Full opinion text
Opinion EAGLESON, J. A jury convicted Keith Daniel Williams of three counts of first degree murder (Pen. Code, §§ 187, 189) with special circumstances (§ 190.2) and use of a firearm (§ 12022.5). The same jury found that he was sane during the commission of the offenses and determined that death was the appropriate penalty for each offense (§ 190). This appeal is automatic (§ 1239). A petition for writ of habeas corpus was filed in conjunction with the appeal, and an order to show cause issued thereon. Upon careful examination of each of defendant’s numerous arguments, we find no prejudicial error and affirm the conviction. We also conclude that appellant has failed to establish either on the basis of the appellate record or by evidence offered in support of his petition for writ of habeas corpus that his trial counsel failed to provide constitutionally adequate representation. We shall therefore affirm the judgment of conviction, as modified to reflect a single multiple-murder special circumstance, and penalty. The petition for writ of habeas corpus will be denied. Defendant was charged by information in count I with the murder of Miguel Vargas. The information alleged that the killing was willful, deliberate, and premeditated; was committed with express malice during the commission of robbery (§ 211); and that defendant used a firearm in committing the offense. It was also alleged that three special circumstances existed in that defendant also murdered Salvador Vargas and Lourdes Meza, and committed the murder of Miguel Vargas willfully with deliberation and premeditation during a robbery. The jury found each allegation to be true. In count II defendant was charged with the murder of Salvador Vargas. The additional allegations differed only in the first special circumstance, that charging also the murder of Miguel Vargas. Again the jury found each allegation to be true. Count III charged defendant with the willful, deliberate and premeditated murder of Lourdes Meza, alleging that this murder had been committed with express malice and during the commission of robbery, kidnapping (§ 207), and rape (§ 261), with use of a firearm. The four special circumstances alleged were that defendant also murdered Miguel and Salvador Vargas, and committed the murder of Lourdes Meza during a rape and a kidnapping. The jury found that the offense did not occur during a rape, rejected the rape special circumstance, and otherwise found the allegations of count III to be true. In a multifaceted attack on the conviction and sentence which we summarize here and address in detail below, defendant argues that the trial court erroneously admitted evidence of his prior criminal record and other criminal conduct; that lay opinion evidence was admitted erroneously; and that he received constitutionally inadequate assistance by his appointed counsel during the guilt, sanity, and penalty phases of the trial. He also argues that he was improperly charged with and convicted of more than one “multiple-murder” special circumstance, and that the robbery and kidnapping special circumstances must be set side because he was not separately charged with and convicted of those offenses. In his attack on the finding that he was sane at the time of the commission of the offense, defendant claims that the court’s instructions to the jury were confusing and erroneous. As to the penalty trial he alleges that he was prejudiced by prosecutorial misconduct; that the court’s instructions were not adequate; that error occurred in the appointment of psychiatrists and in permitting the jury to consider various evidence admitted during the guilt and sanity phases of the trial; that the trial court erred in declining to modify the penalty; and that the death penalty is disproportionate as a matter of law. In addition he argues that the 1977 death penalty law, under which he was tried, convicted, and sentenced, is unconstitutional under the Eighth and Fourteenth Amendments to the United States Constitution. Guilt Phase Evidence With the exception of conflicting evidence as to the quantity of alcohol and drugs defendant had consumed and its possible effect on his mental state at the time of the homicides, the evidence is essentially undisputed. The events leading up to and most relevant to the homicides commenced during the latter half of September 1978 when defendant and Robert Tyson (hereafter identified as Tyson) stole a .22 Beretta pistol and several other items from their employer of one week, Terry Judd, in Coming. On Saturday, September 30, 1978, they robbed a couple who had parked their camper in the John Street Park in Modesto, taking from them the camper and its contents. After the robbery they drove the camper to the Tyson residence near Galt where the contents were removed. Some were sold on Sunday. On Monday, October 2, appellant drove the camper to the area of Lake Camanche and burned it. Tyson and Karen Tyson, (hereafter identified as Karen) accompanied him in another vehicle. Among the items in the camper was a checkbook. The other valuables taken from the camper were kept at the Tyson residence and offered for sale there at a yard sale conducted by Karen over the four-day period from October 4 through October 7. Miguel Vargas and Lourdes Meza, who lived with Miguel on a dairy ranch near Merced, attended the yard sale on Friday, October 6. Notwithstanding their limited English and defendant’s limited Spanish, defendant conveyed to Miguel an interest in purchasing Miguel’s car. Defendant road-tested the car and noted that the registration was in the glove compartment. No purchase was agreed upon at that time. Defendant told Tyson and Karen that it would have been easy to load Miguel and Lourdes into the trunk of the car and take them to a field. Miguel and Lourdes returned to the Tyson home on Saturday and completed the sale. Defendant paid for the car with a $1,500 check written on one of the checks stolen earlier in the Modesto robbery. Defendant took possession of the car, but Miguel retained possession of the registration slip with the understanding that it would be turned over to defendant when the check cleared on Monday. Defendant gave Miguel a receipt for the car. Later that day Miguel returned to the Tyson home and offered to buy the Beretta from defendant. At that time Miguel displayed a “wad” of bills from which he proposed to make payment. Defendant noted that Miguel had the check in his shirt pocket. On Sunday, October 8, defendant and Tyson drove to the home which Miguel and Lourdes shared with Miguel’s cousin Salvador Vargas. Their purpose was to rob, and they had discussed killing Miguel and Lourdes. Defendant intended to take the money he had seen in Miguel’s possession, and to take any other items that might be pawned. He also planned to obtain the registration slip and to retrieve both the check and the receipt defendant had given for the car. Defendant, armed with the fully loaded 10-shot Beretta, and Tyson, armed with a 9-shot semiautomatic .22 Storm-Luger pistol, arrived at the Vargas home in the early evening only to find a complicating factor—guests were visiting. Leaving their weapons in the car they joined the group in the house: Miguel, Lourdes, and their three visitors. Salvador had retired to an upstairs bedroom as he was scheduled to work at 11 p.m. Defendant spoke of the car’s excellent performance and mileage, assured Miguel that the check which Miguel still had in his pocket was good, and said he would meet Miguel at the bank on Monday to help him cash the check. The visitors soon departed. Defendant and Tyson returned to their car where they retrieved their guns. Miguel had again expressed interest in purchasing the Beretta. When they reentered defendant held the Beretta at Miguel’s neck. Miguel thought he was joking and Tyson pulled defendant’s arm away, explaining to defendant later that his own gun was not loaded, and that he had seen Salvador on the second floor. Defendant then suggested they all go out together for a drink, but Miguel declined because he had to work. Tyson proposed that he and defendant get some beer and bring it to the house. Defendant left with Tyson. Tyson testified that he had hoped defendant would abandon his plan once they left the house, but defendant did not do so. Rather, he told Tyson that he “wanted to take him out right then.” Defendant then outlined his scheme telling Tyson that Tyson was to make Miguel lie down while defendant took care of Salvador upstairs. The pair then returned to the Vargas house. Miguel opened the door. Miguel again believed defendant was joking when defendant ordered him to lie down, but he did so when Tyson repeated the command. Defendant ran up the stairs where he yelled at Salvador and Lourdes to be quiet. He then directed Tyson to bring Miguel upstairs. When Tyson did so he saw Salvador lying on the floor. Defendant ordered Miguel into a bedroom and told him to lie down. He then directed Tyson to take Lourdes downstairs and shoot her. Tyson took her to a downstairs bedroom. He heard defendant threaten to shoot Miguel and Salvador if they did not tell him where their money was. He then heard four shots. Defendant described the homicides in his testimony on cross-examination, acknowledging both that the purpose of the trip to Merced had been to rob Miguel and Lourdes, and that he had discussed killing them. He shot Miguel, after hollering at him about the money, when Miguel turned with a gun and lunged at defendant. Miguel did not point his gun at defendant and seemed to be trying to escape. Although other evidence established that the bodies of Miguel and Salvador were found inside the room and had been shot in the location where found, defendant testified that he shot Miguel at the door to the bedroom, and then shot Salvador as Salvador began crawling as if to enter the bedroom. He shot Salvador twice in the head and then shot Miguel, who was moving, a second time. He then took the gun that Miguel still held in his hand, as well as the check and receipt for the auto which were in Miguel’s shirt pocket, and a second gun that was under a pillow on the bed. Defendant ordered Tyson upstairs to view the bodies telling Tyson the carnage occurred because Tyson had disobeyed defendant’s order to disarm Miguel. Defendant took Lourdes’s wallet from a kitchen table, and left the house with Tyson and Lourdes. He testified that he drove to an unpopulated area near Sonora for the purpose of killing Lourdes. On the way defendant had intercourse with her. Tyson remained in the car while defendant took her into a field saying that he only wanted to have intercourse with her again. There, in the early morning hours of Monday, October 9, 1978, he shot her four times. When he returned to the car he said to Tyson: “I f. . .d her . . . and I killed [her], I love to kill.” He then ordered Tyson to retrieve some beer cans Tyson had thrown out of the car so there would be no fingerprints. The bodies of Miguel and Salvador were discovered on Monday morning. Tyson surrendered on October 13, 1978, and led authorities to the location near Sonora where the body of Lourdes was found. Defendant was arrested in Arizona in late November and returned to Merced for trial. While in custody in Arizona he confessed. The defense was diminished capacity resulting primarily from a prolonged course of drug and alcohol abuse. Defendant’s mother described symptoms of illness suffered by defendant in his early childhood which she believed were indicative of epilepsy. She testified that he also suffered a head injury when he was 15 which caused a concussion and unconsciousness. After his marriage he drank heavily, and in 1972 she became aware of his use of drugs, including mescaline, “acid,” marijuana, and “speed.” In October 1978 she found three or four needles and a burned spoon in her home in Coming where defendant had been staying in September during her absence. Defendant corroborated his mother’s testimony regarding his use of alcohol and controlled substances. He began drinking alcoholic beverages when he was 14 or 15 years old, consuming them whenever the opportunity presented itself. His consumption increased when he left his mother’s home at age 19. He drank whatever was available, usually wine or beer, and sometimes stole from a liquor store. His daily consumption was as high as a case of 24 cans of beer, and he was also “strung out” on heroin. He would often drink a pint of tequila before or with the beer. The first period during which petitioner was unable to obtain alcohol was when he was confined to the Deuel Vocational Institution at Tracy at age 19. Prison-made “pruno” was available, but it made defendant sick. He was confined for 18 months and began drinking again as soon as he was released. His wife brought alcohol to him when she came to pick him up. He continued to drink except when institutionalized. His first commitment was that to Deuel Vocational Institution for theft of a motorcycle, the next was to the federal penitentiary at Lompoc for interstate transportation of a stolen car. He was recommitted for parole violation after a 1972 assault with a deadly weapon. While at the farmhouse in Merced on October 8 he drank a straight shot of whiskey from a glass and had a beer with it. Just prior to that trip he had consumed two or three fifths of alcohol. In addition to his consumption of alcohol, at age 14 or 15, defendant began “chipping” heroin whenever he could get it. Alcohol “mellowed” defendant. Heroin put him in a dream-like state in which he did not let things bother him. Defendant testified that he also used mescaline, “acid,” Methedrine, Benzedrine, cocaine, and marijuana. He injected speed directly into his veins. When he ate mescaline he would go on an eight-hour trip of hallucination. In Corning in September 1978 he began using “speed,” heroin, barbiturates, Valium, and marijuana. Defendant described in some detail the events leading up to the homicides, commencing with the robbery at the Modesto park, explaining that on that day he had used morphine and Valium in the morning, smoked marijuana, and consumed diet pills. On Friday, October 6, he had again used heroin, morphine, and Valium. He had also smoked marijuana, and had drunk two to three 6-packs of beer as well as two or three glasses of tequila. In the evening he had LSD. On Saturday he had used less, but had shared a bag of heroin with his former wife, Cindy, had drunk wine, ingested Valium, injected morphine, and smoked marijuana. Prior to 4 p.m. on Sunday he used a bag of heroin. With the money from the forged checks that had been cashed in Stockton he purchased more heroin, but it proved to be “bunk.” He injected morphine twice, using one cc each time. Before leaving for Merced he drank approximately eight cans of beer, and smoked marijuana. On the way to Merced he ate four “blue” Valium tablets, consumed another eight cans of beer, and at the Vargas home drank a glass of whiskey. Later that evening, on the way to Sonora, he drank two cans of beer. In response to his attorney’s questions about the pattern of drug use in his life, defendant testified that he had used drugs continuously from the time that he was 14 or 15 years old, including the time during which he was in prison where it was easier to obtain them than on the street. On cross-examination he acknowledged that he remembered his prior criminal acts of stealing a motorcycle, transporting a car across state lines, assault with a deadly weapon, and teenage thefts of alcohol. No objection was made to any of these questions other than to that about the motorcycle theft. An objection that the question assumed a fact not in evidence was overruled. Defendant also acknowledged that he had escaped from a halfway house, to which he had been transferred prior to an anticipated parole from prison in July 1978. While in prison he had been withdrawn from drugs. Defendant admitted taking the Beretta from a workshop at the Judd residence. He also acknowledged that he and Tyson had taken a pellet rifle and tools, and testified that at that time he was using drugs. Dr. Brannan, a psychiatrist who had been appointed to determine defendant’s sanity at the time of the offense and his competency to stand trial, was also called as an expert to give his opinion as to defendant’s mental capacity. His testimony did not prove helpful to the defense, however. In Dr. Brannan’s opinion defendant did not suffer from any mental illness that would preclude him from having the intent to rob or kidnap for the purpose of robbery. The witness could not determine, based on his examination, the extent to which defendant might have been under the influence of drugs and alcohol at the time of the offenses, or whether defendant actually had the ability to premeditate, deliberate, intend to kill and to harbor malice. The witness testified, however, that drugs and alcohol, or a combination thereof, could have a tendency to affect a person’s ability to have those mental states, but that a person who used drugs all of the time would have a higher tolerance. The peak of drug intoxication would occur approximately four to six hours after intake. The witness was given a hypothetical of a person who consumed an eight-ounce glass of eighty-six proof whiskey within thirty minutes to an hour prior to a killing at 8 p.m. and two beers at about the same time; six 12-ounce cans of beer and four Valium tablets within an hour before that; and in four hours prior to 4 p.m. had smoked three marijuana cigarettes, drunk eight cans of beer, injected a cc of morphine in a minimum solution; and on the preceding night had eaten twelve Valium blues and injected morphine, as well as an eighth of a teaspoon of street heroin. The witness opined that the person would be sleepy, slurred in speech, have an irregular walk, and be drowsy. He might feel sleepy and euphoric from the morphine, depending on the history of use. The doctor believed it would be unusual for a person to have physical and mental effects of that nature without affecting the person’s ability to form the specific intent elements of crime. In the opinion of the witness a person who had ingested the hypothetical quantity of drugs, but was able to rush upstairs, walk and talk rapidly without slurring his speech, would not be too intoxicated on drugs. If his thinking ability was clouded so that he did not think rationally and clearly, however, his ability to plan and premeditate would also be clouded or impaired to some extent, and he would not be able to premeditate, deliberate, and harbor malice. In the opinion of the witness, defendant did not suffer from any chronic alcohol illnesses that affected his brain although he might be an alcoholic. Dr. Brannan believed that defendant was of at least average intelligence. He testified that a person who committed an offense while heavily under the influence of drugs would not be expected to have recall or memory of the details, nor would he be expected to successfully operate a vehicle at high speeds over a considerable distance. By history defendant was a sociopath who would be capable of killing three people without being under the influence of drugs. Defendant had shown no remorse during the examination. Based on what defendant said and what the witness had heard in court, Dr. Brannan believed that defendant could have intended to kill. Dr. Brannan testified on recross, without objection, that his examination report reflected that defendant had told him that he “rejects authority and always will. He does not go for this rehabilitation bullshit to use his words. He goes to the same code of ethics whether he’s inside or outside of jail. He’s very prejudiced against Mexicans.” Guilt Phase 1. Admission of Evidence of Uncharged Crimes and of Prior Convictions Defendant asserts error in the admission of evidence of the theft of property from Terry Judd in Corning, and of the camper robbery at the John Street Park in Modesto, the threat to kill the victims of the robbery, and the subsequent arson of the camper. He argues that the evidence was not admissible under Evidence Code section 1101, subdivision (b), to provide intent, motive, or premeditation, and was not admissible to show his state of mind, or to rebut his diminished capacity defense. Defendant also argues that evidence of his prior criminal history—the motorcycle theft, assault with a deadly weapon, transportation of a stolen vehicle, and escape from custody—was not properly admitted for impeachment and was not admissible to rebut his diminished capacity defense. We address first the admissibility of evidence of uncharged crimes. Because evidence of other criminal conduct is inherently prejudicial special rules govern admissibility. Evidence of an uncharged offense is among the statutory exceptions to the rule that all relevant evidence is admissible. (Evid. Code, § 351.) As character evidence in the form of evidence of specific instances of unlawful conduct it is made inadmissible to prove the defendant’s conduct on the instance of the charged offense by subdivision (a) of Evidence Code section 1101. Subdivision (b) of that section provides a limited basis for admission, however: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.” Even when admissible, evidence of prior criminal conduct must be subjected to special scrutiny to insure that its probative value outweighs the prejudice inherent in the possibility that a jury may consider uncharged criminal conduct as evidence of the defendant’s propensity to commit crimes. (Evid. Code, § 352; People v. Schader (1969) 71 Cal.2d 761, 772 [80 Cal.Rptr. 1, 457 P.2d 841].) The considerations governing admission of evidence of uncharged crimes were examined in People v. Thompson (1980) 27 Cal.3d 303, 314-316 [165 Cal.Rptr. 289, 611 P.2d 883]. “The admission of any evidence that involves crimes other than those for which a defendant is being tried has a ‘highly inflammatory and prejudicial effect’ on the trier of fact. This court has repeatedly warned that the admissibility of this type of evidence must be ‘scrutinized with great care.’ ‘[A] closely reasoned analysis’ of the pertinent factors must be undertaken before a determination can be made of its admissibility. “Evidence of an uncharged offense is usually sought to be admitted as ‘evidence that, if found to be true, proves a fact from which an inference of another fact may be drawn.’ (See CALJIC No. 2.00 (1979 Revision) (4th ed. 1979).) As with other types of circumstantial evidence, its admissibility depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citations.] “In order to satisfy the requirement of materiality, the fact sought to be proved may be either an ultimate fact in the proceeding or an intermediate fact ‘from which such ultimate fact[ ] may be presumed or inferred.’ [Citation.] Further, the ultimate fact to be proved must be ‘actually in dispute.’ [Citation.] If an accused has not ‘actually placed that [ultimate fact] in issue,’ evidence of uncharged offenses may not be admitted to prove it. (People v. Thomas (1978) 20 Cal.3d 457, 467 [143 Cal.Rptr. 215, 573 P.2d 433]; see also People v. Antick (1975) 15 Cal.3d 79, 93 [123 Cal.Rptr. 475, 539 P.2d 43]; . . .) The fact that an accused has pleaded not guilty is not sufficient to place the elements of the crimes charged against him ‘in issue.’ (People v. Schader, supra, 71 Cal.2d 761, 775-776, fn. 13.) “In ascertaining whether evidence of other crimes has a tendency to prove the material fact, the court must first determine whether or not the uncharged offense serves ‘logically, naturally, and by reasonable inference’ to establish that fact. [Citations.] The court ‘must look behind the label describing the kind of similarity or relation between the [uncharged] offense and the charged offense; it must examine the precise elements of similarity between the offenses with respect to the issue for which the evidence is proffered and satisfy itself that each link of the chain of inference between the former and the latter is reasonably strong.’ [Citation.] If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded. [Citations.]” (Italics in original, fns. omitted.) With these guidelines in mind, we examine the specific items of evidence to which this claim is directed. A. The Judd Theft Terry Judd testified that on Saturday afternoon, September 30, he noticed that his Beretta semiautomatic, a rifle, a pellet gun, a router, a hammer, and a reciprocating saw were missing from the shed in his shop area. The objection was to the relevancy of the evidence to an issue in the trial. Although the objection did not specify that, as prior crimes evidence, the theft was inadmissible under Evidence Code sections 352 and 1101, subdivision (b), unless it satisfied the admissibility criteria summarized in Thompson, supra, 27 Cal.3d 303, we believe that it was sufliciently specific to encompass a Thompson objection, i.e., that the People were offering evidence of uncharged criminal conduct by the defendant, that defendant had not put in issue any element of the offense or issue necessary to the People’s case-in-chief to which that crime was relevant, and that any relevance the evidence might have if admissible was outweighed by its inherently prejudicial nature. A verdict may not be set aside on the basis of the erroneous admission of evidence, even if prejudicial, unless the party asserting error has preserved the question by a timely and specific objection to the admission of the evidence, or by a motion to strike or exclude the evidence. (Evid. Code, § 353; People v. Green (1980) 27 Cal.3d 1, 22, fn. 8 [164 Cal.Rptr. 1, 609 P.2d 468]; see also People v. Collie (1981) 30 Cal.3d 43, 49, fn. 1 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776].) A general objection on grounds of relevancy is not adequate to preserve an issue with respect to admission of other-crimes evidence for appeal. (People v. McDaniel (1976) 16 Cal.3d 156, 176 [127 Cal.Rptr. 467, 545 P.2d 843].) If the defendant objects that the evidence to be offered will show the commission of an uncharged offense, the People bear the burden of demonstrating admissibility. (People v. Schader, supra, 71 Cal.2d 761, 772, fn. 4.) While no particular form of objection is required (People v. Gibson (1976) 56 Cal.App.3d 119, 137 [128 Cal.Rptr. 302]), the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility. (See Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 776 [87 P. 622]; Cramer v. Morrison (1979) 88 Cal.App.3d 873, 886 [153 Cal.Rptr. 865].) Although defendant did not identify the specific nature of his objection or state that the evidence would show an uncharged crime, and the People made no offer of proof, the prosecutor’s opening statement to the jury had already made clear the nature of the evidence to be introduced. The circumstances in which an objection is made should be considered in determining its sufficiency. (See People v. Golden (1961) 55 Cal.2d 358, 369-370 [11 Cal.Rptr. 80, 359 P.2d 448].) When, as here, the People have already made it clear that the evidence will show the commission of an uncharged crime, and the defendant objects on grounds that the People have not shown that the evidence is relevant to any issue in the case, the objection is sufficient to alert the court that admissibility must be determined under the criteria of Evidence Code sections 1101, subdivision (b), and 353, and People v. Thompson, supra, 27 Cal.3d 303, 314-318. The People now argue that the evidence of the Judd thefts was relevant to establish intent, an element of the charged offenses put in issue by defendant’s anticipated diminished capacity defense. Under the People’s theory the Judd thefts marked the beginning of a crime spree that included the camper robbery and culminated in the murders. They suggest that evidence of defendant’s need for money and the series of acts designed to obtain money, including the Judd theft and the camper robbery, demonstrated that the defendant’s drug and alcohol intoxication did not affect his ability to engage in purposeful conduct—that is, if he was mad there was method to his madness. Alternatively they suggest that the evidence was admissible to show a common scheme or plan, arguing that as evidence of a larger plan of which these offenses were part it was unnecessary to show that the offenses were similar. Without question defendant’s mental state was in issue during this trial. He was charged with murder in which malice is an element. (§§ 187, 188.) The information alleged that the murder was of the first degree in that it was willful, deliberate, premeditated, and that it was committed with express malice, i.e., that an express intent to kill was present. (§ 188.) Each of these specific mental states is an element of the offense on which the People bear the burden of proof beyond a reasonable doubt. (§ 1096; Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881]; In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068]; People v. Montalvo, supra, 4 Cal.3d 328, 333.) In addition it was alleged that the murders had been committed during the commission of a robbery, and that the Meza murder had also been committed during a rape and kidnapping. The elements of robbery include a specific mental state—the intent to deprive another of his property (People v. Green, supra, 27 Cal.3d 1, 54; People v. Butler (1967) 65 Cal.2d 569, 572-573 [55 Cal.Rptr. 511, 421 P.2d 703])— while any of these special circumstances could be satisfied by evidence that the murders were intentional and occurred during an attempt to commit those offenses. The specific intent to commit the target offense is an element of an attempt. (People v. Martinez (1980) 105 Cal.App.3d 938, 942 [165 Cal.Rptr. 11].) To meet their burden of proof it was necessary that the People introduce evidence of all of these specific mental elements of the charged offenses and special circumstances. Not only were these elements in issue by virtue of the charges, but it was clear that the People knew that defendant contemplated a diminished capacity defense based on mental defect or deficiency, and drug and alcohol intoxication, any of which could negate the specific mental elements of the charged offenses and special circumstances. However, no evidence was offered to suggest that defendant had ingested drugs and/or alcohol at the time of the Judd thefts, or that if he had used such substances at those times, the amount was similar to the amount ingested in the hours prior to the charged offenses. Thus, if the proposed basis for admissibility was to demonstrate that defendant’s tolerance to drugs was so high that his capacity to achieve the specific mental states that were elements of the charged offenses would not have been affected by his ingestion of large quantities of alcohol and drugs at the time they were committed, the argument fails. There was simply no evidence that defendant’s mental state was the same at the time he committed the theft as it was at the time the murders were committed, or that if it was the same, it was so notwithstanding the ingestion of similar quantities of drugs and alcohol at both times. The probative value of the evidence was minimal and was clearly outweighed by its potential prejudicial effect. The conclusion does not differ if a common scheme or plan is offered as the basis for admission of the Judd thefts. It is not enough to identify an admissible purpose such as common plan or scheme as the People now do. They must also show that such a plan actually existed, that the uncharged offense was a part thereof (People v. Tassell, supra, 36 Cal.3d 77, 84), that the evidence of the uncharged offense is not cumulative, and that the evidence is sufficiently probative to outweigh its prejudicial effect. (People v. Alcala, supra, 36 Cal.3d 604, 631-632; People v. Thompson, supra, 27 Cal.3d 303, 318; People v. Guerrero (1976) 16 Cal.3d 719, 724 [129 Cal.Rptr. 166, 548 P.2d 366]; People v. Schader, supra, 71 Cal.2d 761, 774-775.) The evidence does not support a conclusion that defendant was engaged in a series of offenses that were part and parcel of “a single conception or plot,” or “grand design.” (People v. Tassell, supra, 36 Cal.3d at p. 84.) It establishes nothing more than a series of random crimes directed against targets of opportunity and committed whenever financial necessity dictated. Furthermore, even were the Judd theft part of a larger planned course of criminal conduct, this common scheme evidence is not shown to have been relevant to an issue in the case. The ability to “engage in purposeful conduct,” the issue to which the People argue the evidence was relevant, was not an issue in the People’s case-in-chief. Such an ability could not establish any of the mental elements of the crimes and/or special circumstances charged in the information. The ability to engage in “purposeful conduct” would be relevant only to rebut a defense of drug- or alcohol-induced unconsciousness. (See People v. Conley (1966) 64 Cal.2d 310, 323-324 [49 Cal.Rptr. 815, 411 P.2d 911].) The People may not in their case-in-chief anticipate fanciful defenses in order to create an issue as a basis for introduction of highly prejudicial evidence of uncharged offenses. (People v. Schader, supra, 71 Cal.2d 761, 775-776, fn. 13.) Because we shall conclude that the evidence of the camper robbery and arson was admissible, however, and because the other evidence of guilt was overwhelming, we are satisfied that the erroneous admission of evidence regarding the Judd theft was not prejudicial. B. The Camper Robbery/Arson Although appellant now argues that evidence of the camper robbery was not relevant to any issue in the case, he did not object to admission on this ground. The People introduced the evidence through the testimony of Karen Tyson to whom appellant had described the incident in explaining to her how he and Robert Tyson had obtained the camper which they brought to her home. The only defense objection to admission of evidence regarding the theft of the camper was to the testimony by Karen Tyson that defendant had admitted his participation to her. The objection was based on the absence of evidence other than defendant’s out-of-court statement to establish the corpus delicti of that offense. The evidence was offered by the People to show defendant’s state of mind, intent, and motive when the homicides were committed, or alternatively to prove identity of the killer by showing a common scheme or plan. The trial court overruled the objection before the witness was permitted to answer but gave cautionary instructions. These instructions advised the jury that although the evidence to be received might show that defendant had committed a crime other than that for which he was on trial, it must not be used to prove he had a bad character or disposition to commit crimes. The court also explained the limited purpose of showing the identity of the person who committed the charged crimes, the intent which was an element of those crimes, and a characteristic method, plan, or scheme in committing the charged offenses. The People’s theories of admissibility of evidence of the Judd and camper offenses were, first, that they and the homicides were all committed during a crime “spree” with the intent to steal and had a common motive to obtain money because defendant and Tyson were unemployed, had no source of income and were without funds, and, second, that the evidence was relevant to defendant’s intent in killing Salvador, Miguel and Lourdes. The evidence would show both an intent to commit robbery and that notwithstanding the anticipated defense of drug and alcohol intoxication defendant was capable of having the intent to steal and/or to kill, as well as harboring malice, and could premeditate and deliberate. The People now concede that the corpus delicti rule is applicable to evidence of uncharged crimes introduced to prove the commission of those crimes. (People v. Robertson (1982) 33 Cal.3d 21, 41 [188 Cal.Rptr. 77, 655 P.2d 279].) We agree, however, that the corpus delicti rule was satisfied and there was no error in admitting the evidence of the camper robbery. The corpus delicti was established independently of Karen’s testimony regarding defendant’s extrajudicial admission. Tyson described in detail the events at the John Street Park. Although he was an accomplice, no further corroboration of his testimony was required since the camper robbery was not a charged offense. (People v. Belton, supra, 23 Cal.3d 516, 523.) The order of proof of the corpus delicti of an offense is within the discretion of the trial judge. (§§ 1093, 1094; Evid. Code, § 320; People v. Amaya (1952) 40 Cal.2d 70, 76 [251 P.2d 324]; People v. Mehaffey (1948) 32 Cal.2d 535, 547-548 [197 P.2d 12].) Although the court here may not have exercised that discretion, defendant does not suggest, and we do not perceive, a basis on which to conclude that the admission of Karen’s testimony prior to that of Tyson was prejudicial. The court’s possible failure to admit the evidence under this rationale is irrelevant. When evidence is properly received the basis for the court’s ruling is not material. (People v. Schader, supra, 71 Cal.2d 761, 777; Wilcox v. Berry (1948) 32 Cal.2d 189, 192 [195 P.2d 414].) Inasmuch as there was no error in admitting evidence of the camper robbery, defendant’s claim that the evidence should have been excluded on grounds other than those put forward by counsel in his objection may be considered only in the context of his claim that counsel’s failure to object on other grounds demonstrates ineffective representation. Whether counsel afforded constitutionally adequate assistance is a topic to be discussed separately below. In this context, however, we find no indicia of incompetence in the failure to object because the evidence was relevant to motive, and thus to both intent and identity. The check which appellant used purportedly to pay for the car purchased from Miguel was one of those stolen in the camper robbery. One acknowledged purpose for the trip to Miguel’s home in Merced was to retrieve the check. The logical conclusion is that defendant feared that he would be identified as the perpetrator of the camper robbery if the check were to be negotiated. That the check was missing when Miguel’s body was discovered is circumstantial evidence that appellant was the killer, and that he had the intent to rob and to kill when he took the check. The record on appeal does not reveal counsel’s reason for objecting only on corpus delicti grounds. However, only if a meritorious basis for an objection exists does failure to make the objection suggest possible incompetence, and only if admission of the objectionable evidence is prejudicial does that incompetence warrant reversal. Manifestly, the failure to make a meritless objection to the admission of evidence neither affects the outcome of the case nor demonstrates performance that falls below accepted standards of professional competence. The admission of evidence regarding the camper robbery does not afford a basis for relief under either theory put forward by defendant. While evidence of the arson is not as probative as that regarding the robbery and theft, it too was relevant to defendant’s identity as the killer and motive for killing, since it also demonstrated defendant’s effort to destroy evidence linking him to the robbery. We find neither error in the admission of that evidence nor a basis for holding that counsel failed to afford constitutionally adequate assistance in failing to object to its admission on the ground now suggested by defendant. C. Prior-crimes Evidence Defendant acknowledges that evidence of his criminal history was introduced by his own testimony, elicited during direct examination by his own counsel. It is axiomatic that a party who himself offers inadmissible evidence is estopped to assert error in regard thereto. (People v. Moran (1970) 1 Cal.3d 755, 762 [83 Cal.Rptr. 411, 463 P.2d 763].) He argues, however, that counsel presented this evidence only after the trial court had ruled that the prosecutor would be permitted to offer evidence of prior convictions to rebut the diminished capacity defense that was to be presented. We infer from his argument that defendant’s basis for urging error in the admission of his own testimony is that an erroneous preliminary ruling on the admissibility of evidence to be offered by the prosecution compelled him, for tactical reasons, to present the evidence he now claims was inadmissible. We need not decide here whether in such circumstances the requirement that there be a timely and specific objection to the introduction of evidence to preserve the question of admissibility for appeal applies (see Evid. Code, § 353, subd. (a); People v. Green, supra, 27 Cal.3d 1, 21-22), because an in limine ruling on admissibility is not binding if the evidence is later introduced. (See People v. Campa (1984) 36 Cal.3d 870, 885-886 [206 Cal.Rptr. 114, 686 P.2d 634]; People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735 [125 Cal.Rptr. 798, 542 P.2d 1390]; Saidi-Tabatabai v. Superior Court (1967) 253 Cal.App.2d 257, 266 [61 Cal.Rptr. 510]; People v. Beasley (1967) 250 Cal.App.2d 71, 76-77 [58 Cal.Rptr. 485].) Just as a trial court, ruling on use of priors to impeach, “is in no position to make an informed determination prior to hearing the People’s evidence” (People v. Delgado (1973) 32 Cal.App.3d 242, 252 [108 Cal.Rptr. 399]), here, where the People indicated an intent to offer evidence of prior criminal conduct to rebut appellant’s diminished capacity defense by demonstrating his mental capacity during prior crimes, the trial court could not make an informed decision at a time when it had heard none of the evidence. Contrary to appellant’s claim that the court had ruled this evidence was admissible, the court in fact properly declined to rule. Neither the record on appeal, nor the habeas corpus record supports a conclusion that defendant’s counsel introduced the evidence of prior criminal conduct only because he believed that this was tactically preferable to having it come in on rebuttal or through cross-examination of defendant. The record on appeal is susceptible of a conclusion that the evidence was offered as part of the diminished capacity defense to show that the charged offenses like those in the past were the product of brain damage, and that counsel made a tactical decision not to oppose introduction by the People of evidence regarding his past criminal conduct. That inference is confirmed by counsel’s declaration, submitted as evidence in the habeas corpus proceeding that he introduced evidence of defendant’s past criminal conduct because he believed the evidence was relevant to the diminished capacity defense he intended to offer. Since there was no trial court ruling on admissibility of the priors and the record refutes the claim that defendant offered the evidence of his criminal history only out of necessity after doing all he could to prevent the error he now claims was anticipated, he is estopped to urge such error. (Cf. Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 299-300, fn. 17 [85 Cal.Rptr. 444, 466 P.2d 996] [no waiver or estoppel if objection overruled and party introduced evidence to overcome case made by opponent].) Defendant’s further argument that the court erroneously admitted evidence of an uncharged offense, i.e., his escape from custody in a halfway house, is also answered shortly. He failed to object when the prosecutor elicited this evidence during cross-examination of defendant. Although counsel states in his declaration that he has no recall of this evidence, this failure to object, too, is consistent with counsel’s apparent tactical decision to bring or let in evidence of this type. The admission of the evidence was not, in any event, prejudicial. D. Lay-opinion Testimony Defendant also urges error in the admission, over his objection that the witnesses had not been qualified as experts, of testimony by Ron Hauser, a detective, who returned defendant to Merced from Arizona in 1978, and Charles Visher, a correctional officer, who was then the manager of the Merced County jail, that in their opinion defendant was not “strung out” when they observed him. Although lay opinion with regard to alcohol-induced intoxication and sobriety has been held to be admissible if “[Rationally based on the perception of the witness” (Evid. Code, § 800, subd. (a); People v. Garcia (1972) 27 Cal.App.3d 639, 643 [104 Cal.Rptr. 69]; In re Joseph G. (1970) 7 Cal.App.3d 695, 703 [87 Cal.Rptr. 25]), the admissibility of opinion as to drug-induced intoxication appears never to have been considered by this court. Defendant offers no basis upon which to distinguish evidence of drug-induced intoxication, however, and the Court of Appeal has held that if sufficient foundation is laid, lay opinion testimony that a person is under the influence of narcotics is admissible. (People v. Moore (1945) 70 Cal.App.2d 158, 165 [160 P.2d 857]; see also People v. Newberry (1962) 204 Cal.App.2d 4, 9 [22 Cal.Rptr. 23] [point waived by failure to object, but “[i]t is doubtful whether testimony that a person is under the influence of a narcotic requires expert qualifications on the part of the witness”].) People v. Nunn (1956) 46 Cal.2d 460, 466-467 [296 P.2d 813], on which defendant relies is not contrary. In that case we held that the court properly admitted opinion testimony of a police officer experienced in interviewing addicts on whether more addiction resulted from use of pain medication or from criminal association. We noted that the officer had qualified as an expert since he had knowledge of the causes of addiction not possessed by the average man. No issue was before the court with respect to lay opinion regarding drug intoxication or withdrawal, subjects with which the average man has some knowledge particularly as to the outward manifestations of these conditions. People v. Cruz (1968) 260 Cal.App.2d 55, 59 [66 Cal.Rptr. 772], on which defendant also relies, involved identification of narcotic substances, a very different subject. Lay opinion testimony is admissible where no particular scientific knowledge is required, or as “a matter of practical necessity when the matters . . . observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.” (Manney v. Housing Authority (1947) 79 Cal.App.2d 453, 459 [180 P.2d 69]; see also People v. Ravey (1954) 122 Cal.App.2d 699, 703 [265 P.2d 154]; Eger v. May Department Stores (1953) 120 Cal.App.2d 554, 558 [261 P.2d 281].) The manifestation of drug intoxication and withdrawal are no less subtle than those of alcohol intoxication, and, unfortunately may be sufficiently common today that lay persons are capable of recognizing them. The courts of several states have so concluded. (See collected cases in Annot. (1983) 21 A.L.R.4th 905.) Reasoning that a layman who had himself ingested LSD in the company of defendant and had observed its effects had special knowledge, the Wisconsin Supreme Court held that he could offer his opinion that tablets consumed by defendant were LSD. The witness’s lack of scientific training went only to the weight of the evidence, not admissibility. (State v. Johnson (1972) 54 Wis.2d 561 [196 N.W.2d 717].) Relying on Johnson, the Appellate Court of Illinois, in People v. Davis (1972) 6 Ill.App.3d 622 [286 N.E.2d 8], held that with proper foundation the opinion testimony of a lay witness that defendant was under the influence of drugs would be admissible. Here, however, no “opinion” was offered by the witnesses. The objection was to Detective Hauser’s “lack of qualification as an expert” and to the imprecision of the term “strung out.” This objection was made after a foundation had been laid by ascertaining that in his work he had encountered persons who were “strung out.” Although the court overruled the objection and the court acknowledged that, “I don’t know if we know what anybody knows by the term,” the subsequent questions were directed to, and the testimony was about Detective Hauser’s specific observations. He testified that he did not see defendant sick, nauseated, shaking or trembling or sweating excessively, and that defendant did not complain of pain or discomfort. Charles Visher, the jail manager, testified that he, too, was familiar with the condition of inmates who were “strung out,” and that he had not noticed anything that indicated to him that defendant was “strung out.” In response to defendant’s objection and motion to strike on grounds of lack of qualification and foundation the court ruled that the witness should define the term as he understood it. Visher explained that the reference was to an inmate who reflected “lack of sleep, nervousness, generally not in control of himself’ which he attributed to drug usage. This witness also testified that defendant had not complained to him of nausea, vomiting, pain or discomfort, and did not appear to be perspiring or sweating excessively. Defendant acknowledges that these witnesses testified regarding their observations, but argues that admitting the testimony allowed the prosecutor to give his own definition to the term “strung out” using symptomatology of heroin withdrawal that lacked validity. Any misconception in this regard could and should have been brought out on cross-examination. It must be recalled, also, that the evidence of drug usage offered by defendant was not limited to heroin, but included a wide spectrum of drugs, many of which are considered addictive. Defendant’s own medical expert had testified about an interview with defendant in which, after defendant described the drugs he had been using, defendant implied that at the time the offenses were committed he was “strung out” on drugs. Inasmuch as this witness used that term twice during his testimony, and the rebuttal testimony to which defendant objected was by the next two witnesses, any issue with regard to the imprecision of the term, or prejudice from lack of definition appears to have been waived. 2. Adequacy of Counsel Defendant next pursues the claim that he did not receive constitutionally adequate representation by counsel at the guilt phase of the trial. In further support of this claim he asserts that counsel failed to investigate the facts underlying defendant’s diminished capacity defense by obtaining relevant records, and did not by means of a motion pursuant to section 987.9 seek public funds with which to retain an investigator, a psychiatrist, or a psychopharmacologist. He claims also that counsel failed to seek suppression of his confession on grounds that it was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]; did not attempt to exclude the testimony of Tyson and Karen on grounds that they had been discovered through illegal police procedures; and as noted earlier did not object to admission of evidence of defendant’s criminal record. The omissions identified by defendant do not singly or together establish a basis for relief on the appellate record. Therefore, this claim will be addressed in the context of defendant’s identical claim in his habeas corpus application. A. Failure to Investigate Defendant claims that although counsel had outlined a diminished capacity defense to be supported by evidence of head injuries suffered during two accidents, hospitalization in a mental institution, drug abuse, and diagnosis as an epileptic, he did not investigate the “factual underpinnings” of this defense. He asserts that defendant was examined only by the two physicians appointed to render opinions regarding defendant’s competence to stand trial, sanity, and diminished capacity; that during pretrial motions counsel stated that there were medical records in addition to those “filed” by those experts that counsel wanted to obtain, and that none of these records was obtained. The record on appeal does not establish, however, that defendant was not examined by any other expert, or that counsel failed to obtain relevant records, or that had either of these steps been taken evidence favorable to the defense would, or even might, have been made available. This claim must be considered only as one properly raised in the habeas corpus proceeding. B. Failure to Suppress Confession Defendant was arrested in Arizona in the early morning hours of November 24, 1978, on teletyped all points bulletins regarding the warrants for his arrest sent by Merced officials. Arizona officers immediately notified the Merced County Sheriff’s office and Deputy John Harris went to Kingman, Arizona, the same day, arriving between 10 p.m. and midnight. Harris interviewed defendant and taped his 20- to 25-minute statement describing the offenses. Before doing so he advised defendant of his rights pursuant to Miranda v. Arizona, supra, 384 U.S. 436. Defendant acknowledged his understanding of those rights and agreed to talk to Deputy Harris. Also present were Detective Hauser and two Mojave County officers. Harris had been told by one of those officers, Sergeant Burt, that prior to Harris’s arrival “they” had taped an earlier conversation. Defendant’s trial counsel objected to admission of evidence of the taped statement made to Harris without proper foundation and evidence of voluntariness of the Miranda waiver, i.e., evidence that defendant was not suffering from lack of sleep, drug withdrawal or influence, and on grounds that the edited version (to which the court had listened) was not sufficiently clear. After hearing the tape counsel withdrew the Miranda waiver objection. Defendant now claims that counsel’s failure to seek suppression of the confession on grounds that it was the product of an earlier interrogation conducted by Arizona officers without Miranda advice and waivers reflects incompetence. Again, the record on appeal does not support the predicate assumption. The testimony of Deputy Harris that an Arizona officer told Harris that an earlier conversation had been taped does not support defendant’s theory that the interview with Harris was part of a “continuous interrogation process,” that defendant was interrogated by the Arizona officers, or that if such interrogation took place there had been no Miranda advice and waivers. Westover v. United States (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], in which a confession followed lengthy interrogations by officers of different jurisdictions is, contrary to defendant’s claim, distinguishable in this regard. Inasmuch as the record confirms that counsel was aware of the possible Miranda-based objection and interposed one such objection, there is no room for an inference that counsel was not aware of the applicable law. C. The Testimony of Tyson and Karen Defendant next argues that ineffective assistance is demonstrated by counsel’s failure to seek suppression of the testimony of Tyson and Karen on grounds that it was the product of an unlawful search of the Tyson home conducted pursuant to Karen’s coerced consent. Again, the record on appeal does not support the suggestion that a search occurred. Equally important, however, is the rule that when a witness voluntarily appears in court his testimony is not subject to suppression on that basis. The appearance of a witness or the testimony of that witness must be the product or “fruit” of a Fourth Amendment violation before suppression is even arguably required. (See United States v. Crews (1980) 445 U.S. 463 [63 L.Ed.2d 537, 100 S.Ct. 1244]; People v. Teresinski (1982) 30 Cal.3d 822 [180 Cal.Rptr. 617, 640 P.2d 753].) Neither the identity of Tyson as a perpetrator of the offenses, nor that of his wife Karen as a possible witness was ascertained as the result of any police misconduct. Karen telephoned a Stockton police officer from a telephone booth on Thursday, October 12, told the officer that she was with Tyson, and had talked him into surrendering on Friday. The affidavit in support of the complaint recites that Officers Harris and Hauser met with Karen at the Tyson home where she said she wanted to tell them everything. There is no support in this document or in Karen’s testimony for defendant’s claim that the officers’ entry was nonconsensual, that a search of the home was conducted at this time, or that if such search was undertaken it was without Karen’s consent. Tyson testified that when he met secretly with Karen prior to surrendering she told him that police officers had searched the house and had said that she could be arrested and prosecuted for aiding, abetting, being an accessory after the fact and for receiving stolen property. She told him that these officers, Harris and Hauser, had promised protection for her and her children if he surrendered. Again, nothing in this testimony supports the assertion that a search was conducted without a warrant or consent, that Karen was threatened, or that either her cooperation or her testimony was involuntary. She testified that she had lied to the officers initially and that they told her that property in the home was stolen, but her statement that she was “scared” at this time is an insufficient basis upon which to conclude that the police conduct was improper or that her cooperation was coerced. Under the circumstances she had good reason to be “scared” apart from any conduct on the part of the police officers: she knew her husband had committed three murders and she had assisted him in escaping. The use of that term implies neither that police misconduct engendered the fear, nor that her cooperation was coerced. Defendant’s argument, based on this testimony, that an arguably meritorious basis existed for an attempt by counsel to exclude the testimony of Tyson and Karen is simply not supported by the record on appeal. Petitioner offered no additional evidence to support this claim in the habeas corpus proceeding. Respondent, however, supplied documentary evidence to refute speculative allegations. A declaration by the deputy district attorney who prosecuted petitioner states that his notes reflect careful advice to petitioner regarding his Miranda rights from the time of his first arrest, and that petitioner never indicated any hesitancy about discussing what he had done with Arizona authorities, Merced authorities, Tyson and Karen, and petitioner’s girlfriend. The prosecutor’s review of the police reports made at the time of the arrest and statement of Karen do not support the contention by petitioner that an unlawful search of the Tyson home took place or that any improper threats were made to induce her statement and cooperation. A second exhibit is an unofficial transcript of the November 28, 1978, interview of defendant by Arizona officers. The interview commenced at 4 a.m. and con