Full opinion text
Opinion ARGUELLES, J. This case involves the rape and murder of 20-year-old Ginger Fleischli on September 11, 1981. For these offenses, the jury convicted defendant of one count of first degree murder (Pen. Code, §§ 187, 189) and one count of forcible rape (§ 261, subd. (2)) and found true allegations that defendant personally used a knife in the commission of these crimes (§ 12022, subd. (b)). In addition, the jury found true one special circumstance allegation: that the murder occurred in the commission of rape (§ 190.2, subd. (a)(17)(iii)). At the penalty phase, the jury returned a sentence of death. The matter is before us on automatic appeal. (§ 1239.) We conclude that the judgment should be affirmed in its entirety. Guilt Phase Facts A. The Prosecution Case The prosecution’s theory was that the victim Ginger Fleischli was raped and then killed by defendant Thomas Thompson to prevent her from reporting the rape and thereby possibly interfering with an imminent and illegal foreign venture defendant had planned. Fleischli met defendant through David Leitch who, in defendant’s view, had a motive to kill her himself. Fleischli had lived with David Leitch in an apartment at 1261 Ocean Front in Laguna Beach. In August 1981, Fleischli moved out of the apartment and defendant moved in. By September, Fleischli had apparently moved in with David Leitch’s ex-wife, Tracy Leitch, whom she had known for some six years. About 7:30 p.m., on September 11, 1981, Fleischli and Tracy Leitch met at a pizza parlor on Balboa Island, where they encountered defendant and David Leitch. David and Tracy Leitch decided to visit David Leitch’s father since David wanted to discuss working for him on the following Monday. There was some discussion about defendant and Fleischli going along, and the foursome got into Leitch’s car and went to the Sandpiper Inn on Pacific Coast Highway in Laguna Beach. Defendant and Fleischli remained there drinking, however, while David and Tracy Leitch left. Tracy Leitch later testified that at the pizza parlor Fleischli had expressed fear that she would be killed if she went with defendant. Fleischli and defendant were joined around 9:30 p.m., by Afshin Kashani. The evening included drinking and dancing both at the Sandpiper Inn and later at a nearby bar known as the Boom-Boom Room. Kashani and defendant, in addition to drinking, also smoked some hashish provided by Kashani. About 1 a.m., defendant, Kashani, and Fleischli walked back to the Ocean Front apartment where defendant and Kashani smoked additional hashish. Around 2 a.m., Fleischli left to get some soda at a nearby liquor store; and, in her absence, defendant told Kashani he wanted to be with Fleischli that weekend and Kashani could have her after defendant left the country. Kashani left the apartment, but on the way to his truck realized he had forgotten his cigarettes and walked back to the apartment to retrieve them. When he arrived, the door was open and defendant seemed nervous, handing Kashani’s cigarettes out to him through the door rather than inviting him back into the apartment. Fleischli was not seen alive again. Tracy Leitch testified that the next morning, September 12, she asked defendant where Fleischli was and defendant told her Fleischli had left with Kashani from the Sandpiper Inn. Again that evening, when Tracy encountered defendant at a party, she expressed concern about Fleischli’s whereabouts, and defendant referred to Fleischli in the past tense saying he had liked her, she was a nice girl. The following day Tracy Leitch filed a missing person’s report with the Newport Beach Police Department. Fleischli’s body was found on September 14, 1981, in a grove of trees near Interstate 5 in Irvine. Two footprints were found near the body—one made by a smooth soled shoe and the other made by a rippled or wavy soled shoe. The body was wrapped in an old sleeping bag and pink blanket, both of which Obert had left at the apartment when he had moved out. Fibers from the pink blanket matched fibers found in the trunk of David Leitch’s car and fibers found on the body matched the carpet in the Ocean Front apartment. A red smear on rope wrapped around the body also matched paint from the trunk of Leitch’s car. Fleischli’s head was wrapped with silver duct tape, two towels, a sheet, and her jacket. Her shirt and bra had been cut in front and pulled down to her elbows. There was no evidence of vaginal tearing or bruising. Her Levis were fully zipped but not buttoned. She wore no underwear, shoes or socks, and a vaginal swab revealed the presence of semen consistent with defendant’s blood type. White marks around two fingers suggested she had been wearing rings. Her ankles, hands, wrists, and left elbow showed bruising which had occurred within fifteen minutes to three hours prior to death and appears to have resulted largely from the handling of the body. One bruise to a wrist was consistent with use of handcuffs. Fleischli had been stabbed five times in the head near her right ear. One of the stab wounds, inflicted with a single-edged knife, extended through the ear two and one-half inches, penetrating the carotid artery and causing death. Subsequent investigation uncovered bloodstains identified as the victim’s blood in the carpet at the Ocean Front apartment. Defendant was arrested in Cabo San Lucas, Mexico, on September 26, 1981, and handcuffs were found in his possession. Defendant admitted to Deputy Sheriff Coder that Fleischli had come to the apartment that evening; but he claimed she went to the liquor store, Kashani left, and defendant had then fallen asleep. He claimed that to his knowledge she had not returned. Defendant also said that the next morning, Tracy Leitch asked what he had done with Fleischli, and he told her Fleischli had left with Kashani although he now claimed she had never returned. Defendant subsequently also appeared to know the victim had died of stab wounds to the head even though this information had not been released to the public. Defendant claimed David Leitch had told him this in Mexico. Two county jail inmates, Fink and Del Frate, testified that during defendant’s incarceration before trial he told them he had forced Fleischli to have sex with him and then stabbed her so she would not tell anyone. Del Frate claimed defendant, while earlier suggesting David Leitch had committed the killing, later admitted he had stabbed the victim twice in the head with a scuba knife, and David Leitch had helped him dispose of the body and clean up the apartment. Del Frate testified that defendant told him he wanted to find a witness to implicate Leitch, have Del Frate make an attempt on the life of Tracy Leitch so she would cease protecting her ex-husband, or have Del Frate kill David Leitch and bury the body so authorities would think Leitch was guilty and had fled the country. B. The Defense Case Defendant claimed that he did not commit the murder but that David Leitch probably did. Defendant testified that he had moved in with Leitch preparatory to their planned trip to Thailand. Defendant claimed Leitch indicated his mother would give him a boat (something Leitch’s mother denied on rebuttal ever discussing with her son); and defendant suggested that rather than smuggle cocaine out of South America as Leitch intended, they should use the boat to pick up Vietnamese refugees and, in return for their gold, give them passage out of Thailand to United States soil. He denied any plan to kill a boat owner or the refugees. Defendant claimed that on the night of September 11, after Kashani had finally departed, Fleischli returned from her errand to the liquor store. Defendant testified that Fleischli “had a suggestive look and one thing led to the other” and the couple had engaged in consensual sexual intercourse, after which Fleischli got dressed in anticipation that David Leitch. was going to pick her up and drive her home. As Fleischli began to dress, defendant, feeling the effects of hashish and alcohol, passed out and remembers nothing until the next morning when he awoke with a hangover to find David and Tracy Leitch in the apartment, Tracy demanding to know what he had done with Fleischli. Defendant slept off his hangover that day, but at a party that night asked Tracy if Fleischli would be there. Tracy allegedly said Fleischli was not going to attend. Defendant claimed that the next day, September 13, he saw David Leitch washing his car. On Tuesday, September 15, one day after Fleischli’s body had been discovered, defendant claimed David Leitch came to the apartment very nervous and tense and told defendant they were going to leave that day for Cabo San Lucas to await the boat his mother was arranging for their Southeast Asian trip. They packed, put some things in storage, and drove to Mexico in Leitch’s car, finally camping on the beach at Cabo San Lucas. Defendant claimed that when no boat arrived, he asked Leitch to call his mother. After a call, Leitch told defendant Fleischli had been murdered, stabbed with a pocket knife in the head. A day or two later Leitch left, allegedly to make another call. Instead, he pawned his car (its trunk having been freshly washed out) and bought an airline ticket back to the United States. Defendant was thereafter arrested by Mexican authorities. Defendant presented evidence that he was, even without the influence of alcohol or hashish, a very heavy sleeper and hence could have slept through Fleischli’s being bound, gagged, and stabbed to death in the same studio apartment. He denied seeing blood on the floor or noticing the rug was wet. Defendant also suggested David Leitch hated Fleischli, blaming her for the breakup of his marriage and failure to reconcile with Tracy Leitch. David Leitch was also portrayed as having been assaultive toward other persons. Defendant denied making any admissions to inmates Fink and Del Frate. In addition to bringing out their criminal records, defendant presented three inmate witnesses of his own who testified that Del Frate frequently tried to get other inmates to talk about their cases, had a grudge against defendant, and was being paid by Leitch’s family to testify against defendant. Fink, a heroin user, had informed against others, and defendant suggested Fink was motivated in this case by the hope he could serve his time in an institution of his choice. Further, defendant claimed that during an absence from his cell, inmates had been seen in the cell reading police reports and documents relating to his case and taking notes, presumably enabling them to give convincing testimony against him. Discussion I. Victim’s Statements Indicating Fear of Defendant A. Admission of Victim’s Statement Defendant first contests the admissibility of certain statements by Fleischli to Tracy Leitch concerning Fleischli’s fear that defendant might kill her. Tracy Leitch testified that around 8 p.m. on the night of the crime, when the parties were still at the pizza parlor, Fleischli asked Tracy whether, if she went with Tom (the defendant), “Do you think Tom would kill me?” The prosecution sought to introduce this statement pursuant to Evidence Code section 1250 as evidence of declarant’s state of mind on the evening she was killed. There was evidence the victim had had sexual intercourse near the time of her death, and the prosecution’s theory was that it was rape, not consensual intercourse. Defendant was charged not only with murder but with rape and the special circumstance of murder during the commission of rape. The victim’s fear of defendant would tend to prove that she did not have intercourse willingly. The defense objected that even with a limiting instruction the jury would not consider this evidence only to determine the victim’s lack of consent to sexual intercourse; they would use it to determine whether defendant killed her. Further, counsel argued the circumstances of the statement cast doubt on its reliability. It was just something said when the parties were “sitting around,” “having a bunch of cocktails.” There had been no evidence of animosity between defendant and Fleischli prior to this alleged statement being made. The court accepted the prosecution’s argument that this evidence would be important in showing intercourse was not consensual, and it expressed the belief a jury could follow a limiting instruction on this matter. It therefore ruled: “. . . the court has weighed and considered the legitimate interest of the People to prove lack of consent and will allow the information about the statement or state of mind of the victim to be elicited from this witness. . . .” Prior to the testimony coming in, the court, in compliance with Evidence Code section 355, gave the jury a limiting instruction which said: “Ladies and gentlemen, you are not to consider the following testimony as proof of the truth that the murder occurred or that defendant committed such killing- [10 You may consider it only for a determination of the state of mind of the victim, Ginger Fleischli, as it regards a rape and as it may negate a consensual sex act. Okay? [U] I’ll read the last part one more time. [1f] You may consider it only for a determination of the state of mind of the victim, Ginger Fleischli, as it regards a rape and as it may negate a consensual sex act. [H] That’s the only purpose for this, and it’s the only use you can put it to in your deliberations.” 1. Admissibility Evidence Code section 1250, subdivision (a) provides that evidence of a statement of a declarant’s then-existing state of mind or emotion is not inadmissible under the hearsay rule when “(1) [t]he evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) [t]he evidence is offered to prove or explain acts or conduct of the declarant.” Where that evidence involves the victim’s fear of the defendant, we have initially looked to whether the victim’s state of mind was really in dispute and whether it was relevant to an issue in the case. (People v. Armendariz (1984) 37 Cal.3d 573, 584-587 [209 Cal.Rptr. 664, 693 P.2d 243]; People v. Arcega (1982) 32 Cal.3d 504, 526-527 [186 Cal.Rptr. 94, 651 P.2d 338]; People v. Green (1980) 27 Cal.3d 1, 23 [164 Cal.Rptr. 1, 609 P.2d 468]; People v. Ireland (1969) 70 Cal.2d 522, 529-532 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]; People v. Lew (1968) 68 Cal.2d 774, 779 [69 Cal.Rptr. 102, 441 P.2d 942].) Here Fleischli’s conduct on the evening of the killing, and specifically whether she willingly had intercourse with defendant, was very much in issue given the prosecution theory of murder during commission of rape. As her expression of fear of defendant on the very night of the murder tends to indicate she did not consent to intercourse, it was relevant in this case. (See Arcega, supra, 32 Cal.3d at p. 527; Lew, supra, 68 Cal.2d at p. 779.) Even if such evidence is relevant, we have stressed its potential prejudice and have required that the trial court engage in a careful weighing of its probative value against the danger of undue prejudicial effect on the jury. (People v. Coleman (1985) 38 Cal.3d 69, 92-93 [211 Cal.Rptr. 102, 695 P.2d 189]; Armendariz, supra, 37 Cal.3d at pp. 588-589; Green, supra, 27 Cal.3d at p. 26.) Here the statement did not occur long before the rape and killing. It was not cumulative to other evidence. And as originally introduced, it seemed significant to the prosecution case. The autopsy did not provide direct evidence of forcible sexual intercourse although it also did not negate it. The suggestion that Fleischli feared defendant and on returning from the liquor store to find him alone in the apartment would not have engaged in a sexual encounter with him contributed to the inference of force to be gained from bruises on, and the condition of, the victim’s body. As for prejudicial effect, this rather isolated statement stands in contrast to the situation in Coleman where poignant letters described the victim’s feelings of despair and the tragic development of the family’s problems. (Coleman, supra, 38 Cal.3d at p. 81-82.) The victim in Coleman described at length the conduct of the defendant in trying to hurt her and threatening to kill her family. (Id. at p. 82.) Here no conduct was ascribed to defendant. The statement related to Fleischli’s attitude alone. (Compare also, People v. Ruiz (1987) 44 Cal.3d 589, 607-609 [244 Cal.Rptr. 200, 749 P.2d 854] [involving several statements of fear made by the victim well before the fatal incident].) Defendant points out that the weighing process which trial courts are required to engage in under Evidence Code section 352 must appear on the record. (Green, supra, 27 Cal.3d at p. 25.) He complains that the weighing process was not made explicit in this case. We must disagree. There is no particular formula a trial court must follow in indicating that probative value has been weighed against prejudice. The goal is that the trial court engage in such process and that the record affirmatively demonstrate, for purposes of later appellate review, that it has done so. (Ibid.) The record amply reflects such careful consideration in this case. Defendant further notes that under Evidence Code section 1252, a statement of mental or physical condition remains inadmissible if the statement was made “under circumstances such as to indicate its lack of trustworthiness.” (See also Coleman, supra, 38 Cal.3d at p. 84; Lew, supra, 68 Cal.2d at p. 780; People v. Hamilton (1961) 55 Cal.2d 881, 893 [13 Cal.Rptr. 649, 362 P.2d 473] [disapproved on other grounds in People v. Wilson (1969) 1 Cal.3d 431, 442 [82 Cal.Rptr. 494, 462 P.2d 22].) But the victim’s statements here did not purport to narrate past conduct and there is no obvious reason for her to manufacture an expression of fear she did not feel. (See generally People v. Howard (1987) 44 Cal.3d 375, 404-405 [243 Cal.Rptr. 842, 749 P.2d 279].) If we accept that she made the statement, and Tracy Leitch was subject to cross-examination in that regard, it was not made under circumstances suggesting a motive to fabricate. In short, given that defense counsel explicitly argued lack of trustworthiness to the court prior to the court’s ruling, the trial court would appear to have considered and rejected this argument in the course of considering the probative value of this evidence. 2. Effect of Limiting Instructions Finally, defendant contends that limiting instructions, such as those noted above, are ineffective. He finds support in our. decision in People v. Coleman, supra, which while not involving the exception in Evidence Code section 1250, does contain colorful language concerning the enormous impact of accusations from the grave whose “reverberating clang” drown out “all weaker sounds.” (Coleman, supra, 38 Cal.3d at pp. 82-83, 93.) We have no quarrel with Coleman's conclusion that “[a]ccusatory statements ‘from the grave’ such as these have so great a potential to unfairly prejudice the defendant that the courts have long recognized that a limiting instruction will be insufficient to prevent improper use.” (Id. at p. 93 citing, inter alia, Shepard v. United States (1933) 290 U.S. 96 [78 L.Ed. 196, 54 S.Ct. 22].) But the statements Coleman referred to involved inflammatory letters written by one of the victims, defendant’s wife, months before the crime. They poignantly described her feelings of hopelessness and despair and asserted that defendant had twice tried to hurt her and many times had threatened to kill the family. (Coleman, supra, 38 Cal.3d at pp. 81-82.) Here the victim only hours before her death made one statement indicating her personal fear of the defendant, a statement directly relevant to her subsequent conduct and recounting no past conduct of the defendant. Coleman's conclusion as to the inadequacy of limiting instructions just does not apply in this context. The limiting instructions as set forth above repeatedly directed the jury to consider Fleischli’s statement only insofar as it was relevant to the subsequent alleged rape. There is no reason to believe the jury was incapable of following those instructions. We therefore conclude that the trial court did not err in admitting her statement into evidence. B. Subsequent Instructions Defendant contends that subsequent instructions to the jury at the conclusion of the guilt phase of this trial contradicted the limiting instruction and permitted the jury to consider Fleischli’s statement for the improper purpose of determining whether defendant had killed her rather than for the limited purpose of her state of mind and likely conduct on the night of the crime. He points first to the fact the trial court gave the standard instruction on prior inconsistent statements (CALJIC No. 2.13) which informed the jury that prior consistent or inconsistent statements could be considered “not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasion.” It does not appear that this general instruction could have been understood by the jury as directly inconsistent with the prior limiting instructions telling the jury that Fleischli’s statements of fear should be considered only as to her state of mind. Furthermore, it is not reasonable to believe that a jury would apply this instruction to accept the truth of the statement as initially testified to by Tracy Leitch when she admitted she had altered it in an attempt to protect her former husband. (See fn. 16, ante.) Finally, the instruction on prior inconsistent statements was immediately followed by instructions directing the jury, in judging the credibility of witnesses, to consider bias, interest, or other motive, inconsistencies in testimony, and admissions of untruthfulness; and the jury was advised that a witness willfully false in one material part of his testimony was to be distrusted in others. (CALJIC Nos. 2.20, 2.21.) Obviously these more directly relevant instructions would have had more impact on the jury’s consideration of Tracy Leitch’s testimony than did the prior inconsistent statement instruction. A more significant problem, however, is presented by an instruction requested by the People and given by the court which advised the jury that: “In deciding whether the defendant’s guilt has been established beyond a reasonable doubt as to the murder charge, you may consider the following evidentiary factors:... [ft] Seven, that prior to the victim’s demise she had expressed a fear of physical harm from the defendant.” This did directly contradict the limiting instruction given when the evidence was admitted, and it improperly advised the jury that it could consider the victim’s expression of fear as evidence defendant had committed the murder. It would appear that including this factor in the list of evidentiary matters to be considered with respect to the murder charge was an error the parties simply overlooked. Both sides submitted special instructions containing separate lists of such factors for the murder and for the rape. The victim’s statement of fear should, consistent with the limiting instruction, have been included in the instruction governing factors relevant to the rape only. However, given the other listed factors—including defendant’s access to handcuffs and knife, being alone in the apartment, and inconsistencies in defendant’s accounts of the crime—it is not likely the jury would have focused on this factor. Certainly in his final argument the district attorney did not argue this factor, accepting instead the possibility that Fleischli did ask whether David Leitch would have defendant kill her, and focusing on the importance of Tracy Leitch in establishing defendant’s lie, made also to the police, that Fleischli had left with Kashani on the night of the crime. Finally, in many ways the defense gained as much from the prosecutor’s opening up of this area as it lost. Because Fleischli’s alleged fear of defendant had been introduced, the defense presented evidence that prior to the crime Fleischli had called police to help her remove her personal property from the apartment since she feared David Leitch and claimed he had threatened to kill her. They also introduced evidence that three years earlier, David Leitch had assaulted some traveling companions, sending one to the hospital with a concussion. Fleischli knew of this incident, and the defense suggested and argued in its closing argument that if Fleischli feared anyone, she feared David Leitch. (See generally People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99] [right of defendant to introduce evidence of third-party culpability].) Furthermore, the court gave proposed defense instructions which listed, as evidentiary factors going to whether there was a reasonable doubt defendant committed the murder, “Seven, that on no occasion prior to the victim’s demise had the defendant expressed any animosity, ill will or intent to harm the victim, [fl] Eight, that prior to the victim’s demise she had expressed a fear of physical harm from David Leitch. fl]] Nine, that prior to the victim’s demise David Leitch had expressed hate and ill will toward the victim and had threatened to have her killed.” In sum, the effect upon the guilt phase of this trial of improperly listing Fleischli’s statement of fear of the defendant in requested instructions relating to murder, rather than in requested instructions on factors relating to the rape, was harmless under any standard of prejudice. II. Defendant’s Planned Southeast Asian Trip A. Introduction, Limitation, and Readmission of Evidence In his second issue defendant urges that the trial court erred in admitting certain evidence concerning defendant’s planned Southeast Asian trip. The prosecutor offered to show that defendant had discussed with Tracy Obert his plan to go to Southeast Asia. As defendant had no apparent financing for this venture, the trip provided motive for the robbery with which defendant was at the time still charged. Further, since the trip might involve loss of life and since it was very important to defendant, the trip might also suggest a motive for killing the victim after the alleged rape. If the rape were disclosed, defendant might be prevented from leaving the country. Over specific defense objections that the prejudicial effect of this evidence far outweighed its probative value, the trial judge ruled it admissible. Tracy Obert subsequently testified that defendant planned an expedition to Southeast Asia to smuggle refugees, gold, and possibly cocaine. He went on to say that defendant planned to get a boat for this venture by killing the owner’s son and further, while initially planning to smuggle refugees out of Thailand, defendant later decided it would be easier to kill them after obtaining their gold. Defendant again objected that this evidence was inflammatory and not probative, and that it conveyed to the jury the impression that if defendant was willing to be involved in these other killings, he was more likely to have committed this homicide. He moved for mistrial. While , the prosecutor initially argued that the violence of the mission and its importance to defendant were relevant to motive, he later claimed he did not know that these details, regarding killing the boatowner’s son and the refugees, would come out; and he agreed with the trial court’s striking this reference to killing refugees and the boatowner’s son and admonishing the jury to disregard it. The trial court did strike that portion of the testimony, ordered the jury to disregard it, and commented: “People will often state plans with absolutely no intention of carrying them out.” Over the objections of his attorney, defendant testified in his own defense; and on direct examination he again took up the issue of the Southeast Asian trip. He claimed he met David Leitch while searching for someone who might have access to a boat and would be interested in a business venture involving transportation of refugees from Thailand to a United States colony. This was . a purely legitimate, even altruistic business venture. It was Leitch who said his mother would provide a boat and who wanted to smuggle cocaine. On cross-examination, the prosecutor therefore again probed whether defendant planned to kill someone to get the boat and to kill refugees. To defense objections, the prosecutor asserted the evidence was now relevant to impeach defendant’s contentions about his plans which still formed an important part of the motive for the crime. The prosecutor also offered to show that defendant had in fact threatened to kill anyone who got in the way of his plan. The trial court overruled defense objections, finding the proposed evidence relevant to impeachment, although the prosecutor continued to argue that motive was a ground for its admission. Defendant then denied he had intended to kill to get the boat or that he intended to kill refugees. He admitted the plan was very important to him and that he had said he was willing to die to carry it out, but he denied being willing to kill anyone who got in his way. Tracy Obert testified in rebuttal, repeating the contention that defendant would kill to get the boat, would kill refugees, and would kill anyone who got in his way. Obert indeed claimed he moved out of the apartment to distance himself from defendant and his scheme. B. Admissibility Evidence that involves crimes other than those for which a defendant is being tried is admitted only with caution, as there is the serious danger that the jury will conclude that defendant has a criminal disposition and thus probably committed the presently charged offense. (Evid. Code, § 1101; People v. Thompson (1980) 27 Cal.3d 303, 314, 316-317 [165 Cal.Rptr. 289, 611 P.2d 883].) We have held that to be admitted, evidence of other crimes must be relevant to some material fact at issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. (People v. Bigelow (1984) 37 Cal.3d 731, 747 [209 Cal.Rptr. 328, 691 P.2d 994]; Thompson, supra, at pp. 315-318.) While in the present case it was not asserted that defendant actually committed other crimes, actually killed to obtain his boat or to obtain gold from refugees, the danger in admitting evidence that he planned such offenses was similar. He would be portrayed as a dangerous person more likely than others to have committed the present offense. (See People v. Cardenas (1982) 31 Cal.3d 897, 904-907 [184 Cal.Rptr. 165, 647 P.2d 569] [affiliation with violent youth gangs, narcotics addiction].) 1. Motive We turn first to admission of evidence that defendant had indicated he would kill anyone who got in the way of his plan, and we conclude that this evidence was admissible as to whether or not defendant had a motive to kill Fleischli. Motive was an important issue in this case since defendant maintained he and Fleischli had been on excellent terms. If the two had consensual sex, he argued, why would he harm her? (Compare People v. Hamilton (1985) 41 Cal.3d 408, 426 [221 Cal.Rptr. 902, 710 P.2d 981] [relevance of other crimes to motive too speculative]; Bigelow, supra, 37 Cal.3d at p. 748.) David Leitch, he maintained, was the one with the motive to kill Fleischli particularly if he returned to the apartment to find her getting dressed and defendant asleep after a sexual encounter. Establishing that defendant had threatened to kill anyone who got in the way of his Southeast Asian scheme was an important step toward providing the missing motive. It was thus admissible to show defendant’s state of mind where other evidence (for example, the testimony of Fink and Del Frate) brought this victim within the scope of defendant’s general threat. (People v. Rodriguez (1986) 42 Cal.3d 730, 757 [230 Cal.Rptr. 667, 726 P.2d 113].) 2. Impeachment We have greater difficulty with evidence that he expressed willingness to kill to get the boat and to kill refugees. This had no direct probative value in establishing a motive to kill Fleischli and instead tended to suggest simply that defendant was a violent man. The trial court properly ordered this testimony stricken and admonished the jury to disregard it, unfortunately having to reiterate the testimony in the process of giving the admonition since it had been some three days since the evidence had come in. It was the defendant himself who supplied the grounds for readmission of this evidence when he testified to the legitimacy of his plan. His description of the business venture portrayed something a person might well postpone, not something one would kill to pursue. His prior statements as to killing the boatowner’s son and the refugees became relevant for impeachment purposes to show that this was not a normal venture but an illegal and desperate scheme. We reject the suggestion that cross-examination as to defendant’s prior statements about this venture was improper impeachment on a collateral matter. The prosecutor did not elicit something on cross-examination just so it could be impeached with otherwise inadmissible evidence. (People v. Armendariz, supra, 37 Cal.3d at p. 588, fn. 16; People v. Lavergne (1971) 4 Cal.3d 735, 743 [94 Cal.Rptr. 405, 484 P.2d 77].) Defendant reentered this evidentiary area on his own. Nor was the nature of defendant’s scheme wholly collateral to the issues in this case. (Compare People v. Armendariz, supra, 37 Cal.3d at p. 585.) 3. Cumulative Character We also reject the argument that this evidence of defendant’s lack of credibility was cumulative, a factor that if true would suggest impeachment should not have been allowed. (People v. Burgener (1986) 41 Cal.3d 505, 525-526 [224 Cal.Rptr. 112, 714 P.2d 1251].) While defendant indicated the trip was important to him, his portrayal of the nature of the venture supported a very different set of inferences as to motives vis-a-vis anyone who might want to interfere with that plan. It was not an abuse of discretion for the trial court to permit the impeachment defendant’s testimony invited. 4. Effect of Other Instructions Finally, defendant contends that certain instructions at the conclusion of the guilt phase negated any beneficial effect of instructions limiting the jury’s consideration of this evidence. Specifically he points to the standard instruction in CALJIC No. 2.13 on prior inconsistent statements, which allows such statements to be considered as evidence of the truth of the facts stated by the witness on the former occasion, and to a portion of a special instruction requested by the People which permitted the jury, considering whether murder had been established beyond a reasonable doubt, to consider: “One, the importance to the defendant of his plan to go to Thailand and the measures he was willing to take to set this plan into operation.” We conclude that the instructions, read as a whole, did not permit improper consideration of this evidence. As noted, the fact that defendant threatened to kill anyone who got in the way of his trip was admissible on the issue of motive. As for threatening to kill refugees or to get a boat, the jury was instructed to consider this testimony only for impeachment and was told “You may not use that testimony to determine directly whether or not the defendant is guilty of the present murder or to determine that it is more likely than not that he committed the charged homicide.” There is no obvious reason for the jury to understand CALJIC No. 2.13 as superseding this explicit instruction. And following this limiting instruction, they would consider defendant’s measures in setting his plan into operation as referencing the threat to people who got in his way, a matter relevant to motive on which they were also instructed. To the extent that evidence of some of these threats was introduced, the cause was as much with the defendant as with the prosecutor; and assuming any error, it is not reasonably probable that a different result would have occurred in its absence. III. Prosecutorial Misconduct In his third issue, defendant contends the prosecutor committed misconduct in two remarks made during opening argument to the jury at the end of the guilt phase. In these remarks, the prosecutor said: “Mr. Brower [defense counsel] will probably not spend a lot of time asking you to believe the defendant’s version, that he slept through Miss Fleischli’s murder.” A little later, the prosecutor, commenting on various inconsistent statements by defendant to the police and others, said: “We have all these lies. And why are these lies so important? Why won’t you even hear his testimony commented on by his attorney?” Defendant contends the clear suggestion these statements conveyed to the jury was that defense counsel disbelieved his own client. Further, the statements implied defense counsel did not want defendant to testify and hence constituted a comment on defendant’s exercise of his right to testify. We find no error warranting reversal. A prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal.Rptr. 855, 659 P.2d 1144].) We have held he may not express a personal belief in defendant’s guilt, in part because of the danger that jurors may assume there is other evidence at his command on which he bases this conclusion. (People v. Bain (1971) 5 Cal.3d 839, 848 [97 Cal.Rptr. 684, 489 P.2d 564].) We have also held it improper for the prosecutor to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case. It is not necessary to find that such implication impinges upon defendant’s constitutional right to counsel. (Compare People v. Turner (1983) 145 Cal.App.3d 658, 674 [193 Cal.Rptr. 614].) Instead it is sufficient to note that defendant’s conviction should rest on the evidence, not on derelictions of his counsel. (People v. Perry (1972) 7 Cal.3d 756, 790 [103 Cal.Rptr. 161, 499 P.2d 129]; Bain, supra, 5 Cal.3d at p. 847.) Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom. For the same reason, it is therefore improper for the prosecutor to argue to the jury that defense counsel does not believe in his client’s defense. (See People v. Purvis (1963) 60 Cal.2d 323, 343 [33 Cal.Rptr. 104, 384 P.2d 424] [disapproved on other grounds in People v. Morse (1963) 60 Cal.2d 631, 649] [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]; People v. Enriquez (1961) 190 Cal.App.2d 481, 487 [11 Cal.Rptr. 889]; and see generally Annot. (1979) 89 A.L.R.3d 263, and later cases (1987 pocket supp.).) Such argument directs the jury’s attention to an irrelevant factor and might in some contexts be quite prejudicial. Given the right of both counsel to engage in vigorous argument, however, we do not not find the prosecutor’s comments constituted reversible error. The prosecutor argued that defense counsel would not spend a lot of time asking the jury to believe defendant’s version of events, because defendant’s version was that he slept through the whole thing. The prosecutor’s focus was thus on the evidence and his contention that the defense case was simply unbelievable. Similarly, the prosecutor commented that defendant’s inconsistent stories contained lies which defense counsel would not try to justify. Again, the emphasis was on the evidence in the case, particularly evidence of defendant’s varying stories both before trial and when he testified in his own defense. The prosecutor predicted that, to draw the jury’s attention away from those inconsistencies, the defense would have to attack the credibility of the prosecution’s informant witnesses. This did not, when read in context, depart from comment on the state of the evidence or legitimate argument on how the case should be viewed. We also cannot agree that the prosecutor’s statements constituted improper comment on defendant’s fundamental right to testify even against his counsel’s wishes. (See People v. Robles (1970) 2 Cal.3d 205, 214 [85 Cal.Rptr. 166, 466 P.2d 710].) Defendant compares the prosecutor’s remarks to comment on a defendant’s failure to testify. (See generally Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229].) Again, the record does not bear the weight of this argument. Further, if defendant perceived such an inference, it was incumbent upon him to object. (People v. Green, supra, 27 Cal.3d 1, 34.) Defendant has argued that a timely objection and admonition would not have cured the harm from the alleged prosecutorial misconduct. He claims the suggestion that defense counsel did not believe defendant’s testimony was a “devastating thought” that once conveyed to the jury, could not be undone. Defendant grossly exaggerates the impact, if any, of the prosecutor’s remark, and our cases do not suggest that this sort of error may not be so cured. (See e.g., Green, supra, at p. 35; Purvis, supra, 60 Cal.2d 323; People v. Cheary (1957) 48 Cal.2d 301, 318-319 [309 P.2d 431].) We therefore conclude that on this record, error did not occur. IV. Admission of Photographs of Victim Defendant contends that the trial court abused its discretion in admitting into evidence certain photographs of the victim. These photographs fall into three categories. First is exhibit 69, a photograph of the victim during her lifetime. It portrays an attractive young woman in a party dress and wearing a flower in her hair. The second set of photographs includes exhibits 24, 70, and 71 which are closeup shots of the victim’s ear, one preautopsy and one during autopsy. Defendant did not object to number 71 which shows the ear turned back revealing the number of stab wounds to the head and giving some suggestion of their depth. He did object that number 24 showed blood on the ear and he argued number 70 was cumulative to other evidence describing the fatal wound. Third, defendant objected to exhibits 19 through 23 which depict the body in stages of being unwrapped from the blankets, towels, and duct tape in which it was found. Defendant particularly objected to number 21 in which half of the victim’s face is uncovered and one eye is open. Trial counsel termed this picture the “face of death.” A. Photos of the Victim While Alive It is well settled that the admission of photographs of the victim lies within the discretion of the trial court and that exercise of discretion will not be disturbed unless the probative value of such photographs is clearly outweighed by their prejudicial effect. (People v. Phillips (1985) 41 Cal.3d 29, 54 [222 Cal.Rptr. 127, 711 P.2d 423]; People v. Cruz (1980) 26 Cal.3d 233, 253 [162 Cal.Rptr. 1, 605 P.2d 830]; People v. Frierson (1979) 25 Cal.3d 142, 171 [158 Cal.Rptr. 281, 599 P.2d 587].) After a review of the photographs in question, we conclude there was no abuse of discretion in this case. First, as to the photograph of Fleischli alive, defense counsel, while contending there was no genuine issue as to the fact that she was a live human being on the night of the crime, apparently did not expressly offer to stipulate to this point. (Compare People v. Kimble (1988) 44 Cal.3d 480, 499 [244 Cal.Rptr. 148, 749 P.2d 803]; People v. Ramos (1982) 30 Cal.3d 553, 577 [180 Cal.Rptr. 266, 639 P.2d 908], revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171, 103 S.Ct. 3446].) Furthermore, even if counsel’s comments were sufficient to indicate that the victim’s status as a human being was not an issue (see People v. Hendricks (1987) 43 Cal.3d 584, 594 [238 Cal.Rptr. 66, 737 P.2d 1350]), it cannot be said the photograph was irrelevant in this case. Defense counsel himself used it in questioning a police officer whom Fleischli had called to the apartment to protect her from David Leitch; and the officer identified Fleischli as the complaining party based on this photograph. Finally, this was not a photograph particularly calculated to elicit sympathy. As the prosecutor noted, the result might be different if the photograph portrayed Fleischli “with little children or showed her at church or showed her in some type of manner [sz'c] that would be an attempt to arouse the sympathy of the jury. . . .” This was, however, simply a picture of the victim alive. We conclude that the photograph did not unduly prejudice the defendant in any way. B. Photos of the Stab Wounds to the Head As for the photographs of the victim’s head and particularly the ear through which the fatal stab wound had been inflicted, these exhibits were used by the pathologist to describe and explain the wounds to the head and which of them had resulted in death. They were thus clearly relevant in indicating the manner in which the crime had been committed. (People v. Allen (1986) 42 Cal.3d 1222, 1256 [232 Cal.Rptr. 849, 729 P.2d 115]; Frierson, supra, 25 Cal.3d at p. 171.) Defendant’s suggestion that they were cumulative to other evidence and need not have been used is not convincing. Even somewhat cumulative photographic evidence may be admitted if relevant. The fact that there is other evidence on the point goes to the probative value of the photographs. In this case they were at least useful. They were not unduly bloody or gruesome, nor did they show unnecessary decay. Pictures involving that sort of problem were expressly not used by the prosecutor. Nor are we convinced that exhibits 70 and 24 were cumulative to exhibit 71. Exhibit 71 does not adequately show the fatal wound. The trial court did not abuse its discretion in finding that exhibit 71 was inadequate to show the manner of killing in this case. C. Photos of the Victim’s Face Defendant contends that the exhibits depicting the body being unwrapped and particularly the “face of death” photograph should have been eliminated. We have on occasion recited the fact that a victim’s face was portrayed in a photograph. (See e.g., Allen, supra, 42 Cal.3d at p. 1255; Frierson, supra, 25 Cal.3d at p. 171.) This has not been focused on as determinative, nor can it be. Given the circumstances of a given killing, the portrayal of a mangled arm, a mutilated stomach, a burned foot, a slashed breast, may be more gruesome than the picture of the face of the deceased. Exhibit 21, and the other exhibits in this series, were used in questioning the deputy sheriff" who helped recover the body. It described the peculiar condition in which the body was found—the head wrapped in towels and duct tape, and the body wrapped in a blanket and sleeping bag. This condition tended to refute defendant’s contention that he was drunk the night of the crime, as it suggested care was taken to minimize blood in the apartment and the car in which the body was transported. The naked upper torso, the bruises depicted in these photographs, and the manner in which clothing was pulled around the arms were supportive of the prosecution’s theory that a rape had occurred. And in this series, exhibit 21 best depicts the manner in which the head was wrapped with duct tape. Again some care was apparently taken to eliminate even more gruesome photographs from the collection ultimately used. Further when the prosecutor used photographs in the course of his closing remarks to the jury at the guilt phase, he did not use exhibit 21, 24 or 70 to which defendant particularly objected. We conclude that there was no abuse of discretion in permitting these photographs to be admitted into evidence. V. Failure to Instruct on Intent to Kill as an Element of Felony-murder Special Circumstance The jury in this case was instructed: “If defendant Thomas Martin Thompson was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to defendant Thomas Martin Thompson.” (Italics added.) The court rejected an instruction proposed by the defense which would have specifically required the jury to find intent to kill. Under our decision in Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal.Rptr. 79, 672 P.2d 862], failure to give such an instruction would have been error as it permitted the jury to find the special circumstance true without necessarily finding that defendant had the intent to kill. (Id. at pp. 153-154.) We have recently concluded, however, that intent to kill is not an element of felony-murder special circumstances as to the actual killer. Only where defendant is an aider and abettor rather than the actual killer must intent to kill be proved. (People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306]; see also Tison v. Arizona (1987) 481 U.S. 137 [95 L.Ed.2d 127, 143-144, 107 S.Ct. 1676, 1688].) Under the prosecution’s theory, defendant was the perpetrator. According to the defense, defendant slept through the killing which was accomplished by David Leitch. Aiding and abetting was not a theory pursued by the parties or instructed upon by the court in this case. There was therefore no error in failing to instruct on intent to kill as an element of felony-murder special circumstances. VI. Failure to Instruct Sua Sponte That the Testimony of a Jailhouse Informant Must Be Viewed With Distrust Defendant next contends that the trial court erred in failing, with respect to the testimony of witnesses Fink and Del Frate, to instruct the jury that such testimony must be viewed with distrust. Both witnesses had been incarcerated in county jail with defendant and, as noted, had testified to certain admissions defendant made to them concerning this crime. These admissions were quite damaging. Fink testified that defendant admitted going out with a girl to a bar, returning to David Leitch’s apartment, and forcing her to have sex when she resisted. Fearing she would go to the police, defendant killed her, taking care of the matter “in a quiet way like if he was in the jungle”; and when Leitch returned to the apartment, defendant convinced Leitch to help him dispose of the body. Del Frate testified defendant admitted he, Kashani and Fleischli had been to the Boom-Boom Room and had returned to the apartment. Defendant had asked Kashani to leave so he could have sex with Fleischli; and when she returned to the apartment to find defendant alone, he forced himself upon her. Defendant admitted the victim had been upset and had threatened to report the incident, so he stabbed her in the head, purportedly with a scuba knife. David Leitch later helped dispose of the body in a shallow grave and clean the apartment. Del Frate also testified to several matters relevant to defendant’s consciousness of guilt. (See, generally, 1 Witkin, Cal. Evidence (3d ed. 1986) §§ 657-658, pp. 642-645; 2 Wigmore, Evidence (Chadbourn ed. 1979) §§ 277-278, pp. 132-141.) He stated that defendant wanted him to find a witness who could incriminate David Leitch by claiming to have overheard a conversation between Leitch and Leitch’s father in which Leitch admitted committing the crime and trying to make it look like defendant was guilty. Defendant also allegedly wanted Del Frate to fake an attempt on Tracy Leitch’s life to dissuade her from continuing to help her husband in this case. When defendant learned David Leitch was free on bail, he also allegedly asked Del Frate to kill David Leitch, bury the body in the desert, and bum the car so that it would look like Leitch had fled. In People v. Alcala (1984) 36 Cal.3d 604 [205 Cal.Rptr. 775, 685 P.2d 1126], we rejected the analogy defendant seeks to draw between the jailhouse informant situation and that of testimony by an accomplice. (Id. at pp. 623-624.) Motives as between the two in testifying against a defendant are not the same. Furthermore, problems with Fink’s and Del Frate’s credibility—their criminal past, possible payoffs by the Leitch family, their history as informers, the use of narcotics—were fully explored both on cross-examination and through presentation of inmate witnesses by the defense. Through instructions such as CALJIC Nos. 2.20, 2.21, 2.22, 2.23, 2.27, and 2.70, the jury was told that, as the sole judge of Fink’s and Del Frate’s credibility, it might consider anything having a tendency to prove or disprove their truthfulness, including: bias, interest, or other motive; prior inconsistent statements; character for honesty; or prior felony convictions. The jury was informed that a witness false in one material part of his testimony is to be distrusted in others and was told that evidence of any oral admission of the defendant ought to be viewed with caution. In addition to these instructions, defense counsel in closing argument fully discussed his contentions regarding the lack of credibility of these witnesses. In light of this record we need not further consider whether a sua sponte cautionary instruction should have been given, nor need we discuss and distinguish the numerous federal and out-of-state cases cited by defendant. In People v. Hovey (1988) 44 Cal.3d 543, 565-566 [244 Cal.Rptr. 121, 749 P.2d 776], we declined to impose a requirement of sua sponte cautionary instructions on informant testimony. We do so again here. VII. Cautionary Instruction Regarding Taking and Use of Notes The record at one point suggests that some jurors may have taken notes during trial. By settled statement, the parties have agreed that jurors were given notepads and pencils for this purpose, a number of jurors did take notes, and jurors were permitted to take their notes into the jury room during deliberations in the guilt and penalty phases of trial. The record does not reflect that a cautionary instruction was either requested or given sua sponte regarding the taking and use of notes by the jury. Penal Code section 1137 implicitly approves of juror note-taking and contemplates that such notes will be used during deliberations. Numerous state and federal cases discuss the advantages and dangers of the practice. (See cases cited in People v. DiLuca (1982) 85 App.Div.2d 439 [448 N.Y.S.2d 730]; United States v. Maclean (3d Cir. 1978) 578 F.2d 64; Annot. (1967) 14 A.L.R.3d 831, and later cases (1987 pocket supp.).) Relying on DiLuca, supra, 85 App.Div.2d 439, this court in People v. Whitt (1984) 36 Cal.3d 724 [205 Cal.Rptr. 810, 685 P.2d 1161], stated that the better practice was to give an instruction cautioning jurors not to be distracted by their note-taking, not to permit notes to take precedence over their independent recollection, not to rely on the notes of another juror or on the fact that another juror has taken notes, and in case of discrepancy between their recollection and their notes, to request that the actual record of proceedings be read back to them. (Id. at pp. 746-747.) In Whitt the trial court had given instructions including many of these components and evidence of guilt was “relatively simple.” (Id. at p. 748.) We thus noted that absence of cautionary instructions did not prejudice the defendant. In the present case, defendant states no instruction was given and evidence of guilt cannot be termed simple. Hence he alleges he was prejudiced by failure of the court to give a Whitt instruction sua sponte. While Whitt, supra, 36 Cal.3d 724, held giving of such an instruction was the better practice, we have twice declined to hold that a sua sponte instruction is required and we have declined to determine whether, if it was required, the ruling in Whitt was retroactive. (People v. Silbertson (1985) 41 Cal.3d 296, 303-304 [221 Cal.Rptr. 152, 709 P.2d 1321]; People v. Leach (1985) 41 Cal.3d 92, 107 [221 Cal.Rptr. 826, 710 P.2d 893].) It does not appear that we must resolve these issues here. It is true that no cautionary instruction was given. But it is also true that defendant has not demonstrated, either in the record or by means of a petition for writ of habeas corpus presenting evidence outside the record, how he might have been prejudiced by juror note-taking. We are not told, for example, that one juror took copious notes and dominated deliberations or that jurors appeared not to be paying attention to proceedings as they took notes on certain portions of testimony. While evidence of guilt might not be termed simple, one must also note that the jury at the guilt phase retired to deliberate at 4:45 p.m., on November 2, 1983, and at 11:20 ai.m., on November 4, 1983, indicated it had reached a verdict. In the meantime it exercised its prerogative to request that substantial amounts of testimony, including that of Tracy Leitch, Kashani, and the defendant, be reread. On this record it does not appear necessary to resolve issues left open in Whitt, supra, 36 Cal.3d 724, or to reconsider whether such cautionary instructions should be required only on request. VIII. Nonrepresentative or Guilt-prone Jury A number of prospective jurors were challenged for cause after voir dire disclosed their opposition to the death penalty. Questioning was conducted under the standards set forth in Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] which appeared to require that a juror not be challenged for cause unless it appeared with unmistakable clarity that that juror would automatically vote against the death penalty under any circumstances. Defendant contends that removal of such jurors violated his right to trial by a jury representing a fair cross-section of the community and further contends the process produced a guilt-prone jury thereby violating his right to due process. We have previously rejected both of these arguments. (People v. Miranda (1987) 44 Cal.3d 57, 78-79 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Fields (1983) 35 Cal.3d 329, 342-343 [197 Cal.Rptr. 803, 673 P.2d 680] (cert. den. sub nom. Fields v. California (1984) 469 U.S. 892 [83 L.Ed.2d 204, 105 S.Ct. 267]); Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-69 [168 Cal.Rptr. 128, 616 P.2d 1301]; and see People v. Balderas (1985) 41 Cal.3d 144, 191 [222 Cal.Rptr. 184, 711 P.2d 480] and cases cited therein.) It is unnecessary in the present case to reconsider our views on the matter. Penalty Phase Facts The prosecution presented no new evidence at the penalty phase. The defense produced the testimony of relatives and friends as to defendant’s upbringing and good qualities and the testimony of two psychologists as to his personality disorders. It appears that defendant’s parents divorced when defendant was five and the new family moved to New York. Thereafter defendant and his sister were strongly discouraged from maintaining a relationship with their father. On two occasions when defendant seemed to side with his father, the mother sent him back to Chicago to his father, whether the father wanted him or not. On the first of such incidents, defendant was only a child of seven. Evidence indicated the stepfather was a strict disciplinarian who spanked the children with a strap for any infraction of his sometimes quixotic rules and molested defendant’s sister from age 10 until she left the home at age 17. Defendant’s mother invariably sided with the stepfather in any family dispute and indeed was repeatedly protective of him even in her testimony at this trial. It was the opinion of one psychologist that this family situation left defendant confused, frustrated, very angry and with feelings of insecurity and inferiorit