People v. Letner and Tobin

Opinion

GEORGE, C. J.

Defendants Richard Lacy Letner and Christopher Allan Tobin were convicted of first degree murder (Pen. Code, § 187), 1 burglary (§ 459), robbery (§§ 211, 212.5), attempted rape (§§ 664, 261, subd. (a)(2)), and theft of an automobile (Veh. Code, § 10851, subd. (a)), arising from the murder of Ivon Pontbriant in her home in Visalia, California, on March 1, 1988. As to each defendant, the jury found true three special circumstance allegations—that the murder was committed in the course of the burglary, attempted rape, and robbery (§ 190.2, subd. (a)(17)(A), (C), (G))—and returned a verdict of death. The trial court, having denied defendants’ motions for new trial and the automatic applications to modify the verdicts (§ 190.4, subd. (e)), sentenced defendants to death and to consecutive prison terms of six years eight months for the noncapital offenses. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment as to each defendant in its entirety.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

Ivon Pontbriant, then 59 years of age, lived with Walter Gilliland, with whom she was romantically involved, in a residence located at 804 North Jacob Street in Visalia in Tulare County. On Wednesday, March 2, 1988, Ted and Ida Blevins, Pontbriant’s parents, became concerned because Ivon had *115 not telephoned them as she had planned. That evening, the Blevinses contacted Pontbriant’s cousin, Jack Cantrell, and with him went to the house on North Jacob Street. After they knocked on the door without receiving any response, Cantrell looked through a window and saw Pontbriant sprawled on the floor of the living room.

When the police arrived, they found Pontbriant’s body lying facedown in a pool of blood on the floor between a couch and a coffee table. She was unclothed except for her socks and a brassiere that was pulled down to her waist. Her hands were tied behind her back with a telephone cord that also was looped around her neck. The cord was tied tightly enough to have made ligature marks upon her neck and wrists. A large, deep cut on the back of her neck had severed her spinal cord and lacerated several blood vessels including the right carotid artery, causing her death. Death from the severed spinal cord could have been essentially instantaneous; she would have bled to death within minutes. Pontbriant also had suffered three stab wounds to her neck— two on the left and one on the right—that narrowly missed her blood vessels, and three superficial lacerations on the right side of the neck. Had these other wounds severed Pontbriant’s carotid arteries, she would have lost consciousness almost immediately, and would have died within minutes. Pontbriant’s face had sustained severe blunt force trauma, as though she repeatedly had been kicked or punched in the face while alive, and there were defensive wounds on her arms. Portions of her hair had been ripped out of her head. A Heineken beer bottle, which had fecal matter on it, was wedged between Pontbriant’s buttocks, near her genitals. A pile of clothing found in the living room included a pair of pants and underwear that also had fecal matter on them, and a sweater that appeared to have been cut or ripped open. There was no blood on the clothing. Several hairs were found on Pontbriant’s chest.

An ashtray on the coffee table contained several Marlboro and Camel cigarette butts and a Lowenbrau beer bottle cap. The top of the coffee table had a cut that could have been made by stabbing a knife into it. Nearby was a photograph of Pontbriant with a hole in it that matched the cut in the table. Two of Pontbriant’s purses were on the floor; the entire contents of one purse had been dumped on the floor, and the contents of the other purse, which contained Pontbriant’s checkbook, had been only partially removed. The checkbook did not contain any money, but more than $18 in bills and change were found at the bottom of the purse. The kitchen area appeared to have been wiped down, and in the bathroom was a washrag that appeared to have had blood on it and to have been rinsed. A distinctive wine bottle opener of a type sold at a local liquor store was on the kitchen counter. Gilliland testified that he never had seen the bottle opener in the house. In the bedroom, which was in disarray, the police found a blue baseball cap, blood smears on a pillow on the bed and on a doily on the dresser, and semen stains on the carpet. Pontbriant’s automobile, a red-and-white Ford Fairmont, was missing. *116 A quilt that Pontbriant used to cover the front seat of her car was found on a bush near the location where the passenger’s side door would be when the car was parked in the driveway. Gilliland testified that Pontbriant was very protective of her car; very rarely would she allow anyone else to drive it.

Gilliland testified that three days earlier, on the morning of Sunday, February 28, 1988, defendants drove to the Jacob Street residence in a car they said belonged to Tobin’s girlfriend. For somewhat more than a month prior to that Sunday, Letner had worked for Gilliland two or three days a week helping him repair appliances in the garage behind the house. Gilliland and Pontbriant had befriended Letner; Pontbriant told people that he reminded her of her son. On that Sunday morning, defendants gave Pontbriant and Gilliland a bottle of Kahlua liqueur and a couple of cartons of Marlboro cigarettes. Defendants went inside the house and had coffee with Pontbriant and Gilliland. In defendants’ presence, Gilliland mentioned that he was planning to go to Modesto to visit his family. Pontbriant reminded him that the rent was due soon, and Gilliland gave her approximately $340 in cash. She placed the cash in her checkbook and put the checkbook inside her purse. Defendants left after approximately one hour.

Letner and Tobin were long-standing, very close friends. They had known each other for several years while attending high school in the City of Napa, California. Sometime during 1984, Tobin moved to Visalia, where he met and became romantically involved with Jeanette Mayberry. Tobin and Mayberry lived in a residence at 248 South Crenshaw Street, which they shared with Darlene Jolly and Mike Kinnett. Letner also stayed at the house for approximately one month. Sometime during 1986, Tobin and Mayberry moved to an apartment at 301 East Murray Street, and Letner later joined them. After relocating to a different apartment in the building on Murray Street, in March of 1987 the three moved to an apartment on Stevenson Street. Mayberry was pregnant with Tobin’s child and gave birth in May of that year. Soon after the baby was bom, Letner moved back to the Murray Street apartment. A couple of months later, Tobin also moved back to Murray Street, while Mayberry moved to an apartment at 720 North Bridge Street. Mayberry testified that she and Tobin separated because of Letner’s interference with their relationship. Tobin and Mayberry continued to see each other, however, and in December 1987, Tobin moved to the Bridge Street apartment.

In May 1987, Tobin had begun working for a company that manufactured prefabricated buildings. Letner started working for the same company in June. Defendants were laid off near the beginning of 1988, however, and had no steady employment after that time. Defendants, who did not own a car, occasionally borrowed Mayberry’s car to get around. On Sunday, February 28, 1988, Mayberry lent defendants her vehicle to attend a local swap meet in order to attempt to sell various items. When Letner returned the car that *117 afternoon, he told Mayberry that Tobin was meeting with Tobin’s ex-wife at a nearby park. Mayberry was angered by this report, and twice confronted Tobin and his ex-wife that day. At one point Mayberry angrily threw away the engagement ring Tobin had given her.

On the next day, Monday, February 29, 1988, Mayberry returned to her apartment and discovered that the bedroom window was broken. She suspected that Tobin had broken the window in order to enter the apartment, because she had removed his house key from his keyring after their quarrels on the previous day. Within a few moments, Tobin (who was intoxicated) and Letner arrived at the apartment. Tobin and Mayberry began to argue, and Tobin struck her and pulled out some of her hair. Letner yelled insults at Mayberry and encouraged Tobin to continue to strike her. After Mayberry managed to get away from Tobin, she ran to an upstairs apartment. The neighbors admitted her and called the police. When the neighbors informed defendants that the police had been summoned, Tobin broke the living room windows of Mayberry’s apartment, retrieved his shotgun, and used it to break the windows of her car in the parking lot. He then reentered the apartment, obtained his ornamental sword, and departed with Letner. Tobin returned to the apartment the next day to search for his driver’s license and to apologize to Mayberry. Mayberry did not accept Tobin’s apology and left. Mayberry returned to the apartment the following day, Tuesday, after the windows had been repaired. Tobin’s personal belongings were still there. Mayberry believed Tobin would return and they would reconcile; he had not mentioned anything regarding moving away.

Meanwhile, also on Sunday, February 28, Gilliland and Pontbriant had a disagreement, and Gilliland decided to leave for Modesto. He arranged to meet his son at a motel, so that his son could drive him to Modesto. Gilliland’s son picked him up early the next morning, and they drove to the residence on Jacob Street. Gilliland testified that he retrieved several items, including a toolbox and a puppy, and that Pontbriant was asleep while he was at the house. Gilliland’s son drove with Gilliland to Modesto and dropped him off at his ex-wife’s house.

Marilyn Reid testified that on Sunday evening, Gilliland appeared with a suitcase at the Break Room Bar in Visalia. Letner, who already was there, talked and drank beer with Gilliland; later, they departed at the same time.

On Tuesday, March 1, 1988, Pontbriant drove her friend Flourene Gentry to shop for groceries, as she always did on the first of the month. Later that evening, Pontbriant telephoned Gentry three times, telling her that she (Pontbriant) was concerned because Gilliland had not returned, and a person who had purchased a stove from Gilliland had come by the residence to complain. Gentry testified that during the third telephone call, at approximately 9:30 p.m., Pontbriant told her that two individuals, one of whom *118 reminded her of her son, had just arrived and were entering her house, and everything would be all right. Pontbriant also mentioned that she was “feeling no pain.”

On that Tuesday evening, Marilyn Reid saw defendants drinking together at the Break Room. They departed together sometime between 7:30 p.m. and 9:30 p.m. Frank’s Liquors was located directly across the street from the Break Room. A clerk at the liquor store, who recognized defendants because they were frequent customers of the store, was working one night (which he could identify only as a night in Mar. 1988), when one of the two defendants purchased a six-pack of Heineken beer, a bottle of inexpensive wine, and a distinctive wine bottle opener of the type later found at Pontbriant’s house. The same person returned later that night and bought a six-pack of Lowenbrau beer.

Later that Tuesday evening, Pontbriant and Letner made a series of angry telephone calls to Edward Burdette and his common law wife, Kathy Coronado. Pontbriant accused Burdette of helping Gilliland take the dog and a toolbox that apparently belonged to Letner. Letner threatened to “kick [Gilliland’s] ass” and to harm Burdette if Letner’s tools were not returned. In the later calls, Pontbriant became increasingly upset, and at one point, while crying, told Coronado that “He will hurt me” if the tools were not returned. Because the calls were obscene and threatening, Burdette and Coronado ultimately unplugged their telephone.

On the same night at approximately midnight, Visalia Police Officer Alan Wightman was in his patrol car when he observed a red-and-white Ford Fairmont automobile at a stop sign on Garden Street. The car was facing south, and the driver turned east on Main Street in front of the patrol car. Officer Wightman followed in his vehicle. The car turned south on Bridge Street, west on Mineral King Avenue, and then continued west onto State Highway 198. Officer Wightman conducted a vehicle stop. 2 Letner was driving the car and Tobin was in the front passenger seat. Letner told the officer that he had borrowed the car from the owner, Ivon Pontbriant, in order to drive Tobin home. Tobin separately told the officer they were going to his home on South Crenshaw Street, where he resided with a woman named Jeanette. Letner did not have a driver’s license, and there was no registration card in the vehicle. Letner said that Pontbriant lived on North Jacob Street, but that he did not know the exact address or her telephone number. Officer *119 Wightman provided a police dispatcher with Pontbriant’s name, but obtained only her post office box and prior address.

At the time the officer approached the vehicle, he noticed a six-pack container with four unopened green bottles located behind the front passenger’s seat. After Tobin got out of the car, Officer Wightman saw an opened bottle half filled with beer under Tobin’s seat. He also conducted a brief search of the trunk of the vehicle for any other open containers of alcoholic beverages. Officer Wightman conducted a patdown of Letner and found a folding pocketknife in Letner’s pants pocket, which the officer temporarily confiscated while questioning defendants. Because Letner smelled as if he had been consuming an alcoholic beverage, Officer Wightman conducted a series of sobriety tests. Officer Wightman determined that Letner was not under the influence of alcohol to the degree that his driving was illegal, and therefore the officer merely issued a citation for driving without a license. Nonetheless, because Tobin appeared not to be in a condition to drive, Officer Wightman told defendants to lock the vehicle and continue on foot. Defendants walked west along the highway. Officer Wightman noticed that Pontbriant’s vehicle remained parked alongside the highway when he drove past on his way home Wednesday at 4:00 a.m., and also when he returned to work at 5:30 p.m. that evening.

Upon receiving the report of Pontbriant’s murder, Officer Wightman contacted the investigating officers and guided them to her car, which subsequently was impounded and searched. The items found in the trunk, which included several bags, some clothing, and a sword, appeared to be the same items that were in the trunk the previous night when Officer Wightman conducted a brief search for open containers of alcohol. Tobin’s shotgun, which Officer Wightman did not remember seeing earlier, also was found in the trunk. After the vehicle was impounded, a more thorough search was conducted during which the police also found on the floor of the car a white rag that had blood on it. One Heineken and three Lowenbrau beer bottles, all unopened, were found behind the passenger’s seat. The opened bottle that had been under the seat was a Heineken bottle as well.

At approximately 4:00 a.m. on Wednesday, March 2, 1988, Pamela Loop heard her dogs barking and then noticed two men in her front yard. One of the men said that John Novotny was supposed to give them a ride to work and asked where he resided. Loop told the men that Novotny’s house was behind hers, and they began walking in that direction. Loop telephoned the Novotny residence, and told Denise Novotny, who was awakened by Loop’s telephone call, that two men were on the way to her house. At the same time, Novotny observed the shadow of a person approaching her front door. She looked out of the window and saw Letner, whom she recognized from picnics *120 hosted by the company that had employed her husband and defendants. After Novotny stepped outside, Letner told her they wanted John to give them a ride to work. Novotny responded that Letner should have known John was out of town on a work assignment. Letner told her they believed John might have returned early. Another man asked Novotny whether she could give them a ride to work, and offered to give her money for the cost of gasoline. 3 When Novotny refused, the man became more insistent, and said it was an “emergency.” Novotny continued to say she could not drive them. Eventually, Letner looked at the other man, appeared to make a decision, and said, “Okay, that’s fine.” The men then departed.

On March 3, 1988, Letner made a collect telephone call from Reno, Nevada, to his grandmother in Council Bluffs, Iowa, and told her he was coming to Iowa to seek employment. Despite her urging to the contrary, on March 6 Letner and Tobin arrived in Council Bluffs. They told her they had hitchhiked from Reno, and had been robbed of all their belongings on the way. Letner’s grandfather gave them some clothes, drove them to the Iowana Motel, and paid for one week’s rental of a room on their behalf.

Earl Bothwell, who then was staying at the Iowana, met defendants there. Bothwell, who owned a contracting business, hired Tobin to perform some work for him. At some point, defendants mentioned that they were wanted for murder in California, and asked Bothwell if he could assist them in obtaining false identification. When Bothwell later asked Letner what had happened, Letner explained that he had stolen $12 or $14 and a red-and-white Ford vehicle from a woman. Letner stated he would have driven the car to Iowa, had the police not stopped him for driving erratically or too slowly. During this conversation, Tobin entered the room, and when Bothwell asked whether he was wanted for murder, Tobin replied, “Yeah, I killed the old bitch” because she was yelling and threatening to call the police. Tobin confirmed they had taken approximately $12 to $13 from her. Bothwell told Tobin he had no work for Tobin that day.

During the early morning hours of the following day, the police responded to a report of a disturbance at the Iowana Motel involving defendants and Bothwell. Discovering defendants’ outstanding murder warrants, the police arrested them. At the time of his arrest, Letner had in his pocket a “buck” knife that appeared to be the same as the one seen by Officer Wightman on the night of the murder. Jeanette Mayberry testified that Letner regularly carried that knife with him.

*121 Investigators from Tulare County arrived in Iowa and returned with Tobin to California. A private extradition company was hired to escort Letner to California. While in Texas, however, Letner escaped by stealing the van in which he and several other prisoners were being transported. More than one week later, Letner, who was driving a stolen pickup truck, was arrested at a border patrol checkpoint after providing the checkpoint officer with a known alias recorded in information pertaining to wanted persons. The Tulare County investigators then transported Letner back to California. While in jail awaiting trial, Tobin told another inmate, Gregory Garrard, that of.all the evidence against him, Tobin was most concerned about a bloody rag found in Pontbriant’s car.

At trial, Jeanette Mayberry identified, as belonging to defendants, most of the items found in the trunk of Pontbriant’s car. The items included three bags of stolen cosmetics and hair care products, all belonging to Letner. Mayberry also identified as belonging to Letner the blue baseball cap found in the bedroom of Pontbriant’s house. Mayberry testified that Letner usually smoked Camel cigarettes, but that Tobin did not smoke.

At the time of her death, Pontbriant’s blood-alcohol content was 0.29 percent. Based upon the lividity of her body, it was estimated she had been killed late on the evening of Tuesday, March 1. Three of the hairs found on Pontbriant’s chest matched hair samples obtained from Letner. Two of these hairs appeared to have blood on them, and to have been forcibly removed from his head. Two of the other hairs found on Pontbriant’s chest could have been “fringe hairs,” meaning they would have come from an area near the pubic region of the donor, but these hairs were not sufficiently distinct to confirm their type or source. The other hairs found on or near Pontbriant’s body were not of human origin, or matched Pontbriant’s hair, or could not be identified. Many of the hairs belonging to Pontbriant had been forcibly removed. Six hairs found inside the blue baseball cap recovered from the bedroom also matched Letner’s hair. The blood on the pillowcase and on the doily recovered from Pontbriant’s bedroom, and the blood on the rag found in her car, was consistent with both Tobin’s and Gilliland’s blood type. The semen stains found on the carpet of the bedroom manifested antigenic activity, and therefore were consistent with Tobin’s having deposited them, because he was a “secretor” of blood antigens in his bodily fluids. It could not be confirmed, however, whether the semen contained the same antigen that Tobin secreted, nor when the semen had been deposited. Letner and Gilliland were not secretors.

The cuts in the coffee table and the photograph could have been made by Letner’s buck knife. In addition, that knife could have inflicted the stab wounds to the side of Pontbriant’s neck, but the probability was that a larger knife had been used to render the fatal cutting wound to the back of her neck.

*122 2. Defense Evidence

In their defenses, both defendants attempted primarily to discredit the witnesses who had provided incriminating evidence during the prosecution’s case. Defendants also presented experts whose opinions concerning the forensic evidence conflicted with the opinions of the prosecution’s experts. In addition, Tobin testified in his own defense, essentially to the effect that he and Letner were both present at Pontbriant’s house on the night of the murder, but he (Tobin) left earlier than Letner, and, when Tobin departed, Pontbriant had not been harmed.

a. Evidence Concerning Walter Gilliland

Jerry Gilliland, Walter Gilliland’s son from his prior marriage, testified that a few minutes after he and his father stopped at the Jacob Street residence on the way to Modesto, he heard a woman yelling loudly, and what sounded like objects being thrown against the walls. Jerry Gilliland did not recall taking a dog when he and his father took that trip to Modesto.

Danny Mendoza testified Walter Gilliland told him that after the murder, Gilliland found defendants in an alley and fought with them, resulting in injuries to Gilliland’s head and ribs. According to Mendoza, Gilliland had a very bad drinking problem, was drunk most of the time, and consistently lied.

Sandra Saulque, the custodian of records at Coast Savings and Loan, testified that during the period in which the murder occurred, Gilliland’s bank account balances never exceeded $55, and a withdrawal in the amount of $40 on March 1 was the sole withdrawal made close in time to the murder.

Visalia Police Detective Richard Logan, the lead detective in this case, testified that Gilliland had provided several statements to the police that were somewhat inconsistent with his testimony at trial. For example, initially Gilliland did not mention his having given Pontbriant the rent money in defendants’ presence, and in subsequent interviews when he did mention the money, he assertedly provided inconsistent accounts of the amount involved. Gilliland also said that he met Tobin in the garage, rather than in the house, and that Pontbriant normally left the keys to her car on the kitchen counter so that Gilliland could use the car whenever he needed it. Gilliland inconsistently identified the dates on which certain events transpired. Gilliland also told the police he wanted to kill defendants, and was reluctant to help the police because he wanted to catch defendants and punish them himself. Detective Logan testified in addition that several items of value, including a television and a videocassette recorder, a jar of coins, and just over $18 in cash found in Pontbriant’s purse, remained in her house after the murder. Similarly, a watch, a ring, and a pair of earrings had not been removed from Pontbriant’s body.

*123 Investigator John Johnson of the Tulare County District Attorney’s Office testified Gilliland told him that on Sunday, February 28, Tobin had waited in the garage while Letner brought the Kahlua and cigarettes inside the Jacob Street residence. Gilliland also stated to Johnson that Pontbriant had been asleep when Gilliland stopped by the house on his way to Modesto.

b. Evidence Concerning Earl Bothwell

Letner’s defense investigator, Cliff Webb, testified that Bothwell informed him investigator Johnson had provided him (Bothwell) with details of the murder prior to interviewing him. Tobin’s investigator, James Dunham, testified that Bothwell said he intentionally avoided becoming involved after defendants were arrested, because he feared defendants and believed he might be held responsible for not promptly contacting the police regarding defendants’ admissions. Bothwell also had refused to allow Dunham to record the interview. According to Dunham, Bothwell also told him that investigator Johnson had briefed Bothwell thoroughly regarding the facts of the case prior to taking his statement.

Detective Logan testified that on the day after the arrests, Bothwell checked out of the motel where he and defendants had been staying. When Logan arrived in Iowa he observed that the local media in Council Bluffs had provided some coverage of defendants’ arrests.

In Tobin’s case in surrebuttal, Mercedes Brasel testified that she wrote a check payable to Bothwell on March 28, 1988, as payment for work she had hired him to do on her house. A copy of the check was admitted into evidence. Part of the work included a painting project, which, according to Brasel, Tobin completed on the day she wrote the check. Brasel testified that after Bothwell dropped off Tobin at her house, Tobin started the work. Bothwell picked him up that evening when the work was completed.

During the prosecution’s case, Bothwell had testified that Letner and Tobin confessed to the murder on March 28, 1988, and that Bothwell had told Tobin that Bothwell did not have any work for him that day—that is, according to Bothwell’s testimony, Tobin would not have painted Brasel’s house on that day.

c. Evidence Concerning Jeanette Mayberry

Tobin’s ex-wife, Cheryl Williams, testified that she traveled to Visalia on February 27, 1988, so that their daughter could visit with Tobin. When Jeanette Mayberry confronted Tobin and Williams at the park the following morning, Mayberry was extremely upset and was screaming and using foul *124 language. When Williams, Tobin, their daughter, and Williams’s friend drove away from the park, Mayberry followed them in her car, driving in an unsafe manner, until Tobin got out of the car and walked. When Williams and Tobin met for the second time at a different park later that day, Mayberry arrived at the park and tried to attack Williams.

Visalia Police Officer Jeff McIntosh responded to the report of a disturbance involving Mayberry and Tobin at the Bridge Street apartment on Monday, February 29. He testified that Mayberry did not appear to be injured and, not wishing to file charges against Tobin, she said Tobin merely had slapped her face.

d. Evidence Concerning Flourene Gentry

Visalia Police Officer Jay Frame testified that Gentry told him the telephone calls she received from Pontbriant on the night of the murder occurred at times other than the times given in her testimony. She told Frame that to the best of her recollection, the third telephone call, during which Pontbriant mentioned two men were then entering her house, occurred at approximately one o’clock in the morning. Detective Logan testified, however, that Gentry told him she was certain that the final telephone call was made between 9:00 p.m. and 10:00 p.m., and that Gentry had been very distraught during her earlier interview with Officer Frame.

e. Evidence Concerning Gregory Garrard

Defense investigator Dunham testified that Garrard told him Tobin denied having participated in Pontbriant’s murder. In the prosecution’s case-in-chief, Garrard had testified he told a defense investigator that Tobin said he “had nothing to do with it.” Investigator Johnson had testified, however, that when he interviewed Garrard, Garrard did not tell him that Tobin had said he had nothing to do with the murder.

f. Forensic Evidence

Gary Cortner, a criminalist at the California Attorney General’s office, was called as a witness for Letner, and testified that most of Pontbriant’s sweater, “if not all,” had been ripped, not cut with a knife. He could not determine whether the area near the neck had been cut or ripped; a hole in that area could have been made by a thumb or other object having poked through the fabric. Cortner also testified that he generally was unable to distinguish between the hair samples collected from Letner and Tobin because each defendant had a “tremendous range” of hair types on his head. That circumstance also accounted for his inability to match any of the hairs found at the *125 scene to defendants. Cortner agreed, however, that a person with more experience and a more powerful microscope than the one he had used might reach a different conclusion.

Letner also called as a witness Gary Sims, a criminalist hired by the defense, who testified he was present when Letner’s buck knife was disassembled and examined. Tests for the presence of blood on the knife parts and debris found in the knife were negative.

In addition, Letner re-called Michael Malone, the prosecution’s hair analysis expert, who testified that one of the hairs identified as belonging to Pontbriant had been broken in the laboratory while being mounted on a slide. Malone previously had testified that a break in a hair indicates that the hair has been removed by force from a person’s body.

g. Testimony Regarding Defendants’ Plans to Leave California

Burt Arnold, who for a period of time shared the apartment on Murray Street with defendants, testified that three weeks prior to the murder, defendants spoke of moving to the Midwest, where Letner had family. Jacklynn Tobin, Tobin’s mother, also testified that prior to the murder, Tobin said he was thinking of going to Iowa with Letner. Following the murder, Jeanette Mayberry found, in the Murray Street apartment, an unmailed letter written by Letner to his grandparents, asking how they would feel if he moved to Iowa. Cheryl Williams, however, testified that she had not heard anything concerning Tobin’s plans to leave California.

h. Defendant Tobin’s Testimony

Tobin testified in his own defense. According to his testimony, on Monday, February 29 (the day after his fight with Jeanette Mayberry, arising from his visits with Cheryl Williams), he and Letner went to the Bridge Street apartment so that Tobin could attempt to reconcile with Mayberry. Finding the apartment unlocked, they went inside, and several minutes later Mayberry returned to the apartment. During the ensuing argument, Tobin merely slapped Mayberry, which he did because she had kicked him in the groin. Tobin admitted, however, that he broke a window in the apartment by throwing a hammer through it, and broke a window in Mayberry’s car with his shotgun.

Tobin testified that Letner had been planning to go to Iowa for some time and, after his fights with Mayberry, Tobin decided to accompany him. Accordingly, the next day, Tuesday, March 1, Tobin returned to the Bridge *126 Street apartment to retrieve his clothing, but Mayberry refused to admit him. Later that day, Tobin saw Mayberry with another man at the Break Room Bar. The man was wearing Tobin’s shirt, which angered Tobin somewhat. At that point, Tobin assumed that Mayberry had given away all of the belongings he had left at the Bridge Street apartment.

Tobin testified that at approximately 6:30 p.m. that night, he and Letner were at the Break Room when Letner received a telephone call. Letner said that Pontbriant had called and invited him over to her house. They left the bar and proceeded to her house, where they drank a number of beers. At some point, Tobin departed in order to purchase more beer. He rode his bicycle to the Oval Liquor Store—not Frank’s Liquors—and purchased one six-pack each of Lowenbrau and Heineken beer. He did not purchase any wine or a bottle opener that night.

Tobin testified that Pontbriant was upset because Gilliland had left, taking with him their dog and all of their money. Later, she and Letner made a number of angry telephone calls to someone named “Ed.”

According to Tobin’s testimony, when the stock of beer again was depleted, he returned to the Oval Liquor Store and purchased another six-pack each of Lowenbrau and Heineken beer. When he returned to the house, Pontbriant and Letner were on the couch with their arms around each other. When they began to kiss, Tobin left and rode his bicycle to the Murray Street apartment, purchasing a quart of beer on the way. He fell asleep soon after he arrived at the apartment.

Tobin testified that sometime later, Letner woke him up and asked him to help load Letner’s belongings into Pontbriant’s car. Letner said he was taking the items to Pontbriant’s house to store them there while Letner and Tobin were in Iowa. According to Tobin, earlier that night Letner had asked Pontbriant whether he could borrow her car to bring over his belongings. In addition to the items that were Letner’s, Tobin put his sword and his shotgun in the car because he planned to try to sell them to Mike Kinnett, who Tobin believed still was living at the house on South Crenshaw Street. En route after leaving the apartment, however, Officer Wightman pulled them over. After the officer directed them to leave the car on the side of the highway, defendants walked to the bar at the Marco Polo Hotel, where they consumed more beer. Tobin testified he suggested that Letner telephone Pontbriant to advise her where the car was parked. Letner went to a telephone and appeared to place a call, but on returning Letner said no one had answered the telephone at Pontbriant’s residence. After leaving the bar, defendants walked to the house on South Crenshaw Street. Finding it unoccupied, they forced open the back door and spent the night there, sleeping on the floor.

*127 Tobin testified that the next morning, they went to Denise Novotny’s house and asked her for a ride to the bus station in Goshen, not for a ride to work. After Novotny declined, they hitchhiked to the bus station. Tobin purchased bus tickets to Sacramento, and then tickets from Sacramento to Reno, using severance pay from his last job.

Tobin testified that he never told Earl Bothwell he had killed anyone in California. During the altercation at the Iowana Motel, Tobin took Bothwell’s shotgun from him, angering and embarrassing Bothwell. Tobin denied ever having been in the residence on North Jacob Street prior to the night Pontbriant was killed, and asserted he never saw Gilliland give Pontbriant any money. Tobin testified he had nothing to do with Pontbriant’s murder, and did not plan to take anything from her when he visited her house.

3. Prosecution Rebuttal Evidence

Terry Wood testified that in 1988, when he was incarcerated with Tobin at the Tulare County jail, Tobin told him that he (Tobin) and Letner had been at Pontbriant’s house on the night of the murder. In contrast to Tobin’s trial testimony that he had left Pontbriant’s house on his own and Letner later arrived at their apartment with her car, Tobin told Wood he had borrowed Pontbriant’s vehicle to move some items. Tobin did not say he had departed from Pontbriant’s house prior to borrowing the car.

Investigator Johnson denied giving Bothwell any details concerning the Pontbriant murder before interviewing him. Johnson also testified that Wood informed him that Tobin told Wood he had borrowed Pontbriant’s car at her residence.

Jeanette Mayberry testified she had spoken with Tobin when he was in jail following his arrest. Tobin told Mayberry that on the night of the murder, he left the house twice to buy beer, purchasing one six-pack of Heineken on the first trip, and one six-pack of Lowenbrau on the second trip. Tobin told her he later returned to the Murray Street apartment. Letner woke him up two or three hours later, telling him Pontbriant had loaned them the car to travel to Iowa. Tobin had advised Letner he wanted to sell Tobin’s shotgun before departing for Iowa.

In his defense case, during direct examination, Tobin had testified that he did not make the foregoing statement to Terry Wood, and that Mayberry’s statement was inaccurate, probably “because [she] heard it wrong.”

*128 B. Penalty Phase

1. Prosecution Evidence

The prosecution’s evidence in aggravation consisted of numerous instances of defendants’ unadjudicated violent criminal conduct, admitted pursuant to section 190.3, factor (b). Evidence concerning two victims was admitted against both defendants; evidence concerning one other victim was admitted solely against Tobin, and evidence concerning five other victims was admitted solely against Letner.

a. Incidents Involving Both Defendants

David Bendowski testified that he knew defendants when he lived in Napa in 1978 and 1979. Bendowski dated Tobin’s ex-girlfriend for a period of time. Bendowski and his sister, Julie Bryant, testified that approximately in June of 1978, defendants appeared at Bendowski’s residence and entered by force. They confronted Bendowski in the hallway, and Tobin kicked Bendowski in the face, bloodying his nose. Tobin told Bendowski he was angry that Bendowski had been dating Tobin’s ex-girlfriend.

Several months later, defendants, accompanied by Letner’s brother John, returned to Bendowski’s residence. John Letner asked Bendowski to come outside to talk, and promised there would be no trouble. When Bendowski went outside, however, defendants threatened to beat him up if he did not get into their car. Bendowski entered the vehicle, and Letner drove them out of town. Defendants demanded that Bendowski pay them for his dates with Tobin’s ex-girlfriend. Tobin told Bendowski that “[i]f she was gonna act like a whore, [Tobin] was gonna treat [her] like one.” Defendants told him they were taking him out of town so that they could hang him from a tree and beat him. Bendowski attempted to escape when the car stopped at a traffic light, but one of the defendants slammed the car door closed before he succeeded. Defendants eventually took Bendowski 10 to 15 miles out of town and left him on the side of the road.

On January 20, 1979, defendants again appeared at Bendowski’s residence. When Julie, who then was 14 years of age, told them that Bendowski was not there, Tobin threatened to “work [her] over” if she did not check to make sure he was not in the house. She did so, and told them again that Bendowski was not at home. Defendants told her to tell Bendowski they were looking for him. Later that day, Bendowski was walking home when he saw defendants driving in a car. He tried to run away, but defendants followed him in their vehicle. Eventually, Bendowski decided to talk to defendants in an attempt to avoid being assaulted. After he entered their car, defendants again demanded *129 that Bendowski pay them for his dates with Tobin’s ex-girlfriend, and on this occasion threatened to break his fingers if he did not pay them. Defendants eventually dropped off Bendowski near his home.

On November 29, 1986, William Healer was at a gas station in Napa, getting fuel for the pickup truck he was driving, when he was approached by defendants. Healer, who ran an auto body repair shop, had performed some repair work on a vehicle owned by Tobin’s mother. Healer had not completed the work when he moved his repair shop, and defendants, apparently believing that Healer purposefully had attempted to avoid completing the work even though he already had been paid by Tobin’s mother, were “going to take care of this in their . . . own way.” Defendants ordered Healer to drive them in his truck to the store where Tobin’s mother worked. On the way, defendants picked up their friend Dan Hlobick, who needed a ride in order to purchase drugs. When they arrived at the store, Tobin took the keys to the truck and ordered Healer to go with him inside. Learning that Tobin’s mother was not there, defendants ordered Healer to drive to another store where she worked. During the drive, Letner threatened Healer, and said he should not have “burned” Tobin’s mother. When they arrived at the store, Tobin entered to locate his mother, and while in the truck Letner continued to threaten Healer. When Tobin returned, Letner opened the truck door next to Healer and struck him in the face. After Healer begged defendants not to hurt him, defendants asked him whether he or his family had any money.

When Tobin’s mother arrived, Healer, who was crying, apologized to her for any misunderstanding concerning her car. Mrs. Tobin said there was no misunderstanding and asked him why he was so upset. When Healer explained what had happened, Mrs. Tobin offered to drive him home in her car, but Healer declined because he was afraid defendants might steal valuable tools in the truck. Tobin intervened, denying that anyone had struck Healer, and stating they would let him leave. After Mrs. Tobin left and the men drove away, however, Letner again told Healer to give them money in order not to be hurt further, and he demanded Healer’s wallet. When Healer said he did not have it with him, Tobin accused him of lying and ordered him to pull over and get out of the truck. Outside the truck, Letner kicked Healer in the chest and continued to demand the wallet. When Healer said he would give him money at his house, they all reentered the truck.

As Healer was driving, Letner said he needed to stop and pick up a gun because he was afraid Healer might do something when they reached his house. Letner ordered Healer to drive to the address where the gun was located. During the drive, Tobin grabbed the back of Healer’s head and Letner began hitting him in the face. Tobin grabbed Healer’s neck and choked him. When they arrived at the address, defendants again struck Healer *130 several times and discussed who would go inside to retrieve the gun. At this point Healer noticed his door was unlocked, exited the truck, and ran to a nearby car. Pounding on the hood of the car, he pleaded with the driver to let him in, saying, “Help me. Help me. They’re going to kill me.” The driver let him in and drove away. One of the defendants chased after the car on foot before the driver accelerated. Moments later, Healer realized that a house they were passing was occupied by persons he knew. The driver stopped the car and Healer ran to the house, whose occupants let him in and called the police. Healer was treated at the hospital for injuries to his throat and chest. His ribs were permanently “disfigured,” and he had ongoing emotional problems arising from the incident.

b. Incident Involving Tobin

Sometime in May 1981, Kenny Warren and a group of friends went to Letner’s house to confront defendants concerning an altercation that had occurred earlier in the day. Warren’s group had an ongoing dispute with defendants and previously had been involved in several fights with them. After a member of Warren’s group knocked on and kicked Letner’s door, someone inside the house fired a shotgun through the door. As he ran away, Warren heard one or two additional shots.

Approximately two weeks later, Warren was approached by Tobin and Robert Nance in an auto parts store. Tobin told Warren to come outside and attempted to punch him. Warren told Tobin they could talk inside because he was afraid he would be “jumped” if he went outside. After Tobin assured him nothing would happen if they went outside, Warren agreed. Once outside the store, Nance kicked Warren in the face. Tobin said Warren should fight Nance “one on one,” but when Warren turned to confront Nance, Tobin kicked him in the back, saying, “It’s two on one now, fucker.” When Warren attempted to run away, Nance tackled him. Tobin and Nance kicked Warren repeatedly in the head and chest, and Tobin pulled handfuls of hair from the back of Warren’s head. Nance took Warren’s wallet, which contained $85 in cash. After allowing Warren to get up, Nance held out the wallet and dared Warren to take it. Warren snatched the wallet from Nance and tried to run away, but Nance again tackled him. Tobin and Nance resumed kicking him and again took his wallet, and Tobin began dragging him toward a nearby car. Richard Baker, an employee of the auto parts store, saw Tobin kicking Warren in the head and face, and heard him threaten to kill Warren if anyone ever shot at his house again. When Tobin stopped dragging Warren and returned to the car in which Nance was waiting, Tobin told Baker that Warren “got what he deserved” because he had shot at Tobin’s house. Warren sustained a broken nose and several contusions and other injuries in the attack, and lost his wallet and money.

*131 c. Incidents Involving Letner

In June 1978, Stephan Frame, who attended high school in Napa, received a telephone call from Letner, who said he was “after [Frame’s] ass.” The following Monday, in the school’s parking lot, Letner approached him and inquired whether he was Steve Frame. When Frame responded affirmatively, Letner punched him in the face, rendering Frame momentarily unconscious. When Frame regained consciousness, Letner was kicking him in the face with his work boot. Letner ceased after Frame repeatedly asked him to stop. As a result of the attack, Frame was hospitalized for a concussion, a broken nose, and a broken cheekbone.

On July 21, 1983, at approximately 11:45 p.m., Andrew Emberton, an off-duty police officer, was driving on University Avenue in Berkeley when he noticed a person standing in the road who appeared to be hitchhiking. Emberton had to stop his vehicle because the person was blocking the lane. Emberton motioned for the person—who turned out to be Letner—to move out of the street. When Letner approached the car and became confrontational, Emberton decided to drive away. As he did so, Letner hit the side of his car. When Emberton stopped again, Letner, assuming a karate stance, challenged Emberton to fight him. Emberton said he did not want to fight, but merely wanted Letner to move onto the sidewalk. Letner continued to challenge Emberton, twice pushing him in the chest. An on-duty police officer then arrived, and Letner was arrested. During the arrest, Letner resisted to the extent that both Emberton and the other officer had to struggle with him in order to apply handcuffs.

On the afternoon of January 14, 1985, Alexander McAdams visited his girlfriend Susan Forsythe at a restaurant in Benicia. McAdams and Letner had a history of physical confrontations. Moments after leaving the restaurant in his pickup truck, McAdams saw Letner driving his pickup truck on the wrong side of the road straight toward McAdams’s truck. McAdams attempted to avoid Letner, but Letner changed lanes and continued to drive directly at McAdams. Eventually, McAdams drove his truck in reverse to avoid Letner, but Letner hit McAdams’s truck, bumper to bumper. When Letner exited his truck carrying a rifle, McAdams drove across an open field, hearing several shots as he drove away.

McAdams went to a police station to report the incident. Evidently possessing information concerning Letner’s whereabouts, police officers went to Anthony Hockney’s apartment. When the officers first arrived, Letner’s truck was not there, but when they returned approximately one hour later, it was parked in front of the apartment. A woman who answered the door told the officers she was alone, but when they heard noises in the back of the *132 apartment they entered and found Hockney sitting on the bed next to a .44-caliber Ruger rifle. Hockney said the rifle belonged to Letner, who had been in the apartment when the police arrived, but departed as they entered. The officers went outside but did not find Letner. Approximately 15 minutes later, however, Letner returned to his truck and drove away without activating his headlights, although it was now dark. A police officer followed, arresting him a short distance away. Letner was verbally confrontational with the officers, and after his arrest said, “You think you got me because you’ve got my gun. But my gun’s clean.” The officers had not mentioned anything concerning a gun prior to Letner’s comment. Letner also told the officers that “I’ll be out of this soon, and then I’ll get Alexander McAdams.” At the police station, Letner admitted having a dispute with McAdams over a girl, and driving head on into McAdams’s truck. Although Letner denied using, possessing, or owning the rifle, officers found a receipt for purchase of the rifle in Letner’s pocket.

Sheila W. met and became romantically involved with Letner in July of 1987. On December 27, 1987, when they had an argument, Letner hit her in the back of her head and on her neck and back, and choked her until she became unconscious. On January 1, 1988, Sheila and Letner had another argument. Letner departed, but on returning he repeatedly made sexual advances to Sheila, which she rejected. Eventually, Letner forced her onto the floor and had nonconsensual sexual intercourse with her. Sheila did not report the incident to the police because she was afraid of Letner.

On April 16, 1988, Mike Mohrhauser was driving his pickup truck from El Paso, Texas, to Las Cruces, New Mexico, when he picked up a hitchhiker, who proved to be Letner. Letner recently had escaped from the custody of an extradition company that was charged with returning him to California. Mohrhauser invited Letner to stay at his house, and the two “partied” the next two nights at the homes of Mohrhauser’s relatives. On the second evening, when returning to Mohrhauser’s house, Letner, who was driving, pulled over so that Mohrhauser, who was intoxicated, could urinate. When Mohrhauser got out of the truck, Letner struck him on the head with an object, rendering him unconscious. When he awoke, Mohrhauser was lying facedown in a watery irrigation ditch approximately 30 feet from where he was hit by Letner. Mohrhauser’s truck, wallet, and watch had been taken. When Mohrhauser recovered the truck, his tools, worth approximately $3,000, were missing.

*133 2. Defense Evidence

a. Letner’s Case in Mitigation

Letner’s younger brother John testified that their father was an alcoholic. Because of his alcoholism, their father frequently moved the family while the boys were growing up. Their parents fought over his drinking, eventually separating when Letner was 19 years of age. Alcoholic beverages always were present in the home, and Letner was drinking consistently by the time he was 15 years of age. Letner also smoked marijuana, but John was not aware of his using other drugs. When Letner was growing up, he constantly was teased by other children concerning his appearance. At one point, his parents considered having him undergo cosmetic surgery to improve the appearance of his face, but ultimately his father decided not to proceed. John believed that Letner acted suicidal on several occasions.

John testified that Letner assaulted Stephan Frame because Frame and two other boys previously had confronted John in school and threatened to beat him up. John did not inform Letner of the incident, because he knew their father would expect Letner to do something to protect John, and would beat Letner if he did nothing. Letner found out, however, and John overheard a telephone call during which Letner told Frame to leave John alone. According to John’s testimony, Frame told Letner that if Letner confronted him, Frame would shoot Letner once he had the chance.

John testified that he was present during the first incident when David Bendowski was with defendants in their car. John testified that no one forced Bendowski into the vehicle—he willingly joined them in order to drink beer and smoke marijuana. Tobin and Letner did not discuss money other than to remind Bendowski that he owed them money for marijuana. According to John, no one threatened or abandoned Bendowski; he simply chose not to ride back to town with them.

John also testified that Letner and Tobin met in 1977 and became close friends. After they began to engage in frequent fights and other types of trouble, John told Letner he should stay away from Tobin. Eventually, John told Letner that he no longer wanted to be around Letner unless Letner ended his friendship with Tobin.

Other witnesses testified on Letner’s behalf along similar lines concerning the relationship between Letner and Tobin. Earl Bothwell’s preliminary hearing testimony, which was read to the jury, was to the effect that Letner bought various things for Tobin and appeared to idolize him. Sheila W. also testified that Letner idolized Tobin. Burt Arnold testified that defendants *134 sometimes had physical confrontations with each other, and it was Letner who usually would back down. In addition, the jury heard Bothwell’s preliminary hearing testimony indicating that during the fight in the motel room prior to defendants’ being arrested, Tobin had threatened to shoot Bothwell with his shotgun, but Letner removed the ammunition from the gun. Bothwell believed that had Letner not done so, Tobin might have shot him.

John Letner testified that defendant Letner telephoned him in late 1987 and said he wanted to leave Visalia because Tobin was “acting crazy” and was scaring him. In April 1988, after Pontbriant’s murder, Letner telephoned John and their mother several times and said he had “done nothing wrong” but doubted he would be acquitted of Pontbriant’s murder. John told Letner not to contact them again unless he was willing to turn himself in to the authorities.

Derrin Clenny testified he was hitchhiking with Letner at the time of the incident involving Officer Emberton. According to Clenny, Emberton was the aggressor—Letner did not hit Emberton’s car and merely was acting defensively throughout the confrontation. Clenny stated that Letner did not resist the officers at the time of his arrest.

Letner testified on his own behalf. Regarding the incident with Stephan Frame, Letner testified he assaulted Frame because Letner’s father had told him that he either must confront Frame to protect John, or find a new place to reside. Letner testified he was not present when Tobin entered David Bendowski’s house and kicked him in the face. According to Letner, he and Tobin never forced Bendowski to enter their vehicle, and never threatened him or demanded money because Bendowski had dated Tobin’s ex-girlfriend. Moreover, Letner testified, they did not abandon him outside of town; Bendowski had said he wanted to walk back.

Similarly, Letner testified that he merely slapped William Healer once while they were driving him to meet Tobin’s mother, and Letner may have hit him on one other occasion because he did not like Healer. Letner asserted he did not attempt to obtain money from Healer by threatening to harm him.

Letner testified that Officer Emberton nearly hit Derrin Clenny when Emberton pulled his car over to the side of the road. Letner claimed that when Emberton left his vehicle, he was very aggressive and grabbed Clenny’s arm. When Letner slapped Emberton’s arm away, Emberton swung at him. Letner hit him back, knocking Emberton to the ground. Then two police cars arrived, and Letner was arrested.

According to Letner, on the day of the incident involving Alexander McAdams, Letner drove Susan Forsythe to work at a restaurant. On the way, *135 he saw McAdams drive through a red traffic signal. To avoid a collision, Letner was forced to accelerate, despite the red signal. Later, when he saw McAdams, Letner drove toward him in order to scare him. Letner asserted he did not have a rifle with him and did not shoot at McAdams. Letner explained he had left his rifle with a neighbor of Anthony Hockney named Rodney, and since had learned that the rifle was in Hockney’s apartment. Letner did not know why the police were searching for him at the time he left Hockney’s apartment.

Letner testified that on the night of December 27, 1987, he became intoxicated and lost consciousness. At some point while he slept, Sheila W. poked Letner in the eye. Letner was startled and reacted by punching her, not realizing exactly what he was doing. Letner admitted having sexual intercourse with Sheila on January 1, 1988, but believed it was consensual.

Letner testified concerning the incident with Mike Mohrhauser. Mohrhauser, who had consumed heroin that night, had been beaten up by Mohrhauser’s brother and was unable to drive. When Letner drove Mohrhauser home, he punched Letner for not having helped Mohrhauser during the fight with his brother. According to Letner, when Mohrhauser told Letner to leave the truck, Letner stopped and instead pulled Mohrhauser out of the truck and drove away. Letner did not hit Mohrhauser or remove Mohrhauser’s wallet or watch from his person; those items already were in the truck when he left Mohrhauser on the side of the road.

Letner also testified that Tobin alone killed Pontbriant. Letner and Tobin went to Pontbriant’s house on the night of the murder to drink beer with her, and he and Pontbriant made several telephone calls to Ed Burdette. After Tobin left to buy more beer, Letner and Pontbriant sat on the couch and hugged and kissed each other. Letner and Pontbriant had had sexual intercourse on three occasions prior to the night of the murder, but that night Letner merely acted to console Pontbriant.

Letner testified that he, not Tobin, went to the liquor store on the second occasion to buy more beer. When Letner returned, Pontbriant asked him to tell Tobin to go outside and remain there for approximately one hour. Tobin took several beers and went outside to the front yard. Letner and Pontbriant disrobed and were “intimate” on the couch, but did not have sexual intercourse. After approximately 35 minutes, while Letner and Pontbriant were dressing, Tobin reentered. Pontbriant became angry because Tobin had not been invited to come back inside the house. Tobin told her that he knew what she and Letner were doing, and then asked Letner whether he already had *136 asked to borrow Pontbriant’s car. 4 Pontbriant became angrier and slapped Letner, who reflexively slapped her back, knocking her onto the couch. When Letner went to use the bathroom, he heard Pontbriant threatening to call the police. After Letner returned to the living room, he observed Tobin kicking Pontbriant’s arm as she sat on the couch. Letner attempted to pull Pontbriant to safety by grabbing her hair.

According to Letner, Tobin tried to remove Pontbriant’s sweater. Tobin somehow had obtained Letner’s buck knife, which may have fallen out of Letner’s pants pocket when he sat on the couch. Tobin cut the collar of the sweater and ripped off the remainder of the garment. Tobin removed Pontbriant’s pants and observed that she had defecated. Pontbriant laughed at Tobin, who then pulled out some of Pontbriant’s hair and forced her down upon the floor. He then removed a telephone cord from his pocket and tied it around her wrists and neck. Tobin had his foot on Pontbriant and was strangling her with the cord when Letner intervened by wrestling with Tobin. Tobin bit Letner on the top of his head, and Letner hit his head against Tobin’s nose, causing it to bleed. Letner noticed that his buck knife was stuck in the table and retrieved it. Tobin went into the kitchen, returned with a butcher’s knife, and threatened to kill Letner if he interfered again. Letner then watched Tobin repeatedly stab the back of Pontbriant’s neck.

After Pontbriant was dead, Tobin forced Letner to help clean up the house and remove their fingerprints. At some point, Tobin put the beer bottle in Pontbriant’s buttocks and kicked the bottle. Tobin retrieved the car keys from Pontbriant’s purse and said, “Well, we don’t have to steal the car now.” The two men, departing with the remaining beer and the murder weapon, proceeded to the Murray Street apartment. After they disposed of the knife and loaded their belongings into Pontbriant’s car, they drove off but soon afterward were stopped by Officer Wightman. 5

The final witness on Letner’s behalf was Dr. Richard Blak, a psychologist. Dr. Blak interviewed Letner and several members of his family, and performed a number of psychological examinations. In Dr. Blak’s opinion, Letner, who was average to above average in intelligence, suffered from chronic depression, alcohol dependence, and polysubstance dependence, resulting from a “borderline personality disorder” (BPD) that Letner had developed at a very early age. Dr. Blak testified that symptoms of BPD *137 include unstable interpersonal relationships, self-damaging impulsiveness, mood swings, aggressive behavior with an absence of anger control, suicidal or self-mutilating behavior, an unstable self-image, chronic feelings of emptiness and boredom, and extreme fear of abandonment. In Dr. Blak’s experience, a person with BPD also may have a distorted sense of reality and may act upon imagined threats with an inappropriate sense of right and wrong. In Dr. Blak’s opinion, Letner exhibited all of these symptoms. Dr. Blak observed that Letner had suffered a head injury in a car accident when he was seven years of age, but Blak was unable to form an opinion concerning any resulting effect upon Letner’s brain functioning, because no records existed of any testing performed following the accident. In response to a hypothetical question describing a murder similar to that recounted in Letner’s testimony, Dr. Blak testified that a person’s failure to intervene during such an event would be consistent with such a person’s having BPD.

b. Tobin’s Case in Mitigation

Dan Hlobick testified that he accompanied Letner, Tobin, and William Healer on their excursion to discuss with Tobin’s mother the repair work Healer had performed on her car. According to Hlobick, Letner slapped Healer a “few times” on the way to meet Tobin’s mother. Tobin did not hit or choke Healer. After they left Tobin’s mother, Healer simply stopped the truck and ran away for no apparent reason. Letner and Tobin did not threaten Healer or attempt to obtain money from him. Tobin’s mother also testified that Healer did not appear to be upset when they met that day. She testified that Healer told her during a subsequent telephone call that the reason he had told the police Tobin had assaulted him was to teach Tobin a lesson, but that Healer would be dropping the charges. Raymond Dudley, Tobin’s brother-in-law, testified that he overheard a similar conversation between Healer and Tobin’s sister, in which Healer again said he had complained to the police in order to teach Tobin a lesson, but would be dropping the charges because Tobin had not done anything improper. According to Dudley, Healer said Letner had hit Healer, but Tobin had told him to stop.

John Dean testified he was driving the car when Letner and Tobin picked up David Bendowski. According to Dean, no one struck, threatened, or demanded money from Bendowski.

Robert Hernandez, an inmate at the Tulare County jail, testified that Letner told him that he and a person named Christopher went to Pontbriant’s house to steal $300 in cash and other items. Letner said he had killed Pontbriant to keep her quiet, and he demonstrated to Hernandez how he had used the knife on her neck. Leo Pike, another inmate at the jail, testified that, contrary to Letner’s testimony, Letner and Hernandez occasionally spoke with each other.

*138 Tobin’s father, mother, and sister each testified that they loved him and hoped the jury would reach a verdict of life imprisonment without the possibility of parole.

II. Discussion

A. Pretrial Issues

1. Failure to Set Aside the Burglary Charges and Special Circumstance Allegations (Letner, Tobin)

Following the filing of the complaints and amended complaints, a preliminary hearing was held. At the conclusion of the hearing, the magistrate declined to hold defendants to answer on the burglary charges and the burglary special circumstance allegations, finding the evidence did not establish that defendants intended to commit a felony when they entered Pontbriant’s house. The magistrate held defendants to answer on the remaining charges of murder, robbery, attempted rape, and theft of a vehicle, and the remaining special circumstance allegations.

The information subsequently filed in the superior court, however, included the burglary charges and burglary special circumstance allegations, despite the earlier ruling. Defendants each filed a motion under section 995, seeking to set aside the burglary charges and special circumstance allegations in the information on the ground the magistrate’s determination was a factual finding that precluded the refiling of the burglary charges. The trial court denied their motions, finding “there was sufficient evidence to hold the defendants to answer on all charges, and on all special allegations.” Tobin challenged the trial court’s denial of his motion by seeking a writ of prohibition from the Court of Appeal, but that court denied the petition. Letner did not file such a petition. On appeal, defendants contend the magistrate’s ruling precluded the prosecution from refiling the burglary charges. 6 We do not reach the merits of the question whether the trial court erred by denying the section 995 motions, because defendants cannot establish that any error in this regard was prejudicial.

*139 In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 [ 165 Cal.Rptr. 851 , 612 P.2d 941 ] (Pompa-Ortiz), we reconsidered the rule announced in People v. Elliot (1960) 54 Cal.2d 498 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ], which we described as “advancing] the broad proposition that if the defendant has not been ‘legally committed’ and the trial court nonetheless erroneously denies the motion to set aside the information and permits the action to proceed to judgment, the resulting conviction must be reversed.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 527 .) We observed that the Elliot rule was based upon the notion that the absence of a legally proper commitment deprived the trial court of “jurisdiction” over the defendant, and therefore reversal on appeal was warranted even in the absence of a showing of prejudice at trial. We further explained, however, that the “source of the difficulty in Elliot is the uncritical use of the term ‘jurisdiction’ when assessing the effect of an illegal commitment on the trial in superior court.” (Pompa-Ortiz, at p. 528.) We therefore discarded the Elliot rule, and held the following: “Henceforth irregularities in the prehminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination. The right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities.” (Pompa-Ortiz, at p. 529, italics added; see also People v. Stewart (2004) 33 Cal.4th 425, 461-462 [ 15 Cal.Rptr.3d 656 , 93 P.3d 271 ].)

We acknowledge that our statement of the rule in Pompa-Ortiz reflects the circumstance that we were addressing an alleged irregularity that occurred during the prehminary hearing itself, whereas in the present case we are concerned with an alleged error that occurred in the trial court subsequent to the prehminary hearing. We conclude the rule nonetheless should apply in these circumstances as well. The error complained of in the present case— that the trial should not have proceeded on charges the magistrate ruled were unfounded—is not “jurisdictional in the fundamental sense,” as we have defined that term. As we recently explained, “[a] lack of jurisdiction in its fundamental or strict sense results in ‘ “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.” [Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack “ ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites.” [Citation.] When á court fails *140 to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.’ [Citations.]” (People v. Lara (2010) 48 Cal.4th 216, 224-225 [ 106 Cal.Rptr.3d 208 , 226 P.3d 322 ].) “ ‘[Fundamental jurisdiction cannot be conferred by waiver, estoppel, or consent . . .’ [whereas] ‘an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time.’ ” (Id. at p. 225.) Defendants’ claims, which they were required to raise at trial by way of their section 995 motions in order to preserve them (see § 996), cannot be considered as raising a challenge to the trial court’s fundamental jurisdiction over the case. (Cf. People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990-991 [ 47 Cal.Rptr.3d 467 , 140 P.3d 775 ] [“Errors in the denial of a section 995 motion claiming insufficiency of the evidence are not jurisdictional in the fundamental sense.”]; People v. Mattson (1990) 50 Cal.3d 826, 873 [ 268 Cal.Rptr. 802 , 789 P.2d 983 ].) Indeed, we observe that a magistrate’s ruling pursuant to section 871 that certain charges have not been sustained, even if that decision is properly supported by the facts and the law, does not absolutely deprive the prosecution of the opportunity to bring the charges at issue. As long as the restrictions of section 1387 on the number of times charges may be dismissed and refiled are satisfied, the prosecution may move to dismiss the case and either file a new complaint that includes all the charges, which would lead to a second preliminary hearing, or seek an indictment by the grand jury. (See, e.g., Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019 [ 22 Cal.Rptr.3d 876 , 103 P.3d 276 ]; Ramos v. Superior Court (1982) 32 Cal.3d 26, 29 [ 184 Cal.Rptr. 622 , 648 P.2d 589 ].)

Accordingly, pursuant to the rule we set forth in Pompa-Ortiz , on appeal defendants are required to establish not only that the denial of their section 995 motions was erroneous, but also that they were prejudiced by such error. Letner and Tobin cannot do so, because the jury convicted them of the burglary charges and found the burglary special circumstance allegations true after a trial in which, as discussed, post, in part H.B.2.C., the prosecution presented sufficient evidence as to those matters. (See People v. Crittenden (1994) 9 Cal.4th 83, 137 [ 36 Cal.Rptr.2d 474 , 885 P.2d 887 ] [“Even ‘ “ ‘[i]f there is insufficient evidence to support the commitment, the defendant cannot be said to be prejudiced where sufficient evidence has been introduced at. . . trial’ ” ’ to support the jury’s finding as to the charge or as to the truth of the allegation.”].) We therefore conclude defendants’ claims are without merit.

2. Failure of the Information to Charge First Degree Felony Murder (Letner, Tobin)

Defendants were charged with murdering Pontbriant willfully and unlawfully and with malice aforethought, in violation of section 187. Defendants were not charged specifically with first degree murder in violation of *141 section 189, that is, murder committed in the course of committing an enumerated felony. Defendants raise on appeal a number of familiar claims related to the failure separately to charge felony murder pursuant to section 189, in addition to charging murder with malice, pursuant to section 187. We previously have rejected claims identical to defendants’ claims, and discern no reason to reconsider those decisions. (See People v. Morgan (2007) 42 Cal.4th 593, 616-617 [ 67 Cal.Rptr.3d 753 , 170 P.3d 129 ] [holding “a defendant may be convicted of first degree murder even though the indictment or information charged only murder with malice in violation of section 187,” in rejecting claims that the trial court lacked jurisdiction, that the court improperly instructed the jury regarding theories of first degree murder, and that defendant received inadequate notice of the prosecution’s theory of the case]; People v. Hughes (2002) 27 Cal.4th 287, 369-370 [ 116 Cal.Rptr.2d 401 , 39 P.3d 432 ] (Hughes) [rejecting the claim that People v. Dillon (1983) 34 Cal.3d 441 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ] implicitly overruled People v. Witt (1915) 170 Cal. 104 [ 148 P. 928 ], which held that murder with malice and felony murder are not separate crimes].)

3. Denial of Motions to Suppress Evidence (Letner, Tobin)

Prior to trial, defendants moved to suppress all evidence obtained as the result of the vehicle stop conducted by Officer Wightman on the night of the murder, when defendants were driving in Pontbriant’s vehicle. Defendants asserted that Officer Wightman lacked a reasonable suspicion of criminal activity, and therefore his seizure of defendants was unreasonable under the Fourth Amendment of the United States Constitution. The trial court denied the motions, finding that Officer Wightman’s observations gave rise to a reasonable suspicion of criminal activity. On appeal, defendants contend that the trial court erred in finding the traffic stop was supported by reasonable suspicion, and that the court’s failure to suppress evidence obtained as a result of the stop violated their rights under the Fourth Amendment. We are not persuaded. 7

*142 a. Background

The evidence considered in ruling upon the motions to suppress was as follows. 8 Officer Wightman was patrolling the downtown area of Visalia on the night of Tuesday, March 1, 1988, in a marked police vehicle. At approximately midnight, Officer Wightman was traveling westbound on Main Street, approaching its intersection with Garden Street. As Officer Wightman drove to the comer of Main Street, he saw a red Ford Fairmont traveling southbound on Garden Street also approaching the intersection. Officer Wightman’s attention was drawn to the Fairmont because its exterior was beaded with water. Although it had rained heavily earlier that night, the rain stopped at approximately 9:30 p.m., and other vehicles traveling on the roads were not beaded with water, whereas the exteriors of cars parked nearby in a car lot and on the street were still wet. Officer Wightman testified he became “somewhat suspicious” because the beaded water on the Fairmont indicated to him that it had been driven only a short distance from where it had been parked when it had been raining hours earlier, and he was aware that during the past three months there had been “heavy” criminal activity within that area of downtown. This area included approximately 10 car dealerships that had filed numerous reports of a “considerable amount of vehicle tamperings and stolens [Vc] and vehicle burglaries in the general car lot areas of downtown.” Indeed, a Ford dealership with several car lots and a body-repair shop in the immediate area had reported “quite a few” incidents, including the theft of a vehicle from one of its lots about one week earlier. The reports of criminal activity in the area were summarized in daily bulletins that Officer Wightman received at work. Officer Wightman testified that “there was a used Ford car lot at Center, between Garden and Bridge, that we’ve had numerous problems with as far as vehicle tamperings and burglaries,” and his “first thought was this car was being removed from that lot because all the other cars that were traveling on the roadway at the time were free of moisture.”

After the Fairmont turned in front of Officer Wightman into the eastbound lane of Main Street, he made a U-turn and followed as it proceeded to turn south on Bridge Street and then west on Mineral King Avenue, before entering the on-ramp to westbound State Highway 198. The Fairmont traveled “consistent with” the speed limit and made appropriate stops at the stop signs and traffic signals on the city streets. Despite the circumstance that the on-ramp was, as Officer Wightman testified, “quite long enough to build proper speed to enter the freeway, [so as not to] make a danger to oncoming traffic that is going faster,” upon entering the highway the Fairmont proceeded at 40 miles per hour, well below the posted speed limit of 55 miles *143 per hour. Although Officer Wightman also noticed that the Fairmont’s engine sounded as though it was “running rough,” he testified he did not believe that the sound of the engine indicated mechanical problems accounting for the vehicle’s slow speed on the highway. Officer Wightman testified the “main reason” he was becoming more suspicious about the occupants of the vehicle was that “they turned onto [Highway] 198 and were traveling only forty miles an hour with no other vehicles in sight, except for my own.” Officer Wightman further testified his suspicions also were aroused because, based upon his experience, the Fairmont’s slow speed possibly indicated that the driver was intoxicated. During his years of service as a patrol officer, which involved “hundreds” of “DUI” traffic stops, he became familiar with common signs and symptoms of intoxicated drivers, one of which was driving at an abnormally slow speed for no apparent reason.

As he followed the Fairmont, Officer Wightman radioed a police dispatcher to check its registration, and was informed that Pontbriant was the registered owner and that the vehicle had not been reported stolen. After the Fairmont had traveled on the highway at 40 miles per hour for approximately one mile, Officer Wightman initiated a traffic stop by activating his patrol vehicle’s emergency lights, and the Fairmont pulled over. When questioned by the prosecutor at the hearing on the motions to suppress, Officer Wightman agreed that his suspicion that the driver was intoxicated was the “main reason for the stop,” but it was “[absolutely” the case that his “suspicions concerning the possible theft of that vehicle [were] part of the reason why” he stopped it.

Officer Wightman identified the driver and the passenger as Letner and Tobin, respectively. During his subsequent inquiries concerning why defendants were in possession of be car, and whether Letner had been driving while under the influence of alcohol or a drug, Officer Wightman conducted a brief search of defendants and the car, which uncovered items belonging to defendants, beer bottles of the same brands later found at the murder victim’s house, and Letner’s buck knife, which Letner was carrying in his pants pocket. Leber told Officer Wightman that the Fairmont belonged to Ivon Pontbriant, and that she had given him permission to drive it. Letner said bat Pontbriant lived on Jacob Street, but he claimed he did not know the exact address or her telephone number. In addition, defendants each made inconsistent and apparently untruthful statements concerning their destination. When the car subsequently was impounded and more thoroughly searched, a rag with blood on it consistent with Tobin’s blood, and a hat belonging to Letner, also were found in the car.

The trial court denied defendants’ motions to suppress, finding “there was reasonable suspicion, based on be totality of the circumstances testified to by *144 the officer, [f] First of all, the Court believes that the officer had a right to be suspicious about the movement of cars in that area, in which he first encountered the Ford Fairmont in which the defendants were riding.” The court noted that the daily bulletins issued by the police department reported “numerous car thefts” in the area. Although it was not part of the record, the court noted its own personal knowledge that various car lots were in the area, and that it was “obvious that this is in downtown Visalia, that this is not an area in which there is housing in which you expect people to be leaving their residences and going to other places, [f] There are no supermarkets, and the—so what you are left with is the downtown area in which there are probably a couple bars in the vicinity, and some car lots.” In the trial court’s view, “that in itself wouldn’t have given the officer any right to stop this car. But he certainly had every right to follow it.” The court stated that Officer Wightman, however, “did develop a reasonable suspicion based on slow speed. [I] The—we have had a lot of testimony and diagrams [regarding the area], and this Court has come onto the freeway at the location which these defendants went on it, and which the officer followed, [f] That is a rather long descending ramp onto the freeway. There’s adequate opportunity to accelerate from that point, up through the Mooney overcrossing, and the—the speed, plus the location [at] which these defendants were originally observed, plus the fact that in my opinion the opportunity that they would have had to get this car up to speed but didn’t, and the—the fact that the officer was aware of thefts in the area, ... all gave the officer reasonable opportunity-—■ reasonable suspicion to stop this car. [][] And once stopped, then the observations he made of the driver gave more than adequate grounds to proceed as he did.”

b. Discussion

As an initial matter, we observe that the evidence and arguments presented by defendants at the pretrial proceedings attempted to establish primarily that the reasons Officer Wightman offered for the stop were merely pretextual—essentially defendants contended that Officer Wightman had a grudge against them from prior encounters, recognized them when the Fairmont first turned in front of the patrol car at the intersection, decided to stop them at the beginning of the encounter, and that the officer emphasized the possibility that the car had been stolen and the driver had been intoxicated as pretexts to justify his conduct. The United States Supreme Court, however, has since made clear that Fourth Amendment challenges based upon a claim that a seizure or search was “pretextual” are without merit. (See Whren v. United States (1996) 517 U.S. 806, 813 [ 135 L.Ed.2d 89 , 116 S.Ct. 1769 ].) Defendants, properly, do not on appeal renew their contentions of a pretextual *145 stop. 9 To the extent, however, that they contend that Officer Wightman subjectively had abandoned the notion the car was stolen before stopping it, and that therefore we must evaluate the reasonableness of the stop solely on the basis of whether there was reasonable suspicion the driver of the Fairmont was intoxicated, this contention is without merit both as a matter of fact and of law. First, Officer Wightman ultimately testified that when he initiated the traffic stop, he harbored suspicions of both an intoxicated driver and a stolen car. Second, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.’ [Citation.] The officer’s subjective motivation is irrelevant.” (Brigham City v. Stuart (2006) 547 U.S. 398, 404 [ 164 L.Ed.2d 650 , 126 S.Ct. 1943 ]; see also Whren, supra, 517 U.S. at p. 814 [“the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent” of the officer]; People v. Sanders (2003) 31 Cal.4th 318, 334 [ 2 Cal.Rptr.3d 630 , 73 P.3d 496 ].)

“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.” (People v. Saunders (2006) 38 Cal.4th 1129, 1133-1134 [ 45 Cal.Rptr.3d 66 , 136 P.3d 859 ].) On appeal we consider the correctness of the trial court’s ruling itself, not the correctness of the trial court’s reasons for reaching its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976 [ 17 Cal.Rptr.2d 122 , 846 P.2d 704 ] [if the trial court’s ruling is correct “ ‘ “upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion” ’ ”]; People v. Braeseke (1979) 25 Cal.3d 691, 700-701 [ 159 Cal.Rptr. 684 , 602 P.2d 384 ].)

“The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] ‘A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.] Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed. [Citations.] [f] . . . [f] Law *146 enforcement officers may ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might well elude an untrained person.” [Citations.]’ [Citation.]” (People v. Hernandez (2008) 45 Cal.4th 295, 299 [ 86 Cal.Rptr.3d 105 , 196 P.3d 806 ].)

As the United States Supreme Court has stated: “The reasonableness of a seizure under the Fourth Amendment is determined ‘by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests.’ [Citation.]” (Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty. (2004) 542 U.S. 177, 187-188 [ 159 L.Ed.2d 292 , 124 S.Ct. 2451 ].) This court has recognized that “[t]he level of intrusion of personal privacy and inconvenience involved in a brief vehicle stop is considerably less than [an] ‘embarrassing police search’ on a public street,” and that “ ‘in light of the pervasive regulation of vehicles capable of traveling on the public highways, individuals generally have a reduced expectation of privacy while driving a vehicle on public thoroughfares.’ [Citation.]” (People v. Wells (2006) 38 Cal.4th 1078, 1087 [ 45 Cal.Rptr.3d 8 , 136 P.3d 810 ].)

Even in a general sense, the reasonable suspicion standard of Terry v. Ohio (1968) 392 U.S. 1 [ 20 L.Ed.2d 889 , 88 S.Ct. 1868 ] is not a particularly demanding one, but is, instead, “considerably less than proof of wrongdoing by a preponderance of the evidence.” (United States v. Sokolow (1989) 490 U.S. 1, 7 [ 104 L.Ed.2d 1 , 109 S.Ct. 1581 ].) “In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125 [ 145 L.Ed.2d 570 , 120 S.Ct. 673 ].) Further, as the high court repeatedly has explained, the possibility of innocent explanations for the factors relied upon by a police officer does not necessarily preclude the possibility of a reasonable suspicion of criminal activity. (United States v. Arvizu (2002) 534 U.S. 266, 274 [ 151 L.Ed.2d 740 , 122 S.Ct. 744 ] (Arvizu) [“Although each of the series of acts [in Terry] was ‘perhaps innocent in itself,’ we held that, taken together, they ‘warranted further investigation.’ ”]; Sokolow, supra, 490 U.S. at p. 9 [holding that factors that by themselves were “quite consistent with innocent travel” collectively gave rise to reasonable suspicion]; see also People v. Glaser (1995) 11 Cal.4th 354, 373 [ 45 Cal.Rptr.2d 425 , 902 P.2d 729 ] [“that a person’s conduct is consistent with innocent behavior does not necessarily defeat the existence of reasonable cause to detain. [Citation.] What is required is not the absence of innocent explanation, but the existence of ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that *147 intrusion.’ ”].) In determining whether a search or seizure was supported by a reasonable suspicion of criminal activity, “ ‘the relevant inquiry is not whether particular conduct is “innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.’ ” (Sokolow, supra, 490 U.S. at p. 10 .) Indeed, the United States Supreme Court has acknowledged that by allowing the police to act based upon conduct that was “ambiguous and susceptible of an innocent explanation,” the court in Terry “accepted] the risk that officers may stop innocent people.” ( Wardlow, supra, 528 U.S. at pp. 125-126; see, e.g., In re Raymond C. (2008) 45 Cal.4th 303, 306-308 [ 86 Cal.Rptr.3d 110 , 196 P.3d 810 ] [police officer had reasonable suspicion to conduct a traffic stop on a vehicle displaying no rear license plate or a temporary operating permit in the rear window, despite the circumstances that the vehicle otherwise was being driven in a lawful manner and there was a temporary permit in the front window].)

In the present case, the relevant facts—that is, setting aside the irrelevant issue of Officer Wightman’s subjective beliefs concerning the justification for the stop—are as follows. When Officer Wightman first observed the Ford Fairmont at the intersection of Main and Garden Streets, its exterior, unlike other cars traveling in the area, was beaded with water, although it had stopped raining hours before. A reasonable officer could suspect from this circumstance that the car had been parked nearby until fairly recently. Officer Wightman knew that in the immediate area were a number of car dealerships that had reported vehicle tamperings, burglaries, and thefts in the preceding months. Indeed, the Ford dealership adjacent to that intersection had reported the theft of a vehicle approximately one week earlier. It was midnight on a Tuesday, when relatively few persons are working or otherwise away from home and hence when vehicle thefts from a car dealership more readily might be committed. Officer Wightman, following the Fairmont in his marked patrol car, observed that after the vehicle entered the highway (at that point a freeway), it accelerated to a speed of only 40 miles per hour, well below the speed limit, and traveled at that speed for approximately one mile, that is, for more than one minute. In these circumstances, a reasonable officer might suspect the driver of the car was attempting to avoid contact with the police. (See U.S. v. Villalobos (5th Cir. 1998) 161 F.3d 285, 291 [“noticeable deceleration in the presence of a patrol car can contribute to reasonable suspicion, even though drivers often slow when they see law enforcement personnel”]; U.S. v. Lopez-Martinez (10th Cir. 1994) 25 F.3d 1481, 1486 [“maintaining a noticeably slow speed in the presence of a police officer may suggest nervousness . . .”]; People v. Gibson (1963) 220 Cal.App.2d 15, 20 [ 33 Cal.Rptr. 775 ] [“The fact that a driver proceeds at a speed slower than the speed limit under circumstances where he might normally proceed at the higher speed also is a factor appearing to justify an officer’s investigation.”].) We therefore conclude Officer Wightman pointed to *148 specific articulable facts that, considered in light of the totality of the circumstances, provided “some objective manifestation” that one or both of the individuals in the Fairmont may have been involved in criminal activity, including theft of the automobile, and were attempting to avoid apprehension.

Defendants point to various details that, they contend, diminish the suspicious nature of the articulable facts listed above. For example, Officer Wightman had learned prior to the traffic stop that the Fairmont had not been reported stolen and was registered to a private person (not a dealership). Defendants also assert that the car might have been traveling on the highway at a slow speed because of mechanical difficulties, made apparent to the officer by the sound of the engine “running rough,” possibly unsafe road conditions because of the rain that had fallen earlier that night, or because the driver was anticipating an upcoming reduction in the speed limit when the freeway ended. As mentioned above, however, such possible innocent explanations for an officer’s observations do not preclude the conclusion that it was reasonable for the officer to suspect that criminal activity was afoot. “ ‘Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. . ..’ [Citation.]” (People v. Souza (1994) 9 Cal.4th 224, 233 [ 36 Cal.Rptr.2d 569 , 885 P.2d 982 ]; see also Arvizu, supra, 534 U.S. at p. 274 [the totality-of-the-circumstances standard precludes a “divide-and-conquer analysis” under which factors that are “readily susceptible to an innocent explanation [are] entitled to ‘no weight’ ”].) Moreover, in the present case several of the cited circumstances do not undercut the suspicion of criminal activity. A reasonable officer in Officer Wightman’s circumstances might surmise that the Fairmont had been stolen within the previous minutes, at a time when the dealerships were , closed and most persons were asleep, and that therefore it would be unlikely the owner had discovered the theft, let alone reported it to the police. The circumstance that the Fairmont was registered to a private person did not signify that it could not have been taken from a dealership—the dealer might have recently purchased it and not yet updated the ownership records, or the car could have been at the dealership for repairs. There was no evidence presented at the hearing suggesting that the roads (as opposed to cars parked in the downtown area) were wet or unsafe to the point where it would be necessary or prudent for a driver to travel on the freeway at a significantly reduced speed. Similarly, as to the performance of the Fairmont’s engine, Officer Wightman testified that its sound did not indicate to him that the vehicle was incapable of achieving a speed greater than the 40 miles per hour it was traveling on the highway, and defendants presented no evidence to the contrary. In addition, although it might not appear that the driver of the Fairmont had been trying to avoid the officer when driving on the city streets before entering the freeway, a reasonable officer in these circumstances *149 nonetheless might suspect that traveling at a slow speed on the freeway reflected an attempt by the driver to avoid contact with the police.

For these reasons, we conclude the trial court properly found that Officer Wightman was aware of specific articulable facts that, viewed in their totality, supported a reasonable suspicion that the occupants of the Fairmont might be engaged in criminal activity, justifying his action in stopping the vehicle. As the United States Supreme Court has stated, “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” (Adams v. Williams (1972) 407 U.S. 143, 146 [ 32 L.Ed.2d 612 , 92 S.Ct. 1921 ].) The trial court correctly denied defendants’ motions to suppress the evidence obtained as a result of the vehicle stop.

4. Denial of Motions to Sever Defendants’ Trials at the Guilt Phase (Letner, Tobin)

Each defendant filed a pretrial motion to sever his trial at the guilt phase from that of the other defendant, arguing that their defenses would be antagonistic and that their constitutional rights to confrontation would be violated by the admission of their statements incriminating each other. (See Bruton v. United States (1968) 391 U.S. 123 [ 20 L.Ed.2d 476 , 88 S.Ct. 1620 ] [a nontestifying codefendant’s extrajudicial statement that incriminates both himself or herself and the other defendant is inadmissible]; People v. Aranda (1965) 63 Cal.2d 518 [ 47 Cal.Rptr. 353 , 407 P.2d 265 ].) As defendants observed, Tobin made statements to his mother and Jeanette Mayberry admitting he was at Pontbriant’s house on the night of the murder, but asserting he left before Letner and at a time when Pontbriant was unharmed, whereas Letner asserted in the letters written to inmate Danny Payne, and in statements made to investigator Johnson, Robert Hernandez, and Leo Pike, that Letner was present when Tobin killed Pontbriant. The trial court denied the severance motions, with the understanding the prosecutor would not be permitted to introduce statements that posed an Aranda/Bruton problem. Defendants contend on appeal that the denial of their motions was an abuse of discretion that violated their statutory rights, as well as their state and federal constitutional rights. 10

“Section 1098 provides in pertinent part: ‘When two or more defendants are jointly charged with any public offense, whether felony or *150 misdemeanor, they must be tried jointly, unless the court order[s] separate trials.’ Our Legislature has thus ‘expressed a preference for joint trials.’ [Citation.] But the court may, in its discretion, order separate trials ‘in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.’ [Citations.] [][] We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the time the court ruled on the motion. [Citation.] If the court’s joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to a denial of due process.” ’ ” (People v. Avila (2006) 38 Cal.4th 491, 574-575 [ 43 Cal.Rptr.3d 1 , 133 P.3d 1076 ] (Avila).)

To the extent defendants contend the trial court abused its discretion by finding the defense cases were not so conflicting as to require a severance, they are incorrect. Initially, it must be observed that this was a “ ‘ “classic case” ’ ” for a joint trial, because defendants mutually were charged with the same crimes arising from the same events. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 [ 17 Cal.Rptr.3d 710 , 96 P.3d 30 ] (Coffman).) The circumstance that Letner and Tobin might attempt to fix blame on each other did not by itself require separate trials. 11 “If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials ‘would appear to be mandatory in almost every case.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 168 [ 5 Cal.Rptr.2d 796 , 825 P.2d 781 ].) Accordingly, we have concluded that a trial court, in denying severance, abuses its discretion only when the conflict between the defendants alone will demonstrate to the jury that they are guilty. If, instead, “there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.” (Coffman, supra, 34 Cal.4th at p. 41; see also People v. Carasi (2008) 44 Cal.4th 1263, 1297-1298 [ 82 Cal.Rptr.3d 265 , 190 P.3d 616 ] [“a joint trial is prohibited only where ‘ “the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty” ’ ”]; Avila, supra, 38 Cal.4th at pp. 575-576.)

*151 When the trial court ruled in the present case on the motions to sever, the evidence before it—the testimony presented at the preliminary hearing— demonstrated that the conflict between the potential defenses alone was not likely to lead the jury to reach guilty verdicts. The evidence established that both defendants knew Pontbriant was alone at her house and possessed a car and cash for the rent. Both defendants were found traveling out of town in the victim’s car on the night of the murder, and their belongings were found in the trunk. They both provided conflicting accounts of where they were going. They subsequently abandoned the car, leaving their possessions inside, and fled. Moreover, forensic evidence discovered at the scene and in the victim’s car pointed toward each defendant’s involvement in the murder. Finally, both defendants made statements that were self-incriminating (apart from the excluded portions of the statements that incriminated the other defendant). As in People v. Turner (1984) 37 Cal.3d 302, 313 [ 208 Cal.Rptr. 196 , 690 P.2d 669 ], in which we found no abuse of discretion in permitting a joint trial of the defendants, when the trial court ruled on the motions to sever in the present case, “the court was faced with two men charged with [a] murder[] under circumstances in which all the events surrounding the crimes and ultimate arrests involved them jointly.” For these reasons, the trial court did not abuse its discretion by denying their motions to sever.

To the extent defendants assert that additional grounds not presented to the trial court demonstrate the joint trial resulted in gross unfairness amounting to a denial of due process of law, we are not persuaded.

Both defendants urge that severance was required because the prosecution employed the joint trial to join a strong case with a weak one, and to take advantage of a “prejudicial association” between the two defendants. We disagree. Notably, each defendant asserts the evidence against him was weak compared to the stronger evidence against his codefendant. We conclude, however, that the evidence presented against each defendant at trial was, in general, of similar weight. The strengths and weaknesses of the prosecution’s case—considering its circumstantial nature, the credibility of the witnesses, and the force of the physical evidence—for the most part were the same for both defendants. We cannot say that the quantity and quality of the evidence implicating one defendant compared to the other was so dissimilar that the jury likely convicted both defendants based upon the strength of the evidence against only one of them.

Similarly, we do not discern any inappropriate reliance upon the prejudicial nature of the association between the two defendants. Defendants observe that the prosecutor acknowledged to the jury it was difficult to point to evidence that definitively established the role of each defendant in the crimes committed against Pontbriant, but the prosecutor nonetheless argued that the *152 evidence, including defendants’ history of close friendship, demonstrated they were equally culpable. We reject defendants’ contention that this argument improperly appealed to the jury to consider “guilt by association”—an improper consideration that could have been avoided by severance of defendants’ trials. 12 A prejudicial association justifying severance will involve circumstances in which the evidence regarding one defendant might make it likely the jury would convict that defendant of the charges and, further, more likely find a codefendant guilty based upon the relationship between the two rather than upon the evidence separately implicating the codefendant. (See People v. Chambers (1964) 231 Cal.App.2d 23, 29 [ 41 Cal.Rptr. 551 ] [concluding that the defendant “was probably fastened with vicarious responsibility for the long-continued brutality of [the codefendant],” and that the jury likely convicted the defendant based upon a “notion of joint moral responsibility” rather than personal guilt]; People v. Massie (1967) 66 Cal.2d 899 , 917 & fn. 19 [ 59 Cal.Rptr. 733 , 428 P.2d 869 ] [citing Chambers concerning “prejudicial association with codefendants” warranting severance]; People v. Biehler (1961) 198 Cal.App.2d 290, 298 [ 17 Cal.Rptr. 862 ] [“the vices inherent in a mass trial such as was had in the instant case are the danger that the jury will find one or more defendants guilty as charged because of his association with evil men . . .”]; see also People v. Cummings (1993) 4 Cal.4th 1233, 1286 [ 18 Cal.Rptr.2d 796 , 850 P.2d 1 ] [“Since defendants were crime partners in several of the robberies and in the murder, prejudicial association with a codefendant is not a factor.”].) The prosecution’s argument in the present case—that it was probable Letner and Tobin acted in concert, because they had a history of doing so—was not an appeal to find guilt by association, but rather was a proper argument based upon reasonable inferences the jury could draw from the evidence it had heard. (Cf. People v. Champion (1995) 9 Cal.4th 879, 921 [ 39 Cal.Rptr.2d 547 , 891 P.2d 93 ] [the prosecution’s introduction of evidence of defendants’ membership in a criminal street gang was not an attempt to prove “guilt by association”; evidence of gang membership “formed a significant evidentiary link in the chain of proof tying them to the crimes”].) Moreover, the jury repeatedly was instructed at the conclusion of the guilt phase that it must consider separately the evidence against each defendant and reach a verdict as to each based solely upon the evidence admitted against him. Although Letner asserts the “reality of trial practice” is that such instructions are ineffective, we presume the jury followed these instructions. ( Coffman, supra, 34 Cal.4th at pp. 43-44.) The prosecutor’s argument did not result in gross unfairness that would warrant setting aside the verdict rendered following the joint trial.

*153 Letner also asserts that severance was required because Tobin acted as a “second prosecutor,” thereby reducing the prosecution’s burden to prove its case against Letner, as well as adversely affecting Letner’s ability to present his own defense. For the most part, this claim appears to be a variation of the claim we already have rejected, concerning the necessity for severance becaúse of defendants’ allegedly conflicting defenses. Tobin’s presentation of evidence tending to incriminate Letner did not lessen the prosecution’s burden, or result in gross unfairness amounting to a denial of due process. As we have explained, because there was sufficient independent evidence of guilt, the conflict between defendants did not lead by itself to Letner’s conviction, and therefore severance was not required.

Further, the record does not confirm Letner’s contention on appeal that he chose not to testify at the guilt phase because of a concern related to his joint trial; Letner and his attorney offered ambiguous explanations for this decision. 13 In addition, the assertion that Letner chose not to testify because he was jointly tried with Tobin is contradicted by Letner’s penalty phase testimony that the reason he did not testify at the guilt phase was that he did not want to have a “rat jacket” in prison. Even if the record established that Letner chose not to testify because of some concern related to his joint trial with Tobin, Letner does not offer any authority supporting his claim that, despite proper joinder of the trial, the strategic decision he was required to make between testifying and remaining silent resulted in a gross unfairness amounting to a denial of due process and in other respects denied him his constitutional rights. As we have observed, “ ‘The criminal process ... is replete with situations requiring the “making of difficult judgments” as to which course to follow. [Citation.] Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.’ ” (People v. Caro (1988) 46 Cal.3d 1035, 1056 [ 251 Cal.Rptr. 757 , 761 P.2d 680 ] [quoting McGautha v. California (1971) 402 U.S. 183, 213 [ 28 L.Ed.2d 711 , 91 S.Ct. 1454 ]].) Similarly, Letner’s contention that the jury held against him his failure to testify at the guilt phase, even though the trial court instructed the jury not to do so, lacks any support in the record.

*154 In sum, defendants have failed to demonstrate that the trial court abused its discretion by denying their motions to sever their joint trial on the issue of guilt. Nor have they shown that any aspects of the joint trial, when considered separately or cumulatively, resulted in gross unfairness amounting to a denial of due process or a violation of their constitutional rights to a reliable and individualized verdict.

5. Use of Leg Brace Restraints During Jury Voir Dire (Letner)

On Monday, November 20, 1989, the trial court, having concluded individual voir dire of the prospective jurors, began group voir dire of those prospective jurors who had not been excused. Before the proceedings began, however, defendants objected that, for the first time during the proceedings, the sheriff’s deputies had required the two defendants to wear leg brace restraints under their pants. A sergeant with the sheriff’s office told the court that the deputies had security concerns because Letner, while wearing normal restraints, had attempted to assault another inmate, and both defendants had been seen practicing martial arts kicks in the jail’s exercise yard. (We also note that, as described above, Letner had escaped from custody while being extradited to California to face the present charges.) The trial court found that the leg braces did not appear to be unduly restrictive, could not be easily seen, and were “not likely to create any possibility of prejudice.” The court stated it therefore would “defer” to the deputies’ decision to apply the restraints.

The following day, after the jury had been empanelled, the trial court noted for the record that after its ruling the previous day permitting the use of restraints, Tobin’s leg brace had been damaged and was unusable. The court stated it had determined that no other restraints should be imposed, and therefore defendants would not be restrained for the remainder of the trial.

Letner contends on appeal that requiring him to wear the leg brace on November 20, 1989, violated his rights under the state and federal Constitutions to due process, to the assistance of counsel, and to present a defense. His contention is unpersuasive. The applicable rule is that “ ‘[a] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.’ [Citation.] ‘The imposition of physical restraints. in the absence of a record showing of violence or a threat of violence or other nonconforming conduct will be deemed to constitute an abuse of discretion’ under state law. [Citation.] Under the federal Constitution, where a court ordered a defendant, without adequate justification, to wear restraints that were seen by the jury, the state must prove beyond a reasonable doubt that the unjustified shackling did not contribute to the verdict. *155 [Citation.] ‘The trial court may not delegate to law enforcement personnel the decision whether to shackle a defendant.’ [Citation.]” (People v. Ervine (2009) 47 Cal.4th 745, 773 [ 102 Cal.Rptr.3d 786 , 220 P.3d 820 ] (Ervine).)

Despite Letner’s speculation to the contrary, there is no evidence in the record that any of the prospective jurors were able to see his leg brace. Indeed, the trial court, during record settlement proceedings, found that the leg brace was not visible to the prospective jurors. In addition, Letner was restrained on the day prior to that on which the jury was empanelled, and it is unclear how many, if any, of the jurors who ultimately served on the jury would have seen the brace that day.

Letner contends, however, that under the high court’s decision in Deck v. Missouri (2005) 544 U.S. 622 [ 161 L.Ed.2d 953 , 125 S.Ct. 2007 ], respondent must establish beyond a reasonable doubt that the prospective jurors did not see the leg brace. Deck does not support his contention. In that case, the high court observed that the record “makes clear that the jury was aware of the shackles” (id. at p. 634), and held that “where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained’ ” (id. at p. 635, italics added). In Deck there was no dispute that the restraints were visible to the jury—a circumstance that courts consistently have viewed as inherently prejudicial. In the present case, we do not presume the prospective jurors viewed the restraint, and there is no evidence in the record demonstrating they did observe it.

There also is no evidence in the record that the leg brace was so physically restrictive or uncomfortable that Letner’s ability to assist his attorney in conducting voir dire of the prospective jurors was impaired. Letner’s reliance upon our decision in People v. Mar (2002) 28 Cal.4th 1201 [ 124 Cal.Rptr.2d 161 , 52 P.3d 95 ] (Mar), in support of this aspect of his claim, is unavailing. First, that case concerned the use of a “stun belt,” a device worn around the defendant’s waist, capable of delivering “ ‘an eight-second, 50,000-volt electric shock if activated by a remote transmitter which is controlled by an attending officer. The shock contains enough amperage to immobilize a person temporarily and cause muscular weakness for approximately 30 to 45 minutes. The wearer is generally knocked to the ground by the shock and shakes uncontrollably. Activation may also cause immediate and uncontrolled defecation and urination, and the belt’s metal prongs may leave welts on the wearer’s skin requiring as long as six months to heal. An electrical jolt of this magnitude causes temporary debilitating pain and may cause some wearers to *156 suffer heartbeat irregularities or seizures.’ ” (Id. at p. 1215.) There is no evidence that the leg brace worn by Letner created a remotely comparable level of potential pain, injury, and humiliation, such that Letner’s ability to concentrate and participate in the trial proceedings similarly might have been affected. The sole evidence in the record concerning any possible adverse physical effect of the brace was Tobin’s statement to the trial court that the brace he wore was “very” uncomfortable.

Second, in Mar the credibility of the witnesses, including the defendant, was a key issue, and the defendant stated on the record that wearing the stun belt “made it difficult for him to think clearly and that it added significantly to his anxiety, and the trial transcript confirm[ed] that defendant was nervous while testifying at trial.” (Mar, supra, 28 Cal.4th at p. 1224 .) In Mar , therefore, use of the stun belt could have affected a critical aspect of the defense case: the jury’s perception concerning whether the defendant was truthful in his testimony. In the present case, there is no evidence in the record demonstrating that Letner’s ability to participate was affected in any manner by his wearing the leg brace, and the proceeding in question (a single day of jury voir dire) was not of the same critical importance to Letner’s participation as was the defendant’s testimony in his own defense in Mar .

Accordingly, even were we to conclude that the trial court erred by choosing to “defer” to the sheriff’s deputies in permitting the use of the leg brace for one day of the proceedings, any error was plainly harmless. ( Ervine, supra, 47 Cal.4th at pp. 773-774 [the unjustified shackling of a defendant is harmless when the jury did not see the restraint and there was no impairment of the defendant’s ability to communicate with counsel or participate in his or her defense].)

B. Guilt Phase Issues

1. Assertedly Erroneous Evidentiary Rulings

a. Admission of Letner’s Statements Against Tobin As Adoptive Admissions (Tobin)

Tobin contends the trial court abused its discretion by admitting against him the statement made by Letner to Officer Wightman, when the officer conducted the vehicle stop of Pontbriant’s car, that Letner was “taking [my] friend home.” Tobin asserts, as he did in the trial court, that the statement was hearsay under section 1200 of the Evidence Code, 14 and that there was an *157 insufficient foundation for admitting it under the exception applicable to “adoptive admissions” under Evidence Code section 1221. 15 As the prosecutor and the trial court observed at the trial, however, the statement was not hearsay, and therefore whether or not it constituted an “adoptive admission” under the statute is of no moment. Letner’s statement that he was “taking [my] Mend home” was not offered to demonstrate that Tobin “adopted” the truth of the matter asserted, but rather, because the statement was a lie, to demonstrate consciousness of guilt. This false statement was relevant because it was made (and the jury could infer its falsity from other evidence), and not because it was a true statement. Because the statement was not inadmissible under the hearsay rule, it was unnecessary to establish whether it fell within the adoptive-admission exception to the hearsay rule. (See, e.g., People v. Curl (2009) 46 Cal.4th 339, 362 [ 93 Cal.Rptr.3d 537 , 207 P.3d 2 ] [the inconsistent-statement hearsay exception under Evid. Code, § 1202 does not apply to a statement admitted for the nonhearsay purpose of showing consciousness of guilt]; People v. Noguera (1992) 4 Cal.4th 599, 624-625 [ 15 Cal.Rptr.2d 400 , 842 P.2d 1160 ].) The Mai court did not err by overruling Tobin’s objection.

Although Tobin has failed to articulate the point adequately either in the trial court or on appeal, arguably the statement should have been admitted as evidence only of Letner’s, and not Tobin’s, consciousness of guilt. The Mai court touched on the subject, noting that in its view, the statement’s admissibility against Tobin was a “question of fact,” and the court offered to instruct concerning “when somebody can be deemed to adopt or not adopt an admission like that if you want one.” No such instruction was given during Officer Wightman’s testimony or at the conclusion of the guilt phase. Even assuming Tobin did not forfeit the claim that the trial court erroneously failed to instruct the jury that the statement could be considered only as to Letner, we conclude that any possible error was harmless. Officer Wightman also testified that Tobin himself told Wightman they were taking Tobin home to the house on South Crenshaw where he resided with a woman named Jeanette, although it was established at trial that Tobin had not resided there for some time. Accordingly, the jury had before it similar evidence from Tobin himself revealing potential consciousness of guilt.

b. Cross-examination of Tobin Regarding Stolen Property (Letner, Tobin)

Prior to Mai, the prosecution informed the trial court it intended to present evidence indicating that Letner had stolen from a local beauty parlor the bags *158 of beauty products found in Pontbriant’s car after the murder. The prosecutor argued that the theft of the items was relevant to establish that defendants had brought the items with them in the car in order to attempt to sell them to raise money for their escape. Defendants objected to the admission of this evidence on the ground it constituted irrelevant “other-crimes” evidence that improperly would imply defendants were the type of individuals who committed burglaries, such as the offense charged in the present case. The trial court ruled that the evidence would be admissible to demonstrate, as the prosecutor argued, consciousness of guilt reflected in a plan to facilitate defendants’ escape. The court found that the possible prejudicial effect of admitting this evidence was slight in view of the nature of the charges, and advised that it would instruct the jury that the evidence was admitted for a limited purpose. 16

During the prosecution’s case-in-chief, Jeanette Mayberry testified that the bags of beauty products belonged to Letner, and that he told her he stole the items from a store in Visalia. Upon a defense objection, the trial court refused to strike the testimony but admonished the jury that “as to whether he stole these, or didn’t steal them is not an issue before you, and you shouldn’t consider that as to whether [defendants] are guilty or not guilty of the crimes with which they are charged.” The prosecution presented no other evidence concerning the stolen beauty products during its case-in-chief.

During his direct examination, Tobin testified that he knew the bags of beauty products had been placed in Pontbriant’s car. He also testified on direct examination that after defendants spent the night in the house on South Crenshaw, Letner wanted to return to the car but Tobin “didn’t want to go near the car.” On cross-examination, the prosecutor asked Tobin a number of questions concerning the beauty products. In response to an initial question regarding whether Letner had said he had stolen the items, Tobin answered, “He may have,” but after several more questions he stated Letner had told him only that the items were “hot,” meaning they had been stolen. Neither defendant objected to the prosecutor’s questions. Later, on cross-examination by Letner’s attorney, Tobin testified that when Letner drove onto the highway, Letner was hoping—because of his concern regarding the stolen items inside *159 the vehicle—that the police car would stop following them. 17 Tobin also testified that the “major reason” he did not wish to return to Pontbriant’s car was because the stolen beauty products were still inside, and thus he and Letner decided to abandon the vehicle.

On appeal, defendants contend that the trial court erred by permitting the prosecutor to question Tobin concerning the beauty products having been stolen, and that the admission of this testimony violated defendants’ constitutional rights. Initially, defendants incorrectly assert that defense counsel objected to the questions seeking to elicit Tobin’s knowledge that the beauty products had been stolen. To the contrary, both defense attorneys objected only when—after moving on from the issue of Tobin’s knowledge that the items were stolen, and questioning Tobin regarding the toolbox that also was found in Pontbriant’s car—the prosecutor asked, “Would Richard Letner take stolen items to the swap meet and sell them regularly?” The trial court sustained this objection. Defense counsel again objected when the prosecutor later inquired where the tools sold by defendants at the swap meets came from, and those objections again were sustained. Defendants therefore forfeited their appellate challenges regarding the stolen beauty products by failing to object during the prosecutor’s examination. (People v. Ledesma (2006) 39 Cal.4th 641, 714 [ 47 Cal.Rptr.3d 326 , 140 P.3d 657 ].) Moreover, even assuming that defendants’ pretrial objections to the prosecutor’s offer of proof concerning the stolen beauty products constituted an in limine motion to exclude evidence of this nature, defendants were required to renew their objection at trial, when the trial court would have the opportunity to evaluate their objections in light of the actual evidence presented. (People v. Brown (2003) 31 Cal.4th 518, 547 [ 3 Cal.Rptr.3d 145 , 73 P.3d 1137 ] [“[t]he general rule is that ‘when an in limine ruling that evidence is admissible has been made, the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal...’”].) The requirement of a contemporaneous objection is especially applicable in the present case, because prior to trial defendants objected to the prosecution’s presentation of the evidence in its case-in-chief, and the testimony challenged on appeal was elicited in the course of cross-examining Tobin during his own defense case, following (1) his testimony on direct examination establishing that he knew the beauty products had been placed in the car, (2) Jeanette Mayberry’s testimony indicating that the items were stolen, and (3) the trial court’s admonition to the jury not to consider Mayberry’s testimony with regard to the identity of the thief. (People v. Morris (1991) 53 Cal.3d 152, 190 [ 279 *160 Cal.Rptr. 720 , 807 P.2d 949 ] [an in limine motion, without a contemporaneous objection at trial, is sufficient to preserve an objection for appeal only when “(1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context”].) Indeed, one reasonably might conclude Letner and Tobin purposefully chose not to object to the prosecutor’s cross-examination, in the hope of using evidence of the stolen character of the items to explain why defendants drove onto the highway (rather than to Pontbriant’s house, where they purportedly were to store their belongings) when the officer followed them, and why they abandoned the car (and their belongings) on the side of the road after the traffic stop. Because on appeal defendants challenge the admissibility of Tobin’s testimony based primarily upon their pretrial arguments and the trial court’s ruling, and because their failure to object to the testimony during the cross-examination denied the prosecutor an opportunity to justify its admission in light of the state of the evidence at that point in the trial, and denied the trial court an opportunity to decide this issue in the first instance, their claims are forfeited. In any event, based upon the record before us, we cannot conclude the trial court abused its discretion by allowing the prosecutor to question Tobin concerning a subject that Tobin brought up in his own testimony. (People v. Mayfield (1997) 14 Cal.4th 668, 754 [ 60 Cal.Rptr.2d 1 , 928 P.2d 485 ] (Mayfield) [cross-examination can explore a defendant’s testimony in greater detail than the direct testimony, and, in general, the permissible scope of cross-examination is very wide].)

2. Assertedly Insufficient Evidence

At the close of the prosecution’s case-in-chief, defendants moved pursuant to section 1118.1 to dismiss the charges of attempted forcible rape, robbery, and burglary and the related special circumstance allegations, based upon the alleged insufficiency of the evidence. The trial court denied the motions. On appeal, defendants renew their challenges to the sufficiency of the evidence. As discussed below, we conclude the evidence is sufficient to support the convictions and the findings regarding the special circumstance allegations. Because there was sufficient evidence to sustain all of the convictions and findings, defendants’ contention that their death sentences must be vacated if any one of the convictions or special circumstance findings is reversed also fails. 18

*161 Defendants initially contend that because they have been sentenced to death, we are required by the Eighth Amendment to the United States Constitution to apply a “heightened” standard of review to their claims, rather than the standard we routinely apply in both capital and noncapital cases, which is “review [of] the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt” (People v. Cole (2004) 33 Cal.4th 1158, 1212 [ 17 Cal.Rptr.3d 532 , 95 P.3d 811 ]), “presuming] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence” (People v. Kraft (2000) 23 Cal.4th 978, 1053 [ 99 Cal.Rptr.2d 1 , 5 P.3d 68 ]). 19 Defendants are mistaken. As the United States Supreme Court has held in a similar context, “the standard of federal [constitutional] review for determining whether a state court has violated the Fourteenth Amendment’s guarantee against wholly arbitrary deprivations of liberty is equally applicable in safeguarding the Eighth Amendment’s bedrock guarantee against the arbitrary or capricious imposition of the death penalty.” (Lewis v. Jeffers (1990) 497 U.S. 764, 782 [ 111 L.Ed.2d 606 , 110 S.Ct. 3092 ] [applying the standard established in Jackson v. Virginia (1979) 443 U.S. 307 [ 61 L.Ed.2d 560 , 99 S.Ct. 2781 ], to federal constitutional review of the state court’s finding of an aggravating circumstance in a capital case].) As the high court observed in Jeffers , the application of the facts to the law at a state court trial—that is, the determination of whether the evidence is sufficient to sustain the charges—is a question of state law, except to the extent that the determination of sufficiency at issue was arbitrary or capricious under the federal due process or cruel and unusual punishment clause. The application of state law in determining the sufficiency of the evidence will be considered arbitrary and capricious, and therefore a federal constitutional violation, “if and only if no reasonable sentencer [or fact finder] could have so concluded.” (Jeffers, supra, 497 U.S. at p. 783 .) Accordingly, we apply the standard of review set forth above to ensure that defendants’ state and federal rights are protected.

We also observe that, for the most part, defendants dispute the persuasive value of the evidence that was admitted against them, pointing to various inconsistencies and inadequacies in the testimony of several witnesses and the physical evidence. In our limited role on appeal, “[conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal *162 of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403 [ 133 Cal.Rptr.2d 561 , 68 P.3d 1 ].) Further, “if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Farnam (2002) 28 Cal.4th 107, 143 [ 121 Cal.Rptr.2d 106 , 47 P.3d 988 ].) Accordingly, we need not—and do not—address all of defendants’ assertions of conflicts in the evidence, or their alternative theories regarding the inferences that should have been drawn from the evidence.

In general, the evidence presented was sufficient for a rational trier of fact to find that Ivon Pontbriant was murdered in her residence during the evening hours of Tuesday, March 1, 1988, and that defendants arrived at her home together that night while she was alive and departed from the house together in her car after she was murdered. Defendants’ challenges focus upon the adequacy of the evidence (or the asserted lack of evidence) to establish what occurred while they were at the victim’s house—that is, whether the evidence was sufficient to enable the jury to find that each of the two defendants intended to and did commit, or aid and abet in the commission of, the charged offenses, and to find true the related special circumstance allegations as to each defendant.

a. Attempted Rape (Letner, Tobin)

Defendants contend that the evidence presented in the prosecution’s casein-chief was insufficient to establish that an attempted forcible rape was committed and, even if the crime was committed, which of the defendants participated either as a perpetrator or an aider and abettor. We disagree.

“Conviction of the crime of attempted forcible rape requires proof the defendant formed the specific intent to commit the crime of rape and performed a direct but ineffectual act, beyond mere preparation, leading toward the commission of a rape. [Citations.] The elements of the crime of forcible rape are ‘an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [f] . . . [f] . . . [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another.’ (§261, subd. (a)(2).)” (People v. Rundle (2008) 43 Cal.4th 76, 138 [ 74 Cal.Rptr.3d 454 , 180 P.3d 224 ], fns. omitted (Rundle).) The felony-murder special circumstance, section 190.2, subdivision (a)(17), requires that “[t]he murder was committed while the defendant was engaged in, or was an *163 accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit” one or more of the enumerated felonies. At the time Pontbriant was murdered, the law provided that, as to the actual killer, “intent to kill [was] not an element of the felony-murder special circumstance; but when the defendant [was] an aider and abett[o]r rather than the actual killer, intent must be proved before the trier of fact can find the special circumstance to be true.” (People v. Anderson (1987) 43 Cal.3d 1104, 1138-1139 [ 240 Cal.Rptr. 585 , 742 P.2d 1306 ] (Anderson).) 20

To summarize the evidence (drawing all reasonable inferences in favor of the prosecution), Pontbriant’s body was found unclothed except for her brassiere, which was around her waist, and her socks. Her sweater had been cut at the neck and ripped the rest of the way down to the bottom, but the sleeves were intact. Because her hands were tied behind her back, the condition of her sweater indicated she was bound after having been undressed. Her pants and underwear had fecal matter on them. Pontbriant had been severely beaten, and several clumps of her hair had been pulled from her head. Several of Letner’s hairs, which had been pulled out of his head, and several hairs that could have been pubic hairs from an unidentifiable donor, were found on Pontbriant’s chest when her body was rolled over. Semen that could have been deposited by Tobin, but not Walter Gilliland, and blood consistent with Tobin’s, were found in the bedroom, along with a baseball cap that contained several of Letner’s hairs. A beer bottle was tightly wedged between Pontbriant’s legs, near her genitals. This evidence was sufficient for the jury to find that defendants attempted to rape Pontbriant. The jury also reasonably could have found the murder was committed for the purpose of preventing Pontbriant from reporting the attempted rape to the authorities, and accordingly had occurred while defendants were engaged in the commission of the attempted rape, or their immediate flight after committing the crime. (§ 190.2, subd. (a)(17); People v. Guzman (1988) 45 Cal.3d 915, 952 [ 248 Cal.Rptr. 467 , 755 P.2d 917 ].)

Defendants point out that there was no evidence of sexual activity or trauma on Pontbriant’s genitals. Defendants, of course, were charged with an attempted rape, not a completed rape, and thus the absence of evidence that Pontbriant actually was raped does not preclude a finding of guilt. Furthermore, contrary to defendants’ suggestion, there is no requirement that the *164 prosecution establish why an attempted rape was unsuccessful. 21 Nonetheless, a rational trier of fact could have found that the plan to have sexual intercourse with Pontbriant was abandoned because she had defecated in her clothing and had fecal matter on her body. Thus the lack of evidence of sexual activity on Pontbriant’s body reasonably may be explained, in contrast to those prior cases in which we have considered the lack of evidence of a sexual assault as an indication that an attempted rape or rape did not occur. (Cf. Rundle, supra, 43 Cal.4th at p. 139 [recognizing that the absence of evidence of a sexual assault may rebut other inferences suggesting that the perpetrator intended to have sexual contact with the victim, but holding that, in that case, the inconclusive nature of the evidence (because of the decomposition of the victim’s body) concerning whether a sexual assault had occurred did not rebut such inferences].)

Defendants observe that we previously have held that the unclothed state of a murder victim is, by itself, insufficient to prove that a rape or attempted rape has occurred. (See People v. Johnson (1993) 6 Cal.4th 1, 41 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].) In the present case, however, a number of other circumstances, considered in conjunction with Pontbriant’s nearly total nudity, support the jury’s verdict. The jury reasonably could have found Pontbriant had been bound after defendants forcibly undressed her, supporting the inference that they planned to do something to her that would be facilitated by her being unclothed, and in which she would not be a willing participant. In addition, the presence of sperm in the bedroom that could have been deposited by Tobin (but not Gilliland), the hairs found on Pontbriant’s chest, and the bottle that was wedged between her legs near her genitals reasonably could be viewed as evidence of a sexual component of defendants’ actions.

Defendants are correct in asserting that there is no direct evidence establishing which one of them performed which act against Pontbriant (other than Tobin’s testimony that he had nothing to do with what happened to her, which the jury clearly rejected). The jury’s reliance upon circumstantial evidence and the reasonable inferences to be drawn from that evidence, in determining whether both defendants were guilty, does not demonstrate, as defendants urge, that the verdict was the result of speculation. Rather, the evidence and the ensuing inferences adequately support the jury’s finding that defendants both were guilty of attempting to rape Pontbriant and of intentionally killing her while they were engaged in committing that crime.

*165 The evidence established that defendants had a history of acting in concert. They had been friends for several years, they resided together in various dwellings during their time in Visalia, and they engaged together in activities such as selling items at the local swap meet, practicing karate, and drinking and conversing at the Break Room Bar. There was, in fact, evidence demonstrating that they supported each other in criminal activities: Jeanette Mayberry testified that while Tobin assaulted her at the apartment on Bridge Street two days before Pontbriant’s murder, Letner, in addition to yelling insults at Mayberry, encouraged Tobin to continue striking her. The evidence together with reasonable inferences established that defendants went together to Pontbriant’s house on the night of the murder, left together in her car after she was killed, both lied to Officer Wightman regarding where they were going, fled to Iowa together, and eventually were arrested together. Neither of them had steady jobs or employment prospects in Visalia, and both of them had tenuous living arrangements: they were soon to be evicted from the Murray Street apartment for failing to pay the rent, and Jeanette Mayberry had just thrown Tobin out of the Bridge Street apartment after a dramatic fight between them. Forensic evidence reasonably could be viewed as indicating that both defendants directly were involved in attempting to rape the victim: Letner’s hairs, which had been forcefully removed from his head, were found on Pontbriant’s body, and semen and blood, consistent with having come from Tobin, were found in the bedroom. Although defendants attack the significance of the evidence and offer alternative explanations for its existence, we cannot say that no rational trier of fact could have determined that the evidence supported the finding that defendants, acting according to a common plan to attack Pontbriant and steal her car in order to leave town, committed an attempted rape, that Pontbriant’s murder occurred during the course of the attempted rape, and that defendants shared an intent to kill her in order to facilitate their escape. (See § 31 [defining as principals in a crime all persons who commit the crime or aid and abet in its commission]; People v. Richardson (2008) 43 Cal.4th 959, 1023 [ 77 Cal.Rptr.3d 163 , 183 P.3d 1146 ] (Richardson) [“ ‘An aider and abettor is one who acts with both knowledge of the perpetrator’s criminal purpose and the intent of encouraging or facilitating commission of the offense.’ ”]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1130 [ 36 Cal.Rptr.2d 235 , 885 P.2d 1 ] [the evidence was sufficient for the jury to infer that the attackers’ actions were coordinated pursuant to a joint plan].)

b. Robbery (Letner, Tobin)

Defendants’ challenges to the robbery convictions and special circumstance findings proceed along lines similar to their challenges to the attempted rape charges: they dispute the credibility of the witnesses, minimize the significance of the physical evidence, and contest the inferences that may be drawn from the evidence to establish their guilt. But, as we have *166 observed, on appeal we do not judge the trustworthiness of witnesses, reweigh the evidence, or assess for ourselves which interpretation of the evidence is the “right” one. Resolving the conflicts in the evidence was the province of the jury, and we cannot say that no rational trier of fact reasonably could have found defendants guilty of having robbed Pontbriant. Moreover, even were we to discount the testimony of Walter Gilliland and Earl Bothwell, as defendants urge us to do, we still would conclude a rational trier of fact could find defendants guilty of robbing Pontbriant and intentionally murdering her while engaged in that robbery.

“Robbery is ‘the felonious taking of personal property in the possession of another, from [her] person or immediate presence, and against [her] will, accomplished by means of force or fear.’ (§ 211.) The intent to steal must be formed either before or during the commission of the act of force.” (People v. Wallace (2008) 44 Cal.4th 1032, 1077 [ 81 Cal.Rptr.3d 651 , 189 P.3d 911 ] (Wallace).)

The jury reasonably could find that defendants were in possession of Pontbriant’s car, shortly after she was violently murdered. Based upon this evidence—by itself—the jury reasonably could infer that defendants removed Pontbriant’s car against her will by killing her, thus committing a robbery and an intentional murder while engaged in a robbery. (Hughes, supra, 27 Cal.4th at p. 357 [“We have stated that ‘when one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery.’ ”]; People v. Navarette (2003) 30 Cal.4th 458, 499 [ 133 Cal.Rptr.2d 89 , 66 P.3d 1182 ] [“While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.”].) For the same reasons expressed above regarding defendants’ challenges to the attempted rape findings, it was reasonable for the jury to find that both defendants intended to rob and kill Pontbriant, and aided and abetted each other in doing so. Defendants argue that it was possible they decided to take Pontbriant’s car only after they killed her. “The existence of this possibility [of after-formed intent to steal], however, does not render the evidence insufficient.” (Wallace, supra, 44 Cal.4th at p. 1078; see Hughes, supra, 27 Cal.4th at pp. 357-358 [circumstances that the defendant left other items of value in victim’s home, and that there was “slim” evidence suggesting when the intent to steal was formed, did not render unreasonable a finding that the defendant committed a robbery].) We therefore conclude the evidence was sufficient to support the jury’s verdicts and findings on the robbery charges and the related special circumstance allegations.

Tobin urges that the jury could not reasonably have found the taking of Pontbriant’s property was against her will and accomplished by force or fear, *167 because she might have been intoxicated to the point of unconsciousness at the time of the theft. We disagree. A rational trier of fact clearly could have found that, had Pontbriant been unconscious from drinking, defendants would not have needed to severely beat her, pull out her hair, and bind her arms behind her back. Further, had she lost consciousness at some point, a rational juror could find that she could not have remained in that condition during such an assault. As mentioned above, the circumstance that defendants might have rendered Pontbriant unconscious or killed her prior to actually taking the keys to her car did not preclude a finding that they committed the offense of robbery, so long as they previously formed the intent to steal. (See also People v. Frye (1998) 18 Cal.4th 894, 956 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ].)

In presenting his claim of insufficient evidence, Letner additionally asserts that the prosecutor’s presentation of Walter Gilliland’s testimony establishing that he gave the rent money to Pontbriant in defendants’ presence constituted prosecutorial misconduct, because the prosecutor knew or should have known this testimony was false. Even if Letner had not forfeited this contention by failing to raise it in the trial court, it lacks merit. The prosecutor properly could have concluded that the various inconsistencies in Gilliland’s testimony and pretrial statements created a credibility issue for the jury to resolve. “When ... the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury . . . .” (People v. Harrison (2005) 35 Cal.4th 208, 242 [ 25 Cal.Rptr.3d 224 , 106 P.3d 895 ].)

c. Burglary (Letner, Tobin)

Similar to their other challenges to the sufficiency of the evidence, defendants point to evidence that assertedly contradicts the finding that they entered Pontbriant’s home with the intent to commit a felony and committed the murder while engaged in the commission of the burglary. (See § 459 [“Every person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.”].) As discussed above, however, we have concluded there was sufficient evidence for the jury to find that defendants robbed and attempted to rape Pontbriant. As the prosecution argued to the jury, it is reasonable to infer from the circumstance that defendants committed these crimes that they possessed the intent to do so at the time they entered Pontbriant’s house. A rational juror reasonably could find that a purely social visit to a friend’s house did not spontaneously lead to the attempted rape, robbery, and brutal murder of the hostess. The circumstance that Pontbriant may have willingly invited defendants into her house is of no consequence. (Wallace, supra, 44 Cal.4th at p. 1060 [“The crime of *168 burglary, however, requires only an entry with the requisite intent; the entry need not be accomplished by force.” (italics omitted)].) The circumstance that defendants apparently waited some period of time prior to attacking Pontbriant, during which the three of them consumed alcoholic beverages, could be viewed as an attempt to make defendants’ task easier by reducing the possibility that Pontbriant would be able to resist. Further, Letner’s participation in the telephone calls to Edward Burdette and Kathy Coronado could indicate he was not concerned whether they in turn eventually would inform the police he had been present in Pontbriant’s house, because he believed either that the person with whom Pontbriant was speaking on the telephone when defendants first arrived knew that Letner was there, or that, if the police were to begin looking for him, he nonetheless would be able to escape to Iowa. Alternatively, the jury reasonably could find that Letner simply joined in the telephone calls in anger or on impulse, without reflecting upon the possible consequences. In sum, as we recently observed regarding a similar challenge, “possession ... of goods stolen from the victim’s home shortly after the crimes is strong circumstantial evidence that [defendant] harbored the intent to commit larceny when he entered her home. [Citation.] Moreover, ‘[t]here is no better proof that [defendant] entered the [victim’s house] with intent to commit robbery than a showing he did in fact commit robbery after his entry.’ [Citation.]” (People v. Abilez (2007) 41 Cal.4th 472, 508 [ 61 Cal.Rptr.3d 526 , 161 P.3d 58 ] (Abilez).) Accordingly, we conclude the evidence was sufficient to support the jury’s finding that defendants committed a burglary and intentionally killed Pontbriant while engaged in the burglary.

d. Premeditation and Deliberation

Defendants also challenge the sufficiency of the evidence supporting the jury’s first degree murder verdicts, to the extent these verdicts were based upon a theory of premeditated and deliberated murder. 22 “ ‘We need not consider this claim since reversal is not necessary when the court can determine from the record that the verdict rested on a theory which is supported by sufficient evidence. [Citation.]’ [Citation.] We properly can, and do, make that determination here.” (Rundle, supra, 43 Cal.4th at p. 141.) As discussed, ante, the evidence was sufficient to support a finding that defendants entered Pontbriant’s residence with the intent to commit a felony therein, robbed her and attempted to rape her, and that, pursuant to section 189, Pontbriant was murdered in the course of these crimes. The jury also found true the special circumstance allegations that defendants murdered Pontbriant while engaged in committing or attempting to commit each of the underlying felonies, which indicates the jury necessarily found the elements of first *169 degree felony murder had been proved. Therefore, we need not decide whether, in addition, there was sufficient evidence to prove that Pontbriant’s murder was the result of premeditation and deliberation. (43 Cal.4th at p. 141.)

Defendants also contend that even if there was sufficient evidence of premeditation and deliberation, their first degree murder convictions should be reversed because the jury may have relied upon the felony-murder theory of liability, which, they assert, was not supported by sufficient evidence. We have concluded, however, that felony-murder liability was established by sufficient evidence.

e. Mental State for Special Circumstances (Tobin)

Tobin contends that as a matter of California law, there can be no special circumstance finding based upon a defendant’s having killed the victim during an attempted rape. He asserts that such a killing cannot further the purpose of committing a rape, because it is legally impossible to rape a dead person. We recently rejected the identical claim in Rundle, supra, 43 Cal.4th at pages 155-156, and have no reason to revisit that conclusion.

3. Asserted Prosecutorial Misconduct

Defendants claim several instances of asserted guilt phase prosecutorial misconduct denied them their rights under both the state and federal Constitutions. As we shall explain, no misconduct by the prosecutor warrants reversing their convictions and sentences. “Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’ [Citation.]” (People v. Riggs (2008) 44 Cal.4th 248, 298 [ 79 Cal.Rptr.3d 648 , 187 P.3d 363 ] (Riggs).)

Defendants did not object to all of the instances of asserted misconduct they raise on appeal. “ ‘ “[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]” ’ [Citation.]” *170 (Riggs, supra, 44 Cal.4th at p. 298.) We previously have rejected the notion, advanced by defendants, that the trial court had a responsibility to intervene on their behalf, such that the failure to object and request an admonition regarding each alleged act of misconduct is excused. (Ibid.) Defendants present no compelling reason to revisit that decision. We shall address on a claim-by-claim basis defendants’ contentions that their failure to object to a particular instance of asserted misconduct and to request an admonition is excused because their having done so would have been futile or ineffective. “Because, as discussed below, we conclude that the prosecutor committed no prejudicial misconduct, it follows there was no pervasive misconduct that otherwise excused defendants’] failure to object to the individual instances of misconduct” they raise on appeal. (Ibid.)

a. Cross-examination of Tobin Regarding the Term “Instant Death” (Letner, Tobin)

During the prosecution’s case-in-chief, the prosecutor notified the trial court that she intended to call as witnesses two persons who knew defendants in Napa in the late 1970’s. These witnesses would testify that defendants spoke of and were seen practicing a martial arts technique causing the “instant death” of a victim by stabbing the sides and base of the victim’s neck. The prosecutor contended this testimony should be admitted as circumstantial evidence tending to demonstrate that defendants murdered Pontbriant, because her wounds could have been inflicted by someone attempting to cause this manner of “instant death.” Defendants objected on the ground that, pursuant to section 352 of the Evidence Code, the probative value of the testimony on the subject of “instant death” would be grossly outweighed by the risk of undue prejudice and the consumption of time, because of (1) the prejudicial nature of the testimony indicating that defendants practiced such acts, (2) the remoteness of the events to which the witnesses would testify, and (3) the circumstance that these witnesses were “enemies” of defendants and therefore were of questionable credibility, necessitating essentially a trial within a trial concerning the various incidents that caused the rifts between them and defendants. The trial court sustained defendants’ objections to the testimony, finding that the evidence would tend to establish defendants had “a murderer’s disposition,” and that the method was not so sufficiently unique that the evidence was of particularly compelling probative value in establishing the identity of Pontbriant’s killer.

Later, during Tobin’s defense case, after he had testified he knew nothing concerning Pontbriant’s murder, the prosecutor asked two questions during cross-examination regarding the term “instant death.” The following exchange occurred:

*171 “Q [by prosecutor]: There is a term in karate that is known as instant death, isn’t there?

“[Objection by Tobin’s attorney]: Your Honor, I’m going to object to the question.

“The Court: Overruled.

“[Tobin]: I don’t know if there is or not.

“Q [by prosecutor]: You have never heard of instant death being caused by sticking someone in the side of their neck at or near major arteries or veins?”

Counsel for both defendants again objected, and the trial court recessed the proceedings to discuss the matter outside the presence of the jury.

Defense counsel argued that the prosecutor was engaging in “subterfuge,” in an attempt to render admissible the previously excluded testimony from the two witnesses concerning defendants’ familiarity with the instant death technique, by eliciting a denial from Tobin that then would be impeached by the witnesses. The prosecutor argued that the trial court’s prior ruling concerned evidence proposed to be presented as part of the prosecution’s case-in-chief, and that the context in which the admissibility of the evidence would be determined had shifted once Tobin testified he had nothing to do with the murder. The trial court, however, restated its finding that Pontbriant’s wounds were not particularly unusual, and that therefore questions concerning “instant death” would not be permitted. At the conclusion of the short recess, the trial court admonished the jury that the statements of the attorneys, including their questions, were not evidence, that the jury should not assume the truth of anything insinuated in a question, and that if an objection to a question was sustained, the jury should not guess at what the answer might have been. The trial court, however, did not strike Tobin’s answer to the first question—there was no request by defendants that it do so. The prosecutor then moved on to a different subject.

During the prosecution’s opening argument at the conclusion of the guilt phase, in the course of asserting that the nature of the wounds to Pontbriant’s neck showed that the murder was “a calculated killing,” the prosecutor stated: “The location of these stab wounds, as testified to through Dr. Walter, were placed very strategically, almost over vital blood vessels and arteries that supply blood and take away blood from the head. That is something known to cause what’s called ‘instant death,’ if the arteries are actually stricken. [(j[] And then we had the testimony about the spinal cord. At that location in the *172 neck it’s—it’s a very vital, vital area. And one that can also cause death very quickly.” Neither defendant objected to the prosecutor’s statements.

On appeal, defendants contend the prosecutor committed misconduct in questioning Tobin concerning the “instant death” technique and then mentioning that term during argument to the jury. We conclude there was no misconduct warranting reversal of the judgments.

Assuming that defendants’ assertions during trial that the prosecutor was

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