Full opinion text
Opinion PANELLI, J. Defendant Manuel Pina Babbitt was convicted of the first degree murder (Pen. Code, § 187), robbery (§ 211) and attempted rape (§§ 664, 261, subds. (2), (3)) of Leah Schendel and the burglary of Ms. Schendel’s apartment (§ 459), and of the robbery (§ 211) and attempted rape (§§ 664, 261, subds. (2), (3)) of Mavis W. The jury found the murder to have occurred in the course of burglary (§ 190.2, subd. (a)(17)(vii)), robbery (§ 190.2, subd. (a)(17)(i)) and rape (§ 190.2, subd. (a)(17)(iii)), found defendant sane, and in the Schendel case imposed the sentence of death. This appeal is automatic. (§ 1239, subd. (b).) We have consolidated defendant’s petition for writ of habeas corpus with the appeal. As will appear, we affirm the judgment and deny the petition for writ of habeas corpus. I. Facts Defendant did not dispute that he committed the charged offenses, but in both the Schendel and the W. cases he asserted the defenses of diminished capacity and unconsciousness. A. The Schendel Case. Leah Schendel lived in the Sacramento Manor, a senior citizen’s complex located on North Manor Drive in Sacramento. On the evening of December 18, 1980, she dined out with relatives and returned to her apartment about 11 p.m. That same evening, Vernon McMaster, her next door neighbor, went to bed at his usual time between 10:30 and 11 p.m. He awoke sometime between 2 and 4 a.m. While lying in bed he heard a noise like a “thud or a thump” in Ms. Schendel’s apartment. After that he did not hear anything. He then heard the television go on. McMaster lay awake in response to the noises for about an hour. The next morning, December .19, Edna Smith, Leah Schendel’s neighbor on the other side, checked on Ms. Schendel at McMaster’s urging. The screen door to Ms. Schendel’s apartment had been cut or broken and the main door was open. The television was on, but the sound was turned down. Receiving no response when she called Ms. Schendel’s name, Ms. Smith called John Balvin, the resident manager of the complex. Ms. Smith had been up until 2 a.m. the previous night and had heard nothing except Ms. Schendel arriving home from dinner about 11 p.m. When Balvin entered Ms. Schendel’s apartment, he found the furniture in disarray. Ms. Schendel’s body was on the bedroom floor, covered from the waist up with a mattress or box springs. After determining that Ms. Schendel was dead, Balvin called the police. The police arrived and secured the apartment. The apartment screen door had been ripped near the latch, apparently by a sharp instrument rather than a hand or finger. The apartment appeared to have been ransacked. The television set was turned on to channel 40, but there was no sound. Playing cards, broken dentures, and some pieces of glass were on the living room floor. A purse was on the floor. A knife was beside the television set. There was blood on the living room and kitchen floors, on the inside portion of the screen door, and on the doorway of the bedroom. Drawers and other items were scattered all over the bedroom. When the mattress was removed from Ms. Schendel’s body, it was noted that she was nude from the waist down. Her nightgown and pajama top were pulled above her breast area. A tea kettle was sitting on top of her pubic area, a leather strap was tied to her left ankle, an electrical cord lay across the lower part of her legs. A pillow by her head was heavily soaked with blood. According to the pathologist, Leah Schendel died from a heart attack brought on by a severe beating and possible suffocation. She also showed signs of possible rape. Her body had suffered numerous lacerations and abrasions. Had Ms. Schendel not suffered from coronary disease, and had she not experienced physical and psychological stress caused by fright, the struggle, and pain from her wounds, the physical blows she received would not of themselves have proved fatal. Defendant’s fingerprints and palmprints were found on the handle of the tea kettle and on other items strewn about the apartment. Articles missing from the apartment were subsequently found among defendant’s belongings. B. The Mavis W Assault. About 10:30 or 11 p.m. on December 19, 1980, Mavis W. was returning to her home on 63d Avenue in Sacramento in her new Volkswagen Dasher automobile. As she approached her driveway she noticed defendant walking slowly by her house. When she turned into her driveway, defendant stopped, turned around, and looked at her. As Mrs. W. alighted from her car, defendant grabbed her from behind. He demanded her car, but Mrs. W. threw the keys up the driveway. Defendant dragged Mrs. W. behind some bushes and struck her until she lost consciousness. When she regained consciousness, she was lying on her back and defendant was attempting to pull off her pants. Mrs. W. again lost consciousness. Julie W., Mavis W.’s daughter, was visiting her mother’s house the evening of December 19th, as was George Iwamura. When George left the house to go home he saw defendant running across the neighbors’ lawn. He also saw Mrs. W. lying on the lawn near the neighbors’ house. George ran back to Mrs. W.’s house, told Julie, and called the police. Julie found her mother lying unconscious on the grass, blood on her face and her clothing. Mrs. W. was nude from the waist down. Her purse was on the ground, its contents strewn about the yard. Taken from Mrs. W. were a silver pendant, money, a silver ring, and a gold watch with a gold band. C. The Defense. Defendant did not testify. Sacramento Police Detective Terry Brown testified that in a tape-recorded interview after his arrest, defendant denied any memory of the Schendel attack. In a videotaped interview with defense psychiatrist Dr. David Axelrad, defendant related that he spent most of Thursday, December 18, 1980, the day preceding the early morning Schendel attack, with a woman whom he had met that morning. The pair spent most of the day at the Stix Bar, where they consumed some liquor and beer and smoked marijuana. That evening about 9 p.m. the woman left in a taxi. Defendant smoked more marijuana with some men who had parked nearby in a van. He then walked to 21st Street where he sat down on the ground and passed out. When he came to, there was a cigar box next to him with “stuff” in it. He denied any memory of the attack on Ms. Schendel. Gerald Kato testified that on December 19, the day of the Mrs. W. attack, he met defendant at the Stix Bar. The two went out to Kato’s truck about 9 or 10 p.m. and smoked marijuana. Kato stated that defendant appeared to act and talk normally. Defendant’s psychiatric defense of diminished capacity and unconsciousness was presented primarily through the testimony of his brother William and other family members, his common law wife Theresa, and Dr. Joan Blunt, a clinical psychologist. The defense advanced three theories: (1) That as the result of childhood brain damage caused by a bicycle accident and a service-related injury received in Vietnam, defendant’s ability to think and function under stress was impaired; (2) that as a result of his combat service in Vietnam defendant manifested symptoms associated with post-traumatic stress disorder (PTSD); and (3) that defendant possibly suffered from psychomotor epilepsy, which condition would have rendered him unconscious of acts committed during a seizure. D. Rebuttal. In rebuttal, the prosecutor put on psychiatrist Dr. Lee Coleman. Dr. Coleman’s testimony is discussed in detail below in connection with defendant’s claim of prosecutorial misconduct. In essence, Dr. Coleman testified that psychiatrists and psychologists are no better equipped than lay persons to infer what a defendant’s mental state was at the time of an alleged offense. II. Guilt and Sanity Phases As error during the guilt and sanity phases, defendant assigns the exclusion for cause of potential jurors opposed to the death penalty, the exclusion of certain evidence concerning his mental state at the time of the crimes, the court’s instruction on the “presumption of consciousness” (CALJIC No. 4.31), prosecutorial misconduct, and ineffective assistance of counsel. A. Denial of Representative and Impartial Jury. Defendant contends that the exclusion of some potential jurors for cause in accord with Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770] (exclusion of jurors unalterably opposed to the death penalty) denied him a jury representative of a fair cross-section of the community and denied him an impartial jury on the issue of guilt. We rejected the first contention in People v. Fields (1983) 35 Cal.3d 329, 342-353 [197 Cal.Rptr. 803, 673 P.2d 680] (plur. opn.), 374 (conc. opn. of Kaus, J.), and the second in Hovey v. Superior Court (1980) 28 Cal.3d 1, 68 [168 Cal.Rptr. 128, 616 P.2d 1301], and People v. Anderson (1985) 38 Cal.3d 58, 60 [210 Cal.Rptr. 777, 694 P.2d 1149]. The United States Supreme Court recently rejected the identical contentions in Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]. B. Evidentiary Error. Defendant contends that through a combination of erroneous rulings excluding evidence concerning his mental state at the time of the crimes, the trial court prevented him from effectively presenting his defense. The excluded evidentiary items are: (1) Testimony concerning the content of movies shown on channel 40 the night of Leah Schendel’s murder; (2) combat records of defendant’s Vietnam Marine company; (3) hospital records concerning defendant’s head injuries suffered in a childhood bicycle accident; and (4) testimony concerning defendant’s negative response to stimuli that reminded him of Vietnam. 1. Channel 40 Movies. a. Guilt Phase. One of the mental disorders defendant sought to prove in support of his defenses of diminished capacity and insanity was “PTSD.” Psychologist Dr. Joan Blunt testified that, based on her psychological testing of defendant, her review of Tobey Hospital records of a head injury he received from a bicycle accident at age 12, and his behavioral history, she believed that defendant has both functional and organic brain damage. As a result of brain damage, defendant would have decreased stress tolerance, making it difficult for him to function in an environment that did not take his impairment into account. With this personality, defendant was at a higher than usual risk of developing pathology as a result of exposure to severe combat in Vietnam. While in Vietnam, Dr. Blunt related, defendant sustained additional head trauma. In order to cope with the stress, he began taking more drugs and alcohol, which compounded his stress. On his return from Vietnam, defendant reportedly manifested symptoms characteristic of the PTSD suffered by the returning Vietnam War veteran. These included increased use of drugs and alcohol, a personality shift, hostility, explosive behavior, bar fights, suicide attempts, sleep disorder, a hyperalert state, a strong tendency to dissociate, and an upset reaction to symbols of Vietnam, such as green garbage bags, which reminded him of body bags, and certain music or words on the radio that reminded him of Vietnam. An individual suffering PTSD, Dr. Blunt stated, typically would seek avoidance of ideas or symbols that would trigger memory of the traumatic event. According to the report of Theresa Babbitt, defendant’s former “common law” wife, defendant manifested symbol avoidance behavior in that he was upset by the sight of any kind of green garbage bag, and when he heard music on the radio that reminded him of Vietnam, he would get up and turn it off. The evidence showed that Leah Schendel’s apartment was on the way of one route from the Stix Bar to defendant’s home and that because of her emphysema Ms. Schendel often kept the regular door of her apartment open, leaving only the screen door closed and locked. Relying on Dr. Blunt’s testimony concerning defendant’s likely adverse reaction to symbols of Vietnam, and evidence that when Ms. Schendel’s body was found her television set was turned on to channel 40, with the sound off, defense counsel sought to introduce evidence of the movies shown on channel 40 the night of Ms. Schendel’s murder in an effort to prove that the movies, containing sounds of gunfire and “Asian appearing people in evil roles,” may have drawn defendant to Ms. Schendel’s apartment and triggered his violent attack. The trial court sustained the prosecutor’s relevance objection. Defendant argues that this ruling was error. Except as otherwise provided by statute, no evidence is admissible except relevant evidence. (Evid. Code, § 350.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact ....’’ (Id., § 210.) The trial court is vested with wide discretion in determining the relevance of evidence. (People v. Green (1980) 27 Cal.3d 1, 19 [164 Cal.Rptr. 1, 609 P.2d 468].) The court, however, has no discretion to admit irrelevant evidence. (People v. Turner (1984) 37 Cal.3d 302, 321 [208 Cal.Rptr. 196, 690 P.2d 669].) “Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose.” (People v. De La Plane (1979) 88 Cal.App.3d 223, 244 [151 Cal.Rptr. 843], disapproved on other grounds in People v. Green, supra, 27 Cal.3d at p. 39, fn. 25.) In the instant case the trial court did not abuse its discretion in excluding the evidence of the violent movies shown on channel 40 the night of Leah Schendel’s murder. There is no evidence that the television set was turned on before defendant attacked Ms. Schendel, or that defendant heard or saw either of the movies before he cut open Ms. Schendel’s screen door and entered her apartment. The evidence is to the contrary. Consequently, the program content of channel 40 would have no tendency in reason to prove or disprove defendant’s mental state at the time of the offenses. “The inference which defendant sought to have drawn from the [proffered evidence] is clearly speculative, and evidence which produces only speculative inferences is irrelevant evidence.” (People v. De La Plane, supra, 88 Cal.App.3d at p.242, italics in original.) Defendant cites People v. Burgener (1986) 41 Cal.3d 505 [224 Cal.Rptr. 112, 714 P.2d 1251] and People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99] for the proposition that the evidence was admissible notwithstanding the absence of any proof that he actually heard or saw the television before he forcibly entered Ms. Schendel’s apartment or before he attacked her. The cases are distinguishable. In Burgener, supra, 41 Cal.3d 505, we upheld the trial court’s admission, over defendant’s objection, of evidence that a substance on his shoes tested positive for blood (although it could have been some other substance), stating that the evidence “certainly has some tendency in reason to prove that [defendant] might have been present at the scene of a bloody shooting . . . .” (Id. at p. 527, italics in original; see Evid. Code, § 210.) The case is merely consistent with the principle that the trial court has broad discretion to determine the relevance of evidence (People v. Green, supra, 27 Cal.3d at p. 19), a discretion patently not abused under the facts. In Hall, supra, 41 Cal.3d 826, we rejected the principle that third-party-culpability evidence is admissible only on a preliminary showing of a “ ‘substantial probability’ ” of third-party guilt and reaffirmed the admissibility of “any relevant evidence that raises a reasonable doubt as to a defendant’s guilt. . . .” (41 Cal.3d at p. 829.) Rejecting defendant’s contention that his constitutional right to present a defense precludes any application of Evidence Code section 352 to third-party-culpability evidence because even remote evidence of motive could raise a “reasonable doubt” of guilt, this court stated: “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense. Courts retain, moreover, a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]” (Id. at p. 834.) In the instant case the excluded channel 40 program schedule would at most have provided a link in an incomplete chain of speculative inferences. Exclusion of the evidence was not an abuse of discretion. b. Sanity Phase. During the sanity phase of trial, defendant again sought to prove the contents of the channel 40 films and to demonstrate their potential connection with his actions. Defense counsel’s offer of proof was made by way of cross-examination of Dr. Elmer F. Galioni, the court-appointed psychiatrist. The trial court ruled the evidence inadmissible pursuant to Evidence Code section 352. Defendant maintains that this ruling was an abuse of discretion and a violation of his due process right to present relevant defense evidence. On direct examination by the prosecutor, Dr. Galioni testified that his diagnosis of defendant was that he had a passive-aggressive personality disorder. He described the condition as a character disorder where an individual rebels against society’s expectations, and “when confronted with the need to maintain responsibility,” he becomes aggressive and “may lash out openly aggressively.” In Dr. Galioni’s opinion, defendant’s asserted amnesia about the offenses was either a “functional amnesia” that was developed after the fact to eliminate or blot out unpleasant memories, or a “feigned amnesia.” On cross-examination by defense counsel, Dr. Galioni testified that although some of defendant’ reported behavior was consistent with a diagnosis of PTSD, he did not make that diagnosis because some elements did not fit, particularly the fact that defendant’s behavior was not always avoidant. When an individual who suffers from PTSD encounters a stimulus that reminds him of the traumatic event, his natural reaction and instinct is to try to get away from it rather than going towards it. Defense counsel then sought to examine Dr. Galioni about defense exhibit T, a certified copy of the channel 40 program log. At a hearing outside the presence of the jury, Dr. Galioni testified that without further information—how defendant got to Ms. Schendel’s apartment, the circumstances of his entry, whether he heard the television, more evidence about defendant’s disorder—it would be “speculative” for him to attach any significance to the program content of channel 40 in evaluating defendant’s behavior the night of the Schendel offenses. The trial court ruled that the consumption of time required for proof of the channel 40 program content and its connection to defendant’s behavior outweighed the probative value of the evidence, “especially in view of [Dr. Galioni’s] ultimate position in this matter.” This ruling was not error. In his offer of proof, defendant was unable to demonstrate that the inference concerning his state of mind sought to be drawn from the channel 40 program log was anything more than speculative. As previously stated, exclusion of evidence that produces only speculative inferences is not an abuse of discretion. (People v. De La Plane, supra, 88 Cal.App.3d at p. 242; People v. Turner, supra, 37 Cal.3d at p. 321; see Evid. Code, § 350.) Relying on Washington v. Texas (1967) 388 U.S. 14 [18 L.Ed.2d 1019, 87 S.Ct. 1920] and its progeny, defendant asserts that the trial court’s authority under Evidence Code section 352 to exclude relevant evidence must yield to his constitutional right to present a defense. The principle applies, however, only to “relevant and material” evidence. (Washington v. Texas, supra, at p. 23 [18 L.Ed.2d at p. 1025]; see Chambers v. Mississippi (1973) 410 U.S. 284, 302 [18 L.Ed.2d 1019, 87 S.Ct. 1920] [“critical” evidence].) As the court correctly stated in People v. Reeder (1978) 82 Cal.App.3d 543 [147 Cal.Rptr. 275]: “Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. In Chambers v. Mississippi [supra, 410 U.S. 284], it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements. [1j] We do not mean to imply, however, that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352.” (Id. at p. 553, italics in original; see People v. Hall, supra, 41 Cal.3d 826, 834; see also Crane v. Kentucky (1986) 476 U.S. 683, 689 [90 L.Ed.2d 636, 644, 106 S.Ct. 2142] [recognizing trial court’s “ ‘wide latitude’” in making ordinary evidentiary rulings].) Here, because defendant’s evidence failed to meet the threshold requirement of relevance, its exclusion pursuant to section 352 did not implicate any due process concerns. (See People v. Hall, supra, 41 Cal.3d 826; People v. Wright (1985) 39 Cal.3d 576, 588 [217 Cal.Rptr. 212, 703 P.2d 1106].) 2. Combat Records of Defendant’s Vietnam Marine Company. Defendant complains that the court erred in excluding from evidence as not properly authenticated the four-volume combat history of his Vietnam Marine company obtained at defense counsel’s request from the United States Marine Corps. Relying on Evidence Code section 1420, defendant maintains that the cover letter bearing the signature of an appropriate United States Marine Corps official, and received in response to defense counsel’s letter requesting the records, was sufficient to authenticate the records. Evidence Code section 1420, however, serves to authenticate only the cover letter, not the documents themselves. Defendant also contends for the first time on appeal that the records were properly authenticated under Evidence Code section 1421. The record does not show, however, nor was any argument made below that the contents of the records were known only to the author, as required by section 1421. Moreover, any error in excluding the records was nonprejudicial. The record shows that defense counsel, acceding to the prosecutor’s relevance objection to the four-volume history, ultimately sought to introduce only one page, a page showing that defendant had been wounded in Vietnam. There was a plethora of other evidence that defendant had suffered a head injury in Vietnam and the prosecutor conceded the point. The excluded page thus would merely have corroborated an undisputed fact. 3. Hospital Records Concerning Defendant’s Childhood Head Injury. In addition to his diminished-capacity theory of PTSD, defendant also contended that his ability to form the requisite criminal intent was curtailed by organic brain damage and psychomotor epilepsy. Dr. Blunt testified that psychological tests administered to defendant indicated that he suffered from damage in the area of “the right temporal and the left parietal occipital region” of his brain, and that defendant might also suffer from psycho-motor epilepsy, a condition in which one may perform apparently purposive acts while in an unconscious state. She attributed the postulated epilepsy to the presence of temporal lobe damage, possibly caused by head injuries defendant suffered from a bicycle accident when he was 12 years old. Defense counsel then asked Dr. Blunt, “[Wjould an injury to the right temporal region . . . and the left parietal at the age of. . . twelve years old be consistent with the development and results of various testing that you did with regard to the Luria-Nebraska test as it applies to Manuel P. Babbitt?” The court sustained the prosecutor’s lack-of-foundation objection, stating that although there was evidence that defendant suffered some sort of head injury at age 12, there was no evidence that the injury involved the right temporal and left parietal occipital areas of the brain. Defense counsel conceded that because the pertinent medical records showing the precise nature of the injury had not yet been introduced into evidence, the question was premature. Counsel asserted that the records of Tobey Hospital in Massachusetts would show “where the damage was.” When defendant subsequently sought to introduce the Tobey Hospital records, the court sustained the prosecutor’s relevancy objection. Defendant contends that the court’s ruling excluding the records substantially impaired his ability to convince the jury that he suffered from brain damage. He maintains that if in fact there were objectionable items in the records, limiting instructions pursuant to Evidence Code section 355 or the deletion of the offending portions would have met the problem. We first observe that the record does not disclose that the Tobey Hospital records would in fact have substantiated his theory of brain damage. The evidence is to the contrary. Dr. Blunt, who reviewed the records during trial, testified only that the records indicated that defendant suffered a “head injury primarily to the posterior portion of the head” and that the site of the swelling was “consistent” with one of the areas of the brain that she believed was damaged. In the sanity phase, moreover, Dr. Galioni, the court-appointed psychiatrist, testified that the Tobey Hospital records did not indicate damage to any specific area of the brain. Contrary to defense counsel’s expectation, therefore, the records would not have shown “where the damage was.” Defendant, as proponent of the medical records, had the burden of demonstrating their relevance. (Evid. Code, § 403.) In the absence of an offer of proof of the records’ relevance, or an offer to delete any offending portions, the trial court’s ruling excluding the records was not error. (Evid. Code, § 354.) Evidence Code section 355, relied on by defendant, is inapplicable. Section 355 provides for limiting instructions when evidence is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose. The section has no bearing on the admission of wholly irrelevant evidence, nor did defendant request a limiting instruction. Finally, any error in excluding the hospital records was nonprejudicial. That defendant received a head injury when he was 12 years old was mentioned several times and was not disputed. The jury thus was fully aware of the injury to which the records pertained. (Evid. Code, § 354; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 4. Other Evidence Supportive of Defendant's PTSD Defense. Defendant’s brother, William Babbitt, testified at length concerning changes he observed in defendant since his return from Vietnam. He and Theresa Babbitt, defendant’s former “common law” wife, both testified to a number of incidents that indicated that defendant was mentally ill. When, however, defense counsel proposed to have Theresa testify to remarks made by defendant demonstrating his adverse reaction to symbols of Vietnam, e.g., green trash bags, Vietnamese people, and certain songs played on the radio, the court sustained the prosecutor’s objection that the evidence was self-serving hearsay. Defense counsel then formulated the question so as to call for Theresa’s personal observations, whereupon the trial court sustained the prosecutor’s Evidence Code section 352 objection that the probative value of the evidence was outweighed by its undue consumption of time and prejudicial effect. Defendant maintains that evidence of his remarks was admissible under the state-of-mind exception to the hearsay rule (Evid. Code, § 1250, subd. (a)). This exception was not advanced below and therefore need not be considered on review. (See Evid. Code, § 354.) Moreover, defendant cites nothing in the record to support the argument that his state of mind at the time he made the asserted remarks to Theresa Babbitt had any bearing on his state of mind at the time he attacked the two victims in this case. Defendant also contends that exclusion of the evidence under Evidence Code section 352 was an abuse of discretion. However, in the absence of any evidence supportive of a connection between defendant’s reaction to symbols of Vietnam and his attacks on Leah Schendel and Mavis W., the trial court’s ruling was not error. As the court observed, “I really don’t see the relevance of that [defendant’s reaction to Vietnamese people who had settled near him] in view of the fact that neither of the victims were Vietnamese.” Nor was there evidence that defendant encountered any Vietnamese or any other , symbol of Vietnam before the attacks. As we reiterated in People v. Wright, supra, “Section 352 directs ‘the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant’s liberty. Nonetheless, it cannot be said that the trial judge’s ruling on this evidence, of which the probative value was slight and the chance of prejudice and confusion substantial, struck an improper balance and thereby constituted an abuse of discretion.’ [Citation.]” (39 Cal.3d at p. 588.) Here the probative value of the proffered evidence was de minimis and the chance of confusion substantial. Exclusion of the evidence was not an abuse of discretion. Furthermore, except for defendant’s reaction to Vietnamese people, the other items of evidence excluded from Theresa Babbitt’s testimony, and more, were elicited from other witnesses. The jury heard evidence that defendant turned off music that reminded him of Vietnam; that he had difficulty sleeping; that he heard voices; he giggled; he had headaches and pain; he was upset by green garbage bags; he practiced yoga and took long walks; and he changed for the worse, becoming more violent, after being in Vietnam. Thus, any error in precluding Theresa Babbitt from answering certain questions about defendant was nonprejudicial. (People v. Watson, supra, 46 Cal.2d 818, 836.) 5. Standard of Review. Defendant argues that in assessing error in the exclusion of the above cited evidence the Chapman standard (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]) applies, both because the error violated his constitutional rights to confrontation and due process and because this is a capital case. Because we have determined that exclusion of the evidence was not error, we need not address the standard-of-review issue. Nevertheless, assuming arguendo that there was error, pursuant to our decisions in People v. Burgener, supra, 41 Cal.3d 505, 528, People v. Hall, supra, 41 Cal.3d 826, 836, and People v. Wright, supra, 39 Cal.3d at page 586, the applicable standard is Watson, supra, 46 Cal.2d 818. As indicated, exclusion of the evidence, if error, was nonprejudicial under the Watson standard. Defendant asserts alternatively that the evidence is extremely close, thus requiring application of the so-called “refinement” of the Watson test articulated in People v. Gonzales (1967) 66 Cal.2d 482, 493-494 [58 Cal.Rptr. 361, 426 P.2d 929] and People v. Briggs (1962) 58 Cal.2d 385, 407 [24 Cal.Rptr. 417, 374 P.2d 257], viz., “Where the evidence, though sufficient to sustain the verdict, is extremely close, ‘any substantial error tending to discredit the defense, or to corroborate the prosecution, must be considered as prejudicial.’ ” (People v. Gonzales, supra; People v. Briggs, supra.) Without determining whether Gonzales and Briggs in fact modify the Watson test, we reject defendant’s premise that this was a close case. (Cf. People v. Powell (1967) 67 Cal.2d 32, 56 [59 Cal.Rptr. 817, 429 P.2d 137] [distinguishing Gonzales].) In the trial court’s view, the verdicts of guilt were supported “beyond any reasonable doubt under any or all of the theories advanced by the prosecution,” and the evidence “established the defendant’s sanity beyond any reasonable doubt.” The record supports the trial court’s determination. C. Instruction on “Presumption of Consciousness. ” One of the defense theories presented at trial was that of unconsciousness based on psychomotor epilepsy. Dr. Blunt, testifying for the defense, described a psychomotor epileptic condition as one “that results from problems in one or both of the temporal lobes of the brain where a person loses control or essentially is unconscious, but they are able to motivate and do things. And what actually occurs is that the outer cortex of the brain is essentially not functioning during those episodes .... They don’t reason, they don’t think, but. . . they can act, they can perform well-learned kinds of things like walking and eating and those kinds of things . . . things that we have so thoroughly learned . . . that they are almost automatic.” Dr. Blunt arrived at her diagnosis of psychomotor epilepsy after reading a transcript of Theresa Babbitt’s testimony, “where [Theresa] described the starry [szc], glassy-eyed effect [szc] that [defendant] had during the episodes of violence that he had displayed with her, and also her understanding—her memory of him having no memory [of the events].” This testimony, Dr. Blunt stated, together with the previously described psychological testing of defendant, was “very consistent” with a diagnosis of psychomotor epilepsy. Dr. Lee Coleman, testifying for the prosecution in rebuttal, stated that Theresa Babbitt’s description of defendant’s “glassy-eyed” look during violent episodes with her was insufficient to support a diagnosis of psychomotor epilepsy, in that in each instance defendant had been drinking, which could account for his behavior, and, moreover, he would become violent, and “a person who’s having these temporal lobe seizures,... is not capable of a coordinated, purposeful, directed violent attack because . . . the nature of the seizure itself would prevent such a thing.” Defendant’s claim of having no memory of the incidents was not in and of itself evidence of a seizure because he may or may not have been speaking the truth. Persons experiencing a psychomotor seizure, Dr. Coleman stated, “may appear to be awake, but in fact, they are in a true altered state of consciousness because they cannot relate to you in any kind of normal way, they could not talk to you, . . . and what you see are . . . repetitive stereotype movements. ... If what they are doing involved a coordinated thing . . . engaging in an activity that involves coordinated muscular complicated movement, they would not be able to continue that.” They would be incapable, the doctor testified, of using or continuing to use a cutting instrument to cut a hole in a screen door, or of repeatedly inflicting purposeful traumatic injuries on another, or of removing drawers from dressers, dumping the contents out on a surface, and looking for things of value. Dr. Globus, testifying in surrebuttal, indicated that defendant’s conduct on the nights in question was not inconsistent with a theory of unconsciousness based on psychomotor epilepsy. Based on the foregoing evidence, the trial court instructed the jury in terms of CALJIC No. 4.30 and No. 4.31. Relying on Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450], Francis v. Franklin (1985) 471 U.S. 307 [85 L.Ed.2d 344, 105 S.Ct. 1965], People v. Roder (1983) 33 Cal.3d 491 [189 Cal.Rptr. 501, 658 P.2d 1302], and related cases, defendant contends that it was constitutional error for the court to instruct the jury on the CALJIC No. 4.31 so-called “presumption of consciousness” in that the instruction creates a mandatory, rebuttable presumption that the jury would have understood as shifting to defendant the burden of proving unconsciousness. Sandstrom, Franklin, and Roder, supra, stand for the principle that it is a violation of due process to reduce the prosecution’s burden of proving every element of the offense beyond a reasonable doubt. In Sandstrom and Franklin, both murder cases, the challenged instructions lightened the prosecution’s burden of proving the element of intent. (Sandstrom v. Montana, supra, 442 U.S. at pp. 523-524 [61 L.Ed.2d at p. 39]; Francis v. Franklin, supra, 471 U.S. at p. 307 [85 L.Ed.2d at p. 360].) In Roder, which involved the charge of a secondhand dealer receiving stolen property (§ 496, subds. 1, 2), the challenged instruction lightened the prosecution’s burden of proving the element of knowledge. (33 Cal.3d at p. 504.) Defendant argues that because unconsciousness completely negates the intent element of the charged crimes, proof of consciousness is a fact necessary to proof of intent. CALJIC No. 4.31, in creating a presumption of consciousness, therefore impermissibly lightened the prosecutor’s burden of proving intent or, stated conversely, impermissibly shifted to defendant the burden of negating an element of the charged offenses. The Attorney General responds that consciousness is not an element of the offenses, but rather, is an affirmative defense, and that placing on the defendant the burden of proving an affirmative defense does not violate due process. Section 26, he observes, provides that all persons are capable of committing crimes, except for certain specific classes including those “who committed the act charged without being conscious thereof.” The statute, he maintains, thus defines unconsciousness as an affirmative defense. Only when there is evidence tending to show that the defendant was unconscious is the prosecution required to establish beyond a reasonable doubt that he was conscious. In these circumstances, the Attorney General concludes, to permit the prosecution to rely on the rebuttable presumption of consciousness is not a denial of due process. In support of their respective arguments, both parties cite Patterson v. New York (1977) 432 U.S. 197 [53 L.Ed.2d 281, 97 S.Ct. 2319]. In Patterson the defendant was charged with second degree murder. Under New York law extreme emotional distress is a defense to the charge, but the burden is on the defendant to prove the defense by a preponderance of the evidence. Rejecting the contention that this scheme impermissibly shifts the burden of persuasion from the prosecutor to defendant in violation of due process, the high court noted that the affirmative defense of extreme emotional disturbance “does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion; and unless we are to overturn Leland[ ] and Rivera, [] New York has not violated the Due Process Clause, and Patterson’s conviction must be sustained. fl[] We are unwilling,” the court stated, “to reconsider Leland and Rivera. But even if we were to hold that a State must prove sanity to convict once that fact is put in issue, it would not necessarily follow that a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment.” (Id. at pp. 206-207 [53 L.Ed.2d at p. 290].) Concluding, the court stated; “We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. Traditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society’s interests against those of the accused have been left to the legislative branch. We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses has never been constitutionally required; . . .” (432 U.S. at p.210 [53 L.Ed.2d at p. 292].) Relying on the United States Supreme Court’s statement that the defense of extreme emotional disturbance “does not serve to negative any facts of the crime which the State is to prove in order to convict” (432 U.S. at p. 207 [53 L.Ed.2d at p. 290]), defendant asserts that where, as here, the defense negatives an element of the offense—to wit, intent—Sandstrom, supra, 442 U.S. 510, Franklin, supra, 471 U.S. 307, and Roder, supra, 33 Cal.3d 491 require the prosecution to prove the absence of the asserted defense beyond a reasonable doubt and without the assistance of a presumption. The Attorney General, by contrast, cites Patterson, supra, 432 U.S. 197, for the proposition that due process does not require the state to prove the nonexistence of an affirmative defense. In Engle v. Isaac (1982) 456 U.S. 107 [71 L.Ed.2d 783, 102 S.Ct. 1558], the United States Supreme Court recognized that “the prosecution’s constitutional duty to negate affirmative defenses may depend, at least in part, on the manner in which the State defines the charged crime. ... A State may want to assume the burden of disproving an affirmative defense without also designating absence of the defense an element of the crime. [Fn. omitted.] The Due Process Clause does not mandate that when a State treats absence of an affirmative defense as an ‘element’ of the crime for one purpose, it must do so for all purposes.” (Id. at p. 120 [71 L.Ed.2d at pp. 797-796].) Pursuant to our statutory scheme, murder is defined as the unlawful killing of a human being with malice aforethought. (§§ 187-189.) The death, the causation, and the malice are the facts the state must prove beyond a reasonable doubt if the defendant is to be convicted of murder. (§§ 1096, 1105, subd. (a).) Unconsciousness is a defense. (§ 26.) Although the state, once the defendant raises the issue, has assumed the burden of disproving unconsciousness, this fact of itself does not transform absence of the defense—consciousness—into an element of murder for purposes of due process analysis. This is true even though unconsciousness negates the elements of voluntariness and intent, and when not voluntarily induced is a complete defense to a criminal charge (§ 26, subd. Four; People v. Sedeno (1974) 10 Cal.3d 703, 717 [112 Cal.Rptr. 1, 518 P.2d 913], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]). (See Engle v. Isaac, supra, 456 U.S. at p. 120 [71 L.Ed.2d at pp. 795-796].) In sum, because consciousness is not an element of the offense of murder (nor of any offense), CALJIC No. 4.31 does not impermissibly shift to the defendant the burden of negating an element, nor does the instruction violate due process by impermissibly lightening the prosecution’s burden of proving every element beyond a reasonable doubt. Consequently, there is no constitutional impediment to the state’s use of a rebuttable presumption in meeting its assumed burden—once the issue has been raised—to prove consciousness beyond a reasonable doubt. (See Engle v. Isaac, supra, 456 U.S. at p. 120 [71 L.Ed.2d at pp. 795-796]; Patterson v. New York, supra, 432 U.S. at p. 210 [53 L.Ed.2d at p. 292]; cf. People v. Boyes (1983) 149 Cal.App.3d 812 [197 Cal.Rptr. 105] [upholding former version of CALJIC No. 4.31].) Defendant’s effort to distinguish this case from Patterson on grounds that the unconsciousness defense negatives an element of the crime is unavailing. The United States Supreme Court’s concern in Patterson that the defense of extreme emotional disturbance did not negative any facts of the crime that the state was required to prove related not to whether absence of the defense was an element (which the state would then be required to prove), but rather, to the nature of the defendant’s burden of proof. The rule is that “when there is placed upon an accused the burden of interjecting a factual contention which, if established would tend to overcome or negate proof of any element of the crime charged as otherwise established by the People, the accused need only raise a reasonable doubt as to the existence or nonexistence of the fact in issue.” (People v. Tewksbury (1976) 15 Cal.3d 953, 963 [127 Cal.Rptr. 135, 544 P.2d 1335].) When, however, the defense raises “factual issues collateral to the question of the accused’s guilt or innocence [which] do not bear directly on any link in the chain of proof of any element of the crime” (id. at p. 964), there is no constitutional impediment to requiring the accused to prove the collateral facts by a preponderance of the evidence (id. at pp. 964-965). (See generally Jeffries & Stephan, Defenses, Presumptions and Burden of Proof in the Criminal Law (1979) 88 Yale L.J. 1325.) In Patterson, because the emotional-distress defense raised factual issues collateral to the question of guilt and did not serve to negative any element of the crime charged, the state could constitutionally require the defendant to carry the burden of persuasion by a preponderance of the evidence. (432 U.S. at pp. 200, 206-207 [53 L.Ed.2d at pp. 286, 289-290]; see also Martin v. Ohio (1987) 480 U.S. 228 [94 L.Ed.2d 267, 107 S.Ct. 1098].) In the instant case, by contrast, defendant’s burden was only to raise a reasonable doubt that he was conscious, and then only if the prosecution’s proof did not of itself raise such a doubt. (Cf. Martin v. Ohio, supra, 480 U.S. at p. 233 [94 L.Ed.2d at p. 274] [to convict, jury had to be convinced that none of the evidence, whether offered by state or defendant, raised a reasonable doubt]; People v. Loggins (1972) 23 Cal.App.3d 597, 601-602 [100 Cal.Rptr. 528] [construing § 1105 concerning defendant’s duty to come forward with evidence].) Hence, it is immaterial for present purposes that the unconsciousness defense served to negative an element of the crime. CALJIC No. 4.31, moreover, cannot be read in a vacuum. As the United States Supreme Court has stated: “Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. [Citation.] This analysis ‘requires careful attention to the words actually spoken to the jury . . ., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.’ [Citation.]” (Francis v. Franklin, supra, 471 U.S. at p. 315 [85 L.Ed.2d at p. 354]; see also People v. Burgener, supra, 41 Cal.3d at pp. 538-539.) Here, in addition to standard instructions on the presumption of innocence, the prosecution’s burden to prove every element of the charged offenses beyond a reasonable doubt, and the sufficiency of circumstantial evidence to prove intent or mental state, the jury was instructed that unconsciousness was a complete defense, that evidence had been received which tended to show that defendant was unconscious, and that if it had a reasonable doubt that defendant was conscious, it must find him not guilty. (CALJIC No. 4.30, supra, fn. 8.) Placed in context, therefore, CALJIC No. 4.31 did little more than guide the jury as to how to evaluate evidence bearing on the defendant’s consciousness and apply it to the issue, an issue that is capable of proof only by circumstantial evidence of the defendant’s conduct. (Cf. Rose v. Clark (1986) 478 U.S. 570 [92 L.Ed.2d 460, 106 S.Ct. 3101].) We conclude, therefore, that given the entirety of the charge a reasonable juror could not have believed that defendant was required to persuade it that he was unconscious. Rather, the instructions taken as a whole clearly indicate the prosecution had the burden of proving beyond a reasonable doubt not only that defendant appeared to be conscious, but also that he in fact was conscious. (See People v. Burgener, supra, 41 Cal.3d at p. 540; compare Francis v. Franklin, supra, 471 U.S. at p. 319-320 [85 L.Ed.2d at p. 357] with Ulster County Court v. Allen (1979) 442 U.S. 140, 160-161 [60 L.Ed.2d 777, 794-795, 99 S.Ct. 2213].) We note, finally, that even were we to assume, contrary to our determination, that CALJIC No. 4.31 implicates due process concerns, any error in giving the instruction would be harmless under the Chapman standard of review (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711]). (See Rose v. Clark, supra, 478 U.S. at pp. 582-583 [92 L.Ed.2d at pp. 473-474].) The defense and prosecution experts both testified that an individual experiencing a psychomotor epileptic seizure could perform “well-learned” or automatic “preprogrammed” kinds of activity, like walking or eating, but would be incapable of reasoned or coordinated complicated kinds of movement. Defendant’s acts in the Schendel case clearly were purposeful, motivated behavior: Cutting open Ms. Schendel’s screen door; ransacking her apartment and removing items of value; pulling her nightclothing above her breasts; placing a mattress on the trunk of her body and a teapot on her pubic area; tying a leather strap to her ankle; and inflicting repeated severe blows on her person. In the W. case the same is true: Demanding her car; beating her into unconsciousness; removing her lower clothing; and taking her cash and jewelry. The record thus establishes defendant’s consciousness beyond a reasonable doubt. (See Rose v. Clark, supra, 478 U.S. at pp. 580-581 [92 L.Ed.2d at pp. 472-473]; Pope v. Illinois (1987) 481 U.S. 497, 502-503 [95 L.Ed.2d 439, 446, 107 S.Ct. 1918, 1922].) D. Prosecutorial Misconduct. In his closing arguments during the guilt and sanity phases of trial, the prosecutor made unflattering remarks about defendant’s expert witnesses, inveighed against psychiatric defenses and, in the sanity phase, suggested that a finding of not guilty by reason of insanity would let defendant “off the hook.” Defendant contends that the prosecutor’s comments constituted prejudicial misconduct. Although some of the prosecutor’s challenged remarks were made during closing argument in the guilt phase of trial, most were made during the sanity phase. Because defendant has discussed all the comments together, examining especially their cumulative effect in the sanity phase, we shall do the same. We first observe that defendant failed to object at trial to any of the asserted instances of misconduct, nor was any admonition requested. Thus, defendant waived his right to raise the issue on appeal unless any harm flowing from the prosecutor’s remarks could not have been cured by timely objection and admonition. (People v. Green, supra, 27 Cal.3d at pp. 34-35.) However, as we discuss below, defendant contends that counsel’s failure to object constituted ineffective assistance of counsel. Because defendant’s ineffective assistance claim requires that we examine the merits of his prosecutorial misconduct claim, we shall do so notwithstanding his failure to object. (See People v. Fosselman (1983) 33 Cal.3d 572, 581 [189 Cal.Rptr. 855, 659 P.2d 1144].) 1. Prosecutor’s Appeal to the Passions and Prejudices of the Jury. Defendant asserts that the prosecutor appealed to the passions and prejudices of the jury by impugning the expertise of the defense expert witnesses and by urging the jury to join in a crusade against psychiatric testimony in the courtroom. Defendant cites the following comments during the guilt phase: 1. “[Psychiatrists have this self-anointed capacity to perceive things better than other people. . . .” 2. [In describing defense psychiatrist Dr. Globus]: “[W]hat he perceives himself to be, that is, an expert.” (Italics added by defendant.) 3. [In describing defense psychologist Dr. Blunt]: “Just because she’s testified before in six cases does not make her an expert, because you’ve got to look behind the facts and see what’s going on.” 4. “We are letting justice be decided on the basis of how well a psychiatrist can sell their bag of tricks.” 5. [Describing psychiatrists]: “. . . because they are so vain as to think that they are capable of all these magical, mystical things that they say they are capable of . . . .” These comments, defendant complains, improperly urged the jury to disregard the trial court’s judicial determination (see Evid. Code, §§ 405, 720) that the defense psychiatrist and psychologist, Dr. Globus and Dr. Blunt, qualified as experts. The record discloses that the prosecutor, in making the challenged remarks, repeatedly referred to the testimony of prosecution rebuttal witness Dr. Lee Coleman, who expounded at length on his view that psychiatrists and psychologists have no business in the courtroom. In Dr. Coleman’s opinion, psychiatric diagnosis is very unreliable and what a psychiatrist or psychologist does is an art, not a science. According to Dr. Coleman, there is nothing in the normal training of psychologists or psychiatrists that would allow either to make the inferences they are asked to make in legal proceedings concerning the mental state of defendants at the time of the charged offenses. Discussing what he perceived to be the deficiencies of the clinical interview that forms the basis for an expert’s forensic opinion, Dr. Coleman stated: “Well, the first weakness has to do with the fact that . . . the expectation is there, that the doctor, as a result of this interview, will be able to form an opinion without the kind of guesswork and hunches that ordinary people would have to rely on. . . . In other words, there’s an expectation that the doctor’s doing something special. The truth is that they are not doing anything special, they are basically reading information, listening to a person talk, decid[ing] what you’re going to believe, what you’re not going to believe .... So there’s often a misconception that something special has happened that [hasn’t].” Continuing, Dr. Coleman stated that “there seems to be a strong bias on the part of mental health professionals to believe what they are told .... I think that comes from the fact that in a normal clinical setting, there’s no reason not to believe what you’re being told because the patient comes to you with a problem and he has nothing to gain by not telling you the truth. But in a legal setting, there may be something to gain, but I think doctors have trouble making that shift and acting as a fact finder. I think they may be not as good as ordinary people in that respect.” A clinical interview, the doctor concluded, is not a reliable and valid technique for coming to a legal conclusion in the forensic context, such as rendering an opinion as to whether or not a person could premeditate or deliberate at a particular point in the past. The use of the person’s history, going back to childhood, is equally infirm, according to Dr. Coleman. “[A] psychiatrist or psychologist is not able to take that information and reach conclusions from it that an ordinary person couldn’t do.” Asked on cross-examination if the thrust of his testimony was to say “wait, don’t consider this [psychiatric and psychological testimony] at all because it’s unreliable,” Dr. Coleman replied that that was not the import of his testimony: “[T]hat would be trying to change the law, because the law requires [the jury] to listen to it, to consider it, and in each expert’s case to decide how much weight they want to give it. I am arguing as my opinion based on all the things I’ve said in terms of my background that it does not really—shouldn’t be given any weight, that after being considered, it shouldn’t be given any weight.” Viewed in the context of Dr. Coleman’s testimony, the prosecutor’s comments disparaging the expertise of the defense psychologist and psychiatrist to form an opinion about defendant’s mental state were based on the evidence. The comments went to the weight of the witnesses’ testimony, not its admissibility. The remarks therefore were not improper. (See People v. Green, supra, 27 Cal.3d at p. 35; see generally People v. Beivelman (1968) 70 Cal.2d 60, 76-77 [73 Cal.Rptr. 521, 447 P.2d 913], disapproved on other grounds in People v. Green, supra, at pp. 33-34.) During the sanity phase, defendant complains of the prosecutor’s assertion that “in a sense we have a social cancer in our community now, and it is this very process of allowing psychiatrists to come in and make their moral pronouncements disguised as medical opinion in the hopes of persuading jurors to let people off the hook, so to speak, by saying that this very hard to get at type of thing, that is, the person’s mental state, can be definitively defined by them simply going through their clinical interviews and going through their tests and projecting it to a time in the past. That’s a social cancer.” Continuing, the prosecutor stated: “Now, we’re not like surgeons who can take a scalpel and pull that out and get rid of it. What we have in that sort of thing is men who have courage like Lee Coleman, to walk into the lion’s den in the courtroom, men who have experience, and say we are making a mistake, we shouldn’t be doing this, and let’s not do it, and to stand up against his fellow psychiatrists who say hey, no problem, I can do these things. . . . ffl] That takes a lot of courage, and that’s the kind of thing, the kind of way that social cancers are removed, is like people like Lee Coleman who had the courage to stand up and be heard, even in what may seem to be an unpopular cause.” These remarks, defendant complains, constituted an attack not against the specific testimony elicited about defendant, but against the entire process of permitting psychiatrists to testify on a defendant’s behalf, and as such, were a call to the jury “to legislate judicial reform.” We are of the view that the prosecutor’s remarks approached misconduct. A prosecutor may vigorously urge his points as long as he does not act unfairly and may use appropriate epithets where warranted by the nature of the case and the evidence adduced. (See People v. Rodriguez (1970) 10 Cal.App.3d 18, 36-37 [88 Cal.Rptr. 789]; see also People v. Mitchell (1966) 63 Cal.2d 805, 809 [48 Cal.Rptr. 371, 409 P.2d 211], disapproved on other grounds in People v. Green, supra, 27 Cal.3d at pp. 33-34.) Here, however, the prosecutor’s comments were directed not to evidence of defendant’s mental state at the time of the offenses nor to the weight to be given his experts’ testimony, but rather, challenged the entire system of permitting psychiatric testimony on behalf of criminal defendants. The remarks thus went beyond the evidence and beyond any legitimate issue in the case. The law permits a defendant to assert a psychiatric defense and to have expert witnesses testify in his behalf. The courtroom is not the proper forum to challenge the propriety of this system. The prosecutor’s harangue therefore was inappropriate and is not to be condoned. In the present case, however, the prosecutor’s remarks, although skirting the edge of propriety, were clearly nonprejudicial. The prosecutor