Norma C., as an intent to commit a crime coupled with a direct but ineffectual act toward its commission. (People v. Memro (1985) 38 Cal.3d 658, 698 [ 214 Cal.Rptr. 832 , 700 P.2d 446 ]; see also § 21a, added by Stats. 1986, ch. 519, § 1, p. 1859 [later codifying rule].)
With regard to the attack on Norma C., it is again necessary only to recall the evidence presented (ante, at pp. 655-658) to reject defendant’s claims of insufficient evidence of the intent to kill. In addition to the nature of her injuries and other physical evidence, the brutality of the attack on her and the drawing of the curtains so that medical aid might not soon reach her all permitted a rational trier of fact to find beyond a reasonable doubt that he committed the crime..
Defendant also contends that there was insufficient evidence to convict him of robbery or of assault with intent to rape. Robbery we have already defined. With regard to the other charge, section 220 punishes “[e]very person who assaults another with intent to commit. . . rape . . . .”
But defendant’s demand for money, his scouring of Norma C.’s purse and the disappearance of paper money from it, the rending of her underclothing *693 and pantyhose, and his own testimony at trial establish that there was sufficient evidence to convict him of these crimes. (See ante, at pp. 655-658.)
Finally, defendant contends that, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, he cannot present this issue adequately on appeal because the loss of certain photographic exhibits makes it impossible to review the record and marshal facts for an adequate argument. We do not agree. We have concluded on independent review that the record is adequate to allow the appeal to proceed in a meaningful fashion. That conclusion certainly applies here.
I. Prosecutorial Misconduct.
Defendant contends that the prosecutor committed misconduct at various stages of the guilt phase proceedings, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and evidently also in violation of state law.
1. During the Taking of Evidence.
With regard to some of the points raised in this section, defendant registered no objection to the purported acts of misconduct, and there is no reason to believe that any harm could not have been cured. Those points must therefore be rejected on procedural grounds. (People v. Benson (1990) 52 Cal.3d 754, 794 [ 276 Cal.Rptr. 827 , 802 P.2d 330 ].) Defendant urges that if this is true, then counsel were ineffective for failing to timely object. In light of that argument, we will address each claim on the merits to the extent necessary to decide the ineffective assistance claim. (See People v. Wader (1993) 5 Cal.4th 610, 636 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) As will appear, most of his claims lack merit; we discern no prejudice from the one act of misconduct that occurred, and hence no denial of the effective assistance of counsel.
First, defendant contends that the prosecutor committed misconduct by showing putrid clothing to the jury. We have already explained the circumstances surrounding the presentation of this evidence. (Ante, at pp. 674-675.) There was no misconduct. As described, the prosecutor made every effort to minimize the effect of the blood’s putrefaction on the jury.
Next, citing Caldwell v. Mississippi (1985) 472 U.S. 320 [ 86 L.Ed.2d 231 , 105 S.Ct. 2633 ], defendant urges that by mentioning to prospective juror Catherine Trujillo, who was later seated on the jury, “in the last twenty years *694 no one has been executed in the State of California,” the prosecutor improperly implied that the death penalty was a fiction and therefore she would not be fully responsible for whatever punishment she voted to mete out to him.
This claim fails to persuade. Caldwell error occurs when the jury has been “affirmatively misled . . . regarding its role in the sentencing process so as to diminish its sense of responsibility.” (Romano v. Oklahoma (1994) 512 U.S. 1 ,_[ 129 L.Ed.2d 1, 11 , 114 S.Ct. 2004 ].) The prosecutor’s innocuous comment, in response to Trujillo’s observation that she did not recall the death penalty having been used in California, fell short of any such transgression. It did not affirmatively mislead her that the responsibility for the sentence rested elsewhere; indeed it did not hint at such a notion.
Next, defendant contends that when the prosecutor cross-examined him, he improperly questioned him regarding his denials to the police of having been present at the crime scenes, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The authorities to which he refers us, however, discuss only the constitutional propriety of using an “arrested person’s silence ... to impeach an explanation subsequently offered at trial.” (Doyle v. Ohio (1976) 426 U.S. 610, 618 [ 49 L.Ed.2d 91, 98 , 96 S.Ct. 2240 ], fn. omitted; see Brecht v. Abrahamson (1993) 507 U.S. 619, 627-628 [ 123 L.Ed.2d 353, 366 , 113 S.Ct. 1710 ].) By contrast, “Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda [v. Arizona, supra, 384 U.S. 436 ] warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” (Anderson v. Charles (1980) 447 U.S. 404, 408 [ 65 L.Ed.2d 222, 226 , 100 S.Ct. 2180 ].)
Such was the case here. As explained, evidently having waived his rights to silence and to counsel, defendant told a homicide detective that he had never visited the Skuse apartment. When told that his fingerprints had been found there, he could offer no explanation for their possible presence. He also denied ever having been inside St. Patrick’s Elementary School and could not understand why his fingerprints might be found in a second grade classroom there. At trial, of course, he admitted that he was at both locations and committed crimes at each. The prosecutor committed no Doyle error by questioning him about his prior inconsistent statements.
Next, defendant contends that the prosecutor at times asked questions of him that were argumentative, improperly leading, or harassing, or that assumed facts not in evidence, all in violation of state law and the *695 federal Constitution. Having reviewed the record, we disagree that any misconduct occurred, with one exception. At one point this exchange regarding the beating of Norma C. occurred:
“Q. Did you take anything from her?
“A. No, I didn’t.
“Q. Besides her dignity, I mean.
“Mr. Reese: Objection, your Honor.
“The Court: Overruled.
“Mr. Reese: It’s not time for final argument at this time, your Honor.”
Defendant calls the prosecutor’s comment inflammatory. His remark was gratuitous, but his misconduct was also de minimis. The jury was well acquainted with defendant’s crimes and their effect on Norma C. No prejudice appears as a matter of state law. (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ].) Nor do we discern any violation of the federal Constitution. “A state-law violation is not automatically a violation^ e.g.,] of federal constitutional due process—and certainly, the violation here does not offend [any federal constitutional] guaranty.” (People v. Ashmus, supra, 54 Cal.3d 932, 984, fn. 14 .)
Next, defendant maintains that by asking Norma C. and a police officer whether they could recall her having told him at the hospital that she thought she had been raped, the prosecutor offered his own testimony and put before the jury inflammatory allegations not supported by evidence, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and also implicitly in violation of state law. Norma C. could not recall having made the statement. The police officer did recall her having made a statement, but defendant objected on grounds of hearsay, the prosecutor elected not to pursue the matter, and the statement’s contents were never revealed.
No misconduct appears. “It is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.” (People v. Warren (1988) 45 Cal.3d 471, 480 [ 247 Cal.Rptr. 172 , 754 P.2d 218 ].) The record contains nothing that would suggest the absence of such a good faith belief. To contend the opposite is to speculate. Indeed, the police officer recalled that Norma C. did make a *696 statement regarding a sexual assault, and the prosecutor later made a point of putting on the record that he asked the question in good faith, but could not immediately think of how to overcome the hearsay objection. To be sure, misconduct may be found even when the prosecutor acts in good faith. (People v. Price (1991) 1 Cal.4th 324, 447 [ 3 Cal.Rptr.2d 106 , 821 P.2d 610 ].) On this record, however, we find no misconduct and hence no violation of state or federal law.
2. During Closing Arguments.
Defendant further contends that the closing arguments were replete with misconduct, consisting of attempts to shift the burden of proof to him, misstate the law, rely on or assume facts not in evidence, and tar him with uncharged crimes or with acts for which there was insufficient evidence.
Defendant never assigned misconduct to any statement of the prosecutor at closing argument. He has failed to preserve for review any claim of misconduct. (People v. Benson, supra, 52 Cal.3d at p. 794.) He urges that his counsel’s failure to assign misconduct to aspects of the arguments denied him the effective assistance of counsel. In light of that claim, we will address his contentions on the merits to the extent necessary. (People v. Wader, supra, 5 Cal.4th 610, 636 .) As will appear, they are largely meritless, and in no case does he show prejudice. Therefore he was not denied the effective assistance of counsel.
a. Burden of Proof.
First, defendant contends that the prosecutor attempted to shift the burden of proof to him when he asked the jury to consider what other explanation could account for the evidence at Skuse’s apartment, including specifically the shoe print impressions.
There is no reasonable likelihood that the jury would have understood the remark to cause the mischief complained of. The prosecutor was suggesting that the most logical interpretation of the evidence was that defendant committed the crimes. It was “a fair comment on the state of the evidence . . . .” (People v. Mayfield (1993) 5 Cal.4th 142, 178 [ 19 Cal.Rptr.2d 836 , 852 P.2d 331 ].) There was no misconduct, and no constitutional violation.
Defendant further urges that the prosecutor attempted to shift the burden of proof when he argued that if he “denies these things [i.e., having committed most of the crimes at the Skuse apartment], and if you conclude that—that he is not telling you the truth, I think it’s a fair inference to *697 conclude the opposite must be true.” We understand the prosecutor to have meant that if the jury did not believe defendant’s statement that he did not commit the crimes, it would have to decide that he did commit them. There is no reasonable likelihood that the jury would understand the declaration to affect the burden of proof.
Defendant also urges that the prosecutor tried to shift the burden to him by arguing that his testimony was incredible. The prosecutor did indeed dwell on the implausibility of various aspects of defendant’s testimony. In so doing, however, he nowhere suggested that defendant bore a burden to establish his lack of guilt, and there is no reasonable likelihood that the jury would have understood him to do so. Again, he fairly commented on the state of the evidence.
Defendant also asserts that the prosecutor tried to shift the burden of proof when he declared, “[i]f bacteria-type infection [i.e., contamination of forensic evidence] were such a big issue, there would be tests done on this type of evidence to discount it.” The prosecutor was trying to emphasize the improbability that the evidence had been contaminated with fecal bacteria—he had just argued that there was evidence that “this type of result is very unusual.” There was no attempt to shift the burden of proof to defendant, and no reasonable likelihood that the jury would have understood the remark as having that effect.
b. Misstating the Law.
Defendant maintains in essence that the prosecutor misstated the law of premeditation and deliberation when he argued that “ ‘[premeditated’ simply means considered beforehand.” He also assigns misconduct to the arguments that the jury did not have to evaluate his reasoning process by a standard befitting Albert Einstein and that it need not, to establish premeditation and deliberation, find that he weighed the consequences as much or as long as might “regular, civilized people, who aren’t criminals, who would never think of [doing] such a thing.”
The prosecutor did not misstate the law of premeditation and deliberation. “We have defined ‘deliberate’ as ‘ “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ [Citation.] We have defined ‘premeditated’ as ‘ “considered beforehand.” ’ [Citation.] Premeditation and deliberation can occur in a brief interval. ‘The test is not time, but reflection. “Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” (People v. Memro, supra, 11 Cal.4th 786, 862-863 .) To the extent that the prosecutor asserted that defendant would not *698 take as long to decide to act as an individual whose moral compass would make it extremely difficult to contemplate killing another human being, he engaged in fair argument. We find no misconduct. We note, moreover, that the prosecutor argued that defendant “did think carefully. He had to walk into the kitchen and get that knife and walk back and plunge it into the neck of Mrs. Skuse.”
c. Arguing Facts Not in Evidence.
Defendant contends that the prosecutor argued facts not in evidence when he asserted that (1) defendant found money in Skuse’s apartment, (2) Skuse did not die instantaneously, (3) defendant had to step on Skuse’s body to reach the drawer on which fingerprints were found, (4) defendant had to have surveilled Skuse and to have known she had a car to steal, (5) Norma C. was elderly, (6) defendant used Norma C.’s money to divert himself with his friends, and (7) Norma C.’s “looking right at him, as he dragged her across the room” supported a motive for attempted murder.
The prosecutor should not, of course, argue facts not in evidence. (People v. Benson, supra, 52 Cal.3d at pp. 794-795.)
In each case cited, we conclude that the remarks were permissible inferences

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5452162. Public record. Not legal advice.